Jones v. Secord

United States Court of Appeals
For the First Circuit

No. 11-1576

GAIL JONES, IN HER CAPACITY AS EXECUTRIX
OF THE ESTATE OF GARY JONES,

Plaintiff, Appellant,

v.

LAWRENCE SECORD,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Howard, Selya and Thompson,
Circuit Judges.

Roberto Tepichin, with whom Michael R. Perry, Ryan E. Ferch
and Murphy & King, were on brief, for appellant.
Anthony M. Campo, with whom Mark W. Shaughnessy, Andrew B.
Ranks and Boyle, Shaughnessy & Campo, P.C., were on brief, for
appellee.

July 6, 2012
 SELYA, Circuit Judge. This case arises out of the tragic

death of the plaintiff's decedent, Gary Jones, who was shot and

killed by a man wielding a stolen handgun. In her federal court

complaint, the plaintiff claimed that the gun owner's negligent

storage of the weapon and his failure timely to report its theft

proximately caused the decedent's death. The district court

rejected these claims and granted summary judgment in favor of the

gun owner. Jones v. Secord, No. 10-146, 2011 WL 1557883 (D.N.H.

Apr. 26, 2011). The plaintiff appeals. We affirm.

I. BACKGROUND

We summarize the relevant facts in the light most

favorable to the party opposing summary judgment (here, the

plaintiff). See Foote v. Town of Bedford, 642 F.3d 80, 81 (1st

Cir. 2011).

For the last thirty years, the defendant, Lawrence

Secord, has owned a hunting camp in Wentworth Location, New

Hampshire. The camp is used as a base for hunting and fishing, and

the defendant has routinely made it available to family members.

The camp includes a cabin that is thirty-eight feet long

by sixteen feet wide. The cabin is normally locked when unoccupied

— but a key is hidden on the property and family members know of

its whereabouts.

The defendant kept a revolver hidden under the base of a

water-heater platform inside the cabin. The record is empty as to

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whether family members were aware of this hiding place, but the

ammunition for the handgun was stored in plain sight.

Until he was seventeen years old, the defendant's

grandson, Michael Woodbury, was among the family members who

regularly visited the camp. He would go there to hunt and fish

with his grandfather and his father. These visits ceased abruptly

around June of 1994, when Woodbury offended his grandfather by

cancelling a planned fishing trip. From that time forward,

Woodbury was not welcome at the camp and, for aught that appears,

did not go there.

Soon after his banishment, Woodbury committed a series of

felonies (including bank robbery and breaking and entering) that

resulted in his incarceration. By May of 2007, he was out of

prison and had been helping his father build a house in Sebago,

Maine. At that point, he had not spoken to the defendant for

approximately ten years. He nonetheless showed up that month

unannounced at the defendant's principal residence in Scarborough,

Maine. The defendant received him coldly, and Woodbury departed

minutes after his arrival. That was the last that the defendant

saw Woodbury until after the plaintiff's decedent was murdered.

Toward the end of June in 2007, the defendant's son, who

had recently visited the hunting camp, told the defendant that he

had accidentally left a mousetrap outside of the cabin. On June

28, the defendant asked a friend, Sarah Barton, to go to the camp,

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and she went there that night. Nobody was around, but sheets were

draped over the windows and a radio was playing. According to

Barton, she peered through a window, spied what she thought was the

wayward mousetrap, and departed.1

Barton did not immediately report what she had seen to

the defendant because she assumed that the defendant's son had left

the camp hurriedly and she did not want to cause trouble. She

returned to the camp the next day. This time she entered the cabin

through a door that was locked but not properly shut, turned off

the radio, and retreated. The interior of the cabin appeared to be

clean and in good order.

At a family gathering in Scarborough on July 1, 2007,

Barton told the defendant about the sheets on the windows of the

cabin. The defendant called his son's girlfriend, who disavowed

any knowledge of the situation. The defendant and Barton were

entertaining out-of-town guests and did not go to the camp until

July 3.

When they arrived, they found that the cabin had been

trashed, a rear window had been broken, and an unknown intruder had

strewn garbage and debris throughout the cabin. They cleaned up

the mess and left without calling the authorities.

1
A slightly different account of Barton's visit appears in a
subsequent police report and in the police officer's deposition.
The disparities, where relevant, are discussed below.

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 After arriving home, the defendant learned that his

estranged grandson, Woodbury, had been accused of murdering three

people during a robbery on July 2. It subsequently became clear

that Woodbury had been the intruder who broke into the cabin, that

he had found and taken the hidden revolver, and that he had used

the revolver to commit the murders.

