Bourne v. Arruda

Filing 55

///AMENDED ORDER denying as moot 23 Discovery Plan; denying as moot 24 Discovery Plan; granting in part and denying in part 30 Motion to Dismiss; denying 32 Motion to Strike; granting 50 Motion for Leave to File. The clerk is directed to docket the supplemental pleading (doc. no. 50-1) as filed upon the date of this Order. So Ordered by Magistrate Judge Landya B. McCafferty. (gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Samuel J. Bourne
v.

Civil No. 10-cv-393-LM

John R. Arruda, Jr., et al.

AMENDED ORDER
Currently before the court in this case, filed by pro se
plaintiff Samuel J. Bourne, are the following motions:

(1) a

motion to dismiss and for costs and fees (doc. no. 30) filed by
defendants John R. Arruda, Jr., Michael Brooks, and the Town of
Madison; (2) Bourne‟s motion to strike the motion to dismiss
(doc. no. 32); and (3) Bourne‟s motion for leave to supplement
his first amended complaint (doc. no. 50).

Additionally, the

parties filed proposed discovery plans (doc. nos. 23 and 24).
In support of their motion to dismiss and for costs and
fees, defendants filed a supplemental memorandum and a reply
(doc. nos. 31 and 45).

Bourne filed an objection (doc. no. 34),

three supplemental opposition memoranda (doc. nos. 33, 35, and
46), numerous exhibits (doc. nos. 36 and 37), and a surreply
(doc. no. 49).

1

Responding to Bourne‟s motion to strike, defendants filed
an objection (doc. no. 38) and requested an award of their fees
and costs.

Bourne filed a reply (doc. no. 41).

Defendants objected (doc. no. 51) to Bourne‟s motion to
supplement his complaint.

Bourne filed a reply thereafter (doc.

no. 53).
For reasons set forth below, the motion to dismiss (doc.
no. 30) is granted in part and denied in part, the motion to
strike (doc. no. 32) is denied, and the motion to supplement the
complaint (doc. no. 50) is granted.1
own costs and fees.

Each party shall bear its

The clerk‟s office shall docket the

supplement to the amended complaint (doc. no. 50-1) as filed
upon the date of this Order.

Defendants shall file an answer to

the amended complaint and the supplement within twenty days of
the date of this Order.
Background
Bourne, a Massachusetts resident, has been involved in
litigation for many years concerning property in Madison, New
Hampshire.

See, e.g., Bourne v. Town of Madison, No. 05-cv-365-

1

By virtue of the parties‟ consent to the magistrate
judge‟s jurisdiction over this case, this court may issue a
dispositive ruling on the motions at issue. See 28 U.S.C.
§ 636(c); Notice of Consent to Jurisdiction (doc. no. 17); see
also Defs.‟ Objection (doc. no. 44), at 2 (noting consent of all
parties to magistrate judge‟s jurisdiction).
2

JD (doc. no. 206), 2010 WL 1909304, *2-*8 (D.N.H. May 12, 2010)
(discussing related cases), aff‟d, No. 10-1718 (1st Cir. May 31,
2011), petition for reh‟g en banc filed (1st Cir. June 8, 2011).
The original dispute underlying these cases concerned access to
certain trails on Bourne‟s property in Madison.

Defendants

assert that Bourne has filed at least seven suits against the
Town or its selectmen.
Selectmen are elected officials in New Hampshire towns
charged with managing town affairs and performing duties
prescribed by law.

N.H. Rev. Stat. Ann. (“RSA”) § 41:8.

Defendants Arruda and Brooks are selectmen for the Town of
Madison.

The case at bar concerns remarks that Arruda and

Brooks made about Bourne at public meetings of the Madison Board
of Selectmen.
Discussion
I.

Motion to Strike
A.

Plaintiff‟s Contentions

In the motion to strike (doc. no. 32), Bourne urges the
court to strike defendants‟ motion to dismiss in its entirety.
Bourne asserts that defendants did not file an answer in
response to his complaint, and that their motion to dismiss
includes, as exhibits, orders issued in the state court
litigation that Bourne considers irrelevant to the case at bar.
Bourne further requests that this court either direct defendants
3

to file an answer, or direct that the court enter a default
judgment for plaintiff due to defendants‟ failure to file an
answer.
Federal Rule of Civil Procedure 12(b)(6) allows a party to
respond to a complaint by filing a motion asserting that the
pleading fails to state a claim.

The filing of a motion to

dismiss before the due date for an answer to the complaint
alters the time line for filing the answer.
12(a)(4).

See Fed. R. Civ. P.

Defendants here had no duty to file an answer before

their Rule 12(b)(6) motion was resolved.

See id.

Defendants filed their motion to dismiss the amended
complaint in a timely manner, before their answer was due.

The

motion does not include any facially insufficient defenses or
scandalous or impertinent materials that should be stricken.
See Fed. R. Civ. P. 12(f).

Accordingly, the motion to strike is

denied.
B.

Defendants‟ Request for Fees and Costs

Citing Fed. R. Civ. P. 11(b), defendants have requested
that this court sanction Bourne for filing the motion to strike.
A motion for sanctions under Rule 11(b) must be made separately
from any other motion.

See Fed. R. Civ. P. 11(c)(2).

The court

may also, on its own initiative, order a party to show cause why

4

certain conduct known to the court should not be deemed a Rule
11 violation.

See Fed. R. Civ. P. 11(c)(3).

Here, defendants did not file a separate motion for
sanctions.

Considering Bourne‟s pro se status, the court

concludes that sanctions against Bourne are not appropriate at
this time.

Accordingly, each party must bear its own costs and

fees in litigating the motion to strike.
II.

Motion to Dismiss
To determine if the complaint states any claim upon which

relief could be granted, under Fed. R. Civ. P. 12(b)(6), the
court must decide whether the complaint “contain[s] sufficient
factual matter, accepted as true, to „state a claim to relief
that is plausible on its face.‟”

Ashcroft v. Iqbal, ___ U.S.

___, ___, 129 S. Ct. 1937, 1949 (2009) (citation omitted).
“Dismissal of a complaint pursuant to Rule 12(b)(6) is
inappropriate if the complaint satisfies Rule 8(a)(2)‟s
requirement of „a short and plain statement of the claim showing
that the pleader is entitled to relief.‟”

Ocasio-Hernández v.

Fortuño-Burset, No. 09-2207, 2011 WL 1228768, *8 (1st Cir. Apr.
1, 2011) (citations omitted).

A “short and plain statement”

needs “only enough detail to provide a defendant with „fair
notice of what the . . . claim is and the grounds upon which it
rests.‟”

Id. (citations omitted).
5

In addition, to “„show‟ an

entitlement to relief a complaint must contain enough factual
material „to raise a right to relief above the speculative level
on the assumption that all the allegations in the complaint are
true (even if doubtful in fact).‟”

Id. (citations omitted).

“In short, an adequate complaint must provide fair notice to the
defendants and state a facially plausible legal claim.”

Id.

“In resolving a motion to dismiss, a court should employ a
two-pronged approach.”

Id. at *9.

First, the court should

identify and disregard statements in the complaint that “merely
offer legal conclusions couched as fact or threadbare recitals
of the elements of a cause of action.”

Id. (citations, internal

quotation marks and alterations omitted).

The court is not

bound to credit legal conclusions, labels, or naked assertions,
“devoid of „further factual enhancement.‟”

Iqbal, ___ U.S. at

___, 129 S. Ct. at 1949 (citation omitted).

A plaintiff may

not avoid dismissal by pleading “allegations that merely parrot
the elements of the cause of action.”

Ocasio-Hernández, 2011 WL

1228768 at *9.
The second prong of the test requires the court to credit
as true all non-conclusory factual allegations and the
reasonable inferences drawn from those allegations, to determine
if the claim is plausible.

Id.

“The make-or-break standard

. . . is that the combined allegations, taken as true, must
6

state a plausible, not a merely conceivable, case for relief.”
Sepúlveda-Villarini v. Dep‟t of Educ., 628 F.3d 25, 29 (1st Cir.
2010).
Evaluating the plausibility of a claim is a “contextspecific task that requires the reviewing court to draw on its
judicial experience and common sense.”

Iqbal, ___ U.S. at ___,

129 S. Ct. at 1950 (citation omitted).

In doing so, the court

may not disregard properly pleaded factual allegations or
“attempt to forecast a plaintiff‟s likelihood of success on the
merits.”

Ocasio-Hernández, 2011 WL 1228768 at *9.

A claim

based on properly pleaded facts may be plausible “„even if it
strikes a savvy judge that actual proof of those facts is
improbable.‟”

Id. (citation omitted).

“The relevant inquiry

focuses on the reasonableness of the inference of liability that
the plaintiff is asking the court to draw from the facts alleged
in the complaint.”

