American v . Hayhurst CV-98-126-M 09/29/00 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

American Association of Naturopathic Physicians, Plaintiff

v. Civil N o . 98-126-M Opinion N o .

Donald Hayhurst and American Naturopathic Medical Association, Inc., Defendants

O R D E R

Plaintiff, American Association of Naturopathic Physicians

(“AANP”), brings this diversity action against Defendants Donald

Hayhurst and the American Naturopathic Medical Association, Inc.

In its two count complaint, AANP sets forth the bases for its

claimed entitlement to damages for malicious prosecution and

conspiracy.1 Hayhurst moves for summary judgment.

1 Periodically, AANP’s pleadings make reference to a claim for abuse of process - one that AANP apparently views as being independent of its claim for malicious prosecution. The “corrected version” of its amended complaint (document n o . 88) sets forth no such independent claim, however. Standard of Review

When ruling upon a party’s motion for summary judgment, the

court must “view the entire record in the light most hospitable

to the party opposing summary judgment, indulging all reasonable

inferences in that party’s favor.” Griggs-Ryan v . Smith,

1 2 , 115 (1st Cir. 1990). Summary judgment is appropriate

when the record reveals “no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter

of law.” Fed. R. Civ. P. 56(c). In this context, “a fact is

‘material’ if it potentially affects the outcome of the suit and

a dispute over it is ‘genuine’ if the parties’ positions on the

issue are supported by conflicting evidence.” Intern’l Ass’n of

Machinists and Aerospace Workers v . Winship Green Nursing Center,

(1st Cir. 1996) (citations omitted).

Background

This case represents yet another battle in an enduring feud

between the parties. The struggle began in various state

legislative arenas over whether legislation should be enacted to

provide for the licensing of naturopathic physicians. It has, at

2 times, been quite heated and even venomous, as each side has

attempted to discredit the other in the eyes of legislators and

state policy-makers. As it progressed, the feud seems to have

“matured” from a political debate as to which reasonable minds

might certainly differ, into mere ad hominem exchanges fueled by

increasing personal acrimony on both sides. Unfortunately, the

dispute has spilled over into the judicial forum.

During the course of AANP’s political lobbying relative to

the licensing issue, it (and persons acting on its behalf)

distributed materials critical of Hayhurst’s education and

professional credentials, in an obviously calculated effort to

demean him and undermine his political credibility. Those

materials sometimes included an article highly critical of

Hayhurst published in the April 1990 issue of Townsend Letter for

Doctors (an article that was subsequently retracted by the

publisher, who also offered an apology to Hayhurst for any

“embarrassment, hurt, and inconvenience this article caused D r .

Hayhurst.”). See Exhibit 15 to Affidavit of Donald Hayhurst,

Townsend Letter for Doctors (August/September, 1992), at 746.

3 Notwithstanding that retraction and apology, it appears that AANP

and/or its agents continued to circulate the original article.

In response, Hayhurst brought twelve separate lawsuits in

various federal district courts (including this o n e ) , in which he

alleged that the statements being issued and the materials being

circulated by AANP in those fora defamed him. AANP says that two

of those cases settled (though the record suggests that at least

four were settled by the so-called “Weeks” release) and three

were either dismissed on the pleadings or were resolved by

summary judgment against Hayhurst, including the proceeding filed

in this court. See AANP’s objection to summary judgment

(document n o . 68) at 2-3. The status (or outcome) of the

remaining suits is unclear.

AANP now presses this two count action against Hayhurst,

alleging (1) malicious prosecution in the institution and

maintenance of the referenced suits and (2) a civil conspiracy

between Hayhurst and the American Naturopathic Medical

Association involving their alleged pursuit of a course of

4 conduct, including the bringing and maintenance of the referenced

suits, and designed to destroy AANP. Although AANP says it seeks

compensation for Hayhurst’s allegedly wrongful conduct in

numerous judicial fora, the evidence it has presented in

opposition to the motion for summary judgment relates almost

exclusively to the defamation action Hayhurst brought in this

court.

As discussed more fully below, neither AANP’s malicious

prosecution nor its conspiracy claim has sufficient support in

the record evidence to survive Hayhurst’s motion for summary

judgment.

Discussion

I. Count 1 - Malicious Prosecution.

Under New Hampshire law, a “successful action for malicious

prosecution requires proof that the plaintiff was subjected to a

civil proceeding instituted by the defendant, without probable

cause and with malice, and that the proceedings terminated in the

plaintiff’s favor.” ERG, Inc. v . Barnes,

, 190

5 (1993) (citations omitted). Hayhurst argues that AANP cannot

establish the third and fourth elements of the cause of action

(i.e., lack of probable cause and the existence of malice).

