Bourget v. Hillsborough County 4H Foundation, Inc. et al

Filing 112

ORDER denying without prejudice 109 Motion to Dismiss for want of prosecution. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

Joseph Bourget d/b/a
Bourget Amusement Company,
Plaintiff
v.

Case No. 11-cv-88-SM
Opinion No. 2017 DNH 012

Hillsborough County
4H Foundation, Inc.,
Defendant

O R D E R

This civil case has been bogged down for quite some time
now due to a chronic health condition that allegedly keeps
plaintiff home-bound.

While evidence of plaintiff’s condition

has been vague (counsel’s proffer of general impressions and
descriptions of symptoms by Dr. Ann Marie Joyce), the parties
seem to accept that plaintiff has not been able to appear in
court, and that he likely will not be able to do so for an
extended period.

The case is ready for trial and would have

been tried two years ago, but for plaintiff’s chronic condition.

The court invited the parties to show cause why the case
should not be administratively closed, subject to reopening upon
motion of either party should plaintiff’s condition abate
sufficiently to permit his trial participation.

Defendant

understandably objected to an administrative closure, given the
prospect of indefinite exposure to liability and no reliable end
point in sight.

Defendant now seeks to move the case to resolution, having
filed a motion to dismiss for want of prosecution (document no.
109).

Plaintiff has objected, pointing out that the delay in

this case springs from his chronic health condition and is not
due to any untoward or culpable conduct on his part.

Dismissal for want of prosecution is plainly not warranted
here.

The case is not foundering for lack of participation in

discovery, or failure to prepare, or due to obstruction or
neglect, or failure to comply with case management orders.

See,

e.g., Ortiz-Anglada v. Ortiz-Perez, 183 F.3d 64 (1st Cir. 1999);
Esposito v. Home Depot U.S.A., Inc., 590 F.3d 72 (1st Cir.
2009).

The delay is entirely attributable to plaintiff’s

claimed (and unchallenged) inability to appear (and testify) at
trial.

At this point, there is no reason to think that plaintiff’s
condition is likely to improve in the foreseeable future.

No

reason has been offered to think so by the plaintiff, or his
counsel, or his physician.

Although the medical “evidence,”

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such as it is, is vague, general, and unenlightening, because
the parties do not doubt the health conditions underlying the
delay, neither will the court.

So, accepting that plaintiff is chronically ill and
effectively home-bound, and that he will not likely be able to
attend trial in the reasonably near future, and recognizing that
the delay has now moved beyond what is acceptable, and that
defendant is entitled to have the claims addressed and finally
resolved, it is apparent that other measures are required.

The case shall be reset for trial in June of 2017.

Any

party wishing to do so may arrange, or if necessary notice, and
take a testimonial deposition of plaintiff at his home before
April 28, 2017.1

If plaintiff has sufficiently recovered by June

to permit him to attend and/or testify at trial he may of course
do so.

If not, his testimonial deposition will be admissible as

if he was unavailable, and the case will proceed in his absence.
A similar solution in a similar situation was developed in Field
v. American-West African Line, Inc., 154 F.2d 652 (2d Cir. 1946)
(L. Hand, Swan and Phillips, JJ.).

As in Field, trial upon

1

Nothing in this record suggests that plaintiff cannot be
deposed in his own home due to any limitation arising from his
health condition.

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depositions in this extensively delayed civil case fairly
balances plaintiff’s interest in presenting his case as fully as
possible, and defendant’s interest in having the matter
resolved.

Conclusion
Trial will be reset for June 2017.

Any party may notice

and take a testimonial deposition from plaintiff before April
28, 2017.

The trial will proceed as scheduled either with

plaintiff’s attendance or in his absence.

The motion to dismiss

for want of prosecution (document no. 109) is denied, albeit
without prejudice.

SO ORDERED.

____________________________
Steven J. McAuliffe
United States District Judge
January 19, 2017
cc:

Paul F. Cavanaugh, Esq.
Heather M. Gamache, Esq.
William F. Burke, Esq.
Samantha D. Elliott, Esq.

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