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14-P-1208                                             Appeals Court

                    COMMONWEALTH   vs.   JOSE LUGO.

                           No. 14-P-1208.

        Suffolk.       November 9, 2015. - March 18, 2016.

            Present:    Cypher, Trainor, & Rubin, JJ.

Assault and Battery by Means of a Dangerous Weapon. Joint
     Enterprise. Evidence, Joint venturer, Knife. Practice,
     Criminal, Argument by prosecutor, Instructions to jury.

     Indictments found and returned in the Superior Court
Department on June 27, 2012.

    The cases were tried before Linda E. Giles, J.

     Jacob B. Stone for the defendant.
     Matthew T. Sears, Assistant District Attorney (Megan E.
O'Rourke, Assistant District Attorney, with him) for the
Commonwealth.

    CYPHER, J.     The defendant, Jose Lugo, appeals from his

convictions by a jury of assault and battery with a knife,

assault and battery with a shod foot, and assault with a knife.

He argues that the trial judge's denial of his motions for a

required finding of not guilty was error because there was
                                                                    2

insufficient evidence of his participation in a joint venture to

support his convictions of assault and battery with a knife and

assault with a knife.   He claims error also in the prosecutor's

closing argument and the jury instructions on prior inconsistent

statements.   We affirm the defendant's convictions.

    Background.     On April 12, 2012, friends Victor Ramos,

Milton Henriquez, Edwin Colon, and Alejandro Naranjo spent the

evening together at a Boston nightclub.   At closing time, around

2:00 A.M., the four friends returned to their car, which was

parked across the street in a multilevel garage.   Waiting in a

line of vehicles to exit the garage, the friends were approached

by a man from a vehicle in front of theirs who, thinking that

they had been honking the horn, punched Colon and Naranjo

through their open passenger's side windows.   The four friends

got out of their car and Henriquez traded blows with the man

before being separated by the friends and others from

surrounding vehicles.

    When the brawl subsided and the crowd of people who had

gathered to watch or take part in the fight began to disperse, a

sport utility vehicle (SUV) from an upper level of the garage

approached the area and stopped and two men emerged.    One was a

tall, skinny man, later identified as Javier Fernandez, and the

other was a short man with braids, later identified as the

defendant.    According to testimony by Ramos, the two men
                                                                    3

appeared to be intoxicated and angry, "[L]ike they wanted to do

something."

       After greeting and shaking hands with people from the

surrounding vehicles, the two men approached Ramos and Henriquez

and engaged them in a tense verbal exchange.    During the

exchange, Fernandez and the defendant stood side by side facing

Ramos, and Henriquez stood behind Ramos, facing the defendant.

Fernandez and the defendant talked to Ramos and Henriquez, but

did not speak to one another.    Ramos, attempting to defuse the

situation, suggested that they all go home and touched Fernandez

on the shoulder or arm, provoking Fernandez, who asked, "[A]re

you disrespecting me?"   Fernandez left the group and went back

to the SUV while the defendant continued talking to Ramos and

Henriquez.

       Returning from the SUV, Fernandez circled around the group

and, approaching Henriquez, stabbed him in the side, under his

armpit.    Henriquez put his hand on Ramos's shoulder and declared

that he had just been stabbed.   Ramos saw a knife in Fernandez's

hand as Fernandez stepped forward, twice jabbing the knife at

him.    Ramos grabbed Henriquez and took off running up a ramp to

an upper level of the garage.    Fernandez and the defendant

immediately gave chase, running shoulder to shoulder with

another man, identified only as wearing a black polo shirt.    As

Ramos and Henriquez ran, Fernandez stabbed at Henriquez, who
                                                                      4

stumbled and fell to the ground.     Fernandez slashed and stabbed

at Henriquez and the defendant kicked and stomped on him as he

lay on the ground.

    Security guard Jeffrey Swanson testified that he observed

the defendant stomping on Henriquez with the open sole of his

shoe, "like he was trying to put out a fire."      While Henriquez

was being kicked and stabbed, Ramos grabbed hold of him and

tried to drag him away from the assailants.      The attack, which

lasted about two or three minutes, was interrupted when security

guards arrived and ordered the men to stop.

    As the security guards assessed the situation and waited

for police to arrive, they observed the defendant walking

briskly away from the scene and Fernandez throwing a knife under

a car.   The two men were detained by security personnel.      When

police arrived, Ramos pointed out the defendant and Fernandez as

the men who had attacked Henriquez.      Sergeant Michael Talbot

testified that while the defendant was in custody at the police

station, his behavior was combative and he refused to allow

Talbot to photograph a scratch on his hand.      A bloodstain taken

from the chest area of defendant's outer shirt was determined to

be consistent with Henriquez's deoxyribonucleic acid profile.

    Discussion.      1.   Sufficiency of the evidence.   The

defendant moved for a required finding of not guilty at the

close of the Commonwealth's case and again at the close of all
                                                                     5

the evidence.   He claims that these motions were improperly

denied because the evidence failed to prove that he participated

in a joint venture with knowledge that his companion was armed

with a knife.   In reviewing the denial of a motion for a

required finding, we examine the relevant evidence in the light

most favorable to the Commonwealth and ask whether "any rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt."     Commonwealth v. Latimore, 378

Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 433

U.S. 307, 319 (1979).   "We take this view of the evidence

notwithstanding any evidence to the contrary presented by the

defendant."   Commonwealth v. Garcia, 470 Mass. 24, 30 (2014),

quoting from Latimore, supra at 676–677.

    In reviewing the sufficiency of the evidence on a theory of

joint venture, we must determine whether the evidence presented

supports a finding that "the defendant knowingly participated in

the commission of the crime charged, alone or with others, with

the intent required for that offense."     Commonwealth v. Norris,

462 Mass. 131, 138–139 (2012), quoting from Commonwealth v.

Zanetti, 454 Mass. 449, 468 (2009).     In addition, where, as

here, "the conviction on a joint venture theory is for a crime

that has use or possession of a weapon as an element," the

evidence must suffice to show that the defendant knew that his
                                                                     6

coventurer was armed with a knife.      Commonwealth v. Britt, 465

Mass. 87, 100 (2013).

       There was testimony at trial that the defendant and

Fernandez were friends who had spent the evening together before

they arrived on the scene.      The defendant participated in the

verbal exchange with Ramos and Henriquez and witnessed

Fernandez's escalating agitation during the encounter.        The

defendant stood in a position, facing Ramos and Henriquez, where

he could observe Fernandez circle around and stab Henriquez in

the side.      After Henriquez announced that he had been stabbed,

the jury could also have inferred that the defendant could see

Fernandez jab the knife twice at Ramos.1      The defendant

immediately took off with Fernandez in pursuit of Ramos and

Henriquez and, when Henriquez was on the ground, the defendant

kicked and stomped on him while Fernandez repeatedly stabbed

him.       "At no time during this conflict did the defendant seek to

withdraw."      Commonwealth v. Sexton, 425 Mass. 146, 152 (1997).

       1
       See Commonwealth v. White, 452 Mass. 133, 136 (2008)
(inference drawn from circumstantial evidence "need only be
reasonable and possible; it need not be necessary or
inescapable," nor must every inference "be premised on an
independently proven fact" [citations omitted]); Commonwealth v.
Lee, 460 Mass. 64, 69-70 (2011) (knowledge that coventurer is
armed may be inferred from circumstantial evidence, including
defendant's actions, prior relationship between coventurers, or
shared motive); Commonwealth v. Dosouto, 82 Mass. App. Ct. 474,
480 (2012) (circumstances properly permitted jury to infer that
defendant knew gun was used to commit robbery where defendant
getaway driver watched crime unfold).
                                                                     7

    From the defendant's actions, a rational trier of fact

could conclude, beyond a reasonable doubt, that the defendant

possessed the intent to engage in an assault on Ramos and in an

assault and battery on Henriquez with Fernandez, and that the

defendant was present and saw that Fernandez was armed with a

knife the moment Fernandez first stabbed Henriquez.

Additionally, the defendant was kicking Henriquez as Fernandez

stabbed at him.    "There is no need to have an 'anticipatory

compact.'    It is enough that 'at the climactic moments the

parties consciously acted together in carrying out the criminal

endeavor.'"    Commonwealth v. Young, 35 Mass. App. Ct. 427, 435

(1993), quoting from Commonwealth v. Fidler, 23 Mass. App. Ct.

506, 513 (1987).

    2.      Prosecutor's closing argument.   The defendant

challenges certain portions of the prosecutor's closing

argument, claiming numerous reversible errors.     In particular,

he claims that the prosecutor made an improper propensity

argument, argued facts not in evidence, misstated evidence,

suggested that she had independent knowledge of the truth,

engaged in burden-shifting, and repeatedly used the term

"victim," in violation of the judge's pretrial order.        The

challenged statements to which the defendant timely objected --

concerning propensity, facts not in evidence, and burden-

shifting -- we review for prejudicial error.      See Commonwealth
                                                                     8

v. Silva-Santiago, 453 Mass. 782, 807-810 (2009).    The portions

of closing argument to which the defendant did not object but

challenges now on appeal -- concerning the suggestion of

independent knowledge, misstatement of evidence, and use of the

term "victim" -- we review for any "substantial risk of

miscarriage of justice."    Commonwealth v. Alphas, 430 Mass. 8,

13 (1999).   "Remarks made during closing arguments are

considered in context of the whole argument, the evidence

admitted at trial, and the judge's instructions to the jury."

Commonwealth v. Whitman, 453 Mass. 331, 343 (2009).

    a.   Propensity argument.    Referring to evidence of the

defendant's consciousness of guilt, the prosecutor stated,

"[T]he defendant had been convicted of this behavior in the

past, resisting arrest.    Well we can see that here today, right,

he tried to walk away once from the security, once from the

Boston police."   To the extent that the prosecutor's remark

equated the defendant's prior conviction with a propensity to

evade responsibility in the present circumstances, it was

improper.    "It is a fundamental rule that the prosecution may

not introduce evidence that a defendant previously has

misbehaved, indictably or not, for the purpose of showing his

bad character or propensity to commit the crime charged."

Commonwealth v. Dodgson, 80 Mass. App. Ct. 307, 312 (2011),

quoting from Commonwealth v. Baker, 440 Mass. 519, 529 (2003).
                                                                   9

See Commonwealth v. Chartier, 43 Mass. App. Ct. 758, 763 (1997)

(in using defendant's prior convictions in substantive sense,

"prosecutor strayed over boundary of permissible argument").

