Jones v. Secord , 684 F.3d 1 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-1576
GAIL JONES, IN HER CAPACITY AS EXECUTRIX
OF THE ESTATE OF GARY JONES,
Plaintiff, Appellant,
v.
LAWRENCE SECORD,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Howard, Selya and Thompson,
Circuit Judges.
Roberto Tepichin, with whom Michael R. Perry, Ryan E. Ferch
and Murphy & King, were on brief, for appellant.
Anthony M. Campo, with whom Mark W. Shaughnessy, Andrew B.
Ranks and Boyle, Shaughnessy & Campo, P.C., were on brief, for
appellee.
July 6, 2012
SELYA, Circuit Judge. This case arises out of the tragic
death of the plaintiff's decedent, Gary Jones, who was shot and
killed by a man wielding a stolen handgun. In her federal court
complaint, the plaintiff claimed that the gun owner's negligent
storage of the weapon and his failure timely to report its theft
proximately caused the decedent's death. The district court
rejected these claims and granted summary judgment in favor of the
gun owner. Jones v. Secord, No. 10-146, 2011 WL 1557883 (D.N.H.
Apr. 26, 2011). The plaintiff appeals. We affirm.
I. BACKGROUND
We summarize the relevant facts in the light most
favorable to the party opposing summary judgment (here, the
plaintiff). See Foote v. Town of Bedford, 642 F.3d 80, 81 (1st
Cir. 2011).
For the last thirty years, the defendant, Lawrence
Secord, has owned a hunting camp in Wentworth Location, New
Hampshire. The camp is used as a base for hunting and fishing, and
the defendant has routinely made it available to family members.
The camp includes a cabin that is thirty-eight feet long
by sixteen feet wide. The cabin is normally locked when unoccupied
— but a key is hidden on the property and family members know of
its whereabouts.
The defendant kept a revolver hidden under the base of a
water-heater platform inside the cabin. The record is empty as to
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whether family members were aware of this hiding place, but the
ammunition for the handgun was stored in plain sight.
Until he was seventeen years old, the defendant's
grandson, Michael Woodbury, was among the family members who
regularly visited the camp. He would go there to hunt and fish
with his grandfather and his father. These visits ceased abruptly
around June of 1994, when Woodbury offended his grandfather by
cancelling a planned fishing trip. From that time forward,
Woodbury was not welcome at the camp and, for aught that appears,
did not go there.
Soon after his banishment, Woodbury committed a series of
felonies (including bank robbery and breaking and entering) that
resulted in his incarceration. By May of 2007, he was out of
prison and had been helping his father build a house in Sebago,
Maine. At that point, he had not spoken to the defendant for
approximately ten years. He nonetheless showed up that month
unannounced at the defendant's principal residence in Scarborough,
Maine. The defendant received him coldly, and Woodbury departed
minutes after his arrival. That was the last that the defendant
saw Woodbury until after the plaintiff's decedent was murdered.
Toward the end of June in 2007, the defendant's son, who
had recently visited the hunting camp, told the defendant that he
had accidentally left a mousetrap outside of the cabin. On June
28, the defendant asked a friend, Sarah Barton, to go to the camp,
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and she went there that night. Nobody was around, but sheets were
draped over the windows and a radio was playing. According to
Barton, she peered through a window, spied what she thought was the
wayward mousetrap, and departed.1
Barton did not immediately report what she had seen to
the defendant because she assumed that the defendant's son had left
the camp hurriedly and she did not want to cause trouble. She
returned to the camp the next day. This time she entered the cabin
through a door that was locked but not properly shut, turned off
the radio, and retreated. The interior of the cabin appeared to be
clean and in good order.
At a family gathering in Scarborough on July 1, 2007,
Barton told the defendant about the sheets on the windows of the
cabin. The defendant called his son's girlfriend, who disavowed
any knowledge of the situation. The defendant and Barton were
entertaining out-of-town guests and did not go to the camp until
July 3.
When they arrived, they found that the cabin had been
trashed, a rear window had been broken, and an unknown intruder had
strewn garbage and debris throughout the cabin. They cleaned up
the mess and left without calling the authorities.
1
A slightly different account of Barton's visit appears in a
subsequent police report and in the police officer's deposition.
The disparities, where relevant, are discussed below.
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After arriving home, the defendant learned that his
estranged grandson, Woodbury, had been accused of murdering three
people during a robbery on July 2. It subsequently became clear
that Woodbury had been the intruder who broke into the cabin, that
he had found and taken the hidden revolver, and that he had used
the revolver to commit the murders.
