Vandenberg v. Hamilton

Filing 28

///ORDER granting 14 Motion to Dismiss; denying as moot 25 Motion to Amend 6 Amended Complaint; denying 18 Motion for Order to Show Cause; denying as moot 21 Motion to Strike 20 Reply to Objection to Motion to Dismiss Motion. The Clerk shall enter judgment accordingly and close the case. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
David D. Vandenberg
v.

Civil No. 13-cv-040-JL

Judith E. Hamilton
SUMMARY ORDER
David D. Vandenberg, proceeding pro se, has brought statelaw claims against Judith E. Hamilton.

These claims, for

conversion, malicious prosecution, and intentional or negligent
infliction of emotional distress, arise out of actions that
Hamilton allegedly took “under color of appointment as a guardian
ad litem” in proceedings in New Hampshire state court.

This

court has subject-matter jurisdiction under 28 U.S.C.
§ 1332(a)(1) (diversity), because Vandenberg is a citizen of
Georgia and Hamilton is a citizen of New Hampshire.
Hamilton, also proceeding pro se, has filed a motion to
dismiss.1

See Fed. R. Civ. P. 12(b)(6).

Hamilton argues that,

under New Hampshire law, she is entitled to absolute quasijudicial immunity from liability for her actions as guardian ad

1

While this court customarily hears oral argument on
dispositive motions, as it previously notified the parties, see
Order of May 3, 2013, a review of the parties’ submissions makes
clear that oral argument would not provide assistance to the
court in deciding the motion to dismiss. See L.R. 7.1(d).

litem.

See Surprenant v. Mulcrone, 163 N.H. 529, 530 (2012).

In

Surprenant, the New Hampshire Supreme Court held that a guardian
ad litem is entitled to absolute immunity for her “[c]onduct
intimately related to the judicial process,” since “by virtue of
being appointed by a judge and acting in service of the court,” a
guardian ad litem “acts as a government official when performing
those duties delegated to [her] by the court.”

Id. (quotation

marks omitted).
As Vandenberg acknowledges in his objection to Hamilton’s
motion, she was indeed appointed as a guardian ad litem on behalf
of Vandenberg’s minor child in custody proceedings in Cheshire
County Superior Court.

The amended complaint alleges that,

without probable cause, and with malice, Hamilton “commenced and
prosecuted legal proceedings against [him] under color of
appointment as guardian ad litem,” and that these proceedings
“unlawfully terminated all contact between [Vandenberg] and his
daughter.”

The amended complaint further alleges that, in spite

of her duty as guardian ad litem “to represent the best interests
of the child,” Hamilton “executed numerous legal blunders that
actually impaired the child’s interests.”

The amended complaint

also alleges that, “for services provided under color of law” as
guardian ad litem, Hamilton “unlawfully coerced by threat of
imprisonment” a sum of money from Vandenberg.

2

These claims plainly arise out of Hamilton’s performance of
her duties as guardian ad litem and, as such, are barred by
absolute quasi-judicial immunity.
530.

See Surprenant, 163 N.H. at

In resisting this conclusion, Vandenberg makes two

arguments, both of which are without merit.
First, Vandenberg argues that Hamilton cannot raise her
immunity defense by way of a motion to dismiss under Rule
12(b)(6).

That is incorrect.

Absolute immunity is an

affirmative defense that can be raised, and adjudicated, on a
motion to dismiss under Rule 12(b)(6).

See, e.g., Slotnick v.

Garfinkle, 632 F.2d 163, 166 n.2 (1st Cir. 1980).
Second, Vandenberg argues that, while Hamilton “was
appointed on two occasions early in the custody matter,” she “was
also discharged from her appointment by operation of law on
February 9, 2006 and November 15, 2006,” after which she
“returned to the case sua sponte and without valid appointment.”
But the records of the custody proceedings tell a different
story, and this court--which can consider the records in deciding
the motion to dismiss--is not required to accept Vandenberg’s
contrary version of the Superior Court’s actions.

See Katz v.

McVeigh, ___ F. Supp. 2d ___, 2013 DNH 037, 5-6 (citing Rederford
v. U.S. Airways, Inc., 589 F.3d 30, 35 n.4 (1st Cir. 2009)),
appeal docketed, No. 13-1453 (1st Cir. Apr. 16, 2013).

3

In particular, in response to a motion by Hamilton, the
Superior Court clarified a prior order, dated October 27, 2008,
by appointing Hamilton as guardian ad litem “retroactively to
November 16, 2006,” i.e., the day after Vandenberg says that
Hamilton “was discharged” as guardian ad litem.

