The New Hampshire Superior Court Presented the following cases for and reasons supporting orders granting a Motion to Dismiss:
Analysis of Plaintiffs Claims by Court
“Each of the defendants move to dismiss the complaint for failure to state a claim. (Docs. 19–21, 24–25, 27.) The plaintiff has not objected to any of these motions, however, this alone does not mandate dismissal. See Hilario v. Reardon, 158 N.H. 56, 60 (2008) (ruling trial court erred by granting motion to dismiss because no objection was filed, rather than ruling on merits); N.H. Super. Ct. R. 13(b) (“Failure to object shall not, in and of itself, be grounds for granting the motion.”)”
Hilario v. Reardon, 158 N.H. 56, 60 (2008) – https://www.casemine.com/judgement/us/5914b245add7b0493475ed52
“In ruling on a motion to dismiss for failure to state a claim, the issue is whether “the
plaintiff’s allegations are reasonably susceptible of a construction that would permit
recovery.” Barufaldi v. City of Dover, 175 N.H. 424, 427 (2022). In conducting this inquiry,
the Court must “assume the truth of the facts as alleged in the [complaint] and construe
all reasonable inferences in the light most favorable to the plaintiff.” Id. However, the Court
“need not accept allegations in the writ that are merely conclusions of law.” Beane v. Dana
S. Beane & Co., P.C., 160 N.H. 708, 711 (2010) (citation omitted). The Court should grant
the motion to dismiss if the facts derived from these sources “do not constitute a basis for
legal relief.” Barufaldi, 175 N.H. at 427.”
Barufaldi v. City of Dover, 175 N.H. 424, 427 (2022) – (link)
Beane v. Dana S. Beane & Co., P.C., 160 N.H. 708, 711 (2010) – https://caselaw.findlaw.com/court/nh-supreme-court/1543931.html
“The Court is also mindful of the fact that the plaintiff is self-represented. “[S]elf–represented parties are bound by the same procedural rules that govern parties represented by counsel.” In re St. Pierre, 172 N.H. 209, 217 (2019) (quotation and
citations omitted). “This mandate, however, does not prohibit courts from liberally construing pleadings by self–represented litigants, provided that the self–represented party pleads sufficient facts for the court to discern the correct cause of action.” Id. (citations omitted). Indeed, “pleading is considered only a means to an end. The end is accomplished if counsel can understand the dispute and the court can decide the controversy on its merits.” Morency v. Plourde, 96 N.H. 344, 346 (1950); see also Porter v. Dziura, 104 N.H. 89, 90 (1962) (“Pleadings should be stated with sufficient conciseness and clarity so that the ‘case may be rightly understood.’” (quoting RSA 514:8))”
St. Pierre, 172 N.H. 209, 217 (2019) – https://www.casemine.com/judgement/us/5cff47138a6bc868cbd3f3d4
Morency v. Plourde, 96 N.H. 344, 346 (1950) – https://law.justia.com/cases/new-hampshire/supreme-court/1950/3938-0.html
Porter v. Dziura, 104 N.H. 89, 90 (1962) – https://law.justia.com/cases/new-hampshire/supreme-court/1962/4972-0.html
Law – NH RSA 514:8 – https://gc.nh.gov/rsa/html/LIII/514/514-8.htm
“ 514:8 Abatement. – No writ, declaration, return, process, judgment or other proceeding in the courts or course of justice shall be abated, quashed or reversed for any error or mistake, where the person or case may be rightly understood by the court, nor through defect or want of form or addition only; and courts and justices may, on motion, order amendment in any such case.
