Behlau v. Tiger Tiger Productions, LLC

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Christopher Behlau
v. Civil No. 20-cv-350-JD
Opinion No. 2021 DNH 076
Tiger Tiger Productions, LLC
O R D E R
Christopher Behlau brought suit against Tiger Tiger
Productions, LLC (“Tiger”), a film production company, alleging
that Tiger breached the parties’ loan agreement. Tiger moved
for summary judgment on the ground that the claim was barred by
the statute of limitations, and the motion was denied. Tiger
moves for reconsideration of that order, and Behlau objects.
Standard of Review
To succeed on a motion to reconsider an interlocutory order
of the court, the moving party must “demonstrate that the order
was based on a manifest error of fact or law.” LR 7.2(d). A
motion for reconsideration will not be granted based on new
theories or old arguments that were presented previously and
rejected. Woo v. Spackman, 988 F.3d 47, 52 (1st Cir. 2021);
Caribbean Mngt. Gr., Inc. v. Erikon LLC, 966 F.3d 35, 45-46 (1st
Cir. 2020). Reconsideration is an extraordinary remedy that is
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to be used sparingly. Palmer v. Champion Mortg., 465 F.3d 24,
30 (1st Cir. 2006).
Background1
Behlau brought a breach of contract claim against Tiger,
which arose from the parties’ loan agreement. Tiger argued in
its motion for summary judgment that the parties’ loan agreement
was amended in October of 2012 to require repayment upon
commencement of filming in the project, which occurred in March
of 2013. When repayment was not made at that time, Tiger
asserted, the agreement was breached.
Based on that theory, Tiger contended that Behlau’s breach
of contract claim accrued in March of 2013 and was time barred
when the complaint was filed in March of 2020. In support,
Tiger argued that Behlau had admitted that the agreement was
amended, based on documents he sent to Tiger’s sole member,
George Butler, and statements made by Behalau’s lawyer in a
letter sent in July of 2013.
The court determined that New Hampshire statute of
limitations applied, making the limitations period three years.
The court determined that Behlau’s lawyer’s letter was not
1 Additional background information is provided in the order
denying Tiger’s motion for summary judgment. Doc. no. 27, at
*2-*5.
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admissible for purposes of summary judgment and, in any case,
did not establish that the agreement was amended to require
repayment in March of 2013. The court also reviewed the record
evidence and concluded that Tiger had not shown that the
agreement was amended. For those reasons, the court held that
the Behlau’s breach of contract claim was not time barred.
Discussion
In support of its motion for reconsideration, Tiger
contends that the court overlooked its argument that Behlau
admitted that the agreement was amended by sending documents for
an amended agreement to Butler. In addition, Tiger contends
that Behlau’s attorney’s letter was admissible to show his
admission that the agreement had been amended. Tiger also
contends that the court erred in concluding that Behlau’s letter
and attachments were an offer to amend rather than evidence of
the parties’ amended agreement.
A. Behlau’s Communications
Tiger primarily argued that Behlau’s lawyer admitted that
the agreement had been amended in a letter sent in July of 2013.
For that reason, the court focused on that version of Tiger’s
argument. To the extent the court did not sufficiently address
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Tiger’s admission argument as to Behlau’s own communications,
that theory is resolved as follows.
Tiger argued that Behlau “admitted” that the loan agreement
was amended in the letter he sent to Butler dated November 1,
2012, which asked for Butler’s signatures. In that letter,
Behlau stated that he had decided not to convert his loan into
an equity interest in Tiger and that the loan would be repaid no
later than the commencement of filming. He stated that his
decision not to convert the loan into an equity interest was
made in reliance on his agreement with Butler, as evidenced by
the promissory note that he attached.2
Importantly, however, Behlau concluded by saying: “If the
foregoing conforms with your understanding of our agreement,
please so indicate by signing the Note and this letter below.”
Doc. no. 16-1, at *1. It is undisputed that Butler never signed
either document or otherwise subsequently indicated his assent
to the amended agreement that Behlau proposed in the November 1
2 To the extent Tiger relies on Behlau’s decision not to
convert the loan into an equity interest, that option was
provided in the original agreement. Tiger has not shown how
that decision means that Behlau admitted that the original
agreement was amended. The material change proposed by Behlau
in the amended promissory note appears to be the due date of the
loan. In the original agreement, if the loan was not converted
into equity interest, repayment of the loan would be due in five
years with simple interest at a rate of 10%. In the proposed
amendment, the loan would be repaid no later than the
commencement of filming.
