Snow v. American Morgan Horse Assoc. CV-93-463-JD 05/08/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Maxine W. Snow

v. Civil No. 93-463-JD

The American Morgan Horse Association, Inc., et al.

O R D E R

The plaintiff, Maxine W. Snow, brought this action alleging

antitrust violations against the defendants, the American Morgan

Horse Association, Inc. ("AMHA"), John L. Hammer, III, Tyler J.

Atwood, Philip M. Dubois, Darwin A. Olson, Dr. Albert A. Lucine,

Jr., George W. Arnold, Robert A. Epperson, James Stewart, Charle

E. McPherson, Mary C. Woolverton, Marjorie D. Goodson, and

Adrienne Wailes.1 Before the court are defendant Wailes' motion

to dismiss (document no. 82), defendant Goodson's motion for

summary judgment (document no. 72), and the remaining defendants

motion for summary judgement (document no. 73).2

xAn additional defendant, Carol Bailey Hudson, has been dismissed without prejudice to the plaintiff's claims against her.

2Defendant Goodson has merely incorporated the arguments of the AMHA in her motion for summary judgment, and so the court hereinafter refers collectively to the defendants as a unified group unless otherwise noted. Background3

The plaintiff was involved in the Morgan horse business for

over twenty years. During that time, she was a member of the

AMHA. The AMHA is a nonprofit association that presents itself

as dedicated to the preservation and promotion of the Morgan

horse breed. In support of this end, the AMHA maintains a

registry of purebred Morgan horses (the "Registry"). A horse can

only be listed in the Registry if both its parents are registered

Morgan horses.

This action stems from an investigation by the AMHA into the

parentage of five horses registered by the plaintiff as Morgans

but determined by the AMHA to be non-Morgans. The court relates

seriatim the background of the investigation against the

plaintiff, the state court litigation that resulted from the

investigation, the history of this action, and the AMHA's

treatment of other cases.

31he court relates all material facts in genuine dispute in the light most favorable to the plaintiff, the party resisting summary judgment. See Sanchez v. Alvarado,

, 225 n.l (1st Cir. 1996). 1. Investigation of and Action Against the Plaintiff4

In August or September 1991, the AMHA received a letter

calling into guestion the lineage of five foals registered by the

plaintiff as offspring of the Morgan mare Senora Showblez Vona

("Senora"). The letter guestioned how a mare that was as old as

Senora and who had not previously foaled could have five foals in

five successive years. Defendant Atwood, Registrar of the AMHA,

brought the matter up at a meeting of the AMHA Registry Committee

in November 1991.

Members of the AMHA suspected that the plaintiff had bred a

Morgan stallion to a non-Morgan mare, represented the foals as

the offspring of Senora, and registered them as Morgans. To make

the deception more difficult to uncover, the plaintiff submitted

a blood sample from the non-Morgan mare, claiming that it was in

fact the blood of Senora, whose blood had not been previously

collected. In that way, the blood type of the foals would match

the blood registered as Senora's.

As a result of their suspicions, the AMHA's Registry

Committee began to investigate the plaintiff's business

practices. The Registry Committee authorized Atwood to go to the

4The facts pertinent to the investigation of and action against the plaintiff are recounted more fully in the New Hampshire Supreme Court's opinion in Snow v. American Morgan Horse Ass'n,

,

(1996).

3 plaintiff's farm to draw blood from Senora in order to check it

against the foals attributed to her. Atwood was told by the

plaintiff that Senora was not at the farm but was instead in the

care of a veterinarian. Later, when the AMHA took further steps

to obtain a sample of Senora's blood, the plaintiff informed

Atwood that Senora had died prior to the date of the first

inspection. The plaintiff reported that she was not aware of

Senora's death at the time of the first inspection because she

had just returned from a trip.

During the course of its investigation, the AMHA held two

internal hearings, each of which generated an appeal. The AMHA

investigation resulted in the expungement of the foals alleged by

the plaintiff to be the progeny of Senora (the "Senora foals")

and the expulsion of the plaintiff from the AMHA. The

plaintiff's expulsion from the AMHA has ended her career as a

breeder, trainer, and seller of Morgan horses.

2. The State Court Action

The ongoing AMHA investigation interfered with the

plaintiff's ability to sell the Senora foals and the ability of

others to sell the progeny of the Senora foals. Accordingly, the

plaintiff petitioned the New Hampshire Superior Court for

preliminary injunctive relief and reguested an order compelling

4 the AMHA to recognize the five foals as Senora's offspring. The

AMHA filed a two-count counterclaim alleging that the plaintiff

had committed fraud and violated the New Hampshire Consumer

Protection Act ("CPA") by falsely registering non-Morgans as

Morgans.

