Bourne v. Arruda

Filing 67

ORDER denying 57 Motion for Reconsideration Re: 55 Order. So Ordered by Magistrate Judge Landya B. McCafferty. (gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Samuel J. Bourne
v.

Civil No. 10-cv-393-LM

John R. Arruda, Jr., et al.

O R D E R
Before the court is plaintiff Samuel Bourne’s motion (doc.
no. 57) seeking partial reconsideration of the court’s June 10,
2011, order (doc. no. 55) granting in part and denying in part
defendants’ motion to dismiss.

Bourne has asserted that the

court should reconsider those parts of the order dismissing
certain claims asserted in the amended complaint.

Defendants

object (doc. no. 61).
Discussion
A motion for reconsideration may be granted if the movant
has demonstrated that the order was based on a manifest error of
fact or law.

See United States District Court, District of New

Hampshire Local Rule (“LR”) 7.2(e).

As defendants point out in

their objection (doc. no. 61), the motion to reconsider focuses
on Bourne’s assertion that defendants acted with malice and
premeditation in convening a public meeting to talk about

Bourne, Bourne’s litigation, and Bourne’s criticism of the
selectmen.

The issues of malice and premeditation, however, are

not relevant to the court’s bases for dismissing the claims at
issue.

See Order (doc. no. 55).

Those aspects of the motion

thus fail to show that the Order was based on any error.
Bourne raises several additional issues in the motion that
warrant further analysis:

(1) Bourne’s assertion that defendant

Arruda’s reference to a “police investigator” implied that
Bourne engaged in criminal conduct; and (2) Bourne’s assertion
that defendant Brooks’ rank and experience as a Marine gunnery
sergeant in Iraq, coupled with remarks made in February 2011,
show that in June 2010, Brooks’ pledge to take up arms was a
retaliatory threat of violence.
I.

Police Investigator
In the order at issue, the court found that none of

Arruda’s statements, cited by Bourne, could reasonably be
construed as implying that Bourne’s writing a letter to the
editor was a crime.

Bourne in the motion to reconsider points

to a new section of the June 2010 meeting transcript, in which
Arruda refers to a “police investigator”:
I asked this meeting to be called after a . . . letter
to the editor, which I never normally respond
to. . . . I’m going to be asking the board to – uh
somehow respond to this and not necessarily – I don’t
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intend to respond to this in the newspaper. I intend
to have this responded to by . . . counsel. If our
counsel can’t do this, we’ll find other counsel that
will. And if we can’t have a police investigator do
it here locally, we’ll find some police investigator
to do it. Uh if I have to take it to the state
attorney general’s office, I will. This article’s
written by Mr. Bourne. And we all know about Mr.
Bourne.
Ex. D to Am. Compl., at 2 (doc. no. 24-4, at 5).

Because Bourne

did not previously cite this precise statement, the court did
not explicitly address whether Arruda’s comments regarding a
“police investigator,” when construed in context, are actionable
for implying that he committed a crime.

See Catalfo v. Jensen,

657 F. Supp. 463, 466 (D.N.H. 1987) (whether communication is
capable of bearing defamatory meaning is issue of law to be
determined by court); accord Thomas v. Tel. Pub’g Co., 155 N.H.
314, 338, 929 A.2d 993, 1015 (2007).
The context for the cited statement includes Arruda’s later
remarks that he was comfortable with having Bourne’s charges
investigated, that an investigation had followed an earlier
claim by Bourne that the selectmen had forged a document, and
that Arruda would not be satisfied with law enforcement
officials now simply telling him not to worry about Bourne’s
charges.

Arruda concluded his remarks in this regard as

follows:

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So I’m asking that the attorney look into it. And if
there is an investigation needed again – Uh what I
really don’t want to happen is something to come back
that’s not in writing. Because I don’t want to hear
from the Sheriff’s Department or the State Police or
the Attorney General’s Office that there really is
nothing here. No. Uh I want you to show me that
there is nothing here. I want it in writing that
there’s nothing here. And if this is false and this
is libel, what happens to this guy? Because what has
happened to me stinks.
Ex. D to Am. Compl. at 11 (doc. no. 21-4, at 14).
Construing the reference to an investigation in context,
the only reasonable construction of Arruda’s “police
investigator” comment is that he was referring to an
investigation that would vindicate him in regard to charges
levied against him by Bourne, not an investigation of any
criminal activity by Bourne.

A reasonable listener could not

construe the remarks, in context, as intending to convey an
opinion that Bourne’s criticizing the selectmen was a crime.
Because Arruda’s comments cannot reasonably be construed in
context to apply to Bourne, Bourne’s defamation claim based on
those comments is not viable.

See Thomas, 155 N.H. at 338, 929

A.2d at 1015 (“‘Words may be found to be defamatory if they hold
the plaintiff up to contempt, hatred, scorn, or ridicule, or
tend to impair his standing in the community.’” (emphasis added)
(quoting Burke v. Town of Walpole, 405 F.3d 66, 94-95 (1st Cir.
2005)).

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II.

Brooks’ “Threat,” Rank, and Service
Bourne cites Brooks’ Marine Gunnery Sergeant rank and prior

service in Iraq in asserting that Brooks’ pledge in June 2010 to
“pick up arms” and stand with Arruda, taken together with
Brooks’ statements in February 2011, state a viable claim that
Brooks threatened Bourne in retaliation for Bourne’s protected
speech in criticizing the selectmen.

In the underlying Order

(doc. no. 51), this court found that Brooks’ statements in June
2010 could not reasonably be construed as a threat of violence;
in other words, no person of ordinary firmness would be chilled
from exercising his or her free speech rights in the face of
Brooks’ rhetorical posturing.
“While in some instances verbal threats may suffice to
constitute adverse action for purposes of a retaliation claim,
whether they do in a particular case is dependent upon the
specificity of the threat and the context in which it was made.”
Smith v. Christopher, No. 9:06-CV-1196, 2008 WL 4283519, *13
(N.D.N.Y. Sept. 16, 2008).

Neither Brooks’ rank, nor his prior

service in Iraq, nor comments he made eight months later (in
February 2011) -- about needing space to “reload” if Bourne were
to present a “Drega” situation -- alters the court’s conclusion
that the June 2010 statement was merely a rhetorical flourish,
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uttered by a town selectman on a public stage, and not a threat
of violence that could chill a person of ordinary firmness from
speaking out.

Accordingly, the motion to reconsider is denied

on that issue.
III. Remaining Issues
Defendants note that Bourne has again failed to seek their
concurrence before filing the motion to reconsider (doc. no.
57).

Bourne would be well-advised to heed this court’s prior

warnings about the consequences of failing to comply with the
local rules, to avoid such consequences in this case in the
future.

See L.R. 1.3 (“Except as otherwise provided by law, the

court may dismiss an action, enter a default, or impose other
sanctions it deems appropriate, for any violation of, or failure
to comply with, the local rules.”).
The court has given due consideration to the remaining
arguments set forth in the motion to reconsider.

The court

finds that Bourne has failed to show that the underlying order
was based on any error of law or fact (doc. no. 55).

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Conclusion
For the foregoing reasons, the court denies the motion to
reconsider (doc. no. 57).
SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge
August 4, 2011
cc:

Samuel J. Bourne, pro se
Brian J.S. Cullen, Esq.

LBM:nmd

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