UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Brett A. Currier & Brenda L. Currier
v. Civil No. 18-cv-1204-LM Opinion No. 2022 DNH 131P Town of Gilmanton & Marshal Bishop
ORDER
Plaintiffs Brett and Brenda Currier sued defendants the Town of Gilmanton
and Marshall Bishop, alleging defamation, violation of RSA 91-A, New Hampshire’s
Right-to-Know Law, and violation of the First Amendment. Defendants moved for
summary judgment on all claims against them, and the court granted the motion as
to all claims except for First Amendment retaliation. Doc. no. 47. The Curriers now
move for partial reconsideration of the court’s order. Doc. no. 50.
To prevail on a motion to reconsider the moving party must show “that the
order was based on a manifest error of fact or law . . . .” L.R. 7.2(d); Palmer v.
Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006). After carefully reviewing the
Curriers’ motion, the court concludes that they have failed to show that the order
was based on manifest errors of fact or law, with one exception related to alleged
defamatory statements in a letter Bishop sent to the New Hampshire Attorney
General. Nevertheless, the court grants summary judgment with respect to these
statements on alternative grounds. Accordingly, the court denies the Curriers’
motion to reconsider. BACKGROUND
The court recounted the lengthy factual background in detail in its original
order, and only briefly recounts the facts relevant to the instant order here. Bishop
owns the Gilmanton Winery & Vineyard. In March 2016, he defeated Brett in a
Gilmanton Board of Selectmen election. After that date, the relationship between
the Curriers, Bishop, and other officials in the Town of Gilmanton quickly soured.
On July 13, 2016, Bishop sent a letter to the New Hampshire Attorney
General using Gilmanton Winery & Vineyard letterhead and copying Gilmanton
Town Administrator Paul Branscombe. In the letter, Bishop sought the Attorney
General’s advice on how to respond to what he viewed as the Curriers’ threats to his
livelihood and misuse of RSA 91-A to harass him. He offered several examples.
First, he recounted an interaction between himself and Brett at his winery in early
May 2016 where Brett told him that he should be careful in his role as a public
official because the Town did not have enough insurance to cover his personal
liabilities.
Second, he recounted an interaction between himself and Brenda after a
Board of Selectmen meeting in mid-May 2016. He stated that during this
conversation Brenda told him to remove signs advertising the winery from property
she owned and that had formerly been her mother’s. He further stated that Brenda
was upset because she felt the Board of Selectmen had unfairly terminated her
friend. According to the letter, Brenda informed Bishop that because he had taken
away her friend’s livelihood, she would take away his livelihood. Finally, Bishop
stated that the Curriers had filed complaints and RSA 91-A requests with several 2 state and local government entities regarding the winery’s compliance with various
regulations and permitting requirements.
It is undisputed that members of the public subsequently obtained copies of
this letter. Defendants dispute, however, that either Bishop or Branscombe
distributed the letter to the public. In his deposition testimony, Bishop
acknowledged that members of the public received copies of the letter but stated
that no one knew how this happened.
For their part, the Curriers do not dispute that they sought information
about the winery from public entities, including by filing RSA 91-A requests.
Moreover, the Curriers do not dispute that their respective conversations with
Bishop referenced in the letter occurred. Nor do the Curriers dispute that, during
the conversation between Brett and Bishop, Brett warned Bishop to be careful
about exposing himself to personal liability. With respect to the conversation
between Brenda and Bishop, however, the Curriers maintain that she did not
threaten his livelihood; she merely informed him that he needed to remove the signs
because her mother did not want to support his livelihood after the harm he caused
to her friend’s.
The Curriers allege that Bishop’s statements in the letter that the Curriers
were threatening his livelihood and misusing RSA 91-A to harass him were
defamatory because, they contend, neither their statements nor actions constituted
threats to his livelihood or misuse of RSA 91-A. They further contend that Bishop
3 and the Town may be liable for the defamatory statements in the letter because
either Bishop or Branscombe publicly distributed the letter.
In their motion for summary judgment, defendants argued that the court
should grant judgment with respect to the alleged defamation in this letter for two
reasons. First, they argued that the statements in the letter were protected by the
absolute immunity from defamation afforded to statements made in the course of
judicial proceedings. Second, they argued that the allegedly defamatory statements
in the letter were non-actionable opinions.
