17 Outlets, LLC v. Healthy Food Corp., d/b/a Frozurt, et al.

2016 DNH 189

• Court: District Court, D. New Hampshire
• Decided: October 26, 2016
• Docket: 15-cv-101-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

17 Outlets, LLC

v.

Healthy Food Corporation d/b/a Frozurt and Tai H. Pham Civil No. 15-cv-101-JD Opinion No. 2016 DNH 189 v.

Thurken III, LLC and Richard E. Landry, Jr.

O R D E R

17 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.

A. Timeliness

As a 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 6(a)

applies.

Applying 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.

B. Motion for Reconsideration

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

2 error of law or was clearly unjust.” United States v. Allen,

573 F.3d 42, 53 (1st Cir. 2009).

Importantly, 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

omitted).

17 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.

In its 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

3 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.

The court considered and rejected 17 Outlets’s theory that

ThurKen could substitute HFC for Tram Dang as the lessee without

affecting the guaranty agreement.1 The court also considered and

rejected 17 Outlets’s argument based on the waiver of defenses

provision in the agreement.2 Contrary to 17 Outlets’s assertions

here, no facts were construed against it.

1 Contrary to 17 Outlets’s theory, the lessee was not changed after the guaranty was signed. Instead, Tram Dang, who is named as the lessee in the guaranty agreement, was never the lessee and never assumed lease obligations to be guaranteed. HFC was the lessee from the inception of the relationship.

217 Outlets argues that the court erred in failing to distinguish the cases it cited to support the waiver of defenses theory. The court is not obligated to distinguish cases cited by a party. In addition, the cases cited were inapposite because they pertained to the effectiveness of waiver provisions to prevent challenges to guaranty agreements. In this case, the guaranty agreement did not pertain to the obligations that 17 Outlets was trying to recover, that is the money owed by HFC under the lease. For that reason, Pham was not asserting defenses of any kind to the guaranty agreement. The agreement itself simply did not require him to guaranty HFC’s obligations.

4 To the 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.

Conclusion

For the foregoing reasons, the plaintiff’s motion for

reconsideration (document no. 50) is denied.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

October 26, 2016

cc: James F. Laboe, Esq. Christopher P. Mulligan, Esq. David K. Pinsonneault, Esq. Lisa Snow Wade, Esq.