United States Court of Appeals For the First Circuit
No. 19-1421
CARIBBEAN MANAGEMENT GROUP, INC.,
Plaintiff, Appellee,
v.
ERIKON LLC,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Thompson, Selya, and Barron, Circuit Judges.
Iván Aponte-González, Héctor J. Quiñones Inserni, and García, Aponte & Quiñones, LLC on brief for appellant. Eugene F. Hestres and Bird Bird & Hestres, P.S.C. on brief for appellee.
July 17, 2020 SELYA, Circuit Judge. A money judgment (even a money
judgment for several million dollars) may not be worth the paper
on which it is written if the judgment creditor does not undertake
timely enforcement action. This case, in which the judgment
creditor slept upon its rights until the prescribed period for
execution of judgments had elapsed, illustrates the point. Given
the judgment creditor's failure to act in a timeous manner, we
affirm the district court's denials of both its motion for leave
to execute on the judgment and its motion for reconsideration.
I.
Background
We briefly rehearse the relevant facts and travel of the
case. In 2006, Erikon LLC (Erikon) sold its interest in a
development project in Aguadilla, Puerto Rico, to Caribbean
Management Group, Inc. (CMG). As part of the consideration for
the purchase, CMG executed a promissory note payable to Erikon for
$7,500,000. David Wishinsky Kerr (Wishinsky) personally
guaranteed CMG's indebtedness.
A dispute soon arose over CMG's obligations under the
note, and CMG and Erikon sued each other in the United States
District Court for the District of Puerto Rico. After the cases
were consolidated, the parties reached a settlement and requested
that the district court enter a consent judgment in Erikon's favor
against CMG and Wishinsky, jointly and severally, for $7,500,000
- 2 - (plus $50,000 in attorneys' fees). The court entered the
stipulated judgment on March 25, 2008.1
Erikon immediately encountered strong headwinds in
collecting on the judgment. By September of 2008, CMG and
Wishinsky had paid only $250,000 toward satisfaction of the
judgment. At Erikon's request, the district court issued a writ
of attachment on two parcels of land owned by CMG and/or Wishinsky,
together with an order authorizing the public sale of those
parcels. The record contains no indication that the judicially
authorized sale ever took place.
Endeavoring to explore other avenues for collecting on
the judgment, Erikon repeatedly sought to take Wishinsky's
deposition. Erikon's efforts stalled, but in February of 2009,
CMG, Wishinsky, and Erikon reached an agreement regarding payment
of the balance owed on the judgment. CMG and Wishinsky committed
to making monthly payments and, as long as they complied, Erikon
agreed not to execute on the judgment. Pursuant to this
arrangement, CMG and Wishinsky paid Erikon an additional
$2,900,000 over the next twenty-two months.
1 As entered, the judgment also ran in favor of Koeniger Development, Inc. (Koeniger), a corporate entity affiliated with Erikon. Koeniger's efforts to enforce the judgment seem to have ended around 2014, and it did not join the execution-related motions filed by Erikon that underlie this appeal. Consequently, we make no further mention of Koeniger.
- 3 - CMG and Wishinsky stopped making payments in January of
2011. Even so, Erikon made no meaningful effort to collect the
balance of the judgment for approximately two years. We fast-
forward to early 2013, at which time Wishinsky's attorney, who
also represented Caribbean Seaside Heights Properties, Inc.
(Seaside), an entity affiliated with the Aguadilla development
project, approached Erikon. They discussed both the outstanding
balance owed on the judgment and a separate claim that Seaside was
bent on bringing against Erikon for expenses incurred in the course
of the Aguadilla project. These discussions went nowhere, and
Seaside sued Erikon in May of 2013. During the pendency of the
Seaside litigation, further attempts to reach a global settlement
came to naught.
Harking back to the original case, Erikon moved in April
of 2014 for the appointment of a special master to conduct the
public sale of the attached parcels of real estate. The following
February, the district court denied the motion without prejudice.
The court determined that Erikon's effort to execute on the
judgment was untimely under Rule 51.1 of the Puerto Rico Rules of
Civil Procedure (P.R.R. 51.1) because more than five years had
passed since the judgment became final. The court invited Erikon,
if it so desired, to move for leave to execute on the judgment out
of time.
- 4 - Erikon did not take up the court's invitation then and
there. Instead, Erikon turned its attention to defending the
Seaside litigation. In July of 2016, the court presiding over the
Seaside litigation entered summary judgment in Erikon's favor.
