Granite Rose Motion to Dismiss

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THE STATE OF NEW HAMPSHIRE
ROCKINGHAM, ss. SUPERIOR COURT
SANS and MARCY MILBURY,
Plaintiffs,
v. CIVILACTION NO. 08-C-0071
THE KIELEY CORPORATION,
Defendant.
____________________________
ELEAZAR and JILLIAN FERNANDEZ,
On behalf of themselves and their minor Child,
ZHAIRA M. FERNANDEZ, and
JESSICA D. SCHERER,
Plaintiffs, CIVILACTION NO. 10-CV-00911
v. HEARING REQUESTED
HEATHER CARSON,
THE KIELEY CORPORATION, and
CYNTHIA CEILAN,
Defendants.
_____________________________
MOTION TO DISMISS
Defendant in the Cross-Claim, Heather Carson (“Carson”), hereby moves the Court
through the following Motion to Dismiss to dismiss all counts brought by the Plaintiffs, Jessica
Scherer, Zhaira Fernandez, and Mr. and Mrs. Fernandez (the “Plaintiffs”) against her in the
above captioned case. The Plaintiffs have failed to state claims upon which relief can be granted.

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A detailed Memorandum of Law with citations to the record and setting forth the legal
arguments accompanies this Motion. The Motion is based upon facts and allegations that are
apparent from reviewing the record, is dispositive of the case, and it is not the type of motion
which the Court can expect the parties to agree upon. Nonetheless, Carson provides an Affidavit
in Support of Motion to Dismiss which accompanies this Motion.
Because the Motion is dispositive, Carson requests a hearing and oral argument on the
Motion at a date and time to be set by the Court within 30 days .
Respectfully Submitted,
DEFENDANT
By her attorney,
John J. Hightower, (BBO #661679)
90 Pleasant Street
Suite 12
Randolph, MA 02302
(617) 308-7136
` john_j_hightower@yahoo.com
Dated: June 1, 2011
CERTIFICATE OF SERVICE
I, John J. Hightower, certify that a copy of the forgoing and Memorandum of Law has
been served on all parties of record or their attorneys in the above captioned cases on June 4,
2011, by first class mail.

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THE STATE OF NEW HAMPSHIRE
ROCKINGHAM, ss. SUPERIOR COURT
Plaintiffs,
v. CIVILACTION NO. 08-C-0071
THE KIELEY CORPORATION,
Defendant.
____________________________
ELEAZAR and JILLIAN FERNANDEZ,
On behalf of themselves and their minor Child,
ZHAIRA M. FERNANDEZ, and
JESSICA D. SCHERER,
Plaintiffs, CIVILACTION NO. 10-CV-00911
v. HEARING REQUESTED
HEATHER CARSON,
THE KIELEY CORPORATION, and
CYNTHIA CEILAN,
Defendants.
_____________________________
MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
I. INTRODUCTION
The underlying litigation was commenced over a year-ago between Mr. and Mrs. Milbury
(the “Milburys”) and the Granite Rose (the “Granite Rose”) for breach of contract related to
wedding festivities that went awry at the Milbury’s wedding. Those parties proceeded for nearly

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one year towards preparing their cases for trial. Nearly at trial, Jessica Scherer, Mr. and Mrs.
Fernandez, and the Zhaira Fernandez (the “Plaintiffs”) initiated a nuisance Cross-Claim against
the Milbury’s, the Granite Rose, and Heather Carson (“Carson”) to generate a $1,000,000
financial gain. With all fingers substantially pointing towards the Plaintiffs as culprits for two
years, the Plaintiffs now try to portray Carson as somehow responsible for the consequences of
their own wrongdoing by bringing exotic Cross-Claims against her that allege that Carson is
responsible for criminal defamation, defamation, an unknown intentional tort, and intentional
infliction of emotional distress. The Plaintiffs’ claims naturally fail, as they should, because the
Plaintiffs’ cannot truthfully allege facts supporting their conclusory accusations. The Court
should dismiss the Complaint against Carson for the numerous reasons set forth below.
II. FACTS
The Plaintiffs filed a Cross-Claim against Carson alleging intentional infliction of
emotional distress (Count IV), intentional tort of committing an all out brawl resulting in
physical damage to the Plaintiffs (Count V), Slander (Count VI), and criminal defamation (Count
VII).
The unsupported conclusory allegations of the Complaint which warrant dismissal of all of
Plaintiffs’claims
The Plaintiffs allege in Count VI that Carson committed slander. The allegations as they
pertain to the Motion to Dismiss are: The Plaintiffs had an open bar at their wedding where their
guests could drink freely throughout the evening (24-6). Another wedding party was at the
Granite Rose on the same day, the Milbury’s and guests from both parties were using a common
bathroom. (42-72) Members of the Plaintiffs’ wedding party where drinking on the date of the
wedding. (82-91, 103). After consuming several intoxicating beverages, the bride became ill

