UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE 

Samuel J. Bourne 

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

Town of Madison, et al. 

O R D E R 

In response to the court’s show cause order, issued on 

December 30, 2009, the defendants filed a motion for leave to 

file their answer. Samuel Bourne, who is proceeding pro se, 

objects to the motion for leave to file the answer. In addition, 

Bourne has moved for summary judgment on the defendants’ 

defamation counterclaim and moved for a default judgment. Bourne 

also moves for relief under Federal Rule of Civil Procedure 60. 

The defendants previously moved to voluntarily dismiss their 

defamation counterclaim. 

I. Motion for Leave, Motion for Default Judgment 

As is explained in the show cause order and the procedural 

order issued on December 18, 2009, the defendants failed to file 

an answer to Bourne’s amended complaint, which was filed on 

December 5, 2006. In their motion for leave to file their 

answer, the defendants explain that because the amended complaint 

was allowed only to the extent that it did not add new claims, 

Case 1:05-cv-00365-JD Document 175 Filed 01/25/10 Page 1 of 6
the parties continued in the litigation with the original answer 

serving as the response to the amended complaint. Bourne’s 

counsel did not seek an entry of default during the three years 

that elapsed after the amended complaint was filed.1 The 

defendants also assert that their late answer has not caused 

Bourne prejudice because all parties have proceeded in the case 

as if an answer had been filed. 

Bourne objects to the defendants’ motion for leave to file 

their answer, asking that the late answer not be allowed. Bourne 

argues that the defendants’ answer is evasive, constituting a 

failure to disclose, because the defendants’ pretrial filings 

suggest new claims and defenses that were not included in the 

previous answer. Bourne also argues that the defendants’ answer 

is deceptive because he disputes some of its allegations. The 

court has reviewed the answer and concludes that it provides an 

adequate disclosure of defenses and that it is not deceptive. 

In his motion for a default judgment, Bourne contends that 

he was prejudiced by the delay in filing the answer because he 

did not believe the previous answer was the operative filing and 

because the previous answer was not sufficient to put him on 

1Bourne was represented by counsel until December 15, 2009, 

when his counsel withdrew. 

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notice of the defenses.2 He also asserts that his treatment by 

the defendants was extreme and likens his case to the “vicious 

campaign of harassment,” chronicled in Shahi v. Madden, 949 A.2d 

1022 (Vt. 2008).3 Bourne argues that the court should enter 

default judgment against the defendants because of the delay in 

moving to file their answer and because, he charges, the answer 

is deceptive. 

A party opposing a complaint must file a responsive pleading 

or face default. Fed. R. Civ. P. 55(a). Default may be set 

aside for good cause. Fed. R. Civ. P. 55(c); Venegas-Hernandez 

v. Sonolux Records, 370 F.3d 18, 187 (1st Cir. 2004). “[D]efault 

judgment is a drastic sanction that should be employed only in an 

extreme situation.” Stewart v. Astrue, 552 F.3d 26, 28 (1st Cir. 

2009). Good cause lacks a precise formula, and courts consider a 

variety of factors, including whether the default was intentional 

and whether the delay has caused prejudice to the plaintiff. 

Venegas-Hernandez, 370 F.3d at 187. 

Bourne attempts to make the underlying circumstances that 

2Bourne’s motion for summary judgment on the defendants’ 

counterclaim, filed pro se, strongly suggests that he, along with 

his attorneys, have proceeded as if the original answer, which 

included the counterclaim, was still the operative filing. 

3Shahi was decided by a jury verdict under Vermont law and 

appears to have no connection to the issue of default. 

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have fueled litigation in this case appear “extreme” to satisfy 

the requirements for a default judgment. His effort is 

misplaced. The grounds for a default judgment pertain to extreme 

conduct in the case itself, such as repeated delays or tactics 

that impeded the plaintiff’s efforts to prosecute the claims. 

See id. In contrast, this case has proceeded without delay 

tactics imposed by the defendants, and Bourne offers no proof or 

even a suggestion that the defendants willfully failed to file 

their answer on time. Under the circumstances, the defendants’ 

inadvertent mistake has caused no prejudice. 

Therefore, good cause is shown, and the defendants are 

allowed to file their answer. 

I I. Motion to Dismiss Counterclaim, Motion for Summary Judgment 

on Counterclaim 

The individual defendants move to dismiss their counterclaim 

for defamation. Bourne moves for summary judgment in his favor 

on the counterclaim. The defendants do not allege any 

counterclaims in their answer to the amended complaint. 

Therefore, the motions addressing the counterclaim are moot. 

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III. Motion for Relief Under Rule 60 

As explained in the order issued on November 9, 2009, the 

parties were granted a narrow opportunity to move for 

reconsideration of the court’s orders based on the final judgment 

in pending state court proceedings. The court denied Bourne’s 

motion for reconsideration in the November 9 order. On December 

1 5, 2009, Bourne, proceeding pro se, filed a motion for relief 

under Rule 60 and charges the defendants’ counsel with 

misconduct. 

Bourne’s motion under Rule 60 challenges the summary 

judgment granted on June 29, 2007. Motions under Rule 60(b)(1), 

(2) , and (3) must be filed within a reasonable time and no more 

than one year after the order issues. Fed. R. Civ. P. 60(c)(1). 

Bourne has not shown grounds to consider his motion under Rule 

60(b)(4), (5) , or (6) . Therefore, the motion under Rule 60 is 

untimely. In addition, to the extent Bourne is seeking 

reconsideration of the denial of his previous motion for 

reconsideration, that motion is also untimely. LR 7.2(e). 

Further, the issues Bourne raises were considered and resolved in 

the court’s previous orders without error and, therefore, are not 

grounds for reconsideration or relief under Rule 60. 

Bourne alleges that the defendants’ attorneys have made 

false statements to the court, have committed perjury, and have 

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withheld discoverable information from him. His filings, 

however, do not provide a basis for disciplinary proceedings. 

See LR 83.5, DR 5 & DR 6. 

Conclusion 

For the foregoing reasons, the defendants’ motion for leave 

to file their answer (document no. 158) is granted. 

The plaintiff’s motion to dismiss the counterclaim (document 

no. 136) and the defendants’ motion for summary judgment on the 

counterclaim (document no. 139) are denied as moot. 

The plaintiff’s motion for a default judgment (document no. 

165) is denied. 

The plaintiff’s motion for relief under Rule 60 (document 

no. 141) is denied. 

SO ORDERED. 

/s/ Joseph A. DiClerico, Jr. 

Joseph A. DiClerico, Jr. 

United States District Judge 

January 25, 2010 

cc: Samuel Bourne, pro se 

Brian J. S. Cullen, Esq. 

Richard D. Sager, Esq. 

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