MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2020	ME	42

Docket: Cum-19-192

Argued: December	6,	2019

Decided: April	2,	2020

Panel: MEAD,	GORMAN,	JABAR,	HUMPHREY, and	HJELM,	JJ.*

U.S.	BANK	NATIONAL	ASSOCIATION	AS	TRUSTEE	FOR	RASC	2005KS9

v.

THOMAS	MANNING

HUMPHREY,	J.

[¶1]		U.S.	Bank	National	Association	as	Trustee	 for	RASC	2005KS9	(the	

Bank),	 appeals	 from	 a	 judgment	 of	 the	 Superior	 Court	 (Cumberland	 County,	

Wheeler,	 J.)	 granting	 Thomas	 Manning’s	 motion	 for	 reconsideration	 and	

dismissing	 with	 prejudice	 the	 Bank’s	 foreclosure	 complaint.	 	 The	 Bank	 also	

appeals	 from	 an	 order	 of	 sanctions	 imposed	 by	 the	 court	 (L. Walker,	 J.)	

following	a	judicial	settlement	conference.		

[¶2]	 	 The	 procedural	 record	 of	 this	 case	 stretches	 back	 to	 2010 and	

includes	 one	 prior	 appeal	 in	 which	 we	 vacated	 the	 trial	 court’s	 judgment	

 *	 	 Although	 Justice	 Alexander	 participated	 in	 the	 appeal,	 he retired	 before	 this	 opinion	 was	

certified.		

									Justice	Hjelm	sat	at	oral	argument	and	participated	in	the	initial	conference	while	he	was	an	

Associate Justice,	 and,	 on	 order	 of	 the	 Senior	 Associate Justice,	 was	 authorized	 to	 continue	 his	

participation	in	his	capacity as	an	Active	Retired	Justice.
2

dismissing	the	Bank’s	foreclosure	complaint	with	prejudice.		See	U.S.	Bank	Nat’l	

Ass’n	v.	Manning	(Manning	I),	2014	ME	96,	¶¶	1,	20,	97	A.3d	605.		In	this	appeal,	

we	are	 asked	 again	 to	determine	whether	 the	court	 abused	its	 discretion	by	

dismissing	with	prejudice	the	Bank’s	foreclosure	complaint.		After	review,	we	

affirm	 the	 sanctions	 imposed	 by	 the	 court	 (L.	 Walker,	 J.)	 following	 the	

settlement	conference	and	vacate	the	court’s (Wheeler,	J.)	judgment	dismissing	

the	Bank’s	complaint	with	prejudice.		We	remand	the	matter	with	instructions

to	dismiss	the	Bank’s	foreclosure	complaint	without prejudice.

I.		BACKGROUND

A. Foreclosure	Complaint	and	Prior	Appeal

[¶3]		On	August	2,	2005, Manning	signed	a	promissory	note	in	the	amount	

of	$520,000	listing	Mortgage	Lenders	Network USA,	Inc., as	the	lender, and,	in	

order	 to	 secure	 the	 note,	 executed	 and	 delivered	 a	 mortgage	 to	 Mortgage	

Electronic	Registration	Systems,	Inc.,	as	the	nominee	of	the	lender.		On	May	24,	

2010,	 the	 Bank	 filed	 a	 complaint	 for	 foreclosure	 against	 Manning,	 and it

amended	the	complaint	on	July	15,	2010.		

[¶4]	 	 More	 than	 three	 years	 after	 the	 complaint	 was	 filed,	 the	 court	

(Wheeler,	J.)	dismissed	the	Bank’s	complaint	with	prejudice	because	the	Bank	

had failed	 to	 timely	 pay	 a	 $150	 sanction.	 	 See	 Manning	 I,	 2014	 ME	 96,	 ¶	 3,	
3

97 A.3d	605	(chronicling	the	previous	pre-trial	history	of	this	case).		Following	

the	 Bank’s	 timely	 appeal,	 we	 held	 that	 the	 court	 abused its	 discretion	 in	

dismissing	 the	 complaint,	 vacated	 the	 judgment,	 and	 remanded	 the	 case	 for	

further	proceedings.		See	id. ¶¶	14-20.

