Nimco Real Estate Associates, LLC, et al v. Nashua, NH, City of, et al

Filing 36

///ORDER granting 17 Motion to Dismiss for Failure to State a Claim; granting in part 7 Motion to Dismiss for Failure to State a Claim; granting in part 19 Motion to Dismiss; granting in part 22 Motion to Dismiss; de nying 26 Motion for Preliminary Injunction. Counts I, II, III, IV, V, VI, and VII are dismissed. The court declines to exercise supplemental jurisdiction over Counts VIII and IX, which are dismissed for lack of jurisdiction. The clerk of court shall enter judgment accordingly and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
NIMCO Real Estate
Associates, LLC, et al.
v.

Civil No. 16-cv-406-JD
Opinion No. 2017 DNH 058

Gregory G. Nadeau, as
Administrator of the Federal
Highway Administration, et al.
O R D E R
NIMCO Real Estate Associates, LLC; Ultima Nashua Equipment
Corporation; and Anoosh Irvan Kiamanesh brought suit against
Gregory G. Nadeau, the administrator of the Federal Highway
Administration (“FHWA”) the City of Nashua, and the New
Hampshire Department of Transportation (“NHDOT”), alleging
claims that arose from the acquisition of the plaintiffs’
property by eminent domain for a highway project.

The FHWA

moves to dismiss the claim against it on the ground that the
court lacks subject matter jurisdiction.1

The NHDOT and the City

of Nashua move to dismiss the claims against them and join in
the motion to dismiss filed by the FHWA.

The plaintiffs object,

to the motions to dismiss and move for a preliminary injunction.2

Nadeau is sued in his official capacity as the administrator
of the FHWA, making the FHWA the defendant.
1

Although the FHWA indicated its intent to file a reply, none
was filed.
2

Standard of Review
In considering motions under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6), the court credits a plaintiff’s
properly pleaded allegations and draws all reasonable inferences
in the plaintiff’s favor.3

Reddy v. Foster, 845 F.3d 493, 497

(1st Cir. 2017); Sanders v. Phoenix Ins. Co., 843 F.3d 37, 42
(1st Cir. 2016).

Properly pleaded allegations are factual

allegations not conclusory legal allegations.
Pesquera, 819 F.3d 509, 515 (1st Cir. 2016).

Guadalupe-Baez v.
To avoid dismissal

under Rule 12(b)(6), the properly pleaded facts, with
appropriate inferences, must “raise a right to relief above the
speculative level.”
555 (2007).

Bell Atl. Corp. v. Twombly, 550 U.S. 544,

When subject matter jurisdiction is challenged,

“[t]he parties asserting jurisdiction, here the plaintiffs, have
the burden of demonstrating the existence of federal

For purposes of a motion under Rule 12(b)(1), the court may
also consider other materials and evidence in the record
“whether or not the facts therein are consistent with those
alleged in the complaint.”3 Id.; see also Torres-Negron v. J&N
Records, LLC, 504 F.3d 151, 163 (1st Cir. 2007).
In this case, the FHWA submitted a declaration in support of
its motion, which the plaintiffs moved to strike. Because the
declaration did not show the declarant’s personal knowledge of
the matters stated, it was struck. No other evidence was
submitted in support of or opposition to the motion to dismiss.
3

2

jurisdiction.”

Acosta-Ramirez v. Banco Popular de P.R., 712

F.3d 14, 20 (1st Cir. 2013).
Background
Ultima is a company that manufactures specialty machines,
equipment, and parts and has operated at its place of business
at 1 Pine Street Extension, Nashua, New Hampshire, since 1958.
NIMCO is a real estate limited liability company that owns the
property at 1 Pine Street where Ultima is located.

Anoosh

Kiamanesh is the manager of Nimco, the president and sole
director of Ultima, and the majority owner of both NIMCO and
Ultima.
In early 2000, the City of Nashua and NHDOT were planning a
highway project, called the Broad Street Parkway.

Officials of

the NHDOT and the city met, and Mike Rousseau, a representative
of NIMCO, Ultima, and Kiamanesh was also at the meeting.

The

city and state officials told Rousseau that NIMCO’s property at
1 Pine Street was needed for the project, which would require
acquisition of the property and relocation of NIMCO and Ultima.
At that time, the city and NHDOT expected to make an offer
for the Pine Street property in September of 2000 and
anticipated that plans for a new site for Ultima and NIMCO would
be complete by the spring of 2002.