Seaside appealed and, during the pendency of the appeal, Seaside
and Erikon engaged in three court-ordered settlement conferences.
Although they were not parties to the Seaside litigation, CMG and
Wishinsky participated in some of these negotiations in an attempt
to reach a global settlement. When the settlement talks failed,
we affirmed the summary judgment. See Caribbean Seaside Heights
Props., Inc. v. Erikon LLC, 867 F.3d 42, 45 (1st Cir. 2017).
In July of 2017, Erikon at long last moved for leave to
execute on the judgment and renewed its request for appointment of
a special master. The district court denied the motion, reasoning
that Erikon had waited to file its motion until more than six years
after CMG and Wishinsky's final payment in January of 2011 and
that Erikon had failed to justify the delay of more than two years
since the denial of its first request to appoint a special master.
Erikon moved for reconsideration of this order under Federal Rule
of Civil Procedure 59(e). While Erikon calls this filing a "Motion
to Set Aside Order Pursuant to FRCP 59(e)," the filing was
technically a motion to alter or amend the judgment, see Fed. R.
Civ. P. 59(e), and we refer to it as a motion for reconsideration.
The nomenclature has no bearing on the outcome of this appeal.
- 5 - The court summarily denied the motion for
reconsideration. This timely appeal followed.2
II.
Analysis
Our discussion proceeds in three parts. We begin by
ironing out two wrinkles that relate to our appellate jurisdiction
and the scope of our review. With the surface smoothed, we turn
sequentially to the district court's denial of Erikon's motion for
leave to execute on the judgment and its denial of Erikon's motion
for reconsideration.
A.
Appellate Jurisdiction
We start with two questions that relate to our appellate
jurisdiction. The first concerns the contours of our jurisdiction
under 28 U.S.C. § 1291 — a statutory provision that allows circuit
courts to review "appeals from all final decisions of the district
courts." The parties — who agree on little else — both tell us
that the district court's order denying Erikon's motion for leave
to execute on the judgment was a final order and, thus, fit for
review. Despite this assurance, though, we have some independent
2 Wishinsky did not respond in the district court to Erikon's motion to appoint a special master, its motion for leave to execute on the judgment, or its motion for reconsideration. Nor has he appeared in this court despite being designated as an appellee. Any reference to the parties to this appeal is therefore limited to Erikon and CMG.
- 6 - responsibility to examine potential jurisdictional infirmities
before proceeding to the merits. See Me. Med. Ctr. v. Burwell,
841 F.3d 10, 15 (1st Cir. 2016).
A district court order is final if it "ends the
litigation on the merits and leaves nothing for the court to do
but execute the judgment." Whitfield v. Municipality of Fajardo,
564 F.3d 40, 45 (1st Cir. 2009) (quoting Catlin v. United States,
324 U.S. 229, 233 (1945)). When evaluating the finality of an
order entered after judgment, courts generally treat the post-
judgment proceeding as if it were a lawsuit distinct from the suit
that generated the underlying judgment. See, e.g., United States
v. Parker, 927 F.3d 374, 380 (5th Cir. 2019); JPMorgan Chase Bank,
N.A. v. Winget, 920 F.3d 1103, 1106 (6th Cir. 2019); Star Ins. Co.
v. Risk Mktg. Grp., 561 F.3d 656, 659 (7th Cir. 2009).
Consequently, an order entered after judgment is final if it leaves
the district court with no further work to resolve the post-
judgment dispute and, thus, ends the post-judgment proceeding.
See Whitfield, 564 F.3d at 45; Romero Barcelo v. Brown, 655 F.2d
458, 461 (1st Cir. 1981).
Here, the order denying Erikon's motion for leave to
execute on the judgment ended the pending dispute between the
parties over Erikon's post-judgment collection efforts. Erikon
sought the appointment of a special master to conduct a public
sale of the attached parcels of land, and CMG opposed this request.
- 7 - The order definitively resolved this dispute in CMG's favor: the
court ruled that the five-year period for execution of judgments
under Puerto Rico law had expired and denied leave to execute on
the judgment out of time. That order effectively barred Erikon
from continuing to seek to execute on the judgment and left no
additional work for the court to do. Because the order terminated
Erikon's post-judgment execution efforts, we conclude that it
comprised a final order, immediately appealable under 28 U.S.C.
