Donovan v . Greenfield CV-02-364-M 10/23/02 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Patricia A . Donovan, Plaintiff
v. Civil N o . 02-364-M Opinion N o . 2002 DNH 187 Town of Greenfield, New Hampshire, Defendant
O R D E R
Patricia Donovan brings this action against the Town of
Greenfield, New Hampshire, claiming the Town deprived her of
various constitutionally protected rights and seeking declaratory
and injunctive relief. See 42 U.S.C. §§ 1981 and 1983. Because
she is proceeding pro s e , the Magistrate Judge conducted a
preliminary review of her second amended complaint to determine
whether it properly invokes the court’s subject matter
jurisdiction. As part of that initial review, the Magistrate
Judge construed plaintiff’s complaint as follows:
Donovan alleges that the Town of Greenfield has violated her First Amendment right to free exercise of speech by prohibiting her from participating in Town functions, by assessing penalties against her and by denying her appointment to Town committees. She further alleges that the Town has violated her Fourteenth Amendment right to equal protection by employing unfair and unequal process of appointment and treating her differently than similarly situated Town residents who have applied for volunteer appointments to Town [c]ommittees. Lastly, Donovan asserts that the defendant’s adverse actions against her were in retaliation for her [prior] litigation against the Town.
Order dated September 1 7 , 2002 (document n o . 9 ) . The Town has
moved to dismiss plaintiff’s complaint, saying all of the claims
she currently advances against it are barred by the doctrine of
res judicata.
Background
This is not plaintiff’s first suit against the Town. On
August 5 , 2002, she initiated a civil action against the Town in
the New Hampshire Superior Court, by filing a “Request for
Temporary Restraint Order with a Scheduled Evidentiary Hearing.”
See Exhibit A to defendant’s motion to dismiss (document n o . 1 3 ) .
The court docketed the matter as a civil case, rather than one in
equity (New Hampshire continues to maintain a distinction between
actions at law and those in equity). And, under New Hampshire
practice, a party may initiate a law suit simply by filing a
request for injunctive relief (i.e., without filing a bill in
equity or a writ of summons), provided “process at law or in
2 equity” is subsequently filed within a period specified by the
court. Rule 162 of the New Hampshire Superior Court Rules.
That same day, the court denied plaintiff’s motion for
temporary relief, denied her request for an evidentiary hearing,
and ruled that, as a matter of law, she was not entitled to any
relief based upon the facts she had alleged. Accordingly, her
petition was dismissed. Plaintiff did not move the court to
reconsider its dismissal order nor did she appeal to the state
supreme court. Instead, two days later, she filed suit in this
court, alleging the same facts that she advanced in state court
(with slightly more detail) and seeking precisely the same relief
that had been denied by the state court: declaratory and
injunctive relief (in neither action did plaintiff seek monetary
damages). The only meaningful difference between the two actions
is that in this forum, plaintiff is advancing her claims under
the provisions of 42 U.S.C. § 1981 and 1983. Her causes of
action, however, arise from the same operative facts and remain
the same. See Eastern Marine Constr. Corp. v . First Southern
Leasing, 129 N.H. 2 7 0 , 274 (1987) (“[W]e choose to expressly
follow what we consider to be the modern and better view, and
3 hold that the term ‘cause of action’ means the right to recover,
regardless of the theory of recovery.”).
Discussion
The federal full faith and credit statute, 28 U.S.C. § 1738,
commands federal courts to employ state rules of res judicata
when determining the preclusive effect, if any, to be given to a
prior state court determination. See Marrese v . American Academy
of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985); Kremer v .
Chemical Constr. Corp., 456 U.S. 4 6 1 , 468 (1982). Accordingly,
the court will apply the principles of res judicata as developed
by the New Hampshire Supreme Court.