Id.

In this case, this standard of review must be applied with
due regard for plaintiff‟s pro se status.

Pro se pleadings are

construed liberally, to avoid inappropriately stringent rules
and unnecessary dismissals.

See Erickson v. Pardus, 551 U.S.

89, 94 (2007) (per curiam) (following Estelle v. Gamble, 429
U.S. 97, 106 (1976), to construe pleadings liberally in favor of
pro se party); Castro v. United States, 540 U.S. 375, 381 (2003)
7

(courts may construe pro se pleadings to avoid inappropriately
stringent rules and unnecessary dismissals).
A.

Defamation Claims Asserted in Amended Complaint

Bourne has asserted that defendants defamed him at the June
2010 public meeting, in the following manner:
1.

Arruda described Bourne as a terrorist.

2.
Arruda implied that Bourne engaged in criminal conduct
in altering a “town document,” that is, a Town road waiver
agreement, despite knowing that Bourne‟s attorney revised
the agreement before sending it to the Town for signature.
3.
Arruda implied that Bourne had brought a forged
document to court, namely, a cover letter to the road
waiver agreement, which differed from the version of that
cover letter in the Town‟s possession.
4.
Arruda defamed Bourne, implying that he had been
reprimanded by the court, in paraphrasing a colloquy
between Bourne and a state court judge.
5.
Arruda implied that Bourne was deceitful, in stating
that “people who don‟t really know, they might even get to
believe this guy after a while.”
6.
Arruda implied that Bourne was a liar in
characterizing his letter to the editor as nonsense,
innuendo, and junk.
7.
Arruda implied that Bourne was a liar in
characterizing his letter to the editor as libelous.
8.
Brooks implied that Bourne was a liar in stating, as
to Bourne‟s letter, that “[i]t‟s almost like an article in
the newspaper, where the . . . reporter . . . connects this
to this but there‟s no real connection in real life.”
9.
Brooks defamed Bourne by stating that (a) Bourne is
“holding a bag full of nothing”; (b) Brooks is waiting for
the court to tell Bourne that he filed a case in the wrong
8

“venue,” and (c) “nobody is slapping [Bourne] down.”
Defendants contend that the cited remarks are not actionable.3
1.

Actionable Defamation

A plaintiff in New Hampshire proves defamation by showing
that defendants failed to exercise reasonable care in
publishing, without a valid privilege, a false and defamatory
statement of fact about the plaintiff to a third party.

See

Pierson v. Hubbard, 147 N.H. 760, 763, 802 A.2d 1162, 1165
(2002).

Publication means communication of the statement to a

third party.

See Duchesnaye v. Munro Enters., Inc., 125 N.H.

244, 253, 480 A.2d 123, 127 (1984).

A statement is defamatory

if it tends to lower plaintiff in the esteem of any substantial
and respectable group of people.

Moss v. Camp Pemigewassett,

Inc., 312 F.3d 503, 507 (1st Cir. 2002) (citing Nash v. Keene
Publ‟g Corp., 127 N.H. 214, 219, 498 A.2d 348, 351 (1985)).
Determining whether a statement is actionable is a question
of law for the trial court to consider in the first instance in
3

The statements at issue appear in an unofficial transcript
of a Board of Selectmen meeting, appended to the amended
complaint as Exhibit D (doc. no. 21-4). The content of that
transcript, which is not disputed, may be considered in
connection with the motion to dismiss. See Young v. Lepone, 305
F.3d 1, 11 (1st Cir. 2002) (fate of motion to dismiss generally
depends on allegations contained within four corners of
complaint, but may be expanded to include undisputed information
contained within exhibits attached to or referenced in
complaint).
9

light of the context of the publication as a whole.

Nash, 127

N.H. at 219, 498 A.2d at 351; see also Faigin, 978 F. Supp. at
424.

“[A] statement of opinion is not actionable . . . unless

it may reasonably be understood to imply the existence of
defamatory fact as the basis for the opinion.”

Nash, 127 N.H.

at 219, 498 A.2d at 351 (citations omitted); Riley v. Harr, 292
F.3d 282, 289 (1st Cir. 2002) (false statement is not actionable
if “„it is plain that the speaker is expressing a subjective
view, an interpretation, a theory, conjecture, or surmise,
rather than claiming to be in possession of objectively
verifiable facts‟” (citations omitted)); Faigin v. Kelly, 978 F.
Supp. 420, 424 (D.N.H. 1997).

If the opinion is based upon a

fully disclosed factual basis, and cannot be reasonably
understood to imply the existence of any other undisclosed
facts, then the opinion will not be deemed actionable.

See

Pease v. Tel. Publ‟g Co., Inc., 121 N.H. 62, 66, 426 A.2d 463,
466 (1981); see also Riblet Tramway Co. v. Ericksen Assocs.,
Inc., 665 F. Supp. 81, 84 (D.N.H. 1987).

Where, however, an

average reader or listener could reasonably understand the
statement to be either an inactionable opinion or to be based
upon undisclosed facts, “the issue may properly be left to the
jury‟s determination.”

Pease, 121 N.H. at 65, 426 A.2d at 465.

10

There are limits imposed by the First Amendment on the type
of speech that can be the subject of a defamation action.

See

Milkovich v. Lorain Journal Co., 497 U.S. 1, 17 & 20 (1990).
“[L]oose, figurative” language, “lusty and imaginative
expression[s] of contempt,” “rhetorical hyperbole,” “vigorous
epithet,” and statements that “cannot „reasonably [be]
interpreted as stating actual facts‟ about an individual” are
not actionable.

Id.

A statement alleged to be defamatory is not actionable if
it is substantially true.

See Thomas v. Tel. Publ‟g Co., 155

N.H. 314, 335, 929 A.2d 993, 1013 (2007).

The “literal truth of

a statement is not required so long as the imputation is
substantially true so as to justify the gist or sting of the
remark.”

Faigin, 978 F. Supp. at 425 (internal quotation marks

and citations omitted).

It is rarely appropriate to determine

whether a statement bears “substantial truth” on a motion to
dismiss; an issue of substantial truth invites a fact-specific
inquiry into whether any deviation from exact truth was material
or substantial.
2.

See id.
Arruda‟s Statements
a.

Terrorist

Arruda‟s reference to “terrorists” appears in a discussion
of Bourne‟s litigation tactics.

The statement followed Arruda‟s
11

assertion that the Town and its insurer had expended large sums
in litigation with Bourne.

After noting that Arruda first met

Bourne in court and not at a selectmen‟s meeting, Arruda stated,
“I guess you can stand outside the fence and lob hand grenades
in.

I mean, you talk about terrorists. . . . [T]hat‟s exactly

what‟s going on here.”

Ex. D, Tr. at 9 (doc. no. 21-4 at 12).

No reasonable listener, attending to the context, could
understand Arruda‟s statement to be based on actionable,
undisclosed defamatory facts regarding Bourne.

The tenor of

this discussion, as well as the context, regarding Bourne‟s
persistent litigation and letter writing, do not suggest Arruda
possessed facts linking Bourne to hand grenades or terrorist
activities.

The only reasonable interpretation of the statement

is that it was Arruda‟s hyperbolic expression of his opinion
about Bourne and his litigation tactics.

As such, the statement

cannot reasonably be construed as actionable.

Cf. Milkovich,

497 U.S. at 21 (“loose, figurative, or hyperbolic language” and
“general tenor” of article could negate impression of writer‟s
seriousness in accusing plaintiff of perjury).

Accordingly, the

defamation charge based on this statement fails to state a claim
upon which relief may be granted, and the motion to dismiss is
granted as to that statement.

12

b.

Altered Town Document

Arruda‟s statement that Bourne “altered a town document”
appears in Arruda‟s description of his first encounter with
Bourne.

Arruda had been asked to “briefly review the status of

the court case or court cases” involving Mr. Bourne.

Am.

Compl., Ex. D, Tr. at 6 (doc. no. 21-4 at 9).
First time I met Mr. Bourne was in a courtroom. . . .
Never came to the Board of Selectmen once with his
issue, not once. We met in the court of law, after he
had altered a town document. A Class VI (roadway)
[sic] was -- was altered. [The] Board of Selectmen
didn‟t pick it up, because we never figure our
documents would ever be altered. We missed it. We
signed it. When we realized what would happen after
he put a gate up, [we] contacted counsel. We went to
court. But we had -- prior to going to court, we had
a letter delivered to (inaudible) a cover letter that
said that . . . the Board of Selectmen, noting
changes, would agree to these changes, something,
paraphrasing. . . .
Am. Comp., Ex. D, Tr. at 6-7 (doc. no. 21-4 at 9-10).
Focusing on the mistaken impression that Arruda may have
imparted when he said that Bourne altered the Town document
despite knowing that Bourne‟s counsel was the one who revised
the roadway agreement, Bourne contends that the statement is
actionable and defamatory because it implies that Bourne engaged
in criminal conduct in altering a Town document.

