1Bourne is trustee of the Bedrock Realty Trust.

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Samuel J. Bourne

v. Civil No. 05-cv-365-JD

Opinion No. 2009 DNH 169

Town of Madison, et al.

O R D E R

Samuel J. Bourne brought state and federal claims against

the Town of Madison, New Hampshire; its selectmen, John Arruda,

Clifford Graves, and Eileen Crafts, in their personal and

official capacities; and a resident of Madison, Robert D. King,

arising from a dispute about a roadway, known as the Solomon

Harmon Road. Bourne also filed actions in Carroll Country

Superior Court that were consolidated into Bedrock Realty Trust

v. Town of Madison, Nos. 03E-0061, 0114, 0144, and 05-E-0014.1

Because the state court action was related to Bourne’s claims

here, the parties agreed to stay trial in this case until final

resolution of the state court proceedings. The parties also

agreed that this court should address all of the motions pending

at that time and reserve the right to them to request

Case 1:05-cv-00365-JD Document 129 Filed 11/09/09 Page 1 of 16
2

reconsideration after the state court issued the decision in the

state case. 

On May 3, 2007, this court ordered that “[t]o 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.” Doc. no. 93 at 2. On June 29,

2007, the court granted the defendants’ motion for summary

judgment on all of Bourne’s claims except the state law claim of

tortious interference with contractual relations. In July,

Bourne filed a motion to reconsider the June 29 order, and two

months later he filed a memorandum to supplement his motion for

reconsideration. His motion was denied in part because the

supplemental memorandum was untimely and was also denied without

prejudice to all of the parties to file a motion for

reconsideration based on the final judgment in the pending state

court proceeding as provided in the order issued on May 3, 2007.

The parties filed a joint notice on the status of the state

court proceedings on July 24, 2009. In the notice, the parties

represented that an order following trial in state court issued

on August 10, 2007, that the appeals were denied on May 14, 2009,

that Bourne’s motion for reconsideration was denied on June 24,

Case 1:05-cv-00365-JD Document 129 Filed 11/09/09 Page 2 of 16
3

2009, and that Bourne was appealing the superior court’s ruling

on his motion for costs. The parties also represented that

because the merits of the state court action were resolved, it

was appropriate to resume the case here. 

In the consolidated state court action, Bourne, as trustee

for Bedrock Realty Trust, and the Town of Madison (“the Town”)

disputed whether the Town could allow the public to use

snowmobiles and other vehicles over a roadway on Bourne’s

property. The Carroll County Superior Court held a bench trial

from March 12 through March 15, 2007, and issued its decision on

August 10, 2007. The court concluded that under the provisions

of certain documents, the Kelsey Deed and the Conservation

Agreement, the Town could not allow the public to use snowmobiles

on the Kelsey Easement and that the Kelsey Deed limited public

use of the easement to six enumerated activities, which did not

include snowmobile or other motor vehicle use. The court also

found that evidence was lacking to show that a public highway had

been established by prescriptive use and that there was no

occasion to lay out Solomon Harmon Road as a Class VI road for

public necessity or convenience. Therefore, Bourne was

successful on the merits of his claims against the Town.

Bourne also sought an award of attorneys’ fees, arguing that

the Town had no legitimate basis to claim snowmobile use under

Case 1:05-cv-00365-JD Document 129 Filed 11/09/09 Page 3 of 16
4

the Kelsey Easement, that the Town’s decision to lay out Solomon

Harmon Road was based on its interests in the litigation with

Bourne and in allowing snowmobile use, and that the Town was

unreasonable to claim a prescriptive use of Solomon Harmon Road. 

The superior court held that “[a]lthough the Town did not prevail

on any of the issues presented, the court finds the Town did not

conduct itself or respond to this litigation in a manner

warranting attorneys’ fees.” Bourne’s request for an award of

fees was denied.

Bourne appealed the denial of his request for attorneys’

fees and the denial of most of the damages Bourne sought for

injunctions granted to the Town during the litigation. The Town

cross-appealed the superior court’s decision that the Kelsey

Easement did not constitute a Class VI road and the award of $698

in damages for the injunctions. The supreme court issued its

decision on May 14, 2009, affirming the superior court’s decision

denying attorneys’ fees but vacating the award of $698 as damages

for an injunction issued in the Town’s favor.

