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09821-00001/12305791.1
STATE OF NEW HAMPSHIRE
ROCKINGHAM, SS SUPERIOR COURT
Civil Action No. 218-2020-CV-00673
BLYTHE BROWN,
Plaintiff,
v.
DANIEL GERHARD BROWN
Defendant.
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PLAINTIFF’S OBJECTION TO DEFENDANT’S MOTION TO DISMISS
1. Plaintiff Blythe Brown hereby objects to the Motion to
Dismiss filed by Defendant
Daniel G. Brown on July 29, 2020. (Mot., Index # 23 (Sealed);
Index # 24 (Public)).
I. INTRODUCTION
2. Plaintiff Blythe Brown filed substantial, specific and
factually supported claims
against Defendant Dan Brown, arising out of Defendant’s perjury
and other misconduct.
Defendant’s Motion to Dismiss inaccurately asserts that the
entirety of Plaintiff’s claims arise out
of insufficiently pled allegations. He also sets up proverbial
strawmen to then knock down,
improperly recasting each and every one of Plaintiff’s seven
counts and resting on an incorrect
description of the Complaint and the nature of this lawsuit.
3. Contrary to Defendant’s mischaracterizations, this is not a
case about whether
Defendant could spend “some of his own earnings during the
course of the marriage” without
FiledFile Date: 8/28/2020 12:43 PMRockingham Superior Court
E-Filed Document
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09821-00001/12305791.1 2
Plaintiff’s “pre-approval.” (Mot., ¶¶ 1, 8, 13). Rather, this is
a case about Defendant’s knowingly
perjurious statements in violation of RSA 458, § 15-b, and his
wide-ranging fraud, serial
misrepresentations, and material omissions regarding the
Parties’ marital assets, finances, and
Defendant’s ongoing and anticipated projects and works. This
case is also about Defendant’s
improper interference with assets that would have been part of
the marital estate at the time of the
divorce had he been truthful and not hidden them, but rather
disclosed them as required by law.
Finally, this case is also about the emotional distress that
Defendant inflicted upon Plaintiff through
his fraudulent and tortious conduct.
4. Defendant’s attempts to mischaracterize the Complaint he
seeks to dismiss based
upon his reframing and narrowing of Plaintiff’s claims must
fail. Additionally, Defendant cannot
use the provision in the Divorce Decree regarding the transfer
of intellectual property to shield
himself from liability for his perjurious statements about his
projects that were in the works or
anticipated as of the date of divorce. For these, and the
reasons more fully articulated herein,
Defendant’s Motion to Dismiss should be denied in its
entirety.
II. FACTUAL BACKGROUND
5. In response to Defendant’s factual background and attempts to
re-write Plaintiff’s
pleadings, Plaintiff provides this brief statement of facts.
6. Plaintiff Blythe Brown and Defendant Dan Brown married in
1997, and enjoyed a
successful personal and professional partnership together.
(Complaint, ¶¶ 4, 19). Following
several years of unsuccessful artistic pursuits, the couple
achieved great success in 2003 with the
publishing of The Da Vinci Code, which became an international
best-seller. (Id., ¶¶ 5–8, 20–26).
As Defendant recognized and detailed under oath in a statement
submitted to a London court in
2005, Plaintiff had a pivotal role in developing The Da Vinci
Code’s key themes, and was the
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09821-00001/12305791.1 3
principal researcher and first-line editor for the novel. (Id.,
¶¶ 24–25). And, The Da Vinci Code
was just the beginning of their success. (Id., ¶¶ 8, 27).
7. However, after over two decades of marriage and several
collaborations on literary
successes, in August 2018, Defendant informed Plaintiff that he
wanted to separate. Defendant
told Plaintiff that they had simply “grown apart” but he assured
her that they would remain close
companions and the best of friends. (Id., ¶¶ 10–12, 32–33).
Defendant pushed for a quick, quiet,
and amicable divorce, away from the glare of the paparazzi. He
assured Plaintiff that she knew
everything about the nature and extent of the assets acquired
during their nearly twenty-two-year
marriage, and that she could trust him. (Id., ¶¶ 11–12, 32–34,
59–61). Defendant then submitted
to the divorce court a sworn affidavit of financial assets and
prospects that was riven with untruths.
Needless to say, Plaintiff detrimentally relied on Defendant’s
statements and representations and
omissions about the state of their relationship and the nature
and amount of their assets at the time
of the divorce. (Id., ¶¶ 12, 33–35, 41).
8. However, shortly after the Parties’ divorce was finalized in
December 2019,
Plaintiff discovered the truth: Defendant had been secretly
leading a double life for several years,
and had made various fraudulent misrepresentations and omissions
to Plaintiff to coerce her into
agreeing to a quick, quiet and amicable divorce on the terms he
wanted. (Id., ¶¶ 13, 38).
9. For example, Defendant’s financial affidavit, signed and
sworn to on October 2,
2019, and filed on October 24, 2019 in the 10th Circuit, Family
Division in Portsmouth, stated that
he had no (Id., ¶¶ 35, 59). But, as Plaintiff later learned,
that was untrue. Defendant had several projects in progress as
of October 2019, including a new
television series based on the recurring character in his novels
entitled, “Langdon;” a MasterClass
series; a children’s book, music project and app, Wild Symphony;
and a new Robert Langdon novel.
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09821-00001/12305791.1 4
(Id., ¶¶ 59–61). As he well knew, Defendant stands to make
millions from these projects, but he
hid them from Plaintiff. (Id., ¶ 61).
