Hayden v. Graystone CV-93-112-JD 08/30/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jessica L. Havden, et al.

v. Civil No. 93-112-JD

Richard A. Grayson, et al.

O R D E R

Currently before the court are the defendants' Rule 72

objections to the July 1 , 1995, order of the magistrate judge.

For the reasons set forth below, the order is modified.

Background

The plaintiffs filed their complaint on March 9, 1993,

alleging that defendants Richard Grayson and the town of Lisbon

("town") had violated their Fourteenth Amendment rights to due

process and egual protection of the laws when they failed to

prosecute Hervey Gagnon, father of the plaintiffs, for past acts

of sexual abuse. On August 19, 1993, the court dismissed with

prejudice the plaintiff's due process claim against Grayson and

dismissed all claims against the town, leaving the egual

protection claim against Grayson as the sole remaining count. At

that time, the defendants did not move for reconsideration or

attempt to amend their complaint. On March 22, 1994, the parties participated in a pretrial

conference conducted by Magistrate Judge William H. Barry, Jr.

The plaintiffs reguested additional time to amend their complaint

on grounds that they had discovered new evidence and that their

counsel's office had been severely damaged in a fire. On March

24, 1994, the magistrate judge issued a scheduling order allowing

the plaintiffs until October 1, 1994, to file a motion to amend.

On September 30, 1994, the plaintiffs filed their motion to

amend. By order dated October 6, 1994, the court refused to

docket the motion for failure to comply with Local Rule 11. The

motion was resubmitted without objection and granted on November

7, 1994.

On December 23, 1994, plaintiffs' counsel withdrew and new

counsel filed an appearance. On January 12, 1995, a second

pretrial conference occurred. The plaintiffs' counsel announced

their intention to filed a second amended complaint in order to

assert state law claims against Grayson and the town and to

reassert the egual protection claim against the town. Despite

protestations from defense counsel, the magistrate judge issued a

pre-trial order directing the plaintiffs to file their motion to

amend by January 17, 1995.

The plaintiffs filed their second motion to amend on January

18, 1995. In the proposed amended complaint, the plaintiffs

2 asserted denial of equal protection claims under the United

States and the New Hampshire Constitutions against Grayson and

the town. They also asserted various state law claims against

both Grayson and the town. On July, 7, 1995, the magistrate

judge issued an order granting the plaintiff's motion to amend.

Discussion

The defendants assert that the magistrate judge failed to

apply the law of the case doctrine to bar the plaintiffs from

reasserting claims against the town. The defendants argue that,

as a result, the plaintiffs wrongfully have been allowed to

reinstate suit against a party almost two years after dismissal

of all claims against it. In addition, the defendants also argue

that the magistrate judge misapplied Rules 16(b) and 15(a) of the

Federal Rules of Civil Procedure. The plaintiffs respond that

the law of the case doctrine does not apply under the

circumstances of this action.

Rule 7 2 (a) of the Federal Rules of Civil Procedure provides

that

[a] magistrate judge to whom a pretrial matter not dispositive of a claim or defense of a party is referred shall . . . enter into the record a written order setting forth the disposition of the matter . . . . The district judge to whom the case is assigned shall consider [timely] objections and shall modify or set aside that portion of the magistrate

3 judge's order found to be clearly erroneous or contrary to law.

Fed. R. Civ. P. 72(a) (emphasis supplied); see

(b)(1)(West 1993); Quaker State Oil Ref, v. Garritv Oi l ,

(1st Cir. 1989); Blinzler v. Marriott Int'l,

Inc.,

(D.R.I. 1994). A magistrate judge's

factual finding is considered clearly erroneous when it is

contrary to the "clear weight of the evidence or when the court

has a 'definite and firm conviction that a mistake has been

committed.'" Blinzler,

(guoting Holmes v.

Bateson,

(1st Cir. 1978)). Where a

dissatisfied litigant objects to a magistrate judge's legal

ruling on a non-dispositive motion, the court considers whether

the ruling was contrary to law. E.g., Bryant v. Hilst,

(D. Kan. 1991). The court is empowered to modify

or set aside any factual or legal ruling of a magistrate judge

which does not survive application of the clearly erroneous or

contrary to law standard of Rule 72(a). E.g., Blinzler,

.

Rule 7 2 (b) provides that a dissatisfied litigant may obtain

a de novo review of a dispositive pretrial ruling issued by a

magistrate judge. Fed. R. Civ. P. 72(b); see

(b)(1) (West 1993). A court performing a de novo

determination must carefully review the evidentiary record and

4 examine the pleadings, memoranda, and applicable law. See 28

U.S.C.A § 636(b) (1); Myers v. United States,

,

n.l (D.N.H. 1992) (citing United States v. Raddatz, 100 S. C t .

2406, 2411-13 (1980) ) .

The defendants have brought an objection under Rule 72(a).

Arguably, the magistrate judge's order, although not styled as a

report and recommendation, is dispositive as it deprives the town

of a defense, and is therefore entitled to de novo review.

However, as the dispute involves a pure guestion of law, the

standards of review are essentially identical and therefore it is

not necessary to resolve this issue.

