UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Daniel W. Miles, H. George Hamacher,

and Nancy Tavernier

v. Civil No. 05-cv-56-JM

W. John Funk, Michael Ramsdell,

Gallagher, Callahan & Gartrell, P.A.

O R D E R

 The Court dismissed Count I of the Complaint, which is the

only Count that asserts a cause of action under federal law, in

an Order dated May 30, 2006. See Document No. 46. In accordance

with this Court’s Order to Show Cause, the parties have since

briefed the issue of whether the Court has subject matter

jurisdiction over the Plaintiffs’ eleven state law claims. The

Court now dismisses all of the remaining Counts in the Complaint.

Standard of Review

Federal courts are obligated to ensure that they have

jurisdiction to decide the cases before them even if the parties

do not dispute the court’s jurisdiction. See McCulloch v. Velez,

364 F.3d 1, 5 (1st Cir. 2004) (“It is black-letter law that a

federal court has an obligation to inquire sua sponte into its

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own subject matter jurisdiction”); Prou v. United States, 199

F.3d 37, 45 (1st Cir. 1999) (“the question of subject-matter

jurisdiction is always open: courts at every stage of the

proceedings are obligated to consider the issue even though the

parties have failed to raise it”). The jurisdictional issue

should be considered even when it appears that the defendant

would easily prevail on the merits. Hardemon v. City of Boston,

144 F.3d 24, 25-26 (1st Cir. 1998) (citing Steel Co. v. Citizens

for a Better Environment, 523 U.S. 83 (1998)).

“[D]etermining whether a case belongs in federal court

should be done quickly, without an extensive fact-finding

inquiry.” Spielman v. Genzyme Corp., 251 F.3d 1, 4 (1st Cir.

2001); see also Coventry Sewage Assocs. v. Dworkin Realty Co., 71

F.3d 1, 4 (1st Cir. 1995) (“preliminary jurisdictional

determinations should neither unduly delay, nor unfairly deprive

a party from, determination of the controversy on the merits”). 

When a plaintiff seeks to invoke the court’s diversity

jurisdiction, “the [amount in controversy] claimed by the

plaintiff controls if the claim is apparently made in good

faith.” St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S.

283, 288 (1938) (footnotes omitted); see also Spielman v. Genzyme

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3

Corp., 251 F.3d 1, 5 (1st Cir. 2001) (“Under St. Paul, a

plaintiff’s general allegation of damages that meet the amount

requirement suffices unless questioned by the opposing party or

the court.”). Where the plaintiff’s general allegation of

damages is questioned, however, “the party seeking to invoke

jurisdiction has the burden of alleging with sufficient

particularity facts indicating that it is not a legal certainty

that the claim involves less than the jurisdictional amount.”

Spielman, 251 F.3d at 5 (quoting Dep’t of Recreation and Sports

v. World Boxing Ass’n, 942 F.2d 84, 88 (1st Cir. 1991)). The

Supreme Court has directed that:

if, from the face of the pleadings, it is apparent, to

a legal certainty, that the plaintiff cannot recover

the amount claimed, or if, from the proofs, the court

is satisfied to a like certainty that the plaintiff

never was entitled to recover that amount . . . the

suit will be dismissed.

St. Paul, 303 U.S. at 289. 

Background

Plaintiffs Daniel W. Miles, H. George Hamacher and Nancy

Tavernier (collectively “the Miles plaintiffs”) allege that the

federal court has diversity jurisdiction over their state law

claims in this action under 28 U.S.C. § 1332(a)(1). There is no

dispute that the Miles plaintiffs and Defendants W. John Funk,

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Esq., Michael Ramsdell, Esq., and the law firm of Gallagher,

Callahan & Gartrell, P.A. (collectively “the Funk defendants”)

are citizens of different states. The Miles plaintiffs allege

generally that “the matter in controversy exceeds a value of

$75,000, exclusive of interests and costs.” Compl. at 2.

