Decker v. Decker, et al. CV-96-424-M 02/17/98 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Marshall N. Decker
v. Civil No. 96-424-M
David R. Decker; Duncan Farmer; Robert Stinson; Normandin, Cheney & O'Neil, P.A.; Decker, Fitzgerald & Sessler, P.A.; a/k/a Fitzgerald & Sessler, P.A.
O R D E R
Pro se plaintiff, Marshall Decker, filed the present action
against his brother, David Decker, and other defendants,
following state court litigation arising out of a failed business
relationship between Marshall and David. Marshall asserts claims
for abuse of process, malicious prosecution, and conspiracy.
Defendants move for summary judgment1 on all claims, and for the
reasons that follow, those motions are granted.
Standard of Review
Summary judgment is appropriate if the "pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
1Although David Decker's motion is captioned as a motion to dismiss, he attaches his own affidavit in support of his motion, and Marshall Decker has responded to all three motions simultaneously with an appendix of supporting materials. Because both parties rely on matters outside of the pleadings, the motion shall be treated as one for summary judgment. See Fed. R. Civ. P. 12 (b) . is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(c). The moving party first must show the absence of a genuine
issue of material fact for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986). If that burden is met, the
opposing party can avoid summary judgment on issues that it must
prove at trial only by providing properly supported evidence of
disputed material facts that would reguire trial. Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986) . The court interprets the
record in the light most favorable to the nonmoving party and
resolves all inferences in its favor. Saenger Organization v.
Nationwide Ins. Assoc., 119 F.3d 55, 57 (1st Cir. 1997) . Thus,
summary judgment will be granted if the record shows no
trialworthy factual issue and if the moving party is entitled to
judgment as a matter of law. EEOC v. Green, 76 F.3d 19, 23 (1st
Cir. 1996).
Background
In 1986, David Decker brought suit against his brother,
Marshall, to recover his disputed interest in a manufactured
housing site ("CFV") developed by Marshall's company, JED. See
Decker v. Decker, 139 N.H. 588, 590 (1995). "The trial court
determined that David Decker owned a ten percent eguity interest
in CFV, awarded him damages of $100,000 less $30,000 for payments
the defendants made on his note, awarded him $15,000 in
accounting fees, and made a series of orders directed at
protecting David Decker's ten percent eguity interest and share
2 of profits thereafter." Id. Marshall appealed the trial court's
judgment. The New Hampshire Supreme Court affirmed the trial
court's decision that David retained his ten percent equity
interest in CFV, but reversed and remanded the damages award and
orders to protect David's interest, directing the trial court to
recalculate damages and protective measures based on "a proper
accounting and consideration of CFV's finances." Id. at 91.
On remand, the trial court adjusted the damages awarded to David,
and reconsidered the protective measures in light of the fact
that Marshall's ex-wife then controlled CFV. See Decker v.
Decker, No. E-86-0128 (N.H. Superior C t . Sept. 14 and Oct. 5,
1995). No record of a further appeal has been filed here.
Marshall Decker, proceeding pro se, filed suit against his
brother, David, in this court in August 1996; David's former law
firm, Fitzgerald and Sessler, P.A.; the lawyer who represented
David in the state court litigation, Duncan Farmer; Farmer's law
firm, Normandin, Cheney, and O'Neil, P.A.; and the accountant who
testified in the state court litigation on behalf of David,
Robert Stinson. Marshall's complaint, as clarified by amendment,
alleged claims of malicious prosecution, abuse of process, and
conspiracy.2
2David previously filed a motion to dismiss the conspiracy count, which was granted.
3 Discussion
Defendants now move for summary judgment on grounds that
Marshall's claims are barred by the doctrine of res judicata and
otherwise are without merit, based on the undisputed facts.
A. Malicious Prosecution
Marshall alleges that David's state litigation against him
constituted malicious prosecution--that David brought the suit
after threatening Marshall that he would sue him if Marshall did
not pay David a sum of money by November 1, 1986. "A successful
action for malicious prosecution reguires 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 (1993). David, not Marshall,
prevailed. David obtained judgment in his favor in the state
court proceeding, which judgment was modified, but not reversed,
following appeal. Based on the record presented, David remains
the prevailing party.
