Donovan v . Greenfield CV-02-364-M 10/23/02 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Patricia A . Donovan, Plaintiff

v. Civil N o . 02-364-M Opinion N o .

Town of Greenfield, New Hampshire, Defendant

O R D E R

Patricia Donovan brings this action against the Town of

Greenfield, New Hampshire, claiming the Town deprived her of

various constitutionally protected rights and seeking declaratory

and injunctive relief. See

and 1983. Because

she is proceeding pro s e , the Magistrate Judge conducted a

preliminary review of her second amended complaint to determine

whether it properly invokes the court’s subject matter

jurisdiction. As part of that initial review, the Magistrate

Judge construed plaintiff’s complaint as follows:

Donovan alleges that the Town of Greenfield has violated her First Amendment right to free exercise of speech by prohibiting her from participating in Town functions, by assessing penalties against her and by denying her appointment to Town committees. She further alleges that the Town has violated her Fourteenth Amendment right to equal protection by employing unfair and unequal process of appointment and treating her differently than similarly situated Town residents who have applied for volunteer appointments to Town [c]ommittees. Lastly, Donovan asserts that the defendant’s adverse actions against her were in retaliation for her [prior] litigation against the Town.

Order dated September 1 7 , 2002 (document n o . 9 ) . The Town has

moved to dismiss plaintiff’s complaint, saying all of the claims

she currently advances against it are barred by the doctrine of

res judicata.

Background

This is not plaintiff’s first suit against the Town. On

August 5 , 2002, she initiated a civil action against the Town in

the New Hampshire Superior Court, by filing a “Request for

Temporary Restraint Order with a Scheduled Evidentiary Hearing.”

See Exhibit A to defendant’s motion to dismiss (document n o . 1 3 ) .

The court docketed the matter as a civil case, rather than one in

equity (New Hampshire continues to maintain a distinction between

actions at law and those in equity). And, under New Hampshire

practice, a party may initiate a law suit simply by filing a

request for injunctive relief (i.e., without filing a bill in

equity or a writ of summons), provided “process at law or in

2 equity” is subsequently filed within a period specified by the

court. Rule 162 of the New Hampshire Superior Court Rules.

That same day, the court denied plaintiff’s motion for

temporary relief, denied her request for an evidentiary hearing,

and ruled that, as a matter of law, she was not entitled to any

relief based upon the facts she had alleged. Accordingly, her

petition was dismissed. Plaintiff did not move the court to

reconsider its dismissal order nor did she appeal to the state

supreme court. Instead, two days later, she filed suit in this

court, alleging the same facts that she advanced in state court

(with slightly more detail) and seeking precisely the same relief

that had been denied by the state court: declaratory and

injunctive relief (in neither action did plaintiff seek monetary

damages). The only meaningful difference between the two actions

is that in this forum, plaintiff is advancing her claims under

the provisions of

and 1983. Her causes of

action, however, arise from the same operative facts and remain

the same. See Eastern Marine Constr. Corp. v . First Southern

Leasing,

7 0 , 274 (1987) (“[W]e choose to expressly

follow what we consider to be the modern and better view, and

3 hold that the term ‘cause of action’ means the right to recover,

regardless of the theory of recovery.”).

Discussion

The federal full faith and credit statute,

,

commands federal courts to employ state rules of res judicata

when determining the preclusive effect, if any, to be given to a

prior state court determination. See Marrese v . American Academy

of Orthopaedic Surgeons,

(1985); Kremer v .

Chemical Constr. Corp.,

6 1 , 468 (1982). Accordingly,

the court will apply the principles of res judicata as developed

by the New Hampshire Supreme Court.

Under New Hampshire law, “[t]he doctrine of res judicata

precludes the litigation in a later case of matters actually

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

earlier action between the same parties for the same cause of

action.” In re Alfred P.,

2 8 , 629 (1985) (citations

omitted). “In order for res judicata to apply to a finding or

ruling, there must be ‘a final judgment by a court of competent

jurisdiction [that] is conclusive upon the parties in a

4 subsequent litigation involving the same cause of action.’” In

re Donovan,

8 , 81 (1993) (quoting Marston v . U.S.

Fidelity & Guaranty Co.,

(1992)).

In other words, for the doctrine of res judicata to apply,

“three elements must be met: (1) the parties must be the same or

in privity with one another; (2) the same cause of action must be

before the court in both instances; and (3) a final judgment on

the merits must have been rendered on the first action.” Brzica

v . Trustees of Dartmouth College,

(2002). And,

as noted above, the term “cause of action” means the “right to

recover, regardless of the theory of recovery.” Eastern Marine

Constr. Corp., 129 N.H. at 274 (citations omitted).

