McCarthy v. Weathervane Seafoods

Filing 23

ORDER denying 19 Motion for Reconsideration Re: 18 Order on Motion for Summary Judgment. So Ordered by Judge Joseph A. DiClerico, Jr. (dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Kevin McCarthy
v.

Civil No. 10-cv-395-JD

Weathervane Seafoods
O R D E R
Kevin McCarthy alleged claims of negligence and negligence
per se against Weathervane Seafoods after he was injured in a
fall from a ladder while attempting to climb to the roof of a
Weathervane restaurant to repair a leak.

Weathervane’s motion

for summary judgment was granted in part and denied in part.
Weathervane moves for reconsideration, asking that summary
judgment be granted in Weathervane’s favor on McCarthy’s
negligence per se claim based on New Hampshire Code of
Administrative Rules, Labor 1403.30.

Discussion
Weathervane moved for summary judgment on McCarthy’s
negligence per se claim, Count II, on the grounds that
Occupational Safety and Health Administration (“OSHA”)
regulations and RSA 277:2 cannot support McCarthy’s claim.

In

his objection, McCarthy argued that his negligence per se claim
also was supported by New Hampshire Code of Administrative Rules,

Labor 1403.30, and provisions of the International Building Code
and the International Property Maintenance Code.

The court

granted summary judgment in Weathervane’s favor to the extent the
negligence per se claim was based on RSA 277:2, violation of the
International Building Code or the International Property
Maintenance Code, and OSHA regulations.
In its motion for reconsideration, Weathervane argues that
the court should have granted summary judgment on McCarthy’s
negligence per se claim because Labor 1403.30 does not apply to
independent contractors such as McCarthy.

Weathervane also asks

the court “[t]o grant Weathervane its costs, including reasonable
attorneys’ fees . . . .”

Mot. at 3.

McCarthy objects to the

motion because it raises a new argument and also contends that
Labor 1403.30 is applicable to the facts in this case.
In general, “motions for reconsideration are appropriate
only in a limited number of circumstances. . . .”
v. Allen, 573 F.3d 42, 53 (1st Cir. 2009).

United States

Under the Local Rules

in this district, “[a] motion to reconsider an interlocutory
order of the court, meaning a motion other than one governed by
Fed. R. Civ. P. 59 or 60, shall demonstrate that the order was
based on a manifest error of fact or law . . . .”

LR 7.2(e).

A

manifest error is plain and undisputable, obvious, or clearly
wrong.

See, e.g., Guy v. Crown Equip. Corp., 394 F.3d 320, 325
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(5th Cir. 2004); Andreiu v. Ashcroft, 253 F.3d 477, 489-90 (9th
Cir. 2001); Beech v. Hercules Drilling Co., L.L.C., 2011 WL
2010162, at *1 (E.D. La. May 23, 2011) (“Manifest error is
defined as evident to the senses, especially to the sight,
obvious to the understanding, evident to the mind, not obscure or
hidden, and is synonymous with open, clear, visible,
unmistakable, indubitable, indisputable, evidence, and selfevidence.” (internal quotation marks omitted)).

“Motions for

reconsideration are not to be used as ‘a vehicle for a party to
undo its own procedural failures [or] allow a party to advance
arguments that could and should have been presented to the
district court” in support of the party’s original motion.
Allen, 573 F.3d at 53 (quoting Iverson v. City of Boston, 452
F.3d 94, 104 (1st Cir. 2006)).
Weathervane did not challenge Labor 1403.30 in its motion
for summary judgment.

When McCarthy cited Labor 1403.30 in his

objection as a basis for his negligence per se claim, Weathervane
responded that McCarthy was precluded from relying on statutes
and regulations that were not pleaded in the complaint.
Weathervane did not argue that Labor 1403.30 is inapplicable to
independent contractors, as it contends in support of the motion
for reconsideration.

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Weathervane now acknowledges that McCarthy disclosed Labor
1403.30 as a basis for his negligence per se claim for purposes
of the parties’ discovery plan.

In fact, Labor 1403.30 was cited

in the parties’ discovery plan, which was filed by Weathervane on
November 5, 2010, as a basis for McCarthy’s negligence per se
claim.

Weathervane provides no reason why it did not challenge

Labor 1403.30 in its motion for summary judgment on the ground it
now raises for reconsideration.
The court will not consider the new argument, challenging
Labor 1403.30, that Weathervane raises for the first time for
reconsideration.

As the matter has not been decided, Weathervane

may raise the issue, if appropriate, in a subsequent motion for
summary judgment within the schedule established by the discovery
plan.

Weathervane provides no argument to support its request

for unspecified costs and attorneys’ fees, which is denied.

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Conclusion
For the foregoing reasons, the defendant’s motion for
reconsideration (document no. 19) is denied.

SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
June 27, 2011
cc:

John L. Arnold, II, Esquire
David M. Bae, Esquire
Thomas J. Fay, Esquire
Andrew Ranks, Esquire
Martha Van Oot, Esquire

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