Veale et al v. Furness et al

Filing 119

///ORDER denying as moot 20 Motion to Dismiss; granting 27 Motion to Dismiss; denying as moot 28 Motion to Dismiss; granting 37 Motion to Dismiss; granting 43 Motion to Dismiss; granting 50 Motion to Dismiss; denying as moot 62 Motion to Dismiss; granting 63 Motion to Dismiss; granting 69 Motion to Dismiss; denying as moot 73 Motion to Dismiss; granting 79 Motion to Dismiss. So Ordered by Chief Judge Joseph N. Laplante.(jna)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
David T. Veale and Scott W.
Veale
v.

Civil No. 10-cv-147-JL
Opinion No. 2012 DNH 029

Robert T. Furness, Apple Tree
Animal Hospital, Tufts University
Steven Rowell, Windham Veterinary
Clinic, Stephen Angell, Angell
Animal Medical Center, Megan
Sullivan, New England Veterinary
Oncology Group, LLC, Jeff
Philibert, Animal Medical Center,
Veterinary Emergency Specialty
Center of New England, Veterinary
Emergency Center of Manchester,
Capital Area Veterinary Emergency
Center, Emergency Veterinary
Clinic of the Seacoast
MEMORANDUM ORDER
Plaintiffs David and Scott Veale, proceeding pro se, have
brought this suit against a number of veterinary professionals
and organizations who, they allege, committed malpractice that
resulted in the death of their dog, Elsie.

In addition to state-

law claims for breach of contract, negligence, veterinary
malpractice, bailment, and fraud, the Veales have asserted
federal claims for conspiracy to interfere with their civil
rights under 42 U.S.C. § 1985(3) and violations of the Racketeer
Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §
1961 et seq.

Defendants have moved to dismiss the suit, arguing,

among other things, that the Veales’ complaint fails to state a
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claim under federal law, see Fed. R. Civ. P. 12(b)(6), and that,
because at least one plaintiff and one defendant are citizens of
the same state, this court lacks subject-matter jurisdiction over
the remaining state-law claims, see 28 U.S.C. § 1332(a)(1).

For

essentially those reasons, the court dismisses the case.

I.

Applicable legal standard
To survive a motion to dismiss under Rule 12(b)(6), the

plaintiff’s complaint must make factual allegations sufficient to
“state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

“A claim has

facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”

Id. at 1940.

In ruling on such a motion, the court must accept as true all
well-pleaded facts set forth in the complaint and must draw all
reasonable inferences in the plaintiff’s favor.

See, e.g.,

Martino v. Forward Air, Inc., 609 F.3d 1, 2 (1st Cir. 2010).
Similarly, when evaluating a motion to dismiss for lack of
jurisdiction under Rule 12(b)(1), the court “accept[s] as true
all material allegations of the complaint, and construe[s] the
complaint in favor of the complaining party.”

Peterson v. United

States, 774 F. Supp. 2d 418, 421 (D.N.H. 2011) (quoting Warth v.
Seldin, 422 U.S. 490, 501 (1975)).

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However, “the burden lies

with the plaintiff, as the party invoking the court’s
jurisdiction, to establish that it extends to his claims.”

Id.

(citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
377 (1994)).
The following background summary is consistent with that
approach.

II.

Background
In mid- to late September 2006, Elsie, a 10-year old English

setter belonging to plaintiffs David and Scott Veale, developed a
serious pyrothorax infection which caused a great deal of pus and
swelling to accumulate in her chest and around her lungs.

The

Veales brought Elsie to Dr. Robert Furness, a veterinarian at
Apple Tree Animal Hospital in Hopkinton, New Hampshire.

This,

they say, was a mistake--Dr. Furness, motivated by “group hatred
toward the Plaintiffs because of who they are and their false
reputations,” conspired with “others” to harm Elsie.

Among other

things, Dr. Furness allegedly misdiagnosed Elsie with an infected
uterus, prescribed unnecessary medication, and performed
unnecessary surgery to remove her uterus.

