Phaneuf v. Ortleib, et al.

2013 DNH 076

• Court: District Court, D. New Hampshire
• Decided: May 15, 2013
• Docket: CV-12-474-JL
• Status: Published

Opinion

Phaneuf v. Ortleib, et al. CV-12-474-JL 5/15/13

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Josephine Phaneuf

v. Civil N o . 12-cv-474-JL Opinion N o . 2013 DNH 076 Michael Ortlieb et al.

MEMORANDUM ORDER

This case presents several questions, including the identity

of the proper party to defend an estate in a civil action, this

court’s jurisdiction over probate matters, and the adequate

pleading of respondeat superior liability. The plaintiff,

Josephine Phaneuf, suffered severe and permanent injuries in a

collision between her motor vehicle and one driven by Daniel

Hammerstad--who, Phanuef alleges, was intoxicated at the time.

Phaneuf’s efforts to obtain compensation for her injuries,

however, have been complicated by Hammerstad’s own death in the

collision. No estate has been opened. Instead, acting on

Phaneuf’s petition, the Rockingham County Superior Court has

appointed Michael Ortlieb, an attorney, as Hammerstad’s guardian

ad litem under N.H. Rev. Stat. Ann. § 260:68.

Phaneuf then commenced this action here against Ortlieb, in

his capacity as Hammerstad’s guardian ad litem, and three other

defendants, seeking to recover the damages she suffered in the collision. Two of the other defendants are restaurants that

allegedly served alcohol to Hammerstad on the night of the

collision even though, Phaneuf claims, they knew or should have

known of his intoxication. The third additional defendant is

Diane Maurais; Phaneuf alleges that Maurais is vicariously liable

for Hammerstad’s negligence because he “was operating his vehicle

while performing errands on behalf of and/or acting for the

benefit” of Maurais. This court has jurisdiction under 28 U.S.C.

§ 1332(a)(1) (diversity), because Phaneuf is a citizen of

Massachusetts, and the defendants are citizens of New Hampshire.

Phaneuf has since moved for an order declaring that Ortlieb,

by virtue of his appointment as guardian ad litem, has the power

to represent Hammerstad’s interests in this matter. This motion

also seeks leave to file an amended complaint, see Fed. R. Civ.

P. 15(a)(2), 1 naming as an additional defendant either United

States Automobile Association (which insured the vehicle that

1 At the time Phaneuf filed this motion, she had yet to amend her complaint, and fewer than 21 days had passed since the filing of any responsive pleading. So she could have simply filed an amended complaint as of right. See Fed. R. Civ. P. 15(1)(1)(B). That she instead sought leave to amend makes no practical difference, though, because, in addition to opposing the amendment, Ortlieb has filed a separate motion to dismiss arguing that it fails to state a claim for relief. Similarly, while Phaneuf has not filed an objection to Ortlieb’s motion to dismiss, the court has treated her motion for declaratory relief and leave to amend as an objection to dismissal.

2 Hammerstad was driving at the time of the collision) or Rita

Hammerstad (who is named, in Hammerstad’s will, as the executor

of his estate). Ortlieb, however, opposes this relief, and moves

to dismiss the complaint for failure to state a claim against

him. See Fed. R. Civ. P. 12(b)(6). Ortlieb argues that his

authority as Hammerstad’s guardian ad litem under § 260:68 is

limited to accepting service of process, and that only an

administrator appointed by the Probate Division of the Circuit

Court can represent Hammerstad’s estate here. While

acknowledging that his counsel in this action “has been asked by

USAA to represent the interests” of Hammerstad’s estate here,

Ortlieb further argues that USAA is not a proper defendant, nor,

for that matter, is Rita Hammerstad, who appears to have

abandoned her initial efforts to secure appointment as the

administrator of the estate. Finally, Maurais has also moved to

dismiss, arguing that the complaint fails to state a plausible

claim of respondeat superior against her.

For the reasons fully explained below, the court denies

Phaneuf’s motion to declare that Ortlieb represents Hammerstad’s

interests in this matter, and to amend the complaint, and grants

Ortlieb’s and Maurais’s motions to dismiss. While the court is

sympathetic to Phaneuf’s situation, it harbors significant doubts

about its jurisdiction to grant Ortlieb the authority that she

3 wants him to have, and, in any event, doing so would violate

well-established New Hampshire law that “an executor or an

administrator is the only proper party to bring or defend actions

relating to the personal estate of the deceased.”1 Scamman v .

