1

UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF NEW HAMPSHIRE

__________________________________________

INDUSTRIAL COMMUNICATIONS AND )

ELECTRONICS, INC., ET AL, )

)

Plaintiffs, )

) Case No. 1:07-CV-00082-JL

v. )

)

TOWN OF ALTON, NEW HAMPSHIRE )

Defendant, )

)

DAVID SLADE and MARILYN SLADE, )

Intervenor-Defendants )

__________________________________________)

MEMORANDUM OF LAW

 IN SUPPORT OF 

INTERVENORS’ MOTION FOR STAY OF ORDER 

NOW COME the Intervenors/Defendants, David and Marilyn Slade, and submit the

following memorandum of law in support of Intervenors’ Motion for Stay of Order:

INTRODUCTION 

The issue before the Court at the present time is the granting of a discretionary stay

which would have the effect of preventing the Plaintiff, Industrial Communications and

Electronics, Inc., from the immediate construction of the proposed cell tower overlooking Lake

Winnipesaukee in the Alton Bay area of the Town of Alton, New Hampshire. 

In Centronics Data Computer Corp v. Merkle-Korff Industries, 503 F.Supp. 168, 170

(D.N.H. 1980), Judge Loughlin adopted the seven-factor test for determining an application for a

stay that was utilized in Universal Gypsum of Georgia, Inc. v. American Cyanamid Co., 390

Case 1:07-cv-00082-JL Document 79 Filed 05/20/10 Page 1 of 5
2

F.Supp. 824, 827 (S.D.N.Y. 1975). As detailed below, the following factors are considered

when balancing the hardships of granting a stay: 1) the capability of the state court; 2) the nature

of relief available and speed of determination; 3) any emergency needs of either party; and 4)

any hardship that granting or denying the stay would have on the public.

In Gypsum, the court held that Gypsum would not be prejudiced by the entry of a stay

because it would be “afforded a full and fair opportunity to litigate all issues before a highly

competent tribunal whose expertise in New York law must be regarded as equal to, if not greater

than that of this court.” Id at 828. In exercising its discretion to grant a stay, the court stated,

“we believe that public policy considerations and certain well defined principles may justify the

exercise of a federal court’s discretion to stay proceedings.” Id at 829.

In Companion Life Insurance Co, v. Matthews, 547 F.Supp. 836, 841 (S.D.N.Y. 1982),

the court weighed the factors laid out in Gypsum, and granted the stay, stating:

“The same parties have appeared in both of these actions, and no one contends

that the relief available in the New Jersey Action or the speed with which it can

be dispensed is any less adequate than could be achieved in this Court. Further,

the possibility that Companion will be subject to nonresident prejudice in New

Jersey is far too speculative and insubstantial to affect this balance of factors: One

cannot seriously argue that Companion faces more negative sentiment in New

Jersey because it is a New York corporation than it would if it were a New Jersey

corporation. Rather, the prejudice against Companion, if any, stems from its

status as a large insurance company refusing to pay a grieving and needy widow.

This form of prejudice could as easily infect a jury in Manhattan as it could a jury

Case 1:07-cv-00082-JL Document 79 Filed 05/20/10 Page 2 of 5
3

in Morristown, New Jersey, less than forty miles westward. Indeed, the ethnic and

economic differences between jurors in Manhattan and those in its affluent exurbs

suggests that Companion will confront less prejudice in Morristown than it would

here.”

In Alameda Room, Inc. v. Pitta, 538 F.Supp. 1072, 1078 (S.D.N.Y. 1982), the court

found that an issuance of a stay would not prejudice any of the parties, stating that “[w]hile the

state court's adjudication of Alameda's first petition may have res judicata or collateral estoppel

effect with respect to this Court's adjudication of one or more of the issues raised by Alameda's

second petition, there is no reason to view the state court as any less capable than this Court to

arrive at a proper determination of the rights of the parties with respect to such issues.” 

The United States Supreme Court addressed the requirements in staying a judgment from

district court pending determination of certiorari, and in part considers the importance of

balancing the equities “to explore the relative harms to applicant and respondent, as well as the

interests of the public at large.” Barnes v. E-Systems, Inc. Medical & Surgical Insurance Plan,

501 U.S. 1301, 1305 (1991)(quoting Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980)). “The

likelihood that denying the stay will permit irreparable harm to the applicant may not clearly

exceed the likelihood that granting it will cause irreparable harm to others. Barnes, 501 U.S. at

1305. In Barnes, the Court granted the motion to stay since it was not aware of any irreparable

harm that granting the stay would produce.

In the instant matter, applying the tests articulated above, the Court has more than

enough information to meet the tests articulated. First, the State Court to which this matter will

in all likelihood be presented (the Belknap County Superior Court) has appropriate jurisdiction

to hear claims arising from the recent agreement submitted by the Plaintiff and the Town. 

Case 1:07-cv-00082-JL Document 79 Filed 05/20/10 Page 3 of 5
4

Second, the same Court has the ability to provide the relief necessary to resolve the issues arising

from the grant of the variance by the Town and is specifically authorized to do so under New

Hampshire law. In reference to the availability of a speedy remedy to this matter, the New

Hampshire statutes dealing with such appeals require, as a matter of law, that the Superior Court

give such appeals priority on the Court calendar (See RSA 677:4). In analyzing the third

portion of the tests previously articulated by the Court, there is no emergency need on the part of

ICE to construct this tower and there is certainly a direct impact on the Slades and their property

rising to an emergency level if relief is not granted by the Court at this stage. Finally, as

discussed above, hardship suffered by the Slades greatly outweighs any imposed upon ICE. The

Defendant Town, of course, suffers no hardship whatsoever by the granting of a stay. 

CONCLUSION

Based upon the facts of this case, the right for further relief noted by the Court in its prior

decision and relevant case law and statutes as cited above, the Intervenors are entitled to a stay

of the May 7, 2010 order while they pursue additional legal remedies. 

Respectfully submitted,

David Slade and Marilyn Slade,

WESCOTT, DYER, FITZGERALD & NICHOLS, PA

Dated: May 20, 2010 __s/Paul T. Fitzgerald___________________

Paul T. Fitzgerald, NH Bar ID #807

Case 1:07-cv-00082-JL Document 79 Filed 05/20/10 Page 4 of 5
5

CERTIFICATION OF SERVICE

I hereby certify that a copy of the foregoing will be sent to counsel of record this day via

the Court’s Electronic Case Filing System. 

___s/Paul T. Fitzgerald___________________________

Paul T. Fitzgerald, NH Bar ID #807

Wescott, Dyer, Fitzgerald & Nichols, P.A.

28 Bowman Street, PO Box 1700

Laconia, New Hampshire 03247-1700

(603) 524-2166 – telephone

(603) 528-2122 – facsimile

Case 1:07-cv-00082-JL Document 79 Filed 05/20/10 Page 5 of 5