UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Lisa Murphy, Individually

and as Mother and Next Friend

of D.B.

v. Civil No. 06-cv-459-JD

Franklin Regional Hospital and

the United States of America

O R D E R

After her son was born with serious injuries and

impairments, Lisa Murphy brought medical malpractice claims

against Franklin Regional Hospital and Tort Claims Act claims

against the United States, which was involved under the Federally

Supported Health Centers Assistance Act. The United States moved

to compel Murphy to provide discovery about her receipt of

Medicaid benefits. Murphy objected to the motion, and the New

Hampshire Department of Health and Human Services (“NH HHS”) also

filed an objection. The government moved to strike NH HHS’s

objection, and NH HHS moved to intervene in the action. 

While those motions were pending and discovery was ongoing,

the parties filed an assented-to motion to stay the proceedings

because they had reached a settlement. The motion to stay was

granted on June 26, 2008. NH HHS participated in the settlement

process. On August 19, 2008, the parties filed an assented-to

Case 1:06-cv-00459-JD Document 58 Filed 11/20/08 Page 1 of 4
1In the motion, NH HHS refers to “the Order dated September

23, 2008.” No order issued on September 23, 2008. Because NH

HHS’s motion appears to address the order granting the parties’

motion to dismiss, the court assumes that NH HHS meant to refer

to the order issued on October 20, 2008.

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motion for approval of the settlement. An in-chambers conference

was held on September 12, 2008, which included counsel for NH

HHS. The court granted the motion for approval of the settlement

the same day. The settlement with Franklin Regional Hospital was

completed by September 25, 2008, but the settlement with the

United States required the approval of the Department of Justice.

Before the settlement with the United States was finalized,

on October 17, 2008, Murphy filed a suggestion of death to notify

the court that D.B. had died on October 15 and that she intended

to substitute D.B.’s estate as a plaintiff in the case, once an

estate was opened. Murphy also filed an assented-to motion to

dismiss the claims against Franklin Regional Hospital, with

prejudice, under Federal Rule of Civil Procedure 41(a)(2). The

motion to dismiss the claims against Franklin Regional Hospital

was granted on October 20, 2008.

NH HHS now moves for reconsideration of the order granting

dismissal of the claims against Franklin Regional Hospital.1 The

motion is titled: “Department of Health and Human Services,

Office of Operation Support’s Limited Motion to Reconsider.” In

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the motion, NH HHS asks the court to grant its stayed motion to

intervene in the action and that “the remaining monies being held

by Plaintiff’s Counsel be held pending the resolution of all

pending matters.” Murphy and the United States object to the

motion. As the objections point out, NH HHS’s motion is fraught

with mistakes.

Because NH HHS is not a party, it lacks standing to file a

motion to reconsider an order issued in this case. The stay

first must be lifted as to NH HHS’s motion to intervene. The

parties would then have the opportunity to respond to that

motion. Although NH HHS raised the issue of its motion to

intervene in the present motion, under the local rules of this

district, separate motions must be filed when the filer is

seeking separate and distinct relief. LR 7.1(a).

In addition, plaintiff’s counsel represents that counsel for

NH HHS failed to contact him before filing the motion for

reconsideration, as is required under Local Rule 7.1(c). 

Plaintiff’s counsel states that the motion is unnecessary because

he was working with NH HHS’s counsel to resolve the issue of

protecting NH HHS’s claim for Medicaid reimbursement. The United

States in turn points out that the premise of NH HHS’s motion is

wrong, because whether Franklin Regional Hospital is a party or

not will not protect NH HHS’s claim for Medicaid reimbursement,

Case 1:06-cv-00459-JD Document 58 Filed 11/20/08 Page 3 of 4
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and that NH HHS misunderstands the settlement reached by the

parties in this case.

Conclusion

For the foregoing reasons, the motion for reconsideration

(document no. 53) is denied. Counsel for NH HHS shall

communicate with plaintiff’s counsel and with counsel for the

United States to attempt to resolve the issues raised in this

motion before seeking further assistance from the court. 

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

November 20, 2008

cc: Kevin F. Dugan, Esquire

Jared R. Green, Esquire

Jennifer R. Jones, Esquire

Ronald J. Lajoie, Esquire

T. David Plourde, Esquire

Gretchen Leah Witt, Esquire

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