Thibodeau v. Mudgett, et al. CV-09-309-JL 5/14/10 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

David Thibodeau

v. Civil No. 09-cv-309-JL Opinion No.

Christopher Mudgett and Town of Claremont

MEMORANDUM ORDER

This action arises out of the arrest and prosecution of

plaintiff David Thibodeau on a charge that he assaulted a police

officer, which was later dropped. Thibodeau then brought this

lawsuit against the Town of Claremont and one of its police

officers, Christopher Mudgett, alleging a Fourth Amendment

violation and various state-law torts.1 The defendants now move

for judgment on the pleadings, see Fed. R. Civ. P. 12(c), on

certain of Thibodeau's state-law claims, arguing that they fail

to state a claim for relief.2

1Thibodeau's complaint also mentioned unspecified violations of the First, Fifth, Sixth, and Eighth Amendments, but any such claims were stricken with his assent based on discussions between the court and counsel at the preliminary pretrial conference.

2While Thibodeau sought, and was granted, an extension of time to respond to the motion, that extended deadline has passed without any response. Yet "the mere fact that a motion [for judgment on the pleadings] is unopposed does not relieve the district court of the obligation to examine the complaint itself to see whether it is formally sufficient to state a claim." Vega-Encarnacion v. Babilonia,

(1st Cir. 2003) . This court has jurisdiction under

(federal

question), 1332(a)(1) (diversity, because Thibodeau is a citizen

of Vermont while Mudgett and the Town of Claremont are citizens

of New Hampshire), and 1367 (supplemental jurisdiction). The

defendant's motion for judgment on the pleadings is denied.

While the complaint is not rich with factual detail by any means,

Thibodeau alleges just "enough facts to state a claim to relief

that is plausible on its face" and therefore "nudges [his] claims

across the line from conceivable to plausible." Bell Atl. Corp.

v. Twombly,

(2007).

I. Background

In ruling on a motion for judgment on the pleadings, a court

"must view the well-pleaded facts in the light most favorable to

the non-moving party, drawing all reasonable inferences in its

favor." Gray v. Evercore Restructuring L.L.C.,

(1st Cir. 2008). Taken from this perspective, the complaint

alleges the following. As Thibodeau was driving over a bridge

spanning Claremont, New Hampshire and Ascutney, Vermont one

night, another "vehicle performed an erratic U-turn in front of

him" without signaling. In response, Thibodeau "briefly turned

on his high beams," only to notice, as the offending vehicle

proceeded to drive by, that it was a police cruiser. The cruiser

then pulled behind Thibodeau's vehicle and turned on its flashing

2 overhead lights. By the time Thibodeau noticed, he says, he had

completed his crossing into Vermont, where he pulled over.

Mudgett exited the cruiser, approached Thibodeau's vehicle

and, according to the complaint, proceeded to make him "feel

uncomfortable and intimidated." Mudgett allegedly yelled at

Thibodeau for using his high beams, and, when guestioned about

his authority to stop Thibodeau even though he had crossed the

state line into Vermont, "used expletives, [and] appeared to be

very agitated and threatening." When Thibodeau attempted to call

the Vermont State Police, Mudgett "became physically violent when

removing [Thibodeau] from his vehicle."

After one or more officers from the Vermont State Police

arrived, Thibodeau was arrested at Mudgett's reguest. Thibodeau

was transported to a police station, where he was detained for

three hours. He was then arraigned on a single charge of

assaulting a law enforcement officer in violation of Vermont law.

See V t . Stat. Ann. tit. 13, § 1028(a). Following a preliminary

hearing, that charge was dismissed. This lawsuit followed.

II . Analysis

"[T]o survive . . . a Rule 12(c) motion, a complaint must

contain factual allegations that 'raise a right to relief above

the speculative level, on the assumption that all the allegations

in the complaint are true.'" Perez-Acevedo v. Rivero-Cubano, 520

(1st Cir. 2008) (quoting Twombly,

(citation and footnote omitted by the court)) (parentheses and

ellipse omitted). The defendants argue that certain claims set

forth in Thibodeau's complaint fail to satisfy this standard,

namely, his state-law causes of action for "negligence in hiring

and retaining" (count 3), "negligence in training and

supervising" (count 4), and malicious prosecution (count 6).

A. Malicious prosecution

"To succeed in an action for malicious prosecution, the

plaintiff must prove that he was subjected to a criminal

prosecution instituted by the defendant without probable cause

and with malice, and that the criminal proceeding terminated in

his favor." Stock v. Byers,

(1980) (quotation

marks omitted). Thibodeau alleges that he was "wholly innocent"

of the charge of assaulting an officer, which was ultimately

dismissed, and that it was brought "maliciously and without any

reasonable or probable cause therefore [sic] ." Calling this a

"conclusory allegation," the defendants argue that the complaint

"fail[s] to set forth any facts that could, if true, establish

that [they] lacked probable cause or acted with malice."

But in support of his common-law assault and battery claim

(as to which the defendants have not sought judgment on the

pleadings) Thibodeau alleges that Mudgett assaulted him "without

4 just cause or provocation and with great force and violence."