3

Construction on the segment

of the parkway that required the 1 Pine Street property was to
begin in the fall of 2002.
Ultima has hundreds of pieces of manufacturing equipment
and machinery at the property with an estimated value of $12
million.

Some of the pieces of equipment and machinery are

large and heavy, making them difficult to move, and some require
special foundations and service connections.
The plaintiffs (NIMCO, Ultima, and Kiamanesh) requested
relocation assistance and benefits under the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970,
42 U.S.C. § 4601, et seq., (“URA”).

In a letter dated March 14,

2000, Jeanne A. Grover, Chief Relocation Advisor at NHDOT told
the plaintiffs that NHDOT would grant advanced relocation
benefits with certain conditions.4

Thereafter, when the

plaintiffs inquired about relocation benefits in 2000 and 2001,
they were told that the project was on hold.
The project began to move forward again in March of 2002.
The plaintiffs received a letter from NHDOT about the process
for applying for advanced relocation benefits.
offered $870,000 to acquire the property.

The NHDOT

The plaintiffs

Although not defined in the complaint, “advanced relocation
benefits” appear to be benefits paid before the relocation has
occurred.
4

4

obtained moving bids of several million dollars each, because of
the nature of the machinery and equipment.
The plaintiffs found a property that would be suitable and
available for relocation, which was to be auctioned on May 2,
2003.

Alan Rau, the plaintiffs’ relocation manager, notified

the NHDOT of the auction on April 25, 2003, emphasizing that it
was imperative that the relocation funds be available to move
the plaintiffs to the new location and asked that the relocation
funding be expedited.
On May 2, 2003, Kiamanesh attended the auction and
successfully bid on the property for the price of $3,275,000.
He put a deposit of $100,000 on the property.

The plaintiffs

notified the NHDOT of their winning bid and that they needed the
eminent domain compensation award and relocation benefits by
June 21, 2003, to close on the new property.

Also in May of

2003, the NHDOT increased the acquisition offer to $1,210,000,
although no payment was made.
The plaintiffs defaulted on the purchase of the new
property on June 21, 2003, and lost their deposit of $100,000.
The plaintiffs received $1,210,138.76 from the Board of Land and
Tax Appeals on July 7, 2003.
Another auction was scheduled on the property the
plaintiffs had defaulted on, which was held on August 14, 2003.

5

The plaintiffs again placed the winning bid of $3,260,000 for
the property, and again gave a deposit in the amount of
$100,000.

Although the plaintiffs received a letter in

September that they qualified for relocation funds, no payment
was made at that time.

On October 3, 2003, the plaintiffs again

defaulted on the purchase of the new property and again lost the
$100,000 deposit.

The plaintiffs did not receive relocation

assistance.
From 2004 through 2008, the plaintiffs looked for property
for relocation.

Beginning in 2005 and through 2010, Rau, on

behalf of the plaintiffs, signed leases for the 1 Pine Street
property.
NHDOT.

The leases identified the owner of the property as

Under the leases, the plaintiffs were required to pay

Nashua the amount of real estate taxes on the property.

The

leases also included a provision that released the landlord, its
agents and assigns, from liability for claims related to the
taking of the property and construction and maintenance of the
highway project.
In 2006, Ultima was in financial difficulty and signed a
contract with Kia Technologies Corporation, a Canadian
corporation, through which Ultima agreed to sell its machinery
and equipment to Kia.

Kiamanesh is a stockholder in Kia.

Ultima, with Kia, entered into contracts with companies in China

6

to use the equipment and machinery and to deliver the equipment
and machinery to the companies in China.

On September 27, 2009,

a representative of the Chinese companies came to Ultima to
inspect the machinery and equipment.
The next day, September 28, 2009, Kiamanesh met with the
Economic Director of Nashua and the manager of the highway
project to tell them about the venture with the Chinese
companies and the need for money to ship the equipment and
machinery to China.

No relocation funds were provided.

On December 18, 2009, Rau, on behalf of the plaintiffs,
sent a letter to the NHDOT Right of Way Agent requesting
relocation assistance and benefits.

When Rau followed up the

letter with a phone call in early January, 2010, he was told
that Nashua was revising the highway project and might not need
the 1 Pine St. property.
Nashua’s Director of Public Works notified the plaintiffs
on April 26, 2010, that the 1 Pine Street property was no longer
needed for the highway project.

