UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Nicole Corin Christian

v. Civil No. 05-cv-356-JD

Opinion No. 2006 DNH 140

Travis W. Anderson, et al.

O R D E R

Previously, the court granted in part and denied in part a

motion to dismiss filed by defendants Travis W. Anderson and Paul

Boucher and interpreted Nicole Corin Christian’s amended

complaint to allege only federal claims. The court directed

Christian to file a motion for leave to amend her complaint if

she intended to bring state law claims. Christian has filed a

motion for leave to amend, adding several state law claims. 

Anderson and Boucher object to Christian’s motion for leave to

amend on the ground that the new claims against them are futile.

Discussion

Christian moves for leave to add state law claims of

assault, harassment, and invasion of privacy; abuse of process;

malicious prosecution, and intentional infliction of emotional

distress against Anderson. She moves for leave to add claims of

negligence and negligent infliction of emotional distress against

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all of the defendants. She also moves to add a claim of civil

conspiracy against Anderson and Boucher. Anderson and Boucher

oppose the motion on the ground that the amendments are futile

because Christian’s new claims are barred by the statute of

limitations, a lack of jurisdiction, her failure to show that the

underlying criminal proceeding terminated in her favor, the

Rooker-Feldman doctrine, res judicata, and failure to state a

claim.

Standard of Review

“Consent to file amended pleadings shall be freely given

when justice so requires unless the amendment would be futile or

reward undue delay.” Adorno v. Crowley Towing & Transp. Co., 443

F.3d 122, 126 (1st Cir. 2006) (internal quotation marks and

citations omitted). Futility is assessed on the same standard as

a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6). Id. Therefore, the court “accept[s] as true all wellpleaded facts alleged by the plaintiffs in their complaint and

draw[s] in their favor all reasonable inferences fitting their

stated theories of liability.” Platten v. HG Bermuda Exempted

Ltd., 437 F.3d 118, 127 (1st Cir. 2006).

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1The court discussed the application of the relation-back

principle under Rule 15(c)(2) in the previous order.

3

A. Statute of Limitations

Anderson and Boucher argue that Christian’s new claims are

barred by New Hampshire’s three-year statute of limitations which

expired on October 7, 2005. See RSA 508:4, I. The defendants do

not address Federal Rule of Civil Procedure 15(c)(2) which

provides that “a[n] amendment of a pleading relates back to the

date of the original pleading when . . . the claim or defense

asserted in the amended pleading arose out of the conduct,

transaction, or occurrence set forth or attempted to be set forth

in the original pleading.”1 New allegations that add a new legal

theory relate back to the original pleading if the amendment

pertains to the same episode as alleged originally. Mayle v.

Felix, 545 U.S. 644, 125 S. Ct. 2563, 2572 (2005) (discussing

Tiller v. Atl. Coast Line R. Co., 323 U.S. 574, 580-81 (1945)).

Christian’s state law claims all arise out of the same

episode and factual allegations that were pled in support of her

federal claims. Therefore, under Rule 15(c)(2), the new state

law claims relate back to the filing date of the original

complaint, which was within the limitations period. The claims

are not barred by the statute of limitations.

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B. Jurisdiction and Immunity

Anderson and Boucher assert that this court lacks “pendant

jurisdiction” because the claims all arise from their actions

taken in their official duties. The defendants’ argument is not

clear. To the extent the defendants argue that the Eleventh

Amendment bars claims for money damages against them in their

official capacity, which would be deemed to be claims against the

State of New Hampshire, they are correct. See, e.g., Pennhurst

St. Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-01 (1984);

Redondo-Borges v. H.U.D., 421 F.3d 1, 7 (1st Cir. 2005); Carter

v. Lindgren, 2006 WL 2850571 at *6 n.4 (D.R.I. Sept. 29, 2006);

State v. Brosseau, 124 N.H. 184, 189-90 (1983) (discussing

sovereign immunity under New Hampshire law). Christian, however,

brings her claims against the defendants in both their individual

and official capacities. The defendants have not shown that the

Eleventh Amendment would bar claims brought against them in their

individual capacities.

With respect to Boucher, however, the federal claims against

him were previously dismissed based on quasi-judicial immunity

that protects bail commissioners from liability for their actions

in that capacity. Quasi-judicial immunity, under state law, also

bars Christian’s state law claims against Boucher. Briand v.

Morin, 2003 WL 540185 at *1 (D.N.H. Feb. 25, 2003); see also

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Gould v. Dir., N.H. Div. of Motor Vehicles., 138 N.H. 343, 346

(1994). Therefore, Christian’s motion to amend is denied as to

her claims against Boucher because those claims are futile.

C. Termination of Underlying Criminal Proceeding

Anderson argues that Christian’s claims of abuse of process

and malicious prosecution are barred because she cannot show that

the underlying criminal proceeding terminated in her favor as

required by Heck v. Humphrey, 512 U.S. 477, 484 (1994). In that

case, the Supreme Court held that 42 U.S.C. § 1983 did not

provide a cause of action for a claimed violation of due process

based on a malicious prosecution theory unless the plaintiff

could show that the prior criminal proceeding terminated in her

favor. Id. As such, Heck did not establish or even address the

elements of claims of abuse of process and malicious prosecution

under New Hampshire law. 

