Currier et al v. Gilmanton, NH, Town of et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Brett A. Currier
and Brenda L. Currier
v. Civil No. 18-cv-1204-LM
Opinion No. 2019 DNH 129
Town of Gilmanton, et al.
O R D E R
Brett and Brenda Currier bring this suit against the Town
of Gilmanton (“Town”) and Marshall Bishop, who is a current
member of the Town Board of Selectman. Plaintiffs have actively
participated in local government by publicly criticizing
defendants and making numerous requests for information from the
Town under New Hampshire’s Right-to-Know Law. Plaintiffs assert
federal and state claims alleging that defendants have
retaliated against them for this protected conduct and have
violated New Hampshire’s Right-to-Know Law. Defendants move to
dismiss plaintiffs’ 60-page complaint for failure to comply with
Federal Rule of Civil Procedure 8(a)(2)’s “short and plain
statement” requirement.1 Plaintiffs object. For the following
1 Defendants’ motion to dismiss also cites Federal Rules of
Civil Procedure 10(b) and 12(f). But defendants do not develop
an argument as to how these rules support dismissal. The court
therefore focuses its analysis on Rule 8(a)(2).
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reasons, the court grants defendants’ motion and dismisses the
complaint without prejudice.
BACKGROUND
Plaintiffs are long-time residents of Gilmanton and active
participants in local government. Mr. Currier served as a
member of the Town Board of Selectman (“Board”) from 2012 to
2015. In 2016, he lost his bid for reelection and two new
people were elected to the Board, including defendant Marshall
Bishop. Between 2016 when the new Board members began sitting
and 2018, plaintiffs publicly criticized the Board on many
occasions, filed numerous Right-to-Know requests with the Town,
and made inquiries to state agencies about whether Bishop’s
business, Gilmanton Winery and Vineyard, was properly permitted.
Plaintiffs claim that defendants retaliated against them for
this protected conduct through harassment and defamation.
Based on these allegations, plaintiffs assert four claims:
(1) violation of New Hampshire’s Right-to-Know Law, New
Hampshire Revised Statutes Annotated (“RSA”) chapter 91-A; (2) a
“free speech” claim under 42 U.S.C. § 1983 and the First
Amendment to the United States Constitution; (3) a “free speech”
claim under Part I, Article 22 of the New Hampshire
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Constitution;2 and (4) defamation. Plaintiffs assert all claims
against both defendants. Plaintiffs allege that the Town is
directly and vicariously liable for the conduct of its past and
present public officials and employees. And they allege that
Bishop is liable in his official and individual capacities.
Plaintiffs’ complaint is 60 pages long and contains 291
numbered paragraphs. Before filing this motion, defendants
asked plaintiffs to amend the complaint to comply with Rule
8(a)(2). Because plaintiffs declined to do so, defendants filed
the instant motion to dismiss under Rule 8(a)(2).
LEGAL STANDARD
Rule 8(a)(2) provides that a complaint “must contain . . .
a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule
8(d) also requires that each allegation in the complaint be
“simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1); see
also Fed. R. Civ. P. 10(b) (requiring each numbered paragraph to
be “limited as far as practicable to a single set of
circumstances”). “The purpose of a clear and succinct pleading
is to give a defendant fair notice of the claim and its basis as
well as to provide an opportunity for a cogent answer and
2 In the complaint, plaintiffs combine their federal and
state “free speech” claims into one count (Count II).
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defense.” Belanger v. BNY Mellon Asset Mgmt., LLC, 307 F.R.D.
55, 57 (D. Mass. 2015). Indeed, while a complaint must contain
enough facts “to state a claim to relief that is plausible on
its face,” it need not include “detailed factual allegations.”
Goldstein v. Galvin, 719 F.3d 16, 29 (1st Cir. 2013) (internal
quotation marks omitted).
A district court may dismiss a complaint that fails to
comply with Rule 8’s “short and plain statement” requirement.
Kuehl v. F.D.I.C., 8 F.3d 905, 908 (1st Cir. 1993). Although
verbosity and length are generally insufficient grounds for
dismissal, complaints that are “unnecessarily lengthy,
repetitive, convoluted, or otherwise difficult to comprehend may
be dismissed.” Chalifoux v. Chalifoux, No. 14-CV-136-SM, 2014
WL 1681626, at *1 (D.N.H. Apr. 25, 2014). This is so because
“unnecessary length places an unjustified burden on the court
and on the party who must respond to [the complaint].” Greg
Beeche Logistics, LLC v. Skanska USA Bldg., Inc., No. 1:12-CV-
11121, 2014 WL 4656503, at *5 (D. Mass. Aug. 5, 2014) (internal
quotation marks omitted); see also Salahuddin v. Cuomo, 861 F.2d
40, 42 (2d Cir. 1988) (“[U]nnecessary prolixity in a pleading
places an unjustified burden on the court and the party who must
respond to it because they are forced to select the relevant
material from a mass of verbiage.” (internal quotation marks
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omitted)). In evaluating whether a pleading meets Rule 8’s
“short and plain statement” requirement, the court should
consider “the nature of the action, the relief sought and a
number of other pragmatic matters.” Carney v. Town of Weare,
No. 15-CV-291-LM, 2016 WL 320128, at *4 (D.N.H. Jan. 26, 2016)
(internal quotation marks and ellipsis omitted).