The superior court denied the plaintiff's application for a

preliminary injunction, and she withdrew, without prejudice, her

claims against the AMHA and its officers. See Snow v. American

Morgan Horse Ass'n,

,

(1996). The court then tried the AMHA's counterclaims. See

. The superior court found that the plaintiff

had committed fraud and violated the CPA by registering the non-

Morgan Senora foals as Morgans. See

. It

awarded the AMHA damages in the amount of $37 6,362.13 for the

plaintiff's violation of the CPA. See

.

The plaintiff appealed, and the New Hampshire Supreme Court

upheld the trial court's finding that the AMHA had proved fraud

by the plaintiff. See

,

. The court,

however, reversed the superior court's finding of a CPA

violation, holding that the CPA did not apply to the plaintiff's

conduct because she did not conduct any trade or commerce with

the AMHA. See

,

. The court remanded

the case to the trial court for consideration of damages and

5 attorneys' fees arising from the plaintiff's fraud. See

,

.

3. The Current Action

While the state court action was pending, the plaintiff

brought this action alleging that the defendants' conduct in

investigating and expelling her from the AMHA violated the

antitrust laws as well as various provisions of state law. The

gravamen of the plaintiff's complaint is that the AMHA

arbitrarily and capriciously chose to pursue disciplinary action

against her when other AMHA members who engaged in egually

objectionable behavior went unpunished. She contends that the

AMHA's prosecution of her was an act calculated to eliminate a

competitor in restraint of trade and that the AMHA's purported

goals and objectives are a sham. The plaintiff alleges that the

AMHA hearings and appeals were not fair or impartial because of,

inter alia, the following factors: the Registry Committee used

false and misleading statements as a basis to commence the

initial investigation; the AMHA did not inform the plaintiff of

the identity of her accuser; members of the committees that heard

her case were competitors and therefore were not impartial;

members of the committees had prejudged the outcome of the case;

the testimony of witnesses was manipulated during the hearings;

6 and directors who had already found her guilty in the hearings

were selected to serve on the appeals tribunal. In short, the

plaintiff has attacked every facet of the defendants' actions.5

In her amended complaint, the plaintiff alleges the

following claims: the defendants engaged in a group boycott and

conspiracy in restraint of trade in violation of § 1 of the

Sherman Act (count I); the defendants conspired to monopolize

trade and commerce in the breeding, sale, and showing of Morgan

horses in violation of § 2 of the Sherman Act (count II); the

defendants intentionally and improperly interfered with

contractual relations that the plaintiff had with third parties

in violation of state law (count III); the defendants violated

the New Hampshire CPA (count IV); the defendants defamed the

plaintiff (count V ) ; and the AMHA and Goodson violated the

plaintiff's due process rights during the course of litigation

against her by obtaining prejudgment attachments of her property

under an allegedly unconstitutional statute (count VI).

5In addition, despite having been informed that the court will not allow the plaintiff to relitigate issues conclusively determined in the state court litigation, she has continued to suggest that the five expunged Senora foals were in fact the Morgan progeny of Senora and thus that she did not commit fraud. Those issues, however, were fully and conclusively litigated in the state court action and thus will not be reexamined here.

7 4. AMHA's Failures to Take Disciplinary Action Against Others

The plaintiff's claims revolve around her allegation that

the AMHA singled her out for disciplinary action not meted out to

others and disproportion to the wrong she committed. In support

of her claim, the plaintiff points to the following episodes in

which she asserts that the AMHA failed to take action against

other AMHA members who engaged in conduct that violated AMHA

rules.

Only one other non-Morgan has been expunged from the

Registry. Timberland Jon V, owned by Judy Whitney, was a horse

of a race breed entered as a Morgan in a Morgan world race

competition. Timberland won by such a large margin that it

raised suspicion as to its breed and it was discovered to be a

non-Morgan. Although the horse was expunged, no action was taken

against Whitney, who remains a member in good standing of the

AMHA.

The Morgan stallion Vanberbilt was born on June 8, 1980, and

registered by Susan Marcotte. Marcotte listed Shaker's Destry as

Vanderbilt's sire. In March 1993, while the investigation of the

plaintiff was proceeding, defendant Atwood learned from the

laboratory that performs blood tests for the AMHA that Shaker's

Destry was probably not the sire of Vanderbilt. Vanderbilt thus

could have been fraudulently registered by Marcotte, but no charges were ever brought against Marcotte and the progeny of

Vanderbilt have not had their pedigree changed.

While the plaintiff was being investigated, an anonymous

memorandum was sent to all members of the AMHA Board of

Directors. The memo alleged that Thomas Caisse, a member of the

Board and chairman of the AMHA Ethics Committee, was involved in

the false registration of a mare he owned. Past Memories, as the

daughter of the Morgan horse Wessex Melody when her real mother

was Milady Bloomfield, a non-Morgan. The AMHA never investigated

this accusation, and Caisse remains the head of the AMHA Ethics

Committee.

