WILLIAM BARBOUR, District Judge
Before the Court is the Motion of Plaintiff APAC-Mississippi, Inc. ("APAC" or "Plaintiff") to Reconsider the Opinion and Order of the Court ("Opinion"), docket entry no. 55, which granted Defendants' Motion for Partial Summary Judgment. The Opinion specifically held that APAC contractually waived its rights under the Prompt Pay Act, Miss. Code Ann. § 31-5-27. The Court also held that in the alternative, Defendants had reasonable cause not to make payments to Plaintiff within the time period provided for in the Prompt Pay Act. Therefore, under either holding, Plaintiff was not entitled to statutory damages as provided for under the Prompt Pay Act. The Court references the reader to the Opinion and Order of the Court, filed March 2, 2005, for a full explanation of the conclusions reached by the Court. Having considered the Motion, Response, attachments to each and supporting and opposing authority, the Court finds that the Motion to Reconsider is not well taken and that it should be denied.
Section 31-5-27 specifically states:
When a contractor receives any payment under a public construction contract, the contractor shall, upon receipt of that payment, pay each subcontractor and material supplier in proportion to the percentage of work completed by each subcontractor and material supplier. If for any reason the contractor receives less than the full payment due under the public construction contract, the contractor shall be obligated to disburse on a pro rata basis those funds received, with the contractor, subcontractors and material suppliers each receiving a prorated portion based on the amount due on the payment. If the contractor without reasonable cause fails to make any payment to his subcontractors and material suppliers within fifteen (15) days after the receipt of payment under the public construction contract, the contractor shall pay to his subcontractors and material suppliers, in addition to the payment due them, a penalty in the amount of one-half of one percent (1/2 of 1%) per day of the delinquency, calculated from the expiration of the 15-day period until fully paid. The total penalty shall not exceed fifteen percent (15%) of the outstanding balance due.
I. Background and Procedural History
The Mississippi Department of Transportation ("MDOT") awarded Defendant James Construction Group, L.L.C., formerly known as Angelo Iafrate Construction, L.L.C. ("Iafrate"), a contract to construct the Nissan — I-55 interchange in Madison County, Mississippi ("the Project"). As required under Mississippi law, Iafrate obtained a performance and payment bond from co-Defendant National Fire Insurance Company ("National"), and National thereby served as surety to Iafrate. On June 19, 2001, Iafrate entered into a contract ("the Purchase Order" or "the contract") with Plaintiff APAC-Mississippi, Inc. (referred to as "APAC" or "Plaintiff"), whereby APAC agreed to supply construction project materials to Iafrate. The dispute in this case centers around payments that Iafrate sent to APAC for those materials.
Section 31-5-27 provides that generally a contractor is to make payment to its subcontractors within fifteen days of receipt of payment from the Mississippi Department of Transportation ("MDOT"). APAC alleges that Iafrate made its payments to APAC outside of this fifteen day limitation on approximately twenty occasions. See Plaintiff's Memorandum in Support of Motion for Partial Summary Judgment, pp. 3-4, filed December 10, 2004. APAC argues that under § 31-5-27, it is entitled to $1,173,013.47 in statutory damages.
Defendants argue that APAC waived its right to the statutory interest rates of § 31-5-27 when Iafrate and APAC signed the Purchase Order. The specific provision of the Purchase Order upon which Defendants rely states "TERMS: Net 30 Days from Invoice Date." Id., attached as Exhibit "A" to Complaint, filed January 15, 2004. The parties do not dispute that these words mean that payment is due APAC within thirty days of the date on the invoice. Rather, the dispute between the parties centers on whether these words reflect the desire of APAC to waive its rights under § 31-5-27. On this issue, Plaintiff's argument is two-fold: (1) that parties are not empowered to override by contract the terms of § 31-5-27, so that if the terms used in the Purchase Order indicate that APAC did attempt to waive its rights, then those terms are null and void; and, (2) even if parties may waive their rights under the statute, the terms should not be read to indicate that APAC intended to waive its rights.