B. Proceedings	After	Remand

1. Initial	Proceedings	Following	Remand

[¶5]	 	Upon	 remand,	 the	 court	 held	 a	 status	 conference	 on	October	 14,	

2014,	 set	 a	 discovery	 deadline	 of	 March	 6,	 2015,	 and	 scheduled	 a	 judicial	

settlement	 conference to	 be	 held “in	 March	 including	 [a]	 Bank	 official	 with	

authority	to	settle.”		On	February	3,	2015,	the	Bank—to	address	the	issue	of	its	

standing	in light	of	our	decision	in	Bank	of	America,	N.A.,	v.	Greenleaf,	2014	ME	

89,	 96	 A.3d	 700—filed	 a	 motion	 to	 amend	 its	 complaint	 and	 to	 stay	 the	

foreclosure	 proceeding.	 	 Manning	 opposed	 the	 Bank’s	 motion	 and,	 instead,	

moved	for	summary	judgment	because	the	Bank	lacked	standing	to	foreclose.		

See M.R.	Civ.	P.	56.		The	Bank	opposed	the	motion	for	summary	judgment	and	

moved	to	voluntarily	dismiss	its	complaint	without	prejudice.1		See M.R.	Civ.	P.	

41(a)(2).		Manning	opposed	the	requested	dismissal.		

 1		In	its	motion,	the	Bank	acknowledged	that the	originating	lender,	Mortgage	Lenders	Network

USA,	Inc.,	was	no	longer	in	business	and	requested	that,	in	light	of	our	decisions	in	Bank	of	America,	
4

[¶6]		On	June 1,	2015,	the	court	entered	an	order	addressing	the	parties’

pending	 motions.	 	 First,	 the	 court	 denied	 Manning’s	 motion	 for	 summary	

judgment,	 reasoning	 that,	because	it	 “lack[ed]	 subject	matter	jurisdiction,” it	

could	not	enter	a	final	judgment	on	the	merits	of	the	Bank’s	complaint.		Second,	

the	 court	 granted	 the	 Bank’s	 motion	 to	 voluntarily	 dismiss	 its	 complaint	

without	prejudice.2		

[¶7]	 	 Two	 weeks	 later,	 on	 June	 15,	 Manning	 filed	 a	 motion	 for	

reconsideration	of	the	court’s	order,	which	the	Bank	opposed.		See M.R.	Civ.	P.	

7(b)(5).		Manning	argued	that	the	court’s	June 1	order	incorrectly	implied	that	

the	court	had	heard	oral	argument	from	the	parties, and	he	asserted	that	the	

court	had	subject	matter	jurisdiction	over	all	residential	foreclosures.		

[¶8]	 	 On	 July	 1,	 2015,	 Manning	 filed	 a	 letter	 alerting	 the	 court	 to	 the	

then-pending	appeal	in Bank	of	America	v.	Greenleaf,	2015	ME	127,	124	A.3d	

1122 (Greenleaf	 II),	 and	 suggested that,	 because	 the	 anticipated	 decision	 in	

Greenleaf	II “may	address	or	inform	the	question	posed	here:	whether	a	lack	of	

standing	removes	subject	matter	jurisdiction,”	the	court	stay	all	briefing	on	his	

 

N.A.,	v.	Greenleaf,	2014	ME	89,	96	A.3d	700 and CitiMortgage,	Inc.	v.	Chartier,	2015	ME	17,	111	A.3d	

39,	the	complaint	be	dismissed	without	prejudice.		

2		In	its	order,	the	court	also	declined	to	award	costs	or	fees	to	Manning.		
5

motion	 to	 reconsider	until	a	decision	in	Greenleaf	 II was	issued.		On	 July	16,	

2015,	the	court	granted	the	parties’ joint	motion	to	stay	further	proceedings	on	

the	motion	for	reconsideration	until	thirty	days	after	the	decision	in	Greenleaf II

was	issued.		

[¶9]		We	issued	our	decision	in	Greenleaf	II on	September	22,	2015.		

[¶10]		On	October	15,	2015,	the	court	granted	Manning’s	“consented-to”	

motion	 to	continue	 the	stay	until	November	6,	2015.		A	week	later,	 the	court	

ordered	that	a	judicial	settlement	conference	be	set	for	“early	December”	and	

that	the	case	remain	stayed	until	after	the	settlement	conference.		

