UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Adelbert H. Warner, II, et al.
v. Civil No. 16-cv-34-JD
Opinion No. 2017 DNH 139
James F. McLaughlin
O R D E R
Adelbert H. Warner, II, along with three other prisoners,
proceeding pro se, brought suit against James McLaughlin, a
detective in the Keene, New Hampshire, Police Department. The
plaintiffs alleged that McLaughlin violated the Electronic
Communications Privacy Act (“ECPA”), 18 U.S.C. § 2510, et seq.,
when he intercepted their on-line communications while posing as
an interested participant. The court dismissed all claims.
Warner seeks relief from judgment pursuant to Federal Rule of
Civil Procedure 60(b)(1) or (2) and also moves to supplement his
motion for relief. McLaughlin objects.
After Warner filed his motion for relief from judgment,
Nicholas Rowe and Randi L. Miller, each proceeding pro se, filed
motions to join Warner’s suit against McLaughlin. McLaughlin
objected to the motions and also moved to strike the motions.
Miller and Rowe filed objections to the motion to strike.
I. Motion for Relief from Judgment and Supplement
Warner seeks relief from judgment, asserting that the court
made mistakes of fact in approving, as modified, the report and
recommendation to dismiss his claims that McLaughlin violated
the ECPA. Warner then moved to supplement his motion “to
provide additional examples of [McLaughlin’s] evidence
fabrications, supported by evidence re-acquired by Warner from
the ‘Supporting Affidavit’ produced by [McLaughlin] for Warner’s
case, and contained with the Michigan State Police report
Incident No. 06-911-08.” McLaughlin objects to both motions.
The court has considered the additional evidence provided
by Warner through his motion to supplement his motion for relief
from judgment.
A. Standard of Review
Rule 60(b) allows the court to relieve a party from a final
judgment based on a variety of reasons listed in (1) through
(6). Relief under Rule 60(b) is extraordinary, so that a party
seeking relief “must establish, at the very least, that his
motion is timely; that exceptional circumstances exist, favoring
extraordinary relief; that if the judgment is set aside, he has
the right stuff to mount a potentially meritorious claim or
defense; and that no unfair prejudice will accrue to the
opposing parties should the motion be granted.” Rivera-
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Velazquez v. Hartford Steam Boiler Inspection & Ins. Co., 750
F.3d 1, 3-4 (1st Cir. 2014). Rule 60(b)(1) allows the court to
grant relief because of “mistake, inadvertence, surprise, or
excusable neglect,” and Rule 60(b)(2) allows the court to grant
relief based on “newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for a
new trial under Rule 59(b).”
B. Background
The plaintiffs alleged that McLaughlin violated
§ 2518(8)(a) by using computer word processing software to copy
their communications into affidavits. They also asserted that
McLaughlin altered and fabricated evidence against them. They
argued that their claims were not untimely because they were
entitled to equitable tolling. The plaintiffs asked that their
convictions be vacated and expunged from their records and
sought statutory damages along with attorneys’ fees and
litigation costs.
On preliminary review, pursuant to 28 U.S.C. § 1915A, the
magistrate judge found that the plaintiffs’ allegations did not
demonstrate that McLaughlin’s recording of their communications
violated § 2518(8)(a) and recommended dismissal of the complaint
for that reason. The magistrate judge also found that the
action was barred by the two-year statute of limitations,
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§ 2520(e), and that the plaintiffs had not alleged grounds to
support tolling of the limitation period. The court approved
the magistrate’s report and recommendation and dismissed all
claims on the grounds that the plaintiffs failed to allege a
cognizable claim that McLaughlin violated the ECPA,
§ 2518(8)(a), and that the claim was barred by the ECPA’s
statute of limitations.
Warner moved for reconsideration, arguing that dismissing
the case based on preliminary review denied him his right to a
jury trial under the Seventh Amendment and that the pleadings
were misconstrued and should have been construed in his favor.
In denying the motion for reconsideration, the court explained
Warner’s misperceptions about the court’s order dismissing the
claims and his misunderstanding of the applicable legal
standards and issues.
Three of the plaintiffs filed notices of appeal in November
of 2016. This court denied their motion to have their appeals
consolidated because of a lack of jurisdiction. The First
Circuit summarily affirmed the dismissal of the plaintiffs’
claims on March 17, 2017, on the ground that their claims were
time barred. The First Circuit noted that the two-year
limitations period had expired long before they brought suit and
that the “plaintiffs have identified no authority legitimately
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suggesting that Holland [v. Florida, 560 U.S. 631 (2010)] has any
bearing on the ECPA, notwithstanding plaintiffs’ frivolous
attempt to use the ECPA to collaterally attack their criminal
convictions.”
