Foley, et al. v. Town of Lee, et al. CV-10-335-JL 5/9/12 P
UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Robin Foley et a l .
v. Civil No. lO-cv-335-JL Opinion No. 2012 DNH 082 Town of Lee et a l .
MEMORANDUM ORDER
The parties to this lawsuit, a civil rights and tort action
arising out of a dispute over a vacation camping trailer at a
campground in Lee, New Hampshire, have filed a number of motions
in limine seeking to preclude evidence from the upcoming trial.
Following this court's recent decision granting the defendants'
summary judgment motions in part, the plaintiffs' remaining
claims are (1) their claim against two Lee police officers for
violating the plaintiffs' right to procedural due process under
the Fourteenth Amendment by threatening them with arrest if they
remained with the camper, and (2) a claim against the camper's
owner, Brenda Tenaglia (formerly known as Brenda Griffin) for
trespass to chattels. See Foley v. Town of Lee, 2012 DNH 081.
This court has jurisdiction over this matter under 28 U.S.C.
§§ 1331 (federal guestion) and 1367 (supplemental jurisdiction).
The defendants have now moved to exclude the anticipated
opinion testimony by the plaintiffs' designated expert witness,
arguing that he is ungualified to give it and that it does not follow from a reliable methodology. See Fed. R. Evid. 702. The
plaintiffs, Robin Foley, Gregory Vankooiman, and two of Foley's
children, have moved to exclude evidence of (1) a small claims
action they filed against the campground owner in the state
district court, (2) Vankooiman's criminal conviction on a
misdemeanor charge of issuing bad checks, and (3) the bank
account on which Foley wrote a check that she gave Tenaglia as
payment for the camper.1 As explained below, the plaintiffs'
motion to exclude evidence of Vankooiman's criminal conviction is
denied, but all of the other motions are granted.
I. Background
Because the relevant background facts are fully set forth in
the recent order on the summary judgment motions, they will be
recited here in abbreviated fashion. In July 2007, Tenaglia
entered into a handwritten agreement with Foley and Vankooiman to
sell them her camping trailer and its attached porch, which were
located on a site at the Wellington Camping Park in Lee. The
agreement reguired the plaintiffs to pay Tenaglia $3,500 for the
'The plaintiffs have also filed a motion to exclude records of the custody of one of the children named as a plaintiff. The defendants have no objection to this motion, however, so it is granted. See L.R. 7.1(b). The plaintiffs have also filed a motion for their attorneys' fees "upon prevailing at trial," which, as the defendants point out, is premature unless and until they actually prevail at trial. So that motion is denied.
2 camper in two installments: $1,600 upon the signing of the
agreement and the remaining $1,900 by August 1, 2007. As part of
the deal with Tenaglia, the plaintiffs further agreed to pay, to
Wellington, the fee to use the camper's site for the season.
They also entered into a written agreement with Wellington "to
rent space, on which is to be placed" the camper they were buying
from Foley (parenthetical omitted).
While the plaintiffs made the initial payment to Tenaglia as
contemplated by their agreement, and also paid the seasonal
rental fee to Wellington, they had failed to pay Tenaglia the
balance on the camper as of August 3, 2007. So Tenaglia called
the Lee Police Department, which sent defendant Brian Huppe, a
sergeant, to the camping park in response. There, he met
separately with both Tenaglia and Foley, and ultimately convinced
Tenaglia to accept payment for the amount due on the camper in
the form of a check Foley wrote her for the outstanding amount,
drawn on Vankooiman's account at TD Banknorth. When Tenaglia
presented the check at the bank the next day, however, the teller
informed her that the account had insufficient funds to cover the
check and that the bank would not cash it.
Tenaglia called Sergeant Huppe, telling him the check had
not cleared and that, as a result, the plaintiffs could no longer
stay in the camper. In response, Huppe went to the campground
3 and relayed this message to the plaintiffs, telling them they
would have to leave the camper by 4 p.m. Later in the day,
defendant Scott Flanagan, another officer with the Lee Police
Department, relieved Huppe when his shift ended, and went to the
campground to check on the camper. There, Officer Flanagan found
the plaintiffs packing their belongings into their vehicles. He
told them that they were "close to being arrested" for criminal
trespass but gave them until 6 p.m. to leave.
When Officer Flanagan returned to the campground around that
time, he saw the plaintiffs, who now appeared to be on their way
out of the campground. In fact, the plaintiffs did not leave the
premises, but went to visit with friends at another campsite.
Upon learning of this, the campground's owner told Flanagan that
the plaintiffs had to leave the campground. Flanagan proceeded
to relay this message to the plaintiffs, who left the premises in
response. The plaintiffs departed without retrieving all of
their personal property from the camper, leaving behind, inter
alia, a day bed and a fish tank (with a fish). Tenaglia
subseguently destroyed or otherwise disposed of those items.