As a result, the plaintiffs

were no longer required to move.

The NHDOT agent also notified

the plaintiffs on August 2, 2010, that the property was no
longer needed and that relocation funds were not available.

On

September 12, 2014, the plaintiffs received a letter from Nashua
offering the property for sale at a price of $1,210,000.

7

Kiamanesh responded that he was not able to buy back the
property.

Nashua then told the plaintiffs that it was preparing

to sell the property and that Ultima would have to enter into a
lease agreement.

The draft lease sent by Nashua in June of 2015

required rent of $8,800 per month.

The plaintiffs were unable

to pay the rent in the lease.
In July of 2015, Kiamanesh again requested relocation
assistance funds.

On August 6, 2015, Nashua sent the plaintiffs

an eviction notice and a notice to quit before November 6, 2015.
The plaintiffs remained on the property.
In May of 2016, Nashua filed an action against Ultima in
Hillsborough County Superior Court, seeking the unpaid real
estate taxes through 2015.

Nashua also sent a notice to vacate,

and brought a landlord and tenant writ against the plaintiffs.
The plaintiffs filed suit on September 9, 2016, alleging
nine claims against the FHWA, the City of Nashua, and “various
unnamed officials of the aforesaid agencies, and of the NHDOT.”
The plaintiffs have not clarified which, if any officials, are
defendants in this case.
Count I is brought against the FHWA “and/or its Officials
for failing or neglecting to undertake its responsibilities
under the [URA] and regulations thereunder.”

Count II is

brought against the NHDOT “and its officials as they are and

8

have acted as Agents for the City” with respect to relocation
benefits under the URA, which is incorporated into state eminent
domain proceedings by RSA 124-A:13.

Count III, against Nashua,

alleges that Nashua has taken the plaintiffs’ property by
failing to provide relocation assistance and benefits under the
URA in violation of the Fifth Amendment.

Count IV seeks to

reopen the original taking of the property and seeks additional
eminent domain damages.

Count V claims that Nashua violated the

equal protection clause of the Fourteenth Amendment by providing
URA relocation assistance and benefits to other businesses but
not to the plaintiffs.

Count VI is a claim against Nashua under

42 U.S.C. § 1983, alleging violations of the URA, the Takings
Clause of the Fifth Amendment, and the Equal Protection Clause
of the Fourteenth Amendment.

In Count VII, the plaintiffs seek

an award of attorneys’ fees and litigation expenses under the
URA.

Count VIII alleges “municipal estoppel” against Nashua,

and Count IX alleges unjust enrichment against Nashua.
Discussion
The FHWA, the NHDOT, and Nashua have each moved to dismiss
the claims against them.
in the FHWA’s motion.
dismiss.
it.

The NHDOT and Nashua have also joined

The plaintiffs object to the motions to

NHDOT moved to dismiss Nashua’s cross claims against

Nashua did not respond to the motion to dismiss.
9

I.

NHDOT’s Motion to Dismiss Nashua’s Cross Claims
Nashua brings cross claims against NHDOT alleging that

NHDOT was negligent in failing to collect rent from the
plaintiffs (Claim I), that NHDOT breached “agency agreements”
with Nashua (Claim II), and that NHDOT is “obligated to
indemnify the City” (Claim III).

NHDOT moves to dismiss the

claims on the grounds that they are barred by the statute of
limitations, are barred by sovereign immunity and the Eleventh
Amendment, and Claim III fails to allege an actionable claim.
As is noted above, Nashua did not respond to the NHDOT’s motion
to dismiss the cross-claims.5
A.

Statute of Limitations

RSA 508:4 provides the applicable limitations period for
Nashua’s claims against the NHDOT.

Under the statute, the

claims must be brought within three years “of the act or
omission complained of.”
Nashua alleges that it worked with the NHDOT on the highway
project beginning in 1996 and that the NHDOT signed the
declaration of taking, pertaining to the plaintiffs’ property,

As a result, Nashua has waived its arguments in support of
the cross claims. Vallejo v. Santini-Pantini, 607 F.3d 1, 7
(1st Cir. 2010).
5

10

on behalf of Nashua in 2003.

Nashua further alleges that under

an agreement dated January 5, 2009, NHDOT and Nashua agreed that
NHDOT would continue to manage the acquisition of property for
the highway project.

