UNITED STATES DISTRICT COURT 

DISTRICT OF NEW HAMPSHIRE

William Carey Carlberg, Jr.

v. Case No. 08-cv-230-PB

N.H. Dep’t of Safety, et. al.

O R D E R

I agree with the defendants that the court lacks

jurisdiction over plaintiff’s Uniformed Services Employment and

Reemployment Rights Act of 1994 (“USERRA”) claims against the

Department of Safety and the individual defendants in their

official capacities. I also agree that plaintiff lacks viable

USERRA claims against the individual defendants in their

individual capacities. I base these conclusions on the Ninth

Circuit’s decision in Townsend v. University of Alaska, 2008 WL

4093608 (9th Cir. 2008), the Fifth Circuit’s decision in McIntosh

v. Partridge, 540 F.3d 315 (5th Cir. 2008), and the Seventh

Circuit’s decision in Velasquez v. Frapwell, 165 F.3d 593 (7th

Cir. 1999). The First Circuit’s decision in Diaz-Gandia v.

Dapena-Thompson, 90 F.3d 609 (1st Cir. 1996) is inapplicable

because it was issued before Congress substantially amended the

USERRA’s venue and jurisdiction provisions in 1998. See

Townsend, 2008 WL 4093608, at *2 (discussing amendments). 

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Accordingly, plaintiff’s USERRA claims against the Department of

Safety and the state defendants in their official capacities are

dismissed without prejudice. Plaintiff’s USERRA claims against

the individual defendants in their individual capacities are

dismissed for failure to state a claim. 

Plaintiff has failed to explain how he has stated viable

claims against either Superior Court Judge Kenneth McHugh or

Attorney General Kelly Ayotte. These claims are dismissed for

failure to state a claim. 

Plaintiff has pleaded minimally sufficient constitutional

claims against the remaining individual state defendants in their

individual capacities. Whether the evidence will support these

claims is a matter that will have to be resolved either on

motions for summary judgment or at trial. Defendants’ motions to

dismiss these claims are denied without prejudice to their right

to renew their arguments in a properly supported motion for

summary judgment. 

Defendants fail to present a coherent argument that any of

plaintiff’s state law claims against the individual defendants in

their individual capacities are barred by sovereign immunity. 

Defendants’ motions to dismiss based on sovereign immunity are 

denied.

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 I decline to assess the merits of plaintiff’s state law

claims at this time. Defendants shall file a motion for summary

judgment addressing the plaintiff’s constitutional claims within

90 days. If I grant that motion, I will decline to exercise

supplemental jurisdiction over plaintiff’s state law claims. 

Defendants’ motion to dismiss plaintiff’s state law claims (other

than plaintiff’s claims against Ayotte and McHugh) is denied

without prejudice.

Defendants’ motions to dismiss (Doc. Nos. 18 and 19) are

granted in part and denied in part. 

SO ORDERED.

/s/Paul Barbadoro

Paul Barbadoro

United States District Judge

October 15, 2008

cc: William Carey Carlberg, Jr., Pro Se

Laura E. B. Lombardi, Esq.

James W. Donchess, Esq.

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