The plaintiffs then brought a small action against the
campground's owner in the Durham District Court, seeking to
recover for a "camping site [they] were unable to enjoy and
personal property loss." Foley v. Wellington, No. 07-40 (N.H.
4 Dist. C t . Aug. 16, 2007). Following a hearing, the court entered
judgment for the defendant on a "Notice of Decision" form that
contains no findings, rulings, or other explanation. There is
also no transcript of the hearing.
II. Analysis
A. The defendants' motion to preclude expert testimony2
The defendants have moved to preclude the proffered opinion
testimony of the plaintiffs' designated expert, Lawrence A.
Vogelman, an experienced New Hampshire trial attorney. "The
touchstone for the admission of expert testimony in federal court
litigation is Federal Rule of Evidence 702." Crowe v. Marchand,
506 F.3d 13, 17 (1st Cir. 2007). Rule 702 provides that:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness gualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
As the structure of this rule suggests, before the factfinder in
a case can consider expert testimony over the adverse party's
objection, the trial judge, serving as "gatekeeper," must
determine whether the testimony satisfies the relevant
2Document no. 54.
5 foundational requirements. See Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 597 (1993).
The defendants have identified three different, but related,
expert opinions that Vogelman intends to offer: (1) that the
defendant officers "did not follow established police
procedures," (2) that "[i]t was improper for the police
defendants to make a legal decision about whether plaintiffs were
licensed to or privileged to remain in the camper at the
campground absent a court order," and (3) "the police had no
authority to assist [Tenaglia] in removing the plaintiffs from
the camper or the campground." The defendants argue that
Vogelman lacks the expertise in police procedure necessary to
give these opinions and that, in any event, there is no reliable
methodology underlying them.
In their objection to the defendants' motion, however, the
plaintiffs disclaim any intention "on having [Vogelman] testify
as to police procedure but rather the laws as outlined in his
expert report and the police authority, if any, under those
laws." This clarification makes it unnecessary for the court to
consider whether Vogelman is in fact qualified to opine as to
"established police procedures" and, for that matter, whether
that testimony would be relevant at trial here (the plaintiffs
affirmatively argue that it would not be).
6 Vogelman's proffered opinions as to "the relevant statutes
or laws regarding police authority" are inadmissible nonetheless.
"It is black-letter law that it is not for witnesses to instruct
the jury as to applicable principles of law, but for the judge."
Nieves-Villaneuva v. Soto-Rivera, 133 F.3d 92, 99 (1st Cir. 1997)
(guotation marks and bracketing omitted). Indeed, the plaintiffs
seem to acknowledge as much, stating in their objection that no
"expert [is] needed as the Judge instructs the jury on the law."
The plaintiffs go on to state that "not needing an expert
does not preclude an expert from testifying," which is true, but
beside the point. It is not the plaintiffs' lack of need for a
"legal expert" that prevents Attorney Vogelman from testifying as
to "statutes or laws," but the "black-letter" rule, just stated,
that it is the court, not an expert witness, who informs the jury
as to the law they must apply in the case at hand. It is for
this reason that "[e]xpert testimony proffered solely to
establish the meaning of a law is presumptively improper."
United States v. Mikutowicz, 365 F.3d 65, 73 (1st Cir. 2004) .
Because the plaintiffs have not offered any other basis for
Vogelman's proffered expert testimony, the defendants' motion to
exclude that testimony is granted. This ruling, of course, is
without prejudice to the plaintiffs' ability to reguest
appropriate jury instructions on the relevant law at trial.
7 B. The plaintiffs' motion to exclude the small claims action3
The plaintiffs have moved to exclude any evidence of their
unsuccessful small claims action against the campground owner,
arguing that it is irrelevant. See Fed. R. Evid. 401, 402. The
defendants argue that this evidence is "directly relevant to
(a) whether plaintiffs did have a right to remain at the
campground, and (b) whether the campsite fee is properly
boardable." The defendants argue, in fact, that the state
district court's judgment against the plaintiffs in their suit
against the campground owner collaterally estops them from
claiming either that they had the right to remain there, or that
they are entitled to damages for being forced to leave.
The defendants' collateral estoppel argument fails. The
doctrine of collateral estoppel applies only to an "issue or fact
actually litigated and determined in the prior action." Daigle
v. City of Portsmouth, 129 N.H. 561, 570 (1987) . But this court
cannot ascertain what issues were "actually litigated and
determined" in the small claims action because, as discussed
above, the Durham District Court's judgment is unaccompanied by a
written explanation of the reasons for its decision, and no
transcript of the hearing was made. "The party contending that
an issue has been conclusively litigated and determined in a
3Document no. 58.
