Hall v. Gascard et al

Filing 95

ORDER denying 56 Motion for Reconsideration re: 55 Order on Motion for Summary Judgment. So Ordered by Judge Steven J. McAuliffe.(lml)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

Andrew Hall,
Plaintiff
v.

Case No. 16-cv-418-SM
Opinion No. 2018 DNH 211

Lorettann Gascard and
Nikolas Gascard,
Defendants

O R D E R

Defendants, Lorettann Gascard and Nikolas Gascard, move the
court to reconsider its earlier order denying their motion for
summary judgment on plaintiff’s claims of fraud, conspiracy to
defraud, and unjust enrichment.

Plaintiff objects.

Before turning to the defendants’ motion, it is probably
appropriate to review the substance of the court’s prior orders.

First, by order dated June 12, 2017 (document no. 19),
the court denied defendants’ motion to dismiss
plaintiff’s unjust enrichment claim, concluding that
their motion was premature. Id. at 18. The court
acknowledged that, typically, a plaintiff cannot
recover on a theory of unjust enrichment when there is
a valid, express contract governing the subject matter
of the parties’ dispute. However, the court noted
that absent some development of the factual record, it
could not rule that, as a matter of law, plaintiff’s
claim was barred. Id. (noting that “unjust enrichment
may be available to contracting parties where the
contract was breached, rescinded, or otherwise made

invalid, or where the benefit received was outside the
scope of the contract”). Accordingly, at that early
stage of the litigation, the court allowed plaintiff
to proceed on his claims of breach of contract and
unjust enrichment, which he had pled in the
alternative.
Then, by order dated July 27, 2018 (document no. 55),
the court denied defendants’ motion for summary
judgment on plaintiff’s unjust enrichment claim,
holding only that such a claim - to the extent it is
available to plaintiff - is not barred by the
applicable statute of limitations. Expiration of the
applicable limitations period was the sole ground
advanced by plaintiffs in that motion.

Now, defendants move the court to “reconsider” that order
denying summary judgment.

Importantly, however, they advance a

legal argument that they did not assert in their earlier motion
for summary judgment: that plaintiff cannot pursue an unjust
enrichment claim because the record demonstrates (as it did not
at the motion to dismiss stage) that the grounds on which
plaintiff is suing are fully encompassed by the parties’ various
contracts for sale.

A motion to reconsider is of course not the

appropriate means by which to advance a new legal argument that
a party wished it had asserted earlier.

See, e.g., Nat'l Metal

Finishing Co. v. BarclaysAmerican/Commercial, Inc., 899 F.2d
119, 123 (1st Cir. 1990); Perfetto v. New Hampshire State
Prison, Warden, No. CIV. 06-CV-307-JL, 2008 WL 2005550, at *1
(D.N.H. May 8, 2008).

2

While their legal argument might well have merit, and may
even be conceded, it cannot be presented for the first time in a
motion to reconsider a separate and unrelated order.

Should

defendants wish the court to address the issue, they are free to
file a properly supported motion for partial summary judgment.
Otherwise, given the approaching trial date, the court will
address the issue of plaintiff’s unjust enrichment claim at or
before trial as is convenient.

The remaining issues raised in defendants’ motion for
reconsideration (addressing plaintiff’s duty to investigate,
application of the “discovery rule,” and viability of
plaintiff’s conspiracy claim) are without merit.

Conclusion
Defendants’ motion for reconsideration (document no. 56) is
denied.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
October 30, 2018
cc:

Lawrence B. Gormley, Esq.
Ted Poretz, Esq.
Jeffrey Christensen, Esq.
William B. Pribis, Esq.

3