UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Ralph Holder

v. Civil No. 06-cv-221-JD

Opinion No. 2007 DNH 039

Laurie Axinn Gienapp

O R D E R

Undeterred by his lack of success in other suits he has

filed arising out of his dissatisfaction with his divorce case

and custody dispute, Ralph Holder, proceeding pro se, now brings

suit against his former attorney, Laurie Axinn Gienapp. Holder

alleges that Gienapp’s representation of him violated various

federal statutory and constitutional protections and generated

state law claims of negligence, breach of contract, fraud, and

the intentional infliction of emotional distress. Gienapp moves

for summary judgment, and Holder opposes summary judgment.

Standard of Review

Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

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56(c). The party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record. 

See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party

opposing a properly supported motion for summary judgment must

present competent evidence of record that shows a genuine issue

for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

256 (1986). All reasonable inferences and all credibility issues

are resolved in favor of the nonmoving party. See id. at 255. 

Discussion

Gienapp represented Holder during his divorce and custody

proceedings in state court from March of 2002 until her motion to

withdraw from representation was approved on July 10, 2003. 

Gienapp requested leave to withdraw after Holder demanded that

Gienapp seek to have the guardian ad litem removed from the case,

based on a telephone conversation between Gienapp and the

guardian ad litem. When Gienapp refused to comply with Holder’s

demands, their disagreement led to a breakdown in the attorneyclient relationship, which Gienapp believed required her to

withdraw. Holder alleges federal and state law claims against

Gienapp arising from her representation and their disagreement.

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A. Federal Claims

Holder alleges that Gienapp failed to protect his rights to

equal protection and to rights under 20 U.S.C. § 6301, the No

Child Left Behind Act. He also alleges a violation of equal

protection under 42 U.S.C. § 1981. Holder alleges the same

claims on behalf of his minor son, which he is not able to do as

a pro se litigant who is not an attorney. See Herrera-Venegas v.

Sanchez-Rivera, 681 F.2d 41, 42 (1st Cir. 1982).

To the extent Holder intends to raise equal protection

claims under the Fourteenth Amendment actionable pursuant to 42

U.S.C. § 1983, the facts do not support such a claim. Section

1983 provides a cause of action only when persons acting pursuant

to state law, that is state actors, deprive the plaintiff of

rights provided by the Constitution or federal law. EstadesNegroni v. CPC Hosp. San Juan Capestrano, 412 F.3d 1, 4 (1st Cir.

2005). “It is only in rare circumstances that private parties

can be viewed as state actors.” Id. Gienapp asserts that she is

not a state actor, and Holder makes no effort to demonstrate or

even allege that she should nevertheless be viewed as one.

Holder also alleges a claim under the No Child Left Behind

Act. Every court that has considered whether the Act provides a

private cause of action has concluded that it does not. Alliance

for Children, Inc. v. City of Detroit Pub. Schs., --- F. Supp. 2d

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---, 2007 WL 576047, at *3 (E.D. Mich. Feb. 15, 2007) (discussing

and citing cases). Holder provides no basis for this court to

take a different course in his case.

Holder also purports to allege a claim under 42 U.S.C. §

1981. Section 1981 “protects the equal right of ‘[a]ll persons

within the jurisdiction of the United States’ to ‘make and

enforce contracts’ without respect to race.” Domino’s Pizza,

Inc. v. McDonald, 546 U.S. 470, 126 S. Ct. 1246, 1249 (2006)

(quoting § 1981(a)). “Any claim brought under § 1981, therefore,

must initially identify an impaired ‘contractual relationship,’ §

1981(b), under which the plaintiff has rights.” Id. As Gienapp

points out, Holder does not allege or even suggest any

contractual relationship in support of his § 1981 claim. 

Therefore that claim fails.

In sum, Holder has not demonstrated that any triable issue

exists with respect to his federal claims. Therefore, Gienapp is

entitled to summary judgment on all of Holder’s federal claims.

B. State Law Claims

Holder’s state law claims include a variety of negligence

claims, breach of contract claims, a fraud claim, and a claim for

intentional infliction of emotional distress. Although Holder

asserts legal malpractice under both negligence and breach of

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1The deadline for Holder to disclose his expert witnesses

was November 15, 2006, which has passed without a motion for an

extension of time. Holder indicated in answers to Gienapp’s

interrogatories that he did not intend to have expert witness

testimony at trial.

