Ortolano v. City of Nashua, NH et al

Filing 130

ORDER denying 127 Motion for Reconsideration 125 Order on Motion for Summary Judgment. So Ordered by Chief Judge Landya B. McCafferty. (gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Laurie Ortolano
v.

Civil No. 22-cv-326-LM
Opinion No. 2025 DNH 032 P

City of Nashua, et al.
ORDER
Defendants Steven Bolton and Celia Leonard have filed a motion to
reconsider (doc. no. 127) this court’s order (doc. no. 125) denying their motion for
summary judgment. For the following reasons, defendants’ motion (doc. no. 127) is
denied.
STANDARD OF REVIEW
Motions to reconsider orders denying summary judgment are governed by
Local Rule 7.2(d). See LR 7.2(d); see also Bautista Cayman Asset Co. v. Centro
Cardio. de Manatí III, C.S.P., 731 F. Supp. 3d 264, 268 (D.P.R. 2024) (explaining
why motions to reconsider denials of summary judgment are not governed by Rules
59 or 60 of the Federal Rules of Civil Procedure). Under that rule, a party seeking
reconsideration must show “that the order was based on a manifest error of fact or
law.” LR 7.2(d). Reconsideration is an extraordinary remedy that should be applied
sparingly, and is usually limited to situations in which there is “newly discovered
evidence” or “an intervening change in the law.” Fujifilm N. Am. Corp. v. M&R
Printing Equip., Inc., Civ. No. 20-cv-492-LM, 2022 WL 18998942 at *1 (D.N.H. Dec.

16, 2022). A motion to reconsider will be denied “when the motion merely rehashes
already presented arguments or introduces new evidence or arguments that could
have been presented before the court’s ruling.” Id.
DISCUSSION
As explained in the court’s order denying summary judgment, a plaintiff
pursuing a retaliatory arrest claim need not establish a lack of probable cause for
her arrest if she “presents objective evidence that [she] was arrested when
otherwise similarly situated individuals not engaged in the same sort of protected
speech had not been.” Doc. no. 125 at 7 (quoting Nieves v. Bartlett, 587 U.S. 391,
407 (2019)). Defendants contend that this court manifestly erred when it concluded
that Ortolano had presented such evidence. According to defendants, Ortolano
failed to identify sufficiently similar comparators to overcome summary judgment
because, among other things, none of the comparators she identified involved a
locked office. Doc. no. 127 at 2.
However, defendants overlook the Supreme Court’s admonishment in
Gonzalez (an opinion discussed in some depth in this court’s summary judgment
order) that a plaintiff need not put forth “virtually identical” comparators. Gonzalez
v. Trevino, 602 U.S. 653, 658 (2024); see also id. at 668 (Alito, J., concurring) (“[A]
plaintiff does not need to identify another person who was not arrested under the
same law for engaging in a carbon-copy course of conduct.”). Ortolano has presented
objective evidence that the City’s general policy is to forego arrests in Ortolano’s
circumstances—when the trespassing person leaves when asked to do so by a police
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officer. She has also presented objective evidence that other persons who engaged in
similar conduct—trespassing at Nashua City Hall—were not arrested. This
evidence is sufficient to create a genuine dispute of fact as to whether Ortolano can
satisfy the Nieves exception. Moreover, defendants’ argument merely elaborates
upon an argument they made in reply to Ortolano’s objection and therefore provides
no grounds for reconsideration.
Defendants next contend that this court manifestly erred when it concluded
that genuine disputes of fact as to whether defendants’ conduct was a but-for cause
of Ortolano’s arrest preclude entry of summary judgment. They advance several
arguments in this regard. First, defendants assert that the evidence of causation
Ortolano pointed to was inadmissible hearsay. But a party objecting to
consideration of particular evidence at summary judgment on grounds of
admissibility must demonstrate that the evidence “cannot be presented in a form
that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). “The standard is not
whether the evidence at the summary judgment stage would be admissible at
trial—it is whether it could be presented at trial in an admissible form.” Rahim ex
rel. Estate of Rahim v. Doe, 51 F.4th 402, 412 (1st Cir. 2022) (brackets omitted)
(quoting Gannon Int’l,, Ltd. v. Blocker, 684 F.3d 785, 793 (8th Cir. 2012)). Here,
defendants fail to demonstrate that the evidence of causation Ortolano relied upon
could not be presented in a form that would be admissible at trial.
Next, defendants argue that, to the extent they caused Ortolano’s arrest, they
did so in their capacity as private citizens and not as state actors. Defendants

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identify no reason they could not have raised this argument in their motion for
summary judgment or in their reply to Ortolano’s objection. As such, it provides no
grounds for reconsideration.
Defendants also argue that, even if their conduct was a but-for cause of
Ortolano’s arrest, their conduct does not reflect that they were motivated by
retaliatory animus. Again, defendants did not raise this argument in the summary
judgment briefing and they identify no reason they could not have done so.
Reconsideration is therefore not warranted on this basis.
The remaining assertions defendants raise regarding the court’s causation
determination simply rehash their contentions that they did not cause her arrest
and that the arrest decision was made by the Nashua Police Department alone.
They provide no grounds for reconsideration of this court’s conclusion that genuine
disputes of fact as to whether defendants’ conduct was a but-for cause of Ortolano’s
arrest compel denial of defendants’ motion for summary judgment.
Finally, defendants argue that the court manifestly erred when it found that
a plaintiff pursuing a retaliatory arrest claim need not prove the arrest subjectively
chilled the exercise of her First Amendment rights. Although their argument is
somewhat unclear, they appear to contend that Ortolano cannot show a deprivation
of her First Amendment rights absent a showing that she was actually chilled from
exercising those rights. But retaliatory arrests violate the First Amendment. And to
prevail on such a claim, a plaintiff need not show that the arrest subjectively
deterred them from engaging in protected conduct. See, e.g., Grossman v. Martin,

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566 F. Supp. 3d 136, 145 (D.R.I. 2021). Defendants identify no basis to believe that
this court manifestly erred when it held that a plaintiff pursuing a retaliatory
arrest claim need not show the arrest actually chilled the exercise of her First
Amendment rights.
CONCLUSION
Defendants’ motion to reconsider (doc. no. 127) is denied.
SO ORDERD.

__________________________
Landya McCafferty
United States District Judge
March 10, 2025
cc:

Counsel of Record

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