Moss v . Camp Pemigewassett CV-01-220-M 11/29/01 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Stephen M. Moss, Plaintiff
v. Civil N o . 01-220-M Opinion N o . 2001 DNH 213 Camp Pemigewassett, Inc.; Robert L. Grabill; Alfred N . Fauver; Bertha H. Fauver; Fred Fauver; Jonathan Fauver; Thomas L Reed; Betsy M. Reed; Thomas L. Reed, Jr., Defendants
O R D E R
Before the court are: (1) plaintiff’s motion to alter
judgment (document no. 1 4 ) , to which defendant objects; and (2)
plaintiff’s motion to strike objection to plaintiff’s motion to
alter judgment (document n o . 1 8 ) , to which defendant also
objects. For the reasons given below, plaintiff’s motion to
alter judgment is denied, and his motion to strike objection is
granted, to the extent it covers the submission of evidence by
defendant.
As a preliminary matter, because the court’s order of
October 1 0 , 2001, treated the pleading before the court as a motion to dismiss, dismissal of the case was based solely upon
the facts alleged in plaintiff’s complaint. Accordingly, when
reconsidering that order, asserted facts in addition to or
different from those contained in plaintiff’s complaint are
irrelevant. Thus, to the extent plaintiff asks the court to
disregard the evidence presented by defendants in their objection
to his motion to alter judgment, his motion to strike is well
founded, and is granted.
However, plaintiff’s motion to alter judgment is denied.
While all four counts of plaintiff’s complaint were dismissed,
plaintiff challenges only the dismissal of his defamation claim
and his claim of intentional infliction of emotional distress.
The applicable standard of review provides as follows:
Rule 59(e) allows a party to direct the district court’s attention to newly discovered material evidence or a manifest error of law or fact . . . . The rule does not provide a vehicle for a party to undo its own procedural failures, and it certainly does not allow a party to . . . advance arguments that could and should have been presented to the district court prior to judgment.
DiMarco-Zappa v . Cabanillas, 238 F.3d 2 5 , 34 (1st Cir. 2001)
(quoting Aybar v . Crispín-Reys, 118 F.3d 1 0 , 16 (1st Cir. 1997))
2 (alterations in the original). Because plaintiff’s argument for
reconsideration is based upon a significant recasting of his
complaint, seemingly in response to the court’s order on
defendants’ motion to dismiss, it does not provide grounds for
relief under Rule 59(e).
Essentially, plaintiff argues that the court misapprehended
the allegations in his complaint and impermissibly failed to give
him the benefit of all reasonable inferences regarding what he
meant to claim. Specifically, he argues that the court: (1)
erroneously concluded that plaintiff does not challenge the
truthfulness of Robert Grabill’s statement about complaints from
parents; and (2) impermissibly inferred that the complaint
Grabill said came “through the State” was similar to the
complaints he said came from parents.
As for plaintiff’s claim that he did, in fact, challenge the
truthfulness of Grabill’s statement about complaints from
parents, it must first be noted that in Count I of his complaint,
plaintiff claims that defendants published false and defamatory
statements about him, but does not identify any particular
3 statement or statements. In his statement of facts, plaintiff
asserts that no complaint was ever forwarded to the Camp through
the State. However, he makes no assertion of falsity with
respect to Grabill’s statements about the existence or contents
of complaints from parents. Rather, he simply says that he has
no documentation of any such complaints. Even under its
obligation to draw all reasonable inferences in plaintiff’s
favor, the court cannot reasonably stretch plaintiff’s assertion
that he lacked documentation into an assertion that defendants
had received no parental complaints. If plaintiff intended to
assert that defendants received no complaints about him from
parents – whether or not he considered a misrepresentation on
this point to be actionable defamation – he needed only to say
s o , but he did not.
As for plaintiff’s argument that the court improperly
considered the two complaints Grabill said came from parents and
the one that he said came through the State to be similar in
nature, that characterization is based strictly upon the language
of the complaint. Paragraph 19 says, in pertinent part: “Grabill
informed Moss that he had received three complaints regarding
4 Moss concerning inappropriate contact with boys at the Camp, two
from parents and one ‘through the State of New Hampshire.’” And
in paragraph 2 0 , plaintiff asserted: “Grabill subsequently told
Charles Donovan, the Assistant Head of Nature and Bunk Counselor
of the ‘complaints’ against Moss again stating that one complaint
came through ‘the State of New Hampshire.’”
Based upon the language of plaintiff’s complaint, the only
reasonable interpretation is that plaintiff was asserting Grabill
had told Donovan about three complaints, similar in nature, but
different with respect to their source (i.e., only one was
reported to have come “through the State”). Plaintiff alleged no
facts from which it might plausibly be inferred that any
substantive difference existed with regard to the nature of the
three complaints, other than the entity to which they were
initially reported. The complaint provides no reasonable basis
from which the court could infer a statement about plaintiff from
a parental decision to complain to the State rather to the Camp.