During this surgery,

Dr. Furness either intentionally or negligently caused lesions to
Elsie’s spleen, liver, kidney, heart, and lungs.
Immediately after the surgery, the Veales picked up Elsie
from Apple Tree and took her to Tufts University’s Hospital for

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Small Animals to obtain a second opinion.

The personnel at Tufts

told the Veales that Elsie was in very critical condition, and
would die if not treated for her chest infection and the injuries
suffered during surgery.

Over the next several days, Tufts

personnel stabilized Elsie and contacted Dr. Furness.

They then

performed an additional surgery on Elsie “to straighten a few
things out.”

The surgery appeared to have gone well.

However,

when the Veales picked up Elsie from Tufts, they were not told
about any test results or recommended follow-up treatments; nor
did Tufts provide them with a copy of Elsie’s records.
For the next several months, Dr. Stephen Angell of Windham
Animal Hospital in Brattleboro, Vermont treated Elsie.

He did

not provide the Veales with any opinion about what had happened
to Elsie.

The Veales remained concerned about Elsie’s condition,

and contacted a Dr. Whalen at Tufts regarding those concerns.
After Tufts finally sent Elsie’s records to the Veales in March
2007, they discovered that, in November 2006, Tufts had received
test results suggesting that Elsie should have received further
x-rays to monitor the progress of her internal injuries.
On Friday, March 23--within a week of receiving the records-the Veales noticed that Elsie was becoming weak and was “not her
usual self.”

They immediately brought her to the Capital Area

Veterinary Emergency Center (“CAVEC”) in Concord, New Hampshire,
which referred them to Dr. Megan Sullivan at Angell Animal

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Medical Center (“AAMC”) in Boston, Massachusetts.

After

examining Elsie, Dr. Sullivan informed the Veales that Elsie had
developed very serious stage V leukemia.

She told them that it

would cost “thousands and thousands of dollars” to begin treating
her for the cancer, and recommended that they arrange to have
Elsie euthanized.

When the Veales asked that AAMC perform an

ultrasound and urinalysis, Dr. Sullivan told them that AAMC did
not have enough time to do any further tests or treatments to
help save Elsie at that time.

She also told the Veales that she

did not believe the cancer had been caused by anything Dr.
Furness or Tufts had done.
The Veales then brought Elsie to the Veterinary Emergency &
Specialty Hospital in South Deerfield, Massachusetts, which
agreed to perform the ultrasound.

The ultrasound revealed

numerous unusual lesions in Elsie’s spleen and on her liver.
Armed with these results, the Veales brought Elsie to Dr. Jeff
Philibert at the New England Veterinary Oncology Group (“NEVOG”).
Dr. Philibert recommended a cancer treatment plan for Elsie.
After the first treatment, Elsie had a mild reaction that caused
bleeding from her nose.

Dr. Philibert nonetheless recommended

further treatment, which caused additional serious reactions,
including additional bleeding.
NEVOG advised the Veales to take Elsie to the Animal Medical
Center (“AMC”) in Nashua, New Hampshire for further evaluation.

5

AMC allegedly told the Veales that it had the largest blood bank
supply in New Hampshire, and that it would be able to treat Elsie
for her cancer.

Nonetheless, the day after Elsie arrived, AMC

called the Veales to ask whether they knew Elsie’s blood type, as
it had given her some “bad blood” to which she had an adverse
reaction.

AMC further told the Veales that it was “not sure

whether it was the right blood or not, or what blood type Elsie
had.”

The Veales allege that Elsie contracted a serious blood

disease due to this “bad blood.”

AMC asked them to pick up Elsie

and take her directly to the Veterinary Emergency and Specialty
Center of New England (“VESCONE”) in Waltham, Massachusetts.
VESCONE admitted Elsie and performed several tests.

It

discovered that Elsie had been suffering for some time from a
serious bladder infection, which had not been treated.