Sondheim, 97 N.H. 2 8 0 , 281 (1952). There is likewise no

legitimate basis for naming either USAA or Rita Hammerstad as a

defendant. Finally, the complaint’s conclusory assertion that

Hammerstad “was operating his vehicle while performing errands on

behalf of and/or acting for the benefit” of Maurais fails to

state a plausible claim for respondeat superior against her.

I. Background

For purposes of the present motions, this court has accepted

as true all well-pleaded facts set forth in the complaint, see,

e.g., Martino v . Forward Air, Inc., 609 F.3d 1 , 2 (1st Cir.

2010), but has disregarded “statements in the complaint that

merely offer legal conclusions couched as fact or threadbare

recitals of the elements of a cause of action,” Ocasio-Hernandez

v . Fortuno-Benet, 640 F.3d 1 , 12 (1st Cir. 2011) (quotation

1 For purposes of this order, there is no meaningful distinction between the terms “administrator” and “executor.” Indeed, “[e]ither term means the personal representative of the deceased.” Crosby v . Town of Charlestown, 78 N.H. 3 9 , 43 (1915) For brevity’s sake, then, the court will simply use the word “administrator” (except when quoting from other sources that use

the word “executor”). 4 marks, bracketing, and ellipse omitted). The court has also

relied on documents filed with the Superior Court and the Probate

Division of New Hampshire’s 10th Circuit Court. See Giragosian

v . Ryan, 547 F.3d 5 9 , 66 (1st Cir. 2008).

At around 9:10 p.m. on Friday, December 3 0 , 2011, Hammerstad

was driving his vehicle “at a dangerous, excessive, high rate of

speed” on a public road in Derry, New Hampshire, when he “lost

control of his car, and smashed head-on into a car” driven by

Phaneuf. The collision killed Hammerstad, and left Phaneuf with

severe and permanent injuries, including a broken hand, wrist,

ankle, and foot, and a lacerated liver. Hammerstad was

intoxicated at the time of the collision, with a blood alcohol

concentration of . 2 4 .

Phaneuf alleges that, at the time of the collision,

Hammerstad “lived with” Maurais, and “was operating his vehicle

benefit of” her. The complaint contains no other allegations

concerning Maurais.

In May 2012, counsel for Phaneuf sent letters announcing her

intention to bring suit to two persons, identified as

Hammerstad’s sons, who were living with their mother, Rita

Hammerstad, in Jacksonville (Duval County) Florida. At some

point, Rita Hammerstad was Hammerstad’s wife (though the record

5 does not reflect their marital status at the time of his death),

and was named as the executor of his estate in a will that

Hammerstad signed in November 1992. In these letters, counsel

for Phaneuf asked to be contacted by any administrator appointed

for Hammerstad’s estate. Phaneuf’s counsel has yet to hear from

any such person, and, as of September 2013, has found none

identified in on-line listings for either Duval County, Florida

or Rockingham County, New Hampshire.

On May 2 1 , 2012, however, Rita Hammerstad, acting through

New Hampshire counsel, filed a petition for estate administration

in the Brentwood Probate Division of New Hampshire’s 10th Circuit

Court. Est. of Hammerstad, N o . 318-2012-ET-669 (N.H. Prob. Div.

May 2 1 , 2012). In the petition, which attached Hammerstad’s

November 1992 will, Rita Hammerstad sought her appointment as

administrator, and listed the total value of the estate as nil.

In response, the Clerk of the Probate Division wrote to counsel

for Rita Hammerstad, listing several additional required filings.

The Clerk sent another letter to Rita Hammerstad’s counsel a

month or so later, directing him to make the filings within 14

days “to avoid dismissal.” Counsel for Phaenuf represents that

the documents have yet to be filed, and the Probate Division has

yet to take any action on Rita Hammerstad’s petition for

administration.

