Homo v. Henniker, et al CV-94-387-SD 07/06/95 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Lawrence R. Homo, Sr.

v. Civil No. 94-387-SD

Town of Henniker; William Belanger; Wayne Colby; Henniker Police Dept.; Chief Timothy Russell; Police Officer Walter Crane

O R D E R

In this civil action, pro se plaintiff Lawrence R. Homo,

Sr., alleges that the Town of Henniker and its selectmen (William

Belanger is a current selectman; Wayne Colby is a former

selectman), police department, and police officers conspired to

deprive him of certain rights secured by the First, Fourth, and

Fourteenth Amendments to the United States Constitution.

Plaintiff brings this action pursuant to

and

1985.

Presently before the court is defendants' motion for

judgment on the pleadings, to which plaintiff objects. Factual Background

At the core of this dispute between a town and one of its

residents is a change in zoning and the town's subseguent efforts

to enforce said change.1 On October 21, 1992, the town, by and

through its agents, sought to remove automobiles and other metal

from plaintiff's property pursuant to a court order "to enter the

premises peaceably." Aug. 9, 1991, Order, Civil No. 90-E-132

(Dunn, J.) (attached to Complaint). Plaintiff attempted to

impede the process, but was thereafter arrested and charged with

obstructing government administration contrary to New Hampshire

Revised Statutes Annotated (RSA) 642:1 (1986).2

1In its first action, filed in Merrimack County Superior Court, Civ. No. 87-E-188, the town sought to enjoin plaintiff from continuing to operate a junkyard on his property. Said injunction issued on December 30, 1988, was affirmed by the New Hampshire Supreme Court on August 14, 1992, and became final on October 5, 1992, when plaintiff's motion for reconsideration was denied.

On March 9, 1990, the town filed a new petition in the same court. Civ. No. 90-E-132, seeking permission to begin removing the junk from plaintiff's land. Justice Dunn granted the town's motion "to enter the premises peaceably" on August 9, 1991. Plaintiff sought to appeal this order on October 7, 1991, but the notice of appeal was declined by the New Hampshire Supreme Court on October 27, 1992.

2Upon trial on the merits. Justice Arnold found that "upon filing the [Oct. 7, 1991] Notice of Appeal, the defendant[] had an expectation that the status guo would be maintained during the pendency of the appeal." State v. Homo, No. 92-CR-2767, at 1-2 (Dist. C t . Henniker Jan. 20, 1993). Although noting that "[i]f the Notice of Appeal were not pending at the time of the Town's actions herein, the court may have ruled differently,"

,

2 Plaintiff filed suit3 against the town and others4 in

Merrimack County Superior Court on February 28, 1994. This

action, assigned Civ. No. 94-C-130-WS, was styled as "a civil

action for monetary damages against the [defendants] . . . for

their actions in concert, under color and pretense of New

Hampshire State Law, intended to deprive and actually depriving

plaintiff [s] of their rights to the use of their real estate

. . . ." Feb. 28, 1994, Complaint 5 1. By prohibiting the

operation of plaintiff's junkyard, plaintiff alleges that the

town (1) effected a "taking" without payment of just

compensation; (2) intentionally discriminated against plaintiff

and deprived him of egual protection and due process; (3) engaged

in a pattern of malicious prosecution; and (4) unlawfully seized

plaintiff's property.

Defendants moved for dismissal in the state court, which

granted same "in its entirety." May 10, 1994, Order, Civil No.

the court ultimately found plaintiff to be not guilty.

3Plaintiff was joined in the state court action by his wife, Katheren I. Homo, and son, Lawrence R. Homo, Jr. Neither party joins in the instant action.

4In addition to the Town of Henniker, the following were also named as defendants: Wayne Colby and William Belanger, Henniker Selectmen; Ed Wojnowski, Henniker Town Administrator; Henniker Police Officer Walter Crane; Kenneth Ward; Lois Brown; David P. Currier; John Dopergolon and Jeffrey Fielding, John's Wrecker Service; and Meriden Timber Company. All individual defendants were sued in their individual capacities.

3 94-C-130-WS (Smukler, J.)- Plaintiff's notice of appeal to the

New Hampshire Supreme Court was declined on November 14, 1994,

and the subsequent motion to reconsider was denied on January 19,

1995.

With the May 10, 1994, dismissal of the state court action,

plaintiff sought a federal forum for resolution of his claims.