Sometime in 2010, Nashua decided it would

not need the plaintiffs’ property for the highway project.
Nashua contends that after the plaintiffs’ property was
acquired by Nashua, in 2003, the NHDOT did not charge the
plaintiffs a fair market rent for the property through the lease
term ending on June 30, 2011.

Nashua also alleges that if the

plaintiffs succeed on their claims against Nashua, “NHDOT’s
breach of its duty to the City caused the damages incurred by
Plaintiffs.”
The events alleged by Nashua to support its claims began in
1996 and appear to end in 2011.

As such, the negligence claim

and breach of contract claim, to the extent facts exist to
support either claim, arose more than three years before the
suit in this case was filed in 2016.

Therefore, the negligence

claim and breach of contract claim are dismissed as untimely.
B.

Immunity

Nashua brings its claims against the NHDOT only, not
officials of the NHDOT.

“As a general matter, states are immune

under the Eleventh Amendment from private suit in federal
courts, absent their consent.”

Wojcik v. Mass. St. Lottery
11

Comm’n, 300 F.3d 92, 99 (1st Cir. 2002).

For purposes of the

Eleventh Amendment, state agencies, such as the NHDOT, are
entitled to immunity under the Eleventh Amendment.

Pennhurst

St. Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984).
No exception to Eleventh Amendment immunity is apparent in
this case.

Therefore, Nashua’s claims are also barred by

immunity.
C.

Indemnification

The indemnification claim also fails on the merits. Nashua
provides no facts to support its indemnification claim.

It

states only that “[t]o the extent Plaintiffs recover any amount
against the City, NHDOT is obligated to indemnify the City.”

As

such, Nashua has failed to state a claim on which relief may be
granted.

See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (“A

pleading that offers labels and conclusions or a formulaic
recitation of the elements of a cause of action will not do.
Nor does a complaint suffice if it tenders naked assertions
devoid of further factual enhancement.” (internal quotation
marks and citations omitted)).
II.

Sovereign Immunity
The NHDOT and Nashua raise sovereign immunity in support of

their motions to dismiss the plaintiffs’ claims.

12

Nashua simply

adopted NHDOT’s argument in support of sovereign immunity
without, apparently, realizing that the doctrine applies
differently to the state and to municipalities.

See Mt. Healthy

City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977);
Perfetto v. Plumpton, 2016 WL 3647852, at *3 (D.N.H. July 1,
2016); Maryea v. Velardi, 168 N.H. 633, 635-39 (2016); Farrelly
v. City of Concord, 168 N.H. 430, 439-44 (2015).

In addition,

neither the NHDOT nor Nashua recognized that the plaintiffs’
claims are also brought against “unnamed” officials of the NHDOT
and the city.6

To the extent NHDOT relies on the administrative

process provided by RSA chapter 124-A, it may assert a failure
to exhaust administrative remedies rather than sovereign
immunity.
Therefore, neither the NHDOT nor Nashua has shown that
sovereign immunity bars the plaintiffs’ claims.
III.

Prior-Pending Claim
Nashua asserts that the plaintiffs’ claims against it are

barred by a “prior-pending claim.”

In support, Nashua

represents, without providing any filings or other information
about the nature of the “prior-pending claim,” that the claim is

In their objections, the plaintiffs pointed out the
misunderstandings of the NHDOT and Nashua with respect to
sovereign immunity but neither defendant filed a reply.
6

13

in regard to “taxes and other monies owed due to Plaintiff
Ultima’s possession and occupancy of the subject property.”
Nashua also represents that Ultima has raised a defense based on
the URA in that case and that Nashua “should not be forced to
litigate the same claims based on the same facts with the same
party(ies) at the same time in two different courts.”
Nashua apparently intended to rely on the discretionary
prior-pending action doctrine, rather than a defense based on a
prior-pending claim.

See Quality One Wireless, LLC v. Goldie

Gr., LLC, 37 F. Supp. 3d 536, 540-42 (D. Mass. 2014).

Under the

prior-pending action doctrine, good grounds exist to stay or
dismiss a case when another action is pending “‘between the same
parties, predicated upon the same cause of action and growing
out of the same transaction, and in which identical relief is
sought.’”

Jones v. Revenue Assistance Program, 2016 WL 3919843,

at *3 (D. Mass. July 14, 2016) (quoting Quality One, at 540-41).
The prior-pending action doctrine permits a court to abate
a later suit “to ensure judicial efficiency and [to] avoid
inconsistent judgments.”