In due course, the plaintiff, in her capacity as the
executrix of the estate of Gary Jones (one of the murder victims),
brought suit against the defendant in the United States District
Court for the District of New Hampshire. She invoked diversity
jurisdiction based upon the defendant's Maine citizenship, her
decedent's Massachusetts citizenship, and an amount in controversy
exceeding $75,000. See 28 U.S.C. §§ 1332(a), 1332(c)(2); see also
Quincy V, LLC v. Herman, 652 F.3d 116, 120 (1st Cir. 2011)
(explaining that for diversity purposes, the citizenship of a
decedent is imputed to his personal representative).
In her complaint, the plaintiff alleged that the
defendant was negligent in failing both adequately to secure the
revolver and promptly to report its theft. After a ten-month
period of pretrial discovery, the district court granted summary
judgment in favor of the defendant. See Jones, 2011 WL 1557883, at
*1-2. The court concluded that no liability attached for a failure
to secure the revolver because no legally cognizable duty was owed;
under New Hampshire law, "individuals ordinarily are not subjected
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to liability for the criminal acts of third parties." Id. at *1.
The court rejected the plaintiff's failure-to-report claim on the
basis of what the court characterized as an undisputed factual
record. See id. at *1 & n.2. This timely appeal followed.
II. ANALYSIS
A trial court's entry of summary judgment engenders de
novo appellate review. See Harrington v. Aggregate Indus.-Ne.
Region, Inc., 668 F.3d 25, 30 (1st Cir. 2012). The court of
appeals, like the trial court, must take the facts in the light
most congenial to the nonmoving party, resolve any evidentiary
conflicts in that party's favor, and draw all reasonable inferences
to her behoof. Gomez v. Stop & Shop Supermarket Co., 670 F.3d 395,
396 (1st Cir. 2012). The court of appeals is not limited to the
district court's rationale, but may affirm on any independent
ground made manifest by the record. González-Droz v. González-
Colón, 660 F.3d 1, 9 (1st Cir. 2011).
Before us, the plaintiff advances both procedural and
substantive arguments. We group the arguments under those headings
and address them sequentially.
A. Procedural Arguments.
To place the plaintiff's procedural arguments into
perspective, we rehearse the travel of the case. The plaintiff
sued on April 19, 2010, the defendant answered the complaint, and
the district court entered a scheduling order on June 22, 2010.
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See Fed. R. Civ. P. 16(b). This order set a deadline of April 1,
2011, for both the completion of discovery and the filing of any
remaining dispositive motions.
On March 1, 2011, the defendant moved for summary
judgment. Three days later, the United States District Court for
the District of Massachusetts, acting at the behest of the
plaintiff, directed a subpoena to a non-party, Hanover Insurance
Group. See Fed. R. Civ. P. 45(a)(2)(C). This subpoena required
Hanover to produce certain statements made by the defendant to it.
In particular, the subpoena sought statements indicating when the
defendant became aware of the theft of the handgun. In support,
plaintiff's counsel represented that a Hanover claims adjuster had
previously informed him that the defendant learned of the theft on
June 30, 2007.
Both the defendant and Hanover asked the New Hampshire
federal district court to quash the subpoena. The plaintiff
responded on March 31, 2011, arguing that the court below lacked
authority to quash the subpoena because a different district court
had issued it. The plaintiff filed her opposition to the summary
judgment motion that same day.
On April 22, 2011, the district court referred the
discovery dispute to a magistrate judge. See 28 U.S.C.
§ 636(b)(1)(A); Fed. R. Civ. P. 72(a). Four days later, the court,
without entertaining oral argument, granted the pending motion for
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summary judgment. Jones, 2011 WL 1557883, at *1-2. At that
juncture, the magistrate judge had taken no action on the discovery
dispute, and the subpoenaed documents had not been produced.
1. The Unadjudicated Discovery Dispute. The plaintiff's
chief procedural argument posits that the district court abused its
discretion when it decided the summary judgment motion while the
discovery dispute was outstanding. This argument, however,
overlooks the provisions of Federal Rule of Civil Procedure 56(d).2
Rule 56(d) provides in pertinent part that if a party
opposing summary judgment shows "that, for specified reasons, it
cannot present facts essential to justify its opposition," the
court may grant appropriate relief. In short, Rule 56(d) affords
a safety net for parties that need more time to gather facts
essential to resist a motion for summary judgment. Celotex Corp.
v. Catrett, 477 U.S. 317, 326 (1986) (explaining that "[a]ny
potential problem with [a] premature [motion for summary judgment]
can be adequately dealt with under [this rule]"); Rivera-Torres v.