Plaintiffs argue that this Court incorrectly stated that under the contract, payment would be due within thirty days of receipt of an invoice. Plaintiffs maintain that an accurate description of the terms of the contract would be that payment was due within thirty days of the date on the invoice, and not within thirty days of receipt of invoice. That does appear to be the most fair reading of the terms of the contract. Defendants explicitly state that they do not object to this argument. Opposition to Motion of APAC-Mississippi, Inc. for Reconsideration, p. 2 n. 2, filed April 1, 2005. Therefore, the argument is well taken, and the Court finds that payment was due within thirty days of the date on the invoice.
The Court previously held that (1) contracting parties were empowered to waive their rights under the Prompt Pay Act and that (2) Plaintiff had waived these rights. Plaintiff filed this Motion to Reconsider and argues that the ruling of the Court could substantially affect the construction industry.
II. Legal Standard
Motions to reconsider are analyzed under Rule 59(e) of the Federal Rules of Civil Procedure. The United States Court of Appeals for the Fifth Circuit has held that under a Rule 59(e) motion to reconsider, a district court should consider the following non-exclusive list of factors: (1) the reasons set forth by the movant justifying consideration of evidence or arguments that the movant failed to present in the underlying motion, (2) the importance of evidence or arguments, (3) whether the reasons set for by the movant justifying reconsideration were available to the movant before they responded to the underlying motion, and (4) the likelihood that the non-movants will suffer unfair prejudice if the motion is reconsidered. Sturges v. Moore, 73 Fed. Appx. 777, 778 (5th Cir. 2003) (citing Ford v. Elsbury, 32 F.3d 931, 937-38 (5th Cir. 1994)). Litigants considering a Rule 59(e) motion have been "strongly cautioned" to carefully consider the grounds for such a motion. Atkins v. Marathon Le Torneau Co., 130 F.R.D. 625, 626 n. 1. (S.D. Miss. 1990). "Whatever may be the purpose of Rule 59(e), it should not be supposed that it is intended to give an unhappy litigant one additional chance to sway the judge." Id.
III. Analysis
Under the standard above, Plaintiffs argue that the importance of the rulings in the previous Opinion of the Court justifies a reconsideration of them. Plaintiffs argue that the logical implication of the Opinion is that now parties to a construction contract will have to affirmatively and explicitly state that the terms of the Prompt Pay Act will govern the payment schedule between the parties. Plaintiffs argue that the Court should revise the previous Opinion because of the potential effect of this implication. It is the opinion of the Court that the language used in the previous Opinion should not be construed to have such a far reaching effect.
To the extent that the previous Opinion does require a party to explicitly reserve its rights under the Prompt Pay Act, most of the affected parties are sophisticated businesses which are perfectly capable of protecting their rights through contract.
The Court does not believe the previous Opinion should have such a far reaching effect because the Court solely ruled that because the parties to this case had explicitly used language in a contract that provided for a different time schedule for payments than is provided for under the Prompt Pay Act, that the parties had contractually waived the time schedule for payments under the Prompt Pay Act, and had contractually waived any rights to statutory damages that occur as a result of violating the time schedule under the Act. Absent such explicit language that conflicts with the terms of the Prompt Pay Act, the Prompt Pay Act is presumed to govern the relationship between contractors and subcontractors. Parties do not have to explicitly provide that the Prompt Pay Act applies to them; it is presumed that the Act does. All that the previous Opinion of the Court says is that a party may waive its rights under the Prompt Pay Act by using contractual language that conflicts with that of the Prompt Pay Act. Stated another way, a party cannot have it both ways. To allow Plaintiff to impose upon Defendant the timetable for payment that was provided for in the contract between them, and then to allow Plaintiff to also impose the timetable for payments that is provided for in the Prompt Pay Act, would be to do exactly that and allow Plaintiff to have it both ways.