C. Discussion
Undeterred by the decision of the First Circuit, Warner has
filed a motion for relief from judgment pursuant to Rules
60(b)(1) and (2). McLaughlin has filed an objection.
1. Rule 60(b)(1)
In support of his motion, Warner argues that the court made
mistakes of fact in concluding that the plaintiffs had not shown
a violation of § 2518(8)(a).1 Under First Circuit precedent, the
“mistake” in Rule 60(b)(1) is the mistake of a party, not a
court. Venegas-Hernandez v. Sonolux Records, 370 F.3d 183, 188-
89 (1st Cir. 2004). For that reason, relief is not available
under Rule 60(b)(1) to correct any alleged errors of fact made
by a court.
Id.
1 Warner also filed a motion to supplement his motion for
relief from judgment in which he addresses “additional examples
of fabrication.” Warner argues that evidence shows that
McLaughlin fabricated emails that were used to convict Warner.
He contends that his additional evidence supports relief under
Rule 60(b)(1).
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2. Rule 60(b)(2)
Warner does not expressly state in his motion what newly
discovered evidence he offers to support relief from judgment.
It appears that initially Warner intended to rely on the report
of Kevin Peden of Peden Digital Forensics in Valleyford,
Washington, which is dated February 20, 2017. Warner then moved
to supplement his motion with additional evidence as noted in
footnote one above.
Peden states that he reviewed documents from the
plaintiffs’ criminal cases. In his opinion, the process used to
create the documents made them unreliable. Peden further
states, however, that without the actual logs of the
communications, “it is very difficult to determine the level of
accuracy of the provided chats throughout the reports.” Peden
suggests that another method of collecting the chats would have
been more reliable. As such, Peden’s report, at best, provides
lukewarm support for Warner’s claim.
Warner does not show, or even argue, that Peden’s report
could not have been obtained before judgment or at least in time
to move for reconsideration under Federal Rule of Civil
Procedure 59(e).2 More importantly, Peden’s report and the
2 Warner acknowledges he “re-acquired” the supplemental
evidence and does not show that he could not have presented that
evidence in support of his claim before the case was dismissed.
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additional evidence presented in the motion to supplement are
irrelevant to the timeliness of Warner’s claim. The plaintiffs’
claims were dismissed as untimely under the ECPA’s statute of
limitation, which was affirmed on appeal. As a result, even if
Warner could meet the requirements of Rule 60(b)(2), which he
has not done, he cannot show that the additional evidence would
allow him to present a meritorious claim.
II. Motions to Join and to Strike
Rowe and Miller move to join in this case against
McLaughlin. In support they cite Federal Rule of Civil
Procedure 20(a). This case, however, has been dismissed, and
judgment has entered. Therefore, no pending case exists for
them to join.
McLaughlin moves to strike the motions to join, under
Federal Rule of Civil Procedure 12(f), as redundant, immaterial,
and impertinent. Rule 12(f) does not apply to strike the
motions filed by Rowe and Miller. See, e.g., Lath v. Oak Brook
Condos. Owners’ Ass’n, 2017 WL 1193994, at *5 (D.N.H. Mar. 30,
2017). In addition, McLaughlin focuses on the merits of the
motions and argues that Rowe and Miller failed to meet the
requirements for intervention.
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Because the motions to join are denied as moot in light of
the denial of Warner’s motion for relief from judgment,
McLaughlin’s motion to strike the motions to join is also moot.
Conclusion
For the foregoing reasons, the plaintiff’s motion for
relief from judgment (document no. 85) is denied. The
plaintiff’s motion to supplement (document no. 89) is granted,
and the evidence and argument presented in the motion were
considered.
The plaintiff is not granted relief from judgment.
The motions to join the case, filed by Randi Miller and
Nicholas Rowe (documents nos. 90 and 91), are denied as moot.
The motion to strike filed by the defendant (document no.
96) is also denied as moot.
The judgment remains as issued on September 1, 2016, and
the case remains closed.
SO ORDERED.
__________________________
Joseph DiClerico, Jr.
United States District Judge
July 17, 2017
cc: Adelbert H. Warner, II, pro se
John A. Currant, Esq.
J. Randall Ismay, pro se
Kyle Olsen, pro se
Kenneth J. Rowe, pro se
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