A parental decision to approach the State rather than the Camp
does not necessarily imply anything about the target of the
complaint, though it might reflect greater confidence in the
5 ability of State, as opposed to the Camp, to rectify the
perceived problem.
Furthermore, given plaintiff’s own assertion that Grabill
said two complaints came from parents while the other one came
through the State of New Hampshire, the court had no basis from
which to infer that the nature of the complaint Grabill said was
transmitted through the State was any different from or more
serious than the other two. If plaintiff had asserted that
Grabill told Donovan about a complaint from the State, or by the
State, rather than through the State, perhaps an inference might
plausibly be drawn that the State conducted some kind of
preliminary investigation, and gave credence to a complaint that
had been brought to it by a third party. But, based upon
plaintiff’s actual assertions, in his complaint, no such
inference can reasonably be drawn.
Finally, while plaintiff argues that a statement about a
parental complaint transmitted to the Camp through the State
must, necessarily, be considered to have greater defamatory clout
than a statement about a parental complaint made directly to the
6 Camp, such an inference would only be warranted if some
affirmative action, beyond mere passive transmission of
information, was attributed to the State. Plaintiff, however,
does not assert that Grabill told Donovan that the State took any
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Moss v . Camp Pemigewassett CV-01-220-M 11/29/01 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Stephen M. Moss, Plaintiff
v. Civil N o . 01-220-M Opinion N o . 2001 DNH 213 Camp Pemigewassett, Inc.; Robert L. Grabill; Alfred N . Fauver; Bertha H. Fauver; Fred Fauver; Jonathan Fauver; Thomas L Reed; Betsy M. Reed; Thomas L. Reed, Jr., Defendants
O R D E R
Before the court are: (1) plaintiff’s motion to alter
judgment (document no. 1 4 ) , to which defendant objects; and (2)
plaintiff’s motion to strike objection to plaintiff’s motion to
alter judgment (document n o . 1 8 ) , to which defendant also
objects. For the reasons given below, plaintiff’s motion to
alter judgment is denied, and his motion to strike objection is
granted, to the extent it covers the submission of evidence by
defendant.
As a preliminary matter, because the court’s order of
October 1 0 , 2001, treated the pleading before the court as a motion to dismiss, dismissal of the case was based solely upon
the facts alleged in plaintiff’s complaint. Accordingly, when
reconsidering that order, asserted facts in addition to or
different from those contained in plaintiff’s complaint are
irrelevant. Thus, to the extent plaintiff asks the court to
disregard the evidence presented by defendants in their objection
to his motion to alter judgment, his motion to strike is well
founded, and is granted.
However, plaintiff’s motion to alter judgment is denied.
While all four counts of plaintiff’s complaint were dismissed,
plaintiff challenges only the dismissal of his defamation claim
and his claim of intentional infliction of emotional distress.
The applicable standard of review provides as follows:
Rule 59(e) allows a party to direct the district court’s attention to newly discovered material evidence or a manifest error of law or fact . . . . The rule does not provide a vehicle for a party to undo its own procedural failures, and it certainly does not allow a party to . . . advance arguments that could and should have been presented to the district court prior to judgment.
DiMarco-Zappa v . Cabanillas, 238 F.3d 2 5 , 34 (1st Cir. 2001)
(quoting Aybar v . Crispín-Reys, 118 F.3d 1 0 , 16 (1st Cir. 1997))
2 (alterations in the original). Because plaintiff’s argument for
reconsideration is based upon a significant recasting of his
complaint, seemingly in response to the court’s order on
defendants’ motion to dismiss, it does not provide grounds for
relief under Rule 59(e).
Essentially, plaintiff argues that the court misapprehended
the allegations in his complaint and impermissibly failed to give
him the benefit of all reasonable inferences regarding what he
meant to claim. Specifically, he argues that the court: (1)
erroneously concluded that plaintiff does not challenge the
truthfulness of Robert Grabill’s statement about complaints from
parents; and (2) impermissibly inferred that the complaint
Grabill said came “through the State” was similar to the
complaints he said came from parents.
As for plaintiff’s claim that he did, in fact, challenge the
truthfulness of Grabill’s statement about complaints from
parents, it must first be noted that in Count I of his complaint,
plaintiff claims that defendants published false and defamatory
statements about him, but does not identify any particular
3 statement or statements. In his statement of facts, plaintiff
asserts that no complaint was ever forwarded to the Camp through
the State. However, he makes no assertion of falsity with
respect to Grabill’s statements about the existence or contents
of complaints from parents. Rather, he simply says that he has
no documentation of any such complaints. Even under its
obligation to draw all reasonable inferences in plaintiff’s
favor, the court cannot reasonably stretch plaintiff’s assertion
that he lacked documentation into an assertion that defendants
had received no parental complaints. If plaintiff intended to
assert that defendants received no complaints about him from
parents – whether or not he considered a misrepresentation on
this point to be actionable defamation – he needed only to say
s o , but he did not.