On July 20, 1994, plaintiff filed a

complaint

focusing upon his October 21, 1992, arrest. Simply put,

plaintiff alleges violations of due process and equal protection,

race discrimination, warrantless arrest and seizure, and

conspiracy to deprive plaintiff of certain guaranteed rights.5

Discussion

1. Judgment on the Pleadings Standard

Under Rule 12(c), Fed. R. Civ. P., "[a]fter the pleadings

5Plaintiff's complaint in this matter specifically alleges, inter alia, that "[e]ach of the [individual] defendants, separately and in concert, acted outside the scope of his jurisdiction and without authorization of law [and each of the [individual] defendants], separately with the specific intent] to deprive plaintiff by subjecting the plaintiff to an unlawful arrest, illegal detention and by the invasion of his privacy liability, freedom, seizure of his person without an arrest warrant or warrant for a seizure of plaintiff or a warrant issued by any judge, court, or magistrate authorizing such a seizure." Complaint 5 28 (bracketed material in complaint). Plaintiff amended his complaint on August 17, 1994, to add an additional claim under New Hampshire common law for false arrest and malicious prosecution.

4 are closed but within such time as not to delay the trial, any

party may move for judgment on the pleadings." "The standard for

evaluating a Rule 1 2 (c) motion for judgment on the pleadings is

essentially the same as the standard for evaluating a Rule

12(b)(6) motion." Metromedia Steakhouses Co., L.P. v. Resco

Management,

(D.N.H. 1994) (citation omitted).

"In reviewing the defendants' motion for judgment on the

pleadings . . . the court must accept all of the factual

averments contained in the complaint as true and draw every

reasonable inference helpful to the plaintiff's cause." Sinclair

v. Brill,

(D.N.H. 1993) (citing Santiago de

Castro v. Morales Medina,

(1st Cir. 1991)); see

also Rivera-Gomez v. de Castro,

(1st Cir. 1988)

("because rendition of judgment in such an abrupt fashion

represents an extremely early assessment of the merits of the

case, the trial court must accept all of the nonmovant's well-

pleaded factual averments as true and draw all reasonable

inferences in his favor" (citations omitted)).

Even then, judgment may not be entered on the pleadings

"'"unless it appears beyond doubt that the plaintiff can prove no

set of facts in support of [his] claim which would entitle [him]

to relief."'"

(guoting

George C. Frev Ready-Mixed Concrete, Inc. v. Pine Hill Concrete

5 Mix Corp.,

, 553 (2d Cir. 1977) (quoting Conley v.

Gibson,

(1957))).

Ordinarily "'any consideration of documents not attached to

the complaint, or not expressly incorporated therein, is

forbidden, unless the [Rule 12 (c)] proceeding is properly

converted into one for summary judgment under [Fed. R. Civ. P.]

5 6.'" Cooperativa de Ahorro Y Credito Aquada v. Kidder, Peabody

6 C o .,

(1st Cir. 1993) (quoting Watterson v.

Page,

(1st Cir. 1993)), cert, denied, ___ U.S. ___

115 S. C t . 1792 (1995) (second alteration in Kidder); see also

Rule 12(b), Fed. R. Civ. P. (when "matters outside the pleading

are presented to and not excluded by the court, the motion shall

be treated as one for summary judgment and disposed of as

provided in Rule 56, and all parties shall be given reasonable

opportunity to present all material made pertinent to such a

motion by Rule 56"); 2A J a m e s W m . M o o r e , M o o r e 's F e d e r a l P r a c t i c e

5 12.15, at 12-145, 146 (1995) ("Under [Rule 12(c)], it is clear

that the court may, if it so chooses, consider matters outside

the pleadings as if the motion were one for summary judgment.

When the court proceeds in this manner, it must give the

nonmoving party notice and a reasonable opportunity to present

material in opposition to the motion."); accord Dempsey v.

Atchison, Topeka, and Santa Fe. Rv. Co.,

(7th

6 Cir.),. cert, denied, ___ U.S. , 115 S. C t . 82 (1994).

"However, courts have made narrow exceptions for documents

the authenticity of which are not disputed by the parties; for

official public records; for documents central to plaintiffs'

claim; or for documents sufficiently referred to in the

complaint."

(citing, inter alia.

Mack v. South Bay Beer Distrib., Inc.,

(9th

Cir. 1986) ("[A] court may properly look beyond the complaint to

matters of public record and doing so does not convert a Rule

12[(c)] motion to one for summary judgment.")). The rationale

for such narrow exceptions is that

the problem that arises when a court reviews statements extraneous to a complaint generally is the lack of notice to the plaintiff that they may be so considered; it is for that reason--reguiring notice so that the party against whom the motion to dismiss is made may respond--that Rule 12[(c)] motions are ordinarily converted into summary judgment motions. Where plaintiff has actual notice of all the information in the movant's papers and has relied upon these documents in framing the complaint the necessity of translating a Rule 12[(c)] motion into one under Rule 56 is largely dissipated.

