UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

H. Richard Austin

v. Case No. 22-cv-330-SE Opinion No.

Hanover Insurance Company

O R D E R

In 1993, a house fire destroyed plaintiff Richard Austin’s

home. Austin filed a claim with his insurer, defendant Hanover

Insurance Company, which denied coverage after concluding that

Austin started the fire. Austin challenged that denial in court

and a jury found in Hanover’s favor.

Over the next three decades and despite several warnings

and admonitions from courts in various jurisdictions, Austin has

filed lawsuit after lawsuit challenging Hanover’s conduct

relating to its denial of coverage and during the ensuing trial.

He has never been successful. Courts across the country have

ordered him to refrain from filing future lawsuits arising out

of the same subject matter absent leave of court and have

assessed sanctions against him.

Undeterred, Austin, proceeding pro se, filed the instant

suit, which again challenges Hanover’s same conduct. Hanover

moves to dismiss the complaint based on res judicata, the

statute of limitations, and forum non conveniens. Doc. no. 17.

Austin objects. For reasons cited by other courts in the many orders

dismissing Austin’s prior suits, the court grants Hanover’s

motion to dismiss. The court further grants Hanover leave to

file a motion for an award of attorneys’ fees as a sanction, an

order restricting future filings, or both.

Standard of Review

To overcome a motion to dismiss under Rule 12(b)(6), the

plaintiff must make factual allegations sufficient to “state a

claim to relief that is plausible on its face.” Ashcroft v.

Iqbal,

(2009) (quotation omitted). Under this

plausibility standard, the plaintiff must plead “factual content

that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.”

This

pleading requirement demands “more than a sheer possibility that

[the] defendant has acted unlawfully,” or “facts that are merely

consistent with [the] defendant’s liability.”

(quotation

omitted). Although the complaint need not set forth detailed

factual allegations, it must provide “more than an unadorned,

the-defendant-unlawfully-harmed-me accusation.”

In deciding a motion to dismiss, the court accepts as true

the non-conclusory factual allegations in the complaint and

resolves reasonable inferences in favor of the nonmoving party.

Doe v. Stonehill College, Inc.,

(1st Cir.

2 2022). The court “may also consider facts subject to judicial

notice, implications from documents incorporated into the

complaint, and concessions in the complainant’s response to the

motion to dismiss.” Breiding v. Eversource Energy,

(1st Cir. 2019) (quotation omitted). When the plaintiff is a

pro se litigant, the court construes his complaint liberally.

Boivin v. Black,

(1st Cir. 2000).

Background

After Hanover denied Austin’s insurance claim arising out

of a November 12, 1993 fire that destroyed his house, Austin

brought suit seeking coverage for damage caused by the fire.

Hanover argued at trial that its investigation revealed that

Austin had set the fire that destroyed his house, and the jury

returned a verdict in Hanover’s favor. Austin v. Hanover Ins.

Co., 95-cv-170-JGM (D. Vt. judgment Aug. 1, 1997).1 Austin

appealed to the Second Circuit Court of Appeals, which affirmed

the judgment. Austin v. Hanover Ins. Co., No. 97-9069,

(2d Cir. Nov. 12, 1998).

Thereafter, Austin filed multiple suits and appeals against

Hanover and related entities, challenging the District of

Vermont verdict against him and asserting fraudulent misconduct

1 Austin filed the case in St. Louis, Missouri in September 1994, but the case was later moved to the District of Vermont.

3 by the defendants. All of Austin’s suits and appeals have

resulted in favorable outcomes for Hanover and the related

entities.2 See Austin v. Hanover Ins. Co., No. 4:16-CV-01491-JAR,

, at *1-*2 (E.D. Mo. July 24, 2017) (providing

background on seven cases filed prior to the case in the Eastern

District of Missouri); see also doc. no. 17-1 at 2-12. Several

of the orders dismissing Austin’s suits have concluded that his

claims are barred by the principle of res judicata. Austin v.