§ 1291. See Sobranes Recovery Pool I, LLC v. Todd & Hughes Constr.
Corp., 509 F.3d 216, 220 (5th Cir. 2007) (holding that order
refusing to permit judgment creditor to execute on judgment was
final); TDK Elecs. Corp. v. Draiman, 321 F.3d 677, 678 (7th Cir.
2003) (same).
This conclusion does not end the inquiry into our
appellate jurisdiction. We also must untie a jurisdictional knot
largely attributable to poor draftsmanship. A notice of appeal
must specify the orders and/or judgments that the appellant wishes
to challenge. See Fed. R. App. P. 3(c)(1)(B). Erikon's notice of
appeal specifies only the order denying its motion for
reconsideration, yet its brief asks us to vacate the order denying
its motion for leave to execute on the judgment as well. This
mismatch raises an obvious question about whether the notice of
appeal suffices to confer appellate jurisdiction to review the
underlying order.
- 8 - As a general rule, a circuit court's jurisdiction
extends only to review of the orders and judgments specifically
enumerated in the notice of appeal. See Rojas-Velázquez v.
Figueroa-Sancha, 676 F.3d 206, 209 (1st Cir. 2012). But general
rules typically admit of exceptions, and an appellant's failure to
designate a particular order in the notice of appeal does not
necessarily deprive us of jurisdiction to review that order. See
Nikitine v. Wilmington Tr. Co., 715 F.3d 388, 389 n.2 (1st Cir.
2013); Rojas-Velázquez, 676 F.3d at 209. Instead, we "construe
notices of appeal liberally and examine them in the context of the
record as a whole" in an effort to discern the appellant's intent.
Chamorro v. Puerto Rican Cars, Inc., 304 F.3d 1, 3-4 (1st Cir.
2002).
We have undertaken such examinations on various
occasions when a notice of appeal targeted only the denial of a
motion for reconsideration. See Comité Fiestas de la Calle San
Sebastián, Inc. v. Soto, 925 F.3d 528, 531-32 (1st Cir. 2019)
(collecting cases). Because the questions sought to be reviewed
through a motion for reconsideration often are intertwined with
those involved in the resolution of the original motion, we
sometimes will construe a notice of appeal designating only an
order denying reconsideration as permitting review of the
underlying order. See, e.g., Rojas-Velázquez, 676 F.3d at 209;
Alstom Caribe, Inc. v. Geo. P. Reintjes Co., 484 F.3d 106, 112
- 9 - (1st Cir. 2007). In assessing the propriety of construing a
particular notice of appeal in this manner, we give particular
weight to whether the defect in the notice of appeal has prejudiced
the appellee and whether the appellant's intent to appeal the
underlying order is manifest. See Young v. Gordon, 330 F.3d 76,
80 (1st Cir. 2003); Chamorro, 304 F.3d at 4.
In the case at hand, the absence of any reference in the
notice of appeal to the underlying order clearly did not prejudice
CMG. After all, its brief on appeal defends the underlying order
on the merits and does not so much as mention a possible
jurisdictional defect. In similar circumstances, we have found
such facts to be indicative of the absence of prejudice. See
Chamorro, 304 F.3d at 4 (finding that notice of appeal designating
only order denying reconsideration caused no prejudice to appellee
because "both sides [had] fully briefed the merits" of underlying
order).
Whether Erikon has demonstrated a clear intent to
challenge both the underlying order and the order denying
reconsideration is a more difficult issue. In its appellate
briefing, Erikon repeatedly refers just to the order denying
reconsideration as the source of its discontent. Nevertheless, it
asks that we vacate both orders and — save for one sentence in the
conclusion of its brief — engages on the merits of the underlying
order without reference to the standard for reconsideration under
- 10 - Rule 59(e). In the absence of a smoking gun, a party's intent is
notoriously difficult to prove. See United States v. Kilmartin,
944 F.3d 315, 339 (1st Cir. 2019), cert. denied, __ S. Ct. __
(2020). Here, the lack of clarity in Erikon's briefing compounds
the problem of ascertaining its intent.
In all events, the rigors of this case do not demand
that we conclusively resolve the confusion created by the mismatch
between Erikon's notice of appeal and its appellate briefing. When
an appeal raises an enigmatic question of statutory jurisdiction
and the merits are easily resolved in favor of the party who would
benefit from a finding that jurisdiction is wanting, we may bypass
the jurisdictional inquiry and proceed directly to the merits.