Cortec Indus., Inc. v. Sum Holding L.P.,

, 48 (2d Cir.

1991), cert, denied, ___ U.S. , 112 S. C t . 1561 (1992).

Attached to defendants' motion are the writ of summons in

Homo v. Henniker, Civ. No. 94-C-130-WS; the May 10, 1994, Notice

of Decision granting defendants' motion to dismiss in that matter; the November 14, 1994, order of the New Hampshire Supreme

Court declining plaintiff's notice of appeal; and the January 19,

1995, order of the Supreme Court denying plaintiff's motion to

reconsider.

As the above enumerated documents are both referenced in

plaintiff's federal court complaint and contain information of

which plaintiff has actual knowledge, the court finds that

conversion of this Rule 1 2 (c) motion into one for summary

judgment is unnecessary.

2. Res Judicata

Defendants contend, under the principles of res judicata,

that plaintiff's present action is precluded by the dismissal of

his February 28, 1994, state court action. Although plaintiff's

pro se status reguires the court to hold the complaint to a "less

stringent" standard than pleadings drafted by attorneys, Eveland

v. Director of CIA,

(1st Cir. 1988) (per curiam)

(citing Haines v. Kerner,

(1972) (per curiam)),

such status, standing alone, cannot and will not operate to

prevent the application of res judicata when so warranted. See,

e.g., Posadas de Puerto Rico, Inc. v. Radin,

(1st Cir. 1988) (affirming summary judgment dismissal). a. Effect of State Court Judgment in Subsequent Federal Suit

By virtue of the federal full faith and credit statute,

,6 federal courts are required "to employ state

rules of res judicata when determining the preclusive effect, if

any, to be given to a state court determination." Kerouac v.

EPIC,

(D.N.H. 1993); see also Migra v.

Warren City School Dist. Bd. of Educ.,

(1984);

Kremer v. Chemical Constr. Corp.,

(1982); Wong

v. Smith,

(1st Cir. 1992) (per curiam). With

two exceptions not presently applicable, the general rule

maintains that " [a] valid and final judgment of a state court has

the same effects under the rules of res judicata in a subsequent

action in a federal court that the judgment has by the law of the

state in which the judgment was rendered . . . ." R estatement

(Se c o n d ) o f J u d g m e n t s § 86 (1982) .

That plaintiff's subsequent federal lawsuit is styled as a

civil rights action under

is insufficient to

prevent the application of state-law principles of res judicata.

See

("Section 1983 . . . does not

6The full faith and credit statute provides, in relevant part, "The records and judicial proceedings of any court of any . . . State . . . shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State . . . ."

(1994) . override state preclusion law and guarantee petitioner a right

to proceed to judgment in state court . . . on state claims and

then turn to federal court for adjudication of . . . federal

claims."); Cuesnonqle v. Ramos,

, 1497 n.8 (1st Cir.

1987) ("where a plaintiff neglects to raise a federal claim in a

state court action, that plaintiff is estopped from raising the

federal claim in federal court subseguent to a state court

judgment") (construing Migra) .

b. Res Judicata Principles under New Hampshire Law

"Under New Hampshire law, '[t]he doctrine of res judicata

precludes the litigation in a later case of matters actually

litigated, and matters that could have been litigated, in an

earlier action between the same parties for the same cause of

action.'" Elevens v. Town of Bow, ___ F. Supp. ___ , , No. 94-

124-SD, slip op. at 6-7 (D.N.H. Oct. 12, 1994) (guoting In re

Alfred P.,

,

(1985) and

citing Scheele v. Village Dist. of Eidelweiss,

,

(1982)). Accord, Wolf v. Gruntal &

C o .,

(1st Cir. 1995) ("res judicata (claim

preclusion) normally bars (1) relitigation of claims actually

asserted in a tribunal of competent jurisdiction . . . and (11)

litigation of claims that arose from the same set of operative

10 facts and could have been raised in the prior proceeding")

(footnote and citations omitted); Brown v. Felson,

,

139 n.10 (1979) ("res judicata forecloses all that which might

have been litigated previously").

Because "[t]he term 'cause of action' embraces all theories

on which relief could be claimed arising out of the same factual

transaction," res judicata is considered to be a "broader remedy"

than the companion principle of collateral estoppel. ERG, Inc.

v. Barnes,

,

(1993) (citing

Eastern Marine Constr. Corp v. First Southern Leasing,

,

(1987)); see also Shepherd v.

Westmoreland,

,

(1988) ("when

determining whether res judicata bars a subseguent action" the

court's inguiry focuses upon "whether the second action

constitutes a different cause of action from the first . . . .

