UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Thomas Mlodzinski, et al.

v. Civil No. 08-cv-289-JL

Michael F. Lewis, et al.

PROCEDURAL ORDER

In this action against the Town of Bristol and certain of

its police officers (the “Bristol defendants”), and the Central

New Hampshire Special Operations Unit and certain of its officers

(the “CNHSOU defendants”), each set of defendants filed a motion

for summary judgment and supporting memorandum on February 1,

2010, the deadline for doing so under the amended scheduling

order. The plaintiffs filed objections, and the Bristol

defendants filed a reply. Following a six-week stay procured by

the parties in order to attempt to settle the case (which was

ultimately unsuccessful), the court heard oral argument on the

summary judgment motions on June 16, where all parties appeared

through counsel, and where the court offered its preliminary view

that the motions would be denied, at least in part.

Several days later, on June 22, the Bristol defendants filed

a purported “addendum to” the summary judgment hearing, which

essentially summarized the arguments they presented there and in

their summary judgment papers. Then, on July 2, more than two

weeks after the court heard oral argument, the CNHSOU defendants

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filed a “motion to supplement” their presentation there. This

motion cited and discussed a 1997 case by the First Circuit Court

of Appeals that the CNHSOU defendants had not cited in their

opening brief on summary judgment (they did not file a reply). 

The “motion to supplement” also stated that the plaintiffs had no

objection to it and, in fact, “desire[d] to respond” by July 9.

 The Local Rules require each motion to be accompanied by a

supporting memorandum, L.R. 7.1(a)(2), and permit a reply

memorandum, as of right for dispositive motions, L.R. 7.1(e)(1).

They do not contemplate any additional memoranda by the moving

party in support of its motion. So the defendants’ additional

filings are plainly not authorized by the rules.

It is true that this court, as a matter of practice,

occasionally allows supplemental briefing on motions, either on

its own initiative or on a party’s request. Here, however, the

court did not invite any additional briefing, and the Bristol

defendants did not ask for leave to file any. While the CNHSOU

defendants are making such a request now, their “motion to

supplement” does not explain why they did not cite the case it

discusses at an earlier stage, e.g., their summary judgment

memorandum, a reply memorandum, or even at oral argument--let

alone nearly two weeks after oral argument. And no explanation

is apparent, since the case was decided more than 10 years ago,

by the First Circuit, and is offered in support of one of the

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principal arguments the CNHSOU defendants made in their summary

judgment memorandum (which is not to say that the court agrees

that the case supports that argument).

The court is further troubled that the filings by both sets

of defendants purport to “supplement” what they presented at oral

argument. The purposes of oral argument are to assist the court

in understanding the positions the parties have presented in

their motion papers, see L.R. 7.1(d), and to provide counsel with

an opportunity to advocate for those positions in person before

the court. Those purposes are defeated if, as appears to have

happened here, the parties resort to post-hearing filings that

reformulate those positions in response to the court’s less-thanfavorable reactions to them as originally presented.1

Moreover, as a practical matter, the briefing on a motion

needs to come to an end at some point, and that point is the one

established by Local Rule 7.1. While, again, oral argument

occasionally refocuses the case on issues that merit additional

briefing, the court does not believe that happened here, and the

defendants have made no attempt to demonstrate otherwise.

The court is not electing form over substance. The purpose 1

of oral argument (which this court in particular frequently

holds) is to facilitate the development of good arguments, not to

squelch them. But oral argument is not meant to trigger (or

authorize) further briefing every time a judicial utterance or

question gives counsel cause for concern.

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Accordingly, the CNHSOU defendants’ motion to supplement

(document no. 49) is DENIED, and the Bristol defendants’

“addendum” (document no. 48) is STRICKEN. There shall be no

further filings in connection with the summary judgment motions,

on which the court expects to issue a ruling shortly. 

SO ORDERED.

____________________________

Joseph N. Laplante

United States District Judge

Dated: July 8, 2010

cc: Matthew J. Lahey, Esq.

Charles P. Bauer, Esq.

Jeanne P. Herrick, Esq.

K. Joshua Scott, Esq.

William G. Scott, Esq.

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