Because it was dispositive, the court solely addressed whether defendants
were entitled to immunity. Under New Hampshire law, statements made in the
course of judicial proceedings, including those preliminary to proceedings such as a
complaint to prosecutors, are subject to an absolute immunity from defamation
claims. See McGranahan v. Dahar, 119 N.H. 758, 762-63 (1979); 2 Law of
Defamation § 8:5 (2d ed.). That immunity does not apply, however, where
defendants subsequently republish the statements outside of the judicial
proceedings. 2 Law of Defamation § 8:17 (2d ed.). In its order, the court found that
because Bishop made these statements to a prosecuting authority, the New
Hampshire Attorney General, the immunity for statements made during judicial
proceedings applied. The court acknowledged the Curriers’ contention that Bishop
or Branscombe publicly distributed the letter after sending it to the Attorney
General. But the court found this did not bar summary judgment because there
was no evidence that Bishop or Branscombe publicly distributed the letter, relying
4 in part on Bishop’s deposition testimony that he did not release the letter and that
he did not know how it became public.
DISCUSSION
The Curriers move for reconsideration of that finding, arguing that, viewing
the facts in their favor, there was a reasonable inference that Bishop or Branscombe
publicly distributed the letter despite the lack of direct evidence. Upon
reconsideration, the court agrees with the Curriers. From the record, Bishop,
Branscombe, and the New Hampshire Attorney General’s Office were the only
parties in possession of the letter. Based on the circumstances of this case,
particularly the parties’ acrimonious relationship, a reasonable factfinder could
conclude that either Bishop or Branscombe released the letter to the public. See
Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108, 115 (1st Cir. 2013) (holding that,
when ruling on a motion for summary judgment, district courts must construe all
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Brett A. Currier & Brenda L. Currier
v. Civil No. 18-cv-1204-LM Opinion No. 2022 DNH 131P Town of Gilmanton & Marshal Bishop
ORDER
Plaintiffs Brett and Brenda Currier sued defendants the Town of Gilmanton
and Marshall Bishop, alleging defamation, violation of RSA 91-A, New Hampshire’s
Right-to-Know Law, and violation of the First Amendment. Defendants moved for
summary judgment on all claims against them, and the court granted the motion as
to all claims except for First Amendment retaliation. Doc. no. 47. The Curriers now
move for partial reconsideration of the court’s order. Doc. no. 50.
To prevail on a motion to reconsider the moving party must show “that the
order was based on a manifest error of fact or law . . . .” L.R. 7.2(d); Palmer v.
Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006). After carefully reviewing the
Curriers’ motion, the court concludes that they have failed to show that the order
was based on manifest errors of fact or law, with one exception related to alleged
defamatory statements in a letter Bishop sent to the New Hampshire Attorney
General. Nevertheless, the court grants summary judgment with respect to these
statements on alternative grounds. Accordingly, the court denies the Curriers’
motion to reconsider. BACKGROUND
The court recounted the lengthy factual background in detail in its original
order, and only briefly recounts the facts relevant to the instant order here. Bishop
owns the Gilmanton Winery & Vineyard. In March 2016, he defeated Brett in a
Gilmanton Board of Selectmen election. After that date, the relationship between
the Curriers, Bishop, and other officials in the Town of Gilmanton quickly soured.
On July 13, 2016, Bishop sent a letter to the New Hampshire Attorney
General using Gilmanton Winery & Vineyard letterhead and copying Gilmanton
Town Administrator Paul Branscombe. In the letter, Bishop sought the Attorney
General’s advice on how to respond to what he viewed as the Curriers’ threats to his
livelihood and misuse of RSA 91-A to harass him. He offered several examples.
First, he recounted an interaction between himself and Brett at his winery in early
May 2016 where Brett told him that he should be careful in his role as a public
official because the Town did not have enough insurance to cover his personal
liabilities.
Second, he recounted an interaction between himself and Brenda after a
Board of Selectmen meeting in mid-May 2016. He stated that during this
conversation Brenda told him to remove signs advertising the winery from property
she owned and that had formerly been her mother’s. He further stated that Brenda
was upset because she felt the Board of Selectmen had unfairly terminated her
friend. According to the letter, Brenda informed Bishop that because he had taken
away her friend’s livelihood, she would take away his livelihood. Finally, Bishop
stated that the Curriers had filed complaints and RSA 91-A requests with several 2 state and local government entities regarding the winery’s compliance with various
regulations and permitting requirements.
