Preview:

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE KEVIN GUAY, Plaintiff, v. THOMAS BURACK, et al., Defendants. _________________________________________ LORRAINE GUAY Plaintiff, v. THOMAS BURACK, et al., Defendants ) ) ) ) ) Civil No. 1:09-cv-217-DBH ) ) ) )

) ) ) ) ) Civil No. 1:09-cv-253-DBH ) ) ) )

RECOMMENDED DECISION ON MOTIONS TO DISMISS and ORDER ON LORRAINE GUAY'S MOTION FOR LEAVE TO FILE A SURREPLY Lorraine and Kevin Guay, both residents of Concord, New Hampshire, have brought separate lawsuits against Thomas Burack, Commissioner of the Department of Environmental Services for the State of New Hampshire, Kelly Ayotte, Attorney General for the State of New Hampshire, Detective Sean Ford of the Concord Police Department, the Concord Police Department and the City of Concord.1 Also pending is a motion by Lorraine Guay for leave to file a surreply to demonstrate that she has standing to bring claims related to the property at 12 Villanova Drive. (Doc. No. 28.) I grant this motion. With respect to the pending motions to dismiss, I conclude that an evidentiary record would have to be developed before the court could

1

For ease of reference I will refer to Burack and Ayotte as the "state defendants" and the police department, Ford, and the City as the "municipal defendants."

rule on the defendants recently asserted judicial estoppel defense. I am therefore unable to make a recommendation that the matter should be dismissed on that basis, although as the discussion below indicates, such dismissal is a viable possibility in this case. Because of the unusual procedural posture of this issue, I have also chosen to address the merits of the issues raised in the original motions to dismiss that were referred to me for recommended decision. As a result of my review, if the court determines it is appropriate to reach the merits of motions to dismiss prior to disposing of the judicial estoppel defense, I would recommend that the court grant the state defendants motion (see Doc. Nos. 15 & 32) and grant in part the municipal defendants motion (see Doc. Nos. 16 & 33). Discussion Because the cases arise from the same nucleus of operative facts, the court has ordered them consolidated. (09-217-DBH, Doc. No. 30, 09-253-DBH, Doc. No. 31.) Both complaints allege constitutional claims arising under the Fourth and Fifth Amendments, malicious abuse of process, conspiracy, intentional infliction of emotional distress, and negligent infliction of emotional distress in conjunction with the defendants roles in obtaining and executing search warrants and in conducting searches at three separate premises in Concord on March 25, 2009. Kevin Guays complaint includes an additional count of malicious prosecution. Federal jurisdiction is premised at least in part on a theory that the malicious prosecution, abuse of process, and conspiracy claims are articulations of violations of the protections of the United States Constitution. After the state defendants and the municipal defendants had filed separate motions to dismiss the complaints brought by Lorraine and Kevin Guay, on December 8, 2009, I issued an order requiring supplemental briefing. Therein I indicated:

2

It is not in the interest of either this court or the parties to issue a recommended decision on the substantive issues raised by these motions to dismiss if the plaintiffs are not the real parties in interest or otherwise lack standing to bring this suit. That issue could well be determinative of this lawsuit at this time. The defendants rely upon Vidal v. Doral Bank Corp., 363 F.Supp.2d 19, 22 (D.P.R. 2005) for the proposition that the trustee in bankruptcy is the real party in interest in a proceeding such as this one. However, even accepting defendants argument as true, the remedy is not immediate dismissal of the action because the real party has not been joined. See, e.g., Aquila, LCC v. City of Bangor, 640 F.Supp.2d 92 (D. Me. 2009). The plaintiffs must be given a reasonable amount of time to join the real party in interest, if indeed the trustee is the real party in interest, and/or an opportunity to prove to this court that the trustee has made an intentional choice to abandon the action2. Therefore, the parties must file supplemental briefing, limited to the issue of whether the trustee remains the real party in interest. Both parties should include with their supplemental briefing any information regarding what notice, if any, has been given to the trustee regarding this proceeding and whether or not the trustee intends to intervene in this case or abandon the action. The defendants supplemental brief, not to exceed ten pages, is due by January 4, 2010. The plaintiffs may each file a response, not to exceed 10 pages, by January 28, 2010. No further supplementation is allowed. (Order Suppl. at 3, 09-253-DBH, Doc. 40.) The Chapter 7 trustee responded with a notice of abandonment, indicating that the lawsuits are burdensome and of inconsequential value to the estate. (Id. Doc. No. 45;D. N.H Bankr. No. 08-12786-MWV, Doc. 302.) February 8, 2010, was the deadline for responding to that notice and there have been no objections filed in the bankruptcy case. Both Guays have responded to the order to supplement. Lorraine Guay, represented by counsel, insists that she did not keep this lawsuit a secret from her creditors, noting that the suit was discussed at the August 12, 2009, meeting of creditors and that her attorney offered to provide the trustee with the filing of the suit. (L. Guay Reply at 2.) She adds: "It is unknown why the suit was not included by the plaintiffs attorney in supplemental schedules and statements, but it is anticipated that, at worst, it was inadvertent oversight and definitely not

2

A review of the bankruptcy docket entries reveals that the last action taken in the case was on January 28, 2010. The debtors received their discharge on October 27, 2009.

3

fraudulent." (Id.) And with respect to the future, Lorraine Guay represents: "Although discharged, the bankruptcy is not closed and there is not impediment to the plaintiff amending the supplemental schedules and statements to include the suit and thereby proceeding with the suit." (Id.) Kevin Guay asserts in his reply to the defendants supplemental response: "Plaintiffs bankruptcy attorneys failure to supplement is merely an oversight and she is in the process of supplementing the schedules at this time and since the case is not closed yet, she will not have to reopen the case." (K. Guay Reply at 2.) To this date the Guays have not filed pleadings in their bankruptcy case seeking, as promised, to amend their schedules. This step seems to be necessary vis-

Download MJK_02232010_1-09cv217_Guay_v_Burack.pdf

Maine Law