Jones, 2016 WL 3919843, at *3.

The

doctrine is discretionary, however, depending on the
circumstances.

Quality One, 37 F. Supp. 3d at 541-42.

Whether

or not the doctrine would apply in this case cannot be decided,

14

however, because Nashua did not sufficiently support its theory
to permit review.
IV.

The URA
The FHWA moves to dismiss Count I for lack of subject

matter jurisdiction.

The FHWA contends that no private right of

action exists under the URA, which precludes the court’s subject
matter jurisdiction to consider the claim against it.

NHDOT and

Nashua also move to dismiss the URA claims against them.
A.

Claims That Implicate the URA

The plaintiffs’ only claim against the FHWA is alleged in
Count I.

Count I is captioned:

“Declaratory and Injunctive v.

FHWA and/or its Officials for failing or neglecting to undertake
its responsibilities under the Uniform Act and regulations
thereunder.”

In support of Count I, the plaintiffs allege that

the FHWA had a duty “to ensure that public projects for which
federal funds are expended meet the essential purposes of the
cited laws and regulations to treat persons and companies whose
property is taken fairly and consistent [sic] with their
constitutional rights.”

Compl., Doc. 1, ¶ 85.

They further

allege that the FHWA failed and neglected to carry out its
duties under the URA.

They ask the court to order the FHWA to

require the NHDOT and the City of Nashua to “cease all efforts

15

to evict, displace or claim money damages from the Plaintiffs,
under the Purported Lease or otherwise, and provide Plaintiff
[sic] proper relocation benefits post haste . . . .”

Id. ¶ 90.

In Count II against the NHDOT, the plaintiffs allege that
the NHDOT and its officials as agents for Nashua were required
under the URA “to ensure that Plaintiffs were treated fairly,
that all federal and state laws and regulations were followed,
and that Plaintiffs be provided proper relocation assistance.”
Id. at ¶ 97.

The plaintiffs seek the same relief as alleged in

Count I and also ask that Nashua be required to pay damages.
The URA is also a basis for the plaintiffs’ Fifth Amendment
takings claim in Count III, the civil rights claim in Count VI,
and the demand for fees and expenses in Count VII.
B.

Private Right of Action Under the URA

It is undisputed that the URA does not expressly provide a
private right of action.

The plaintiffs argue, nevertheless,

that they are entitled to assistance and benefits under § 4622
and § 4630 as “displaced persons.”

They urge the court to find

that § 4622 and § 4630, when read together, imply a private
right of action.
In Gonzaga v. Doe, 536 U.S. 273, 282-84 (2002), the Supreme
Court clarified and tightened the test used to determine whether
federal legislation conferred individual rights that could be
16

enforced through an implied cause of action and under 42 U.S.C.
§ 1983.

The Court explained that in determining both whether a

statutory violation could be enforced through § 1983 and whether
a private right of action could be implied from a statute the
court “must first determine whether Congress intended to create
a federal right.”

Id. at 283.

To meet that requirement, the

statute must grant rights that are “‘phrased in terms of the
persons benefitted’” and, for purposes of an implied right of
action, the statute must “manifest[] an intent ‘to create not
just a private right but also a private remedy.’”

Id. at 284

(quoting Cannon v. Univ. of Chicago, 441 U.S. 677, 692, n.13
(1979), and Alexander v. Sandoval, 532 U.S. 275, 286 (2001)).
The Court acknowledged that some language in prior opinions,
including Blessing v. Freestone, 520 U.S. 329, 340-41 (1997) and
Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 509 (1990), might have
suggested a less stringent standard.
Therefore, to determine whether a federal statute confers
an implied right of action, “the key inquiry is whether the
statute is ‘phrased in terms of the persons benefitted’ ‘with an
unmistakable focus on the benefited class.’”

City of

Portsmouth, R.I. v. Lewis, 813 F.3d 54, 62 (1st Cir. 2016)
(quoting Gonzaga, 536 U.S. at 284).

In addition, courts must

consider “whether the statute is worded in terms of government

17

policy and practice or individual entitlements, and whether
Congress provided alternate mechanisms for enforcing the
statute.”

City of Portsmouth, 813 F.3d at 62.