A. Probable Cause.

The existence of probable cause is ultimately a question of

law for the court. Of course, when it turns upon the resolution

of factual disputes or the credibility of witnesses, the

existence of probable cause becomes a mixed question of law and

fact. See Stock v . Byers,

4 4 , 846 (1980); MacRae v .

Brant,

7 7 , 180 (1967). Here, however, AANP has

identified no such material factual disputes. S o , whether

Hayhurst had probable cause to file the New Hampshire defamation

action can be resolved as a matter of law.

To establish a lack of probable cause “[t]he plaintiff [i]s

required to prove that the defendants, when they brought their

suits against him, did not possess such knowledge of facts ‘as

would lead a man of ordinary caution and prudence to believe’

that they had a cause of action against the plaintiff.” Cohn v .

6 Saidel,

5 8 , 567 (1902) (citation omitted). See also

Aranson v . Schroeder,

(1995) (holding that a

litigant acts without probable cause when he or she acts “without

any credible basis in fact and such action is not warranted by

existing law or established equitable principles or a good faith

argument for the extension, modification, or reversal of existing

law.”). Thus, the burden imposed on a defendant in a proceeding

for malicious prosecution - to demonstrate probable cause to

initiate the underlying civil action in which he or she was the

plaintiff - is not especially onerous.

Nevertheless, AANP alleges that Hayhurst lacked probable

cause because, with respect to the defamation action he filed in

this district: (1) the Court of Appeals for the First Circuit

determined that the action was frivolous; (2) Hayhurst admitted

that he had never been to New Hampshire, very few people in New

Hampshire knew of him, and he failed to identify anyone whose

opinion of him was changed by the alleged defamation; and (3)

notwithstanding the fact that he executed a release in a Florida

defamation action by which he agreed not to pursue further

7 litigation (the “Weeks” release), he subsequently instituted a

defamation action in this court. Hayhurst attacks each of these

arguments.

(1) The Court of Appeals’ Ruling.

In an unpublished, per curiam opinion disposing of

Hayhurst’s appeal in the defamation action brought in this

district, the court of appeals concluded that, under Rule 38 of

the Federal Rules of Appellate procedure, it was proper to award

AANP “single costs plus damages, including attorneys’ fees.”

Hayhurst v . Timberlake, N o . 97-1697, slip o p . at 5 (1st Cir.

1997). Rule 38 provides that, “If a court of appeals determines

that an appeal is frivolous, it may . . . award just damages and

single or double costs to the appellee.” (emphasis supplied).

Thus, the issue decided by the court of appeals necessarily

related exclusively to the merits of Hayhurst’s appeal. To the

extent the appellate court offered comment on the underlying

merits of the complaint Hayhurst filed in this court (and it is

not clear that it d i d ) , those comments would constitute dicta,

and would not establish, as a matter of law, that Hayhurst lacked

8 probable cause to file the defamation proceeding here. That is

to say, Hayhurst is not precluded (in this or any other action)

from disputing comments made by the court of appeals relative to

probable cause to have brought the suit in this court, based on

principles of res judicata, equitable estoppel, or even law of

the case. Indeed, the decision in the underlying appeal would

not constitute admissible evidence in this case on the question

of probable cause to initiate the underlying defamation suit.

AANP has failed to point to any finding by this court

(Devine, J.) to the effect that Hayhurst’s defamation action was

frivolous or lacked probable cause when filed. In fact, the

opinions issued by the late Judge Devine suggest just the

opposite: while Judge Devine was persuaded that, on balance, the

statements ascribed to AANP were not actionable, some of

Hayhurst’s claims could be viewed as presenting a close question.

In any event, based upon the record presented in this case,

the court concludes that a person of ordinary caution and

prudence could have reasonably concluded that Hayhurst had a

9 viable defamation claim against AANP (and others) and, therefore,

had probable cause to initiate the New Hampshire defamation

action. While the merits of that claim might be questionable (as

the court of appeals might have suggested), a reasonable person

could justifiably conclude that there was evidence to support

each of the essential elements of a viable defamation claim.

See, e.g., Hayhurst v . Timberlake, N o . 94-199-SD (November 1 4 ,

1996) (order denying motion to dismiss Hayhurst’s defamation

complaint).

(2) Hayhurst’s Limited Contacts with New Hampshire.

Next, AANP asserts that Hayhurst lacked probable cause to

initiate a defamation action in this forum because: (a) he

admitted that he had limited contacts with this forum; and (b) he

could not specifically identify any person within this state that

had been affected by the allegedly defamatory material. Again,

the court disagrees.

