Tsetseranos v . Tech Prototype CV-93-676-SD 07/26/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Cheryl Tsetseranos

v. Civil N o . 93-676-SD Tech Prototype, Inc.

O R D E R

On April 1 0 , 1995, this court issued an order granting

defendant Tech Prototype's motion for summary judgment.

Presently before the court is plaintiff Cheryl Tsetseranos'

motion for reconsideration of that order, which the court treats

as a Rule 59(e), Fed. R. Civ. P., motion to alter or amend

judgment. Also before the court are defendant's related motion to strike the affidavit of Colleen Foster and motion for

sanctions.

Discussion

1. Defendant's Motion to Strike

In support of her motion for reconsideration, plaintiff

submits the affidavit of Colleen Foster, a paralegal who has been

in contact with the Guardian Life Insurance Company regarding plaintiff's disability benefits. Foster states, inter alia, "I

have been told by Cheryl, a representative at The Guardian, that

it appears that the employer delayed in completing the employer

section of the disability claim form." Affidavit of Colleen S .

Foster ¶ 4 (attached to Defendant's Motion to Strike as Exhibit

A).

Defendant moves to strike this statement under Rule 56(e),

Fed. R. Civ. P., on the ground that it is inadmissible hearsay.1

The court agrees that statements made to Foster by Guardian

representatives are inadmissible hearsay. Defendant's motion to

strike (document 27) is accordingly granted as to paragraph 4 of

the Foster affidavit.

2. Defendant's Motion for Sanctions

Pursuant to Rule 56(g), Fed. R. Civ. P., defendant moves for an award of attorney's fees for having to oppose plaintiff's

motion to reconsider. Defendant contends that such an award is

warranted because plaintiff submitted an affidavit in support of

1 Rule 56(e) provides in pertinent part that "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."

2 her motion "which she knew, or should have known, [was] false."

Defendant's Motion ¶ 6.

Rule 56(g) states, Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.

"It is axiomatic that sanctions under Rule 56(g) will not be

imposed unless the court is convinced that the party employing

affidavits was acting in bad faith or solely for the purpose of

delay." 10A CHARLES ALAN WRIGHT ET A L . , FEDERAL PRACTICE AND PROCEDURE:

CIVIL 2D § 2742, at 564 (1983). Further, in "[t]he rare instances

in which Rule 56(g) sanctions have been imposed, the conduct has been particularly egregious." Fort Hill Builders, Inc. v .

National Grange Mut. Ins. Co.,

1 , 16 (1st Cir. 1989)

(citing cases).

The court, having reviewed plaintiff's response to

defendant's motion, is not convinced that the challenged portions

of plaintiff's affidavit were submitted in bad faith and

therefore concludes that an award of sanctions under Rule 56(g)

3 would be inappropriate. Defendant's motion for sanctions

(document 26) is denied.

3. Plaintiff's Motion for Reconsideration

Rule 59(e) provides that "[a] motion to alter or amend the judgment shall be served not later than 10 days after entry of

the judgment."2 Said rule "may properly be invoked to request a

district court to reconsider, vacate, or even reverse its prior

holding." National Metal Finishing C o . v . Barclaysamerican/

Commercial, Inc.,

(1st Cir. 1990); Northern

Cheyenne Tribe v . Hodel,

2 4 , 227 (9th Cir. 1988) ("A

motion for reconsideration of a summary judgment is appropriately

brought under rule 59(e).").

"Rule 59(e) does not allow the losing party to repeat old

arguments previously considered and rejected, or to raise new legal theories that should have been raised earlier." National

Metal Finishing, supra,

. See also Russell v .

Delco Remy,

(7th Cir. 1995) (Rule 59(e) "may not

be used to raise novel legal theories that a party had the

ability to address in the first instance."). However, a Rule

2 Plaintiff's motion, filed on April 2 4 , 1995, is timely. See Rule 59(e) and Rule 6 ( a ) , Fed. R. Civ. P.

4 59(e) motion is the proper vehicle for asking a court "to modify

its earlier disposition of a case because of an allegedly

erroneous legal result," Appeal of Sun Pipe Line Co.,

2 , 24 (1st Cir. 1987), cert. denied,

(1988), or to

reconsider a decision in light of newly discovered evidence or an

intervening change in the law, National Metal Finishing, supra,

n.2. See also Hayes v . Douglas Dynamics, Inc.,

8 , 90-91 n.3 (1st Cir. 1993) ("Rule 59(e) motions are

granted for reasons such as the commission by the trial court of

a manifest error of law or fact, the discovery of new evidence,

or an intervening change in the l a w . " ) , cert. denied, ___ U.S.

___, 114 S . C t . 2133 (1994).

In granting defendant's motion for summary judgment, the

court relied in part on the undisputed fact that plaintiff

received the same five and one-half months of disability benefits

after she was terminated as she would have received had she not been terminated. Plaintiff now asks the court to reconsider its

decision by arguing that her receipt of said disability benefits

was "mere happenstance," that defendant did not believe plaintiff

would be eligible for those benefits after she was fired, and

that defendant did not willingly allow plaintiff to receive

5 disability benefits after her termination. Plaintiff's

Memorandum at 3-6.

Evidence regarding plaintiff's receipt of disability

benefits following her termination was presented and discussed by

defendant when it moved for summary judgment. The arguments

plaintiff now makes with respect to her receipt of disability

benefits are all arguments that could have and should have been

raised at summary judgment. In addition, plaintiff's failure to

make these arguments earlier is not due to the discovery of new

evidence or an intervening change in the law. The remaining

arguments submitted by plaintiff are unavailing for the same

reasons.

Further, consideration of the arguments raised in

plaintiff's motion for reconsideration does not alter the court's

prior determination. The court continues to find that the

evidence presented, when viewed in the light most favorable to plaintiff, is insufficient to support a finding that defendant's

articulated reasons for terminating plaintiff's employment are a

pretext, and that the true reason is discriminatory. Udo v .

Tomes,

(1st Cir. 1995); Smith v . Stratus Computer,

Inc.,

1 , 12 (1st Cir. 1994), cert. denied, __ U.S. __,

115 S . C t . 1958 (1995).

6 Under these circumstances, plaintiff's motion for

reconsideration (document 24) must be and herewith is denied.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

July 2 6 , 1995

cc: Robert E . Jauron, Esq. Randall E . Wilbert, Esq.

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