Reenstierna v. Currier

United States Court of Appeals
For the First Circuit

No. 16-1486

MARK S. REENSTIERNA; T.H. REENSTIERNA, LLC,

Plaintiffs, Appellants,

v.

KENNETH D. CURRIER,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph N. Laplante, U.S. District Judge]

Before

Lynch, Lipez, and Barron,
Circuit Judges.

Richard B. Reiling, with whom Bottone Reiling was on brief,
for appellant.
Russell F. Hilliard, with whom Upton & Hatfield, LLP was on
brief, for appellee.

October 13, 2017
 LIPEZ, Circuit Judge. Plaintiff-appellant Mark

Reenstierna, a real estate appraiser, was the subject of a

disciplinary hearing before the New Hampshire Real Estate

Appraisal Board ("the Board"). In that hearing, the Board

considered as evidence a report on Reenstierna's work written at

the Board's request by defendant-appellee Kenneth Currier. After

convincing the Board to reconsider an earlier unfavorable decision

and dismiss the grievance charges, Reenstierna sued Currier,

accusing him of defamation and other torts. The district court

granted summary judgment in favor of Currier, concluding that New

Hampshire's absolute witness immunity rule extends beyond

testimony provided at an administrative hearing to include

statements in the report that Currier prepared for the Board. We

affirm.

I.

Reenstierna, the president of Reenstierna LLC, works as

a real estate appraiser and consultant in New York and New England,

specializing in the appraisal of gas stations and convenience

stores. Currier, also a real estate appraiser with expertise in

gas stations and convenience stores, is licensed in Maine,

Massachusetts, New Hampshire, and New York. The two men are the

top "go-to" people in the region for parties seeking such

appraisals.

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 Cumberland Farms, a gas station and convenience store

chain, hired Reenstierna in early 2010 to appraise one of its

properties in the city of Rochester that was the subject of a

taking by the New Hampshire Department of Transportation.

Reenstierna provided his appraisal to Cumberland Farms in March.

On the signature line of the appraisal next to his then-expired

New Hampshire Certified General Real Estate Appraiser licensing

number, Reenstierna included a parenthetical notation that said,

"Renewing."1

Specifically citing Reenstierna's appraisal of the

Cumberland Farms site, an employee of the New Hampshire Department

of Transportation filed an anonymous grievance against Reenstierna

with the Board in September 2011, complaining that he was working

as a real estate appraiser without the necessary licensure. The

Board subsequently voted to investigate the complaint and

appointed a complaint officer, Mark Correnti, who asked Currier to

provide a report on Reenstierna's Cumberland Farms appraisal.

At the time Correnti hired him, Currier was a competitor

of Reenstierna's throughout New England, including in New

Hampshire. Currier had previously performed approximately twenty

1 Although Reenstierna may have been indicating to Cumberland
Farms that he had personally begun the process of renewing his
then-expired license, there is no formal designation of "Renewing"
in New Hampshire. An appraiser either possesses a valid license
or does not.

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appraisals for Cumberland Farms over the preceding decade and

remained on Cumberland Farms' list of approved appraisers from

whom the company would accept bids.2

In addition to faulting Reenstierna for performing the

appraisal without a license, Currier's report criticized the

quality of the appraisal itself, citing six flaws. After receiving

Currier's report, Correnti attempted to resolve the grievance

against Reenstierna informally in accordance with Board rules.

When Reenstierna rejected Correnti's proposal that he surrender

his license, Correnti recommended to the Board that it proceed

with a disciplinary hearing. The Board accepted the

recommendation, and a hearing was held in July of 2012.

Initially, the Board ruled that Reenstierna had violated

the Uniform Standards of Professional Appraisal Practice's "Ethics

Rule," which bars an individual from indicating that he is a

licensed appraiser when he is not.3 The Board officially

"reprimanded" Reenstierna in a "Final Decision and Order." It

further ordered him to (1) pay an "administrative fine in the

2
Since preparing the report on Reenstierna's work for the
Board, Currier has appraised at least one property for Cumberland
Farms, in 2015.
3
The Board also determined that the qualitative flaws that
Currier flagged in Reenstierna's appraisal were "minor" and that
the complaint officer charged with "prosecut[ing]" the grievance
against Reenstierna "failed to meet [his] burden of proof on these
issues beyond a reasonable doubt."

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amount of $1,000"; (2) "complete a 15-hour [industry standards]

course"; (3) "furnish a copy of the Final Decision and Order to

any current employer for whom [he was] perform[ing] services"

within ten days; and (4) "furnish [for the following year] a copy

of [the] Final Decision and Order to any employer to which [he]

may apply for work as an appraiser or for work in any capacity

which requires appraisal knowledge." The Board also "ordered that

[the] Final Decision and Order shall become a permanent part of

. . . Reenstierna's file, which is maintained by the Board as a

public document."

The disciplinary sanctions were stayed in December 2012,

however, after Reenstierna filed a motion asking the Board to

reconsider its findings. In April 2013, the Board notified

Reenstierna that it was dismissing the original complaint against

him, stating that the evidence and testimony presented were not

sufficient to establish the presence of professional misconduct.

In February 2014, Reenstierna filed a diversity suit

against Currier in the United States District Court for the

District of New Hampshire, alleging that Currier had (1) violated

New Hampshire's Consumer Protection Act, N.H. Rev. Stat. Ann.