In particular, the supreme court rejected Bourne’s claim

that he had a clearly defined right to preclude public snowmobile

access to his property that should not have required litigation

and his claim that the Town’s conduct in the litigation was in

bad faith and unreasonable. The court held that “several emails

Case 1:05-cv-00365-JD Document 129 Filed 11/09/09 Page 4 of 16
5

and other documents from Mr. King that were produced in a federal

court lawsuit . . . do not establish that the town acted in bad

faith or in a patently unreasonable manner.” The court also

stated: “We further note that the petitioner’s counsel suggests

that the town’s counsel knew the prescriptive highway claim had

no basis by selectively quoting, on multiple occasions, a single

statement in an email from the town’s counsel that the claim

‘should never have been an issue in this case.’” The court

explained that, taken in context, counsel’s “statement merely

reflects counsel’s belief that he was required to litigate the

merits of the committee’s decision due to an adverse pretrial

ruling.” The supreme court affirmed the superior court’s

decision denying an award of attorneys’ fees.

Discussion

Bourne moves for reconsideration of the summary judgment

order issued in this case on June 29, 2007. In his motion,

Bourne contends that the state court decisions and newly

discovered evidence support his substantive due process claim and

his state law claims of misrepresentation and tortious

interference with contractual relations and asks the court to

reconsider summary judgment on those claims. The defendants

object to Bourne’s motion, contending that the state court

Case 1:05-cv-00365-JD Document 129 Filed 11/09/09 Page 5 of 16
6

decisions are consistent with the June 29 summary judgment order

and that Bourne lacks newly discovered evidence to support his

claims.

A motion seeking reconsideration of summary judgment is

subject to limits of time and scope. See LR 7.2(e); Fed. R. Civ.

P. 59(e), 60(b)(2), & 60(c); Landrau-Romero v. Banco Popular de

P.R., 212 F.3d 607, 612 (1st Cir. 2000). Here, the time to move

for reconsideration was extended only to allow the parties to

request reconsideration on the ground that the June 29 order was

inconsistent with a subsequent decision of the state court in the

consolidated state action. A motion for reconsideration “does

not provide a vehicle for a party to undo its own procedural

failures or allow a party to advance arguments that could and

should have been presented to the district court prior to

judgment.” Iverson v. City of Boston, 452 F.3d 94, 104 (1st Cir.

2006) (internal quotation marks omitted). 

A. Substantive Due Process

In his federal court complaint, Bourne alleged that his

substantive due process rights were violated by the defendants’

actions related to the dispute about Bourne’s application for a

building permit and the use of Solomon Harmon Road. He contends

that the defendants’ actions were abusive, were motivated by

Case 1:05-cv-00365-JD Document 129 Filed 11/09/09 Page 6 of 16
2In fact, the state court rulings are consistent with the

court’s summary judgment order to the extent the state courts did

not allow an award of attorneys’ fees to Bourne.

7

their hostility against him, and were the result of their

conspiracy to force him to leave the Town. The court granted

summary judgment in the defendants’ favor, concluding that even

if the First Circuit would recognize a substantive due process

violation in the context of a land use dispute, Bourne failed to

show a trialworthy issue based on that theory. 

In his motion for reconsideration, Bourne states that the

state court decisions do not preclude his substantive due process

claim, but he does not rely on any part of those decisions as

being inconsistent with the June 29, 2007, summary judgment

order.2 Instead, Bourne offers “new” evidence to support his

substantive due process claim: an alleged admission by the

defendants and emails written by defendant Robert D. King. 

The court granted the parties leave to file motions for

reconsideration of the June 29 order to the extent the party

believed that a part of the order was inconsistent with the state

court decisions in the consolidated cases. The court did not

extend the deadline for motions to reconsider based on newly

discovered evidence. A party is allowed one year from the date

of the order to move for reconsideration based on newly

Case 1:05-cv-00365-JD Document 129 Filed 11/09/09 Page 7 of 16
3The summary judgment order issued on June 29, 2007, and

Bourne filed his motion for reconsideration based on “new”

evidence on September 1, 2009. 

8

discovered evidence. Fed. R. Civ. P. 60(c)(1). Therefore,

Bourne’s motion is untimely.3 Even if the motion based on “new”

evidence were timely, however, it would fail.

The statement Bourne offers as an admission is from the

defendants’ objection to Bourne’s first motion for

reconsideration filed in July of 2007: “The remaining ‘factual

issues raised by the plaintiff were not even alleged errors by

the Court, but merely events that the plaintiff feels show that

the defendants dislike him. That point, however, is hardly

disputed.” Doc. no. 107 at 2. Bourne also offers “new”

evidence: an email sent by defendant Robert King, dated January

9, 2005, to a group of snowmobiling associations and enthusiasts;

an email from King to the Madison selectmen, dated December 29,

2004; two 2006 emails from King to selectmen; emails from King to

Town counsel; two excerpts from the Class VI Road Study Report;

an email from King to the president and trailmaster of “SOSSC,” a

snowmobile club; an excerpt from a superior court hearing

transcript, from February, 1, 2006; and an excerpt from the

superior court trial transcript for March 12, 2007.