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and she was accompanied by several other individuals from the Plaintiffs’ wedding party into a
closed stall. (42-72, 336) The bride was so ill she had to remain in the closed stall for a period of
an half an hour. (Id.). Mrs. Fernandez vomited and required aide and assistance from her
wedding guests and staff of the Granite Rose to “make her feel better.” (90)
Carson entered the bathroom twice, while Mrs. Fernandez was ill inside of a closed stall
getting assistance for her “illness”. The Plaintiffs allege that the first time Carson entered the
bathroom, she claimed that the individuals in the stall behind a closed door were vomiting and
using drugs. (98-99) The Complaint does not allege that Carson specifically knew that the
individuals in the stall were the Plaintiffs. (1-372) The Complaint also does not allege that
Carson made statements to third parties outside of the stall so they could identify the individuals
within the stall as the Plaintiffs, which were the subject to any alleged ridicule by Carson. (Id.).
The Plaintiffs allege that Carson entered the bathroom on a second occasion. During this
occasion, the Plaintiffs, in anger and after consuming alcohol, opened the door to confront
Carson. (117) The Complaint fails to allege that any third parties were present when Carson
allegedly made statements on the second occasion to hear or know that the Plaintiffs were the
subject of any of Carson’s allegations. (113-122)
In Count VI, the Plaintiffs claim that “Ms. Carson’s outburst, having occurred in the
common bathroom, was heard by a large number of women from both wedding parties.” (Id.)
Yet Plaintiffs do not allege that Carson’s “outburst” contained any information that would allow
third parties to identify Mrs. Fernandez or Scherer as the object of any statements. (1-372)
Plaintiffs in conclusory fashion, and without support, then claim that “Plaintiffs Mrs. Fernandez
and Mrs. Scherer were easily identifiable as the objects of her remarks, being the bride and maid

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of honor of the only other wedding, at the facility, respectfully.” (324) Yet Plaintiffs do not
allege that Carson made any statements that it was the bride or the maid of honor from the
Fernandez wedding party were vomiting or using drugs. (1-372)
The Plaintiffs make conclusory statements that Carson was responsible for intentional
infliction of emotional distress and intentional tort due to injuries Mr. Fernandez suffered to his
arm during a brawl between males at the wedding party and for Zharia Fernandez having to
watch the events unfold. (300-16). Yet the Plaintiffs fail to allege that Carson, a female,
participated in any brawls between males, that she physically touched Mr. Fernandez, that she
had a duty to prevent harm to Mr. Fernandez, or that she instructed anyone to strike Mr.
Fernandez. (1-372) Furthermore, the Plaintiffs state that Mr. Fernandez’s injuries were directly
caused by the police, third parties whom the Plaintiffs never sued. (204, 208).
III. ARGUMENT
First, Count IV and Count V against Carson flatly fail to state claims upon which relief
can be granted. The Plaintiffs’ claims for intentional infliction of emotional distress and inten-
tional tort all fail and should also be dismissed by the Court. Second, Count IV and Count V
sounding in defamation should be dismissed for two simple reasons. Number one, because the
Plaintiffs fail to allege that Carson made any statements regarding the Plaintiffs to third parties so
as those third parties attributed any defamatory statements to the Plaintiffs. Number two, even
accepting the facts asserted by the Plaintiffs, the statements purportedly made by Carson are not
defamatory or, even if made, would be substantially true given the Plaintiffs’ own admissions.

