UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHRE 

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Jane Doe, 

 Plaintiff 

v. 1:08-cv-131-JL 

School Administrative Unit (SAU) 73, 

Gilford School District, 

 Defendants 

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DEFENDANTS’ RULE 12(b)(6) MOTION TO DISMISS

 NOW COME the defendants, Gilford School District and SAU #73, by and 

through their counsel, Getman, Stacey, Schulthess & Steere, P.A., and pursuant to 

Federal Rule of Civil Procedure 12(b)(6) move to dismiss plaintiff’s complaint for failure 

to state a cause of action. 

 1. Plaintiff commenced this action in the Belknap County Superior Court. Due to 

the sensitive nature of the allegations raised by plaintiff, this case was transferred to the 

Hillsborough County Superior Court, Northern District, and specially assigned to Judge 

Abramson. At the same time she filed the above-captioned action, plaintiff filed a 

separate writ of summons against the Gilford School District, SAU #73, SAU #30 and 

Matthew McGonagle, which was also transferred to Judge Abramson from the Belknap 

County Superior Court. Upon transfer, Gilford School District, SAU 73 and SAU 30 

moved to consolidate both writs of summons. Counsel for Matthew McGonagle 

consented to consolidation, while counsel for plaintiff did not. For ease of reference in 

Case 1:08-cv-00131-JL Document 4 Filed 04/25/08 Page 1 of 6
this motion, the companion case will be referred to as “Jane Doe I” (docketed in this 

court as 08-cv-132-PB) and the above-captioned matter will be referred to as “Jane Doe 

II”. 

 2. While the motion to consolidate Jane Doe I and Jane Doe II was pending 

before Judge Abramson, the Gilford School District, SAU 73 and SAU 30 provided 

notice of removal of both actions to this Court pursuant to Fed. R. Civ. P. 81. Jane Doe I 

alleged a specific breach of federal statutes, thus affording federal question jurisdiction 

over that action. Both cases were removed as the Superior Court had not yet had an 

opportunity to rule on the pending motion to consolidate and consolidation is mandated 

by RSA 507-B:3. 

 3. For the reasons that follow, plaintiff’s complaint in the above-captioned matter 

must be dismissed for failure to state a claim. 

 4. As alleged by plaintiff, Gilford School District and SAU 73 negligently 

disclosed confidential information pertaining to plaintiff (writ ¶18); caused plaintiff 

emotional distress by allegedly encouraging school administrators, board members and 

staff to attend a public plea and sentencing hearing in support of the individual alleged to 

have assaulted plaintiff (writ ¶19), and generally caused plaintiff distress by their actions 

with respect to support of the alleged perpetrator of the assaults on plaintiff (writ ¶¶21 

through 26). 

 5. A comparison of the complaints in Jane Doe I and Jane Doe II makes it clear 

that both causes of action arise from the underlying misconduct of Matthew McGonagle. 

Both complaints allege emotional distress damages. Furthermore, it is not possible to 

segregate the damages allegedly suffered by plaintiff due to the alleged actions of 

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McGonagle as opposed to her response to McGonagle’s plea hearing. Consequently, 

RSA 507-B:3 requires that the two cases be brought as a single action (“[a]ll actions to 

recover for bodily injury, personal injury or property damage arising out of bodily injury, 

personal injury or property damage to one person shall be tried together, and not 

otherwise”). RSA 507-B:3 is consistent with New Hampshire’s common law rule that a 

single plaintiff may not split a cause of action against a single defendant. Sibson v. 

Robert’s Express, Inc., 104 N.H. 192, 193-194 (1962) (a plaintiff must bring all claims 

for damages arising out of defendant’s negligence in a single cause of action). 

 5. As Jane Doe II may not be maintained separately from Jane Doe I, Jane Doe II 

must be dismissed.1

 6. Furthermore, plaintiff’s claims against the Gilford School District and SAU 73 

are barred by RSA 507-B:2. RSA 507-B:2 was ruled unconstitutional in Dover v. 

Imperial Casualty & Indemnity Co., 133 N.H. 109 (1990). Subsequently, the statute was 

amended in 1991. The current version of RSA 507-B:2 is valid and bars plaintiff’s 

claims. 

 7. RSA 507-B:2 provides: 

 “A governmental unit may be held liable for damages in an action to 

recover for bodily injury, personal injury or property damage caused 

by its fault or by fault attributable to it, arising out of ownership, 

occupation, maintenance or operation of all motor vehicles and all 

premises; . . .” (emphasis added).2

RSA 507-B:2 does not permit unlimited causes of action against governmental units due 

to their alleged fault. In order for a cause of action to be maintained against a 

 

1

 Defendants have filed in Jane Doe I a Rule 12(b)(6) motion alleging inter alia RSA 507-B:2 immunity, 

statue of limitations and failure to state a claim. That motion is pending. 

2

 RSA 507-B:1, I defines governmental unit to include school districts and school administrative units. 