As for plaintiff’s argument that the court improperly
considered the two complaints Grabill said came from parents and
the one that he said came through the State to be similar in
nature, that characterization is based strictly upon the language
of the complaint. Paragraph 19 says, in pertinent part: “Grabill
informed Moss that he had received three complaints regarding
4 Moss concerning inappropriate contact with boys at the Camp, two
from parents and one ‘through the State of New Hampshire.’” And
in paragraph 2 0 , plaintiff asserted: “Grabill subsequently told
Charles Donovan, the Assistant Head of Nature and Bunk Counselor
of the ‘complaints’ against Moss again stating that one complaint
came through ‘the State of New Hampshire.’”
Based upon the language of plaintiff’s complaint, the only
reasonable interpretation is that plaintiff was asserting Grabill
had told Donovan about three complaints, similar in nature, but
different with respect to their source (i.e., only one was
reported to have come “through the State”). Plaintiff alleged no
facts from which it might plausibly be inferred that any
substantive difference existed with regard to the nature of the
three complaints, other than the entity to which they were
initially reported. The complaint provides no reasonable basis
from which the court could infer a statement about plaintiff from
a parental decision to complain to the State rather to the Camp.
A parental decision to approach the State rather than the Camp
does not necessarily imply anything about the target of the
complaint, though it might reflect greater confidence in the
5 ability of State, as opposed to the Camp, to rectify the
perceived problem.
Furthermore, given plaintiff’s own assertion that Grabill
said two complaints came from parents while the other one came
through the State of New Hampshire, the court had no basis from
which to infer that the nature of the complaint Grabill said was
transmitted through the State was any different from or more
serious than the other two. If plaintiff had asserted that
Grabill told Donovan about a complaint from the State, or by the
State, rather than through the State, perhaps an inference might
plausibly be drawn that the State conducted some kind of
preliminary investigation, and gave credence to a complaint that
had been brought to it by a third party. But, based upon
plaintiff’s actual assertions, in his complaint, no such
inference can reasonably be drawn.
Finally, while plaintiff argues that a statement about a
parental complaint transmitted to the Camp through the State
must, necessarily, be considered to have greater defamatory clout
than a statement about a parental complaint made directly to the
6 Camp, such an inference would only be warranted if some
affirmative action, beyond mere passive transmission of
information, was attributed to the State. Plaintiff, however,
does not assert that Grabill told Donovan that the State took any
action other than passively transmitting a parental complaint
that was similar to two others the Camp had received from
parents. Because plaintiff did not assert that Grabill told
Donovan that the State itself had made a complaint, or had
investigated a complaint made by a third party, the reasonable
inference to be drawn from the statement Grabill made to Donovan
is that the State received a parental complaint about plaintiff
and notified the Camp that the complaint had been lodged.1
1 Plaintiff, of course, makes exactly the opposite argument – that Grabill’s statement about a complaint transmitted through the State implies that the complaint prompting the State’s report was more serious, rather than less serious, than those made directly to the Camp. Specifically, plaintiff argues that any complaints that may have been made to the Camp could not have been serious because the Camp did not report them to the State, as required by RSA 169-C:29 (1994). By the same token, however, RSA chapter 169-C contains no mechanism by which the State would merely pass along a serious complaint to an entity such as the Camp. Rather, the Child Protection Act requires the Department of Health and Human Services (“HHS”) to investigate complaints, RSA 169-C:34 (Supp. 2001) and to refer certain credible complaints to local law enforcement agencies, RSA 169-C:38. Because plaintiff does not allege that Grabill told Donovan that an investigation was conducted by HHS, and because any criminal investigation would be conducted by a local law enforcement agency rather than the State, it is not reasonable to infer from
7 Absent a statement by Grabill that the State took some kind of
action or otherwise added credibility to the complaint – which
plaintiff has not alleged – it cannot be reasonably inferred
that a parental complaint lodged against Moss with the State is
necessarily “more serious” than those made directly to the Camp.
Because plaintiff has identified no manifest error of law or
fact, DiMarco, 238 F.3d at 3 4 , in the order dismissing his
complaint, his motion to alter judgment (document n o . 14) is
denied.
SO ORDERED.
Steven J. McAuliffe United States District Judge
November 2 9 , 2001
cc: Robert R. Lucic, Esq. Marie M. McPartlin, Esq. Russell F. Hilliard, Esq. Martha Van Oot, Esq.
the statement ascribed to Grabill a defamatory meaning as to plaintiff.