    Whether the prosecutor's propensity argument constitutes

reversible error "depends on our consideration of (1) whether

the defendant seasonably objected; (2) whether the error was

limited to collateral issues or went to the heart of the case;

(3) what specific or general instructions the judge gave the

jury which may have mitigated the mistake; and (4) whether the

error, in the circumstances, possibly made a difference in the

jury's conclusions."   Silva-Santiago, supra at 807, quoting from

Commonwealth v. Perez, 444 Mass. 143, 151 (2005).

    As the defendant objected to the prosecutor's argument, we

review for prejudicial error.   The improper statement addressed

only a collateral issue, that is, the defendant's consciousness

of guilt, as opposed to any essential element of the crimes

charged.   See Commonwealth v. Jones, 432 Mass. 623, 629 (2000)

(prosecutor's erroneous remark was aimed only at collateral

issue, not heart of defendant's case).   Both before and after

closing arguments, the judge instructed the jury that those

arguments are not a substitute for evidence.   See Commonwealth

v. O'Connell, 432 Mass. 657, 660 (2000), citing Commonwealth v.

Thomas, 400 Mass. 676, 683 (1987) (prosecutor's inaccurate

statement "regrettable," but not reversible error "where judge
                                                                    10

instructed jury that closing arguments [are] not evidence").

Viewed in the context of the prosecutor's entire argument, the

judge's instructions to the jury, and the evidence at trial, an

isolated reference to the defendant's prior conviction, a fact

that defense counsel had preemptively introduced through the

defendant's testimony, did not make a difference in the jury's

conclusion.

     b.   Facts not in evidence.   The defendant next argues that

the prosecutor's description of "a fresh scrape with blood on

it" on the defendant's finger improperly suggested a fact not in

evidence.    "A prosecutor must limit comment in closing statement

to the evidence and fair inferences that can be drawn from the

evidence."    Commonwealth v. Cole, 473 Mass. 317, 333 (2015),

quoting from Commonwealth v. Kelly, 417 Mass. 266, 270 (1994).

Contrary to the defendant's assertion, the prosecutor's

description did not introduce a fact not found in evidence.

Rather, it directly reiterated testimony presented at trial.     We

discern no error.2

     2
       Sargent Talbot's testimony included the following
exchange:

     Q.: "Okay how could you tell the scratch on Mr. Lugo's hand
     was fresh?"

     A.: "It had fresh blood on it; it had a redness around the
     cut itself that led me to believe that it was something
     that occurred recently as opposed to something that was a
     day or two old."
                                                                    11

     c.   Burden-shifting.   The defendant objected also to what

he characterizes as burden-shifting by the prosecutor.    He

contends that, in telling the jury to weigh the defendant's

testimony against the testimony of the Commonwealth's witnesses,

the prosecutor impermissibly suggested that the defendant has an

affirmative duty to produce evidence of his innocence.3   A

prosecutor may not "make statements that shift the burden of

proof from the Commonwealth to the defendant."    Commonwealth v.

Johnson, 463 Mass. 95, 112 (2012), quoting from Commonwealth v.

Amirault, 404 Mass. 221, 240 (1989).    However, a "prosecutor is

entitled to emphasize the strong points of the Commonwealth's

case and the weaknesses of the defendant's case."    Id. at 113,

quoting from Commonwealth v. Feroli, 407 Mass. 405, 409 (1990).

Here, the prosecutor's statement emphasized the discrepancies

between the defendant's testimony and the testimony of all the

other witnesses.   While the prosecutor's statement, "there is no

corroboration for his version," is a type of statement to avoid,

the argument as a whole cannot be properly characterized as

     3
       Commenting on the defendant's credibility, the prosecutor
told the jury:

     "Think of the interest he has, he's the only evidence; his
     version is the only evidence that presents him breaking up
     a fight. Think of the interest he has in the outcome of
     the case and why would he want you to believe that version
     verses [sic] all the other witnesses, all the other
     evidence you sat through the last couple of days. I submit
     to you there is no corroboration for his version."
                                                                    12

burden-shifting, but, rather, as a fair comment on the

credibility of the defendant.     See Commonwealth v. Storey, 378

Mass. 312, 325 (1979), cert. denied, 446 U.S. 955 (1980) ("The

prosecutor's objective, as revealed in the context of [her]

closing argument, was simply to defend [her] credibility, and

that of [her] case, by pointing out contradictions and

inconsistencies in the witness's testimony").

     d.   Independent knowledge of the truth.   The defendant

argues for the first time on appeal that the prosecutor

improperly suggested to the jury that she had independent

knowledge of the truth when she asserted that the Commonwealth's

witnesses were credible "because they told you what actually

occurred."4   As the defendant did not object to this portion of

the closing argument, we review the statement for a substantial

risk of miscarriage of justice.    See Alphas, 430 Mass. at 13.

     "Improper vouching can occur if an attorney expresses a

personal belief in the credibility of a witness, or indicates

that he or she has knowledge independent of the evidence before

the jury."    Commonwealth v. Wilson, 427 Mass. 336, 352 (1998).

Here, consideration of the argument as a whole persuades us that

the "prosecutor did not imply that [s]he had 'special knowledge

     4
       The prosecutor told the jury: "I submit to you the
victims are credible not only because they told you what
actually occurred[,] but they are supported by the evidence of
the other witnesses."
                                                                   13

by which [s]he could verify the witness's testimony.'"

Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 189 (2009),

quoting from Commonwealth v. Ciampa, 406 Mass. 257, 265 (1989).

Rather, her statement was part of an appeal to the jury to draw

the reasonable conclusion from the witnesses' conforming

testimony that those witnesses should be believed, a proper line

of argument where credibility is at issue.     See Commonwealth v.

Deloney, 59 Mass. App. Ct. 47, 52 (2003) (prosecutor's comments

did not suggest that she possessed knowledge of facts not

contained in evidence).

     e.   Misstatement of evidence.   The prosecutor asserted in

closing that the defendant's story was not believable in part

because, had he been involved in breaking up a fight as he

claimed to have been, "there would be more injuries, there would

be more bruising."5   The defendant now contends that, in light of

Sargent Talbot's testimony that bruising takes a day or two to

appear, the prosecutor misstated the evidence.     We conclude that

there was no error.   "In closing argument, counsel may argue

from the evidence and may argue fair inferences that might be

drawn from the evidence.   Counsel also may call on the

experience and common knowledge of the jury.     Moreover, it is

proper for counsel to use analogy, example and hypothesis as an

     5
       The prosecutor stated: "I submit to you that if he was
really breaking up a fight as he would want you to believe,
there would be more injuries, there would be more bruising."
                                                                    14

aid to effective and aggressive argument."     Commonwealth v.

Ridge, 455 Mass. 307, 330 (2009) (citations and quotations

omitted).   See Commonwealth v. Donovan, 422 Mass. 349, 357

(1996) (prosecutor has right to argue inferences from evidence

favorable to his case).

    f.   Use of the term "victim".    Referring to Ramos and

Henriquez, the prosecutor used the term "victim" eleven times in

the course of her closing argument.     In view of the judge's

allowance of the defendant's motion in limine prohibiting the

use of the term in favor of "alleged victim," the prosecutor's

use of the term was error.    Although defense counsel raised

objections to certain other portions of the prosecutor's closing

argument, he did not object to her characterization of the

witnesses as "victims."    Therefore, "the proper standard of

review is whether the error[] created a substantial risk of a

miscarriage of justice."     Commonwealth v. Letkowski, 469 Mass.

603, 617 (2014).

    The absence of an objection also guides our analysis as to

whether the lapse was prejudicial to the defendant in the

circumstances.   "We consider . . . the lack of objection at

trial as 'some indication that the tone [and] manner . . . of

the now challenged aspects of the prosecutor's argument were not

unfairly prejudicial.'"    Dodgson, 80 Mass. App. Ct. at 313,

quoting from Commonwealth v. Lyons, 426 Mass. 466, 471 (1998).
                                                                  15

"This is especially true, where, as here, contemporaneous

objections were made to the prosecutor's summation."

Commonwealth v. Walker, 421 Mass. 90, 104 (1995).

    Moreover, in the context of the evidence at trial, any risk

of a miscarriage of justice was mitigated by the defendant's

stipulation to the fact that Henriquez was stabbed on that

occasion by the defendant's friend, Fernandez.   Thus,

Henriquez's identity as a victim was not in question, only the

defendant's culpability in that attack.   We are confident that

the error, in these circumstances, did not create a substantial

risk of a miscarriage of justice.

    3.   Judge's instruction on prior inconsistent statements.

The defendant claims that the judge's instruction on prior

inconsistent statements was unclear and failed to provide the

jury with a proper understanding of how such statements may be

considered.   At trial, defense counsel objected to the judge's

charge limiting the use of prior inconsistent statements to

credibility purposes, and requested, instead, an instruction

permitting the jury to consider inconsistent statements made to

the grand jury for their substantive value.

    The judge's instruction on prior inconsistent statements,

though somewhat ambiguous, limits consideration of such

statements to credibility purposes:
                                                                   16

     "If you determine the witness's prior statement differs
     significantly from his or her present testimony[,] the
     prior statement is relevant only as to the witness's
     credibility and you may not take it as any proof of any
     fact contained in it except in the case of a parties [sic]
     prior statement."

     As a general rule, a trial witness's prior inconsistent

statements are not admissible for their substantive truth.      See

Mass. G. Evid. § 613(a)(2) (2015).   However, "[w]hen a trial

witness offers testimony that is directly inconsistent with that

witness's testimony before the grand jury, the inconsistent

grand jury testimony may be introduced substantively if certain

foundational requirements . . . are met."   Commonwealth v.

Santos, 463 Mass. 273, 294 (2012).   See Commonwealth v. Daye,

393 Mass. 55, 75 (1984); Mass. G. Evid. § 801(d)(1)(A) (2015).

     Here, defense counsel confronted three of the

Commonwealth's witnesses with grand jury statements that he then

sought to have considered substantively.6   The defendant asserts

     6
       Defense counsel introduced seven grand jury statements
into trial testimony:

     (1) Henriquez told the grand jury that while he was engaged
     in a fight (before the defendant arrived on the scene), he
     pushed an adversary toward the railing; at trial, he
     testified that he grabbed the man.