10. Plaintiff also learned that Defendant had been financially
supporting his secret
mistress, JP, with whom he was carrying on a six year-long
affair, completely unbeknownst to
Plaintiff. (Id., ¶¶ 33, 42–52). Defendant had dissipated the
marital estate by siphoning significant
funds to JP over the course of several years, using various
methods, accounts, and agents. (Id.).
Yet, to induce Plaintiff to agree to forgo a protracted divorce
proceeding, Defendant assured
Plaintiff that she had full knowledge of their marital finances
and assets—this representation, of
course, was false. (Id., ¶¶ 11–12, 32–35). Plaintiff also
learned that Defendant had purchased two
(quite expensive) prize horses, Da Vinci and LimiTed Edition
(the “Concealed Horses”), for JP’s
use in setting up her horse training business, as her “sponsor.”
(Id., ¶¶ 44–52, 57). The Defendant
even secured the funds by lying to their financial advisor, that
the hundreds of thousands of dollars
he was withdrawing and transferring was for a birthday present
for his then wife, the Plaintiff. (Id.,
¶¶ 44, 47; see also Answer, ¶¶ 44, 47).1 The Concealed Horses
were not disclosed as assets, as
required, on Defendant’s financial affidavit. (Complaint, ¶ 52;
see also Answer, ¶¶ 42, 44, 47–48
(Defendant admits to purchasing the Concealed Horses)).
11. Moreover, the affidavit specifically required that it be
updated as new information
came to light. But Defendant never did so. (Complaint, ¶
35).
1 The Court may consider Defendant’s Answer for purposes of
Plaintiff’s Objection to
the Motion to Dismiss because the Answer is properly before the
Court as a pleading, or a
“document[] the authenticity of which [is] not disputed by the
parties.” Beane v. Dana S. Beane
& Co., P.C., 160 N.H. 708, 711 (2010) (quoting Watterson v.
Page, 987 F.2d 1, 3 (1st Cir. 1993)).
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09821-00001/12305791.1 5
III. ARGUMENT
12. To defeat a motion to dismiss, Plaintiff need only provide a
plain statement of a
claim that is “reasonably susceptible of a construction that
would permit recovery.” Sanguedolce
v. Wolfe, 164 N.H. 644, 645 (2013) (quoting Gen. Insulation Co.
v. Eckman Constr., 159 N.H. 601,
611 (2010)). The Court must accept the pleadings to be true and
construe all reasonable inferences
in the light most favorable to Plaintiff. Sanguedolce, 164 N.H.
at 645. “If the facts as alleged
would constitute a basis for legal relief, the motion to dismiss
should be denied.” Provencal v.
Vermont Mut. Ins. Co., 132 N.H. 742, 745 (1990) (quoting
Collectramatic, Inc. v. Kentucky Fried
Chicken Corp., 127 N.H. 318, 320 (1985)). “This is a threshold
inquiry, requiring the court to test
the facts in the complaint against the applicable law.”
Provencal, 132 N.H. at 745 (citing Jay
Edwards, Inc. v. Baker, 130 N.H. 41, 45 (1987)).
A. The Court Should Deny the Motion to Dismiss Plaintiff’s Claim
for Defendant’s Violation of RSA 458, § 15-b (Count I) Based on
Defendant’s
False Statements Regarding His Assets and Projects.
13. Plaintiff’s Complaint alleges specific facts clearly
demonstrating that Defendant
made false statements and omissions on his financial affidavit
in violation of RSA 458, § 15-b.
(Complaint, ¶¶ 64–67). Whether he did so, with regard to both
his financial assets and his
is a question of fact, not resolvable at the motion to dismiss
stage.
Mandiram v. G & G, LLC, No. 2007-0572, 2008 WL 11258709, at
*3 (N.H. July 8, 2008) (“It is
not appropriate to resolve a factual matter … on a motion to
dismiss.”).
14. And the repeated statement that Defendant simply spent his
own earnings during
the marriage (which pertains to asset disclosure and not to
pending and future projects) would
allow a spouse to dispose of assets on one day and swear the
next day that he has no assets. New
Hampshire law allows no such sleight-of-hand. See In the Matter
of Brownell, 163 N.H. 593, 600
(2012) (Citation omitted) (“Given the purpose of RSA 458:16-a
(2004), which is to achieve equity,
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09821-00001/12305791.1 6
we hold that it would be contrary to legislative intent to
‘permit one spouse to squander marital
property and render it impossible to make an equitable award of
property.’”). As stated in that
case, “dissipated property must be distributed like any other.”
Id. (Citation omitted). Discovery
and an evidentiary trial are needed in order to demonstrate that
Defendant did not simply “spend
his own earnings,” as if he was buying himself a new suit or a
new car, or supporting the Parties’
joint lives as husband and wife or otherwise.
15. Defendant nevertheless argues that Plaintiff has not
plausibly alleged Defendant’s
violation of RSA 458, § 15-b. RSA 458, § 15-b provides that a
party “aggrieved by a false
statement in a financial affidavit” filed in a New Hampshire
divorce proceeding may “file a civil
action” and, upon proof of such a knowing false statement,
“shall be entitled to receive treble
damages and attorney’s fees.”
16. Contrary to Defendant’s mischaracterizations, Plaintiff does
not allege that
Defendant falsely disclosed “how he spent his earnings during
the marriage” on his financial
affidavit. (Mot., ¶ 12) (Emphasis in Original). The financial
affidavit does not ask for a disclosure
of the Parties’ historical spending. Rather, Plaintiff alleges
that Defendant “misrepresented and
omitted material facts, information and data regarding the
Browns’ marital assets and finances,”
and Defendant’s own “assets, finances and projects” on his
financial affidavit. (Complaint, ¶ 65).
