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 selfrepresentation. “[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.
41
