UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Willard Drew d/b/a Kelsey’s at the Grant
v. Civil No. 14-cv-462-JD Opinion No. 2015 DNH 036 State of New Hampshire, N.H. Drug Task Force, et al.
O R D E R
Willard Drew operates a restaurant located in Gilford, New
Hampshire, which is now called Kelsey’s at the Grant. From June
through October of 2011, the New Hampshire Drug Task Force
(“NHDTF”) investigated the sale of controlled drugs at that
establishment, which was then known as Mardi Gras North, and
conducted a search of the premises in October of 2011. Based on
those and subsequent events, Drew brought suit, alleging federal
claims under 42 U.S.C. § 1983 and related state law claims.
The State of New Hampshire, the NHDTF, and former NHDTF
commander, James Norris, (“the state defendants”) moved to
dismiss the claims against them on the grounds of sovereign
immunity and failure to state a claim. Drew objected to the
motion as to NHDTF and Norris in his individual capacity but did
not object to dismissing claims against the State of New
Hampshire and against Norris in his official capacity. Drew then
moved to amend his complaint, and the state defendants objected. I. Motion to Amend
Drew moves to amend the complaint to substitute the NHDTF
for the State. The state defendants object to the proposed
amended complaint, arguing that the amendment is futile because
the NHDTF is protected by sovereign immunity and because Drew has
not alleged facts that show the NHDTF is a “jural entity” that
may be sued independently from the state.
To determine whether a proposed amended complaint would be
futile, the court uses the standard for motions to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). Adorno v.
Crowley Towing & Transp. Co., 443 F.3d 122, 126 (1st Cir. 2006).
Under the Rule 12(b)(6) standard, the court must take the factual
allegations in the complaint as true, with reasonable inferences
in the plaintiff’s favor, and “determine whether the factual
allegations in the plaintiff’s complaint set forth a plausible
claim upon which relief may be granted.” Foley v. Wells Fargo
Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014). A plausible claim
for relief is something more than merely possible or conceivable
but need not meet the standard for a prima facie case. Carrero-
Ojeda v. Autoridad de Energia Electrica, 755 F.3d 711, 717 (1st
Cir. 2014).
A. Sovereign Immunity
The state defendants contend that the proposed amended
complaint fails to state a claim against the NHDTF because it is
part of the state and is protected by the state’s sovereign
2 immunity under the Eleventh Amendment. “Unless a state consents,
a suit in which the State or one of its agencies or departments
is named as the defendant is proscribed by the Eleventh
Amendment.” Lebron v. Commonwealth of Puerto Rico, 770 F.3d 25,
32 (1st Cir. 2014) (internal quotation marks omitted). More
specifically, “‘a suit by private parties seeking to impose a
liability which must be paid from public funds in the state
treasury is barred by the Eleventh Amendment.’” Davidson v.
Howe, 749 F.3d 21, 27 (1st Cir. 2014) (quoting Edelman v. Jordan,
415 U.S. 651, 663 (1974)). A suit against the New Hampshire
Attorney General in his official capacity is a suit against the
State of New Hampshire. Will v. Mich. Dept. of State Police, 491
U.S. 58, 71 (1989).
Drew does not contest the principles of sovereign immunity
and does not dispute that if the NHDTF were an agency or division
of the state it would be protected by sovereign immunity. Drew
alleges, however, that the NHDTF is a “multi-jurisdictional
entity” and is composed of state and local law enforcement
personnel. For that reason, Drew argues, the NHDTF is not a
state agency.
No court in this state appears to have addressed the
question of whether the NHDTF is a state agency for purposes of
sovereign immunity. Little guidance is available from decisions
in other states where similar task forces were formed by a
municipality rather than the state. See, e.g., Rodriguez-
Melendez v. Dauphin County Drug Task Force, 2015 WL 65087 (M.D.
3 Pa. Jan. 5, 2015). In addition, state law may be determinative
of whether a particular task force is or is not a state agency.
See, e.g., Clouser v. Johnson, --- F. Supp. 2d ---, 2014 WL
4180808, at *7-*8 (M.D. Penn. Aug. 25, 2014); Lamb v. Tenth
Judicial Dist. Drug Task Force, 944 F. Supp. 2d 586, 592-94 (E.D.
Tenn. 2013).
The NHDTF is known as the New Hampshire Attorney General’s
Drug Task Force. See, e.g., State v. Paul, 104 A.3d 1058, 1059
(N.H. 2014); State v. Smith, 166 N.H. 40, 41 (2014). Under New
Hampshire law, the attorney general may vest municipal and state
law enforcement officers, who are assigned to work with the
attorney general, “with statewide law enforcement authority” to
conduct or assist with investigations, including service “on the
attorney general’s drug task force.” RSA 21-M:3-b. The
authority exists only while the officers are assigned to the
department of justice and, during that time, the officer is a
state official entitled to defense and indemnification under RSA
99-D:2. RSA 21-M:3.