The Miles plaintiffs’ Complaint is thirty-seven pages long

without counting the attachments. They allege, among other

things, that the Funk defendants committed legal malpractice,

negligence, and fraud in connection with the settlement of a New

Hampshire state court case that was litigated in Belknap County

Superior Court. The state court case began with the filing of a

Bill in Equity dated November 28, 2000 seeking injunctive relief,

damages, and attorney’s fees against, among others, Patrick

Basile, Village of Winnipesaukee Timeshare Owners Association

(“VWTOA”) and Lakes Region Management Company. See Pls.’

Statement of Undisputed Facts, Ex. B (“Bill in Equity”). The

respondents were alleged to have mismanaged the VWTOA.

The state court case was filed by the Funk defendants’

predecessor counsel. The caption of the Bill in Equity states

that the case was brought by:

Clarice Neumann, individually and

On behalf of Similarly Concerned members of the Village

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Of Winnispeaukee Timeshare Owners Association

Id. at 1. Clarice Neumann is the only named “Petitioner” under

the heading “The Parties.” Id. at 4, ¶1. The state court case

was settled in March 2002 on terms that the Miles plaintiffs

found to be in direct conflict with their best interests. 

The Miles plaintiffs each allege in the Complaint that he or

she owns timeshare weeks at the Village of Winnipesaukee “and is

therefore a Concerned Member of the Village of Winnipesaukee

Timeshare Owners Association.” Compl., ¶¶ 1-3. Miles owns two

timeshare weeks. Hamacher owns three timeshare weeks. Tavernier

owns two timeshare weeks. The Miles plaintiffs allege that:

This matter arises from the Defendants’ legal

representation of certain owners of timeshares at the

Village of Winnipesaukee Timeshare Condominium,

collectively known as the Similarly Concerned Members

of the Village of Winnipesaukee Timeshare Owners

Association (the “Concerned VWTOA Members”).

Compl., ¶ 7. They allege that Clarice Neumann was a “Concerned 

Member.” Id., ¶ 8. They further allege that Clarice Neumann

agreed to serve as the Concerned VWTOA Members’ spokesperson, and

to fund their legal representation. Id., ¶¶ 8-9. The Funk

defendants do not deny that they represented Clarice Neumann in

the state court case. They maintain, however, that at all times

Clarice Neumann was their only client and that they owed no

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duties to the Miles plaintiffs.

The instant action was not brought as a class action or as a

derivative action. The Miles plaintiffs do not allege any basis

in the Complaint for a finding that they have standing to recover

damages on behalf of anyone other than themselves. Since there

are no allegations in the Complaint that specify the damages that

the Miles plaintiffs suffered individually, the Court ordered

them “to make a showing in writing, supported by competent

evidence, from which the Court may reasonably conclude that it is

not a legal certainty that the Plaintiffs’ state law claims

involve less than the amount required to establish diversity

jurisdiction.” Document No. 46.

Discussion

In a sixteen-page memorandum, the Miles plaintiffs argue

that six different theories support a finding that the amount in

controversy requirement for diversity jurisdiction is satisfied

in this case. See Document No. 47 at 3-15. The Court addresses

the merits of their arguments next. 

I. Direct Malpractice

A. The Value of the Equitable Relief Sought

The Miles plaintiffs argue that they have a direct legal

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1The Funk defendants argue in their memorandum on the

jurisdictional issue that even if the Miles plaintiffs could

assert a pro rata share of the damages allegedly suffered by the

VWTOA, the Miles plaintiffs’ assertions during discovery show

that their pro rata damages would be between $1,000 and $2,000. 

See Document No. 49, ¶ 4.

2The Miles plaintiffs allege in the Complaint that Clarice

Neumann and Daniel Miles stated explicitly to attorneys Funk and

Ramsdell at their first meeting “that their litigation goals

included securing an independent, competent Board of Directors

for the Timeshare Association and a fiscally accountable

management company.” Compl., ¶ 14.

