O'Rourke v. Boyne Resorts
Filing
47
ORDER denying 41 Plaintiff's Motion to Reconsider 39 Order on Defendant's Motion for Summary Judgment. So Ordered by Judge Steven J. McAuliffe.(lat)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Autumn O’Rourke,
Plaintiff
v.
Case No. 12-cv-445-SM
Opinion No. 2014 DNH 155
Boyne Resorts d/b/a Loon
Mountain Recreation Corporation,
Defendant
O R D E R
Plaintiff’s Motion to Reconsider Order on Defendant’s Motion
for Summary Judgment, doc. no. 41, is denied for the reasons set
forth in defendant’s Objection to the motion, doc. no. 42.
Plaintiff has not shown, as she must, any “manifest error of fact
or law” in the court’s ruling.
L.R. 7.2(d).
The motion is also denied on grounds that plaintiff raises
and develops theories of decision-maker liability, including the
“cat’s paw” theory, see Staub v. Proctor Hosp., __ U.S. __, 131
S. Ct. 1186, 1192 (2011), for the first time in her motion to
reconsider.
See Motion to Reconsider, doc. no. 41, at 3 n.2.
The proper time for plaintiff to have raised and argued those
theories was in her opposition to defendant’s motion for summary
judgment.
In her opposition brief, however, plaintiff did not
develop these newly presented legal theories in a comprehensive
or comprehensible way.
With regard to the “cat’s paw” theory, in
particular, plaintiff did not provide even a cursory citation to
Staub.
See generally J. Cajigas & Assoc., PSC v. Municipality of
Aguada, 2014 WL 320653, at * 2 (D.P.R. Jan. 29, 2014)
(“Perfunctory and undeveloped arguments, and arguments that are
unsupported by pertinent authority, are deemed waived.”) (citing
Medina-Rivera v. MVM, Inc., 713 F.3d 132, 140-41 (1st Cir. 2013)
(“developing a sustained argument out of . . . legal precedents”
is a party’s “job”) (internal quotation marks omitted).
And,
plaintiff concedes that she raised the cat’s paw issue for the
first time in her motion to reconsider.
See Pl. Reply Br., doc.
no. 46 at 2.
The Court of Appeals for this Circuit has warned that
motions for reconsideration are not occasions for raising
arguments for the first time or developing previously undeveloped
arguments.
See Global Naps, Inc. v. Verizon New England, Inc.,
489 F.3d 13, 26 (1st Cir. 2007) (holding district court did not
abuse its discretion in denying motion for reconsideration that
presented new and previously undeveloped arguments).
Litigation is not a game of hopscotch. It is
generally accepted that a party may not, on a motion
for reconsideration, advance a new argument that could
(and should) have been presented prior to the district
court's original ruling. E.g., DiMarco–Zappa v.
Cabanillas, 238 F.3d 25, 33 (1st Cir. 2001); Aybar v.
Crispin–Reyes, 118 F.3d 10, 16 (1st Cir. 1997). This
principle has deep prudential roots. Litigants
normally must frame the issues in a case before the
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trial court rules. After that point, a litigant should
not be allowed to switch from theory to theory like a
bee in search of honey. Against this backdrop, the
district court scarcely can be said to have abused its
discretion in refusing to reconsider its decision based
on the plaintiff's newly raised argument.
Cochran v. Quest Software, Inc., 328 F.3d 1, 11 (1st Cir. 2003).
See also Hudson v. Town of Weare, 2012 WL 6149523, at * 1 n.1
(D.N.H. Dec. 11, 2012) (denying motions for reconsideration that
raised new arguments).
See also United States v. Torres-Rosa,
209 F.3d 4, 6 (1st Cir. 2000) (concluding that it is not the
court’s obligation “to do counsel’s homework.”).
Conclusion
To the extent plaintiff relies on arguments not previously
raised or developed, she has not established a basis for
reconsideration.
In all other respects, the court finds no
manifest error of fact or law in its summary judgment ruling.
Plaintiff’s Motion to Reconsider, doc. no. 41, is, necessarily,
denied.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
July 15, 2014
cc:
Leslie H. Johnson, Esq.
Donald L. Smith, Esq.
Margaret A. O’Brien, Esq.
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