H. Hirschmann, Ltd. v. Green Mountain Glass, LLC
Filing
178
DECISION denying 167 Motion for Reconsideration. Signed by Chief Judge Geoffrey W. Crawford on 10/9/2018. (esb)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
H. HIRSCHMANN, LTD.,
Plaintiff,
V.
GREEN MOUNTAIN GLASS, LLC and
ADCO PRODUCTS, LLC d/b/a ADCO
PRODUCTS, INC.,
Defendants.
GREEN MOUNTAIN GLASS, LLC,
Third-Party Plaintiff,
V.
ADCO PRODUCTS, LLC,
Third-Party Defendant.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No.: 5:15-cv-34
DECISION ON MOTION FOR RECONSIDERATION FILED BY H. HIRSCHMANN,
LTD.
(Doc. 167)
PlaintiffH. Hirschmann, Ltd. ("Hirschmann") has filed a motion to reconsider (Doc. 167)
this court's order (Doc. 165) denying Third-Party Plaintiff Green Mountain Glass, LLC's
("GMG") motion for leave to amend its counterclaim (Doc. 158). Hirschmann seeks an order
granting GMG leave to add a claim under the New Hampshire Consumer Protection Act
("CPA"). (Doc. 167-1 at 4.)
BACKGROUND
This case concerns alleged defects in polyisobutylene or "PIB," a sealant used to
manufacture insulated windows. Third-Party Defendant ADCO Products, LLC ("ADCO") is a
1
corporation that produces sealants and adhesives, including PIB. (Doc.
37,r,r 6-7.) ADCO sold
PIB to GMG, a manufacturer of glass building materials. (Doc. 37 ,r 1.) GMG used the PIB to
build insulated window units for Hirschmann, a designer and manufacturer of custom windows
and doors. (Id.
,r 4.) Hirschmann ultimately rejected the units after noticing that the PIB dripped
or spread onto the glass.
Hirschmann initiated this case by filing contract and warranty claims against GMG.
(See Doc. 37.) GMG then filed a third-party complaint for indemnity against ADCO, claiming
breach of express and implied warranty. (See Doc. 5.) Hirschmann later settled with GMG (see
Doc. 70), and its claims against GMG were dismissed (see Doc. 89). ADCO filed a cross-claim
against GMG for implied indemnity, alleging negligence in the use of the PIB product. (Doc.
75.) In its answer, GMG renewed its express and implied warranty claims against ADCO. (Doc.
92.)
On October 6, 2017, the court ordered ADCO to disclose all customer complaints
received from the beginning of 2003 through the end of 2013 that are "relevant to this claim
including complaints of PIB which has run or dripped onto the glass or malfunctioned in a
manner substantially similar to the complaint in this case." (Doc. 129.) Pursuant to the court's
order, ADCO's served a discovery response on November 6, 2017 that included information of
24 complaints relating to PIB products.
On December 12, 2017, GMG filed a Motion for Leave to Amend its counterclaim to
include, in relevant part, 1 a claim under the New Hampshire Consumer Protection Act ("CPA").
1
GMG's motion also sought to include a claim of fraudulent concealment and a request for
enhanced compensatory damages. However, the instant motion concerns only GMG's proposed
CPA.
2
(Doc. 158.)2 GMG's proposed amended counterclaim alleged that "ADCO's PIB product was
not of the particular standard, quality, or grade represented by ADCO." (Doc. 15 8 at 9.)
According to GMG, the 24 complaints relating to PIB were a "material fact" that "ADCO
knowingly and intentionally failed to disclose." (Id. at 3.) In the proposed amendment, GMG
claimed that "ADCO's failure to disclose to Green Mountain Glass that ADCO's PIB products
were failing in the field ... was a deceptive act or practice in the conduct of commerce within
the state of New Hampshire" under the CPA. (Id. at 9.)