Under New Hampshire law, “[t]he doctrine of res judicata
precludes the litigation in a later case 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.” In re Alfred P., 126 N.H. 6 2 8 , 629 (1985) (citations
omitted). “In order for res judicata to apply to a finding or
ruling, there must be ‘a final judgment by a court of competent
jurisdiction [that] is conclusive upon the parties in a
4 subsequent litigation involving the same cause of action.’” In
re Donovan, 137 N.H. 7 8 , 81 (1993) (quoting Marston v . U.S.
Fidelity & Guaranty Co., 135 N.H. 706, 710 (1992)).
In other words, for the doctrine of res judicata to apply,
“three elements must be met: (1) the parties must be the same or
in privity with one another; (2) the same cause of action must be
before the court in both instances; and (3) a final judgment on
the merits must have been rendered on the first action.” Brzica
v . Trustees of Dartmouth College, 147 N.H. 443, 454 (2002). And,
as noted above, the term “cause of action” means the “right to
recover, regardless of the theory of recovery.” Eastern Marine
Constr. Corp., 129 N.H. at 274 (citations omitted).
Here, each of those three essential elements is present. As
to the existence of the first and third elements, there can be
little doubt that the parties in the two proceedings are
identical and the state court resolved plaintiff’s claims against
her on the merits. Finally, the claims raised (and the
underlying facts upon which those claims are based) in the two
5 proceedings are also identical. Specifically, in each action,
plaintiff alleged that:
1. The Town violated her civil rights. See Plaintiff’s petition for TRO at para. 9, 1 4 ; Plaintiff’s second amended complaint at para. 8 , 1 4 , 47-49.
2. The Town discriminated against her based upon her political beliefs, opinions, statements, and conduct. See Plaintiff’s petition for TRO at para. 1 2 ; Plaintiff’s second amended complaint at para. 3 4 , 4 0 , 4 5 .
3. The Town discriminated against her based upon her having previously pursued litigation against the Town. See Plaintiff’s petition for TRO at para. 6; Plaintiff’s second amended complaint at para. 5 .
Although it is true that plaintiff did not invoke the provisions
of 42 U.S.C. § 1983 in her state law action, it is clear that the
claims she advanced in that forum, and the underlying facts upon
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Donovan v . Greenfield CV-02-364-M 10/23/02 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Patricia A . Donovan, Plaintiff
v. Civil N o . 02-364-M Opinion N o . 2002 DNH 187 Town of Greenfield, New Hampshire, Defendant
O R D E R
Patricia Donovan brings this action against the Town of
Greenfield, New Hampshire, claiming the Town deprived her of
various constitutionally protected rights and seeking declaratory
and injunctive relief. See 42 U.S.C. §§ 1981 and 1983. Because
she is proceeding pro s e , the Magistrate Judge conducted a
preliminary review of her second amended complaint to determine
whether it properly invokes the court’s subject matter
jurisdiction. As part of that initial review, the Magistrate
Judge construed plaintiff’s complaint as follows:
Donovan alleges that the Town of Greenfield has violated her First Amendment right to free exercise of speech by prohibiting her from participating in Town functions, by assessing penalties against her and by denying her appointment to Town committees. She further alleges that the Town has violated her Fourteenth Amendment right to equal protection by employing unfair and unequal process of appointment and treating her differently than similarly situated Town residents who have applied for volunteer appointments to Town [c]ommittees. Lastly, Donovan asserts that the defendant’s adverse actions against her were in retaliation for her [prior] litigation against the Town.
Order dated September 1 7 , 2002 (document n o . 9 ) . The Town has
moved to dismiss plaintiff’s complaint, saying all of the claims
she currently advances against it are barred by the doctrine of
res judicata.
Background
This is not plaintiff’s first suit against the Town. On
August 5 , 2002, she initiated a civil action against the Town in
the New Hampshire Superior Court, by filing a “Request for
Temporary Restraint Order with a Scheduled Evidentiary Hearing.”
See Exhibit A to defendant’s motion to dismiss (document n o . 1 3 ) .
