UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Walter Bryska and Laurie Bryska

v. Civil No. 06-cv-455-JD

Daniels Transportation Co., Inc.

and Richard N. Denis

O R D E R

After a motor vehicle accident on Route 91 in Vermont,

Walter and Laurie Bryska brought negligence claims against the

driver of the truck involved in the accident, Richard N. Denis,

and his employer, Daniels Transportation, Co., Inc. Denis and

Daniels Transportation move to dismiss the suit as barred by the

statute of limitations. The Bryskas have not filed a response to

the motion to dismiss.

Standard of Review

When, as here, the defendants have filed an answer, a motion

to dismiss is properly considered as a motion for judgment on the

pleadings. See Fed. R. Civ. P. 12(c). A motion for judgment on

the pleadings is decided under the same standard as a motion to

dismiss. Pasdon v. City of Peabody, 417 F.3d 225, 226 (1st Cir.

2005). “[T]he trial court must accept all of the nonmoving

party’s well-pleaded factual averments as true and draw all

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reasonable inferences in her favor.” Asociacion de Subscripcion

Conjunta Del Seguro de Responsabilidad Obligatorio v. Flores

Galarza, 484 F.3d 1, 22-23 (1st Cir. 2007). In drawing

inferences, however, the court must also consider "[h]ow likely

is it that one conclusion, as compared to others, follows from

the underlying facts?" Tellabs, Inc. v. Makor Issues & Rights,

Ltd., --- S.Ct. ---, 2007 WL 1773208 at *10 (June 21, 2007).

Discussion

The statute of limitations in New Hampshire provides in

pertinent part:

Except as otherwise provided by law, all personal

actions . . . may be brought only within 3 years of the

act or omission complained of, except that when the

injury and its causal relationship to the act or

omission were not discovered and could not reasonably

have been discovered at the time of the act or

omission, the action shall be commenced within 3 years

of the time the plaintiff discovers, or in the exercise

of reasonable diligence should have discovered, the

injury and its causal relationship to the act or

omission complained of.

N.H. Rev. Stat. Ann. § 508:4,I. The exception to the three year

limitation period, which depends on discovery of the causal

relationship between the injury and the complained of act, is

known as "the discovery rule exception." Kelleher v. Lumber, 152

N.H. 813, 824 (2005). "Once the defendant establishes that the

cause of action was not brought within three years of the alleged

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act, the burden shifts to the plaintiff to raise and prove the

applicability of the discovery rule." Id.

In their complaint, the plaintiffs allege that Denis and

Walter Bryska were driving on Route 91 in Springfield, Vermont,

on December 2, 2003, when the accident occurred. They allege

that Denis was negligent and caused the accident that injured

Walter Bryska on that date. The plaintiffs filed their complaint

on December 4, 2006. 

As the defendants assert in their motion to dismiss, the

plaintiffs did not bring the action within three years of the

date of the accident, as required under New Hampshire Revised

Statutes Annotated § 508:4,I. The plaintiffs did not respond to

the motion and therefore have not raised the discovery rule

exception. In the absence of proof of the applicability of the

discovery rule exception, the plaintiffs' claims are barred by

the statute of limitations.

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Conclusion

For the foregoing reasons, the defendants' motion to dismiss

(document no. 20) is granted. The plaintiffs' claims are

dismissed as barred by the statute of limitations. The clerk of

court shall enter judgment accordingly and close the case.

SO ORDERED.

/s/ Joseph A. DiClerico, Jr.

Joseph A. DiClerico, Jr.

United States District Judge

July 11, 2007

cc: Gerald Noonan, Esq.

Peter Leahy, Esq.

Andrew Dunn, Esq.

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