The owners of three Morgan dams, Chesbrook Superman,

Flamewood Surena, and Blackgold Excalibur, sent these dams to

Ralph Curtis so they could be bred to his stallion Chasley

Superman. Because Chasley Superman was going sterile, Curtis

bred the mares to another stallion, Cedarbrook Sensation. The

fraud was discovered through blood typing and the pedigrees of

the foals were officially changed. No action was taken against

Curtis, who at the time was a Director of the AMHA. Two years

later he was appointed chairman of the AMHA Ethics Committee.

On February 19, 1992, defendant Atwood received information

from Laura Gordon that a Morgan mare. Lost River Sanfield, was a

"fake" and other information that foals from as many as three different horses had been attributed to Lost River Sanfield. The

AMHA declined to investigate these charges.

The registration certificate of the mare Yellow Iris

Jennifer lists her sire as Yellow Iris Brooke. However, the AMHA

has known since at least 1989 that Yellow Iris Brooke has been

eliminated by blood testing as Yellow Iris Jennifer's sire. The

AMHA investigated the case, but was unable to determine the

identity of Yellow Iris Jennifer's true sire. Despite this, the

AMHA Board of Directors voted to permit Yellow Iris Jennifer to

remain in the registry with Yellow Iris Brooke as her recorded

sire, permitting her to compete in the 1990 Grand National Show.

On May 6 or 7, 1995, after the conclusion of the superior

court action against the plaintiff, the AMHA Board of Directors

amended its rules to provide that, effective in May 1995, no

horse that was registered as of December 31, 1991, could be

expunged without the owner or breeder's consent. The effect of

this change in regulations is that what happened to the plaintiff

and her horses cannot happen to any other established breeder.

The plaintiff alleges that all of these incidents demonstrate

that the AMHA's asserted concern with protecting and preserving

the integrity of the Registry is a sham. She contends that her

expulsion and the expungement of her horses was accomplished by

10 jealous competitors for the purpose of eliminating her from the

market.

Discussion

Defendant Wailes has moved to have the action against her

dismissed pursuant to

because it was filed after

she filed a voluntary petition for bankruptcy. Wailes listed the

claim against her as a scheduled debt and the bankruptcy court

has issued a discharge of Wailes from all dischargeable debts.

The bankruptcy case was closed on September 22, 1997. Based on

Wailes' motion to dismiss and accompanying attachments, the

plaintiff's claim against Wailes appears to have been discharged

by the bankruptcy proceedings. The plaintiff's response to

Wailes' motion to dismiss was due on March 23, 1998. As of the

date of this order, the plaintiff has not responded to the motion

and has not reguested additional time to do so. Therefore, the

court grants defendant Wailes' motion to dismiss (document no.

82), ending her role as a defendant in the case.

The remaining defendants have moved for summary judgment on

each count of the plaintiff's claims. The role of summary

judgment is "to pierce the boilerplate of the pleadings and assay

the parties' proof in order to determine whether trial is

actually reguired." Snow v. Harnischfeger Corp.,

,

11 1157 (1st Cir. 1993) (quoting Wynne v. Tufts Univ. Sch. of

Medicine,

(1st Cir. 1992)). The court may only

grant a motion for summary judgment where the "pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving

[parties are] entitled to a judgment as a matter of law." Fed.

R. Civ. P. 56(c). The parties seeking summary judgment bear the

initial burden of establishing the lack of a genuine issue of

material fact. See Celotex Corp. v. Catrett,

(1986); Quintero de Quintero v. Aponte-Rogue,

, 227-

28 (1st Cir. 1992). The court must view the entire record in the

light most favorable to the plaintiff, "'indulging all reasonable

inferences in that party's favor.'" Mesnick v. General Elec.

C o .,

(1st Cir. 1991) (quoting Griqqs-Rvan v.

Smith,

(1st Cir. 1990)). However, once the

defendants have submitted a properly supported motion for summary

judgment, the plaintiff "may not rest upon mere allegation or

denials of [her] pleading, but must set forth specific facts

showing that there is a genuine issue for trial." Anderson v.

Liberty Lobby, Inc.,

(1986) (citing Fed. R.

Civ. P. 56(e)). The court considers the parties' arguments with

respect to each of the plaintiff's claims seriatim.

12 I. Section 1 of the Sherman Act

Section 1 of the Sherman Act provides,in relevant part:

Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal.

(West 1997). Acts which violate § 1 are divided

into two categories: (1) per se violations, which intrinsically

violate § 1; and (2) acts subject to rule of reason analysis,

which only violate § 1 if they impose an unreasonable restraint

on trade. See State Oil Co. v. Khan, 118 S. C t . 275, 279 (1997).

