Snow v. Isaac

Opinion

Snow v. Isaac CV-98-180-SD 09/30/98 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Robert M . Snow

v. Civil No. 98-180-SD

Andrew L. Isaac

O R D E R

In this diversity action, plaintiff Robert Snow claims that

defendant Andrew Isaac wrongfully pursued a civil action against

him without probable cause and with malice. Currently before the

court is defendant's motion for summary judgment, to which

plaintiff objects. For the reasons that follow, this court

grants defendant's motion.

Background

This case arises from a previous action in this court in

which plaintiff Snow was named as a defendant. Simpkins v. Snow,

Civ. No. 98-108-B. To understand the conflict between the two

parties in this case, a brief history of prior action against

Snow is helpful.

Snow, as the Chief of Police of Bartlett, New Hampshire, was

involved in the arrest and prosecution of Guy S. Simpkins for the possession of marijuana. Snow obtained a search warrant for

Simpkins' residence based upon a confidential informant's

information that Simpkins was involved in illegal drug

activities. At a hearing on a motion to suppress, the Carroll

County (New Hampshire) Superior Court ruled that the search

warrant was defective because Snow had failed to identify and

establish the credibility of the confidential informant. At that

time Snow would not reveal the identity of his informant, and the

court suppressed all evidence obtained as a result of the search

warrant. The court ultimately dismissed the state's case against

Simpkins for failure to prosecute. After the criminal case was

dismissed, Simpkins sued Snow, unsuccessfully, in state court for

defamation. See also Simpkins v. Snow, 139 N.H. 735, 661 A.2d

772 (1995). During that trial. Snow testified that Roy Olive had

been his confidential informant in the Simpkins investigation and

that William Donatelli had participated as a third party in a

controlled purchase of drugs between Olive and Simpkins. At

trial Donatelli denied any participation in this alleged purchase

of drugs from Simpkins.

Based on facts associated with the defamation action and a

subsequent affidavit derived from Olive, Simpkins proceeded

against Snow in this court, with defendant Isaac appearing as his

attorney. In his affidavit, made in November 1994, Olive denied

2 any participation as a confidential informant. Based on that

statement, Isaac petitioned the attorney general to release to

him (on behalf of Olive) any records regarding Olive's

involvement as a police informant. (Contrary to his affidavit,

Olive admitted being Snow's police informant both before and

after his affidavit in telephone interviews with investigators.)

Simpkins alleged that his federal civil rights were violated by

Snow, claiming illegal search and seizure, false arrest, and

malicious prosecution actionable under 42 U.S.C. § 1983.

Simpkins also alleged state claims against Snow of intentional

infliction of emotional distress, negligent infliction of

emotional distress, negligence, negligent supervision, and

malicious prosecution. After considering the defamation action

brought by Simpkins against Snow in state court. Judge Barbadoro

resolved the federal action in favor of Snow, holding it to be

barred by the doctrine of res judicata. Simpkins, supra, Civ.

No. 98-108-B, Order of May 13, 1996. See also Simpkins, supra,

139 N.H. 735, 661 A.2d 772.

Discussion

1. Standard of Review

The court may only grant a motion for summary judgment where

the "pleadings, depositions, answers to interrogatories, and

3 admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law."

Fed. R. Civ. P. 56(c). Accordingly, at this stage of the

proceedings, the court does not weigh the evidence and determine

the truth of the matter, but instead determines whether there is

a genuine issue of fact for trial. See Stone & Michaud Ins, v.

Bank Five for Savinas, 785 F. Supp. 1065, 1068 (D.N.H. 1992)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986)). The substantive law identifies which facts are material

so that [o]nly disputes over facts that might affect the

outcome of the suit under the governing law will properly

preclude the entry of summary judgment. Factual disputes that

are irrelevant or unnecessary will not be counted.'" Caputo v.

Boston Edison Co., 924 F.2d 11, 12-13 (1st Cir. 1991) (quoting

Anderson, supra, 477 U.S. at 248).