APAC argues that the thirty day timetable of the Purchase Order and the fifteen day timetable of the Prompt Pay Act are not mutually exclusive, and that a party can have both. It is difficult to see how. APAC is correct that there will be instances in which Iafrate could have violated both the fifteen day timetable of the Prompt Pay Act and the thirty day timetable of the Purchase Order. But that will not always be the case. The Court will not read the parties to have so contracted simply so that in those individual situations in which both timetables happened to have been violated, APAC can recover statutory damages. To read the contract in such a fashion would result in unnecessary confusion between the parties as to exactly what terms govern their relationship, i.e., the fifteen day or the thirty day timetable? It would not be consistent with the language in the contract between the parties, which provides for payment within thirty days of invoice date, to find that despite this language, the parties also agreed to the fifteen day time table provided in the Prompt Pay Act.
Moreover, when APAC contracted away the fifteen day timetable of the Prompt Pay Act as the governing timetable between itself and Iafrate, it also contracted away the ability to receive statutory damages. The damages of the Prompt Pay Act are calculated to be imposed on the basis of a fifteen day timetable. Here, the parties contracted to conduct business on a thirty day timetable. Nothing in the contract between the parties suggests that the parties intended to apply the statutory damages applicable to the fifteen day timetable in the Prompt Pay Act to the thirty day timetable in the Purchase Order. To assume that the parties intended this is to assume too much.
Unlike statutes in other states that are similar to the Prompt Pay Act, the Prompt Pay Act does not explicitly provide for damages pursuant to a timetable other than the fifteen day timetable. For instance, in Alabama, Utah, and Vermont, the statutes provide alternative timetables may govern when statutory damages begin to accrue. Furthermore, § 31-5-25, the Prompt Pay Act applicable to prime contractors on public projects, does explicitly provide that recovery can run from a day provided for in a contract. APAC concludes that because § 31-5-25 so provides, then because § 31-5-27 "is silent as to the effect of contract terms, it must be concluded that the Mississippi Legislature did not intend for those contract payment terms to nullify the Prompt Pay Act remedy." Reply in Support of the Motion of APAC for Reconsideration, pp. 1-2, n. 1, filed April 8, 2005. The Court disagrees with this inference. It seems to the Court that the failure of the Mississippi Legislature to explicitly provide that contract terms can give rise to the statutory remedy in § 31-5-27 indicates that it did not intend for a party, on facts such as these, to be able to opt for a different timetable, yet still seek relief for statutory damages. If the Legislature intended for parties to be able to contract for a different timetable, yet still have the Prompt Pay Act apply, then it knew how to so provide. Regardless of what APAC may think of this result, that is the result for which the Legislature has provided. The Court cannot simply rewrite the Prompt Pay Act for the purpose of seeking a more coherent or preferable statutory scheme. For the reasons above, by contracting for a thirty day timetable, the parties waived their rights under the Prompt Pay Act, both in terms of the timetable, and in terms of the corresponding damages.
A party who receives a payment from the state in connection with a contract shall pay each of its subcontractors or sub-subcontractors the portion of the state's payment to the extent of that subcontractor's or sub-subcontractor's interest in the state's payment in accordance with the payment terms agreed to by the contractor and the subcontractor, but if payment terms are not agreed to, then within seven days after receipt of payment from the state.
Ala. Code § 41-16-3 (2001) (emphasis added).
Upon payment by an agency of the State of Utah or by an agency of the United States, a business which has acquired under contract, property or services in connection with its contract with such an agency from a subcontractor or supplier, shall pay such subcontractor or supplier within 30 days after payment from such agency. Interest at the rate of 15.5% per annum shall accrue and is due any subcontractor or supplier who is not paid within 45 days after the business receives payment from the agency,
unless otherwise provided by contract between the business and the subcontractor or supplier. Interest begins to accrue on the 31st day at the rate specified in this subsection.
U.C.A. 1953 § 15-6-5.