Actions that may impose an unreasonable restraint on trade under

rule of reason analysis include the exclusion of market

participants by associations such as the AMHA through the

enforcement of otherwise legitimate disciplinary rules "in an

arbitrary or discriminatory manner, or where the restraint is

broader than necessary to accomplish the legitimate of the

regulation." Cooney v. American Horse Shows Ass'n, Inc.,

(S.D.N.Y. 1980); see Carleton v. Vermont Dairy

Herd Improvement Ass'n,

(D. V t . 1991);

McCreerv Angus Farms v. American Angus Ass'n,

(S.D. 111.), aff'd

(7th Cir. 1974); see also

Pretz v. Holstein Friesian Ass'n of Am.,

, 1539-

40 (D. Kan. 1988) (rule of reason analysis applied to guestion of

13 association action).

However, because the antitrust laws "were enacted for 'the

protection of competition not competitors ,'" Brunswick Corp. v.

Pueblo Bowl-O-Mat, Inc., 429 U.S. A l l , 488 (1977) (quoting Brown

Show Co. v. United States,

(1962)), to prevail

in an antitrust claim predicated on arbitrary association action

the plaintiff must prove not only that she was the victim of such

action but also that she suffered antitrust injury, see id. at

488-89. Antitrust injury is "injury of the type the antitrust

laws were intended to prevent and that flows from that which

makes defendants' acts unlawful." Id. at 489. In other words,

the plaintiff must demonstrate not only that she suffered

arbitrary action at the hands of the AMHA but also that the

AMHA's acts harmed competition in the relevant market. See

Turner v. Johnson & Johnson,

(1st Cir. 1986) .

The parties agree that this case is subject to rule-of-

reason analysis. The defendants argue that the plaintiff's § 1

claim should be dismissed because the AMHA's actions, to the

extent that they restrained trade, did not unreasonably restrain

trade because the pro-competitive benefits of its actions

outweigh any negative anti-competitive effects. The defendants

also contend that the plaintiff has not demonstrated that she

suffered antitrust injury -- that is, that she has not adduced

14 sufficient evidence to raise a genuine issue of material fact

tending to support the contention that any acts by the defendants

unreasonably restricted competition.

The plaintiff responds that in antitrust cases where motive

and intent are central issues, and particularly in rule of reason

cases, summary judgment is inappropriate. She asserts that the

restraint imposed by the defendants' acts is unreasonable because

the defendants have not pursued their proffered goal of

protecting the integrity of the Registry in other cases,

revealing that their true purpose was an illegitimate desire to

eliminate her from the Morgan show horse market.6 The plaintiff

further contends that competition in the Morgan show horse market

was injured both by her expulsion and the expungement of the

Senora foals.7

6The plaintiff's allegations refer to markets in Morgan show horses of three different geographic scopes: New Hampshire, New England, and the United States. The court refrains from defining the precise geographic scope of the relevant market at this time because neither the plaintiff nor the defendants have specified which geographic market is proper.

7The plaintiff's claims that competition was damaged by the expungment of the Senora foals is untenable. As the court has noted already, the Senora foals have been conclusively determined to be non-Morgans and the plaintiff may not relitigate the issue. See supra note 5. Therefore, their expungment from the Registry and removal from the Morgan show horse market could not have had a negative effect on competition in that market. The plaintiff's only potentially cognizable claim of antitrust injury is that the defendants damaged competition by eliminating her as a source for Morgan horses other than the Senora foals.

15 The plaintiff's primary evidence in support of her claim

that the defendants' actions were more restrictive than necessary

to accomplish the legitimate goals of the AMHA is her account of

other violations of AMHA policies which the AMHA failed to pursue

or which resulted in less severe sanctions than those imposed on

the plaintiff. The court has recounted those claims in detail in

part four of the background section, supra. The court finds that

these episodes raise a genuine issue of material fact as to

whether the defendants were engaged in an effort to accomplish

the legitimate ends of the AMHA or instead were engaged in a

campaign to eliminate a successful competitor. Further, the

court finds that the AMHA's adoption of the policy by which it

can no longer expunge horses from the Registry without the

consent of the owners raises a genuine issue of material fact on

the guestion of whether the defendants were actually pursuing

their articulated legitimate purpose of protecting the integrity

of the Registry by investigating and disciplining the plaintiff.

However, these conclusions, while indicating the existence of a

genuine issue of material fact as to whether the defendants

caused injury to the plaintiff as a competitor in the market for

Morgan show horses do not in and of themselves raise a genuine

issue of material fact as to the existence of an injury to

competition.

16 The plaintiff's primary evidence in support of her claim

that she suffered cognizable antitrust injury in the form of an

injury to competition consists of the affidavits of two AMHA

members who are familiar with the market for Morgan show horses.

Both aver that the expulsion of the plaintiff from the AMHA has

damaged the Morgan show horse market. See Pl.'s Obj. to Defs.'