In due course, the plaintiff, in her capacity as the

executrix of the estate of Gary Jones (one of the murder victims),

brought suit against the defendant in the United States District

Court for the District of New Hampshire. She invoked diversity

jurisdiction based upon the defendant's Maine citizenship, her

decedent's Massachusetts citizenship, and an amount in controversy

exceeding $75,000. See 28 U.S.C. §§ 1332(a), 1332(c)(2); see also

Quincy V, LLC v. Herman, 652 F.3d 116, 120 (1st Cir. 2011)

(explaining that for diversity purposes, the citizenship of a

decedent is imputed to his personal representative).

In her complaint, the plaintiff alleged that the

defendant was negligent in failing both adequately to secure the

revolver and promptly to report its theft. After a ten-month

period of pretrial discovery, the district court granted summary

judgment in favor of the defendant. See Jones, 2011 WL 1557883, at

*1-2. The court concluded that no liability attached for a failure

to secure the revolver because no legally cognizable duty was owed;

under New Hampshire law, "individuals ordinarily are not subjected

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to liability for the criminal acts of third parties." Id. at *1.

The court rejected the plaintiff's failure-to-report claim on the

basis of what the court characterized as an undisputed factual

record. See id. at *1 & n.2. This timely appeal followed.

II. ANALYSIS

A trial court's entry of summary judgment engenders de

novo appellate review. See Harrington v. Aggregate Indus.-Ne.

Region, Inc., 668 F.3d 25, 30 (1st Cir. 2012). The court of

appeals, like the trial court, must take the facts in the light

most congenial to the nonmoving party, resolve any evidentiary

conflicts in that party's favor, and draw all reasonable inferences

to her behoof. Gomez v. Stop & Shop Supermarket Co., 670 F.3d 395,

396 (1st Cir. 2012). The court of appeals is not limited to the

district court's rationale, but may affirm on any independent

ground made manifest by the record. González-Droz v. González-

Colón, 660 F.3d 1, 9 (1st Cir. 2011).

Before us, the plaintiff advances both procedural and

substantive arguments. We group the arguments under those headings

and address them sequentially.

A. Procedural Arguments.

To place the plaintiff's procedural arguments into

perspective, we rehearse the travel of the case. The plaintiff

sued on April 19, 2010, the defendant answered the complaint, and

the district court entered a scheduling order on June 22, 2010.

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See Fed. R. Civ. P. 16(b). This order set a deadline of April 1,

2011, for both the completion of discovery and the filing of any

remaining dispositive motions.

On March 1, 2011, the defendant moved for summary

judgment. Three days later, the United States District Court for

the District of Massachusetts, acting at the behest of the

plaintiff, directed a subpoena to a non-party, Hanover Insurance

Group. See Fed. R. Civ. P. 45(a)(2)(C). This subpoena required

Hanover to produce certain statements made by the defendant to it.

In particular, the subpoena sought statements indicating when the

defendant became aware of the theft of the handgun. In support,

plaintiff's counsel represented that a Hanover claims adjuster had

previously informed him that the defendant learned of the theft on

June 30, 2007.

Both the defendant and Hanover asked the New Hampshire

federal district court to quash the subpoena. The plaintiff

responded on March 31, 2011, arguing that the court below lacked

authority to quash the subpoena because a different district court

had issued it. The plaintiff filed her opposition to the summary

judgment motion that same day.

On April 22, 2011, the district court referred the

discovery dispute to a magistrate judge. See 28 U.S.C.

§ 636(b)(1)(A); Fed. R. Civ. P. 72(a). Four days later, the court,

without entertaining oral argument, granted the pending motion for

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summary judgment. Jones, 2011 WL 1557883, at *1-2. At that

juncture, the magistrate judge had taken no action on the discovery

dispute, and the subpoenaed documents had not been produced.

1. The Unadjudicated Discovery Dispute. The plaintiff's

chief procedural argument posits that the district court abused its

discretion when it decided the summary judgment motion while the

discovery dispute was outstanding. This argument, however,

overlooks the provisions of Federal Rule of Civil Procedure 56(d).2

Rule 56(d) provides in pertinent part that if a party

opposing summary judgment shows "that, for specified reasons, it

cannot present facts essential to justify its opposition," the

court may grant appropriate relief. In short, Rule 56(d) affords

a safety net for parties that need more time to gather facts

essential to resist a motion for summary judgment. Celotex Corp.

v. Catrett, 477 U.S. 317, 326 (1986) (explaining that "[a]ny

potential problem with [a] premature [motion for summary judgment]

can be adequately dealt with under [this rule]"); Rivera-Torres v.

