Homo v. Henniker, et al CV-94-387-SD 07/06/95 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Lawrence R. Homo, Sr.
v. Civil No. 94-387-SD
Town of Henniker; William Belanger; Wayne Colby; Henniker Police Dept.; Chief Timothy Russell; Police Officer Walter Crane
O R D E R
In this civil action, pro se plaintiff Lawrence R. Homo,
Sr., alleges that the Town of Henniker and its selectmen (William
Belanger is a current selectman; Wayne Colby is a former
selectman), police department, and police officers conspired to
deprive him of certain rights secured by the First, Fourth, and
Fourteenth Amendments to the United States Constitution.
Plaintiff brings this action pursuant to 42 U.S.C. §§ 1983 and
1985.
Presently before the court is defendants' motion for
judgment on the pleadings, to which plaintiff objects. Factual Background
At the core of this dispute between a town and one of its
residents is a change in zoning and the town's subseguent efforts
to enforce said change.1 On October 21, 1992, the town, by and
through its agents, sought to remove automobiles and other metal
from plaintiff's property pursuant to a court order "to enter the
premises peaceably." Aug. 9, 1991, Order, Civil No. 90-E-132
(Dunn, J.) (attached to Complaint). Plaintiff attempted to
impede the process, but was thereafter arrested and charged with
obstructing government administration contrary to New Hampshire
Revised Statutes Annotated (RSA) 642:1 (1986).2
1In its first action, filed in Merrimack County Superior Court, Civ. No. 87-E-188, the town sought to enjoin plaintiff from continuing to operate a junkyard on his property. Said injunction issued on December 30, 1988, was affirmed by the New Hampshire Supreme Court on August 14, 1992, and became final on October 5, 1992, when plaintiff's motion for reconsideration was denied.
On March 9, 1990, the town filed a new petition in the same court. Civ. No. 90-E-132, seeking permission to begin removing the junk from plaintiff's land. Justice Dunn granted the town's motion "to enter the premises peaceably" on August 9, 1991. Plaintiff sought to appeal this order on October 7, 1991, but the notice of appeal was declined by the New Hampshire Supreme Court on October 27, 1992.
2Upon trial on the merits. Justice Arnold found that "upon filing the [Oct. 7, 1991] Notice of Appeal, the defendant[] had an expectation that the status guo would be maintained during the pendency of the appeal." State v. Homo, No. 92-CR-2767, at 1-2 (Dist. C t . Henniker Jan. 20, 1993). Although noting that "[i]f the Notice of Appeal were not pending at the time of the Town's actions herein, the court may have ruled differently," id. at 2,
2 Plaintiff filed suit3 against the town and others4 in
Merrimack County Superior Court on February 28, 1994. This
action, assigned Civ. No. 94-C-130-WS, was styled as "a civil
action for monetary damages against the [defendants] . . . for
their actions in concert, under color and pretense of New
Hampshire State Law, intended to deprive and actually depriving
plaintiff [s] of their rights to the use of their real estate
. . . ." Feb. 28, 1994, Complaint 5 1. By prohibiting the
operation of plaintiff's junkyard, plaintiff alleges that the
town (1) effected a "taking" without payment of just
compensation; (2) intentionally discriminated against plaintiff
and deprived him of egual protection and due process; (3) engaged
in a pattern of malicious prosecution; and (4) unlawfully seized
plaintiff's property.
Defendants moved for dismissal in the state court, which
granted same "in its entirety." May 10, 1994, Order, Civil No.
the court ultimately found plaintiff to be not guilty.
3Plaintiff was joined in the state court action by his wife, Katheren I. Homo, and son, Lawrence R. Homo, Jr. Neither party joins in the instant action.
4In addition to the Town of Henniker, the following were also named as defendants: Wayne Colby and William Belanger, Henniker Selectmen; Ed Wojnowski, Henniker Town Administrator; Henniker Police Officer Walter Crane; Kenneth Ward; Lois Brown; David P. Currier; John Dopergolon and Jeffrey Fielding, John's Wrecker Service; and Meriden Timber Company. All individual defendants were sued in their individual capacities.
