Snow Making v. Niedner

• Court: District Court, D. New Hampshire
• Decided: April 18, 1997
• Docket: CV-97-079-M
• Status: Published

Opinion

Snow Making v. Niedner CV-97-079-M 04/18/97 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Snow Making Services, Inc. Plaintiff

v. Civil No. 97-79-M

Niedner Limited, Defendant

O R D E R

Defendant and counterclaim-plaintiff, Niedner Limited, moves

for summary judgment with regard to counts I and II of the

complaint filed by Snow Making Services, Inc. ("SMS"). Niedner

claims that those counts raise the same issues which SMS

previously raised in state court litigation and are, therefore,

barred by the doctrine of res judicata. SMS objects, claiming

that there are genuine issues of material fact which preclude the

entry of summary judgment. The motion is denied.

Background

By Writ of Summons dated June 18, 1996, SMS commenced a

civil action against Niedner in the New Hampshire Superior Court.

After the writ was served upon Niedner (but apparently before it

was entered upon the Superior Court's docket), the parties

reached a settlement agreement and executed docket markings which provided: "Judgment for neither party. No interest. No costs.

No further action for the same cause." However, nothing in this

court's record suggests that the writ was ever entered, or that

the parties actually filed the docket markings with the Superior

Court, or that the Superior Court ever entered judgment.

Nevertheless, Niedner claims that the docket markings operate as

a final judgment on the merits by a court of competent

jurisdiction and, therefore, preclude SMS from bringing the same

claims (which are set forth in counts I and II of the complaint)

in this forum.

In New Hampshire's courts, a civil action commences when

plaintiff's counsel executes a writ of summons with the intention

to serve it upon the defendants.

Since 1820 it has been clear that an action begins when a plaintiff or his counsel completes a writ with the intention to cause it to be served on the defendant. It is the intention and act combined, which, in fact, constitute the institution of the suit.

DeSaulnier v. Manchester School District, 140 N.H. 336, 338

(1995) (citations and guotation marks omitted). Plainly,

therefore, SMS commenced an action in the New Hampshire Superior

Court against Niedner when its counsel executed the writ of

summons with the intention to serve it upon Niedner. Moreover,

2 the parties agree that they reached a settlement agreement and

signed "neither party" docket markings. That fact does not,

however, resolve the pending dispute.

While the docket markings are evidence of the parties'

settlement agreement, it is unclear whether they represent a

final judgment on the merits by a court of competent jurisdiction

(thereby entitling them to the preclusive effect of res

judicata). Niedner has failed to provide the court with a

certified copy of the docket markings, showing that they were

actually filed with the Superior Court and entered uponits

docket. In fact, based upon the somewhat vague factual

allegations and ambiguous legal arguments made by Niedner, it is

entirely possible that the writ was never entered in the Superior

Court, the parties never filed the docket markings with the

court, and judgment was never entered by the court.

As the party moving for summary judgment, Niedner bears the

burden of demonstrating that it is entitled to judgment as a

matter of law. It has failed to do so. At a minimum, it must

show that:

1. Under New Hampshire law, "neither party" docket markings are entitled to the preclusive effect of res judicata even if they were not filed with the court and

3 no final order was entered by the court upon those docket markings; or

2. In this case, the parties actually filed the docket markings with the court, which then entered an appropriate final judgment closing the case. See, e.g., Moore v. Town of Lebanon, 96 N.H. 20, 22 (1949) ("The court order of 'neither party, no further action for the same cause' was in effect a judgment and bar to any further action for the same cause. . . The courts are unanimous in holding that the general rule [of res judicata] applies egually to iudaments entered by agreement or consent, operating as a bar to another suit upon the same cause of action, where such judgment is on the merits.") (emphasis added) (citations and internal guotation marks omitted).

Niedner has shown neither. It cites no New Hampshire case that

stands for the proposition which it seems to be advancing -- that

"neither party" docket markings which are not filed with the

court are treated as a final judgment on the merits and,

therefore, entitled to preclusive effect in subseguent litigation

involving the same issues. Alternatively, if the docket markings

were actually filed with the Superior Court (a point which

Niedner does not seem to claim), Niedner has not provided this

court with a certified copy of that document or evidence of the

entry of judgment.

In the end, Niedner has failed to carry its burden of

proving that the "docket markings" executed by the parties

relative to the earlier state court writ preclude further

4 litigation of the claims raised in counts I and II of the

complaint. Accordingly, summary judgment is not appropriate at

this juncture.

Conclusion

For the foregoing reasons, the court holds that Niedner has

failed to demonstrate that it is entitled to judgment as a matter

of law with regard to counts I and II of SMS's complaint.

Accordingly, its motion for summary judgment (document no. 8) is

denied. For the same reasons, Niedner has failed to demonstrate

that SMS lacked a good faith basis upon which to make the claims

contained in counts I and II of its complaint. So, its motion

for Rule 11 sanctions against SMS and/or its counsel (document

no. 16) is likewise denied.

SO ORDERED.

Steven J. McAuliffe United States District Judge

April 18, 1997

cc: C. Nicholas Burke, Esg. Warren C. Nighswander, Esg.