Rey-Hernández, 502 F.3d 7, 10 (1st Cir. 2007) (similar). This

safeguard, when properly invoked, serves as a way of ensuring that

judges will not "swing[] the summary judgment axe too hastily."

2
Rule 56(d) was formerly Rule 56(f). This change in
nomenclature is unimportant; the textual differences between
current Rule 56(d) and former Rule 56(f) are purely stylistic. See
Fed. R. Civ. P. 56 advisory committee's note; see also Godin v.
Schencks, 629 F.3d 79, 90 n.19 (1st Cir. 2010). Consequently, the
case law developed under the earlier version remains authoritative,
and we refer to it where applicable.

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Rivera-Torres, 502 F.3d at 10 (quoting Resolution Trust Corp. v. N.

Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir. 1994) (internal

quotation marks omitted)).

But courts, like the deity, tend to help those who help

themselves, and Rule 56(d) is not self-executing. A party must

invoke it. Here, however, the plaintiff did not invoke Rule 56(d).

To compound this error, she made no mention of the outstanding

discovery dispute in her opposition to the motion for summary

judgment; nor did she advise the court, when it referred the

discovery dispute to the magistrate judge, that it might have a

bearing on the pending summary judgment motion.

The plaintiff tries to shift the blame by insisting that

the court knew of the outstanding discovery dispute because of the

motion to quash and, thus, there was no point in filing a Rule

56(d) affidavit. This rhetoric turns the matter upside down.

Federal district courts are busy places, and judges often have

crowded dockets. It is not the court's responsibility to dig

through the record in a particular case unsolicited and determine

whether some timing problem might exist in connection with a

summary judgment motion. Rather, Rule 56(d) places that

responsibility squarely on the shoulders of the party opposing the

motion. See Mir-Yépez v. Banco Popular de P.R., 560 F.3d 14, 15-16

(1st Cir. 2009); N. Bridge Assocs., 22 F.3d at 1203. Asserting, as

the plaintiff does, that a district court abuses its discretion by

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not engaging sua sponte in an independent review of the docket is

the functional equivalent of expecting the court to do the lawyer's

job.

The protocol that we have approved in connection with

Rule 56(d) recognizes this division of responsibility. A party

opposing summary judgment who wishes to invoke Rule 56(d) must act

diligently and proffer to the trial court an affidavit or other

authoritative submission that "(i) explains his or her current

inability to adduce the facts essential to filing an opposition,

(ii) provides a plausible basis for believing that the sought-after

facts can be assembled within a reasonable time, and (iii)

indicates how those facts would influence the outcome of the

pending summary judgment motion." Vélez v. Awning Windows, Inc.,

375 F.3d 35, 40 (1st Cir. 2004).

The plaintiff made no effort at all to satisfy these

requirements while the summary judgment motion was pending. Her

present objection is, therefore, untenable. See, e.g., United

States v. San Juan Bay Marina, 239 F.3d 400, 408 (1st Cir. 2001);

Meehan v. Town of Plymouth, 167 F.3d 85, 92 n.7 (1st Cir. 1999);

Mulero-Rodríguez v. Ponte, Inc., 98 F.3d 670, 678-79 (1st Cir.

1996).

2. Absence of Oral Argument. The plaintiff's fallback

position is that the district court abused its discretion by

deciding the summary judgment motion without oral argument. This

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suggestion is jejune. First and foremost, the plaintiff did not

request oral argument in the district court — and that is the end

of the matter. See D.N.H.R. 7.1(d) ("[A] court shall decide

motions without oral argument . . . [and] may allow oral argument

after consideration of a written statement by a party outlining the

reasons why oral argument may provide assistance to the court.");

see also United States v. One 1974 Porsche 911-S Vehicle

Identification No. 9114102550, 682 F.2d 283, 286-87 (1st Cir.

1982). With such a local rule in place, a district court has no

sua sponte obligation to convene oral argument on a motion.

If more were needed — and we do not think that it is —

"district courts have considerable discretion in deciding whether

or not to allow oral argument on a dispositive motion." Domegan v.

Fair, 859 F.2d 1059, 1065 (1st Cir. 1988). "Absent a showing of

serious prejudice, it is not an abuse of discretion to deny oral

argument on a summary judgment motion." Bratt v. Int'l Bus. Machs.

