UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Stacy L. Feeney and

Francis P. Feeney

v. Civil No. 05-cv-461-JD

Opinion No. 2006 DNH 047

Edith Kressy et al.

O R D E R

Defendant Ann Flanagan has moved to dismiss this action for

lack of subject matter jurisdiction pursuant to Rule 12(b)(1)

and, in the alternative, to dismiss the plaintiffs’ claims

against her for failure to state a cause of action pursuant to

Rule 12(b)(6) of the Federal Rules of Civil Procedure. The

plaintiffs, Stacy L. and Francis P. Feeney, object. None of the

other defendants has responded to Flanagan’s motion.

Background

This action arises out of the Feeneys’ unsuccessful efforts

to buy a parcel of land in Holderness, New Hampshire, owned by

three sisters, Jean Murphy, Ann Furbush, and Margaret Wood (the

“sellers”). Defendant Edith Kressy, a real estate broker, showed

the property to the Feeneys in late December 2002, pursuant to an

exclusive listing agreement between Murphy and Kressy’s agency,

Kressy Real Estate, Inc. This agreement obligated the owner,

listed as “Furbush, Murphew [sic] and Wood,” to pay Kressy Real

Estate a five percent commission on the sale of the property, but

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was signed only by Murphy. The Feeneys and Kressy, meanwhile,

signed a disclosure form indicating that Kressy was acting as the

Feeneys’ agent.

On January 1, 2003, the Feeneys entered into a written

agreement with Murphy and Furbush to buy the property for

$425,000 (the “purchase and sale agreement”). On January 3,

2003, however, the sellers received an offer to purchase the

property from another buyer, Kevin Croteau, for $500,000. The

offer was communicated through defendant Lisa G. Plowden-Wardlaw,

who had shown the property to Croteau through her co-defendant

Robert Clark, an agent at Lamprey & Lamprey Real Estate, Inc. 

None of these persons had a listing agreement with the sellers

and Wardlaw “was not a licensed agent or broker for Lamprey &

Lamprey at that time.” Compl. ¶ 21. That same day, the sellers

told Kressy that they did not want to pay her five percent

commission, and that Wood would not sign the purchase and sale

agreement as a result.

The sellers also contacted the Feeneys, telling them about

Croteau’s offer and proposing that the Feeneys buy the property

for either $500,000 or $470,000 plus payment of Kressy’s

commission. The sellers also said that they wanted to “get out”

of the purchase and sale agreement. Wardlaw called the Feeneys

the next day and gave them the same news.

On January 6, 2003, the Feeneys called Flanagan, an

investigator with the New Hampshire Real Estate Commission, to

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inquire about Wardlaw’s conduct. Flanagan told them “that

Wardlaw would be violating the rules if she was bringing offers

to a seller without a listing agreement and while her license was

not listed with an authorized agency.” Compl. ¶ 26. Flanagan

then “spoke to the Sellers by telephone and provided advice to

them regarding the transaction” and “reviewed documents from the

Sellers pertaining to the transaction.” Id. ¶¶ 27-28.

The Feeneys allege that “[u]ltimately, based on the illegal

interference from defendants Wardlaw, Clark, Lamprey & Lamprey,

and Flanagan, the Sellers elected to rescind their acceptance of

the Feeneys’ offer to purchase the property.” Id. ¶ 29. They

also allege that, on January 23, 2003, Flanagan “told the Sellers

she had potential buyers who were interested in the property” and

threatened Kressy Real Estate with the loss of its license if it

failed to remove the purchase and sale agreement from the

registry of deeds, where it had been recorded. Id. ¶ 30. The

sellers later sold the property for $565,000, though the

complaint does not identify the purchaser.

Before bringing this lawsuit, the Feeneys filed an action in

state court for specific performance of the purchase and sale

agreement, “but the Court would not enforce the agreement due to

the Statute of Frauds.” Id. ¶ 32. The Feeneys have sued Kressy

and Kressy Real Estate for breach of contract and Plowden, Clark,

Lamprey & Lamprey, and Flanagan for interference with prospective

contractual relations. They have also charged all the defendants

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with violating the New Hampshire Consumer Protection Act, Revised

Statutes Annotated (“RSA”) 358-A.