3 94-C-130-WS (Smukler, J.)- Plaintiff's notice of appeal to the
New Hampshire Supreme Court was declined on November 14, 1994,
and the subsequent motion to reconsider was denied on January 19,
1995.
With the May 10, 1994, dismissal of the state court action,
plaintiff sought a federal forum for resolution of his claims.
On July 20, 1994, plaintiff filed a 42 U.S.C. § 1983 complaint
focusing upon his October 21, 1992, arrest. Simply put,
plaintiff alleges violations of due process and equal protection,
race discrimination, warrantless arrest and seizure, and
conspiracy to deprive plaintiff of certain guaranteed rights.5
Discussion
1. Judgment on the Pleadings Standard
Under Rule 12(c), Fed. R. Civ. P., "[a]fter the pleadings
5Plaintiff's complaint in this matter specifically alleges, inter alia, that "[e]ach of the [individual] defendants, separately and in concert, acted outside the scope of his jurisdiction and without authorization of law [and each of the [individual] defendants], separately with the specific intent] to deprive plaintiff by subjecting the plaintiff to an unlawful arrest, illegal detention and by the invasion of his privacy liability, freedom, seizure of his person without an arrest warrant or warrant for a seizure of plaintiff or a warrant issued by any judge, court, or magistrate authorizing such a seizure." Complaint 5 28 (bracketed material in complaint). Plaintiff amended his complaint on August 17, 1994, to add an additional claim under New Hampshire common law for false arrest and malicious prosecution.
4 are closed but within such time as not to delay the trial, any
party may move for judgment on the pleadings." "The standard for
evaluating a Rule 1 2 (c) motion for judgment on the pleadings is
essentially the same as the standard for evaluating a Rule
12(b)(6) motion." Metromedia Steakhouses Co., L.P. v. Resco
Management, 168 B.R. 483, 485 (D.N.H. 1994) (citation omitted).
"In reviewing the defendants' motion for judgment on the
pleadings . . . the court must accept all of the factual
averments contained in the complaint as true and draw every
reasonable inference helpful to the plaintiff's cause." Sinclair
v. Brill, 815 F. Supp. 44, 46 (D.N.H. 1993) (citing Santiago de
Castro v. Morales Medina, 943 F.2d 129, 130 (1st Cir. 1991)); see
also Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988)
("because rendition of judgment in such an abrupt fashion
represents an extremely early assessment of the merits of the
case, the trial court must accept all of the nonmovant's well-
pleaded factual averments as true and draw all reasonable
inferences in his favor" (citations omitted)).
Even then, judgment may not be entered on the pleadings
"'"unless it appears beyond doubt that the plaintiff can prove no
set of facts in support of [his] claim which would entitle [him]
to relief."'" Rivera-Gomez, supra, 843 F.2d at 635 (guoting
George C. Frev Ready-Mixed Concrete, Inc. v. Pine Hill Concrete
5 Mix Corp., 554 F.2d 551, 553 (2d Cir. 1977) (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957))).
Ordinarily "'any consideration of documents not attached to
the complaint, or not expressly incorporated therein, is
forbidden, unless the [Rule 12 (c)] proceeding is properly
converted into one for summary judgment under [Fed. R. Civ. P.]
5 6.'" Cooperativa de Ahorro Y Credito Aquada v. Kidder, Peabody
6 C o ., 993 F.2d 269, 272 (1st Cir. 1993) (quoting Watterson v.
Page, 987 F.2d 1, 3 (1st Cir. 1993)), cert, denied, ___ U.S. ___
115 S. C t . 1792 (1995) (second alteration in Kidder); see also
Rule 12(b), Fed. R. Civ. P. (when "matters outside the pleading
are presented to and not excluded by the court, the motion shall
be treated as one for summary judgment and disposed of as
provided in Rule 56, and all parties shall be given reasonable
opportunity to present all material made pertinent to such a
motion by Rule 56"); 2A J a m e s W m . M o o r e , M o o r e 's F e d e r a l P r a c t i c e
5 12.15, at 12-145, 146 (1995) ("Under [Rule 12(c)], it is clear
that the court may, if it so chooses, consider matters outside
the pleadings as if the motion were one for summary judgment.
