UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Robert J. Morin
v. Case No. 20-cv-615-PB Opinion No. 2021 DNH 015 Eastern Bearings, Inc. d/b/a Eastern Industrial Automation
ORDER
Robert Morin seeks reconsideration of my December 16, 2020
order (Doc. No. 15), which denied in part and granted in part
Eastern’s motion to dismiss. Morin argues that I erred in
dismissing his federal and state law claims for harassment based
on race/national origin and association with a disabled person.
Eastern objects to the motion.
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. 2009); see L.R.
7.2(d). A party cannot use a motion for reconsideration “to
undo its own procedural failures” or to “advance arguments that
could and should have been presented” earlier. Allen, 573 F.3d
at 53. Likewise, a motion for reconsideration 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). Morin’s
motion for reconsideration does not come even close to meeting
this stringent standard.
With respect to Morin’s claim of harassment based on
association with a disabled person, the motion merely repeats
arguments from the original papers. As this amounts to an
inappropriate effort to relitigate already decided issues, I do
not engage with those arguments point-by-point. Instead, it is
sufficient to merely note that Morin has not shown, as he must,
that the dismissal of the association claim stemmed from a
manifest error of law.
With respect to Morin’s claim of harassment based on race
and national origin, Morin raises and develops new theories of
liability for the first time in the motion for reconsideration.
I dismissed the claim because the complaint failed to allege
that the harassment occurred because of Morin’s membership in a
protected group, where the harasser had no awareness of Morin’s
Native American heritage. Relying principally on cases decided
on standing grounds, Morin now presents new legal arguments to
support his claim that his harasser’s awareness of Morin’s
protected status is immaterial. The proper time to develop
those arguments was in his opposition to Eastern’s motion to
2 dismiss. Eastern specifically argued in its motion that Morin’s
failure to allege that Eastern knew about his Native American
heritage was fatal to his claim. See Doc. No. 4-1 at 17. Morin
was, therefore, on notice of this alleged defect from the start,
and he had every opportunity to develop arguments that a lack of
such knowledge is inconsequential. In his opposition brief,
however, Morin “did not develop these newly presented legal
theories in a comprehensive or comprehensible way.” O’Rourke v.
Boyne Resorts, 2014 DNH 155, 2014 WL 3547000, at *1 (D.N.H. July
15, 2014) (denying motion for reconsideration because it
presented new and previously undeveloped arguments).
Morin’s failure to timely present his arguments is a
sufficient basis to deny his motion for reconsideration. See
Quality Cleaning Prod. R.C., Inc. v. SCA Tissue N. Am., LLC, 794
F.3d 200, 208 (1st Cir. 2015); Vallejo v. Santini–Padilla, 607
F.3d 1, 7 n.4 (1st Cir. 2010); Cochran v. Quest Software, Inc.,
328 F.3d 1, 11 (1st Cir. 2003). As the First Circuit has
explained, once the district court issues a ruling, “a litigant
should not be allowed to switch from theory to theory like a bee
in search of honey.” Cochran, 328 F.3d at 11. This rule has
“deep prudential roots” and is designed to prevent wasting
judicial resources, unfairness to the other party, and
gamesmanship. See id. If the rule is to be meaningful, it must
be enforced in cases like this where counsel had ample
3 opportunity to frame the issue and now seeks to reap rewards
from inexcusable delay. Accordingly, to the extent Morin relies
on arguments not previously raised or developed, he has not
established a basis for reconsideration.
In any event, Morin has not shown that the dismissal of his
hostile work environment claim resulted from a manifest error of
law. He does not cite controlling precedent to support his new
arguments. Instead, both parties have focused principally on
cases involving standing to sue under Title VII. But standing
is not a problem in this case because, as a member of a
protected group, Morin is within the zone of interests that
Title VII sought to protect. See Thompson v. N. Am. Stainless,
LP, 562 U.S. 170, 178 (2011). The real issue raised in the
motion for reconsideration, albeit inarticulately, concerns
discriminatory intent. Specifically, the question is whether
hostile work environment claims require discriminatory intent
and whether the complaint here forecloses the possibility of
inferring such intent where it concedes that the derogatory
remarks about Native Americans were not directed at a known
member of that protected group. This question raises
substantial issues that the parties’ briefs on the motion for
reconsideration do not adequately address, again underscoring
the very reason these motions are not the proper vehicle for
raising new arguments.
