Joseph Bourget v. Hillsborough Cty. 4H

2017 DNH 012

• Court: District Court, D. New Hampshire
• Decided: January 19, 2017
• Docket: 11-cv-88-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Joseph Bourget d/b/a Bourget Amusement Company, Plaintiff

v. Case No. 11-cv-88-SM Opinion No. 2017 DNH 012 Hillsborough County 4H Foundation, Inc., Defendant

O R D E R

This civil case has been bogged down for quite some time

now due to a chronic health condition that allegedly keeps

plaintiff home-bound. While evidence of plaintiff’s condition

has been vague (counsel’s proffer of general impressions and

descriptions of symptoms by Dr. Ann Marie Joyce), the parties

seem to accept that plaintiff has not been able to appear in

court, and that he likely will not be able to do so for an

extended period. The case is ready for trial and would have

been tried two years ago, but for plaintiff’s chronic condition.

The court invited the parties to show cause why the case

should not be administratively closed, subject to reopening upon

motion of either party should plaintiff’s condition abate

sufficiently to permit his trial participation. Defendant understandably objected to an administrative closure, given the

prospect of indefinite exposure to liability and no reliable end

point in sight.

Defendant now seeks to move the case to resolution, having

filed a motion to dismiss for want of prosecution (document no.

109). Plaintiff has objected, pointing out that the delay in

this case springs from his chronic health condition and is not

due to any untoward or culpable conduct on his part.

Dismissal for want of prosecution is plainly not warranted

here. The case is not foundering for lack of participation in

discovery, or failure to prepare, or due to obstruction or

neglect, or failure to comply with case management orders. See,

e.g., Ortiz-Anglada v. Ortiz-Perez, 183 F.3d 64 (1st Cir. 1999);

Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72 (1st Cir.

2009). The delay is entirely attributable to plaintiff’s

claimed (and unchallenged) inability to appear (and testify) at

trial.

At this point, there is no reason to think that plaintiff’s

condition is likely to improve in the foreseeable future. No

reason has been offered to think so by the plaintiff, or his

counsel, or his physician. Although the medical “evidence,”

2 such as it is, is vague, general, and unenlightening, because

the parties do not doubt the health conditions underlying the

delay, neither will the court.

So, accepting that plaintiff is chronically ill and

effectively home-bound, and that he will not likely be able to

attend trial in the reasonably near future, and recognizing that

the delay has now moved beyond what is acceptable, and that

defendant is entitled to have the claims addressed and finally

resolved, it is apparent that other measures are required.

The case shall be reset for trial in June of 2017. Any

party wishing to do so may arrange, or if necessary notice, and

take a testimonial deposition of plaintiff at his home before

April 28, 2017.1 If plaintiff has sufficiently recovered by June

to permit him to attend and/or testify at trial he may of course

do so. If not, his testimonial deposition will be admissible as

if he was unavailable, and the case will proceed in his absence.

A similar solution in a similar situation was developed in Field

v. American-West African Line, Inc., 154 F.2d 652 (2d Cir. 1946)

(L. Hand, Swan and Phillips, JJ.). As in Field, trial upon

1 Nothing in this record suggests that plaintiff cannot be deposed in his own home due to any limitation arising from his health condition.

3 depositions in this extensively delayed civil case fairly

balances plaintiff’s interest in presenting his case as fully as

possible, and defendant’s interest in having the matter

resolved.

Conclusion

Trial will be reset for June 2017. Any party may notice

and take a testimonial deposition from plaintiff before April

28, 2017. The trial will proceed as scheduled either with

plaintiff’s attendance or in his absence. The motion to dismiss

for want of prosecution (document no. 109) is denied, albeit

without prejudice.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

January 19, 2017

cc: Paul F. Cavanaugh, Esq. Heather M. Gamache, Esq. William F. Burke, Esq. Samantha D. Elliott, Esq.