17. Specifically, on Defendant’s financial affidavit, with
respect to his
he indicated there were (Complaint, ¶¶ 12, 35, 59).
Plaintiff alleged that Defendant’s statement was knowingly false
and that he in fact had several
such at the relevant time, including when he signed his
sworn
financial affidavit on October 2, 2019, and submitted it to the
divorce court on October 24, 2019.
(Id., ¶¶ 12, 35, 59–61). Additionally, Plaintiff alleged that
Defendant failed to disclose relevant
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09821-00001/12305791.1 7
assets at the time of the Browns’ divorce, including his
ownership of two prized Friesian horses:
LimiTed Edition and Da Vinci, as well as the assets and monies
that should have been subject to
the marital estate at the time of the divorce had Defendant not
conveyed those assets to his mistress.
(Id., ¶¶ 41–52). Thus, when Defendant swore that he
he made additional false statements. (Id.,¶ 35).2
18. Plaintiff’s Complaint provides a detailed account of how and
when Defendant
purchased the Concealed Horses. (Id., ¶¶ 44–50). The Complaint
further alleges that Defendant
was the owner of these horses at the time of the divorce, that
he did not disclose the assets on his
financial affidavit as required, and that these horses
constituted part of the marital estate subject to
equitable division at the time of the divorce. (Id., ¶¶ 50–52).
Contrary to Defendant’s Motion,
Count I of the Complaint does not rest on a claim that Defendant
failed to report his “historic
spending” or procure “pre-approval” for such spending during the
marriage. (Mot., ¶¶ 13, 19).
Thus, Defendant’s Motion neither addresses nor moves to dismiss
Count I with respect to the
Concealed Horses.
19. Defendant admits that he purchased the horse, Da Vinci, from
the Parties’ joint
account. (Answer, ¶ 42). He further admits that, to purchase a
second prized horse, he lied to the
Parties’ joint financial advisor that the funds were being used
to buy a birthday gift for the Plaintiff.
2 Plaintiff’s Complaint also alleged that Defendant transferred
large sums to his mistress,
JP, which were unknown to Plaintiff, which should have been
subject to the marital estate at the
time of the divorce. (Complaint, ¶ 42). In Defendant’s Answer,
which he filed simultaneously
with his Motion to Dismiss, he stated that he listed one
“purportedly ‘secret’ account” number on
his financial affidavit. (Answer, ¶ 65). Defendant made no
mention of this argument in his Motion
to Dismiss, nor could he because whether he fully disclosed the
actual nature and contents of that
secret account, and all accounts and assets he owned, is a
factual dispute. Additionally, because
of the deceptive nature of Defendant’s conduct, Plaintiff
currently is not in a position to know the
full extent of Defendant’s false statements at the time of the
divorce, and Plaintiff therefore seeks
a full accounting from Defendant. (Complaint, at 23).
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(Id., ¶¶ 44, 47). Defendant vaguely states that he “promptly
gifted” LimiTed Edition to his
mistress JP thereafter—which is a claim Plaintiff will show is
an outright lie, as he well knows
(interestingly, Defendant makes no mention of who owns Da Vinci
now). (Id.). Defendant is not
entitled to recast the Complaint the way he would like it to
read and then dismiss it by prevaricating
to the Court. Rather, the Complaint must be accepted at this
stage as true (as indeed it is), not re-
written by the Defendant. See Sanguedolce, 164 N.H. at 645. And
as to other questions regarding
Defendant’s expenditures—these require evidence and proof, not
protestations from a party who
now claims he was just trying to avoid personal
embarrassment.
20. As for Defendant’s Defendant’s own Motion
acknowledges that what projects Defendant was working on at the
time of the divorce is a factual
issue “inappropriate for inclusion in a motion to dismiss.” See
Mot. at 4, n.3 (“The Complaint
alleges that Defendant is also liable based on the theory that
he did not disclose in his financial
affidavit all Those theories turn on inaccurate factual
assertions, and so are inappropriate for inclusion in a motion
to dismiss. Hence, were this
motion to be allowed with regard to Defendant’s financial
disclosures alone, the dismissal would
be partial.”) (Emphasis Added) (Internal citation omitted).
21. All that is left then of Defendant’s argument to dismiss
Count I is that, in the same
proceeding in which Defendant falsely represented that he had
no
he purportedly procured an assignment and transfer from
Plaintiff of the underlying rights
to such works. (Id., ¶ 14). But Defendant cannot rely on a
transfer of intellectual property rights—
which was procured by false representations and omissions in
violation of New Hampshire law
about the existence of his in-progress and anticipated works and
his plans to retire—as a shield in
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09821-00001/12305791.1 9
this litigation. At most, how that assignment was procured, and
the lies told to Plaintiff to procure
it, are for the jury to hear, and is not appropriate for a
motion to dismiss.
22. Moreover, this is not an intellectual property
dispute—Plaintiff is not asserting
direct rights to Defendant’s
as described in that provision of the Divorce Decree.
(Id., ¶ 14). Instead, Plaintiff is suing Defendant for statutory
damages for his perjurious statements
in his financial affidavit, as provided by RSA 458, § 15-b, and
for fraud, fraudulent
misrepresentation, negligent misrepresentation, conversion, and
intentional and negligent
infliction of emotional distress. (Complaint, ¶¶ 64–96).
Plaintiff did not waive any right to sue
for these claims. Defendant’s further implication that Plaintiff
lacks standing is based on this
logically-flawed argument, and therefore fails as well.