The Feeneys claim that Flanagan, despite her awareness of

their “prospective contractual relations with the Sellers,” told

them “that she thought they should hold out for a higher price or

perhaps develop the Property themselves” and that “she had people

who were interested in the property.” Compl. ¶¶ 44–45. The

complaint alleges that this “conduct caused the sellers to renege

on their agreement with the Feeneys and such conduct constituted

an illegal interference with the Feeneys’ prospective contractual

relations with the Sellers.” Id. ¶ 46. The Feeneys further

assert that Flanagan violated RSA 358-A through this behavior, as

well as by “abusing her governmental cloak of authority” and

“committing other illegal acts and violations of the real estate

code of ethics.” Id. ¶ 56. Although the Feeneys allege that

Flanagan committed these acts “willfully and knowingly,” they

seek only their “actual damages,” attorneys’ fees, and costs, id.

¶¶ 56-57, rather than multiple damages as provided by the

Consumer Protection Act, see RSA § 358-A:10. 

I. Motion to Dismiss for Lack of Subject Matter Jurisdiction

The Feeneys have invoked this court’s diversity

jurisdiction, characterizing this suit as between citizens of

different states with an amount in controversy in excess of

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$75,000. 28 U.S.C. § 1332(a)(1). The parties agree that the

Flanagans are citizens of Massachusetts while all of the

defendants are citizens of New Hampshire. Flanagan, however, has

questioned whether the amount in controversy in fact exceeds

$75,000, so the Feeneys have “‘the burden of alleging with

sufficient particularity facts indicating that it is not a legal

certainty that the claim involves less than the jurisdictional

amount.’” Stewart v. Tupperware Corp., 356 F.3d 335, 338 (1st

Cir. 2004) (quoting Spielman v. Genzyme Corp., 251 F.3d 1, 5 (1st

Cir. 2001) (further internal quotation marks omitted).

“Although the value of the matter in controversy for

purposes of federal jurisdiction is generally determined by

applying federal standards, the federal court must examine state

law to determine the nature and the extent of the damages to be

awarded.” 16 James Wm. Moore et al., Moore’s Federal Practice, 

§ 107.14[2][g][iii], at 107-77 (3d ed. 1997); see also Stewart,

356 F.3d at 339. Provided a plaintiff’s claims are “colorable,”

the court’s inquiry does not focus on their probable success but

rather on “whether to anyone familiar with the applicable law

[the] claim could objectively have been viewed as worth” the

jurisdictional minimum. Jimenez Puig v. Avis Rent-A-Car Sys.,

574 F.2d 37, 40 (1st Cir. 1978).

A would-be purchaser claiming breach of a contract to convey

real property can recover the difference between the price stated

in the contract and the value of the property at the agreed-upon

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time for conveyance. Lupin v. Rousseau, 98 N.H. 459, 460 (1954);

Hurd v. Densmore, 63 N.H. 171 (1884); 17 Charles Szypszak, New

Hampshire Practice: Real Estate § 3.04[D], at 59 (2003). Based

on their claim that Flanagan caused the sellers to back out of

the purchase and sale agreement, then, the Feeneys argue that

they can recover the difference between the price they would have

paid for the property under the agreement, $425,000, and the

price at which it ultimately sold, $565,000. This figure,

$140,000, surpasses the jurisdictional minimum. Although

Flanagan argues that the allegations of the complaint cannot

support such a claim, see infra, these arguments do not affect

the valuation of the claim for purposes of the jurisdictional

analysis. See, e.g., Coventry Sewage Assocs. v. Dworkin Realty

Co., 71 F.3d 1, 5 (1st Cir. 1995). The court therefore has

subject matter jurisdiction over this action.

II. Motion to Dismiss for Failure to State a Claim

As just noted, Flanagan argues that the complaint fails to

state a claim against her for either tortious interference with

prospective economic relations or violations of RSA 358-A. “A

complaint should not be dismissed unless it is apparent beyond

doubt that the plaintiff can prove no set of facts in support of

his claim that would entitle him to relief.” Stanton v. Metro

Corp., 438 F.3d 119, 123-24 (1st Cir. 2006) (internal quotation

marks omitted). In ruling on a motion to dismiss for failure to

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state a claim, the court must accept the well-pleaded factual

allegations of the complaint as true, drawing all reasonable

inferences in the plaintiff’s favor. Id. at 123. “The court is

free, however, to disregard bald assertions, unsupportable

conclusions, and opprobrious epithets.” Brown v. Credit Suisse

First Boston LLC (In re Credit Suisse First Boston LLC), 431 F.3d

36, 45 (1st Cir. 2005).

A. The Tortious Interference Claim

To prevail on a claim for intentional interference with

prospective economic relations under New Hampshire law, a

plaintiff must show that (1) he or she 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. Hughes v. N.H. Div. of

Aeronautics, 152 N.H. 30, 40-41 (2005) (citing Demetracopolous v.

