UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Samuel J. Bourne

v. No. 05-CV-365-JD

Opinion No. 2007 DNH 019

Town of Madison, et al.

O R D E R

This lawsuit arises from a land use dispute between Samuel

J. Bourne and the town of Madison, New Hampshire, its board of

selectmen, John R. Arruda, Clifford A. Graves, and Eileen T.

Crafts, and Robert D. King, a Madison resident who had served on

the town’s road study committee. At the center of the dispute is

an unpaved access road, the “Solomon Harmon Road,” that runs onto

a 50-acre tract that Bourne purchased in 2002. Bourne believes

that he has the right to bar public access to the portion of the

road that runs on his property, while the town believes that it

is a class VI public road that runs concurrent with an easement

allowing public traffic, including, inter alia, snowmobile

traffic. Pending before the court are three motions in limine by

the defendants and one by the plaintiff, each seeking the

exclusion of certain evidence. Also, before the court, is the

defendants’ motion for summary judgment.

Case 1:05-cv-00365-JD Document 74 Filed 02/08/07 Page 1 of 9
1The named plaintiff in the state proceedings is Bedrock

Realty Trust, which is the owner of the 50-acre tract of property

involved in this dispute. Bourne and his wife had created

Bedrock for the purpose of buying that property. After the

dispute with the town began, Bourne’s wife removed herself as a

trustee leaving Bourne as the sole trustee. Thus, Bedrock and

Bourne are essentially one and the same and the court shall refer

to them interchangeably. 

2In their summary judgment filings, the defendants state

that Bedrock filed three actions in the Carroll County Superior

Court in 2003: (1) a petition to relocate the Solomon Harmon

Road; (2) a petition to remove the Solomon Harmon Road’s class VI

road status; and (3) a petition for injunctive relief. Mem. Mot.

Summ. J. at 9. Additionally, the defendants state that two of

Bourne’s neighbors sued Bedrock in superior court in 2002, and

that all four cases were subsequently consolidated. Id. at 9

n.7. Bourne’s objection to the defendants’ motion for summary

judgment acknowledges a consolidated action in state court. 

Bourne states that the lawsuit concerns the town’s claim to use a

right-of-way over his property “based upon the alleged existence

of a Class VI road over [an] easement and upon an alleged

unrestricted easement from Mr. Bourne’s predecessor-in-interest

to the Town.” Obj. to Summ. J. at 2 n.1. 

2

In various filings before this court, both parties have

noted the existence of a parallel proceeding between the same

parties in the Carroll County Superior Court.1 In support of

their motion for summary judgment, the defendants argue that

several of Bourne’s claims are “subsumed by the state court

litigation.” Supp. Mem. Mot. Summ. J. at 15; Mem. Mot. Summ. J.

at 18-21. But the record reveals only scant information

concerning the subject matter, scope, and progress of the state

proceeding,2 and the defendants have stopped short of urging this

Case 1:05-cv-00365-JD Document 74 Filed 02/08/07 Page 2 of 9
3The Rooker-Feldman doctrine arises from two Supreme Court

decisions holding that federal courts do not have the authority

to review state court decisions. See Rooker v. Fidelity Trust

Co., 263 U.S. 413 (1923); D.C. Court of Appeals v. Feldman, 460

U.S. 462 (1983). In Exxon Mobil Corp. v. Saudi Basic Indus.

Corp., 544 U.S. 280 (2005), the Supreme Court greatly limited the

reach of the doctrine, holding that it is only applicable in

cases where “the federal plaintiff seeks redress of an injury

caused by an allegedly erroneous state court decision.” Davison

v. Gov’t of P.R.--P.R. Firefighters Corps, 471 F.3d 220, 222 (1st

Cir. 2006) (citing Exxon, 544 U.S. at 284). 

3

court to abstain from exercising jurisdiction over the case

entirely. 