In the instant action, the dismissal of the town was based

upon a failure to state a claim upon which relief can be granted.

See Fed. R. Civ. P. 12(b)(6). Certain jurisdictions hold that a

dismissal for failure to state a claim does not bar a new action

on a complaint that does state a good claim. See Restatement

(Second) Judgments, § 19, Reporter's Note at 167 (1980).

However, this is not the rule in the federal system where

pleadings are liberally construed, and amendment liberally

awarded. See Fed. R. Civ. P. 8, 15. Under the federal rules, a

dismissal under Rule 12(b)(6) without reservation is on the

merits unless the contrary appears on the record or is stated in

the order of dismissal. Federated Dept. Stores, Inc. v. Moite,

5

, 101 S. C t . 2424, 69 L. ed. 2d 103 (1980); Winslow

v. Walters,

(7th Cir. 1987). The dismissal has the

same res iudicata effect as if rendered after trial, thus barring

a subsequent suit on the same claim. Fed. R. Civ. P. 41(b);

Had the town been the only defendant in this action, the

court's dismissal of all claims against it would have resulted in

entry of final judgment against the plaintiffs and the doctrine

of res iudicata would bar further action between the parties on

all issues presented by the pleadings. However, because Grayson

remained a viable defendant, the action proceeded forward and the

case is not closed. Thus, the defendants may not use res

iudicata as a defense to the new claims.

Nonetheless, the doctrine known as "law of the case" is

analogous to the doctrine of res iudicata, except that the

doctrine applies within the context of a single action rather

than as a bar to subsequent actions. Piazza v. Ponte Rogue,

(1st Cir. 1990). The law of the case doctrine posits

that when a court has decided upon a rule of law, that decision

should continue to govern the same issue in subsequent stages in

the same case. Therefore, as a general rule, courts will not

revisit an issue that has already been decided, although a court

may depart from a prior holding if convinced that it is clearly

erroneous and would work a manifest injustice." Arizona v.

6 California,

, 618 n.8 (1982). The doctrine seeks to

"protect[] against the agitation of settled issues" by promoting

finality and efficiency in the judicial process. IB Jeremy C

Moore et al., Moore's Federal Practice 5 0.404[1] (2d ed. 1984).

In allowing the motion to amend, the magistrate judge,

relying on Abbadessa v. Moore Business Forms, Inc.,

(1st Cir. 1993) ruled that

The law of the case doctrine would apply in this case if, hypothetically speaking, this court had dismissed the egual protection claim as a matter of law. However, as the egual protection claim, in the earlier order, was not dismissed on an issue of law, but rather on an issue of fact, the argument that the claim was fully and fairly addressed can hardly be entertained.

Order of July 7, 1995, at 8. The magistrate judge misread

Abbadessa and the court's earlier order. Abbadessa is

inapposite. In Abbadessa, the First Circuit stated that when a

motion for summary judgment is denied based on the existence of

genuine issues of material fact, the law of the case doctrine

precludes further motions on the same legal issue. This is not

the case before the court. Moreover, the court did not dismiss

the egual protection claim "on an issue of fact," but rather

dismissed the town as a matter of la w . The magistrate's ruling

is contrary to law and must be set aside.1 The town, having

1The court recognizes that the better course of action would have been to allow the plaintiffs to amend before entering the

7 prevailed with its motion to dismiss nearly one and a half years

ago, has a settled expectation that it is no longer a party to

the action. Therefore, to the extent that the magistrate allowed

amendment to reassert claims against the town, the magistrate's

order is vacated. No new claims may be brought against the town

of Lisbon.

In addition, the defendants argue that the magistrate

judge's allowance of the motion to amend violates Fed. R. Civ. P.

16(b) because there was no showing of good cause, and Fed. R.

Civ. P. 15(a) because he failed to place the burden on the

plaintiffs to show valid reason for their neglect and delay.

Because the court has found that the plaintiffs may not amend as

to the town, these objections only concern defendant Grayson. As

such, the court employs the clearly erroneous and contrary to law

standard of review.

The court has reviewed the magistrate judge's order and

finds that he found good cause to allow amendment. Further, the

court does not find that the magistrate judge engaged in improper

dismissal without prejudice. However, the plaintiffs failed to reguest reconsideration of the order and the length of time between the dismissal and the second motion to amend suggests that allowing amendment at that time would have been futile. burden shifting. Although the order is not a model of clarity,

the dictates of rules 16(b) and 15(a) were considered and

followed. The rulings are not contrary to law and the findings

are not clearly erroneous. The order may stand to the extent it

allows amendment of the claims against Grayson.

Conclusion

The court has carefully considered the defendants'

objections to the magistrate judge's July 7, 1995, order

(document no. 25). The order is modified as follows. The

portion of the order allowing the plaintiffs to bring new claims

against the town of Lisbon is vacated. The town is no longer a

party to this action. The portion of the order allowing the

plaintiff's to bring new claims against defendant Grayson stands

as it is neither contrary to law nor clearly erroneous.

SO ORDERED.

Joseph A. DiClerico, Jr. Chief Judge August 30, 1995

cc: Edward M. Van Dorn Jr., Esguire Michael Lenehan, Esguire