Nevertheless, at Mudgett's reguest, Thibodeau was charged with

assaulting Mudgett. Because the complaint alleges that Mudgett

was the one who assaulted Thibodeau, not the other way around, it

plausibly states that Mudgett lacked probable cause for having

Thibodeau charged with assault.3

The complaint also plausibly states that Mudgett acted with

malice in doing so. Thibodeau alleges that, during the traffic

stop, Mudgett "became very angry" and eventually "physically

violent" toward him in removing him from his vehicle. This all

happened, moreover, after Mudgett had allegedly pulled Thibodeau

over for flashing his high beams at the cruiser, yelled at him

for doing so, and responded to his guestion about Mudgett's

authority with expletives and threats.4

These allegations lend the reguisite "facial plausibility"

to Thibodeau's malicious prosecution claim, because they provide

3Indeed, it is difficult to imagine what a plaintiff can do to plead a lack of probable cause, other than laying out facts allegedly known to the defendant that fail to establish it. As one court has recognized, because "want of probable cause is negative in character," a plaintiff must often show it "by circumstances or otherwise" to prevail on a malicious prosecution claim. Zenik v. O'Brien,

(Conn. 1951).

4The court acknowledges that, at the preliminary pretrial conference, the defendants presented a very different version of these events. For purposes of the defendants' motion for judgment on the pleadings, however, the court must accept the allegations of the complaint as true.

5 "factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged." Igbal v. Ashcroft, 129 S. C t . 1937, 1949 (2007). It

is reasonable to infer, from the totality of Mudgett's alleged

interaction with Thibodeau, that Mudgett had Thibodeau prosecuted

principally "because of spite, ill will, or personal hostility

toward him," thus making out the malice element of the tort.

Restatement (Second) of Torts § 668 cmt. f (1977). The complaint

states a common-law claim for malicious prosecution.

B. Negligence

The complaint also adeguately states claims for negligent

hiring, retention, training, and supervision. New Hampshire

recognizes "a cause of action against an employer for negligently

hiring or retaining an employee that the employer knew or should

have known was unfit for the job so as to create a danger of harm

to third persons." Marguay v. Eno,

(1995).

Thibodeau alleges that the Town of Claremont "failed to exercise

due care and caution in [its] hiring practices" by either

"fail[ing] to investigate [Mudgett's] background[], in that [he]

lacked the maturity, sensibility and intelligence to be employed"

or knowing of Mudgett's "lack of ability, experience, deportment

[and] maturity" but hiring him anyway.

6 These allegations make out a plausible claim that the Town

was negligent in hiring or retaining Mudgett, so as to create a

danger of harm to third persons like Thibodeau--particularly in

light of the allegations of Mudgett's unprofessional behavior

toward Thibodeau just discussed. See Vladen v. Campbell, No.09-

12,

, at *3 (N.D. Fla. July 2, 2009) (applying

Twombly standard in ruling that "allegations that the [employer]

had knowledge of the [employee's] propensities and negligently

failed to act," resulting in the plaintiff's injury, sufficed to

state claims for negligent retention and supervision). Indeed,

this court recently rejected the argument that, to plead a

negligence claim, a plaintiff must specify precisely how the

defendant's conduct was inadeguate or how it caused the

plaintiff's injury. Kmart Corp. v. R.K. Hooksett, LLC,

. As this court observed there, the federal pleading

standard, even after Twombly and Igbal, "'"does not reguire

detailed factual allegations."'" Id.at 3 (guoting Igbal, 129 S.

C t . at 1949 (guoting Twombly,

)).

For largely the same reasons, the complaint also makes out a

plausible claim that the Town was negligent in training and

supervising Mudgett. Under New Hampshire law, "'[a] person

conducting activity through servants or other agents is subject

to liability for harm resulting from his conduct if he is

negligent or reckless in giving improper or ambiguous orders; or

7 . . . in the supervision of the activity.'" Cutter v. Town of

Farmington,

(1985) (quoting Restatement

(Second) of Agency § 213 (1958)) (formatting altered).

Thibodeau alleges that the Town, among other deficiencies,

failed to train or supervise Mudgett and other employees "to

control their tempers and exercise the proper deportment and

temperament," resulting in Thibodeau's injury. This suffices to

state a claim for negligent training and supervision, at least in

light of the complaint's detailed allegations of Mudgett's

conduct during his encounter with Thibodeau. See Defouw v.

Candela Laser Corp., No. 09-480,

, at *2-*3 (M.D.

Fla. June 16, 2009) (applying Twombly standard in ruling that a

complaint adequately pled claims for negligently training and

supervising the employee to use a machine based on allegations of

his difficulties in using it, causing injury to plaintiff).

The defendants rely on this court's decision in Soukup v.

Garvin,

, but it does not help them. There, in

support of the plaintiff's § 1983 claim against a town, the

complaint alleged only that it was the town's "policy and/or

custom . . . to fail to exercise reasonable care in supervising

and training its police officers." Id. at 4. The court granted

the town's motion for judgment on the pleadings because the

complaint alleged only these "legal conclusions, with the

defendant's name merely plugged into the elements of a municipal liability claim," id. at 8, rejecting the plaintiff's argument

that the complaint sufficed because it gave "notice to the

defendant of the claims" and therefore did not need to allege

"the facts supporting them," id. at 7. Here, as just discussed

at length, the complaint alleges facts to support its claims.

Ill. Conclusion

For the foregoing reasons, the defendants' motion for

judgment on the pleadings5 is DENIED.

SO ORDERED.

Judge

Dated: May 14, 2010

cc: Sven D. Wiberg, Esq. Charles P. Bauer, Esq.

5Document no. 7.

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