Lath v. Vallee et al
ORDER granting in part and denying in part 116 Motion for Leave to File First Supplement to Second Amended Complaint. Plaintiff's Rule 15(d) motion is granted as to his invasion of privacy claim, but denied as to his proposed conspiracy claim. So Ordered by Judge Landya B. McCafferty.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Civil No. 16-cv-463-LM
Opinion No. 2017 DNH 137
Oak Brook Condominium Owners’
Association, Perry Vallee,
Gerard Dufresne, Betty Mullen,
and Warren Mills
O R D E R
Before the court is plaintiff’s motion for leave to file a
first supplement to his second amended complaint (“SAC”).
of the five defendants have objected; Gerard Dufresne has not.
For the reasons that follow, plaintiff’s motion is granted in
part and denied in part.
As outlined in document no. 72, this case now consists of
eight claims: (1) a hostile housing environment claim under the
federal Fair Housing Act (“FHA”), against Warren Mills and the
Oak Brook Condominium Owners’ Association (“Association”) (Count
1); (2) two FHA claims arising from alleged handicap based
housing discrimination, against the Association (Counts 2 and
4); (3) an eavesdropping claim against Betty Mullen (Count 9);
(4) an invasion of privacy claim against Perry Vallee (Count
10); (5) claims for false light invasion of privacy and
defamation, against Gerard Dufresne (Counts 11(a) and 12(a));
and (6) a breach of contract claim against the Association
Plaintiff has also asserted claims arising out of his
tenure as an Oak Brook unit owner in a second action, 16-cv-534LM.
On the day Lath filed that action, there was a fire in his
unit, and he amended his complaint in 16-cv-534-LM to assert
claims arising from the aftermath of the fire.
Then, based upon
rulings on several motions to dismiss, 16-cv-534-LM was reduced
(1) a claim, brought through the vehicle of 42 U.S.C.
§ 1983, asserting that the Manchester Police
Department (“MPD”) violated Lath’s federal
constitutional right to equal protection; and (2)
state law claims against the MPD, Dorothy Vachon,
Gerald Dufresne, Justin Boufford, Amica [Mutual
Insurance Co.], and BMS Catastrophe, Inc. (“BMS CAT”).
Lath v. Manchester Police Dep’t, No. 16-cv-534-LM, 2017 WL
1740197, at *1 (D.N.H. May 4, 2017).
While 16-cv-534-LM was in
the state described above, and in reliance upon Rule 15(d) of
the Federal Rules of Civil Procedure, Lath moved to supplement
his complaint in that case to add discrimination and retaliation
claims under the FHA.
The court denied Lath’s motion, “but
Plaintiff has been given leave to file a motion for leave
to amend his complaint to add five additional claims, but he has
not yet filed that motion.
without prejudice to Lath’s filing a Rule 15(d) motion in 16-cv463-LM.”
Id. at *4.
The motion currently before the court is the one that Lath
was granted leave to file by the above quoted order in 16-cv534-LM.
In it, Lath seeks to supplement his SAC in this case
with causes of action captioned: (1) “Claim 14 (Continued):
Conspiracy by defendants, City of Manchester, Police and Fire
Departments, Amica, Cheryl Vallee, Perry Vallee, Morey, Klardie,
Grandmaison, Taylor, Mullen, Sample, and Bisson, whether or not
acting under the color of law, to violate FHA by retaliating
against Lath,” doc. no. 118, at 2; and (2) “Claim 15: Invasion
of Privacy by disclosure of Private Facts by Defendant Gerard
Dufresne,” id. at 18.
II. The Legal Standard
“Rule 15(d) affords litigants a pathway for pleading ‘any
transaction, occurrence, or event that happened after the date
of the pleading to be supplemented.’”
United States ex rel.
Gadbois v. PharMerica Corp., 809 F.3d 1, 4 (1st Cir. 2015)
(quoting Fed. R. Civ. P. 15(d)), cert. denied, 136 S. Ct. 2517
Regarding the application of that rule, the court of
appeals has explained:
Rule 15(d) contains no standards at all to guide the
district court’s analysis; it merely authorizes the
district court to permit service of a supplemental
pleading “on just terms.” In an effort to fill this
vacuum and in keeping with the overarching flexibility
of Rule 15, courts customarily have treated requests
to supplement under Rule 15(d) liberally. See, e.g.,
Walker v. United Parcel Serv., Inc., 240 F.3d 1268,
1278 (10th Cir. 2001). This liberality is reminiscent
of the way in which courts have treated requests to
amend under Rule 15(a)’s leave “freely give[n]”
standard. See, e.g., Glatt v. Chi. Park Dist., 87
F.3d 190, 194 (7th Cir. 1996); Quaratino v. Tiffany &
Co., 71 F.3d 58, 66 (2d Cir. 1995); Mueller Co. v.