§ 358-A; (2) defamed Reenstierna; and (3) tortiously interfered

with Reenstierna's advantageous business relations. Specifically,

he alleged that Currier knowingly and purposely submitted a false

report to the Board and that each of the purported deficiencies

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cited against Reenstierna in Currier's report constituted material

misrepresentations of fact. He further contended that Currier

falsely certified in his report to the Board that he had "no

personal interest with respect to the parties involved" or any

"bias with respect . . . to the parties involved with the

assignment."

The district court granted Currier's motion for summary

judgment, concluding that New Hampshire's absolute witness

immunity doctrine precluded the use of Currier's report to

establish liability on Reenstierna's claims.4 Reenstierna timely

appealed. We review a district court's grant of summary judgment

de novo, construing the evidence and all reasonable inferences in

the light most favorable to the non-moving party -- here,

Reenstierna. Audette v. Town of Plymouth, 858 F.3d 13, 20 (1st

Cir. 2017). "Summary judgment is appropriate where 'the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with affidavits, if any, show that there is no genuine

4The district court actually expressed its ruling somewhat
differently, stating that "the court finds that Currier is
absolutely immune from a suit based on his acceptance of the
assignment to review Reenstierna's appraisal and his analysis of
that appraisal." In reality, however, New Hampshire's absolute
witness immunity doctrine does not provide blanket immunity from
suit. Instead, the New Hampshire Supreme Court has held that the
doctrine precludes the use of certain statements in support of a
theory of liability. See, e.g., Provencher v. Buzzell-Plourde
Assocs., 711 A.2d 251, 256 (N.H. 1998); Pickering v. Frink, 461
A.2d 117, 119 (N.H. 1983); McGranahan v. Dahar, 408 A.2d 121, 124
(N.H. 1979).

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issue as to any material fact and that the moving party is entitled

to judgment as a matter of law.'" Id. at 19 (quoting Mulloy v.

Acushnet Co., 460 F.3d 141, 145 (1st Cir. 2006)).

II.

To resolve this case, we must decide if the district

court correctly applied New Hampshire's absolute witness immunity

doctrine. If it applies to the statements in Currier's report, we

must affirm. If it does not apply, we must vacate the judgment so

that Reenstierna can use the statements in the report in a trial

of his claims against Currier.

A. New Hampshire's Law of Absolute Witness Immunity

"The ability of courts, under carefully developed

procedures, to separate truth from falsity, and the importance of

accurately resolving factual disputes in criminal (and civil)

cases are such that those involved in judicial proceedings should

be 'given every encouragement to make a full disclosure of all

pertinent information within their knowledge.' . . . For a

witness, this means he must be permitted to testify without fear

of being sued if his testimony is disbelieved." Imbler v.

Pachtman, 424 U.S. 409, 439 (1976) (White, J., concurring) (quoting

1 F. Harper & F. James, The Law of Torts § 5.22, p. 424 (1956)).

In order to effectuate such full disclosure, the common law has

traditionally acknowledged the importance of "provid[ing] absolute

immunity from subsequent damages liability for all persons --

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governmental or otherwise -- who were integral parts of the

judicial process." Briscoe v. LaHue, 460 U.S. 325, 335 (1983).

Consistent with these concerns, New Hampshire has long

recognized that "statements made in the course of judicial

proceedings are absolutely privileged from liability in civil

actions." Pickering v. Frink, 461 A.2d 117, 119 (N.H. 1983)

(citing McGranahan v. Dahar, 408 A.2d 121, 124 (N.H. 1979)). This

absolute privilege "is tantamount to an immunity. It is not

conditioned on the actor's good faith." McGranahan, 408 A.2d at

124.

Invoking Briscoe, the New Hampshire Supreme Court most

recently addressed the extent of witness immunity, and whether it

should reach beyond the walls of a courtroom, in Provencher v.

Buzzell-Plourde Assocs., 711 A.2d 251, 255 (N.H. 1998). Plaintiff

Arthur Provencher had initially agreed to sell his property to the

state for a highway project. Id. at 253. If the parties could

not negotiate a satisfactory price, however, the state was entitled

to take Provencher's property by eminent domain. Id. New

Hampshire thus hired two real estate appraisal firms, both of which

valued Provencher's land at $1 million. Provencher claimed that

his land was in fact worth $7 million and refused to sell his

property. Id. The state's appraisers testified at a subsequent

condemnation hearing, where a jury ultimately valued Provencher's

property at $4 million.

- 8 -
 Provencher sued the government's appraisers, alleging

that they had breached various duties owed to him as an intended

third-party beneficiary of their contract with the state. Id.

The defendants argued that their appraisal, any statements made in

preparation for the hearing, and their testimony at the hearing

were protected by absolute witness immunity. Id. Provencher

contended that even if the appraisers' testimony at the

disciplinary hearing was protected by witness immunity, their pre-

hearing statements and reports were beyond the doctrine's safe

harbor. Id.

In deciding to extend witness immunity beyond testimony

at the judicial proceeding, the New Hampshire Supreme Court heeded

the counsel of the Supreme Court of Washington, "recogniz[ing]

that 'an expert's courtroom testimony is the last act in a long,

complex process of evaluation and consultation with the

litigant.'" Id. at 255 (quoting Bruce v. Byrne-Stevens & Assocs.