     (2) Referring to the defendant and Fernandez, Henriquez
     told the grand jury, "I was pushing him away, I was trying
     to push him away so trying to kick" and "basically trying
     to get him away but they didn't stab me again, they
     didn't"; at trial, he testified to being stabbed while on
     the ground, then kicked.
                                                                  17

that the prior statements have substantive value because they

corroborate his account of events.   Accepted for their truth and

as substantive evidence, the statements establish that Henriquez

was drunk at the time of the attack; he aggressively engaged in

a brawl before the defendant arrived on the scene; both the

defendant and Fernandez had knives and participated in stabbing

Henriquez; besides the defendant and Fernandez, a third man

    (3) Before the grand jury, Henriquez related that he had
    reported to a police officer that "[the defendant] was
    trying to stab me too because at the moment I just seen
    someone swinging a knife. It felt like they were both
    trying, they were -- both had knives"; at trial, on
    redirect, the prosecutor introduced the omitted portion of
    the grand jury statement, in which Henriquez said: "I was
    clearing out my thoughts, I believe it was just the one
    [stabber]."

    (4) Henriquez told the grand jury that he was chased by
    three men, but testified at trial that only the defendant
    and Fernandez chased him.

    (5) Naranjo told the grand jury that Henriquez and an
    adversary were "both drunk that it wasn't much of a fight,
    it kind of like pushing and misses and swings"; at trial,
    he testified, "I don't know how much he [Henriquez] drank
    so I can't say he was drunk."

    (6) Naranjo told the grand jury that, after the first bout
    of fighting died down, Henriquez and his adversary "started
    running at each other again, now a bigger scuffle
    happened"; at trial, he testified that a group of
    adversaries started pushing Ramos and Henriquez, reigniting
    the fight.

    (7) Swanson told the grand jury that he observed "the
    victim pulled out by his friend and the other two are sort
    of on the tail end, they are sort of maybe lightly
    kicking"; at trial, he described the defendant's kicking as
    "stomping down with the open soul [sic] of the foot."
                                                                  18

chased Henriquez up the garage ramp; once on the ground,

Henriquez was not stabbed again; and, when security guards

arrived, the defendant and Fernandez were kicking Henriquez

lightly.   None of these statements, considered for their truth

as substantive evidence, benefits the defendant's case.

Consequently, "[o]n the record before us, no prejudicial error

arose from the judge's decision not to instruct the jury that

they could consider prior inconsistent statements for their

substantive value."   Commonwealth v. Fritz, 472 Mass. 341, 353

(2015).

     Finally, for the first time on appeal, the defendant claims

that a series of other, unsworn, prior inconsistent statements

should also have been considered substantively, and that the

judge's instruction to the contrary created a substantial risk

of miscarriage of justice.7   While the defendant is correct in

     7
       The defendant points to ten prior inconsistent statements
made to police or medical personnel:

     (1) Ramos told a police officer that he touched the
     defendant's shoulder and said, "hey, bud, let's calm this
     down";

     (2) Ramos also told police that the defendant and Fernandez
     both stabbed Henriquez;

     (3) and (4) Henriquez, too, told police that both the
     defendant and Fernandez stabbed him;

     (5) and (6) Henriquez told a police officer that he saw two
     individuals with knives, and that he distinctly remembered
     seeing the defendant with a knife;
                                                                  19

asserting that prior inconsistent statements may properly be

considered for their truth if admitted without objection, see

Mass. G. Evid. § 613(a)(2), these statements, considered

substantively, do not constitute evidence favorable to the

defendant.   The conflicts between trial testimony and prior

statements served, rather, to focus the jury's attention on the

credibility of the Commonwealth's witnesses.   In view of this,

we discern no risk of miscarriage of justice arising from the

judge's instruction.

                                    Judgments affirmed.

    (7) Henriquez told a police officer that four to six
    unknown men initiated the brawl in the parking garage;

    (8) and (9) Henriquez's medical records indicted heavy
    alcohol use and a diagnosis of closed head injury; and

    (10) Henriquez told medical personnel that he did not see
    his assailants.


662 F.Supp. 1207 (1987)
NAVISTAR INTERNATIONAL CORPORATION (formerly International Harvester Company), Plaintiff,
v.
HAGIE MANUFACTURING COMPANY, Defendant.
No. 80 C 6373.
United States District Court, N.D. Illinois, E.D.
May 29, 1987.
Evan A. Burkholder, Lord, Bissell & Brook, Chicago, Ill., for plaintiff.
John M. Carroll, Hope G. Nightingale, Mayer, Brown & Platt, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER
ROVNER, District Judge.

I. INTRODUCTION
This action arises out of an agreement between the defendant, Hagie Manufacturing Company ("Hagie"), and the plaintiff, International Harvester Company ("Harvester"), under which Hagie agreed to sell fifty high clearance crop sprayers to Harvester for eventual resale by Harvester dealers. After experiencing difficulties with the sprayers, Harvester brought this action against Hagie. Only two counts remain of Harvester's amended complaint and they are: count Ifor breach of the October 31, 1975, written sales contract; *1208 and count IIIfor fraudulent misrepresentation.[1]
Pending before the Court are two motions for summary judgment brought by Hagie. In its first motion, Hagie asserts that Harvester waited until after the statute of limitations ran on Harvester's breach of warranty claims before filing its original complaint. Hagie's second motion challenges Harvester's claim for profits which Harvester anticipated would result from a continuing business relationship between Hagie and Harvester.
The legal standards the Court must apply to a motion for summary judgment are clear.
`The party moving for summary judgment has the burden of establishing the lack of a genuine issue of material fact.' [citation omitted] Thus, `in determining whether factual issues exist, a reviewing court must view all the evidence in the light most favorable to the non-moving party.' [citations omitted] `Where the moving party fails to meet its strict burden of proof, summary judgment cannot be entered ...' [citation omitted] ... `[T]he responsibility of the district judge on a motion for summary judgment is merely to determine whether there are issues to be tried, rather than to try the issues himself via affidavits.' [citations omitted]
McGraw-Edison Company v. Walt Disney Productions, 787 F.2d 1163, 1167 (7th Cir. 1986). As explained more fully below, after applying the Rule 56 standards to Hagie's motions, the Court concludes that Hagie is entitled to summary judgment on both of the grounds it has asserted.[2]

II. STATUTE OF LIMITATIONS
Hagie contends, and Harvester does not dispute, that count I of the amended complaint states claims for breaches of a variety of warranty provisions attendant to the October 31, 1975, contract between Hagie and Harvester. Harvester seeks to recover, under both express and implied warranty theories, the damages it suffered when Hagie allegedly failed to abide by the warranties covering the fifty sprayers sold to Harvester.
Despite Harvester's general claim to the contrary, there is basically no dispute as to the facts that are material to the statute of limitations issue. As required by this District's Local General Rule 12(e), Hagie filed a "statement of material facts" in support of its motion for summary judgment. Hagie asserts that the material facts that entitle it to judgment as a matter of law are:
1. Hagie Manufacturing Company entered into two separate contracts for the sale of high clearance crop sprayers to International Harvester Company, dated April 1, 1975 and October 31, 1975.
2. Under the April 1, 1975 contract, Hagie sold 20 sprayers to International Harvester. The sprayers were manufactured pursuant to International Harvester specifications and all 20 were delivered pursuant to International Harvester shipping instructions by July, 1975.[3]
3. Under the October 31, 1975 contract, Hagie sold 50 sprayers to International Harvester. The sprayers were manufactured pursuant to International Harvester specifications and tendered for delivery to International Harvester by mid-February, 1976. International Harvester gave shipping instructions to Hagie for these 50 machines starting in February, 1976.
4. On or about September 22, 1976, International Harvester requested formal discontinuance of its program to purchase the Hagie sprayers for resale, in part because of service problems experienced with the sprayers.

*1209 5. International Harvester filed its lawsuit alleging, inter alia, breach of warranty on or about October 27, 1980.
(Hagie's Statement of Uncontested Material Facts, filed July 1, 1986) (citations omitted). Hagie's "statement" correctly references the portions of the record that support Hagie's summarization of the material facts.
Local General Rule 12(f) requires Harvester to file a "statement of genuine issues," with appropriate references to the record, in response to Hagie's statement of material facts. Harvester's "statement" must set forth the material facts as to which Harvester contends there are genuine disputes that must be litigated. Local Rule 12(f) specifically provides that "[a]ll material facts set forth in the statement required to be served by the moving party [Hagie] will be deemed to be admitted unless controverted by the statement required to be served by the opposing party [Harvester]." And indeed, Harvester has filed a twenty-one page document which it has labeled "International Harvester's Statement of Genuine Issues." However, Harvester's "statement" does not comply with Rule 12(f)'s requirements in that it neither responds to Hagie's "statement", nor sets forth additional disputed material facts. Harvester's "statement" is little more than a summary of the evidence Harvester intends to present at trial. Because Harvester has not controverted Hagie's statement of material facts, those facts are deemed admitted.
The Court is not simply utilizing a technical rule to deprive Harvester of its procedural rights. Instead, assuming that Harvester's counsel may not have known how to prepare a proper statement of genuine issues, the Court carefully reviewed Harvester's twenty-one page summary of evidence, as well as the fifty-one appended exhibits, searching for evidence that would suggest that there is a genuine dispute as to one or more of the material facts put forth by Hagie. Unfortunately for Harvester, the Court's search was in vain. The Court concludes that Harvester did not controvert the material facts contained in Hagie's "statement," because Harvester could not do so in good faith.
In summary, the Court concludes there is no genuine issue as to the following facts: 1) Hagie and Harvester entered into an agreement on October 31, 1975, under which Hagie was to sell fifty high clearance crop sprayers to Harvester; 2) the sprayers were manufactured pursuant to Harvester specifications and tendered for delivery by mid-February, 1976; 3) Harvester began giving shipping instructions to Hagie for the fifty sprayers beginning in February, 1976; and 4) Harvester filed this lawsuit on October 27, 1980.
The legal basis for Hagie's motion is straightforward. Hagie contends that the October 31, 1976, agreement was a contract for the sale of goods covered by Article II of the Illinois Uniform Commercial Code, Ill.Rev.Stat., ch. 26, § 2-101 et seq. Pursuant to § 2-725, Hagie argues, Harvester's action for breach of warranty had to be brought within four years from the date that Hagie tendered delivery of the sprayers to Harvester, or, as applied to the facts of this case, by mid-February, 1980. Finally, Hagie argues that by waiting until October 27, 1980, to file its complaint, Harvester missed the statute of limitations on count I by at least eight months.
Harvester makes three, and only three, arguments in response to Hagie's legal arguments. First, Harvester accepts the fact that a cause of action for breach of warranty accrues when tender of delivery is made, but argues that because Hagie never tendered "conforming" goods, Harvester's cause of action could not have accrued until October 31, 1976, when the Hagie-Harvester contract expired. Second, Harvester claims that Hagie is estopped to assert the four year statute of limitations because Hagie and Harvester engaged in settlement negotiations before the limitations period expired. And third, Harvester claims that the four year statute of limitations contained in § 2-725 was supplanted by the five year statute of limitations contained in Ill.Rev.Stat. ch. 110, § 13-215, because Hagie fraudulently concealed the existence of the cause of action from Harvester. The *1210 Court will address Harvester's arguments seriatim.