The plaintiffs argue that they are entitled to enforce
rights conferred in Chapter II of the URA, specifically § 4622
and § 4630.

They argue that the policy of the URA “is directed

at fair treatment of persons or businesses displaced by federal
or federally funded projects” and rely on Pou Pacheco v. Soler
Aquino, 833 F.2d 392, 400 (1st Cir. 1987), to support the claim.
Pou Pacheco, however, was decided before the Supreme Court
addressed the standard for determining whether a statute confers
an implied right of action in Gonzaga.

Contrary to the

plaintiffs’ interpretation, the court in Pou Pacheco did not
follow the more stringent test required by Gonzaga.

See

Delancey v. City of Austin, 570 F.3d 590, 594 n.7 (5th Cir.
2009).

Instead of determining whether specific provisions in

Chapter II of the URA were phrased in terms of the persons
benefitted with an unmistakable focus on the benefitted class,
as is now required, the court emphasized the policy of the URA.
The court also did not examine whether Congress had provided
alternative mechanisms for enforcement.
Courts that have considered whether the URA confers an
implied right of action under the Gonzaga test have determined

18

that no private right of action exists.

See, e.g., Clear Sky

Car Wash LLC v. City of Chesapeake, 743 F.3d 438, 443-44 (4th
Cir. 2014); Delancey, 570 F.3d at 594-95; Osher v. Land
Clearance for Redevelopment Auth., 2016 WL 7474990, at *2-*3
(E.D. Mo. Dec. 29, 2016) (citing cases).

More specifically,

Chapter II of the URA, which includes the sections cited by the
plaintiffs in their objection to the motion to dismiss, has been
construed not to confer an implied right of action.7

Clear Sky

Car Wash, LLC v. City of Chesapeake, Va., 910 F. Supp. 2d 861,
875–79 (E.D. Va. 2012).

The plaintiffs cite no case decided

after Gonzaga that has found an implied private right of action
under the URA.
The reasoning in the cases which have decided that the URA
does not confer a private right of action is persuasive.

The

two statutes the plaintiffs rely on, § 4622 and § 4630, impose
duties on “the head of the displacing agency” and “the head of a
Federal agency” but do not focus on the persons who might be

“The URA consists of three subchapters. Subchapter I
(§§ 4601-4605) is entitled ‘General Provisions.’ Subchapter II
(§§ 4621-4638) is entitled ‘Uniform Relocation Assistance,’ and
relates to moving expenses and replacement housing for
homeowners and tenants who are displaced by federal land
acquisition. Subchapter III (§§ 4651-4655), . . . is entitled
‘Uniform Real Property Acquisition Policy.’” Pacific Shores
Prop. Owners Ass’n v. Fed. Aviation Admin., 2014 WL 985960, at
*7 (N.D. Cal. Mar. 7, 2014).
7

19

benefitted by the implementation of those duties.8
Sky, 910 F. Supp. 2d at 877-78.

See Clear

As such, neither § 4622 nor

§ 4630 confers a private right of action.
In addition, other means are available to enforce the URA.
A disappointed applicant for benefits must seek review from the
head of the federal or state agency with authority over the
project.

§ 4633(b)(3).

See Clear Sky, 910 F. Supp. 2d at 882.

Then, if necessary, the applicant can challenge a federal
agency’s final action under the URA through the Administrative
Procedures Act (“APA”), which further undermines an implied
right of action.

Alamo Aircraft Ltd. v. City of San Antonio,

2016 WL 5720860, at *2 (W.D. Tex. Sept. 30, 2016); Clear Sky,
910 F. Supp. 2d at 879.

The plaintiffs did not allege a claim

under the APA, which they confirm in their objection to the
motion to dismiss.
The NHDOT is the state agency that had authority over the
project in this case.

New Hampshire provides for “equitable

treatment of persons displaced as a direct result of programs or
projects undertaken by a state agency.”

RSA 124-A:1.

Displaced

As an example, in Gonzaga, the Court explained that the
language in Titles VI and IX was “individually focused” because
those statutes state: “No person . . . shall . . . be subjected
to discrimination,” while unfocused language directs an agency
to do something that will confer a benefit. Gonzaga, 536 U.S.
at 287.
8

20

persons are entitled to reasonable expenses incurred in moving,
losses of “personal property as a result of moving or
discontinuing a business,” expenses incurred in locating a
replacement property, and expenses incurred in reestablishing a
business.

