Fulford v. Burndy Corp.
Decision Date | 02 December 1985 |
Docket Number | No. 85-499-L.,85-499-L. |
Citation | 623 F. Supp. 78 |
Parties | Roy A. FULFORD, Jr. v. BURNDY CORPORATION. |
Court | U.S. District Court — District of New Hampshire |
David B. Shepatin, Littleton, N.H., for plaintiff.
David Wolowitz, Sanders & McDermott, P.A., Hampton, N.H., Thomas Royall Smith, Siegel, O'Connor, Schiff, Zangari & Kainen, P.C., Boston, Mass., for defendant.
ORDER ON MOTION TO DISMISS
Plaintiff commenced suit by a writ returnable the first Tuesday of September, 1985 in Grafton County Superior Court. The defendant had the case removed to this court. This is a 28 U.S.C. §§ 1332(a)(1), 1441(a) and (b) diversity action.
Plaintiff has sued in five counts, three counts in assumpsit and two counts in case.
The gist of his actions are as follows. The plaintiff entered into an employment contract with the defendant on or about March 28, 1979.
On June 12, 1982 plaintiff's minor son was bitten by a dog and injured while on the property of Gerald Fenner. The dog was owned by Claude Burgess and Helen Burgess.
On February 27, 1985 plaintiff through counsel, wrote to Gerald Fenner, Claude Burgess and Helen Burgess advising them that the plaintiff considered them liable for the dog-bite injuries that his son had received. At this time Gerald Fenner was employed by the defendants as plaintiff's supervisor.
The plaintiff further alleges that:
A motion to dismiss is one of limited inquiry. The standard for granting a motion to dismiss is not the likelihood of success on the merits, but whether the plaintiff is entitled to offer evidence to support his claim. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). The complaint should not be dismissed unless it appears that appellant could "prove no set of facts in support of his claim which would entitle him to relief". Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404 (1969), reh'g. denied 396 U.S. 869 (1969).
The material facts alleged in the complaint are to be construed in the light most favorable to the (non-moving party), and taken as admitted with dismissal ordered only if the (non-moving party) is not entitled to relief under any set of facts they could prove. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848, 23 L.Ed.2d 404 (1969) reh'g. denied 396 U.S. 869, 90 S.Ct. 35, 24 L.Ed.2d 123 (1969); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Harper v. Cserr, 544 F.2d 1121, 1122 (1st Cir. 1976). Upon review of a complaint before receipt of any evidence, the issue is not whether the (non-moving) party will ultimately prevail or is likely to prevail, but is whether the (non-moving) party is entitled to offer evidence to support the claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).
The New Hampshire Supreme Court in Monge v. Beebe Rubber Co., 114 N.H. 130, 316 A.2d 549 (1974) tackled the issue of wrongful termination of an employment at will which deviated from what was considered up to then the prevailing law. In commenting on this at pages 132 and 133, 316 A.2d 549, the court stated the the following quite emphatically.
As recently as June, 1984 the New Hampshire Supreme Court in Bergeron v. Travelers Ins. Co., ...
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