Coltin v. Town of Londonderry CV-98-170-JD 06/09/99 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
David H. Coltin
v. Civil No. 98-170-JD
Town of Londonderry, et al.
O R D E R
The pro se plaintiff, David Coltin, moves the court for
reconsideration of its May 5, 1999, order granting the
defendants' motions for summary judgment (document no. 57). The
plaintiff asserts a number of grounds in support of his motion to
reconsider. Among other things, the plaintiff argues that the
failure of the defendants to preserve a videotape recording of
events that transpired on October 10, 1994, deprived him of
evidence that could have indicated that he was not threatening,
intimidating, or harassing on that date. Therefore, he argues,
summary judgment should not have been entered against him. The
plaintiff also asserts that the failure of the police to guestion
his son, pursuant to a purported police department policy,
resulted in their failure to acguire exculpatory evidence and led
to the eventual criminal charges against him. The court
addresses the arguments seriatim. Discussion
The First Circuit Court of Appeals has held that challenges
to the correctness of a judgment are properly characterized as
motions under Fed. R. Civ. P. 59(e). See National Metal
Finishing, Inc. v. Barclays American/Commercial, Inc., 899 F.2d
119, 122 (1st Cir. 1990) (citing Rodriguez-Antuna v. Chase
Manhattan Bank Corp., 871 F.2d 1, 2 (1st Cir. 1989)). Under
Federal Rule of Civil Procedure 59(e), altering or amending the
judgment is within the trial court's discretion. See National
Metal Finishing, 899 F.2d at 125; Willens v. University of Mass.,
570 F.2d 403, 406 (1st Cir. 1978). A motion under Rule 59(e) may
be granted to "correct manifest errors of law or fact or to
present newly discovered evidence," Waltman v. International
Paper C o ., 875 F.2d 468, 473 (5th Cir. 1989), or if there is an
intervening change in the law. National Metal Finishing, 899
F.2d at 124 & n.2; Johnson v. Wefald, 779 F. Supp. 154, 155
(D.Kan. 1991). In the interest of providing finality to
judgments. Rule 59(e) does not permit the losing party to
reiterate arguments the court previously considered and rejected
or to raise new legal theories that should have been raised
earlier. See National Metal Finishing, 899 F.2d at 123 (citing
FDIC v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986)); see also,
FDIC v. World University, Inc., 978 F.2d 10, 16 (1st Cir. 1992)
2 (precluding new legal theories that could, and should, have been
raised earlier) .
As recounted more fully in the court's May 5, 1999, order,
the events underlying this case have their origin in the
plaintiff's arrival at the residence of defendant Ethel Coltin on
October 10, and 20, 1994, and the plaintiff's subseguent
prosecution on charges of stalking that arose from the incidents.
Part of the events of October 10, 1994, were recorded by
defendant Frank Rapisardi on a videotape which was subseguently
turned over to the Londonderry police.
On February 8, 1995, the Portsmouth District Court, Jury
Trial Division, dismissed the criminal charges against David
Coltin underlying the immediate action. The record indicates
that the plaintiff and/or his counsel viewed the videotape during
the pendency of the criminal proceedings against the plaintiff,
on or around January 20, 1995.1 On March 2, 1995, the court
denied the state's motion to reconsider. David Coltin brought
the immediate action on February 28, 1998. After the conclusion
of the criminal proceedings against the plaintiff, the tape was
returned to Ethel Coltin.
1In his motion for reconsideration, the plaintiff states that he should have been permitted the opportunity to view the videotape prior to January 20, 1995. See Plf's. Mot. to Reconsider at 5. Additionally, defendant William Hart, Jr., stated in his answers to interrogatories that he informed the plaintiff that he could view the videotape at the Londonderry Police Department, and that indeed the plaintiff and/or his counsel did ultimately view the tape. See Plf's. Obj . to Defs' . Mot. for Summary Judgment, Ex. 4 at 7 (document no. 38).
3 The plaintiff filed a motion to produce the videotape as
evidence in the immediate case on June 10, 1998. On the basis of
Ethel Coltin's affidavit that the videotape was erased and
perhaps discarded in 1995, Magistrate Judge James Muirhead denied
the motion. See Plf's. Mot. to Produce at 1. However, the
magistrate expressly stated it was "without prejudice to any
motions based upon a failure to preserve evidence." Id.
