Sutliffe v. Epping

2008 DNH 076

• Court: District Court, D. New Hampshire
• Decided: April 4, 2008
• Docket: CV-06-474-JL
• Status: Published

Opinion

Sutliffe v. Epping CV-06-474-JL 4/4/08 P

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Thomas Sutliffe et a l .

v. Civil N o . 06-cv-474-JL Opinion N o . 2008 DNH 076 Epping School District et a l .

O R D E R

The defendants, who include municipal agencies, officials,

and employees of the town of Epping, New Hampshire, have moved

under Rule 12(b)(6) of the Federal Rules of Civil Procedure to

dismiss the bulk of the plaintiffs’ second amended complaint,

which alleges violations of their constitutional rights to free

speech and equal protection. The defendants argue that the

plaintiffs’ claims are, variously, barred by res judicata,

collateral and judicial estoppel, the Rooker-Feldman doctrine,1

and the statute of limitations; have been brought by parties

without standing; are not ripe; and fail to state a claim for

relief.

1 See Rooker v . Fidelity Trust Co., 236 U.S. 413 (1923); D.C. Ct. of Appeals v . Feldman, 460 U.S. 462 (1983). Except as to those claims by plaintiffs who, as discussed

infra, lack standing, this court has jurisdiction over this

matter under 28 U.S.C. §§ 1331 (federal question) and 1343 (civil

rights).

The court heard oral argument on the motions to dismiss on

March 2 5 , 2008. For the reasons stated below, the motions are

granted, except insofar as they seek dismissal of the claim that

the Epping selectmen wrongfully required the plaintiff

organization to disclose certain information about its membership

and finances before the selectmen would consider allowing the

organization to place a link to its website on the town’s

homepage.2

Applicable Legal Standard

Under Rule 12(b)(6), “[a] complaint should not be dismissed

unless it is apparent beyond doubt that the plaintiff can prove

no set of facts in support of his claim that would entitle him to

relief.” Stanton v . Metro Corp., 438 F.3d 119, 123-24 (1st Cir.

2006) (internal quotation marks omitted). In ruling on a motion

to dismiss, the court must accept the well-pleaded factual

2 This claim is alleged in paragraphs 55-60 of the second amended complaint.

2 allegations of the complaint as true, drawing all reasonable

inferences in the plaintiff’s favor. Id. at 123.

Although res judicata, collateral and judicial estoppel, and

the statute of limitations are affirmative defenses, they may be

adjudicated on a motion to dismiss under Rule 12(b)(6). 3 See,

e.g., In re Sonus Networks, Inc. Shareholder Deriv. Litig., 499

F.3d 4 7 , 56 (1st Cir. 2007) (collateral estoppel); Edes v .

Verizon Comm’ns, Inc., 417 F.3d 133, 137 (1st Cir. 2005) (statute

of limitations); Banco Satander de P.R. v . Lopez-Stubbe (In re

Colonial Mtg. Bankers Corp.), 324 F.3d 1 2 , 15-16 (1st Cir. 2003)

(res judicata); Payless Wholesale Distribs. v . Alberto Culver

( P . R . ) , Inc., 989 F.3d 570, 571 (1st Cir. 1993) (judicial

estoppel). Consistent with Rule 12(b)(6) standards, however,

dismissal can occur only when facts that “conclusively establish

3 A request for dismissal for lack of standing presents a question of federal subject-matter jurisdiction, placing the burden on the plaintiff to show that jurisdiction in fact exists; in assessing such a request at the pleadings stage, however, the liberal standards of Rule 12(b) apply. See infra Part I.A (standing). Rooker-Feldman works the same way. See Federacion de Maestros de P.R. v . Junta de Relaciones del Trabajo de P.R., 410 F.3d 1 7 , 20 (1st Cir. 2005). In assessing a challenge to subject-matter jurisdiction based on ripeness--where the plaintiff also bears the burden--the truth of his factual allegations is not presumed. See Coal. for Sustainable Res., Inc. v . U.S. Forest Serv., 295 F.3d 1244, 1249 (10th Cir. 2001).

3 the affirmative defense” are “definitively ascertainable from the

allegations of the complaint, the documents (if any) incorporated

therein, matters of public record, or other matters of which the

court may take judicial notice,” including the records of prior

judicial proceedings. In re Colonial Mtg., 324 F.3d at 1 6 .

BACKGROUND

Plaintiff Thomas Sutliffe serves as the chairman of

plaintiff organization Epping Residents for Principled

Government, Inc. (“ERPG”), a self-described “perennial thorn in

[the town’s] side opposing its profligate spending.” The

plaintiffs occupy one side of an “ongoing political debate” with

local officials over municipal spending. The plaintiffs take

exception to the officials’ using taxpayer-funded mailings and

other communications to argue their side of the debate, while

allegedly denying the plaintiffs access to those materials to

present their dissenting views.

In advance of the 2005 town election, Sutliffe, on behalf of

ERPG, complained to both the board of selectmen and the school

board about publicly funded communications disseminated in

connection with the prior year’s vote, demanding that an

4 equivalent “opportunity be afforded to those residents who hold a

different point of view on matters advocated by [the] Board[s]”

(internal quotation marks omitted). When the boards refused to

comply, Sutliffe and ERPG (the “state-court plaintiffs”) sued

them, and their chairmen (the “state-court defendants”), in

Rockingham County Superior Court.

The state-court petition, filed pro s e , alleged that the

school board had deprived ERPG of an opportunity to express its

views in mailings sent during the prior month, as well as

“numerous fliers sent home with the students.” As an exhibit to

the petition, the state-court plaintiffs attached a letter they

had written to the school board complaining about materials they

found objectionable in this regard, including the elementary

school newsletter Cool News, which allegedly “advertised and

sought to advance the political agenda of a private organization

called The Advocates,” together with “other one-sided political

bulletins” distributed via the students and the mails.4 The

state-court plaintiffs also charged that the chairman of the

4 This letter, and a similar one from the state-court plaintiffs to the board of selectmen also attached to the petition, charged that such “abuse of public resources . . . is pervasive; one might even say of epidemic proportions” among the town government and the school district.