A. HAGIE'S TENDER OF NONCONFORMING GOODS
Section 2-725 of the Uniform Commercial Code provides in relevant part:
(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made ...
Ill.Rev.Stat. ch. 26, § 2-725 (emphasis added). Harvester does not dispute the fact that the quoted portion of § 2-725 applies to this action. Rather, Harvester argues that § 2-725 must be read in conjunction with § 2-503(1) which defines "tender of delivery" and § 2-106(2) which defines "conforming" goods.
Section 2-503(1) defines the concept of tender of delivery as requiring "that the seller put and hold conforming goods at the buyer's disposition and give the buyer any notification reasonably necessary to enable him to take delivery." Ill.Rev.Stat. ch. 26, § 2-503(1) (emphasis added). And, § 2-106(2) provides that goods are "`conforming' or conform to the contract when they are in accordance with the obligations under the contract." Ill.Rev.Stat. ch. 26, § 2-106(2). Harvester combines all three U.C.C. sections and argues that a breach of warranty accrues when goods that are in accordance with the obligations under the contract are put and held by the seller for the buyer's disposition. Given this construction of § 2-725(2), Harvester argues, its breach of contract claim could not have accrued in mid-February 1976, because the sprayers did not "conform" to the terms of the contract. Harvester chooses the expiration date of the contract, October 31, 1976, as the accrual date on the theory that October 31, 1976, was the last day for Hagie to cure the nonconformity. Not a single case is cited by Harvester in support of its construction of § 2-725(2).
Harvester also ignores the enlightening Official Comment Number 1 to § 2-503 which provides:
The major general rules governing the manner of proper or due tender of delivery are gathered in this section. The term "tender" is used in this Article in two different senses. In one sense it refers to "due tender" which contemplates an offer coupled with a present ability to fulfill all the conditions resting on the tendering party and must be followed by actual performance if the other party shows himself ready to proceed. Unless the context unmistakably indicates otherwise this is the meaning of "tender" in this Article and the occasional addition of the word "due" is only for clarity and emphasis. At other times it is used to refer to an offer of goods or documents under a contract as if in fulfillment of its conditions even though there is a defect when measured against the contract obligation. Used in either sense, however, "tender" connotes such performance by the tendering party as puts the other party in default if he fails to proceed in some manner.
(Emphasis added). It is clear that the context of the statute of limitations contained in § 2-725 unmistakably indicates that the second explanation of the concept of tender of delivery set forth in Comment Number 1 applies in the instant case. Otherwise, a cause of action for breach of warranty would never "accrue" and could be brought at any time. Such a construction of a statute of limitations would be inherently self-contradictory. See generally, Ontario Hydro v. Zallea Systems, Inc., 569 F.Supp. 1261 (D.Del.1983).
Given the undisputed material facts that are relevant to the statute of limitations question, the Court holds that Harvester's cause of action for breach of contract accrued in mid-February, 1976. Because Harvester filed this action four years and eight months later, unless Harvester has a *1211 valid excuse for its tardy filing, count I is barred by the four year statute of limitations contained in Ill.Rev.Stat. ch. 26, § 2-725.

B. HARVESTER'S EQUITABLE ESTOPPEL THEORY
Perhaps recognizing that it has statute of limitations problems, Harvester alternatively argues in response to Hagie's motion for summary judgment that Hagie is equitably estopped from asserting the statute of limitations as a defense. Harvester bases its estoppel argument on the fact that settlement negotiations between Hagie and Harvester took place during the twenty months that preceded the filing of this lawsuit. In reply, Hagie argues that the mere pendency of settlement negotiations does not operate to place an estoppel on its right to assert the statute of limitations as a defense to count I.
Under Illinois law, a defendant may be estopped by his conduct from asserting the statute of limitations as a defense. See, e.g., Arthur L. Larsen Company, Inc. v. Shefner, 27 Ill.App.3d 562, 327 N.E.2d 257, 258 (2nd Dist.1975); Sabath v. Morris Handler Company, 102 Ill.App.2d 218, 243 N.E.2d 723, 726 (1st Dist.1968). The estoppel issue usually arises in situations where the parties, or their insurers, engage in negotiations regarding a claim prior to the expiration of the statute of limitations. However, the fact that a defendant took part in such discussions does not automatically estop him from asserting a statute of limitations defense. It is well settled in Illinois law that
[t]he mere pendency of negotiations conducted in good faith and with a view of compromise, during the period of the statute of limitations ... is not sufficient to show a waiver of the statute and does not estop the defendant from asserting the defense.
Myers v. Centralia Cartage Company, 94 Ill.App.3d 1139, 50 Ill.Dec. 357, 360, 419 N.E.2d 465, 468 (1st Dist.1981); see also, Arthur L. Larsen Company, Inc. v. Shefner, 27 Ill.App.3d 562, 327 N.E.2d 257, 258 (2nd Dist.1975); Loughran v. A & M Moving and Storage Company; 17 Ill.App.3d 119, 307 N.E.2d 794, 798 (1st Dist.1974); and Chapman v. Huttenlocher, 125 Ill. App.2d 39, 259 N.E.2d 836, 839 (2nd Dist. 1970). Unless there is evidence of improper conduct on the part of the party asserting the statute of limitations defense, "the court may dispose of the defense itself and dismiss the complaint as time-barred." Hurtt v. Davidson, 84 Ill.App.3d 681, 40 Ill.Dec. 389, 391, 406 N.E.2d 90, 92 (1st Dist.1980).
To support its estoppel theory, Harvester has brought forth only one piece of evidencethe affidavit of Kevin E. Condron, an in-house attorney with Harvester. The complete text of Mr. Condron's affidavit is set out in the margin.[4] Mr. Condron's affidavit establishes only that 1) both Hagie and Harvester hoped to resolve their dispute without the necessity for a lawsuit, and 2) Harvester relied on Hagie's continuing participation in the settlement negotiations as its reason for not filing suit prior *1212 to October 27, 1980.[5] Viewing the facts established by Mr. Condron's affidavit, and the legitimate inferences that can be drawn from those facts, in the light most favorable to Harvester, the Court holds that as a matter of law Harvester cannot prevail on its estoppel theory. Harvester has not presented any evidence to suggest that a genuine issue of material fact exists with respect to any improper conduct on the part of Hagie. There is nothing improper about Hagie's desire to avoid litigation. And, Harvester clearly cannot rely in support of its argument on the mere existence of settlement negotiations between the parties. Under Illinois law, even if everything Harvester says is true, these facts cannot establish an estoppel against Hagie's assertion of the statute of limitations defense.[6] Harvester has the burden of presenting facts to support its estoppel argument, Bomba v. W.L. Belvidere, Inc., 579 F.2d 1067, 1070-1071 (7th Cir.1978), and it has clearly failed to do so.

C. HARVESTER'S FRAUDULENT CONCEALMENT THEORY
Harvester's third and final argument in response to Hagie's motion for summary judgment is based upon Harvester's claim that Hagie fraudulently concealed many of the defects in the sprayers. Harvester argues that the four year statute of limitations contained in Ill.Rev.Stat. ch. 26, § 2-725 was supplanted by the five year statute of limitations contained in Ill. Rev.Stat. ch. 110, § 23-215, when Hagie fraudulently concealed the sprayer defects. Therefore, Harvester contends that it filed its complaint well within the applicable five year limitation period. For the purpose of analyzing Harvester's contentions, the Court will assume strictly arguendo that § 13-215 applies to this action.
Section 13-215 provides:
If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within 5 years after the person entitled to bring the same discovers that he or she has such cause of action, and not afterwards.
Ill.Rev.Stat. ch. 110, § 13-215. Certainly, on its face, § 13-215 seems to support Harvester's arguments. But again, Harvester cites not a single case in support of its fraudulent concealment theory. The reason Harvester cites no cases is that the Illinois courts have construed § 13-215 in a manner that defeats Harvester's argument.
Illinois caselaw makes it clear that § 13-215 can operate to toll the limitations period only if after the plaintiff discovers the existence of the cause of action, a reasonable time does not remain under the original statute of limitations. Anderson v. Wagner, 79 Ill.2d 295, 37 Ill.Dec. 558, 569, 402 N.E.2d 560, 571 (1979) appeal dismissed sub nom., Woodward v. Burnham City Hospital, 449 U.S. 807, 101 S.Ct. 54, 66 L.Ed.2d 11 (1980). Applied to the instant case, if Harvester still had a reasonable time to file suit under the four year statute of limitations after it learned of the existence of its cause of action, § 13-215 simply does not operate to toll the four year limitations period.
To defeat Hagie's summary judgment motion on a theory of fraudulent concealment, it is incumbent upon Harvester to present evidence demonstrating that there exists a genuine issue of material fact as to whether Harvester had a reasonable amount of time remaining to file this case once Harvester learned that a cause of *1213 action existed. Cf., Colan v. Cutler-Hammer, Inc., 812 F.2d 357, 361 (7th Cir.1987); Hossman v. Spradlin, 812 F.2d 1019, 1020 (7th Cir.1987). Because Harvester bases its arguments on a literal and thus incorrect reading of § 13-215, it does not present direct, affirmative evidence regarding when it discovered it had a cause of action against Hagie. Harvester does admit that it might have discovered that its cause of action existed as early as June 14, 1976. (Harvester Brief dated August 29, 1986, at 4-5). More importantly, however, the affidavit of Kevin Condron establishes that at least by March 1, 1979, the Harvester legal department was aware that Harvester had a cause of action against Hagie arising out of the sale of the sprayers. Harvester would not have had its in-house counsel engage in "protracted settlement negotiations" with an attorney for Hagie, unless Harvester believed a cause of action against Hagie existed.
The evidence presented by Harvester itself establishes that Harvester knew by March 1, 1979, at the latest, that it had a cause of action against Hagie. At that point in time, eleven and one half months remained in the four year limitations period. The Court holds that eleven and one half months was a reasonable time for Harvester to file this action. Therefore, § 13-215 does not operate to toll the four year limitations period contained in Ill.Rev.Stat. ch. 26, § 2-725.

