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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Kim Cramton,

Plaintiff,

v. 

Grabbagreen Franchising LLC, et al.,

Defendants.

No. CV-17-04663-PHX-DWL

ORDER 

Pending before the Court is a motion for reconsideration filed by Defendants Eat 

Clean Holdings, LLC (“ECH”) and Keely Newman (“Keely”) (collectively, 

“Defendants”). (Doc. 249.) For the following reasons, the motion will be denied.

RELEVANT BACKGROUND

Counts 6-10 of the operative complaint (Doc. 88) all arise from a phone call on 

September 18, 2017 during which Keely allegedly told Plaintiff Kim Cramton (“Cramton”) 

that a planned sale of Grabbagreen to Kahala had fallen through and that Kahala would not 

be making any future acquisition offers. Cramton resigned soon after receiving this 

information—a decision that caused her to forfeit her 18.6% ownership interest in ECH. 

In fact, Kahala ended up acquiring Grabbagreen in March 2018 for $2.675 million, and 

Cramton contends that Keely’s statement during the phone call was false because Keely 

knew Kahala remained interested in an acquisition. In Counts 6-10, Cramton seeks, under 

a variety of tort and contract theories, the 18.6% portion of the Kahala acquisition proceeds 

she would have received if she hadn’t left the company in September 2017.
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On March 1, 2019, Defendants filed a motion for summary judgment on Counts 6-

10. (Doc. 143.) 

On December 23, 2019, the Court issued a 73-page order resolving an array of 

different motions, including Defendants’ motion for summary judgment. (Doc. 247.) As 

relevant here, the Court granted summary judgment to Defendants as to Count Six (breach 

of the operating agreement) and Count Eight (tortious breach of the implied covenant) but 

denied summary judgment as to Count Seven (non-tortious breach of the implied 

covenant), Count Nine (negligent misrepresentation), and Count Ten (fraud). (Id. at 47-

61.)

DISCUSSION

Defendants ask the Court to reconsider the denial of summary judgment on Counts 

Nine and Ten. They contend they are entitled to summary judgment on those counts 

because (1) ECH has never distributed, to its members, the $2.675 million in proceeds it 

received from the Kahala acquisition, (2) the ECH Operating Agreement only entitles 

members to share in distributions, and (3) Cramton therefore “has not established and 

cannot establish any recoverable damages under Counts Nine and Ten.” (Doc. 249 at 2, 4-

6.)

Motions for reconsideration should be granted only in rare circumstances. 

Defenders of Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995). See also Kona 

Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (reconsideration is an 

“extraordinary remedy” that is available only in “highly unusual circumstances”) (citations 

omitted). The Local Rules further state that a motion for reconsideration should be denied 

“absent a showing of manifest error or a showing of new facts or legal authority that could 

not have been brought to [the Court’s] attention earlier with reasonable diligence.” LRCiv. 

7.2(g).

Reconsideration is not warranted here because Defendants are belatedly attempting 

to raise an argument they could have raised—but, for whatever reason, chose not to raise—

in their summary judgment motion. As discussed in detail in the December 23, 2019 order, 
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Defendants’ motion identified five reasons why they were purportedly entitled to summary 

judgment on both Counts Nine and Ten,1two additional reasons why they were purportedly 

entitled to summary judgment on Count Nine,2and one additional reason why they were 

purportedly entitled to summary judgment on Count Ten.3 The argument they now wish 

to advance was not one of those eight arguments. 

Moreover, Defendants seemed to concede at points in their summary judgment 

briefing that Cramton had sustained financial losses by resigning from the company in 

September 2017 and thus missing out on the subsequent Kahala acquisition: “The evidence 

demonstrates that Cramton impulsively resigned as . . . Manager of ECH, and took a 

salaried job with Defendants’ competitor. She then filed this lawsuit, asserting contrived 

claims against Defendants in an attempt to recover from her self-imposed losses.” (Doc. 