See First State Ins. Co. v. Nat'l Cas. Co., 781 F.3d 7, 10 & n.2
(1st Cir. 2015). Relying on this tenet, we occasionally have
finessed thorny questions about the meaning and effect of an
inartfully drafted notice of appeal and assumed the existence of
jurisdiction to review an order not specifically designated in
that notice. See, e.g., Nikitine, 715 F.3d at 389 n.2; McKenna v.
Wells Fargo Bank, N.A., 693 F.3d 207, 213-14 (1st Cir. 2012);
Markel Am. Ins. Co. v. Díaz-Santiago, 674 F.3d 21, 26-27 (1st Cir.
2012). We follow that praxis here and assume for argument's sake
that Erikon's notice of appeal confers jurisdiction upon us to
review both of the above-described orders.
- 11 - B.
Leave to Execute
We start our inquiry into the merits with the district
court's denial of Erikon's motion for leave to execute on the
judgment. Erikon argues — as it did below — that it has tried
diligently to enforce the judgment since the judgment was entered
in 2008. In its view, the district court abused its discretion in
denying leave to execute on the judgment beyond the five-year
period established under Puerto Rico law.
Federal Rule of Civil Procedure 69(a) governs the
execution of a money judgment in federal court. This rule directs
that, in most cases, "[t]he procedure on execution . . . must
accord with the procedure of the state where the court is located."
Fed. R. Civ. P. 69(a)(1). We therefore look to the law of the
state in which the district court sits both for the parties'
substantive rights and for the procedure to be followed. See
Whitfield, 564 F.3d at 43. For these purposes, we treat Puerto
Rico as "the functional equivalent of a state." Id. at 43 n.2.
Accordingly, Puerto Rico law establishes the substantive rules
that guide our examination of Erikon's efforts to execute on the
judgment.
Pursuant to P.R.R. 51.1, a judgment creditor may execute
on the judgment at any time within five years after it becomes
final. See P.R. Laws Ann. tit. 32, app. V, § 51.1. Once that
- 12 - period has elapsed, P.R.R. 51.1 provides that a judgment creditor
may execute on the judgment only with leave of court. See id.
P.R.R. 51.1 does not specify what circumstances may warrant a grant
of leave to execute on a judgment beyond the five-year period. As
a baseline matter, though, Erikon does not contend that a judgment
creditor may obtain leave of court without demonstrating, at a
minimum, either diligence in attempting to enforce the judgment or
good cause for failing to do so.
In its 2015 order denying Erikon's motion to appoint a
special master, the district court determined that the five-year
period for execution of judgments under P.R.R. 51.1 had expired.
The court invited Erikon to seek leave to continue its collection
efforts. For a long time, Erikon did nothing. Then — over two
years later — Erikon requested leave of court, describing what it
envisioned as its diligent attempts to enforce the judgment.3 The
court found these efforts wanting and denied Erikon leave to
execute on the judgment. It noted that, by the time Erikon filed
its motion, more than six years had elapsed after CMG and
Wishinsky's final payment in January of 2011. To make matters
worse, Erikon wholly failed to justify the delay of over two years
3Apart from its claim of diligence, Erikon has not claimed good cause for its failure to execute on the judgment at an earlier date.
- 13 - between the denial of its first request to appoint a special master
and its filing of its motion for leave to execute.
It is undisputed that our review of the district court's
denial of Erikon's motion for leave to execute on the judgment
under P.R.R. 51.1 is for abuse of discretion. Cf. Lewis v. United
Joint Venture, 691 F.3d 835, 839 (6th Cir. 2012) (reviewing
enforcement remedy issued under Rule 69 for abuse of discretion);
Aurelius Capital Partners, LP v. Republic of Argentina, 584 F.3d
120, 129 (2d Cir. 2009) (reviewing ruling on request for post-
judgment attachment for abuse of discretion). The abuse-of-
discretion rubric "is not monolithic: within it, embedded findings
of fact are reviewed for clear error, questions of law are reviewed
de novo, and judgment calls are subjected to classic abuse-of-
discretion review." Ungar v. Palestine Liberation Org., 599 F.3d
79, 83 (1st Cir. 2010).