Mot. for Summ. J. ("Pl.'s Obj."), Exs. 30, 38 .8 The court finds

8The affidavit of Cheryl Orcutt submitted by the plaintiff as evidence of the effect of the defendants' actions on the Morgan show horse market states, in part, the following:

Since the AMHA began pursuing [the plaintiff], and at least in part as a result of AMHA's actions, all markets for Morgan show horses have declined. Fewer horses are being bred locally, regionally and nationally, and people are moving out of breeds. There has been a decline in the number of large, very competitive farms in the last four to five years. In New Hampshire, there are now only two major farms left . . . . The biggest effect has been felt in the northeast. Prior to 1991, the northeast was the center of the Morgan universe. One of the reasons for this was the effort of [the plaintiff]. She drew in customers from all over the country. This was good for everybody in the northeast, not just her. Buyers nationwide would schedule trips primarily to view [the plaintiff's] stock and plan to visit smaller breeders in Maine, New Hampshire, and Vermont at the same time. Such buying trips are not as freguent now. Additional [sic], the number of major breeders in the northeast has declined from up to fifteen to no more than twelve.

Pl.'s Obj., Ex. 30, 5 15. The affidavit of Douglas W. Coon, submitted for the same purpose, states, in part, the following:

I believe that the Morgan Breeder's Sweepstakes that was begun by [the plaintiff] and Kelli Ross has suffered immensely. What initially was two divisions

17 that these affidavits satisfy the plaintiff's burden of

demonstrating the existence of a genuine issue of material fact

about whether the acts of the defendants resulted in harm to

competition.

The court concludes that the plaintiff has successfully

demonstrated the existence of a genuine issue of material fact

with respect to her claim of a § 1 antitrust violation in count

I. Therefore the court denies summary judgment as to the

plaintiff's § 1 claims.

II. Section 2 of the Sherman Act

Section 2 of the Sherman Act makes it unlawful to

monopolize, or attempt to monopolize, or combine or

and $100,000.00 in prize money is now down to one division and $70,000.00, a loss of thirty percent from its inception. The Sweepstakes is the highest paying Morgan class in the country. It generated the most money from stallion owners who believed in their stallion's ability to produce superior offspring and therefore nominated them at a cost of $5,000.00 per year. It is apparent to me that the downsizing has hurt the Morgan industry.

Id., Ex. 38, I 9.

18 conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations . . . .

(West 1997). A monopoly offense is comprised of

the following two elements: "(1) the possession of monopoly

power in the relevant market and (2) the willful acguisition or

maintenance of that power as distinguished from growth or

development as a conseguence of a superior product, business

acumen, or historic accident." United States v. Grinnell Corp.,

(1966). Monopoly power is "the power to

control prices or exclude competition." United States v. E. I.

Du Pont de Nemours & Co.,

(1956). "A single

organization which exercises a dominant position in a given

market does not violate section two unless it has 'acguired or

maintained [its] strategic position, or sought to expand [its]

monopoly, or expanded it by means of those restraints of trade

which are cognizable under § 1 . ' " Cooney v. American Horse Shows

Ass'n ,

(S.D.N.Y. 1980) (guoting United

States v. Griffith,

(1948), overruled on other

grounds by Copperweld Corp. v. Independence Tube Corp.,

(1984) ) .

The defendants argue that the plaintiff's monopolization

claims must fail because the expulsion of the plaintiff from a

market that includes thousands of AMHA members cannot be deemed

19 to be an attempt at achieving monopoly power. The defendants

also argue that the plaintiff's allegation that the defendants

conspired to create a monopoly is inconsistent with her assertion

that the defendants already hold monopoly power over the relevant

market. In addition, the defendants claim that the plaintiff's

§ 2 claim must fail because the plaintiff cannot demonstrate that

the defendants acguired or maintained their monopoly by means of

a restraint of trade cognizable under § 1.

The plaintiff responds that summary judgment should not be

granted on this count because the defendants had the power to

exclude competition in every segment of the market and used that

power to exclude her from the market. She alleges that the same

acts that form the core of her claim under § 1 of the Sherman

Act, which the court has already ruled raise a genuine issue of

material fact for trial, also raise a genuine issue with respect

to her § 2 claim. The plaintiff asserts that the defendants

restrained trade by instituting a "witch hunt" against her,

causing other breeders to fear that the same actions might be

taken against them in the future.

The parties agree that the AMHA exercises monopoly power

over the Morgan show horse industry. The existence of monopoly

power alone however does not violate § 2. See United States v.

Swift & C o .,

(1932). In Hatley v. American

20 Quarter Horse Ass'n, the Fifth Circuit dismissed a § 2 claim

against the American Quarter Horse Association arising from

failure to register a horse because the Association's rules

"promote competition rather than hinder it" and "the Associa­

tion's principals had no intent to use [its registration rule]

for anticompetitive purposes."