It is undisputed that members of the public subsequently obtained copies of
this letter. Defendants dispute, however, that either Bishop or Branscombe
distributed the letter to the public. In his deposition testimony, Bishop
acknowledged that members of the public received copies of the letter but stated
that no one knew how this happened.
For their part, the Curriers do not dispute that they sought information
about the winery from public entities, including by filing RSA 91-A requests.
Moreover, the Curriers do not dispute that their respective conversations with
Bishop referenced in the letter occurred. Nor do the Curriers dispute that, during
the conversation between Brett and Bishop, Brett warned Bishop to be careful
about exposing himself to personal liability. With respect to the conversation
between Brenda and Bishop, however, the Curriers maintain that she did not
threaten his livelihood; she merely informed him that he needed to remove the signs
because her mother did not want to support his livelihood after the harm he caused
to her friend’s.
The Curriers allege that Bishop’s statements in the letter that the Curriers
were threatening his livelihood and misusing RSA 91-A to harass him were
defamatory because, they contend, neither their statements nor actions constituted
threats to his livelihood or misuse of RSA 91-A. They further contend that Bishop
3 and the Town may be liable for the defamatory statements in the letter because
either Bishop or Branscombe publicly distributed the letter.
In their motion for summary judgment, defendants argued that the court
should grant judgment with respect to the alleged defamation in this letter for two
reasons. First, they argued that the statements in the letter were protected by the
absolute immunity from defamation afforded to statements made in the course of
judicial proceedings. Second, they argued that the allegedly defamatory statements
in the letter were non-actionable opinions.
Because it was dispositive, the court solely addressed whether defendants
were entitled to immunity. Under New Hampshire law, statements made in the
course of judicial proceedings, including those preliminary to proceedings such as a
complaint to prosecutors, are subject to an absolute immunity from defamation
claims. See McGranahan v. Dahar, 119 N.H. 758, 762-63 (1979); 2 Law of
Defamation § 8:5 (2d ed.). That immunity does not apply, however, where
defendants subsequently republish the statements outside of the judicial
proceedings. 2 Law of Defamation § 8:17 (2d ed.). In its order, the court found that
because Bishop made these statements to a prosecuting authority, the New
Hampshire Attorney General, the immunity for statements made during judicial
proceedings applied. The court acknowledged the Curriers’ contention that Bishop
or Branscombe publicly distributed the letter after sending it to the Attorney
General. But the court found this did not bar summary judgment because there
was no evidence that Bishop or Branscombe publicly distributed the letter, relying
4 in part on Bishop’s deposition testimony that he did not release the letter and that
he did not know how it became public.
DISCUSSION
The Curriers move for reconsideration of that finding, arguing that, viewing
the facts in their favor, there was a reasonable inference that Bishop or Branscombe
publicly distributed the letter despite the lack of direct evidence. Upon
reconsideration, the court agrees with the Curriers. From the record, Bishop,
Branscombe, and the New Hampshire Attorney General’s Office were the only
parties in possession of the letter. Based on the circumstances of this case,
particularly the parties’ acrimonious relationship, a reasonable factfinder could
conclude that either Bishop or Branscombe released the letter to the public. See
Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108, 115 (1st Cir. 2013) (holding that,
when ruling on a motion for summary judgment, district courts must construe all
facts and make all reasonable inferences in favor of the nonmoving party).
If a jury found that either Bishop or Branscombe publicly released the letter,
the immunity for judicial proceedings would not apply, and either Bishop or the
Town could be liable for the allegedly defamatory statements. 2 Law of Defamation
§ 8:17 (2d ed.). Therefore, the court must now consider defendants’ alternative
basis for summary judgment: that the statements in the letter were nonactionable
statements of opinion based on disclosed facts.
Under New Hampshire law, a “plaintiff proves defamation by showing that
the defendant failed to exercise reasonable care in publishing a false and
5 defamatory statement of fact about the plaintiff to a third party.” Pierson v.
Hubbard, 147 N.H. 760, 763 (2002). To be “true,” a statement only needs to be
“substantially true,” which does not require that every detail in the statement be
accurate. Boyle v. Dwyer, 172 N.H. 548, 554 (2019). Rather, a statement is
“substantially true” if the substance or “gist or sting” of the statement is justified.