Case 1:08-cv-00131-JL Document 4 Filed 04/25/08 Page 3 of 6
governmental unit, it must be established that the governmental unit is liable for damages 

arising out of its ownership, occupation, maintenance of either motor vehicles or 

premises RSA 507-B:2; Farm Family Casualty Insurance Co. v. Town of Rollinsford, 

155 N.H. 669 (2007). If the plaintiff’s allegations do not fall within the scope of 

potential liability of a governmental unit, the governmental unit is immune. Id. at 674. 

 8. The word “premises” is commonly understood to mean: “a piece of real 

estate; house or building and its land.” Webster’s New World College Dictionary, Third 

Ed., 1063 (1997). Use of the word “premises” in RSA 507-B:2 modifies, and limits, the 

liability of a governmental unit. Rather than merely alleging negligence from general 

operations of a municipality, the plaintiff must allege facts to establish that the purported 

liability arises from the ownership, occupancy, maintenance or operation of municipal 

premises, not merely any property at all. Farm Family Insurance Co. v. Town of 

Rollinsford, 155 N.H. at 673 (2007)(RSA 507-B:2 requires that before liability may be 

imposed on a municipality it must be operating municipal property itself). In this case, 

plaintiff has not alleged that she sustained injury due to any physical characteristic of 

school premises (e.g., a defect in the structure of the school causing injury). Thus, 

liability against the defendants must be found to arise, if at all, from the ownership, 

occupancy, maintenance or operation of the premises. RSA 507-B:2. 

 9. The New Hampshire Supreme Court has previously held that the phrase 

“arising out of” means “originating from, or growing out of, or flowing from the use” of a 

particular object. Cannon v. Maine Bonding & Casualty Co., 138 N.H. 365, 366 (1994) 

(referring to whether injury was “arising out of” use of ownership, maintenance or use of 

a motor vehicle). Whether one can be said to be in “use” of an object requires that the 

Case 1:08-cv-00131-JL Document 4 Filed 04/25/08 Page 4 of 6
object have more than a tenuous connection to the injury alleged. Walsh v. Amica 

Mutual Insurance Co., 141 N.H. 374, 375-376 (1996). As used in RSA 507-B:2 the 

“operation” of “premises” requires a showing that the defendant have engaged in “the 

whole process of planning for and operating a business or other organized unit...the 

operating of or putting and maintaining in action of something....” Farm Family 

Casualty Insurance Co. v. Town of Rollinsford, 155 N.H. 669, 674 (2007) quoting, 

Webster’s Third New International Dictionary 1581 (unabridged ed. 2002). An 

interpretation of RSA 507-B:2 that renders the limitation of liability meaningless is to be 

avoided. Id. at 673. While one could argue that the “operation” of a school premises 

necessarily entails the act of supervising and protecting children and staff, such a 

construction would render meaningless the legislature’s decision to limit governmental 

unit liability to that arising from a particular class of governmental activity, i.e., that 

pertaining to motor vehicles and premises. As the ordinary meaning of “arising out of” 

requires that the liability flow from the “use” of a particular object, and “use” requires 

more than a tangential connection to the use of the object for the purposes for which it 

was intended, plaintiff’s claims are barred. Plaintiff has alleged that her mental distress 

arises from the attendance of school personnel at a public hearing at a county courthouse. 

There is simply no rational way in which to conclude that the asserted liability is any 

more connected to the operation of Guilford School District or SAU 73 premises than 

was the asserted liability against the Town of Rollinsford Fire Department. Farm Family 

Casualty Insurance Co. v. Town of Rollinsford, 155 N.H. 669 (2007). 

10. Defendants have not sought the concurrence of plaintiff to this motion due to 

its dispositive nature. 

Case 1:08-cv-00131-JL Document 4 Filed 04/25/08 Page 5 of 6
 11. No separate memorandum of law is submitted as the applicable law is cited in 

this motion. 

 WHEREFORE, the defendants SAU 73 and the Gilford School District 

respectfully request this Court: 

 A. Dismiss plaintiff’s complaint as failing to state a cause of action pursuant to 

Federal Rule of Civil Procedure 12 (b)(6); 

 B. Grant such other and further relief as may be just and equitable. 

 Respectfully submitted, 

 SAU 73, GILFORD SCHOOL DISTRICT 

 By Their Attorneys, 

 GETMAN, STACEY, SCHULTHESS & 

 STEERE, P.A. 

 By:__ /s/ __________________ _

Dated: April 25, 2008 Dona Feeney #12854 

 John P. Fagan #6828 

 3 Executive Park Drive, #9 

 Bedford NH 03110 

 (603) 634-4300 

CERTIFICATE OF SERVICE

 I hereby certify that a copy of the foregoing was sent this date to Jeffrey B. 

Osburn, Esquire, and James Rosenberg, Esquire, counsel of record. 

 __ /s/ _________________ _

 Dona Feeney #12854 

 John P. Fagan #6828 

F:\dfeeney\4751\06989\mot dismiss sau.doc 

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