United States District Court, D. New Hampshire
DiClerico, Jr. United States District Judge.
Outlets, LLC moves for reconsideration of the order granting
summary judgment in favor of Tai H. Pham. In support, 17
Outlets asserts that it was “manifest error” for
the court to grant summary judgment because an agreement was
created between ThurKen and Pham, the court failed to
distinguish the cases 17 Outlets cited to support its waiver
defense, and the court failed to acknowledge that the change
from Tram Dang to HFC had no effect on Pham's obligation
or risk. Pham objects to the motion for reconsideration.
preliminary matter, Pham contends that the motion for
reconsideration should not be considered because it was not
timely filed. Under Local Rule 7.2(d), a motion for
reconsideration must be filed within fourteen days after the
date of the order unless cause is shown for not filing within
that time. Because reference in the rule is made to filing,
rather than service, Federal Rule of Civil Procedure
Rule 6(a), the deadline for filing the motion for
reconsideration was Friday, September 30. The motion for
reconsideration was not filed until Monday, October 3.
Therefore, it was late and 17 Outlets failed to show cause
for the late filing. Because the motion also fails on the
merits, however, the court will explain the alternative
grounds for denying the motion.
Motion for Reconsideration
of an order is “‘an extraordinary remedy which
should be used sparingly.'” Palmer v. Champion
Mtg., 465 F.3d 24, 30 (1st Cir. 2006) (quoting 11
Charles Alan Wright et al., 11 Federal Practice and Procedure
§ 2810.1 (2d ed. 1995)); accord Giroux v. Fed.
Nat'l Mortg. Assoc., 810 F.3d 103, 106 (1st Cir.
2016). For that reason, reconsideration is “appropriate
only in a limited number of circumstances: if the moving
party presents newly discovered evidence, if there has been
an intervening change in the law, or if the movant can
demonstrate that the original decision was based on a
manifest error of law or was clearly unjust.”
United States v. Allen, 573 F.3d 42, 53 (1st Cir.
a motion for reconsideration cannot succeed when the moving
party is attempting “to undo its own procedural
failures” or “advanc[ing] arguments that could
and should have been presented earlier.” Id. A
motion for reconsideration also is not “a mechanism to
regurgitate old arguments previously considered and
rejected.” Biltcliffe v. CitiMortgage, Inc.,
772 F.3d 925, 930 (1st Cir. 2014) (internal quotation marks
Outlets appears to misunderstand the summary judgment order.
In Count II, 17 Outlets was seeking to enforce a guaranty
agreement between Pham and its predecessor, ThurKen, arguing
that Pham had agreed to guaranty HFC's lease obligations.
The court concluded, however, that the plain terms of the
guaranty agreement showed that Pham agreed to guaranty Tram
Dang's lease obligations, not HFC's obligations. As a
result, no agreement existed that Pham would guarantee
HFC's obligations under the lease.
objection to summary judgment, 17 Outlets made various
arguments based on the terms of the guaranty agreement,
contending that the parties could change the terms of the
obligations that were guaranteed, which would allow ThurKen
to change the lessee from Tram Dang to HFC, and that Pham
waived suretyship defenses. The guaranty agreement, however,
pertained to obligations that never existed because Tram Dang
was never the lessee. Instead, the lease was between HFC and
ThurKen. In support of its motion for reconsideration, 17
Outlets continues to argue that despite the plain language of
the agreement, Pham should be required to guaranty the lease
obligations of HFC.
court considered and rejected 17 Outlets's theory that
ThurKen could substitute HFC for Tram Dang as the lessee
without affecting the guaranty agreement. The court also
considered and rejected 17 Outlets's argument based on
the waiver of defenses provision in the
agreement. Contrary to 17 Outlets's assertions
here, no facts were construed against it.
extent 17 Outlets reiterates arguments about the
interrelatedness of HFC and members of the Dang family and
their ownership of the Frozurt mark, those matters were
considered for purposes of summary judgment. A motion for
reconsideration is not an opportunity to rehash matters that
have been decided.
foregoing reasons, the plaintiff's motion for