David Meehan Et Al v. State of New Hampshire, Department of Health and Human Services et al.

HE STATE OF NEW HAMPSHIRE

MERRIMACK, SS. SUPERIOR COURT

217-2020-CV-00026 David Meehan v.

New Hampshire Department of Health and Human Services et al

STATE DEFENDANTS’ MOTION TO DISMISS

PLAINTIFF’S CLASS ACTION COMPLAINT

The State of New Hampshire Department of Health and Human Services (“DHHS”); Kerrin Rounds, Acting Commissioner of DHHS; Division of Juvenile Justice Services (“DJJS”); Division for Children, Youth and Families (“DCYF”); and Sununu Youth Services Center (“SYSC”) f/k/a Youth Development Center (“YDC”) (hereafter, collectively, “the State Defendants”), by and through their attorneys, the Office of the Attorney General, moved to dismiss the dismiss Plaintiff’s Class Action Complaint, or alternatively, to strike the class allegations from the Complaint, or to deny class certification, and to dismiss the Plaintiff’s remaining individual claims, as follows:

1. Plaintiff has filed this action individually and on behalf of a putative class, which he defines as: Both men and women who, while minors in the care, custody and control of the defendants, were victims of physical, sexual, and mental emotional abuse, solitary confinement, and deprivation of education at the hands of defendants, their agents, employees, and/or contractors.

2. Plaintiff has named individual defendants, in addition to the State Defendants.

3. To State Defendants’ knowledge, the individual defendants named have not been served.

4. As against the State Defendants, the Plaintiff has alleged substantive claims in six counts: Count I: Negligent Training and Supervision, Count II: Negligence (Failing to Enact Rules), Count III: Breach of Fiduciary Duty, Count VI: Cruel and Unusual Punishment (Failing to Enact Rules), Count VII: Title IX Sex Discrimination in Education, and Count VIII: Failure to Provide a Free Public Education.

5. State Defendants seek by this motion to dismiss this action in its entirety for the reasons which follow.

6. First, the class allegations in this action should be dismissed (or stricken, or class certification denied) inasmuch as:

a. The Plaintiff’s class definition is not “sufficiently definite” and “clearly ascertainable” that the court can determine whether a particular individual is a member of it; and

b. The Plaintiff has not alleged sufficient facts in the Complaint to make a prima facie showing that each of the following Rule 16 prerequisites is satisfied, or at least that discovery is likely to produce substantiation of the class allegations, that:

(1) The class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable;

(2) There are questions of law or fact common to the class which predominate over any questions affecting only individual members;

(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class;

(4) The representative parties will fairly and adequately protect the interests of the class;

(5) A class action is superior to other available methods for the fair and efficient adjudication of the controversy; and

(6) The attorney for the representative parties will adequately represent the interests of the class.

7. Next, Count VIII fails to state a viable claim in favor of any individual, and should be dismissed because Part II, Article 83 of the New Hampshire Constitution does not create a right of action sounding in constitutional tort, as the Plaintiff seems to allege.

8. And finally, all of the claims brought by Plaintiff individually should be dismissed because they are barred by limitation on the face of the Complaint, and plaintiff has not pled sufficiently to save his claims through invocation of the discovery rule, or by application of the doctrines of fraudulent concealment and/or equitable tolling.

WHEREFORE, the State Defendants respectfully request that this Honorable Court: (A) Dismiss (or strike) the class allegations in this case (or deny class certification) based upon the pleadings alone; (B) Dismiss the claims brought by Mr. Meehan, individually, as failing to state a claim and as barred by limitations; and (C) Grant such further relief as may be deemed just and proper.

Respectfully submitted,

STATE OF NEW HAMPSHIRE,

DEPARTMENT OF HEALTH AND HUMAN

SERVICES; Kerrin Rounds, Acting Commissioner of DHHS; DIVISION OF JUVENILE JUSTICE SERVICES; DIVISION FOR CHILDREN, YOUTH AND FAMILIES; and SUNUNU YOUTH SERVICES CENTER f/k/a YOUTH DEVELOPMENT CENTER By Their Attorneys,

THE OFFICE OF THE NEW HAMPSHIRE

ATTORNEY GENERAL

Date: February 8, 2021 _____/s/ Jennifer Ramsey Jennifer Ramsey, Bar # 268964 Assistant Attorney General Civil Bureau Department of Justice 33 Capitol Street Concord, NH 03301

(603) 271-3650 jennifer.s.ramsey@doj.nh.gov

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was sent via the court’s electronic filing system to all counsel of record. _____/s/ Jennifer Ramsey Jennifer Ramsey