[¶11]		On	December	4,	2015,	Manning	requested	a	conference	with the	

court	and	counsel for	the	parties.		On	February	26,	2016,	the	Bank	objected	to	

Manning’s	 request	 and	 moved	 to	 lift	 the	 July	 16,	 2015,	 stay	 on	 Manning’s	

motion	for	reconsideration.		The	Bank	pointed	out that	it	had	been	eight	months	

since	Manning	filed	his	motion	and	five	months	since	the	decision	in	Greenleaf	

II was	issued.		Manning	opposed	the	Bank’s	motion	to	lift	the	stay.		

[¶12]		Four	months	later,	on	July	13,	2016,	the	Bank	filed	a	letter	with	the	

court,	inquiring	about	the	status	of	the	pending	motions	regarding	Manning’s	

request	for	a	conference	and	the	Bank’s	motion to	lift	the	July	16,	2015,	stay.		
6

On	July	25,	2016,	the	court	ordered	that	a	settlement	conference	be	scheduled	

“within	the	next	sixty	days.”		

2. Judicial	Settlement	Conferences

[¶13]	 	 On	 September	 23,	 2016,	 the	 court	 (L. Walker,	 J.)	 conducted	 a	

settlement	 conference	 with	 the	 parties,	 but the	 case	 was	 not	 settled.3	 	 On	

October	 12,	 2016,	 the	 same	 judge	 who	 had	 served	 as	 the	 mediator held	 a	

follow-up	telephone	conference	with	counsel, after which	the	court	ordered	the	

parties	to	brief	the	issues	addressed	during	the	telephone	conference,	including	

whether	 the	 Bank had “complied	 with	 the	 court’s	 order	 to	 have	 present	 all	

persons	 with	 full	 settlement	 authority	 who	 [were]	 prepared	 to	 make	

reasonable	concessions.”		

[¶14]	 	 On	 November	 18,	 2016,	 Manning	 filed	 a	 motion	 for	 contempt	

against	the	Bank for	its	conduct	at	the	settlement	conference,	arguing	that	the	

Bank	had	“fail[ed]	to	produce	a	representative	with	authority	to	settle,”	made	

misrepresentations	 to	 the	 court,	 and	 failed	 to	 negotiate	 in	 good	 faith.	 	 On	

April 11,	2017,	the	court	ordered	the	parties	to	“negotiate	fastidiously	in	good	

 3		In	an	order	entered	on	July	20,	2018,	the	court	stated	that,	at	the	settlement	conference,	“the	

Bank	represented	to	the	court that	better	terms	could	not	be	offered	unless	the	[pooling	and	servicing	

agreement]	was	 reformed.	 [The]	 court	 relied	 on	 the	 Bank’s	 representations	 and	 terminated	 the	

[settlement	conference] without	reaching	[a]	settlement.”		
7

faith”	 in	 order	 to	 resolve	 all	 claims	 and,	 if	 no	 agreement	 was	 reached	 by	

April 28,	 the	 court	 would	 hold	 a	 one-day	 testimonial	 hearing	 on	 Manning’s	

motion	for	contempt.4		

[¶15]		On October	6,	2017,	Manning	filed	a	renewed	motion	for	contempt,	

arguing	 that	 the	 court	 should	 dismiss	 the	 Bank’s	 foreclosure	 complaint	with	

prejudice	 “or,	 in	 the	 alternative,	 hold	 the	 Bank	 in	 contempt	 and	 impose	

sanctions.”		The	court	held	a	hearing	on	the	motion	on	February	9,	2018,	and	

conducted	a	second	judicial	settlement	conference	on	May	18,	2018.		

[¶16]		On	July	20,	2018,	the	court	granted	Manning’s	motion	for	contempt	

and	imposed	sanctions	on	the	Bank,	ordering	it	to	pay	Manning’s	attorney	fees	

and	 costs	 “associated	 with	 preparation	 for	 and	 attendance	[at] both	Judicial	

Settlement	Conferences.”		The	court	found	that	the	Bank had “failed	to	comply	

with	 the	 court’s	 order	 regarding	 the	 judicial	 settlement	 conference,	 despite	

having	the	ability	to	do	so.”		The	court	“stop[ped]	short”	of	dismissing	the	case	

with	prejudice,	and	left	it	to	the	trial	court	to	“consider	the	[Bank’s]	conduct	.	.	.	