To state a viable claim for defamation under New Hampshire

law, a plaintiff must allege that the defendant intentionally or

10 without reasonable care published a defamatory statement

concerning the plaintiff to a third party who understood the

statement’s defamatory meaning. See generally Duchesnaye v .

Munro Enterprises, Inc.,

(1984); Thompson v . Cash,

(1979). To sustain his burden of proof, “[t]he

plaintiff need not prove publication to a group, however.

Publication to one person other than the plaintiff is

actionable.” Duchesnaye,

.

In support of his defamation action, Hayhurst produced

evidence tending to establish that a representative of AANP made

arguably actionable, disparaging statements about him to Patricia

DeSilvio. This court (Devine, J.) described the evidence as

follows:

On April 3 0 , 1993, Timberlake and DeSilvio both attended a hearing at the legislative office building in Concord, New Hampshire, concerning the proposed legislation. DeSilvio, a practitioner of naturopathy, testified at the hearing in opposition to the licensing bill. After the hearing had ended, Timberlake approached DeSilvio, introduced himself, and then stated that Hayhurst was a fraud without credentials. He added that Hayhurst “was not what DeSilvio thought he was” and “that he could prove that he had no credentials” if DeSilvio came to his office.

11 Hayhurst v . Timberlake, N o . 94-199-SD,, slip o p . at 9 (D.N.H.

April 3 0 , 1997). Ultimately, the court concluded that the

statements made by Timberlake were not defamatory, holding that,

“[a]lthough Timberlake may have ‘crossed the line’ somewhat by

identifying Hayhurst as a fraud with no credentials, it appears

from this record that Timberlake was merely engaging in the type

of rhetorical hyperbole commonly employed by participants in this

debate.”

at 1 1 . That holding does not, however, compel the

conclusion that Hayhurst lacked probable cause to believe that he

had a viable defamation action against AANP and others.

Just as an acquittal in a criminal case does not necessarily

establish that an accused is actually “innocent” of the charged

crime, and is not, standing alone, conclusive evidence that a

prosecution was brought without probable cause, see Hogan v .

Robert H . Irwin Motors, Inc.,

3 7 , 741-42 (1981), AANP’s

victory on the merits in the underlying defamation action does

not necessarily establish that Hayhurst lacked probable cause to

initiate that proceeding. In fact, the language employed by

Judge Devine (e.g., that “Timberlake may have ‘crossed the line’

12 somewhat”) suggests just the opposite: while AANP was entitled to

judgment as a matter of law, based on the court’s conclusion that

the statements at issue were rhetorical hyperbole protected by

the First Amendment, it was not an issue so obviously one-sided

as to undermine probable cause to raise i t .

In short, notwithstanding Judge Devine’s ultimate conclusion

that the statements upon which Hayhurst relied were not, under

the circumstances, defamatory, a person of “ordinary caution and

prudence” could reasonably conclude that, once AANP (or its

agents) again reported to third parties that Hayhurst was, among

other things, a “quack” and a “fraud” with a “useless degree”

from an “unaccredited school,” see Hayhurst v . Timberlake, N o .

97-1697, slip o p . at 3 n.1 (1st Cir. 1997), Hayhurst had probable

cause to believe a viable claim for defamation existed. See Cohn

v . Saidel,

; Aranson v . Schroeder,

. 2

2 Parenthetically, the court notes that evidence in the record suggests that the comments about Hayhurst’s degree and alma matter were, if not untrue, certainly misleading. See, e.g., Letter of David Young, Oregon Office of Educational Policy and Planning (April 1 2 , 1991), attached to exhibit 4 of

13 (3) The “Weeks” Release.

Finally, in support of its assertion that Hayhurst lacked

probable cause to initiate the underlying defamation action in

this court, AANP points to the so-called “Weeks” release, which

the parties executed as part of the settlement of Hayhurst’s

defamation suits in Florida, Connecticut, Washington, and

Arizona. AANP seems to suggest that by executing the Weeks

release, Hayhurst relinquished his right to pursue any and all

future defamation claims against AANP. In other words, AANP

seems to argue that the Weeks release amounted to a limited

license to defame Hayhurst in the future, without fear that

Hayhurst might sue for damages. The provision of the Weeks

release on which AANP relies states that:

[T]he undersigned specifically releases the said parties for any communications which might arise in the future as a result of any communications or actions by the said parties which might have originated before August 1 , 1992, but may not have been disseminated before the date of this release [i.e., March 1 2 , 1993].

Hayhurst’s objection to summary judgment.

14 The Weeks release at 2 , Exhibit 2 to AANP’s memorandum in

opposition to summary judgment (emphasis supplied).

