Alleman v. Montplaisir et al

Filing 16

ORDER denying without prejudice 13 Motion for Judgment on the Pleadings. Motion denied without prejudice to plaintiff's ability to resurrect his arguments in support of a properly supported motion for summary judgment. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
William Alleman
v.

Civil No. 12-cv-282-JL
Opinion No. 2013 DNH 062

Brandon Montplaisir et al.
SUMMARY ORDER
The plaintiff, William Alleman, alleges that he was arrested
and prosecuted without probable cause, and in violation of and
retaliation for his First Amendment rights, by defendant Brandon
Montplaisar, an officer with the Weare Police Department.
Alleman seeks monetary and injunctive relief against Montplaisir,
and the Town of Weare, under 42 U.S.C. § 1983.

Alleman also

seeks to hold Montplaisir, as well as the Police Department, its
Chief, and the Town, liable on a number of tort theories,
including false arrest and imprisonment, malicious prosecution,
and negligent training and supervision.

This court has subject-

matter jurisdiction under 28 U.S.C. §§ 1331 (federal question)
and 1367 (supplemental jurisdiction).
Background
Alleman’s claims arise out of his arrest and prosecution for
his alleged violation of a state-law prohibition on wiretapping
and eavesdropping, N.H. Rev. Stat. Ann. § 570-A:2, I(a), which,
in relevant part, makes it a felony to “wilfully intercept[]

. . . any telecommunication or oral communication.”

Montplaisir

charged that, after he stopped Alleman’s vehicle in Weare one
night in July 2010, Alleman used his cellphone to record his
ensuing conversation with Montplaisir, even after he informed
Alleman that he needed Montplaisir’s consent to do so.

(This

encounter ended with Montplaisir’s issuance of a written warning
to Alleman for a “fog line” violation.)

A few days later,

Montplaisir found a recording of his conversation with Alleman on
a website, which identified the recording source by the handle
“Biker Bill” and Alleman’s phone number.
Based on the foregoing allegations, Montplaisir applied to
the Goffstown District Court several months later, in December
2010, for an arrest warrant for Alleman for violating § 570-A:2,
I(a).

The warrant issued, but was not executed or returned (the

defendants say it was misplaced), so, in February 2011,
Montplaisir resubmitted his application, and a different judge of
the then-Goffstown District Court issued another arrest warrant
for Alleman.

Acting pursuant to this warrant, officers from the

Weare Police Department (not including Montplaisir) arrested
Montplaisir at his home.
After the charge was reduced from a felony to a misdemeanor
under N.H. Rev. Stat. Ann. § 507-A:2, I-a, Alleman, acting
through counsel, moved for judgment of acquittal.

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Alleman

argued, among other things, that (1) he “had a First Amendment
right to record a public official in the course of conducting his
official duties in a public place” and (2) in any event, Alleman
had not violated § 507-A:2, I-a by recording Montplaisir’s oral
communication during the traffic stop, because he had not uttered
that communication under circumstances justifying an expectation
that it was not subject to interception, as necessary to bring an
oral communication within the scope of the statute, see id.
§ 570-A:1, II.
In connection with this motion, Alleman and the State made a
joint written submission of stipulated facts.

These stipulated

facts included that, after Alleman asked Montplaisir whether “he
was legally required” to “hang up his cell phone” during the
traffic stop, Montplaisir said “it was a request,” later adding,
“I’m just respectfully asking you to get off the phone so I can
talk to you.
it be.”

You don’t want to do that; that’s fine, we’ll let

Another stipulated fact was that, when a passer-by told

Montplaisir, “I’m going to be recording what you’re doing,”
Montplaisir responded, “That’s fine.”

In a written order that

“incorporates by reference the stipulated facts,” the Goffstown
Division of the New Hampshire Circuit Court granted Alleman’s
motion for judgment of acquittal, ruling that he was engaged in
activity protected by the First Amendment when he recorded

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Montplaisir.

New Hampshire v. Alleman, No. 438-2011-CR-382 (N.H.

9th Cir. Ct., Dist. Div., Oct. 28, 2011) (citing Glik v.
Cunniffe, 655 F.3d 78 (1st Cir. 2011)).

This action followed.

Applicable legal standard
Pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure, Alleman has moved for judgment on the pleadings on his
constitutional claims against Montplaisir.

In deciding a motion

for judgment on the pleadings, a court must “view the facts
contained in the pleadings in the light most favorable to the
party opposing the motion . . . and draw all reasonable
inferences in [his] favor.”
(1st Cir. 2007).