8 prior action has the burden of proving that contention."
Restatement (Second) of Judgments § 2 7 cmt. f (1980). The
defendants have not carried their burden to show that the
plaintiffs' right to remain on the campground and their
entitlement to damages for being made to leave were determined in
the small claims action.
Absent such a determination, the fact that the District
Court entered judgment against the plaintiffs on their claim
against the campground owner is not relevant to whether the
plaintiffs had the right to remain there or are entitled to
damages against the defendant officer who, they say, forced them
to leave.4 See Fed. R. Evid. 401. Because the defendants have
not urged any other basis for the relevance of the plaintiffs'
small claims action against the campground owner, the plaintiffs'
motion to exclude evidence of that action is granted.
4This assumes that the plaintiffs' right to remain at the campground, as a matter of state contract or property law, is even relevant to the plaintiffs' remaining claims. As this court explained in its recent summary judgment order, the due process clause protected the plaintiffs' "interest in remaining on the campground as a result of their agreement with the campground's owner--even if, as the defendants suggest, that agreement gave the plaintiffs no right to remain there after they lost their right to occupy the camper." Foley, 2012 DNH 081, at 17 & n.6 (citing Fuentes v. Shevin, 407 U.S. 67, 87 (1972)).
9 C. The plaintiffs' motion to exclude Vankooiman's conviction5
The plaintiffs have also moved to exclude any evidence of
Vankooiman's conviction, entered on his guilty plea in Rockingham
County Superior Court in February 2008, on a misdemeanor charge
of issuing a bad check in violation of N.H. Rev. Stat. Ann.
§ 638:4. As the defendants point out, however, the plaintiffs
intend to call Vankooiman as a witness in this matter, so
evidence of the conviction is admissible to attack his character
for truthfulness under Rule 609(a)(2) of the Federal Rules of
Evidence. That rule provides that evidence of a witness's
criminal conviction "for any crime regardless of the punishment
. . . must be admitted if the court can readily determine that
establishing the elements of the crime reguired proving--or the
witness's admitting--a dishonest act or a false statement."
A conviction for issuing bad checks under New Hampshire law
reguires proof that the defendant "issued or passed the check
knowing or believing that the check would not be paid by the
drawee." N.H. Rev. Stat. Ann. § 638:4, IV(b). This amounts to
proof of a "dishonest act" for purposes of Rule 609(a)(2). See
Wagner v. Firestone Tire & Rubber Co., 890 F.2d 652, 655 n.3 (3d
Cir. 1989); United States v. Rogers, 853 F.2d 249, 252 (4th Cir.
1988). The plaintiffs do not argue to the contrary.
5Document no. 59.
10 Instead, the plaintiffs argue that, because Vankooiman's
testimony will be "uncontested," the jury will not have occasion
to consider his truthfulness as a witness, making the conviction
inadmissible for that purpose. But the plaintiffs provide no
authority for this novel proposition: that a witness can be
impeached with a prior conviction only after the substance of his
testimony has been controverted in some way. It certainly finds
no support in the text of Rule 609. Moreover, it is manifestly
not the case that, simply because the testimony of a witness has
not been contradicted, the jury is reguired to accept it, and may
not consider the myriad factors--including his or her character
for truthfulness--that the law has long recognized as bearing on
a witness's credibility. See, e.g., Quock Ting v. United States,
140 U.S. 417, 420-21 (1891) (enumerating factors that "may be
properly considered in determining the weight that should be
given to [a witness's] statements, although there be no adverse
verbal testimony adduced").
In any event, while certain portions of Vankooiman's
testimony are likely to be uncontested, the present record
strongly suggests that his testimony will not be undisputed in
its entirety. So, even if Rule 609(a) (2) allowed the impeachment
of a witness by a prior conviction only after the substance of
his testimony has been contradicted or contested in some respect.
11 that condition will almost certainly be satisfied here. The
plaintiffs' motion to exclude evidence of Vankooiman's conviction
for issuing a bad check is denied.6
D. The plaintiffs' motion to exclude bank records7
Finally, the plaintiffs have moved to exclude records of an
account Vankooiman maintained at TD Banknorth, arguing that they
are irrelevant. This is the same account on which Foley wrote
the check to cover the final payment on the camper--and the
account which, according to Tenaglia's contemporaneous statement
to the Lee police and her deposition testimony here, the bank
told her held insufficient funds to cover that check. The
defendants say that the bank records will show that, in fact, the
account held insufficient funds to cover the check (and that the
account lacked overdraft protection, and that Foley was not a
signatory) making the records relevant under two different
theories. Neither theory is persuasive.