The court docketed the matter as a civil case, rather than one in
equity (New Hampshire continues to maintain a distinction between
actions at law and those in equity). And, under New Hampshire
practice, a party may initiate a law suit simply by filing a
request for injunctive relief (i.e., without filing a bill in
equity or a writ of summons), provided “process at law or in
2 equity” is subsequently filed within a period specified by the
court. Rule 162 of the New Hampshire Superior Court Rules.
That same day, the court denied plaintiff’s motion for
temporary relief, denied her request for an evidentiary hearing,
and ruled that, as a matter of law, she was not entitled to any
relief based upon the facts she had alleged. Accordingly, her
petition was dismissed. Plaintiff did not move the court to
reconsider its dismissal order nor did she appeal to the state
supreme court. Instead, two days later, she filed suit in this
court, alleging the same facts that she advanced in state court
(with slightly more detail) and seeking precisely the same relief
that had been denied by the state court: declaratory and
injunctive relief (in neither action did plaintiff seek monetary
damages). The only meaningful difference between the two actions
is that in this forum, plaintiff is advancing her claims under
the provisions of 42 U.S.C. § 1981 and 1983. Her causes of
action, however, arise from the same operative facts and remain
the same. See Eastern Marine Constr. Corp. v . First Southern
Leasing, 129 N.H. 2 7 0 , 274 (1987) (“[W]e choose to expressly
follow what we consider to be the modern and better view, and
3 hold that the term ‘cause of action’ means the right to recover,
regardless of the theory of recovery.”).
Discussion
The federal full faith and credit statute, 28 U.S.C. § 1738,
commands federal courts to employ state rules of res judicata
when determining the preclusive effect, if any, to be given to a
prior state court determination. See Marrese v . American Academy
of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985); Kremer v .
Chemical Constr. Corp., 456 U.S. 4 6 1 , 468 (1982). Accordingly,
the court will apply the principles of res judicata as developed
by the New Hampshire Supreme Court.
Under New Hampshire law, “[t]he doctrine of res judicata
precludes the litigation in a later case 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.” In re Alfred P., 126 N.H. 6 2 8 , 629 (1985) (citations
omitted). “In order for res judicata to apply to a finding or
ruling, there must be ‘a final judgment by a court of competent
jurisdiction [that] is conclusive upon the parties in a
4 subsequent litigation involving the same cause of action.’” In
re Donovan, 137 N.H. 7 8 , 81 (1993) (quoting Marston v . U.S.
Fidelity & Guaranty Co., 135 N.H. 706, 710 (1992)).
In other words, for the doctrine of res judicata to apply,
“three elements must be met: (1) the parties must be the same or
in privity with one another; (2) the same cause of action must be
before the court in both instances; and (3) a final judgment on
the merits must have been rendered on the first action.” Brzica
v . Trustees of Dartmouth College, 147 N.H. 443, 454 (2002). And,
as noted above, the term “cause of action” means the “right to
recover, regardless of the theory of recovery.” Eastern Marine
Constr. Corp., 129 N.H. at 274 (citations omitted).
Here, each of those three essential elements is present. As
to the existence of the first and third elements, there can be
little doubt that the parties in the two proceedings are
identical and the state court resolved plaintiff’s claims against
her on the merits. Finally, the claims raised (and the
underlying facts upon which those claims are based) in the two
5 proceedings are also identical. Specifically, in each action,
plaintiff alleged that:
1. The Town violated her civil rights. See Plaintiff’s petition for TRO at para. 9, 1 4 ; Plaintiff’s second amended complaint at para. 8 , 1 4 , 47-49.
2. The Town discriminated against her based upon her political beliefs, opinions, statements, and conduct. See Plaintiff’s petition for TRO at para. 1 2 ; Plaintiff’s second amended complaint at para. 3 4 , 4 0 , 4 5 .
3. The Town discriminated against her based upon her having previously pursued litigation against the Town. See Plaintiff’s petition for TRO at para. 6; Plaintiff’s second amended complaint at para. 5 .
