Mohammed Abdallah Omran v. Andrew Schulman

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0356, Mohammed Abdallah Omran v.
Andrew Schulman, the court on March 24, 2017, issued the
following order:

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

This is the third civil lawsuit that the plaintiff, Mohammed Abdallah
Omran, has filed against the defendant, Andrew Schulman, alleging that
Schulman violated professional obligations to him when Schulman represented
him on federal criminal charges that were ultimately dismissed. The criminal
charges were brought following Omran’s detention by the United States
Immigration and Customs Enforcement agency (ICE), and Omran remained in
ICE custody following the dismissal of the criminal charges. Omran’s prior two
civil actions against Schulman were dismissed in federal court for failure to
state a claim upon which relief may be granted. Omran now appeals an order
of the Superior Court (Nicolosi, J.) dismissing the present complaint.

In reviewing an order granting a motion to dismiss, we assume the truth
of the facts alleged in the complaint and construe all reasonable inferences
from those facts in the light most favorable to the plaintiff. See Beane v. Dana
S. Beane & Co., 160 N.H. 708, 711 (2010). We also consider documents that
are attached to the pleadings, documents that are referred to in the pleadings,
documents that are official public records, or documents that are indisputably
authentic. See id. We do not, however, credit allegations that are mere
conclusions of law. See id.

The allegations in the complaint and public records related to such
allegations establish the following facts. The United States District Court for
the District of New Hampshire appointed Schulman to represent Omran on
federal criminal charges after it had discharged his prior counsel. Schulman
subsequently moved to dismiss the charges on the basis that the underlying
criminal statute was unconstitutional. According to Omran’s allegations,
which we assume to be true, see id., he had previously instructed Schulman
not to seek dismissal of the charges. Schulman also declined Omran’s request
that he move to suppress evidence that the government had seized and to
request a hearing on whether the search warrant application contained
material misrepresentations, believing that he lacked a good faith basis to file
the motion. Omran’s prior counsel had declined to file a similar motion.
 While the motion to dismiss was still pending, Schulman moved to
withdraw. Subsequently, and before an objection to the motion to dismiss was
due, the government filed its own motion to dismiss the criminal charges
without prejudice. Ultimately, the federal district court granted the
government’s motion over Omran’s objection, granted Schulman’s motion to
withdraw, and did not act upon the motion to dismiss that Schulman filed.
Omran appealed the dismissal, and approximately nine months after the
district court had granted Schulman’s motion to withdraw, the United States
Court of Appeals for the First Circuit dismissed the appeal.

Omran filed a civil action in the United States District Court for the
District of New Hampshire against a number of defendants, including
Schulman, alleging various claims arising out of the criminal case (first federal
lawsuit). He alleged that Schulman deprived him of federal constitutional
rights and violated New Hampshire law by not filing the motion to suppress in
the prior criminal case, and by filing, without authority, the motion to dismiss.
Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) (2012), the federal district
court dismissed the first federal lawsuit on the basis that it failed to state a
claim upon which relief may be granted. The United States Court of Appeals
for the First Circuit affirmed.

Thereafter, Omran filed a second civil action arising out of the prior
criminal case against Schulman and several other defendants in superior
court; that case was subsequently removed to the United States District Court
for the District of New Hampshire (second federal lawsuit). As he had done in
the first federal lawsuit, Omran alleged that Schulman refused to file the
motion to suppress and filed an unauthorized motion to dismiss. Such
conduct, according to Omran, deprived him of his federal right to effective
assistance of counsel, “contributed to the loss and damage of [his] property,”
and constituted “legal malpractice, negligence, abuse of process, and
discrimination” under New Hampshire law. The federal district court granted
Schulman’s motion to dismiss on the basis that the complaint failed to state a
claim upon which relief may be granted against him.

After the federal district court had dismissed the claims against
Schulman in the second federal lawsuit, but while that case was still pending
against other defendants, Omran filed the present case against Schulman in
superior court. He alleged that Schulman “misrepresented [him] and violated
the New Hampshire State legal malpractice law” by filing the motion to dismiss
the criminal charges, that he “lost his property that was never returned to
him,” and that he “suffered severe emotional and psychological distress” as a
result of Schulman’s conduct. Schulman moved to dismiss, arguing that: (1)
dismissal was proper pursuant to the “pending-prior-action doctrine,” cf.
Pacific & Atlantic Shippers v. Schier, 106 N.H. 69, 70 (1964), because the
second federal lawsuit involved the same parties and same cause of action, and
was then pending before a court of competent jurisdiction; (2) the dismissal of

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the first federal lawsuit constituted a final judgment on the merits for purposes
of res judicata; and (3) the complaint failed to state a claim upon which relief
may be granted. Noting that Omran had filed no objection, and that “[t]o allow
suit in this court because a litigant is unhappy with the results from another
court [would be] unfair,” the trial court granted the motion “given the pendency
of an identical action in federal court where complete relief is available.”

Subsequently, Schulman submitted correspondence notifying the trial
court that: (1) after he had filed the motion to dismiss and had mailed it to
Omran at Omran’s last known address, he had learned from a filing in the
second federal lawsuit that Omran’s address had changed; and (2) after the
trial court had granted the motion to dismiss, he had received the envelope,
which contained the copy of the motion that he had mailed to Omran, bearing
a “Return to Sender” stamp dated more than a month after he had originally
mailed it. Omran filed an untimely motion for reconsideration, which the trial
court did not rule upon. Omran then filed the present appeal, with a motion
for late entry of it. We granted the motion for late entry of the appeal.

On appeal, Omran argues that: (1) the ruling on the motion to dismiss
deprived him of due process because he did not receive a copy of the motion
prior to the ruling; (2) the second federal lawsuit did not divest the trial court of
jurisdiction to rule upon his State law claims; and (3) res judicata cannot apply
because, he asserts, his State law claims were not litigated in federal court,
and because the federal district court allegedly deprived him of an opportunity
to respond to Schulman’s motion to dismiss the second federal lawsuit.
Schulman counters that the trial court acted within its discretion by
dismissing the case pursuant to the pending-prior-action doctrine.
Alternatively, he argues that, although the trial court did not rule upon his
argument that the complaint failed to state a claim upon which relief may be
granted, the trial court was compelled to dismiss the case on that basis. See
Handley v. Town of Hooksett, 147 N.H. 184, 189-90 (2001) (noting that this
court will uphold trial court order if valid alternative grounds support it).
Specifically, Schulman argues that, because the underlying criminal charges
were dismissed, because he did not do or fail to do anything that caused
Omran to be placed in federal custody, and because Omran has the ability to
request the return of his seized property under Federal Rule of Criminal
Procedure 41(g), the complaint did not establish that Schulman’s alleged
breaches caused Omran to suffer harm. Nor did the complaint, according to
Schulman, establish that he breached a professional standard of care because,
he argues, neither the filing of a potentially meritorious dismissal motion nor
the refusal to file a suppression motion that he believed lacked a good faith
basis amounted to a breach of a duty of care. Finally, although Schulman
acknowledges that Omran did not receive the motion to dismiss prior to the
trial court’s ruling, he argues that Omran was not prejudiced because he has
not established that the result of the case would have been different.

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 As the appealing party, Omran has the burden of demonstrating
reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our
review of the trial court’s order, Omran’s challenges to that order, the relevant
law, and the record submitted on appeal, we conclude that the Omran has not
demonstrated reversible error. See id.

Affirmed.

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

Eileen Fox,
Clerk

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