7

malpractice claim against the Funk defendants because they

alleged that the Funk defendants caused them to forever lose

whatever rights and recoveries they might have obtained in the

state court litigation. Therefore, they argue, the Court must

consider the potential value of their claims in the state court

case in determining whether the amount in controversy requirement

for diversity jurisdiction is satisfied.

The Miles plaintiffs do not specify their individual

monetary damages at issue in the state court case in their

memorandum.1 Rather, they argue that the Court must consider the

value of the equitable relief that was sought in the state court

case.2 The Miles plaintiffs argue that since they value the

equitable relief sought in the state court case at more than

$75,000 the Court should find that the amount in controversy

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requirement for diversity jurisdiction is met in this case.

In actions seeking declaratory or injunctive relief the

value of the right that the plaintiff seeks should be considered

in determining whether the amount in controversy requirement has

been satisfied. See Hunt v. Washington State Apple Advertising

Comm’n, 432 U.S. 333, 347 (1977). The Miles plaintiffs cite

three cases where that principle was applied in cases arising in

the First Circuit. See Amalgamated Transit Union v. Greater

Portland Transit Dist., 589 F.2d 1, 9 (1st Cir. 1978) (union sued

in its representative capacity to vindicate a right of employees

to binding arbitration of the disputed terms of a collective

bargaining agreement); Grotzke v. Kurz, 887 F. Supp. 53, 56-57

(D.R.I. 1996) (accepting the defendant’s argument that if

injunctive relief were granted the pecuniary burden on the

defendant would exceed the amount in controversy requirement for

diversity jurisdiction); Ferris v. General Dynamics Corp., 645 F.

Supp. 1354, 1361 (D.R.I. 1986) (finding that in suits seeking

primarily equitable relief the “amount in controversy” has

historically been calculated by assessing the value to the

plaintiffs of conducting their affairs free from the restriction

or imposition that they seek to restrain).

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Although the determination of whether an adequate amount in

controversy exists for diversity jurisdiction is generally

assessed from the plaintiff’s perspective, the Court is not

persuaded that the Miles plaintiffs have met their jurisdictional

burden simply because they assign a value to the equitable relief

that was sought in the underlying state court litigation within

the jurisdictional requirement of the federal court. In the

amount-in-controversy context, a finding that a plaintiff’s

damages claim was made in “good faith” includes an element of

objective good faith. Coventry Sewage, 71 F.3d at 6. And as the

court’s decision in Ferris makes clear, where the plaintiff’s

claim is for equitable relief “some method must be employed to

translate the goal of the litigation into an approximate monetary

value.” Ferris, 645 F. Supp. at 1361.

The instant case is distinguishable from the cases upon

which the Miles plaintiffs rely in that the Miles plaintiffs have

not made any effort to demonstrate the monetary value to these

individuals plaintiffs of the equitable relief that was sought in

the underlying state court litigation. By contrast, in Hunt the

Supreme Court found that there was evidence in the record that

the individual plaintiffs lost sales that could lead to

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diminished profits, and that they incurred substantial costs in

complying with the statute at issue. 432 U.S. at 347. But in

Ferris, the court found that the amount in controversy

requirement was not met because the individual plaintiffs had

separate and distinct claims the value of which did not exceed

$10,000 in any single case. 645 F. Supp. at 1362-1363.

The Miles plaintiffs rely upon language taken out of context

from the decision in Amalgamated Transit Union to support their

argument that even if the value of the equitable relief sought in

the state court action is not readily determinable the Court

should find that the Miles plaintiffs have satisfied their

threshold showing for diversity jurisdiction. In Amalgamated

Transit Union, the court found that:

The value of the arbitration is impossible to determine

precisely, because both the terms of the arbitration

award and the terms of employment in the absence of

arbitration are speculative. These valuation problems

make it virtually impossible to conclude to a legal

certainty on the current record that the amount in

controversy is less than the required $10,000. 