Eng'rs, 776 P.2d 666, 672 (Wash. 1989)). Noting that "it is

difficult to distinguish an expert witness's testimony from the

acts and communications upon which it is based," id., the court

again quoted Bruce:

The privilege or immunity is not limited to
what a person may say under oath while on the
witness stand. It extends to statements or
communications in connection with a judicial
proceeding. . . . If this were not so, every
expert who acts as a consultant for a client
with reference to proposed or actual

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 litigation, and thereafter appears as an
expert witness, would be liable to suit at the
hands of his client's adversary on the theory
that while the expert's testimony was
privileged, his preliminary conferences with
and reports to his client were not, and could
form the basis of a suit for tortious
interference.

Id. (quoting Bruce, 776 P.2d at 672-73).

The court next looked to the Restatement, which provides

that "[a] witness is absolutely privileged to publish defamatory

matter concerning another in communications preliminary to a

proposed judicial proceeding or as part of a judicial proceeding

in which he is testifying, if it has some relation to the

proceeding." Id. at 255-56 (quoting Restatement (Second) of Torts,

§ 588 (1977)). Importantly, the court cited comment e of section

588, which cabins the extent of the privilege by cautioning that

a witness's pre-hearing statement should only be afforded immunity

if the statement "has some relation to a proceeding that is

actually contemplated in good faith and under serious

consideration by the witness or a possible party to the

proceeding." Id. at 256 (quoting Restatement (Second) of Torts

§ 588 cmt. e (1977)) (emphasis added in Provencher). Comment e

further cautions that "[t]he bare possibility that the proceeding

might be instituted is not to be used as a cloak to provide immunity

for defamation when the possibility is not seriously considered."

Id. (quoting Restatement (Second) of Torts § 588 cmt. e). Guided

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by these authorities, the New Hampshire Supreme Court held that it

would

join those courts which have concluded that
pertinent pre-litigation communications
between a witness and a litigant or attorney
are absolutely privileged from civil liability
if litigation was contemplated in good faith
and under serious consideration by the
witness, counsel, or possible party to the
proceeding at the time of the communication.

Id. at 256.

B. Application

The parties do not dispute that the disciplinary hearing at

issue in this case constitutes a "judicial proceeding" for the

purpose of witness immunity analysis.5 Currier argues that he is

entitled to claim witness immunity because the role he played in

the Board's disciplinary process is comparable to the role played

by the appraisers hired by the state in Provencher. On its face,

there is considerable force to Currier's argument. The appraisers

in both cases participated in an administrative process provided

by statute. In Provencher, the appraisers were asked to

investigate the value of property designated for taking by the

state in eminent domain proceedings. Id. at 253. Ideally, the

appraisals commissioned by the state would provide a basis for an

5
Although the hearing was technically an administrative
adjudication, we use the phrase "judicial proceeding" in
accordance with the New Hampshire Supreme Court's language from
its case law and the Restatement (Second) of Torts.

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agreement between the landowner and the state on the property's

value. Id. If that did not happen, however, the value would have

to be determined in an administrative proceeding, informed, in

part, by the appraisals commissioned by the state. Id. In this

case, as part of a disciplinary process initiated by the Board,

Currier was commissioned to investigate and prepare a report on

Reenstierna's possible violations of Board rules and industry

standards in his Cumberland Farms appraisal. Ideally, that report

would provide a basis for a resolution of the disciplinary process

through an agreement. If that effort failed, however, the Board

would conduct a disciplinary hearing, informed, in part, by

Currier's report.

Reenstierna rejects this comparison on two grounds.

First, he asserts that the district court erred by considering

Provencher at all. Instead, he insists that the relevant precedent

is the New Hampshire Supreme Court's more recent decision in Frost

v. Delaney, 128 A.3d 663 (N.H. 2015), which he says supports the

proposition that the appropriate immunity analysis for Currier's

statements is official immunity, rather than absolute witness

immunity. "Official immunity" under New Hampshire law is a

narrower form of immunity that protects the acts and omissions of

government officials. See id. at 672 ("Under official immunity,

government officials are protected from personal liability for

those decisions, acts or omissions that are: (1) made within the

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scope of their official duties while in the course of their

employment; (2) discretionary rather than ministerial; and (3) not

made in a wanton or reckless manner."). New Hampshire's official

immunity standard is sometimes compared to the qualified immunity

standard applied to federal civil rights cases filed pursuant to

42 U.S.C. § 1983. Id.

Second, Reenstierna argues that the statements in

Currier's report are not protected by witness immunity because

litigation was not contemplated at the time he performed the

investigation and prepared his report for the Board.

1. Official Immunity

In Frost v. Delaney, Frost was charged with four

violations of New Hampshire's mortgage licensing laws on the basis

of an investigation carried out by a New Hampshire Banking

Department investigator. Id. at 666-67. After the court dismissed

both criminal and administrative charges against Frost, he sued

the investigator under § 1983, the New Hampshire Constitution, and

New Hampshire tort law. Id. at 667. The trial court dismissed

the federal claims on the basis of qualified immunity, and the

state constitutional and tort claims on the basis of New

Hampshire's official immunity doctrine.6 Id. at 668. Frost then

6
The defendants in the trial court also raised absolute
witness immunity as a defense, but the trial court did not address
this defense in its decision, disposing all of the state law claims
under New Hampshire's official immunity doctrine. See Frost v.

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appealed the dismissal of the § 1983 claims, but not the state law

claims. Id. The New Hampshire Supreme Court affirmed the trial

court's qualified immunity determination. Id. at 668-73.

