UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Stephen A. Dillman

v. Civil No. 04-cv-482-JM

Town of Hooksett

O R D E R

Plaintiff Stephen A. Dillman was terminated from his

employment with the Defendant, Town of Hooksett, New Hampshire

(the “Town”), on May 24, 2002. At the time he was terminated,

Plaintiff was a member of the Hooksett Permanent Firefighters’

Association I.A.F.F., Local 3264 (the “Union”). The Union filed

a grievance on the Plaintiff’s behalf pursuant to a Collective

Bargaining Agreement in force between the Town and the Union.

The dispute was eventually presented to an arbitrator for

resolution. In a decision dated November 8, 2004, the arbitrator

found, among other things, that the Town had just cause to

terminate the Plaintiff. The Union assigned its rights under New

Hampshire Revised Statutes Annotated (“RSA”) 542:8 to seek review

Case 1:04-cv-00482-JM Document 25 Filed 04/11/2006 Page 1 of 4

Dillman v. Town of Hooksett Doc. 25

Dockets.Justia.com
1The statute provides in relevant part:

At any time within one year after the award is made any

party to the arbitration may apply to the superior

court for an order confirming the award, correcting or

modifying the award for plain mistake, or vacating the

award for fraud, corruption, or misconduct by the

parties or by the arbitrators, or on the ground that

the arbitrators have exceeded their powers.

RSA 542:8.

2

of the arbitrator’s decision to the Plaintiff.1

On November 9, 2004, the Plaintiff filed a petition in the

New Hampshire Superior Court, Merrimack County, seeking review of

the arbitrator’s award under RSA 542:8. Since the Plaintiff

claimed in his petition that the Town violated his right to due

process under the Fourteenth Amendment to the United States

Constitution, the Town removed the action to this court on

December 20, 2004. See Document No. 1. On May 27, 2005, the

Town filed a motion to dismiss under Fed. R. Civ. P. 12(b)(1)

(lack of jurisdiction over the subject matter).

In its motion, the Town argues that the Plaintiff lacks

standing under RSA 542:8 to seek to vacate or modify the

arbitration award, notwithstanding the Union’s purported

assignment, because the Plaintiff was not a party to the

arbitration. Plaintiff filed an objection in which he argued

Case 1:04-cv-00482-JM Document 25 Filed 04/11/2006 Page 2 of 4
3

that there was no New Hampshire case law that prohibited the

assignment of the right to petition for review of an arbitrator’s

decision under RSA 542:8. After reviewing the parties’ filings,

the Court agreed that this issue had not been determined under

New Hampshire law. Pursuant to New Hampshire Supreme Court Rule

34, the Court certified the following question of law to the New

Hampshire Supreme Court for consideration:

Whether, under New Hampshire law, including N.H. RSA

273-A, an individual public sector union member may be

assigned his union’s right under N.H. RSA 542:8 to seek

a vacation, confirmation, correction, or modification

of an arbitration award entered in an arbitration

conducted pursuant to a collective bargaining agreement

between the member’s union and his employer.

See Document No. 21.

In an opinion issued on April 7, 2006, the New Hampshire

Supreme Court concluded that “the assignment of a union’s right

under RSA 542:8 to apply to seek confirmation, correction,

modification, or vacation of an arbitration award to an

individual employee is contrary to the public policy articulated

by the legislature when enacting the New Hampshire Public

Employee Labor Relations Act, RSA chapter 273-A.” Dillman v.

Town of Hooksett, No. 2005-564, --- A.2d ---, 2006 WL 889565 at

*4 (N.H. Apr. 7, 2006). In accordance with that finding, the

Case 1:04-cv-00482-JM Document 25 Filed 04/11/2006 Page 3 of 4
4

court answered the certified question in the negative. Id.

Since the New Hampshire Supreme Court has now conclusively

determined that the purported assignment of the Union’s rights

under RSA 542:8 to the Plaintiff is invalid under New Hampshire

law, the Court finds that the Plaintiff does not have standing to

bring this lawsuit. The absence of standing presents a

constitutional defect that deprives this court, and the New

Hampshire state courts, of subject matter jurisdiction. See

Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541-542

(1986) (standing is a jurisdictional question); Hughes v. New

Hampshire Div. of Aero., 152 N.H. 30, 35, 871 A.2d 18, 24 (2005)

(a party’s standing to bring suit is a question of subject matter

jurisdiction that may be raised at any time). Accordingly, the

Town’s motion to dismiss the Plaintiff’s petition under Fed. R.

Civ. P. 12(b)(1) (document no. 15) is granted.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: April 11, 2006 

cc: Richard C. Mooney, Esq.

Thomas B. Merritt, Esq.

Warren D. Atlas, Esq. 

Case 1:04-cv-00482-JM Document 25 Filed 04/11/2006 Page 4 of 4