5 school board and the police chief had illegally used the town’s

2004 annual report to urge support for particular warrant

articles at issue in the upcoming election. In its amended form,

the petition claimed, inter alia, that this report, and its 2003

counterpart, violated the state and federal constitutions due to

“unwarranted advocacy from a particular result on a particular

warrant article,” and sought a declaratory judgment to that

effect and an injunction against the practice.

The superior court held a bench trial on the state-court

plaintiffs’ claims on June 1 , 2005. In support of their

position, the state-court plaintiffs submitted a packet of

documents, including: copies of the Cool News newsletter from

February and March 2004; a mailing from the school board about

the 2005-2006 school budget and certain warrant articles, sent

just in advance of the 2005 election; photographs showing that

blueprints and a model of a school addition up for consideration

in the 2005 election had been placed at the polls; and a mailing

from the board of the selectmen in advance of the 2004 election

about warrant articles then up for consideration.

Though the superior court accepted these exhibits, it

expressed concern about an “open-ended” proceeding where “every

6 time someone sends out a letter, I have to decide.” The court

therefore announced that “the only thing I am going to decide is

whether the material referenced in your original petition is

legal; is legal or illegal to send that out. That’s my

determination.” In response, the state-court plaintiffs

explained that the exhibits were intended as

some background basically on what transpired, because this all started in the year 2004. And in 2005, we were determined to ask that we be allowed to show opposing views . . . . We were denied that at all angles from the selectmen, the school committee, from any other planning board or conservation commission.

While the superior court “underst[ood] [this] position,” it

reiterated, “I am only going to address the denials that are

contained in your petition.” The state-court plaintiffs did not

further object to this limitation or seek to amend their petition

to seek relief from the additional communications.

The superior court issued a written order denying what it

construed as the state-court plaintiffs’ requests for relief as

set forth in their amended petition. Epping Residents for

Principled Gov’t, Inc. v . Epping Sch. Bd., slip op. at 1 , N o . 05-

E-0094 (N.H. Super. C t . June 1 5 , 2005) (“Superior Court Order”).

The court concluded that “the First Amendment does not prevent

7 the School Board Chairman or the Police Chief from urging support

for their governmental proposals in the Town and School Annual

Report,” id. at 5 , because “the United States Supreme Court has

made it clear that the government may use public funds to endorse

its own measures,” id. at 4 (citing Johanns v . Livestock Mktg.

Ass’n, 544 U.S. 550 (2005)). The court also rejected the claim

that the school board had violated the state-court plaintiffs’

right to equal protection “by failing to publish opposing

viewpoints in the annual report and other mailings,” noting that

they had “not presented evidence sufficient to demonstrate that

the School Board impermissibly established classifications and

therefore treated similarly situated individuals in a different

manner.” Id. at 5 (internal quotation marks omitted).

The state-court plaintiffs, still proceeding pro s e ,

appealed the superior court’s decision to the New Hampshire

Supreme Court, which affirmed in an unpublished opinion. Epping

Residents for Principled Gov’t, Inc. v . Epping Sch. Bd., slip

op., N o . 2005-0600 (N.H. Oct. 6, 2006) (“Supreme Court Opinion”).

First, the supreme court declined the state-court plaintiffs’

request “to rule upon numerous statements by the [state-court

defendants] upon which the trial court did not,” invoking the

8 “long-standing rule that parties may not have review of matters

not raised in the forum of trial.” Id. at 3 . Observing that

“the only statements upon which the trial court ruled were the

statements made in the 2004 Town and School Annual Report,” the

supreme court explained, “If the [state-court plaintiffs]

believed the trial court erred by confining its review . . . ,

[they] should have raised this argument to the trial court in a

motion for reconsideration.”5 Id. at 3-4. The supreme court

further observed that the state-court plaintiffs’ pro se status

below did not excuse their failure to take this step.6 Id. at 4 .

Second, the supreme court noted that the state-court

plaintiffs had conceded at oral argument before it that the

challenged statements in the 2004 annual report were permissible;

while maintaining that the other communications--on which the

superior court had declined to rule--were unconstitutional, the

state-court plaintiffs had acknowledged that the state defendants

5 Though the state-court plaintiffs had filed a motion for reconsideration with the superior court, they failed to include it in the record on appeal, Supreme Court Opinion at 4 , but, in any event, the motion did not argue that the superior court had erred by confining its review to the statements in the 2004 annual report.

6 The state-court plaintiffs had retained counsel by the time their appeal to the supreme court was briefed and argued.

9 could lawfully use the annual report to “urge a yes vote” on the

budget or “state that the town needed a new high school for

particular reasons.” Id. at 4 (internal quotation marks

omitted). The supreme court therefore affirmed the superior

court’s ruling on that point. Id.

About two months after this decision, the state-court

plaintiffs--represented by counsel, and joined by Donald Sisson,

who is also a member of ERPG--commenced the instant action in

this court under 42 U.S.C. § 1983. They named as defendants the

moderator of the Epping school district, the town’s

superintendent of schools, the principal of Epping Elementary

School, and current and former members of the town’s school board

and board of selectmen, all of whom are sued in their official

and individual capacities. Also named are the school district

and the town itself.

The initial federal complaint alleged that the defendants

had violated the plaintiffs’ federal constitutional rights to

free speech and equal protection through a number of actions,

including: (1) distributing the Cool News publication in

February and March 2004; (2) distributing other “promotional

flyers” in 2004 and 2005; (3) using similar “advocacy mailers . .