The party seeking summary judgment bears the initial burden

of establishing the lack of genuine issues of material fact. See

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Quintero de

Quintero v. Aponte-Rocrue, 974 F.2d 226, 227-28 (1st Cir. 1992).

As a result, the court must view the entire record in the light

most favorable to the non-moving party, "'indulging all

reasonable inferences in that party's favor.'" Mesnick v.

4 General Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991) (quoting

Griggs-Rvan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990)).

However, once a defendant has submitted a properly supported

motion for summary judgment, the plaintiff "may not rest upon

mere allegation or denials of his pleading, but must set forth

specific facts showing that there is a genuine issue for trial."

Anderson, supra, 477 U.S. at 256.

1. Malicious Prosecution

According to New Hampshire law, a successful action for

malicious civil prosecution requires proof of four elements: the

plaintiff was subjected to a civil action instituted by the

defendant, the defendant acted without probable cause, the

defendant acted with malice, and the proceedings terminated in

favor of the plaintiff. See ERG, Inc. v. Barnes, 137 N.H. 186,

190, 624 A.2d 555, 558 (1993).

The first element of this claim, that plaintiff was

subjected to a civil action initiated by defendant, is

undisputed. Plaintiff has also established that a prior action

terminated in his favor, despite defendant's contention to the

contrary. A civil proceeding terminates in a plaintiff's favor

when the court passes on the merits of the claim establishing the

plaintiff's lack of liability or when the proceedings are

5 terminated by the defendant in such a manner as to imply that the

plaintiff was successful in defeating the claim. See Robinson v.

Fimbel Door Company, 113 N.H. 348, 350-51, 306 A.2d 768, 769-70

(1973) (quoting 1 H a r p e r a n d Ja m e s , La w of T orts §§ 4.1, 4.4 (1956)) .

In the present case, there is no ambiguity as to who

prevailed in the prior action against the plaintiff. Because a

defamation action based on similar facts between the same parties

had been tried in state court, and Snow was found not liable.

Judge Barbadoro determined that the action in federal court

against Snow should be barred by the doctrine of res judicata.

See Simpkins, supra, Civ. No. 98-108-B. Thus the federal court

adopted the prior ruling by the state court, which was a final

determination on the merits of the case favorable to Snow.

A plaintiff also must establish that in a prior civil

proceeding the defendant acted without probable cause. Probable

cause will be lacking if the initiator knows the facts supporting

his or her case are false and his or her claim is based on false

testimony. See R e s t a t e m e n t (S e c o n d ) of T orts § 675 cmt. d (1977) . On

the other hand, one who takes an active part in litigation

against another has probable cause for doing so "if he reasonably

believes in the existence of the facts upon which the claim is

based, and . . . correctly or reasonably believes that under

those facts the claim may be valid under the applicable law . . .

6 Id. § 675. Consequently, someone who initiates a civil

action does not need the same degree of certainty as to relevant

facts required of a prosecutor in a criminal proceeding to

establish that his or her litigation activities were based upon

probable cause. See id. § 675 cmt. d. Essentially, probable

cause for the initiation of a civil proceeding will be

established if "the claimant reasonably believe[s] that there is

a sound chance that his claim may be held legally valid upon

adjudication." Id. § 675 cmt. e.

Plaintiff contends that defendant lacked probable cause

because he should have known both that the testimony he relied

upon in support of his case was false and that the case would be

barred by the doctrine of res judicata. To support his

contention that Isaac knowingly relied upon false testimony,

plaintiff now relies upon the contradictory statements made by

the very witness who gave this testimony, Olive. As the

R estatement illustrates, if there is uncertainty as to the

existence of certain facts, that does not mean that the initiator

of a civil action acted without probable cause. See id. § 675

cmt. d. Only if the initiator knows that facts supporting his or

her claims are false can the court determine that the initiator

lacked probable cause in bringing forth his or her claims. See

id. Plaintiff's only evidence that defendant knew Olive's

7 testimony was false is later statements made by the same

unreliable witness.