Whether a

statement can be construed to be defamatory is an issue of law
for the court.

See Thomas, 155 N.H. at 338, 929 A.2d at 1015

(citation omitted).
13

An action in libel cannot be maintained on an
artificial, unreasonable, or tortured construction
imposed upon innocent words, nor when only
„supersensitive persons, with morbid imaginations‟
would consider the words defamatory. „No mere claim
of the plaintiff can add a defamatory meaning where
none is apparent from the publication itself.‟
Catalfo v. Jensen, 657 F. Supp. 463, 366 (D.N.H. 1987)
(citations omitted).

“„Words may be found to be defamatory if

they hold the plaintiff up to contempt, hatred, scorn or
ridicule, or tend to impair his standing in the community.
Imputations of criminality generally fit the bill.‟”

Thomas,

155 N.H. at 338, 929 A.2d at 1015 (quoting Burke v. Town of
Walpole, 405 F.3d 66, 94-95 (1st Cir. 2005)).
Reading the statement in context, the court can find no
basis for finding any implication of criminal misconduct within
the cited passage.

The broader context for the comments

includes Arruda‟s opinion that it has been expensive to litigate
against Bourne, and that the litigation has not been especially
determinative (“The only thing that changed on that road is the
fact that we can‟t run vehicles over [the road].
town easement.

It is still a

We still have a right to travel over it.”

Compl., Ex. D, Tr. at 8 (doc. no. 21-4 at 11)).

Am.

The text does

not refer to any threatened prosecution of Bourne or cite any

14

criminal laws potentially violated by Bourne.4

Nothing in the

quoted text or the context insinuates that Bourne engaged in any
criminal activity relating to altering a town document
concerning the road.
Notwithstanding the lack of any insinuation of criminal
misconduct, Arruda‟s comments can be construed, in context, to
imply that Bourne took unfair advantage of the Town.

The

transcript may be construed to indicate that Arruda believed
Bourne engaged in underhanded practices, that he duped Town
officials, who never figured that their documents would ever be
altered.

See Thomson v. Cash, 119 N.H. 371, 374, 402 A.2d 651,

653 (1979) (whether words susceptible of being construed to
imply fraud or wrongdoing were used in “the defamatory sense is
a question of fact for the jury”).

The context further

indicates that Arruda, the selectmen, and Town counsel
considered Bourne‟s conduct actionable, which further shows that
the quoted language could be construed to imply Bourne‟s
misconduct in altering a document.
4

Without ruling at this time

The remainder of Arruda‟s comments relating to the
lawsuits and the document concern the circumstances leading up
to Bourne accusing the Board of forging Bourne‟s signature on a
cover letter in the Town‟s files, Arruda‟s denial of wrongdoing,
and Arruda‟s characterizing the litigation with Bourne as
expensive but essentially fruitless. The comment ends with the
rhetorical flourish comparing Bourne with a terrorist, which is
not actionable, for reasons stated above. See Am. Compl., Ex.
D, Tr. at 7-9 (doc. no. 21-4 at 10-12).
15

on any defense that may be available, including substantial
truth or privilege, the court finds that Bourne has stated a
viable defamation claim based on the comment that Bourne had
altered a Town document.

Accordingly, the motion to dismiss is

denied as to this statement.
c.

Forgery

Bourne presented a revised road waiver agreement and a cover
letter in a state court proceeding.

That cover letter differed

from the cover letter Bourne sent to the Town, attached to the
same revised agreement.

Arruda, in describing his recollection of

reviewing the Town‟s draft of the letter, stated,
I came here and asked . . . (if we had) a cover letter
to that uh altered document. And uh – and I remember
very clearly. I was standing at the counter, (she
pulled) out a file, and she said, “Geez, I don‟t see
one.” And then a moment later she says, “Oh, wait a
minute. It‟s stapled on the back.” . . . I said,
“Could I see that?” She showed it to me. Said
nothing about changes. There were [sic] nothing about
changes. It was -- just said, “See attached.” When
we got to court, Mr. Bourne had another letter, that
noted -- said, “Note changes.” And ours did not.
This is the forged document.
Am. Compl., Ex. D, Tr. at 7 (doc. no. 21-4 at 10).
“„Whether a communication is capable of bearing a
defamatory meaning is an issue of law [for] the Court.

Only if

the Court determines that language is defamatory is there then
the question for the jury whether the communication was in fact

16

understood by its recipient in the defamatory sense.‟”
155 N.H. at 338, 929 A.2d at 1015 (citation omitted).

Thomas,
To

evaluate whether words may be defamatory, the court must
construe the words in context.

See Moss, 312 F.3d at 509.

The context of these comments belies Bourne‟s assertion
that Arruda‟s reference to a forgery was actually an accusation
against Bourne.

Before Arruda made the “forged document”

comments he had stated, among other things, that Bourne had
accused Arruda and other selectmen of forging Bourne‟s
signature; Arruda denied the accusation and stated that it was
thoroughly investigated and never proven.

See Am. Compl., Ex.

D, Tr. at 3-5 (doc. no. 21-4 at 6-8).
Arruda followed up on the quoted text by describing how
Bourne had been confronted in court with the Town‟s version of
the letter, and that Bourne and the judge had engaged in a
colloquy.

Arruda noted: “And from that day forward, [Bourne]

has accused the Board of Selectmen of forging that document.”
Am. Compl., Ex. D, Tr. at 8 (doc. no. 21-4 at 11).

Arruda

concluded his remarks about the forgery accusation by stating
that he did not “have the will or the talent to forge a
document,” id., and by noting that a letter from Bourne to the
Board including the forgery accusation had been one ground upon

17

which the Board had considered suing Bourne for defamation in
the past.
Construed in context, Arruda‟s “forged document” statement
cannot be construed as defaming Bourne.

Arruda‟s statement:

“This is the forged document,” taken in context, can only be
reasonably understood to mean “this is the document that Bourne
accused the Town of forging.”

No reasonable factfinder

construing the statement in context, therefore, could find a
defamatory meaning directed at Bourne.

Accordingly, Bourne has

failed to allege facts sufficient to state a viable defamation
claim as to Arruda‟s “forged document” statement.

The motion to

dismiss is granted as to this statement.
d.

Imprecision in Paraphrasing Colloquy

Bourne alleges that Arruda defamed him in describing a
colloquy between Bourne and the judge in state court, which
occurred during the Town‟s cross-examination of Bourne in the
lawsuit concerning the “altered” town road waiver agreement.
The trial transcript attached to Bourne‟s complaint as Exhibit I
reveals that Town counsel first elicited Bourne‟s admission that
his signature appeared on a draft of the cover letter
transmitting the revised road waiver agreement, retrieved from
the Town‟s files.

Counsel then asked Bourne to admit that the

draft of the cover letter in Bourne‟s possession differed from
18

the Town‟s, because the Town‟s draft did not say, “Enclosed is
the revised form,” as Bourne‟s copy did.

The judge directed

Bourne to answer counsel‟s question, as set forth below:
[Town counsel]: And, in fact, Mr. Bourne,
instead of saying enclosed is the revised form, [the
Town‟s draft] says enclosed is the signed form, does
it not?
[Witness]:
[Court]:

I‟ll have to object to that.

Just answer the question, sir.

[Witness]: Because the one that I have here is
the one we got from our computer, which does state
revised, and far as I know, we sent it in as revised.
Whether or not anybody at the town manipulated that
and then copied it, I cannot say that, but far as I
know, that is not the exact one I sent. This would be
the one here, which does say revised on it.
Am. Compl., Ex. I (Ct. Hr‟g Tr., Feb. 10, 2003) (doc. no. 21-9)
at 10.
During the June 2010 Selectmen‟s meeting at issue, Arruda
described the colloquy as follows:
[W]hen we got to Court, Mr. Bourne had another letter,
that noted – said, “Note changes.” And ours did not.
This is the forged document. Uh when he was on the
stand, the judge asked him – it was Judge O‟Neil . . .
-- asked him very clearly, “Are these your signatures
Mr. Bourne?” The next word out of his mouth, as
laughable as it was, was he said to the judge, “I
object.” I thought it was funny. And it‟s not even
funny anymore. I object. The judge says, “You don‟t
get to say that. You will now give us a straight
answer.” And from that day forward, he has accused
the Board of Selectmen of forging that document. I
don‟t have the will or the talent to forge a document,
ever. . . .
19

Am. Compl., Ex. D, Tr. at 7-8 (doc. no. 21-4 at 10-11).
Defendants have contended that any discrepancy between Arruda‟s
version of the colloquy and the statements appearing in the
trial transcript were immaterial, rendering the defendants not
liable because the matters asserted were substantially true.
Without making any finding as to substantial truth, the
court notes that there are several discrepancies between the
transcript of the court hearing (doc. no. 21-9) and Arruda‟s
rendition of the colloquy appearing in Exhibit D (doc. no. 214).