It was

unable, though, to find or match her blood type, and therefore
was unable to begin a treatment plan for her blood disease.

The

Veales again picked up Elsie and took her to the Veterinary
Emergency Center of Manchester, New Hampshire (“VECM”).

VECM was

able to immediately match Elsie’s blood type, and gave her a
transfusion.

It told the Veales, however, that it had no other

means of treating her, and recommended that she be euthanized.
Not long thereafter, the Veales brought Elsie back to CAVEC
in Concord, after CAVEC told them that it had the right blood
type and could provide the additional treatment Elsie needed to

6

survive.

After examining Elsie, however, CAVEC decided it would

not treat her, and referred the Veales to Emergency Veterinary
Clinic of the Seacoast (“EVCS”) in Portsmouth, New Hampshire.
EVCS completed a blood transfusion for Elsie, but told the Veales
that it could not do anything else for her, either.

It

recommended that they take Elsie back to Dr. Phillibert and NEVOG
for further evaluation.
The Veales instead brought Elsie to Cornell University,
which recommended that she be euthanized due to her serious
condition.
down.

The Veales finally agreed to this, and Elsie was put

Cornell then performed a necropsy that revealed that Elsie

had a fatal blood disease, which the Veales allege she contracted
from the transfusion of “bad blood” she received at AMC.

That

disease had gone undiagnosed by all of the various veterinary
professionals that examined Elsie after her visit at AMC.
The Veales subsequently filed the present suit against
nearly all of the individuals and entities who provided care to
Elsie from September 2006 onward.

They allege that defendants

were engaged in a broad-ranging conspiracy reaching across state
lines.

Among other things, they allege, defendants chose not to

provide appropriate veterinary treatment for Elsie, failed to
document all of Elsie’s ailments and their causes, and concealed
information regarding Elsie’s condition from them--including the
alleged connections between Elsie’s conditions and the treatments

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she had previously received--all in order to escape liability for
their own wrongdoing.

In addition, defendants provided Elsie

with different treatments than those outlined in their original
estimates and agreements, not only to hide their wrongdoing, but
also in order to mistreat both the Veales and Elsie.

All this,

in addition to causing Elsie’s death, caused the Veales to incur
tens of thousands of dollars in unnecessary veterinary expenses.

III.

Analysis
A.

Conspiracy to interfere with civil rights under 42
U.S.C. § 1985(3)

As noted, the Veales assert a claim against defendants
pursuant to 42 U.S.C. § 1985(3) for an alleged conspiracy to
deprive them of their civil rights.

To state a cognizable claim

under this section, a plaintiff must allege four elements:
First, the plaintiff must allege a conspiracy; second,
he must allege a conspiratorial purpose to deprive the
plaintiff of the equal protection of the laws; third,
he must identify an overt act in furtherance of the
conspiracy; and finally, he must show either injury to
person or property, or a deprivation of a
constitutionally protected right.
Perez-Sanchez v. Public Building Auth., 531 F.3d 104, 107 (1st
Cir. 2008).
The court need not look beyond the second of these elements.
In connection with that requirement, “[i]t has long been
established that a claim under § 1985(3) requires some racial, or
perhaps otherwise class-based, invidiously discriminatory animus
8

behind the conspirators’ action.”

Id. (quoting Griffin v.

Breckenridge, 403 U.S. 88, 102 (1971)); see also Veale v.
Griffin, 215 F.3d 1313 (1st Cir. 2000) (table) (affirming
dismissal of § 1985(3) claim where plaintiff--the same plaintiff
in this case--failed to allege class-based animus); Veale v.
Penuche’s Ale House, No. 98-447-B, 1998 WL 1120388, *6 (D.N.H.
Nov. 2, 1998)(similar; also the same plaintiff as here).

The

Veales do not plausibly allege that defendants’ conspiracy was
motivated by any racial or otherwise class-based animus.
The Veales do aver, in a single paragraph of the complaint,
that Dr. Furness’s alleged actions were a result of “group
animus” and “group hatred toward the Plaintiffs because of who
they are and their false reputations.”
15) ¶ 23.