U.S. Pipe & Foundry Co., 351 F. Supp. 2d 1, 2 (D.N.H.
Gadbois, 809 F.3d at 7.
In the last analysis, a district court faced with a
Rule 15(d) motion must weigh the totality of the
circumstances, just as it would under Rule 15(a). See
Palmer v. Champion Mortg., 465 F.3d 24, 30–31 (1st
Cir. 2006). Idiosyncratic factors — say, the futility
of supplementation, see Haggard v. Bank of the Ozarks,
Inc., 668 F.3d 196, 202 (5th Cir. 2012) (per curiam);
Motorola Credit Corp. v. Uzan, 388 F.3d 39, 65 (2d
Cir. 2004), prejudice to the opposing party, see
Walker, 240 F.3d at 1278–79, and unreasonable delay in
attempting to supplement, see Glatt, 87 F.3d at 194 —
may suffice to ground a denial of a Rule 15(d) motion.
Everything depends on context.
Id. (footnote omitted).
However, “while leave to permit a supplemental pleading is
favored, it cannot be used to introduce a separate, distinct and
new cause of action.”
Polansky v. Wrenn, No. 12-cv-105-PB, 2013
WL 1165158, at *2 (D.N.H. Feb. 22, 2013) (quoting Polar Equip.,
Inc. v. Exxon Mobil Corp. (In re Exxon Valdez), 318 F. App’x
545, 547 (9th Cir. 2009); citing Planned Parenthood of S. Ariz.
v. Neely, 130 F.3d 400, 402 (9th Cir. 1997)), R. & R. adopted by
2013 WL 1155429 (D.N.H. Mar. 19, 2013); see also Williams v.
Lackawanna Cty. Prison, No. 1:12-CV-02274, 2016 WL 1393383, at
*2 (M.D. Pa. Apr. 8, 2016) (“A supplemental pleading cannot be
used for the purpose of trying a new matter or a new cause of
But, “[a] supplemental pleading may include a new
cause of action . . . if a relationship exists between the
original complaint and the later accruing material.”
2013 WL 1165158, at *2 (quoting Petro–Hunt, L.L.C. v. United
States, 105 Fed. Cl. 37, 44 (Fed. Cl. 2012); citing 6A Charles
Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice
and Procedure § 1504, at 253 (3d ed. 2010)) (internal quotation
With the foregoing legal principles in mind, the court
turns to each of the two claims that Lath seeks to add by means
of Rule 15(d).
A. Conspiracy to Violate 42 U.S.C. § 3617
Lath proposes to add a claim against approximately a dozen
entities for conspiring to violate 42 U.S.C. § 3617, the FHA
Some of those entities have been
dismissed from this case, and others have never been defendants.
However, three of those entities, Mullen, Perry Vallee, and the
Association, are still defendants in this case.
to Lath’s motion on grounds of futility.
The Association and
Perry Vallee argue that Lath’s motion should be denied because
granting it would result in undue prejudice to them and because
the proposed amendment would be futile.
Bisson, who has been
dismissed from this case but who is named as a defendant in
Lath’s proposed conspiracy claim, objects on several grounds.
Assuming without deciding that Lath’s proposed conspiracy claim
does not run afoul of the principle that Rule 15(d) “cannot be
used to introduce a separate, distinct and new cause of action,”
Polansky, 2013 WL 1165158, at *2, the court agrees with the
futility argument advanced by Mullen, Perry Vallee, and the
Futility is assessed “with reference to the Rule 12(b)(6)
Privitera v. Curran (In re Curran), 855
F.3d 19, 28 (1st Cir. 2017)).
Thus, an attempt to add a cause
of action to a case “is regarded as futile if the proposed
[cause of action] fails to state a plausible claim for relief.”
Id. (citing SEC v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010)).