As the district court seems to have recognized, Erikon
attempted (with at least some degree of diligence) to enforce the
judgment until January of 2011. When it became apparent in mid-
2008 that CMG and Wishinsky would not voluntarily satisfy the
judgment, Erikon requested and received court orders directing the
public sale of two parcels of land owned by one or both of the
judgment debtors. Erikon then sought to take Wishinsky's
deposition to explore other collection avenues. Finally, Erikon
- 14 - agreed to a payment schedule and collected payments on account
from CMG or Wishinsky for approximately twenty-two months.
But that is only part of the story, and we discern no
abuse of discretion in the district court's determination that
leave to execute on the judgment was unwarranted because more than
six years had passed between the final payment that Erikon received
in January of 2011 and its effort to collect the balance due by
means of its motion in July of 2017. During this lengthy interval,
Erikon made minimal efforts to enforce the judgment, and what few
steps it took did not excuse so protracted a delay. We explain
briefly.
Erikon does not contend that it undertook any meaningful
attempt to enforce the judgment during the two years following its
receipt of the last payment on account in January of 2011.
Although it notes that this period saw the passing of the presiding
judge and the withdrawal of opposing counsel, neither event
prevented Erikon from trying to enforce the judgment for the entire
two-year span. Erikon's utter failure to act during this period
seriously undermines its claim that it consistently has attempted
to enforce the judgment.
There is more. Erikon asserts that it resumed diligent
efforts to enforce the judgment in early 2013 when it began
negotiations with Wishinsky's new attorney. But although these
negotiations (in which CMG and Wishinsky participated on and off)
- 15 - lasted until early 2017, they took place in connection with the
Seaside litigation. The district court reasonably concluded that
these negotiations did not excuse Erikon's procrastination in
seeking leave to execute on the judgment in a separate case. After
all, the dispute among Erikon, CMG, and Wishinsky that produced
the judgment was fundamentally distinct from the Seaside
litigation (even though both arose out of the same development
project). The former involved CMG's and Wishinsky's obligations
under the promissory note and their failure to comply with an
existing judgment, whereas the Seaside litigation centered on
Erikon's liability for expenses incurred during the project. See
Caribbean Seaside, 867 F.3d at 44. To cap the matter, neither CMG
nor Wishinsky was a party to the Seaside litigation, and the
attorney simultaneously representing Wishinsky and Seaside in the
two cases moved to withdraw from both representations in September
of 2014.
As CMG's participation in some of these negotiations
indicates, there may have been some efficiency in trying to resolve
the two disputes together. But Erikon had an enforceable judgment
against CMG and Wishinsky on which it could have sought to execute
without reaching such a global settlement. In these circumstances,
it seems reasonable for the district court to think that Erikon
appears to have been focused primarily on defending the Seaside
litigation rather than trying to enforce the judgment.
- 16 - Abuse of discretion is a highly deferential standard of
review. See González-Rivera v. Centro Médico del Turabo, Inc.,
931 F.3d 23, 27 (1st Cir. 2019). Under its umbrella, the district
court plausibly could have viewed the negotiations in the Seaside
litigation as an inadequate excuse for a delay of four years in
attempting to enforce the judgment. Given the recalcitrance that
CMG and Wishinsky already had displayed toward satisfying the
judgment, it was reasonable to conclude that a diligent judgment
creditor in Erikon's shoes would have taken more direct steps to
enforce the judgment. It should have been obvious to Erikon — as
it apparently was to the court below — that other means of
enforcing the judgment would likely pay greater dividends.
To be sure, Erikon did move in 2014 for the appointment
of a special master to carry out the sale of the attached parcels
of real estate. But once again Erikon did not diligently pursue
this avenue for enforcing the judgment. Notwithstanding the
district court's explicit warning in its 2015 order that Erikon
needed to seek leave of court to execute on the judgment, Erikon
twiddled its corporate thumbs for over two years before doing so.
The district court found that Erikon failed to offer an adequate
excuse for this delay — a finding that was well within the
encincture of its discretion.
That ends this aspect of the matter. We have admonished
before that "[t]he law ministers to the vigilant not to those who
- 17 - sleep upon perceptible rights." Puleio v. Vose, 830 F.2d 1197,
1203 (1st Cir. 1987). Even though the context here is different,
the admonition rings equally true. Over the course of more than
six years, Erikon took minimal steps to enforce the judgment,
conducting sporadic and indirect negotiations in a separate
lawsuit and filing one motion that it did not assiduously pursue.
