UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Willard Drew d/b/a Kelsey’s at the Grant

v. Civil No. 14-cv-462-JD Opinion No.

State of New Hampshire, N.H. Drug Task Force, et al.

O R D E R

Willard Drew operates a restaurant located in Gilford, New

Hampshire, which is now called Kelsey’s at the Grant. From June

through October of 2011, the New Hampshire Drug Task Force

(“NHDTF”) investigated the sale of controlled drugs at that

establishment, which was then known as Mardi Gras North, and

conducted a search of the premises in October of 2011. Based on

those and subsequent events, Drew brought suit, alleging federal

claims under

and related state law claims.

The State of New Hampshire, the NHDTF, and former NHDTF

commander, James Norris, (“the state defendants”) moved to

dismiss the claims against them on the grounds of sovereign

immunity and failure to state a claim. Drew objected to the

motion as to NHDTF and Norris in his individual capacity but did

not object to dismissing claims against the State of New

Hampshire and against Norris in his official capacity. Drew then

moved to amend his complaint, and the state defendants objected. I. Motion to Amend

Drew moves to amend the complaint to substitute the NHDTF

for the State. The state defendants object to the proposed

amended complaint, arguing that the amendment is futile because

the NHDTF is protected by sovereign immunity and because Drew has

not alleged facts that show the NHDTF is a “jural entity” that

may be sued independently from the state.

To determine whether a proposed amended complaint would be

futile, the court uses the standard for motions to dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(6). Adorno v.

Crowley Towing & Transp. Co.,

(1st Cir. 2006).

Under the Rule 12(b)(6) standard, the court must take the factual

allegations in the complaint as true, with reasonable inferences

in the plaintiff’s favor, and “determine whether the factual

allegations in the plaintiff’s complaint set forth a plausible

claim upon which relief may be granted.” Foley v. Wells Fargo

Bank, N.A.,

(1st Cir. 2014). A plausible claim

for relief is something more than merely possible or conceivable

but need not meet the standard for a prima facie case. Carrero-

Ojeda v. Autoridad de Energia Electrica,

(1st

Cir. 2014).

A. Sovereign Immunity

The state defendants contend that the proposed amended

complaint fails to state a claim against the NHDTF because it is

part of the state and is protected by the state’s sovereign

2 immunity under the Eleventh Amendment. “Unless a state consents,

a suit in which the State or one of its agencies or departments

is named as the defendant is proscribed by the Eleventh

Amendment.” Lebron v. Commonwealth of Puerto Rico,

(1st Cir. 2014) (internal quotation marks omitted). More

specifically, “‘a suit by private parties seeking to impose a

liability which must be paid from public funds in the state

treasury is barred by the Eleventh Amendment.’” Davidson v.

Howe,

(1st Cir. 2014) (quoting Edelman v. Jordan,

(1974)). A suit against the New Hampshire

Attorney General in his official capacity is a suit against the

State of New Hampshire. Will v. Mich. Dept. of State Police,

(1989).

Drew does not contest the principles of sovereign immunity

and does not dispute that if the NHDTF were an agency or division

of the state it would be protected by sovereign immunity. Drew

alleges, however, that the NHDTF is a “multi-jurisdictional

entity” and is composed of state and local law enforcement

personnel. For that reason, Drew argues, the NHDTF is not a

state agency.

No court in this state appears to have addressed the

question of whether the NHDTF is a state agency for purposes of

sovereign immunity. Little guidance is available from decisions

in other states where similar task forces were formed by a

municipality rather than the state. See, e.g., Rodriguez-

Melendez v. Dauphin County Drug Task Force,

(M.D.

3 Pa. Jan. 5, 2015). In addition, state law may be determinative

of whether a particular task force is or is not a state agency.

See, e.g., Clouser v. Johnson, --- F. Supp. 2d ---,

, at *7-*8 (M.D. Penn. Aug. 25, 2014); Lamb v. Tenth

Judicial Dist. Drug Task Force,

(E.D.

Tenn. 2013).