Arruda said that it was the judge who asked the original

question, while the transcript shows that it was Town counsel.
Arruda said that Bourne said, I object,” when asked to identify
his signature on the documents at issue, when in fact he said he
would have to object to a question asking him to declare that
the Town‟s cover letter stated, “Enclosed is the signed form.”
Arruda said that Bourne began “from that day forward” to accuse
the town of forging the cover letter, when, in fact, Bourne
objected to the question then volunteered that he “[could] not
say” whether someone in the town had “manipulated” the letter.
Finally, the judge told Bourne to “[j]ust answer the question,”
and did not specifically instruct him to give a “straight”
answer in lieu of objecting.

20

Bourne has not identified precisely what aspect of Arruda‟s
paraphrase of the colloquy is defamatory.

Rather, he asserts

generally that Arruda misquoted the judge and Bourne, and cites
Masson v. New Yorker Mag., Inc., 501 U.S. 496 (1991), in
contending that Arruda acted with actual malice, that is, with
knowledge of the falsity of his statements or reckless disregard
as to their truth or falsity.
Before considering whether Arruda can be said to have acted
with actual malice -- the principle at issue in Masson, see id.
at 513 (actual malice may be found where it can be proved that
publisher misquoted plaintiff in a way that materially changed
meaning of plaintiff‟s remarks) – a threshold issue here is
whether Arruda‟s statements could be construed as defamatory.
See Thomas, 155 N.H. at 338, 929 A.2d at 1015

(whether

communication is capable of bearing defamatory meaning is issue
of law, and only if court determines that language is defamatory
is there question for jury regarding whether it was in fact
understood as defamatory).

For reasons stated below, the court

does not find Arruda‟s description of the colloquy to be capable
of a defamatory construction.
Witnesses in court may fail to answer questions directly,
fully, or completely.

Judges may intervene to ensure that

witnesses answer the questions asked.
21

This appears to be what

happened during the colloquy at issue.

Describing Bourne as

having been the subject of such a colloquy is not per se a
slanderous allegation; a defamatory meaning cannot be found
unless the terms used in the description of the colloquy, read
in context, could be said to lower that witness‟s esteem among
any substantial and respectable group of people.

See Moss, 312

F.3d at 507.
Here, Arruda described the colloquy in response to a
question asking him to talk about cases involving Bourne and the
Town.

He embedded the description of the colloquy within an

explanation of circumstances regarding Bourne‟s accusing the
Town of forging a document.

Arruda‟s description of the

colloquy may be construed to imply that the judge had
reprimanded Bourne once for objecting to a question regarding
the identity of his signature on a document, instead of
answering the question.

Construing Arruda‟s description of

Bourne‟s and the judge‟s statements in context, the court does
not find any reasonable basis upon which the description of that
interchange between the judge and Bourne may be deemed
defamatory.

Therefore, the court grants the motion to dismiss

as to Arruda‟s description of the colloquy.

22

e.

“People Who Don‟t Really Know”

In denying certain accusations against the selectmen in a
letter written by Bourne regarding the poisoning of a dog, the
firing of a police chief, and forgery of Bourne‟s signature,
Arruda stated that “people who don‟t really know, they might
even get to believe this guy after a while.”

Arruda made the

following statement to the audience at the selectmen‟s meeting:
[F]or those of you who didn‟t read this, I‟m not going
to read this whole nonsense . . . but I am going to
tell you there‟s a couple of issues in here that . . .
cut really close to me. And . . . the only things
that have any value in my life is my name and my
reputation. And I don‟t [sic] to have a series of
innuendos pointing at this board of selectmen and me,
in particular, for doing some of these nefarious kind
of acts. And I expect that our attorney will
represent us in bringing some legal action against
this. In no way did I ever, or this board of
selectmen or any board of selectmen, have anything to
do with the killing of Ms. Coffee‟s . . . dog, ever.
I will stake my reputation and my life on that. We
never fired a police chief because of it, ever. That
was a totally separate issue. This board of selectmen
never, ever created a forgery, ever. But yet, these
kind of things are getting dragged up in the
newspaper. People who don‟t really know, they might
even get to believe this guy after a while. And quite
frankly, I – I‟m at the end of my rope.
Amend Compl., Ex. D, Tr. at 2-3 (doc. no. 21-4 at 5-6).

Arruda

followed up on the quoted text by noting that he and two other
selectmen had planned to file defamation claims against Bourne
for similar remarks in the past, and that a lawyer asked them to

23

drop their claims six months before, so that the Town could more
easily settle the entire matter.
The court finds that, construed in context, Arruda‟s
statement, that “[p]eople who don‟t really know, they might even
get to believe this guy after a while,” is a conditional
expression about who is more likely to believe Bourne, e.g., if
a person does not know the truth, she or he is more likely to
believe Bourne.

This statement implies that people who “know”

the truth would not believe Bourne.
An opinion is not actionable if it is based upon a fully
disclosed factual basis that cannot be reasonably understood to
imply the existence of any other undisclosed, defamatory facts.
See Pease, 121 N.H. at 66, 426 A.2d at 466.

Here, Arruda

prefaced his allegedly defamatory statement by specifically
denying matters asserted in the letter, namely, Bourne‟s
accusations relating to the dead dog, the fired chief, and the
forged document, and by labeling the rest “nonsense.”

The list

of reasons for Arruda‟s opinion does not imply any undisclosed
defamatory facts, and the letter itself is in the public domain.
Interested listeners could refer to the original letter,
consider Arruda‟s specific denials of particular charges,
compare those issues with Arruda‟s opinion about who might be
likely to believe Bourne, and draw their own conclusions.
24

To

this extent, the statement of opinion resembles a hypothetical
cited by the First Circuit to show that a conditional,
speculative statement, based on disclosed facts, is not
actionable.

See Gray v. St. Martin‟s Press, Inc., 221 F.3d 243,

251 (1st Cir. 2000) (citing Restatement (Second) of Torts § 566,
at 174, ill. 5 (“„A says to B about C, a city official: „He and
his wife took a trip on city business a month ago and he added
her expenses in as a part of his own.‟ B responds: „If he did
that he is really a thief.‟ B's expression of opinion does not
assert by implication any defamatory facts, and he is not liable
to C for defamation.‟”)).

By the same token, the cited

statement regarding Arruda‟s opinion of Bourne‟s credibility,
based upon a fully disclosed set of facts, is not actionable.
The motion to dismiss the defamation claim as to this statement
is granted.
f.

Nonsense, Innuendos, and Junk

The next set of allegedly defamatory statements concern
Arruda‟s description of Bourne‟s letter as containing
“nonsense,” “innuendos,” and “junk.”

Arruda made these remarks

after stating that he intended to make a motion directing the
Town to ask counsel to take action on the letter.

Arruda

explained his opinion of the content of Bourne‟s letter by
noting, that “[w]hile some of these things did happen, none of
25

these things are linked,”

and then listing matters in the

letter that he claimed were not in fact linked.
Bourne contends that Arruda‟s use of the terms “junk,”
“innuendos,” and “nonsense,” implied Bourne‟s dishonesty.

Such

loose, figurative expressions are not generally actionable, as
they cannot be proved or disproved by evidence.

The “vaguer a

term, or the more meanings it reasonably can convey, the less
likely it is to be actionable.”

Levinsky‟s, Inc. v. Wal-Mart

Stores, Inc., 127 F.3d 122, 129 (1st Cir. 1997) (under Maine
defamation law, calling competitor‟s store “trashy” was not
actionable); see also Flowers v. Carville, 310 F.3d 1118, 1127
(9th Cir. 2002) (“colorful waste metaphors -- . . . „trash,‟
„crap,‟ and „garbage‟ -- are not defamatory under Nevada law”);
Phantom Touring, Inc. v. Affiliated Pubs., 953 F.2d 724, 731
(1st Cir. 1992) (newspaper‟s referring to one of two similarlynamed theater productions as “fake” was not defamatory).
Similar opinion statements were found non-actionable in a
Superior Court action involving Bourne, see Bourne v. Town of
Madison, No. 2008-EQ-0027 (N.H. Super. Ct., Carroll Cnty., Feb.
5, 2010).

In that case, Bourne sued Robert King for libel for

writing a series of letters published in the Conway Daily Sun
and sent to members of a local snowmobile club alternatively
describing Bourne as “delusional,” a “nutcase,” a person who
26

“spews falsehoods” at a rate meriting entry in the Guinness Book
of World Records, and a person who engages in “tedious,
repetitive false accusations” in the letters Bourne had
previously written to the Conway Daily Sun.

