Dartmouth has filed a motion for summary judgment, in which a judge decides a case without a full trial, in the current alumni lawsuit against the College, Robert Donin, the College's general counsel, said in an interview with The Dartmouth on Monday. The suit is the second alumni lawsuit filed against the College in less than two years.
In this lawsuit, B.V. Brooks '47, John Steel '54, Kenneth Clark, Jr. '67, Marisa DeAngelis Kane '83, John Plunkett '57, Douglas Raichle '66 and Robert Reed '59 allege that the College has violated what they believe to be a contractual agreement made in 1891 guaranteeing parity between alumni-elected and Board-appointed members of the Board of Trustees.
The deadline for the plaintiffs to file a response to the motion is Sept. 4, Donin said. Both Donin and Eugene Van Loan, the plaintiff's attorney, said they expect that the judge will then set an oral hearing to decide whether or not the case will go to trial.
Although Van Loan told The Dartmouth in April that he was considering filing a motion for summary judgment on behalf of the plaintiff, on Monday he said that the plaintiff's next step will be to respond to the College's motion and then wait for oral arguments.
The College's motion for summary judgment argues that the case should be dismissed under two main arguments, Donin said.
First, the defense maintains that the principle of res judicata bars the plaintiffs from pursuing the current lawsuit, contending that it is based on claims that were already settled in the agreement to dismiss the previous suit, which was brought by the College's Association of Alumni.
The Association agreed to the dismissal after alumni voted for a new executive board, the members of which were in favor of dismissing the suit.
"This is the same case, orchestrated by the same person, namely John MacGovern ['80], as the case that the court dismissed with prejudice last year," Donin said in an interview with The Dartmouth. "If different individuals who are organized and financed by [MacGovern] can repeatedly assert the same claims, than this lawsuit will never end."
Van Loan told The Dartmouth that the College's point surrounding res judicata would only be legally valid if the College could prove that the seven plaintiffs controlled the Association of Alumni's original lawsuit.
Supporting documents filed by the College state that MacGovern recruited all seven plaintiffs via e-mail or telephone, beginning less than a week after the candidates who pledged to end the lawsuit, including current Association President John Mathias '69, won all of the seats on the Association's executive board.
In addition, the documents contend that all seven plaintiffs had made donations to the Hanover Institute, which funded the first lawsuit against the College.
"The critical thing that the College would have to show is that parties in the second lawsuit controlled the first lawsuit," Van Loan said. "It is very clear that they provided financing, but they did not control the litigation."
Van Loan added that he thinks that, because the Association agreed to the lawsuit's dismissal, it was made clear that neither the plaintiffs nor the Hanover Institute, the nonprofit organization of which MacGovern is president, were in control of the first lawsuit.
"You can't ban the new plaintiff just because an old plaintiff lost," he said. "It's incumbent on Dartmouth to show that new plaintiffs, or the Hanover Institute, really did control the old suit."
The motion also alleges that the seven alumni plaintiffs in the suit lack the standing to sue, as the Association of Alumni has not authorized the individual alumni who brought the current lawsuit to litigate on its behalf.
In court documents obtained by The Dartmouth on Monday, the defense argues that, because the 1891 agreement was made with the Association, the plaintiffs lack standing to sue.
Van Loan told The Dartmouth that the disputed 1891 agreement was made for the benefit of all alumni, regardless of who negotiated it.
"If it wasn't for the benefit of the alumni on a whole, who is it for?" Van Loan said. "The law says a party can make a contract that is intended to be for the benefit of some other party or parties, and under certain circumstances, third party beneficiaries can enforce the contract even if the original contracting party declines to do so."
The defense, however, says that there is a distinction between a contract that is negotiated with the specific intent to benefit a third party, and one that might incidentally affect a third party, but was not primarily intended to provide such a benefit.
The plaintiffs "are at most incidental beneficiaries' with no standing to enforce the alleged contract," the College's motion of law in support of summary judgment states.
The College's memo of law in support of the summary judgment states clearly that the defense believes both MacGovern and the Hanover Institute were a driving force in both lawsuits.
"[MacGovern] has participated in every step of this serial litigation, reviewing draft court papers and communicating regularly in conversations he claims are privileged with the Association's counsel in the Prior Lawsuit and with plaintiffs counsel in the Current Lawsuit," the document states.
The memo of law in support of summary judgment also states that the College does not agree with the assertion that the 1891 agreement is legally binding.
In February 2008, the Grafton County Superior Court refused to grant the College's motion of dismissal in the first alumni lawsuit, in which the Association of Alumni was the plaintiff, The Dartmouth previously reported.
None of the alumni parties named in the lawsuit could be reached for comment.