Plaintiff did in fact suffer “a legal injury
against which the law was designed to protect,” and she is
pursuing the legal rights available to
her under RSA 458, § 15-b. Libertarian Party of New Hampshire v.
Sec'y of State, 158 N.H. 194,
195 (2008) (quoting Asmussen v. Comm'r, N.H. Dep't of Safety,
145 N.H. 578, 587 (2000)).
23. Defendant’s related assertion that to pursue her rights in
this litigation Plaintiff
should rescind the property settlement (which was incorporated
into a court order deemed the final
Divorce Decree) and “tender back” her share of the marital
estate, is categorically false, as
demonstrated by Defendant’s own case citations. See Mot., ¶ 15
(“A party entering into an
agreement in reliance upon a misrepresentation of a material
fact has two choices ... He may
justifiably elect to rescind or disaffirm the agreement and
refuse to proceed further with the
transaction, or he may elect to affirm the contract, keep its
benefits, perform his obligations
thereunder, and sue for damages for misrepresentation.”)
(Emphasis Added) (citing Green v.
Sumner Props., LLC, 152 N.H. 183, 185 (2005)). Plaintiff has
elected to sue Defendant for
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09821-00001/12305791.1 10
damages, not to rescind or disaffirm. See also Legacy Global
Sports, LP v. St. Pierre, No. 218-
2019-CV-198, 2020 WL 2027401, at *6 (N.H. Super. Apr. 27, 2020)
(citing Coutu v. State, No.
2015-CV-488, 2017 WL 1051159, at * 3 (N.H. Super. Mar. 15,
2017); RESTATEMENT (SECOND)
OF TORTS § 530) (explaining that a party may elect to sue for
fraudulent inducement in contract or
in tort; the former requires rescission and the latter does
not).
24. Defendant’s Motion to Dismiss Count I should be denied.3
B. The Court Should Deny Defendant’s Motion to Dismiss
Plaintiff’s Fraud
Claim (Count II).
25. As with Count I, Defendant’s Motion to Dismiss Count II
attempts to re-write
Plaintiff’s fraud claim in the light most favorable to him. But
that is the opposite of the standard
on a motion to dismiss. Plaintiff’s fraud claim is not based, as
Defendant would have it, on the
premise that Defendant spent “his own money” without first
telling his wife and getting her
approval. (Mot., Section B, Title & ¶ 24). Rather, the fraud
claim is based upon Defendant’s
misuse of marital funds in anticipation of the divorce, as well
as his false statements that he had
no his omissions and affirmative misrepresentations to the
Plaintiff and their joint agent (the financial advisor)
regarding the Concealed Horses, and his
repeated misrepresentations to Plaintiff to induce her to enter
a divorce agreement on the terms he
wanted. (Complaint, ¶¶ 11–12, 32–35, 52, 59–61). It is that
egregious conduct that constitutes
fraud.
3 Defendant’s 55-page Answer, filed simultaneously with his
Motion to Dismiss,
states without elaboration that Defendant “seeks to strike
Plaintiff’s jury claim on Count I.”
(Answer at 1). Plaintiff’s claim, which sounds in fraud and
perjury, must be tried before a jury.
However, if Defendant wishes to pursue this argument, Plaintiff
requests an opportunity to respond
through motion practice. See N.H. Sup. Ct. R. 7(g) (requiring
separate motions for distinct relief).
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09821-00001/12305791.1 11
26. In a classic example of erecting a strawman to then knock
down, Defendant
repeatedly proclaims that New Hampshire is not a community
property state. Of course, no one—
least of all this Plaintiff—ever said it was. Nor does Plaintiff
suggest that either she or Defendant
was required to pre-clear every expenditure they made with one
another—another of Defendant’s
fictional strawmen. The claim is simply that Defendant Dan Brown
committed fraud, meaning he
“made a representation with knowledge of its falsity or with
conscious indifference to its truth,”
Snierson v. Scruton, 145 N.H. 73, 77 (2000) (citing Patch v.
Arsenault, 139 N.H. 313, 319 (1995)).
As Count II of the Complaint alleges, Dan Brown knowingly and
intentionally misled Blythe
Brown by failing to disclose assets, money, and present and
future works known to him.
(Complaint, ¶¶ 12, 32–35, 41–43, 52, 59–61). Plaintiff relied on
Defendant’s statements, as she
had the right to do, and she now seeks to recover damages. It’s
that simple. And “intentional
dissipation” of assets prior to divorce is “no more than a fraud
on marital rights.” In re Brownell,
163 N.H. at 600 (quoting Sharp v. Sharp, 473 A.2d 499, 505
(1984)).
27. In situations such as the one at bar, “courts treat ‘the
dissipated assets ... as if they
were existing marital property,’ and ‘then [either]
constructively award[ ] [them] to the dissipating
spouse as part of that spouse’s share of the marital estate,’
or, if insufficient assets remain to
compensate the innocent spouse, ‘order the dissipating spouse
“to pay a monetary award.’” In re
Brownell, 163 N.H. at 600–01 (Alterations in original) (quoting
2 B. TURNER, EQUITABLE
DISTRIBUTION OF PROPERTY § 6:105, at 553–54 (3d ed. 2005)).
Defendant cannot shield himself
from liability for secretly funneling assets to his mistress JP
shortly prior to and in anticipation of
the Browns’ divorce, including during the very time period
Defendant himself (albeit falsely)
claims his marriage to Plaintiff was purportedly “in name only.”