King called Bourne

a “con man,” referring to Bourne‟s ability to manipulate a
newspaper reporter.

The court in that case reviewed each

statement in context and held that they were opinions, vigorous
epithets, and rhetorical hyperbole, not based on any undisclosed
facts, and not actionable as defamation.

The New Hampshire

Supreme Court affirmed the decision in that case “for reasons
articulated in the trial court‟s well-reasoned orders.”

Bedrock

Realty Trust v. Town of Madison, No. 2010-0091 (N.H. Nov. 18,
2010).

Here, the terms “junk, “innuendo,” and “nonsense” are

appropriately considered to be loose, figurative terms not
easily pinned down or specifically defined.
Moreover, the court notes that Arruda laid out a list of
reasons why he considered the letter to consist of nonsense,
innuendo, and junk.

Arruda specifically denied certain

accusations in the letter, including Bourne‟s accusation that
there was a connection between Arruda‟s testimony in support of
legislation and issues in Bourne‟s lawsuits.

Those matters, as

well as the letter, were all in the public domain.

An

interested listener could have investigated the issues and drawn
27

his or her own conclusions about the asserted relationships.
Statements of opinion expressed with such fully disclosed bases
are not actionable.

See Riley, 292 F.3d at 289.

Accordingly,

the motion to dismiss as to the terms “junk,” “innuendo,” and
“nonsense” is granted.
g.

Falls within Guidelines of Libel

Bourne challenges Arruda‟s characterizing Bourne‟s letter
to the editor as “fall[ing] within the guidelines of libel,” on
the ground that Bourne believes that that characterization
implied that Bourne published malicious lies.

The statement

arose during Arruda‟s expressed desire at a selectmen‟s meeting
to have the Board of Selectmen ask its attorney for an
“examination of legal options.”

Arruda, in making those

statements, was not specifically seeking recourse against
Bourne.
Arruda, following his “guidelines of libel” statement,
recounted his previous attempt to sue Bourne for libel based on
a letter Bourne sent to Town counsel accusing the Board of
forgery.

Arruda noted that his attorneys had advised against

filing the suit against Bourne because the selectmen, and not
Bourne, notified the public about Bourne‟s accusation.

Arruda

contrasted that letter‟s publication by the selectmen with

28

Bourne‟s letter, sent to the newspaper for publication by Bourne
himself, and ultimately disseminated through the newspaper.
Citing his own computer research, Arruda listed the
following reasons for his conclusion that the published letter
to the editor could be libelous:
[W]hen someone puts something in writing – to the
general public, that‟s a whole lot different than
sending a letter to an attorney. And it‟s a whole lot
different than saying it face-to-face. No one of
these things accuses anyone of anything but uh, if you
read it in its entirety, it‟s a linking of a series of
what is considered nefarious kind of acts to the Board
of Selectmen and, in particular, me. This is now a
public document. This is now in writing. This falls
under the guidelines of libel. So I‟m asking that the
attorney look into it.
Arruda offered his opinion concerning whether or not the
letter constituted libel along with the basis for his opinion.
Arruda qualified his assertion that Bourne‟s letter met the
“guidelines of libel” by stating that he was asking to have the
Town‟s attorney look into the issue.

Without suggesting that

Arruda‟s legal conclusion is correct, the court notes that an
interested listener could have considered Arruda‟s reasons,
researched the issue, and drawn his or her own conclusions about
the letter.

Further, Arruda made a statement of opinion,

supported by disclosed facts which formed the basis of the
opinion.

For those reasons, the statement is not actionable,

and the motion to dismiss as to that statement is granted.
29

3.

Brooks‟s Statements
a.

No Real Connection

Bourne has alleged that Brooks defamed him in
characterizing his letter to the editor as falsely intimating
connections between unrelated events.

The statement at issue is

part of Brooks‟s reaction to Arruda‟s expression of dismay over
Bourne‟s letter to the editor, and Arruda‟s reasons for asking
counsel to examine possible responses.

Brooks stated that he

agreed with Arruda‟s sentiment and understood how it feels to be
attacked personally.

He followed those remarks with the

following description of his reaction to the letter:
[W]hen I read this letter over the weekend -- I mean,
of course I have the benefit of knowing some of -some of it. I had personal involvement, because I was
on the board at that time. But in the beginning,
obviously, I wasn‟t. But uh I‟ve lived here my whole
life and I know what‟s going on. And to link some –
As [Arruda] says, he‟s trying to say, from A to B to C
to D to E. And there‟s [sic] so many things in here
that just aren‟t even pertinent. But they‟re a juicy
tidbit. It‟s almost like an article in the newspaper,
where the – you know, the reporter, you know, connects
this to this but there‟s no real connection in real
life. Uh I mean, it is discouraging. So I will
support an investigation to [sic] this to see if there
is anything we can do.
Brooks expressed the bases for his opinion in a manner that left
a reasonable listener free to examine the issues, in noting that
the letter links issues that are not truly linked.
at issue is in the public domain.
30

The letter

The opinion cited cannot be

said to have been based on any undisclosed, defamatory facts
about Bourne.

Accordingly, the motion to dismiss as to this

statement is granted.
b.

Bag of Nothing, Wrong Venue, Slapping Down

Bourne claims that Brooks defamed him by opining that
Bourne was “holding a bag full of nothing,” that Bourne had
filed prior litigation in the wrong venue, and that nobody was
“slapping” him down.

The statements at issue followed Brooks‟s

statement that he agreed with the idea of not responding to
Bourne‟s letter through the newspaper, “[b]ecause that‟s what
[Bourne] wants.

He wants to draw us out.

Because right now

he‟s standing holding a bag full of nothing.”

Brooks then

described Bourne‟s recent lack of success in litigation and
stated, “I‟m just waiting for somebody to tell [Bourne] that the
venue‟s improper, et cetera, et cetera, et cetera.”

Brooks

concluded these remarks with a critique of the courts:
I‟m very disappointed in our legal system. There have
been decisions made that, quite frankly, are – got [sic]
all kinds of holes in them. Instead of really putting
the hammer down and saying either the town‟s right or
the town‟s wrong or [Bourne‟s] right, whatever – It‟s –
nothing‟s been concrete. And that‟s what bothers me.
And this guy is just allowed to proceed with suit after
suit after suit. And nobody is slapping him, saying,
“This is vexatious. It‟s personal. It‟s baseless under
the law,” which most of it is. But nobody is slapping

31

him down. Because the legal system handles pro se
litigants with kid gloves. . . .
Amend Compl., Ex. D, Tr. at 13 (doc. no. 21-4) at 16.
Brooks‟s criticism of the courts for not “slapping” Bourne
down, and his view that Bourne is “holding a bag full of
nothing” are metaphors, the sort of loose, figurative language
that is generally not actionable as defamatory.
F.3d at 289.

See Riley, 292

Moreover, to the extent that the statements at

issue may be construed to be opinions based on facts, including
Brooks‟s prediction that a court might rule against Bourne on
the question of venue, the bases for these opinions, Bourne‟s
court filings, the court decisions at issue, and the contents of
the letter to the editor which Brooks deemed “a bag full of
nothing,” are in the public domain.

Listeners were free to

research those issues and draw their own conclusions.

Brooks‟s

statements expressing his opinions based on fully disclosed
facts, and consisting in part of loose, figurative language, are
not actionable.

Accordingly, the motion to dismiss as to

Brooks‟s statements is granted.
4.

Town‟s Liability for Acts of Officials

Municipalities may not be held vicariously liable under
§ 1983 for their employees‟ actions.

See Connick v. Thompson,

___ U.S. ___, ___, 131 S. Ct. 1350, 1359 (2011).

32

A municipality

may be held liable under a theory of respondeat superior,
however, for the tortious conduct of municipal officials,
including elected officials, if plaintiff can prove that the
municipal official was acting within the scope of his employment
at the time he committed the alleged tort.

See Porter v. City

of Manchester, 155 N.H. 149, 155, 921 A.2d 393, 399 (2007).

To

prove this, a plaintiff must show, among other things, that the
tortious conduct at issue was actuated, at least in part, by an
intent to serve the municipality.

Id. (city may be liable for

tortious conduct of elected employee, where evidence suggested
that employee‟s motives included intent to serve city
interests).

The facts alleged here, and the reasonable

inferences, taken as true, indicate that Arruda made the
statements at issue in part to serve the interests of the Town.
Accordingly, and at this early stage, the defamation claims
asserted against the Town are viable as to those statements
found to be actionable and are dismissed as to the statements
found not to be actionable.
B.