589 F.2d at 10. The Miles plaintiffs analogize the difficultly

in determining the monetary value of the equitable relief sought

in the underlying state court case to the imprecise value of the

relief sought in Amalgamated Transit Union.

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An obvious distinction between the instant case and

Amalgated Transit Union, however, is that in the latter case the

court found that the union had standing to sue in its

representative capacity to vindicate the rights of the employees

to binding interest arbitration under a collective bargaining

agreement. Id. at 9. The court further found that there were

convincing reasons to find that the union was entitled to

aggregate the value of its members claims in order to satisfy the

jurisdictional amount requirement. Id. at 9-10. Thus, after

stating that it was “virtually impossible to conclude to a legal

certainty on the current record that the amount in controversy is

less than the required $10,000,” the court went on to state that

“[t]his is especially so, because of the reasonableness of the

claim that the aggregate interest of the 107 employees exceeds

$10,000.” Id. at 10. The court noted that the value of a claim

for a cost-of-living factor by itself resulted in a $35,000 total

loss to the employees without considering the value of other

provisions of the former collective bargaining agreement. Id.

Thus, the court concluded that the union’s allegations met the

amount in controversy requirement to support subject matter

jurisdiction over the action. Id.

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Here, the Miles plaintiffs have not brought the instant

lawsuit in a representative capacity. They only have standing to

assert their own claims. The Miles plaintiffs have not provided

any basis for a finding that the value of the object of the state

court litigation exceeds the amount of $75,000 with respect to

each of these three plaintiffs. Accordingly, the Court finds

that the Miles plaintiffs’ reliance upon the decision in

Amalgamated Transit Union is misplaced.

B. Attorney Funk’s Valuation of a Possible Claim

The Miles plaintiffs argue that the evidence shows that the

Funk defendants themselves valued the underlying claims in the

state court action in excess of $75,000. Therefore, they argue,

the Funk defendants should not be able to argue otherwise now. 

To support their argument, the Miles plaintiffs cite evidence

that shows that, in response to an inquiry forwarded by Clarice

Neumann, Attorney Funk stated that the “best case” estimate of

the value of a proposed claim for excessive maintenance fees

against the state court respondents was $240,000. See Pls.’

Statement of Undisputed Facts, Ex. 15. Attorney Funk added,

however, that expecting any recovery on that claim was

unrealistic. More importantly, the evidence makes clear that the

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3The Miles plaintiffs’ suggestion that merely discussing the

proposed excessive maintenance fee claim constitutes a concession

that the Funk defendants represented more than one individual in

the state court case is without merit. 

13

claim was not addressed to damages allegedly suffered by the

Miles plaintiffs. Rather, Attorney Funk’s estimate took into

account the more than 1000 timeshare weeks owned by all of the

members of the VWTOA. The Miles plaintiffs own only seven of

those timeshare weeks. Thus, Attorney Funk’s assessment of the

proposed excessive maintenance fee claim does not support a

finding that the federal court has jurisdiction over the Miles

plaintiffs’ claims in this action.3

II. Third-Party Beneficiary Theory

The Miles plaintiffs argue that even if a jury were to

conclude that the Funk defendants did not undertake to directly

represent them, the evidence supports a finding that the Miles

plaintiffs were the intended third-party beneficiaries of Clarice

Neumann’s attorney-client agreement with the Funk defendants. 

Under that theory, the Miles plaintiffs argue that they meet the

jurisdictional amount in controversy because they are entitled to

seek the recovery of the $164,685.20 that Clarice Neumann paid to

the Funk defendants for representation in the state court case.

The Miles plaintiff’s third-party beneficiary argument fails

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for two reasons. First, the Miles plaintiffs have not asserted a

cause of action against the Funk defendants on a third-party

beneficiary theory in the Complaint. And second, even if the

Miles plaintiffs had asserted a cause of action on a third-party

beneficiary theory, the Court would find that their claim fails

as a matter of law based on the facts alleged. 