D. CONCLUSION
Harvester raises three arguments in response to Hagie's motion for summary judgment on Harvester's breach of warranty count. As explained above, none of Harvester's three arguments has any merit. Therefore, the Court holds that there are no issues of material fact concerning the applicability of the Illinois four year statute of limitations to count I of the amended complaint, and that Hagie is entitled to judgment on count I as a matter of law.

III. LOST PROFITS
With its second motion for summary judgment, Hagie challenges Harvester's claim for profits from future sales of sprayers. The record reveals that the following dispositive facts are undisputed: 1) Harvester purchased a total of seventy sprayers from Hagie under two separate contracts; 2) the second contract, for the purchase of fifty sprayers, was dated October 31, 1975, and expired on October 31, 1976; 3) on May 17, 1976, Harvester sent a letter to Hagie confirming Harvester's decision not to renew the sprayer sales contract for another season; 4) after the expiration of the October 31, 1975, contract, Harvester and Hagie did not renew the sales contract; 5) Hagie never had a contractual agreement to sell additional sprayers to Harvester beyond the seventy that were the subject of the two sales contracts; and 6) Harvester's reasons for discontinuing the sale of the Hagie supplied sprayers included Harvester's inability to penetrate the sprayer market, the unfavorable economic atmosphere surrounding cotton producers, and various service problems encountered with the Hagie built sprayers.[7]
Harvester's sole remaining count states a claim for Hagie's alleged fraudulent misrepresentations in regard to the October 31, 1975, contract for the sale of fifty sprayers. In response to Hagie's motion, Harvester asserts that it is entitled under Illinois law to recover the profits it would have realized from the resale of crop sprayers that would have been purchased from Hagie had the contractual relationship between Harvester and Hagie continued past October 31, 1976. In short, Harvester claims lost profits from the anticipated resale of sprayers that Hagie was under no obligation to provide. Harvester cites two Illinois cases in support of its lost profits claimVendo Company v. Stoner, 58 Ill.2d 289, 321 N.E.2d 1 (1974) cert. den., Stoner v. Vendo Company, 420 U.S. 975, *1214 95 S.Ct. 1398, 43 L.Ed.2d 655 (1975) and P.A. Bergner & Company of Ill. v. Lloyds Jewelers, 130 Ill.App.3d 987, 86 Ill.Dec. 59, 474 N.E.2d 1256 (3rd Dist.1984) reversed, 112 Ill.2d 196, 97 Ill.Dec. 415, 492 N.E.2d 1288 (1986). Neither case lends credence to Harvester's lost profits theory. Vendo involved a suit against a former director of the plaintiff for breach of his fiduciary duties and for breach of covenants not to compete. The Illinois Supreme Court's discussion of the proof needed to sustain a claim for lost profits does not in any way support Harvester's post-contract claim. The appellate decision in Bergner, later reversed by the Illinois Supreme Court, actually hurts Harvester because the court clearly limited the plaintiff's claim for lost profits to the period of the contractual relationship between the parties. Harvester has failed to provide any legal authority to support its post-contract lost profits claim.
Hagie, on the other hand, has presented authority from other jurisdictions that rejects similar lost profits arguments. In Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, 729 F.2d 1530 (5th Cir.1984), the court held that the plaintiff was not entitled to recover lost profits for sales that might have been made during a six month period during which the parties had agreed to suspend their contract obligations. After describing the issue before it as one of first impression, the Fifth Circuit stated:
We hold that Nissho was not entitled to any profits that would have been earned during the period of suspension. The agreement between Occidental and Nissho clearly released Occidental from any obligation to supply oil to Nissho between October, 1976 and March, 1977. The suspension of the contract also benefitted Nissho, since its lifting requirements were held in abeyance. The clear and predictable consequence, however, of Nissho's agreement to the suspension was that the company would have no oil to sell to Kansai or any other buyer. It is inconsistent for Nissho now to seek profits that it might have made on sales it essentially agreed to forego. The parties put the entire contract in suspension during those six months; likewise any right to profits during the period was suspended.
Id. (emphasis added). It is equally inconsistent for Harvester to seek profits that it might have made had it not decided to cease purchasing sprayers from Hagie.
The Ninth Circuit has also rejected a claim for post-contract profits, noting, "[p]rofits `lost' from a completely voluntary and independent business decision [to terminate a computer distributorship] are not `caused' in a legally cognizable sense by conduct that merely supplies some contributing factors underlying the decision." Consolidated Data Terminals v. Applied Digital Data Systems, 708 F.2d 385, 394 (9th Cir.1983). Similarly, Harvester's decision not to buy additional sprayers was the "cause" of its lost profits, even if its decision was motivated in part by problems it encountered with the sprayers it had purchased previously.
As noted above, Harvester has not presented any competent legal authority to support its claim for post-contract lost profits. And, in fact, courts which have considered the issue have rejected damage theories similar to Harvester's. For these reasons the Court holds that Illinois law does not permit a buyer to recover lost profits from the anticipated resale of goods that the supplier was under no contractual obligation to supply. Therefore, there being no genuine issue of material fact relevant to this issue, Hagie's motion for summary judgment is granted.
Hagie's motion was not addressed to Harvester's claim for lost profits attendant to the fifty sprayers sold under the October 31, 1975, contract. However, because this issue will no doubt be raised at trial, a brief discussion is in order. The Court finds that there is a fundamental inconsistency in a claim for lost profits arising out of the tort of fraudulent misrepresentation. Harvester essentially claims that it would never have entered into the contract with Hagie had Hagie been truthful in its dealings with Harvester. Yet, Harvester also wants to recover the benefit of its bargain with Hagie. It is unclear how Harvester can eschew the bargain and at the same time *1215 benefit from it. See generally, Madigan, Incorporated v. Goodman, 498 F.2d 233, 239-240 (7th Cir.1974). The parties are ordered to file briefs on this issue in advance of trial.

IV. CONCLUSION
Hagie's motions for summary judgment on count I of the amended complaint, and on Harvester's claim for post-contract lost profits are granted.
NOTES
[1]  On May 15, 1987, the Court granted judgment on the pleadings to Hagie on count IIintentional breach of contract, and on count IVnegligent misrepresentation.
[2]  In light of this ruling by the Court and the earlier May 15, 1987, judgment on the pleadings, all that remains for trial is a portion of the damages claimed by Harvester under its fraudulent misrepresentation theory.
[3]  The April 1, 1975, contract is not at issue in this case.
[4]        STATE OF ILLINOIS  )
                          )  SS
       COUNTY OF COOK     )

KEVIN E. CONDRON, being first duly sworn on oath, deposes and states:
1. That I am an attorney and an employee of Navistar International Corporation (formerly International Harvester Company). This affidavit is based upon my personal knowledge of the facts, and upon my personal review of pertinent corporate records.
2. That beginning on or about 1 March 1979, I met with Larry Ivers, an attorney for Hagie Manufacturing Company, in order to discuss a settlement of the matters which are the subject of this lawsuit (No. 80 C 6373). I also had subsequent settlement discussions with Mr. Ivers.
3. That at my direction and under my supervision, IH representatives and Hagie representatives engaged in protracted settlement negotiations.
4. That during the settlement negotiations described in paragraphs 2 and 3, both sides expressed their desire to resolve this dispute without resorting to litigation.
5. That the settlement negotiations broke down shortly before this suit was filed on 27 October 1980.
6. That IH did not file suit before 27 October 1980 due to its reliance on Hagie's continuing participation in settlement negotiations.
FURTHER AFFIANT SAYETH NOT.
                         Kevin E. Condron /s/
                         ____________________
                         Kevin E. Condron

[5]  Mr. Condron's affidavit is devoid of the details concerning statements made, or positions taken, by Hagie, that the Court would expect to find if Harvester is serious in presenting its estoppel argument.
[6]  Although in ruling on Hagie's motion, the Court has given Harvester every benefit of the doubt to which it is entitled under Fed.R.Civ.P. 56, the Court does find it curious that Harvester filed suit four days before the statute of limitations would have expired under Harvester's construction of Ill.Rev.Stat. ch. 26, § 2-725. The Court is not surprised that Harvester could not create a genuine issue with respect to Hagie's conduct during settlement negotiations, because it appears that Harvester was fully conscious of the expiration of the limitations period. Harvester's mistake was in picking the wrong date.
[7]  These undisputed facts are drawn from Hagie's "Statement of Uncontested Material Facts" filed in support of its lost profits motion as required by this District's Local General Rule 12(c). As with Hagie's other motion for summary judgment, nothing presented by Harvester controverts these facts.


163 F.Supp.2d 98 (2001)
Richard BRYANT, Plaintiff
v.
Lauren NOETHER, in her Individual and Official Capacity, Sheriff Stephen Hodges, in his Individual and Official Capacity, Deputy Richard Batstone, in his Individual and Official Capacity, Chief Michael McCarty, in his Individual and Official Capacity, Sgt. Karen McCarty, in her Individual and Official Capacity, Sgt. Brian Loanes, in his Individual and Official Capacity, and New Beginnings, Defendants
No. CIV. 00-191-M.
United States District Court, D. New Hampshire.
March 30, 2001.
*99 *100 *101 Jeffrey A. Runge, Runge Law Office, Concord, NH, for Plaintiff
John A. Curran, Getman, Stacey, Tamposi, Schultness & Steer, Bedford, NH, for Defendants.

ORDER
McAULIFFE, District Judge.
Pursuant to 42 U.S.C. § 1983 and New Hampshire common law, Richard Bryant seeks redress for alleged violations of his civil and common law rights arising from his arrest and prosecution for assaulting his wife. Two motions are before the court: (1) Defendant Lauren Noether's Motion for Judgment on the Pleadings: Prosecutorial Immunity (document no. 14), and (2) Defendants Lauren Noether's, Stephen Hodges's, and Richard Batstone's (collectively, the "county defendants") Motion for Judgment on the Pleadings & For *102 Summary Judgment: Qualified Immunity and Collateral Estoppel (document no. 20). Noether also requests attorney's fees pursuant to 42 U.S.C. § 1988.

