BAL Global Finance, LLC v. Gundersen
ORDER denying 7 Motion to Dismiss for Failure to State a Claim. So Ordered by Judge Paul J. Barbadoro.(vln)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
BAL Global Finance, LLC
Civil No. 16-cv-345-PB
Opinion No. 2016 DNH 222
Robert J. Gundersen
O R D E R
BAL Global Finance, LLC has sued Robert Gundersen for
breach of contract and an account stated based on a guarantee
Gundersen executed in connection with a commercial lease.
Gundersen argues in a motion to dismiss (doc. no. 7) that both
claims are barred by the applicable statute of limitations.
This case arises from a commercial equipment lease between
lessee Stump Disposal Systems, Inc. (“Stump”) and lessor Direct
Capital Corp. (“Direct”).
The lease is dated January 4, 2005.
Gundersen guaranteed the lease for Stump on December 13, 2004.
Shortly after the lease was executed, Direct’s interest in the
lease and the guarantee were assigned to BAL’s predecessor,
Fleet Business Credit, LLC.
Stump breached the lease on a date not specified in the
pleadings by failing to make required payments.
with a complaint dated July 14, 2010, suing Stump and Gundersen
in Michigan state court.
On December 21, 2010, BAL obtained a
default judgment against both defendants for $137,598.49.
BAL filed an action to collect on its default judgment in
New Hampshire state court on or about August 24, 2011.
November 21, 2011, the court granted BAL’s motion for summary
judgment and ordered the Michigan judgment to be entered as a
judgment of the court.
For several years thereafter, Gundersen
made minimal monthly payments on the judgment.
however, Gundersen obtained a new lawyer who filed a motion to
dismiss for lack of subject matter jurisdiction.
The basis for
the motion was Gundersen‘s contention that the New Hampshire
court lacked subject matter jurisdiction to enforce the Michigan
action because the Michigan court never properly obtained
personal jurisdiction over Gundersen.
On April 1, 2016, the
state court granted Gundersen’s motion to dismiss.
BAL filed the current action in this court on July 28,
The action reasserts the claims that BAL had originally
asserted in the Michigan state court action.
Gundersen argues that BAL’s claims are barred by the
applicable statute of limitations.
BAL responds by claiming
that its claims are saved from the statute of limitations by
N.H. Rev. Stat. Ann. § 508.10 (“RSA 508:10”).
RSA 508:10 states
that “[i]f judgment is rendered against the plaintiff in an
action brought within the time limited therefor, or upon a writ
of error thereon, and the right of action is not barred by the
judgment, a new action may be brought thereon in one year after
Gundersen replies by arguing that RSA 508:10 has no bearing
on the present action.
As he sees it, RSA 508:10 only permits a
plaintiff to bring a second suit reasserting the same claims
that were dismissed in the first action.
Because the dismissed
New Hampshire action included only claims to enforce the
Michigan judgment rather than the underlying claims that the
Michigan judgment addressed, Gundersen argues, RSA 508:10 simply
does not apply to BAL’s attempt to reassert its contract rights
in a new action.
I am unpersuaded by Gundersen’s argument.
N.H. Rev. Stat.
Ann. § 524-A:2 (“RSA 524-A:2”) provides that, when dealing with
a judgment obtained in another state,
[t]he clerk shall treat the foreign judgment in the
same manner as a judgment of the district or superior
court of this state. A judgment so filed has the same
effect and is subject to the same procedures,
defenses, and proceedings for reopening, vacating, or
staying a judgment of a district or superior court of
this state and may be enforced or satisfied in like
Under this provision, the Michigan judgment must be treated
as if it had been entered in a New Hampshire court.
Michigan judgment had been obtained here and a state court
had later vacated the judgment on personal jurisdiction
grounds, RSA 508:10 plainly would entitle BAL to
reinstitute its underlying action within a year of the date
that the judgment was vacated.
If the Michigan judgment is
treated as if it had been obtained here in the first
instance, as RSA 524-A:2 requires, it follows that RSA
508:10 protects BAL’s right to refile the underlying action
as long as it does so within a year of the date that the
underlying judgment was successfully attached.
Accordingly, BAL has timely filed its new action pursuant
to RSA 508:10.
Gundersen’s motion to dismiss (doc. no. 7) is denied.
United States District Judge
December 19, 2016
Daniel Proctor, Esq.
V. Richards Ward, Jr., Esq.
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