1The defendants did not move for summary judgment on the

harassment claim.

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Rosemary A. Gilroy

v. Civil No. 07-cv-0074-JD

Opinion No. 2009 DNH 030

Ameriquest Mortgage Company, et al.

O R D E R

Proceeding pro se and in forma pauperis, Rosemary A. Gilroy

brought suit against Ameriquest Mortgage Company (“Ameriquest”),

Ameriquest Mortgage Company Mortgage Services, Inc. (“AMC

Services”), and Citi Residential Lending, Inc. (“Citi”), alleging

predatory lending practices in violation of New Hampshire law. 

On February 20, 2009, the court granted summary judgment in favor

of the defendants on Counts I, II, III, IV, and VI of Gilroy’s

amended complaint (“summary judgment order”), leaving Gilroy’s

claim for harassment in violation of New Hampshire Revised

Statutes Annotated 358-C as the only remaining claim in this

case.1

On March 3, 2009, Gilroy filed a motion seeking a thirty-day

extension to file a motion for reconsideration of the court’s

Case 1:07-cv-00074-JD Document 114 Filed 03/24/09 Page 1 of 8
2At the pretrial conference held on March 9, 2009, Gilroy

informed the court that the attorney she had been speaking with

had declined to represent her in this case.

2

summary judgment order. As a basis for her motion, Gilroy

asserted that she was in the process of hiring counsel to

represent her in this matter and that an extension of time was

necessary for counsel to review the history of the case and

prepare a motion for reconsideration. The court denied her

motion, noting that Gilroy had ample time to secure the services

of an attorney in the two years during which this case has been

pending and that an attorney had yet to file an appearance in

this case on her behalf.2

On March 9, 2009, Gilroy submitted a motion for leave to

file an untimely motion for reconsideration of the court’s

summary judgment order accompanied by her motion for

reconsideration. On March 16, 2009, after reviewing Gilroy’s

motions, the court granted Gilroy’s motion for leave to file an

untimely motion for reconsideration, and denied Gilroy’s motion

for reconsideration. On March 16, 2009, Gilroy filed a second

motion for leave to file an untimely amended motion for

reconsideration and an amended motion for reconsideration of the

court’s summary judgment order. Although the court has already

reviewed and denied Gilroy’s motion for reconsideration and she

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raises no new substantive issues, the court will address her

amended motion for purposes of correcting the erroneous

statements and assumptions contained within it. Although the

defendants have not yet responded to Gilroy’s amended motion for

reconsideration, the court will address it to avoid further

delay.

Discussion

I. Legal Standard

The court will grant a motion for reconsideration only where

the moving party demonstrates “that the order was based on a

manifest error of fact or law.” LR 7.2(e). “The granting of a

motion for reconsideration is ‘an extraordinary remedy which

should be used sparingly.’” Palmer v. Champion Mortgage, 465

F.3d 24, 30 (1st Cir. 2006) (quoting 11 Charles Alan Wright et

al., Federal Practice and Procedure § 2810.1 (2d ed. 1995)).

II. Analysis

Gilroy argues that the court erred by dismissing counts I,

II, III, IV, and VI when Judge Muirhead held in his preliminary

review that she had asserted valid claims, requiring her to prove

her case on summary judgment, refusing to consider her objection

to the defendants’ motion for summary judgment and the exhibits

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4

she submitted with her objection, failing to consider her

deposition testimony, ignoring the documents she produced to the

defendants at her deposition, and failing to give her leniency as

a pro se plaintiff.

Gilroy relies on an incorrect standard for reviewing a

motion for summary judgment. She cites to Federal Rule of Civil

Procedure 12(b)(6) and cases applying this rule to support her

argument that the court erred in granting summary judgment

against her. Rule 12(b)(6) applies to motions to dismiss based

upon a “failure to state a claim upon which relief can be

granted.” The Rule 12(b)(6) standard is similar to that which

Judge Muirhead applied on preliminary review of Gilroy’s

complaint. It is not applicable to motions for summary judgment,

where the court must employ a different standard of review, and

where the parties must support their factual assertions with

evidence that is admissible at trial. See LR 7.2(b) (stating

that memoranda in support of, and in opposition to, summary

judgment “shall incorporate a short and concise statement of

material facts, supported by appropriate record citations . . .

.”).

The defendants’ motion demonstrated that there was a lack of

evidence sufficient to constitute a triable issue of fact on

Counts I, II, III, IV, and VI. While it was not necessary that

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3The court commented in its summary judgment order that some

of the exhibits she attached were illegible. Upon further

inspection, the court notes that Gilroy did submit legible paper

copies which were then scanned by the clerk’s office. However,

as the court noted in the summary judgment order, even accepting

these documents as representing the information Gilroy asserted,

her claims could not survive summary judgment.