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contract theories, the claims are not conceptually distinct. 

Wong v. Ekberg, 148 N.H. 369, 376-77 (2002).

As Gienapp points out, under New Hampshire law, “absent

exceptional circumstances, expert testimony is necessary to

inform the jury regarding the skill and care ordinarily exercised

by lawyers and to prove a breach thereof.” Carbone v. Tierney,

151 N.H. 521, 528 (2004). Expert testimony is also necessary in

most cases to prove causation in a legal malpractice case. Id.

In addition, expert testimony is required to prove the elements

of a malpractice claim whether it is styled as a tort, such as

negligence, or a breach of contract. Wong, 148 N.H. at 376-77.

Holder does not have an expert witness to support his legal

malpractice claims. Despite his assertion that legal malpractice

in divorce cases is a matter of common knowledge due to the

number of divorces in this country, that dubious presumption does

not show that his case presents exceptional circumstances that do

not require expert testimony. Because Holder cannot prove his

malpractice claims without an expert witness, which he does not

have, Gienapp is entitled to summary judgment on those claims.1

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In support of his fraud claim, Holder alleges that Gienapp

“knowingly and willingly took payment and fees from the plaintiff

under false pretense of providing him with competent, diligent

and zealous legal representation of his divorce.” Compl. ¶ 40. 

Gienapp moves for summary judgment or judgment on the pleadings

on the alternative grounds that Holder failed to allege fraud

with the requisite particularity and failed to state a claim of

fraud. Holder does not address his fraud claim in his opposition

to summary judgment.

The court need not decide whether or not the complaint taken

as a whole would provide sufficient factual background to satisfy

Federal Rule of Civil Procedure 9(b). Holder plainly has not

stated a fraud claim and makes no effort to support his claim to

show that a trialworthy issue exists that would preclude summary

judgment. 

To state a claim for fraud, the plaintiff must allege facts

that show the defendant “intentionally made material false

statements, which she knew to be false or which she had no

knowledge or belief were true, for the purpose of causing, and

which does cause, the [plaintiff] reasonably to rely to his

detriment.” Snow v. Am. Morgan Horse Ass’n, Inc., 141 N.H. 467,

468 (1996) (internal quotation marks omitted). As noted in the

context of Holder’s malpractice claim, he lacks an expert witness

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who could provide evidence that Gienapp did not represent Holder

as she allegedly promised and that deficient representation

caused Holder harm. Without an expert, Holder cannot prove the

elements of his fraud claim, which in essence, restates his legal

malpractice claims.

Holder alleges that Gienapp intentionally caused him

emotional distress because her alleged negligence allowed

implementation of the guardian ad litem’s recommendation that his

son go to a new school. To state a claim for intentional

infliction of emotional distress, a plaintiff must allege that

the defendant intentionally caused emotional distress by acting

in a way that was “‘so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency and to be

regarded as atrocious, and utterly intolerable in a civilized

community.’” Moss v. Camp Pemigewassett, Inc., 312 F.3d 503, 511

(1st Cir. 2002) (construing tort under New Hampshire law, quoting

Restatement (Second) of Torts § 46, cmt. d (1977), and citing

Konefal v. Hollis/Brookline Coop. Sch. Dist., 143 N.H. 256

(1998)). Holder’s allegations do not approximate what would be

necessary for a claim of intentional infliction of emotional

distress.

Because Holder does not have an expert witness to support

his claims of legal malpractice, Gienapp is entitled to summary

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judgment on those claims. To the extent he has stated claims

under independent theories, which is questionable, he has failed

to provide factual support or even to properly allege those

claims. Therefore, Gienapp is entitled to summary judgment on

all of Holder’s state law claims.

Conclusion

For the foregoing reasons, the defendant’s motion for

summary judgment (document no. 16) is granted. The plaintiff’s

motion to extend time (document no. 17) is granted, and his

opposition was considered in considering the defendant’s motion

for summary judgment.

The clerk of court shall enter summary judgment on all of

the plaintiff’s claims and close the case.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

March 28, 2007

cc: Ralph Suozzo, Esquire

Ralph Holder, pro se

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