Under New Hampshire law, “[a] third-party beneficiary

relationship exists if (1) the contract calls for a performance

by the promisor which will satisfy some obligation owed by the

promisee to the third party, or (2) the contract is so expressed

as to give the promisor reason to know that a benefit to a third

party is contemplated by the promisee as one of the motivating

causes of his making the contract.” Tamposi Assoc. v. Star Mkt.

Co., 119 N.H. 630, 633, 406 A.2d 132, 134 (1979). In order for a

benefit to a third party to be found to be a “motivating cause”

of entering into a contract, the promisee must intend “to give

the beneficiary the benefit of the promised performance.” 

Grossman v. Murray, 144 N.H. 345, 348, 741 A.2d 1218, 1220

(quoting Restatement (Second) of Contracts § 302(1)(b) (1981)). 

“Unless the performance required by the contract will directly

benefit the would-be intended beneficiary, he is at best an

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incidental beneficiary.” Id. (quoting Public Service Co. of N.H.

v. Hudson Light & Power, 938 F.2d 338, 342 (1st Cir. 1991))

(emphasis in original). Incidental beneficiaries do not have

enforceable contract rights. See Public Service Co., 938 F.2d at

341 n.8.

In the instant case, there are no facts that show that the

Miles plaintiffs were identified beneficiaries to the attorneyclient agreement between Clarice Neumann and the Funk defendants. 

Indeed, the Miles plaintiffs argue in their memorandum that:

Even if there was no evidence that the Defendants were

aware that they were working on behalf of [the Miles

Plaintiffs], there is sufficient competent evidence by

which the Court may reasonably conclude that a third

party beneficiary contract relationship existed in

favor of [the Miles plaintiffs].

Document No. 47 at 6. This argument has no support under New

Hampshire law. As discussed above, in order for the Miles

plaintiffs to have been the intended beneficiaries of a contract

between Clarice Neumann and the Funk defendants, the contract

must be “so expressed as to give the promisor reason to know that

a benefit to a third party is contemplated by the promisee as one

of the motivating causes of [her] making the contract.” Tamposi,

119 N.H. at 633, 406 A.2d at 134; see also Simpson v. Calivas,

139 N.H. 1, 7, 650 A.2d 318, 322-323 (N.H. 1994) (finding that

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where “a client has contracted with an attorney to draft a will

and the client has identified to whom he wishes his estate to

pass, that identified beneficiary may enforce the terms of the

contract as a third-party beneficiary.”) (emphasis added).

The evidence in the record upon which the Miles plaintiffs

rely to support their argument shows that Clarice Neumann only

specifically expressed an intent to benefit the VWTOA. The

record shows that on or about February 11, 2002, Attorney

Ramsdell filed a motion to amend the Bill in Equity and an

amended petition for injunctive and declaratory relief and

damages to assert claims on behalf of Clarice Neumann,

“Individually, and derivatively on behalf of Village of

Winnipesaukee Timeshare Owners Association.” Pls.’ Statement of

Undisputed Facts, Exs. C and D (emphasis added). After the state

court denied the motion to amend, Attorney Ramsdell wrote a

letter to Clarice Neumann dated March 19, 2002, in which he

stated in pertinent part:

The original petition that commenced the abovecaptioned action was filed by [predecessor counsel] on

or about November 28, 2000. That petition asserts

numerous claims against [VWTOA], directors, Patrick

Basile and others. We understand that your intent in

bringing the lawsuit was to seek equitable relief and

damages on behalf of VWTOA and its members, not just

yourself. Unfortunately, the petition contained

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language which mingled concepts of an individual action

(benefiting you), a derivative suit (benefiting VWTOA)

and a class action (benefiting you and other members),

thereby causing confusion as to its purpose [sic]. 

