RYE — Attorneys representing defendants sued by the owners of Rye Harbor Lobster Pound are arguing the complaint should be dismissed due to sovereign immunity protecting state agencies and officials from prosecution.
The Pease Development Authority, along with Paul Brean, the PDA’s executive director, and the Division of Ports and Harbors are named as defendants in the Rye Harbor establishment’s 13-count civil lawsuit filed in January in Merrimack County Superior Court. They are being represented by the New Hampshire attorney general’s office.
Also being sued is Geno Marconi, the longtime port director, who was placed on paid leave in April 2024.
What Rye Harbor Lobster Pound’s lawsuit alleges
Attorneys for Rye Harbor Lobster Pound alleged the co-defendants levied “harsh, anti-business policies” against the business dating back to 2021, after traffic at the state-owned marina boomed during the pandemic when customers flocked to the business for takeout orders. The business owners allege the Port Authority cut the lobster pound’s water line, the Pease Development Authority removed the business’ parking spots, and Brean and Marconi “improperly influenced the PDA and Port Authority, using their power to harm Rye Harbor Lobster Pound.”
Sylvia Cheever is the co-owner of Rye Harbor Lobster Pound and daughter of Nathan Hanscom, who co-founded the business in 1996. Their lawsuit alleges the four co-defendants violated equal protection clauses outlined in the U.S. Constitution’s 14th Amendment, violated the lobster pound’s due process rights under the state’s Administrative Procedures Act, and violated the New Hampshire Constitution by not giving the business equal protection under the law.
NH attorney general says none of claims are valid
Samuel Garland, state senior assistant attorney general, wrote “none of the plaintiffs’ claims has legs” in a May 27 motion to dismiss.
“The plaintiffs cannot obtain monetary damages as a matter of law under the (Administrative Procedure Act) or the state or federal Constitution, and their remaining claims for damages are barred by sovereign immunity or are not adequately pleaded (or both),” Garland wrote. “The plaintiffs have failed to state any viable claim under the (Administrative Procedure Act) or the state or federal Constitution that would entitle them to prospective relief. The plaintiffs’ claims against the PDA, the Division of Ports and Harbors, and Paul Brean should therefore be dismissed in their entirety.”
Garland’s motion also asks for Brean to be removed as a co-defendant in the complaint.
“If, however, any portion of the plaintiffs’ complaint survives this motion, Paul Brean should still be dismissed as a defendant. The plaintiffs have failed to allege any act that Paul Brean undertook that violated their rights under state or federal law,” the attorney general’s motion to dismiss states.
Rye Harbor Lobster Pound is one of several shack businesses at the marina facility to lease state property to run their business. Each one signs a right-of-entry agreement with the Pease Development Authority to lease the land and operate out of their small shacks.
Arnold Rosenblatt, a Manchester attorney representing Marconi, filed the Ports and Harbors leader’s motion to dismiss May 20.
“Plaintiffs’ claims against Marconi fail for two reasons. First, plaintiffs’ claims are barred by sovereign immunity (and, by extension, qualified and/or official immunity). As alleged, Marconi acted, at all relevant times, in his official capacity as the director of the Port Authority — a state agency,” Rosenblatt wrote. “Additionally, Marconi’s alleged conduct amounted to the exercise of a discretionary executive or planning function, and further involved the execution of the PDA’s lawfully enacted rules and regulations. Plaintiffs have not identified any applicable statute waiving Marconi’s immunity. Plaintiffs’ claims are therefore barred.
“Second, the complaint fails to state a claim for relief against Marconi with respect to each of the causes of action asserted against Marconi. Each of (the) plaintiffs’ claims either finds no support under New Hampshire law, fails to allege all essential elements, or impermissibly relies on legal conclusions rather than allegations of fact. As such, none states a viable claim for relief.”
Rye Harbor Lobster Pound got governor’s attention in 2021
Rye Harbor Lobster Pound’s right to sell food was briefly rescinded by Marconi in 2021. Marconi said the business’ sales had outgrown the size of the shack’s intended use at the state marine facility and that it was not allowed to sell prepared food under the terms of its concession agreement with the Pease Development Authority. Cheever created a petition, prompting then-Gov. Chris Sununu to step in and grant the business a one-year waiver to continue selling food from the lobster pound.
Marconi’s parents opened Geno’s Chowder & Sandwich Shop in Portsmouth in 1965. Cheever and Hanscom’s lawsuit alleges Marconi took action against Rye Harbor Lobster Pound due to it being a competitor to his family’s business.
The lobster pound’s lawsuit has been assigned to Judge Daniel St. Hilaire.
Marconi and his wife face felony charges
A grand jury in Rockingham County indicted Marconi last October on two Class B felony counts for allegedly tampering with witnesses and informants and falsifying physical evidence, in addition to four Class A misdemeanors for two counts of Driver Privacy Act violations and two counts of obstructing government administration.
Marconi is scheduled for trial on the six state charges beginning in early November. He is free on bail and has pleaded not guilty to the charges.
Marconi was charged a day after a Merrimack County grand jury charged New Hampshire Supreme Court Justice Anna Barbara Hantz Marconi, his wife. She faces two felony charges and five misdemeanor charges for allegedly attempting to interfere in the criminal investigation into her husband.
Hantz Marconi’s trial is scheduled to start in September, though her attorneys have attempted to have the charges dismissed.
