Hayden v. Graystone CV-93-112-JD 08/30/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Jessica L. Havden, et al.
v. Civil No. 93-112-JD
Richard A. Grayson, et al.
O R D E R
Currently before the court are the defendants' Rule 72
objections to the July 1 , 1995, order of the magistrate judge.
For the reasons set forth below, the order is modified.
Background
The plaintiffs filed their complaint on March 9, 1993,
alleging that defendants Richard Grayson and the town of Lisbon
("town") had violated their Fourteenth Amendment rights to due
process and egual protection of the laws when they failed to
prosecute Hervey Gagnon, father of the plaintiffs, for past acts
of sexual abuse. On August 19, 1993, the court dismissed with
prejudice the plaintiff's due process claim against Grayson and
dismissed all claims against the town, leaving the egual
protection claim against Grayson as the sole remaining count. At
that time, the defendants did not move for reconsideration or
attempt to amend their complaint. On March 22, 1994, the parties participated in a pretrial
conference conducted by Magistrate Judge William H. Barry, Jr.
The plaintiffs reguested additional time to amend their complaint
on grounds that they had discovered new evidence and that their
counsel's office had been severely damaged in a fire. On March
24, 1994, the magistrate judge issued a scheduling order allowing
the plaintiffs until October 1, 1994, to file a motion to amend.
On September 30, 1994, the plaintiffs filed their motion to
amend. By order dated October 6, 1994, the court refused to
docket the motion for failure to comply with Local Rule 11. The
motion was resubmitted without objection and granted on November
7, 1994.
On December 23, 1994, plaintiffs' counsel withdrew and new
counsel filed an appearance. On January 12, 1995, a second
pretrial conference occurred. The plaintiffs' counsel announced
their intention to filed a second amended complaint in order to
assert state law claims against Grayson and the town and to
reassert the egual protection claim against the town. Despite
protestations from defense counsel, the magistrate judge issued a
pre-trial order directing the plaintiffs to file their motion to
amend by January 17, 1995.
The plaintiffs filed their second motion to amend on January
18, 1995. In the proposed amended complaint, the plaintiffs
2 asserted denial of equal protection claims under the United
States and the New Hampshire Constitutions against Grayson and
the town. They also asserted various state law claims against
both Grayson and the town. On July, 7, 1995, the magistrate
judge issued an order granting the plaintiff's motion to amend.
Discussion
The defendants assert that the magistrate judge failed to
apply the law of the case doctrine to bar the plaintiffs from
reasserting claims against the town. The defendants argue that,
as a result, the plaintiffs wrongfully have been allowed to
reinstate suit against a party almost two years after dismissal
of all claims against it. In addition, the defendants also argue
that the magistrate judge misapplied Rules 16(b) and 15(a) of the
Federal Rules of Civil Procedure. The plaintiffs respond that
the law of the case doctrine does not apply under the
circumstances of this action.
Rule 7 2 (a) of the Federal Rules of Civil Procedure provides
that
[a] magistrate judge to whom a pretrial matter not dispositive of a claim or defense of a party is referred shall . . . enter into the record a written order setting forth the disposition of the matter . . . . The district judge to whom the case is assigned shall consider [timely] objections and shall modify or set aside that portion of the magistrate
3 judge's order found to be clearly erroneous or contrary to law.
Fed. R. Civ. P. 72(a) (emphasis supplied); see 28 U.S.C.A. §
636(b)(1)(West 1993); Quaker State Oil Ref, v. Garritv Oi l , 884
F.2d 1510, 1517 (1st Cir. 1989); Blinzler v. Marriott Int'l,
Inc., 857 F. Supp. 1, 2-3 (D.R.I. 1994). A magistrate judge's
factual finding is considered clearly erroneous when it is
contrary to the "clear weight of the evidence or when the court
has a 'definite and firm conviction that a mistake has been
committed.'" Blinzler, 857 F. Supp. at 3 (guoting Holmes v.
Bateson, 583 F.2d 542, 552 (1st Cir. 1978)). Where a
dissatisfied litigant objects to a magistrate judge's legal
ruling on a non-dispositive motion, the court considers whether
the ruling was contrary to law. E.g., Bryant v. Hilst, 136
F.R.D. 487, 488 (D. Kan. 1991). The court is empowered to modify
or set aside any factual or legal ruling of a magistrate judge
which does not survive application of the clearly erroneous or
contrary to law standard of Rule 72(a). E.g., Blinzler, 857 F.
