OPINION
On October 27, 2006, plaintiff submitted PG & E’s Motion to Amend Findings and Judgment (PL’s Mot. or Motion) on Part II.B.2.a of the trial opinion issued on this case on October 13, 2006, see Pac. Gas & Elec. Co. v. United States (PG & E),
Plaintiff “moves the [cjourt, pursuant to Rules [of the United States Court of Federal Claims (RCFC) ] 52(b) and ... 59(a)(1), to amend its findings ... and ... the judgment” to reflect the argument that plaintiff would have used a reracldng option at Diablo Canyon if the Department of Energy (DOE) had performed in 1998, rather than the dry storage or Independent Spent Fuel Storage Installation (ISFSI) option, as the court held in its Trial Opinion. Pl.’s Mot. at 1; see PG & E,
Defendant responds that “the [cjourt should deny PG & E’s motion.” Defendant’s Response to Plaintiffs Motion to Amend Findings and Judgment (Def.’s Response) at 1. Defendant argues that plaintiffs “motion fails to meet the legal standard for reconsideration or amendment of the court’s findings.” Id. at 3 (capitals omitted). To meet this standard, plaintiff must show: “(1) the occurrence of an intervening change in the controlling law; (2) the availability of previously unavailable evidence; or (3) the necessity of allowing the motion to prevent manifest injustice.” Id. Defendant asserts that plaintiff failed to meet any of these standards. Id. at 4. Contrary to plaintiffs assertions, defendant avers that it argued at trial that plaintiff would have used the dry storage facility, assuming timely performance. Def.’s Response аt 10 (quoting Tr. at 1177:21-25 (Womack)). Having failed to address this issue when it was first litigated, despite the court’s directions, id. at 15,
“Even if the court considers PX 185, PG & E’s motion should be denied,” argues defendant, Def.’s Response at 16 (capitals omitted), because the weight of the evidence does not support plaintiffs assertions, id. at 16-21, and because plaintiffs “economic rationality” definition is too narrоw, id. at 18. Lastly, defendant argues that plaintiffs “new argument, if considered by the court, calls into question whether PG & E properly mitigated its damages.” Id. at 22 (capitals omitted).
Plaintiff replies by reiterating most of its initial arguments, Pl.’s Reply at 1, and arguing the merits and interpretation of the evidence as presented by defendant, id. at 5-9. Plaintiff sees defendant’s mitigation argument as a “far-fetched red herring” because it imposes breach-world standards on the non-breach world when “PG & E’s motion to amend presents an entirely distinct issue that arises only in the non-breach world as determined by the [cjourt.” Id. at 9.
II. Evidence at Trial
Which kind of storage would have been implemented at Diablo Canyon in the non-breach world as anticipated in 1993 was not the central issue at trial. However, the fact that some kind of option would have been chosen came up on defendant’s initiative.
At trial, Mr. Lawrence F. Womack, a former PG & E employee, testified on cross-examination as follows:
Question by Mr. Gardner, counsel to defendant: And so if there was no acceptance at Diablo Canyon before 2006, [as*781 suming DOE performance at an MRS,] PG & E would have had to have built dry storage, correct?
Answer by Mr. Womack: I believe that’s what I stated yesterday.
Tr. at 1177:21-25 (Womack). This excerpt from Mr. Womack’s testimony could be read as a definitive indication that plaintiff would have implemented dry storage in the non-breach world. Despite this testimony, there is evidence that Mr. Womack was not certain that dry storage specifically would have been implemented absent the breach. Later in Mr. Womack’s testimony оn cross-examination, the following exchange occurred:
Question by Mr. Gardner, counsel to defendant: How much fuel was DOE obligated to take from Diablo Canyon beginning in 1998?
Answer by Mr. Womack: Enough ... for PG & E to have avoided future unnecessary expense, for example, the necessity for an additional reracking or construction of a dry cask storage facility.
Id. at 1183:12-19. This second excerpt from testimony suggests that, in the first excerpt, Mr. Womack had been acknоwledging the necessity of implementing some type of storage at Diablo Canyon, rather than indicating a specific choice of dry storage. In this view, Mr. Womack used dry storage in the first excerpt merely as an example.