4 Controlling case law suggests that hostile work environment
claims under Title VII require discriminatory intent and that
this element cannot be satisfied in circumstances such as these.
Hostile work environment claims are derivative of disparate
treatment claims. See Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 78 (1998). Disparate treatment claims
require a “discriminatory intent or motive.” Ricci v.
DeStefano, 557 U.S. 557, 577 (2009) (quoting Watson v. Fort
Worth Bank & Trust, 487 U.S. 977, 986 (1988)). By extension, in
hostile work environment claims, “[t]he harassment . . . must
stem from an impermissible motivation.” Brader v. Biogen Inc.,
983 F.3d 39, 59–60 (1st Cir. 2020) (quoting Maldonado-Cátala v.
Municipality of Naranjito, 876 F.3d 1, 10 (1st Cir. 2017)); see
also Quiles-Quiles v. Henderson, 439 F.3d 1, 7-8 (1st Cir. 2006)
(“[A]n employee claiming harassment must demonstrate that the
hostile conduct was directed at him because of a characteristic
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Robert J. Morin
v. Case No. 20-cv-615-PB Opinion No. 2021 DNH 015 Eastern Bearings, Inc. d/b/a Eastern Industrial Automation
ORDER
Robert Morin seeks reconsideration of my December 16, 2020
order (Doc. No. 15), which denied in part and granted in part
Eastern’s motion to dismiss. Morin argues that I erred in
dismissing his federal and state law claims for harassment based
on race/national origin and association with a disabled person.
Eastern objects to the motion.
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. 2009); see L.R.
7.2(d). A party cannot use a motion for reconsideration “to
undo its own procedural failures” or to “advance arguments that
could and should have been presented” earlier. Allen, 573 F.3d
at 53. Likewise, a motion for reconsideration 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). Morin’s
motion for reconsideration does not come even close to meeting
this stringent standard.
With respect to Morin’s claim of harassment based on
association with a disabled person, the motion merely repeats
arguments from the original papers. As this amounts to an
inappropriate effort to relitigate already decided issues, I do
not engage with those arguments point-by-point. Instead, it is
sufficient to merely note that Morin has not shown, as he must,
that the dismissal of the association claim stemmed from a
manifest error of law.
With respect to Morin’s claim of harassment based on race
and national origin, Morin raises and develops new theories of
liability for the first time in the motion for reconsideration.
I dismissed the claim because the complaint failed to allege
that the harassment occurred because of Morin’s membership in a
protected group, where the harasser had no awareness of Morin’s
Native American heritage. Relying principally on cases decided
on standing grounds, Morin now presents new legal arguments to
support his claim that his harasser’s awareness of Morin’s
protected status is immaterial. The proper time to develop
those arguments was in his opposition to Eastern’s motion to
2 dismiss. Eastern specifically argued in its motion that Morin’s
failure to allege that Eastern knew about his Native American
heritage was fatal to his claim. See Doc. No. 4-1 at 17. Morin
was, therefore, on notice of this alleged defect from the start,
and he had every opportunity to develop arguments that a lack of
such knowledge is inconsequential. In his opposition brief,
however, Morin “did not develop these newly presented legal
theories in a comprehensive or comprehensible way.” O’Rourke v.
Boyne Resorts, 2014 DNH 155, 2014 WL 3547000, at *1 (D.N.H. July
15, 2014) (denying motion for reconsideration because it
presented new and previously undeveloped arguments).
