American v . Hayhurst CV-98-126-M 09/29/00 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
American Association of Naturopathic Physicians, Plaintiff
v. Civil N o . 98-126-M Opinion N o . 2000 DNH 205 Donald Hayhurst and American Naturopathic Medical Association, Inc., Defendants
O R D E R
Plaintiff, American Association of Naturopathic Physicians
(“AANP”), brings this diversity action against Defendants Donald
Hayhurst and the American Naturopathic Medical Association, Inc.
In its two count complaint, AANP sets forth the bases for its
claimed entitlement to damages for malicious prosecution and
conspiracy.1 Hayhurst moves for summary judgment.
1 Periodically, AANP’s pleadings make reference to a claim for abuse of process - one that AANP apparently views as being independent of its claim for malicious prosecution. The “corrected version” of its amended complaint (document n o . 88) sets forth no such independent claim, however. Standard of Review
When ruling upon a party’s motion for summary judgment, the
court must “view the entire record in the light most hospitable
to the party opposing summary judgment, indulging all reasonable
inferences in that party’s favor.” Griggs-Ryan v . Smith, 904
F.2d 1 1 2 , 115 (1st Cir. 1990). 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). In this context, “a fact is
‘material’ if it potentially affects the outcome of the suit and
a dispute over it is ‘genuine’ if the parties’ positions on the
issue are supported by conflicting evidence.” Intern’l Ass’n of
Machinists and Aerospace Workers v . Winship Green Nursing Center,
103 F.3d 196, 199-200 (1st Cir. 1996) (citations omitted).
Background
This case represents yet another battle in an enduring feud
between the parties. The struggle began in various state
legislative arenas over whether legislation should be enacted to
provide for the licensing of naturopathic physicians. It has, at
2 times, been quite heated and even venomous, as each side has
attempted to discredit the other in the eyes of legislators and
state policy-makers. As it progressed, the feud seems to have
“matured” from a political debate as to which reasonable minds
might certainly differ, into mere ad hominem exchanges fueled by
increasing personal acrimony on both sides. Unfortunately, the
dispute has spilled over into the judicial forum.
During the course of AANP’s political lobbying relative to
the licensing issue, it (and persons acting on its behalf)
distributed materials critical of Hayhurst’s education and
professional credentials, in an obviously calculated effort to
demean him and undermine his political credibility. Those
materials sometimes included an article highly critical of
Hayhurst published in the April 1990 issue of Townsend Letter for
Doctors (an article that was subsequently retracted by the
publisher, who also offered an apology to Hayhurst for any
“embarrassment, hurt, and inconvenience this article caused D r .
Hayhurst.”). See Exhibit 15 to Affidavit of Donald Hayhurst,
Townsend Letter for Doctors (August/September, 1992), at 746.
3 Notwithstanding that retraction and apology, it appears that AANP
and/or its agents continued to circulate the original article.
In response, Hayhurst brought twelve separate lawsuits in
various federal district courts (including this o n e ) , in which he
alleged that the statements being issued and the materials being
circulated by AANP in those fora defamed him. AANP says that two
of those cases settled (though the record suggests that at least
four were settled by the so-called “Weeks” release) and three
were either dismissed on the pleadings or were resolved by
summary judgment against Hayhurst, including the proceeding filed
in this court. See AANP’s objection to summary judgment
(document n o . 68) at 2-3. The status (or outcome) of the
remaining suits is unclear.
AANP now presses this two count action against Hayhurst,
alleging (1) malicious prosecution in the institution and
maintenance of the referenced suits and (2) a civil conspiracy
between Hayhurst and the American Naturopathic Medical
Association involving their alleged pursuit of a course of
4 conduct, including the bringing and maintenance of the referenced
suits, and designed to destroy AANP. Although AANP says it seeks
compensation for Hayhurst’s allegedly wrongful conduct in
numerous judicial fora, the evidence it has presented in
opposition to the motion for summary judgment relates almost
exclusively to the defamation action Hayhurst brought in this
court.
As discussed more fully below, neither AANP’s malicious
prosecution nor its conspiracy claim has sufficient support in
the record evidence to survive Hayhurst’s motion for summary
judgment.
Discussion
I. Count 1 - Malicious Prosecution.
Under New Hampshire law, a “successful action for malicious
prosecution requires proof that the plaintiff was subjected to a
civil proceeding instituted by the defendant, without probable
cause and with malice, and that the proceedings terminated in the
plaintiff’s favor.” ERG, Inc. v . Barnes, 137 N.H. 186, 190
5 (1993) (citations omitted). Hayhurst argues that AANP cannot
establish the third and fourth elements of the cause of action
(i.e., lack of probable cause and the existence of malice).
