UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Samuel J. Bourne

v. Civil No. 05-cv-365-JD

Opinion No. 2010 DNH 050

Town of Madison, et al.

O R D E R

After all but one of his claims were resolved through

summary judgment and while his own motion and the defendants’

motion for summary judgment were pending, Samuel Bourne moved for

leave to amend his complaint. The proposed amended complaint

includes new allegations to support both the remaining claim and

the claims that have been resolved against Bourne. Bourne also

seeks to add a defendant to and to remove a defendant from the

remaining claim and to add a defendant to several of the

dismissed claims. The defendants object to the motion to amend.

Standard of Review

In general, “[t]he court should freely give leave [to amend

a complaint] when justice so requires.” Fed. R. Civ. P.

15(a)(2). Under that standard, leave to amend should be granted

unless the amendment would be futile or would reward undue delay. 

Abraham v. Woods Hole Oceanographic Inst., 553 F.3d 114, 117 (1st

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Cir. 2009). In addition, a motion to amend may be denied for the

moving party’s bad faith, dilatory motive, repeated failure to

cure deficiencies, and undue prejudice to the opposing party. 

Foman v. Davis, 371 U.S. 178, 182 (1962). 

“The bar for a plaintiff tendering an amended complaint is

higher after a motion for summary judgment has been filed, as the

plaintiff must demonstrate that the proposed amendments were

supported by substantial and convincing evidence.” Adorno v.

Crowley Towing & Transp. Co., 443 F.3d 122, 126 (1st Cir. 2006)

(internal quotation marks omitted); accord Brooks v. AIG

SunAmerica Life Assurance Co., 480 F.3d 579, 590 (1st Cir. 2007). 

Further, although the “court has the power to revisit prior

decisions . . . , as a rule courts should be loathe to do so in

the absence of extraordinary circumstances such as where the

initial decision was clearly erroneous and would work a manifest

injustice.” Christianson v. Colt Indus. Operating Corp., 486

U.S. 800, 817 (1988) (internal quotation marks omitted). A

defendant “should not be made to shoot at a continuously moving

target.” Brooks, 480 F.3d at 590.

Discussion

In his motion, Bourne seeks leave to amend his remaining

claim, for intentional interference with contractual relations,

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to include “updates,” to add Robert D. King as a defendant, and

to remove Eileen T. Crafts as a defendant. Bourne contends that

his proposed amendments are necessary because of an oversight by

his previous counsel and because of new evidence, some of which

he asserts was concealed by the defendants. The defendants

object that the proposed amended complaint includes more changes

than Bourne reveals in his motion, that the motion to amend is

too late, and that the claim of intentional interference with

contractual relations against King is futile.

A. Amendments to Dismissed Claims

As the defendants note, in addition to the changes to his

claim for intentional interference with contractual relations,

Bourne’s proposed amended complaint includes new allegations to

support the claims that have been resolved against him and seeks

to add King as a defendant to several of the dismissed claims. 

All of Bourne’s claims, other than his claim for intentional 

interference with contractual relations, were resolved against

him through summary judgment. Those claims were thoroughly

litigated in motion practice, which included repeated motions for

reconsideration. Bourne provides no basis for allowing the

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amendments he proposes for the dismissed claims.1 Therefore,

Bourne has not shown extraordinary circumstances that would

support leave to revive the claims that have been decided against

him. 

B. Amendments to Claim for Intentional Interference with

Contractual Relations

This case was filed four and a half years ago. It was

stayed for a period of time while the parties pursued litigation

in state court. After the state court matter was resolved, trial

in this case was scheduled to begin in January, 2010. The trial

was continued to provide time for the court to consider Bourne’s

motion for summary judgment on the remaining claim of intentional

interference with contractual relations. The defendants were

also permitted to file a motion for summary judgment on that

claim. The motions for summary judgment are pending. Therefore,

Bourne must meet the heightened standard to amend his complaint

1In fact, Bourne’s motion for leave to amend fails to

address the additional allegations in his proposed amended

complaint, suggesting instead that he only seeks leave to amend

the single remaining claim of intentional interference with

contractual relations.

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at this late date, which requires a showing that the proposed

amendments are supported by substantial and convincing evidence.2

Bourne seeks leave to add Robert King as a defendant to the

intentional interference with contractual relations claim and to

remove Eileen Crafts from that claim. In support, Bourne states

that a memorandum from King to Bourne’s neighbor, Roger Cyr,

which he discovered during a deposition taken on June 29, 2009,

as part of a state court action, “clearly spells out all of the

interference to be implemented by the other defendants selectmen

[sic] John Aruda, and defendant selectmen [sic] Clifford Graves.” 

Bourne provided a copy of the memorandum to support his motion.

