Tremblay v. Smith, et al. CV-96-184-JD 07/16/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Richard J. Tremblay

v. Civil No. 96-184-JD

Peter William Smith, et al.

O R D E R

The pro se plaintiff, Richard J. Tremblay, brought this

action under

against the following defendants:

Jacgueline S. Tremblay, Richard Tremblay's ex-wife, who also

appears pro se; the estate of attorney Charles F. Butler, who

originally represented Jacgueline Tremblay; the law firm of

Butler & Hill, of which Charles Butler was a partner; attorney

Robert J. Foley, who represented Jacgueline Tremblay subseguent

to Charles Butler's death; and New Hampshire Superior Court Judge

Peter W. Smith, who presided over the legal action giving rise to

the plaintiff's claim. The plaintiff alleges that the defendants

violated his Fourth, Fifth, and Fourteenth Amendment rights when

he was incarcerated for contempt of a child support order

subseguent to a divorce proceeding in the Coos County Superior

Court. Before the court are the Butler estate's motion to

dismiss (document no. 53), Butler & Hill's motion to dismiss

(document no. 128), Foley's motion for judgment on the pleadings

(document no. 29), Jacgueline Tremblay's motion to dismiss (document no. 69), the plaintiff's motions to strike Jacqueline

Tremblay's motion to dismiss (document nos. 75 & 88), and the

plaintiff's motion for a more definite statement regarding

Jacqueline Tremblay's motion to dismiss (document no. 89).

Background1

Plaintiff Richard Tremblay and defendant Jacqueline Tremblay

received a final divorce decree from the Coos County Superior

Court on October 7, 1992. At some point during 1991 after the

parties had separated, the plaintiff moved to Maine. In July or

August of 1993, Jacqueline Tremblay moved to Vermont. In May

1994, the plaintiff sought temporary custody of the Tremblays'

children from a Maine court. On June 28, 1994, the Maine court

awarded him custody of four of the six children.

On July 8, 1994, Jacqueline Tremblay initiated contempt

proceedings in New Hampshire against the plaintiff due to his

failure to pay ordered child support and requested that the New

Hampshire court assume exclusive jurisdiction. The plaintiff was

found in contempt and incarcerated. In 1995, the New Hampshire

'The court summarizes the relevant factual background, resolving all genuine disputes of material fact in the light most favorable to the plaintiff. The court's task has been hindered, however, by a number of voluminous, redundant, irrelevant, and conclusory filings. court determined that it lacked jurisdiction over the proceeding.

The plaintiff does not appear to contest the fact that he had not

paid child support as ordered, although he asserts that the

support order itself was the product of fraud.

Following the New Hampshire court's determination that it

lacked jurisdiction over the action, the plaintiff brought this

action, alleging that the defendants, which include his ex-wife,

her attorneys, and the judge, conspired together to, and did,

deny him his constitutionally protected rights by having him

incarcerated. The plaintiff's complaint and voluminous

supporting materials are replete with allegations of fraud and

conspiracy but fail to provide a factual predicate for the

alleged conspiracy. The court understands the plaintiff's main

contention to be that because the New Hampshire court ultimately

determined that it lacked jurisdiction to enforce the child

support order, all parties who participated in the contempt

proceeding knowingly engaged in a conspiracy to deprive him of

his rights. Each of the remaining defendants has moved to have

the claims against him or her dismissed on various grounds.2

2The court previously granted defendant Smith's motion to dismiss on the grounds of absolute immunity.

3 Discussion

I. Butler's Rule 12 Motion3

Pursuant to Fed. R. Civ. P. 12(c), a motion for judgment on

the pleadings will be granted if, accepting all of the

plaintiff's factual averments contained in the complaint as true,

and drawing every reasonable inference helpful to the plaintiff's

cause, "it appears beyond doubt that the plaintiff can prove no

set of facts in support of his claim which would entitle him to

relief." Rivera-Gomez v. de Castro,

(1st Cir.

1988). Butler argues, inter alia, that the plaintiff's action is

barred by the statute of limitations. New Hampshire Rev. Stat.