In the defendants’ reply to Bourne’s objection to the

defendants’ motion in limine to preclude evidence of road

maintenance, the defendants take a more assertive stance, arguing

that some of Bourne’s claims have already been “fully litigated”

and rejected by the state court. Reply at 2. The defendants

argue that the Rooker-Feldman doctrine3 bars Bourne from relitigating those claims in federal court. The court is skeptical

of the application of the Rooker-Feldman doctrine here. Among

other problems, the court sees no indication that there has been

a final judgment in the state proceeding. See Davison v. Gov’t

of P.R.--P.R. Firefighters Corps, 471 F.3d 220, 222 (1st Cir.

2006) (noting that Rooker-Feldman only applies to “final

judgments of state courts”).

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With their above-mentioned reply, the defendants attached

two orders of the superior court that dispose of a variety of

motions that had been filed in the state case. The first order

denies Bedrock’s motions to (1) order the town to “Plow, Sand and

Maintain” the Solomon Harmon Road, (2) order the town to “Use

Original Location Of Deeded Right Of Way/Foot Trail, Not The

Front Yard Lot-19,” (3) “Rule on the Validity of Part Two of the

‘Kelsey to Town of Madison’ Deed,” (4) find the town in contempt

of the court’s previous orders, and (5) order an immediate grand

jury investigation. Bedrock Realty Trust v. Town of Madison,

Nos. 03-E-061, 03-E-114, 03-E-144 (Carroll County Sup. Ct. Jan.

15, 2004). In the same order, the superior court granted the

town’s request for attorney’s fees and costs associated with

Bedrock’s first three motions, and granted the town’s request for

a preliminary injunction enjoining Bedrock “from making any

improvements in the Solomon Harmon Road except in accordance with

the provisions” set forth in an earlier letter from Madison’s

town counsel to Bourne’s former attorney. Id. 

In the second order, the superior court, inter alia, (1)

denied another motion by Bedrock for contempt, (2) denied a

motion by Bedrock to compel the production of documents, and (3)

granted the town’s motion for a protective order. See Bedrock

Realty Trust v. Town of Madison, Nos. 03-E-061, 03-E-114, 03-ECase 1:05-cv-00365-JD Document 74 Filed 02/08/07 Page 4 of 9
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144 (Carroll County Sup. Ct. Aug. 25, 2005). The protective

order stated that the town “shall not be required to respond to

any further pleadings or discovery requests filed by [Bedrock]

after the date of this Order unless [Bedrock] is granted leave to

file same by the Court and said pleadings are subsequently

entered.” Id.

While these two orders suggest that the superior court has

taken a dim view of Bourne’s litigation practices, and perhaps of

the merits of his claims, they do not purport to be final orders

adjudicating Bourne’s claims. To the contrary, the defendants

have represented that a trial in the state proceedings is

scheduled to begin on March 5, 2007, see Reply at 3, thus

indicating that the two orders are merely interlocutory. To the

extent the orders grant and deny injunctive relief, they appear

to govern only temporarily, pending the outcome of the trial.

The defendants’ in limine memoranda, and the attached

superior court orders, have, however, served to better inform

this court as to the subject matter and progress of the state

court proceeding. Based on those filings and on Bourne’s

representations concerning the state court lawsuit, the court

believes that a dismissal or a stay of proceedings may be

warranted under one of the abstention doctrines. See generally

Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716-17 (1996)

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(outlining the different abstention doctrines); see also RiveraFeliciano v. Acevedo-Vilá, 438 F.3d 50, 59-60 (1st Cir. 2006)

(noting that a court may order abstention sua sponte).

Because it is the defendants that have argued that the state

lawsuit precludes this court from considering certain issues and

evidence, the court believes it is the defendants that should

shoulder the burden of establishing the basis for abstention. 

The defendants are accordingly ordered to show cause why this

court should dismiss or stay this case pending resolution of the

state proceedings. In so doing, the defendants should supplement

the record so that the court will have a more informed

understanding of the state court proceedings.

Although the court recognizes that the defendants are free

to urge whatever theory of abstention they feel is most

appropriate under the circumstances, and that the discrete

varieties of abstention are not “rigid pigeonholes into which

federal courts must try to fit cases,” Rio Grande Cmty. Health

Ctr., Inc. v. Rullan, 397 F.3d 56, 68 (1st Cir. 2005) (quotation

marks omitted), the court notes, based on its limited

understanding of the state proceeding, that Colorado River

abstention appears the most readily applicable.