Supp. at 2 .
Rule 7 2 (b) provides that a dissatisfied litigant may obtain
a de novo review of a dispositive pretrial ruling issued by a
magistrate judge. Fed. R. Civ. P. 72(b); see 28 U.S.C.A. §
636(b)(1) (West 1993). A court performing a de novo
determination must carefully review the evidentiary record and
4 examine the pleadings, memoranda, and applicable law. See 28
U.S.C.A § 636(b) (1); Myers v. United States, 805 F. Supp. 90, 91,
n.l (D.N.H. 1992) (citing United States v. Raddatz, 100 S. C t .
2406, 2411-13 (1980) ) .
The defendants have brought an objection under Rule 72(a).
Arguably, the magistrate judge's order, although not styled as a
report and recommendation, is dispositive as it deprives the town
of a defense, and is therefore entitled to de novo review.
However, as the dispute involves a pure guestion of law, the
standards of review are essentially identical and therefore it is
not necessary to resolve this issue.
In the instant action, the dismissal of the town was based
upon a failure to state a claim upon which relief can be granted.
See Fed. R. Civ. P. 12(b)(6). Certain jurisdictions hold that a
dismissal for failure to state a claim does not bar a new action
on a complaint that does state a good claim. See Restatement
(Second) Judgments, § 19, Reporter's Note at 167 (1980).
However, this is not the rule in the federal system where
pleadings are liberally construed, and amendment liberally
awarded. See Fed. R. Civ. P. 8, 15. Under the federal rules, a
dismissal under Rule 12(b)(6) without reservation is on the
merits unless the contrary appears on the record or is stated in
the order of dismissal. Federated Dept. Stores, Inc. v. Moite,
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Hayden v. Graystone CV-93-112-JD 08/30/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Jessica L. Havden, et al.
v. Civil No. 93-112-JD
Richard A. Grayson, et al.
O R D E R
Currently before the court are the defendants' Rule 72
objections to the July 1 , 1995, order of the magistrate judge.
For the reasons set forth below, the order is modified.
Background
The plaintiffs filed their complaint on March 9, 1993,
alleging that defendants Richard Grayson and the town of Lisbon
("town") had violated their Fourteenth Amendment rights to due
process and egual protection of the laws when they failed to
prosecute Hervey Gagnon, father of the plaintiffs, for past acts
of sexual abuse. On August 19, 1993, the court dismissed with
prejudice the plaintiff's due process claim against Grayson and
dismissed all claims against the town, leaving the egual
protection claim against Grayson as the sole remaining count. At
that time, the defendants did not move for reconsideration or
attempt to amend their complaint. On March 22, 1994, the parties participated in a pretrial
conference conducted by Magistrate Judge William H. Barry, Jr.
The plaintiffs reguested additional time to amend their complaint
on grounds that they had discovered new evidence and that their
counsel's office had been severely damaged in a fire. On March
24, 1994, the magistrate judge issued a scheduling order allowing
the plaintiffs until October 1, 1994, to file a motion to amend.
On September 30, 1994, the plaintiffs filed their motion to
amend. By order dated October 6, 1994, the court refused to
docket the motion for failure to comply with Local Rule 11. The
motion was resubmitted without objection and granted on November
7, 1994.
On December 23, 1994, plaintiffs' counsel withdrew and new
counsel filed an appearance. On January 12, 1995, a second
pretrial conference occurred. The plaintiffs' counsel announced
their intention to filed a second amended complaint in order to
assert state law claims against Grayson and the town and to
reassert the egual protection claim against the town. Despite
protestations from defense counsel, the magistrate judge issued a
pre-trial order directing the plaintiffs to file their motion to
amend by January 17, 1995.
The plaintiffs filed their second motion to amend on January
18, 1995. In the proposed amended complaint, the plaintiffs
2 asserted denial of equal protection claims under the United
States and the New Hampshire Constitutions against Grayson and
the town. They also asserted various state law claims against
both Grayson and the town. On July, 7, 1995, the magistrate
judge issued an order granting the plaintiff's motion to amend.