Factual Background
Plaintiff, a Belmont, New Hampshire, police officer, was arrested on April 15, 1997, for assaulting his wife. His complaint alleges the following facts:
On the morning of April 15, 1997, plaintiff and his wife argued in their home. In the course of that argument, their heads collided and his wife hit him. Plaintiff left the home for a previously scheduled doctor's appointment, but returned when he realized he had forgotten his wallet.
Upon his return, plaintiff's wife was preparing to leave with their children, but followed him back into the house, continuing the argument. At some point during the resumed argument, plaintiff's wife threatened to report to the police that plaintiff "beat her."[1]
Plaintiff left the home again and, as he was walking to his car, his wife got into her car, revved her engine, and backed into him, knocking him to the ground. At this point, plaintiff also threatened to report his wife's conduct to the police. By the time he drove to the police department, however, he changed his mind and continued on to his doctor's appointment, without ever making a report.
Plaintiff's wife, on the other hand, apparently did not change her mind and filed a domestic violence petition ("DVP"). Based on the sworn statement in the DVP, the Laconia District Court granted her a temporary domestic violence protective order ("DVPO").
Given plaintiff's employment as a police officer, the Belknap County Sheriff's Office ("BCSO") was asked to serve the DVPO. Plaintiff's wife delivered the DVPO to a Sheriff's deputy, who in turn gave it to Deputy Richard Batstone for service. Batstone never saw or spoke to plaintiff's wife about the matter.
Following his medical appointment, plaintiff returned home. Shortly after he arrived, Batstone and Belmont Police Sgt. Brian Loanes pulled into his driveway. Batstone advised plaintiff that he was being taken into custody for assault. Loanes informed him that he had been placed on administrative leave by the Belmont Police Department ("BPD") and was required to turn over his service weapon, which he did.
While plaintiff was in the deputy's car, Batstone served him with the DVPO. Batstone admitted to plaintiff that while he did not have an arrest warrant and had not spoken with plaintiff's wife, he was nevertheless effecting an arrest based on information contained in the sworn petition supporting the DVPO. He also advised plaintiff that he had consulted Loanes and Sergeant Karen McCarty (also of the BPD), whom he viewed as "experts" in handling domestic matters. Batstone acknowledged that plaintiff's wife told the Sheriff's department that she did not want him arrested, but that he, nevertheless, made the decision to effect an arrest because he believed that action was required under the circumstances.
Plaintiff was released on bail, with an arraignment set for April 17, 1997. Batstone drove him home to gather personal belongings (the order precluded his continued presence in the house). They found *103 plaintiff's wife at home. When she learned of the arrest, she called Sheriff Stephen Hodges to find out why her husband had been taken into custody, rather than just served with the DVPO. Her protests did not affect the decision by the Sheriff's department, however, and from that point on, she refused to cooperate in her husband's prosecution.
The following day, plaintiff was ordered to appear before Chief Michael McCarty and Sergeant Loanes to discuss the incident, purportedly as part of an internal BPD investigation. Plaintiff both objected to Loanes' presence, and asked to have a union representative present, but the meeting continued as arranged. Chief McCarty tape-recorded the interview with plaintiff.
Plaintiff later learned from his wife that after she attempted to determine the reason for his arrest, and informed the Sheriff's department that she would not cooperate, Chief McCarty and Sgt. McCarty went to talk to her about the incident. According to his wife, the chief and sergeant knew she was in an unhealthy state, both mentally and physically (having gone days without sleep and being on medication). Plaintiff alleges she was led to believe that any information she provided would be used for internal purposes only, and that she had no choice but to speak with them. The chief and sergeant then proceeded to obtain a written statement from his wife, which she contends was false and misleading.
Mrs. Bryant also told plaintiff that a counselor from New Beginnings, a women's crisis center, accompanied her when she filed the DVP, and coaxed her into making things seem worse than they actually were to ensure that an order would be issued.
On April 17, 1997, plaintiff's wife petitioned the court to withdraw the DVPO. Her petition was granted. She informed plaintiff, however, that someone allegedly had called the court to try to stop her from seeking the order's withdrawal. She later made repeated attempts to set the record straight, and refused to testify at her husband's trial (the criminal charges were still pending), despite the County Attorney's attempts to compel her testimony.
Belknap County Attorney Lauren Noether was responsible for prosecuting plaintiff's criminal case. She eventually negotiated a disposition with plaintiff and his attorney, under which the pending charges were nol prossed (thereby avoiding the risk of plaintiff suffering a criminal conviction), but on condition that plaintiff complete a course of marriage counseling.

Standard of Review
Federal Rule of Civil Procedure 12(c) provides that, "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." In reviewing such a motion, the court must credit all material allegations in the complaint as true and draw all reasonable inferences in the non-moving party's favor. See Feliciano v. State of Rhode Island, 160 F.3d 780, 788 (1st Cir.1998). The court may grant a motion for judgment on the pleadings only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to relief. See Gaskell v. Harvard Cooperative Society, 3 F.3d 495, 497-98 (1st Cir.1993). A pro se complaint, however, is held to "less stringent standards" than one drafted by an attorney, see, e.g., Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), and the court should deny a motion for judgment on the pleadings if the pro se's factual allegations support a claim that may be misnamed.
*104 If "a complaint's factual allegations are expressly linked to  and admittedly dependent upon  a document (the authenticity of which is not challenged), that document effectively merges into the pleadings and the trial court can review it ...." Beddall v. State Street Bank and Trust Co., 137 F.3d 12, 17 (1st Cir.1998). Furthermore, "[i]f, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed. R.Civ.P. 12(c).
Here, the county defendants' motion is captioned as a "Motion for Judgment on the Pleadings & For Summary Judgment," and it includes attached affidavits from Noether and Batstone. Plaintiff's objection mirrors the county defendants' caption and also refers to matters outside the complaint, including a statement by Mrs. Bryant attached to the objection. Additionally, both parties recite the standard of review applicable to summary judgment, as well as the standard of review applicable to judgment on the pleadings. Accordingly, plaintiff has facially acknowledged that defendants alternatively move for summary judgment, and has probably had a "reasonable opportunity to present all material made pertinent to [a motion for summary judgment]." See Fed.R.Civ.P. 12(c).
However, plaintiff objects to treating the motion as one for summary judgment because he failed to engage in discovery while proceeding pro se. Having since retained legal counsel, plaintiff now treats the motion as one for judgment on the pleadings only. Accordingly, the court will disregard additional material outside the pleadings and treat the county defendants' motion as one for judgment on the pleadings. But, because plaintiff's allegations are expressly dependant upon his wife's DVP and the resulting DVPO (copies of which were submitted with the county defendants' motion and not objected to by plaintiff) these documents are "effectively merge[d] into the pleadings" and considered without converting the motion to one for summary judgment. See Beddall, 137 F.3d at 17.

Discussion[2]
"The crux of [p]laintiff's [c]omplaint alleges that, notwithstanding any false allegations made, the gist of the information contained in Mrs. Bryant's DVP does not constitute probable cause sufficient to justify the [p]laintiff's arrest and subsequent prosecution." Plaintiff's Memorandum in Opposition to Judgment on the Pleadings (document no. 24). On that basis, he argues that his arrest and prosecution violated his civil rights (Counts I and II), as well as his state common law rights (Counts III and IV). The county defendants argue that plaintiff's rights were not violated because there was probable cause to arrest and prosecute him. In the alternative, *105 they argue that even if probable cause was lacking, they are entitled to immunity, either absolute or qualified, for their actions. Furthermore, the county defendants assert that plaintiff's probable cause argument is barred by the doctrine of collateral estoppel, and that he has failed to allege essential elements of his common law claims.

I. 42 U.S.C. § 1983

Title 42, section 1983 provides a civil remedy for the deprivation of constitutional rights by anyone acting under the color of law. There is no dispute that the county defendants were acting under color of law in this case. Accordingly, to survive the present motions, plaintiff need only allege facts which, if true, demonstrate that the county defendants' actions deprived him of federal rights. However, under some circumstances, those alleged to have deprived a person of his rights are entitled to immunity. See Imbler v. Pachtman, 424 U.S. 409, 418-19, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Immunity can be either absolute or qualified. See id.

A. County Attorney Noether: Absolute Prosecutorial Immunity
It is well settled that prosecutors enjoy absolute immunity for actions taken within the scope of their prosecutorial duties. See, e.g., Imbler, 424 U.S. at 422-23, 96 S.Ct. 984. It is equally well settled that "in initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under § 1983." Id. at 431, 96 S.Ct. 984; see Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991); Guzman-Rivera v. Rivera-Cruz, 55 F.3d 26, 29 (1st Cir.1995). For absolute immunity to apply, the challenged conduct must be "intimately associated with the judicial phase of the criminal process." Imbler, 424 U.S. at 430, 96 S.Ct. 984; see Guzman-Rivera, 55 F.3d at 29. Absolute immunity does not, however, shield a prosecutor's acts as an administrator or investigator, but is limited to her role as an advocate for the state. See, e.g., Guzman-Rivera, 55 F.3d at 29.
Absolute prosecutorial immunity is necessary to protect the judicial process from "harassment by unfounded litigation [that] would cause a deflection of the prosecutor's energies from [her] public duties, and the possibility that [she] would shade [her] decisions instead of exercising the independence of judgment required by [her] public trust." Burns, 500 U.S. at 478, 111 S.Ct. 1934 (citing Imbler, 424 U.S. at 423, 96 S.Ct. 984). The Supreme Court has acknowledged that "[absolute] immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty. But the alternative of qualifying a prosecutor's immunity would disserve the broader public interest." Imbler, 424 U.S. at 427, 96 S.Ct. 984.
Count II, the only claim arguably brought against Noether, alleges she maliciously prosecuted plaintiff in violation of his constitutional rights. However, the complaint does not allege that Noether participated in any stage of the process prior to charges being filed against plaintiff. Plaintiff only complains about Noether's decision to proceed with the prosecution. Accordingly, even if Noether was motivated by something other than a good faith belief in the merits of the case, and even if all of plaintiff's other allegations are accepted as true, because the decision to proceed with a prosecution is precisely the kind of official duty absolute prosecutorial immunity is designed to protect, see, e.g., Imbler, 424 U.S. at 431, 96 S.Ct. 984, plaintiff cannot, as a matter of law, maintain *106 an action for damages against the prosecutor.[3]