RSA 124-A:3.

RSA chapter 124-A also provides a

process for review of benefits decisions through rule-making by
the state agencies.

RSA 124-A:9.

The NHDOT has provided a

review process by promulgating regulations for that purpose, but
the plaintiffs did not pursue the review process.
In sum, there is no private right of action implied by the
URA and, more specifically, no private right of action under §
4622 and § 4630.

As a result, the plaintiffs have not alleged

claims under the URA in Counts I, II, III, VI, and VII.
V.

Takings Clause of the Fifth Amendment
The plaintiffs contend that Nashua has effected a de facto

temporary taking of its equipment and machinery under the
Takings Clause by failing to provide relocation assistance and
benefits under the URA and by seeking to evict the plaintiffs
from the building. To the extent the plaintiffs’ Fifth Amendment
claim is based on the URA and is simply another means of seeking
a right of action under the URA, they do not state a claim.
The Takings Clause of the Fifth Amendment prohibits the
government from taking private property for public use without
21

just compensation.
2425-26 (2015).

Horne v. Dep’t of Agric., 135 S. Ct. 2419,

A “taking” for purposes of the Fifth Amendment

includes the transfer of private property by eminent domain to
the state or to another private party.

See Stop the Beach

Renourishment, Inc. v. Fl. Dep’t of Env’l Protection, 560 U.S.
702, 713 (2010).

A “taking” also may occur when the state

causes the destruction of real property, when regulation forces
a property owner to submit to occupation, when regulation
deprives a property owner of “all economically beneficial use of
his property,” or when the state takes property by
“recharacteriz[ing] as public property what was previously
private property.”

Id.

In this case, the plaintiffs were paid $1,210,138.76 for
their real property in 2003.
have spent the money.

They accepted that payment and

They did not challenge the compensation

as insufficient when it was paid or at any time since, until
filing this lawsuit in 2016.
Nashua decided that the plaintiffs’ property was no longer
needed for the project in 2010 and then required a lease from
the plaintiffs.

The plaintiffs have not identified any

regulation that has been imposed on them which effects a
regulatory taking or any other circumstance that would qualify
as a new taking under the Fifth Amendment.

22

To the extent the plaintiffs argue that their compensation
for the property should now include the expenses necessary to
remove their equipment and machinery and to relocate their
business, they are mistaken.

Just compensation for purposes of

the Takings Clause “‘is for the property, and not to the owner.”
United States v. Bodcaw Co., 440 U.S. 202, 203 (1979) (quoting
Monogahela Navigation Co. v. United States, 148 U.S. 312, 326
(1893)).

For that reason, just compensation does not include

“indirect costs to the property owner caused by the taking of
his land,” Bodcaw, 440 U.S. at 203, or “any award for
consequential damages arising from a condemnation,” United
States v. 50 Acres of Land, 469 U.S. 24, 33 (1984).

See also

United States v. Gen. Motors Corp., 323 U.S. 373, 379 (1945)
(holding that just compensation does not include “future loss of
profits, the expense of moving removable fixtures and personal
property from the premises, the loss of good-will which inheres
in the location of the land, or other like consequential losses
which would ensue the sale of the property to someone other than
the sovereign”).
The plaintiffs have not shown that the NHDOT and Nashua
were obligated under the Fifth Amendment to pay removal and
relocation expenses.

Therefore, to the extent the plaintiffs

claim that their equipment and machinery were “taken” in

23

violation of the Fifth Amendment by the NHDOT and/or Nashua
because those entities have not paid for the removal and
relocation expenses for the equipment and machinery, the
plaintiffs have not stated a claim.
In addition, the Fifth Amendment bars only a taking of
private property without just compensation.

If the state

provides a means for obtaining compensation, such as through the
procedures provided by RSA chapter 124-A and the NHDOT
regulations, then a takings claim is not ripe until those
procedures are exhausted without success.

See Perfect Puppy,

Inc. v. City of E. Providence, 807 F.3d 415, 420 (1st Cir.
2015).

The plaintiffs in this case did not pursue the state

remedies available to them.
The plaintiffs have not stated a claim under the Takings
Clause of the Fifth Amendment.
VI.

Equal Protection Claim and § 1983 Claim Against Nashua
The plaintiffs bring a claim, Count V, alleging that Nashua

violated the Equal Protection Clause of the Fourteenth
Amendment.

