Britton et al v. MARCUS, ERRICO, EMMER & BROOKS, P.C. et al

Filing 226

Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER. Plaintiffs Randy Britton and Carolyn Britton's Motion to Alter or Amend the September 25, 2023 Amended Judgment [Doc. No. 224 ] is DENIED. Please see attached. (Kelly, Danielle)

Case 1:18-cv-11288-IT Document 226 Filed 10/26/23 Page 1 of 3

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
RANDY BRITTON and CAROLYN
BRITTON,

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*
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Plaintiffs,
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v.
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MARCUS, ERRICO, EMMER & BROOKS, *
P.C., JENNIFER BARNETT, DEAN
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LENNON, KORDE & ASSOCIATES, P.C., *
and JULIE RANIERI,
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Defendants.
*

Civil Action No. 1:18-cv-11288-IT

MEMORANDUM & ORDER
TALWANI, D.J.

October 26, 2023

Pending before the court is Plaintiffs Randy Britton and Carolyn Britton’s Motion to
Alter or Amend the September 25, 2023 Amended Judgment [Doc. No. 224]. For the following
reasons, Plaintiffs’ Motion is DENIED.
I.

Discussion

Plaintiffs ask the court to vacate the Amended Judgment [Doc. No. 221] in this case and
stay the case for 90 days “so that the Brittons will have time to vacate the state court judgments.”
Mot. 1 [Doc. No. 224]. In support of their request, the Brittons argue that they have “newly
discovered and newly created evidence” that shows that Defendants illegally collected money
from the Brittons. Id. at 2.
Defendants respond that the Brittons have not presented a legitimate ground for relief
under Fed. R. Civ. P. 59(e), which requires that a motion to alter or amend a judgment be based
on a “manifest error of law or fact” or on “newly discovered evidence.” Opp. 1 [Doc. No. 225]
(quoting Zukowski v. St. Lukes Home Care Program, 326 F.3d 278, 282 n.3 (1st Cir. 2003)).

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Defendants contend that “newly created evidence” is not a category recognized by the law, and
Rule 59(e) “does not allow a party to introduce new evidence or advance arguments that could
and should have been presented to the district court prior to the judgment” Id. (quoting
Zukowski, 326 F.3d at 282 n.3)).
To the extent that the Brittons seek to reopen and stay this case because of ongoing
proceedings in state court, that argument is unavailing. This is the same argument that the
Brittons have previously made and the court has already rejected. See, e.g., Elec. Order [Doc.
No. 220]; Elec. Order [Doc. No. 212]. “The repetition of previous arguments is not sufficient to
prevail on a Rule 59(e) motion.” United States v. $23,000 in U.S. Currency, 356 F.3d 157, 165
n.9 (1st Cir. 2004).
The court also agrees that “newly created evidence” is not a category recognized by Rule
59(e). To the extent that the Brittons seek to vacate the judgment because of “newly discovered
evidence” (as distinct from “newly created evidence”), they have not presented information
sufficient for the court to determine what the “newly discovered” evidence is, or when it was
discovered. See Mot. 5 [Doc. No. 224] (referencing “newly discovered / created reconstruction
of the books and evidence” collectively); id. at 6 (referencing “newly discovered evidence”
without identifying it); id. at 8 (stating “I will attach the majority of the new and newly evidence
in an attached .pdf file”); Appendix of New and Newly Created Evidence [Doc. No. 224-1]
(table of data, with no specific identification of new evidence). While Plaintiffs contend that “it
has taken years to reconstruct the records because the payment applications are peculiarly within
the exclusive knowledge of MEEB and the management company,” they do not identify when
they obtained the information used for that reconstruction.

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II.

Conclusion

In sum, Plaintiffs’ “reconstruction” of Defendants’ financial records does not satisfy Rule
59(e)’s requirement that motions to alter or amend a judgment be based on “newly discovered
evidence.” Accordingly, the Motion to Alter or Amend the September 25, 2023 Amended
Judgment [Doc. No. 224] is DENIED.

October 26, 2023

/s/Indira Talwani
United States District Judge

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