When the court proceeds in this manner, it must give the
nonmoving party notice and a reasonable opportunity to present
material in opposition to the motion."); accord Dempsey v.
Atchison, Topeka, and Santa Fe. Rv. Co., 16 F.3d 832, 835 (7th
6 Cir.),. cert, denied, ___ U.S. , 115 S. C t . 82 (1994).
"However, courts have made narrow exceptions for documents
the authenticity of which are not disputed by the parties; for
official public records; for documents central to plaintiffs'
claim; or for documents sufficiently referred to in the
complaint." Watterson, supra, 987 F.2d at 3 (citing, inter alia.
Mack v. South Bay Beer Distrib., Inc., 798 F.2d 1279, 1282 (9th
Cir. 1986) ("[A] court may properly look beyond the complaint to
matters of public record and doing so does not convert a Rule
12[(c)] motion to one for summary judgment.")). The rationale
for such narrow exceptions is that
the problem that arises when a court reviews statements extraneous to a complaint generally is the lack of notice to the plaintiff that they may be so considered; it is for that reason--reguiring notice so that the party against whom the motion to dismiss is made may respond--that Rule 12[(c)] motions are ordinarily converted into summary judgment motions. Where plaintiff has actual notice of all the information in the movant's papers and has relied upon these documents in framing the complaint the necessity of translating a Rule 12[(c)] motion into one under Rule 56 is largely dissipated.
Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.
1991), cert, denied, ___ U.S. , 112 S. C t . 1561 (1992).
Attached to defendants' motion are the writ of summons in
Homo v. Henniker, Civ. No. 94-C-130-WS; the May 10, 1994, Notice
of Decision granting defendants' motion to dismiss in that matter; the November 14, 1994, order of the New Hampshire Supreme
Court declining plaintiff's notice of appeal; and the January 19,
1995, order of the Supreme Court denying plaintiff's motion to
reconsider.
As the above enumerated documents are both referenced in
plaintiff's federal court complaint and contain information of
which plaintiff has actual knowledge, the court finds that
conversion of this Rule 1 2 (c) motion into one for summary
judgment is unnecessary.
2. Res Judicata
Defendants contend, under the principles of res judicata,
that plaintiff's present action is precluded by the dismissal of
his February 28, 1994, state court action. Although plaintiff's
pro se status reguires the court to hold the complaint to a "less
stringent" standard than pleadings drafted by attorneys, Eveland
v. Director of CIA, 843 F.2d 46, 49 (1st Cir. 1988) (per curiam)
(citing Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam)),
such status, standing alone, cannot and will not operate to
prevent the application of res judicata when so warranted. See,
e.g., Posadas de Puerto Rico, Inc. v. Radin, 856 F.2d 399, 401
(1st Cir. 1988) (affirming summary judgment dismissal). a. Effect of State Court Judgment in Subsequent Federal Suit
By virtue of the federal full faith and credit statute, 28
U.S.C. § 1738,6 federal courts are required "to employ state
rules of res judicata when determining the preclusive effect, if
any, to be given to a state court determination." Kerouac v.
EPIC, 825 F. Supp. 438, 441 (D.N.H. 1993); see also Migra v.
Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81 (1984);
Kremer v. Chemical Constr. Corp., 456 U.S. 461, 466 (1982); Wong
v. Smith, 961 F.2d 1018, 1019 (1st Cir. 1992) (per curiam). With
two exceptions not presently applicable, the general rule
maintains that " [a] valid and final judgment of a state court has
the same effects under the rules of res judicata in a subsequent
action in a federal court that the judgment has by the law of the
state in which the judgment was rendered . . . ." R estatement
(Se c o n d ) o f J u d g m e n t s § 86 (1982) .
That plaintiff's subsequent federal lawsuit is styled as a
civil rights action under 42 U.S.C. § 1983 is insufficient to
prevent the application of state-law principles of res judicata.
