Carey v . Eglody 05-CV-010-SM 03/17/06 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

William J . Carey, Plaintiff

v. Civil N o . 05-cv-010-SM Opinion N o . 2006 D N H 032 Kristi L . Eglody, Defendant

O R D E R

William Carey, appearing pro s e , claims that Kristi Eglody

is liable to him for defaming him, tortiously interfering with

his advantageous contractual relations, and maliciously

prosecuting him for stalking her. Before the court is

defendant’s motion for summary judgment. Plaintiff objects. For

the reasons given, defendant’s motion for summary judgment is

granted in part and denied in part.

Summary Judgment Standard

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). When ruling on a party’s motion for summary judgment, the

court must view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that

party’s favor. See Lee-Crespo v . Schering-Plough Del Caribe

Inc.,

4 , 37 (1st Cir. 2003) (citing Rivera v . P . R .

Aqueduct & Sewers Auth.,

, 185 (1st Cir. 2003)).

Background

On April 2 9 , 2002, after a hearing, the Manchester District

Court issued a “Stalking Final Order,” which included a

protective order against Carey. That order was based upon a

judicial determination that Carey had stalked Eglody within the

meaning of N . H . R E V . S T A T . A N N . ( “ R S A ” ) § 633:3-a. The protective

order has been extended three times, on April 2 9 , 2003, April 2 9 ,

2004, and April 1 2 , 2005. Carey appealed the most recent

extension to the New Hampshire Supreme Court. While it is not

entirely clear from the record, it appears that plaintiff has

been criminally prosecuted three times for stalking defendant or

attempting to violate the protective order. He was acquitted

twice and convicted once.1 It is undisputed, for purposes of

this litigation, that plaintiff has been the subject of several

articles in local newspapers, but Eglody “made no statements and

1 His conviction was affirmed on appeal by the New Hampshire Supreme Court. State v . Carey, N o . 2004-0544, ___ N . H . ___ (December 2 2 , 2005).

2 gave no information to the Manchester Union Leader, Nashua

Telegraph, []or any other media outlet.” (Def.’s Mot. Summ. J.,

Eglody Aff. ¶ 13.)

Discussion

A . Defamation

Plaintiff asserts that “Ms. Eglody, through the Manchester

Police, repeatedly filled the front page of both the Manchester

Union Leader and the Nashua Telegraph with blatant lies

concerning M r . Carey.” (Compl., Allegation 3 ) . Specifically, he

claims that defendant defamed him by stating that he had

“‘stalked’ her for over a decade” and that he had “forced (her)

to move out of state.” (Id.) According to plaintiff, the former

statement is false because he was never arrested or subjected to

a restraining order until 2002, and the latter statement is false

because defendant did not get an unlisted telephone number when

she relocated from New Hampshire to North Carolina, and because

she gave her North Carolina address to the University of New

Hampshire Alumni Association, even though she knew plaintiff was

a member (and, presumably, knew that plaintiff would have easy

access to the information it maintained). Defendant moves for

3 summary judgment on limited grounds of collateral estoppel and

litigation privilege.

“Statements made in the course of judicial proceedings

constitute one class of communications that is privileged from

liability in civil actions if the statements are pertinent or

relevant to the proceedings.” Provencher v . Buzzell-Plourde

Assocs., 142 N . H . 8 4 8 , 853 (1998) (citing Pickering v . Frink, 123

N . H . 326, 329 (1983); McGranahan v . Dahar, 119 N . H . 7 5 8 , 763

(1979)). New Hampshire has adopted “the rule that treats both

formal and informal complaints and statements to a prosecuting

authority as part of the initial steps in a judicial proceeding,

and as such entitled to absolute immunity from an action for

defamation.” McGranahan, 119 N . H . at 769 (citing W . PROSSER, TORTS

§ 114 at 781 (4th ed. 1971)). When made in the course of a

judicial proceeding, “[a] statement is presumed relevant unless

the person allegedly [injured] demonstrates that it was so

palpably irrelevant to the subject matter of the controversy that

no reasonable man can doubt its irrelevancy or impropriety.”

Provencher, 142 N . H . at 853 (citation omitted).

4 Here, while plaintiff points to allegedly actionable

statements appearing in two newspapers, he identifies Manchester

police officers as the source of those statements. The

publication at issue in this case, then, consists of Eglody’s

statements to the police. Under McGranahan, those statements are

absolutely privileged, so long as they were relevant to the

proceedings in which they were made, i.e., defendant’s efforts to

obtain or extend the protective order, and plaintiff’s criminal

prosecutions for stalking and/or attempting to violate the

protective order.