In February, 2001, [predecessor counsel] sought to

clarify the petition and filed a motion requesting that

the original petition be amended as follows: each place

where the word, “Petitioners”, appears it should be

changed to the singular “Petitioner”, because there was

only one person named as plaintiff - you. Not

surprisingly, the motion was unopposed by the

defendants and, therefore, granted by the Belknap

County Superior Court without a hearing. The effect of

the Court’s Order was to terminate your ability to

pursue claims on behalf of VWTOA in this action. It

left you as a single plaintiff, seeking damages not for

VWTOA, but only for yourself.

Pls.’ Statement of Undisputed Facts, Ex. 23 (emphasis added). 

The Miles plaintiffs are not identified in Attorney Ramsdell’s

March 19, 2002 letter, or in any of the other evidence upon which

the Miles plaintiffs rely to support of their third-party

beneficiary argument. The Miles plaintiffs were no more than

incidental beneficiaries to the contract between Clarice Neumann

and the Funk defendants, and therefore they did not have any

enforceable contract rights.

In sum, the Court finds that even if the Miles plaintiffs

had asserted a cause of action against the Funk defendants on a

third-party beneficiary theory in their Complaint, their claim

would fail as a matter of law. Thus, the Court further finds

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that Miles plaintiffs’ third-party beneficiary theory does not

support a finding the Miles plaintiffs meet the jurisdictional

amount in controversy.

III. Limited Plaintiffs With Preserved Rights

As a third theory supporting subject matter jurisdiction,

the Miles plaintiffs make the following assertions: (1) the Funk

defendants must have believed that they represented multiple

plaintiffs because they moved to amend the Bill in Equity in

February 2002 in order to file a derivative suit; (2) the

equitable relief that was sought in the state court action was

indivisible and the Miles plaintiffs are the only individuals to

have preserved their rights to pursue such claims; and (3) “the

Court can analyze damages especially in regard to legal fees as

inuring to the benefit only to three Plaintiffs in the instant

case.” Document No. 47 at 10 (emphasis in original). The Miles

plaintiffs’ argument contains a premise that is legally

incorrect, and is unsupported by any legal authorities.

As a matter of law, a derivative action is not brought on

behalf of individuals. Rather, a derivative action is brought to

enforce a right of a corporation or of an unincorporated

association where the corporation or association has failed to

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4See e.g., Rule 23.1, which provides in pertinent part:

In a derivative action brought by one or more

shareholders or members to enforce a right of a

corporation or of an unincorporated association, the

corporation or association having failed to enforce a

right which may properly be asserted by it, the

complaint shall be verified and shall allege (1) that

the plaintiff was a shareholder or member at the time

of the transaction of which the plaintiff complains . .

., and (2) that the action is not a collusive one to

confer jurisdiction on a court of the United States

which it would not otherwise have.

Fed. R. Civ. P. 23.1 (emphasis added). 

19

enforce a right that it could properly assert.4 Therefore, the

Miles plaintiffs are incorrect in asserting that the Funk

defendants must have believed that they represented multiple

plaintiffs because they moved to amend the Bill in Equity to add

a derivative action. 

Furthermore, there is no support for the Miles plaintiffs’

argument that since they are the only members of the VWTOA to

have filed suit against the Funk defendants that the rights of

the VWTOA is transferred to the Miles plaintiffs. The Court

finds no basis to conclude that any claim that the VWTOA might

have had against the Funk defendants has been transferred to the

Miles plaintiffs. Therefore, the Court finds that the Miles

plaintiffs’ “limited plaintiffs with preserved rights” theory

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does not support a finding that the federal court has subject

matter jurisdiction over their state law claims. 

IV. Assignment of Clarice Neumann’s Claims

The Miles plaintiffs argue in their fourth and fifth

theories that Clarice Neumann assigned her claims against the

Funk defendants to the Miles plaintiffs. The Miles plaintiffs

assert that Clarice Neumann has acknowledged and supported their

attempt to recover the legal fees that she paid to the Funk

defendants as part of the damages in this case, which the Miles

plaintiffs argue represents an “implicit assignment.” The Miles

plaintiffs further argue that the Clarice Neumann has since

signed a “Confirmatory Assignment,” which the Miles plaintiffs’ 

submitted with their response to this Court’s Order to Show Cause

on the jurisdictional issue. 

