Phaneuf v. New Hampshire Board of Registration of Funeral Directors and Embalmers, 040317 NHSUP, 2012-CV-658

Docket Nº:2012-CV-658
Opinion Judge:Richard B. McNamara, Presiding Justice
Party Name:Arthur O. Phaneuf, A.O. Phaneuf & Son Funeral Home and Crematorium, Inc., and Crematorium Society of New Hampshire, Inc. v. New Hampshire Board of Registration of Funeral Directors and Embalmers, Susan A. Simonds, Thomas G. Janosz and Bryan S. Gould, individually and as members of the New Hampshire Board of Registration of Funeral Directors and...
Case Date:April 03, 2017
Court:Superior Court of New Hampshire
 
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Arthur O. Phaneuf, A.O. Phaneuf & Son Funeral Home and Crematorium, Inc., and Crematorium Society of New Hampshire, Inc.

v.

New Hampshire Board of Registration of Funeral Directors and Embalmers, Susan A. Simonds, Thomas G. Janosz and Bryan S. Gould, individually and as members of the New Hampshire Board of Registration of Funeral Directors and Embalmers

No. 2012-CV-658

Superior Court of New Hampshire, Merrimack

April 3, 2017

UNPUBLISHED OPINION

ORDER

Richard B. McNamara, Presiding Justice

Plaintiffs, Arthur O. Phaneuf, a licensed funeral director, and A. O. Phaneuf & Son Funeral Homes and Crematorium Society of New Hampshire, Inc., two corporations controlled by Phaneuf which provide funeral services in New Hampshire (collectively "Phaneuf"), brought this action against the New Hampshire Board of Registration of Funeral Directors and Embalmers (Board") and its individual members Susan A. Simonds ("Simonds"), Thomas A. Janosz ("Janosz") and Bryan S. Gould ("Gould"), (collectively "Board Members"). Plaintiffs have brought an action for declaratory judgment, damages and attorney's fees pursuant to 42 U.S.C. § 1983 and RSA 491:14 and:21. Defendants have moved to dismiss. For the reasons stated in this Order, Defendants' Motion to Dismiss is GRANTED.

I

The procedural posture of this case is unusual. It was brought in 2012, when the Plaintiffs sought a Temporary Restraining Order and Preliminary Injunction based upon the institution of a disciplinary action against him by the Board. In November 2012, this Court denied the request for injunctive relief, noting that the proceedings that the Plaintiff sought to enjoin had already concluded. The Court noted that although the disciplinary proceedings against him had concluded, Plaintiffs had advised the Court that he intended to appeal the results of the termination, making many of the same claims he made in this case, to the New Hampshire Supreme Court. Plaintiffs did appeal to the New Hampshire Supreme Court, and in February 2013 this Court ordered that all proceedings be stayed until resolution of the Supreme Court appeal of the disciplinary action taken by the Board against Plaintiff. In August 2015, the parties advised this Court that the proceedings in the New Hampshire Supreme Court had concluded and the case had been remanded.[1] The Court lifted the stay imposed in the case and ordered that the case proceed in the usual course. However, the case did not proceed. In February 2016, the parties filed an assented Motion to Stay, citing ongoing settlement negotiations. The Court stated that: While the Court encourages resolution of this matter by agreement, it is not possible to simply stay this case indefinitely. The Court recommends that the parties enter into a tolling agreement, to stop the statute of limitations from running and simply dismiss the case without prejudice. The Motion to Stay is denied without prejudice.

(Order, Feb. 8, 2016.)

After what appears to be more fitful and eventually nonproductive negotiations, the Plaintiffs finally filed an Amended Complaint on June 1, 2016. Defendants moved to dismiss; the Court did not act on the Motion because the parties informed the Court they were still negotiating. Another status conference was held on August 30, 2016, and the Court ordered that by October 1, 2016 the parties shall advise the Court if they have been able to reach a resolution and if not, Plaintiffs shall file the further amendment he had proposed at the status conference.

On September 26, 2016 Plaintiffs filed yet another Amended Complaint, adding three individuals who had never been named in the initial action, Morgan J. Edgerly, Randy S. Gordon, Esq. and Carl A. Michaud, Esq. and adding the three individuals who had been sued in 2012, but who had been dropped from the Complaint in June 2016, Simonds, Janosz and Gould. Plaintiffs also added a new count for violation of State and federal antitrust law. By Order of January 9, 2017, the Court granted the Motion to allow Phaneuf to sue the Board members who had been originally named in 2012, but denied the Motion with respect to Edgerly, Gordon and Michaud. The Court also denied the Motion to Amend to add a claim of violation of State and federal antitrust law. Defendants now move to dismiss the entire Amended Complaint. For the reasons stated in this Order, the Motion is GRANTED.

II

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." 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...

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