United States District Court, D. Vermont
H. HIRSCHMANN, LTD., Plaintiff,
GREEN MOUNTAIN GLASS, LLC and ADCO PRODUCTS, LLC d/b/a ADCO PRODUCTS, INC., Defendants. GREEN MOUNTAIN GLASS, LLC, Third-Party Plaintiff,
ADCO PRODUCTS, LLC, Third-Party Defendant.
DECISION ON MOTION FOR RECONSIDERATION FILED BY H.
HIRSCHMANN, LTD. (Doc. 167)
GEOFFREY W. CRAWFORD, CHIEF JUDGE
H. 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.)
case concerns alleged defects in polyisobutylene or
"PIB," a sealant used to manufacture insulated
windows. Third-Party Defendant ADCO Products, LLC
("ADCO") is a corporation that produces sealants
and adhesives, including PIB. (Doc. 37 ¶¶ 6-7.)
ADCO sold PIB to GMG, a manufacturer of glass building
materials. (Doc. 37 ¶ 1.) GMG used the PIB to build
insulated window units for Hirschmann, a designer and
manufacturer of custom windows and doors. (Id.
¶ 4.) Hirschmann ultimately rejected the units after
noticing that the PIB dripped or spread onto the glass.
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.)
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.
December 12, 2017, GMG filed a Motion for Leave to Amend its
counterclaim to include, in relevant part,  a claim under the
New Hampshire Consumer Protection Act ("CPA").
(Doc. 158.) GMG's proposed amended counterclaim
alleged that "ADCO's PIB product was not of the
particular standard, quality, or grade represented by
ADCO." (Doc. 158 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.)
decision dated July 5, 2018 ("July decision"), this
court denied GMG's motion to amend in its
entirety. (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 ....
(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.
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.)
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.” Kolel Beth Yechiel Mechil of Tartikov,
Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 108 (2d Cir.
2013) (quoting Virgin Ail. Airways, Ltd. v. Nat 7
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.
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 proposed amendment alleged that the PIB "was
not of the particular standard, quality, or grade represented
by ADCO" (Doc. 158 ...