Wilson, 138 N.H. 371, 373-74 (1994)). Flanagan contends in the

first instance that the Feeneys have failed to allege that she

improperly interfered in any relationship between them and the

sellers. Specifically, she points out that the complaint charges

her only with giving the sellers “advice” on the sale of the

property, which she claims she had the right to do.

“New Hampshire . . . recognizes a privilege for a person to

interfere with a contract by giving honest advice to a third

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person.” Riblet Tramway Co. v. Ericksen Assocs., Inc., 665 F.

Supp. 81, 87 (D.N.H. 1987) (citing Griswold v. Heat Corp., 108

N.H. 119, 126 (1967)). As the Restatement explains, there is

nothing “improper” about intentionally causing a third party to

break off a contractual relationship by giving “honest advice

within the scope of a request for the advice.” Restatement

(Second) of Torts § 772(b) (1979). Although the Feeneys

acknowledge that New Hampshire recognizes this privilege, they

argue that it does not shield Flanagan’s communications with the

sellers because, among other reasons, the complaint does not

allege that they requested any such advice from her.

In accordance with the Restatement rule, this court has

applied the “honest advice” privilege only where the advice was,

first, given in response to a request from the third party and,

second, did not exceed the scope of that request. Riblet Tramway

Co., 665 F. Supp. at 87-88; see also Wiswell v. Strafford County

Dep’t of Corrs., No. 92-cv-553-M (D.N.H. July 23, 1993),

available at http://www.nhd.uscourts.gov; 1A Rudolf Callman,

Callman on Unfair Competition, Trademarks & Monopolies § 9:8, at

9-150 (Louis Altman, ed., 4th ed. 1981 & 2003 supp.). In

addition, New Hampshire treats the privilege to advise as both an

affirmative defense to be proven by the defendant and “a question

of fact to be determined by a weighing of the factors involved.” 

Griswold, 108 N.H. at 125; see also Baker v. Dennis Brown Realty,

Inc., 121 N.H. 640, 644-45 (1981).

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1The fact that the purchase and sale agreement was ruled

unenforceable by virtue of the statute of frauds does not bar the

Feeneys’ claim that Flanagan improperly interfered with their

contractual relationship with the sellers. Restatement (Second)

of Torts § 766 cmt. f (1979).

9

The complaint is silent on whether the sellers requested any

advice from Flanagan or, if so, whether the advice she gave them

was limited to their request. Thus, at this juncture, where the

court must draw all reasonable inferences from the complaint in

the Feeneys’ favor, the court cannot rule as a matter of law that

Flanagan’s communications with the sellers were protected by the

“honest advice” privilege.

Flanagan also contends that her actions could not have

damaged the Feeneys, arguing that the sellers decided to back out

of the deal because they received a better offer, not because of

anything Flanagan told them. The complaint, however, alleges

that the sellers “were trying to determine if they could get out

of” the purchase and sale agreement as a result of the offer from

Croteau, Compl. ¶ 23, but that they did not ultimately decide to

dishonor the agreement until Flanagan and the other defendants

intervened, id. ¶ 29. Generally, “whether the defendant’s

conduct caused the third person not to deal with the other raises

an issue of fact.” Restatement (Second) of Torts § 766 cmt. j

(1979). At this stage in the proceedings, then, the complaint

suffices to state a claim that Flanagan’s allegedly improper

actions brought the Feeneys’ contractual relationship with the

sellers to an end.1

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B. The Consumer Protection Act Claim

The New Hampshire Consumer Protection Act proscribes “any

unfair method of competition or any unfair or deceptive act or

practice in the conduct of any trade or commerce within this

state.” N.H. Rev. Stat. Ann. § 358-A:2 Flanagan argues that the

complaint fails to state a claim against her under the Act

because, inter alia, her alleged actions did not occur “in the

conduct of trade or commerce.” The Act itself provides that

“‘[t]rade’ and ‘commerce’ shall include the advertising, offering

for sale, sale, or distribution of any services and any property

. . . .” Id. § 358-A:1, II. Flanagan’s alleged actions do not

readily fit any of these categories. In their objection to the

motion to dismiss, the Feeneys seize on their allegation that

Flanagan “told the Sellers that she had potential buyers who were

interested in the property,” Compl. ¶ 29, arguing that “the

introduction of a potential buyer to a potential seller”

constitutes “trade or commerce” within the meaning of the Act. 

Mem. Opp’n Mot. Dismiss at 10.

The complaint fails to allege, however, that Flanagan was

“offering” her “services” in the sense that she expected a

commission or some other form of remuneration for passing this

information along to the sellers. As the Supreme Judicial Court

of Massachusetts has observed in construing the nearly identical

definition of “trade or commerce” in that state’s consumer

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2In construing the New Hampshire Consumer Protection Act,

courts in this state often look to the body of law surrounding

the Massachusetts Consumer Protection Act, “which is similar in

many respects to the New Hampshire statute.” Remsberg v.