Curran v. Cousins, 509 F.3d 36, 43

It follows that “the plaintiff may not secure a

judgment on the pleadings when the answer raises issues of fact
that . . . would defeat recovery.”1

5C Charles Alan Wright et

al., Federal Practice & Procedure § 1368, at 251 (3d ed. 2004).
Analysis
Alleman does not argue that the defendants’ answer admits
the allegations that are essential to his federal claims against

1

Alleman appears to misapprehend the applicable standard,
stating more than once in his memorandum that the materials
before the court are “sufficient” to sustain one or more of his
claims against Montplaisir. That is, in general, the showing
required for a plaintiff to survive a motion under Rule 12(c),
not to prevail on one.
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Montplaisir and, based on this court’s review, it does not.
Instead, Alleman argue that Montplaisir is collaterally estopped
from disputing the facts set forth in the joint stipulation
submitted to the Circuit Court.

Alleman further argues that

those facts establish, as a matter of law, Montplaisir’s
liability for Alleman’s arrest and prosecution without probable
cause, and in violation of and retaliation for his First
Amendment rights.

Because the court disagrees with Alleman’s

collateral estoppel argument, it denies his motion for judgment
on the pleadings without reaching his second argument.
The joint stipulation has no collateral estoppel effect
here.

This court applies New Hampshire law in deciding the

collateral estoppel effect of proceedings in New Hampshire
courts.

See, e.g., In re Sonus Networks, Inc. Shareholder

Derivative Litig., 499 F.3d 47, 56 (1st Cir. 2007).

Under New

Hampshire law, “the collateral estoppel doctrine bars a party to
a prior action from relitigating any issue of fact actually
litigated and determined in the prior action.”
162 N.H. 520, 523 (2011).

In re Michael E.,

Even if this court could determine, on

the basis of the pleadings alone, that the State virtually
represented Montplaisir’s interests in the criminal proceedings
so as to put him in privity with the State for collateral
estoppel purposes, but see United States v. Bonilla Romero, 836

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F.2d 39, 43 (1st Cir. 1987) (“[w]hether a party is virtually
representative of a non-party is a question of fact determined on
a case-by-case basis”), the facts in the joint stipulation are
not issues that were “actually litigated and determined” in those
proceedings.

“An issue is not actually litigated . . . if it is

the subject of a stipulation between the parties.”

Restatement

(Second) of Judgments § 27 cmt. e (1981); accord M.A. Crowley
Trucking, Inc. v. Moyers, 140 N.H. 190, 195 (1995) (“Where
. . . a final judgment . . . was based on a stipulation . . . ,
the issue asserted for preclusion was not actually litigated.”)
So neither the joint stipulation, nor the Circuit Court’s order
incorporating it, has collateral estoppel effect here.
Aside from his mistaken collateral estoppel argument,
Alleman does not explain how the court can consider the joint
stipulation in ruling on his motion for judgment on the
pleadings.

Without foreclosing the possibility that the

stipulation constitutes admissible evidence in this action, it
does not fall within the narrow class of materials outside the
pleadings that are nevertheless cognizable in deciding a motion
under Rule 12(c).

See Curran, 509 F.3d at 44.

As Alleman

acknowledges in his memorandum in support of his motion, “[m]ost
material facts” on which he relies “are drawn from” the
stipulation, rather than established by the pleadings or other

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materials the court can consider at this stage.

The facts

established by those materials, in contrast, do not entitle
Alleman to judgment on the pleadings on his claims against
Montplaisir, and Alleman (relying as he does on the facts in the
joint stipulation) does not argue otherwise.

Again, the

allegations admitted in the defendants’ answer do not establish
Montplaisir’s liability on any of Alleman’s claims.
Accordingly, Alleman’s motion for judgment on the pleadings
(document no. 13) is DENIED without prejudice to his ability to
resurrect his arguments in support of a properly supported motion
for summary judgment.2

See Fed. R. Civ. P. 56.

SO ORDERED.

____________________________
Joseph N. Laplante
United States District Judge
Dated:
cc:

April 17, 2013

Stephen T. Martin, Esq.
Robert Joseph Dietel, Esq.
Charles P. Bauer, Esq.

2

While this court normally hears oral argument on
dispositive motions, it decided Alleman’s motion for judgment on
the pleadings based solely on the parties’ written submissions.
In those submissions, neither party asked for oral argument on
the motion and, moreover, the court did not anticipate that oral
argument would be helpful to either the parties or the court
because it was clear from the written submissions that Alleman
was not entitled to the relief he was seeking.
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