See Migra, supra, 465 U.S. at 85 ("Section 1983 . . . does not
6The full faith and credit statute provides, in relevant part, "The records and judicial proceedings of any court of any . . . State . . . shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State . . . ." 28 U.S.C. § 1738 (1994) . override state preclusion law and guarantee petitioner a right
to proceed to judgment in state court . . . on state claims and
then turn to federal court for adjudication of . . . federal
claims."); Cuesnonqle v. Ramos, 835 F.2d 1486, 1497 n.8 (1st Cir.
1987) ("where a plaintiff neglects to raise a federal claim in a
state court action, that plaintiff is estopped from raising the
federal claim in federal court subseguent to a state court
judgment") (construing Migra) .
b. Res Judicata Principles under New Hampshire Law
"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.'" Elevens v. Town of Bow, ___ F. Supp. ___ , , No. 94-
124-SD, slip op. at 6-7 (D.N.H. Oct. 12, 1994) (guoting In re
Alfred P., 126 N.H. 628, 629, 495 A.2d 1264, 1265 (1985) and
citing Scheele v. Village Dist. of Eidelweiss, 122 N.H. 1015,
1019, 453 A.2d 1281, 1283 (1982)). Accord, Wolf v. Gruntal &
C o ., 45 F.3d 524, 527 (1st Cir. 1995) ("res judicata (claim
preclusion) normally bars (1) relitigation of claims actually
asserted in a tribunal of competent jurisdiction . . . and (11)
litigation of claims that arose from the same set of operative
10 facts and could have been raised in the prior proceeding")
(footnote and citations omitted); Brown v. Felson, 442 U.S. 127,
139 n.10 (1979) ("res judicata forecloses all that which might
have been litigated previously").
Because "[t]he term 'cause of action' embraces all theories
on which relief could be claimed arising out of the same factual
transaction," res judicata is considered to be a "broader remedy"
than the companion principle of collateral estoppel. ERG, Inc.
v. Barnes, 137 N.H. 186, 191, 624 A.2d 555, 558 (1993) (citing
Eastern Marine Constr. Corp v. First Southern Leasing, 129 N.H.
270, 275, 525 A.2d 709, 712 (1987)); see also Shepherd v.
Westmoreland, 130 N.H. 542, 544, 543 A.2d 922, 923 (1988) ("when
determining whether res judicata bars a subseguent action" the
court's inguiry focuses upon "whether the second action
constitutes a different cause of action from the first . . . .
[T]he term '"cause of action" means the right to recover,
regardless of the theory of recovery. A theory of recovery must
be pleaded, or be subject to bar.'") (guoting Eastern Marine,
supra, 129 N.H. at 274, 525 A.2d at 712)).
Acknowledging that "[t]he 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
11 court in the same a c t i o n , Eastern Marine, supra, 129 N.H. at
274-75, 525 A.2d at 712 (quoting Williamson v. Columbia Gas &
Elec. Corp., 186 F.2d 464, 469 (3d Cir. 1950), cert, denied, 341
U.S. 921 (1951)), New Hampshire courts consistently bar suits
"closely related" to an earlier action, even wherethe subsequent
action is advanced under a separate legal theory. See Shepherd,
supra, 130 N.H. at 544, 543 A.2d at 923; accord. Eastern Marine,
supra, 129 N.H. at 275, 525 A.2d at 713 ("'a change in labels is
not sufficient to remove the effect of the prior adjudication'")
(quoting Lougee v. Beres, 113 N.H. 712, 714, 313 A.2d 422, 423
(1973) ) .
Accordingly, "[w]hen a valid and final judgment rendered in
an action extinguishes the plaintiff's claim . . . the claim
extinguished includes all rights of the plaintiff to remedies
against the defendant with respect to all or any part of the
transaction, or series of connected transactions, out of which
the action arose." Restatement, supra, § 2 4 . 7
7The rule as enunciated in section 24
applies to extinguish a claim by the plaintiff against the defendant even though the plaintiff is prepared in the second action (1) To present evidence or grounds or theories of the case not presented in the first action, or (2) To seek remedies or forms of relief not demanded in the first action.
12 (1) Finality of State Court Judgment
On May 10, 1994, the Merrimack County Superior Court, acting
upon defendants' motion to dismiss, granted said motion and
dismissed plaintiff's February 28, 1994, complaint in its
entirety. This ruling became final on January 19, 1995, when
plaintiff's motion to reconsider was denied by the New Hampshire
Supreme Court.
