BAL Global Finance v Gundersen

2016 DNH 222

• Court: District Court, D. New Hampshire
• Decided: December 19, 2016
• Docket: 16-cv-345-PB
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

BAL Global Finance, LLC

v. Civil No. 16-cv-345-PB Opinion No. 2016 DNH 222 Robert J. Gundersen

O R D E R

BAL Global Finance, LLC has sued Robert Gundersen for

breach of contract and an account stated based on a guarantee

Gundersen executed in connection with a commercial lease.

Gundersen argues in a motion to dismiss (doc. no. 7) that both

claims are barred by the applicable statute of limitations.

I. BACKGROUND

This case arises from a commercial equipment lease between

lessee Stump Disposal Systems, Inc. (“Stump”) and lessor Direct

Capital Corp. (“Direct”). The lease is dated January 4, 2005.

Gundersen guaranteed the lease for Stump on December 13, 2004.

Shortly after the lease was executed, Direct’s interest in the

lease and the guarantee were assigned to BAL’s predecessor,

Fleet Business Credit, LLC. Stump breached the lease on a date not specified in the

pleadings by failing to make required payments. BAL responded

with a complaint dated July 14, 2010, suing Stump and Gundersen

in Michigan state court. On December 21, 2010, BAL obtained a

default judgment against both defendants for $137,598.49.

BAL filed an action to collect on its default judgment in

New Hampshire state court on or about August 24, 2011. On

November 21, 2011, the court granted BAL’s motion for summary

judgment and ordered the Michigan judgment to be entered as a

judgment of the court. For several years thereafter, Gundersen

made minimal monthly payments on the judgment. In 2015,

however, Gundersen obtained a new lawyer who filed a motion to

dismiss for lack of subject matter jurisdiction. The basis for

the motion was Gundersen‘s contention that the New Hampshire

court lacked subject matter jurisdiction to enforce the Michigan

action because the Michigan court never properly obtained

personal jurisdiction over Gundersen. On April 1, 2016, the

state court granted Gundersen’s motion to dismiss.

BAL filed the current action in this court on July 28,

2016. The action reasserts the claims that BAL had originally

asserted in the Michigan state court action.

2 II. ANALYSIS

Gundersen argues that BAL’s claims are barred by the

applicable statute of limitations. BAL responds by claiming

that its claims are saved from the statute of limitations by

N.H. Rev. Stat. Ann. § 508.10 (“RSA 508:10”). RSA 508:10 states

that “[i]f judgment is rendered against the plaintiff in an

action brought within the time limited therefor, or upon a writ

of error thereon, and the right of action is not barred by the

judgment, a new action may be brought thereon in one year after

the judgment.”

Gundersen replies by arguing that RSA 508:10 has no bearing

on the present action. As he sees it, RSA 508:10 only permits a

plaintiff to bring a second suit reasserting the same claims

that were dismissed in the first action. Because the dismissed

New Hampshire action included only claims to enforce the

Michigan judgment rather than the underlying claims that the

Michigan judgment addressed, Gundersen argues, RSA 508:10 simply

does not apply to BAL’s attempt to reassert its contract rights

in a new action.

I am unpersuaded by Gundersen’s argument. N.H. Rev. Stat.

Ann. § 524-A:2 (“RSA 524-A:2”) provides that, when dealing with

a judgment obtained in another state,

[t]he clerk shall treat the foreign judgment in the same manner as a judgment of the district or superior court of this state. A judgment so filed has the same

3 effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying a judgment of a district or superior court of this state and may be enforced or satisfied in like manner.

Under this provision, the Michigan judgment must be treated

as if it had been entered in a New Hampshire court. If the

Michigan judgment had been obtained here and a state court

had later vacated the judgment on personal jurisdiction

grounds, RSA 508:10 plainly would entitle BAL to

reinstitute its underlying action within a year of the date

that the judgment was vacated. If the Michigan judgment is

treated as if it had been obtained here in the first

instance, as RSA 524-A:2 requires, it follows that RSA

508:10 protects BAL’s right to refile the underlying action

as long as it does so within a year of the date that the

underlying judgment was successfully attached.

Accordingly, BAL has timely filed its new action pursuant

to RSA 508:10.

Gundersen’s motion to dismiss (doc. no. 7) is denied.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

December 19, 2016

cc: Daniel Proctor, Esq. V. Richards Ward, Jr., Esq.