(Answer at 3, 4, ¶ 13); see In re
Brownell, 163 N.H. at 600 (“[I]t would be contrary to
legislative intent to ‘permit one spouse to
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09821-00001/12305791.1 12
squander marital property and render it impossible to make an
equitable award of property.’”)
(quoting Sharp, 473 A.2d at 505). Defendant’s argument that he
did not have a duty to Plaintiff
and thus cannot be liable for fraud by omission therefore fails,
particularly in light of New
Hampshire case law regarding liability for dissipation of
assets.
28. The bedrock foundation in New Hampshire upon which the
principle of an
“equitable” distribution rests is that both spouses have a duty
to be honest and truthful and to fully
disclose their assets during the divorce when the equitable
distribution of the marital estate is at
issue. Shafmaster v. Shafmaster, 138 N.H. 460, 466–67 (1994)
(discussing spouses’ continuing
duty to provide updated and full financial information to each
other when negotiating a property
settlement during divorce); In Matter of McMaster, No.
2008-0250, 2008 WL 11258760 (N.H.
Dec. 23, 2008) (same); see also In re Rohdenburg, 149 N.H. 276,
278 (2003) (“The duty of full
disclosure is mandatory and cannot be waived by either of the
parties or by the court.”).
29. Defendant next argues that dismissal of Plaintiff’s fraud
claim is somehow justified
because any financial misconduct was purportedly insignificant
and immaterial in light of the
Parties’ overall wealth. Even if that were true (which it is
not), then this is tantamount to saying
that a “little fraud” is okay (which it is not). Notably,
Defendant cites no case authority, and none
exists. Moreover, on a motion to dismiss, it is not for the
Defendant to decide that he will show
the damages are something other than the millions of dollars
that are claimed. In any event,
Defendant’s Answer admits that he had several projects in the
works, that he secretly purchased at
least two prize Friesian horses, and that he made various
payments to JP to refurbish her home and
purchase vehicles. (Answer, ¶¶ 42–48). He never disclosed these
facts to Plaintiff and does not
claim that he did. His failure to include them on his financial
affidavit, coupled with Plaintiff’s
reliance on his representations and his word, makes out a
classic case of fraud. Defendant’s
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09821-00001/12305791.1 13
contention boils down to the notion that he could outright lie
to the Judge and Plaintiff in the
divorce court without penalty because even millions is
purportedly not a material amount in his
ethereal world of wealth and privilege. That is a perilous
suggestion that should be summarily
rejected by this Court.
30. Additionally, in her Complaint, Plaintiff refers to wire
transfers and assets as
examples of Defendant’s dissipation of assets, (Complaint, ¶¶
45–49), but the Complaint is not
limited only to those items. Rather, Plaintiff alleges that
Defendant removed and hid substantial
funds from the Parties’ assets, using various methods, accounts,
and agents, and that he concealed
two unique, irreplaceable Friesian horses, worth hundreds of
thousands of dollars. (Complaint, ¶¶
1, 13, 41, 46). The full scope and extent of Defendant’s
financial misconduct is a question of fact,
to which Plaintiff is entitled to discovery and a trial. Now is
not the time on a motion to dismiss
to consider whether these omissions and misrepresentations were
material, which is a question of
fact. Tessier v. Rockefeller, 162 N.H. 324, 333–34 (2011)
(quoting RESTATEMENT (SECOND) OF
TORTS § 537, 80) (Alteration in Original) (“Whether a reasonable
person would have regarded the
fact misrepresented to be important in determining her course of
action is a question for the jury,
unless the court determines that ‘the fact misrepresented is so
obviously unimportant that the jury
could not reasonably find that a reasonable [person] would have
been influenced by it.’”). Notably,
the case Defendant cites in support of his “immateriality”
argument involved undisclosed eBay
and PayPal accounts, admittedly containing less than
$1,000—hardly worthy precedent here. See
Matter of Husband, No. 2016-0621, 2017 N.H. LEXIS 246, at *4,
2017 WL 5895181, at *2 (N.H.
Nov. 30, 2017).
31. Defendant does not move to dismiss Count II insofar as it
relates to the Concealed
Horses, but he does reincorporate his inapplicable arguments
regarding his projects. For the
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reasons stated in Section (II)(A), supra, ¶¶ 20–22, Defendant’s
Motion should be denied on that
ground as well.
C. The Court Should Deny Defendant’s Motion to Dismiss
Plaintiff’s Fraudulent
Misrepresentation Claim (Count III).
32. As with Counts I and II, Defendant calls again on his trusty
strawman, claiming
that he had a right to spend his own money any way he wanted.
(Mot. at 13). But Defendant’s
persistent attempts to recast Plaintiff’s allegations of
fraudulent misrepresentation fail for the
reasons already articulated in Sections (II)(A)–(B), supra, and
Defendant’s Motion to Dismiss on
this ground should be denied. See supra, ¶¶ 16–19, 25–26
(explaining that Plaintiff’s claims are
not premised on the notion that Defendant had to pre-clear
expenditures with Plaintiff); ¶¶ 27–28
(establishing that Defendant did owe a duty to Plaintiff); ¶¶
29–30 (describing why Defendant’s
materiality argument fails); ¶¶ 20–22 (explaining that the
intellectual property transfer decree does
not shield Defendant from liability).
33. Yet, there is more. Plaintiff’s fraudulent misrepresentation
claim is also premised
on Defendant’s misrepresentations to Plaintiff about the state
of their marriage and assets, their
future friendship, his plans to retire, and the need for a
quick, quiet, and amicable divorce—all
without any mention of the fact that Defendant was leading a
secret double life. He made these
serial misrepresentations with the intent that Plaintiff would
rely on them and Defendant would
get the divorce terms he wanted, no questions asked. And it
worked: Plaintiff reasonably did rely
on his representations to her detriment. These allegations,
spelled out in black and white in the
Complaint, (Complaint, ¶¶ 11–12, 32–34, 59–61, 75–79), stand
ignored by Defendant’s Motion.