First, the defendants argue that the account balance is
relevant to "the probable value of additional or substitute
6The plaintiffs' motion also refers to other items of Vankooiman's criminal history, including "drinking in public" and "an issue regarding payment to the State of New Hampshire for his daughter." The defendants' objection does not address these infractions, so the court has assumed that the defendants do not intend to adduce evidence of them at trial.
7Document no. 60.
12 procedural safeguards." The court takes this to mean that, even
had the plaintiffs enjoyed due process, in the form of notice and
a hearing, before they were allegedly deprived of the camper,
that "additional" safeguard would not have helped them, since it
would have been shown at the hearing that the plaintiffs had not
in fact made the final payment on the camper (as their account
lacked sufficient funds to cover the check Foley gave Tenaglia
for that purpose). This is simply a variant of the defendants'
principal argument for summary judgment on the plaintiffs' due
process claims, i.e., that the plaintiffs had no right to due
process before being deprived of the camper since they had no
interest in it under the terms of their agreement with Tenaglia.
But, as the court explained in rejecting that argument, "'[t]he
right to be heard does not depend upon an advance showing that
one will prevail at the hearing.'" Foley, 2012 DNH 081, 21
(guoting Fuentes, 407 U.S. at 87). Whether the account held
funds sufficient to cover the check that Foley gave Tenaglia is
irrelevant to the merits of the plaintiffs' due process claim.8
Second, the defendants argue that the records are admissible
"to impeach [the] credibility" of Foley and Vankooiman, on the
theory that they both have made statements that the bank records
8The defendants have not argued that the bank records are independently relevant to the trespass to chattels claim, so the court has not considered that point.
13 contradict: Foley signed the check and gave it to Tenaglia,
which the defendants take as a representation both that there
were sufficient funds in the account to cover it and that Foley
had signatory authority, while Vankooiman testified in his
deposition that "there were sufficient funds in the account
and/or that he had overdraft protection." Even taking the
defendants' characterization of these statements at face value,
however, the defendants may not use extrinsic evidence--such as
the bank records--to contradict those statements.
"It is well-established that a party may not present
extrinsic evidence to impeach a witness by contradiction on a
collateral matter." United States v. Beauchamp, 986 F.2d 1, 3
(1st Cir. 1993).9 For the reasons just explained, features of
the bank account (its balance, authorized signatories, and
whether it had overdraft protection) are collateral matters.
9As the court of appeals has explained, this rule is similar--in both effect and rationale--to Rule 608(b)'s ban on the use of extrinsic evidence to prove specific instances of a witness's conduct bearing on his or her character for truthfulness. Beauchamp, 986 F.2d at 4 n.l. That rule does not specifically apply to use of the bank records to impeach Foley and Vankooiman, however, because "it is difficult to conceptualize the actual [account balance] as being a 'specific instance of conduct' within the meaning of Rule 608(b)." Id. But Rule 608(b) does bar the use of the records to show, as the defendants suggest, that Tenaglia "told the truth . . . when she advised [] Hupppe [sic] that the bank would not honor the check." See, e.g.. United States v. Sumlin, 271 F.3d 274, 282 (B.C. Cir. 2001) ("If offered only to bolster [a witness's] credibility, the extrinsic evidence is barred by Rule 608(b).").
14 i.e., they are not "relevant to establish a fact of consequence"
to the merits of the plaintiffs' due process claim or any other
material issue identified by the defendants. United States v.
Catalan-Roman, 585 F.3d 453, 468 (1st Cir. 2009) . The bank
records are therefore inadmissible to impeach Foley or
Vankooiman. Because the defendants have not shown that the bank
records are independently relevant, or that they are admissible
under any other theory, the plaintiffs' motion to exclude those
records is granted.10
Ill. Conclusion
For the foregoing reasons, the defendants' motion to exclude
Vogelman's testimony,11 and plaintiffs' motions to exclude the
child custody records,12 evidence of their lawsuit against the
campground owner,13 and the records of Vankooiman's bank account14
are GRANTED. The plaintiffs' motion to exclude evidence of
10This ruling assumes, of course, that the plaintiffs do not "open the door" to the records by stating or implying during the trial that the account did in fact have sufficient funds to cover the check. The plaintiffs--who have stridently argued that very point at other stages of this litigation--are advised to proceed cautiously if they wish to prevent the admission of the records.
"Document no. 54.
"Document no. 57.
"Document no. 58.
"Document no. 60.
15 Vankooiman's conviction for issuing a bad check15 is DENIED. The
plaintiffs' motion for attorneys' fees16 is DENIED as premature.
SO ORDERED.
Jos/ph N. Laptante Un/ted States District Judge
Dated: May 9, 2012
cc: Kimberly A. Zizza, Esq. Jacqueline C. Fitzgerald Boyd, Esq. R. Matthew Cairns, Esq. Edmund J. Waters, Jr., Esq.
15Document no. 59.
16Document no. 61.