The plaintiffs also allege a civil rights claim

under § 1983, Count VI, which alleges violations of the URA,
Fifth Amendment, and the Equal Protection Clause.

For the

reasons stated above, the plaintiffs have not stated a right of
action under the URA or a viable claim under the Takings Clause.
24

The plaintiffs Equal Protection Clause claims against Nashua, in
Counts V and VII, are considered together.
In support of both of their equal protection claims, the
plaintiffs allege that beginning in 2000 four other businesses
whose land was taken by Nashua for the highway project were
provided relocation assistance benefits while they were denied
benefits.

They contend that the disparate treatment constitutes

a violation of the Equal Protection Clause.
Nashua moves to dismiss the claims as time barred.

A

state’s statute of limitations for tort claims applies to
federal civil rights claims.
121 (1st Cir. 2010).

Gorelik v. Costin, 605 F.3d 118,

New Hampshire’s statute of limitations for

personal actions, including torts, is RSA 508:4, which provides
that claims must be brought within three years “of the act or
omission complained of.”
Nashua contends that the plaintiffs’ constitutional claims
accrued by August 2, 2010, at the latest, when Nashua denied the
plaintiffs relocation assistance.9

Because the plaintiffs did

Nashua also states that the NHDOT’s notice on August 2,
2010, was not necessarily a final decision by the NHDOT, which
apparently refers to the plaintiffs’ failure to use the
administrative process to challenge the initial decision.
Nevertheless, the plaintiffs were on notice that their request
for relocation assistance had been denied by August of 2010.
9

25

not file suit until 2016, Nashua contends that the claims are
untimely.
The plaintiffs argue that there was continuing harm because
no final decision was made on paying relocation assistance
benefits but cite no legal authority in support of their
theory.10

See Petrella v. Metro-Goldwyn-Mayer, Inc., 124 S. Ct.

1962, 1969, & n.6 (2014) (describing continuing harm and
separately accruing harm).

In the complaint, the plaintiffs

allege nothing that occurred after 2010 that would lead them to
believe the project was continuing or that Nashua would pay them
relocation assistance benefits.

In 2014, Nashua offered to let

the plaintiffs buy the property back.
Therefore, the plaintiffs were on notice by August of 2010
that they would not receive relocation assistance benefits from
Nashua (or NHDOT).

As a result, their equal protection claims,

based on Nashua’s failure to pay relocation assistance benefits,
accrued in 2010.

Because they did not bring suit until 2016,

the claims are time-barred.

The plaintiffs did not challenge the NHDOT decision,
therefore, for purposes of the statute of limitations, the
decision was final.
10

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VII.

State Law Claims
In Count VIII, the plaintiffs allege a claim of “municipal

estoppel” against Nashua, and in Count IX they allege unjust
enrichment against Nashua.

The plaintiffs also mention claims

under state law and the New Hampshire Constitution in other
counts.
The federal claims that provide federal question
jurisdiction in this case are dismissed.

The court declines to

exercise supplemental jurisdiction over the plaintiffs’ state
law claims.
VIII.

28 U.S.C. § 1367(c)(3).

Preliminary Injunction

The plaintiffs moved for a preliminary injunction to
require Nashua to protect and not to dispose of the plaintiffs’
machinery and equipment in the Pine Street property.

In light

of the disposition of the claims in this case, the motion for a
preliminary injunction is denied.
Conclusion
For the foregoing reasons, the motion to dismiss cross
claims (document no. 17) filed by the NHDOT is granted.

The

motions to dismiss the plaintiffs’ claims filed by the NHDOT
(documents no. 7), by the FHWA (document no. 22), and by Nashua
(document no. 19) are granted as to the federal claims.

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The

plaintiffs’ motion for a preliminary injunction (document no.
26) is denied.
Counts I, II, III, IV, V, VI, and VII are dismissed.

The

court declines to exercise supplemental jurisdiction over Counts
VIII and IX, which are dismissed for lack of jurisdiction.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
__________________________
Joseph DiClerico, Jr.
United States District Judge
March 23, 2017
cc:

Jared Joseph Bedrick, Esq.
Steven A. Bolton, Esq.
Mark S. Bourbeau, Esq.
Matthew T. Broadhead, Esq.
Stephen G. LaBonte, Esq.
Celia K. Leonard, Esq.
Terry L. Ollila, Esq.

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