10 . for at least a decade,” from 2001 into the present; (4) placing

favorable information about the proposed school addition at the

2005 polls, while the school district’s moderator denied the

plaintiffs an opportunity to present opposing views in that

forum; (5) using a mailing from the town’s board of selectmen to

advocate in favor of certain warrant articles in the 2004

election; and (6) using a mailing from the town’s conservation

commission or planning board “to advocate a particular viewpoint

in order to obtain an election result favoring their political

positions” in each of the 2003 and 2004 elections. The

plaintiffs seek a declaratory judgment that the defendants

illegally “creat[ed] fora . . . for the expression of their

viewpoints regarding spending, while failing and refusing to

allow [the plaintiffs] access to such fora in order to

communicate their contrary viewpoints.” The plaintiffs also

request compensatory and punitive damages and attorneys’ fees.

The defendants moved to dismiss the initial complaint,

arguing that the plaintiffs’ claims were barred in their entirety

by res judicata and the Rooker-Feldman doctrine as a result of

the outcome of the prior state proceedings. The plaintiffs

objected, arguing that these doctrines did not apply because “the

11 factual transactions at issue in the present case are completely

different” from those in the state-court proceedings. The

plaintiffs also announced that, in any event, they intended to

amend their complaint to add plaintiffs who were not parties to

the state court action, as well as allegations of “one-sided

advocacy by the defendants in the 2006 Annual Report--a matter

that the plaintiffs could not possibly have raised” before the

state courts in 2005.

This court allowed the plaintiffs’ proffered amendment over

the defendants’ protest that it would be futile, pointing out

that such an objection would be “better addressed as an amendment

to or a new motion to dismiss.” The defendants accordingly

revised and refiled their motion to dismiss, arguing that the new

plaintiffs--Leo Grimard, Nancy Lee Grimard, and Renee Victoria,

who have never been members of ERPG--lacked standing to assert

the claims in the amended complaint, and that the new allegations

were barred by collateral and judicial estoppel as a result of

the state courts’ decision—-and the state-court plaintiffs’

concession before the supreme court--that pro-spending advocacy

in the annual reports was permissible. The plaintiffs objected

12 and then, three months later, moved to amend their complaint

again.

This time, the plaintiffs sought to add allegations that, in

2007, the selectmen refused to place a link to ERPG’s website on

the town’s homepage, yet “allow outside groups whose views the

town favors” to do s o , including one known as “Speak U p , Epping.”

When ERPG asked the selectmen for similar treatment, they

allegedly asked the group to “provide, among other things,

financial statements and a list of members and officers in order

for the Town to consider” the request, which the plaintiffs say

amounts to harassing and differential treatment on the basis of

their political views. The proposed amendment adding these

allegations was allowed, this time over the defendants’ objection

that they had not denied ERPG the privilege of linking to the

town’s website, but had “merely requested information about

[ERPG] prior to placing a link.” Based on this argument, the

defendants now seek to dismiss this claim as unripe for

adjudication. They have also renewed their arguments for

dismissal of the first amended complaint.

13 ANALYSIS

I. Res judicata

The defendants argue that the plaintiffs’ claims--except

insofar as they arise out of the 2006 annual report and ERPG’s

access to the town’s website--are barred by the res judicata

effect of the judgment against the state-court plaintiffs, and

its affirmance, in the New Hampshire courts. A federal court

applies the law of the state whose courts issued the judgment in

determining its preclusive effect. Migra v . Warren City Sch.

Dist. Bd. of Educ., 465 U.S. 7 5 , 81 (1984); Patterson v .

Patterson, 306 F.3d 1156, 1158 (1st Cir. 2002). Under New

Hampshire law, the doctrine of res judicata provides that a prior

lawsuit precludes a subsequent one when (1) the parties or their

privies in both actions are the same, (2) the cases present the

same cause of action, and (3) the first action concluded with the

issuance of a final judgment on the merits. Meier v . Town of

Littleton, 154 N.H. 340, 341 (2006). The plaintiffs argue that

this lawsuit involves neither the same plaintiffs nor the same

cause of action as the state-court proceedings, and that those

proceedings did not end with the entry of a final judgment on the

merits, so res judicata cannot apply.

14 A. Same parties or privies, and standing to sue

The plaintiffs maintain that res judicata cannot apply,

because, as an initial matter, they are not the same parties as

the state-court plaintiffs, who included only Sutliffe and ERPG.

They do not contest, however, that Sisson, by virtue of his

relationship with ERPG, stands in privity with it for res

judicata purposes. See, e.g., Gen. Foods Corp. v . Mass. Dep’t of

Public Health, 648 F.2d 784, 788-89 (1st Cir. 1981) (finding

relationship between trade association and member sufficient to

bind member to judgment against association, in absence of

evidence that member objected to or was not adequately

represented in litigation giving rise to judgment). The other

plaintiffs here who did not appear in the state-court litigation

are the Grimards and Victoria (the “new plaintiffs”), who allege

“no affiliation” with EPRG. But the defendants argue that this

gives rise to a different defect--that the new plaintiffs did not

suffer any injury as a result of the challenged actions and

therefore lack standing to bring the claims asserted.

“Article III of the Constitution limits the ‘judicial power’

of the United States to the resolution of ‘cases’ and

‘controversies’. . . . As an incident to the elaboration of this

15 bedrock requirement, [the Supreme] Court has always required that

a litigant have ‘standing’ to challenge the action sought to be

adjudicated in the lawsuit.” Valley Forge Christian Coll. v .

Ams. United for Separation of Church & State, Inc., 454 U.S. 464,

471 (1982). So-called “Article III standing,” then, “requires

that the party who invokes the court’s authority to show that he

personally has suffered some actual or threatened injury as a

result of the putatively illegal conduct of the defendant,” among

other elements. Id. at 472 (internal quotation marks omitted).

To confer standing, the injury must be both “concrete and

particularized” and “actual or imminent, not conjectural or

hypothetical.” Lujan v . Defenders of Wildlife, 504 U.S. 555, 560

(1992) (internal quotation marks omitted).