What is more, even after the district court had specifically
invited Erikon to seek leave to execute on the judgment, it waited
over two years before taking appropriate action. In the
circumstances of this case, waiting two years was the polar
opposite of exercising diligence. On this record, there is no
principled way in which we can hold that the district court abused
its discretion in viewing Erikon's collection efforts as lacking
in diligence and, thus, deeming unwarranted an extension of the
period for execution of judgments. Consequently, we uphold the
district court's denial of Erikon's motion for leave to execute on
the judgment.
C.
Reconsideration
This brings us to Erikon's challenge to the district
court's summary denial of its motion for reconsideration. We
review the denial of a motion for reconsideration for abuse of
discretion. See Guadalupe-Báez v. Pesquera, 819 F.3d 509, 518
(1st Cir. 2016). To prevail on such a motion, "a party normally
- 18 - must demonstrate either that new and important evidence,
previously unavailable, has surfaced or that the original judgment
was premised on a manifest error of law or fact." Ira Green, Inc.
v. Military Sales & Serv. Co., 775 F.3d 12, 28 (1st Cir. 2014).
The mainstay of Erikon's motion for reconsideration was
its challenge to the district court's conclusion that Erikon had
delayed for too long before seeking leave to execute on the
judgment. This challenge renewed and elaborated upon the same
explanation for the delay that Erikon had advanced in its
underlying motion. The more detailed explanation, Erikon said,
demonstrated that leave of court was justified by its diligent
efforts to enforce the judgment. The district court disagreed,
and we detect no abuse of discretion.
There is little reason to tarry. As long as the district
court has not "misapprehended some material fact or point of law,"
a motion for reconsideration is rarely "a promising vehicle for
revisiting a party's case and rearguing theories previously
advanced and rejected." Palmer v. Champion Mortg., 465 F.3d 24,
30 (1st Cir. 2006). We already have explained that the district
court did not abuse its discretion in denying the underlying motion
based on its supportable finding that Erikon had not acted
diligently in seeking leave to execute on the judgment. See supra
Part II(B). It was, therefore, not an abuse of discretion for the
- 19 - court to reject Erikon's attempt to repastinate the same ground.
See Palmer, 465 F.3d at 30.
Erikon's motion for reconsideration also debuted a new
line of argument concerning the timeliness of its efforts to
execute on the judgment. In its underlying motion, Erikon simply
requested leave to execute on the judgment beyond the five-year
period set forth in P.R.R. 51.1. Its motion for reconsideration
adopted a new stance, disputing the premise that it needed leave
of court in order to execute on the judgment. It repeats this
argument to us. It posits that Article 1864 of the Puerto Rico
Civil Code, P.R. Laws Ann. tit. 31, § 5294, establishes a fifteen-
year period for execution of money judgments — a period that it
alleges should govern in this instance.4 It further posits that
even if the five-year period set forth in P.R.R. 51.1 applies, its
current execution efforts are timely because they are a
continuation of efforts commenced within that period.
We need not inquire into the merits of these theories
because Erikon raised them for the first time in its motion for
4 CMG claims that Erikon did not raise this theory with sufficient clarity below and, thus, has waived it. See Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) ("[A]bsent the most extraordinary circumstances, legal theories not raised squarely in the lower court cannot be broached for the first time on appeal."). Although this claim has some force, Erikon did reference Article 1864 twice in its motion for reconsideration. Because nothing turns on it, we assume, favorably to Erikon, that the argument was preserved.
- 20 - reconsideration. That is a fatal flaw: it is settled beyond hope
of contradiction that, at least in the absence of exceptional
circumstances, a party may not advance new arguments in a motion
for reconsideration when such arguments could and should have been
advanced at an earlier stage of the litigation. See, e.g., Mancini
v. City of Providence ex rel. Lombardi, 909 F.3d 32, 48 (1st Cir.
2018); Perez v. Lorraine Enters., Inc., 769 F.3d 23, 28 (1st Cir.
2014). The circumstances here are not exceptional, and Erikon has
not come within a country mile of demonstrating a manifest error
of law in the underlying order.
The short of it is that Erikon, in its motion for
reconsideration, rehashed arguments that the district court had
already rejected and advanced new theories that it could and should
have advanced earlier in the case. Given this combination of old
arguments and arguments previously forgone, the district court did
not abuse its discretion in denying the motion for reconsideration.
III.
Conclusion
We need go no further. For the reasons elucidated above,
the district court's denials of both Erikon's motion for leave to
execute on the judgment and its motion for reconsideration are
Affirmed.
- 21 -