MCBREAIRTY v. BREWER SCHOOL DEPARTMENT et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
PATRICIA MCBREAIRTY 	)
)
Plaintiff, 	)
)
v. 	) 	1:24-cv-00053-JAW
)
BREWER SCHOOL DEPARTMENT, et al 	)
)
Defendants. 	)
ORDER ON MOTION FOR RECONSIDERATION
Concluding that a motion for reconsideration failed to show any new evidence
or that the contested order was grounded on a manifest error of law or fact, the court
rejects the motion for reconsideration.
I. 	BACKGROUND
On February 22, 2024, Sean McBreairty filed a verified complaint against
Defendants Brewer School Department and Brewer Superintendent Gregg Palmer
(collectively, Defendants) alleging that by threating litigation in response to an article
he authored and posted concerning a transgender student’s access to the girl’s
bathroom at Brewer High School, Defendants violated his First Amendment Rights.
Verified Comp. 42 U.S.C. § 1983 Compl. for Declaratory, Inj. Relief, and Damages at
1, 7-12 (ECF No. 1) (Compl.).1 The case is set for trial in January 2026. October 16,
2025 Notice (ECF No. 164).
1 	The complaint additionally named Brewer High School Principal Brent Slowikowski and
Brewer High School English Teacher Michelle MacDonald as defendants. Mr. Slowikowski has been
dismissed by order of this Court. See Order on Cross Motions for Summary Judgment and Motion for
Rule 56(d) Discovery at 31 (ECF No. 117) (Order on Cross Motions for Summ. J.). 	The Court also
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Sean McBreairty passed away on June 3, 2024, Suggestion of Death as to
Plaintiff Shawn McBreairty at 1 (ECF No. 52), the same day that he filed a motion
for issuance of a scheduling order. Pl.’s Mot. for Issuance of Scheduling Order (ECF
No. 47). 	Though the scheduling order set July 1, 2025 as the deadline for initial
disclosures, Scheduling Order with Incorporated Rule 26(f) Order (ECF No, 49)
(Scheduling Order), it was not until August 8, 2025 that Patricia McBreairty filed a
motion to substitute herself, as personal representative of the Estate of Shawn
McBreairty, as plaintiff in this case. Mot. to Substitute Party at 1 (ECF No. 57). On
September 6, 2024, Ms. McBreairty (hereinafter, Plaintiff) was formally substituted
as plaintiff, and she has continued to litigate this case on behalf of the estate of her
late husband. Order Granting Mot. to Substitute Party (ECF No. 58).
Initially, 	Plaintiff 	focused 	her 	efforts 	on 	her 	request 	for 	a 	preliminary
injunction and related declaratory relief. 	It was only on January 16, 2025 that
Plaintiff sought leave to amend the scheduling order to reopen the closed discovery
window. Mot. for Continuance of Procedural Order and Reset Scheduling Order (ECF
No. 76). Magistrate Judge Nivison recommended the denial of the motion to reopen
discovery, Order on Mot. to Continue Procedural Order and Reset Scheduling Order
(ECF No. 86), which the Court adopted. Order on Recommended Decision (ECF No.
106).
On May 21, 2025, Plaintiff filed a final pretrial memorandum and served her
initial disclosures. Pl.’s Pretrial Mem. (ECF No. 128). In that motion, she itemized a
granted Ms. MacDonald’s motion for Summary Judgment. Order on Motion for Summary Judgment
and Motion for Rule 56(d) Discovery at 8-9 (ECF No. 118) (Order on Mot, for Summ. J.).
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more extensive list of witnesses than previously identified. 	Id. at 3-4. 	On July 31,
2025 Plaintiff filed a motion seeking an order stating that she will be permitted to
introduce at trial exhibits and witnesses not timely disclosed by initial disclosure
under Federal Rule of Civil Procedure 26 and the June 4, 2024 Scheduling Order.
Mot. for Order Regarding Trial Evid. (ECF No. 138) (Mot. on Trial Evid.); see also
Scheduling Order. Defendants opposed the motion, maintaining that because of the
tardy disclosure the only proper witnesses are the parties themselves. Opp’n to Pl.’s
Mot. for Order Regarding Trial Evid. (ECF No. 146) at 5 n.1, 9 (Opp’n to Mot. on Trial
Evid.). 	The Court granted in part and denied in part that motion and, as relevant
here, 	excluded 	Hailey 	Keezer 	as 	a 	witness, 	reasoning 	“this 	late 	disclosure 	is
prejudicial and insufficiently justified.” 	Order on Mot. for Order Regarding Trial
Evid. (ECF No. 150) (Order on Mot. on Trial Evid.).
On September 26, 2025, Plaintiff filed a motion for reconsideration on the
Court’s exclusion of Hailey Keezer as a witness. 	Mot. for Limited Recons. (ECF No.
151). 	On October 16, 2025 Defendant’s filed their opposition, arguing that Plaintiff
had failed to meet the burden for successful motions on reconsideration. Defs.’ Opp’n
to Pl.’s Mot. For Limited Recons. Of Order Regarding Trial Evid. (ECF No. 167). On
October 29, 2025, Plaintiff responded, providing reasons why Ms. Keezer would be a
useful witness to the Plaintiff. Pl.’s Reply in Support of Mot. for Limited Recons. Of
Order Regarding Trial Evid. (ECF No. 168) (Pl.’s Reply).
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II. 	LEGAL STANDARD
“The granting of a motion for reconsideration is an extraordinary remedy
which should be used sparingly.” 	Salmon v. Lang, 57 F.4th 296, 323 (1st Cir.