"The rules of res judicata are applicable only when a final
judgment is rendered." Restatement, supra, § 13. "[W]hen res
judicata is in guestion a judgment will ordinarily be considered
final in respect to a claim . . . if it is not tentative,
provisional, or contingent and represents the completion of all
steps in the adjudication of the claim by the court . . . ."
Id. cmt. b .
This rule of "finality" applies with egual force when the
judgment is entered "for the defendant on demurrer or motion to
dismiss for failure to state a claim." Id. § 19, cmt. d; see
also IB J a m e s W m . M o o r e , M o o r e 's F e d e r a l P r a c t i c e , 5 0.409 [1.-2], at
11-132, -133 (1995) ("in a system in which pleadings are simple
and liberally construed and amendment liberally allowed, it is
clearly preferable to provide the opportunity to replead before
supra, § 25; see also Eastern Marine, supra, 12 9 N.H. Restatement, at 275, 525 A.2d at 712.
13 entry of judgment and regard the judgment as a bar. This is the
rule in federal courts and the trend of the decisions in the
state courts."); ERG, Inc., supra, 137 N.H. at 191, 624 A.2d at
559 ("dismissal for failure to state a cause of action [is] a
final decision on the merits"); Ruple v. City of Vermillion, 714
F.2d 860, 862 (8th Cir. 1983) ("a judgment entered on a motion to
dismiss . . . is just as binding as a judgment entered after a
trial of the facts"), cert, denied, 465 U.S. 1029 (1984).
In light of the authorities hereinabove discussed, the court
finds and rules that plaintiff's prior state court action. Civil
No. 94-C-130-WS, against the defendants has been finally
resolved, on the merits, by a court of competent jurisdiction.
(2) Identity of the Parties
As previously noted, plaintiff's state court complaint
named, inter alia, the Town of Henniker, Selectmen Colby and
Belanger, and Police Officer Walter Crane as defendants. In the
present action, plaintiff adds two defendants: the Henniker
Police Department and Chief Timothy Russell. The guestion thus
raised is whether these two "new" defendants share sufficient
identicality with the parties named as defendants in the prior
state court action so as to establish privity, a necessary
concomitant to the res judicata bar.
14 The Supreme Court has "abandon[ed] the requirement of
mutuality of parties," United States v. Mendoza, 464 U.S. 154,
158 (1984) (citing Blonder-Tonque Labs., Inc. v. University of
111. Found., 402 U.S. 313 (1971)), and a district court acts
"well within its discretion in dismissing . . . actions pursuant
to the doctrine of nonmutual claim . . . preclusion," Randles v.
Gregart, 965 F.2d 90, 93 (6th Cir. 1992) (citing Hazaard v.
Weinberger, 382 F. Supp. 225, 226-29 (S.D.N.Y. 1974) (nonmutual
claim preclusion appropriate when pro se litigant brings repeated
actions upon same operative facts with slight change in legal
theories and "case of characters-defendants"), aff'd without
opinion, 519 F.2d 1397 (2d Cir. 1975)).
Plaintiff's state court complaint focuses upon the harm
allegedly inflicted by Henniker and its agents as a result of the
change in zoning, judicially sanctioned enforcement of same, and
forcible implementation of said judicial decree--all of which had
the ultimate effect of closing down plaintiff's junkyard. That
plaintiff's state court litigation proceeded against defendants
in their individual capacities, while the instant action pertains
both individually and officially, is of no moment. Plaintiff's
claims arose as a result of conduct taken by defendants while in
the scope of their employment. Consequently, Henniker obliged
itself to both represent and protect the interests of the
15 municipal defendants.8
The court thus finds and rules that the defendants named in
this suit and those named in the prior state court litigation
satisfy the privity requirement. Accordingly, the court further
finds and rules that all of the current defendants are entitled
to interpose the res judicata defense against the plaintiff.