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IV. STANDARDS
A motion to dismiss is the proper means of raising the issue of failing to state a claim up-
on which relief can be granted. “In considering a motion to dismiss, the standard of review is
whether the allegations in the plaintiff's pleadings are reasonably susceptible of a construction
that would permit recovery. We assume the plaintiff's pleadings to be true and construe all rea-
sonable inferences drawn therefrom most favorably to her. We need not assume the truth of
statements in the plaintiff's complaint, however, which are merely conclusions of law.” Karch v.
Baybank FSB, 147 N.H. 525, 530 (N.H. 2002) (emphasis added; citations omitted; internal quo-
tation marks omitted); see also Brzica v. Trs. of Dartmouth College, 147 N.H. 443 (N.H. 2002)
(“The court must rigorously scrutinize the complaint to determine whether, on its face, it asserts
a cause of action.”). “In determining whether, as a matter of law, a motion to dismiss should be
granted, all facts properly pleaded and the reasonable inferences therefrom are construed most
favorably to the plaintiffs.” Thomson v. Cash, 119 N.H. 371, 373 (N.H. 1979). “In reviewing a
motion to dismiss . . . we ask whether the plaintiff's allegations are reasonably susceptible of a
construction that would permit recovery." Gardner v. City of Concord, 137 N.H. 253, 255 (N.H.
1993) (internal quotation marks omitted). “However, we need not accept allegations in the writ
that are merely conclusions of law.” Id.
a. Plaintiffs’ Intentional Infliction of Emotional Distress Counts Fail to State
Causes of Action Because a Fight Does not Qualify as “Outrageous” Con-
duct and the Plaintiffs fail to Plead Facts Showing Intentional Conduct
on Behalf of Carson Which Could Rationally and Casually Be Linked to
the Plaintiffs’ Damages.
The applicable legal standards for alleging an action of intentional emotional distress is
well-known to the Court. “One who by extreme and outrageous conduct intentionally or reck-

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lessly causes severe emotional distress to another is subject to liability for such emotional dis-
tress, and if bodily harm to the other results from it, for such bodily harm.” Mikell v. Sch. Admin.
Unit #33, 158 N.H. 723, 728 (N.H. 2009). “It is not enough that the defendant has acted with an
intent which is tortuous or even criminal, or that he has intended to inflict emotional distress, or
even that his conduct has been characterized as malice, or a degree of aggravation which would
entitle the plaintiff to punitive damages for another tort. Liability has been found only where the
conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possi-
ble bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized socie-
ty.” Laramie v. Cattell, 2007 N.H. Super. LEXIS 6 (N.H. Super. Ct. 2007); see also Restatement
(Second) of Torts § 46, cmt. d at 73. “The plaintiff must allege that “[e]motional distress . . . in
fact resulted from the defendant's conduct, and [that] the distress [is] severe.” Laramie v. Cattell,
2007 N.H. Super. LEXIS 6 (N.H. Super. Ct. 2007) (citing Morancy v. Morancy, 134 N.H. 493
(N.H. 1991)).
While the Courts of New Hampshire recognize that the intentional infliction of emotional
distress as a cause of action, plaintiffs cannot recover for every infraction they claim are caused
by other citizens. The Plaintiffs must, at a minimum, allege facts showing (1) that the defendant’s
conduct caused the plaintiff’s injuries and (2) that the damages suffered by the plaintiff (again
caused by the defendant) are severe.
Case in point, the plaintiffs in Laramie claimed that the defendants handled intentional
emotional distress when their employer made false accusations to terminate them. Laramie v.
Cattell, 2007 N.H. Super. LEXIS 6 (N.H. Super. Ct. 2007). In reviewing the facts as alleged by
the plaintiff, the Court held that the plaintiffs failed to allege conduct that went beyond all
bounds of decency. The Court reasoned that while lying or making false statements may have

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been in the defendant’s self-interests, making self-serving statements did not amount to conduct
that was extreme and outrageous, and that was beyond all bounds of decency. Laramie v. Cattell,
2007 N.H. Super. LEXIS 6 (N.H. Super. Ct. 2007); see also Mikell v. Sch. Admin. Unit #33, 158
N.H. 723, 729 (N.H. 2009); cf Karch v. Baybank FSB, 147 N.H. 525, 530 (N.H. 2002) (allega-
tions of abuse of power, false allegations, and threats of termination supported a cause of action
for IIED).
In the present case, the Plaintiffs alleged Carson is responsible for intentionally causing a
brawl between two wedding parties after the Granite Rose had shut down the facilities due to the
intoxication of the Fernandez’s guests, after the police have arrived and after the police took one
of the admitted protagonist (Mr. Fernandez) into custody, and after the police used physical force
to allegedly harm Mr. Fernandez. (204, 208, 300-16) The Complaint further asserts that Carson
is responsible for the intentional acts of others without ever alleging that Carson had any duty to
control their acts. (1-372) such strained and attenuated allegations by no stretch of imagination
show intentional emotional distress because the Plaintiffs fail to allege (because they cannot) a
fact showing that it was Carson’s actions that caused any of the Plaintiffs’ physical or emotional
harm on that night. (204, 208, 300-16) The Plaintiffs do not allege the necessary facts that Car-
son participated in any brawls between male quests of either wedding party or that Carson in-
structed anyone else to participate in any brawls. (1-372) The Complaint does not allege inten-
tional conduct that Carson instructed anyone to strike Mr. Fernandez, that they harm Zhaira
Fernnadez, or that she falsely instructed the police to apprehend Mr. Fernandez. (Id.) Even if
the Plaintiffs attenuated claims could survive under basic scrutiny (must lest the rigorous scruti-
ny standard that the Court must apply) their specious claims still fail to show factually how the
intentional acts of Carson are responsible for the Plaintiffs’ injuries. See Brzica v. Trs. of Dart-