Source. RS 186:10. CS 198:10. GS 207:8. GL 226:8. PS 222:7. PL 334:8. RL 390:8
“In general, a statute “does not support a private right of action for its violation” unless there exists some “express or implied
legislative intent to create such civil liability.” Marquay v. Eno, 139 N.H. 708, 715 (1995); see also State v. Martineau, 148 N.H. 259, 264 (2002) (“There is no statutory or constitutional authority for private prosecutions.”). “[W]here the legislature has intended that civil liability flow from the violation of a statute, it has often so provided.” Marquay, 139 N.H. at 715.; see, e.g., RSA 358-AL10 (deceptive trade practices); see also Berry v. Watchtower Bible & Tract Soc., 152 N.H. 407, 411 (2005) (explaining that child abuse reporting statute does not give rise to a civil remedy for its violation). Here, simply put,
none of the statutes cited in the complaint evince a legislative intent to create civil liability,
and therefore, the plaintiff cannot state a claim as to any of them”
Marquay v. Eno, 139 N.H. 708, 715 (1995) – https://www.casemine.com/judgement/us/591483f6add7b049344afbff
State v. Martineau, 148 N.H. 259, 264 (2002) – https://caselaw.findlaw.com/court/nh-supreme-court/1454325.html (opinion); https://caselaw.findlaw.com/court/nh-supreme-court/1454325.html (judgement);
“To be sure, there is a cause of action for intentional interference with parental custody, which arises “where a parent has been awarded custody of a child by court decree and the noncustodial parent abducts the child[.]” See Plante v. Engel, 124 N.H. 213, 217 (1983). Even assuming the plaintiff intended to pursue this claim, the complaint does not allege that the plaintiff was entitled to sole custody of his children, or that (mother) lacked custodial rights. Thus, while intentional interference with parental custody is a cognizable claim, the plaintiff has not pled the facts necessary to sustain it.”
Plante v Engel (1983) – https://www.courtlistener.com/opinion/8089467/plante-v-engel/
“The plaintiff also alleges that the Manchester Police Department “neglected their duty to provide equal protection under the law” by not taking any action to retrieve the plaintiff’s children when (defendant) and (defendant) took them to Massachusetts. (Doc. 5 ¶ 14.) He further asserts that the Manchester Police “did this, with gender bias, to protect a woman, and discriminated against [the plaintiff] as a male.” (Id. ¶ 13.) It is not clear what claim the plaintiff intends to advance with these allegations, and there is no mention in the complaint of what remedy the plaintiff seeks. See Donald Toy v. City of Rochester, 172 N.H. 443,
448 (2019) (“It is well settled that a defendant is entitled to be informed of the theory on which the plaintiff is proceeding and the redress that the plaintiff claims as a result of the defendant’s actions.”). Moreover, as the Manchester Police Department points out, to the extent the plaintiff seeks recovery in tort for the officer’s decision not to investigate or arrest (defendant) in response to his complaint, such a claim would be barred by the doctrine of official immunity.”
Donald Toy v. City of Rochester (2019) – https://law.justia.com/cases/new-hampshire/supreme-court/2019/2018-0172.html
“Here, there is no question that the Manchester Police officer who spoke with the plaintiff was acting within the scope of his or her official duties, or that the decision not to investigate the plaintiff’s complaint was discretionary. Further, the allegations in the complaint can hardly be construed to indicate the officer was negligent, let alone wanton or reckless. Thus, the complaint does not contain sufficient allegations to “overcome the [official] immunity hurdle.” Cannata, 132 N.H. at 241. When official immunity is “available to individual public officials, [it] generally may be vicariously extended to the government
entity employing the individual” as well, “but it ‘is not an automatic grant.’” Farrelly v. City of Concord, 168 N.H. 430, 440 (2015) (quoting Everitt, 156 N.H. at 221). “[V]icarious immunity applies when exposing the municipality to liability would focus stifling attention upon the individual official’s job performance and thereby deter effective performance of the discretionary duties at issue.” Everitt, 156 N.H. at 221 (quotation omitted). Here, exposing the City of Manchester (via the Manchester Police Department) to liability would cause the exact kind of discretionary stifling that immunity is designed to prevent.