The new plaintiffs suggest that they have suffered both

actual and threatened injury to their constitutional rights at

the hands of the defendants.7 The second amended complaint,

7 There is authority for “the standing of municipal residents to enjoin the ‘illegal use of the moneys of a municipal corporation,’ which relies on ‘the peculiar relation of the corporate taxpayer to the corporation’ to distinguish such a case from the general bar on taxpayer suits.” DaimlerChrysler Corp. v . Cuno, 547 U.S. 332, 349 (2006) (quoting Massachusetts v . Mellon, 262 U.S. 447, 486-87 (1923)). But the plaintiffs expressly disavow that theory here, arguing that they have standing based on their “free speech rights,” rather than the

16 however, does not allege that the new plaintiffs participated in

any of ERPG’s efforts to include its views in the defendants’

publicly funded communications, or that the new plaintiffs

undertook similar efforts on their own behalf. So the pleading

offers no basis for the assertion in the plaintiffs’ objection

that the defendants “have denied them access” to these fora so as

to cause an actual injury.

As the plaintiffs rightly point out, a court faced with a

challenge to standing at the pleading stage must “accept as true

all material allegations of the complaint, and . . . construe the

complaint in favor of the complaining party.” Warth v . Seldin,

422 U.S. 490, 501 (1975). While forgiving, this standard does

not require the court to credit “empirically unverifiable

conclusions, not logically compelled, or at least supported, by

the stated facts” in the complaint. Sea Shore Corp. v . Sullivan,

158 F.3d 5 1 , 54 (1st Cir. 1998) (internal bracketing and

quotation marks omitted). The factual allegations here not only

fail to support the new plaintiffs’ claim of actual injury, but

undermine it--to dodge the potentially preclusive effect of the

expenditure of their tax dollars; in fact, they call DaimlerChrysler “readily distinguishable” on that basis.

17 state-court judgment against the other plaintiffs, the new

plaintiffs expressly disclaim any “affiliation with” ERPG, but

only ERPG claims to have been denied access to the public fora in

the ways described in the second amended complaint.

The new plaintiffs’ argument for threatened injury is no

sounder. They assert in their objection that, “just like the

other plaintiffs,” they “wish to participate in the tax-payer

funded fora for the expression of views” described in the second

amended complaint, characterizing this intention as “the

inescapable implication of the allegations” therein. But, as

just discussed, any such desire on the part of the new plaintiffs

is hardly apparent from the face of the second amended complaint,

which describes only the efforts of ERPG to that end. At oral

argument, in fact, the plaintiffs conceded that the second

amended complaint does not allege any desire on the part of the

new plaintiffs to participate in the fora in question.8 In any

8 At oral argument, the plaintiffs also suggested that they could simply move to amend their complaint “yet again” to allege the new plaintiffs’ desires to this end. Without prejudging the merits of any such motion, this court would expect it to convincingly articulate why the second amended complaint does not itself contain these allegations, given that it was filed after the defendants had already challenged the new plaintiffs’ standing.

18 event, the new plaintiffs’ “desires,” however laudable, are just

that: desires. More is required to confer standing.

The Supreme Court has held that “[s]uch ‘some day’

intentions--without any description of concrete plans, or indeed

even any specification of when the some day will be--do not

support a finding of the ‘actual or imminent’ injury” necessary

for standing. Lujan, 504 U.S. at 564; see also Daggett v . Comm’n

on Governmental Ethics & Election Practices, 205 F.3d 445, 463

(1st Cir. 2000) (ruling that plaintiffs lacked standing to

challenge limits on campaign contributions based on lack of

“specificity about future plans for contributions to display a

real or even a threatened injury”). 9 The new plaintiffs plainly

9 Osediacsz v . City of Cranston, 414 F.3d 136 (1st Cir. 2006), on which the plaintiffs heavily rely, does not support their contrary view that “desires” suffice to confer standing. As the court of appeals explained at length in that case, that a party “desired or intended to undertake activity” can suffice to show standing only for “certain types of facial challenges to statutes, ordinances, regulations, or governmental policies . . . on First Amendment grounds” due to their potential chilling effect. Id. at 140-41. This lawsuit, which seeks relief from the defendants’ alleged practice of excluding competing views from publicly funded fora, does not present such a facial challenge (except insofar as it arises out of the alleged refusal to consider allowing a group to place a link on the town website without first identifying its members and providing financial and other information, and that claim, by its nature, belongs only to a group or its members, not unaffiliated individuals). Osediacz is therefore inapposite.

19 lack standing to challenge the actions chronicled in the second

amended complaint. For res judicata purposes, then, the only

proper plaintiffs to this action are the same as (or, in the case

of Sisson, in privity with) the state-court plaintiffs who

suffered an adverse judgment in that forum.

This action also has additional defendants beyond those sued

in the state court: while they included only the school and

select boards and their chairmen, this lawsuit names individual

board members, the town, the school district, and certain of its

employees (the “new defendants”). The new defendants argue that

they can assert res judicata, despite its “same parties”

requirement, because they “had their interests represented and

protected” by the state-court defendants in that proceeding. See

Waters v . Hedberg, 126 N.H. 546, 549 (1985). The First Circuit

has observed that, because “the application of res judicata . . .

in New Hampshire[] is no longer grounded upon mechanical

requirements of mutuality,” certain non-parties to a judgment may

invoke its res judicata effect. Fiumara v . Fireman’s Fund Ins.

Cos., 746 F.2d 8 7 , 91-92 (1st Cir. 1984). These include parties

sued for their actions as agents of principals who successfully

20 defended a prior suit based on their conduct, and who are thus

“persons in privity” for res judicata purposes. Id.

Here, the state-court proceedings--though lodged against the

boards and their chairmen only--arose out of the actions of the

new defendants, including the board members themselves, the

superintendent, the moderator, and the principal.10 While, as

discussed infra, the plaintiffs contend that the superior court

did not decide whether each instance of this conduct amounted to

a constitutional violation, they do not argue that this fact has

any bearing on whether the new defendants--as opposed to the

state-court defendants--can seek solace in the state-court

judgment. In fact, the plaintiffs do not dispute that the

mutuality requirement of res judicata is satisfied as far as the

identity of the defendants is concerned.