Marshall attempts to explain away his failure to prevail in
the state case by assigning error to the state trial judge. In
essence, Marshall asks this court to reconsider the evidence
presented in the state proceeding, apply the legal definitions he
suggests, and find, contrary to the result in state court, that
he did not "convert" money owed to David. Marshall presents no
trialworthy issue.
4 Federal courts, other than the Supreme Court, lack
jurisdiction to directly review state court decisions. See
District of Columbia of Appeals v. Feldman, 460 U.S. 462, 476
(1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16
(1923). Accordingly, district courts may not consider arguments
or claims that are "inextricably intertwined" with the state
court decision. Feldman, 460 U.S. at 476. Federal claims are
inextricably intertwined with state court proceedings (even if
precisely the same claims were not raised previously in state
litigation) if the party had an opportunity to raise those claims
and if resolution of the claims in federal court would
effectively provide a form of federal appellate review of the
state court's decision. See Pennzoil Co. v. Texaco, 481 U.S. 1,
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Decker v. Decker, et al. CV-96-424-M 02/17/98 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Marshall N. Decker
v. Civil No. 96-424-M
David R. Decker; Duncan Farmer; Robert Stinson; Normandin, Cheney & O'Neil, P.A.; Decker, Fitzgerald & Sessler, P.A.; a/k/a Fitzgerald & Sessler, P.A.
O R D E R
Pro se plaintiff, Marshall Decker, filed the present action
against his brother, David Decker, and other defendants,
following state court litigation arising out of a failed business
relationship between Marshall and David. Marshall asserts claims
for abuse of process, malicious prosecution, and conspiracy.
Defendants move for summary judgment1 on all claims, and for the
reasons that follow, those motions are granted.
Standard of Review
Summary judgment is appropriate if the "pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
1Although David Decker's motion is captioned as a motion to dismiss, he attaches his own affidavit in support of his motion, and Marshall Decker has responded to all three motions simultaneously with an appendix of supporting materials. Because both parties rely on matters outside of the pleadings, the motion shall be treated as one for summary judgment. See Fed. R. Civ. P. 12 (b) . is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(c). The moving party first must show the absence of a genuine
issue of material fact for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986). If that burden is met, the
opposing party can avoid summary judgment on issues that it must
prove at trial only by providing properly supported evidence of
disputed material facts that would reguire trial. Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986) . The court interprets the
record in the light most favorable to the nonmoving party and
resolves all inferences in its favor. Saenger Organization v.
Nationwide Ins. Assoc., 119 F.3d 55, 57 (1st Cir. 1997) . Thus,
summary judgment will be granted if the record shows no
trialworthy factual issue and if the moving party is entitled to
judgment as a matter of law. EEOC v. Green, 76 F.3d 19, 23 (1st
Cir. 1996).
Background
In 1986, David Decker brought suit against his brother,
Marshall, to recover his disputed interest in a manufactured
housing site ("CFV") developed by Marshall's company, JED. See
Decker v. Decker, 139 N.H. 588, 590 (1995). "The trial court
determined that David Decker owned a ten percent eguity interest
in CFV, awarded him damages of $100,000 less $30,000 for payments
the defendants made on his note, awarded him $15,000 in
accounting fees, and made a series of orders directed at
protecting David Decker's ten percent eguity interest and share
2 of profits thereafter." Id. Marshall appealed the trial court's
judgment. The New Hampshire Supreme Court affirmed the trial
court's decision that David retained his ten percent equity
interest in CFV, but reversed and remanded the damages award and
orders to protect David's interest, directing the trial court to
recalculate damages and protective measures based on "a proper
accounting and consideration of CFV's finances." Id. at 91.
On remand, the trial court adjusted the damages awarded to David,
and reconsidered the protective measures in light of the fact
that Marshall's ex-wife then controlled CFV. See Decker v.
