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

STATE OF NEW HAMPSHIRE

ROCKINGHAM, SS. SUPERIOR COURT

DAVID MEEHAN

v.

STATE OF NEW HAMPSHIRE,

DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al. 217-2020-CV-00026 and all consolidated YDC and YDSU CASES

STATE DEFENDANTS’ MOTION TO STRIKE

(OR IN THE ALTERNATIVE, MOTION FOR LEAVE TO RESPOND TO)

PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO STATE

DEFENDANTS’ FIRST AND SECOND MOTIONS TO DISMISS

The State Defendants 1 respectfully move that this Court strike Plaintiffs’ “Supplemental Memorandum in Opposition to State Defendants’ First And Second Motions to Dismiss” (the “Memorandum”), except for Part I (pp. 3-4) and Exhibit A thereto, which are addressed below.

Plaintiffs’ Memorandum is largely impermissible both under the Superior Court Rules and this Court’s September 19, 2022, Scheduling Order. The Court should strike the Memorandum except for Part I, which is based upon newly issued law, and Exhibit A. If the Memorandum is not stricken, in the alternative, the Court should allow State Defendants thirty (30) days from the date of this Court’s order on this Motion to respond to the Memorandum. In support of this Motion, State Defendants state as follows:

1. “Whenever a litigant decides to enter the court system to seek justice, he must play by the rules.” Kale v. Combined Ins. Co. of Am., 924 F.2d 1161, 1168 (1st Cir. 1991). By 1 In legal reality there is only one proper State Defendant: DHHS. of tis order. date of the clerk's notice a response within 30 days from the

The State Defendants may file The alternative relief is granted. 2-28-2023 Honorable Andrew R. Schulman February 28, 2023

this order. on Document Sent to Parties Clerk's Notice of Decision 02/28/2023 filing their Memorandum, Plaintiffs have flouted those rules, and the Court should strike the Memorandum (other than Part I and Exhibit A).

2. The Court entered a Scheduling Order on September 19, 2022, which governed the extensive briefing regarding the two Master Motions to Dismiss the Master Complaint.

3. That Scheduling Order allowed State Defendants to file two briefs per Master Motion (a principal brief and a reply) and allowed Plaintiffs to file two briefs per Master Motion (an objection and, pursuant to Superior Court Rule 13A, a surreply). The Scheduling Order does not provide for post-hearing briefing.

4. By the time this Court heard argument on the Master Motions to Dismiss at a multi-hour hearing on January 27, 2023, Plaintiffs had filed a total of approximately 150 pages of briefing, plus an additional approximately 180 pages of exhibits. Plaintiffs’ surreplies alone totaled approximately 50 pages (excluding exhibits).

5. At no time during or after the January 27 hearing did this Court request additional or supplemental briefing. Nor did Plaintiffs seek leave to file additional or supplemental briefing.

6. Nonetheless, at close of business on February 10, 2023, Plaintiffs filed their Memorandum, consisting of approximately 20 additional pages of briefing and 57 pages of exhibits. Plaintiffs claim that there are three “reasons” for their Memorandum: first, to bring the Court’s attention to a New Hampshire Supreme Court decision issued after the hearing (Petition of N.H. Div. for Children, Youth & Families, No. 2021-0563, __ N.H. __, 2023 WL 1806722 (Feb. 8, 2023) [hereinafter Petition of DCYF]); second, to respond to questions regarding Plaintiffs’ fiduciary duty claim; and third, to respond to questions regarding Plaintiffs’ allegations concerning deprivation of education. Memorandum at 1.

7. Only the first reason—which Plaintiffs address in less than two pages of their 20- page brief (see Memorandum at 3-4)—is a permissible basis for Plaintiffs’ filing. Cf., e.g., N.H.

R. Prof. Conduct 3.3(a) (describing attorney’s duty of candor to the tribunal). The Court must strike the remainder of the Memorandum (including exhibits) due to Plaintiffs’ disregard for the Superior Court Rules and the Scheduling Order.

8. Superior Court Rule 13A makes clear that motions practice extends to the moving brief, an objection, a reply, and—if and only if leave of court is granted—a surreply. The Superior Court Rules do not contemplate any further briefing, and Plaintiffs’ Memorandum should be stricken for this reason alone. Even if the Rules contemplated further rounds of briefing (which they do not), Rule 13A would require “permission of the Court” for such briefing, as with a surreply. Super. Ct. R. 13A.

9. Plaintiffs never sought or obtained the Court’s permission, or Defendants’ assent, to file their Memorandum, nor did the Court request supplemental briefing at or after the hearing on the Master Motions to Dismiss. And, as addressed above, the Court’s Scheduling Order does not provide for post-hearing briefing. On each and all of these bases, Plaintiffs’ Memorandum is improper and should be stricken.