Whether Hayhurst intended that document to release AANP from

liability from any and all future acts of defamation, and whether

the release could, as a matter of law, operate in that fashion,

is not an issue the court need address. It is sufficient to

observe that Hayhurst filed the New Hampshire defamation action

in 1994, seeking damages for affirmative conduct that AANP (and

others) engaged in after August 1 , 1992 (e.g., the April 3 0 , 1993

statements to Patricia DeSilvio). In other words, the conduct

that formed the foundation of Hayhurst’s defamation claim did not

“originate[] before August 1 , 1992.” Plainly, therefore, the

Weeks release did not preclude Hayhurst from initiating such an

action and the existence of that release in no way suggests that

Hayhurst lacked probable cause to bring the New Hampshire

defamation action.

In fact, the existence of the Weeks release suggests just

the opposite. That AANP chose to settle rather than litigate

15 many of Hayhurst’s similar claims in other districts (including

those for defamation) supports, rather than undermines,

Hayhurst’s assertion that he had probable cause to bring those

claims. See generally Robinson v . Fimbel Door Co.,

4 8 ,

351 (1973) (if a defendant has “terminated the suit by paying

what was demanded or by compromise, he cannot be admitted to say

that the action was commenced without probable cause, and

consequently cannot have an action for malicious prosecution.”).

And, by implication, the Weeks release supports Hayhurst’s claim

that he had probable cause to subsequently bring the related New

Hampshire defamation proceeding, which was based on substantially

similar conduct to that which formed the basis of his other

complaints (including those that were settled). See AANP’s

objection to summary judgment (document n o . 68) at 2 (AANP

acknowledges that, “In each of these cases essentially the same

claims of defamation and conspiracy were made by the Defendant,

Hayhurst.”) (emphasis supplied).

Plainly, the underlying New Hampshire defamation case was

not resolved by settlement; it was resolved on the merits in

16 favor of AANP. However, that fact, alone, does not suggest that

Hayhurst lacked probable cause to initiate the suit. And, AANP’s

apparent assertion that, by filing the New Hampshire defamation

action, Hayhurst breached the “Weeks” release, is entirely

without merit and provides no support for its claim that Hayhurst

lacked probable cause.

B. Malice.

Because AANP has failed to point to any record evidence

demonstrating a genuine issue of material fact with regard to the

question of Hayhurst’s probable cause to bring the New Hampshire

defamation action, the question of Hayhurst’s alleged “malice”

becomes moot. If Hayhurst had probable cause to file the New

Hampshire defamation action, his subjective motivation for doing

so is immaterial. See, e.g., Stock v . Byers,

4 4 , 848

(1980).

Moreover, even if AANP had pointed to evidence suggesting

the existence of a genuine dispute as to whether Hayhurst had

probable cause, it has failed to identify sufficient evidence to

17 permit a reasonable trier of fact to conclude that he was

motivated by malice. See generally MacRae v . Brant,

(1967) (holding that, in the context of a malicious

prosecution claim, “malice” exists “when the primary purpose in

instituting the [underlying] proceeding was not to bring an

offender to justice, but was, on the contrary, ill will, personal

hostility, or to obtain a personal advantage.”).

II. Count II - Conspiracy.

AANP bases its civil conspiracy claim on the assertion that

Hayhurst and others conspired to maliciously prosecute the New

Hampshire defamation proceeding against i t . To state a viable

claim for civil conspiracy, AANP must allege that two or more

persons agreed to achieve an unlawful objective (or a lawful

objective by unlawful means) and they took one or more unlawful

overt acts in furtherance of the conspiracy. See Jay Edwards,

Inc. v . Baker,

1 , 47 (1987). Importantly, there is no

cause of action under New Hampshire law for conspiracy alone.

That is to say, “[f]or a civil conspiracy to exist, there must be

an underlying tort which the alleged conspirators agreed to

18 commit.” Univ. Sys. of New Hampshire v . U.S. Gypsum Co.,

4 0 , 652 (D.N.H. 1991).

Because Hayhurst is entitled to judgment as a matter of law

with regard to AANP’s malicious prosecution claim, there is no

“underlying tort” upon which AANP might base its conspiracy

claim. Accordingly, Hayhurst is necessarily entitled to judgment

as a matter of law on that claim as well.

Conclusion

For the foregoing reasons, defendant Hayhurst’s motion for

summary judgment (document n o . 60) is granted. His motion to

dismiss (document n o . 91) is denied as moot. The Clerk of the

Court shall enter judgment in accordance with this order and

close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

September 2 9 , 2000

cc: Robert A . Backus, Esq. Donald C . Hayhurst

19