Corp., 785 F.2d 352, 363 (1st Cir. 1986). We discern no serious

prejudice here.

B. Substantive Arguments.

The parties agree that, in this diversity action, New

Hampshire substantive law controls. See Erie R.R. v. Tompkins, 304

U.S. 64, 78 (1938); see also Borden v. Paul Revere Life Ins. Co.,

935 F.2d 370, 375 (1st Cir. 1991) (explaining that "a federal court

sitting in diversity is free, if it chooses, to forgo independent

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[choice-of-law] analysis and accept the parties' [reasonable]

agreement" about which state law controls). Under New Hampshire

law, a successful negligence claim requires a showing of duty,

breach, proximate cause, and injury. See Vachon v. New England

Towing, Inc., 809 A.2d 771, 774 (N.H. 2002). Determining whether

a legally cognizable duty exists demands a case-specific inquiry

into whether the defendant could reasonably foresee that his

conduct could cause an injury. See Walls v. Oxford Mgmt. Co., 633

A.2d 103, 105 (N.H. 1993). It follows that "[d]uty and

foreseeability are inextricably bound together." Corso v. Merrill,

406 A.2d 300, 303 (N.H. 1979). "Whether a defendant's conduct

creates a sufficiently foreseeable risk of harm to others

sufficient to charge the defendant with a duty to avoid such

conduct is a question of law." Macie v. Helms, 934 A.2d 562, 565

(N.H. 2007) (internal quotation marks omitted).

New Hampshire adheres to the general rule that "a private

citizen has no [] duty to protect others from the criminal attacks

of third parties." Dupont v. Aavid Thermal Techs., Inc., 798 A.2d

587, 590 (N.H. 2002); accord Ahrendt v. Granite Bank, 740 A.2d

1058, 1063 (N.H. 1999); Walls, 633 A.2d at 104. "This rule is

grounded in the fundamental unfairness of holding private citizens

responsible for the unanticipated criminal acts of third parties,

because under all ordinary and normal circumstances, in the absence

of any reason to expect the contrary, the actor may reasonably

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proceed upon the assumption that others will obey the law."

Remsburg v. Docusearch, Inc., 816 A.2d 1001, 1006 (N.H. 2003)

(alteration and internal quotation marks omitted); see Walls, 633

A.2d at 105 ("Although crimes do occur[,] they are still so

unlikely that the burden of taking continual precautions against

them almost always exceeds the apparent risk." (alterations and

internal quotation marks omitted)).

The New Hampshire Supreme Court has identified three

narrow exceptions to the general rule that citizens have no duty at

common law to protect others from criminal acts of third parties.

See, e.g., Berry v. Watchtower Bible & Tract Soc'y. of N.Y., Inc.,

879 A.2d 1124, 1128 (N.H. 2005); Remsburg, 816 A.2d at 1007;

Dupont, 798 A.2d at 590. These exceptions apply to situations in

which "(1) a special relationship exists; (2) special circumstances

exist; or (3) the duty has been voluntarily assumed."3 Remsburg,

816 A.2d at 1007. Ascertaining whether an exception applies is a

matter of law. See, e.g., Ward v. Inishmaan Assocs. Ltd., 931 A.2d

1235, 1237-38 (N.H. 2007); Marquay v. Eno, 662 A.2d 272, 278-80

(N.H. 1995).

3
The New Hampshire Supreme Court sometimes has ruminated
about a fourth possible exception: overriding foreseeability.
Walls, 633 A.2d at 106; see Ward v. Inishmaan Assocs. Ltd., 931
A.2d 1235, 1237-38 (N.H. 2007). The court, however, squarely
rejected this possible exception in the landlord-tenant context.
See Ward, 931 A.2d at 1237-38; Walls, 633 A.2d at 107. Because the
plaintiff does not draw out this distinction and our discussion of
the "special circumstances" exception adequately deals with any
overriding foreseeability argument, we need not elaborate upon it.

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 The plaintiff trains her sights on the special

circumstances exception. This exception applies "where there is an

especial temptation and opportunity for criminal misconduct brought

about by the defendant[,]" Remsburg, 816 A.2d at 1007 (internal

quotation marks omitted), such as when "the defendant's conduct has

created an unreasonable risk of criminal misconduct." Id. The

plaintiff attempts to bring her case within the exception in two

ways. First, she focuses on the defendant's ostensible failure to

report the theft of the revolver in a timely fashion. Second, she

focuses on the defendant's ostensible failure to secure the

revolver properly. Both of these arguments contemplate that the

defendant knew of Woodbury's presence near the camp.

