1Bourne describes King as having “purportedly served as an

unauthorized ‘alternate’” on a Madison town committee. First

Ver. Am. Compl. (“Compl.”) ¶ 6.

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Samuel J. Bourne

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

Town of Madison et al.

O R D E R

Samuel J. Bourne has moved to dismiss the defendants’

counterclaim for abuse of process on the ground that it fails to

state a claim for relief. The defendants, who are the town of

Madison, New Hampshire, its board of selectmen, the individual

members of the board, and Robert D. King, object.1 Bourne has

filed a reply to the defendants’ objection.

Bourne has also filed a reply to the counterclaim, so the

court must treat his motion to dismiss as a motion for judgment

on the pleadings. See Fed. R. Civ. P. 12(c). The “court may

enter judgment on the pleadings only if the uncontested and

properly considered facts conclusively establish the movant’s

entitlement to a favorable judgment.” Aponte-Torres v. Univ. of

P.R., 445 F.3d 50, 54 (1st Cir. 2006). In deciding such a

motion, the court must “view the facts contained in the pleadings

Case 1:05-cv-00365-JD Document 19 Filed 07/06/06 Page 1 of 7
2Class VI highways generally consist of “public ways” not

otherwise classified by Revised Statutes Annotated § 229:5,

including “all highways discontinued as open highways and made

subject to gates and bars . . . and all highways which have not

been maintained and repaired by the town in suitable condition

for travel thereon for 5 successive years or more . . . .” N.H.

Rev. Stat. Ann. § 229:5, VI. A town may elect to “discontinue”

a class VI highway, id. § 231:43, which relieves the town “of all

obligation to maintain, and all liability incurred in the use of”

the road, id. § 231:50. 

2

in the light most flattering to the nonmovants (here, the

[defendants]) and draw all reasonable inferences therefrom in

their favor.” Id.; see also R.G. Fin. Corp. v. Vergara-Nunez,

446 F.3d 178, 182 (1st Cir. 2006). The following facts are set

forth in accordance with this standard.

This action arises out of a dispute between the parties over

the use of a road accessing Bourne’s property in Madison. Before

Bourne purchased the land, the town administrator told him that,

because the road was a class VI highway under state law, Bourne

would be required to sign a waiver of the town’s liability in

connection with the road in order to obtain a building permit.2

To this end, the administrator provided Bourne with the “Standard

Form Agreement providing for waiver of liability . . . .” 

Countercl. ¶ 2. Bourne, however, “made material revisions to the

Standard Form Agreement,” id. ¶ 3, viz., the addition of

“language that appeared to attempt to restrict the rights of the

public over a vaguely worded right of way.” Ans. ¶ 14. He then

Case 1:05-cv-00365-JD Document 19 Filed 07/06/06 Page 2 of 7
3Bourne’s statements to this effect serve as the basis for a

counterclaim for defamation asserted by the selectmen in this

action. That counterclaim is not the subject of Bourne’s motion

to dismiss.

3

sent this revised document to the board under cover of a letter

that “made no mention of the revisions made to the Standard Form

Agreement.” Id. ¶ 3. Thus ignorant of the revisions, the

members of the board signed the document and caused it to be

recorded in the county registry of deeds. Bourne, acting through

a trust, subsequently completed his purchase of the property.

 After learning of Bourne’s “deception,” id. ¶ 4, the town

brought an action in state court to rescind the agreement. 

During that litigation, Bourne produced a different version of

his cover letter to the board which noted that the enclosed copy

of the agreement had, in fact, been “revised.” Id. ¶ 5. Bourne

claimed that the Board had forged the version of his cover letter

which omitted any reference to the revisions.3 Bourne also

installed a steel gate across the road to prevent public access. 

After Bourne refused to remove the gate, the building inspector

denied his request for a building permit, and the town highway

department later removed the gate. The parties appeared to

resolve their differences on April 13, 2003, when Bourne

ultimately signed the town’s form waiver agreement, leading to

the issuance of a building permit.

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4The counterclaim does not identify the dates Bourne

commenced any of these lawsuits, but simply gives their docket

numbers. Although the defendants allege that Bourne filed these

suits against the “Town,” rather than the Board or any of the

individual defendants, Countercl. ¶ 12, the court will assume for

purposes of this motion that the state court lawsuits named the

same defendants as this one.