 4 On	May	12,	2017,	the	Bank	filed	a	motion	to	vacate	the	court’s	April	11,	2017,	order,	arguing	

that	 “the	 foreclosure	 action	is	 non-justiciable	 [because]	 the	 court	 relinquished	its	 subject	matter	

jurisdiction	over	the	parties	and	the	claims	by	 the	entry	of	the	 June	1,	2015,	order	dismissing	the	

case.”		On	September	8,	2017,	the	court	denied	the	Bank’s	motion.		
8

during	 the	 course	 of	 the	 litigation	 generally	 as	 to	 whether	 dismissal	 with	

prejudice	is	justified	as	a	final	disposition”	of	the	case.5		

[¶17]		By	this	time,	it	had	been	more	than	three	years	since	the	court’s	

June 1,	 2015,	 order	 dismissing	 the	 Bank’s	 foreclosure	 complaint	 without	

prejudice	and	Manning’s	subsequent	June	15,	2015,	motion	for	reconsideration.		

3. Motion	to	Reconsider the June	1,	2015,	Order

[¶18]	 	 On	 September	 11,	 2018,	 Manning	 filed	 a	 motion	 to	 set	 a	 final	

briefing	 schedule	 on	 his	 pending	 motion	 for	 reconsideration	 and	 motion	 to	

extend	the	existing	stay,	which	had	been	in	effect	since July	16,	2015.		The	court	

(Wheeler,	J.)	 granted	 the	motion	 to	 continue	 the	 stay	 and	 set	 a	 final	 briefing	

schedule.		On	January	17,	2019,	Manning	filed	a	brief	in	support	of	his	pending	

motion	 for	reconsideration,	requesting	 that	 the	court	dismiss	 the	 foreclosure	

complaint	with	prejudice	and	award	Manning	attorney	fees.		In	response,	the	

Bank	argued	that	the	court	should	not	rely	on	the	events	that	occurred	after	the	

June	 1,	 2015,	 dismissal	 without	 prejudice	 when	 evaluating	 the	 motion	 for	

reconsideration.		

 5		On	July	31,	2018,	the	Bank	filed	a	motion	to	reconsider	the	court’s	July	20	order,	arguing	that	

the	court	erred	in	imposing	sanctions	on	the	Bank for	a	period	of	time	in	which	Manning	refused	to	

compromise.		The	court	denied	the	motion	on	August	30.		
9

[¶19]	 	 On	 April	 24,	 2019,	 the	 court	 granted	 Manning’s	 June	 15,	 2015,	

motion	to	reconsider	the	court’s	June	1,	2015,	order.		The	court	dismissed	with	

prejudice	the	Bank’s	foreclosure	complaint	as	a	sanction	for	the	Bank’s	failure	

to	cooperate	with	discovery	requests,	disregard	of	court	orders,	and	conduct	at	

the	judicial	settlement	conference,	and	also	awarded	Manning	his	attorney	fees	

from	 July	19,	2018—the	date	 the	Bank	was	 sanctioned	 for	its	conduct	at	 the	

judicial	settlement	conferences—to	the	conclusion	of	the	case.		

[¶20]	 	 The	 Bank	 then	 filed	 a	 timely	 notice	 of	 appeal.	 	 See M.R.	 App.	 P.	

2B(c)(2).

II.		DISCUSSION

[¶21]		 The	 Bank	contends	 that	 the	court	abused	its	 discretion	when	it	

(1) required	the	parties	to	participate	in	a	settlement	conference	after	staying	

Manning’s	 motion	 for	 reconsideration,	 (2)	 imposed	 sanctions	 on	 the	 Bank	

following	 the	 settlement	 conference,	 and	 (3)	 granted	 the	 motion	 for	

reconsideration	and	dismissed	the	foreclosure	complaint	with	prejudice.		We	

address	each	in	turn.
10

A. Judicial	Settlement	Conference

1. Orders	to	Hold	a	Settlement	Conference

[¶22]		The	Bank	argues	that	the	court	abused	its	discretion	by	extending	

the	July	16,	2015,	stay	on	Manning’s	motion	for	reconsideration	and	“forcing”	

the	Bank	to	participate	in	the	judicial	settlement	conference.		We	review	court	

orders	 supervising	 and	 managing	 proceedings	 for	 an	 abuse	 of	 discretion.		