Retaliation Claims Asserted in Amended Complaint

Bourne asserts that Brooks made a statement during the
public meeting that constitutes a threat of violence.
Specifically, Bourne claims that Brooks‟s pledge to “pick up
arms” and to “stand beside” Arruda in defense of their
33

reputational honor, constitutes a threat of violence against
Bourne.

Based on that statement, and the defamatory statements

made at the June 2010 public meeting by Arruda and Brooks,
Bourne asserts that defendants are liable for
retaliating against him for exercising his First Amendment right
to send a letter to a newspaper criticizing the Town.
Defendants apparently failed to construe the somewhat
jumbled presentation of claims in the complaint as including a
retaliation claim, and failed to make explicit their intent to
move to dismiss the retaliation claim, contending instead that
Brooks‟s remark was not defamatory and generally seeking
dismissal of all claims.

Bourne, in the documents filed in

response to the motion to dismiss, construed the motion as
intending to seek dismissal of all claims in the case, including
the retaliation claim.

See, e.g., Plf.‟s Mem. Of Law in Support

of Plf.‟s Obj. to Defs.‟s Mot. to Dismiss (doc. no. 35), at 9
(“under the extreme circumstances presented herein and by the
vicious attack upon the Plaintiff in retaliation for informing
the public, defendants are not entitled to dismissal of any
claims” (emphasis in original)).

In the interest of expediency,

the court will consider whether Bourne has stated a viable claim
of retaliation sufficient to survive a motion to dismiss.

34

1.

Elements of Retaliation

To establish a First Amendment retaliation claim, plaintiff
must show: (1) that he was engaged in activities protected by
the First Amendment, (2) that the defendant took an adverse
action against him, and (3) that there was a causal connection
between the protected activity and the adverse action.

See

Cossette v. Poulin, 573 F. Supp. 2d 456, 459-60 (D.N.H. 2008).
2.

Protected Speech and Conduct

Bourne‟s letter to the editor expressed Bourne‟s view that
Town officials had engaged in unethical conduct and had violated
his property rights and civil rights.

In general, “the right to

criticize public officials” is protected by the First Amendment.
Jenkins v. Rock Hill Local Sch. Dist., 513 F.3d 580, 588 (6th
Cir. 2008); see also N.Y. Times Co. v. Sullivan, 376 U.S. 254,
270 (1964) (noting background of “profound national commitment
to the principle that debate on public issues should be
uninhibited, robust, and wide-open, and that it may well include
vehement, caustic, and sometimes unpleasantly sharp attacks on
government and public officials”).

Activities protected by the

First Amendment include criticizing public officials‟ conduct in
a letter to the editor.

See Jenkins, 513 F.3d at 588 (mothers‟

criticism of school district‟s treatment of their children in
letter to newspaper was protected speech); Eichenlaub v. Twp. of
35

Indiana, 385 F.3d 274, 284 (3d Cir. 2004) (landowner‟s speech at
public meeting relating to zoning dispute was protected speech
even if it concerned private grievance).

Bourne‟s letter to the

editor constituted conduct protected by the First Amendment.
3.

Adverse Acts

De minimis reactions to protected speech will not satisfy
the adverse-action element of a retaliation claim.
v. Powell, 449 F.3d 682, 685-86 (5th Cir. 2006).

See Morris

A defendant‟s

response to plaintiff‟s protected speech is not de minimis,
however, if the conduct would deter an individual of ordinary
firmness from exercising his or her First Amendment rights.

See

id. at 686; cf. Barton v. Clancy, 632 F.3d 9, 29 (1st Cir. 2011)
(“Even „relatively minor events‟ can give rise to § 1983
liability, so long as the harassment is not so trivial that it
would not deter an ordinary employee in the exercise of his or
her First Amendment rights.”) (citation omitted).
strikes a balance between two propositions:

The standard

“First, the injury

suffered need not be great because there is no justification for
harassing people for exercise of their constitutional rights;
but second, a constitutional tort – like any tort – requires
injury, and allowing constitutional redress for every minor
harassment may serve to trivialize the First Amendment.”
v. City of Forest Park, 183 F.3d 515, 519 (6th Cir. 1999).

Mattox

36

The

standard involves an objective inquiry, “capable of being
tailored to the different circumstances in which retaliation
claims arise, and capable of screening the most trivial of
actions from constitutional cognizance.”

Thaddeus-X v. Blatter,

175 F.3d 378, 398 (6th Cir. 1999).
The actions cited here as adverse, and causally related to
Bourne‟s exercise of his First Amendment rights, include:

(1)

the selectmen‟s convening the June 2010 public meeting in
response to Bourne‟s letter; (2) defendants‟ use of the meeting
to make allegedly defamatory statements; and (3) Brooks‟s
threat, expressed during that meeting, to take up arms.
a.

Convening of Meeting

The convening of the meeting itself cannot be construed as
having more than a de minimis impact on a person of reasonable
firmness.

The convening of the meeting was a neutral act.

The

meeting at issue was a public forum, duly recorded, for the
stated purpose of seeing if the selectmen would ask the Town‟s
counsel to respond to Bourne‟s letter.

A reasonably firm person

intending to criticize Town officials would not be deterred from
exercising his or her rights for fear that Town officials might
publicly debate whether and how to respond to the charges.
Indeed such a response is a proper function of a government that
is responsive to citizen petitions and concerns.
37

To rule

otherwise would unfairly tether public officials and inhibit
public debate.

“It would be inconsistent with core First

Amendment principles and basic notions of fairness not to allow
[a government official] to respond to [such] allegations to the
extent his out-of-court comments were not defamatory . . . .”
Mezibov v. Allen, 411 F.3d 712, 722 (6th Cir. 2005).

Bourne‟s

claim alleging retaliation for convening the meeting is not
viable and is therefore properly dismissed.
b.

Defamatory Comments

Defamatory or harassing comments may constitute an adverse
action sufficient to form the basis of a First Amendment
retaliation claim under § 1983, if the plaintiff has alleged
facts that show that the comments would chill a person of
ordinary firmness from engaging in protected speech.
Barton, 632 F.3d at 28.

See

Here, Bourne has asserted generally

that defendants intended to damage his reputation, and that
their actions injured his reputation and caused him harm.
Compl. (doc. no. 21) at 12.

Am.

Such allegations of generalized

reputational injury resulting from defamatory remarks have been
found insufficient to state more than a de minimis injury.

See

Naucke v. City of Park Hills, 284 F.3d 923, 928 (8th Cir. 2002)
(embarrassment, humiliation, and emotional distress that
plaintiff suffered as result of city councilors‟ “offensive,
38

unprofessional, and inappropriate” remarks were de minimis; the
risk of suffering such injury due to defamation would not deter
person of ordinary firmness from speaking out).
Plaintiff has stated viable defamation claims for certain
remarks made about Bourne at a selectmen‟s meeting convened
largely for that purpose.

Plaintiff has further alleged that

those remarks were taken in response to his exercise of his
First Amendment rights.

Plaintiff has failed, however, to

allege sufficient facts to demonstrate that any embarrassment,
reputational damage, or emotional impact he suffered as a result
of the allegedly defamatory statements were more than de minimis
injuries.

Plaintiff has therefore failed to state a viable

claim of retaliation based upon the allegedly defamatory remarks
made at the June 2010 meeting, rendering this claim properly
dismissed.
c.

Pick Up Arms

Bourne claims that Brooks‟s statement, pledging to “pick up
arms,” was an adverse act forming the basis for finding
defendants liable for First Amendment retaliation.

The comment

was made in the context of Brooks explaining his stake in the
controversy between Bourne and the Town.

After highlighting the

title of Bourne‟s letter, “Time to Demand High Ethical Standards
for All Government Officials,” Brooks stated:
39

I try my utmost to make decisions in the best interest
of the town of Madison. Now you can certainly
disagree with that on point on point [sic] and we can
have an argument and we can walk away either agreeing
to disagree or whatever but, to say that it‟s
unethical . . . that crosses a line. Which, as
[Arruda] said, all you have, walking through life, is
your name and your reputation. And when somebody
tries to sully that, I‟ll pick up arms and I‟ll stand
beside you.
Brooks‟s use of the phrase “pick up arms” is a figure of speech.
Brooks uttered the phrase while speaking about defending his and
Arruda‟s reputations.

Even construing all inferences in

plaintiff‟s favor, the court finds that a person of reasonable
firmness would not be deterred from exercising his First
Amendment rights by hearing this comment.

Accordingly, Bourne

has not stated a viable claim of First Amendment retaliation
based on Brooks‟s “pick up arms” remark.

The motion to dismiss

this retaliation claim asserted against Brooks and the Town is
therefore granted.
C.

Remaining Claims in Amended Complaint

Bourne‟s remaining claims, asserted in the amended
complaint, are that defendants are liable for “gross negligence
by reckless conduct,” that they violated their oaths of office,
and that they violated criminal statutes.