6 In the meantime, counsel for Phaneuf, who was unaware of the

petition pending in the Probate Division, filed his own petition

in the Rockingham County Superior Court for the appointment of a

guardian ad litem for Hammerstad under § 260:68. Granting the

petition, the Superior Court appointed Ortlieb, a New Hampshire

attorney, in early October 2012. Phaneuf then commenced this

action in this court in December 2012, naming Ortieb “as court-

appointed guardian ad litem for” Hammerstad, against whom the

complaint asserts a single negligence claim.

The complaint also names Maurais and the owners of two

restaurants that allegedly served alcohol to Hammerstad on the

night of the accident, Chen’s Chinese Restaurant and La Carreta

Mexican Restaurant. The complaint alleges that Hammerstad was

served alcohol at Chen’s “for several hours” on December 3 0 ,

2011, when “employees knew he was intoxicated and/or when they

should have known he was intoxicated.” The complaint further

alleges that La Carreta employees not only served alcohol to

Hammerstad while they knew (or should have known) he was

intoxicated, but also that they later “forced him to leave the

premises” while they knew (or should have known) he would drive.

Ortlieb appeared in this action through counsel retained by

USAA “to represent the interests” of Hammerstad’s estate in this

matter. Phaneuf alleges that USAA “provided insurance coverage

7 for the car being driven by [ ] Hammerstad at the time of the

accident.” As noted at the outset, Ortlieb has moved to dismiss

the complaint against him for failure to state a claim, and has

objected to Phaneuf’s requests (1) for an order empowering

Ortlieb to act on behalf on Hammerstad’s estate here and (2) to

add USAA o r , in the alternative, Rita Hammerstad, as a defendant.

II. Analysis

A. Roles of Ortlieb, USAA, and Rita Hamerstaad

Phaneuf argues that Ortlieb “should be empowered to act on

behalf of M r . Hammerstad for purposes of this civil action

pursuant to [§] 260:68,” the statute invoked by the Rockingham

County Superior Court in appointing Ortlieb as Hammerstad’s

guardian ad litem. But under New Hampshire law, “it is the

general rule that an executor or an administrator is the only

proper party to bring or defend actions relating to the personal

estate of the deceased.”2 Scamman, 97 N.H. at 281 (citing

2 While this common-law rule is subject to an exception for “special circumstances,” Scamman, 97 N.H. at 2 8 1 , Phaneuf does not invoke that exception here, and it does not apply, in any event. “Special circumstances exist in those cases where the personal representative of the estate fails or neglects to bring or defend an action relating to the personal estate, is guilty of fraud or collusion or has a conflicting or adverse interest in the estate.” Id. (emphasis added). Thus, the New Hampshire Supreme Court has allowed legatees to bring claims to recover property on behalf of an estate where its executors claimed to personally own the same property--giving rise to a conflict of

8 Mitchell v . Smith’s Est., 90 N.H. 3 6 , 41 (1939), Reynolds v .

Kenney, 87 N.H. 313, 314 (1935), and Champollion v . Corbin, 71

N.H. 78 (1901)).

Phaneuf’s motion does not mention this rule, let alone

explain how Ortlieb can nevertheless “be empowered to act on

behalf” of Hammerstad’s estate in defending this action.

Instead, Phanuef relies solely on § 260:68, arguing that, while

it “does not expressly state that the guardian ad litem has the

power to act on behalf of the deceased for whom no executor or

administrator has been appointed, by inference the guardian ad

litem must have the power to do so.” If § 260:68 operates in

this fashion, however, then it creates a significant exception to

the “general rule that an executor or an administrator is the

only proper party to bring or defend actions relating to the

personal estate of the deceased.” Scamman, 97 N.H. at 281.

Indeed, on Phaneuf’s reading of the statute, a guardian ad litem

appointed would be the proper party to defend any action against

an estate. “Absent clear statutory language,” however, a court

interest that would disincentivize the executors from bring the claims on the estate’s behalf. Bean v . Bean, 74 N.H. 4 0 4 , 409 (1907). This court is not aware of any instance, however, where the New Hampshire Supreme Court has applied this exception to allow a third party to defend a claim against an estate before an administrator has been appointed.

9 “will not hold that [a] statute alters a well-established common-

law rule.” In re Lisa G., 127 N.H. 585, 589 (1986).