Decker, No. E-86-0128 (N.H. Superior C t . Sept. 14 and Oct. 5,
1995). No record of a further appeal has been filed here.
Marshall Decker, proceeding pro se, filed suit against his
brother, David, in this court in August 1996; David's former law
firm, Fitzgerald and Sessler, P.A.; the lawyer who represented
David in the state court litigation, Duncan Farmer; Farmer's law
firm, Normandin, Cheney, and O'Neil, P.A.; and the accountant who
testified in the state court litigation on behalf of David,
Robert Stinson. Marshall's complaint, as clarified by amendment,
alleged claims of malicious prosecution, abuse of process, and
conspiracy.2
2David previously filed a motion to dismiss the conspiracy count, which was granted.
3 Discussion
Defendants now move for summary judgment on grounds that
Marshall's claims are barred by the doctrine of res judicata and
otherwise are without merit, based on the undisputed facts.
A. Malicious Prosecution
Marshall alleges that David's state litigation against him
constituted malicious prosecution--that David brought the suit
after threatening Marshall that he would sue him if Marshall did
not pay David a sum of money by November 1, 1986. "A successful
action for malicious prosecution reguires 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 (1993). David, not Marshall,
prevailed. David obtained judgment in his favor in the state
court proceeding, which judgment was modified, but not reversed,
following appeal. Based on the record presented, David remains
the prevailing party.
Marshall attempts to explain away his failure to prevail in
the state case by assigning error to the state trial judge. In
essence, Marshall asks this court to reconsider the evidence
presented in the state proceeding, apply the legal definitions he
suggests, and find, contrary to the result in state court, that
he did not "convert" money owed to David. Marshall presents no
trialworthy issue.
4 Federal courts, other than the Supreme Court, lack
jurisdiction to directly review state court decisions. See
District of Columbia of Appeals v. Feldman, 460 U.S. 462, 476
(1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16
(1923). Accordingly, district courts may not consider arguments
or claims that are "inextricably intertwined" with the state
court decision. Feldman, 460 U.S. at 476. Federal claims are
inextricably intertwined with state court proceedings (even if
precisely the same claims were not raised previously in state
litigation) if the party had an opportunity to raise those claims
and if resolution of the claims in federal court would
effectively provide a form of federal appellate review of the
state court's decision. See Pennzoil Co. v. Texaco, 481 U.S. 1,
25 (1987) (Marshall, J., concurring); Lancellotti v. Fay, 909
F.2d 15, 17 (1st Cir. 1990). Once a state court issues a final
judgment, a federal district court lacks jurisdiction to review
the decision even if the state judgment is patently wrong or was
entered following patently unconstitutional proceedings. Young
v. Murphy, 90 F.3d 1225, 1231 (7th Cir. 1996). Since the state
court definitively ruled on the issues and arguments now raised
by Marshall, holding that Marshall owed David money, this court
is without any colorable jurisdiction to review the matter.
Alternatively, the principles of res judicata and collateral
estoppel would bar relitigation here of David's claim against
Marshall, which was fully considered and resolved in state court.
When the preclusive effect of a state court decision is
5 considered in federal court, "the reach of the state court
judgment is determined by state law." New Hampshire Motor
Transport Ass'n v. Town of Plaistow, 67 F.3d 326, 328 (1st Cir.
1995). Under New Hampshire law, res judicata is a broad doctrine
that "covers all the various ways in which a judgment in one
action will have a binding effect in another." Appeal of James
A. Hooker, 694 A.2d 984, 986 (N.H. 1997) (guotation omitted). In
general terms, the doctrine is defined as follows:
The doctrine of estoppel by judgment, or res judicata, as a practical matter, proceeds upon the principle that one person shall not a second time litigate, with the same person or with another so identified in interest with such person that he represents the same legal right, precisely the same guestion, particular controversy, or issue, which has been necessarily tried and finally determined, upon its merits, by a court of competent jurisdiction, in a judgment in personam in a former suit.
Hallisev v. DECA Corp., 140 N.H. 443, 444 (1995) (guoting United
States v. California Bridge Co., 245 U.S. 337, 341 (1917)).