40

1.

Oath of Office

Bourne asserted in his amended complaint that Arruda and
Brooks breached a duty owed to him, and elaborated on that claim
in stating that the selectmen violated their oaths of office to
uphold the law, as prescribed by RSA § 42:1 and Pt. 2, Art. 84
of the New Hampshire Constitution.

These authorities require

municipal officials to take an oath swearing to uphold the
federal and state Constitutions, and to discharge and perform
all duties according to the best of their ability in conformity
with federal and state law.

The superior court may order the

dismissal of an official found to be in violation of the oath.
RSA § 42:1-a (manner of dismissal of official found to be
violating oath of office shall be by petition filed in superior
court).
State law does not provide a private cause of action for
damages for violations of the oath of office, and the court can
find no other basis for asserting a separate claim in federal
court based on such allegations.

Accordingly, defendants‟

motion to dismiss this claim is granted, and plaintiff‟s claim
based on the selectmen‟s oath of office is dismissed.
2.

Gross Negligence

Bourne lists two counts in his amended complaint:
“Slander, Defamation, and Libel” listed as Count One; and “Gross
41

Negligence by Reckless Conduct” listed as Count Two, which also
asserts a retaliation claim.

Defendants contend that Count Two

should be dismissed because it was asserted without first
seeking the court‟s permission, merely restates the defamation
claim, and alleges no other actionable claim.
As to whether the claim was asserted without the court‟s
leave, the court notes that Bourne properly filed the proposed
amended complaint along with a motion to amend, and the court
granted that motion.

Defendants are correct in contending that

the allegations of negligence in Count Two do not state a
separate, actionable claim.

Count Two simply reiterates and

amplifies claims already asserted in this case.

In Count Two,

Bourne has asserted that defendants‟ broadcasting of retaliatory
and defamatory statements was a knowing, intentional, reckless,
and premeditated act, undertaken with actual malice and the
intent to harm him.

Bourne‟s denomination of these allegations

as a separate claim of “gross negligence” is mistaken; the
averments simply allege facts that, if taken as true, may affect
defendants‟ liability for damages,5 or defeat a defense of a
5

Plaintiff‟s allegations relating to actual malice appear
to anticipate a finding by this court that Bourne is a public
figure for purposes of this action. A public figure must show
that the defendant acted with “actual malice” in defaming him or
her, which requires a showing of the defendant‟s subjective
awareness of the falsity or probable falsity of the statement,
rather than a showing of ill will. See Thomas, 155 N.H. at 328,
42

conditional privilege.6

Bourne has failed to state any separate

cause of action in these allegations, apart from defamation and
retaliation.

As such the motion to dismiss the “gross

negligence” count is granted.

The court‟s dismissal of this

claim is intended to streamline the pleadings by striking
surplusage without limiting the issues or the scope of discovery
in this lawsuit.
Similarly, the court declines to construe the allegations
of criminal misconduct by defendants as separate claims.
929 A.2d at 1007 (citing N.Y. Times Co., 376 U.S. at 279-80).
Whether Bourne was a public figure for a limited purpose is a
question of law for the court to decide. See Thomas, 155 N.H.
at 341, 929 A.2d at 1017 (individuals who “„thrust themselves to
the forefront of particular public controversies in order to
influence the resolution of the issues involved‟” become public
figures for a limited range of issues (citation omitted)). On
this limited record, the court declines to rule on whether
Bourne‟s participation in controversies in Madison rendered him
a limited-purpose public figure.
6

A conditional privilege may be defeated by a showing of
ill will or intent to harm. See Thomas, 155 N.H. at 329, 929
A.2d at 1008. New Hampshire law recognizes a conditional
privilege for making certain defamatory statements “„if the
facts, although untrue, were published on a lawful occasion, in
good faith, for a justifiable purpose, and with a belief,
founded on reasonable grounds of its truth,‟ provided that the
statements are not made with actual malice.” Simpkins v. Snow,
139 N.H. 735, 740, 661 A.2d 772, 776-77 (1995) (citation
omitted); see also Supry v. Bolduc, 112 N.H. 274, 277, 293 A.2d
767, 769 (1972) (landowner‟s defamatory statements to zoning
board may be conditionally privileged, given private interests
at stake and “recognized public interest in encouraging open
discussion of zoning matters at public hearings designed for
that purpose”). While the evidence may ultimately show that a
conditional privilege applied to the statements at issue, the
matter is not before the court at this time.
43

Plaintiff lacks standing to prosecute defendants for a criminal
offense, or to attempt to compel such a prosecution through a
civil action.

See Linda R.S. v. Richard D., 410 U.S. 614, 619

(1973) (“a private citizen lacks a judicially cognizable
interest in the prosecution or nonprosecution of another”); Cok
v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989).
III. Motion to Supplement
Bourne‟s motion to supplement asserts that at a selectmen‟s
meeting held on February 22, 2011, and rebroadcast on local
television several times thereafter, defendant Brooks defamed
Bourne.

Bourne claims the defamatory statement was Brooks‟s

comparison of him to Carl Drega, thus implying that Bourne was a
“danger to the community and to the lives of town officials.”
Supplement to Pl.‟s 1st Am. Compl. (doc. no. 50-1 at 2).
Bourne further asserts that the Town has continued to fail
to supervise or train Arruda and Brooks, and that a Town policy
or custom has allowed Arruda and Brooks to continue to engage in
such “illegal and offensive behavior.”

Id. at 4.

These

allegations relate to Brooks‟s February 2011 statement and also
relate to the claims asserted against defendants in the
underlying amended complaint, which focuses on the June 2010
public meeting.

44

Federal Rule of Civil Procedure 15(d) provides that, upon
motion, reasonable notice, and just terms, the court may permit
a party to serve a supplemental pleading setting out any event
that happened after the date of the pleading to be supplemented.
A motion to supplement is the proper vehicle for seeking leave
to add allegations of later-occurring events, without altering
the underlying issues or the identity of the parties.

See

Habitat Educ. Ctr. v. Kimbell, 250 F.R.D. 397, 401 (E.D. Wis.
2008) (“supplemental pleading” addresses events occurring after
initial pleading and adds to such pleading, while “amended
pleading” relates to matters occurring prior to filing original
pleading and replaces it).

The district court should grant a

motion to supplement, if doing so would promote complete
adjudication of a dispute between the parties, without causing
undue delay, unnecessary expense, or unfair prejudice.

See id.;

6A Charles A. Wright, Arthur R. Miller, & Mary Kay Kane, Federal
Practice and Procedure § 1504 (“The purpose of [Rule 15(d)] is
to promote as complete an adjudication of the dispute between
the parties as is possible.”); see also Mueller Co. v. U.S. Pipe
& Foundry Co., 351 F. Supp. 2d 1, 2 (D.N.H. 2005) (standard to
be applied to motion to supplement is essentially same as that
applied to motion for leave to amend complaint).
supplement are liberally granted.
45

Motions to

See Nkihtaqmikon v. Bur. of

Indian Affairs, 453 F. Supp. 2d 193, 201 (D. Me. 2006).
Defendants here object to the motion on both procedural and
substantive grounds, contending that plaintiff failed to comply
with the local rules and that the supplement should be denied as
futile.

See Mueller, 351 F. Supp. 2d at 2 (“denial of a

proposed supplement on the basis of futility” is proper).
A.

Procedural Objections

Defendants cite plaintiff‟s failure to seek counsel‟s
concurrence in the motion to supplement, and LR 15.1, concerning
the proper format of a motion to amend, as the bases for denying
the motion.

LR 7.1(c), in requiring parties to certify that

they sought concurrence before filing a motion, “serves an
important purpose of conserving the court‟s resources for
matters that are actually disputed.”

Stonyfield Farm, Inc. v.

Agro-Farma, Inc., No. 08-cv-488-JD, 2010 WL 4455916, *1 (D.N.H.
Nov. 3, 2010).

The nature of defendants‟ objection and their

failure to show any willingness to concur in the relief
requested makes it clear that Bourne‟s failure to seek
concurrence had no real impact on the litigation.

Accordingly,

plaintiff‟s failure to comply with LR 7.1(c) will not result in
the court‟s denying the motion at issue in this instance.
Stonyfield Farm, 2010 WL 4455916, at *1.

See

Bourne is cautioned,

however, that he must comply with all local rules in the future,
46

including LR 7.1(c), so long as he continues to litigate matters
in this court, at the risk of suffering appropriate consequences
for failing to do so.
Defendants‟ second procedural objection is that Bourne did
not comply with LR 15.1, concerning the proper format for a
motion to amend a filing.

Defendants assert that they lacked

fair notice of the relationship between the supplemental facts
and Bourne‟s claims.