This description of the Frost case indicates why

Reenstierna's reliance on it is misplaced. Reenstierna filed New

Hampshire common law tort claims against Currier. Frost filed a

federal civil rights claim under § 1983, alleging that a government

investigator violated his Fourth and Fourteenth Amendment rights

under the U.S. Constitution when she misrepresented material facts

on an application for a search warrant of his residence. Id. at

667-68. On appeal, the New Hampshire Supreme Court analyzed only

the federal law doctrine of qualified immunity under § 1983. Id.

at 668-72. It said nothing about the application of New

Hampshire's doctrine of official immunity to the out-of-court

statements of a government investigator. Nor did it say anything

about New Hampshire's absolute witness immunity doctrine.

Ignoring critical differences between the Provencher and

Frost cases, Reenstierna asks us to conclude that the New Hampshire

Supreme Court used Frost, a case applying qualified immunity to

the pre-hearing statements of an investigator facing federal civil

rights claims, to circumscribe by implication its carefully

reasoned decision in Provencher that absolute witness immunity

Sheehan, No. 216-2012-CV-00603, 2014 WL 10122655 (N.H. Super. June
9, 2014).

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applies to the pre-hearing statements of an investigator facing

state tort claims. Putting aside this implausible view of judicial

decisionmaking, a federal court sitting in diversity has no license

to reformulate state law in the manner requested by Reenstierna.7

To be sure, Reenstierna's allegation -- that Currier

unethically accepted the Board's invitation to act as an

investigator with the intent of defaming and administratively

prosecuting his prime competitor -- is a serious charge. It is

perhaps understandable that Reenstierna believes that his case

against Currier is more akin to the alleged civil rights violations

committed by the Banking Department investigator in Frost, whose

false statements led to both criminal and civil administrative

charges against Frost, than it is to the negligence and fraud

claims in Provencher, where the statements at issue were about the

value of a parcel of land. The allegedly defamatory statements in

this case could arguably inflict irreparable damage to

Reenstierna's professional reputation, an injury much more severe

than the mere disagreement over property value in Provencher.

7
Beyond Frost, Reenstierna asks us to apply the holding of
Stinson v. Gauger, 799 F.3d 833 (7th Cir. 2015), another § 1983
case, where the Seventh Circuit held that a pair of defendant-
odontologists accused of falsifying their expert reports leading
up to a murder prosecution could not assert absolute witness
immunity. Id. at 840-41. That holding was recently reaffirmed by
the court sitting en banc. See 868 F.3d 516, 528-29 (7th Cir.
2017). Reenstierna's reliance on this case, however, is similarly
misguided. Stinson, like Frost, applies federal qualified
immunity doctrine to a federal cause of action. Id. at 833.

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Nevertheless, Provencher's explicit adoption of the Restatement,

which provides that "[a] witness is absolutely privileged to

publish defamatory matter concerning another in communications

preliminary to a proposed judicial proceeding," clearly indicates

that the New Hampshire Supreme Court, mindful of the importance of

absolute witness immunity to accurate fact-finding in civil and

criminal cases, contemplated the application of that immunity to

a common law tort action such as Reenstierna's. 711 A.2d at 255-

56 (quoting Restatement (Second) of Torts, § 588 (1977)) (emphasis

added).

Still, with Frost, Reenstierna does highlight the

different treatment under New Hampshire law of the pre-hearing

statements of government investigators. Investigators facing

state tort claims enjoy absolute witness immunity for their pre-

hearing statements. As interpreted by the Supreme Court of New

Hampshire, investigators facing federal civil rights claims for

their pre-hearing statements have the benefit of only qualified

immunity. In the judgment of the New Hampshire Supreme Court,

there may be good reasons for this distinction, or it may be

problematic. Either way, this is an issue for the New Hampshire

Supreme Court to address in a future case, not us.

Our dissenting colleague argues that, rather than

applying the law as set out in Provencher, we should give the New

Hampshire Supreme Court the opportunity to reach a different result

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by certifying to that court the question of Provencher's

applicability to the circumstances of this case. Certification to

the New Hampshire Supreme Court is appropriate when a question of

state law is "determinative of the case" and "there is no

controlling precedent" from that court. Old Republic Ins. Co. v.

Stratford Ins. Co., 777 F.3d 74, 86 (1st Cir. 2015) (citing N.H.

Sup. Ct. R. 34); see also, e.g., Trull v. Volkswagen of Am., Inc.,

187 F.3d 88, 100 (1st Cir. 1999) (explaining decision to certify

where "[t]he New Hampshire Supreme Court has not yet faced the

issue"). On the question now before us, however, the New Hampshire

Supreme Court has spoken.

The Provencher court expressly recognized the divergent

views on whether absolute immunity "extends to communications that

occur prior to the initiation of judicial proceedings," and then

chose to "join those courts which have concluded that pertinent

pre-litigation communications between a witness and a litigant or

attorney are absolutely privileged from civil liability if

litigation was contemplated in good faith and under serious

consideration . . . at the time of the communication." Provencher,

711 A.2d at 255, 256. Assuming the good faith and "under serious

consideration" prerequisites are met -- which we discuss below --

the holding of Provencher squarely applies to the statements at

issue here. Of course, the New Hampshire Supreme Court is free to

reverse itself or distinguish Provencher away. However, it is not

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our prerogative, through the process of certification, to suggest

that the New Hampshire court do so. Having chosen the federal

forum for his state-law claims, the plaintiff must live with our

obligation to apply New Hampshire law as it currently stands.8

2. Litigation under Serious Consideration9

Reenstierna argues that even if the Provencher framework

applies to pre-hearing statements at issue in common law tort

actions filed against state investigators such as Currier, its

holding is inapplicable to this particular case because litigation

was not "under serious consideration" at the time Currier conducted

his investigation and wrote his report. Provencher, 711 A.2d at

256.

