Brett A. Currier and Brenda L. Currier v. Town of Gilmanton, et al.

2020 DNH 064

• Court: District Court, D. New Hampshire
• Decided: June 5, 2020
• Docket: 18-cv-1204-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Brett A. Currier and Brenda L. Currier

v. Civil No. 18-cv-1204-LM Opinion No. 2020 DNH 064 Town of Gilmanton, et al.

O R D E R

Brett and Brenda Currier bring this suit against the Town

of Gilmanton (“Town”) and Marshall Bishop, who is a current

member of the Town Board of Selectmen. Plaintiffs assert

against both defendants claims of defamation, violation of New

Hampshire’s Right-To-Know Law, and violation of their free

speech rights under the federal and state constitutions.

Defendants previously moved to dismiss the complaint for failure

to comply with Federal Rule of Civil Procedure 8(a)’s “short and

plain statement” requirement. The court granted defendants’

motion to dismiss but gave plaintiffs leave to file an amended

complaint, which plaintiffs timely filed. Defendants now move

to dismiss the amended complaint, arguing that it still fails to

adhere to the Rule 8(a) standard.

STANDARD OF REVIEW

Rule 8(a)(2) provides that a complaint “must contain . . .

a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule

8(d) also requires that each allegation in the complaint be

“simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1); see

also Fed. R. Civ. P. 10(b) (requiring each numbered paragraph to

be “limited as far as practicable to a single set of

circumstances”). “The purpose of a clear and succinct pleading

is to give a defendant fair notice of the claim and its basis as

well as to provide an opportunity for a cogent answer and

defense.” Belanger v. BNY Mellon Asset Mgmt., LLC, 307 F.R.D.

55, 57 (D. Mass. 2015); see also Calvi v. Knox County, 470 F.3d

422, 430 (1st Cir. 2006). Indeed, while a complaint must

contain enough facts “to state a claim to relief that is

plausible on its face,” it need not include “detailed factual

allegations.” Goldstein v. Galvin, 719 F.3d 16, 29 (1st Cir.

2013) (internal quotation marks omitted).

A district court has broad discretion to dismiss a

complaint that fails to comply with Rule 8’s “short and plain

statement” requirement. Kuehl v. F.D.I.C., 8 F.3d 905, 908, 909

(1st Cir. 1993). Dismissal for noncompliance with Rule 8 is

typically “reserved for those cases in which the complaint is so

confused, ambiguous, vague, or otherwise unintelligible that its

true substance, if any, is well disguised.” Sayied v. White, 89

2 Fed. App’x 284, 2004 WL 489060, at *1 (1st Cir. 2004) (internal

quotation marks omitted).

In evaluating whether a pleading meets Rule 8’s “short and

plain statement” requirement, the court should consider “the

nature of the action, the relief sought and a number of other

pragmatic matters.” Carney v. Town of Weare, No. 15-CV-291-LM,

2016 WL 320128, at *4 (D.N.H. Jan. 26, 2016) (internal quotation

marks and ellipsis omitted).

BACKGROUND

The following facts are drawn from the amended complaint.

Plaintiffs are life-long residents of Gilmanton and active

participants in local government. In 2016, Mr. Currier lost his

campaign for reelection to the Town Board of Selectmen (“Board”)

and defendant Marshall Bishop was elected to the Board. Between

2016 and the filing of this suit in 2018, plaintiffs publicly

criticized the Board on many occasions, filed numerous Right-To-

Know requests with the Town, and made inquiries to state

agencies about whether Bishop had acquired the proper permits

for his business, Gilmanton Winery and Vineyard. Plaintiffs

claim that defendants retaliated against them for this protected

conduct by defaming them, harassing them, and refusing to

appropriately respond to their Right-To-Know requests.

3 In December 2018, plaintiffs filed their original

complaint. It had 60 pages and 291 numbered paragraphs.

Defendants moved to dismiss for failure to comply with the

“short and plain statement” mandate of Rule 8(a). The court

agreed; it granted defendants’ motion to dismiss but also

granted plaintiffs leave to amend.