Pullman abstention is ordinarily only appropriate when “a

federal constitutional claim is premised on an unsettled question

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of state law.” Rivera-Feliciano, 438 F.3d at 61 (discussing

abstention under R.R. Comm’n of Texas v. Pullman Co., 312 U.S.

496 (1941)). Although the underlying state claims here are at

least relevant, and arguably important, to the federal claims, it

is unlikely that those state claims -- for breach of contract,

fraud, negligent misrepresentation, and interference with

contractual relations -- involve “unsettled” questions of New

Hampshire law. Younger similarly provides an unlikely basis for

abstention here because it is only aimed at preventing

interference with state criminal proceedings or “coercive” or

“quasi-criminal” civil enforcement proceedings. Rio-Grande, 397

F.3d at 69 (discussing abstention under Younger v. Harris, 401

U.S. 37 (1971)). Finally, Burford abstention is limited to

preventing federal courts “from bypassing a state administrative

scheme and resolving issues of state law and policy that are

committed in the first instance to expert administrative

resolution.” Sevigny v. Employers Ins. of Wausau, 411 F.3d 24,

27 (1st Cir. 2005) (discussing abstention under Burford v. Sun

Oil Co., 319 U.S. 315 (1943)) (quotation marks omitted). 

Contrary to the above doctrines, which are primarily

grounded on “considerations of state-federal comity or on

avoidance of constitutional decisions,” Colorado River rests upon

“considerations of [w]ise judicial administration, giving regard

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to conservation of judicial resources and comprehensive

disposition of litigation.” Moses H. Cone Mem. Hosp. v. Mercury

Constr. Corp., 460 U.S. 1, 14-15 (1983) (quoting Colorado River

Water Conservation Dist. v. United States, 424 U.S. 800, 817

(1976)). It seeks to avoid inefficiencies, duplication of

effort, and inconsistent judgments. Thus, when a district court

is made aware of a parallel, overlapping state proceeding, it

may, in limited circumstances, exercise its discretion to

discontinue the federal proceeding in deference to the state

courts. Rivera-Feliciano, 438 F.3d at 62. 

But, although Colorado River may provide the best rationale

for abstention in this case, it is by no means a clear winner. 

Absent a showing of “exceptional circumstances,” this court has a

“virtually unflagging obligation . . . to exercise the

jurisdiction given” to it. Rio Grande, 397 F.3d at 71 (quoting

Colorado River, 424 U.S. at 818). To prevail under Colorado

River, the defendants must convince this court that the pertinent

factors weigh heavily in favor of abstention. See id. at 71-72

(outlining eight factors relevant to a Colorado River analysis). 

The defendants should also specify the precise relief sought, its

basis, and, if a stay is sought, its appropriate duration. See

Quackenbush, 517 U.S. at 721 (“[W]hile we have held that federal

courts may stay actions for damages based on abstention

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principles, we have not held that those principles support the

outright dismissal or remand of damages actions.”); Currie v.

Group Ins. Comm’n, 290 F.3d 1, 11 n.8 (1st Cir. 2002) (noting

that it “‘is sensible to stay proceedings until an earlier-filed

state case has reached a conclusion’ on appeal”) (quoting Rogers

v. Desiderio, 58 F.3d 299, 302 (7th Cir. 1995)).

Conclusion

The defendants are ordered to show cause why this court

should dismiss or stay this case pending resolution of the

parallel Carroll County Superior Court proceeding. The

defendants may file a memorandum in favor of abstention, together

with any supporting materials, by February 23, 2007. The

plaintiff may file a memorandum in opposition to abstention by

March 9, 2007. The court defers judgment on the motions in

limine and the motion for summary judgment.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

February 8, 2007

cc: Catherine M. Costanzo, Esquire

Brian J.S. Cullen, Esquire

Rachel A. Hampe, Esquire

Richard D. Sager, Esquire

Gerald F. Williamson, Esquire

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