B. The Remaining County Defendants  Batstone & Hodges
Plaintiff complains that the remaining county defendants are liable to him under § 1983 because they violated his Fourth Amendment rights. The Fourth Amendment guarantees the freedom of every citizen to be free from unreasonable searches and seizures. Ordinarily, an arrest warrant, issued by an impartial magistrate or judge, must be obtained before an arrest is made. See, e.g., Gerstein v. Pugh, 420 U.S. 103, 112, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). However, in some situations, an arrest may be effected without a warrant, if probable cause exists to believe a crime has been committed by the arrested person. See id. at 113, 95 S.Ct. 854. In addition, New Hampshire law provides:
An arrest by a peace officer without a warrant on a charge of a misdemeanor or a violation is lawful whenever:
. . . . .
(b) He has probable cause to believe that the person to be arrested has within the past 6 hours committed abuse as defined in RSA 173-B:1, I against a person eligible for protection from domestic violence as defined in RSA 173-B:1, ....
N.H.Rev.Stat. Ann. (RSA) ch. 594:10, I (Supp.2000) (effective July 3, 1993). RSA 173-B:1 defines "abuse," in pertinent part as:
[T]he occurrence of one or more of the following acts between family or household members or current or former sexual or intimate partners:
(a) Attempting to cause or purposely or recklessly causing bodily injury or serious bodily injury with or without a deadly weapon under any of the circumstances outlined in RSA 631:1 [(First Degree Assault)], 631:2 [(Second Degree Assault)], or 631:2-a [(Simple Assault)]; ....
RSA 173-B:1, I (1994). In this case, plaintiff was arrested and charged with simple assault, defined as:
I. A person is guilty of simple assault if he:
(a) Purposely or knowingly causes bodily injury or unprivileged physical contact to another; or
(b) Recklessly causes bodily injury to another; or
(c) Negligently causes bodily injury to another by means of a deadly weapon. II. Simple assault is a misdemeanor unless committed in a fight entered into by mutual consent, in which case it is a violation.
RSA 631:2-a (1996).
Because each remaining county defendants' role in plaintiff's arrest was somewhat different, each will be discussed separately.

1. Deputy Batstone
Batstone was the Sheriff's deputy who made the decision to arrest plaintiff after reviewing the DVP, and accompanying *107 DVPO, and after consulting BPD officers responsible for domestic violence matters. Plaintiff says Batstone's decision to arrest was based solely on the information contained in the DVP, and that the DVP's content did not supply probable cause. Accordingly, at least with respect to Batstone, the only question is whether the DVP, and accompanying protective order, were sufficient to provide him with probable cause to believe plaintiff had "[p]urposely or knowingly cause[d] bodily injury or unprivileged physical contact to [his wife]; or ... [r]ecklessly cause[d] bodily injury to [his wife] ...." See RSA 631:2-a.

a. Collateral Estoppel
As an initial matter, the county defendants argue that plaintiff is precluded, under the doctrine of collateral estoppel, from litigating the existence of probable cause because that issue was previously resolved against him.
"Federal courts are bound by state law on the preclusive effect of state judgments." Commercial Associates v. Tilcon Gammino, Inc., 998 F.2d 1092, 1096 (1st Cir.1993). Accordingly, the court shall apply the New Hampshire standard for collateral estoppel, which precludes a party from re-litigating an issue previously decided on the merits when the current party had a full and fair opportunity to be heard, or was in privity with a party who had such an opportunity. See, e.g., In re Alfred P., 126 N.H. 628, 629, 495 A.2d 1264 (1985). The issue must actually be raised and determined on the merits. See id.
Defendants assert that plaintiff is estopped from litigating the probable cause issue because (1) in issuing the DVPO, the Laconia District Court necessarily found by a preponderance of the evidence that plaintiff had physically abused his wife[4] and (2) plaintiff did not raise the issue during his criminal trial.
Both arguments fail. First, plaintiff was not a party to the ex parte proceeding, which led to the issuance of the temporary DVPO by the Laconia District Court. Nor was he in privity with his wife or the state, with regard to the domestic violence proceeding. Second, failure to raise the issue during his criminal proceedings does not trigger collateral estoppel because the issue was not determined on the merits. See Alfred P., 126 N.H. at 629, 495 A.2d 1264. Accordingly, plaintiff can raise the issue of whether probable cause existed to arrest him.

b. Probable Cause
"[P]robable cause exists when the facts and circumstances within the [arresting officer's] knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent person in believing that the defendant had committed or was committing an offense." Rivera v. Murphy, 979 F.2d 259, 263 (1st Cir.1992) (internal citations, alterations, and quotation marks omitted). Probable cause does not require the facts and circumstances within the officer's knowledge to "be sufficient to prove guilt beyond a reasonable doubt, to make out a prima facie case or even to establish that guilt is more probable than not." State v. Thorp, 116 N.H. 303, 307, 358 A.2d 655 (1976) (citing Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), abrogated on other grounds by Illinois *108 v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Although it is dependent upon the specific facts of a case, if there are no factual disputes, or if it can be resolved based on undisputed facts, the determination of whether probable cause existed is a question of law for the court to answer. See Kay v. Bruno, 605 F.Supp. 767, 774 (D.N.H.1985), aff'd Kay v. New Hampshire Democratic Party, 821 F.2d 31 (1st Cir.1987).
Here, Batstone received the DVP, and accompanying DVPO, on April 15, 1997, the same day as the alleged assault. Mrs. Bryant, the victim, had personally delivered the documents to the BCSO. The DVP was undeniably "[s]ubscribed and sworn to by" Mrs Bryant, and the following detailed description appears on the face of the DVP:
On 4-15-97 at approx. 10:00 AM my husband Richard A. Bryant became angry with me and when I closed the bedroom door to get away from him, and to avoid an argument in front of our children, he proceeded to slam the door open and head butt me above my right eye all the while yelling [and] screaming and grabbing me around the neck. He also ripped my jacket off me breaking the zipper. As I tried to leave the home he got right in my face and shoved me to try and prevent me from leaving [and] going to my mother's house.
County Defendants' Motion for Judgment on the Pleadings, Ex. A, Domestic Violence Petition signed by Mary Bryant. The DVPO indicated that, "having considered" the DVP, the Laconia district court judge found that Mrs. Bryant was "in immediate and present danger of abuse" by plaintiff.[5]
Plaintiff complains that Batstone did not have probable cause because he did not investigate further: he did not first question Mrs. Bryant about the incident (in fact he never saw or spoke to her); he did not observe any physical evidence of abuse; and he did not attempt to interview plaintiff about the incident before effecting his arrest.
Although not a per se rule, a victim's statement will generally suffice to support probable cause, absent some reason to doubt the victim's reliability. See B.C.R. Transport Co., Inc. v. Fontaine, 727 F.2d 7, 10 (1st Cir.1984); Spiegel v. Cortese, 966 F.Supp. 684, 691 (N.D.Ill. 1997), aff'd 196 F.3d 717 (7th Cir.1999). Here, Batstone was relying on the alleged victim's sworn, detailed statement that identified her husband by name and described an altercation clearly within the bounds of RSA 631:2-a. See Lallemand v. University of Rhode Island, 9 F.3d 214, 216 (1st Cir.1993) (victim's statement and identification sufficient to provide probable cause). Although plaintiff mentions in his statement of facts that Mrs. Bryant allegedly threatened to file a false petition a year earlier, there is no reasonable basis to conclude Batstone had any knowledge of that threat, or of any other reason to think Mrs. Bryant would swear falsely, file a false petition, and seek to procure a DVPO by fraud. Plaintiff has not alleged Batstone had knowledge, nor has he alleged, or argued in his opposition since retaining counsel, that Batstone had any reason to doubt the trustworthiness of the sworn DVP. Furthermore, Batstone had the Laconia *109 district court order, confirming a judge's finding, after considering the DVP, that Mrs. Bryant was in immediate and present danger of abuse. These facts and circumstances were "sufficient to warrant a prudent person in believing that [plaintiff] had committed" physical abuse against his wife. See Rivera, 979 F.2d at 263. Furthermore, Batstone was not required to take the steps suggested by plaintiff because once an officer determines probable cause exists, further investigation is not required. See, e.g., Franco-de Jerez v. Burgos, 876 F.2d 1038, 1041-42 (1st Cir. 1989). Accordingly, because Batstone had probable cause to arrest plaintiff, he did not violate plaintiff's Fourth Amendment rights.

c. Qualified Immunity
In the alternative, Batstone argues that if his determination of probable cause was wrong, he is entitled to qualified immunity and, therefore, not liable under § 1983. Although this defense is unnecessary since the court has found probable cause actually existed, in the interest of completeness, the court will address it.
In a § 1983 action, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). It is "an immunity from suit rather than a mere defense to liability," and should be decided at the earliest possible stage. Hunter v. Bryant, 502 U.S. 224, 227-28, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam).
In the Fourth Amendment context, officers are "entitled to immunity if a reasonable officer could have believed that probable cause existed." Rivera, 979 F.2d at 263. This is true even if it turns out later that there was no probable cause. See Hunter, 502 U.S. at 227, 112 S.Ct. 534; Rivera, 979 F.2d at 263. It is an "objectively reasonable" test, that does not require exploration of an officer's subjective analysis, or purpose. Officers are entitled to qualified immunity for arrests "so long as the presence of probable cause is at least arguable." Floyd v. Farrell, 765 F.2d 1, 5 (1st Cir.1985) (extending to warrantless arrests test applicable to seeking arrest warrants). "[Q]ualifed immunity is pierced only if there clearly was no probable cause at the time the arrest was made." Id.
As the discussion above illustrates, when presented with a sworn statement by the alleged victim of domestic violence, in which an incident of abuse was described in detail, and the assailant was identified as the complainant's husband, it is, at the very least, arguable that a reasonable officer could reasonably believe he or she had probable cause to arrest plaintiff. Accordingly, even if probable cause did not exist, Batstone would still be entitled to qualified immunity from liability.

2. Sheriff Hodges
To the extent Count I is intended to include Hodges, there are no allegations capable of imposing liability under § 1983. It cannot be reasonably inferred from the complaint that Hodges was involved in the decision to arrest plaintiff. Although Hodges is Batstone's superior officer, he cannot be held responsible for Batstone's actions (if they were unlawful) because there is no respondeat superior liability under § 1983. See, e.g., Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir.1989). Any liability must be derived from Hodges's own actions or omissions. See id. His apparent inaction following Mrs. Bryant's protest of the arrest (the *110 only conduct by him alleged), absent allegations that he knew plaintiff was in fact innocent, or that Batstone did not have probable cause, does not state a claim for relief. Accordingly, based on the facts alleged by plaintiff, Hodges cannot be held liable under Count I, as a matter of law.