Discussion
The defendants assert that the magistrate judge failed to
apply the law of the case doctrine to bar the plaintiffs from
reasserting claims against the town. The defendants argue that,
as a result, the plaintiffs wrongfully have been allowed to
reinstate suit against a party almost two years after dismissal
of all claims against it. In addition, the defendants also argue
that the magistrate judge misapplied Rules 16(b) and 15(a) of the
Federal Rules of Civil Procedure. The plaintiffs respond that
the law of the case doctrine does not apply under the
circumstances of this action.
Rule 7 2 (a) of the Federal Rules of Civil Procedure provides
that
[a] magistrate judge to whom a pretrial matter not dispositive of a claim or defense of a party is referred shall . . . enter into the record a written order setting forth the disposition of the matter . . . . The district judge to whom the case is assigned shall consider [timely] objections and shall modify or set aside that portion of the magistrate
3 judge's order found to be clearly erroneous or contrary to law.
Fed. R. Civ. P. 72(a) (emphasis supplied); see 28 U.S.C.A. §
636(b)(1)(West 1993); Quaker State Oil Ref, v. Garritv Oi l , 884
F.2d 1510, 1517 (1st Cir. 1989); Blinzler v. Marriott Int'l,
Inc., 857 F. Supp. 1, 2-3 (D.R.I. 1994). A magistrate judge's
factual finding is considered clearly erroneous when it is
contrary to the "clear weight of the evidence or when the court
has a 'definite and firm conviction that a mistake has been
committed.'" Blinzler, 857 F. Supp. at 3 (guoting Holmes v.
Bateson, 583 F.2d 542, 552 (1st Cir. 1978)). Where a
dissatisfied litigant objects to a magistrate judge's legal
ruling on a non-dispositive motion, the court considers whether
the ruling was contrary to law. E.g., Bryant v. Hilst, 136
F.R.D. 487, 488 (D. Kan. 1991). The court is empowered to modify
or set aside any factual or legal ruling of a magistrate judge
which does not survive application of the clearly erroneous or
contrary to law standard of Rule 72(a). E.g., Blinzler, 857 F.
Supp. at 2 .
Rule 7 2 (b) provides that a dissatisfied litigant may obtain
a de novo review of a dispositive pretrial ruling issued by a
magistrate judge. Fed. R. Civ. P. 72(b); see 28 U.S.C.A. §
636(b)(1) (West 1993). A court performing a de novo
determination must carefully review the evidentiary record and
4 examine the pleadings, memoranda, and applicable law. See 28
U.S.C.A § 636(b) (1); Myers v. United States, 805 F. Supp. 90, 91,
n.l (D.N.H. 1992) (citing United States v. Raddatz, 100 S. C t .
2406, 2411-13 (1980) ) .
The defendants have brought an objection under Rule 72(a).
Arguably, the magistrate judge's order, although not styled as a
report and recommendation, is dispositive as it deprives the town
of a defense, and is therefore entitled to de novo review.
However, as the dispute involves a pure guestion of law, the
standards of review are essentially identical and therefore it is
not necessary to resolve this issue.
In the instant action, the dismissal of the town was based
upon a failure to state a claim upon which relief can be granted.
See Fed. R. Civ. P. 12(b)(6). Certain jurisdictions hold that a
dismissal for failure to state a claim does not bar a new action
on a complaint that does state a good claim. See Restatement
(Second) Judgments, § 19, Reporter's Note at 167 (1980).
However, this is not the rule in the federal system where
pleadings are liberally construed, and amendment liberally
awarded. See Fed. R. Civ. P. 8, 15. Under the federal rules, a
dismissal under Rule 12(b)(6) without reservation is on the
merits unless the contrary appears on the record or is stated in
the order of dismissal. Federated Dept. Stores, Inc. v. Moite,
5 452 U.S. 394, 101 S. C t . 2424, 69 L. ed. 2d 103 (1980); Winslow
v. Walters, 815 F.2d 1114 (7th Cir. 1987). The dismissal has the
same res iudicata effect as if rendered after trial, thus barring
a subsequent suit on the same claim. Fed. R. Civ. P. 41(b);
Had the town been the only defendant in this action, the
court's dismissal of all claims against it would have resulted in
entry of final judgment against the plaintiffs and the doctrine
of res iudicata would bar further action between the parties on
all issues presented by the pleadings. However, because Grayson
remained a viable defendant, the action proceeded forward and the
case is not closed. Thus, the defendants may not use res
iudicata as a defense to the new claims.