Reenstierna directs us to the timeline of Currier's

investigation and the Board's decisionmaking process, noting that

Correnti hired Currier, and Currier completed his report, before

8
Because our decision to certify, or not, must turn on the
current state of New Hampshire law, our colleague's lengthy
discussion of Massachusetts law is not directly pertinent. As to
the dangers that might be thought to attend absolute immunity, the
Provencher court recognized that the protection applies "without
inquiry into a defendant's motives," 711 A.2d at 255 (quoting
McGranahan v. Dahar, 408 A.2d 121, 124 (N.H. 1979)), but
nonetheless chose to extend full immunity to certain pre-
litigation communications to "further the goals of encouraging
free and unfettered testimony during judicial proceedings," id. at
256-57 (internal quotation marks omitted).
9
That the pertinent proceeding was "contemplated in good
faith" is conceded in this case, and the good-faith requirement
apparently was also undisputed in Provencher, as it was not
discussed.

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the Board decided to initiate Reenstierna's disciplinary hearing.

He also cites testimony from the Board President that the Board

actually decided to commence the administrative hearing based

primarily upon Currier's report. Because Currier's report induced

the Board to take action, Reenstierna contends, litigation could

not have been "under serious consideration" at the time it was

prepared, and, hence, the report is beyond the scope of

Provencher's immunity doctrine.

Reenstierna reads Provencher too narrowly. The state

statute that framed the progression of the eminent domain

proceedings in Provencher, the Eminent Domain Procedure Act

("EDPA"), N.H. Rev. Stat. Ann. § 498-A, is analogous to the New

Hampshire regulations that structured the Board's disciplinary

process involving Reenstierna. In Provencher, the New Hampshire

Supreme Court noted that EDPA requires the state to hire an

appraiser before it makes an offer to purchase property, and that

the appraisal "often serves as the basis" of the state's initial

offer. 711 A.2d at 256. The government may initiate a

condemnation proceeding only after a property owner rejects the

state's purchase offer. Id.

When an individual files a grievance against an

appraiser such as Reenstierna, state regulations require the Board

to appoint a complaint officer (here, Correnti) if the allegation

in the grievance constitutes a violation of state law or the

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Uniform Standards of Professional Appraisal Practice. N.H. Code

Admin. R. Ann. Rab 203.02(b)(2) (2017).10 When an appraisal is

included as part of the complaint, as it was here, the regulations

further require the complaint officer or an investigator to

evaluate the appraisal for conformity with professional standards.

Id. at 203.02(b)(4). Because he was not an expert in convenience

store appraisals, Correnti hired Currier to perform this task.

The regulations instruct the complaint officer to issue a final

report, including any investigatory reports, and require the Board

to either (1) dismiss the complaint; (2) accept an informal

resolution if the complaint officer was able to negotiate such a

resolution with the accused appraiser; (3) commence an

adjudicative hearing if the evidence suggests misconduct and an

informal resolution was not established; or (4) investigate the

matter further. Id. at 203.02(b)(7). When Correnti hired Currier

to review Reenstierna's appraisal, a judicial proceeding "was

contemplated in good faith and under serious consideration" by the

Board within the meaning of Provencher. 711 A.2d at 256. As the

Provencher Court said, "[s]ubjecting a party's witnesses to

liability for their pre-litigation statements in cases of this

10 Currier wrote his report prior to New Hampshire amending
the relevant section of its Code of Administrative Regulations.
Because the relevant amendments only altered the section numbering
and not the substance, we cite the relevant regulations in their
current form.

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nature would undoubtedly have a perverse effect on the initiation

and presentation of cases." Id. at 257 (emphasis added).

Our dissenting colleague suggests that the facts here

are distinguishable from Provencher with respect to the "under

serious consideration" criterion because the State and property

owner there had signed a pre-appraisal agreement acknowledging

that eminent domain proceedings would occur if the parties could

not agree on a purchase price. That agreement, however, was merely

a particularized version of the governing statutory scheme

requiring appraisals and negotiation before the state may begin

the condemnation process. See N.H. Rev. Stat. § 498-A:4.

As described above, here, too, the governing framework

explicitly includes a proceeding as one possible outcome after an

investigatory review of a complaint involving an appraisal. The

absence of an agreement between the parties incorporating the

regulatory scheme does not make a judicial proceeding merely a

"bare possibility" -- the status the Restatement contrasts with

"under serious consideration" -- even if such an agreement could

have added to the parties' awareness that a proceeding might occur.

Provencher, 711 A.2d at 256 (quoting Restatement (Second) of Torts

§ 588 cmt. e). To the contrary, once an appraisal review is

triggered by a complaint, the prospect of a proceeding inevitably

looms large for the parties. Hence, on the spectrum between

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seriously considered and a mere possibility, the likelihood of

litigation in this case is well within Provencher's scope.

III.

After carefully considering Reenstierna's contrary

arguments, we agree with the district court that Currier's

statements in his report are shielded in this action by New

Hampshire's absolute witness immunity doctrine as set forth in

Provencher. When it decided Provencher, the New Hampshire Supreme

Court explicitly noted that it was adopting an absolute witness

immunity rule that applied to allegedly defamatory pre-hearing

statements. Id. at 256. In this diversity action, we are bound

to implement that choice.

Affirmed.

