Chin v. Garda CL New England, Inc.
| Maurice Christopher Chin |
| Garda CL New England, Inc. |
| 3:2015cv13110 |
| August 7, 2015 |
| US District Court for the District of Massachusetts |
| Springfield Office |
| Hampden |
| Mark G. Mastroianni |
| Assault, Libel, and Slander |
| 28 U.S.C. ยง 1441 |
| Plaintiff |
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Filing
102
Magistrate Judge Katherine A. Robertson: ELECTRONIC ENDORSED ORDER entered. On August 16, 2017, this court allowed in part an unopposed motion to strike filed by the defendant, ruling that the content of a document (the Diaz statement) was inadmissi ble hearsay for purposes of defendants motion for summary judgment because the plaintiff was relying on the content of the document for its truth. Pending before the court is plaintiffs motion for reconsideration of this ruling (Dkt. No. 98). Moti ons 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 prior to judgment. U.S. v. Allen, 573 F.3 d 42, 53 (1st Cir. 2009) (alteration in original) (quoting Iverson v. City of Boston, 452 F.3d 94, 104 (1st Cir. 2006)). Rather, motions for reconsideration are appropriate only if (1) the moving party presents newly discovered evidence, (2) there ha s been an intervening change in the law, or (3) the movant can demonstrate that the original decision was based on a manifest error of law or was clearly unjust. Id. (citing Marie v. Allied Home Mortg. Corp., 402 F.3d 1, 7 n.2 (1st Cir. 2005)). The granting of such a motion is an extraordinary remedy which should be used sparingly. Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006). In his motion for reconsideration, plaintiff argues that the Diaz statement is not hearsay because it is not being offered for its truth, or, alternatively, if it is hearsay, it falls within a number of recognized exceptions to the hearsay rule. These arguments could and should have been advanced in an opposition to defendants motion to strike. Hav ing failed to file an opposition, plaintiff cannot now use a motion for reconsideration as a vehicle for belatedly opposing the motion. Moreover, Plaintiffs motion does not fall within any of the limited circumstances where reconsideration is approp riate. Plaintiff has not identified any newly discovered evidence or change in the law or demonstrated manifest error. Even if the court were to reconsider its ruling on defendants motion to strike and consider the Diaz statement for its alleged n on-hearsay purpose i.e. to show that Diaz told Garda on January 18, 2013 that he had received reports of other missing bags, putting Garda on notice of other thefts at the time it reported the December 21, 2012 loss to the Springfield Police Departm ent it would not alter this courts recommendation that defendants motion for summary judgment be granted. Even if Garda was on notice on January 18, 2013 of other possible thefts, it does not create a triable issue as to whether Garda had probable cause to believe that Chin was involved in the December 21, 2012 loss, whether Garda instituted criminal proceedings against Chin when it reported the loss to the Springfield Police, or whether Garda acted with malice, i.e. an improper motive. For these reasons, plaintiffs motion for reconsideration - (Dkt. # 98) is DENIED. (See Attached Electronic Endorsed Order for complete details) (Finn, Mary)
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Filing
96
Magistrate Judge Katherine A. Robertson: MEMORANDUM AND ORDER entered. For the reasons set forth herein, Defendants Motion to Strike -(Dkt. No. 85) is DENIED in part and GRANTED in part. (Finn, Mary)
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Filing
24
Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. The Motion to Dismiss relying upon 59H is hereby DENIED, without prejudice, in order to permit Pltf. to conduct discovery as contemplated by the statute. The schedule for completion of discovery will be set forth in a separate scheduling order. The Motion to Dismiss, in so far as it relies on Fed.R. Civ. P. 12(b)(6), is hereby ALLOWED as to any claim pursuant to the Massachusetts Civil Rights Act, Mass. Gen. Laws Annotated sh. 12, 11H (&qu ot;MCRA"). First Circuit law makes clear that the termination, or threatened termination, of an at-will employee may not be deemed coercive for purposes of the MCRA. Nolan v. CNS, 656 F.3rd 71m\ 77 (1st.Cir, 2011); Drexler v. Tel Nexx, Inc. , _ F. Supp. 3rd _ (D Mass. 2015), 2015 WL 5096466 (D. Mass. Aug. 28, 2015). In all other respects, the Motion to Dismiss based on Fed. R. Civ.P. 12b(b)(6) is hereby DENIED. The incorprated motions for fees and for costs are hereby DENIED. The motion for hearing is DENIED, as moot. (Finn, Mary)
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| Plaintiff: Maurice Christopher Chin | |
| Represented By: | Tracy E. Duncan |
| Represented By: | Jeanne A. Liddy |
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| Defendant: Garda CL New England, Inc. | |
| Represented By: | Joseph A. Lazazzero |
| Represented By: | Stephen T. Melnick, III |
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