Lath’s proposed conspiracy claim does not pass muster under
Rule 12(b)(6) due to Lath’s failure to adequately allege animus
toward a protected characteristic.
Earlier in this case, the
court pointed out that to prove an FHA retaliation claim, “there
must be sufficient evidence for a reasonable jury to conclude
that the Defendants were motivated by a protected characteristic
in performing the challenged conduct.”
S. Middlesex Opp.
Council, Inc. v. Town of Framingham, 752 F. Supp. 2d 85, 96 (D.
Mass. 2010) (internal quotation marks omitted).
Then, when Lath
attempted to show cause why the § 3617 claims he asserted in
Counts 3(a)-(i) should not be dismissed, the court rejected his
attempt and dismissed those claims.
It did so because Lath
failed to say anything about, much less adequately allege,
“animus toward a protected characteristic on the part of any of
the defendants who engaged in allegedly retaliatory conduct.”
Order (doc. no. 91) 3.
The court went on to dismiss Count 14,
which asserted Lath’s claim that defendants had engaged in a
conspiracy to violate § 3617, explaining that
[b]ecause plaintiff has failed to allege the animus
necessary to establish an FHA retaliation claim, any
retaliation that defendants may have agreed to
accomplish, or may have actually accomplished, was not
an unlawful act for the purpose of satisfying the
second and fourth elements of a claim for civil
Id. at 8-9.2
The elements of a civil conspiracy, under New Hampshire
(1) two or more persons . . .; (2) an object to be
accomplished (i.e., an unlawful object to be achieved by
lawful or unlawful means or a lawful object to be
achieved by unlawful means); (3) an agreement on the
Here, while Lath’s proposed conspiracy claim alleges a
plethora of new retaliatory acts, it fails completely to allege
animus toward a protected characteristic on the part of any of
the alleged conspirators.
Consequently, Lath has failed to
state a claim for conspiracy, which means that his attempt to
add such a claim would be futile.
Accordingly, as to Lath’s
proposed conspiracy claim, his motion for leave to supplement
his SAC is denied.
B. Invasion of Privacy
The second cause of action that Lath seeks to add by means
of Rule 15(d) is a claim against Dufresne for invasion of
privacy through the disclosure of private facts, specifically, a
confidential settlement agreement between Lath and his former
employer that Dufresne attached to a pleading in this case.
Dufresne has not objected to Lath’s motion.
At first glance, Lath’s invasion of privacy claim might
appear to be “a separate, distinct and new cause of action,”
Polansky, 2013 WL 1165158, at *2, and on that basis, not
object or course of action; (4) one or more unlawful
overt acts; and (5) damages as the proximate result
In re Armaganian, 147 N.H. 158, 163 (2001) (emphasis in the
original) (quoting Jay Edwards, Inc. v. Baker, 130 N.H. 41, 47
amenable to inclusion in this case.
But, on the other hand,
there is certainly “a relationship . . . between the original
complaint and the later accruing material,” id., given Lath’s
allegation that the conduct underlying his proposed invasion of
privacy claim took place during the litigation of this case.
when the matters alleged in a supplemental pleading
have no relation to the claim originally set forth and
joinder will not promote judicial economy or the
speedy disposition of the dispute between the parties,
refusal to allow the supplemental pleading is entirely
Williams, 2016 WL 1393383, at *2 (quoting Wright & Miller,
Federal Practice & Procedure: Civil § 1506 at 551 (1971)).
here, Lath’s proposed invasion of privacy claim is directly
related to the litigation of this case, and adjudicating that
claim in this case will promote judicial economy.
resolving that claim here would, if anything, benefit Dufresne
rather than prejudice him, by sparing him the trouble of
defending against that claim in yet another lawsuit.
Accordingly, as to Lath’s proposed invasion of privacy claim,
his Rule 15(d) motion is granted, and from this point forward,
his new claim shall be referred to as Count 15.
For the reasons detailed above, plaintiff’s Rule 15(d)
motion, document no. 116, is granted as to his invasion of
privacy claim, but denied as to his proposed conspiracy claim.
United States District Judge
July 13, 2017
Gary M. Burt, Esq.
Gerard Dufresne, pro se
Sanjeev Lath, pro se
Sabin R. Maxwell, Esq.
Brendan D. O’Brien, Esq.
Daniel E. Will, Esq.
Joshua M. Wyatt, Esq.
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