Accordingly, Defendant’s Motion to Dismiss Count III also should
be denied. See Attard v. Benoit,
No. 06-CV-355-PB, 2007 WL 4380065, at *5 (D.N.H. Dec. 12, 2007)
(citing Alternative Sys.
Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 30 n.5 (1st Cir.
2004)) (“The elements of fraudulent
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09821-00001/12305791.1 15
misrepresentation in New Hampshire require … that: (1) the
defendant misrepresented a material
fact to the plaintiff, (2) with knowledge of its falsity, (3)
with the fraudulent intent that plaintiff
would rely upon it, and that (4) plaintiff justifiably relied on
the misrepresentation without
knowledge of its falsity.”).
D. The Court Should Deny Defendant’s Motion to Dismiss
Plaintiff’s Negligent
Misrepresentation Claim (Count IV).
34. Defendant’s Motion with respect to Count IV, alleging
negligent misrepresentation,
incorporates several of the invalid arguments addressed above.
For the same reasons that
Defendant’s Motion fails with respect to Counts I through III,
so too does it fail with respect to
Count IV. See supra, ¶¶ 19–19, 25–26 (explaining that
Plaintiff’s claims are not premised on the
idea that Defendant had to obtain Plaintiff’s approval to spend
money); ¶¶ 27–28 (establishing that
Defendant did owe a duty to Plaintiff); ¶¶ 29–30 (describing why
Defendant’s materiality
argument fails); ¶¶ 20–22 (explaining that the intellectual
property transfer does not shield
Defendant from liability).
35. Defendant additionally argues that Plaintiff’s negligent
misrepresentation claim
should be dismissed because “with regard to the financial
disclosures, Plaintiff’s own conduct
during the asset allocation process is [] a superseding
intervening event.” (Mot., ¶ 33). That
“conduct,” it appears, is that the parties employed a joint
financial advisor, (Id.), the same financial
advisor who Defendant admits he deceived in order to access many
hundreds of thousands of
dollars. (Answer, ¶¶ 44, 47).
36. Defendant would put the shoe on the wrong foot to argue that
Plaintiff was under a
duty to undertake an independent investigation of whether
Defendant’s sworn financial affidavit
was truthful. The responsibility for lying is on the liar, not
the person lied to. See In Matter of
McMaster, 2008 WL 11258760, at *2 (“That the petitioner failed
to conduct discovery or further
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09821-00001/12305791.1 16
investigate the respondent's sworn representations is not an
absolute bar to her claim of reliance.”);
Shafmaster, 138 N.H. at 467 (finding that plaintiff “did not
have a duty to conduct discovery or
further investigate the defendant's representations” on his
financial statements). Plaintiff could
have gone to Holland to attempt to discover at least some of
Defendant’s perfidy, but without
having the information about Defendant’s conduct that Defendant
knew but hid, there was no
reason for her to do so. In any event, reliance is a fact issue
not susceptible to a decision on a
motion to dismiss. Mandiram, 2008 WL 11258709, at *3.
37. The Complaint makes clear that part of Defendant’s deception
was lulling his wife
into taking his word for it and forgoing her own forensic review
of his assets. (Complaint, ¶¶ 11–
12, 33). The Motion may say that this is a “superseding cause,”
but New Hampshire law is to the
contrary. Even assuming Plaintiff’s decision to forgo due
diligence of the estate could be a
superseding cause (which it clearly cannot be, as demonstrated
by the aforementioned case law),
an intervening cause can only relieve a defendant of liability
if the intervention was not probable
or foreseeable. Marcotte v. Timberlane/Hampstead Sch. Dist., 143
N.H. 331, 348 (1999). Here,
Defendant himself, by lying, induced the “intervening cause”
that he now improperly attempts to
rely on.
E. The Court Should Deny Defendant’s Motion to Dismiss
Plaintiff’s Conversion
Claim (Count V).
38. Defendant’s Motion to Dismiss Plaintiff’s conversion claim
(Count V) also rests
on a defective re-write of Plaintiff’s Complaint. As already
explained, Plaintiff’s claims are not
premised on the notion that Defendant could not spend money
during the marriage or had to seek
“pre-approval” from Plaintiff for every expenditure. Rather,
Plaintiff’s conversion claim is based
on the fact that Defendant dissipated the marital estate prior
to the divorce and concealed assets
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09821-00001/12305791.1 17
which Plaintiff had a right to claim during the divorce,
including the Concealed Horses.
(Complaint, ¶¶ 88–89, 52).
39. This claim is not subject to dismissal on the basis that
Plaintiff did not hold
exclusive title to the assets at issue. The Browns’ marital
estate was subject to equitable division
under New Hampshire law at the time of the divorce. RSA 458,
§16-a provides that the marital
estate “shall include all tangible and intangible property and
assets, real or personal, belonging to
either or both parties, whether title to the property is held in
the name of either or both parties.”
(Emphasis Added). In light of this clear statutory language that
title is irrelevant in the marital
asset context, Defendant’s focus on exclusive title is
misplaced. Plaintiff did have an interest in
property or assets held by Defendant (or fraudulently conveyed)
at the time of the divorce, and she
alleges that Defendant, in bad faith, substantially interfered
with her right and ability to control
such assets.
