Beaudette v. Bank of America, Inc.

Filing 22

///ORDER denying 16 Motion for Reconsideration of 14 Order on Motion to Dismiss.Plaintiff's response to motion to dismiss has been considered; defendant's motion is granted as held in order 1/18/12. Plaintiff granted opportunity to file amended complaint by 3/1/12; if not filed, case will remain closed. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Steven J. Beaudette
v.

Civil No. 11-cv-569-JD
Opinion No. 2012 DNH 045

Bank of America Corporation
O R D E R
Steven J. Beaudette, proceeding pro se, filed suit against
the Bank of America, Inc. in state court, alleging that the Bank
improperly initiated foreclosure proceedings while a loan
modification was in progress.

The Bank removed the case to this

court based on diversity jurisdiction, 28 U.S.C. § 1332.
Beaudette filed an objection to removal, a motion to dismiss and
remand the case, and a motion for appointment of counsel, which
were denied.
dismiss.

The Bank moved to substitute a party and to

Beaudette failed to respond to either of the Bank’s

motions, and they were granted.
Beaudette filed a motion for reconsideration of the order
denying his motion to remand and an objection to the court’s
order granting the Bank’s motion to dismiss.

In his objection,

Beaudette represented that he did not receive the Bank’s motion
to dismiss.

The court granted Beaudette time to file his

response to the Bank’s motion, and he has now filed a response.

A.

Motion for Reconsideration
In general, “motions for reconsideration are appropriate

only in a limited number of circumstances. . . .”
v. Allen, 573 F.3d 42, 53 (1st Cir. 2009).

United States

“A court

appropriately may grant a motion for reconsideration where the
movant shows a manifest error of law or newly discovered
evidence” or when “the court has patently misunderstood a party
or has made an error not of reasoning but apprehension.”

Ruiz

Rivera v. Pfizer Pharms., LLC, 521 F.3d 76, 81-82 (1st Cir. 2008)
(internal quotation marks omitted).

“Motions for reconsideration

are not to be used as ‘a vehicle for a party to undo its own
procedural failures [or] allow a party to advance arguments that
could and should have been presented to the district court” in
support of the party’s original motion.

Allen, 573 F.3d at 53

(quoting Iverson v. City of Boston, 452 F.3d 94, 104 (1st Cir.
2006)).
Beaudette argued in support of his motion to remand that the
Bank failed to remove the case from state court within the thirty
days allowed.

See 28 U.S.C. § 1446(b).

Beaudette’s theory was

based on the hour the complaint was served and the hour the
notice of removal was filed.

The court explained that under the

Federal Rules of Civil Procedure, the time under § 1446(b) is

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counted in days, not hours and denied the motion.

See Fed. R.

Civ. P. 6(a)(1).
In his motion for reconsideration, Beaudette argues that if
both the day of service and the filing date are counted, the
notice of removal was filed on the thirty-first day.

He also

repeats his argument based on the hours of service and filing.
As provided in Rule 6(a), the time is computed in days, not
hours, and the day of the triggering event is not counted.
Therefore, the removal notice was timely filed.

B.

Motion to Dismiss
The Bank interpreted Beaudette’s complaint to allege a claim

for intentional infliction of emotional distress.

The Bank moved

to dismiss the claim on the ground that Beaudette failed to
allege sufficient facts to state that claim.
file a response to the motion.

Beaudette did not

The motion was granted.

Subsequently Beaudette was permitted to file a late response
in which he does not oppose dismissal of a claim for intentional
infliction of emotional distress but suggests that he intended to
allege claims against the Bank for deceptive practices and due
process violations.

Because Beaudette is proceeding pro se, he

will be given an opportunity to file an amended complaint to
allege the claim or claims, other than intentional infliction of
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emotional distress, that he intends to bring against the Bank.
If Beaudette chooses to file an amended complaint, he shall
follow the schedule provided below.

Conclusion
For the foregoing reasons, the plaintiff’s motion for
reconsideration (document no. 16) is denied.
The plaintiff’s response to the defendant’s motion to
dismiss has been considered.

The defendant’s motion is granted,

as held in the court’s order issued on January 18, 2012.

The

intentional infliction of emotional distress claim is dismissed.
The plaintiff is granted an opportunity to file an amended
complaint, which shall be filed on or before March 1, 2012.

If

an amended complaint is not filed by that date, the case will
remain closed.

SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
February 15, 2012
cc:

Steven J. Beaudette, pro se
Christopher J. Somma, Esquire

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