Arthur O. Phaneuf, A.O. Phaneuf & Son Funeral Home and Cremation Inc., and Crematorium Society of New Hampshire, Inc.
N.H. Board of Registration of Funeral Directors and Embalmers, Susan A. Simonds, Thomas G. Janosz, and Bryan S. Gould, individually and as members of the N.H. Board of Registration of Funeral Directors and Embalmers
Richard B. McNamara, Presiding Justice.
Petitioners, Arthur O. Phaneuf ("Phaneuf), Phaneuf & Sons Funeral Home, Inc. ("Funeral Home"), and Cremation Society of New Hampshire, Inc. ("the Society"), have brought an action pursuant to 42 U.S.C. § 1983 and RSA 491:22 for damages and injunctive relief against Susan A. Simonds, Thomas G. Janosz, and Bryan A. Gould, individually and as members of the New Hampshire Board of Registration of Funeral Directors and Embalmers ("the Board") and against the Board itself. Petitioners request an order stating (1) that the Board and its members are enjoined from entering or enforcing an order that includes sanctions against Petitioners based on a complaint of Robert L. Holmes; (2) that the Board is preliminarily enjoined from communicating in any way that would adversely impact the reputations or business goodwill of Petitioners; and (3) that the three individual Defendants are preliminarily enjoined from communicating in any way that would adversely impact the reputations or business goodwill of the Petitioners to anyone outside the membership of the Board. For the reasons stated in this Order, the Motion for a Preliminary Injunction is DENIED.
The procedural posture of this case is somewhat unusual. By way of complaint dated October 2011, the Board sought disciplinary action against Petitioner Phaneuf based on allegations of misconduct made by the Society's client, Robert L. Holmes, who engaged the Society's services following his late wife's passing in 2010. The Petitioners filed suit in the United States District Court to stop the Board's disciplinary action. The Board obtained dismissal of that matter based on the federal abstention doctrine, and the disciplinary action proceeded. The Board issued a disciplinary finding against Phaneuf by an order dated July 19, 2012. This case was filed on September 21, 2012.
A temporary hearing on the request for a preliminary injunction was held on October 10, 2012, and the parties advised the Court that a motion to reconsider the Board's July 19, 2012 decision had been filed and was under advisement. Following the hearing, the parties filed additional memoranda, and briefing was completed on October 30, 2012. On October 31, 2012, the Respondent advised the Court that the motion to reconsider had been denied by the Board. On November 5, 2012, counsel for Petitioners filed a notice that Petitioners intended to appeal the Board's underlying disciplinary findings against Phaneuf to the New Hampshire Supreme Court, but that Petitioners would request Supreme Court to stay the appeal process until Petitioners' complaint is resolved in this Court. Petitioners continue to request that the proceedings before the Board be enjoined.
An injunction is an extraordinary remedy. N.H. Dep't of Envtl. Servs. v. Mottolo, 155 N.H. 57, 63 (2007). In order to obtain an injunction, the Petitioners must establish: (1) likelihood of success on the merits; (2) immediate danger of irreparable harm; and (3) that they have no adequate remedy at law. Id. Further, even if these requisites are satisfied, an injunction must be in the best interest of the public. See UniFirst Corp. v. Nashua. 130 N.H. 11, 14 (1987). An injunction is an equitable remedy which is discretionary. Mottolo, 155 N.H. at 63.
Respondents argue that the Petitioners cannot show a likelihood of success on the merits because the individual Respondents are immune from a claim for money damages, and the defense of sovereign immunity is available to the Board. Petitioners argue that whether or not a defense of immunity for money damages can be raised, a claim of injunctive relief can be made, and Petitioners argue that they have shown a likelihood of success on the merits. The Court need not decide this difficult issue, however, because the Petitioners cannot satisfy the second and third prongs of the requirements for a preliminary injunction; irreparable harm and lack of an adequate remedy at law.
Petitioners allege that they have suffered irreparable harm to their reputation and business goodwill as a result of the Respondents' conduct. However, whatever harm to Petitioners has occurred has already occurred, because the proceedings against them have already concluded. Further, the Board's finding, and its attendant publicity, oc- curred in July of this year.
Petitioners do not dispute the fact that a sanction has already been issued but argue that destruction of a business is considered irreparable harm, which can appropriately be remedied by injunctive relief. Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1205 (2d. Cir. 1971).
While this principle of law is correct in does not aid them. Petitioners tacitly admit that their business has not been destroyed and argue only that some unquantifiable harm to the business has occurred and/or might occur in the future:
The harm that resulted from the Respondents' leak was immediate and remains ongoing. Within days of publication, Mr. Phaneuf received a call from a prospective customer who advised that he was planning on using the Petitioners' services but decided to take his business elsewhere after reading the artcle. e. Also in response to this bad press, a former Cremation Society client contacted the Board to bring up a problem that had been resolved in 2004. Petitioners have no way of knowing how many clients have moved their prepaid accounts to Petitioners' competitors because of this article
Mem. Law Support Pet'rs' Response Resp'ts' Obj. Mot. TRO 4-5 ("Pet'rs' Mem.") (emphasis added). Petitioners have presented no evidence that their business has been or will be destroyed, and this allegation is simply not ...