A. Probable Cause.
The existence of probable cause is ultimately a question of
law for the court. Of course, when it turns upon the resolution
of factual disputes or the credibility of witnesses, the
existence of probable cause becomes a mixed question of law and
fact. See Stock v . Byers, 120 N.H. 8 4 4 , 846 (1980); MacRae v .
Brant, 108 N.H. 1 7 7 , 180 (1967). Here, however, AANP has
identified no such material factual disputes. S o , whether
Hayhurst had probable cause to file the New Hampshire defamation
action can be resolved as a matter of law.
To establish a lack of probable cause “[t]he plaintiff [i]s
required to prove that the defendants, when they brought their
suits against him, did not possess such knowledge of facts ‘as
would lead a man of ordinary caution and prudence to believe’
that they had a cause of action against the plaintiff.” Cohn v .
6 Saidel, 71 N.H. 5 5 8 , 567 (1902) (citation omitted). See also
Aranson v . Schroeder, 140 N.H. 359, 367 (1995) (holding that a
litigant acts without probable cause when he or she acts “without
any credible basis in fact and such action is not warranted by
existing law or established equitable principles or a good faith
argument for the extension, modification, or reversal of existing
law.”). Thus, the burden imposed on a defendant in a proceeding
for malicious prosecution - to demonstrate probable cause to
initiate the underlying civil action in which he or she was the
plaintiff - is not especially onerous.
Nevertheless, AANP alleges that Hayhurst lacked probable
cause because, with respect to the defamation action he filed in
this district: (1) the Court of Appeals for the First Circuit
determined that the action was frivolous; (2) Hayhurst admitted
that he had never been to New Hampshire, very few people in New
Hampshire knew of him, and he failed to identify anyone whose
opinion of him was changed by the alleged defamation; and (3)
notwithstanding the fact that he executed a release in a Florida
defamation action by which he agreed not to pursue further
7 litigation (the “Weeks” release), he subsequently instituted a
defamation action in this court. Hayhurst attacks each of these
arguments.
(1) The Court of Appeals’ Ruling.
In an unpublished, per curiam opinion disposing of
Hayhurst’s appeal in the defamation action brought in this
district, the court of appeals concluded that, under Rule 38 of
the Federal Rules of Appellate procedure, it was proper to award
AANP “single costs plus damages, including attorneys’ fees.”
Hayhurst v . Timberlake, N o . 97-1697, slip o p . at 5 (1st Cir.
1997). Rule 38 provides that, “If a court of appeals determines
that an appeal is frivolous, it may . . . award just damages and
single or double costs to the appellee.” (emphasis supplied).
Thus, the issue decided by the court of appeals necessarily
related exclusively to the merits of Hayhurst’s appeal. To the
extent the appellate court offered comment on the underlying
merits of the complaint Hayhurst filed in this court (and it is
not clear that it d i d ) , those comments would constitute dicta,
and would not establish, as a matter of law, that Hayhurst lacked
8 probable cause to file the defamation proceeding here. That is
to say, Hayhurst is not precluded (in this or any other action)
from disputing comments made by the court of appeals relative to
probable cause to have brought the suit in this court, based on
principles of res judicata, equitable estoppel, or even law of
the case. Indeed, the decision in the underlying appeal would
not constitute admissible evidence in this case on the question
of probable cause to initiate the underlying defamation suit.
AANP has failed to point to any finding by this court
(Devine, J.) to the effect that Hayhurst’s defamation action was
frivolous or lacked probable cause when filed. In fact, the
opinions issued by the late Judge Devine suggest just the
opposite: while Judge Devine was persuaded that, on balance, the
statements ascribed to AANP were not actionable, some of
Hayhurst’s claims could be viewed as presenting a close question.
In any event, based upon the record presented in this case,
the court concludes that a person of ordinary caution and
prudence could have reasonably concluded that Hayhurst had a
9 viable defamation claim against AANP (and others) and, therefore,
had probable cause to initiate the New Hampshire defamation
action. While the merits of that claim might be questionable (as
the court of appeals might have suggested), a reasonable person
could justifiably conclude that there was evidence to support
each of the essential elements of a viable defamation claim.
See, e.g., Hayhurst v . Timberlake, N o . 94-199-SD (November 1 4 ,
1996) (order denying motion to dismiss Hayhurst’s defamation
complaint).
(2) Hayhurst’s Limited Contacts with New Hampshire.
Next, AANP asserts that Hayhurst lacked probable cause to
initiate a defamation action in this forum because: (a) he
admitted that he had limited contacts with this forum; and (b) he
could not specifically identify any person within this state that
had been affected by the allegedly defamatory material. Again,
the court disagrees.
