SCHLEICHER AND STEBBINS HOTELS, LLC, et al.

v.

STARR SURPLUS LINES INSURANCE COMPANY, et al.

Notice: The orders on this site are trial court orders that are not binding on other trial court justices or masters and are subject to appellate review by the New Hampshire Supreme Court.

  Order on Motion to Transfer

Defendants jointly move for the transfer of this case from Merrimack County to the Business and Commercial Dispute Docket (the "Business Court") in Hillsborough County. Plaintiffs object to the transfer. For the reasons stated below, the motion is DENIED.

Defendants argue that this Court should waive the Business Court requirement that all parties consent to the transfer of a case to the Business Court. Defendants argue that the requirement that all parties consent is not jurisdictional and, therefore, that this Court can and should waive the consent requirement in Super. Ct. R. 207.

While the Court agrees with Defendants that this is an appropriate case for the Business Court, the Court agrees with Plaintiffs that their objection is a bar to this Court accepting the case. As an initial matter, in requiring the consent of all parties, Super. Ct. R. 207 III phrases that requirement in jurisdictional terms noting that the "BCDD shall have jurisdiction when the following requirements are met: (a) all parties have consented to the jurisdiction of the BCDD; . . . ." Even if the drafters of the rule meant something other than subject matter jurisdiction, which is a predicate to adjudicating any case, use of the word "jurisdiction" is certainly a suggestion that the consent of all parties is a strict requirement. Indeed, Super. Ct. R. 207(V)(c) states unambiguously that a party objecting to a case originally filed in the Business Court may, "as of right," insist on the case being transferred to a superior court where venue lies.

Furthermore, RSA 491:7-a also describes the "jurisdiction" of the Business Court and, like Super. Ct. R. 207, states that the consent of all parties is a requirement. Waiving the applicability of a superior court rule is one thing, ignoring a statutory requirement is something entirely different. Defendants point to cases in which the superior court has extended the time for objecting to summary judgment or allowed a reply memorandum, notwithstanding the fact that RSA 491:8-a sets a deadline for objections only. One of the cited cases is Sabinson v. Trustees of Dartmouth College, 160 N.H. 452, 461, 999 A.2d 380 (2010). In Sabinson, the supreme court affirmed the superior court's award of summary judgment to the defendant. On appeal, the plaintiff challenged the superior court's decision to allow the defendant to file a reply memorandum. The supreme court rejected the argument, noting both that the superior court has the inherent ability to manage its own docket and that neither RSA 491:8-a nor the superior court summary judgment rule prohibit such a pleading.

But there is a significant difference between extending deadlines for filings or allowing reply memoranda, which go to the heart of a court's ability to manage its own docket, and changing the qualifications for acceptance into a statutorily-created docket. And here, the applicable statute and rules are not silent but rather prohibit the result that Defendants seek. Both expressly bar Business Court jurisdiction over a case when one of the parties objects. The cases cited by Defendants simply do not support ignoring a clear limitation on which cases may be accepted into the Business Court. This Court's obligation is to interpret and apply statutes rather than modify them and any fair reading of RSA 491:7-a points to a mandate that both parties must consent to the Business Court's jurisdiction over a case.

Finally, even if this Court believed it could somehow waive the consent requirements in RSA 491:7-a and Super. Ct. R. 207, it would not be inclined to do so. The legislature and rule drafters have strongly articulated their conclusion that no party should be forced to submit a case to the Business Court. That conclusion was likely a function of the concern that plaintiffs' choice of venue should not be so easily disturbed. In this case, Plaintiffs may have a reason why they would prefer to try this case in Merrimack County rather than Hillsborough County. The statutory and rule language may also have been a function of the Business Court in this state having only one assigned judge meaning that without a consent requirement, one party could unilaterally select the presiding judge in any eligible case.

In sum, this Court does not believe it has the ability to waive the requirement that all parties consent to transfer of a case to the Business Court and would not grant such a request for waiver even if it had such authority. The motion to transfer the above case to the Business Court is, therefore, DENIED. SO ORDERED.

/s/ David A. Anderson

Judge David A. Anderson

September 22, 2020

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