172 at 2, emphasis added.) Having failed to obtain summary judgment under this theory, 

Defendants cannot advance a new summary judgment argument—based on old facts—

through the guise of a motion for reconsideration.4

Finally, Defendants also request, in the alternative, an order under 28 U.S.C. § 

1292(b) certifying for interlocutory review a pair of issues concerning the applicability of 

 

1 Doc. 247 at 55 [“Defendants raise five summary judgment arguments that apply 

equally to Counts Nine and Ten: (1) ‘Keely’s present-tense representation—that Kahala 

rejected the deal then before it—is true’; (2) ‘Keely made no representation about future 

deals’; (3) ‘Cramton’s alleged reliance was not justified’; (4) Counts Nine and Ten are 

barred by the ELR [economic loss rule]; and (5) because Cramton’s resignation from GGS 

on September 14, 2017 gave Keely the option, under Section 9.3 of the Operating 

Agreement, to repurchase Cramton’s shares for $1, Cramton cannot have been damaged 

by any subsequent misrepresentations. (Doc. 143 at 5, 13-17, 20-22.)”].)

2 Doc. 247 at 58 [“Defendants move for summary judgment on Count Nine, the 

negligent misrepresentation claim, on two additional grounds: (1) there was no duty owed 

and (2) such a claim cannot be premised on a promise of future conduct. (Doc. 143 at 17-

18.)”].) 

3 Doc. 247 at 60 [“Defendants move for summary judgment on Count Ten, the fraud 

count, on the additional ground that Cramton hasn’t identified any evidence that Keely 

knew at the time of her challenged statement on September 18, 2017 that a future deal with 

Kahala remained possible, so Cramton cannot establish Keely’s fraudulent intent to 

deceive. (Doc. 143 at 18-20.)”].)

4 The Court acknowledges that Defendants’ current counsel did not draft and file the 

summary judgment motion. But a change in counsel does not authorize a party’s successor 

counsel to raise new arguments for the first time ten months after the summary judgment 

deadline.
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the economic loss rule (“ELR”). (Doc. 249 at 6-10.) 

This request will be denied. Villarreal v. Caremark LLC, 85 F. Supp. 3d 1063, 1068 

(D. Ariz. 2015) (“The decision to certify an order for interlocutory appeal is committed to 

the sound discretion of the district court. As such, [e]ven when all three statutory criteria 

are satisfied, district court judges have ‘unfettered discretion’ to deny certification.”) 

(citation and internal quotation marks omitted). Certification is proper only when, inter 

alia, “an immediate appeal from the order may materially advance the ultimate termination 

of the litigation.” 28 U.S.C. § 1292(b). Although “neither § 1292(b)’s literal text nor 

controlling precedent requires that the interlocutory appeal have a final, dispositive effect 

on the litigation, only that it ‘may materially advance’ the litigation,” Reese v. BP 

Exploration (Alaska) Inc., 643 F.3d 681, 688 (9th Cir. 2011), the Court concludes the 

material-advancement requirement isn’t satisfied here. The Final Pretrial Conference in 

this case has already been set (Doc. 248) and the Court anticipates that trial will take place 

sometime in mid-2020. Regardless of whether Defendants are correct about the 

applicability of the ELR, Cramton will still be able to advance one contract-based claim 

(Count Seven) seeking a portion of the Kahala proceeds and Cramton has also asserted a 

minimum wage claim (Count Four) and a breach-of-contract claim (Count Five) that have 

nothing to do with the issues Defendants wish to certify. Certification would be 

inappropriate under these circumstances. See, e.g., U.S. Rubber Co. v. Wright, 359 F.2d 

784, 785 (9th Cir. 1966) (“[Section 1292(b) is] to be used only in extraordinary cases where 

decision of an interlocutory appeal might avoid protracted and expensive litigation. . . . 

This unexceptional contract litigation presents, at most, nothing more than an uncertain 

question of law relevant to only one of several causes of action alleged below, and no 

disposition we might make of this appeal on its merits could materially affect the course of 

the litigation in the district court.”); White v. Nix, 43 F.3d 374, 378-79 (8th Cir. 1994) 

(“When litigation will be conducted in substantially the same manner regardless of our 

decision, the appeal cannot be said to materially advance the ultimate termination of the 

litigation.”).
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Accordingly, IT IS ORDERED that Defendants’ motion for reconsideration (Doc. 

249) is denied.

Dated this 7th day of January, 2020.