[T]he term '"cause of action" means the right to recover,

regardless of the theory of recovery. A theory of recovery must

be pleaded, or be subject to bar.'") (guoting Eastern Marine,

supra,

,

)).

Acknowledging that "[t]he central policy 'exemplified by the

free permissive joinder of claims, liberal amendment provisions,

and compulsory counterclaims, is that the whole controversy

between the parties may and often must be brought before the same

11 court in the same a c t i o n , Eastern Marine, supra,

,

(quoting Williamson v. Columbia Gas &

Elec. Corp.,

(3d Cir. 1950), cert, denied,

(1951)), New Hampshire courts consistently bar suits

"closely related" to an earlier action, even wherethe subsequent

action is advanced under a separate legal theory. See

,

; accord. Eastern Marine,

supra,

,

("'a change in labels is

not sufficient to remove the effect of the prior adjudication'")

(quoting Lougee v. Beres,

,

(1973) ) .

Accordingly, "[w]hen a valid and final judgment rendered in

an action extinguishes the plaintiff's claim . . . the claim

extinguished includes all rights of the plaintiff to remedies

against the defendant with respect to all or any part of the

transaction, or series of connected transactions, out of which

the action arose." Restatement, supra, § 2 4 . 7

7The rule as enunciated in section 24

applies to extinguish a claim by the plaintiff against the defendant even though the plaintiff is prepared in the second action (1) To present evidence or grounds or theories of the case not presented in the first action, or (2) To seek remedies or forms of relief not demanded in the first action.

12 (1) Finality of State Court Judgment

On May 10, 1994, the Merrimack County Superior Court, acting

upon defendants' motion to dismiss, granted said motion and

dismissed plaintiff's February 28, 1994, complaint in its

entirety. This ruling became final on January 19, 1995, when

plaintiff's motion to reconsider was denied by the New Hampshire

Supreme Court.

"The rules of res judicata are applicable only when a final

judgment is rendered." Restatement, supra, § 13. "[W]hen res

judicata is in guestion a judgment will ordinarily be considered

final in respect to a claim . . . if it is not tentative,

provisional, or contingent and represents the completion of all

steps in the adjudication of the claim by the court . . . ."

Id. cmt. b .

This rule of "finality" applies with egual force when the

judgment is entered "for the defendant on demurrer or motion to

dismiss for failure to state a claim." Id. § 19, cmt. d; see

also IB J a m e s W m . M o o r e , M o o r e 's F e d e r a l P r a c t i c e , 5 0.409 [1.-2], at

11-132, -133 (1995) ("in a system in which pleadings are simple

and liberally construed and amendment liberally allowed, it is

clearly preferable to provide the opportunity to replead before

supra, § 25; see also Eastern

12 9 N.H. Restatement, at 275,

.

13 entry of judgment and regard the judgment as a bar. This is the

rule in federal courts and the trend of the decisions in the

state courts."); ERG, Inc., supra,

,

("dismissal for failure to state a cause of action [is] a

final decision on the merits"); Ruple v. City of Vermillion,

(8th Cir. 1983) ("a judgment entered on a motion to

dismiss . . . is just as binding as a judgment entered after a

trial of the facts"), cert, denied,

(1984).

In light of the authorities hereinabove discussed, the court

finds and rules that plaintiff's prior state court action. Civil

No. 94-C-130-WS, against the defendants has been finally

resolved, on the merits, by a court of competent jurisdiction.

(2) Identity of the Parties

As previously noted, plaintiff's state court complaint

named, inter alia, the Town of Henniker, Selectmen Colby and

Belanger, and Police Officer Walter Crane as defendants. In the

present action, plaintiff adds two defendants: the Henniker

Police Department and Chief Timothy Russell. The guestion thus

raised is whether these two "new" defendants share sufficient

identicality with the parties named as defendants in the prior

state court action so as to establish privity, a necessary

concomitant to the res judicata bar.

14 The Supreme Court has "abandon[ed] the requirement of

mutuality of parties," United States v. Mendoza,

(1984) (citing Blonder-Tonque Labs., Inc. v. University of

111. Found.,

(1971)), and a district court acts

"well within its discretion in dismissing . . . actions pursuant

to the doctrine of nonmutual claim . . . preclusion," Randles v.

Gregart,

(6th Cir. 1992) (citing Hazaard v.

Weinberger,

(S.D.N.Y. 1974) (nonmutual

claim preclusion appropriate when pro se litigant brings repeated

actions upon same operative facts with slight change in legal

theories and "case of characters-defendants"), aff'd without

opinion,

(2d Cir. 1975)).

