Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

H. Hirschmann, Ltd. v. Green Mountain Glass, LLC

United States District Court, D. Vermont

October 9, 2018

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.

          DECISION ON MOTION FOR RECONSIDERATION FILED BY H. HIRSCHMANN, LTD. (Doc. 167)

          GEOFFREY W. CRAWFORD, CHIEF JUDGE

         Plaintiff 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.)

         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 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.

         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"). (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. 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.)

         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 ....

(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.” 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. 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 proposed amendment alleged that the PIB "was not of the particular standard, quality, or grade represented by ADCO" (Doc. 158 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.