Adam v . Hawaii Property Ins., et a l . CV-04-342-SM 11/30/04 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Richard Adam, Plaintiff

v. Civil N o . 04-342-SM Opinion N o .

Hawaii Property Insurance Association and Island Insurance Companies, Ltd., Defendants

O R D E R

Pro se plaintiff, Richard Adam, brings this action against

Island Insurance Companies and the Hawaii Property Insurance

Association, seeking damages for alleged violations of his civil

rights. He also asserts claims of racial conspiracy, racial

discrimination, and fraud. Although the precise nature of this

dispute is not clear, it appears to arise out of defendants’

refusal to pay an insurance claim that Adam submitted when his

home was damaged by fire - a fire which defendants say Adam

purposefully started. It also appears that Adam attempted

(unsuccessfully) to litigate substantially similar claims in

Hawaii, where the fire-damaged home is located and where, until

recently, Adam resided. Defendants move to dismiss Adam’s complaint on four grounds:

first, they say this court lacks personal jurisdiction over them;

next, they assert that Adam’s claims are barred by the doctrine

of res judicata; third, defendants say that Adam’s claims are

barred by the pertinent statutes of limitation; and, finally,

defendants assert that the District of New Hampshire is not the

proper venue for Adam’s suit. Adam objects.

Discussion

Adam is proceeding pro s e , and likely because he has had no

formal legal training, his complaint is inartfully drafted.

Among other things, he repeatedly urges the court to exercise its

diversity jurisdiction and yet, at the same time, appears to

assert several claims under federal law. S o , for example, the

first paragraph of his complaint reads:

This complaint is based on the following federal statute[s:] 28 U.S.C. 1332 for diversity of citizenship; amount in controversy; costs. And as part of compensatory, punitive and exemplary damages involves violation of 42 U.S.C. 1981, 42 U.S.C. 1982, 42 U.S.C. 1983 and 42 U.S.C. 1985(3), 42 U.S.C. 1986.

Complaint at 1 . Adam also claims that the Hawaii Property

Insurance Association is a state-created entity, suggesting that

2 it might qualify as a “state actor” for purposes of

. Nevertheless, his complaint alleges few of the essential

elements of viable federal claims.

I. Personal Jurisdiction.

Since it is unclear whether Adam is actually advancing any

federal claims, it is necessarily difficult to determine which

standard of review applies to defendants’ motion to dismiss for

lack of personal jurisdiction. I f , as defendants implicitly

assume, Adam is actually asserting only state law claims (and is

invoking this court’s diversity subject matter jurisdiction),

then the burden he bears in establishing the existence of

personal jurisdiction over defendants is relatively high. See

generally Sawtelle v . Farrell,

(1st Cir. 1995). 1

I f , on the other hand, Adam’s claims arise out of federal

law, the applicable standard governing this court’s exercise of

1 While defendants’ motion to dismiss for lack of personal jurisdiction is drafted as if Adam has advanced only state law claims, defendants acknowledge that the complaint “also apparently alleges that the Defendants violated [plaintiff’s] civil rights pursuant to

.” Defendants’ memorandum at 1 .

3 personal jurisdiction imposes on Adam a fairly modest burden. As

the Court of Appeals for the First Circuit has noted:

The personal jurisdiction inquiry in federal question cases like this one differs from the inquiry in diversity cases. Here, the constitutional limits of the court’s personal jurisdiction are fixed not by the Fourteenth Amendment but by the due process Clause of the Fifth Amendment. This distinction matters because under the Fifth Amendment, a plaintiff need only show that the defendant has adequate contacts with the United States as a whole, rather than with a particular state.

United States v . Swiss Am. Bank, Ltd.,

1 0 , 618 (1st

Cir. 2001) (citations and internal punctuation omitted).

Defendants’ memorandum of law addresses only that showing a

plaintiff must make in order to demonstrate the existence of

personal jurisdiction over a defendant in a diversity case; their

memorandum is silent as to the (lower) burden imposed on a

plaintiff in a federal question case. And, parenthetically, the

court notes that defendants’ motion to dismiss for lack of

personal jurisdiction is unaccompanied by any of the customarily

expected attachments or exhibits (e.g., affidavits from corporate

officers attesting to the fact that defendants have never done

business in New Hampshire and hold no property in this state;

4 certificates of incorporation or affidavits supporting counsels’

assertion that defendants are incorporated in the state of

Hawaii, e t c . ) .

