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

Samuel J. Bourne, who is proceeding pro se, moves for

reconsideration of the court’s order, issued on January 25, 2010,

which denied Bourne’s motion for a default judgment, denied

Bourne’s motion for summary judgment on the counterclaim, denied

Bourne’s motion for relief under Federal Rule of Civil Procedure

60, and granted the defendants’ motion for acceptance of their

answer. The defendants filed a short objection, stating that

they relied on their previously-filed briefs and that the New

Hampshire Supreme Court’s order, issued on January 13, 2010, has

no bearing on the matter pending here. Bourne moved for leave to

file a reply to the defendants’ objection. The defendants’

object to the motion for leave to file a reply. Bourne moves for

leave to reply to the objection.

I. Reply

Bourne characterizes the defendants’ objection to his motion

for reconsideration as “misguided and deceptive.” He contends

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that the defendants’ mischaracterized the New Hampshire Supreme

Court’s order, issued on January 13, 2010, and failed to

acknowledge that the state litigation had not ended prior to the

January 13 order. The defendants object to Bourne’s request to

file his reply on the ground that Bourne has not shown that it is

necessary. Bourne moves for leave to file a reply to the

defendants’ objection to his motion for leave to file a reply to

their objection to his motion for reconsideration.

In the interest of a complete record, the court will allow

Bourne’s reply to the defendants’ objection to his motion for

reconsideration. The court cautions Bourne, however, that his

hyperbole and the lack of civility in the tone of his filings do

nothing to advance his cause. His motion for leave to file a

reply to the defendants’ objection to his motion for leave is

baseless and is denied.

II. Motion for Reconsideration

A motion seeking reconsideration must demonstrate that the

court’s order “was based on a manifest error of fact or law . . .

.” LR 7.2(e). 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.

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City of Boston, 452 F.3d 94, 104 (1st Cir. 2006) (internal

quotation marks omitted).

A. Denial of Bourne’s Motion for Relief Under Rule 60

The court denied Bourne’s motion for relief under Rule 60

because it was untimely under Rule 60 and LR 7.2(e) and because

the issues had been considered and resolved correctly in the

court’s previous orders. The court also concluded that Bourne’s

filings did not provide grounds for disciplinary proceedings

against the defendants’ attorneys. Bourne moves to reconsider

the court’s order on the ground that his motion was not untimely,

based on the date of the final judgment in the underlying state

court case.

Bourne misunderstands the limited nature of the opportunity

granted to the parties in this case to move for reconsideration

of the court’s order on summary judgment, based on subsequent

decisions of the state court. At the time the parties agreed to

that procedure, Bourne was represented by counsel. Bourne’s

counsel, on his behalf, agreed, as did the defendants’ counsel,

to proceed in that manner. Counsel and the court proceeded

accordingly. As those matters have concluded, Bourne’s attempt

to reopen the order on summary judgment is too late.

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The new theory of timing Bourne argues on reconsideration

does not apply to the circumstances of this case. Although

Bourne continues to argue that what he perceives to be outrageous

conduct by the defendants supports his motion, the issues have

been thoroughly considered and previously resolved. Bourne has

not shown that the denial of his motion for relief under Rule 60

was based on a manifest error of law or fact.

B. Motion for Default Judgment

When the court discovered that the defendants had not filed

an answer to Bourne’s amended complaint and notified the parties

of the omission, Bourne moved for a default judgment to be

entered against the defendants. The defendants objected to

default judgment, noting that the parties had proceeded in the

case as if the original answer were still in effect and moved for

leave to file their answer, which was granted. Bourne disputes

the court’s acknowledgment that the parties had proceeded in the

case as if the original answer remained the operative pleading on

the ground that the recently-filed answer raises new issues and

defenses.

Although far from clear, it appears that Bourne objects to

the defendants’ arguments in other filings pertaining to

conflicts with one of Bourne’s neighbors, Roger Cyr. The

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defendants’ answer, however, does not appear to mention Cyr, and

Bourne has not cited a part of the answer where new issues or

defenses are pled.

Bourne has not shown grounds to reconsider the court’s order

denying default judgment and allowing the defendants’ to file

their answer.

C. Motion for Summary Judgment on Counterclaim

The defendants pled a counterclaim of defamation in their

original answer. In pretrial filings, the defendants sought a

voluntary dismissal of the counterclaim, and Bourne moved for

summary judgment on the counterclaim. While those motions were

pending, however, the defendants filed their answer to the

amended complaint, which did not include the counterclaim. As a

result, the motions addressing the counterclaim, which no longer

exits, became moot.

Bourne argues that the court should have allowed him to file

a reply to the defendants’ objection to his motion for summary

judgment on the counterclaim before denying his motion as moot. 

Once a matter is moot, however, nothing remains to be decided,

making the motion and Bourne’s reply inoperative. Therefore,

there was no need to wait for further filings before denying the

motion for summary judgment on the grounds of mootness. The

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court does not waste its resources deciding matters that are no

longer in issue.

Conclusion

For the foregoing reasons, the plaintiff’s motion for leave

to file a reply (document no. 186) is granted, and the reply was

considered in deciding the plaintiff’s motion for

reconsideration. The plaintiff’s motion for leave to file a

reply (document no. 190) is denied.

 The plaintiff’s motion for reconsideration (document no.

179) is denied.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

February 23, 2010

cc: Samuel J. Bourne, pro se

Brian J.S. Cullen, Esquire

Richard D. Sager, Esquire

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