Morin’s failure to timely present his arguments is a
sufficient basis to deny his motion for reconsideration. See
Quality Cleaning Prod. R.C., Inc. v. SCA Tissue N. Am., LLC, 794
F.3d 200, 208 (1st Cir. 2015); Vallejo v. Santini–Padilla, 607
F.3d 1, 7 n.4 (1st Cir. 2010); Cochran v. Quest Software, Inc.,
328 F.3d 1, 11 (1st Cir. 2003). As the First Circuit has
explained, once the district court issues a ruling, “a litigant
should not be allowed to switch from theory to theory like a bee
in search of honey.” Cochran, 328 F.3d at 11. This rule has
“deep prudential roots” and is designed to prevent wasting
judicial resources, unfairness to the other party, and
gamesmanship. See id. If the rule is to be meaningful, it must
be enforced in cases like this where counsel had ample
3 opportunity to frame the issue and now seeks to reap rewards
from inexcusable delay. Accordingly, to the extent Morin relies
on arguments not previously raised or developed, he has not
established a basis for reconsideration.
In any event, Morin has not shown that the dismissal of his
hostile work environment claim resulted from a manifest error of
law. He does not cite controlling precedent to support his new
arguments. Instead, both parties have focused principally on
cases involving standing to sue under Title VII. But standing
is not a problem in this case because, as a member of a
protected group, Morin is within the zone of interests that
Title VII sought to protect. See Thompson v. N. Am. Stainless,
LP, 562 U.S. 170, 178 (2011). The real issue raised in the
motion for reconsideration, albeit inarticulately, concerns
discriminatory intent. Specifically, the question is whether
hostile work environment claims require discriminatory intent
and whether the complaint here forecloses the possibility of
inferring such intent where it concedes that the derogatory
remarks about Native Americans were not directed at a known
member of that protected group. This question raises
substantial issues that the parties’ briefs on the motion for
reconsideration do not adequately address, again underscoring
the very reason these motions are not the proper vehicle for
raising new arguments.
4 Controlling case law suggests that hostile work environment
claims under Title VII require discriminatory intent and that
this element cannot be satisfied in circumstances such as these.
Hostile work environment claims are derivative of disparate
treatment claims. See Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 78 (1998). Disparate treatment claims
require a “discriminatory intent or motive.” Ricci v.
DeStefano, 557 U.S. 557, 577 (2009) (quoting Watson v. Fort
Worth Bank & Trust, 487 U.S. 977, 986 (1988)). By extension, in
hostile work environment claims, “[t]he harassment . . . must
stem from an impermissible motivation.” Brader v. Biogen Inc.,
983 F.3d 39, 59–60 (1st Cir. 2020) (quoting Maldonado-Cátala v.
Municipality of Naranjito, 876 F.3d 1, 10 (1st Cir. 2017)); see
also Quiles-Quiles v. Henderson, 439 F.3d 1, 7-8 (1st Cir. 2006)
(“[A]n employee claiming harassment must demonstrate that the
hostile conduct was directed at him because of a characteristic
protected by a federal anti-discrimination statute.”). The
complaint does not allege that the harasser either knew about
Morin’s heritage or directed his comments at someone else known
to be Native American. In analogous circumstances, the First
Circuit, in analyzing a hostile work environment claim,
discounted harassing conduct that occurred before the harasser
became aware of the plaintiff’s protected status, because the
conduct “was not directed at [the plaintiff] because of his”
5 protected trait. See Quiles-Quiles, 439 F.3d at 7-8 (emphasis
in original). Accordingly, it was not a manifest error to
dismiss Morin’s claim for failure to allege that the harassment
was on account of his protected status.
For the foregoing reasons, the motion for reconsideration
(Doc. No. 17) is denied.1
SO ORDERED.
/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge
January 22, 2021
cc: Leslie H. Johnson, Esq. Brian H. Lamkin, Esq. Julie B. Brennan, Esq.
1This case is not the first time that Morin’s counsel has inappropriately attempted to present new legal theories in a motion for reconsideration. See O’Rourke, 2014 WL 3547000, at *1. Counsel needs to be mindful that substantive motion practice requires a significant expenditure of judicial resources. Motions for reconsideration should not be filed as a matter of routine by the party who has been adversely impacted by a court’s ruling. 6