In its post-trial brief, defendant briefly touched upon this issue. In an attempt to show that “PG & E cannot establish the necessary causal link between its claimed storage costs and DOE’s delay,” Defendant’s Post-Trial Brief at 24 (сapitals omitted), defendant argued that “PG & E clearly had focused its efforts on expanding capacity at [Diablo Canyon] through the implementation of dry storage. PG & E’s dry storage plans were made assuming timely DOE perform-anee under the rate of acceptance set forth in the 1991 [annual capacity report].” Id. at 26 (citing DX 226 (August 25, 1992 PG & E memorandum)). To support this assertion, defendant cited evidence showing that “[t]he most feasible optiоns for providing additional spent fuel storage space at [Diablo Canyon] presently appear to be modular dry storage or rod consolidation.” DX 226 (August 25, 1992 PG & E memorandum) at 3.
As the foregoing makes clear, the issue of storage at Diablo Canyon in a non-breach world was addressed directly in post-trial briefing and—albeit in a cursory manner—in testimony at trial. Plaintiff had ample opportunity to examine Mr. Womack at trial and/or to address the issue in its post-trial reply. It did neither. See Tr. passim; PG & E’s Reply to the Government’s Posh-Trial Brief (Pl.’s Post-Trial Reply) passim; See also Pacific Gas & Electric’s Post Trial Brief (Pl.’s Brief) passim.
III. Discussion
A. Standard of Review for Motion for Reconsideration
A trial court has discretion when deciding whether to grant a motion for reconsideration. Yuba Natural Res., Inc. v. United States,
B. Application of Standard of Review
1. Plaintiffs Motion is not Based on New Evidence or a Change of Law
Plaintiff does not contend “that previously unavailable evidence is now available” or that “an intervening change in the controlling law has occurred.” Griswold,
2. Plaintiffs Motion is an Attempt to Re-litigate
Plaintiff asserts that “neither party focused on which storage option PG & E would have selected if faced with the MRS pickup schedule.” PL’s Mot. at 5. Defendant contradicts this point and argues that “the [gjovernment repeatedly demonstrated that, assuming performance at an MRS, PG & E would have constructed the dry storage facility.” Def.’s Response at 10. What is not in dispute is that plaintiff did not zealously advance a position concerning this issue at trial. See PL’s Mot. at 5; Def.’s Response at 12.
Factual determinations are within the sound discretion of a trial court based on the record it has before it. See, e.g., Elk Corp. v. GAF Bldg. Materials Corp.,
Plaintiffs argument that it “had no reason to advance evidence about any non-breach world storage costs—PG & E’s position was that there would not have been any such costs—and ... PG & E also had no prior notice that the [cjourt would identify 1993 as the proper time for assessment of PG & E’s non-breach world behavior,” PL’s Reply at 4-5, is without mеrit.
If the court were to agree that defendant did, as defendant argues, “repeatedly demón-stratela that, assuming performance at an MRS, PG & E would have constructed the dry storage facility,” Def.’s Response at 10 (emphasis omitted), this circumstance would of course have given plaintiff sufficient “occa
However, even assuming, as plaintiff asserts, that “neither party focused on which storage option PG & E wоuld have selected if faced with the MRS pickup schedule,” id. at 5 (emphasis added), plaintiff still failed to meet its burden. Defendant may not have focused at trial on the non-breach world at Diablo Canyon as envisioned in 1993, but it did bring up the issue during testimony and it did take a position on the matter in its opening post-trial brief. See supra, Part II. Plaintiff nevertheless did not address this issue at trial or in its post-trial briefing, id., choosing instead to view “[t]he question at trial [as] whether the costs for dry storage implementation that PG & E has actually incurred at Diablo Canyon, in the breach world, would have been incurred had DOE performed.” Pl.’s Reply at 4.
Plaintiff need not have confined itself to arguing its main position. Indeed, “[a] party may set forth two or more statements of a claim ... alternatively or hypothetically---regardless of consistency and whether based on legal or equitable grounds.” RCFC 8(e)(2). Plaintiffs “excuse” for its omission is basicаlly that its theory of the case assumed that it would prevail on its contract interpretation arguments, i.e., that the court would not find for the government on the central issue of the rate of acceptance. See Pl.’s Reply at 4-5 (“PG & E had no reason to advance evidence about any non-breach world storage costs—PG & E’s position was that there would not have been any such costs____”). Accordingly, plaintiff did not put on evidence on any other theory.
