Decker v. Decker, et al. CV-96-424-M 09/11/97 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Marshal N. Decker

v. Civil No. 96-424-M

David R. Decker; Duncan Farmer; Robert Stinson; Normandin, Cheney & O'Neil, P.A.; Decker, Fitzgerald & Sessler, P.A.; a/k/a Fitzgerald & Sessler, P.A.

O R D E R

Pro se plaintiff, Marshall Decker, brings this action

against his brother and other defendants alleging malicious

prosecution and abuse of process arising from state court

litigation that followed a failed business relationship.

Plaintiff's brother, defendant David Decker, also pro se, moves

to dismiss plaintiff's conspiracy count for failure to state a

claim upon which relief can be granted. For thefollowing

reasons, defendant's motion todismiss plaintiff's conspiracy

cause of action is granted.

I. Standard of Review

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) is one

limited inguiry, focusing not on "whether a plaintiff will

ultimately prevail but whether the claimant is entitled to offe

evidence to support the claims." Scheuer v. Rhodes,

(1974). Accordingly, the court must take the factual

averments contained in the complaint as true, indulging every reasonable inference helpful to the plaintiff's cause. Garita

Hotel Ltd. Partnership v. Ponce Fed. Bank,

(1st

Cir. 1992); see also Dartmouth Review v. Dartmouth College,

(1st Cir. 1989). Great specificity is not required

to survive a Rule 12(b)(6) motion. "[I]t is enough for a

plaintiff to sketch an actionable claim by means of a generalized

statement of facts from which the defendant will be able to frame

a responsive pleading." Garita,

(citation and

internal quotation marks omitted). In the end, the court may

grant a motion to dismiss under Rule 12(b) (6) "'only if it

clearly appears, according to the facts alleged, that the

plaintiff cannot recover on any viable theory.'"

at 17

(quoting Correa-Martinez v. Arrillaqa-Belendez,

(1st Cir. 1990) ) .

Because the plaintiff is acting pro se, his complaint is

necessarily held to a less stringent standard than are formal

pleadings drafted by lawyers. See Haines v. Kerner,

(1972). Although the court will liberally construe a

complaint drafted by a pro se litigant, the plaintiff must still

allege facts sufficient to state a cause of action. See Correa-

Martinez v. Arrillaqa-Belendez,

.

II. Background

This lawsuit is the culmination of a ten year disagreement

and several years of state court litigation between two brothers

2 regarding a real estate investment and development project. In

1986, defendant, David Decker, purchased from his brother

Marshall a ten percent interest in a real estate development

project known as Cotton Farm Village ("C.F.V."). Subseguently,

David sued Marshall in state court, claiming that Marshall

converted profits from the sale of homes on the property for his

own use. In 1993, the matter was tried on the merits to the

Belknap County Superior Court.

At trial, David called an accountant who had audited

C.F.V.'s books. The auditor testified that Marshall Decker had

engaged in "unauthorized borrowing" of up to one million dollars.

Although the trial court held that David had failed to prove that

any "unauthorized borrowing" or "conversion" of the funds

occurred, the court did find that "Marshall [had] not made the

proper use of large sums of Cotton Farm Village [income]." Decker

v. Decker, No. E-86-0128, slip op. at 12 (N.H. Superior C t .

September 1, 1993). In the end, the Superior Court ordered

Marshal to pay his brother approximately $70,000, representing

the value of David's ten percent interest in C.F.V. from 1986

through 1991 if Marshall had not engaged in "unauthorized and

detrimental removal of a portion of the gross revenues for Cotton

Farm Village" during that period. Id. at 16. The court also

awarded David $15,000 in accounting fees. Marshall appealed that

order to the New Hampshire Supreme Court, which affirmed the

trial court's finding that David held a ten percent interest in

3 C.F.V., but remanded the matter to the trial court for

recalculation of his damages and revaluation of his ten percent

interest in C.F.V. Decker v. Decker,

(1995).

On remand, the trial court determined that plaintiff's ten

percent share of C.F.V. for the years at issue was valued at

$100,000, which was then offset by $38,461 in payments made by

C.F.V. on a loan for which David was liable. Accordingly, the

trial court entered judgment in favor of David in the amount of

$61,539 and ordered a yearly accounting of the profits generated

by C.F.V. The record suggests that Marshall appealed that

judgment to the New Hampshire Supreme Court, which apparently

denied his appeal.