In a decision dated July 5, 2018 ("July decision"), this court denied GMG's motion to
amend in its entirety. 3 (Doc. 165.) The court analyzed the proposed CPA claim as follows:
New Hampshire law applies the rascality test to determine whether conduct not
specifically enumerated in the [CPA] falls within the general prohibition against
deceptive acts or practices in the conduct of commerce. See George v. Al Hoyt &
Sons, Inc., 27 A.3d 697, 705 (N.H. 2011). "Under the rascality test, the
objectionable conduct must attain a level of rascality that would raise an eyebrow
of someone inured to the rough and tumble of the world of commerce." Id. (citing
ACAS Acquisitions v. Hobert, 923 A.2d 1076, 1095 (N.H. 2007)). ADCO's
alleged failure to disclose previous customer complaints and known cases of
product failure would not raise the eyebrow of any canny business person ....
2
On its motion, Hirschmann improperly cites to the proposed amended counterclaim submitted
with GMG's reply papers (Doc. 162-2), despite no indication that the court considered this
second filing in its July decision. (See Doc. 167-1 at 3.) "It is well settled that courts should not
consider arguments first raised in a party's reply brief which afford no opportunity for response
from the opposing party." Haywin Textile Prods., Inc. v. Int'l Fin. Inv., 137 F. Supp. 2d 431,434
(S.D.N.Y. 2001) (citing Strom v. Goldman, Sachs & Co., 202 F.3d 138, 142 (2d Cir. 1999)); see
also Ruggiero v. Warner-Lambert Co., 424 F.3d 249,252 (2d Cir. 2005) (consideration of issues
raised for the first time in reply papers is within a court's discretion); JP Morgan Chase Bank v.
Altos Harnos de Mexico, SA. DEC. V, 412 F.3d 418,428 (2d Cir. 2005) (noting that arguments
raised for the first time in a reply brief are waived). ADCO's response addressed only the
allegations stated in the proposed amended counterclaim initially filed on GMG's motion to
amend. (See Doc. 159 at 7.) Accordingly, the court refers only to the proposed amended
counterclaim filed as part of GM G's motion on December 12, 2017. (Doc. 158.)
3
The July 5, 2018 decision also denied ADCO's motion for summary judgment and
Hirschmann's motion for partial summary judgment. However, Hirschmann did not move to
reconsider the court's determination of these issues.
3
(Id. at 12.) Because the proposed amended counterclaim failed to state a CPA claim on which
relief could be granted, the court denied the amendment as futile. (Id.)
The court granted a motion to extend Hirschmann's time to file a motion for
reconsideration of the July decision until July 23, 2018. (Doc. 168.) Hirschmann now moves for
reconsideration of the July decision to the extent it rejected GMG' s proposed CPA claim. (Doc.
167.)
ANALYSIS
"The standard for granting [a motion for reconsideration] is strict, and reconsideration
will generally be denied unless the moving party can point to controlling decisions or data that
the court overlooked-matters, in other words, that might reasonably be expected to alter the
conclusion reached by the court." Shrader v. CSXTransp., Inc., 70 F.3d 255,257 (2d Cir. 1995).
Reconsideration may only be granted when the moving party "identifies an intervening change
of controlling law, the availability of new evidence, or the need to correct a clear error or prevent
manifest injustice." Kole! Beth Yechiel Mechil ofTartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d
99, 108 (2d Cir. 2013) (quoting Virgin At!. Airways, Ltd. v. Nat'! Mediation Bd., 956 F.2d 1245,
1255 (2d Cir. 1992)). A motion for reconsideration "is not a vehicle for relitigating old issues ...
or otherwise taking a 'second bite at the apple[.]'" Analytical Surveys, Inc. v. Tonga Partners,
L.P., 684 F.3d 36, 52 (2d Cir. 2012), as amended (July 13, 2012) (quoting Sequa Corp. v. GBJ
Corp., 156 F.3d 136, 144 (2d Cir. 1998)).
Hirschmann bases the pending motion on a need to correct a clear error and to prevent
manifest injustice, arguing that the court erred by applying the rascality test. (Doc. 167-1 at 2.)