40. Nonetheless, Defendant heavily relies on the non-binding
case of Marcucci v.
Hardy, 65 F.3d. 986 (1st Cir. 1995) for the proposition that the
pleading party purportedly must
have exclusive title to the “funds” at issue to sustain a
conversion claim. But the conversion claim
in Marcucci was not resolved at the motion to dismiss stage—the
claim was dismissed after a
bench trial. Id. at 987. And Marcucci was a suit brought by a
father against his daughter for her
use of funds held in joint accounts. Nowhere in the opinion did
the First Circuit—applying some
combination of New Hampshire, Connecticut, and Massachusetts
law—state or imply that the
issue of exclusive title was dispositive to its decision to
affirm dismissal of the conversion claim.
Instead, the Court stated that “[t]he district court rejected
the all-or-nothing positions advanced by
both parties—that each held exclusive title to the accounts
notwithstanding their joint status.” Id.
at 991. The focus of the case was not about exclusive title, but
rather donative intent and whether
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09821-00001/12305791.1 18
the plaintiff had established ownership of the funds in the
joint account or that any portion of the
joint accounts was not intended as a gift to his daughter. Id.
at 991–92. Additionally, the Court in
Marcucci found that substantial amounts from the joint accounts
were expended by the defendant
to care for the plaintiff. Accordingly, plaintiff’s damages
“could only have been arrived at through
conjecture” and the Court concluded that the conversion claim
was properly dismissed. Id. at 992.
41. This suit is entirely different. Here there is no issue of
donative intent muddying
Plaintiff’s conversion claim or frustrating Plaintiff’s ability
to prove damages. Additionally, here,
Plaintiff brings her conversion claim against the backdrop of
RSA 458, §16-a, which makes the
issue of title irrelevant and further supports her right to an
equitable portion of the assets at issue
as part of the marital estate at the time of divorce.4
F. The Court Should Deny Defendant’s Motion to Dismiss
Plaintiff’s Claim for
Intentional Infliction of Emotional Distress (Count VI).
42. Defendant yet again adopts an inaccurate and constricted
view of Plaintiff’s claim
with respect to intentional infliction of emotional distress
(“IIED”) (Count VI). Defendant moves
to dismiss this count—citing only case law from other
jurisdictions—on the basis that an affair
alone cannot constitute IIED. But Plaintiff’s claim is not based
solely on Defendant’s admitted
six-year-long affair with Plaintiff’s horse trainer. Plaintiff
states a claim for IIED based on the
fact that Defendant “subjected Blythe Brown to degradation and
humiliation by having several
sexual affairs with numerous women during the past several years
of their marriage, without Blythe
4 Plaintiff’s conversion claim also relates to Defendant’s
dissipation of assets prior to the
divorce, as detailed above. See Section II(B). Had Plaintiff
known about Defendant’s wasting of
the marital estate, including the significant funds he
transferred to JP over a period of several
years—including during a time period he (falsely) claims his
marriage to Plaintiff was “in name
only”—she would have asserted her rights to the value of those
wasted assets. But she was never
given the facts or that opportunity. And had Plaintiff known
about Defendant’s purchases of the
Concealed Horse, she would have sought ownership of the horses
themselves. In this additional
sense, Defendant substantially interfered with Plaintiff’s
property.
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09821-00001/12305791.1 19
Brown’s knowledge,” “in secret pillaged the Browns’ marital
assets to use for himself and for his
mistresses,” and “deceived and lied to Blythe Brown to lure her
into agreeing to an asset and
property settlement far below that to which she would otherwise
be entitled and on terms Dan
wanted favorable to him.” (Complaint, ¶ 92).
43. Because Plaintiff’s IIED claim also rests on Defendant’s
fraud, misrepresentations,
and false statements in his financial affidavit, the cases cited
by Defendant are distinguishable and
inapposite. See e.g., Quinn v. Walsh, 49 Mass. App. Ct. 696, 709
(2000) (involving one openly-
conducted affair and no financial misconduct or deception);
Bowden v. Agnew, No. 1:12CV1237,
2013 WL 3545507, at *1 (M.D.N.C. July 11, 2013) (involving IIED
claim against spouse’s lover
for affair only) (both cases cited in Mot., ¶ 39).
44. Furthermore, in Norton v. Hoyt, cited repeatedly in
Defendant’s Motion, the District
Court dismissed the IIED claim at the summary judgment stage,
not on a motion to dismiss—after
allowing the parties discovery and engaging in a fact-intensive
analysis. 278 F. Supp. 2d 214, 220-
21 (D.R.I. 2003), aff'd sub nom. Norton v. McOsker, 407 F.3d 501
(1st Cir. 2005) (“there is no
universal litmus test by which to identify extreme and
outrageous behavior, the determination is a
fact-specific one”).
45. In recognition of the factual nature of IIED claims, New
Hampshire courts have
typically allowed them to proceed, refusing to dismiss claims
based on far milder conduct than
that alleged by Plaintiff. See e.g., Censabella v. Town of
Weare, No. 16-CV-490-AJ, 2017 WL
3996173, at *4 (D.N.H. Sept. 8, 2017) (denying motion to dismiss
a IIED claim against co-worker
who glared at plaintiff and said plaintiff was a “a shitty cop
who did not know what she was doing,”
and holding that plaintiff “minimally pleaded IIED”). Here,
Plaintiff has done far more than
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09821-00001/12305791.1 20
“minimally plead[]” a claim of IIED, and Defendant’s Motion to
Dismiss Count VI should be
denied. Id.