[L]aw enforcement by its nature is susceptible to provoking the hostilities and hindsight second-guessing by those directly interacting with police as well as by the citizenry at large. Police officers, as frontline agents for the executive branch, are particularly vulnerable to lawsuits, whether the underlying police conduct or decision was errant or not. Unbridled exposure to personal liability and hindsight review would undoubtedly compromise effective law enforcement and unfairly expose officers to personal liability for performing inherently governmental tasks. Id. at 217. For these reasons, the Court finds that the Manchester Police Department is entitled to immunity as a matter of law, and therefore, the complaint fails to state a claim as to the Manchester Police Department. “
Cannata v Town of Deerfield – https://www.casemine.com/judgement/us/5914c085add7b049347b43bc
Farrelly v. City of Concord – https://law.justia.com/cases/federal/district-courts/new-hampshire/nhdce/1:2010cv00583/36127/28/ ; ACLU Post – here
“Finally, the plaintiff alleges that (mother) defamed him, when she “said and wrote to . . . (police officer)on more than one occasion that [the] [p]laintiff ‘is a fucking psycho.’” (Doc. 5 ¶ 6.) The plaintiff asserts that this statement is defamatory “because he is not [a psycho].” (Id.) In moving to dismiss, (mother) argues that the complaint fails to state a claim because
“[s]uch rhetorical hyperbole is not actionable” defamation. (Doc. 21 at 2.) The Court agrees with (mother). “To survive [a] motion to dismiss, the plaintiff must have alleged facts that would show that the defendant[s] failed to exercise reasonable care in publishing a false and defamatory statement of fact about [the plaintiff] to a third party.” Cluff-Landry v. Roman
Catholic Bishop of Manchester, 169 N.H. 670, 678 (2017) (quotation omitted). “Embedded in this recitation is the requirement that the challenged statement be one of fact.” Automated Transactions, LLC v. Am. Bankers Ass’n, 172 N.H. 528, 532 (2019) (quotation omitted). “A further corollary of defamation law’s factual requirement is that statements of rhetorical hyperbole are not actionable because they cannot reasonably be interpreted as factual assertions.” Id. (quotation omitted). “Whether a given statement can be read as being or implying an actionable statement of fact is a question of law to be determined by
the trial court in the first instance.” Id. (citation omitted). Here, the complaint does not describe the context in which (mother) called the plaintiff “a fucking psycho.” (Doc. 5 ¶ 6.) Absent any context, the Court cannot reasonably infer this statement to be one of fact. See Cummins v. Lollar, No. CV118081DMGMANX, 2012 WL 12885117, at *4 (C.D. Cal. Nov. 16, 2012) (“[L]abels such as “cyberstalker,” “crackpot,” “psycho,” and “crackpot stalker” are expressions of subjective judgment conveying an opinion of low esteem. As such, they are not actionable.”); Maturen v. Lowe’s Home Centers, Inc., No. 06-CV-15126, 2007 WL 3173962, at *8 (E.D. Mich. Oct. 26, 2007) (ruling that “the store manager’s comment that Plaintiff was a ‘psycho’ represents a subjective opinion or hyperbole, not an actionable factual matter.”). That is, no reasonable listener would understand this expression, outside the clinical setting, to be an accusation that the plaintiff has been diagnosed with psychosis. See Bourne v.
Arruda, No. 10-cv-393-LM, 2011 WL 2357504, at *5 (D.N.H. June 10, 2011) (unpublished magistrate decision) (statement that plaintiff’s litigation tactics made him a “terrorist[ ]” found to be nonactionable); Letter Carriers v. Austin, 418 U.S. 264, 285-86 (1974) (use of “traitor” was “merely rhetorical hyperbole”; context of statement showed that defendant was not levying literal charge of treason). Thus, the Court finds that the plaintiff has not stated a claim for defamation. Having found no other actionable claims in the complaint, the Court concludes that the plaintiff has failed to state a claim against any of the defendants.
“In light of the foregoing, the defendants’ motions to dismiss are GRANTED, and therefore, the complaint is DISMISSED. Before dismissal becomes final, the Court will afford the plaintiff the opportunity to amend his complaint to correct its deficiencies,
consistent with this order. See ERG, Inc. v. Barnes, 137 N.H. 186, 189 (1993). Any such amended complaint shall be filed within 30 days of the clerk’s notice of this decision. Otherwise, dismissal with prejudice shall be final.”