II. Pendent State Claims

A. Negligence[6]
Plaintiff alleges the county defendants breached a duty of care owed to him "by arresting him without probable cause and in direct dereliction of the alleged victim's request that the plaintiff simply be served with DVPO documents." Complaint ¶ 63. In essence, plaintiff seems to be alleging a cause of action for "negligent arrest." The court has found no support under New Hampshire law for such a claim in this context. When faced with an allegation of "negligent arrest," courts have generally construed it as one for either false imprisonment or false arrest, see, e.g., Hernandez v. Metro-Dade County, 992 F.Supp. 1365, 1369 (S.D.Fla.1997), or as an action for excessive force or wrongful death. See, e.g., Daniel v. State Through Washington State Patrol, 36 Wash.App. 59, 671 P.2d 802, 806 (1983). Still other courts have refused to recognize such claims in negligence. See, e.g., Pourny v. Maui Police Dep't, 127 F.Supp.2d 1129, 1145-46 (D.Hawai'i 2000); Larson v. Lowery, No. 86-C-5286, 1987 WL 6304, at *2 (N.D.Ill. Feb. 3, 1987). This court has construed a claim for "negligent arrest" as one for false imprisonment, see Kimball v. Somersworth, CV 90-447-M (D.N.H. Feb. 17, 1993), and malicious prosecution. See Spaulding v. Town of Newport, CV 94-316-SD (D.N.H. Dec. 23, 1996) (construing claim as both false imprisonment and malicious prosecution).
New Hampshire recognizes the tort of false imprisonment. See, e.g., Hickox v. J.B. Morin Agency, Inc., 110 N.H. 438, 442, 272 A.2d 321 (1970). "False imprisonment is the unlawful restraint of an individual's personal freedom." Id. But, because the court has found Batstone had probable cause to arrest plaintiff, see, supra, § I(B)(1)(b), the arrest was necessarily lawful, and a false imprisonment count does not lie. Accordingly, Count III must be dismissed.

B. Abuse of Process
The tort of abuse of process is recognized in New Hampshire through express adoption of Restatement (Second) of Torts § 682. Long v. Long, 136 N.H. 25, 29, 611 A.2d 620 (1992). The Restatement describes the cause of action as follows: "One who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed, is subject to liability to the other for harm caused by the abuse of process." Restatement (Second) of Torts § 682, at 474 (1977). To state a claim for abuse of process, then, one must allege (1) an ulterior purpose and (2) a wilful act in the use of process not proper in the regular conduct of the proceeding. Clipper Affiliates, Inc. v. Checovich, 138 N.H. 271, 276, 638 A.2d 791 (1994). The ulterior purpose is generally some form of extortion. Id. at 277, 638 A.2d 791; Restatement (Second) of Torts § 682 cmt. b, at 475. "Absent some form of compulsory process forcing the performance or forbearance of some prescribed *111 act, a claim of abuse of process fails." Clipper Affiliates, Inc., 138 N.H. at 277, 638 A.2d 791 (internal citation and quotation marks omitted). It is not enough to allege harassment or retaliation. Id.; see also Restatement (Second) of Torts § 682 cmt. b ("[T]he entirely justified prosecution of another on a criminal charge does not become abuse of process merely because the instigator dislikes the accused and enjoys doing him harm.").
Here, plaintiff has failed to allege facts necessary to support finding in his favor on the necessary elements. Count IV relates to representations allegedly made to the sheriff's department that led to the decision to arrest him and his actual arrest. Plaintiff alleges in conclusory fashion that the ulterior purpose of his arrest was to "injure him." Complaint ¶ 67. There is no allegation, either direct or indirect, that plaintiff's arrest was effected for the purpose of compelling him to do something, or give up something unrelated to the proceedings. See Clipper Affiliates, Inc., 138 N.H. at 277, 638 A.2d 791; Restatement (Second) of Torts § 682 cmt. b, at 475.
Given plaintiff's initial pro se status, and the court's obligation to liberally construe pro se complaints, it is possible that plaintiff actually meant to allege common law malicious prosecution. However, an essential element of malicious prosecution is the absence of probable cause. Johnston v. Flatley Realty Investors, 125 N.H. 133, 136, 480 A.2d 55 (1984). Accordingly, a common law malicious prosecution claim would also fail since the court has found that probable cause to arrest plaintiff did exist.

Conclusion
For the above reasons, plaintiff cannot sustain any of his stated, or suggested, causes of actions against the county defendants. Accordingly, Noether's motion for judgment on the pleadings (document no. 14) and the county defendants' motion for judgment on the pleadings (document no. 20) are granted.
In the exercise of the court's discretion, defendants' request for attorneys' fees is denied.
SO ORDERED.
NOTES
[1]  Plaintiff's wife allegedly made a similar threat a year earlier during a similar altercation. Following that incident, plaintiff reported being assaulted by his wife to the Belmont Police Department, who referred the matter to the Belknap County Sheriff's Office for appropriate action. The investigation was eventually terminated, at plaintiff's request.
[2]  Only potential liability of the county defendants in their individual capacities will be discussed. Suits brought against parties in their official capacities are treated as suits against the municipality. See, e.g., Brandon v. Holt, 469 U.S. 464, 471, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985). In order for a municipality to be liable under 42 U.S.C. § 1983, there must be a deprivation of constitutional rights resulting from "official action taken pursuant to a `custom or usage' of the municipality." Mahan v. Plymouth County House of Corrections, 64 F.3d 14, 16 (1st Cir.1995). Here, plaintiff has not alleged any unconstitutional custom or usage. Accordingly, plaintiff cannot maintain § 1983 claims against the county defendants in their official capacities.
[3]  The court notes that plaintiff's stated claim, "Violation of Amendment XIV," cannot survive to the extent he claims a violation of a substantive due process right to be free from prosecution without probable cause. See, e.g., Meehan v. Town of Plymouth, 167 F.3d 85, 88 (1st Cir.1999). Because plaintiff filed his complaint pro se, the court considered the extent to which he may be asserting Fourth Amendment rights and/or raising a state claim. However, absolute prosecutorial immunity would also apply to such claims. See Belcher v. Paine, 136 N.H. 137, 147, 612 A.2d 1318 (1992) (absolute immunity under state law).
[4]  The county defendants rely on the version of RSA 173-B:4 in effect at the time of plaintiff's arrest which provided, in pertinent part, "Upon a showing of abuse of the plaintiff by a preponderance of the evidence, the court shall grant such relief as is necessary to bring about a cessation of abuse ...." RSA 173-B:4 (1994) (amended 1999). As will be discussed below, see, infra, footnote 5, their reliance on this statutory provision is misplaced.
[5]  The county defendants, relying on RSA 173-B:4, argue that this finding was necessarily "upon a showing of abuse by a preponderance of the evidence." RSA 173-B:4, I. However, because the DVPO issued was temporary, and issued ex parte, its issuance was governed by RSA-B:6 (as it existed at the time) which authorized a judge to issue temporary orders "[u]pon a showing of an immediate and present danger of abuse."
[6]  The court notes that the county defendants mention the negligence claim in their motion, and in passing in their memorandum, but have failed to cite any authority supporting their claim to judgment on the pleadings. See Local Rule 7.1(a)(2). However, given the complete dependancy of Count III on the absence of probable cause (an essential element of the claim), the court will resolve the issue.


_'-_._-—--a-—-—-—- ....-.—..

ATTORNEY GRIEVANCE COMMISSION * IN THE
OF MARYLAND COURT OF APPEALS I
* OF MARYLAND I
Petitioner
* Misc. Docket AG No. 85 '
v. .
* September Tenn, 2013
RONALD ALLEN WRAY ii“
Respondent. * i
l
ORDER I

This matter came before the Court on the Joint Petition of the Attorney Grievance
Commission of Maryland and Respondent, Ronald Allen Wray, to indeﬁnitely suspend the \
Respondent from the practice of law. The Court having considered the Petition and the record
herein, it is this {+31 day of March, 2015: £

ORDERED, that Respondent, Ronald Allen Wray, be, and he is hereby, indeﬁnitely
suspended from the practice of law in the State of Maryland for violating Rules 1.], 1.3, l.4(a)(2) i
and (b), 1.5(a), l.lS(a) and (c), and 8.4(a) and (d) of the Maryland Lawyers’ Rules of Professional i
Conduct, and Maryland Rules 16-604, 16-606.] and 10-306; and it is further

ORDERED, that the Clerk of this Court shall remove the name of Ronald Allen Wray from

the register of attorneys in the Court and certify that fact to the Client Protection Fund of the Bar of

Maryland and all Clerks of alljudicial tribunals in this State in accordance with Maryland Rule 16-

772(d).

/S/ a

.. _..___... _ —._ ___.m—w.g_.,.-;__m

Senior Judge


989 F.2d 506
NOTICE:  Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.UNITED STATES of AMERICA, Appellee,v.Vernon V. VIRGIN, Appellant.
No. 92-3153.
United States Court of Appeals,Eighth Circuit.
Submitted:  March 4, 1993.Filed:  March 12, 1993.

Before FAGG, BEAM, and HANSEN, Circuit Judges.
PER CURIAM.

1
Vernon V. Virgin, a federal prisoner, appeals the district court's1 denial of his motion to correct an illegal sentence pursuant to former Federal Rule of Criminal Procedure 35(a).  Virgin asserts that the sentencing court erred in imposing a special-parole term as part of his September 1986 sentence, because the version of 21 U.S.C. § 841(b)(1)(B) in effect at the time of his offenses did not provide for special parole.  We disagree.  When Virgin committed his offenses in February 1986, section 841(b)(1)(B) included a special-parole term of at least three years in addition to imprisonment.  See 21 U.S.C. § 841(b)(1)(B) (Supp.  III 1985).  "Because [Virgin] committed [his] offense[s] before October 27, 1986, the amendment eliminating special parole does not apply to him."   United States v. McNeal, 932 F.2d 1255, 1255 (8th Cir. 1991) (per curiam) (citing  Gozlon-Peretz v. United States, 111 S. Ct. 840, 849 (1991)).

2
Accordingly, we affirm.

1
 The Honorable Stephen N. Limbaugh, United States District Judge for the Eastern and Western Districts of Missouri