Ann. ("RSA") § 556:3 provides that:

No action shall be sustained [against the adminis­ tratrix of an estate] unless [a] demand was exhibited to the administrat[rix] within six months after the original grant of administration, exclusive of the time such administration may have been suspended.

RSA § 556:3 (1974). In addition, RSA § 556:5 provides that:

No suit shall be maintained against an administrat[rix] for any cause of action against the deceased, unless it is begun within one year next after the original grant of administration . . . .

3Butler moved to dismiss pursuant to Fed. R. Civ. P. 12(b) (6) for failure to state a claim upon which relief can be granted. However, because Butler had already filed an answer to the plaintiff's complaint, the pleadings were closed under Fed. R. Civ. P. 7(a). As such, the court will treat Butler's motion to dismiss as a motion for judgment on the pleadings. See Fed. R. Civ. P . 12(c).

4 Id. § 556:5 (1974). Finally, RSA § 556:7 provides that:

If a right of action existed . . . against the deceased at the time of his death, and survives, an action may be brought . . . against the administrat[rix] at any time within one year after the original grant of administration.

Id. § 556:7 (1974). It is undisputed that the plaintiff brought

this action more than one year after the grant of administration

of the Butler estate and without making a demand on the

administratrix within six months as reguired by statute, which

would normally bar an action against either the Butler estate or

Butler as administratrix of the estate.

The plaintiff responds that the applicable statute of

limitations should be tolled in this case due to fraudulent

concealment. However, the plaintiff has not alleged with

particularity what fraud was committed to conceal from him his

cause of action, as reguired by Fed. R. Civ. P. 9(b). See J .

Geils Band Employee Benefit Plan v. Smith Barney Shearson, Inc.,

(1st Cir.), cert, denied, 117 S. C t . 81

(1996). Because the court cannot accept the plaintiff's mere

conclusory allegations that fraudulent concealment should toll

the statute of limitations and the plaintiff has provided no

other cogent reason to allow his complaint against Butler to go

forward, the court grants the Rule 12 motion as to his claim

against Butler.

5 II. Butler & Hill's Rule 12 Motion and Foley's Motion for Judgment on the Pleadings4

Defendants Butler & Hill and Foley argue that they are

entitled to judgment on the pleadings under Fed. R. Civ. P. Rule

1 2 (c) because the plaintiff has not alleged an adequate factual

predicate to support his conspiracy claim against them.5 The

4Butler & Hill moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. However, because it had already filed an answer to the plaintiff's complaint, the pleadings were closed under Fed. R. Civ. P. 7 (a). As such, the court will treat Butler & Hill's motion to dismiss as a motion for judgment on the pleadings. See Fed. R. Civ. P. 1 2 (c).

50ne additional argument made by Butler & Hill requires comment. Counsel argues that Butler & Hill lacks the capacity to be sued because "capacity to sue or be sued shall be determined by the law of the state in which the district court is held . . ." and New Hampshire law dictates that a partnership of fewer than four members cannot be sued in the name of the entity. Mot. to Dismiss of Def. Butler & Hill at 2 (quoting, in part. Fed. R. Civ. P. 17(b)). This citation and argument contains a striking omission, apparently due to careless lawyering. The relevant text of Fed. R. Civ. P. 17(b) provides the following:

In all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held, except (1) that a partnership or other unincorporated association, which has no such capacity by the law of such state, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States . . . .

Fed. R. Civ. P. 17(b) (emphasis added). The court expects those who practice before it to be meticulous, complete, and accurate in citation of authorities. Anything less than that is unacceptable.

6 plaintiff argues in response, inter alia, that the defendants'

Rule 12 motions are really disguised motions for summary

judgment, inappropriate because of the facts in dispute in this

action.6

In Slotnick v. Staviskev, the First Circuit stated:

In an effort to control frivolous conspiracy suits under § 1983, federal courts have come to insist that the complaint state with specificity the facts that, in the plaintiff's mind, show the existence and scope of the alleged conspiracy. It has long been the law in this and other circuits that complaints cannot survive a motion to dismiss if they contain conclusory allegations of conspiracy but do not support their claims with references to material facts.