DISCUSSION
The court has carefully reviewed the complaint. The court
finds two primary problems with the complaint: (1) it is
unnecessarily lengthy based on the nature of the action; and (2)
the separate counts fail to identify with specificity which
factual allegations support which count.
1. Unnecessarily Lengthy
This action is not legally or factually complex. It
involves two plaintiffs, two defendants, and four claims.
Although buried within 291 paragraphs, the gist of the complaint
appears to be that defendants violated the Right-to-Know Law and
retaliated against plaintiffs for protected conduct by defaming
and harassing them. The court acknowledges that defendants’
alleged wrongdoing spans three years and includes many alleged
acts of harassment and defamation. Additionally, plaintiffs
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have alleged a § 1983 claim against a local government, which
requires proof that “action pursuant to official municipal
policy” caused plaintiffs’ injury. Connick v. Thompson, 563
U.S. 51, 60 (2011) (internal quotation marks omitted). Such an
official municipal policy may be proven by showing that a
certain practice—here alleged retaliation for criticism of
public officials—is “so persistent and widespread as to
practically have the force of law.” Id.
Even given these attributes of plaintiffs’ suit, the court
finds that the complaint, viewed as a whole, is unnecessarily
lengthy and convoluted. Cf. Catalan v. Vermillion Ranch Ltd.
P’ship, No. 06-cv-01043-WYD-MJW, 2007 WL 38135, at *4-5 (D.
Colo. Jan. 4, 2007) (finding “intelligible and well-organized”
74-page complaint complied with Rule 8(a) when suit involved six
individual plaintiffs, six individual defendants, one
partnership defendant, and ten claims including two RICO
claims). Though ordered chronologically, the complaint is
difficult to follow because it contains too much unnecessary
detail. For example, plaintiffs spend much time detailing the
history of Bishop’s interactions with the Town Planning Board
and Zoning Board of Adjustment regarding the permitting of his
business, which culminated in Bishop filing suit against the
Town. Though the fact of Bishop’s lawsuit against the Town may
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provide relevant context for some of Bishop’s allegedly
defamatory statements, the minutiae of the dispute are not
material. See doc. no. 1 at ¶¶ 69, 93-94, 96-98, 107, 113-119,
122.
The complaint also contains a number of allegations that
appear to be superfluous and, in some cases, inflammatory. See
Carney, 2016 WL 320128, at *5 (finding amended complaint failed
to comply with Rule 8 in part based on inclusion of immaterial
and embarrassing allegations). For example, plaintiffs’ Right-
to-Know claim alleges that the Town’s decision to lock the front
doors of the Town Hall contributed to an elderly woman’s injury
and another man’s fatal heart attack. Doc. no. 1 at ¶ 253; see
also, e.g., id. at ¶¶ 74-77 (alleging Bishop made false
statements in letter to the editor about whether his business
was properly permitted); id. at ¶ 227 (alleging that Town
employee filed suit against Town); id. at ¶¶ 231-32 (alleging
that Bishop added bathrooms to his business without proper
permitting). It is unclear how these allegations are in any way
related to the substance of plaintiffs’ claims. Plaintiffs’
inclusion of these (and other) marginally relevant details and
immaterial facts obscures the core claims.3
3 The court also notes that the form of the complaint makes
it difficult to answer as a practical matter. The complaint
includes several paragraphs that are lengthy and contain more
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2. Legal Theories Lack Clear Factual Predicate
Plaintiffs’ claims fail to specify the factual predicates
supporting each claim. The “general allegations” section of the
complaint—spanning 231 of the 291 numbered paragraphs—provides
a meandering narrative account of the acrimonious relationship
between the parties. But plaintiffs’ statement of claims,
contained in the final 49 paragraphs of the complaint, fails to
specify which facts from the morass of the “general allegations”
support each separate claim for relief.