III. Discussion

In this suit, Marshall asserts that David, David's former

law firm (Decker, Fitzgerald & Sessler, P.A.), and the accountant

retained by David, Duncan Farmer, engaged in malicious

prosecution and abuse of process by bringing the state court suit

against him based on false information and perjured testimony.

Paragraph 69 of plaintiff's complaint, which is the subject of

the pending motion to dismiss, alleges that "the defendant

conspired with other defendants to commit perjury with respect to

the subject litigation," in a successful effort to obtain the

substantial monetary judgment awarded by the Superior Court.

Defendant moves to dismiss on ground that the facts alleged in

4 the complaint do not state an actionable claim under the

governing law of New Hampshire.

"A civil conspiracy is a combination of two or more persons

by concerted action to accomplish an unlawful purpose, or to

accomplish some purpose not in itself unlawful by unlawful

means." Jav Edwards, Inc. v. Baker,

(1987) .

In New Hampshire, there is no recognized civil action based

solely on conspiracy. See Langley v. Langley,

(1931)(citing Stevens v. Rowe,

(1880)). It is

the wrong actually done to the plaintiff, and not the conspiracy

to commit that wrong, that is the foundation of the action. See

Langley,

(citing Fitzhugh v. Railway,

,

18 9 (1921)); see also Stevens,

(1880).

Conseguently, to state a viable claim, a plaintiff in a civil

conspiracy action must allege some damages or injury resulting

from the alleged conspiracy. See

Moreover, under New Hampshire law, the defeated party in a

previous lawsuit cannot maintain a civil action against a witness

for allegedly giving false testimony in favor of his opponent,

unless and until the underlying civil judgment is overturned or

reversed. See Stevens,

. See also Sweeney v.

Young,

(1925) ("It is held that conduct in

bringing about a judgment is not actionable while the judgment is

in force. This is not only the rule in cases of malicious

5 prosecution, but also in other cases where the conduct is

inherently wrongful.") (citations omitted).

Under circumstances such as those presented here, there can

be no civil action for conspiracy to commit perjury, because the

merits of that action "can not in general be tried without at the

same time trying the merits of an action which has already been

settled in the due course of law." Curtis v. Fairbanks,

(1845). A judgment on a guestion once fairly submitted,

in final form, is in effect and may not be challenged or raised

again by a party in a separate proceeding. See

. So,

as the losing party in state court litigation, plaintiff cannot

assert that the state court judgment was either unjust or

obtained through fraud as the grounds for recovering damages in

this action, so long as the underlying state court judgment

remains in force. See Lvford v. Demerritt,

(1855) ("Where a verdict and judgment have been recovered against

a party to a suit, he cannot, while such judgment is unreversed,

maintain an action against another party jointly with others,

upon an allegation that said verdict was unjust and false, and

was procured by them through fraud and perjury, under a

conspiracy to effect that purpose." ) (citation omitted). Under

those circumstances, a party's appropriate remedy is an eguitable

proceeding to set aside the judgment, or a petition for a new

trial. See Stevens,

.

6 Here, in light of the governing law of New Hampshire, the

facts alleging conspiracy to commit perjury fall short of stating

an actionable claim. The underlying dispute involves the

calculation of David's interest in C.F.V. That issue was fully

and finally decided by the state court, and Marshall was ordered

to pay his brother, David, the specified amount found to be due.

Nevertheless, Marshall has attempted to launch a form of

collateral attack on the state court judgment, claiming that he

is entitled to recover damages (presumably measured, at least in

part, by the amount the state court ordered him to pay his

brother) on the theory that David and the accountant conspired to

bring about an unjust judgment by giving false testimony in the

state court proceeding. To prove his claim, plaintiff seeks to

relitigate the very issue that was previously decided by the

state court between the same parties, namely the method adopted

by the state court for calculating the value of David's interest

in C.F.V. and the amount of money which he is properly owed. In

short, plaintiff seeks to collaterally attack the validity of the

state court's judgment ordering him to pay his brother $61,539.

"This, on well-settled principles, he cannot be permitted to do."

Lyford,

. Plaintiff's proper recourse is to the

state Superior or Supreme Court.

IV. Conclusion

Given the summary facts alleged, plaintiff does not state a

cause of action upon which he may recover. Accordingly,

7 defendant's motion to dismiss plaintiff's conspiracy claim

(paragraph 69 of the complaint) is granted (document no. 29).

SO ORDERED.

Steven J. McAuliffe United States District Judge

September 11, 1997

cc: Marshal N. Decker David R. Decker Jeffrey B. Osburn, Esg. David H. Bownes, Esg. James C. Wheat, Esg.

8