United States District Court, D. New Hampshire
Evan W. Gray
Chester L. Gray, III
A. DICLERICO, JR UNITED STATES DISTRICT JUDGE
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. 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).
capacity as trustee of the BJG Trust, Skip filed
counterclaims (the “BJG Trust
Counterclaims”). 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.
moves to dismiss the BJG Trust Counterclaims. Skip objects.
and Standard of Review
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.
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
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.
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.
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).
Pleading of Facts Showing ...