In October 2019, plaintiffs filed an amended complaint

asserting four claims: (I) defamation; (II) violation of New

Hampshire’s Right-To-Know Law, New Hampshire Revised Statutes

Annotated (“RSA”) chapter 91-A; (III) a free speech claim under

42 U.S.C. § 1983 and the First Amendment to the United States

Constitution; and (IV) a free speech claim under Part I, Article

22 of the New Hampshire Constitution. Defendants now move to

dismiss a second time. They argue again that the amended

complaint—which spans 51 pages and 285 numbered paragraphs—

fails to comply with Rule 8(a).

DISCUSSION

In the court’s order on defendants’ first motion to

dismiss, the court identified two primary faults of the

complaint. See doc. no. 18. First, it was unnecessarily

lengthy given the nature of the action. And second, the counts

asserted failed to identify with specificity which factual

4 allegations supported which count or counts. The court has

carefully reviewed the amended complaint. Plaintiffs have not

cured the first problem: the amended complaint, like the first

complaint, is poorly drafted and is far too lengthy. However,

with respect to the second defect, the amended complaint does a

reasonable job of curing that problem.

I. Fair Notice of Bases of Each Claim

The court will begin by addressing whether the amended

complaint provides defendants fair notice of the claims

asserted, identifies the facts that each claim is premised on,

and enables defendants to coherently answer. See Calvi, 470

F.3d at 430; Belanger, 307 F.R.D. at 57. As explained in the

court’s prior order, the complaint asserted four claims, but did

not specifically identify which of the general factual

allegations supported each claim. Instead, each count vaguely

referred back to the general factual allegations, putting the

onus on defendants and the court to divine which facts each

count relied upon. In other words, the complaint gave

defendants notice of plaintiffs’ claims but failed to provide

notice of the factual bases for each claim.

Plaintiffs have cured this deficiency. Each count in the

amended complaint is supported by specific facts. And, in many

5 instances, the factual allegations supporting the claim include

a citation to previous paragraphs in the amended complaint that

provide a further factual basis for the claim.

For example, in support of the defamation claim, count I,

plaintiffs list twenty-six alleged defamatory acts. See doc.

no. 21 at ¶¶ 244-46. One specific alleged defamatory act is the

Town Administrator’s June 21, 2016 email to the Belknap County

Attorney. Id. at ¶ 244, B. The paragraph identifying this

factual basis cites to paragraph 51. Id. Paragraph 51 explains

that the Town Administrator sent an email to the Belknap County

Attorney on that date that stated: “We need the County Attorney

to review a situation here in Town where a Selectman is being

harassed by a resident – the wife of the chap who lost in the

running last March.” Id. at ¶ 51. Read together, these

paragraphs give defendants notice of one of the factual grounds

for plaintiffs’ defamation claim. This form of pleading, though

not ideal, is sufficient to put defendants on notice of the

factual allegations underlying plaintiffs’ defamation claim.

The same can be said of plaintiffs’ Right-To-Know and free

speech claims. Each of those claims sets out the many factual

grounds upon which it rests. The Right-To-Know claim identifies

sixteen alleged violations and the free speech claims identify

at least fifteen protected acts of speech and twenty purported

6 acts of retaliation. See doc. no. 21 at ¶¶ 259-62, 268-72.

Thus, the amended complaint provides defendants adequate notice

of plaintiffs’ claims and the alleged factual predicates for

those claims.

Defendants argue that plaintiffs’ allegations supporting

each claim in the amended complaint are “confusing,” “vague,”

and “problematic.” Doc. no. 22 at 5, 8. Most of defendants’

criticisms, however, relate to whether the amended complaint

properly states claims for relief, not whether the amended

complaint puts defendants on notice of plaintiffs’ claims and

their underlying facts as required by Rule 8(a).

By way of example, defendants take issue with one specific

ground for plaintiffs’ Right-To-Know claim detailed in paragraph

36. See doc. no. 22 at 6. Plaintiffs allege under their Right-

To-Know claim that “[o]n or about May 20, [2016] Mrs. Currier

made a [Right-To-Know] request, which mostly went unanswered.”

Doc. no. 21 at ¶ 261, B (citing ¶ 36). Paragraph 36 then

explains that Mrs. Currier’s Right-To-Know request of that date

sought “employees’ job descriptions, department head salary

research [the Town Administrator] had referred to and research

surrounding 10% budget cuts.” Id. at ¶ 36. The amended

complaint then alleges that “Mrs. Currier was only given some

7 job descriptions but has never received the other information,

and therefore presumes it did not in fact exist.” Id.