Plaintiffs strategy of all-eggs-in-one-basket was a strategy plaintiff was explicitly warned against by the court. When plaintiff attempted during the pretrial conference to rely on Commonwealth Edison Co. v. United States (Commonwealth Edison II),
Additionally, this case was subject to an evidence management order that made clear the court’s requirement that “any portion of an exhibit the import of which with respect to one or more issues in the case is not specifically pointed out by a witness at trial may be disregarded by the court.” Order of May 25, 2006 (Docket No. 267) 111; see generally PG & E,
Defendant’s treatment of the issue at trial and in post-trial briefing; the “possibility that the [c]ourt might find in the [g]ovemment’s favor upon the central issue of the rate of acceptance,” Def.’s Response at 12; the court’s repeated warnings that it would not rely on Commonwealth Edison II and that the issue of the rate of acceptance was not settled; and the court’s evidence management order clearly delineating the necessary procedural steps for the court to consider evidence all put plaintiff on notice that it
3. Plaintiff Asserts No Manifest Mistake of Fact or Error of Law
Fоr a court to reconsider a factual finding, a motion for reconsideration “must be based upon manifest ... mistake of fact.” Cane Tenn., Inc.,
Plaintiff implies that the court disregarded existing law governing how a court is to determine a party’s behavior in a theoretical world. See Pl.’s Mot. at 7. Plaintiff insists that the possibility of dry storage was precluded based solely on the theory that parties are presumed to “have acted in an economically rational way to implement the more cost-effective ... alternative.” Pl.’s Mоt. at 7 (citing Roseburg Lumber Co. v. Madigan,
Given the standard of manifest error, the basic question arising from this motion for reconsideration is not “whether the [c]ourt’s conclusion about the ‘most favorable’ storage option ... was correct,” as plaintiff contends, id. at 1, but rather whether the court’s factuаl conclusion is clearly a result of mistakes. Defendant does not “contend[ ] that reconsideration of the [c]ourt’s ... finding is ... legally precluded,” as plaintiff asserts. Id. at 3. It simply argues—and the court agrees— that the “motion fails to meet the standards set by this [c]ourt for reconsideration.” Def.’s Response at 4.
4. Manifest Injustice
Plaintiff touches only briefly upon the issue of manifest injustice, which it asserts “occurs when, as here, a mistaken finding would deny a plaintiff more thаn $8.7 million of the damages it is entitled to recover under a correct interpretation of the relevant evidence.” Pl.’s Reply at 3.
Plaintiff is correct in stating that one of the standards for a successful motion for reconsideration is “to prevent manifest injustice.” Griswold
IV. Conclusion
For the foregoing reasons, plaintiffs Motion is DENIED and the judgment entered on October 13, 2006, shall not be modified.
IT IS SO ORDERED.
Notes
. The court ordered that "any portion of an exhibit the import of which with respect to one or more issues in the case is not specifically pointed out by a witness at trial may be disregarded by the court." Order of May 25, 2006 (Docket No. 267) 111; see generally Pac. Gas & Elec. Co. v. United States (PG & E),
. The pаrties address in detail in briefing on this Motion the merits and proper interpretations of various other pieces of evidence in addition to the evidence discussed in this Part II. Defendant’s Response to Plaintiff's Motion to Amend Findings and Judgment (Def.’s Response) passim; Reply in Support of PG & E's Motion to Amend Findings and Judgment (Pl.'s Reply) passim. Plaintiff argues that the "evidence [adduced by defendant] is either from later time periods, after it was clear the MRS would not be available by 1998, and/or evidence from the ‘breach world,’ where PG & E obviously did implement dry storage.” Pl.’s Reply at 2. The court agrees that the relevant world is "in 1993 when it was still envisioned that DOE could be performing the Standard Contract by 1998 using an MRS," as plaintiff asserts. PG & E,
. The court reminds plaintiff that it gave both parties a final opportunity to tie any loose ends at the conclusion of the trial when it asked them whether they had "concluded [their] presentation of evidence and testimony." Trial Transcript at 3127:! 4-21. Except for deposition counterdesig-nations—a matter irrelevant to the issue in this Reconsideration—plaintiff responded in the affirmative. Id. at 3127:22-25.
. Defendant also argues that "to the extent th[e Cjourt elects to consider PX 185, and PG & E’s characterization of that exhibit, PG & E’s new-found argument calls into question whether it successfully mitigated its damages in the face of DOE's partial breach." Def.’s Response at 22. Because the court has rejected plaintiff’s characterization of PX 185, it is unnecessary for the court to consider the parties’ positions on mitigation of damages.