10. Moreover, the Court should strike everything in the Memorandum (except for the small portion pertaining to the recently decided Petition of DCYF) because Plaintiffs had an ample opportunity to argue their claims in their preceding 150-plus pages of briefing—including in their approximately 50 pages of surreply briefing. And even in a surreply (to say nothing of this sur-surreply), “new argument” that is “raised for the first time” is “untimely.” Skinny therefore improper, and the Court should strike it for this reason as well.

11. As noted above, State Defendants disagree with Plaintiffs’ characterization of Petition of DCYF and briefly address that decision here. Far from calling into doubt the viability of sovereign immunity, the New Hampshire Supreme Court reiterated that “[t]he doctrine of sovereign immunity is deeply entrenched in this jurisdiction.” Petition of DCYF, at *2. And although various members of the Supreme Court have been “skeptical” of the doctrine, Petition of DCYF confirms that “it is the legislature’s prerogative to adequately address sovereign immunity in our laws.” Id.

12. Plaintiffs incorrectly assert that Petition of DCYF jettisoned—rather than reinforced—these principles to apply to “every [instance] the State asserts sovereign immunity.” Memorandum at 4. But Petition of DCYF considered only the minor limitations provision, RSA 508:8, which has now been incorporated into RSA 541-B. State Defendants’ underlying briefing already sets forth how the Legislature (whose “prerogative” it is to “address sovereign immunity,” Petition of DCYF, at *2) has already made clear that the sexual assault limitations provision in RSA 508:4-g does not apply to claims against the State, and State Defendants will not repeat that discussion here. See, e.g., State Defendants’ Mem. in Support of Second Master

13. Plaintiffs’ argument regarding Part I, Article 8 (which is not mentioned in Petition of DCYF) has also been addressed in State Defendants’ previous briefing at length and need not be repeated here. See Memorandum at 4; State Defendants’ Reply to Objection to Second sovereign immunity.

14. If the Court does not strike the Memorandum, State Defendants respectfully request in the alternative the Court’s permission, in accordance with Superior Court Rule 13A, to respond to Plaintiffs’ Memorandum. In such case, State Defendants request thirty (30) days from the date of the Court’s order on this Motion to file their responsive brief.

15. No memorandum of law accompanies this Motion, as the relief sought is within this Court’s sound discretion and all relevant authority is cited herein. See Johns-Manville Sales Corp. v. Barton, 118 N.H. 195, 198 (1978).

16. Pursuant to Superior Court Rule 11(c), State Defendants have not attempted to obtain Plaintiffs’ concurrence in the relief sought in this Motion because “it can be reasonably assumed that” State Defendants “will be unable to obtain concurrence.”

WHEREFORE, the State Defendants respectfully request that this Honorable Court:

A. STRIKE Plaintiffs’ Memorandum and it s accompanying exhibits, except for Exhibit A and the text on pages 3-4 under point heading I; or

B. GRANT State Defendants le ave to respond to Plain tiffs’ Memorandum within thirty (30) days of the date of the Court’s order on this Motion; and

C. GRANT such further relief as justice requires.

Respectfully Submitted, State of New Hampshire; New Hampshire Department of Health and Human Services; Department of Youth Development Services; Division of Children, Youth, and Families; Division of Juvenile Justice Services; and Sununu Youth Services Center, a/k/a Youth Development Center and Youth Development Services Unit, f/k/a State Industrial School and Adolescent Detention Center By their attorneys,

JOHN M. FORMELLA

ATTORNEY GENERAL

Date: February 21, 2023 /s/ Brandon F. Chase Brandon F. Chase, Bar #270844 Assistant Attorney General Jennifer S. Ramsey, Bar #268964 Senior Assistant Attorney General Anne M. Edwards, Bar #6826 Associate Attorney General Civil Bureau 33 Capitol Street Concord, NH 03301-6397

(603) 271-3650 brandon.f.chase@doj.nh.gov jennifer.s.ramsey@doj.nh.gov anne.m.edwards@doj.nh.gov

/s/ John W. VanLonkhuyzen John W. VanLonkhuyzen (admitted pro hac vice) Maine Bar No. 3487 Sara E. Hirshon (admitted pro hac vice) Maine Bar No. 4776 Martin C. Topol (admitted pro hac vice) Maine Bar No. 6732 Verrill Dana LLP One Portland Square Portland, ME 04101-4054

(207) 774-4000 jvanlonkhuyzen@verrill-law.com shirshon@verrill-law.com mtopol@verrill-law.com

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was sent via the Court’s electronic filing system to all parties of record on the date above.

/s/ Brandon F. Chase Brandon F. Chase