Section 260:68 contains no such language. To the contrary,

its text and structure indicate that its operation is limited,

and does not extend to creating another class of representatives

for defending estates against legal actions. Section 260:68

provides that:

Service of such process shall be made by leaving a copy thereof with a fee of $2 in the hands of the director [of the division of motor vehicles of the department of safety] or in his office, and such service shall be sufficient, provided that notice thereof and a copy of the process or forthwith sent by registered mail by the plaintiff or his attorney to the defendant . . . . In the event that the notice and copy of process cannot be delivered to the defendant because he was deceased at the time of the accident or thereafter, the notice and copy of process shall be sent to the executor or administrator of the deceased defendant’s estate, if one has been appointed. If no executor or administrator has been appointed, the plaintiff may petition the superior court for the appointment of a guardian ad litem for such deceased defendant, and upon appointment of such guardian ad litem, the notice and copy of process shall be sent to such guardian ad litem.

(emphasis added). The phrase “such process” refers to the

process described in the preceding section, which provides in

relevant part that “[a]ny person who . . . drives a vehicle upon

the ways of the state shall be deemed to have appointed the

director, or his successor in office, his true and lawful

attorney upon whom may be served all lawful process in any action

10 or proceeding against him, growing out of any accident or

collision in which he or they may be involved while driving on

such ways or elsewhere in the state.” N.H. Rev. Stat. Ann.

§ 260:67. Section 260:67 also states, however, that it “shall

not apply to a resident unless after an accident he shall have

removed from the state” (emphasis added).

This court must “interpret statutes in the context of the

overall statutory scheme and not in isolation.” Ocasio v . Fed.

Express Corp., 162 N.H. 436, 450-51 (2011). Read in context, the

final sentence of § 260:68 does not provide an alternative

procedure (aside from the appointment of an administrator) for

authorizing a representative to defend an estate against a legal

action. Section 260:68 merely provides a method for completing

service of process on the estate of a non-resident decedent, in

the event no administrator or executor has been appointed.3

Nothing in the statute remotely suggests that, after this method

is employed to appoint a guardian ad litem to accept service, he

or she can proceed to defend the action on behalf of the estate,

in derogation of the longstanding common-law rule allocating that

3 Phaneuf alleges that, at the time of his death, Hammerstad was in fact a resident of New Hampshire. So it is doubtful whether § 260:68 actually authorized Ortlieb’s appointment as guardian ad litem to accept service on Hammerstad’s behalf in the first place. At the moment, however, this court need not pass upon the validity of service, which has not been challenged.

11 authority solely to an administrator.4 See In re Lisa G., 127

N.H. at 589.

There are two further, though related, problems with

Phaneuf’s request that, based on the Superior Court’s appointment

of Ortlieb as a guardian ad litem under § 260:68, this court

recognize Ortlieb’s alleged power to act on behalf of

Hammerstad’s estate here. First, New Hampshire law reposits the

jurisdiction to appoint an administrator exclusively in the

Probate Court (now the Probate Division of the Circuit Court).

See N.H. Rev. Stat. Ann. § 547:3, I ( c ) . It follows, as the New

Hampshire Supreme Court has recognized, that the Superior Court

lacks jurisdiction to “grant[] administration” over an estate.

4 Though not essential to this court’s analysis, the Massachusetts Supreme Judicial Court has recognized that a similar statutory provision in that state serves “to fill a loophole” in its law providing for service of process on non- resident motorists by way of its registrar of motor vehicles. Toczko v . Armentano, 170 N.E.2d 703, 706 (Mass. 1960). Noting that “[i]t would be an incomplete achievement to leave uncovered the case of a nonresident operator who may not have survived the accident,” the court explained that this provision ensures that the “appointment of the registrar as agent for service of process” effected by the non-resident motorist statute “is not one that terminates with the death of the principal.” Id. This interpretation of the Massachusetts non-resident motorist statute, which “is practically identical” to New Hampshire’s, Poti v . New Eng. Rd. Mach. Co., 83 N.H. 2 3 2 , 233 (1928), lends further support to this court’s conclusion that, by providing a method of service on the estate of a non-resident motorist via a guardian ad litem, § 260:68 does not also authorize the guardian to proceed with defending the estate in the action.