Am. Compl. (document no.

But the complaint provides no further factual detail

regarding “who they are,” i.e., what class they belong to, nor
does it explain what the Veales’ “reputations” are or, for that
matter, how reputation-based animus would entitle them to relief
under § 1985(3).

At best, then, the complaint’s passing

references to “group hatred” and “group animus” amount to no more
than “a formulaic recitation of the elements” of their claim and
“naked assertions devoid of further factual enhancement,” neither
of which meets the federal pleading standards.
at 1949.

Iqbal, 129 S. Ct.

Accordingly, the Veales’ claim under 42 U.S.C. §

1985(3) is dismissed.

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B.

Racketeer Influenced and Corrupt Organizations Act, 18
U.S.C. § 1961 et seq.

The Veales have also asserted a claim under RICO, 18 U.S.C.
§ 1961 et seq., arising from the alleged conspiracy among
defendants.
elements:

“To state a RICO claim, plaintiffs must allege four
(1) conduct, (2) of an enterprise, (3) through a

pattern, (4) of racketeering activity.”

Giuliano v. Fulton, 399

F.3d 381, 386 (1st Cir. 2005).
Here, it is the fourth element on which the Veales’ claim
founders.

RICO defines “racketeering activity” by reference to a

lengthy list of state and federal criminal offenses, including
but not limited to murder, kidnapping, gambling, arson, robbery,
bribery, extortion, and dealing in controlled substances.
U.S.C. § 1961(1).

See 18

While that definition encompasses an extremely

broad range of conduct, the court is at a loss to see how the
actions alleged in the complaint could plausibly constitute a
single instance of racketeering activity, let alone make out a
pattern of such activity.

The complaint itself does not refer to

any specific predicate acts that could give rise to a RICO claim.
The Veales suggest in their memoranda that defendants committed
mail or wire fraud, but they do not explain how the complaint
alleges the elements of either of those offenses, particularly
where are no allegations in the complaint that the defendants
ever mailed anything, as part of a scheme to defraud or
otherwise, see 18 U.S.C. § 1341, or that during the few phone
10

conversations defendants had with plaintiffs, they made any
statements in furtherance of a scheme to defraud, see id. § 1343.
Although the complaint does make generic allegations of commonlaw fraud, that does not constitute an “racketeering activity”
subject to the RICO statute.

Giuliano, 399 F.3d at 388.

The

Veales’ RICO claim is therefore dismissed.

C.

Plaintiffs’ remaining claims

The Veales’ federal statutory claims under 42 U.S.C. §
1985(3) and RICO provided the sole basis upon which this court
was empowered to exercise jurisdiction.

See 28 U.S.C. § 1331.

Each of their remaining claims arises solely under state law, and
typically this court may only exercise jurisdiction over such
claims if the prerequisites to diversity jurisdiction in 28
U.S.C. § 1332 are met.
1, 6 (1st Cir. 2007).

See In re Olympic Mills Corp., 477 F.3d
Here, those requirements are not met:

plaintiffs David and Scott Veale are citizens of Vermont and New
Hampshire, respectively, and they have named citizens of both
those states as defendants.1

As a result, this court does not

have jurisdiction over the Veales’ state-law claims under § 1332.

1

Robert Furness, Apple Tree Animal Hospital, the Animal
Medical Center, the Veterinary Emergency Center of Manchester,
the Capital Area Veterinary Emergency Center, and the Emergency
Veterinary Clinic of the Seacoast are alleged to be citizens of
New Hampshire, while Stephen Angell and Windham Veterinary Clinic
are alleged to be citizens of Vermont.
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See id. (“In [diversity] cases involving multiple plaintiffs or
defendants, the presence of but one nondiverse party divests the
district court of original jurisdiction over the entire
action.”).
Because those claims form part of the same “case or
controversy” as the Veales’ federal claims, however, this court
is empowered to exercise supplemental jurisdiction over them
under 28 U.S.C. § 1367(a).