Rey-Hernández, 502 F.3d 7, 10 (1st Cir. 2007) (similar). This
safeguard, when properly invoked, serves as a way of ensuring that
judges will not "swing[] the summary judgment axe too hastily."
2
Rule 56(d) was formerly Rule 56(f). This change in
nomenclature is unimportant; the textual differences between
current Rule 56(d) and former Rule 56(f) are purely stylistic. See
Fed. R. Civ. P. 56 advisory committee's note; see also Godin v.
Schencks, 629 F.3d 79, 90 n.19 (1st Cir. 2010). Consequently, the
case law developed under the earlier version remains authoritative,
and we refer to it where applicable.
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Rivera-Torres, 502 F.3d at 10 (quoting Resolution Trust Corp. v. N.
Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir. 1994) (internal
quotation marks omitted)).
But courts, like the deity, tend to help those who help
themselves, and Rule 56(d) is not self-executing. A party must
invoke it. Here, however, the plaintiff did not invoke Rule 56(d).
To compound this error, she made no mention of the outstanding
discovery dispute in her opposition to the motion for summary
judgment; nor did she advise the court, when it referred the
discovery dispute to the magistrate judge, that it might have a
bearing on the pending summary judgment motion.
The plaintiff tries to shift the blame by insisting that
the court knew of the outstanding discovery dispute because of the
motion to quash and, thus, there was no point in filing a Rule
56(d) affidavit. This rhetoric turns the matter upside down.
Federal district courts are busy places, and judges often have
crowded dockets. It is not the court's responsibility to dig
through the record in a particular case unsolicited and determine
whether some timing problem might exist in connection with a
summary judgment motion. Rather, Rule 56(d) places that
responsibility squarely on the shoulders of the party opposing the
motion. See Mir-Yépez v. Banco Popular de P.R., 560 F.3d 14, 15-16
(1st Cir. 2009); N. Bridge Assocs., 22 F.3d at 1203. Asserting, as
the plaintiff does, that a district court abuses its discretion by
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not engaging sua sponte in an independent review of the docket is
the functional equivalent of expecting the court to do the lawyer's
job.
The protocol that we have approved in connection with
Rule 56(d) recognizes this division of responsibility. A party
opposing summary judgment who wishes to invoke Rule 56(d) must act
diligently and proffer to the trial court an affidavit or other
authoritative submission that "(i) explains his or her current
inability to adduce the facts essential to filing an opposition,
(ii) provides a plausible basis for believing that the sought-after
facts can be assembled within a reasonable time, and (iii)
indicates how those facts would influence the outcome of the
pending summary judgment motion." Vélez v. Awning Windows, Inc.,
375 F.3d 35, 40 (1st Cir. 2004).
The plaintiff made no effort at all to satisfy these
requirements while the summary judgment motion was pending. Her
present objection is, therefore, untenable. See, e.g., United
States v. San Juan Bay Marina, 239 F.3d 400, 408 (1st Cir. 2001);
Meehan v. Town of Plymouth, 167 F.3d 85, 92 n.7 (1st Cir. 1999);
Mulero-Rodríguez v. Ponte, Inc., 98 F.3d 670, 678-79 (1st Cir.
1996).
2. Absence of Oral Argument. The plaintiff's fallback
position is that the district court abused its discretion by
deciding the summary judgment motion without oral argument. This
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suggestion is jejune. First and foremost, the plaintiff did not
request oral argument in the district court — and that is the end
of the matter. See D.N.H.R. 7.1(d) ("[A] court shall decide
motions without oral argument . . . [and] may allow oral argument
after consideration of a written statement by a party outlining the
reasons why oral argument may provide assistance to the court.");
see also United States v. One 1974 Porsche 911-S Vehicle
Identification No. 9114102550, 682 F.2d 283, 286-87 (1st Cir.
1982). With such a local rule in place, a district court has no
sua sponte obligation to convene oral argument on a motion.
If more were needed — and we do not think that it is —
"district courts have considerable discretion in deciding whether
or not to allow oral argument on a dispositive motion." Domegan v.
Fair, 859 F.2d 1059, 1065 (1st Cir. 1988). "Absent a showing of
serious prejudice, it is not an abuse of discretion to deny oral
argument on a summary judgment motion." Bratt v. Int'l Bus. Machs.