Id. Although the substantial truth of a statement is normally one of fact for the
jury, a court may decide the issue as a matter of law when the “underlying facts as
to the gist or sting” are undisputed. Id.
In addition, the First Amendment to the United States Constitution imposes
certain restraints on state defamation law, including that only statements that
present or imply the existence of facts that can be proven true or false can be
actionable as defamation. Gray v. St. Martin's Press, Inc., 221 F.3d 243, 247 (1st
Cir. 2000); see also Thomas v. Tel. Publ'g Co., 155 N.H. 314, 338 (2007). That said,
an opinion statement may still be actionable when it implies the existence of
undisclosed factual statements that are themselves defamatory. Gray, 221 F.3d at
248. The determination of whether a statement relates to a verifiable fact or a
subjective opinion is one ordinarily decided by judges as a matter of law. Id.;
Thomas, 155 N.H. at 338.
Here, the allegedly defamatory statements in the letter—that the Curriers
were threatening Bishop’s livelihood and misusing RSA 91-A—were Bishop’s
opinions about the Curriers’ actions based on non-defamatory facts he disclosed in
the letter. While they dispute his characterization of their actions, the Curriers do
6 not materially dispute the underlying events on which he bases his opinions. For
example, they do not dispute that they filed requests under RSA 91-A or that Brett
warned Bishop about exposure to personal liability at the winery.
The one instance in which the Curriers present potentially contradictory
evidence about the underlying facts relates to the discussion between Brenda and
Bishop after the Board of Selectmen meeting in May 2016. According to the letter,
Brenda told Bishop she would take away his livelihood. According to Brenda, she
merely told Bishop to remove the signs from her property because her mother did
not want to support his livelihood. This is not enough to support a defamation
claim. As an initial matter, the letter explained the undisputed context in which
Brenda made these statements, i.e., her demand that he remove the sign
advertising his winery from her property. And, assuming Brenda’s version of the
conversation is true, her statement reasonably implied that her purpose in
removing the sign was to affect the winery’s business. Even assuming Bishop
slightly misstated her comments, the minor discrepancy in their versions of the
conversation does not create a question of material fact as to whether his statement
was false or whether Bishop (or Branscombe) “failed to exercise reasonable care” in
making the statement or republishing the letter, both of which are required to prove
defamation. Pierson, 147 N.H. at 763; see also Boyle, 172 N.H. at 554 (holding that
minor inaccuracies in a statement do not make it false as long as the substance,
gist, or sting of the statement is correct).
7 Moreover, as the court concluded in its original order, the Curriers were
limited purpose public figures with respect to the winery dispute. Therefore,
statements about them would not be defamatory unless they met the “actual
malice” threshold—which requires that the defendant either knowingly or
recklessly make the false statements. Lluberes v. Uncommon Prods., LLC, 663 F.3d
6, 12 (1st Cir. 2011). Actual malice must be shown through the higher clear and
convincing evidence standard. Masson v. New Yorker Magazine, 501 U.S. 496, 510
(1991). Reading the facts as generously as possible in the Curriers’ favor, the minor
difference between Bishop’s and Brenda’s accounts of their conversation does not
support an inference that Bishop (or Branscombe) knowingly or recklessly
republished a letter containing false statements. At the very least, Bishop’s version
was a reasonable interpretation of Brenda’s comments, and there is no evidence—
never mind the clear and convincing evidence needed to prove actual malice—that
either Bishop or Branscombe doubted this interpretation when they allegedly
republished the letter. See Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S.
485, 511 (1984) (“Judges, as expositors of the Constitution, must independently
decide whether the evidence in the record is sufficient to cross the constitutional
threshold that bars the entry of any judgment that is not supported by clear and
convincing proof of ‘actual malice.’”).
Accordingly, these statements were not defamatory and both Bishop and the
Town are entitled to summary judgment. As the Curriers have otherwise failed to
8 show that the original order was premised on manifest errors of fact or law, there is
no basis for the court to reconsider the original order.
CONCLUSION
The court denies the Curriers’ motion for reconsideration (doc. no. 50).
SO ORDERED.
__________________________ Landya McCafferty United States District Judge October 20, 2022
cc: Counsel of Record