4Contrary to Gilroy’s claim, the court did not remove

exhibit M, containing an alleged copy of a mortgage application,

from her objection to the defendants’ motion for summary

judgment. Rather, the court limited remote access to this

document for the protection of Gilroy’s privacy. The exhibit was

considered in deciding summary judgment.

5

Gilroy prove her case on summary judgment, as the party with the

burden of proof at trial, she was required to submit competent

evidence which shows that there was a genuine issue for trial. 

As the court explained in its summary judgment order, Gilroy

failed to meet the summary judgment standard. 

Contrary to Gilroy’s assertion, the court did consider her

objection to the defendants’ motion for summary judgment and her

attached exhibits. Although the exhibits she submitted would be

inadmissible at trial, they were considered in deciding the

motion.3 Even if the exhibits were admissible, Gilroy failed to

produce sufficient evidence to support her claims.4 Further, the

court did not ignore her affidavit because it was not made on

personal knowledge. The court merely noted that Rule 56(e)

requires that affidavits be made on personal knowledge, but

nevertheless considered it.

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5Gilroy’s deposition testimony was submitted by the

defendants in support of their motion for summary judgment.

6

Gilroy also improperly relies upon decisions from other

cases, which she submitted as exhibits. That the defendants may

have engaged in fraudulent lending practices against other

individuals is not evidence that they engaged in fraudulent

lending practices against Gilroy. As stated in the summary

judgment order, the cases Gilroy cited “are not evidence of

fraudulent misrepresentations made to Gilroy . . . .” Order, at

7 (February 20, 2009, document no. 82). To prove her fraud

claim, Gilroy was required to submit evidence showing that the

defendants engaged in fraudulent lending practices against her;

evidence of fraudulent lending practices against others is

irrelevant to her case. Similarly, to the extent Gilroy relies

on decisions in class action cases to require a certain outcome

in her case, she is mistaken. Gilroy is not a party to the class

actions and has opted to bring her own suit. As such, she must

prove her claims in this case and cannot rely upon the claims

proven in other cases. 

Gilroy claims that the court did not consider her deposition

testimony.5 Gilroy cited to several pages of deposition

testimony in her objection to the defendants’ motion for summary

judgment, which the court considered. Gilroy now cites to

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additional testimony in her 300-page deposition which she

contends supports her dismissed claims. It was Gilroy’s burden

on summary judgment to cite to those portions of her deposition

which supported her claims. See LR 7.2(b)(2).

Nevertheless, the court has reviewed the newly cited

portions of Gilroy’s deposition testimony in response to her

motion for reconsideration and finds that they are insufficient

to present a genuine issue of material fact for trial on her

dismissed claims. Accepting her cited deposition statements as

true, they alone are insufficient to maintain claims for fraud

(Count I), discrimination (Count II), intentional infliction of

emotional distress (Count III), personal injury (Count IV), or a

violation of New Hampshire’s Consumer Protection Act (Count VI).

Gilroy also claims that the court erroneously failed to

consider the documents she submitted to the defendants during her

deposition. These documents, however, were never submitted to

the court. See Hoffman v. Applicators Sales & Serv., Inc., 439

F.3d 9, 15 (1st Cir. 2006) (“[D]ocuments do not automatically

become a part of the record simply because they are the products

of discovery.”). On summary judgment, the court is limited to

the record as it stands and the documents provided to it by the

parties. If Gilroy intended to rely upon these documents to

oppose summary judgment, the burden was on her to provide them to

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the court; her submission of these documents to the defendants

does not satisfy this burden. See id. (“If a party wishes the

court to consider matters disclosed during discovery, he must

take appropriate steps to have them included in the record.”). 

In addition, Gilroy’s objection was considered in light of

her pro se status. However, Gilroy is not exempt from complying

with the Rules of Civil Procedure and the Local Rules of this

court. See FDIC v. Anchor Properties, 13 F.3d 27, 31 (1st Cir.

1994) (“[A] litigant’s pro se status does not absolve him from

compliance with the Federal Rules of Civil Procedure.”) (internal

quotation marks omitted) (brackets omitted). 

Conclusion

For the foregoing reasons, Gilroy’s motion for leave to file

an untimely amended motion for reconsideration (document no. 110)

is granted and her amended motion to reconsider the court’s

summary judgment order (document no. 109) is denied.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

March 24, 2009

cc: Rosemary A. Gilroy, pro se

Thomas C. Tretter, Esquire

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