Defendants argue that if the other requested documents did

not exist, as plaintiffs allege, then there can be no Right-To-

Know violation. While that may prove true, that argument goes

to whether plaintiffs have stated a claim for relief—not whether

defendants have adequate notice of the claim. See Wynder v.

McMahon, 360 F.3d 73, 80 (2d Cir. 2004) (“[T]here is a critical

distinction between the notice requirements of Rule 8(a) and the

requirement, under Rule 12(b)(6), that a plaintiff state a claim

upon which relief can be granted.”). Defendants can test

whether plaintiffs have sufficiently stated claims upon which

relief can be granted in a properly filed motion to dismiss

under Rule 12(b)(6). See id. For now, these allegations put

defendants on notice that plaintiffs’ Right-To-Know claim is

based in part on the allegation that Mrs. Currier did not

receive all the documents she sought through her May 20, 2016

Right-To-Know request.

In sum, while far from a model of clarity, the amended

complaint provides defendants with notice of plaintiffs’ claims

and the grounds on which they rest, thereby satisfying the

purpose of Rule 8(a).

8 II. Length

The court’s second concern about the original complaint was

that it was unnecessarily long given the nature of the action.

The amended complaint clarifies the nature of this action

because it, unlike the complaint, specifies the factual bases

for each claim. Although the court continues to find that this

suit is not overly complex, it now understands just how many

instances of defendants’ unlawful conduct plaintiffs allege.

Specifically, the amended complaint alleges twenty-six

defamatory acts, sixteen alleged violations of the Right-To-Know

Law, and twenty alleged acts of retaliation for plaintiffs’

exercise of their speech rights. The court, at this stage of

the proceedings, takes no position on the viability of the

various grounds for plaintiffs’ claims. But the sheer volume of

the factual grounds for plaintiffs’ claims explains, to some

extent, the length of the amended complaint.

Despite the volume of plaintiffs’ allegations, they have

shortened the amended complaint and improved upon the other

pleading issues the court identified. Plaintiffs removed the

irrelevant and inflammatory factual allegations identified by

the court in its prior order. As a result, the amended

complaint is nine pages shorter than the complaint, even though

9 plaintiffs added material to each of the counts in their effort

to cure the notice deficiency of the complaint discussed above.

Further, plaintiffs have revised the amended complaint in

ways that make it possible for defendants to meaningfully

answer. The average length of each paragraph in the amended

complaint is shorter than in the complaint and, for the most

part, each paragraph is limited to a single set of

circumstances. See Fed. R. Civ. P. 10(b). Plaintiffs also

reworked the paragraphs from the complaint that had multiple

unnumbered subparagraphs so that those assertions are now broken

up into separately numbered paragraphs. The court acknowledges

that some paragraphs have multiple subparagraphs, particularly

those listing the factual grounds for each claim. See, e.g.,

doc. no. 21 at ¶¶ 244-45, 261. But those subparagraphs are

“numbered” in the sense that they are demarcated with letters

(A, B, C, and so on). This structure enables defendants to

coherently answer each allegation. See Fed. R. Civ. P. 8(b).

To be sure, the amended complaint, like the complaint,

contains some irrelevant factual allegations. Plaintiffs did

not go as far as they could have in removing extraneous

material. But the inclusion of some unnecessary allegations

does not warrant a dismissal. See Chalifoux v. Chalifoux, No.

14-CV-136-SM, 2014 WL 1681626, at *1 (D.N.H. Apr. 25, 2014)

10 (explaining that verbosity and length alone are generally not

sufficient grounds for dismissal, but that length and verbosity

that make the complaint difficult to comprehend may warrant

dismissal). Although not a model of brevity or simplicity, the

amended complaint meets the Rule 8(a) standard: it provides

defendants notice of the claims lodged against them, gives

notice of the factual bases for those claims, and is organized

in a format that permits defendants to prepare an answer.

CONCLUSION

For the foregoing reasons, defendants’ motion to dismiss

(doc. no. 22) is denied. Defendants must file an answer or a

motion to dismiss under Rule 12 within 45 days, on or before

June 5, 2020.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

April 21, 2020

cc: Counsel of Record