Case 1:05-cv-00365-JD Document 129 Filed 11/09/09 Page 8 of 16
4To the extent Bourne relies on other documents disclosed on

April 4, 2007, for the same reasons, those documents are not

newly discovered evidence.

9

Reconsideration based on new evidence is addressed in

Federal Rule of Civil Procedure 60(b)(2). Relief from summary

judgment under Rule 60(b) “is extraordinary in nature and motions

invoking that rule should be granted sparingly.” Gonzalez-Pina

v. Rodriguez, 407 F.3d 425, 433 (1st Cir. 2005) (internal

quotation marks omitted). Evidence is not new for purposes of

Rule 60(b)(2) unless the evidence was discovered after the

challenged order issued, it could not by due diligence have been

discovered earlier, it is not merely cumulative, and it is of

such import “that it would probably change the result.” Id.

Bourne obtained most of the “new” evidence on April 4, 2007,

two and a half months before the June 29, 2007, order issued. 

The superior court trial testimony was given on March 22, 2007,

and the superior court hearing occurred on February 1, 2006,

months before the June 29 order. Bourne’s delay in bringing that

evidence forward disposes of it for purposes of reconsideration.4

See id. In addition, to the extent Bourne argues that he needed

time to develop facts pertinent to the email through discovery,

relief was available through Federal Rule of Civil Procedure

56(f). See Mir-Yepez v. Banco Popular de P.R., 560 F.3d 14, 16

Case 1:05-cv-00365-JD Document 129 Filed 11/09/09 Page 9 of 16
10

(1st Cir. 2009). Having failed to avail himself of Rule 56(f),

he has waived any argument that his response was hampered by

insufficient discovery. See Rodriguez-Cuervos v. Wal-Mart

Stores, Inc., 181 F.3d 15, 23 (1st Cir. 1999).

Bourne has not shown that King’s December 29, 2004, email to

the snowmobilers could not, with due diligence, have been

discovered sooner. More importantly, however, King’s email to

the snowmobilers would not change the result on summary judgment. 

 As is explained in the June 29 order, land use disputes do

not violate substantive due process except in horrendous

situations that shock the conscience. See, e.g., Clark v.

Bosher, 514 F.3d 107, 112-13 (1st Cir. 2008). King’s email

exhorts those interested in snowmobiling to attend a planning

board meeting concerning Bourne’s claims about Solomon Harmon

Road and to ignore Bourne’s no trespassing signs. The email also

recounts King’s interaction with Town officials about Bourne’s

actions, providing King’s interpretation of circumstances and

events. With all inferences taken in Bourne’s favor, the email

along with the context Bourne provides falls far short of

suggesting a horrendous situation that would implicate

substantive due process. The New Hampshire Supreme Court

concluded that the King emails do not show that the Town acted in

bad faith or in a patently unreasonable manner.

Case 1:05-cv-00365-JD Document 129 Filed 11/09/09 Page 10 of 16
5Contrary to Bourne’s memorandum, the standard used in

evaluating his arguments is that used for a motion for

reconsideration, which is not an opportunity to reargue a party’s

case or to raise new arguments or evidence that were not, but

could have been, made in opposition to the defendants’ motion for

summary judgment. Marks 3 Zet-Ernst Marks GmBh & Co. KG v.

Presstek, Inc., 455 F.3d 7, 15 (1st Cir. 2006).

11

With respect to the defendants’ “admission,” the defendants

stated in their objection only that Bourne’s assertion that they

disliked him was not disputed, noting the extended litigious

interactions between Bourne and the defendants. An admission of

dislike in this context does not provide proof that the

defendants’ actions concerning Solomon Harmon Road were motivated

by hostility toward Bourne, particularly in light of the Town’s

rational explanations for the actions taken. Dislike alone does

not prove a substantive due process violation.

Bourne also appears to argue, based on evidence presented at

or absent from the state court proceedings, that the defendants’

actions in defending against his claims in state court were

conscience shocking. The state courts, however, ruled that the

Town did not proceed in bad faith and had legitimate reasons for

pursuing the Class VI roadway issue. Bourne’s argument about

what evidence he might have produced in the state action to

support his attorneys’ fees claim is unpersuasive.5 Given the

Case 1:05-cv-00365-JD Document 129 Filed 11/09/09 Page 11 of 16
6Bourne also states that the superior court found that

“Defendant King literally drew the road onto the map.” The cited

part of the superior court’s decision states that “King

admittedly altered the map to depict the road.” The full

analysis in the superior court’s decision does not support

Bourne’s interpretation of King’s action. 