--Dissenting Opinion Follows--

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 BARRON, Circuit Judge, dissenting. There is no question

that New Hampshire law confers absolute immunity on those who

appear as witnesses in judicial proceedings and on those who

prepare reports in anticipation of such proceedings. This case

requires us to decide, however, a distinct question concerning the

scope of that immunity: whether it extends to the purely

investigative acts of those whom the State retains to help it

decide whether to initiate the kind of judicial proceedings through

which private parties may be sanctioned for their wrongdoing.

In my view, it is a mistake to answer this question in

the affirmative without first finding out whether the New Hampshire

Supreme Court agrees. For, while Provencher v. Buzzell-Plourde

Associates, 711 A.2d 251 (N.H. 1998), construes the scope of the

State's witness immunity broadly, that case simply did not involve

facts that implicated the State's interest in promoting

accountable government -- and guarding against investigative abuse

by law enforcement officials -- in the way that the case before us

necessarily does. Thus, I would certify the question of whether

witness immunity applies on the facts before us to the New

Hampshire Supreme Court.

I.

On the surface, I can see how Provencher might be thought

to require the dismissal of this suit on the basis of witness

immunity. Provencher held, after all, that, due to the possible

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eminent domain proceeding in the offing, litigation "was

contemplated in good faith and under serious consideration" when

New Hampshire requested the appraisals from the appraisers that

the State had retained. Id. at 256. As a result, Provencher ruled

that witness immunity protected those appraisers, such that the

suit against them for what their appraisals said could not go

forward. Id.

But Provencher did not conclude that witness immunity

applied to protect the appraisers in that case simply because the

State knew that there eventually might be a judicial

proceeding -- namely, the eminent domain proceeding that the State

might choose to commence. Instead, the New Hampshire Supreme Court

provided a detailed explanation for why it concluded that, given

the particular facts of that case, litigation was "seriously

contemplated" at the time that the appraisals were prepared. See

id. at 255-56. And, in doing so, Provencher described the case in

terms that suggest to me that the New Hampshire Supreme Court might

view quite differently a case like this one, involving as it does

a claim to witness immunity for a law enforcement official's

investigation into whether there was sufficient evidence of

private wrongdoing to provide the predicate for initiating

judicial proceedings at which discipline might be meted out.

Specifically, in Provencher, the New Hampshire Supreme

Court found a judicial proceeding to be "seriously contemplated,"

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such that witness immunity applied, only after first pointing to

a pre-appraisal agreement between the State and the owner of the

property that was the subject of the appraisals. Id. at 256.

Provencher explained that this agreement "specifically stated that

if the parties could not agree on a purchase price, then the State

shall initiate an eminent domain proceeding to acquire the property

and determine the purchase price in accordance with [the eminent

domain statute]." Id. (emphasis added). In addition, the New

Hampshire Supreme Court noted that the property owner conceded

that the agreement specifically provided that the State would

commence eminent domain proceedings if voluntary negotiations

between the parties failed. Id. And, finally, the New Hampshire

Supreme Court indicated that the Eminent Domain Procedure Act made

clear that the State could commence "condemnation proceedings"

only after making an offer of purchase based on an appraisal. Id.

These particular features of Provencher showed that,

before the State sought the appraisals at issue, the State

apparently had done whatever investigation it needed to do in order

to decide that it would take the property via eminent domain, if

necessary. Otherwise, the State would not have been in a position

to represent in the agreement with the property owner that it would

take the property if the property owner refused to sell.

Accordingly, in Provencher, there could be no doubt that -- quite

apart from what the appraisals might say -- the State was

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"seriously contemplating" a judicial proceeding when the

appraisals at issue were prepared, as the State could only effect

through a judicial proceeding the taking that it had already made

clear that it was willing to pursue.

In this way, the facts of Provencher simply did not

require the New Hampshire Supreme Court to decide whether it would

extend witness immunity to a state-retained investigator who had

been hired to investigate whether a private citizen had engaged in

the kind of misconduct that could be sanctioned only through

judicial proceedings. For, in such a case, involving a state

investigation into possible private misconduct, the State could

not -- apart from what the investigator actually found through his

investigation -- have a sufficient basis for knowing whether it

would have an interest in commencing a judicial proceeding at all.

Yet, in this case, we are confronted with just the kind

of claim to absolute immunity for a law enforcement investigation

that was not presented in Provencher. As the plaintiff in this

case points out, "[the appraiser who seeks witness immunity] was

serving as an investigator for the [New Hampshire Real Estate]

Board, an administrative arm of the State, at the time of his

subject transgressions[,]" and the Board in turn "relie[d] on the

investigation to decide whether to commence a disciplinary

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proceeding."11 Accordingly, it is not clear to me that, just