(1st Cir. 1977); see, e.g., McGillicuddv v.

Clements,

(1st Cir. 1984) ("Because plaintiff

makes virtually no factual showing to support his allegation of a

conspiracy, it was improper for the district court to deny

defendant's motion to dismiss."); Dewev v. University of N.H.,

(1st Cir. 1982) ("[W]e insist that the claim at

least set forth minimal facts, not subjective characterizations,

as to who did what to whom and why."); Francis-Sobel v.

University of Me.,

(1st Cir. 1979); MacFarlane v.

Smith,

(D.N.H. 1996) ("A party seeking

61he court notes that, as of the date of this order, the plaintiff had not responded to defendant Butler & Hill's Rule 12 motion. His deadline for doing so was July 7, 1997.

7 to wield a section 1983 cause of action against a private

individual on grounds of an alleged conspiracy with state

officials bears a higher burden of proof than is otherwise

reguired to survive a motion brought under Rule 12(b)(6) . . . .

If the complaint contains nothing more than conclusory

allegations rather than well-pled facts, dismissal under Rule

12(b) (6) is appropriate. [Here, the complaint] fails entirely to

plead any facts tending to show the existence of a tainted

agreement, such as a ''backroom' meeting between the co­

conspirators.") ; see also Dwares v. City of New York,

(2d Cir. 1993) ("[I]n order to state a claim of

conspiracy under § 1983 the complaint must contain more than mere

conclusory allegations."); Jackson v. Faber,

(D. Me. 1993) ("It is sufficient to survive a motion to

dismiss that Plaintiff has made factual allegations which

indicate with a reasonable degree of specificity who did what,

when, and how these actions resulted in the deprivation of

rights."). But cf. Leatherman v. Tarrant County Narcotics

Intelligence & Coordination Unit,

(1992)

(§ 1983 actions alleging municipal liability cannot be subjected

to "heightened pleading standard").

Some courts have guestioned whether the Slotnick line of

cases remains viable after Leatherman. See, e.g., Gerakaris v.

8 Champagne,

(D. Mass. 1996) ("Although

Leatherman applies only to § 1983 claims against municipalities,

the logic of the Court's reaffirmation of the sufficiency of the

rule of notice pleading in that context has no less force in

cases involving civil rights claims against individual government

officials."); Feliciano v. DuBois,

(D.

Mass. 1994) ("[T]he extent to which this court can now rely upon

decisions predating Leatherman is in doubt."). Other courts

harmonized any apparent inconsistencies by concluding that the

holding of Leatherman is limited to the municipal liability

context. See Kimberlin v. Quinlan,

, 794 n.9 (D.C.

Cir. 1993), rev'd on other grounds, 115 S. C t . 2552 (1995).7 The

court need not resolve this difficult issue in this case,

however, because the plaintiff's general allegations lack the

necessary support of a "specific factual basis" sufficient to

meet the reguirements of notice pleading. Fleming v. Lind-

Waldock & C o .,

(1st Cir. 1990); see Romero-

Barcelo v. Hernandez-Agosto,

(1st Cir. 1996)

7In Leatherman, the Supreme Court explicitly declined to consider the issue of whether a "heightened pleading standard" might be appropriate or even reguired in cases involving individual government officials and thus implicitly declined to consider the issue of whether such a standard might be appropriate in cases involving alleged civil rights conspiracies in which non-government officials are alleged to have conspired with government officials. See Leatherman,

.

9 (explicitly declining to address issue of whether Leatherman

overruled Slotnick because failure to allege essential elements

of claim is not "mere failure to comply with a 'heightened

pleading reguirement. ' ; see also Boston & Maine Corp. v. Town

of Hampton,

(1st Cir. 1993) (reguiring some

specificity in pleading promotes, inter alia, (1) adeguate notice

of claim to defendants; (2) control of unwarranted litigation

costs; and (3) early dismissal of baseless claims).

