Washington International Insurance Company et al v. Ashton Agency, Inc.

Filing 66

ORDER denying 57 Motion for Reconsideration re: Order on Motion for Preliminary Injunction. So Ordered by Magistrate Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Washington International
Insurance Company and North
American Specialty Insurance
Company
v.

Civil No. 10-cv-526-LM

Ashton Agency, Inc.

O R D E R
Before the court is plaintiffs’ motion for reconsideration
of the court’s order denying their renewed application for
preliminary injunctive relief.

Defendant objects.

For the

reasons that follow, plaintiffs’ motion is denied.
To prevail on a motion for reconsideration, “the movant
must demonstrate either that newly discovered evidence (not
previously available) has come to light or that the rendering
court committed a manifest error of law.”

Mulero-Abreu v. P.R.

Police Dep’t, 675 F.3d 88, 94 (1st Cir. 2012) (quoting Palmer v.
Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006)).
Plaintiffs first argue that the court committed a manifest
error of law by failing to appreciate the scope of its inherent
powers, as described in two opinions they cite for the first
time in their memorandum of law: Chase Manhattan Bank, N.A. v.
Villa Marina Yacht Harbor, Inc. (In re Villa Marina Yacht

Harbor, Inc.), 984 F.2d 546 (1st Cir. 1993) and Zebrowski v.
Hanna, 973 F.2d 1001 (1st Cir. 1992).

Plaintiffs’ argument,

however, is based on a misunderstanding of the order they ask
the court to reconsider.
Plaintiffs characterize the court’s order of in the
following way:
[T]his Court ruled that because Ashton had apparently
not retained the premiums in a separate and
identifiable trust account, there were no
“identifiable assets,” and therefore this Court lacked
the power to order Ashton to establish an escrow
account or to otherwise freeze Ashton’s assets in a
sufficient amount to maintain the status quo during
this proceeding.
Pls.’ Mem. of Law (doc. no. 51-1), at 5.

Based on the

foregoing, plaintiffs appear to suggest that the court denied
their request for a preliminary injunction based on a belief
that it lacked the inherent power to order the relief they
sought.
What the court actually said was that the opinion the
plaintiffs specifically identified as supporting their position
most strongly, Serio v. Black, Davis & Shue Agency, Inc., No. 05
Civ. 15(MHD), 2005 WL 3642217 (S.D.N.Y. Dec. 30, 2005), was
inapplicable, and that, as a result, preliminary injunctive
relief was barred by Grupo Mexicano de Desarrollo, S.A. v.
Alliance Bond Fund, Inc., 527 U.S. 308 (1999).
no. 58), at 33-35.

See Tr. (doc.

Moreover, plaintiffs do not explain how

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anything the First Circuit said in Villa Marina or Zebrowski is
sufficient to empower a district court to grant relief barred by
the Supreme Court six or seven years later in Grupo Mexicano.
The court further notes that plaintiffs’ reliance on United
States ex rel. Rahman v. Oncology Associates, P.C., 198 F.3d 489
(4th Cir. 1999) is misplaced, given the absence of equitable
claims in this case.

Finally, even if the court had the

inherent authority that plaintiffs say it has, a failure to
exercise that authority in the manner requested by plaintiffs
would be an error of law only if the decision plaintiffs wanted
the court to make was not just permitted, but required.
Plaintiffs have come nowhere close to showing that, under the
circumstances of this case, controlling authority compelled the
court to grant them the preliminary injunction they sought.
Thus, the court’s order of April 2, 2012, did not result from a
manifest error of law.
Plaintiffs also argue that they are entitled to
reconsideration based on newly discovered evidence, i.e., Kay
Hull’s post-hearing conversation with a person who told her that
he had direct personal knowledge that Robert Ashton was actively
attempting to sell the Ashton Agency.

As a preliminary matter,

plaintiffs do not explain how Robert Ashton’s sale of the Ashton
Agency would have any adverse effect on the Ashton Agency’s

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ability to pay a judgment against it.

Based on the evidence

plaintiffs have produced, this is not a case such as Teradyne,
Inc. v. Mostek Corp., in which the defendant company had
actually been sold to a new owner and “was in the process of
winding down after selling the bulk of its assets,” 797 F.2d 43,
52 (1st Cir. 1986).

But, more importantly, given the legal

unavailability of the preliminary injunctive relief that
plaintiffs seek, the newly discovered evidence on which they
base their request for reconsideration includes no information
that is in any way material to a decision on whether to grant
the relief they seek.

Accordingly, the evidence plaintiffs have

discovered does not entitle them to reconsideration of the
court’s order of April 2, 2012.
Because the court has committed no legal error, and because
the new evidence plaintiffs have adduced is not material, their
motion for reconsideration, document no. 57, is denied.
SO ORDERED.
__________________________
Landya McCafferty
United States Magistrate Judge
June 11, 2012
cc:

Bradford R. Carver, Esq.
Geoffrey M. Coan, Esq.
Eric H. Loeffler
Jeffrey C. Spear, Esq.
Martha Van Oot, Esq.

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