Plaintiff's state court complaint focuses upon the harm

allegedly inflicted by Henniker and its agents as a result of the

change in zoning, judicially sanctioned enforcement of same, and

forcible implementation of said judicial decree--all of which had

the ultimate effect of closing down plaintiff's junkyard. That

plaintiff's state court litigation proceeded against defendants

in their individual capacities, while the instant action pertains

both individually and officially, is of no moment. Plaintiff's

claims arose as a result of conduct taken by defendants while in

the scope of their employment. Consequently, Henniker obliged

itself to both represent and protect the interests of the

15 municipal defendants.8

The court thus finds and rules that the defendants named in

this suit and those named in the prior state court litigation

satisfy the privity requirement. Accordingly, the court further

finds and rules that all of the current defendants are entitled

to interpose the res judicata defense against the plaintiff.

(3) Identity of Causes of Action

Whereas plaintiff's state court action was styled as a

"takings" claim under the constitutions of the State of New

Hampshire and the United States, his federal courtsuit alleges

violations of his civil rights. See supra, at 3-4. Both

actions, however, have their genesis in the events leading up to

and including Henniker's October 21, 1992, attempt to shut down

8The court notes that, with respect to the addition of the Henniker Police Department and Chief Russell, the

newly named defendants are in privity with those who were defendants in the state court. In other words, they are so closely related to the state-court defendants, and their interests are so nearly identical, that it is fair to treat them as the same parties for purposes of determining the preclusive effect of the state-court judgment. Any other rule would enable plaintiff to avoid the doctrine of res judicata by the simple expedient of not naming all possible defendants in [his] first action.

(emphasis added).

16 plaintiff's junkyard. As the First Circuit has limned, "[t]he

issue is 'not whether the plaintiff in fact argued his [civil

rights] claims in the state proceeding, but whether he could

have.'" Isaac v. Schwartz,

(1st Cir. 1983)

(guoting Manego v. Cape Cod Five Cents Sav. Bank,

,

175 n.2 (1st Cir. 1982)) (alteration in Isaac) . "[I]f the

transactions here at issue are essentially the same as those in

the state court case, [plaintiff] could have asserted his present

claims there."

" [A] defeated party may not institute another action '. . .

seeking . . . approximately the same relief but adducing a

different substantive law premise or ground. This does not

constitute the presentation of a new claim when the new premise

or ground is related to the same transaction or series of

transactions . . . .'" Boucher v. Bailey,

,

(1977) (guoting R e s t a t e m e n t (S e c o n d ) o f J u d g m e n t s §

61.1 cmt. d. (Tent. Draft No. 1, 1973)).

"Generally, once a party has exercised the right to recover

based upon a particular factual transaction, that party is barred

from seeking further recovery, even though the type of remedy or

theory of relief may be different." Radkav v. Confalone,

,

(1990) (citing Eastern Marine,

supra,

,

); see also Eastern

17 Marine, supra,

,

("'That a number

of different legal theories casting liability on an actor may

apply to a given episode does not create multiple transactions

and hence multiple claims. This remains true although the

several legal theories . . . would call for different measures of

liability or different kinds of relief.'" (guoting R e s t a t e m e n t ,

supra, § 2 4 cmt. c)).

The court finds and rules that all the issues herein raised

could easily have been raised as part of the state court

proceedings. "It would be anomalous for a court to refuse to

apply the claim preclusion doctrine precisely because the

plaintiff has done what the doctrine is intended to deter."

; Griffin v. Rhode Island,

(1st Cir.) ("By forcing plaintiffs to bring related

claims as part of a single cause of action, res judicata prevents

needless and duplicative litigation." (citations omitted)), cert.

denied,

(1985); Eastern Marine, supra,

,

(doctrine of res judicata ensures "that at

some point litigation over a particular controversy must come to

an end" (guotation and citation omitted)).

Plaintiff's dispute with Henniker, its selectmen, and its

police officers, having been found unmeritorious in the courts of

New Hampshire, fares no better in the courts of the United

18 States. Plaintiff's present complaint and the prior state court

action arise, without question, from the same transaction or

series of transactions and, as such, implicate New Hampshire

principles of res judicata. Accordingly, defendants' motion for

judgment on the pleadings must be and herewith is granted.

Conclusion

For the reasons set forth herein, defendants' motion for

judgment on the pleadings (document 11) is granted. Plaintiff's

federal suit is precluded, under the doctrine of res judicata, by

the dismissal of his previous state court litigation. The clerk

of court is instructed to enter judgment accordingly.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

July 6, 1995

cc: Lawrence R. Homo, Sr., pro se Barton L. Mayer, Esq.

19