Based on the foregoing, it appears that the NHDTF is part of
the New Hampshire Attorney General’s office. In the context of a
futility analysis, however, the parties have provided no record
to support a definitive determination of the legal status of the
NHDTF. The state defendants did not raise RSA 21-M:3-b in their
objection to the motion to amend or in their motion to dismiss
and failed to cite any cases or other authority to show that the
4 NHDTF is a state entity.1 As the court explained in Lamb, the
determination of whether a drug task force is a state entity
requires a more developed record than is available under the Rule
12(b)(6) standard. 944 F. Supp. 2d at 592-94.
Therefore, the motion to amend cannot be denied based on the
defense of sovereign immunity.
B. Jural Entity
The state defendants also contend that the proposed amended
complaint is futile because “it does not establish that NHDTF is
a jural entity capable of being sued independently of the New
Hampshire Department of Justice.” In support, the state
defendants cite Harris v. City of Hammond, 2008 WL 4469112 (E.D.
La. Sept. 30, 2008), where the court granted the defendants’
motion to dismiss the plaintiff’s § 1983 claims against the
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Willard Drew d/b/a Kelsey’s at the Grant
v. Civil No. 14-cv-462-JD Opinion No. 2015 DNH 036 State of New Hampshire, N.H. Drug Task Force, et al.
O R D E R
Willard Drew operates a restaurant located in Gilford, New
Hampshire, which is now called Kelsey’s at the Grant. From June
through October of 2011, the New Hampshire Drug Task Force
(“NHDTF”) investigated the sale of controlled drugs at that
establishment, which was then known as Mardi Gras North, and
conducted a search of the premises in October of 2011. Based on
those and subsequent events, Drew brought suit, alleging federal
claims under 42 U.S.C. § 1983 and related state law claims.
The State of New Hampshire, the NHDTF, and former NHDTF
commander, James Norris, (“the state defendants”) moved to
dismiss the claims against them on the grounds of sovereign
immunity and failure to state a claim. Drew objected to the
motion as to NHDTF and Norris in his individual capacity but did
not object to dismissing claims against the State of New
Hampshire and against Norris in his official capacity. Drew then
moved to amend his complaint, and the state defendants objected. I. Motion to Amend
Drew moves to amend the complaint to substitute the NHDTF
for the State. The state defendants object to the proposed
amended complaint, arguing that the amendment is futile because
the NHDTF is protected by sovereign immunity and because Drew has
not alleged facts that show the NHDTF is a “jural entity” that
may be sued independently from the state.
To determine whether a proposed amended complaint would be
futile, the court uses the standard for motions to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). Adorno v.
Crowley Towing & Transp. Co., 443 F.3d 122, 126 (1st Cir. 2006).
Under the Rule 12(b)(6) standard, the court must take the factual
allegations in the complaint as true, with reasonable inferences
in the plaintiff’s favor, and “determine whether the factual
allegations in the plaintiff’s complaint set forth a plausible
claim upon which relief may be granted.” Foley v. Wells Fargo
Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014). A plausible claim
for relief is something more than merely possible or conceivable
but need not meet the standard for a prima facie case. Carrero-
Ojeda v. Autoridad de Energia Electrica, 755 F.3d 711, 717 (1st
Cir. 2014).
A. Sovereign Immunity
The state defendants contend that the proposed amended
complaint fails to state a claim against the NHDTF because it is
part of the state and is protected by the state’s sovereign
2 immunity under the Eleventh Amendment. “Unless a state consents,
a suit in which the State or one of its agencies or departments
is named as the defendant is proscribed by the Eleventh
Amendment.” Lebron v. Commonwealth of Puerto Rico, 770 F.3d 25,
32 (1st Cir. 2014) (internal quotation marks omitted). More
specifically, “‘a suit by private parties seeking to impose a
liability which must be paid from public funds in the state
treasury is barred by the Eleventh Amendment.’” Davidson v.
Howe, 749 F.3d 21, 27 (1st Cir. 2014) (quoting Edelman v. Jordan,
415 U.S. 651, 663 (1974)). A suit against the New Hampshire
Attorney General in his official capacity is a suit against the
State of New Hampshire. Will v. Mich. Dept. of State Police, 491
U.S. 58, 71 (1989).
Drew does not contest the principles of sovereign immunity
and does not dispute that if the NHDTF were an agency or division
of the state it would be protected by sovereign immunity. Drew
alleges, however, that the NHDTF is a “multi-jurisdictional
entity” and is composed of state and local law enforcement
personnel. For that reason, Drew argues, the NHDTF is not a
state agency.
No court in this state appears to have addressed the
question of whether the NHDTF is a state agency for purposes of
sovereign immunity. Little guidance is available from decisions
in other states where similar task forces were formed by a
municipality rather than the state. See, e.g., Rodriguez-
Melendez v. Dauphin County Drug Task Force, 2015 WL 65087 (M.D.