Res judicata, as claim preclusion, bars litigation of
"matters actually litigated, and matters that could have been
litigated, in an earlier action between the same parties for the
same cause of action." Schwartz v. State, 135 N.H. 470, 474
(1992) (guotation omitted). A "cause of action" in context of
res judicata means "the right to recover and refers to all
theories on which relief could be claimed arising out of the same
factual transaction in guestion." Id. (guotation omitted). In
this case, the law firm defendants are sufficiently in privity
with David Decker to permit a preclusive effect of the judgment
in the state action. Thus, to the extent Marshall's malicious
6 prosecution claim asks that this court reconsider the merits of
David's claims against him, it is barred by res judicata.
Further, the issue preclusion aspect of res judicata,
collateral estoppel, bars relitigation of an issue under the
following circumstances:
the issue subject to estoppel must be identical in each action, the first action must have resolved the issue finally on the merits, and the party to be estopped must have appeared in the first action, or have been in privity with someone who did so. The party to be estopped must have had a full and fair opportunity to litigate the issue. In addition, the finding must have been essential to the first judgment.
Hooker, 694 A.2d at 986 (guoting Petition of Gilpatric, 138 N.H.
360, 362-63 (1994)). To the extent Marshall's malicious
prosecution claim rests on the issue of whether he "converted"
David's interest in CFV, the state court neither denied nor
granted Marshall's reguests for findings as to whether he
"converted" David's interest or money and explained the finding
as follows:
The Court does not understand how the defendants used the word "convert." If they mean did the defendants steal these monies, the answer is no. If convert means take monies earned by J.E.D. Associates, Inc. and use them for other business ventures not related to Cotton Farm Village, the answer is yes.
Decker v. Decker and J.E.D. Assoc., Inc., E-86-0128 at 21 (N.H.
Superior C t . Sept. 1, 1993). Thus, the state court's finding
precludes a determination that David brought and maintained his
cause of action without cause to believe that Marshall had
wrongfully taken his money.
7 Since Marshall has not demonstrated a trialworthy issue with
respect to his malicious prosecution claim, defendants are
entitled to summary judgment.
B. Abuse of Process
Marshall's abuse of process claim is based on his
allegations that defendants committed perjury, misrepresented
facts and evidence, were not candid with the trial court, and
used the trial to extort money from him. A claim for abuse of
process exists when "One who uses a legal process, whether
criminal or civil, against another primarily to accomplish a
purpose for which it is not designed, is subject to liability to
the other for harm caused by the abuse of process." Cabletron
Systems, Inc. v. Miller, 140 N.H. 55, 57 (1995) (guotation
omitted). The state court found that neither David nor his
accountant, Robert Stinson, deliberately attempted to mislead the
court during the proceedings. Decker v. Decker and J.E.D. Assoc.
Inc., No. 86-E-128 at 5 (N.H. Superior Court, Oct. 5, 1995).
Thus, based on the Rooker-Feldman doctrine and the principles of
res judicata, discussed above, this court is precluded from
considering Marshall's abuse of process claims as raised here.
Defendants are entitled to summary judgment on the abuse of
process claim.
8 C. Conspiracy
This court previously decided Marshall's conspiracy claim in
David's favor. See Decker v. Decker, No. 96-424-M (D.N.H., Sept.
11, 1997). For the reasons stated in that order, the remaining
defendants are entitled to summary judgment on the conspiracy
claim as well.
As the court has determined that no trialworthy issues
remain, it is unnecessary to consider defendants' additional
grounds for summary judgment.
Conclusion
For the foregoing reasons, defendants' motions to dismiss
and for summary judgment (documents no. 19, 20, and 21) are
granted. The clerk of court is instructed to enter judgment in
favor of the defendants, in accordance with the terms of this
order, and close the case.
SO ORDERED.
Steven J. McAuliffe United States District Judge
February 17, 1998
cc: Marshall N. Decker David R. Decker, Esg. Jeffrey B. Osburn, Esg. David H. Bownes, Esg. James C. Wheat, Esg.