because Provencher ruled that the appraisals in that case were

prepared in contemplation of a judicial proceeding, the New

Hampshire Supreme Court would conclude that this appraisal was,

too.12

11This possible basis for distinguishing Provencher also was
raised -- but never directly addressed -- by Provencher itself.
One of the two arguments that Provencher identified as having been
presented by the plaintiff in that case with respect to absolute
immunity was whether that immunity applies to a report that
"causes" the judicial proceeding. See 711 A.2d at 253.
Provencher, however, said nothing directly about that issue --
namely, whether the appraisals at issue "caused" the proceeding -
- in the course of ruling as it did.
12 I do not mean to suggest that, in Provencher, the judicial
proceeding was certain to happen or that the appraisals could not
play any role in determining whether it would. The appraisals
might have affected the property owner's willingness to accept the
State's offer of purchase, and there would have been no need for
a judicial proceeding if the property owner were willing to sell.
In addition, the State could have learned something from the
appraisals that could have led the State to retreat from its
previously expressed commitment to acquire the land by taking it
if necessary. Nevertheless, nothing in the record suggests that
the State was looking to the appraisals in order to decide whether
to take the coercive action that could necessitate the relevant
judicial proceeding. The State instead was using the appraisals
merely to facilitate the acquisition of the property that the State
had already made clear that it was willing to pursue, through a
judicial proceeding if necessary. And that is presumably because
the State's own prior investigation into the property had led it
to see the need for initiating a taking in the absence of a sale.
For that reason, Provencher is quite unlike the present case, in
which the State's interest in ever initiating a judicial proceeding
is seemingly entirely dependent on the outcome of the preliminary
law enforcement investigation that the appraiser who seeks witness
immunity has been retained by the State to carry out.

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 II.

Adding to my doubts on this score is the fact that the

New Hampshire Supreme Court has elsewhere stated that

qualified -- and not absolute -- immunity is generally "sufficient

to protect [State] officials in the exercise of their duties."

Belcher v. Paine, 612 A.2d 1318, 1323 (N.H. 1992) (citing Burns v.

Reed, 500 U.S. 478, 486 (1991)); see also N.H. Rev. Stat. Ann.

§ 99-D:1 (legislatively adopting qualified immunity for state

agency officers, trustees, officials, and employees). In fact,

the New Hampshire Supreme Court has even held that the one class

of State law enforcement officials that it has identified as

needing absolute immunity -- namely, prosecutors -- needs only a

qualified immunity to protect its members in the performance of

what the New Hampshire Supreme Court has described as their "purely

investigative" functions. Id. at 1324-25.

The New Hampshire Supreme Court has explained in this

regard that a criminal case has not entered its "judicial phase"

during the period in which law enforcement is merely investigating

whether a crime has been committed. Id. For that reason, the New

Hampshire Supreme Court has held that there is no need to provide

prosecutors with the more complete protection that flows to them

-- as an offshoot of the absolute immunity that judicial officers

enjoy in performing their judicial functions -- once an

investigation turns up sufficient evidence of criminal wrongdoing

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to provide the predicate for the criminal charges that would bring

the case into its "judicial phase." Id.

In light of these aspects of New Hampshire law, it is

not at all clear to me that New Hampshire would wish to give its

investigating law enforcement officials an absolute rather than a

qualified immunity in performing "purely investigative" duties.

These law enforcement officials may well be called as witnesses in

the event that their investigations turn up sufficient evidence of

wrongdoing to lead the State to commence an action that would

trigger what might be described as the case's "judicial phase." I

am not convinced, however, that the New Hampshire Supreme Court

would conclude that this fact alone necessarily entitles such

investigators to witness immunity for even "purely investigative"

actions. Otherwise, it would seem that even police officers could

claim absolute immunity in performing their investigative

functions, notwithstanding the New Hampshire Supreme Court's

conclusion that qualified immunity is generally "sufficient to

protect [State] officials in the exercise of their duties."

Belcher, 612 A.2d at 1323 (citing Burns, 500 U.S. at 486).

Moreover, I note that a relatively recent case from

Massachusetts suggests to me that it is a mistake to assume that

the New Hampshire Supreme Court would treat that state's law

enforcement officials as merely a species of prospective witnesses

for purposes of determining whether they are entitled to absolute

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(rather than merely qualified) immunity in conducting

investigations into private wrongdoing. And, of course, New

Hampshire has looked to Massachusetts in determining the contours

of its own absolute immunity law. See McGranahan v. Dahar, 408

A.2d 121, 124 (N.H. 1979) (citing Aborn v. Lipson, 256 N.E.2d 442

(Mass. 1979)).

The case I have in mind is Dear v. Devaney, 983 N.E.2d

240 (Mass. App. Ct. 2013). It concerned whether, under

Massachusetts's absolute privilege for witness statements,

allegedly defamatory statements made by police officers in

reporting their investigation of a nightclub's entertainment

license violation were absolutely privileged. Id. at 242-45.

In that case, police officers who had been assigned to

assist a state licensing board in deciding whether to suspend a

nightclub's license prepared an investigative report that

contained allegedly defamatory statements. Id. at 242-43. After

the police officers provided their report to the licensing board,

a disc jockey who the report said was operating a promotion company

that was staging events that posed a danger to public safety sued

the police officers for defamation. Id. at 243. The police

officers then asserted Massachusetts's state law witness privilege

-- which usually is absolute -- as a defense against that suit.

Id. at 244.

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 The Massachusetts Court of Appeals explained that

Massachusetts's absolute witness privilege for statements made in

the course of a judicial proceeding -- much like New Hampshire's

absolute witness immunity -- does extend "prior to the actual

commencement of the judicial part of the proceeding[]," so long as

the proceeding "is contemplated in good faith and . . . is under

serious consideration". Id. at 246 (quoting Sriberg v. Raymond,

345 N.E.2d 882, 884 (Mass. 1976)). And, in applying that

Provencher-like standard, Dear also made clear -- quite in accord

with the way that Provencher applies that standard -- that this

privilege has been extended to "pretrial materials prepared by

prosecutors and other lawyers," as well as to "witness statements

made to the police," at least when they are made "in the context

of a proposed judicial proceeding." Id.

