17 Outlets, LLC v. Healthy Food Corporation et al

Filing 55

ORDER denying 50 Motion for Reconsideration of 48 Order on Motion for Summary Judgment. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

17 Outlets, LLC
v.
Healthy Food Corporation
d/b/a Frozurt and Tai H. Pham

Civil No. 15-cv-101-JD
Opinion No. 2016 DNH 189

v.
Thurken III, LLC and
Richard E. Landry, Jr.
O R D E R
17 Outlets, LLC moves for reconsideration of the order
granting summary judgment in favor of Tai H. Pham.

In support,

17 Outlets asserts that it was “manifest error” for the court to
grant summary judgment because an agreement was created between
ThurKen and Pham, the court failed to distinguish the cases 17
Outlets cited to support its waiver defense, and the court
failed to acknowledge that the change from Tram Dang to HFC had
no effect on Pham’s obligation or risk.

Pham objects to the

motion for reconsideration.
A.

Timeliness

As a preliminary matter, Pham contends that the motion for
reconsideration should not be considered because it was not
timely filed.

Under Local Rule 7.2(d), a motion for

reconsideration must be filed within fourteen days after the
date of the order unless cause is shown for not filing within
that time.

Because reference in the rule is made to filing,

rather than service, Federal Rule of Civil Procedure 6(a)
applies.
Applying Rule 6(a), the deadline for filing the motion for
reconsideration was Friday, September 30.

The motion for

reconsideration was not filed until Monday, October 3.
Therefore, it was late and 17 Outlets failed to show cause for
the late filing.

Because the motion also fails on the merits,

however, the court will explain the alternative grounds for
denying the motion.
B.

Motion for Reconsideration

Reconsideration of an order is “‘an extraordinary remedy
which should be used sparingly.’”

Palmer v. Champion Mtg., 465

F.3d 24, 30 (1st Cir. 2006) (quoting 11 Charles Alan Wright et
al., 11 Federal Practice and Procedure § 2810.1 (2d ed. 1995));
accord Giroux v. Fed. Nat’l Mortg. Assoc., 810 F.3d 103, 106
(1st Cir. 2016).

For that reason, 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
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error of law or was clearly unjust.”

United States v. Allen,

573 F.3d 42, 53 (1st Cir. 2009).
Importantly, a motion for reconsideration cannot succeed
when the moving party is attempting “to undo its own procedural
failures” or “advanc[ing] arguments that could and should have
been presented earlier.”

Id.

A motion for reconsideration also

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).
17 Outlets appears to misunderstand the summary judgment
order.

In Count II, 17 Outlets was seeking to enforce a

guaranty agreement between Pham and its predecessor, ThurKen,
arguing that Pham had agreed to guaranty HFC’s lease
obligations.

The court concluded, however, that the plain terms

of the guaranty agreement showed that Pham agreed to guaranty
Tram Dang’s lease obligations, not HFC’s obligations.

As a

result, no agreement existed that Pham would guarantee HFC’s
obligations under the lease.
In its objection to summary judgment, 17 Outlets made
various arguments based on the terms of the guaranty agreement,
contending that the parties could change the terms of the
obligations that were guaranteed, which would allow ThurKen to

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change the lessee from Tram Dang to HFC, and that Pham waived
suretyship defenses.

The guaranty agreement, however, pertained

to obligations that never existed because Tram Dang was never
the lessee.

Instead, the lease was between HFC and ThurKen.

In

support of its motion for reconsideration, 17 Outlets continues
to argue that despite the plain language of the agreement, Pham
should be required to guaranty the lease obligations of HFC.
The court considered and rejected 17 Outlets’s theory that
ThurKen could substitute HFC for Tram Dang as the lessee without
affecting the guaranty agreement.1

The court also considered and

rejected 17 Outlets’s argument based on the waiver of defenses
provision in the agreement.2

Contrary to 17 Outlets’s assertions

here, no facts were construed against it.

Contrary to 17 Outlets’s theory, the lessee was not changed
after the guaranty was signed. Instead, Tram Dang, who is named
as the lessee in the guaranty agreement, was never the lessee
and never assumed lease obligations to be guaranteed. HFC was
the lessee from the inception of the relationship.
1

217

Outlets argues that the court erred in failing to
distinguish the cases it cited to support the waiver of defenses
theory. The court is not obligated to distinguish cases cited
by a party. In addition, the cases cited were inapposite
because they pertained to the effectiveness of waiver provisions
to prevent challenges to guaranty agreements. In this case, the
guaranty agreement did not pertain to the obligations that 17
Outlets was trying to recover, that is the money owed by HFC
under the lease. For that reason, Pham was not asserting
defenses of any kind to the guaranty agreement. The agreement
itself simply did not require him to guaranty HFC’s obligations.
4

To the extent 17 Outlets reiterates arguments about the
interrelatedness of HFC and members of the Dang family and their
ownership of the Frozurt mark, those matters were considered for
purposes of summary judgment.

A motion for reconsideration is

not an opportunity to rehash matters that have been decided.
Conclusion
For

the

foregoing

reasons,

the

plaintiff’s

motion

reconsideration (document no. 50) is denied.
SO ORDERED.

__________________________
Joseph DiClerico, Jr.
United States District Judge
October 26, 2016
cc:

James F. Laboe, Esq.
Christopher P. Mulligan, Esq.
David K. Pinsonneault, Esq.
Lisa Snow Wade, Esq.

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for