To state a viable claim for defamation under New Hampshire
law, a plaintiff must allege that the defendant intentionally or
10 without reasonable care published a defamatory statement
concerning the plaintiff to a third party who understood the
statement’s defamatory meaning. See generally Duchesnaye v .
Munro Enterprises, Inc., 125 N.H. 244 (1984); Thompson v . Cash,
119 N.H. 371 (1979). To sustain his burden of proof, “[t]he
plaintiff need not prove publication to a group, however.
Publication to one person other than the plaintiff is
actionable.” Duchesnaye, 125 N.H. at 252.
In support of his defamation action, Hayhurst produced
evidence tending to establish that a representative of AANP made
arguably actionable, disparaging statements about him to Patricia
DeSilvio. This court (Devine, J.) described the evidence as
follows:
On April 3 0 , 1993, Timberlake and DeSilvio both attended a hearing at the legislative office building in Concord, New Hampshire, concerning the proposed legislation. DeSilvio, a practitioner of naturopathy, testified at the hearing in opposition to the licensing bill. After the hearing had ended, Timberlake approached DeSilvio, introduced himself, and then stated that Hayhurst was a fraud without credentials. He added that Hayhurst “was not what DeSilvio thought he was” and “that he could prove that he had no credentials” if DeSilvio came to his office.
11 Hayhurst v . Timberlake, N o . 94-199-SD,, slip o p . at 9 (D.N.H.
April 3 0 , 1997). Ultimately, the court concluded that the
statements made by Timberlake were not defamatory, holding that,
“[a]lthough Timberlake may have ‘crossed the line’ somewhat by
identifying Hayhurst as a fraud with no credentials, it appears
from this record that Timberlake was merely engaging in the type
of rhetorical hyperbole commonly employed by participants in this
debate.” Id., at 1 1 . That holding does not, however, compel the
conclusion that Hayhurst lacked probable cause to believe that he
had a viable defamation action against AANP and others.
Just as an acquittal in a criminal case does not necessarily
establish that an accused is actually “innocent” of the charged
crime, and is not, standing alone, conclusive evidence that a
prosecution was brought without probable cause, see Hogan v .
Robert H . Irwin Motors, Inc., 121 N.H. 7 3 7 , 741-42 (1981), AANP’s
victory on the merits in the underlying defamation action does
not necessarily establish that Hayhurst lacked probable cause to
initiate that proceeding. In fact, the language employed by
Judge Devine (e.g., that “Timberlake may have ‘crossed the line’
12 somewhat”) suggests just the opposite: while AANP was entitled to
judgment as a matter of law, based on the court’s conclusion that
the statements at issue were rhetorical hyperbole protected by
the First Amendment, it was not an issue so obviously one-sided
as to undermine probable cause to raise i t .
In short, notwithstanding Judge Devine’s ultimate conclusion
that the statements upon which Hayhurst relied were not, under
the circumstances, defamatory, a person of “ordinary caution and
prudence” could reasonably conclude that, once AANP (or its
agents) again reported to third parties that Hayhurst was, among
other things, a “quack” and a “fraud” with a “useless degree”
from an “unaccredited school,” see Hayhurst v . Timberlake, N o .
97-1697, slip o p . at 3 n.1 (1st Cir. 1997), Hayhurst had probable
cause to believe a viable claim for defamation existed. See Cohn
v . Saidel, 71 N.H. at 567; Aranson v . Schroeder, 140 N.H. at
367. 2
2 Parenthetically, the court notes that evidence in the record suggests that the comments about Hayhurst’s degree and alma matter were, if not untrue, certainly misleading. See, e.g., Letter of David Young, Oregon Office of Educational Policy and Planning (April 1 2 , 1991), attached to exhibit 4 of
13 (3) The “Weeks” Release.
Finally, in support of its assertion that Hayhurst lacked
probable cause to initiate the underlying defamation action in
this court, AANP points to the so-called “Weeks” release, which
the parties executed as part of the settlement of Hayhurst’s
defamation suits in Florida, Connecticut, Washington, and
Arizona. AANP seems to suggest that by executing the Weeks
release, Hayhurst relinquished his right to pursue any and all
future defamation claims against AANP. In other words, AANP
seems to argue that the Weeks release amounted to a limited
license to defame Hayhurst in the future, without fear that
Hayhurst might sue for damages. The provision of the Weeks
release on which AANP relies states that:
[T]he undersigned specifically releases the said parties for any communications which might arise in the future as a result of any communications or actions by the said parties which might have originated before August 1 , 1992, but may not have been disseminated before the date of this release [i.e., March 1 2 , 1993].
Hayhurst’s objection to summary judgment.
14 The Weeks release at 2 , Exhibit 2 to AANP’s memorandum in
opposition to summary judgment (emphasis supplied).