1. Failure to Report. The plaintiff contends that the

defendant could have prevented the murder by seasonably reporting

the theft of his handgun. As an initial matter, the defendant

counters that he did not know about the theft until after the

murder occurred. The plaintiff disagrees; she says that there is

a genuine issue of material fact as to when the defendant learned

of the theft.

The defendant testified that he did not realize the

revolver had been stolen until after the murder (which occurred on

July 2, 2007). To rebut this testimony, the plaintiff relies on a

police report. She avers that the report, prepared by Trooper

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West, contradicts the defendant's testimony. We dissect the

anatomy of this averment.

Trooper West interviewed the defendant by telephone on

October 8, 2007. He memorialized that conversation in a police

report the following day. The defendant's statements to Trooper

West qualify as the admissions of a party, see Fed. R. Evid.

801(d)(2)(A), but the report itself is likely hearsay.4 According

to the report, the defendant "said that on June 28th[, 2007,] Sarah

Barton checked the camp and found that a screen had been cut and a

window had been broken from the rear of th[e] camp. She went into

the camp and discovered that the place had been trashed." When the

defendant "heard that his camp was burglarized he did not call the

police but rather he and Sarah Barton cleaned and repaired the

camp."

The report is silent as to three salient facts: when

Barton told the defendant about the break-in, when the clean-up of

the cabin took place, and when the defendant became aware that the

handgun was missing. The timing of these events is critical to the

plaintiff's theory, and the report's silence is amplified by the

almost three-month gap between the date of the murder and the date

of the telephonic interview.

4
The parties dispute whether the police report falls under
the public records exception to the hearsay rule. See Fed. R.
Evid. 803(8)(A)(iii). We need not resolve this dispute because, as
we explain in the text, the report fails to create a genuine issue
of material fact.

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 To create a genuine issue of material fact, "evidence

illustrating the factual controversy cannot be conjectural or

problematic; it must have substance in the sense that it limns

differing versions of the truth which a factfinder must resolve at

an ensuing trial." Mack v. Great Atl. & Pac. Tea Co., 871 F.2d

179, 181 (1st Cir. 1989). Although the police report indicates

that the defendant was aware when interviewed on October 8, 2007,

that the handgun had been stolen, it does not indicate, either

directly or by reasonable inference, when the defendant first

learned that fact. Thus, the report does not create a conflict

with the hard evidence (testimony of the defendant and Barton) that

the defendant did not know about the theft of the handgun until

after the murders.

To be sure, the defendant apparently told Trooper West

that he believed that the break-in occurred at some time between

June 22 (when his son left the camp) and June 28 (when Barton went

there). But the police report tells us nothing about when the

defendant formed that belief. A fortiori, the statement attributed

to the defendant by Trooper West tells us nothing about when the

defendant learned that the handgun had been purloined. On this

uncertain record, the district court did not err in entering

summary judgment for the defendant on the failure-to-report claim.

2. Failure to Secure. The plaintiff's second

substantive argument is that the defendant's failure properly to

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secure the handgun created an unreasonable risk of criminal

misconduct because of Woodbury's presence in the neighborhood of

the camp. While conceding that New Hampshire has not yet found a

common-law duty of care in the context of a homeowner's storage of

firearms,5 she nonetheless contends that such a duty exists.

The plaintiff's contention rests heavily on her rendition

of the facts. She characterizes Woodbury as a previously convicted

felon with a propensity for breaking and entering and asserts that

the defendant knew as much. She then points out that Woodbury was

intimately familiar with the hunting camp, that he knew the

location of the hidden key, that he believed the revolver was his,

and that the defendant not only knew these facts but also knew that

Woodbury was lurking in the vicinity of the camp. Furthermore, the

door to the cabin sometimes failed to lock correctly, the revolver

was not kept under lock and key, and the ammunition was left in

plain sight.

The plaintiff's version of the facts is in some respects

unsupported in the record. In other respects, it depends on

unreasonable inferences, adding one plus one to total three. To

cite one example, while the record reflects that Woodbury visited

the hunting camp several times in his youth, it also makes clear

5
New Hampshire has imposed statutory restrictions on the
storage of firearms around children (up to age 16). See N.H. Rev.
Stat. Ann. § 650-C:1. Here, however, the plaintiff's claim is
premised exclusively on the common law.