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letter. To the contrary, the parties’ further communications
indicate that Butler did not agree to Behlau’s proposed
amendment.
Tiger also points to an email that Behlau sent to Butler in
April of 2013. The email states Behlau’s position that they had
agreed that he would not convert his loan into equity and that
the loan would be due at the commencement of filming. In the
email, however, Behlau recounts his attempts to be repaid for
the loan and for his efforts on behalf of the Tiger project and
Butler’s failure to repay the loan and to come to terms about
Behlau’s role in the project. As such, the email does not
provide evidence that Behlau and Butler agreed to amend the
terms of the loan agreement and instead documents their ongoing
lack of agreement.
It is hard to understand Tiger’s theory that Behlau’s
attempts to obtain Butler’s written assent to the proposed
amended agreement and for other terms of his participation in
the project amounts to an admission that the loan agreement was
amended. By the same reasoning, of course, Butler’s failure to
assent, his failure to provide payment under the proposed terms,
and his subsequent denials that an amendment had occurred might
be construed as admissions by him that the agreement was not
amended. In any case, Tiger’s theory is meritless.
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Even if Behlau’s communications could be construed to be
admissions, they would be ordinary admissions that are subject
to rebuttal. The record contains ample evidence that Butler
failed to agree to the amendment that Behlau proposed. See
Order, doc. no. 27, at *12. For that reason, the communications
do not prove that the agreement was amended, and instead the
record demonstrates that at least a material factual dispute
exists on that issue, which precludes summary judgment in
Tiger’s favor based on the statute of limitations.
B. Lawyer’s Letter
Tiger argues, again, that Behlau’s lawyer’s letter sent in
July of 2013 to Tiger’s counsel as a part of settlement
negotiations is admissible as an admission.3 Tiger simply
rehashes the arguments it made previously, which were
unpersuasive then and have not gained persuasive authority for
3 Again, Tiger, which is represented by counsel, confuses
the separate issues of (1) evidence that may be admissible under
Federal Rule of Evidence 801 despite the rule against hearsay,
and (2) evidence that is not admissible under Federal Rule of
Evidence 408. In response to the motion for summary judgment,
Behlau argued and the court found that the lawyer’s letter falls
within the protection of Rule 408. Because Behlau did not
object to the admissibility of the letter on hearsay grounds for
purposes of the motion for summary judgment, Rule 801 has no
effect on its admissibility.
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purposes of reconsideration.4 In addition, as the court stated
in the previous order, even if the letter were deemed to be an
admission and also, separately, were found to be admissible
despite Rule 408, at most the lawyer’s statement would be an
ordinary admission that is subject to rebuttal. As was
addressed in the previous order, the record amply shows at least
a genuine dispute as to whether the agreement was amended.
Therefore, Tiger has not shown that summary judgment would have
been appropriate.
C. Weight of Butler’s Failure to Sign Proposed Promissory Note
Tiger argues that the court erred in finding that Butler’s
failure to sign the promissory note, which Behlau sent with his
November 1 letter, was evidence that Behlau and Butler did not
agree to amend the loan agreement. Tiger contends that the
court should have considered other communications by Behlau that
showed an amended agreement had been made and that the
promissory note was evidence of that agreement. The cited
communications, however, do not show that Butler and Behlau
4 Tiger cites cases that it did not cite in its memorandum
in support of summary judgment or in its reply, although the
cases were available at that time. The newly cited cases,
however, do not make a difference because they merely stand for
the proposition that some evidence introduced during settlement
negotiations may be admissible, which is undisputed and does not
change the outcome here.
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reached an amended agreement. Butler’s refusal to sign the
promissory note as proposed by Behlau is strong evidence that no
amended agreement was reached. Therefore, as determined in the
previous order, the record shows at least a genuine dispute of
material fact as to whether the agreement was amended. Tiger
has not shown grounds for summary judgment in its favor based on
its theory that claim arose from an amended agreement and is
time barred.
Conclusion
For the foregoing reasons, the defendant’s motion for
reconsideration (document no. 28) is denied.
SO ORDERED.
______________________________
Joseph A. DiClerico, Jr.
United States District Judge
April 20, 2021
cc: Counsel of record.
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