Absent clarification from Adam about the precise nature of

his claims, the court cannot fairly determine whether he invokes

this court’s federal question jurisdiction or its diversity

jurisdiction (though the former seems more likely). And, absent

more focused arguments (and supporting documentation) from

defendants, the court cannot conclude that personal jurisdiction

over defendants in this district is lacking.

II. Venue.

Presumably invoking the provisions of Rule 12(b)(3) of the

Federal Rules of Civil Procedure and

(a),

defendants move to dismiss Adam’s complaint on grounds that venue

in this district is not proper. Whether venue is proper often

depends upon the basis of the court’s subject matter

jurisdiction. Compare

(a) with

(b). Nevertheless, both section 1391(a)(1) and section

(b)(1) provide that venue is proper in a “judicial district where

5 any defendant resides, if all defendants reside in the same

state.”

For purposes of determining whether venue is proper, a

corporate defendant is “deemed to reside in any judicial district

in which it is subject to personal jurisdiction.”

(c). Consequently, the problem associated with determining

personal jurisdiction over one or both of the defendants arises

again, and also precludes the court from determining whether

Adam’s claims are subject to dismissal (or transfer) based upon

improper venue.

III. Res Judicata and Statute of Limitations.

Plaintiff’s prior state law action against defendants

appears to have been based upon substantially the same set of

facts as those giving rise to this litigation. And, say

defendants, the dismissal of that state court action bars this

proceeding under the doctrine of res judicata. The court

disagrees.

6 As defendants correctly point out in their legal memorandum,

for res judicata to apply, defendants must demonstrate, among

other things, that plaintiff’s earlier state court litigation

ended with a final judgment on the merits in their favor.

Importantly, however, the documents submitted by defendants

reveal that plaintiff’s action was dismissed, without prejudice,

for failure to file a pretrial statement. Defendants have not

pointed to any authority suggesting that under Hawaii law such a

dismissal is “on the merits.” Accordingly, they have failed to

demonstrate that this proceeding is barred by the doctrine of res

judicata.

Finally, defendants assert that plaintiff’s claims are time-

barred. In support of that view, defendants point out that the

fire which destroyed plaintiff’s home (and gave rise to his

wrongful denial of insurance claims, etc.) occurred in 1998.

The fire at the Complainant’s home in Hawaii occurred in October 1998, but the instant Complaint was not filed until on or about September 1 3 , 2004. Pursuant to [N.H. Rev. Stat. Ann. Ch.] 508:4, the Complainant’s allegations are time barred. In addition, any

claim brought by the Complainant is

7 barred because the action was not brought within one year after the cause of action accrued.

Defendants’ memorandum at 11-12.

While plaintiff’s complaint lacks clarity regarding the

nature of some of his claims, one thing can be said with a

reasonable degree of certainty: those claims “accrued” at the

earliest when defendants denied his insurance claim, not when the

fire occurred. Defendants do not disclose when they denied

plaintiff’s insurance claim (nor have they provided any evidence

relevant to that issue).

Conclusion

Defendant’s motion to dismiss (document n o . 2 ) i s , for the

foregoing reasons, denied without prejudice. But, their points

about the ambiguity and vagueness of plaintiff’s complaint are

well taken. Accordingly, on or before December 3 0 , 2004,

plaintiff shall file with the court (and shall mail copies to the

defendants) an amended complaint. Among other things, that

amended complaint shall:

8 1. Set forth each separate claim or cause of action that plaintiff asserts in a separate count; and

2. Specifically state whether each such cause of action is brought pursuant to state or federal law (e.g., “state common law claim for fraud” or “federal civil rights claim under

"); and

3. Succinctly plead facts supporting each such claim.

SO ORDERED.

Steven J. McAuliffe Chief Judge

November 3 0 , 2004

cc: Richard Adam, pro se

9