Corp., 785 F.2d 352, 363 (1st Cir. 1986). We discern no serious
prejudice here.
B. Substantive Arguments.
The parties agree that, in this diversity action, New
Hampshire substantive law controls. See Erie R.R. v. Tompkins, 304
U.S. 64, 78 (1938); see also Borden v. Paul Revere Life Ins. Co.,
935 F.2d 370, 375 (1st Cir. 1991) (explaining that "a federal court
sitting in diversity is free, if it chooses, to forgo independent
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[choice-of-law] analysis and accept the parties' [reasonable]
agreement" about which state law controls). Under New Hampshire
law, a successful negligence claim requires a showing of duty,
breach, proximate cause, and injury. See Vachon v. New England
Towing, Inc., 809 A.2d 771, 774 (N.H. 2002). Determining whether
a legally cognizable duty exists demands a case-specific inquiry
into whether the defendant could reasonably foresee that his
conduct could cause an injury. See Walls v. Oxford Mgmt. Co., 633
A.2d 103, 105 (N.H. 1993). It follows that "[d]uty and
foreseeability are inextricably bound together." Corso v. Merrill,
406 A.2d 300, 303 (N.H. 1979). "Whether a defendant's conduct
creates a sufficiently foreseeable risk of harm to others
sufficient to charge the defendant with a duty to avoid such
conduct is a question of law." Macie v. Helms, 934 A.2d 562, 565
(N.H. 2007) (internal quotation marks omitted).
New Hampshire adheres to the general rule that "a private
citizen has no [] duty to protect others from the criminal attacks
of third parties." Dupont v. Aavid Thermal Techs., Inc., 798 A.2d
587, 590 (N.H. 2002); accord Ahrendt v. Granite Bank, 740 A.2d
1058, 1063 (N.H. 1999); Walls, 633 A.2d at 104. "This rule is
grounded in the fundamental unfairness of holding private citizens
responsible for the unanticipated criminal acts of third parties,
because under all ordinary and normal circumstances, in the absence
of any reason to expect the contrary, the actor may reasonably
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proceed upon the assumption that others will obey the law."
Remsburg v. Docusearch, Inc., 816 A.2d 1001, 1006 (N.H. 2003)
(alteration and internal quotation marks omitted); see Walls, 633
A.2d at 105 ("Although crimes do occur[,] they are still so
unlikely that the burden of taking continual precautions against
them almost always exceeds the apparent risk." (alterations and
internal quotation marks omitted)).
The New Hampshire Supreme Court has identified three
narrow exceptions to the general rule that citizens have no duty at
common law to protect others from criminal acts of third parties.
See, e.g., Berry v. Watchtower Bible & Tract Soc'y. of N.Y., Inc.,
879 A.2d 1124, 1128 (N.H. 2005); Remsburg, 816 A.2d at 1007;
Dupont, 798 A.2d at 590. These exceptions apply to situations in
which "(1) a special relationship exists; (2) special circumstances
exist; or (3) the duty has been voluntarily assumed."3 Remsburg,
816 A.2d at 1007. Ascertaining whether an exception applies is a
matter of law. See, e.g., Ward v. Inishmaan Assocs. Ltd., 931 A.2d
1235, 1237-38 (N.H. 2007); Marquay v. Eno, 662 A.2d 272, 278-80
(N.H. 1995).
3
The New Hampshire Supreme Court sometimes has ruminated
about a fourth possible exception: overriding foreseeability.
Walls, 633 A.2d at 106; see Ward v. Inishmaan Assocs. Ltd., 931
A.2d 1235, 1237-38 (N.H. 2007). The court, however, squarely
rejected this possible exception in the landlord-tenant context.
See Ward, 931 A.2d at 1237-38; Walls, 633 A.2d at 107. Because the
plaintiff does not draw out this distinction and our discussion of
the "special circumstances" exception adequately deals with any
overriding foreseeability argument, we need not elaborate upon it.
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The plaintiff trains her sights on the special
circumstances exception. This exception applies "where there is an
especial temptation and opportunity for criminal misconduct brought
about by the defendant[,]" Remsburg, 816 A.2d at 1007 (internal
quotation marks omitted), such as when "the defendant's conduct has
created an unreasonable risk of criminal misconduct." Id. The
plaintiff attempts to bring her case within the exception in two
ways. First, she focuses on the defendant's ostensible failure to
report the theft of the revolver in a timely fashion. Second, she
focuses on the defendant's ostensible failure to secure the
revolver properly. Both of these arguments contemplate that the
defendant knew of Woodbury's presence near the camp.