(5th Cir.

1977). In this case, however, the plaintiff has alleged that the

defendants acted with the anti-competitive purpose of eliminating

her as a competitor. The allegations are akin to those accepted

by the court as stating a cognizable § 2 claim in Carleton v.

Vermont Dairy Herd Improvement Ass'n. See

(D. V t . 1991). In that case, the defendants held a monopoly in

the business of providing official milk testing services and

allegedly used their market power "to distort competition in the

business of breeding, raising, exhibiting and selling Holstein

cattle, a market in which many of the defendants also compete, by

willfully depriving a competitor in the latter market of services

essential to compete effectively." See

Here, the AMHA,

which holds a monopoly in the registration of Morgan horses,

along with the defendant AMHA members, many of whom breed, raise,

exhibit, and sell Morgan horses, are alleged to have

intentionally eliminated the plaintiff as a competitor in a way

that distorts competition in the Morgan horse market. The court

21 therefore concludes that the plaintiff has demonstrated the

existence of a genuine issue of material fact with respect to her

monopolization claim and denies the defendants' motion for

summary judgment on count II of the plaintiff's claims.

III. Wrongful Interference With Contractual Relationships

Under New Hampshire law, a plaintiff bringing a claim for

tortious interference with contractual relations must show (1)

that the plaintiff had a contractual relationship with a third

party of which the defendant was aware; (2) that the defendant

wrongfully induced the third party to breach the contract; and

(3) that the damages claimed were proximately caused by the

interference. See Roberts v. General Motors Corp.,

(1994) .

The defendants assert that the plaintiff's claim in count

III that the defendants wrongfully interfered with contractual

relationships should be dismissed because the plaintiff has

failed to allege reguired aspects of all three elements of her

claim. First, the defendants contend that the plaintiff has

failed to identify any contractual relationships which the

plaintiff had with third parties and to allege that the AMHA was

aware of the contractual relationships. Second, the defendants

contend that the plaintiff fails to allege that the AMHA

22 wrongfully induced any third party to breach a contract with the

plaintiff. Third, the defendants allege that the plaintiff fails

to allege proximate causation of the damages suffered by the

plaintiff. The plaintiff has not specifically addressed the

defendants' arguments. The plaintiff merely "submits that the

facts cited [in opposition to summary judgment on the antitrust

claims in counts I and II] also raise material issues of fact

relating to the remaining counts of the Complaint and that

summary judgment must, therefore, be denied as to them as well."

Pl.'s Obj. at 30.

The court finds that the defendants' motion for summary

judgment is sufficiently supported to carry their initial burden

of demonstrating a lack of a genuine issue of material fact on

the second element of the plaintiff's claim by pointing to a lack

of evidence that the defendants wrongfully induced any third

party to breach a contract with the plaintiff. This shifts the

burden to the plaintiff to come forward with the evidence in

support of her claim.

The plaintiff's amended complaint fails to identify any

specific contracts that have been breach, any specific

individuals with whom the plaintiff had contracts, or the

specific means by which the defendants wrongfully induced any

individual to breach a contract with the plaintiff. She asserts

23 that the defendants' actions placed limits on her ability to

transfer one of the Senora foals and four other Morgan horses

unrelated to the investigation by refusing to accept transfers of

those horses. See Am. Compl., 5 37. However, the AMHA properly

refused to certify the transfer of one of the Senora foals as a

Morgan because the then-pending investigation into the horse's

pedigree revealed it conclusively to be a non-Morgan. See supra

notes 5, 7. As to the four Morgan horses unrelated to the Senora

investigation, the plaintiff's complaint indicates that the

transfer of those horses was eventually allowed. See id. The

remainder of the plaintiff's amended complaint contains nothing

more than conclusory allegations, upon which she may not rest, in

support of her claim. See Fed. R. Civ. P. 56(e). The

plaintiff's response to the defendants' motion for summary

judgment, which merely relies on her showing of evidence used to

oppose summary judgment on the antitrust claims, also fails to

identify any individual that the defendants wrongfully induced to

breach any contract with the plaintiff. Therefore, the court

grants the defendants' motion for summary judgment on the

plaintiff's claims in count III.9

9Because of the court's conclusion that the plaintiff has failed to raise a genuine issue of material fact with respect to the second element of her claim, it need not reach the defendants' arguments that the plaintiff has also failed to adeguately support the other elements of her claim.