5Bourne’s complaint in this action asserts numbered counts

for (I) violations of his rights to due process and equal

protection pursuant to 42 U.S.C. § 1983, (II) breach of contract,

(III) fraud/deceit, (IV) negligence, (V) “estoppel,” (VI),

interference with contractual relations, (VII) declaratory

relief, and (VIII) injunctive relief. Bourne also seeks

compensatory and punitive damages.

4

Hostilities continued, however. During 2003, Bourne filed

three separate actions against the town in Carroll County

Superior Court.4 Through these actions, which are still pending,

Bourne seeks to relocate the road, to undo its designation as a

Class VI highway, and “to remove snowmobile rights on [the road]

and on an easement through his property.” Countercl. ¶ 12. The

defendants claim that Bourne’s “litigation strategy,” as embodied

by these lawsuits as well as the instant action, “constitute an

abuse of process,” id., in that they comprise “a pattern of

harassment designed to pressure the Town into relinquishing

public rights of way . . . .”5 Id. ¶ 14. In particular, the

defendants allege that Bourne has filed “numerous, groundless

motions seeking injunctions and even grand jury investigations”

in the state court proceedings. Id. ¶ 12. They also allege that

Case 1:05-cv-00365-JD Document 19 Filed 07/06/06 Page 4 of 7
5

Bourne’s actions have caused them damages, including legal fees.

“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). Bourne argues that the defendants have failed to

state a claim for abuse of process because they have not alleged

that he used any “legal process” against them. The defendants

respond that their counterclaim “rel[ies] upon the existence of

the pending litigation in this and the Carroll County Superior

Court, which obviously meet the requirement for ‘process.’” Mem.

Supp. Obj. Mot. Dismiss at 3.

Under New Hampshire law, however, “[t]he institution of an

action is not a process of the court” giving rise to an abuse of

process claim. Bus. Publ’ns, Inc. v. Stephen, 140 N.H. 145, 148

(1995) (internal quotation marks omitted); see also Cabletron

Sys., Inc. v. Miller, 140 N.H. 55, 58 (1995); Restatement

(Second) of Torts § 682 cmt. a (1977). The mere “existence” of

the complained-of proceedings, then, cannot support the

defendants’ abuse of process claim, regardless of Bourne’s

allegedly improper motives in commencing them. See Bus. Publ’ns,

140 N.H. at 148-49 (“that the [plaintiff] may have had an

Case 1:05-cv-00365-JD Document 19 Filed 07/06/06 Page 5 of 7
6

ulterior purpose or bad motive in filing suit . . . cannot be

construed as having any relation to a process of the court”)

(internal quotation marks omitted; ellipse in original).

Instead, to support a claim for abuse of process, the

“process” must comprise “some form of compulsory process forcing

the performance or forbearance of some prescribed act.” Long,

136 N.H. at 31 (internal quotation marks omitted). The

defendants do not allege that Bourne employed any such “process”

as part of any of the proceedings against them. Although they

claim that Bourne has filed “motions seeking injunctions and even

grand jury investigations,” Countercl. ¶ 12, they do not allege

that any of this relief was granted. As the New Hampshire

Supreme Court made clear in Long, unsuccessful motions for

judicial relief do not amount to “process” for purposes of the

tort, even if the relief itself might have. 136 N.H. at 31-32

(affirming summary judgment on abuse of process claim based on

motion for contempt never decided by court). The counterclaim

therefore fails to state a claim for abuse of process.

Conclusion

For the foregoing reasons, Bourne’s motion to dismiss the

defendants’ counterclaim for abuse of process (document no. 14)

is GRANTED as a motion for judgment on the pleadings as to Count

Case 1:05-cv-00365-JD Document 19 Filed 07/06/06 Page 6 of 7
7

II of the counterclaim.

The court further notes, in connection with Bourne’s eightcount complaint, that scattershot pleading is not favored. The

court expects Bourne to review his complaint with a view to

eliminating any count that is unnecessary or redundant because it

does not materially differ from another count in terms of the

elements that must be proved, or the remedy available.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

July_6, 2006

cc: Brian J.S. Cullen, Esquire

Richard A. Hampe, Esquire

Richard D. Sager, Esquire

Gerald F. Williamson, Esquire

Case 1:05-cv-00365-JD Document 19 Filed 07/06/06 Page 7 of 7