Additionally, just because a previous action in state court

had been brought against this plaintiff by Isaac's client does

not mean that Isaac did not have a reasonable basis for bringing

an action against Snow in federal court. For instance, there are

exceptions to the doctrine of res judicata; as long as Isaac had

a reasonable argument for bringing this case forward, such as the

addition of new evidence with Olive's affidavit, then Isaac did

not lack probable cause, even though his action against Snow was

unsuccessful. Furthermore, even if probable cause could be found

from the facts presented by plaintiff, he still has not presented

sufficient evidence to prove the element of malice for this cause

of action.

Based upon his conclusion that defendant acted without

probable cause, plaintiff contends that defendant acted with

malice in the prior action against Snow. Despite this assertion

by plaintiff, in the case of an attorney, "even if [an attorney]

has no probable cause and is convinced that his client's claim is

unfounded, he is still not liable if he acts primarily for the

purpose of aiding his client in obtaining a proper adjudication

of his claim." Id. § 674 cmt. d; see also ER G , Inc., supra, 137

N.H. at 190, 624 A.2d at 558. Additionally, an attorney is not

8 required to prejudge his or her client's claim, even if he or she

is fully aware that his chances of success are relatively slight.

See ERG, Inc., 137 N.H. at 190, 624 A.2d at 558 (citing

Restatement, supra, § 674 cmt. d) . After counsel has advised the

client as to the likelihood of success regarding the case, if the

client insists upon going forward, it is the attorney's

responsibility to present his client's case to the court for

adjudication. Id. To prove malice, plaintiff must introduce

evidence that defendant harbored some improper motive.

In the instant case. Snow is unable to point to any direct

evidence of Isaac's improper motive. Snow nonetheless argues

that Isaac's reliance on Olive's testimony establishes malice.

It is true that if an initiator of an action knows that his or

her claim is based on false testimony or that the only way the

action will terminate in his or her favor is if the court or the

jury is misled in some way, then this is evidence that the

initiator acted with malice. See R e s t a t e m e n t , supra, § 676 cmt. c.

Here, plaintiff attempts to argue that because Isaac knew Olive

had recanted statements made in his affidavit, then Isaac knew

Olive's testimony was false. Even if Isaac knew that Olive had

recanted statements in his affidavit, this alleged fact alone

would still not support the proposition that Isaac acted with

malice, because there is no way of knowing which of Olive's

9 inconsistent accounts is true. C f . ERG, Inc., supra, 137 N.H. at

190-91, 624 A.2d at 558 (to support claim for malicious

prosecution court ruled that plaintiff could not rely on

conclusions that attorney knew or should have known his client

was not entitled to commission sought in previous lawsuit against

plaintiff, but instead needed to plead specific facts to support

finding that defendant acted without probable cause and with

malice.)

Certainly plaintiff here does not suggest that attorneys

should be subject to liability for malicious prosecution every

time witnesses change their testimony after a litigation has

already begun. Attorneys are charged with a duty to represent

their clients to the best of their abilities and should not fear

litigation against themselves just because they performed their

duties loyally to their clients. Only if an attorney goes so far

as to pursue a civil action for his or her client for an improper

purpose, such as to harass his or her opponent, can an action for

malicious prosecution survive. C f . Aranson v. Schroeder, 140

N.H. 359, 366-67, 671 A.2d 1023, 1028-29 (1996) (holding attorney

would be liable for malicious defense if he or she went beyond

role of counselor and intentionally initiated defensive action

that attorney knew lacked credibility for sole purpose of

harassing plaintiff). Plaintiff in this action has not offered

10 any credible evidence to show that Isaac knew he was relying on

false testimony or to show any other improper purpose on Isaac's

part. Thus, even though the facts are viewed in the light most

favorable to the plaintiff, the court still does not find any

evidence of malice.

Conclusion

For the abovementioned reasons, defendant's motion for

summary judgment (document 6) must be and herewith is granted.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

September 30, 1998 cc: Thomas J. Gleason, Esq. Russell F. Hilliard, Esq.