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mouth College, 147 N.H. 443 (N.H. 2002) (court must rigorously scrutinize the plaintiff’s allega-
tions in deciding if the complaint survives a motion to dismiss).
Next, being a participant in a fight is not extreme or outrageous conduct beyond all
bounds of decency. Appropriate remedies for similar conduct in tort are available such as assault
and battery; however, the Plaintiffs cannot allege a cause of action for assault and battery for
many of the same glaring reasons: under no set of facts can the Plaintiffs show direct links or
causation between Carson’s actions and the injuries that the Plaintiffs claim they suffered hap-
pened at their own hands. The Plaintiffs’ claims for an unspecified “Intentional Tort” in Count
VI is especially revealing in this regard.
Count VI claims that Carson is liable for “Intentional Tort”. But the supporting sparse
paragraphs provide only conclusory statements that the injuries sustained by Mr. Fernandez re-
sult directly from a brawl. The Plaintiffs fail to allege facts from which reasonable inferences
can be drawn that Carson is responsible for injuries sustained by Mr. Fernandez when the Plain-
tiffs readily admit that Mr. Fernandez’s arm was injured when the police took him into custody.
(204, 208) The Plaintiffs further do not state intentional conduct on behalf of Carson that Carson
intended for the police to take Mr. Fernandez into custody or that she acted in concert with any-
one else for the purpose of having the police place Mr. Fernandez into custody.1
(1-372)
For all of the above stated reasons, the Court should dismiss the Intentional Tort and In-
tentional Infliction of Emotional Distress Counts against Carson.
1
Carson submits to the Court that the reasons the Plaintiffs have not alleged assault and battery Is because there was no contact between Carson and
Milbury, and Mr. Fernandez or that Carson instructed anyone to strike anybody else. So the only feasible, logical way to file suit against Carson is
foreclosed. The Plaintiffs also do not allege negligent infliction of emotional distress as that cause of action cannot be maintained by the Plaintiffs.
Carson has no duty to prevent Mr. Fernandez from engaging in criminal acts such as that he is required to be restrained by the police. Furthermore,
the Plaintiffs cannot prove proximate and direct causation as a matter of law under such exotic facts, especially in light of the admissions they make
within their Complaint. Consequently, the Plaintiffs allege an unknown intentional tort that borrows negligence type elements such as that Carson set
in Motion “a chain of events” that stem “directly from” a brawl allegedly caused by Carson. These are the elements of negligence of causation, but
without the other necessary elements of duty, breach, proximate cause, and damages relating from tortuous conduct. The State of New Hampshire
does not recognize hybrid causes of action of intentional and negligent tort–plaintiffs must allege an appropriate intentional tort or negligence. Because
they failed to do either, Count VI must be dismissed.