2022) (quotation omitted). “Unless the court has misapprehended some material fact
or point of law, such a motion is normally not a promising vehicle for revisiting a
party’s case and rearguing theories previously advanced and rejected.” 	Palmer v.
Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006). 	“To prevail on such a motion, ‘a
party normally must demonstrate either that new and important evidence, previously
unavailable, has surfaced or that the original judgment was premised on a manifest
error of law or fact.’” Caribbean Mgmt. Grp., Inc. v. Erikon LLC, 966 F.3d 35, 44-45
(1st Cir. 2020) (quoting Ira Green, Inc. v. Mil. Sales & Serv. Co., 775 F.3d 12, 28 (1st
Cir. 2014)).
III. 	DISCUSSION
The Plaintiff’s motion for reconsideration does not demonstrate “that new and
important 	evidence, 	previously 	unavailable, 	has 	surfaced 	or 	that 	the 	original
judgment was premised on a manifest error of law or fact.” Id. Under First Circuit
law, 	to 	determine 	whether 	the 	movant 	in 	a 	motion 	for 	reconsideration 	has
demonstrated new evidence, the courts focus on whether the evidence was available
to the movant before the district court issued its order. 	In Cruz-Cedeño v. Vega-
Moral, 150 F.4th 1 (1st Cir. 2025), the First Circuit wrote that “Motions for
reconsideration ‘do[] not provide a vehicle for a party . . . to introduce new evidence
of advance arguments that could and should have been presented to the district court
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prior to judgment.’” Id. at 9 (quoting Quality Cleaning Prods. R.C. v. SCA Tissue N.
Am., LLC, 794 F.3d 200, 208 (1st Cir. 2015) (quoting Emmanuel v. Int’l Bhd. of
Teamsters, Local Union No. 25, 426 F.3d 416, 422 (1st Cir. 2005)) (internal quotation
marks omitted).
In her July 31, 2025 motion for order regarding trial evidence, Ms. McBreairty
elected to make a blanket argument to be allowed to introduce at trial the thirteen
witnesses she identified in her May 21, 2025 pretrial memorandum. See Mot. on Trial
Evid. at 1 (citing Pl.’s Pretrial Mem.). 	After objection by the Defendants, Opp’n to
Mot. on Trial Evid., the district court judge2 carefully reviewed the history of the case,
analyzed the disclosures already a matter of record, and applied the five-factor test
in Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72, 78 (1st Cir. 2009), to the question
of exclusion. 	Order on Mot. on Trial Evid. At 4-5. 	The judge allowed some of the
newly listed witnesses but excluded others, including Haily Keezer. 	Id. at 6. 	The
judge observed that Haily Keezer’s “relationship to this dispute is not at all
apparent,” id. at 3, and that he was “at a loss as to Plaintiff’s need for [her testimony].”
Id. at 6. 	He concluded that Ms. Keezer would be excluded “because this late
disclosure is prejudicial and insufficiently justified, at least on the anemic rationale
so far offered to the court.” Id.
In response to the exclusion of Ms. Keezer, Ms. McBreairty now makes the
argument in her motion for reconsideration that she could and should have made in
2 	The judge who issued the September 24, 2025 order which is the subject of the motion for
reconsideration recused himself on October 8, 2025. Order of Recusal (ECF No. 157). The case was
randomly assigned to this judge.
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her original motion. Mot. for Limited Recons. at 1-3. Ms. McBreairty describes who
Ms. Keezer is, her proposed testimony, and the reason for her late disclosure. Id. Ms.
McBreairty excuses her failure to provide this information in her original motion by
saying that “the specifics of the individual witnesses was not at issue.” Pl.’s Reply at
1.
But this omission was the Plaintiff’s choice. The First Circuit has long set forth
the criteria that a district court must weigh before imposing the sanction of witness
exclusion. See Esposito, 590 F.3d at 78; Macaulay v. Anas, 321 F.3d 45, 51 (1st Cir.
2006). 	The district judge simply applied the law to Ms. McBreairty’s motion and
found that she had not provided sufficient basis under Esposito to allow Ms. Keezer’s
testimony. Whether the district judge’s view would have changed if Ms. McBreairty
had made the arguments then she is making now is unknowable. 	But First Circuit
authority is clear: a disappointed litigant cannot use a motion for reconsideration to
backfill arguments she could and should have made originally.
In her motion for reconsideration, Plaintiff argues that Mr. McBreairty “was
to have spoken for himself as to his mental distress,” but given that he has passed,
third parties like Ms. Keezer are necessary to establish the testimony. 	Mot. for
Limited Recons. at 1. Although “Ms. Keezer possessed admissible evidence [that] was
not known to the Estate until Spring 2025,” id. at 3, this does not establish that this
evidence was previously unavailable at the time she filed her July 31, 2025 motion.
Caribbean Mgmt. Grp., Inc., 966 F.3d at 44-45.
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Furthermore, Plaintiff’s motion for reconsideration does not argue, nor allow
the Court to independently conclude, that its “original [order] was premised on a
manifest error of law or fact.” 	Id. 	The Court’s decision to exclude Ms. Keezer as a
witness was premised on late disclosure, which the Court considered “prejudicial and
insufficiently justified.” Order on Mot. on Trial Evid. at 6.
The 	Court 	DISMISSES 	Patricia 	McBreairty’s 	Motion 	for 	Limited
Reconsideration (ECF No. 151).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 31st day of October, 2025
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