10 Conversely, the boards and their chairmen were sued in state court for actions they took on behalf of the school district and the town, so those new defendants are also in privity with the state-court defendants under Fiumara. See also Garcia v . Village of M t . Prospect, 360 F.3d 630, 635-37 (7th Cir. 2004) (finding village in privity with village pension board named as defendant to prior action); Kudaroski v . Hellmuth, 31 Fed. R. Serv. 2d 1287, 1289 (D. Mass. 1981) (finding city in privity with officers of municipal foundation named as defendants to prior action), aff’d without op., 676 F.2d 683 (1st Cir. 1982).

21 The court concludes that, under New Hampshire res judicata

principles as illuminated by the First Circuit, the new

defendants can raise the res judicata effect of the state-court

proceeding as a defense to this one. See Town of Seabrook v . New

Hampshire, 738 F.2d 1 0 , 11 (1st Cir. 1984) (applying New

Hampshire law) (naming officials of state commission as

defendants to second suit did not avoid res judicata effect of

first suit against commission itself); Burgess v . Bd. of Trs.,

Univ. of N.H., N o . 94-338-JD, 1995 WL 136930, at *8 (D.N.H. Mar.

2 8 , 1995) (naming state university employees as defendants to

second suit did not avoid res judicata effect of first suit

against university), aff’d, 70 F.3d 110 (1st Cir. 1995)

(unpublished opinion).

B. Same cause of action/final judgment on the merits

The plaintiffs also argue that the prior lawsuit has no res

judicata effect over the current one because the “cause of

action” has changed. “In determining whether two actions are the

same cause of action for purposes of applying res judicata, [New

Hampshire] consider[s] whether the alleged causes of action arise

out of the same transaction or occurrence.” In re Univ. Sys. Of

22 N.H. Bd. Of Trs., 146 N.H. 626, 629 (2002) (citing Restatement

(Second) of Judgments § 24 (1982)). Since the state-court

proceedings dealt only with the statements in the 2004 annual

reports, the plaintiffs argue, they arose out of different

transactions and occurrences from those at issue here, e.g., the

distribution of the Cool News publication and other materials by

the school system, the placement of information supporting the

school addition at the 2005 polls, and the use of mailings by the

board of selectmen and other local boards to advocate for their

views in the 2003-2005 elections, all to the exclusion of the

plaintiffs. In fact, the plaintiffs point out, they seek no

relief from the 2004 annual reports in this action.

This argument depends on too narrow a view of both the

state-court proceedings and the “same transaction or occurrence”

requirement of res judicata. Under New Hampshire law, the

doctrine “bars the relitigation of any issue that was, or might

have been, raised in respect to the subject matter of the prior

litigation . . . . The claim extinguished includes all rights to

remedies with respect to all or any part of the transaction, or

series of connected transactions, out of which the [first] action

arose.” Grossman v . Murray, 141 N.H. 265, 269 (1996) (quoting

23 Dennis v . R.I. Hosp. Trust Nat’l Bank, 744 F.2d 893, 898 (1st

Cir. 1984)) (second emphasis added). Though “‘transaction’ is

not always easy to define with precision,” Patterson, 306 F.3d at

1159 (applying New Hampshire l a w ) , any practical formulation of

the concept is broad enough to include all of the events alleged

in the second amended complaint which had occurred by the time of

the state-court trial--not just the statements in the 2004 annual

reports specifically alleged in the state-court petition.

The Restatement, to which the New Hampshire Supreme Court has

frequently looked in shaping its own principles of res judicata,

see Patterson, 306 F.3d at 1160, teaches that a “transaction, or

series of connected transactions” in this context includes facts

sharing “relatedness in time, space, origin, or motivation” and

“form[ing] a convenient unit for trial purposes.” Restatement

(Second) of Judgments § 2 4 , cmt. b (1982). These characteristics

are common to the challenged statements in the 2004 annual report

and the various other examples of what the plaintiffs grieve

here: the defendants’ use of publicly funded fora to argue their

own views at the exclusion of the plaintiffs’. Indeed, at the

superior court trial, the plaintiffs themselves sought to

characterize the report as but one symptom of a larger

24 affliction, arguing that their proffered evidence of the other

allegedly slanted media showed how they were “denied at all

angles from the selectmen, the school committee, from any other

planning board or conservation commission.”11

So the plaintiffs cannot now, through the simple device of

omitting any reference to the 2004 annual report from the second

amended complaint, turn the statements in the report into a

separate “transaction” for res judicata purposes. This is

particularly true when the plaintiffs group all of the

defendants’ other challenged actions into a unified course of

conduct in the second amended complaint, claiming that they

“violated the plaintiffs’ First and Fourteenth Amendment rights

by opening fora for the expression of views on spending through”

the particular means described, “while the . . . defendants

failed and refused to allow the plaintiffs to express their

contrary views regarding spending through such taxpayer funded

fora.” The plaintiffs thus allege that the same group of

defendants in the same town have repeatedly violated the same

rights of the same citizens through multiple instances of similar

11 In addition, the state-court petition itself complained about advocacy in mailings and “numerous fliers sent home with the students,” including--by reference to the letters attached to the petition--the Cool News publication.

25 conduct; the 2004 annual report does not differ from that conduct

in terms of “time, space, origin, or motivation” in any

meaningful way. See Restatement (Second) of Judgments § 24 cmt.

d (1982) (“acts which though occurring over a period of time were

substantially of the same sort and similarly motivated . . .

constitute but one transaction or a connected series”).

