King’s Grant Inn v . Gilford, et a l . CV-03-249-M 10/29/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

King’s Grant Inn, Plaintiff

v. Civil N o . 03-249-M Opinion N o .

Town of Gilford; and Gilford Board of Selectmen, Defendants

O R D E R

By order dated June 6, 2003, plaintiff was directed to show

cause why its complaint should not be dismissed, or why this

court should not abstain and stay the case, in deference to an

earlier-filed and pending state case. Based upon plaintiff’s

Memorandum of Law in Support of This Court’s Jurisdiction,

neither the relevant abstention doctrines1 nor the Rooker-Feldmen

doctrine2 present any impediment to the exercise of jurisdiction

over this case.

1 Younger v . Harris,

(1971), see also Colo. River Water Conservation Dist. v . U.S.,

(1976). 2 Rooker v . Fidelity Trust Co.,

(1923); D.C. C t . of App. v . Feldman,

(1983). Colorado River, which would appear to be the relevant

abstention doctrine, does not apply on the facts of this case

because there is now no pending state-court action in favor of

which this court should abstain. It appears that plaintiff

requested, and was allowed, a voluntary non-suit without

prejudice by the New Hampshire Superior Court. Thus, there is no

pending state court action. That the non-suit was requested on

the same date on which this action was filed, and was not allowed

until June 1 2 , 2003 (six days after this action was filed), is

not significant. The non-suit having been allowed, abstention

would no longer have promoted comity between federal and state

courts, a principal purpose of the Colorado River doctrine.

Moreover, Dubinka v . Judges of the Superior Court,

(9th Cir. 1994), is not supportive of plaintiff’s position.

In that case, the Younger doctrine applied, even though the

earlier filed state court action had concluded, because the

losing litigants in the state case still had unexhausted state

appellate remedies available at the time the federal court

decided to abstain.

at 223 (citing Huffman v . Pursue, Ltd.,

9 2 , 607-11 (1975)). Here, by contrast, the state

2 action was terminated by the Superior Court’s allowance of a non-

suit. Because there is now no pending state court action, there

is no purpose to be served by federal abstention.

For related reasons, the Rooker-Feldman doctrine is not

applicable. In essence, Rooker-Feldman bars lower federal courts

from reviewing final state court judgments. Here, there is no

state court judgment; plaintiff was allowed to take a voluntary

non-suit, without prejudice. In the New Hampshire Superior

Court, plaintiff sought temporary, preliminary, and permanent

injunctive relief, by petition dated May 5 , 2003. On May 1 5 , the

Superior Court held a hearing on plaintiff’s request for a

temporary restraining order (“TRO”). That request was denied, by

order dated May 2 3 , 2003, on grounds that plaintiff had failed to

demonstrate the likelihood of success on the merits. Then, on

June 6, plaintiff filed both the action before this court, and a

request for voluntary non-suit in the Superior Court action. As

noted, the Superior Court allowed a non-suit without prejudice on

June 1 2 , 2003. Under New Hampshire law, a voluntary non-suit

does not constitute a final judgment on the merits. See Town of

Plaistow v . Riddle,

0 7 , 309 (1996) (quoting

3 WIEBUSCH, NEW HAMPSHIRE PRACTICE, CIVIL PRACTICE AND PROCEDURE § 1062

(1984)) (voluntary non-suit has no res judicata effect because it

“has no conclusive effect on the merits of the underlying

action”); Foster v . Bedell, 136 N . H . 7 2 8 , 730 (1993) (citing

Milford Quarry v . Railroad, 78 N . H . 176, 177 (1916); RESTATEMENT

(SECOND) OF JUDGMENTS § 20 (1980)) (“A voluntary nonsuit, if allowed

by the court, is not a bar to a second action.”). While Rooker-

Feldman might have precluded this court from granting a T R O after

the Superior Court had denied plaintiff that same relief, any

future decision in this case, by this court, will not contradict

or undermine any state court order; there is no action this court

could take that would constitute a review of any decision by New

Hampshire’s courts. Consequently, Rooker-Feldman poses no

obstacle to the exercise of federal jurisdiction.

For the reasons given, neither abstention doctrines nor

Rooker-Feldman compel, or even allow, abstention or any other

delay of the court’s exercise of its jurisdiction over this case.

Accordingly, the case shall remain active on the docket.

4 SO ORDERED.

Steven J. McAuliffe United States District Judge

October 2 9 , 2003

cc: David H . Bownes, Esq. R. Matthew Cairns, Esq.

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