Brady v. School Board, Somersworth School Dist., et al.

2016 DNH 202

• Court: District Court, D. New Hampshire
• Decided: November 1, 2016
• Docket: 16-cv-069-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Lisa Marie Brady

v. Civil No. 16-cv-069-JD Opinion No. 2016 DNH 202 School Board, Somersworth School District, et al.

O R D E R

Lisa Marie Brady, proceeding pro se, brings federal and

state claims against the School Board of the Somersworth School

District; Jeni Mosca, the Superintendent of Schools; Pamela

MacDonald, the Special Education Director; and Jeanne Kincaid,

counsel for the school district, arising from the termination of

Brady’s employment. The claims against Jeanne Kincaid were

previously dismissed. Brady moves for reconsideration of the

order dismissing her defamation claim against Kincaid.

Standard of Review

Reconsideration of an order is “‘an extraordinary remedy

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

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

al., 11 Federal Practice and Procedure § 2810.1 (2d ed. 1995));

accord Giroux v. Fed. Nat’l Mortg. Assoc., 810 F.3d 103, 106

(1st Cir. 2016). For that reason, reconsideration is “appropriate only in a limited number of circumstances: if the

moving party presents newly discovered evidence, if there has

been an intervening change in the law, or if the movant can

demonstrate that the original decision was based on a manifest

error of law or was clearly unjust.” United States v. Allen,

573 F.3d 42, 53 (1st Cir. 2009).

Importantly, a motion for reconsideration cannot succeed

when the moving party is attempting “to undo its own procedural

failures” or “advanc[ing] arguments that could and should have

been presented earlier.” Id. A motion for reconsideration also

is not “a mechanism to regurgitate old arguments previously

considered and rejected.” Biltcliffe v. CitiMortgage, Inc., 772

F.3d 925, 930 (1st Cir. 2014) (internal quotation marks

omitted).

Discussion

Brady moves for reconsideration of the court’s order

dismissing her claims against Jeanne Kincaid, challenging the

ruling on her defamation claim. She also asserts that her

motion should be considered, although filed after the deadline,

because of her intervening interlocutory appeal to the First

Circuit. Kincaid objects to reconsideration because the motion

is too late and because it would fail on the merits if

considered.

2 A. Timeliness

Brady moved on October 11, 2016, for reconsideration of the

court’s June 13, 2016, order. As such, the motion was filed

long after the deadline. See LR 7.2(d). Brady explains that

the delay was due to her interlocutory appeal of the order to

the First Circuit, which she has now dismissed.

The court need not decide whether Brady’s misunderstanding

of the procedures in federal court provides grounds for her late

motion because it fails on the merits.

B. Merits

Brady challenges the dismissal of her defamation claim

based on privilege.1 She argues that one of Kincaid’s statements

was made in public, not for purposes of a hearing.2 Brady’s

challenge raised in support of reconsideration is based on a

misreading of the order.

In her complaint, Brady alleged that Kincaid defamed her

“in her legal pleadings” submitted to the New Hampshire

1 Brady also mentions 42 U.S.C. § 1983 but provides no developed argument to support reconsideration of the court’s ruling that § 1983 did not apply to Kincaid because she was not a state actor.

2 Brady, however, did not file any response to the motion to dismiss. As a result, she could have but did not offer her current argument in response to Kincaid’s motion to dismiss.

3 Department of Labor Hearing Officer. The statement she

challenged was: “As supported by Superintendent Mosca’s

Affidavit and accompanying documentation, Ms. Brady engaged in

highly disruptive conduct in the workplace which violated the

employees [sic] privacy and contravened state law barring

genetic testing absent express consent.” Complaint at 21. The

court dismissed the defamation claim, based on that statement,

because it is protected by the privilege afforded to judicial

proceedings.3

In support of her motion for reconsideration, however,

Brady cites other statements made by Kincaid that Brady

represents were “televised locally and published online to the

public” and, therefore, not subject to privilege. Those

statements are about Kincaid’s representation of the school

district in the termination proceeding before the school board

and the school board’s finding that Brady violated RSA 141-H:2.

The court previously addressed the statement about the

school board’s finding. Order, doc. no. 23 at 10, n.5. The

court found that the statement is not defamatory because it is

3 Brady cites Rule 37 of the New Hampshire Supreme Court Rules that discusses privilege for statements made during attorney disciplinary proceedings to challenge the privilege ruling. Because attorney disciplinary proceedings are not at issue in this case, the cited rule does not apply.

4 true. The court did not consider or mention the privilege

afforded to judicial proceedings in analyzing that statement.

Kincaid’s statement that she prosecuted the termination case

before the school board is also true.4 Truth is a complete

defense to a defamation claim. See Thomas v. Tel. Publ’g Co.,

155 N.H. 314, 335 (2007).

Therefore, Brady provides no cognizable grounds to

reconsider the order that dismissed all claims against Kincaid.

Conclusion

For the foregoing reasons, the plaintiff’s motion for

reconsideration (document no. 46) is denied.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

November 1, 2016

cc: Lisa Marie Brady, pro se Demetrio F. Aspiras, III, Esq. Brian J.S. Cullen, Esq. Melissa A. Hewey, Esq.

4 Brady’s misunderstanding of the use of the word “prosecuted” in this context is immaterial to the outcome of the motion.