Douglas G. Peterson & Assocs., Inc., No. 5:13-CV-877-BO,

, at *2 (E.D.N.C. May 12, 2014) (noting that “every court

to have considered the issues raised by plaintiff relating to

fraud and collusion regarding the scientific evidence presented

at his jury trial against his insurer has found the claims to be

precluded by the doctrines of res judicata and or collateral

estoppel”), aff’d sub nom. Austin v. Douglas G. Peterson &

Assocs.,

(4th Cir. 2014).

In 2020, Austin filed another action against Hanover

arising out of the 1993 fire in the United States District Court

for the District of Massachusetts. See Austin v. Hanover Ins.

Co., 20-cv-30080-MAP (D. Mass. June 5, 2020). The court

dismissed the case sua sponte because Austin had not complied

with the restrictive order issued in a previous case he brought

2 Hanover represents that this is Austin’s 13th case on the same or substantially the same issues.

4 in that district, Austin v. Peterson, 12-cv-30109-MAP (D. Mass.

July 3, 2012), which required him to file a petition seeking

leave to make filings against the defendants that related to the

1993 house fire. The First Circuit Court of Appeals affirmed the

dismissal.

dkt. nos. 8 & 9.

Austin subsequently filed the instant suit, alleging three

claims against Hanover. In Count I, he alleges that Hanover, its

counsel, and others acted improperly in changing the venue of

the initial suit to the District of Vermont and engaged in other

misconduct in that trial. In Count II, he alleges that he

obtained evidence after the conclusion of the trial that shows

that Hanover’s evidence of arson was not valid, and he argues

that Hanover wrongly represented in subsequent cases that those

issues were tried in the original case. In Count III, he raises

a due process claim based on alleged misconduct by Hanover,

which he characterizes as a “fraud on the court.”

Discussion

Hanover moves to dismiss the complaint on the grounds that

the claims are barred by res judicata due to the judgment

against Austin in the initial case in the District of Vermont,

on appeal, and rulings from other courts in his subsequent

lawsuits. Alternatively, Hanover contends that the claims are

barred by the statute of limitations and that the court should

5 dismiss them because New Hampshire is a forum non conveniens. In

response, Austin argues that his claims should not be barred

because the defendants’ res judicata argument is and has always

been a fraudulent scheme to prevent courts from considering his

evidence of the defendants’ misconduct in the initial case. In

other words, Austin contends that his claims in this case relate

to how Hanover’s and other defendants’ conduct, both in the

initial trial and subsequent litigation, prevented him from

presenting evidence and constitute a fraud on the court.

I. Res Judicata

“Under federal law, ‘a final judgment on the merits of an

action precludes the parties or their privies from relitigating

issues that were or could have been raised in that action.’” In

re Colonial Mortg. Bankers Corp.,

(1st Cir.

2003) (quoting Allen v. McCurry,

(1980)). “Thus,

the elements of a res judicata defense are (1) a final judgment

on the merits in an earlier proceeding, (2) sufficient

identicality between the causes of action asserted in the

earlier and later suits, and (3) sufficient identicality between

the parties in the two actions.”

Austin acknowledges that courts in his prior cases have

dismissed his claims alleging the same misconduct by the

defendants based on res judicata. He argues, however, that res

6 judicata does not apply to his claims filed here because his due

process claim in Count III is relatively new, having only been

raised in his complaint filed in 2020 in the District of

Massachusetts. He argues that because neither that court nor the

First Circuit considered his claims on the merits, the due

process claim cannot be barred by res judicata. He is mistaken.

Austin has raised the same allegations regarding Hanover’s

supposed misconduct in the plethora of other cases he has

brought, beginning with the initial litigation in Vermont.

Austin’s attempt to avoid the application of res judicata by

labeling one of his claims an alleged due process violation does

not change the fact that he has alleged the same misconduct by

Hanover and the related defendants for many years and in many

cases. As such, to the extent that the allegations of misconduct

would support a claim for violation of his right to due process,

that claim could have been brought in any of his prior suits and

is now barred.