The first allegedly defamatory statement pertains to the

persistence of Carey’s pursuit of Eglody; the second pertains to

Eglody’s response to Carey’s attempts to contact her. It is

difficult to imagine statements more germane to the proceedings

in which they were made. Because defendant’s statements are

absolutely privileged, defendant is entitled to judgment as a

matter of law on plaintiff’s defamation claim.

5 B . Tortious Interference with Contractual Relations

Plaintiff asserts that defendant interfered with his

employment2 by sending Manchester police officers to his

workplace, Energy to G o . Defendant moves for summary judgment on

grounds of collateral estoppel. She argues that plaintiff’s

complaint “can only be read as claiming that [she] caused him to

be fired because of the stalking charges” (Def.’s Mem. of Law at

9 ) , and that bringing those charges was not wrongful, as a matter

of law, because those charges resulted in both a protective order

and a conviction.

“To establish liability for intentional interference with

contractual relations, a plaintiff must show: (1) the plaintiff

had an economic relationship with a third party; (2) the

defendant knew of this relationship; (3) the defendant

intentionally and improperly interfered with this relationship;

and (4) the plaintiff was damaged by such interference.” Hughes

2 According to plaintiff, defendant interfered with both the job he held at Energy to Go and his prospects for future employment at the Easter Seals’ “Jolicoeur Center.” However, based upon the Magistrate Judge’s order of April 7 , 2005 (document n o . 2 ) , and my order of August 2 3 , 2005 (document n o . 2 6 ) , plaintiff has a claim for tortious interference with contractual relations, but does not have a claim for intentional interference with a prospective contractual relationship.

6 v . N.H. Div. of Aero.,

0 , 40-41 (2005) (citing

Demetracopoulos v . Wilson,

7 1 , 373-74 (1994)).

Accepting that plaintiff had a contractual relationship with

his employer, his claim still fails, as a matter of law, on the

third element - improper interference with that relationship.

Plaintiff alleges no contact whatever between defendant and any

of his employers. Rather, he alleges only that defendant

complained to the Manchester Police Department that he had been

stalking her and that the police, in turn, arrested or served

process on him at work, which eventually led to his loss of one

or more jobs. Leaving aside defendant’s argument that she did

not know of the employment relationships she is alleged to have

interfered with, the act plaintiff accuses her of committing –

reporting him to the police – was not wrongful. As defendant

points out, her complaints were sufficiently well founded to have

resulted in the issuance of a protective order that has been

renewed three times, as well as a criminal conviction. Because

plaintiff has neither alleged nor presented evidence of conduct

on defendant’s part that might constitute wrongful interference

with his employment relationships, defendant is entitled to

7 judgment as a matter of law on plaintiff’s tortious interference

claim.

C . Malicious Prosecution

Plaintiff asserts that defendant is liable for maliciously

prosecuting him for stalking her. He cannot sue based upon the

case in which he was convicted. But he says he was acquitted in

two other cases (the 2002 stalking charge and the 2003 attempted

violation of the protective order charge). 3 Defendant moves for

summary judgment on grounds of res judicata and/or collateral

estoppel, arguing that probable cause supporting the two criminal

prosecutions in which plaintiff was acquitted is conclusively

established by the Stalking Final Order that was issued and

thrice renewed by the Manchester District Court.

“To succeed in an action for malicious prosecution, the

plaintiff must prove that he was subjected to a criminal

3 The record contains a “Return from Superior Court” documenting plaintiff’s acquittal in Crim. N o . 03-S-1078, which involved a charge of attempted violation of a stalking order, prosecuted in the New Hampshire Superior Court (Hillsborough County, North). Plaintiff also appears to have been acquitted of a charge of stalking, after a jury trial, in Crim. N o . 02-S-1213, also prosecuted in Hillsborough County, North. But the record does not include documentation concerning the disposition of that charge.

8 prosecution instituted by the defendant without probable cause

and with malice, and that the criminal proceeding terminated in

his favor.” Hogan v . Robert H . Irwin Motors, Inc.,

3 7 ,

739 (1981) (quoting Stock v . Byers,

4 4 , 845 (1980))

(internal quotation marks omitted).

