Robert Kindya v. Atrium Medical Corporation

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0749, Robert Kindya v. Atrium Medical
Corporation, the court on June 9, 2015, issued the following
order:

Having considered the briefs, memorandum of law, and record submitted
on appeal, we conclude that oral argument is unnecessary in this case. See
Sup. Ct. R. 18(1). We affirm.

The plaintiff, Robert Kindya, appeals the order of the Superior Court
(Temple, J.) affirming the decision of the New Hampshire Commission for
Human Rights (commission) finding no probable cause to credit the allegations
of discrimination in his complaint against the defendant, Atrium Medical
Corporation. The plaintiff argues that the superior court erred in: (1) granting
the defendant’s motion to strike its default; and (2) affirming the commission’s
finding despite the defendant’s default in the administrative proceeding.

To prevail in the superior court, the plaintiff was required to establish by a
clear preponderance of the evidence that the commission’s decision was
unlawful or unreasonable. See RSA 354-A:21, II(a) (2009).

The plaintiff first argues that the superior court erred in granting the
defendant’s motion to strike its default for failing to timely answer the plaintiff’s
appeal petition. The superior court has broad discretion in managing the
proceedings before it. In the Matter of Conner & Conner, 156 N.H. 250, 252
(2007). Superior Court Civil Rule 42 provides that the court may strike a
default “upon such terms as justice may require.” We will not reverse the
court’s decision to strike a default unless the court unsustainably exercised its
discretion or erred as a matter of law. In the Matter of Jones and Jones, 146
N.H. 119, 121 (2001); State v. Lambert, 147 N.H. 295, 296 (2001) (explaining
unsustainable exercise of discretion standard). To show that the court’s
decision is not sustainable, the plaintiff must demonstrate that its ruling was
clearly untenable or unreasonable to the prejudice of his case. See Conner,
156 N.H. at 252.

The plaintiff argues that the court erred in striking the default because,
he asserts, the defendant demonstrated “gross negligence” in failing to notify its
counsel that it had been served with the petition and because its counsel
negligently failed to inquire as to whether the petition had been served after
receiving a copy of a letter from the commission to the court transferring a
certified copy of the record of the proceedings before the commission. The
defendant counters that it mistakenly believed that its counsel had received
notice that the petition had been served, and that while the commission’s letter
to the court may have notified its counsel that the plaintiff had filed his
petition, its counsel was unaware that the petition had been served until the
court issued its default notice. The defendant also asserts that the plaintiff
suffered no prejudice by the relatively brief delay resulting from its late answer.
The record shows that the defendant’s answer was due on or about March 25,
2014 and was filed on or about April 22, 2014.

The superior court may waive the strict application of any rule as good
cause appears and as justice may require. Super. Ct. Civ. R. 1(d). This
standard “does not explicitly bar relief from all consequences of human
neglect.” Perron v. Aranosian, 128 N.H. 92, 95 (1986). Based upon the record
in this case, we conclude that the plaintiff has failed to demonstrate that he
was prejudiced by the court’s decision to strike the default, or that the court
otherwise unsustainably exercised its discretion in granting the motion to
strike. See Conner, 156 N.H. at 252.

The plaintiff next argues that the court erred in affirming the
commission’s finding despite the defendant’s default in the administrative
proceeding. He also argues that the court erred in failing to expressly address
the defendant’s defaults in its order on the merits. It is the burden of the
appealing party, here the plaintiff, to provide this court with a record sufficient
to decide his issues on appeal, as well as to demonstrate that he raised his
issues in the superior court. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248,
250 (2004); see also In the Matter of Birmingham & Birmingham, 154 N.H. 51,
56 (2006) (self-represented litigants are bound by the same procedural rules
that govern parties represented by counsel). The record fails to show that the
plaintiff requested specific findings regarding the defendant’s defaults. In the
absence of a party’s request, the court is not obligated to make specific
findings, see Caouette v. Town of New Ipswich, 125 N.H. 547, 558 (1984), and
we will assume that the trial court made all findings necessary to support its
ruling, see Prop. Portfolio Group v. Town of Derry, 154 N.H. 610, 617 (2006).

The record fails to show that the plaintiff argued in the superior court
that the commission’s decision should be reversed because of the defendant’s
failure to timely respond to his charge of discrimination. Even assuming,
without deciding, that the plaintiff raised this issue in the superior court, the
record supports the superior court’s implied finding that the commission had a
sufficient basis not to default the defendant. The defendant filed a detailed
response to the plaintiff’s charge of discrimination on or about November 28,
2012, approximately two months after the plaintiff alleges the response was
due. The plaintiff has failed to demonstrate how he was prejudiced by this
delay. Based upon this record, we find no error in the superior court’s order
affirming the commission’s decision. See Demers Agency v. Widney, 155 N.H.
658, 660 (2007).

2
 We have considered the plaintiff’s remaining arguments and conclude that
they are insufficiently developed, see State v. Blackmer, 149 N.H. 47, 49 (2003),
and warrant no further consideration, see Vogel v. Vogel, 137 N.H. 321, 322
(1993).

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

3