Put simply, the complaint is a quintessential “shotgun”
pleading. A “shotgun” pleading typically asserts multiple
counts against multiple defendants “without adequately
delineating which allegations of fact support each distinct
cause of action.” Jones Creek Inv’rs, LLC v. Columbia Cty.,
Ga., No. CV 111-174, 2011 WL 7446782, at *2 (S.D. Ga. Dec. 9,
2011), report and recommendation adopted, No. CV 111-174, 2012
than a single set of circumstances. See, e.g., doc. no. 1 at
¶ 3 (alleging six different sets of facts in eleven-line
paragraph); id. at ¶ 5 (alleging four different sets of facts in
one paragraph). One such paragraph is broken into multiple
unnumbered sub-paragraphs. Id. at ¶ 27 (including seven sub-
paragraphs, one of which has additional subparts). In order to
facilitate defendants’ ability to meaningfully answer,
plaintiffs must amend these and similar paragraphs to comply
with the Federal Rules of Civil Procedure. See Fed. R. Civ. P.
8(d)(1); Fed. R. Civ. P. 10(b).
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WL 694316 (S.D. Ga. Mar. 1, 2012). This problem often results
when the pleader “excessively incorporat[es] by reference
previous allegations into each count,” id., as plaintiffs have
done here. This form of pleading puts the onus on the court to
“cull through the allegations, identify the claims, and, as to
each claim identified, select the allegations that appear to be
germane to that claim.” Ledford v. Peoples, 657 F.3d 1222, 1239
(11th Cir. 2011).
Count III exemplifies this problem. Count III asserts a
defamation claim against both defendants. A plaintiff proves
defamation “by showing that the defendant failed to exercise
reasonable care in publishing a false and defamatory statement
of fact about the plaintiff to a third party, assuming no valid
privilege applies to the communication.” Thomas v. Telegraph
Publishing Co., 155 N.H. 314, 321 (2007) (internal quotation
marks omitted). Thus, the essence of a defamation claim is a
defendant’s purportedly false and defamatory statement about a
plaintiff. A defamation claim must provide notice to a
defendant of which statements constitute the defamation. See
White v. Ortiz, No. 13-cv-251-SM, 2015 WL 5331279, at *5 (D.N.H.
Sept. 14, 2015). Likewise, the court requires the same notice
so that it can evaluate each statement relied upon in support of
the claim.
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Count III identifies only one specific statement made by
defendants about plaintiffs: that Mrs. Currier was the reason
that the Town Hall had to be locked for safety concerns. Doc.
no. 1 at ¶ 276. The remainder of Count III either refers back
to and reincorporates allegations made earlier in the complaint
or lists general categories of purportedly defamatory
statements. Id. at ¶ 277 (“The negative statements made about
the Curriers, together or individually, throughout this document
are false and defamatory.”); id. at ¶ 278 (asserting that
defendants’ slander included “statements at meetings, the
minutes of meetings, audio and video recordings . . . comments
to the newspapers and statements to individuals in the public
. . . .”).
These allegations are simply not specific enough to put
defendants on notice as to which of their verbal and written
statements—of the many alleged throughout the complaint—are
allegedly defamatory. Though there may be allegations
identifying specific defamatory statements scattered throughout
the “general allegations” section of the complaint that provide
a factual basis for this claim, the court and opposing counsel
should not have to bear the onerous burden of searching for
those facts. See Greg Beeche Logistics, 2014 WL 4656503, at *5;
see also White v. Crabtree, No. CIV. 04-1584-HO, 2004 WL
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2609104, at *2 (D. Or. Nov. 12, 2004) (“If the factual elements
of a cause of action are scattered throughout the complaint but
are not organized into a ‘short and plain statement of the
claim,’ dismissal for failure to satisfy Rule 8(a) is proper.”).
Plaintiffs Right-to-Know claim and retaliation claims
suffer from the same deficiency. See, e.g., doc. no. 1 at
¶¶ 247-49 (alleging that defendants’ Right-to-Know violations
include “failing to post some meetings properly, or at all,
discussing public business with a quorum present in unposted
meetings, [and] failing to turn over documents on time,” but
omitting allegations of specific meeting dates or Right-to-Know
requests that form the basis of the claimed violations); id. at
¶¶ 262-73 (alleging broadly that defendants’ retaliatory acts
“are described throughout this complaint”).
In sum, the court finds that the complaint fails to comply
with Rule 8(a)(2)’s “short and plain statement” mandate. The
court notes that it does not find that counsel deliberately
designed the complaint to be convoluted and verbose. Counsel
appears to have endeavored in good faith to provide a
chronological account of facts ostensibly relevant to
plaintiffs’ claims. However, it appears that counsel may have
lost the forest for the trees. For all the reasons discussed
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above, the court dismisses the complaint, but grants plaintiffs
leave to file an amended complaint.
CONCLUSION
For the foregoing reasons, the court grants defendants’
motion (doc. no. 13) and dismisses the complaint without
prejudice. The court grants plaintiffs leave to file an amended
complaint that complies with the Federal Rules of Civil
Procedure by October 12, 2019. In doing so, plaintiffs must
include only relevant facts, make clear what facts support which
legal claims, and shorten the length of the amended complaint.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
August 12, 2019
cc: Counsel of Record
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