See Geary	v.	Stanley,	2007	ME	 133,	¶	12,	931	A.2d	 1064;	see	 also M.R.	Civ.	P.	

16(a)-(b).	 	 “The	 touchstone	 of	 determining	 whether	 the	 court	 has	 properly	

exercised	its	discretion	is	whether	in	a	given	case	that	discretion	is	exercised	in	

furtherance	of	justice.”		Unifund	CCR Partners v.	Demers,	2009	ME	19,	¶	8,	966	

A.2d	400 (alterations	omitted) (quotation	marks	omitted).	

[¶23]		Here,	upon	remand	in	2014,	the	court	ordered	the	parties	to	attend	

a	settlement	conference.		See M.R.	Civ.	P.	16(b).		A	settlement	conference	was	

not	 held	 because,	 in	 part,	 the	 Bank	 filed	 a	 motion	 to	 voluntarily	 dismiss	 its	

complaint	without	prejudice,	which	was	granted	by	 the	court. Manning	then	

filed	a	motion	for	reconsideration	of	the	dismissal	and,	at	the	parties’ request,	
11

the	 court	 stayed Manning’s	 motion	 in	 anticipation	 of	 our	 decision	 in	

Greenleaf II.

6		

[¶24]		During	 this	stay,	 the	court	again	 ordered	 the	parties	 to	attend	a	

settlement	conference and	 extended	 the	 stay	 until	 after	 that	conference	was	

held.		A	settlement	conference	eventually	took place	on	September	23,	2016;	

however,	 it	 was	 unsuccessful	 and,	 on	 November 18,	 2016,	 Manning	 filed	 a	

motion	 for	 contempt	 based	 on	 the	 Bank’s	 alleged	 conduct	 at	 the	 settlement	

conference.		This	was	followed	by	a	hearing	on	Manning’s	motion	for	contempt	

and	a	second	unsuccessful	settlement	conference.		

[¶25]		In	the	circumstances	of	this	case,	where	Manning	filed	a	motion	for	

reconsideration	and	the	parties	then	both	agreed	to	stay	further	proceedings	

on	that	motion, the court’s	decision	to	require	the	parties	to	attend	a	settlement	

conference	 was	 “exercised	 in	 furtherance	 of	 justice,”	 Unifund	 CCR Partners,	

2009	ME	19,	¶	8,	966	A.2d	400,	and,	thus,	was	not	an	abuse	of	discretion.7

 6 Manning’s motion	for	reconsideration,	which	we	treat	as	a	motion	to	alter	or	amend	a	judgment,

see	Arsenault	v.	Arsenault,	2008	ME	75,	¶	5,	946	A.2d	412;	M.R.	Civ.	P.	59(e),	“suspend[ed] the	finality	

of	the	initial	judgment	and	defer[red]	the	running	of	the	appeal	period,” Most	v.	Most,	477	A.2d	250,	

258 n.12 (Me.	1984).

7 Although	we	 do	 not	 take	issue	with	 the	 court’s	 decision	 to	 require	 a	 settlement	 conference

during	the	stay,	the	court’s	management	of	this	case,	in	general, did	not	comport	with	“the	overall	

purpose	 of	 the	 [Maine]	 Rules	 of	 Civil	 Procedure,	 which	 is	 to	 ensure	 the	 speedy	 and	inexpensive	

resolution	of	a	case.”		Merrifield	v.	Hadlock,	2009	ME	1,	¶	6,	961	A.2d	1107 (discussing	a	pretrial	

scheduling	order);	see M.R.	Civ.	P.	1.
12

2. Sanctions	Imposed	at	Settlement	Conference

[¶26]	 	 The	 Bank	 also	 challenges	 the	 sanctions	 imposed	 by	 the	 court	

(L. Walker,	 J.)	 following	 the	 settlement	 conference,	 arguing	 that	 the	 court	

abused	its	discretion	when	it	attempted	“to	force	[the	Bank]	to	settle	and	accept	

Manning’s	settlement	demands.”		We	review	a	court’s	imposition	of	sanctions	

for	an	abuse	of	discretion.		See	Bayview	Loan	Servicing,	LLC v.	Bartlett,	2014	ME	

37,	¶	10,	87	A.3d	741.		