Hirschmann contends that the rascality test does not apply to claims arising under specific CPA
provisions. According to Hirschmann, the rascality test is inapplicable here because GMG's
4
proposed amendment alleged that the PIB "was not of the particular standard, quality, or grade
represented by ADCO" (Doc. 158 at 9), commercial conduct specifically prohibited under
subsection VII of the CPA. See N.H. Rev. Stat.§ 358:A-2(VII) (2016).
However, Hirschmann's argument does not address the court's finding that GMG's
proposed amendments alleged only that ADCO failed to disclose customer complaints relating to
PIB. (See Doc. 165 at 12-13.) Failing to inform a buyer of purported cases of product failure is
not conduct specifically enumerated by the CPA. Cf N.H. Rev. Stat.§ 358:A-2(VII) (2016).
("Representing that goods or services are of a particular standard, quality, or grade ... if they are
of another" constitutes unfair or deceptive commercial conduct) (emphasis added). In the
absence of controlling decisions or data suggesting otherwise, the court concludes that analyzing
GMG' s proposed CPA claim under the rascality test was not a clear error.
Even if the rascality test did not apply in this case, GMG's proposed counterclaim failed
to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Merely alleging a CPA
violation under a specific provision of the statute is insufficient to state a facially plausible
claim. See Kelton v. Hollis Ranch, LLC, 927 A.2d 1243, 1246 (N.H. 2007) (holding that the CPA
does not impose strict liability). "In order to state a claim under ... RSA 358-A:2, VII, a plaintiff
must allege that a defendant made a representation, with actual knowledge of its falsity or
reckless disregard for its truth, with the intent to induce the plaintiff to enter into a transaction."
Androscoggin Valley Reg'l Refuse Disposal Dist. v. R.H White Constr. Co., 2017 WL 1906612,
at *3 (D.N.H. May 8, 2017) (internal quotations and citation removed); see also Kelton, 927
5
A.2d at 1246 (finding CPA violations require "a degree of knowledge or intent"); Beer v.
Bennett, 993 A.2d 765, 769 (N.H. 2010). GMG's proposed amended counterclaim did not plead
facts indicating ADCO made any such representation. Rather, GMG alleged only that ADCO
failed to disclose previous complaints regarding PIB. Withholding customer complaints does not
support an inference that ADCO intentionally misrepresented the quality of its products to GMG.
Cf Beer, 993 A.2d at 769-70 (analyzing defendant's affirmative representations to find CPA
violation). GMG's proposed amendments therefore failed to state a claim under subsection VII
of the CPA. Because the alleged inapplicability of the rascality test would not alter the outcome
of the July decision, the court concludes that denying the proposed CPA claim as futile did not
result in manifest injustice to Hirschmann or GMG.
Finally, the court notes that Hirschmann merely reiterates the arguments raised on
GMG's initial motion to amend. (See Doc. 162 at 5 ("Since Green Mountain Glass' CPA claim is
from among those commercial actions specifically delineated in the CPA, the rascality test is
inapplicable.").) By relying exclusively on cases and data previously considered by the court,
Hirschman raises no issues that indicate the court reached the wrong conclusion by denying
GMG's proposed CPA claim. See Shrader, 70 F.3d at 257. Cf Sumner v. McCall, 103 F. Supp.
2d 555,559 (N.D.N.Y. 2000) (quoting In re C-TC 9th Ave. P'ship, 182 B.R. 1, 3 (N.D.N.Y.
1995)) ("[A]ny litigant considering bringing a motion for reconsideration must evaluate whether
what may seem to be a clear error of law is in fact simply a point of disagreement between the
Court and the litigant.").
Accordingly, Hirschmann's motion for reconsideration is DENIED.
6
CONCLUSION
For the reasons set forth above, Hirschmann's motion for reconsideration (Doc. 167) of a
motion for leave to amend GMG's counterclaim is DENIED.
Dated at Rutland, in the District of Vermont, this
j_ day of October, 2018.
Geoffrey W. Crawford, Chief Judge
United States District Court
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?