Phaneuf, et al v. NH Board of Registration of Funeral Directors and Embalmers, et al

Filing 18

///ORDER granting 13 Motion to Dismiss for Failure to State a Claim. So Ordered by Judge Steven J. McAuliffe.(vln)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

Arthur O. Phaneuf, et al
v.

Civil No. 12-cv-160-SM

NH Board of Registration of
Funeral Directors and
Embalmers
NOTICE OF RULING / ORDER
Re: Document No. 13, Motion to Dismiss
Ruling: Abstention under Younger v. Harris, 401 U.S. 37 (1971) is
appropriate.

Plaintiffs concede that the first two prongs of the

Younger test are met.

As to the third prong, plaintiffs have not

provided "unambiguous authority" to rebut the presumption "that
state procedures will afford an adequate remedy."

Pennzoil Co. v.

Texaco, Inc., 481 U.S. 1, 15 (1987).
In addition, this case does not fall under any exception to
Younger. Although plaintiffs allege general bias on the part of the
state administrative board, they do not plausibly allege bias on the
part of the New Hampshire Superior Court, which may intervene to
enjoin biased administrative proceedings.

See Thompson v. New

Hampshire Bd. of Medicine, 143 N.H. 107, 110 (1998).

There are,

therefore, no "extraordinary circumstances" that would override
mandatory abstention under Younger.

See Esso Standard Oil Co. v.

Cotto, 389 F.3d 212, 222 (1st Cir. 2004)(bias exception to Younger
abstention was not triggered where state court interlocutory review
of biased administrative proceeding was available).
Because plaintiffs seek only declaratory and injunctive relief,
the case is dismissed.

See Rossi v. Gemma, 489 F.3d 26, 37 (1st Cir.

2007)(dismissal, not stay, is warranted where no money damages are
sought). The Clerk shall close the case.
So ordered.

August 14, 2012

cc:

______________________________
Steven J. McAuliffe
United States District Court

Frank B. Mesmer, Jr., Esq.
Laura E.B. Lombardi, Esq.
James Spencer Culp, Esq.