Docusearch, Inc., 149 N.H. 148, 160 (2003); see also Milford

Lumber Co. v. RCB Realty, Inc., 147 N.H. 15, 17-18 (2001); Chase

v. Dorais, 122 N.H. 600, 602 (1982).

11

protection act,2 “[t]he use of the words ‘distribution of any

services’ in conjunction with words such as ‘sale’ . . .

indicates an intent that the services be distributed in exchange

for some consideration or that there must be other strong

indications that the services are distributed in a business

context.” Planned Parenthood Fed’n of Am., Inc. v. Problem

Pregnancy of Worcester, Inc., 498 N.E.2d 1044, 1051-52 (Mass.

1986). Indeed, absent such a limitation, the reach of the

consumer protection act would extend to conversations between

friends where one says he knows somebody who might be interested

in buying the other’s house, car, or baseball card collection. 

Simply passing on such information, with no expectation of

financial gain, does not amount to “trade or commerce” within the

meaning of RSA 358-A. See Hughes v. DiSalvo, 143 N.H. 576, 578

(1999) (noting purpose of RSA 358-A as “to ensure an equitable

relationship between consumers and persons engaged in business”)

(internal quotation marks omitted). 

Here, although the complaint does not allege why Flanagan

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“told the sellers that she had potential buyers who were

interested in the property,” the Feeneys argue that this act

“ha[d] absolutely nothing to do with her job as an investigator

and the only reasonably [sic] conclusion is that she was seeking

some personal gain through matching the sellers with a buyer for

their property.” Mem. Opp’n Mot. Dismiss at 10. The court

disagrees and, in fact, believes that this conclusion does not

rationally follow from the facts set forth in the complaint. In

addition to telling the sellers of other potential buyers,

Flanagan also advised them to “hold out for a higher price or

perhaps develop the property themselves.” Compl. ¶ 44. Again,

the property ultimately sold for $565,000, considerably more than

either the Feeneys or Croteau had initially offered. The Feeneys

do not explain how Flanagan would stand to reap any financial

benefit if the sellers followed her simple advice to try to get

more money for the property.

Furthermore, the purpose of the New Hampshire Real Estate

Practice Act, which, inter alia, created the state Real Estate

Commission, is “to regulate the practice of real estate brokers

and salespersons in order to ensure that they meet and maintain

minimum standards which promote public understanding and

confidence in the business of real estate brokerage.” N.H. Rev.

Stat. Ann. § 331-A:1. The Commission has the duty to administer

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3The Feeneys’ allegations that Flanagan “abus[ed] her

governmental cloak of authority” and “committ[ed] other illegal

acts and violations of the real estate code of ethics,” Compl. 

¶ 55, are the sort of “bald assertions, unsupportable

conclusions, and opprobrious epithets” disregarded in assessing

whether a complaint states a claim for relief. In re Credit

Suisse First Boston LLC, 431 F.3d at 45.

 

13

this Act. Id. § 331-A:5. In light of these broad purposes, it

is unreasonable to infer that Flanagan was acting outside the

scope of her responsibilities as a Commission investigator by

giving the sellers information suggesting that they had not been

provided with reasonable offers for their property. Moreover,

the Feeneys’ suggestion that Flanagan should have been “working

for them to protect them against any wrongdoing” because they

were the ones who initially complained to her, Mem. Opp’n Mot.

Dismiss at 10, reflects a profound misunderstanding of the

purposes of the Real Estate Commission and, for that matter, the

duties of public employees. Flanagan had a responsibility to

investigate the conduct of the brokers and salespersons involved

in the transaction, N.H. Rev. Stat. Ann. § 331-A:28, I, not to

assist the Feeneys in their effort to acquire the property.

Because the complaint fails to allege facts sufficient to

show that Flanagan engaged in trade or commerce through her

communications with the sellers, it does not state a claim

against her under the New Hampshire Consumer Protection Act.3

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Conclusion 

 For the foregoing reasons, Flanagan’s motion to dismiss

(document no. 15) is GRANTED insofar as it seeks dismissal of the 

Count V of the complaint, the consumer protection act claim

against her. The motion is otherwise DENIED.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

April 20, 2006

cc: Donald F. Hebert, Esquire

Cheryl M. Hieber, Esquire

Anderson S. Kressy, Esquire

Andrew B. Livernois, Esquire

Michael P. Murphy, Esquire

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