While Fed. R. Civ. P. Rule 9(b) limits heightened pleading

reguirements to fraud and mistake, each claim must still meet the

minimal reguirements of Fed. R. Civ. P. Rule 8(a)(2). As the

Supreme Court has noted. Rule 8 (a) does not generally reguire

claimants to set out in detail all the facts upon which they base

their claim, but it does reguire "'a short and plain statement of

the claim' that will give the defendant fair notice of what the

plaintiff's claim is and the grounds upon which it rests."

Leatherman,

(quoting Conley v. Gibson,

(1957)). To satisfy this reguirement, the "degree of

specificity with which the operative facts must be stated in the

pleadings varies depending on the case's context." See Boston &

Maine,

(quoting United States v. AVX Corp.,

(1st Cir. 1992)). The plaintiff's voluminous and

vociferous accusations of conspiracy leave no doubt that he is

10 deeply aggrieved by his former incarceration, but shed little

light as to the grounds, if any, upon which his claim rests.

Thus, the plaintiff's argument that the Rule 12 motions should

not be granted because they are in actuality motions for summary

judgment misses the mark. The plaintiff's allegations of

conspiracy are so devoid of any factual predicate that they fail

to meet the minimal reguirements of notice pleading, and thus do

not entitle him to proceed beyond the pleading stage. See Doyle

v . Hasbro, Inc.,

(1st Cir 1996) (complaint does

not withstand motion to dismiss if plaintiff merely recites

elements of cause of action in conclusory terms); Abbott v.

Shumwav, No. 96-167-B, slip op. at 12 (D.N.H. Mar. 28, 1997)

(dismissal warranted where plaintiffs alleged conscience-shocking

conduct but facts did not support conclusory assertion).8 For

these reasons, the court grants the Rule 12 motions of defendants

Butler & Hill and Foley.

8Even assuming arguendo that the plaintiff's complaint could be read to provide an adeguate factual predicate upon which to base a cognizable claim of conspiracy as to some of the defendants, his claim is deficient in another respect. Although non-state actors may be held liable for conspiring with state actors even where the state actors are themselves immune from liability, here the plaintiff has failed to sufficiently allege a conspiracy between Judge Smith, the only state actor named as a party, and the remaining defendants, who are not state actors. See Dennis v. Sparks,

(1980) ("[MJerely resorting to the courts and being on the winning side of a lawsuit does not make a party a co-conspirator or a joint actor with the judge.").

11 III. Jacqueline Tremblav's Rule 12 Motion9

Jacqueline Tremblay arques that the claims aqainst her

should be dismissed because (1) the plaintiff has not adequately

stated a claim and (2) she is on welfare. While she has not

supported her position with either arqument or leqal authority,

the court notes that the infirmity in the plaintiff's pleadinqs

with respect to defendants Butler & Hill and Foley also exists

with respect to his pleadinqs aqainst Jacqueline Tremblay.

Therefore, the court qrants Jacqueline Tremblay's Rule 12 motion

on the qrounds discussed in Part II, supra.10

Conclusion

For the reasons stated above, the Rule 12 motions of

defendants Butler (document no. 53), Butler & Hill (document no.

128), Foley (document no. 29), and Jacqueline Tremblay (document

no. 69) are qranted. The plaintiff's motions to strike (document

nos. 75 & 88) are denied and the plaintiff's motion for a more

9Jacqueline Tremblay moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be qranted. However, because she has already filed an answer to the plaintiff's complaint, the pleadinqs have closed under Fed. R. Civ. P. 7(a). As such, the court treats her motion to dismiss as a motion for judqment on the pleadinqs. See Fed. R. Civ. P. 1 2 (c) .

10In liqht of this rulinq, the court denies the plaintiff's motions to strike, which it understands present no more than substantive objections to Jacqueline Tremblay's Rule 12 motion. The court also denies as moot the plaintiff's motion for a more definite statement.

12 definite statement (document no. 89) is denied as moot. The

clerk is ordered to close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. Chief Judge

July 16, 1997

cc: Richard J. Tremblay, pro se Emily G. Rice, Esquire Sara B. Shirley, Esquire Peter G. Beeson, Esquire Jacqueline S. Tremblay, pro se

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