1. Failure to Report. The plaintiff contends that the
defendant could have prevented the murder by seasonably reporting
the theft of his handgun. As an initial matter, the defendant
counters that he did not know about the theft until after the
murder occurred. The plaintiff disagrees; she says that there is
a genuine issue of material fact as to when the defendant learned
of the theft.
The defendant testified that he did not realize the
revolver had been stolen until after the murder (which occurred on
July 2, 2007). To rebut this testimony, the plaintiff relies on a
police report. She avers that the report, prepared by Trooper
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West, contradicts the defendant's testimony. We dissect the
anatomy of this averment.
Trooper West interviewed the defendant by telephone on
October 8, 2007. He memorialized that conversation in a police
report the following day. The defendant's statements to Trooper
West qualify as the admissions of a party, see Fed. R. Evid.
801(d)(2)(A), but the report itself is likely hearsay.4 According
to the report, the defendant "said that on June 28th[, 2007,] Sarah
Barton checked the camp and found that a screen had been cut and a
window had been broken from the rear of th[e] camp. She went into
the camp and discovered that the place had been trashed." When the
defendant "heard that his camp was burglarized he did not call the
police but rather he and Sarah Barton cleaned and repaired the
camp."
The report is silent as to three salient facts: when
Barton told the defendant about the break-in, when the clean-up of
the cabin took place, and when the defendant became aware that the
handgun was missing. The timing of these events is critical to the
plaintiff's theory, and the report's silence is amplified by the
almost three-month gap between the date of the murder and the date
of the telephonic interview.
4
The parties dispute whether the police report falls under
the public records exception to the hearsay rule. See Fed. R.
Evid. 803(8)(A)(iii). We need not resolve this dispute because, as
we explain in the text, the report fails to create a genuine issue
of material fact.
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To create a genuine issue of material fact, "evidence
illustrating the factual controversy cannot be conjectural or
problematic; it must have substance in the sense that it limns
differing versions of the truth which a factfinder must resolve at
an ensuing trial." Mack v. Great Atl. & Pac. Tea Co., 871 F.2d
179, 181 (1st Cir. 1989). Although the police report indicates
that the defendant was aware when interviewed on October 8, 2007,
that the handgun had been stolen, it does not indicate, either
directly or by reasonable inference, when the defendant first
learned that fact. Thus, the report does not create a conflict
with the hard evidence (testimony of the defendant and Barton) that
the defendant did not know about the theft of the handgun until
after the murders.
To be sure, the defendant apparently told Trooper West
that he believed that the break-in occurred at some time between
June 22 (when his son left the camp) and June 28 (when Barton went
there). But the police report tells us nothing about when the
defendant formed that belief. A fortiori, the statement attributed
to the defendant by Trooper West tells us nothing about when the
defendant learned that the handgun had been purloined. On this
uncertain record, the district court did not err in entering
summary judgment for the defendant on the failure-to-report claim.
2. Failure to Secure. The plaintiff's second
substantive argument is that the defendant's failure properly to
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secure the handgun created an unreasonable risk of criminal
misconduct because of Woodbury's presence in the neighborhood of
the camp. While conceding that New Hampshire has not yet found a
common-law duty of care in the context of a homeowner's storage of
firearms,5 she nonetheless contends that such a duty exists.
The plaintiff's contention rests heavily on her rendition
of the facts. She characterizes Woodbury as a previously convicted
felon with a propensity for breaking and entering and asserts that
the defendant knew as much. She then points out that Woodbury was
intimately familiar with the hunting camp, that he knew the
location of the hidden key, that he believed the revolver was his,
and that the defendant not only knew these facts but also knew that
Woodbury was lurking in the vicinity of the camp. Furthermore, the
door to the cabin sometimes failed to lock correctly, the revolver
was not kept under lock and key, and the ammunition was left in
plain sight.
The plaintiff's version of the facts is in some respects
unsupported in the record. In other respects, it depends on
unreasonable inferences, adding one plus one to total three. To
cite one example, while the record reflects that Woodbury visited
the hunting camp several times in his youth, it also makes clear
5
New Hampshire has imposed statutory restrictions on the
storage of firearms around children (up to age 16). See N.H. Rev.
Stat. Ann. § 650-C:1. Here, however, the plaintiff's claim is
premised exclusively on the common law.