24 IV. Consumer Protection Act Claim

In count IV, the plaintiff alleges that the actions of the

defendants in discovering, investigating, and punishing her

constituted unfair or deceptive acts or practices in violation of

New Hampshire's Consumer Protection Act ("CPA"), RSA § 358-A

(1995). The defendants argue that they are entitled to summary

judgment on this claim because: (1) their acts do not resemble

the acts or practices set forth in section 2 of the CPA; and (2)

the proscriptions of section 2 of the CPA are not implicated by

Snow's dealings with the AMHA, as evidenced by the New Hampshire

Supreme Court's opinion in Snow,

,

, where it reversed the trial court's finding of a CPA

violation. As noted in part III, supra, the plaintiff has not

responded specifically to the defendants' arguments on this count

but has instead relied upon her showing of disputed factual

issues with respect to the antitrust violations in counts I and

II to raise a genuine issue of material fact with respect to her

CPA claim.

The New Hampshire CPA provides, in pertinent part, the

following:

It shall be unlawful for any person to use any unfair method of competition or any unfair or deceptive act or

25 practice in the conduct of any trade or commerce within this state.

RSA § 358-A:2 (1995). "Trade" and "commerce" within the meaning

of the statute include

the advertising, offering for sale, sale, or distribu­ tion of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situate, and shall include any trade or commerce directly or indirectly affecting the people of this state.

RSA § 358-A:l (1995). In the Snow case, the New Hampshire

Supreme Court found that "Snow's act of fraudulently registering

foals fails to satisfy the statute's definition of trade or

commerce." Snow,

,

. Snow's

allegations that the defendants intentionally drove her out of

business by expunging her horses from the Registry and expelling

her from the AMHA similarly do not satisfy the CPA's definition

of "trade or commerce." Although such actions may have had an

indirect effect on trade or commerce, they do not constitute the

advertising, offering for sale, sale, or distribution of services

or property.

The court finds that the defendants have satisfied their

initial burden of demonstrating the lack of a genuine issue of

material fact on the plaintiff's Consumer Protection Act claim,

shifting the burden to the plaintiff to demonstrate the existence

of a genuine issue of material fact reguiring a trial. The court

26 also finds that the plaintiff's reliance on the facts raised in

the context of her antitrust claim are inapposite to her CPA

claim and therefore fail to satisfy her burden of demonstrating

that a genuine issue of material fact remains for trial. For

this reason, the court grants summary judgment to the defendants

on the plaintiff's Consumer Protection Act claim in count IV.

V. Defamation

In count V, the plaintiff alleges that the defendants

defamed her by publishing statements "including but not limited

to statements to the effect that plaintiff defrauded the Registry

and that Senora was not the dam of the foals as claimed by

plaintiff." Am. Compl., 5 64. The defendants assert that they

are entitled to summary judgment on this count because any

statements that the plaintiff defrauded the Registry and that

Senora was not the dam of the foals as claimed by the plaintiff

are true. See Simpkins v. Snow,

,

(1995) ("A statement is not actionable if it is substantially

true."). As noted in part III, supra, the plaintiff has not

responded specifically to the defendants' arguments on this count

but has instead relied upon her factual showing with respect to

the antitrust violations to raise a genuine issue of material

fact with respect to her defamation claim. In addition, the

27 plaintiff has failed to identify any further statements which she

alleges are defamatory.

The AMHA proved the truth of the allegedly defamatory

statements - that the plaintiff defrauded the AMHA by falsely

registering five foals as offspring of Senora - in the state

court action. See Snow,

,

. As

the court has already noted, that finding is binding on the

plaintiff in this action. The defendants have satisfied their

initial burden of demonstrating the lack of a genuine issue of

material fact and the plaintiff has not satisfied her burden of

demonstrating that a material issue of fact reguires a trial.

Therefore, the court grants summary judgment on the plaintiff's

defamation claim against the defendants in count V.

VI. Due Process Violation

In count VI, the plaintiff alleges that the actions of two

of the defendants, the AMHA and Goodson, seeking prejudgment

attachment of her assets denied her due process rights because

the New Hampshire prejudgment attachment statute, N.H. Rev. Stat.

Ann. ("RSA") § 511-A, is unconstitutional. Specifically, she

contends as follows:

RSA § 511-A as written and as applied by the Superior Courts of this State violates the Fourteenth Amendment of the United States Constitution which

28 prohibits any state from depriving any person of rights, privileges, immunities or property without due process of law by, among other things, failing to reguire the posting of a bond, the use of summary procedures, and the failure to provide sufficient safeguards to ensure that a defendant is not caused unnecessary harm.

Am. Compl., 5 7 9.

The plaintiff's claim arises from the prejudgment attachment

of her assets by the AMHA and Goodson in litigation related to

the Senora foals. In support of her claim, she asserts the

following facts. The AMHA's attachment was obtained during the

course of the Snow litigation already described. Goodson filed

her own lawsuit against the plaintiff in Coos County Superior

Court. See Goodson v. Snow, No. 93-C-60 (1993) . In connection

with that action, Goodson sought and received an ex parte

prejudgment attachment on the plaintiff's bank accounts and real

estate in an amount egual to $500, 000. Goodson's underlying

complaint, however, arose out of two transactions totaling $3,800

in value. Both attachments were still in place as of the filing

of the plaintiff's Amended Complaint.

