CARL BARBIER, District Judge
Before the Court are two motions: counterclaimant's Rule 59 Motion to Alter or Amend the Judgment (Rec. Doc. 46); and defendant's Motion to Assess Attorney's Fees (Rec. Doc. 47). Counterclaim defendants oppose only the Motion to Alter or Amend. The motions, set for hearing on March 30, 2005, are before the Court on briefs without oral argument.
Rule 59(e) motion
To succeed in a Rule 59(e) motion, the movant must: "(1) show that its motion is necessary to correct a manifest error of law or fact, (2) present newly discovered or previously unavailable evidence, (3) show that it motion is necessary to prevent manifest injustice, or (4) show that its motion is justified by an intervening change in the controlling law." Lively v. Diamond Offshore Drilling, Inc., 2004 WL 2194408, *1 (E.D.La., Sept. 24, 2004) (citations omitted). Rule 59(e) motions which are "based on recycled arguments only serve to waste the resources of the court, and are not the proper vehicle to rehash old arguments or advance legal theories that could have been presented earlier." Id. (citations omitted)
In its Rule 59(e) motion, Soaring Eagle argues that the Court erred in its finding that Creative Soft Solutions ("CSS") did not engage in fraud as required to pierce the corporate veil, and in its Reply, contends for the first time that the corporate veil should be pierced based upon the "single business enterprise" theory. However, Soaring Eagle points to no new evidence on this question, but merely rehashes and expands on its arguments made at the trial of this matter. Accordingly, Soaring Eagle has not met the standard for securing relief under Rule 59, and the Court need not expand upon its prior Findings of Fact and Conclusions of Law.
However, at the risk of repetition, the Court reiterates that it has specifically found that CSS was not undercapitalized. While the Court's prior ruling that CSS owes money to Soaring Eagle on an open account reflects the fact that the parties had a "time and materials" contract without a ceiling, it is also true that at the beginning of the parties' relationship, Soaring Eagle principal Jeff Garbus stated that "the first phase [of the software development cost] is in the neighborhood of $100-150K. Subsequent phases will be substantially less (likely $50-$75K)." Trial Exh. 50 at 9. CSS members contributed over $140,000 in start-up capital to fund the project. On this record, the Court does not see how CSS could be considered to have intentionally undercapitalized CSS so as to defraud Soaring Eagle. To the contrary, all of the evidence suggests a good faith agreement among the parties to confect what they all hoped would be a fruitful and prosperous relationship. Unfortunately for CSS, the original estimate was not reduced to a binding contract. Indeed, if any bad faith was involved, it should probably be imputed to Garbus, who managed to avoid entering into anything more binding than a time and materials contract, and then allowed costs to spiral over $200,000.00 above his original estimate, well beyond what he should have known CSS could handle given his membership on its Board of Directors.
Mr. Garbus' good faith may also be called into question by the fact that he has apparently appropriated the product he originally developed for CSS to his own use, when he founded and began operating a Florida company known as Imeda Strategies, which apparently markets the 2ezHR product or one substantially similar. See http://www.ultimateselect.com.
As for Soaring Eagle's contention that CSS did not follow corporate formalities and thus is no longer a legal corporation, again, the Court has previously found that substantial corporate formalities were followed. Moreover, the temporary lapse in CSS's status due to failure to make an annual remittance may be routinely remedied by paying a filing fee and penalty, and its charter could not be permanently revoked unless CSS failed to seek reinstatement for five years. Nev. Rev. Stat. 86.276 (West 2005). In addition, the fact that on a single occasion CSS principal Jonathan Nguyen sought to satisfy Soaring Eagle's escalating payment demands by making an eleventh hour payment via wire transfer from his other company does not indicate a pattern of commingling funds, but rather appears to have been a last-ditch effort to salvage a deteriorating situation and protect his and the other members' original investment.
For all of these reasons, and for the reasons originally set forth in the Court's Findings of Fact and Conclusions of Law, the Court finds that there is no basis for piercing the corporate veil in this matter, under either Louisiana or Nevada law. Accordingly, IT IS ORDERED that Soaring Eagle's Rule 59 Motion to Alter or Amend the Judgment (Rec. Doc. 46) should be and is hereby DENIED; IT IS FURTHER ORDERED that Soaring Eagle's Motion to Assess Attorney's Fees (Rec. Doc. 47) should be and is hereby GRANTED as unopposed, and judgment shall be entered in its favor in the amount of $89,140.00 for attorney's fees and $3,652.73 for costs, in addition to amounts previously awarded.