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that Woodbury was not welcome at (and did not go to) the camp after
June of 1994 (some thirteen years before the events at issue here).
To cite another example, the record is barren of any evidence that
the defendant either knew or had reason to believe that Woodbury
might be in the vicinity of the hunting camp. According to the
record, the defendant knew only that Woodbury, in May of 2007, made
an unannounced and uninvited visit to his home in Scarborough,
Maine, and that he had been working in Sebago, Maine.6
The record, read in the light most favorable to the
plaintiff, reflects the following scenario. Some thirteen years
before the murders, Woodbury had visited the hunting camp. He
knew, at that time, that a key to the cabin was hidden on the
premises, and he knew that the defendant kept a handgun inside the
cabin. There is no evidence that Woodbury used the concealed key
to effect entry into the cabin some thirteen years later, nor is
there any evidence that the defendant knew that Woodbury, in the
months (or even years) preceding the murders, was anywhere near the
camp. Based on this scenario, there is simply no principled basis
for holding, under the New Hampshire precedents, that the
defendant's unsecured storage of the handgun created "an especial
temptation and opportunity for criminal misconduct." Remsburg, 816
A.2d at 1007 (internal quotation marks omitted).
6
Sebago is at least a two-hour drive from Wentworth Location,
and Scarborough is at an even greater remove.
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Decisions of the New Hampshire Supreme Court compel this
conclusion. The court has set a high bar for the special
circumstances exception to the general rule that there is no duty
to protect others from third-party criminal predations. See, e.g.,
Dupont, 798 A.2d at 592-93. The court has determined that the
special circumstances exception applies only when the risk and
foreseeability of criminal misconduct is very great. See, e.g.,
Remsburg, 816 A.2d at 1007 (explaining that a private
investigator's disclosure of personal information to a client
creates "an especial temptation and opportunity for criminal
misconduct" because harms such as stalking and identity theft are
sufficiently foreseeable) (internal quotation marks omitted);
Dupont, 798 A.2d at 593-94 (suggesting that liability for an
employee's death might arise when supervisors walked co-workers
outside so they could continue a heated argument, knew that one of
the co-workers had a loaded gun, suspected that the situation might
turn violent, failed to notify police, and were aware of a history
of employees bringing weapons to work); Iannelli v. Burger King
Corp., 761 A.2d 417, 418-21 (N.H. 2000) (holding that restaurant
owners could be liable for third party's assault on patrons because
management reasonably could have foreseen that a group of "rowdy,
obnoxious, loud, [and] abusive" youths claiming to be intoxicated
created an unreasonable risk of injury to fellow patrons). Sitting
in diversity, we are bound by this body of law; and the record
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here, even when construed in the light most flattering to the
plaintiff, does not show either a particularized risk of harm or a
degree of foreseeability sufficient to animate this exception.
In an effort to shift the debate away from New
Hampshire's decisional law, the plaintiff proclaims that the
reasoning of some out-of-state decisions supports a different
outcome. See, e.g., Jupin v. Kask, 849 N.E.2d 829 (Mass. 2006);
Estate of Heck ex rel. Heck v. Stoffer, 786 N.E.2d 265 (Ind. 2003).
But a federal court sitting in diversity does not have a roving
writ to sift through the decisions of the courts of all fifty
states and choose the doctrines that it finds most attractive.
Here, Erie principles require us to apply New Hampshire
law, and there is no indication that the New Hampshire Supreme
Court would discern a legally cognizable duty based on the
circumstances of this case. The plaintiff, who made a deliberate
choice to sue in federal court rather than in a New Hampshire state
court, is not in a position to ask us to blaze a new trail that the
New Hampshire courts have not invited. See Porter v. Nutter, 913
F.2d 37, 40-41 (1st Cir. 1990); Kassel v. Gannett Co., 875 F.2d
935, 949-50 (1st Cir. 1989).
III. CONCLUSION
We need go no further. Although we are sensitive to the
tragic nature of the events that underpin this case, "it is the
duty of all courts of justice to take care, for the general good of
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the community, that hard cases do not make bad law." United States
v. Clark, 96 U.S. 37, 49 (1877) (Harlan, J., dissenting) (quoting
Lord Campbell in East India Co. v. Paul, 13 Eng. Rep. 811, 821
(P.C. 1849)) (internal quotation marks omitted). We follow that
admonition here and, for the reasons elucidated above, affirm the
entry of summary judgment in favor of the defendant.
Affirmed.
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