UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Samuel J. Bourne

v. No. 05-cv-365-JD

Town of Madison et al.

PROCEDURAL ORDER

The court held a telephonic scheduling conference with the

parties on May 3, 2007. The court opened the discussion by

observing that scheduling conflicts necessitate a continuation of

the trial currently scheduled for the two-week period beginning

on May 15, 2007. At the court’s urging, the parties next

discussed the defendants’ pending motion to dismiss or stay

proceedings pending the resolution of a consolidated state action

in the Carroll County Superior Court. See Bedrock Realty Trust

v. Town of Madison, Nos. 03-E-0061, 0114, 0144; 05-E-0014. The

parties stated that Judge Fitzgerald held a trial in that case,

which concluded on March 15, 2007, and that they are awaiting the

court’s decision. The parties agreed that the state court ruling

could impact upon the resolution of some of the issues in this

case and may also influence their settlement negotiations.

In light of these circumstances, the parties agreed to a

stay of the trial in this case pending a final judgment by the

superior court in the consolidated state cases. Both parties

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1As of today, the following motions are pending and are ripe

for resolution: defendants’ motion for summary judgment

(document no. 25); plaintiff’s motion in limine to exclude

evidence relating to a domestic dispute (document no. 35);

defendants’ motion in limine to exclude evidence relating to the

revocation of building permits, etc. (document no. 40);

defendants’ motion in limine to exclude evidence relating to road

maintenance (document no. 41); defendants’ motion in limine to

exclude the expert testimony of Ronald Rice (document no. 42);

and defendants’ motion to dismiss (document no. 76). 

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indicated, however, that they are eager to come to a final

resolution of this case. Therefore, both parties agreed with the

court’s proposal that it should proceed to rule on all pending

motions.1 Nevertheless, because aspects of the superior court

decision may be relevant to issues in this case, the court agreed

to waive the ordinary rules for filing a motion to reconsider,

see LR 7.2(e); Fed. R. Civ. P. 59(e), 60(b), with respect to any

ruling on a motion pending today, if that ruling predates the

superior court’s entry of judgment. To the extent a party

believes that a ruling of this court, on a motion now pending, is

inconsistent with a subsequent decision of the superior court in

the consolidated state action, that party may file a motion to

reconsider within thirty days of the superior court’s order

entering judgment.

Finally, the court noted that, although the defendants have

asked for summary judgment on all of the plaintiff’s claims,

their summary judgment memoranda have not provided argumentation

Case 1:05-cv-00365-JD Document 93 Filed 05/03/07 Page 2 of 3
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specifically addressing the plaintiff’s state constitutional

claims. Accordingly, the court directed the defendants to file a

supplemental memorandum addressing those claims by May 24, 2007. 

The defendants may respond to that memorandum no later than June

14, 2007.

The parties shall promptly notify the court when the state

court has issued its ruling and a teleconference will be

scheduled.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

May 3, 2007

cc: Hon. Edward J. Fitzgerald, III

Catherine M. Costanzo, Esquire

Brian J.S. Cullen, Esquire

Rachel A. Hampe, Esquire

Richard D. Sager, Esquire

Gerald F. Williamson, Esquire 

Case 1:05-cv-00365-JD Document 93 Filed 05/03/07 Page 3 of 3