[¶27]		A	court	may	conduct	a	settlement	conference	and	direct	the	parties	

to	appear	and	“participate	in	good	faith.”		M.R.	Civ.	P.	16(b).		If	a	party	fails	to	

comply	with	a	pretrial	rule	or	order,	a	court	may	impose	“such	sanctions	as	the	

circumstances	 warrant,”	 including	 a	 dismissal	 of	 the	 action	 or	 an	 award	 of	

attorney	fees.		M.R.	Civ.	P.	16(d).		“Although	the	court	cannot	force	a	settlement	

on	the	parties,	the	failure	to	negotiate	in	good	faith	may	lead	to	an	abuse	of	the	

litigation	process	and	be	sanctionable.”		Chiappetta	v.	LeBlond,	544	A.2d	759,	

761	(Me.	1988) (citation	omitted).		A	court	also	has	“the	inherent	authority to	

sanction	a	party’s	failure	to	comply	with	the	rules.”		Baker’s	Table,	Inc.	v.	City	of	

Portland,	2000	ME	7,	¶	16,	743	A.2d	237;	see	Green	Tree	Servicing,	LLC v.	Cope,	

2017	 ME	 68,	 ¶	 18,	 158	 A.3d	 931 (stating	 that	 even	 when	 a	 plaintiff	 lacks	
13

standing,	 a	 “court	 is	 not	 divested	 of	 its	 inherent	 authority	 to	 dismiss	 the	

complaint	with	prejudice	as	a	sanction	for	misconduct”).

[¶28]		When	imposing	sanctions,	a	court	must	consider	certain	factors,	

including	“(1)	the	purpose	of	the	specific	rule	at	issue;	(2)	the party’s	conduct	

throughout	 the	 proceedings;	 (3)	 the	 party’s	 basis	 for	 its	 failure	 to	 comply;	

(4) prejudice	to	other	parties;	and	(5)	the	need	for	the	orderly	administration	

of	justice.”		Bayview	Loan	Servicing,	LLC,	2014	ME	37,	¶	12,	87	A.3d	741.

[¶29]		In	this	case,	the	court	possessed	the	authority	to	impose	sanctions	

on	 the	 Bank	 for	 its	 conduct	 at	 the	 settlement	 conference.	 	 See Green	 Tree	

Servicing,	LLC,	2017	ME	68,	¶	18,	158	A.3d	931;	Baker’s	Table,	Inc.,	2000	ME	7,	

¶	16,	743	A.2d	237.		At	the	February	9,	2018,	hearing	on	Manning’s	motion	for	

sanctions,	the	court	found,	and	the	Bank	acknowledged,	that	the	Bank	had	failed	

to	ensure	that a	person	with	“full	authority”	to	settle	attended the	settlement	

conference.	 	 Therefore,	 the	 court	 did	 not	 abuse	 its	 discretion	 in	 imposing	

sanctions	for	the	Bank’s	conduct	during	the	settlement	conference.		See Bayview	

Loan	Servicing, LLC,	2014	ME	37,	¶	23,	87	A.3d	741.

B. Motion	for	Reconsideration

[¶30]		 The	 Bank	contends	 that	 the	court	abused	its	 discretion	when	it	

granted	Manning’s	motion	 for	reconsideration	and	dismissed	 the	 foreclosure	
14

complaint	with	prejudice,	arguing	 that	 the	court	improperly	relied	on	events	

that	occurred	after	it	entered	the	original	dismissal	order	on	June	1,	2015.		