This court agrees with the defendants that, with two

exceptions,12 the second amended complaint arises out of the same

“transaction or series of transactions” as did the state-court

action. See Havercombe v . Dep’t of Educ., 250 F.3d 1 , 5-6 (1st

12 The first exception is the 2006 annual report, as to which the defendants do not assert res judicata, but might have; the state courts ruled that the state-court defendants had permissibly advocated their official positions on spending in the 2004 annual report, so they would have been expected to act accordingly in future reports. A number of authorities hold that, “[w]here the object of the first proceeding is to establish the legality of continuing conduct into the future, a second action is precluded by the first judgment.” Schneider v . Colegio de Abagados de P.R., 546 F. Supp. 1251, 1272 (D.P.R. 1982) (Torruella, J . ) ; see also, e.g., Huck ex rel. Sea Air Shuttle Corp. v . Dawson, 106 F.3d 4 5 , 49 (3d Cir. 1997); 18 Charles Alan Wright et a l . , Federal Practice & Procedure § 4409, at 232 (2d ed. 2002). This court need not decide whether res judicata bars the plaintiffs’ claims based on the 2006 report, however, because those claims are barred by collateral estoppel. See Part I I , infra. The second exception is the claim over EPRG’s access to the town’s website, as to which the defendants also do not assert res judicata, but seek to dismiss as unripe. See Part III, infra.

26 Cir. 2001) (ruling that prior action alleging “pattern of

discrimination” barred subsequent action alleging similar

pattern, but over broader period of time, where plaintiff claimed

that “all of these events were directly related to each other in

terms of motivation and common purpose,” thus comprising a

“‘transaction’ or ‘series of connected transactions’” under the

Restatement); Waldman v . Village of Kiryas Joel, 207 F.3d 105,

110-11 (2d Cir. 2000) (ruling that prior action claiming

constitutional violations by village involved same “transaction

or series of transactions,” under the Restatement, as later suit

where plaintiff “viewed the various components of the overlapping

facts as part of the same pattern of behavior”).

The plaintiffs protest that, because both the superior court

and the supreme court refused to pass on the legality of any of

the defendants’ conduct aside from the statements in the 2004

annual report, the “transaction” encompassed by those proceedings

could not have included any of that other behavior. This

argument confuses the concepts of res judicata--or “claim

preclusion”--and collateral estoppel--or “issue preclusion.” As

the New Hampshire Supreme Court explained long ago: There is a difference sometimes overlooked between the effect of a judgment as a bar to the

27 prosecution of a second action for the same cause, and its effect as an estoppel in another suit between the same parties upon a different cause of action. In the former case [under res judicata principles], a judgment on the merits is an absolute bar to a subsequent action: it concludes the parties, not only as to every matter which was offered and received to sustain or to defeat the suit, but also as to any other matter which might have been offered for that purpose. But in the latter case [under collateral estoppel principles], the judgment in the prior action operates as an estoppel only as to those matters which were then directly in issue, and either admitted by the pleadings or actually tried.

Metcalf v . Gilmore, 63 N.H. 174, 189 (1884) (emphasis added and

bracketed language). By limiting their decisions to the legality

of the 2004 annual report, then, the state courts did not

likewise limit the res judicata--as opposed to the collateral

estoppel--effect of their judgment. Indeed, “a subsequent suit

based upon the same cause of action as a prior suit is barred

‘even though the plaintiff is prepared in the second action . . .

to present evidence or grounds or theories of the case not

presented in the first action.’” E . Marine Constr. Corp. v .

First S . Leasing, Ltd., 129 N.H. 270, 275 (1987) (quoting

Restatement (Second) of Judgments § 25 (1980)).

The plaintiffs’ argument--forcefully presented at oral

argument--that the state courts did not issue a “final judgment

28 on the merits” as to claims based on conduct beyond the 2004

annual report rests on the same misconception. Under the

doctrine of res judicata, “an entire claim may be precluded by a

judgment that does not rest on any examination whatever of the

substantive rights asserted.” 18A Wright, supra, § 4435, at 134.

That much is clear from the many decisions of the New Hampshire

Supreme Court according res judicata effect to judgments based on

a party’s default, failure to follow procedural rules, or other

reasons having nothing to do with the “merits” of the suit. See,

e.g., McNair v . McNair, 151 N.H. 343, 353 (2004) (explaining

that, while collateral estoppel cannot follow from a default

judgment because “none of the issues is actually litigated, . . .

[a] default judgment can, however, constitute res judicata with

respect to a subsequent litigation involving the same cause of

action”); Barton v . Barton, 125 N.H. 433, 434-35 (1984) (“a

default judgment entered because of the plaintiff’s failure to

answer interrogatories operates as a judgment ‘on the merits’”

for res judicata purposes); Innie v . W & R, Inc., 116 N.H. 315,

316 (1976) (“The default judgment . . . was a final judgment on

the merits . . . . ” ) .

29 Nor is the preclusive effect of the state-court judgment

diminished because the plaintiffs there were rebuffed in their

efforts to introduce evidence of conduct beyond the 2004 annual

report when the superior court ruled that their petition was

limited to that particular event.13 “It is immaterial that the

plaintiff in the first action sought to prove the acts relied on

in the second action and was not permitted to do so because they

were not alleged in the complaint and application to amend the

complaint came too late.” Restatement (Second) of Judgments § 25

cmt. b (1980); see also Brzica v . Trs. of Dartmouth Coll., 147

N.H. 443, 455 (2002). Here, the state-court plaintiffs did not

even go so far as to move to amend their petition to seek relief

from the defendants’ additional conduct. Res judicata principles

“put[] some pressure on the plaintiff to present all his material

relevant to the claim in the first action,” Restatement (Second)

13 As the preceding discussion suggests, this narrow reading of the petition is perhaps debatable, because it did at least refer to examples of the defendants’ allegedly one-sided advocacy aside from the 2004 annual report. Regardless, the state-court plaintiffs’ remedy from any error by the superior court as to the scope of their petition was to appeal that ruling to the supreme court--which they did, albeit unsuccessfully, when the supreme court determined that they had not preserved their objection. They cannot now seek relief by initiating a second lawsuit independently grieving the conduct the superior court declined to consider. See ERG, Inc. v . Barnes, 137 N.H. 186, 190 (1993).