The subject matter jurisdiction test is based on the facts

that existed at the time the suit was filed. See Spielman, 251

F.3d at 5. Here, there is no allegation in the Complaint, or in

the Miles plaintiffs’ interrogatory responses, that identifies an

assignment of Clarice Neumann’s claims against the Funk

defendants. Moreover, the record shows that at her deposition,

Ms. Neumann denied that she had assigned any legal malpractice

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claim that she might have against the Funk defendants to the

Plaintiffs. Ms. Neumann testified:

Q. Whether you thought about it or not, that is

bringing a claim against [the Funk defendants] on your

own behalf, you didn’t talk to anybody else about doing

it. Is that right?

A. I didn’t think about it and I didn’t talk about

it. You’re talking about a malpractice claim?

Q. Yes. Okay. Have you assigned any claims you

might have against [the Funk defendants] to anybody

else?

A. No. 

See Document No. 47, att. 4 at 74. The Court finds that the

foregoing evidence demonstrates that no assignment of Clarice

Neumann’s claims to the Miles plaintiffs existed at the time the

instant lawsuit was filed. The Miles plaintiffs’ attempt to

avoid that conclusion are unpersuasive. Therefore, the Court

finds that the Miles plaintiffs’ assignment of claims argument is

insufficient to support a finding that amount in controversy

requirement was met at the time that this lawsuit was filed. 

V. Multiple Damages and Attorney’s Fees

Finally, the Miles plaintiffs argue that the amount in

controversy is at least $164.685.20 based on the amount that

Clarice Neumann paid to the Funk defendants pertaining to the

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5The Miles plaintiffs state in a footnote to their

memorandum responding to the Order to Show Cause that they also

assert a right to recover attorney’s fees in the present action

because of the Funk defendants’ bad faith conduct under Harkeem

v. Adams, 117 N.H. 687, 691 (1977). Document No. 47 at 14 n.4. 

The Court does not find any such claim in the Complaint. 

Furthermore, this argument is referred to only perfunctorily and

is therefore ignored.

22

state court action, and that the Miles plaintiffs further seek

multiple damages and attorney’s fees under the provisions of N.H.

Rev. Stat. Ann. (“RSA”) 358-A:10 based on their claim that the

Funk defendants have engaged in unfair and deceptive practices.5

Here, the evidence shows that all of the acts allegedly

committed by the Defendants were taken in the course of their

legal practice and occurred prior to July 17, 2002. Defendants

argue that Plaintiffs’ RSA 358-A claim must fail because prior to

July 17, 2002, the practice of law was not covered by the

statute. The Court agrees.

In Averill v. Cox, 145 N.H. 328, 332, 761 A.2d 1083, 1087

(2000), the New Hampshire Supreme Court reaffirmed its earlier

holding that the practice of law is excluded from the scope of

RSA 358-A. The New Hampshire Legislature has since amended the

statute’s provisions so that the practice of law is no longer

excluded from coverage under the Act, but that amendment did not

become effective until July 17, 2002. See Copp v. Atwood, No.

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Civ. 03-288-JD, 2005 WL 139180 at *4 (D.N.H. Jan. 24, 2005). 

Thus, the Miles plaintiffs’ RSA 358-A claim fails to state a

cause of action upon which relief may be granted. 

Conclusion

For the foregoing reasons, the Court dismisses Counts II

through XI of the Complaint without prejudice for lack of subject

matter jurisdiction. The Court dismisses Count XII of the

Complaint with prejudice based on the failure to state a claim

upon which relief may be granted. 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: July 20, 2006

cc: Evan M. Fray-Witzer, Esq.

 Russell F. Hilliard, Esq.

 Michael C. McLaughlin, Esq.

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