Probable cause in the malicious prosecution context has long been defined as “such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty.” MacRae v . Brant,

7 7 , 180 (1967); Cohn v . Saidel,

5 8 , 567 (1902); Eastman v . Keasor,

1 8 , 520 (1863). It depends not upon the accused’s guilt or innocence of the crime charged but upon the prosecutor’s honest and reasonable belief in such guilt at the time the prosecution is commenced. MacRae v . Brant, supra,

. The existence of probable cause is a question for the jury to the extent that it depends upon the credibility of conflicting evidence proffered on that issue. Perreault v . Lyons,

(1954); Cohn v . Saidel, supra,

. Whether there was probable cause is ultimately, however, a question of law to be determined by the court. MacRae v . Brant, supra,

; Perreault v . Lyons, supra,

.

Stock,

(parallel citations omitted).

Plaintiff’s first criminal prosecution, in Crim. N o . 02-S-

1213, was supported by probable cause. The prosecution was

initiated based upon several factors. First, a final stalking

9 order had been issued against plaintiff. That order was based

upon a judicial determination that plaintiff had stalked

defendant, and it required plaintiff to have no contact with

defendant. In addition, defendant reported that plaintiff had,

with no help or encouragement from her, tracked down her North

Carolina address on several occasions after she had moved from

one address to another. And, evidence demonstrated that

notwithstanding the stalking order, plaintiff mailed defendant

two packages with return address labels bearing the names “Bill &

Kristi Carey.” Those facts easily provided probable cause to

believe that plaintiff had stalked defendant. Thus, defendant is

entitled to judgment as a matter of law on the claim of malicious

prosecution based upon the 2002 stalking charge.

Plaintiff’s malicious prosecution claim based upon the 2003

attempted violation of the stalking order charge (Crim. N o . 03-S-

1078) stands on a different footing. Plaintiff’s pro se

pleadings are, of course, very difficult to follow, but the

Magistrate Judge made as much sense of them as possible, and

ruled that plaintiff asserted, inter alia, a claim for malicious

prosecution “for stalking.” Fairly construed, the pleadings

state, essentially, that defendant initiated the stalking-related

10 prosecutions by complaining to the police without basis. One of

those prosecutions was for “attempted violation” of the

outstanding protective order.

With respect to that claim, too, counsel for defendant

argues that “[p]robable cause is established by the four

restraining orders which have been granted.” The fact that the

protective order was issued and extended three times says a great

deal about what plaintiff has done, and even tends to establish

probable cause for at least the initial prosecution (note that

under New Hampshire law, a subsequent stalking incident is not a

prerequisite to extension of the order, a simple showing of “good

cause” is sufficient), see R.S.A. 173-B:5, IV.

But, the issuance and extensions of the stalking order,

standing alone, do not say anything about whether plaintiff

“attempted to violate” that order. He was so charged, but was

acquitted. The court has studied the record in detail, expecting

to find some pertinent and reliable information related to that

charge, without success. S o , the status of the case with respect

to that charge is this. Plaintiff says defendant caused his

prosecution for attempted violation of the protective order

11 without basis, without probable cause, and with malice.

Defendant responds by pointing to the protective order itself as

necessarily establishing probable cause for the attempted

violation charge. But the record provides little reliable

(admissible) evidence concerning the nature of the prosecution,

its history, or what initiated i t .

The record as a whole suggests that defendant can probably

easily establish her entitlement to summary judgment on that

issue as well, but she has not yet done s o . The record as

currently developed does not address many critical questions.

For example, was the attempted violation charge initiated by

Eglody, or did someone else lodge a complaint with the police

leading to that charge? O r , was that charge initiated by the

police based upon information developed by them? What do the

charging documents say about the basis for the prosecution - were

affidavits filed in support? What court proceedings were held

and what findings were entered? What role, if any, did Eglody

play, in the attempted violation prosecution?

On this record, the court is left with no legally

supportable alternative other than denial of defendant’s motion

12 as to that charge. Accordingly, the motion is denied with

respect to the attempted violation of the stalking order charge,

but without prejudice to filing a supplemental motion, well-

supported and briefed, directed at the attempted violation

prosecution.

Conclusion

For the reasons given, defendant’s motion for summary

judgment (document no. 29) is granted in part and denied in part.

SO ORDERED.

Steven J. McAuliffe 'Chief Judge March 17, 2006

cc: William J. Carey, pro se Corey M. Belobrow, Esq.

13