Here, each of those three essential elements is present. As

to the existence of the first and third elements, there can be

little doubt that the parties in the two proceedings are

identical and the state court resolved plaintiff’s claims against

her on the merits. Finally, the claims raised (and the

underlying facts upon which those claims are based) in the two

5 proceedings are also identical. Specifically, in each action,

plaintiff alleged that:

1. The Town violated her civil rights. See Plaintiff’s petition for TRO at para. 9, 1 4 ; Plaintiff’s second amended complaint at para. 8 , 1 4 , 47-49.

2. The Town discriminated against her based upon her political beliefs, opinions, statements, and conduct. See Plaintiff’s petition for TRO at para. 1 2 ; Plaintiff’s second amended complaint at para. 3 4 , 4 0 , 4 5 .

3. The Town discriminated against her based upon her having previously pursued litigation against the Town. See Plaintiff’s petition for TRO at para. 6; Plaintiff’s second amended complaint at para. 5 .

Although it is true that plaintiff did not invoke the provisions

of

in her state law action, it is clear that the

claims she advanced in that forum, and the underlying facts upon

which they were based, are identical to those advanced in this

proceeding - only the vehicle by which she seeks to pursue those

claims is different. Consequently, the doctrine of res judicata

precludes plaintiff from relitigating those claims in this forum.

Parenthetically, the court notes that the court of appeals

for this circuit recently addressed New Hampshire’s doctrine of

6 res judicata and appears to have adopted a fairly narrow

interpretation of i t . Specifically, although the circuit court

acknowledged that res judicata “encompasses all theories on which

relief could be claimed on the basis of the factual transaction

in question,” Patterson v . Patterson,

(1st Cir. Oct. 9, 2002) (emphasis supplied), it limited the

application of res judicata exclusively to those causes of action

that could be supported by the facts actually pled in the

original proceeding (as opposed to the facts that could have been

pled and which arise out of the same underlying transaction or

occurrence). Id. at 6 (holding that res judicata did not

preclude second suit because although “certain of the facts that

underpinned the [original] proceeding would have been relevant in

pursuing [the claim advanced in the second proceeding] . . . the

bulk of the facts needed for the latter were not part of the

[original] case as actually presented to the probate court.”).

That somewhat narrow view of the doctrine’s scope i s ,

perhaps, best understood as reflecting the unique fact pattern in

the underlying case. But, generally speaking, New Hampshire

follows a more expansive “modern” view of res judicata. See,

7 e.g., Eastern Marine Const. Corp., 129 N.H. at 274-75 (1987)

(“Such a narrow view of res judicata, however, is not in keeping

with the principle that pervades our modern procedure. The

central policy exemplified by the free permissive joinder of

claims, liberal amendment provisions, and compulsory

counterclaims, is that the whole controversy between the parties

may and often must be brought before the same court in the same

action.”) (emphasis supplied); Appeal of the Univ. System of N.H.

Bd. of Trustees,

(2002) (“Res judicata, or

claim preclusion, bars the relitigation of any issue that was or

might have been raised in respect to the subject matter of the

prior litigation. In determining whether two actions are the

same cause of action for the purpose of applying res judicata, we

consider whether the alleged causes of action arise out of the

same transaction or occurrence.”) (citations and internal

quotation marks omitted). See also Brzica,

(“Res judicata will bar a second action even though the plaintiff

is prepared in the second action to present evidence or grounds

or theories of the case not presented in the first action.”);

Radkay v . Confalone,

9 4 , 298 (1990) (“Generally, once a

party has exercised the right to recover based upon a particular

8 factual transaction, that party is barred from seeking further

recovery, even though the type of remedy or theory of relief may

be different.”).

Nevertheless, even accepting that the New Hampshire Supreme

Court would generally endorse what appears to be a narrower

interpretation of the state’s res judicata jurisprudence by the

First Circuit, and assuming further that this court has erred in

concluding that the same claims raised in this litigation were

actually raised in plaintiff’s state court case, one thing is

beyond dispute: plaintiff could have raised the same claims in

state court that she now advances, since those claims are based

upon the same “material facts” that formed the basis of her state

court action. See Patterson at * 5 . In other words, the claims

she advances in this forum arise out of the very same

“transactions” and “occurrences” that formed the basis of her

state court action.

Conclusion

The claims plaintiff seeks to advance in this proceeding are

barred by New Hampshire’s doctrine of res judicata. Accordingly,

defendant’s motion to dismiss (document n o . 13) is granted. The

9 Clerk of Court shall enter judgment in accordance with this order

and close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

October 2 3 , 2002

cc: Patricia A . Donovan, pro se John F. Teague, Esq.

10