30 of Judgments § 25 cmt. a (1982) and, when he or she fails to do

s o , preclusion of the entire cause of action can follow even

though that material, however relevant, was never considered.14

See, e.g., Fiumara, 746 F.2d at 91-92.

Here, as in Fiumara, “all of the events which define the

federal complaint”--again, excepting the 2006 annual report and

ERPG’s alleged denial of access to the town’s website, as to

which res judicata has not been raised--“occurred in the period

before the state trial and were at least generally hinted at in

that trial. If they were not litigated as hotly as the

plaintiff[s] would now wish, they plainly could have been.” Id.

at 9 1 . They can be litigated no longer. The plaintiffs have

“already had one bite at the apple, and the choice of the bite

was [theirs].” Id. (internal quotation marks omitted).

At oral argument, the plaintiffs emphasized what they

perceive as the unfairness of this outcome, pointing out that no

court has ever ruled on the constitutionality of a number of the

14 This can happen even though, as here, a plaintiff did not have the benefit of counsel in the prior proceedings, see, e.g., Cieszwoka v . Gray Line N.Y., 295 F.3d 204, 206 (2d Cir. 2002), so the outcome is yet another testament to the perils of self- representation. “[A] party who tries his own case is like a man cutting his own hair--in a poor position to appraise what he is doing.” Carr v . FTC, 302 F.2d 688, 690 (1st Cir. 1962).

31 defendants’ actions--particularly their sending the allegedly

political content of the elementary school newsletter home with

its students, which the plaintiffs suggested this court would

have no choice but to find unconstitutional if presented with the

question. The plaintiffs also reminded this court of the

importance of First Amendment rights in our constitutional

system. But neither the strength of a claim, nor the weight of

the rights it seeks to vindicate, can have any effect on the res

judicata analysis, because the doctrine “serves vital public

interests beyond any individual judge’s ad hoc determination of

the equities in a particular case,” viz., “that there be an end

of litigation.” Federated Dep’t Stors, Inc. v . Motie, 452 U.S.

394, 401 (1981) (internal quotation marks omitted). In that

case, the Supreme Court reversed a lower court’s refusal to apply

res judicata based “on what it viewed as ‘simple justice,’”

opining, “‘simple justice’ is achieved when a complex body of law

developed over a period of years is evenhandedly applied.” Id.

Since the Court’s decision in Motie, departure from the body

of established res judicata principles “cannot now be justified

simply by concluding that it is harsh to deny an apparently valid

claim for failure to appeal a wrong decision or other misstep, or

32 by balancing the values of res judicata against a desire for

right outcomes.” 18 Wright, supra, § 4415, at 380. Indeed, this

court need look no further than one of its own recent decisions

for a particularly forceful example of this reality. See Est. of

Sullivan v . Pepsi-Cola Metro. Bottling Co., 2004 DNH 014.

There, this court ruled that, when the superior court had

dismissed the plaintiffs’ action for the wrongful death of their

teenaged son because their attorney had not filed it until three

days after the statute of limitations expired, then denied their

motion to add claims with a longer limitations period--a decision

which the plaintiffs’ attorney did not appeal--New Hampshire res

judicata principles barred the plaintiffs from bringing those

claims here. Id. at 3 . This court observed that its order

result[ed] in the denial of [the plaintiffs’] claims against the original defendants without any determination of whether they are responsible for [their son’s] death. The court is sensitive to the fact that this outcome may seem unfair to the plaintiffs, particularly given the tragic circumstances alleged in this case. This decision, however, is dictated by the application of long-established rules designed to make the judicial process fair to all participants.

Id. at 1 2 . As the Sullivan decision makes painfully clear, the

application of those rules simply cannot depend on how

“important” a plaintiff deems his claim to b e . See also

33 Friarton Ests. Corp. v . City of N.Y., 681 F.2d 150, 158 (2d Cir.

1982) (“it is immaterial that the questions [are] constitutional

in character” for res judicata purposes). The defendants’

motion to dismiss the plaintiffs’ claims insofar as they do not

arise out of the 2006 annual report or the denial of access to

the website is granted on res judicata grounds.15

II. Collateral estoppel

The defendants also argue that the plaintiffs’ claim

premised on the use of the 2006 annual report for allegedly one-

sided advocacy is barred by collateral and judicial estoppel as

a result of the state courts’ decision--and the state-court

plaintiffs’ concession at oral argument before the New Hampshire

Supreme Court--that pro-spending advocacy in the 2004 annual

report was permissible. Because this court concludes that the

state courts’ rulings collaterally estop the plaintiffs from the

constitutional challenges to the 2006 annual report launched in

this action, it need not reach the judicial estoppel argument.

As noted previously with respect to res judicata, supra

Part I , New Hampshire’s state law doctrine of collateral

15 The court therefore need not reach the defendants’ overlapping Rooker-Feldman argument, or their statute of limitations defense.

34 estoppel is controlling. See Migra, 465 U.S. at 8 1 ; Patterson,

306 F.3d at 1158. For collateral estoppel to apply, (1) the

issue subject to estoppel must be identical in each action, (2)

the first action must have resolved the issue finally on the

merits, and (3) the party to be estopped must have appeared as a

party in the first action, or be in privity with someone who

did. Stewart v . Bader, 154 N.H. 7 5 , 80-81 (2006). This court

has already rejected the plaintiffs’ argument that, because they

are differently constituted than the state-court plaintiffs, the

judgment in that system can have no preclusive effect. See Part

I.A, supra. The plaintiffs further argue, as also discussed

supra, that the state courts refused to rule on any of the

defendants’ conduct but the statements in the 2004 town report,

so the issues here are not identical to those decided there.