12

state courts’ rulings against Bourne on that issue, he cannot

show conscience-shocking behavior.

In his reply, Bourne contends for the first time that the

state courts’ decisions are inconsistent with this court’s

summary judgment order. Bourne states that summary judgment on

his substantive due process claim was “predicated upon the

finding that ‘Mr. Bourne’s property is accessible by an unpaved

road, called “Solomon Harmon Road,” that connects with East

Madison Road on its north end’” and “the Court’s finding that

‘the Town provided rational explanations for its decisions.’” 

Reply at 2. He argues that because the state courts concluded

that no such road exists, the summary judgment order is

inconsistent with the state court decision.6 He also argues that

because the superior court considered the Town’s explanations and

concluded, contrary to the Town’s position, that the Town could

not allow public snowmobile or vehicle use over Bourne’s

property, the Town’s explanations were not reasonable. 

Bourne is mistaken. As a preliminary matter, the court made

no findings in the summary judgment order and instead relied on

Case 1:05-cv-00365-JD Document 129 Filed 11/09/09 Page 12 of 16
13

the undisputed facts from the summary judgment record provided by

the parties. The statement Bourne quotes about the Solomon

Harmon Road is part of the background section of the order, which

was not material to the summary judgment analysis. The state

court decisions are consistent with this court’s conclusion that

the defendants provided rational explanations for their

positions. Therefore, Bourne has not shown a basis for

reconsidering the summary judgment order with respect to his

substantive due process claim.

B. State Law Claim

In support of his motion for reconsideration, Bourne states: 

“In its June 29, 2007 Order, the Court found that Mr. Bourne’s

claim of tortious interference with contractual relations and his

claim of misrepresentation could in part survive the execution of

the mutual release if he provided competent evidence and if he

prevailed in the State court trial.” Pl. Mem. at 19. Bourne

contends that those state law claims are supported by the state

court decisions and his “subsequently obtained documents.” The

defendants object.

As a preliminary matter, Bourne misapprehends the July 29

order. The court granted summary judgment in the defendants’

favor on his misrepresentation claims, without the reservation

Case 1:05-cv-00365-JD Document 129 Filed 11/09/09 Page 13 of 16
7The forgery issue pertained to a cover letter Bourne mailed

to the selectmen with a revised waiver: Bourne’s copy of the

letter states the changes he made in the waiver, while the

selectmen’s copy does not. Bourne accused the selectmen of

forging his signature on their version of the letter. Their

dispute over the waiver and other issues led to litigation which

was settled with a mutual release. The forgery issue remained a

matter of dispute thereafter.

14

Bourne articulates. The tortious interference with contractual

relations claim survived summary judgment, and therefore, there

is no need for reconsideration.

In the July 29 order, the court concluded that Bourne lacked

evidence that the defendants committed forgery or that the

signature was forged,7 that he lacked evidence that the

defendants knowingly misrepresented the legal status of the

Solomon Harmon Road, and that his claims of misrepresentation

based on the circumstances of the revised waiver were barred by

the parties’ mutual release. For purposes of reconsideration,

Bourne appears to argue new claims. 

Bourne asserts that the defendants have accused him of

forgery. He also asserts that the record from the state court

trial shows that the defendants relied on a forged map in

asserting the status of the Solomon Harmon Road. Based on those

assertions, he contends that he should be permitted to show

documents obtained from the Town to prove the forgery on the

cover letter. 

Case 1:05-cv-00365-JD Document 129 Filed 11/09/09 Page 14 of 16
15

As such, Bourne relies on “new” evidence, rather than an

inconsistency with the state court decisions, to support his

motion. As noted above, the motion is late. In addition, the

state court trial occurred before June 29, 2007, and the other

documents Bourne references also predate the order. Therefore,

Bourne fails to show that the matters he references are new

evidence under Rule 60(b)(2). 

Further, the state court decisions are consistent with and

support summary judgment on the misrepresentation claims.

Conclusion

For the foregoing reasons, the plaintiff’s motion for

reconsideration (document no. 126) is denied.

The clerk of court shall set a trial date for the single

remaining claim, tortious interference with contractual

relations.

The dispute between the parties in this case has consumed

significant resources of the parties and the state and federal

courts. The time has long passed when the parties should have

Case 1:05-cv-00365-JD Document 129 Filed 11/09/09 Page 15 of 16
16

put their dispute to rest. The court expects them to use good

faith efforts to resolve the only remaining issue in this case.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

November 9, 2009

cc: Brian J.S. Cullen, Esquire

Rachel A. Hampe, Esquire

Richard D. Sager, Esquire

Gerald F. Williamson, Esquire

Case 1:05-cv-00365-JD Document 129 Filed 11/09/09 Page 16 of 16