1 “Which rule applies to a motion depends essentially on the

time a motion is served. If a motion is served within ten days

of the rendition of judgment, the motion will ordinarily fall

under 59(e). If the motion is served after that time it falls

under Rule 60(b).” Perez-Perez v. Popular Leasing Rental, Inc.,

993 F.2d 281, 284 (1st Cir. 1993). As Adam served his motion

more than 10 days after the entry of summary judgment, the court

views his motion under Rule 60(b). 

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Richard Adam

v. Civil No. 07-cv-338-JL

Thomas Arthur Hensley, Esq.

ORDER

Richard Adam has filed a pro se motion for reconsideration

of the court’s order granting summary judgment for the defendant. 

For the reasons stated below, the motion is denied. 

While the Federal Rules of Civil Procedure do not

specifically provide for motions for reconsideration, courts in

the First Circuit generally treat such motions as either a motion

to alter or amend judgment under Rule 59(e), or a motion for

relief from judgment or order under Rule 60(b), depending on the

time the motion is served.1

 See Ofori v. Ruby Tuesday, Inc., 205

Fed. Appx. 851, at *1 (1st Cir. 2006). 

Case 1:07-cv-00338-JL Document 21 Filed 07/30/08 Page 1 of 4
2

 The copy of the tape that Adam provided to the court is

entirely inaudible. 

2

In either case, whether analyzed under Rule 59(e) or Rule

60(b), “a motion for reconsideration cannot be used as a vehicle

to relitigate and/or rehash matters already litigated and decided

by the Court,” Horizon Lines, Inc. v. Local 1575, 2006 WL

1451530, *2 (D.P.R. May 19, 2006), and may not be used “to raise

new legal theories that should have been raised earlier.” Nat’l

Metal Finishing Co. v. BarclaysAmerican/Commercial, Inc., 899

F.2d 119, 123 (1st Cir. 1990). Motions to reconsider “are

granted only where the movant shows a manifest error of law or

newly discovered evidence.” Kansky v. Coca-Cola Bottling Co.,

492 F.3d 54, 60 (1st Cir. 2007). 

Adam’s motion has failed to identify any error of law or

fact in the court’s summary judgment decision. Instead, Adam has

presented the court with new evidence, rather than newly

discovered evidence, of: (1) the tax assessed value of his home

in Hawaii in 1997, and (2) a tape recording2

 purportedly made of

conversations with the defendant. Both of the evidentiary items

which Adam now asks the court to consider were indisputably in

his possession well before the court entertained the defendant’s

motion for summary judgment. “Where evidence is not newly

discovered, a party may not submit that evidence in support of a

Case 1:07-cv-00338-JL Document 21 Filed 07/30/08 Page 2 of 4
3 Prior to the hearing, Adam had fully briefed the issue of

subject matter jurisdiction in his opposition to the defendant’s

motion to dismiss. At the hearing, Adam made his argument to the

court. 

3

motion for reconsideration.” Lepore v. Vidockler, 792 F.2d 272,

274 (1st Cir. 1986). 

Adam’s only remaining argument is that, because the

magistrate judge issued a report and recommendation stating “I

find that Plaintiff had properly invoked the diversity

jurisdiction of this Court,” he was not prepared to argue subject

matter jurisdiction at the oral argument conducted on May 14,

2008.3 In making this argument, Adam fails to appreciate that

subject matter jurisdiction is always a live issue which the

district court is obligated to consider and resolve sua sponte. 

See Perry v. First Citizens Fed. Credit Union (In re Perry), 391

F.3d 282, 284-85 (1st Cir. 2004). Even assuming that Adam could

have successfully convinced this court that it possessed subject

matter jurisdiction, which is doubtful, the court dismissed his

complaint on two independent and sufficient bases: improper

venue and lack of personal jurisdiction. 

Adam has failed to establish a manifest error of law or

present the court with newly discovered evidence. Adam’s motion

for reconsideration is therefore denied. 

Case 1:07-cv-00338-JL Document 21 Filed 07/30/08 Page 3 of 4
4

SO ORDERED.

 

Joseph N. Laplante

United States District Judge

Date: July 30, 2008

cc: Richard Adam, pro se

Thomas A. Hensley, Esq.

Case 1:07-cv-00338-JL Document 21 Filed 07/30/08 Page 4 of 4