12 Lisbon Sav. Bank & Trust C o . v . Moulton’s Est., 91 N.H. 4 7 7 , 480

(1941). Yet that is in effect what the Superior Court would have

done by appointing a guardian ad litem on behalf of a deceased

defendant under § 260:68, at least if Phaneuf’s reading of that

statute is correct.

Just as courts generally decline to construe a statute to

depart from the common law (at least in the absence of express

language to that effect), they also generally decline to construe

a statute to repeal or modify another one (again, at least in the

absence of express language to that effect). See, e.g., Arnold

v . City of Manchester, 119 N.H. 859, 863 (1979) (disfavoring the

doctrine of “implied repeal”). So this court cannot read

§ 260:68 a s , in effect, repealing the Probate Division’s

exclusive statutory jurisdiction to appoint an administrator by

authorizing the Superior Court to appoint a guardian ad litem who

possesses the selfsame power to defend claims against the estate

that New Hampshire law reserves to an administrator.

Second, the “probate exception” to federal subject-matter

jurisdiction, recognized by the Supreme Court, “reserves to state

probate courts . . . the administration of a decedent’s estate.”

Marshall v . Marshall, 547 U.S. 293, 311 (2006). Relying on this

exception, a number of federal courts have held that they lack

the jurisdiction to appoint an administrator, reasoning that

13 “[t]here is nothing more central to the administration of the

estate.” Jones v . Harper, 55 F. Supp. 2d 5 3 0 , 533 (S.D. W . V a .

1999); see also, e.g., McGovern v . Braun, N o . 12-672, 2012 WL

1946600, at *3 (D. Ariz. May 3 0 , 2012); Wilson v . Sundstrand

Corp., N o . 99-6944, 2002 WL 99745, at *4 (N.D. Ill. Jan. 2 5 ,

2002); Wilsey v . Eddingfield, 780 F.2d 6 1 4 , 619-20 (7th Cir.

1985) (Posner, J., dissenting from denial of petition for

rehearing en banc). As just discussed, though, that is in effect

what this court would be doing by ruling that Ortlieb is

empowered to defend the action on behalf of Hammerstad’s estate,

because, again, only an administrator can have that authority

under New Hampshire law.

Accordingly, the court must deny Phaneuf’s motion insofar as

it seeks a ruling that Ortlieb, by virtue of his appointment as

Hammerstad’s guardian ad litem, has the power to act on

Hammerstad’s behalf here. Since Phaneuf’s claims against Ortlieb

are premised solely on her erroneous view that his appointment as

guardian ad litem authorizes him to defend this action, Ortlieb’s

motion to dismiss must be granted. Ortlieb’s dismissal, in turn,

moots Phaneuf’s request to name USAA as a party so the court can

14 order it “to reimburse [ ] Ortlieb for the services he performs” is this action.5

Finally, for the same reasons the court must deny Phaneuf’s

request for an order authorizing Ortlieb to defend this action on

Hammerstad’s behalf, the court must deny Phaneuf’s request to add

Rita Hammerstad as a defendant. This request is premised on

Phaneuf’s allegation that the will Hammerstad executed in

November 1992 names Rita Hammerstad as executor. But under New

Hampshire law, “an executor and administrator stand alike in the

requirement of appointment by the probate court. A will may

name, but cannot appoint an executor.” Lisbon Sav. Bank, 91 N.H.

at 481. So the fact that Hammerstad’s will names Rita Hammerstad

as executor does not empower her to act on behalf of his estate,

unless and until the Probate Court names her as administrator.

Of course, while Rita Hammerstad petitioned the Probate

Court to appoint her as administrator, she has since failed to

5 Just before this court was scheduled to hear oral argument on Phaneuf’s motion to authorize Ortlieb to defend this action on Hammerstad’s behalf, her counsel advised the court that the Probate Division was, in fact, in the process of appointing an administrator, which would moot the motion. Phaneuf’s counsel also advised the court, however, that she wanted to be heard on her request to compel USAA to pay for the administration of Hammerstad’s estate. As discussed in the ensuing off-the-record discussions with counsel, if Phaneuf wishes to press this request, she must amend her complaint to add USAA as a party, and accomplish service on i t .