Because Anderson addressed only the law governing a § 1983

claim, he did not show that Christian’s claims are futile under

New Hampshire law. Under New Hampshire law, “[i]n order to

prevail on a civil malicious prosecution claim, the plaintiff

must prove: (1) that he was subjected to a civil proceeding

instituted by the defendant; (2) without probable cause; (3)with

malice; and (4) that the proceedings terminated in the

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plaintiff’s favor.” Paul v. Sherburne, 903 A.2d 1011, 1013 (N.H.

2006). “A party claiming abuse of process must prove the

following elements: (1) a person used (2) legal process, whether

criminal or civil, (3) against the party (4) primarily to

accomplish a purpose for which it is not designed and (5) caused

harm to the party (6) by the abuse of process.” Long v. Long,

136 N.H. 25, 29 (1992). For purposes of proving an abuse of

process claim, it is immaterial whether the criminal proceedings

terminated in favor of the person bringing the claim. Id.

Christian concedes that she cannot now show that the

underlying criminal proceeding against her for resisting arrest

terminated in her favor. She acknowledges that she pled guilty

to the charge to resolve a distressing situation. Her

protestations as to the validity of her plea and expectation of

overturning her guilty plea do not change present circumstances. 

Therefore, her request to add a malicious prosecution claim

against Anderson is denied as futile. Anderson has not shown

that the abuse of process claim is also futile.

D. Rooker-Feldman Doctrine

Anderson contends generally that the Rooker-Feldman doctrine

bars Christian’s abuse of process claim because it seeks an

appeal in this court of her state court conviction. As Christian

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points out, Anderson fails to cite the most recent First Circuit

cases, construing the Rooker-Feldman doctrine and limiting its

application. See, e.g., Torromeo v. Town of Fremont, N.H., 438

F.3d 113, 115 (2006). More importantly, Anderson provides no

analysis applying the Rooker-Feldman doctrine to the

circumstances of this case and, therefore, fails to show how the

doctrine would bar Christian’s abuse of process claim.

E. Res Judicata and Failure to State a Conspiracy Claim

The defendants assert that res judicata or the doctrine of

“law of the case” bars Christian from bringing claims against

Boucher. That theory is based on the court’s previous order,

dismissing the federal claims against Boucher based on quasijudicial immunity. Federal law governs immunity as to federal

claims, while state law governs immunity as to state law claims. 

Therefore, neither res judicata nor “law of the case” applies

here. As is discussed above, however, Boucher is entitled to

immunity under state law. 

Anderson also argues that Christian has not stated a civil

conspiracy claim. A civil conspiracy claim requires allegations

that two or more persons entered an agreement on an object to be

accomplished or on a course of action and performed one or more

unlawful overt acts in furtherance of the conspiracy. Jay

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Edwards, Inc. v. Baker, 130 N.H. 41, 47 (1987). The object to be

accomplished may be either “an unlawful object to be achieved by

lawful or unlawful means or a lawful object to be achieved by

unlawful means.” Id.

Christian alleges that Anderson purposefully selected

Boucher as bail commissioner, knowing that he had admitted

committing a felony himself, which Christian believes

disqualified Boucher from acting as bail commissioner. She

further alleges that Boucher, “acting in collusion with . . .

Anderson, set a clearly unreasonable $5,000 cash bail.” 2d Am.

Comp. ¶ 26. In her claim for civil conspiracy, Christian alleges

“there was at least a silent agreement or understanding between

and among [Anderson and Boucher] to inflict wrongs against, or

injury to the plaintiff.” Id. ¶ 55.

Anderson faults Christian’s pleading for lacking an

allegation that he and Boucher communicated before Christian was

arrested. That argument demonstrates a misunderstanding of

Christian’s conspiracy theory. Christian alleges that the object

of the conspiracy was to set an unreasonably high bail with the

harmful result that she was not released from jail. Taking all

of Christian’s allegations as true and drawing reasonable

inferences in her favor, there is enough to avoid Anderson’s

futility challenge.

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Conclusion

For the foregoing reasons, the plaintiff’s motion for leave

to file an amended complaint (document no. 49) is granted as to

her claims of assault, harassment, and invasion of privacy

against Travis Anderson, in his individual capacity, and Roberta

Darling, paragraphs 47 and 48; abuse of process against Anderson,

paragraph 49; intentional infliction of emotional distress

against Anderson and Darling, paragraphs 51 and 52; negligence

against all defendants except Boucher, paragraph 53; negligent

infliction of emotional distress against all defendants except

Boucher, paragraph 54; and civil conspiracy against Anderson. 

The motion to amend is denied as to all of the plaintiff’s claims

against Anderson in his official capacity, all claims against

Paul Boucher, and the claim for malicious prosecution, as those

claims are futile.

Christian’s second amended complaint is allowed as to the

claims that are not futile, and the futile claims are deemed to

be dismissed.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

December 13, 2006

cc: Charles P. Bauer, Esquire

Lisa Lee, Esquire

Nancy J. Smith, Esquire 

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