Lath v. Vallee et al
[REPLACED BY DOC. NO. 202] ///ORDER granting Motion for Summary Judgment. Vallee's motion is granted, and both Count 10 and Perry Vallee are dismissed from this case. So Ordered by Judge Landya B. McCafferty.(gla) Modified on 8/7/2017 to add: [REPLACED BY DOC. NO. 202.] Order amended to correct document number of Vallee's Motion. (gla).
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Civil No. 16-cv-463-LM
Opinion No. 2017 DNH 148
Oak Brook Condominium Owners’
Association, Perry Vallee,
Gerard Dufresne, Betty Mullen,
and Warren Mills
O R D E R
This case now consists of nine claims against five
defendants,1 including a common law invasion of privacy claim
against Perry Vallee, based upon allegations that Vallee
installed a camera in Sanjeev Lath’s unit in the Oak Brook
Condominium (“Oak Brook”).
for summary judgment.
Before the court is Vallee’s motion
For the reasons that
follow, Vallee’s motion for summary judgment is granted.
I. Summary Judgment Standard
“Summary judgment is appropriate when the record shows that
‘there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.’”
Lath has been granted leave to file a motion to amend the
operative complaint in this case to add five additional claims.
Currently pending before the court is a motion to amend that
addresses two of those five potential claims. See doc. no. 198.
President & Fellows of Harvard Coll., 840 F.3d 57, 61 (1st Cir.
2016) (quoting Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777,
782 (1st Cir. 2011); citing Fed. R. Civ. P. 56(a)).
issue is one that can ‘be resolved in favor of either party’ and
a material fact is one which ‘has the potential of affecting the
outcome of the case.’”
Walker, 840 F.3d at 61 (quoting Gerald
v. Univ. of P.R., 707 F.3d 7, 16 (1st Cir. 2013); citing PérezCordero v. Wal-Mart P.R., Inc., 656 F.3d 19, 25 (1st Cir.
When a court considers a motion for summary judgment,
“[t]he evidence . . . must be viewed in the light most favorable
to the nonmoving party . . . and all reasonable inferences must
be taken in that party’s favor.”
Harris v. Scarcelli (In re Oak
Knoll Assocs., L.P.), 835 F.3d 24, 29 (1st Cir. 2016) (citing
Desmond v. Varrasso (In re Varrasso), 37 F.3d 760, 763 (1st Cir.
“The nonmovant may defeat a summary judgment motion by
demonstrating, through submissions of evidentiary quality, that
a trialworthy issue persists.”
Cruz v. Mattis, 861 F.3d 22, 25
(1st Cir. 2017) (quoting Iverson v. City of Bos., 452 F.3d 94,
98 (1st Cir. 2006)).
Both Lath and Vallee own units at Oak Brook.
In his Second
Amended Complaint, Lath makes the following allegation:
On or around October 4, 2016, Defendant Perry
Vallee and Ruben Clavijo came to Lath’s unit to
service the plumbing. While Lath was helping Ruben,
Perry Vallee installed a camera in Lath’s bathroom,
which Lath later retrieved.
Second Am. Compl. ¶ 232.
Based upon that allegation, Lath
asserted a claim for invasion of privacy against Vallee, which
has been designated as Count 10.
Vallee moves for summary judgment, arguing that he has
produced undisputed evidence that he never installed a camera in
The court agrees.
In support of his motion for summary judgment, Vallee has
produced an affidavit in which he testified that he “never
installed any camera or video recording device in or looking
into Sanjeev Lath’s . . . unit at Oak Brook,” Def.’s Mem. of
Law, Ex. A (doc. no. 154-1) ¶ 2, and that he “never installed
any camera or video recording device in or looking into the
bathroom of Mr. Lath’s condominium Unit at Oak Brook,” id. ¶ 3.
At that point, it became Lath’s burden to “demonstrate[e],
through submissions of evidentiary quality, that a trialworthy
issue persists,” Cruz, 861 F.3d at 25.
Rather than doing that,
he makes a host of immaterial allegations about Vallee and
several other defendants who have already been dismissed from
this case, and contends that “Defendants’ Motion for Summary
Judgment is untimely as there are several facts in dispute and
discovery has but just begun in the matter.”
Pl.’s Obj. (doc.
no. 163) 5.
While Lath speaks of “facts in dispute,” and has attached
75 exhibits to his objection and surreply, only one of them, a
collection of approximately 400 pages of deposition transcripts,
appears to be of evidentiary quality, and Lath points to nothing
in those transcripts that contradicts Vallee’s affidavit.
other words, he has not produced material of evidentiary quality
demonstrating the existence of a trialworthy issue, see Cruz,
861 F.3d at 25.
Lath’s failure to produce admissible evidence
that Vallee installed a camera in his unit entitles Vallee to
judgment as a matter of law on Lath’s claim for invasion of
To be sure, Lath also characterizes Vallee’s summary
judgment motion “as untimely and premature [and] not ripe for
this Honorable Court’s review,” Pl.’s Obj. (doc. no. 163) 9.
But he does not do so in a way that entitles him to any relief.
The Federal Rules of Civil Procedure provide the following
mechanism for protecting parties from premature motions for
If a nonmovant shows by affidavit or declaration
that, for specified reasons, it cannot present facts
essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or
declarations or to take discovery; or
(3) issue any other appropriate order.
Fed. R. Civ. P. 56(d).
“Rule 56(d) relief is not to be granted as a matter of
course . . . . [T]he district court is entitled to
refuse a Rule 56(d) motion if it concludes that the
party opposing summary judgment is unlikely to garner
useful evidence from supplemental discovery.” Hicks
v. Johnson, 755 F.3d 738, 743 (1st Cir. 2014).
Troiano v. Aetna Life Ins. Co., 844 F.3d 35, 45 (1st Cir. 2016).
The problem here is that Lath’s mere use of the words
“untimely” and “premature” in his objection to summary judgment
is a far cry from filing an actual Rule 56(d) motion.
that, Lath has provided neither an affidavit nor a declaration
in support of his argument that Vallee’s summary judgment motion
Finally, nowhere in either his objection or his
surreply does he specify a reason why he “cannot present facts
essential to justify [his] opposition,” Fed. R. Civ. P. 56(d).
Thus, he falls far short of showing that he is likely “to garner
useful evidence from supplemental discovery.”
3d at 45.
Troiano, 844 F.
So, leaving aside the procedural deficiency in what
may or may not be an attempt to invoke Rule 56(d), Lath has
provided no substantive grounds for Rule 56(d) relief.
Accordingly, to the extent that Lath is attempting to invoke
Rule 56(d) in the first instance, his argument (i.e., Vallee’s
summary judgment motion is premature) is unavailing.
For the reasons detailed above, Vallee is entitled to
judgment as a matter of law on Count 10, i.e., Lath’s common law
claim for invasion of privacy.
Accordingly, Vallee’s motion for
summary judgment, document no. 155, is granted, and both Count
10 and Perry Vallee are dismissed from this case.
United States District Judge
August 7, 2017
Gary M. Burt, Esq.
Sanjeev Lath, pro se
Walter L. Maroney, Esq.
Sabin R. Maxwell, Esq.
Brendan D. O’Brien, Esq.
Gregory V. Sullivan, Esq.
Daniel E. Will, Esq.
Joshua M. Wyatt, Esq.
Gerard Dufresne, pro se
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