15 respond to that court’s multiple requests for the information it

needs to act on her petition, despite the passage of nearly a

year. In light of this inaction, this court’s ruling that

Phaneuf’s claim against Hammerstad’s estate cannot proceed unless

and until the Probate Division appoints an administrator may

strike Phaneuf as an elevation of form over substance. The court

is sympathetic to the obstacle this places in the path of

Phaneuf’s attempt to recover for her serious injuries. Despite

this sympathy, however, this court cannot ignore long-standing

New Hampshire law that actions against an estate must be handled

by an administrator appointed by the Probate Division--rather

than by a guardian ad litem appointed to accept service under

§ 260:68, or an executor named in the will but not appointed.

Moreover, Phaneuf is not powerless to bring her claims

against Hammerstad’s estate merely because Rita Hammerstad has,

apparently, neglected to pursue her appointment as administrator.

While, as a matter of first priority, New Hampshire law gives the

right to administration to the executor named in the decedent’s

will, N.H. Rev. Stat. Ann. § 553:2, I , the law also recognizes

other suitable classes of administrators if the executor

“neglect[s], for thirty days after the decease of the [decedent],

to apply for administration,” id. § 553:3. Among those entitled

to administer the estate under these circumstances are “one of

16 the devisees or creditors,” id. § 553:2, I I I , and “there is no

requirement that [a creditor] should prove his claim to be valid

before the petition is granted. It is enough if he claims

honestly and seasonably to be a creditor.” Robinson v . Dana’s

Est., 87 N.H. 1 1 4 , 117 (1934).

S o , if Phaneuf wishes to pursue her claim against

Hammerstad’s estate, she may petition the Probate Division for

her own appointment as administrator. But unless and until the

Probate Division appoints her, or someone else, to administer

Hammerstad’s estate, Phaneuf’s claim against the estate cannot

proceed.6 Her motion for an order authorizing Ortlieb, or Rita

Hammerstad, to defend the estate here is denied, and Ortlieb’s

motion to dismiss the claim against him is granted.

B. Maurais’ motion to dismiss

In moving to dismiss,7 Maurais argues that the complaint

fails to plausibly state a claim of respondeat superior against

her. “To survive a motion to dismiss under Rule 12(b)(6), a

6 If Phaneuf wishes, she may seek a stay of this action for that purpose. 7 Because Maurais has already filed an answer to the complaint, her motion to dismiss is properly treated as a motion for judgment on the pleadings. See Fed. R. Civ. P. 12(c). The same standards apply. See Gray v . Evercore Restructuring L.L.C., 544 F.3d 3 2 0 , 324 (1st Cir. 2008).

17 complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v . Iqbal, 556 U.S. 6 6 2 , 678 (2009) (quoting

Bell Atl. Corp. v . Twombly, 550 U.S. 5 4 4 , 570 (2007)). This

showing “requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will

not do.” Twombly, 550 U.S. at 555 (bracket omitted). “Nor does

a complaint suffice if it tenders ‘naked assertion[s]’ devoid of

‘further factual enhancement.’” Iqbal, 556 U.S. at 679 (quoting

Twombly, 550 U.S. at 5 5 7 ) .

Judged by these standards, Phaneuf’s complaint does not

state a claim against Maurais on a theory of respondeat superior.

As discussed supra, the complaint’s only allegations concerning

Maurais are that Hammerstad “lived with” her and “was operating

his vehicle while performing errands on behalf of and/or acting

for the benefit of” her at the time of his collision with

Phaneuf. The mere fact that Maurais was living with Hammerstad,

of course, does not establish her vicarious liability for his

actions, and Phaneuf does not argue to the contrary.8 The sole

8 In her objection to Maurais’s motion to dismiss, Phaneuf relies on the fact (which is stated in the motion itself, but not in the complaint) that Maurais “had lived with [ ] Hammerstad for approximately 17 years.” Phaneuf does not explain, however, what effect this period of co-habitation, while lengthy, has on Maurais’s liability for Hammerstad’s negligence at the time of

18 remaining allegation, that Hammerstad was “operating his vehicle

benefit of” Maurais, is a “naked assertion devoid of further

factual enhancement.” Iqbal, 556 U.S. at 679 (quotations and

bracketing omitted).