Nonetheless, the doctrine known as "law of the case" is
analogous to the doctrine of res iudicata, except that the
doctrine applies within the context of a single action rather
than as a bar to subsequent actions. Piazza v. Ponte Rogue, 909
F.2d 35, 38 (1st Cir. 1990). The law of the case doctrine posits
that when a court has decided upon a rule of law, that decision
should continue to govern the same issue in subsequent stages in
the same case. Therefore, as a general rule, courts will not
revisit an issue that has already been decided, although a court
may depart from a prior holding if convinced that it is clearly
erroneous and would work a manifest injustice." Arizona v.
6 California, 460 U.S. 605, 618 n.8 (1982). The doctrine seeks to
"protect[] against the agitation of settled issues" by promoting
finality and efficiency in the judicial process. IB Jeremy C
Moore et al., Moore's Federal Practice 5 0.404[1] (2d ed. 1984).
In allowing the motion to amend, the magistrate judge,
relying on Abbadessa v. Moore Business Forms, Inc., 987 F.2d 18
(1st Cir. 1993) ruled that
The law of the case doctrine would apply in this case if, hypothetically speaking, this court had dismissed the egual protection claim as a matter of law. However, as the egual protection claim, in the earlier order, was not dismissed on an issue of law, but rather on an issue of fact, the argument that the claim was fully and fairly addressed can hardly be entertained.
Order of July 7, 1995, at 8. The magistrate judge misread
Abbadessa and the court's earlier order. Abbadessa is
inapposite. In Abbadessa, the First Circuit stated that when a
motion for summary judgment is denied based on the existence of
genuine issues of material fact, the law of the case doctrine
precludes further motions on the same legal issue. This is not
the case before the court. Moreover, the court did not dismiss
the egual protection claim "on an issue of fact," but rather
dismissed the town as a matter of la w . The magistrate's ruling
is contrary to law and must be set aside.1 The town, having
1The court recognizes that the better course of action would have been to allow the plaintiffs to amend before entering the
7 prevailed with its motion to dismiss nearly one and a half years
ago, has a settled expectation that it is no longer a party to
the action. Therefore, to the extent that the magistrate allowed
amendment to reassert claims against the town, the magistrate's
order is vacated. No new claims may be brought against the town
of Lisbon.
In addition, the defendants argue that the magistrate
judge's allowance of the motion to amend violates Fed. R. Civ. P.
16(b) because there was no showing of good cause, and Fed. R.
Civ. P. 15(a) because he failed to place the burden on the
plaintiffs to show valid reason for their neglect and delay.
Because the court has found that the plaintiffs may not amend as
to the town, these objections only concern defendant Grayson. As
such, the court employs the clearly erroneous and contrary to law
standard of review.
The court has reviewed the magistrate judge's order and
finds that he found good cause to allow amendment. Further, the
court does not find that the magistrate judge engaged in improper
dismissal without prejudice. However, the plaintiffs failed to reguest reconsideration of the order and the length of time between the dismissal and the second motion to amend suggests that allowing amendment at that time would have been futile. burden shifting. Although the order is not a model of clarity,
the dictates of rules 16(b) and 15(a) were considered and
followed. The rulings are not contrary to law and the findings
are not clearly erroneous. The order may stand to the extent it
allows amendment of the claims against Grayson.
Conclusion
The court has carefully considered the defendants'
objections to the magistrate judge's July 7, 1995, order
(document no. 25). The order is modified as follows. The
portion of the order allowing the plaintiffs to bring new claims
against the town of Lisbon is vacated. The town is no longer a
party to this action. The portion of the order allowing the
plaintiff's to bring new claims against defendant Grayson stands
as it is neither contrary to law nor clearly erroneous.
SO ORDERED.
Joseph A. DiClerico, Jr. Chief Judge August 30, 1995
cc: Edward M. Van Dorn Jr., Esguire Michael Lenehan, Esguire