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b. The Plaintiffs Fail to Plead Facts Showing that Carson’s statements were
made applicable to the Plaintiffs by Third Parties. Plus, the Alleged
Statements, if Actually Uttered, Would be Substantially True.2
It is well established in New Hampshire law that private plaintiffs lack the ability to pur-
sue criminal prosecutions against other private individuals. The standards for alleging acCom-
plaint for defamation is likewise known and followed by the courts of New Hampshire. “A
plaintiff establishes defamation by showing that the defendant failed to exercise reasonable care
in publishing a false and defamatory statement of fact about the plaintiff to a third party, unless a
valid privilege applies to the communication.” Thomas v. Tel. Publ'g Co., 155 N.H. 314, 326
(N.H. 2007) (emphasis added.). “Publication requires that the defamatory statement be made to
a third person who understands its defamatory meaning and its applications to the plaintiff.” 1-
24 New Hampshire Civil Jury Instruction § 24.5 (emphasis added.); see also Restatement (Sec-
ond) of Torts §§ 577 (Comment c), 563(b) (1977); Thomson v. Cash, 119 N.H. 371, 375, 402
A.2d 651, 653-54 (1979). “One who publishes a defamatory statement of fact is not subject to
liability for defamation if the statement is true. In the law of defamation, truth is defined as sub-
stantial truth, as it is not necessary that every detail be accurate. In other words, literal truth of a
statement is not required so long as the imputation is substantially true so as to justify the gist or
sting of the remark.” Thomas v. Tel. Publ'g Co., 155 N.H. 314, 335 (N.H. 2007) (emphasis add-
ed); see also Palmer v. Concord, 48 N.H. 211 (N.H. 1868). “[New Hampshire Courts] analyze
claims of substantial truth by examining individual [statements] in light of the context of [all of
the statements made] as a whole.” Thomas v. Tel. Publ'g Co., 155 N.H. 314, 336 (N.H. 2007).
Under the facts, the Plaintiffs have failed to state facts showing their entitlement to relief
for defamation. While the Plaintiffs contend that Carson purportedly made defamatory state-
2
All arguments made by Carson in support of the Motion to Dismiss the civil defamation counts are hereby expressly equally made applicable to the
criminal defamation count in the Complaint in support of dismissal of that claim as well. Carson also notes that, while the Plaintiffs sued Carson for
defamation and slander, they likewise sued an author. Cynthia Celian, who published a book concerning purported defamatory statements. Plaintiffs’
efforts in doggedly pursuing Carson are misplaced based on the facts and the law.

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ments, the Plaintiffs must allege and show facts that Carson made statements that qualify as de-
famatory and that Carson’s statements were made applicable to the Plaintiffs by third parties. A
conclusory allegation and legally sufficient facts supporting an allegation are not the same. See
Karch, supra, 147 N.H. at 530 (court cannot accept mere conclusory statements as weighing
against dismissal).
Scrutinizing the Plaintiffs’ allegations, the Plaintiffs fail to state that Carson committed
any acts of defamation when Carson entered the bathroom because they do not allege facts from
which any of Carson’s comments could apply to the Plaintiffs by third parties. For instance, the
Plaintiffs claim that Carson made defamatory statements about their activities while they were in
the bathroom behind a closed door. It’s impossible (and the Plaintiffs do not dare allege) that any
of the patrons in the bathroom knew that it was the Plaintiffs who were within the bathroom stall
and that were the subject of Carson’s purportedly made comments. (1-372) The Plaintiffs never
alleged that Carson commented expressly using the Plaintiffs’ names or that she commented
providing any details from which third parties in a bathroom could find that Carson’s comments
were deemed applicable to the Plaintiffs. (1-372) Reaching a contrary result would require the
Court to rely upon conclusory allegations and unreasonable inferences.
The Complaint further lacks any allegations that the Plaintiffs spoke to any third parties
that claimed that it was Carson that made defamatory statements about the Plaintiffs. The Com-
plaint is devoid of any specific mention by the Plaintiffs that Carson mentioned or identified in-
dividuals from the Plaintiffs’ wedding party, either Scherer or the Fernandez’s (or anyone else in
the bathroom stall), as vomiting or using drugs. (Id.) Even accepting the Plaintiffs’ allegations
as true, the Plaintiffs have failed to allege facts showing that Carson’s statements were actually
applicable made to the Plaintiffs by third parties. The Court cannot overlook such glaring defi-

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ciencies and rely upon conclusory statements to support Plaintiffs claims. See Karch, supra, 147
N.H. at 530.
Notwithstanding the forgoing, based on the Plaintiffs’ own admissions, the comments
purportedly made by Carson would be substantially true so as not to qualify as defamatory.
The exact details of what made Mrs. Fernandez ill aside, “the imputation [i.e., Mrs. Fernandez
vomiting in the bathroom, occupying the bathroom for an inordinate amount of time, and requir-
ing the assistance of others, all after admittingly consuming alcohol at an open bar) is substan-
tially true so as to justify the gist or sting of [the alleged remarks].” See, e.g, Thomas, supra, 155
N.H. at 336; see Complaint (42-72, 82-91, 103).
V. CONCLUSION
For the forgoing reasons, the Court should dismiss the Complaint brought by the Plain-
tiffs’, with prejudice and in its entirety.
Respectfully Submitted,
DEFENDANT
By her attorney,
John J. Hightower, (BBO #661679)
90 Pleasant Street
Suite 12
Randolph, MA 02302
(617) 308-7136
` john_j_hightower@yahoo.com

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Dated: June 1, 2011

Granite Rose Motion to Dismiss

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