[¶31]	 	 Manning’s	 motion	 for	 reconsideration	 was	 filed	 pursuant	 to	

Rule 7(b)(5)	 of	 the	 Maine	 Rules	 of	 Civil	 Procedure	 and	 was	 directed	 at	 the	

court’s	original	 June	1,	2015,	order,	which	both	denied	Manning’s	motion	 for	

summary	judgment	and	granted	the	Bank’s	motion	to	voluntarily	dismiss	the	

foreclosure	action	without	prejudice.	 To	the	extent	that	Manning’s	motion	for	

reconsideration	challenged	the	court’s	order	denying	his	motion	for	summary	

judgment,	we	treat	it	as	a	motion	to	reconsider	the	court’s	order	in	accordance	

with	 Rule	 7(b)(5);	 however,	 to	 the	 extent	 that	 Manning’s	 motion	 sought	 a	

reconsideration	 of	 the	 court’s	 judgment dismissing	 the	 complaint	 without	

prejudice,	we	treat	his	motion	for	reconsideration	as	a	motion	to	alter	or	amend	

the	judgment.8		See	Arsenault	v.	Arsenault,	2008	ME	75,	¶	5,	946	A.2d	412;	M.R.	

Civ.	P.	59(e);	see	also Geary	v.	Stanley	Med.	Research	Inst.,	2008	ME	9,	¶ 10,	939	

 8		See M.R.	Civ.	P.	7,	Advisory	Committee’s	Notes	May	1,	2000	(“A	new	subdivision	(b)(5)	is	added	

to	 address	 the	 continuing	 confusion	 about	 motions	 for	 reconsideration.	 A	 corresponding	

amendment	has	been	made	to	Rule	59	to	provide	explicitly	that	a	motion	to	reconsider	a	judgment	is	

a	Rule	59	motion	 to	alter	or	amend	 the	judgment.”);	M.R.	Civ.	P.	59,	Advisory	Committee’s	Notes	

May 1,	 2000	 (“Rule	 59(e)	is	 amended	 to	 add	 a	 new	 last	 sentence	 making	 clear	 that	 a	 motion	 to	

reconsider	the	judgment	is	a	motion	to	alter or	amend	the	judgment,	thereby	removing	confusion	as	

to	whether	the	appeal	period	is	suspended	until	the	court	can	dispose	of	the	motion.”).
15

A.2d	86 (stating	that	a	denial	of	a	motion	for	summary	judgment	is	not	a	final	

judgment).

[¶32]		We	 review for	an	 abuse	 of	discretion a	court’s	 ruling	 on	both	 a	

motion	 for	 reconsideration	 of	 an	 order	 and	 a	 motion	 to	 alter	 or	 amend	 a	

judgment.		See Green	Tree	Servicing,	LLC,	2017	ME	68,	¶	12,	158	A.3d	931;	Shaw	

v.	Shaw,	2003	ME	153,	¶	7,	839	A.2d	714.		In	each	instance,	our	review	for	an	

abuse	of	discretion	“involves	 three	questions:	(1)	whether	 the	court’s	 factual	

findings	 are	 supported	 by	 the	 record	 according	 to	 the	 clear	 error	 standard,	

(2) whether	 the	 court	 understood	 the	 law	 applicable	 to	 the	 exercise	 of	 its	

discretion,	 and	 (3)	 whether	 the	 court’s	 weighing	 of	 the	 applicable	 facts	 and	

choices	was	within	the	bounds	of	reasonableness.”		Green	Tree	Servicing,	LLC,	

2017	ME	68,	¶	12,	158	A.3d	931.

[¶33]	 	 We	 also	 “closely	 review” for	 an	 abuse	 of	 discretion a	 court’s	

dismissal	with	prejudice	of	a	 foreclosure	complaint.		Manning	 I,	2014	ME	96,	

¶ 12,	97	A.3d	605.	“Due	to	the	severity	of	dismissal	.	.	.	and	the	constitutional	

implications	of	such	an	action	.	.	.	the	trial	court’s	discretion	in	imposing	[this]	

ultimate	sanction	is	narrow	indeed	and	will	be	given	close	scrutiny	on	appeal.”		

Id. (quotation	marks	omitted).
16

[¶34]		A	motion	for	reconsideration	of	an	order	“shall	not	be	filed	unless	

required	 to	bring	 to	 the	court’s	attention	an	error,	omission	or	new	material	

that	 could	 not	 previously	 have	 been	 presented.”	 	 M.R.	 Civ.	 P.	 7(b)(5).		