Whether or not to do so lies wholly

within the discretion of the court.

See 28 U.S.C. § 1367(c)(3);

Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168, 1177 (1st Cir.
1995).

As a general principle, though, “the unfavorable

disposition of a plaintiff’s federal claims at the early stages
of suit, well before the commencement of trial, will trigger the
dismissal without prejudice of any supplemental state-law
claims.”

Id.; see also United Mine Workers of Am. v. Gibbs, 383

U.S. 715, 726 (1966) (“Certainly, if the federal claims are
dismissed before trial . . . the state claims should be dismissed
as well.”).

With this instruction in mind, and taking into

account concerns of both judicial economy and federalism (in
particular the concern of interpreting state law in a matter
devoid of any federal interest), the court declines to exercise
jurisdiction over plaintiffs’ state-law claims.

Plaintiffs’

state-law claims are therefore dismissed without prejudice.

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IV.

Conclusion
For the reasons set forth above, the Rule 12(b)(6) and

12(b)(1) motions to dismiss by Veterinary Emergency Center of
Manchester, Veterinary Emergency and Specialty Center of New
England, Animal Medical Center, New England Veterinary Oncology
Group, Jeff Philibert, Stephen Angell, Tufts University, Steven
Rowell, and Capital Area Veterinary Emergency Center2 are
GRANTED.
moot.

All other pending motions in the case3 are DENIED as

The clerk shall enter judgment accordingly and close the

case.4
2

Document nos. 27, 37, 43, 50, 63, 69, 79.

3

Document nos. 20, 28, 62, 73.

4

Although the motion to dismiss filed by defendants Robert
Furness and Apple Tree Animal Hospital (document no. 20) is moot
and this court need not consider it, the court would be remiss in
not at least mentioning it. The entire argument section of that
single-page motion is as follows:
In support of this motion, defendants offer the
following:
1.

The Summons is dated November 29, 2010; and

2.

On March 9, 2011, plaintiffs delivered to defendants
the Summons.

While this would otherwise be cryptic, the caption of the motion
helpfully explains “TIME LIMIT FOR SERVICE EXCEEDED, RULE 4(m).”
This is an apparent reference to Federal Rule of Civil Procedure
4(m), which governs the time for service of process; the rule
provides that a defendant must be “served within 120 days after
the complaint is filed.”
The motion’s reference to the date of the summons is somewhat
confusing, as Rule 4(m) assigns no significance whatsoever to
that date. More to the point, though, on November 24, 2010, this
court ordered that service be made “within 120 days”--in other
words, by March 24, 2011. Service of process on Dr. Furness and
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SO ORDERED.
/s/Joseph N. Laplante
Joseph N. Laplante
United States District Judge
February 2, 2012
cc:

David T. Veale (pro se)
Scott W. Veale (pro se)
James D. Gleason, Esq.
Alan D. Rose, Esq.
Lisa A. Tenerowicz, Esq.
Jay M. Niederman, Esq.
Michael Magerer, Esq.
Molly J. Brown, Esq.
Michael P. Johnson, Esq.
Russell F. Hilliard, Esq.
Richard S. Loftus, Esq.
Mark A. Darling, Esq.
John L. Kerr, Esq.
Wilfred J. Desmarais, Jr., Esq.
Mark E. Howard, Esq.
Ralph Suozzo, Esq.
Jonathan M. Shirley, Esq.

Apple Tree on March 9, 2011 was therefore timely and their motion
to dismiss is meritless.
The Veales claim in their opposition to the motion that they made
counsel aware of his mistake, but that he refused to withdraw the
motion. If this is in fact true, counsel’s actions are difficult
to understand. The court is loath to impose sanctions for this
conduct, but counsel for Dr. Furness and Apple Tree is advised to
scrutinize the docket of each case closely when he first enters
an appearance, so as not to repeat this mistake.
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