This argument is misplaced. “The only case a court can

ever try is the one before i t , and the application of collateral

estoppel depends not on a party’s opportunity to join extraneous

issues for trial in an earlier case, but on the identity of

issues as between actions or suits tried at different times.”

Metro. Prop. & Liab. Ins. C o . v . Martin, 132 N.H. 593, 598

(1989). Thus, because the defendants do not urge collateral

35 estoppel as to any of the issues presented by the second amended

complaint but the constitutionality of the 2006 annual report,

the only question is whether the state courts decided that issue

in the prior proceedings. They clearly did.

The superior court rejected the state-court plaintiffs’

claim “that the First Amendment . . . prohibits the use of

public funds to promote one-sided viewpoints on ballot issues

unless the forum also allows opposing viewpoints,” ruling that

“the government may use public funds to endorse its own

measures.” Superior Court Order at 4 . That court also

determined that the state-court plaintiffs had not proven that,

in “failing to publish opposing viewpoints in the annual report

and other mailings,” the school board had “established

classifications and, therefore, treated similarly situated

individuals in a different manner” in violation of the equal

protection clause of the Fourteenth Amendment. Id. at 5 . These

conclusions were affirmed on appeal. Supreme Court Opinion at

4. So the state courts resolved one of the same issues

presented by the second amended complaint here: whether the

school district violated the plaintiffs’ First Amendment and

equal protection rights by excluding their views on warrant

36 articles from an annual report, while nevertheless using that

taxpayer-funded communication to promote an opposing view.16

The fact that the state courts decided the propriety of the

2004 annual report, while this action challenges the propriety

of the 2006 annual report, does not render the issues dissimilar

for collateral estoppel purposes; that would require the

objectionable nature of the newer report to “differ in [some]

significant respect from the old.” Pignons S.A. de Mechanique

v . Polaroid Corp., 701 F.2d 1 , 2 (1st Cir. 1983) (Breyer, J . ) .

There is no reason to believe, even when the allegations of the

second amended complaint are taken as true and augmented with

all reasonable inferences in the plaintiffs’ favor, that the

2006 annual report can be distinguished from the 2004 annual

report in any meaningful sense. The plaintiffs conceded at oral

argument, in fact, that the reports were not different.

“[A] plaintiff cannot avoid the bar of collateral estoppel

simply by suing a defendant for continuing the same conduct that

was found to be lawful in a previous suit brought by the same

16 There is no indication that the state courts’ rulings depended on the particular nature of the statements in the 2004 report; as just mentioned, the case was resolved on the broader proposition that the report was a permissible exercise of a government’s ability to use public monies to promote its own initiatives.

37 plaintiff.” Ramallo Bros. Printing Inc. v . El Dia, Inc., 490

F.3d 8 6 , 91-92 (1st Cir. 2007) (finding antitrust claim based on

defendant newspaper’s latest refusal to carry inserts printed by

plaintiff collaterally estopped by decision upholding

defendant’s prior refusal to carry plaintiff’s insert on the

same grounds). By virtue of the unfavorable decisions of the

state courts as to the 2004 annual report, the plaintiffs are

collaterally estopped from challenging the validity of the 2006

annual report.17

III. Ripeness

Finally, the defendants argue that the plaintiffs’ claim

arising out of ERPG’s access to the town website is not ripe for

adjudication because “[a]t this point in time, the Town . . .

has not denied the organization . . . a link to their website on

the Town’s website. All that has happened is that the Town has

sought information regarding the organization.” The plaintiffs

complain, however, that it is precisely by demanding information

about ERPG’s membership and finances as a condition to

17 This court therefore need not reach the defendants’ arguments that the allegations of the second amended complaint as to the 2006 report fail to state a claim for relief.

38 considering its request to place the link that the selectmen

have violated the plaintiffs’ rights under the First Amendment

and equal protection clause.

The plaintiffs’ claim, then, arises not from any outright

denial of ERPG’s request to place the link, but from what the

selectmen have allegedly required ERPG to do before they will

even consider its request. “Determining ripeness requires

evaluation of ‘both the fitness of the issues for judicial

decision and the hardship to the parties of withholding court

consideration.’” Mangual v . Rotger-Sabat, 317 F.3d 4 5 , 59 (1st

Cir. 2003) (quoting Abbott Labs. v . Gardner, 387 U.S. 136, 149

(1967)). The plaintiffs’ claim readily meets both of these

criteria. Because they have been told that ERPG cannot place a

link on the town’s website without submitting to what they

consider unconstitutional requirements, their claim in no way

“involves uncertain and contingent events that may not occur as

anticipated or may not occur at all,” and resolving it “would be

of practical assistance in setting the underlying controversy to

rest.” Ernst & Young v . Depositors Econ. Protection Corp., 45

F.3d 530, 536-37 (1st Cir. 1995) (internal quotation marks

39 omitted). The defendants’ motion to dismiss this claim on

ripeness grounds is denied.

CONCLUSION

For the foregoing reasons, the defendants’ motions to

dismiss the second amended complaint (document nos. 53 and 55)

are GRANTED, except insofar as they seek dismissal of the

plaintiffs’ claim arising out of the selectmen’s alleged refusal

to allow EPRG to place a link to its website on the town’s home

page without first disclosing certain information about its

finances and membership. Because this claim lies against the

town and the selectmen only, the remaining defendants--the

school district, its moderator and superintendent, the members

of the school board, and the principal of the elementary school

--are dismissed from the case. Plaintiffs Leo Grimard, Nancy

Lee Grimard, and Renee Victoria are also dismissed from the

case, because they lack standing to assert the remaining claim.

SO ORDERED. ^

_______ Joseph N Laplante United States District Judge

April 4, 2008

40 cc: Charles G. Douglas, III, Esq. Benjamin T . King, Esq. Charles P. Bauer, Esq. Daniel J. Mullen, Esq. Diane M. Gorrow, Esq.