But, Dear then went on to point out that "[a]n absolute

privilege has not . . . been extended to police officers' own

investigatory reports." Id. And thus Dear shows that the same

standard Provencher applied is one that has been quite comfortably

understood not to require immunity for law enforcement's

investigatory reports. In this connection, Dear cited to cases

holding that statements made by police officers in the course of

investigations were only conditionally privileged. See Seelig v.

Harvard Coop. Soc'y, 246 N.E.2d 642 (Mass. 1969). Dear also relied

on Buckley v. Fitzsimmons, 509 U.S. 259 (1993), which held -- in

- 31 -
accord with the way that New Hampshire law treats prosecutorial

immunity as a matter of state law -- that, under 42 U.S.C. § 1983,

prosecutors enjoy absolute immunity only during the judicial, and

not the purely investigative, phase of a criminal case. Dear, 983

N.E.2d at 246 (quoting Buckley, 509 U.S. at 273).

In laying out these principles, Dear did not "rule

categorically on the privileged status of police investigatory

reports in general." Id. at 246 n.7. But, Dear did note that

cases in other jurisdictions "have mostly treated police reports

under the rubric of a qualified privilege." Id. (citing Marjorie

A. Shields, Annotation, Immunity of Police or Other Law Enforcement

Officer from Liability in Defamation Action, 100 A.L.R. 5th 341,

377-82 (2002)). Dear then ruled that the statements made by police

officers in the investigatory report at issue in that case were

entitled to only a qualified, and not an absolute, privilege under

Massachusetts law. Id. at 246-47. Dear reasoned that the

statements "were made during the investigation, not the

prosecution, of the license suspension proceedings. They were

made by police officers, not lawyers or prosecutors. For the most

part, the report does not contain witness statements but the

officers' own speculation or recounting of unidentified hearsay."

Id. at 246.

The facts of Dear are by no means identical to those

presented here. Dear held that "an absolute privilege does not

- 32 -
extend to statements made by police officers so far removed from

any quasi judicial proceedings that would test the truth or falsity

of such assertions." Id. And, unlike in our case, the party

allegedly defamed by the investigative report in that case was not

the party against whom the license suspension proceeding was

contemplated. See id. at 246-47. In consequence, the subject of

the investigative report there would not have had a chance -- in

the way that the plaintiff in the present case would -- to "test

the validity" of the offending statements at the contemplated

licensing board proceeding. Id. at 247. Moreover, the

investigators in Dear were police officers, and thus governmental

employees. Here, of course, that is not the case. The

investigator who seeks absolute immunity is a private citizen whom

the State has retained for this particular investigation.

But, these distinctions aside, Dear did note that, at

the time that the police officers prepared the report in that case,

they were acting as investigators working for the state's licensing

board. Id. In fact, the police officers apparently undertook the

investigation as agents of the state's licensing board with an eye

towards a possible suspension of the nightclub's license. Id. at

242. And, Dear noted, too, that one of the police officers

testified that the information that he gathered for the report

uncovered information that could have been used to bring criminal

- 33 -
charges against the disc jockey, even though the officer chose not

to do so. Id. at 247.

Thus, in my view, Dear at least suggests this much:

investigative reports prepared for the government in advance of

either a future licensing proceeding or a future criminal case are

not necessarily entitled to an absolute privilege. Indeed, Dear

represents that there is apparently little support for a contrary

conclusion in the precedents of any state. In consequence, I see

no reason to be certain that New Hampshire would approach the

question whether absolute witness immunity extends to the

investigative acts of those whom the state calls upon to help it

enforce the law any differently from the way that the Massachusetts

Court of Appeals did in Dear and that, apparently, most states do.

And, if that is so, then Provencher can hardly be said to be

controlling here.

III.

To be sure, the defendant in this case is not a state

employee. He is a private citizen whom the State retained to

assist in its investigation of a licensee's alleged misconduct.

And states often reach out to such private actors for similar

investigative assistance in policing the professions. That

feature of this case may distinguish it from others involving state

law enforcement investigators -- such as, perhaps, cases that look

more like Dear.

- 34 -
 Nevertheless, I think it important to recall that the

plaintiff in this case contends not only that he was defamed by

the allegations lodged against him by the investigator whom the

State retained to investigate the possible wrongdoing but also

that this state-retained investigator was a direct competitor of

his. He thus alleges that the investigator who seeks an absolute

immunity for his investigative acts is hardly a person well

positioned to perform them on behalf of the State in a

disinterested manner. Those allegations -- whether supported by

the record or not -- are a reminder of the dangers that can attend

the conferral of absolute immunity on those whom the state chooses

to arm with significant power to ferret out private wrongdoing,

even when those investigators are not full-time employees of the

state.13

Thus, due to the well-known tendency of absolute power

to corrupt absolutely, I see no reason to risk being wrong by

expansively construing the scope of New Hampshire's witness

immunity to extend beyond the facts of Provencher to encompass

this case, too. Instead, I believe it appropriate for us to take

13
Further, no party makes the argument that qualified
immunity would not apply to a contractor like Currier, and the
statute codifying official immunity in New Hampshire applies not
only to employees but also to "officials" and "officers." So,
just as the parties appear to accept that the proceeding here is
"judicial," they also appear to accept that if witness immunity
does not apply, at least official immunity -- as opposed to no
immunity at all -- does.

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the more cautious approach of certifying the question to the New

Hampshire Supreme Court so that it may weigh for itself the

competing interests that are at stake in a case of this special

sort and then fashion a rule in response. For these reasons, I

respectfully dissent.

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