The plaintiff filed no motions on the basis of spoliation of
evidence. See Townsend v. American Insulated Panel, Co., 174
F.R.D. 1, 4 (D. Mass. 1997). Nor does evidence in the record
indicate that the plaintiff was actually prejudiced by the loss
of the videotape. See Vazquez-Corales v. Sea-Land Servs., Inc.,
172 F.R.D. 10, 13-14 (D.P.R. 1997). Both the police report and
the interrogatories of William Hart indicate that the tape
depicted behavior consistent with the charges of harassment and
intimidation. See Defs'. Mot. for Summary Judgment, Ex. 14 at 2
(document no. 27); Plf's. Obj. to Defs'. Mot. for Summary
Judgment, Ex. 4 at 7. There is no countervailing evidence in the
record.2 Moreover, the record reflects the plaintiff's adept
usage of affidavits. See Plf's. Mot. for Reconsideration, Ex. 2;
Plf's. Obj. to Def's. Mot. for Summary Judgment, Ex. 13 (document
n o . 36) .
2Ihe court further notes that the record indicates at the time of the tape recording's destruction, the criminal charges against David Coltin had been dismissed and the immediate case had not yet been filed. Moreover, the Rockingham County Superior Court order to preserve the videotape was dated October 6, 1995, while Ethel Coltin attests that she destroyed the tape in early 1995. See Defs'. Coltin and Rapisardi Mot. in Opposition to Plf's. Mot. to Produce Evidence at 1 (document no. 22).
4 The plaintiff next contests the failure of the police to
question his son and provides, for the first time, an affidavit
of his son as to the events on October 20, 1994.3 The
consideration of new evidence not timely presented earlier
depends on an analysis of the following factors: "(1) the
reasons for the failure to file the evidence in a timely fashion
(2) the importance of the evidence to the moving party's case;
(3) whether the evidence was available before the summary
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Coltin v. Town of Londonderry CV-98-170-JD 06/09/99 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
David H. Coltin
v. Civil No. 98-170-JD
Town of Londonderry, et al.
O R D E R
The pro se plaintiff, David Coltin, moves the court for
reconsideration of its May 5, 1999, order granting the
defendants' motions for summary judgment (document no. 57). The
plaintiff asserts a number of grounds in support of his motion to
reconsider. Among other things, the plaintiff argues that the
failure of the defendants to preserve a videotape recording of
events that transpired on October 10, 1994, deprived him of
evidence that could have indicated that he was not threatening,
intimidating, or harassing on that date. Therefore, he argues,
summary judgment should not have been entered against him. The
plaintiff also asserts that the failure of the police to guestion
his son, pursuant to a purported police department policy,
resulted in their failure to acguire exculpatory evidence and led
to the eventual criminal charges against him. The court
addresses the arguments seriatim. Discussion
The First Circuit Court of Appeals has held that challenges
to the correctness of a judgment are properly characterized as
motions under Fed. R. Civ. P. 59(e). See National Metal
Finishing, Inc. v. Barclays American/Commercial, Inc., 899 F.2d
119, 122 (1st Cir. 1990) (citing Rodriguez-Antuna v. Chase
Manhattan Bank Corp., 871 F.2d 1, 2 (1st Cir. 1989)). Under
Federal Rule of Civil Procedure 59(e), altering or amending the
judgment is within the trial court's discretion. See National
Metal Finishing, 899 F.2d at 125; Willens v. University of Mass.,
570 F.2d 403, 406 (1st Cir. 1978). A motion under Rule 59(e) may
be granted to "correct manifest errors of law or fact or to
present newly discovered evidence," Waltman v. International
Paper C o ., 875 F.2d 468, 473 (5th Cir. 1989), or if there is an
intervening change in the law. National Metal Finishing, 899
F.2d at 124 & n.2; Johnson v. Wefald, 779 F. Supp. 154, 155
(D.Kan. 1991). In the interest of providing finality to
judgments. Rule 59(e) does not permit the losing party to
reiterate arguments the court previously considered and rejected
or to raise new legal theories that should have been raised
earlier. See National Metal Finishing, 899 F.2d at 123 (citing
FDIC v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986)); see also,
FDIC v. World University, Inc., 978 F.2d 10, 16 (1st Cir. 1992)
2 (precluding new legal theories that could, and should, have been
raised earlier) .
As recounted more fully in the court's May 5, 1999, order,
the events underlying this case have their origin in the
plaintiff's arrival at the residence of defendant Ethel Coltin on
October 10, and 20, 1994, and the plaintiff's subseguent
prosecution on charges of stalking that arose from the incidents.
Part of the events of October 10, 1994, were recorded by
defendant Frank Rapisardi on a videotape which was subseguently
turned over to the Londonderry police.
On February 8, 1995, the Portsmouth District Court, Jury
Trial Division, dismissed the criminal charges against David
Coltin underlying the immediate action. The record indicates
that the plaintiff and/or his counsel viewed the videotape during
the pendency of the criminal proceedings against the plaintiff,
on or around January 20, 1995.1 On March 2, 1995, the court
denied the state's motion to reconsider. David Coltin brought
the immediate action on February 28, 1998. After the conclusion
of the criminal proceedings against the plaintiff, the tape was
returned to Ethel Coltin.