Whether Hayhurst intended that document to release AANP from
liability from any and all future acts of defamation, and whether
the release could, as a matter of law, operate in that fashion,
is not an issue the court need address. It is sufficient to
observe that Hayhurst filed the New Hampshire defamation action
in 1994, seeking damages for affirmative conduct that AANP (and
others) engaged in after August 1 , 1992 (e.g., the April 3 0 , 1993
statements to Patricia DeSilvio). In other words, the conduct
that formed the foundation of Hayhurst’s defamation claim did not
“originate[] before August 1 , 1992.” Plainly, therefore, the
Weeks release did not preclude Hayhurst from initiating such an
action and the existence of that release in no way suggests that
Hayhurst lacked probable cause to bring the New Hampshire
defamation action.
In fact, the existence of the Weeks release suggests just
the opposite. That AANP chose to settle rather than litigate
15 many of Hayhurst’s similar claims in other districts (including
those for defamation) supports, rather than undermines,
Hayhurst’s assertion that he had probable cause to bring those
claims. See generally Robinson v . Fimbel Door Co., 113 N.H. 3 4 8 ,
351 (1973) (if a defendant has “terminated the suit by paying
what was demanded or by compromise, he cannot be admitted to say
that the action was commenced without probable cause, and
consequently cannot have an action for malicious prosecution.”).
And, by implication, the Weeks release supports Hayhurst’s claim
that he had probable cause to subsequently bring the related New
Hampshire defamation proceeding, which was based on substantially
similar conduct to that which formed the basis of his other
complaints (including those that were settled). See AANP’s
objection to summary judgment (document n o . 68) at 2 (AANP
acknowledges that, “In each of these cases essentially the same
claims of defamation and conspiracy were made by the Defendant,
Hayhurst.”) (emphasis supplied).
Plainly, the underlying New Hampshire defamation case was
not resolved by settlement; it was resolved on the merits in
16 favor of AANP. However, that fact, alone, does not suggest that
Hayhurst lacked probable cause to initiate the suit. And, AANP’s
apparent assertion that, by filing the New Hampshire defamation
action, Hayhurst breached the “Weeks” release, is entirely
without merit and provides no support for its claim that Hayhurst
lacked probable cause.
B. Malice.
Because AANP has failed to point to any record evidence
demonstrating a genuine issue of material fact with regard to the
question of Hayhurst’s probable cause to bring the New Hampshire
defamation action, the question of Hayhurst’s alleged “malice”
becomes moot. If Hayhurst had probable cause to file the New
Hampshire defamation action, his subjective motivation for doing
so is immaterial. See, e.g., Stock v . Byers, 120 N.H. 8 4 4 , 848
(1980).
Moreover, even if AANP had pointed to evidence suggesting
the existence of a genuine dispute as to whether Hayhurst had
probable cause, it has failed to identify sufficient evidence to
17 permit a reasonable trier of fact to conclude that he was
motivated by malice. See generally MacRae v . Brant, 108 N.H.
177, 181 (1967) (holding that, in the context of a malicious
prosecution claim, “malice” exists “when the primary purpose in
instituting the [underlying] proceeding was not to bring an
offender to justice, but was, on the contrary, ill will, personal
hostility, or to obtain a personal advantage.”).
II. Count II - Conspiracy.
AANP bases its civil conspiracy claim on the assertion that
Hayhurst and others conspired to maliciously prosecute the New
Hampshire defamation proceeding against i t . To state a viable
claim for civil conspiracy, AANP must allege that two or more
persons agreed to achieve an unlawful objective (or a lawful
objective by unlawful means) and they took one or more unlawful
overt acts in furtherance of the conspiracy. See Jay Edwards,
Inc. v . Baker, 130 N.H. 4 1 , 47 (1987). Importantly, there is no
cause of action under New Hampshire law for conspiracy alone.
That is to say, “[f]or a civil conspiracy to exist, there must be
an underlying tort which the alleged conspirators agreed to
18 commit.” Univ. Sys. of New Hampshire v . U.S. Gypsum Co., 756 F.
Supp. 6 4 0 , 652 (D.N.H. 1991).
Because Hayhurst is entitled to judgment as a matter of law
with regard to AANP’s malicious prosecution claim, there is no
“underlying tort” upon which AANP might base its conspiracy
claim. Accordingly, Hayhurst is necessarily entitled to judgment
as a matter of law on that claim as well.
Conclusion
For the foregoing reasons, defendant Hayhurst’s motion for
summary judgment (document n o . 60) is granted. His motion to
dismiss (document n o . 91) is denied as moot. The Clerk of the
Court shall enter judgment in accordance with this order and
close the case.
SO ORDERED.
Steven J. McAuliffe United States District Judge
September 2 9 , 2000
cc: Robert A . Backus, Esq. Donald C . Hayhurst