Appell v. Giaccone, et al.

• Court: District Court, D. New Hampshire
• Decided: January 26, 1998
• Docket: CV-96-060-M
• Status: Published

Opinion

Appell v. Giaccone, et al. CV-96-060-M 01/26/98 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Leonard Appell

v. Civil No. 97-60-M

Nicholas Giaccone, Christopher O'Connor, and Town of Hanover, New Hampshire

O R D E R

The Town of Hanover moves the court to reconsider part of

its order dated December 11, 1997, dismissing claims against the

individual defendants but denying the motion to dismiss as to

claims against Hanover based on allegations of malicious

prosecution. In its prior order, the court noted that Hanover

had cited no authority to support its argument that prosecutorial

immunity barred plaintiff's respondeat superior claim; that the

court found no New Hampshire law on point; and that decisions in

other states seemed in conflict. The court also pointed out that

Hanover had not interposed state law municipal immunity as a

defense. Hanover's motion for reconsideration attempts to fill

the gaps in its original motion to dismiss.

Motions to reconsider generally are aimed at reconsideration

of issues previously raised and argued in a party's pleadings and

are not available to raise new issues or arguments for initial

consideration. See Jorge Rivera Surillo v. Falconer Glass

Indus., 37 F.3d 25, 29 (1st Cir. 1994); see also Crosbv Yacht

Yard, Inc. v. Yacht "Chardonnav", 164 F.R.D. 135, 136-37 (D.

Mass. 1996). When plaintiff is proceeding pro se, as here. consideration of dispositive arguments in the context of a motion

to reconsider may cause confusion about the consequences of the

motion. In fact, plaintiff has not filed an objection to

Hanover's motion.

The issues raised and legal argument presented by Hanover in

its motion to reconsider may well be meritorious. If granted,

the motion would be dispositive as to plaintiff's state law

claims. Dispositive arguments would be more appropriately raised

in a motion to dismiss or for summary judgment. Accordingly,

Hanover's motion for reconsideration (document no. 18) is denied

without prejudice to refiling as a dispositive motion.

SO ORDERED.

Steven J. McAuliffe United States District Judge

January 26, 1998

cc: Leonard Appell Charles P. Bauer, Esq.