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that Woodbury was not welcome at (and did not go to) the camp after

June of 1994 (some thirteen years before the events at issue here).

To cite another example, the record is barren of any evidence that

the defendant either knew or had reason to believe that Woodbury

might be in the vicinity of the hunting camp. According to the

record, the defendant knew only that Woodbury, in May of 2007, made

an unannounced and uninvited visit to his home in Scarborough,

Maine, and that he had been working in Sebago, Maine.6

The record, read in the light most favorable to the

plaintiff, reflects the following scenario. Some thirteen years

before the murders, Woodbury had visited the hunting camp. He

knew, at that time, that a key to the cabin was hidden on the

premises, and he knew that the defendant kept a handgun inside the

cabin. There is no evidence that Woodbury used the concealed key

to effect entry into the cabin some thirteen years later, nor is

there any evidence that the defendant knew that Woodbury, in the

months (or even years) preceding the murders, was anywhere near the

camp. Based on this scenario, there is simply no principled basis

for holding, under the New Hampshire precedents, that the

defendant's unsecured storage of the handgun created "an especial

temptation and opportunity for criminal misconduct." Remsburg, 816

A.2d at 1007 (internal quotation marks omitted).

6
Sebago is at least a two-hour drive from Wentworth Location,
and Scarborough is at an even greater remove.

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 Decisions of the New Hampshire Supreme Court compel this

conclusion. The court has set a high bar for the special

circumstances exception to the general rule that there is no duty

to protect others from third-party criminal predations. See, e.g.,

Dupont, 798 A.2d at 592-93. The court has determined that the

special circumstances exception applies only when the risk and

foreseeability of criminal misconduct is very great. See, e.g.,

Remsburg, 816 A.2d at 1007 (explaining that a private

investigator's disclosure of personal information to a client

creates "an especial temptation and opportunity for criminal

misconduct" because harms such as stalking and identity theft are

sufficiently foreseeable) (internal quotation marks omitted);

Dupont, 798 A.2d at 593-94 (suggesting that liability for an

employee's death might arise when supervisors walked co-workers

outside so they could continue a heated argument, knew that one of

the co-workers had a loaded gun, suspected that the situation might

turn violent, failed to notify police, and were aware of a history

of employees bringing weapons to work); Iannelli v. Burger King

Corp., 761 A.2d 417, 418-21 (N.H. 2000) (holding that restaurant

owners could be liable for third party's assault on patrons because

management reasonably could have foreseen that a group of "rowdy,

obnoxious, loud, [and] abusive" youths claiming to be intoxicated

created an unreasonable risk of injury to fellow patrons). Sitting

in diversity, we are bound by this body of law; and the record

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here, even when construed in the light most flattering to the

plaintiff, does not show either a particularized risk of harm or a

degree of foreseeability sufficient to animate this exception.

In an effort to shift the debate away from New

Hampshire's decisional law, the plaintiff proclaims that the

reasoning of some out-of-state decisions supports a different

outcome. See, e.g., Jupin v. Kask, 849 N.E.2d 829 (Mass. 2006);

Estate of Heck ex rel. Heck v. Stoffer, 786 N.E.2d 265 (Ind. 2003).

But a federal court sitting in diversity does not have a roving

writ to sift through the decisions of the courts of all fifty

states and choose the doctrines that it finds most attractive.

Here, Erie principles require us to apply New Hampshire

law, and there is no indication that the New Hampshire Supreme

Court would discern a legally cognizable duty based on the

circumstances of this case. The plaintiff, who made a deliberate

choice to sue in federal court rather than in a New Hampshire state

court, is not in a position to ask us to blaze a new trail that the

New Hampshire courts have not invited. See Porter v. Nutter, 913

F.2d 37, 40-41 (1st Cir. 1990); Kassel v. Gannett Co., 875 F.2d

935, 949-50 (1st Cir. 1989).

III. CONCLUSION

We need go no further. Although we are sensitive to the

tragic nature of the events that underpin this case, "it is the

duty of all courts of justice to take care, for the general good of

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the community, that hard cases do not make bad law." United States

v. Clark, 96 U.S. 37, 49 (1877) (Harlan, J., dissenting) (quoting

Lord Campbell in East India Co. v. Paul, 13 Eng. Rep. 811, 821

(P.C. 1849)) (internal quotation marks omitted). We follow that

admonition here and, for the reasons elucidated above, affirm the

entry of summary judgment in favor of the defendant.

Affirmed.

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