1In his motion for reconsideration, the plaintiff states that he should have been permitted the opportunity to view the videotape prior to January 20, 1995. See Plf's. Mot. to Reconsider at 5. Additionally, defendant William Hart, Jr., stated in his answers to interrogatories that he informed the plaintiff that he could view the videotape at the Londonderry Police Department, and that indeed the plaintiff and/or his counsel did ultimately view the tape. See Plf's. Obj . to Defs' . Mot. for Summary Judgment, Ex. 4 at 7 (document no. 38).
3 The plaintiff filed a motion to produce the videotape as
evidence in the immediate case on June 10, 1998. On the basis of
Ethel Coltin's affidavit that the videotape was erased and
perhaps discarded in 1995, Magistrate Judge James Muirhead denied
the motion. See Plf's. Mot. to Produce at 1. However, the
magistrate expressly stated it was "without prejudice to any
motions based upon a failure to preserve evidence." Id.
The plaintiff filed no motions on the basis of spoliation of
evidence. See Townsend v. American Insulated Panel, Co., 174
F.R.D. 1, 4 (D. Mass. 1997). Nor does evidence in the record
indicate that the plaintiff was actually prejudiced by the loss
of the videotape. See Vazquez-Corales v. Sea-Land Servs., Inc.,
172 F.R.D. 10, 13-14 (D.P.R. 1997). Both the police report and
the interrogatories of William Hart indicate that the tape
depicted behavior consistent with the charges of harassment and
intimidation. See Defs'. Mot. for Summary Judgment, Ex. 14 at 2
(document no. 27); Plf's. Obj. to Defs'. Mot. for Summary
Judgment, Ex. 4 at 7. There is no countervailing evidence in the
record.2 Moreover, the record reflects the plaintiff's adept
usage of affidavits. See Plf's. Mot. for Reconsideration, Ex. 2;
Plf's. Obj. to Def's. Mot. for Summary Judgment, Ex. 13 (document
n o . 36) .
2Ihe court further notes that the record indicates at the time of the tape recording's destruction, the criminal charges against David Coltin had been dismissed and the immediate case had not yet been filed. Moreover, the Rockingham County Superior Court order to preserve the videotape was dated October 6, 1995, while Ethel Coltin attests that she destroyed the tape in early 1995. See Defs'. Coltin and Rapisardi Mot. in Opposition to Plf's. Mot. to Produce Evidence at 1 (document no. 22).
4 The plaintiff next contests the failure of the police to
question his son and provides, for the first time, an affidavit
of his son as to the events on October 20, 1994.3 The
consideration of new evidence not timely presented earlier
depends on an analysis of the following factors: "(1) the
reasons for the failure to file the evidence in a timely fashion
(2) the importance of the evidence to the moving party's case;
(3) whether the evidence was available before the summary
judgment decision was made; and (4) the likelihood that the
non-moving party will suffer prejudice if the motion to alter is
granted." International Marine Carriers v. The Oil Spill
Liability Trust Fund, 914 F.Supp. 149, 151 (S.D.Tex. 1995).
Although the plaintiff does not address the issue of the
admissibility of the evidence, Aaron Coltin attests that he was
unable to provide evidence beforehand due to an illness. Even
assuming that the admission of the evidence is warranted, the
testimony of Aaron Coltin would not change the outcome of this
case. As he stated in the affidavit:
I was occupied in the bathroom when my father arrived at 11 Jay Drive. When I eventually exited the bathroom I realized that there was some type of conflict outside. At that time I went to a back room and turned on the television in order to avoid the conflict that was occurring. I don't recall my father acting in a threatening manner.
Plf's. Mot. to Reconsider, Ex. 2. Furthermore, Aaron Coltin
attests that he was "influenced by the plaintiff to write [the]
affadavit [sic]." This evidence does not create a triable issue
31he plaintiff's son cannot recall the events of October 4, 1994, as he was upset by them. as to whether there was probable cause in the case at hand and
therefore does not change the outcome of the summary judgment
order.4
The court finds any remaining issues unworthy of further
discussion.
Conclusion
For the reasons discussed above, the plaintiff's motion for
reconsideration is denied (document no. 57).
SO ORDERED.
Joseph A. DiClerico, Jr, District Judge
June 9, 1999
cc: David H. Coltin, pro se Dyana J. Crahan, Esguire Jay Eric Printzlau, Esguire
4To the extent that the plaintiff repeats his earlier arguments premised upon visitation rights, the court deems such arguments unworthy of discussion. See National Metal Finishing, 899 F .2d at 123.