46. Defendant’s next assertion that Plaintiff failed to allege
that Defendant acted
intentionally is simply incorrect. To the contrary, paragraph 91
of the Complaint includes the word
“intentionally.” Defendant may deny that he intentionally or
recklessly caused emotional distress,
but that is a question of fact, and not a determination to be
made at the motion to dismiss stage.
Mandiram, 2008 WL 11258709, at *3.
47. Finally, like his attempt to use the intellectual property
release as grounds to avoid
liability under Counts I through III, Defendant argues that he
is somehow immune from Plaintiff’s
emotional distress claims by reason of a purported release in
the Divorce Decree. Defendant
cannot use a release in an agreement to dismiss claims when the
agreement as here was procured
by his own deceit and fraud. As is alleged in the Complaint, at
the time of the Divorce Decree,
Plaintiff had not yet learned of Defendant’s tortious conduct,
nor had she suffered her emotional
distress. See Bowen v. Ditech Fin. LLC, No. 2:16-CV-00195-JAW,
2017 WL 4183081, at *16 (D.
Me. Sept. 20, 2017) (distinguishing pre-release conduct from
post-release conduct and explaining
that “[e]ven if [defendant] were correct in its contention that
some [plaintiff]’s claims are
completely predicated upon pre-settlement conduct, there are too
many intertwined factual issues ...
for the Court to find so as a matter of law.”).
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09821-00001/12305791.1 21
G. The Court Should Deny Defendant’s Motion to Dismiss
Plaintiff’s Claim for
Negligent Infliction of Emotional Distress (Count VII).
48. Lastly, Defendant moves to dismiss Plaintiff’s claim for
negligent infliction of
emotional distress (“NIED”) (Count VII), again arguing,
incorrectly, that Plaintiff’s claim rests
only on Defendant’s affair, and that he did not owe a duty to
Plaintiff to refrain from “having an
affair or from spending his own money without [Plaintiff’s]
approval.” (Mot., ¶ 45). But this is
yet another gross mischaracterization of Plaintiff’s lawsuit. As
with the IIED claim, Plaintiff’s
NIED claim rests on more than Defendant’s infidelity—including
Defendant’s fraud and
misrepresentations, see Complaint, ¶ 94–95 (incorporating
allegations in previous paragraphs with
respect to NIED claim)—and it is not based on Defendant
“spending his own money.” (Mot., ¶
45). Moreover, for the reasons articulated in Section II(B),
Defendant did have a duty to be truthful
to Plaintiff about the Parties’ finances and assets at the time
of their divorce.
49. Because Plaintiff’s NIED claim is adequately pled—and not as
Defendant recast
his re-write of the allegations—it is not susceptible to
dismissal. In Tessier v. Rockefeller, for
example, the Supreme Court of New Hampshire reversed the trial
court’s decision to dismiss a
plaintiff’s NIED claim. The Supreme Court held that plaintiff’s
NIED claim rested on her
fraudulent misrepresentation claim, and that, taken as true,
plaintiff alleged facts sufficient to
support her claim. The same is true here. Tessier, 162 N.H. at
342 (“The alleged conduct of the
defendants that supports a claim for fraudulent
misrepresentation also supports a claim for
negligent infliction of emotional distress. It could reasonably
be found that it was foreseeable that
by making fraudulent misrepresentations … with the intention of
causing the plaintiff to relinquish
her property, the plaintiff would suffer emotional harm as a
result.”).
50. Finally, for the reasons already articulated in Section
II(F), the release of claims in
the Divorce Decree does not preclude liability here. And, as
explained in Section II(D),
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09821-00001/12305791.1 22
Defendant’s argument that Plaintiff’s conduct with respect to
the joint financial advisor somehow
constituted a “superseding intervening cause” of her own
distress must fail because it is contrary
to established New Hampshire law. In Matter of McMaster, 2008 WL
11258760, at *2; Shafmaster,
138 N.H. at 467.
III. CONCLUSION
For the reasons above, Defendant’s Motion to Dismiss Plaintiff’s
Complaint should be
denied in its entirety.
HEARING REQUESTED
Pursuant to N.H. Superior Court Rule 13(b), Plaintiff
respectfully requests oral argument
on her Objection to Defendant’s Motion to Dismiss. In light of
the scope and complexity of the
issues involved, Plaintiff believes that oral argument will
assist the Court in considering and
determining the pending issues before it.
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09821-00001/12305791.1 23
Respectfully submitted,
Blythe Brown
By her attorneys,
By her attorneys,
Dated: August 28, 2020
Counsel for Plaintiff Blythe Brown
/s/ Harvey J. Wolkoff
Harvey J. Wolkoff*
Aliki Sofis*
Kathleen Marini*
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
111 Huntington Avenue, Suite 520
Boston, MA 02199
Tel: (617) 712-7100
[email protected]
[email protected]
[email protected]
* Admitted pro hac vice
/s/ Joseph D. Steinfield
Joseph D. Steinfield (NH Bar No. 18721)
130 Court Street
Keene, NH 03431
Tel: (617) 285-3937
[email protected]
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09821-00001/12305791.1 24
Certificate of Service
I hereby certify that on this date I am sending a copy of this
document as required by the
court. I am electronically sending this document through the
court’s electronic filing system to all
attorneys and to all other parties who have entered electronic
service contacts (email addresses) in
this case. I am also sending the document by email and regular
mail to Joan A. Lukey, Choate Hall
& Stewart LLP, Two International Place, Boston MA 02110.
/s/ Joseph D. Steinfield
Joseph D. Steinfield, Bar No. 18721
130 Court Street
Keene, NH 03431
(617) 285-3937
[email protected]