The court finds, however, that Bourne

substantially complied with LR 15.1, to the extent that a local
rule applicable to motions to amend may be deemed pertinent to a
motion to supplement.

Bourne filed a copy of the proposed

supplement and provided sufficient notice of the relationship
between the supplementary facts and the underlying claims to
enable defendants to file a response to the motion.
Accordingly, plaintiff‟s failure to comply completely with the
local rules provides no basis for denying the motion to
supplement.

See Castro, 540 U.S. at 381 (courts may construe

pro se pleadings to avoid inappropriately stringent rules and
unnecessary dismissals).
B.

Futility

Defendants‟ substantive objection to Bourne‟s motion is
that the proposed supplement fails to state a claim upon which
relief can be granted.

Specifically, defendants contend that
47

Brooks is absolutely immune from liability for his February 2011
remarks.

Defendants further contend that the statements at

issue are opinion and hyperbole, not actionable defamation.
1.

Absolute Immunity

“For reasons of public policy . . . courts have long
recognized an absolute immunity for members of legislative
bodies for acts in the performance of their duties.”
147 N.H. at 764, 802 A.2d at 1166.

Pierson,

The New Hampshire Supreme

Court has extended such immunity to cover a selectman‟s report
at a town meeting regarding the police chief‟s termination.

See

id. (citing Voelbel v. Town of Bridgewater, 144 N.H. 599, 600,
747 A.2d 252, 253 (1999) (“municipal officials, acting in a
legislative capacity,” are absolutely immune for comments made
“during a town meeting” regarding “town matters”)).

Finding

that the selectmen‟s report was made at a “town meeting,” that
it involved issues arising from the selectmen‟s duties, and that
it related to a matter of local importance properly before the
town meeting, the court in Voelbel found the statements at issue
to be absolutely privileged.

See Pierson, 147 N.H. at 764-65,

802 A.2d at 1166 (citing Voelbel, 144 N.H. at 600-01, 747 A.2d
at 253).
In Pierson, the New Hampshire Supreme Court elaborated on
the nature of the functions performed by boards of selectmen,
48

and contrasted “town meetings” with regular meetings of the
select board, in declining to find that a town clerk was
absolutely immune from liability for making comments during a
board of selectmen‟s meeting.

“The selectmen are officers who

form an executive that carries out certain statutory duties and
any orders enacted by the town meeting, which is the legislative
body” of the town.

Pierson, 147 N.H. at 765, 802 A.2d at 1167.

“Legislative decision-making is done at the annual town meeting,
or any town meeting specially warned by the board of selectmen.”
Id. (citations omitted).

“Between town meetings, the board of

selectmen meet [sic] to carry out its function of managing the
„prudential affairs of the town‟ and performing duties otherwise
„by law prescribed.‟”

Id. (quoting RSA § 41:8).

Finding that

the statements at issue were made in the clerk and selectmen‟s
performance of administrative or ministerial functions, and not
in performing any legislative function, the court found no basis
for deeming the town clerk absolutely immune from liability.
See Pierson, 147 N.H. at 765, 802 A.2d at 1167.
Similarly, Brooks‟s “Drega” comments were made at a
February 2011 selectmen‟s meeting, not at any properly warned or
regularly scheduled annual Town meeting.

The comments addressed

a matter that Brooks apparently believed could arise at the Town
meeting, but did not constitute the discharge of any legislative
49

function.

The facts alleged in the complaint or asserted in

defendants‟ objection do not show that Brooks was engaged in any
debate over a matter up for a vote or properly before a
legislative body.

The context discloses no basis for finding

that Brooks made the comments at issue in a legislative
capacity, or in performance of any duty connected with a
municipal officer‟s legislative functions.

Accordingly, Brooks

is not absolutely immune from liability for the comments he made
at the February 22, 2011, selectmen‟s meeting.
2.

Opinion and Hyperbole

Defendants further contend that the statements at issue
constitute opinion and hyperbole and are not actionable
defamation under New Hampshire law.

See Nash, 127 N.H. at 219,

498 A.2d at 351 (“statement of opinion is not actionable . . .
unless it may reasonably be understood to imply the existence of
defamatory fact as the basis for the opinion”) (citations
omitted); see also Pease, 121 N.H. at 66, 426 A.2d at 466
(opinion based upon fully disclosed factual basis, which cannot
be reasonably understood to imply existence of any other
undisclosed factual underpinnings, will not be deemed
actionable).
At issue here is a statement implying Brooks‟s belief that
Bourne was a potential “Carl Drega,” an individual whose
50

disputes with state and local officials in northern New
Hampshire led him to shoot and kill two state troopers, a judge,
a newspaper editor, and to wound three others before he was
killed by police in 1997.7

The statement could be reasonably

construed as mere opinion.

Brooks couched his comment in terms

of being “worr[ied] about a Drega situation . . . .”
not state: “Bourne is a Drega.”

Brooks did

On the other hand, and

construing the facts in Bourne‟s favor, a reasonable factfinder
could understand the statement to imply the existence of a
defamatory fact as the basis of Brooks‟s opinion.

Brooks did

not set forth the reasons for his opinion, apart from noting
that Bourne had suffered a dismissal of claims filed in federal
court, and that he might be angry.

The statement regarding a

7

Reserving the right to dispute the transcript provided by
Bourne in the future, defendants in their objection to the
motion to supplement (doc. no. 51), reproduce the relevant
portions of that transcript as follows, deleting certain
comments of Brooks and the Town Meeting Moderator, George
Epstein:
[Brooks]: I‟m trying to be prepared for . . .
Well, I just -- I worry about a Drega situation is
what I‟m talking about, as far as -- . . . having your
head, you know, on your shoulders if you see some
angry dude walking through the door. . . . And I‟m
going to have the stage about four feet away from the
wall so if we do need to jump down behind it we can
. . . . -- we‟ll have a space to cover ourselves to
reload. (raps Aruda [sic] on arm with fist). . .
[Aruda] [sic]: (laughter)
[Brooks]: Probably nothing will happen, but . . . .
51

“Drega situation” is not patently a metaphor or hyperbole, and
is thus dissimilar to Arruda‟s terrorist comment, given Brooks‟s
apparent intent to warn the moderator about Bourne.

Brooks‟s

attempt to defuse his comments with humor or some backpedalling
at the end did not, as a matter of law, render the opinion
incapable of imparting a defamatory meaning.

Accordingly, the

court declines to find that the supplement at issue is futile;
the facts alleged therein are minimally sufficient to state a
cognizable defamation claim as to Brooks, and as to the Town
under a theory of respondeat superior.
Plaintiff has alleged in the proposed supplement only
matters arising after the initial pleading was filed, and the
matters asserted therein provide grounds for plaintiff to assert
further claims of defamation against the same defendants named
in the amended complaint.

The court therefore concludes that

the motion to supplement is properly founded.

Because granting

the motion to supplement will not cause undue delay or unfair
prejudice in this case, and will promote the interests of
justice and judicial efficiency, the court grants the motion to
supplement.

52

IV.

Fees and Costs
Defendants have requested an award of costs and fees for

“having been forced to defend against yet another meritless
action” and for having to file a response to the motion to
supplement.

Finding viable claims in the amended complaint and

the proposed supplement, the court denies defendants‟ request
for costs and fees.

Each party shall bear its own costs and

fees in litigating the matters at issue.

Conclusion
The motion to supplement the amended complaint (doc. no.
50) is GRANTED.

The clerk is directed to docket the

supplemental pleading (doc. no. 50-1) as filed upon the date of
this Order.
The motion to dismiss the amended complaint (doc. no. 30)
is GRANTED IN PART and DENIED IN PART.

The motion is granted,

to the extent that the court dismisses the gross negligence
claim, the oath of office claim, and the retaliation claims.
The motion is also granted as to all defamation claims asserted
in the amended complaint against Brooks and the Town for
Brooks‟s statements.

The defamation claims asserted against

Arruda and the Town for Arruda‟s statements are also dismissed,
except for the claim against Arruda and the Town based on
53

Arruda‟s statement that Bourne altered a town document.

The

motion is denied in all other respects.
The motion to strike (doc. no. 32) is DENIED.
Each party shall bear its own costs and fees in litigating
the matters at issue.
Defendants shall file their answer to the amended complaint
and to the supplement within twenty days of the date of this
order.
The parties filed alternative proposed discovery plans
(doc. nos. 23 and 24) prior to the litigation related to
defendants‟ motion to dismiss.

In light of this order, those

discovery plans are outdated and denied as moot.

The parties

shall file updated proposed discovery plans within twenty days
of the date of this Order.
SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge
June 10, 2011
cc:

Samuel J. Bourne, pro se
Brian J.S. Cullen, Esq.

LBM:nmd

54