(3) Identity of Causes of Action
Whereas plaintiff's state court action was styled as a
"takings" claim under the constitutions of the State of New
Hampshire and the United States, his federal courtsuit alleges
violations of his civil rights. See supra, at 3-4. Both
actions, however, have their genesis in the events leading up to
and including Henniker's October 21, 1992, attempt to shut down
8The court notes that, with respect to the addition of the Henniker Police Department and Chief Russell, the
newly named defendants are in privity with those who were defendants in the state court. In other words, they are so closely related to the state-court defendants, and their interests are so nearly identical, that it is fair to treat them as the same parties for purposes of determining the preclusive effect of the state-court judgment. Any other rule would enable plaintiff to avoid the doctrine of res judicata by the simple expedient of not naming all possible defendants in [his] first action.
Ruple, supra, 714 F.2d at 862 (emphasis added).
16 plaintiff's junkyard. As the First Circuit has limned, "[t]he
issue is 'not whether the plaintiff in fact argued his [civil
rights] claims in the state proceeding, but whether he could
have.'" Isaac v. Schwartz, 706 F.2d 15, 17 (1st Cir. 1983)
(guoting Manego v. Cape Cod Five Cents Sav. Bank, 692 F.2d 174,
175 n.2 (1st Cir. 1982)) (alteration in Isaac) . "[I]f the
transactions here at issue are essentially the same as those in
the state court case, [plaintiff] could have asserted his present
claims there." Id.
" [A] defeated party may not institute another action '. . .
seeking . . . approximately the same relief but adducing a
different substantive law premise or ground. This does not
constitute the presentation of a new claim when the new premise
or ground is related to the same transaction or series of
transactions . . . .'" Boucher v. Bailey, 117 N.H. 590, 592, 375
A.2d 1160, 1162 (1977) (guoting R e s t a t e m e n t (S e c o n d ) o f J u d g m e n t s §
61.1 cmt. d. (Tent. Draft No. 1, 1973)).
"Generally, once a party has exercised the right to recover
based upon a particular factual transaction, that party is barred
from seeking further recovery, even though the type of remedy or
theory of relief may be different." Radkav v. Confalone, 133
N.H. 294, 298, 575 A.2d 355, 357 (1990) (citing Eastern Marine,
supra, 129 N.H. at 275, 525 A.2d at 712); see also Eastern
17 Marine, supra, 129 N.H. at 276, 525 A.2d at 713 ("'That a number
of different legal theories casting liability on an actor may
apply to a given episode does not create multiple transactions
and hence multiple claims. This remains true although the
several legal theories . . . would call for different measures of
liability or different kinds of relief.'" (guoting R e s t a t e m e n t ,
supra, § 2 4 cmt. c)).
The court finds and rules that all the issues herein raised
could easily have been raised as part of the state court
proceedings. "It would be anomalous for a court to refuse to
apply the claim preclusion doctrine precisely because the
plaintiff has done what the doctrine is intended to deter."
Wong, supra, 961 F.2d at 1021; Griffin v. Rhode Island, 760 F.2d
359, 361 (1st Cir.) ("By forcing plaintiffs to bring related
claims as part of a single cause of action, res judicata prevents
needless and duplicative litigation." (citations omitted)), cert.
denied, 474 U.S. 845 (1985); Eastern Marine, supra, 129 N.H. at
273, 525 A.2d at 711 (doctrine of res judicata ensures "that at
some point litigation over a particular controversy must come to
an end" (guotation and citation omitted)).
Plaintiff's dispute with Henniker, its selectmen, and its
police officers, having been found unmeritorious in the courts of
New Hampshire, fares no better in the courts of the United
18 States. Plaintiff's present complaint and the prior state court
action arise, without question, from the same transaction or
series of transactions and, as such, implicate New Hampshire
principles of res judicata. Accordingly, defendants' motion for
judgment on the pleadings must be and herewith is granted.
Conclusion
For the reasons set forth herein, defendants' motion for
judgment on the pleadings (document 11) is granted. Plaintiff's
federal suit is precluded, under the doctrine of res judicata, by
the dismissal of his previous state court litigation. The clerk
of court is instructed to enter judgment accordingly.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
July 6, 1995
cc: Lawrence R. Homo, Sr., pro se Barton L. Mayer, Esq.