Coutu v. State, 031517 NHSUP, 2015-CV-488

Docket Nº:2015-CV-488
Opinion Judge:Richard B. McNamara, Presiding Justice
Party Name:Michael Coutu v. State of New Hampshire, New Hampshire Bureau of Securities Regulations
Case Date:March 15, 2017
Court:Superior Court of New Hampshire

Michael Coutu


State of New Hampshire, New Hampshire Bureau of Securities Regulations

No. 2015-CV-488

Superior Court of New Hampshire, Merrimack

March 15, 2017



Richard B. McNamara, Presiding Justice

Plaintiff, Michael Coutu ("Coutu"), has brought an action against the Defendants, State of New Hampshire and Department of Securities Regulation (collectively the"Department"), alleging breach of an agreement pursuant to which he would provide services to the State of New Hampshire and the New Hampshire Department of Securities Regulation. The original Complaint, filed on September 8, 2015, alleged only breach of contract. Plaintiff amended his Complaint to add claims for violation of the New Hampshire Consumer Protection Act and the Whistleblower Protection Act, RSA 275-E. Defendants moved to dismiss those claims and the Motion was granted. Plaintiff has now moved to amend to add a count for fraud and Defendant has moved to dismiss on the ground that the amendment does not state a cause of action. For the reasons stated in this Order, Defendant's Motion to Dismiss is DENIED.


When ruling on a Motion to Dismiss, the Court must determine whether the allegations stated in the Complaint "are reasonably susceptible of a construction that would permit recovery." Plaisted v. LaBrie, 165 N.H. 194, 195 (2015); Plourde Sand & Gravel v. JGI Eastern, Inc., 154 N.H. 791, 793 (2007) (quoting Berry v. Watchtower Bible & Tract Soc'y of N.Y., Inc., 152 N.H. 407, 410 (2005)). In doing so, the Court must "assume all facts pled in the plaintiff's writ are true, and . . . construe all reasonable inferences drawn from those facts in the plaintiff's favor." Id. (quoting Berry, 152 N.H. at 410). However, the Court need not "assume the truth of statements . . . that are merely conclusions of law" not supported by predicate facts. Gen. Insulation Co. v. Eckman Constr., 159 N.H. 601, 611-12 (2010). The Court tests these facts against the applicable law and will deny the motion to dismiss "[i]f the facts as alleged would constitute a basis for legal relief." Starr v. Governor, 148 N.H. 72, 73 (2002).

Plaintiff alleges a breach of contract in Count I of the Amended Complaint. He alleges that on or about September 9, 2015, he entered into a Consulting Agreement (the "Agreement") with the Department by which he agreed to provide certain services under the direction of the Secretary of State and the Director of the Department of Securities Regulation. (Amended Compl. ¶¶ 13-15.) He alleges that he performed the services required of him under the contract until its termination on May 28, 2015. (Id. at ¶ 19.) He alleges that although he performed the services required, the Department declined to pay his invoices for his work. (Id. at ¶ 32.)

Count II of the Amended Complaint, which asserts a claim for fraud, incorporates the facts alleged in Count I for breach of contract. Essentially, Coutu alleges that the Department made a conscious decision not to pay him even though it knew he was performing work and even though the Department was continuing to request and obtain services from the Coutu: 36. [Secretary of State] William Gardner testified that based upon the exchange, he concluded...

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