“‘To establish liability for intentional interference with

contractual relations, a plaintiff must show: (1) the plaintiff

had an economic relationship with a third party; (2) the

defendant knew of this relationship; (3) the defendant

intentionally and improperly interfered with this relationship;

and (4) the plaintiff was damaged by such interference.’” Singer

Asset Finance Co., LLC v. Wyner, 156 N.H. 468, 478 (2007)

2The defendants also argue that the claim against King is

barred by the statute of limitations and that an amendment now

would cause an unwarranted delay. The defendants, however, fail

to address Bourne’s charge that the evidence he relies on was

previously concealed by the defendants. As a result, the

defendants have not sufficiently developed those arguments to

support their objection.

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(quoting Hughes v. N.H. Div. of Aeronautics, 152 N.H. 30, 40-41

(2005)). Factors to be considered in determining whether an

actor’s interference is improper are: 

(a) the nature of the actor’s conduct, 

(b) the actor’s motive, 

(c) the interests of the other with which the actor’s 

conduct interferes, 

(d) the interests sought to be advanced by the actor, 

(e) the social interests in protecting the freedom of 

action of the actor and the contractual interests of 

the other, 

(f) the proximity or remoteness of the actor’s conduct 

to the interference and

(g) the relations between the parties.

Roberts v. Gen. Motors Corp., 138 N.H. 532, 540-41 (1994)

(quoting Restatement (Second) of Torts, § 767 (1977)).

The dispute between Bourne and the town involves the use and

maintenance of a roadway, previously known as the Solomon Harmon

Road. The town asserted that the roadway was a Class VI road,

available for public use, while Bourne asserted that it was his

property. In the course of the state litigation, the town

obtained court orders that limited Bourne’s improvements to the

roadway. Eventually, the state court held that the roadway was

an easement that allowed public use for only six enumerated

activities, which did not include snowmobile or other motor

vehicle use. The state court also held that evidence was lacking

to show that a public highway was established by prescriptive use

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and that neither public necessity nor convenience required laying

out the Solomon Harmon Road as a Class VI road. 

In this case, Bourne alleges that the defendants, the

Madison Board of Selectmen, John R. Arruda, Clifford A. Graves,

and Eileen T. Crafts, “wrongfully interfered with the

installation of electrical power service and road maintenance

being performed by contract by [Bourne] and third parties (viz.,

New Hampshire Electric Cooperative and various road maintenance

contractors).” 2d Am. Compl. ¶ 70. Bourne proposes to add King

as a defendant to the claim and to add allegations that the

defendants compelled Bourne to litigate the legal status of the

roadway to prove that their interference was unlawful. He also

seeks to allege that King secretly met and conspired with town

officials to harass Bourne by revoking his building permit, by

denying subdivision approval, by attempting to arrest him, and by

interfering with his right of way.

The memorandum on which Bourne relies to support his

amendment was written by King to Bourne’s neighbor, Roger Cyr. 

In the memorandum, King urges Cyr to raise certain issues during

Cyr’s appointment at the next selectmen’s meeting. The actions

King suggests are to ask the selectmen to fine Bourne if he

obstructs the roadway, to work with a representative to change

the law prohibiting dual use of Class VI roads by snowmobiles and

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highway vehicles, to adopt a policy not to issue permits for

construction on Class VI roads unless the owner agrees to

maintain conditions to allow snowmobile use and to give public

notice before issuing permits, to require prior approval for

improvements to such roads, to address the issue of allowing

utility poles on Solomon Harmon Road, and to develop a town

policy to limit road improvements and construction of utility

lines. King also urged Cyr to get other Snowmobile Club members

involved in the issue.

As such, the memorandum sets forth King’s views about the

use of the Solomon Harmon Road and advocates for his position

that the road should be regulated in a way that would allow

public snowmobile use. King apparently hoped to recruit Bourne’s

neighbor, Cyr, to his point of view and also hoped that Cyr would

motivate others to adopt that position. Nothing in the

memorandum suggests improper activity. In the absence of

substantial and convincing evidence to support his claim against

King, Bourne has not met his burden to be permitted to amend the

complaint at this point in the case. 

Bourne also sought leave to remove Eileen T. Crafts as a

defendant to the intentional interference with contractual

relations claim. That part of his motion is deemed to be brought

pursuant to Federal Rule of Civil Procedure 41(a)(2). Therefore,

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the claim of interference with contractual relations against

Crafts is dismissed without prejudice.

Conclusion

For the foregoing reasons, the plaintiff’s motion to amend

(document no. 195) is denied.

The claim of intentional interference with contractual

relations against Eileen T. Crafts is dismissed without

prejudice.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

March 23, 2010

cc: Samuel J. Bourne, pro se

Brian J.S. Cullen, Esquire

Richard D. Sager, Esquire

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