The defendants allege several additional facts not contested

by the plaintiff. The AMHA's attachment was granted after a

hearing on its application. The plaintiff reguested no bond in

connection with the attachment, did not seek reconsideration of

the attachment order, sought no reduction or discharge of the

29 attachment, and sought no review of the attachment order, either

by specific petition or on her appeal of the case to the New

Hampshire Supreme Court. The plaintiff also failed to avail

herself of similar opportunities for review of Goodson's

attachment.

The defendants argue that the plaintiff's due process claim

must be dismissed because § 511-A is not unconstitutional. They

assert that the plaintiff did not pursue avenues which might have

led to an order that a bond be posted and that the absence of a

bond reguirement in § 511-A is not constitutionally significant.

They contend that the plaintiff has specified neither the

"summary procedures" available under § 511-A that she believes

make it unconstitutional nor the "safeguards" whose absence make

it constitutionally infirm. As noted in part III, supra, the

plaintiff has not responded specifically to the defendants'

arguments on this count but has instead relied upon her showing

of factual issues with respect to the alleged antitrust

violations to raise a genuine issue of material fact with respect

to her due process claim.

The assertions of the plaintiff that raise a genuine issue

of material fact with respect to her antitrust claims fail to do

so for her due process claim. The due process claim is based on

attachments obtained during litigation subseguent to the

30 defendants' alleged antitrust violations. It is factually

distinct from the defendants' alleged antitrust violations and

raises different legal issues. Given the lack of detailed

argument by the plaintiff and her failure to rebut the

defendants' claims that RSA § 511-A is constitutional, the

court's inguiry into the constitutionality of New Hampshire's

prejudgment attachment scheme is circumscribed to the guestion of

whether it obviously fails to meet the minimum reguirements of

due process. C f . Kensington Rock Island Ltd. Partnership v.

American Eagle Historic Partners,

(7th Cir.

1990) ("'A party opposing a summary judgment motion must inform

the trial judge of the reasons, legal or factual, why summary

judgment should not be entered.'"), cited with approval in

Rodriguez-Pinto v. Tirado-Delgado,

(1st Cir.

1993) .

In Connecticut v. Doehr, the Supreme Court of the United

States held that a Connecticut prejudgment attachment statute was

unconstitutional because it authorized prejudgment attachment of

real estate without prior notice or hearing, without a showing of

extraordinary circumstances, and without a reguirement that the

person seeking the attachment post a bond. See

(1991). The court stated that the relevant inguiry for

determining whether a prejudgment attachment statute comports

31 with the requirements of due process is as follows:

[F]irst, consideration of the private interest that will be affected by the prejudgment measure; second, an examination of the risk of erroneous deprivation through the procedures under attack and the probable value of additional or alternative safeguards; and third, . . . principal attention to the interest of the party seeking the prejudgment remedy, with . . . due regard for any ancillary interest the government might have in providing the procedure or forgoing the added burden of providing greater protections.

. Although "the property interests that attachment

affects are significant,"

the Court declined to adopt a per

se requirement that a bond be posted by a party seeking prejudg­

ment attachment in every case, see

(minority of

Court indicating that bond required but majority not reaching the

issue) .

The New Hampshire prejudgment attachment statute, unlike the

statute struck down in Doehr, allows a prejudgment attachment

without a hearing only upon the occurrence of one of a list of

exceptional circumstances. See RSA § 511-A:8. In addition,

"[i]n all cases of attachment made ex parte the court may impose

reasonable conditions thereon and a hearing shall be granted as

promptly as possible upon the subsequent request of a defendant."

Id. This procedure allows the court to impose a bond require­

ment .

The court holds that RSA § 511-A is not unconstitutional on

its face and the plaintiff has not demonstrated that its 32 application in this case deprived her of her due process rights.

The plaintiff's failure to rebut the defendants' arguments with

specific facts and legal arguments in support of her position is

fatal to her claim. The court grants summary judgment on the

plaintiff's due process claim in count VI.

Conclusion

For the reasons stated above, the court grants defendant

Wailes' motion to dismiss (document no. 82), ending her role as a

defendant in the case. The court also grants the summary

judgment motions of defendant Goodson (document no. 72) and the

remaining defendants (document no. 73) as to counts III, IV, V,

and VI but denies the motions as to counts I and II.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

May 8, 1998

cc: John C. Gage, Esguire Howard B. Myers, Esguire Irvin D. Gordon, Esguire Kevin C. Maynard, Esguire Jack P. Crisp Jr., Esguire

33