Cross v. Kenneth Anderson

2000 DNH 263

• Court: District Court, D. New Hampshire
• Decided: December 18, 2000
• Docket: CV-00-051-M
• Status: Published

Opinion

Cross v . Kenneth Anderson CV-00-051-M 12/18/00 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Denise Cross and Russell Cross, Plaintiffs

v. Civil N o . 00-051-M Opinion N o . 2000 DNH 263

Grafton County Attorney Kenneth Anderson, Esq.; State Trooper Robert Terhune; Town of Ashland Police Chief Cameron Brown; Richard Buckler; and William Tirone, Defendants

O R D E R

Plaintiffs brought seven counts against various defendants,

including William Tirone. The claims against Tirone are:

(1) defamation (Count V ) ; (2) negligent infliction of emotional

distress (Count V I ) ; (3) intentional infliction of emotional

distress (Count V I I ) ; and (4) loss of consortium (Count VIII).

Under Federal Rule of Civil Procedure 12(b)(6), Tirone moves to

dismiss all counts against him for failure to state a claim. For

the following reasons, Tirone’s motion to dismiss (document n o .

15) is granted in part and denied in part. Standard of Review

A motion to dismiss under Fed.R.Civ.P. 12(b)(6) is one of

limited inquiry, focusing not on "whether a plaintiff will

ultimately prevail but whether the claimant is entitled to offer

evidence to support the claims." Scheuer v . Rhodes, 416 U.S.

232, 236 (1974). In considering a motion to dismiss, "the

material facts alleged in the complaint are to be construed in

the light most favorable to the plaintiff and taken as admitted,

with dismissal to be ordered only if the plaintiff is not

entitled to relief under any set of facts he could prove."

Chasan v . Village District of Eastman, 572 F.Supp. 5 7 8 , 579

(D.N.H. 1983), aff'd without opinion, 745 F.2d 43 (1st Cir. 1984)

(citations omitted).

Relevant Facts

At the beginning of the 1996-97 school year, Denise Cross

began working as the food services director for Ashland

Elementary School. In June of 1997, the State Department of

Education advised the business administrator for SAU 2 that

Ashland Elementary School’s lunch program reports were overdue.

2 The business administrator contacted Mrs. Cross, who acknowledged

both that the reports were overdue and that the lunch program

funds were in a filing cabinet in the school kitchen. The

business administrator analyzed pertinent cash register receipts

and, after comparing them with the school lunch funds, concluded

that funds were missing. She reported her conclusions to

Defendant William Tirone, the Ashland Elementary School

principal. School officials contacted Ashland Police Chief

Cameron Brown, who in turn asked for assistance from the State

Police in conducting an investigation.

Denise Cross was terminated from her employment in August,

1997. Following her termination, Cross’s mother-in-law, who also

worked at Ashland Elementary School, contacted Tirone to discuss

the dismissal. Tirone allegedly told her that Denise Cross had

stolen money from the school, that it was apparent that this was

not the first time she had stolen money, and that the police

would arrest Cross in the near future.

Cross was later charged with theft by unauthorized taking,

in violation of N.H. Rev. Stat. Ann. § 637:3. Her trial began on

February 9, 1999, in the Grafton County Superior Court. The

3 trial judge directed a verdict of acquittal at the close of the

prosecution’s case.

Discussion

In this case, Cross alleges that Tirone defamed her and

caused her severe emotional distress. Russell Cross, Denise’s

husband, also brings a claim for loss of consortium. See N.H.

Rev. Stat. Ann. § 507:8-a. Tirone moves to dismiss all counts

(document n o . 1 5 ) .

Plaintiffs agree that Count VI (negligent infliction of

emotional distress) and Count VII (intentional infliction of

emotional distress) can be dismissed, so Tirone’s motion is

granted as to Counts VI and VII.

With respect to the defamation claim, Tirone interposes

qualified privileges. See Restatement (Second) of Torts §§ 595,

596, 597. Plaintiffs counter that New Hampshire does not

recognize the qualified privileges on which Tirone relies, and

that qualified privilege claims cannot support a motion to

dismiss.

4 Restatement (Second) of Torts § 597(2) describes a qualified

privilege applicable to defamatory statements made to a family

member. But, plaintiffs note that in Duchesnaye v . Munron

Enterprises, Inc., 125 N.H. 244 (1984), the New Hampshire Supreme

Court apparently declined to adopt the family member privilege

when it wrote that “plaintiff need not prove publication to a

group. . . . Publication to one person other than the plaintiff

is actionable. That one person may be a member of the

plaintiff’s family.” 125 N.H. at 253 (citations omitted).

Duchesnaye does not resolve the issue, however, because the court

was defining the concept of publication, not deciding whether New

Hampshire law recognizes a conditional family member privilege as

described in the Restatement. The court acknowledged that

qualified privileges are recognized in New Hampshire, but no

privilege was applicable in Duchesnaye because it had not been

shown that the speaker in that case has reasonable grounds to

believe the statements to be true, one of the elements of

qualified privileges. See 125 N.H. at 253-54. “A conditional

[or qualified] privilege . . . is established if the facts,

although untrue, were published on a lawful occasion, in good

5 faith, for a justifiable purpose, and with a belief, founded on

reasonable grounds of its truth.” Chagnon v . Union-Leader Corp.,

103 N.H. 426, 438 (1961) (emphasis added).

S o , although publication occurred when Tirone made the

statements in suit to Cross’s mother-in-law, his remarks could

still be protected by a privilege if made “on a lawful occasion,

in good faith, for a justifiable purpose, and with a belief,

founded on reasonable grounds of [their] truth.” See id.

Although the New Hampshire Supreme Court has not specifically

adopted § 597(2) of the Restatement, there is little reason to

think that § 597(2) would not be adopted, or a similar common law

privilege recognized.

However, while Duchesnaye lends little support to the

argument that New Hampshire has rejected a qualified privilege

for publication to a family member, the remaining claims against

Tirone still survive the motion to dismiss, without regard to

which asserted privilege is invoked, because “the question

whether the defendant is entitled to claim the privilege is one

for the trier of fact.” Pickering v . Frink, 123 N.H. 326, 329

(1983). “Such a factual determination should be made, at the

6 earliest, on a motion for summary judgment after the parties have

had an opportunity to support or refute the allegations in the

pleadings.” Id. at 331. (Since Tirone has moved to dismiss M r .

Cross’s loss of consortium claim based on an anticipated failure

of Denise’s claims, the loss of consortium claim also necessarily

survives the motion to dismiss.)

Conclusion

For the foregoing reasons, Defendant Tirone’s Motion to

Dismiss (document n o . 15) is granted with respect to Counts VI

and VII and denied with respect to Counts V and VIII.

SO ORDERED.

Steven J. McAuliffe United States District Judge

December 1 8 , 2000

cc: David P. Slawsky, Esq. Charles P. Bauer, Esq. Andrew B . Liverois, Esq. Brian T . McDonough, Esq. Diane M . Gorrow, Esq.