3 Pa. Jan. 5, 2015). In addition, state law may be determinative
of whether a particular task force is or is not a state agency.
See, e.g., Clouser v. Johnson, --- F. Supp. 2d ---, 2014 WL
4180808, at *7-*8 (M.D. Penn. Aug. 25, 2014); Lamb v. Tenth
Judicial Dist. Drug Task Force, 944 F. Supp. 2d 586, 592-94 (E.D.
Tenn. 2013).
The NHDTF is known as the New Hampshire Attorney General’s
Drug Task Force. See, e.g., State v. Paul, 104 A.3d 1058, 1059
(N.H. 2014); State v. Smith, 166 N.H. 40, 41 (2014). Under New
Hampshire law, the attorney general may vest municipal and state
law enforcement officers, who are assigned to work with the
attorney general, “with statewide law enforcement authority” to
conduct or assist with investigations, including service “on the
attorney general’s drug task force.” RSA 21-M:3-b. The
authority exists only while the officers are assigned to the
department of justice and, during that time, the officer is a
state official entitled to defense and indemnification under RSA
99-D:2. RSA 21-M:3.
Based on the foregoing, it appears that the NHDTF is part of
the New Hampshire Attorney General’s office. In the context of a
futility analysis, however, the parties have provided no record
to support a definitive determination of the legal status of the
NHDTF. The state defendants did not raise RSA 21-M:3-b in their
objection to the motion to amend or in their motion to dismiss
and failed to cite any cases or other authority to show that the
4 NHDTF is a state entity.1 As the court explained in Lamb, the
determination of whether a drug task force is a state entity
requires a more developed record than is available under the Rule
12(b)(6) standard. 944 F. Supp. 2d at 592-94.
Therefore, the motion to amend cannot be denied based on the
defense of sovereign immunity.
B. Jural Entity
The state defendants also contend that the proposed amended
complaint is futile because “it does not establish that NHDTF is
a jural entity capable of being sued independently of the New
Hampshire Department of Justice.” In support, the state
defendants cite Harris v. City of Hammond, 2008 WL 4469112 (E.D.
La. Sept. 30, 2008), where the court granted the defendants’
motion to dismiss the plaintiff’s § 1983 claims against the
Louisiana Attorney General’s Internet Crimes Against Children
Task Force. The court concluded that the plaintiff bore the
burden of showing that the Task Force was a “juridical person”
with the capacity to be sued and had failed to carry the burden
1 The state defendants did quote RSA 21-M:3-b in their reply to Drew’s objection to the motion to dismiss to show that officers serving in the NHDTF are given statewide enforcement powers. A reply, however, cannot provide new grounds not raised in the motion. See, e.g., Mills v. U.S. Bank, NA, 753 F.3d 47, 55 n.5 (1st Cir. 2014); Alamo-Hornedo v. Puig, 745 F.3d 578, 582 (1st Cir. 2014); West v. Bell helicopter Textron, Inc., 2014 WL 4922971, at *13, n.13 (D.N.H. Sept. 30, 2014); Gen. Linen Serv., Inc. v. Gen. Linen Serv. Co., Inc., 25 F. Supp. 3d 187, 192 (D.N.H. 2014).
5 and that sovereign immunity barred the claims for monetary relief
against the Attorney General. Id. at *2-*3.
The reasoning in Harris is not persuasive in the context of
Drew’s motion to amend the complaint. The court in Harris relied
on cases that are inapposite to the circumstances presented here.
Further and more importantly, Harris appears to impose a
heightened pleading standard that requires a plaintiff who
alleges a claim under § 1983 to cite law in the complaint to show
that the defendant is a “juridical person” for purposes of
§ 1983. Such a requirement would likely violate the notice
pleading standard under Federal Rule of Civil Procedure 8(a).
See Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 53-54 (1st
Cir. 2013); Educadores Puertorriquenos en Accion v. Hernandez,
367 F.3d 61, 66-67 (1st Cir. 2004).
The questions of whether the NHDTF is a state entity for
purposes of sovereign immunity and whether it has the capacity to
be sued require factual and legal development that has not been
presented in the context of the motion to amend. Instead, the
questions would be better addressed through a motion for summary
judgment with appropriate record support. See Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 512 (2002).
Conclusion
For the foregoing reasons, the plaintiff’s motion to amend
the complaint (document no. 19) is granted. The plaintiff shall
file the amended complaint.
6 The defendants’ motion to dismiss (document no. 9) is
terminated as moot.
SO ORDERED.
____________________________ Joseph A. DiClerico, Jr. United States District Judge
February 26, 2015
cc: Charles P. Bauer, Esq. David H. Bownes, Esq. Francis Charles Fredericks, Esq. Richard W. Head, Esq. Andrew B. Livernois, Esq.