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Amatucci loses third suit against town and others, files an appeal

April 19, 2012
WOLFEBORO — Josephine Amatucci's third lawsuit asserting claims arising out of her 2002 and 2003 arrests by officers of the Wolfeboro Police Department and fifth attempt to renew those claims failed once again, this time in Carroll County Superior Court.

Presiding Judge Steven M. Houran's April 2, 2012, 14-page court order informed Amatucci that her "motion to amend to add a new defendant is denied and the plaintiff's motions for summary judgment are moot."

The court granted the motion to dismiss brought by the defendants, including Officer James O'Brien, former members of the Wolfeboro Police Department Charles Hamilton and Chief Brian Black, lawyers Jesse Friedman, Lisa M. Lee, R. Matthew Cairns, the Town of Wolfeboro and her neighbors Pauline Mahoney and Norman Bolduc.

Houran summarized the previous court hearings in chronological order before giving his opinion on the defendants' request that the court order that Amatucci pay their attorney's fees and costs in connection with this most recent litigation and the request from Friedman that she post a bond "to cover fees and costs prior to permitting her to initiate any future litigation against them for the same causes of action."

Amatucci filed her first suit in the United States District Court for the District of New Hampshire. It was dismissed "as to all defendants except Charles Hamilton and James O'Brien. These two defendants obtained summary judgment in their favor, with the court determining that her claim as to Mr. Hamilton was frivolous and her claim as to Mr. O'Brien was without merit."

She was ordered to pay $5,000 in attorney's fees (a "substantially reduced" amount) as a result of the frivolous nature of the suit against Hamilton and the finding that "she pursued motion practice as a means to harass both defendants." The United States Court of Appeals for the First Circuit affirmed the trial court's grant of summary judgment on April 9, 2008.

Undeterred, Amatucci filed a second suit for the same events in Carroll County Superior Court in 2008. Houran granted the defendants' motion for summary judgment (an opinion that the New Hampshire Supreme Court affirmed on July 10, 2009).

She raised the same issues a third time in November 2008. That time a federal district court denied it as untimely and without merit. Amatucci did not appeal the decision, yet in September of 2011 she made a fourth attempt to litigate. It was denied and again she did not appeal.

In the most recent attempt, her fifth, Amatucci claimed that the prior judgments were void because she had "new evidence" that they were based on two invalid warrants, but Houran states in his order, "the proposed amendment, while asserting fraud, does nothing more than place a new label upon factual assertions previously pled and considered by the court." The three-year statute of limitations expired in 2007. Her motion was denied.

As to the defendants' request that Amatucci pay for their attorney fees, Houran explains that defendants ordinarily are not entitled to collect counsel fees from the loser, based on the "principle that no person should be penalized for merely defending or prosecuting a lawsuit."

Houran wrote, "It also probably bears noting that it appears [Ms. Amatucci] is more than simply unwilling to see the weakness of her claims; she seems incapable of coming to (or being lead to) that realization."

The prior award of $5,000 to defendants by Judge McAuliffe was "substantially reduced" in consideration that when Amatucci appeared in his court she had "no documented history of frivolous or vexatious litigation."

Responding to her fifth attempt, writes Houran, "Amatucci has ignored Judge McAuliffe's prior cautions and mine, and has instead proceeded to once again assert claims based on the same 2002 and 2003 events, causing the defendants to incur attorney's fees they should not have had to bear."

The judge ruled that the defendants may submit affidavits to the court within ten days of the order to recoup their legal costs, but attorneys Lisa M. Lee and R. Matthew Cairns, who have not previously had to defend against Amatucci's claims, may not.

That said, Amatucci made a motion on last Wednesday, April 11 followed by a supplemental filings on Thursday, April 12 and Friday, April 13, to the court to reconsider her case. Her April 11 submission states that the judge's motion to dismiss is a "void order/judgment due to lack of due process" and that "all the judgments of all the courts are void judgments."

She requested that the judge allow the case to go to trial and states " …there is no statute of limitations, under fraud."

Amatucci claims that her latest suit is a new, independent lawsuit, even though it deals with the same events as her earlier lawsuits. Her April 13 filing states, "The previous lawsuits were based on a criminal stalking order, not on a restraining order in equity. The subject matter of a Civil Restraining Order in Equity was never an issue in the previous lawsuits, was never adjudicated by the courts, or on its merits. This is a new INDEPENDENT lawsuit on a new genuine fact, on the nature of the non-contract order, and regarding fraud upon the court, fraud upon the court by the court."

Martin Lord & Osman
Varney Smith
Brewster Academy
Brewster Academy
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