UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIR E

Rosemarv A . Gilro V

v . Civil No. 07-cv-0074-JD

Ameriguest Mortgage CompanV, et al .

P R O C E D U R A L O R D E R

In light of the court's recent order granting summary

judgment in favor of the defendants on Counts I, II, III, IV, and

VI of Gilroy's amended complaint, and the statements in the

parties' pretrial statements, the court provides the following

summary of the current status of the case .

This case is set for trial the period beginning March 17,

2009 . The only remaining claim in this case is for harassment,

under Count V, in violation of New Hampshire Revised Statutes

Annotated ("RSA") Chapter 358-C (1995 & Supp . 2008) .1 T o

establish a violation of Chapter 358-C, Gilroy must prove that

the defendants engaged in "unfair, deceptive or unreasonable"

debt collection practices . RSA 358-C :2 . Such practices include :

"causing a telephone to ring or engaging any person in telephon e

'This claim was construed by the court in its Preliminary

Order . (July 23, 2007, document no . 4, at 12) . Gilroy did not

object to the court's construction of her harassment claim and

she is therefore bound by it .

Case 1:07-cv-00074-JD Document 91 Filed 03/03/09 Page 1 of 3
conversation repeatedly or continuously or at unusual times or at

times known to be inconvenient with the intent to abuse, oppress

or harass any person at the called number ." RSA 358-C :3, I(a) .

Therefore, to succeed at trial, Gilroy must prove, by a

preponderance of admissible evidence, that the defendants engaged

in practices prohibited by RSA 358-C :2 . See Petition of

Preisendorfer , 143 N .H . 50, 54 (1998) ("[P]roof by preponderance

means that evidence, taken as a whole, shows that the fact or

cause shown to be proven is more probable than not .") (internal

quotation marks omitted) (brackets omitted) .

Damages are available under Chapter 358-C, for either "the

sum of $200 plus costs and reasonable attorney's fees for each

violation," or "[f]or all damages proximately caused by the

violation," whichever is greater . RSA 358-C :4, I . To be

entitled to statutory damages, Gilroy must prove that the

defendants engaged in practices prohibited by RSA 358-C :2 . If

Gilroy seeks damages proximately caused by the defendants'

violations (provided such violations are proven), she will have

to prove, by a preponderance of the evidence, that the

defendants' violations of RSA 358-C were the proximate cause of

her injuries . See Carianan v . New Hampshire Int'l Speedway,

Inc . , 151 N .H . 409, 414 (2004) ("[T]o establish proximate cause,

the plaintiff must prove that the defendant's conduct caused o r

2

Case 1:07-cv-00074-JD Document 91 Filed 03/03/09 Page 2 of 3
contributed to cause the harm .") .

In addition, the court notes that this case is scheduled as

a bench trial . The court is aware that Gilroy requests a jury

trial in her pretrial statement . Her request is untimely and not

properly made as required under the Federal Rules of Civil

Procedure . Her request is therefore denied .

The court has issued several orders regarding the procedures

to be followed at trial . The parties will be strictly held to

the court's instructions contained in these orders .

SO ORDERED .

/s/ Joseph A . DiClerico, Jr .

Joseph A . DiClerico, Jr .

United States District Judge

March 3, 200 9

cc : Rosemary Gilroy, pro se

Thomas Tretter, Esq .

3

Case 1:07-cv-00074-JD Document 91 Filed 03/03/09 Page 3 of 3