The NHDTF is known as the New Hampshire Attorney General’s

Drug Task Force. See, e.g., State v. Paul,

, 1059

(N.H. 2014); State v. Smith,

(2014). Under New

Hampshire law, the attorney general may vest municipal and state

law enforcement officers, who are assigned to work with the

attorney general, “with statewide law enforcement authority” to

conduct or assist with investigations, including service “on the

attorney general’s drug task force.” RSA 21-M:3-b. The

authority exists only while the officers are assigned to the

department of justice and, during that time, the officer is a

state official entitled to defense and indemnification under RSA

99-D:2. RSA 21-M:3.

Based on the foregoing, it appears that the NHDTF is part of

the New Hampshire Attorney General’s office. In the context of a

futility analysis, however, the parties have provided no record

to support a definitive determination of the legal status of the

NHDTF. The state defendants did not raise RSA 21-M:3-b in their

objection to the motion to amend or in their motion to dismiss

and failed to cite any cases or other authority to show that the

4 NHDTF is a state entity.1 As the court explained in Lamb, the

determination of whether a drug task force is a state entity

requires a more developed record than is available under the Rule

12(b)(6) standard.

.

Therefore, the motion to amend cannot be denied based on the

defense of sovereign immunity.

B. Jural Entity

The state defendants also contend that the proposed amended

complaint is futile because “it does not establish that NHDTF is

a jural entity capable of being sued independently of the New

Hampshire Department of Justice.” In support, the state

defendants cite Harris v. City of Hammond,

(E.D.

La. Sept. 30, 2008), where the court granted the defendants’

motion to dismiss the plaintiff’s § 1983 claims against the

Louisiana Attorney General’s Internet Crimes Against Children

Task Force. The court concluded that the plaintiff bore the

burden of showing that the Task Force was a “juridical person”

with the capacity to be sued and had failed to carry the burden

1 The state defendants did quote RSA 21-M:3-b in their reply to Drew’s objection to the motion to dismiss to show that officers serving in the NHDTF are given statewide enforcement powers. A reply, however, cannot provide new grounds not raised in the motion. See, e.g., Mills v. U.S. Bank, NA,

, 55 n.5 (1st Cir. 2014); Alamo-Hornedo v. Puig,

(1st Cir. 2014); West v. Bell helicopter Textron, Inc.,

, at *13, n.13 (D.N.H. Sept. 30, 2014); Gen. Linen Serv., Inc. v. Gen. Linen Serv. Co., Inc.,

(D.N.H. 2014).

5 and that sovereign immunity barred the claims for monetary relief

against the Attorney General.

at *2-*3.

The reasoning in Harris is not persuasive in the context of

Drew’s motion to amend the complaint. The court in Harris relied

on cases that are inapposite to the circumstances presented here.

Further and more importantly, Harris appears to impose a

heightened pleading standard that requires a plaintiff who

alleges a claim under § 1983 to cite law in the complaint to show

that the defendant is a “juridical person” for purposes of

§ 1983. Such a requirement would likely violate the notice

pleading standard under Federal Rule of Civil Procedure 8(a).

See Rodriguez-Reyes v. Molina-Rodriguez,

(1st

Cir. 2013); Educadores Puertorriquenos en Accion v. Hernandez,

(1st Cir. 2004).

The questions of whether the NHDTF is a state entity for

purposes of sovereign immunity and whether it has the capacity to

be sued require factual and legal development that has not been

presented in the context of the motion to amend. Instead, the

questions would be better addressed through a motion for summary

judgment with appropriate record support. See Swierkiewicz v.

Sorema N.A.,

(2002).

Conclusion

For the foregoing reasons, the plaintiff’s motion to amend

the complaint (document no. 19) is granted. The plaintiff shall

file the amended complaint.

6 The defendants’ motion to dismiss (document no. 9) is

terminated as moot.

SO ORDERED.

____________________________ Joseph A. DiClerico, Jr. United States District Judge

February 26, 2015

cc: Charles P. Bauer, Esq. David H. Bownes, Esq. Francis Charles Fredericks, Esq. Richard W. Head, Esq. Andrew B. Livernois, Esq.

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