Notwithstanding any contrary agreement, when a subcontractor has performed in accordance with the provisions of its contract, a contractor shall pay to the subcontractor, and each subcontractor shall in turn pay to its subcontractors, the full or proportional amount received for each such subcontractor's work and materials based on work completed or service provided under the subcontract, seven days after receipt of each progress or final payment or
seven days after receipt of the subcontractor's invoice, whichever is later.
Vt. Stat. Ann. Tit. 9, § 4001, et seq. (2001) (emphasis added).
Some states explicitly permit parties to waive their rights under statutes similar to the Prompt Pay Act. Others explicitly preclude such a waiver. Nothing in the Prompt Pay Act suggests that parties may not waive or modify its terms, and generally a party may contractually waive its statutory rights. See 28 Am.Jur.2d Estoppel and Waiver § 214 at n. 98 (stating that "[a]bsent an affirmative indication in a statute of Congress' intent to preclude waiver, a court presumes that statutory provisions are subject to waiver by voluntary agreement of the parties"). Defendants note that
[u]pon information and belief, legislation has been drafted, but not yet adopted, to specifically state that Mississippi's Prompt Pay Act cannot be waived by contract. However, to date, that legislation has not taken effect. Until then, this Court has correctly ruled that APAC has waived application of the Prompt Pay Act.
Id. at p. 4 n. 3. Such legislation, if adopted, would undoubtably affect the resolution of the issue before the Court. However,
until such a time as such legislation is adopted, the Court is not persuaded that it should alter its previous conclusions.
As the Court stated in the original Opinion, "Plaintiff is correct that "[s]tatutory rights should ordinarily be waived only by clear affirmative words or actions. . . ." 28 Am.Jur.2d Estoppel and Waiver § 214 (2004). However, it is difficult to see the terms used in the Purchase Order as anything other than words that clearly repudiate the terms under § 31-5-27." Opinion, p. 9. Therefore, the Motion to Reconsider is not well taken and is denied.
Plaintiffs alternatively requested that should this Court deny the Motion to Reconsider, that the Court certify the findings in the objected to Opinion for interlocutory appeal. Plaintiff invokes the provisions of Rule 54(b) of the Federal Rules of Civil Procedure. Under Rule 54(b), "[a] district court should grant certification only when there exists some danger of hardship or injustice through delay which would be alleviated by immediate appeal. . . ." PYCA Indus., Inc. v. Harrison County Waste Water Management Dist., 81 F.3d 1412, 1421 (5th Cir. 1996) (citation omitted). In the subject case, the Court finds that there is no danger of hardship or injustice through delay which would be alleviated by immediate appeal. Both Plaintiff and Defendant have submitted to a bench trial of this action. Docket entry no. 62, filed April 1, 2005. Furthermore, the trial of this matter can be expedited. The issues before the Court will be limited, and because the matter can be expedited, there is no risk of undue delay. Therefore, the Court finds that an interlocutory appeal should not issue, as it will be most efficient to reach a final resolution in this matter before permitting Plaintiff to appeal.
The Court notes that at this point in time APAC retains two causes of action against Iafrate: breach of the purchase order and breach of the payment bond. While the Court finds that APAC cannot recover statutory damages under the Prompt Pay Act based upon a fifteen day timetable, under the claim of APAC for breach of the purchase order, APAC still has a claim against Iafrate for breach of the thirty day timetable, and to be awarded damages in an amount to be determined.
IV. Conclusion
IT IS THEREFORE ORDERED that the Motion of Plaintiffs to Reconsider [57-1] is not well taken and is hereby denied.
IT IS FURTHER ORDERED that the request to certify the issues before the Court for interlocutory appeal [57-2] is not well taken and is hereby denied.
IT IS FURTHER ORDERED that a result of this Opinion and Order, and in an effort to manage the docket sheet of this case, the outstanding Motion of APAC in Limine [53-1] hereby is denied as moot at this time. APAC may reintroduce this Motion when appropriate.
SO ORDERED.