Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gray v. Gray

United States District Court, D. New Hampshire

May 16, 2019

Evan W. Gray
v.
Chester L. Gray, III

          ORDER

          JOSEPH A. DICLERICO, JR UNITED STATES DISTRICT JUDGE

         As discussed in the court's order dated May 14, 2019, doc. no. 54, this case involves disputes among Chester and Barbara Gray's three children, Skip, Scott, and Evan Gray.[1] Evan brought suit against Skip as executor of the CLG Estate; as sole trustee of the CLG Trust; and as co-trustee of the BJG Trust. In his Amended Complaint, Evan alleges that Chester, prior to his death, breached his fiduciary duties while he was trustee of the BJG Trust (Counts 1 and 2). Evan also alleges that Skip breached his fiduciary duties as trustee of the CLG Trust (Count 3), and he seeks removal of Skip as co-trustee of the BJG Trust based on alleged conflicts of interest (Count 4).

         In his capacity as trustee of the BJG Trust, Skip filed counterclaims (the “BJG Trust Counterclaims”).[2] In Count I, Skip seeks reimbursement of expenses, attorneys' fees, and costs under N.H. Revised Statutes Annotated (“RSA”) 564-B:7-709 and RSA 564-B:10-1004. In Count II, Skip also seeks attorneys' fees, costs, and expenses under Harkeem v. Adams, 117 N.H. 687 (1977), alleging that Evan brought his claims with knowledge that they were “deficient, untimely, frivolous, or otherwise brought in bad faith.” Doc. 37 ¶¶ 52-53. In Counts I and II, Skip seeks reimbursement for himself and the BJG Trust from Evan personally. Skip also seeks reimbursement for himself from the BJG Trust assets.

         Evan moves to dismiss the BJG Trust Counterclaims. Skip objects.

         Background and Standard of Review

         The court provided the relevant background and standard of review in its order dated May 14, 2019, addressing Evan's motion to dismiss the CLG Estate Counterclaims. Doc. 54.

         Discussion

         Evan moves to dismiss the BJG Trust Counterclaims. In support, he contends that the court lacks subject matter jurisdiction over the counterclaims; that the counterclaims are not “mature”; and that Skip must make a claim for attorneys' fees through a motion under Federal Rule of Civil Procedure 54(d)(2). The court already discussed and rejected these arguments in its order addressing the CLG Trust Counterclaims (doc. no. 54). The court's reasoning in doc. no. 54 rejecting those arguments applies to Evan's motion to dismiss the BJG Trust Counterclaims.

         In addition, Evan contends that Skip misuses the term “indemnification” in the BJG Trust Counterclaims; that Skip failed to plead facts sufficient to state claims for relief; that Skip, in his capacity as trustee of the BJG Trust, cannot assert counterclaims related to Counts 1 and 2 of Evan's Amended Complaint because he is not the real party in interest; and that because Skip shares responsibility for the claims in the Amended Complaint, the counterclaims are barred by the pari delicto doctrine. Skip objects, arguing generally that the counterclaims were properly brought and state cognizable claims for relief.

         A. “Indemnification”

         Evan takes issue with Skip's use of the word “indemnify” in the counterclaims. He argues that the counterclaims seek only attorneys' fees, costs, and reimbursement for expenses, not indemnification. Skip's use of the word “indemnify” does not warrant dismissal of the counterclaims.

         As explained in the order on the CLG Estate Counterclaims, RSA 564-B:7-709 and RSA 564-B:10-1004 support claims for reimbursement of properly incurred expenses, attorneys' fees, and costs. Evan argues that Skip cannot show that he is entitled to attorneys' fees and costs under RSA 564-B:10-1004. That argument is premature in a motion to dismiss, and Skip's pleading is adequate to give Evan notice of the claims alleged. See Shelton v. Tamposi, 164 N.H. 490, 502-03 (2013) (indicating that trial court should determine whether an award of attorneys' fees is warranted under RSA 564-B:10-1004 after considering the merits of the lawsuit).

         B. Pleading of Facts Showing ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.