“Rule 7(b)(5)	 is	 intended	 to	 deter	 disappointed	 litigants	 from	 seeking	 ‘to	

reargue	 points	 that	 were	 or	 could	 have	 been	 presented	 to	 the	 court	 on	 the	

underlying	 motion.’”	 	 Shaw,	 2003	 ME 153,	 ¶	 8,	 839	 A.2d	 714	 (quoting	 M.R.	

Civ. P.	7,	Advisory	Committee’s	Notes	(May	1,	2000));	see	Roalsvik	v.	Comack,	

2019	 ME	 71,	 ¶	 3,	 208	 A.3d	 367 (affirming	 the	 denial	 of	 a	 motion	 for	

reconsideration	 when	 the	 motion	 presented	 “allegations	 of	 events	 that	

occurred	only	after	the	hearing	was	held	and	the	record	was	closed”).

[¶35]		Similarly,	when	ruling	on	a	motion	to	alter	or	amend	a	judgment,	a	

court	is	“free	within	a	very	limited	time	period	to	alter	or	amend	its	judgment	

when	convinced	it	was	erroneous,	and	 substitute	 the	proper	judgment	in	its	

place.”		Most	v.	Most,	477	A.2d	250,	258	(Me.	1984).		When	doing	so,	a	court	“is	

not	 free	 to	 litigate	 anew	 .	 .	 .	 [and]	 may	 only	 re-examine	 those	 facts	 already	

presented	 to	determine	whether	an	error	 of	law	 or	 fact	has	 taken	 place	and	

whether	substantial	justice	has	been	rendered.”		Id. at	260;	see	Perez	v.	Lorraine	

Enters.,	769	F.3d	23,	32	(1st	Cir.	2014) (stating	that	Fed.	R.	Civ.	P.	59(e)	“does	
17

not	permit	a	party	to	turn	back	the	clock,	erase	the	record,	and	try	to	reinvent	

its	case	after	an	adverse	judgment	has	entered”).

[¶36]	 	 Here,	 in	 granting	 the	 motion	 for	 reconsideration,	 the	 court	

reasoned	that	its	dismissal	of	the	Bank’s	foreclosure	complaint	with	prejudice	

was	warranted	by	the	Bank’s	failure	to	cooperate	in	discovery,	its	unwillingness	

to	 follow	 court	 orders,	 and	 its	 failure	 to	 negotiate	 in	 good	 faith	 during	 the	

judicial	settlement	conference	process,	which	occurred	after	the	order	that	was	

being	reconsidered.		Much	of	this	conduct	was	already	addressed	following	the	

settlement	conference	when	the	court	(L. Walker,	J.)	sanctioned	the	Bank	for	its	

failure	to	follow	court	orders	or	negotiate	in	good	faith.		In	effect,	two	different	

judges	sanctioned	the	same	party	for	the	same	alleged	misconduct.

[¶37]		The	trial	court (Wheeler,	J.) abused	its	discretion	in	both	granting	

Manning’s	 motion	 for	 reconsideration	 and	 imposing	 sanctions	 on	 the	 Bank,	

which	included	a	dismissal	with	prejudice	of	the	Bank’s	foreclosure	complaint.		

As	such,	we	remand	the	matter	to	the	trial	court	with	instruction	to	dismiss	the	

Bank’s	 complaint	 without prejudice,	 in	 accordance	 with	 the	 court’s	 original	

June 1,	2015,	order.		

The	entry	is:

Order imposing	 sanctions for	 conduct at	

settlement	 conference	 affirmed.	 	 Judgment	
18

imposing	 sanctions	 and	 dismissing	 complaint	

with	prejudice	vacated.		Remanded	for	trial	court	

to	 dismiss	 the	 Bank’s	 foreclosure	 complaint	

without	prejudice.	

Brett	L.	Messinger,	Esq. (orally),	and	Elizabeth	M.	Lacombe,	Esq.,	Portland,	for	

appellant	US	Bank	NA

Kelly	 W.	 McDonald,	 Esq. (orally),	 Murray,	 Plumb	 &	 Murray,	 Portland,	 for	

appellee	Thomas	Manning

Cumberland	County	Superior	Court	docket	number	RE-2011-20

FOR	CLERK	REFERENCE	ONLY