So, even after

that point, Hamilton was acting as a duly appointed guardian ad
litem, at least as far as the appointing court was concerned.
Vandenberg argues that this decision in effect “allowed
[Hamilton] to remain on the case without appointment, contrary to
law.”

Under the Rooker-Feldman doctrine, however, this court

lacks jurisdiction to hear a challenge to the legality of the
Superior Court’s decisions as to Hamilton’s status as guardian ad
litem.

See Young v. Murphy, 90 F.3d 1225, 1232 n.3 (7th Cir.

1996) (ruling that plaintiff’s challenge to state court’s
appointment of guardian ad litem as inconsistent with state law
was “exactly [the] federal case-by-case review of the adequacy of
state civil proceedings that Rooker-Feldman precludes”).
Vandenberg also argues that Hamilton is collaterally
estopped from claiming that she had a valid appointment as a
guardian ad litem, by (a) an order of the Superior Court
declining her requests for fees and (b) an order of the New
Hampshire Guardian ad Litem Board.

As an initial matter, though,

it is doubtful that, following the appointment of a guardian ad

4

litem by a court, subsequent decisions (particularly by another
tribunal) that the appointment was invalid would have any effect
on her immunity for her prior actions, i.e., those taken while
her appointment was in effect.

Indeed, Vandenberg’s amended

complaint is premised on the notion that Hamilton misused her
authority as a court-appointed guardian ad litem to his
detriment, so it seems inconsistent, to say the least, for him to
claim, in response to her motion to dismiss, that she in fact
lacked any such appointment in the first place.
In any event, neither of these orders, at least in the
truncated form in which Vandenberg has presented them to this
court, decides the validity of Hamilton’s appointment as guardian
ad litem during the relevant time period.

Instead, they

(a) granted a motion by Hamilton to exclude any evidence of her
billing or fees (from what proceeding they were excluded is
unclear), noting that she had been discharged as part of an order
of February 2012, which was some 5 1/2 years after Vandenberg
claims her discharge occurred, and (b) affirmed the dismissal of
a complaint that Vandenberg filed against Hamilton with the state
Guardian ad Litem Board, noting that “[t]he alleged actions were
undertaken at a time when the guardian ad litem was not certified

5

by the board”--but without identifying that time.2

The party

urging the application of collateral estoppel has the burden of
proving it, see Foley v. Town of Lee, 863 F. Supp. 2d 130, 135
(D.N.H. 2012) (citing Restatement (Second) of Judgments § 27 cmt.
f (1980)), and Vandenberg has not carried that burden here.
Accordingly, because Hamilton’s affirmative defense of
absolute quasi-judicial immunity is “definitively ascertainable,”
and establish[ed] . . . with certitude” from the amended
complaint and the records of her appointment as guardian ad litem
by the Superior Court, her motion to dismiss3 is GRANTED.
Citibank Global Mkts., Inc. v. Rodriguez Santana, 573 F.3d 17, 23
(1st Cir. 2009).

In light of the dismissal, Vandenberg’s motion

to amend his complaint,4 which seeks only to replace his prayer
for “punitive damages” with one for enhanced compensatory
damages, is DENIED as moot.

2

Vandenberg also argues that, following “an investigative
hearing,” the New Hampshire House of Representatives found that
Hamilton “returned to the case sua sponte and without valid
appointment.” Putting aside the fact that the materials that
Vandenberg has submitted show only “findings” of a “Committee on
Redress of Grievances,” and no action by the full House,
“[l]egislative hearings are not judicial proceedings, and
conclusions reached thereby are not res adjudicata,” under New
Hampshire law. New Hampshire v. Me. Cent. R.R., 77 N.H. 425, 427
(1914).
3

Document no. 14.

4

Document no. 25.
6

Vandenberg’s “motion for an order to show cause,”5 which
asks for a sanction against Hamilton on the ground that one of
the statements in her answer lacks evidentiary support, see Fed.
R. Civ. P. 11(b)(3), is DENIED.

As Hamilton points out in her

objection, her answer does not, in fact, state that Vandenberg
was sanctioned for contempt, by incarceration or otherwise, by
the Superior Court.
Finally, Vandenberg’s motion to strike6 Hamilton’s reply
memorandum on the motion to dismiss is DENIED as moot in light of
this court’s order granting her leave to reply, and Vandenberg
leave to sur-reply.

Order of May 3, 2012.

The Clerk shall enter

judgment accordingly and close the case.
SO ORDERED.

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

May 28, 2013

David D. Vandenberg, pro se
Judith E. Hamilton, pro se

5

Document no. 18.

6

Document no. 21.
7