Although it is true that plaintiff did not invoke the provisions
of 42 U.S.C. § 1983 in her state law action, it is clear that the
claims she advanced in that forum, and the underlying facts upon
which they were based, are identical to those advanced in this
proceeding - only the vehicle by which she seeks to pursue those
claims is different. Consequently, the doctrine of res judicata
precludes plaintiff from relitigating those claims in this forum.
Parenthetically, the court notes that the court of appeals
for this circuit recently addressed New Hampshire’s doctrine of
6 res judicata and appears to have adopted a fairly narrow
interpretation of i t . Specifically, although the circuit court
acknowledged that res judicata “encompasses all theories on which
relief could be claimed on the basis of the factual transaction
in question,” Patterson v . Patterson, 2002 WL 31259493, at *5
(1st Cir. Oct. 9, 2002) (emphasis supplied), it limited the
application of res judicata exclusively to those causes of action
that could be supported by the facts actually pled in the
original proceeding (as opposed to the facts that could have been
pled and which arise out of the same underlying transaction or
occurrence). Id. at 6 (holding that res judicata did not
preclude second suit because although “certain of the facts that
underpinned the [original] proceeding would have been relevant in
pursuing [the claim advanced in the second proceeding] . . . the
bulk of the facts needed for the latter were not part of the
[original] case as actually presented to the probate court.”).
That somewhat narrow view of the doctrine’s scope i s ,
perhaps, best understood as reflecting the unique fact pattern in
the underlying case. But, generally speaking, New Hampshire
follows a more expansive “modern” view of res judicata. See,
7 e.g., Eastern Marine Const. Corp., 129 N.H. at 274-75 (1987)
(“Such a narrow view of res judicata, however, is not in keeping
with the principle that pervades our modern procedure. The
central policy exemplified by the free permissive joinder of
claims, liberal amendment provisions, and compulsory
counterclaims, is that the whole controversy between the parties
may and often must be brought before the same court in the same
action.”) (emphasis supplied); Appeal of the Univ. System of N.H.
Bd. of Trustees, 147 N.H. 626, 629 (2002) (“Res judicata, or
claim preclusion, bars the relitigation of any issue that was or
might have been raised in respect to the subject matter of the
prior litigation. In determining whether two actions are the
same cause of action for the purpose of applying res judicata, we
consider whether the alleged causes of action arise out of the
same transaction or occurrence.”) (citations and internal
quotation marks omitted). See also Brzica, 147 N.H. at 455-56
(“Res judicata will bar a second action even though the plaintiff
is prepared in the second action to present evidence or grounds
or theories of the case not presented in the first action.”);
Radkay v . Confalone, 133 N.H. 2 9 4 , 298 (1990) (“Generally, once a
party has exercised the right to recover based upon a particular
8 factual transaction, that party is barred from seeking further
recovery, even though the type of remedy or theory of relief may
be different.”).
Nevertheless, even accepting that the New Hampshire Supreme
Court would generally endorse what appears to be a narrower
interpretation of the state’s res judicata jurisprudence by the
First Circuit, and assuming further that this court has erred in
concluding that the same claims raised in this litigation were
actually raised in plaintiff’s state court case, one thing is
beyond dispute: plaintiff could have raised the same claims in
state court that she now advances, since those claims are based
upon the same “material facts” that formed the basis of her state
court action. See Patterson at * 5 . In other words, the claims
she advances in this forum arise out of the very same
“transactions” and “occurrences” that formed the basis of her
state court action.
Conclusion
The claims plaintiff seeks to advance in this proceeding are
barred by New Hampshire’s doctrine of res judicata. Accordingly,
defendant’s motion to dismiss (document n o . 13) is granted. The
9 Clerk of Court shall enter judgment in accordance with this order
and close the case.
SO ORDERED.
Steven J. McAuliffe United States District Judge
October 2 3 , 2002
cc: Patricia A . Donovan, pro se John F. Teague, Esq.