The allegation that Hammerstad was “acting for the benefit

of” Maurais is a “legal conclusion[]” that does not assist

Phaneuf in withstanding the motion to dismiss. Id. at 678. The

allegation that Hammerstad was “performing errands on behalf of”

Maurais (curiously, or perhaps cleverly, pled in the alternative

to the theory that he was simply “acting for [her] benefit”

through the use of “and/or”) is likewise “conclusory” and

therefore “disentitle[d] to the presumption of truth” as well.

Id. at 680-81. The complaint alleges no facts to support its

the collision. “Except for a very narrow purpose,” which is not implicated here, “New Hampshire does not recognize the ‘poor man’s,’ or common law, marriage.” Charles G. Douglas, 3 New Hampshire Practice: Family Law § 2.11, at 42 (3d ed. 2002). In any event, as Maurais points out, New Hampshire also does not recognize the “family purpose” doctrine, see Grimes v . Labreck, 108 N.H. 2 6 , 29 (1967), under which the “head of a family . . . is liable for the negligence of any member who is permitted to use the car” supplied by the head of the family “as a pleasure car for the use of the family,” Moulton v . Langley, 81 N.H. 1 3 8 , 142 (1923). Phaneuf’s suggestion that discovery is required to determine whether this doctrine applies is therefore puzzling (even more so because, even if New Hampshire recognized i t , there is no dispute that Hammerstad, rather than Maurais, owned the car he was driving at the time of the collision).

19 assertion that Hammerstad was “performing errands on behalf of”

Maurais at the time of the collision, e.g., that she had asked

Hammerstad to go some place to accomplish some task.

Indeed, the assertion is only undermined by the facts that

the complaint does allege: that Hammerstad had, earlier on that

Friday night before New Year’s Eve, passed “several hours”

drinking at one restaurant, followed by more time drinking at

another restaurant, whose employees ultimately ejected him.

Hammerstad had consumed enough alcohol, in fact, that his blood

alcohol level reached . 2 4 , which is three times the legal limit.

See N.H. Rev. Stat. Ann. § 265-A:2, I ( b ) . “Determining whether a

complaint states a plausible claim for relief . . . [is] a

context-specific task that requires the reviewing court to draw

on its judicial experience and common sense.” Iqbal, 556 U.S. at

679. Doing so here compels this court to conclude that the

complaint fails to state a claim that Hammerstad was “acting on

behalf of” Maurais in operating his vehicle on the night of the

collision.

Phaneuf protests that, before facing dismissal of her claim

against Maurais, she “must be allowed to conduct discovery as to

the circumstances relating to [ ] Hammerstad’s operation of the

automobile,” including into any “discussions between [ ]

Hammerstad and [ ] Maurais.” But the Supreme Court has held that

20 the federal pleading standards, though “generous,” do not “unlock

the doors of discovery for a plaintiff armed with nothing more

than conclusions.” Iqbal, 556 U.S. at 678-79. Because, as just

explained, Phaneuf has stated nothing but conclusions in support

of her respondeat superior claim against Maurais, the court must

grant the motion to dismiss. Of course, should Phaneuf

subsequently acquire information, through formal discovery in

this matter or otherwise, that supports a claim against Maurais,

Phaneuf may seek leave to add Maurais as a defendant, see Fed. R.

Civ. P. 20(a)(2), and the court will decide the motion according

to the applicable standards.

III. Conclusion

For the foregoing reasons, Phanuef’s motion for an order

authorizing Ortlieb to act on behalf of Hammerstad, and to amend

her complaint to add USAA or Rita Hammerstad as a defendant,9 is

DENIED. Ortlieb’s motion to dismiss10 and Maurais’s motion to

dismiss11 are GRANTED, and their status as parties to this action

is TERMINATED.

9 Document n o . 1 7 . 10 Document n o . 2 4 . 11 Document n o . 2 5 .

21 SO ORDERED.

Jo ___ ph __________ ante ________ United States District Judge

Dated: May 15, 2013

cc: Scott M . Carroll, Esq. Michael C . Palermo, Esq. Anthony M . Campo, Esq. Lawrence W . Getman, Esq. Naomi L . Getman, Esq. Gary M . Burt, Esq. Christopher James Pyles, Esq. Edward M . Kaplan, Esq. Roy Weddleton, Esq.