Austin has also unsuccessfully raised the specific

allegations underpinning the due process claim in other cases.

In 2001, the Second Circuit affirmed a District of Vermont

decision dismissing Austin’s claims that, among other things, he

has “demonstrated ‘fraud upon the court’ and therefore the

judgment against him should not be enforced,” and “res judicata

was inapplicable to his case since ‘different facts are now

7 before the court’ and the judgment against him was not on the

merits since the defendants fraudulently withheld information

from the jury.” Austin v. Hanover Insurance Co., et al.,

(2d Cir. July 13, 2001), cert. denied,

(2001). In 2008, Austin filed a claim against related

defendants in Massachusetts in which he asserted that he had

been deprived of “a ‘full and fair opportunity’ to assert his

right to Due Process.” Austin v. Douglas G. Peterson & Assoc.,

No. 08-30128-MAP, dkt. no. 22. His claims were dismissed. Id.,

, at *1-2 (D. Mass. Nov. 18, 2008). For those

reasons, Austin’s claims in this case are barred by res

judicata.

Moreover, the claims, which rely entirely on allegations

concerning conduct that occurred roughly thirty years ago,

cannot survive Hanover’s challenge under the applicable statute

of limitations. See RSA 508:4 (three-year statute of limitations

for breach of contract and fraud in New Hampshire); 12 V.S.A. §

511 (six-year statute of limitations for breach of contract and

fraud in Vermont); Fincher v. Town of Brookline,

(1st Cir. 2022) (“The limitation period applicable to a §

1983 claim is to be found in the general personal injury statute

of the jurisdiction in which the claim arises.” (quotation and

alteration omitted)).

8 II. Sanctions

In 2012, the court in the District of Massachusetts sua

sponte dismissed Austin’s complaint alleging claims arising out

of the 1993 fire and subsequent litigation. See Austin v.

Peterson, 12-cv-30109-MAP (D. Mass. July 3, 2012), dkt. nos. 6 &

7. Austin appealed the judgment, and the First Circuit Court of

Appeals affirmed, stating: “Further, appellant is placed on

notice that future frivolous or vexatious litigation will expose

him to the imposition of penalties, such as monetary sanctions

and filing injunctions.” Id., dkt. no. 12.

Hanover notes Austin’s decades-long history of bringing

unsuccessful litigation against it and related entities that

arises from his dissatisfaction with the 1997 verdict against

him in the District of Vermont. Because of that conduct and the

lack of merit in Austin’s current claims, Hanover seeks an award

of attorneys’ fees. Hanover is granted leave to file a motion

for an award of fees that shall be supported by appropriate

affidavits and billing records. Austin will have an opportunity

to respond.

Consistent with the terms of the standing order imposed

against Austin in the District of Massachusetts, Austin is

enjoined from filing any action in the District of New Hampshire

asserting claims or facts relating directly or indirectly to the

1993 house fire absent first filing a written petition seeking

9 leave to do so. The petition must contain a copy of this order,

together with the papers he seeks to file, and a certification

under oath that there is a good-faith basis for their filing.

The Clerk of Court shall docket any new action by Austin into a

master miscellaneous file and present it to a judge of this

court for review to determine whether the filing complies with

the terms of this injunction.

If Austin fails to comply with these terms, he will be

subject to monetary penalties.

Conclusion

For the foregoing reasons, the defendant’s motion to

dismiss (document no. 17) is granted.

If Hanover seeks an award of attorneys’ fees in this case

or the imposition of a restrictive order, or both, it shall file

a motion for that relief, supported by affidavits and billing

records, within 14 days from the date of this order. Austin will

then have 14 days to respond to the motion.

SO ORDERED.

______________________________ Samantha D. Elliott United States District Judge May 9, 2023 cc: H. Richard Austin, pro se. Counsel of record.

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