Lath v. Vallee et al
///ORDER granting in part 48 Motion to Amend Complaint, denying as moot 26 Motion to Dismiss for Failure to State a Claim; denying as moot 30 Motion to Dismiss for Failure to State a Claim; denying as moot 33 Motion t o Dismiss. The claims asserted in Causes 19, 20, 22, 23, and 24 of the SAC are dismissed for lack of supplemental jurisdiction, and the claims asserted in Causes 16, 17, 26, 31, 32, 33, and the § 1983 claims asserted in Cause 21 are dismissed for failure to state a claim upon which relief can be granted. 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 052
Oak Brook Condominium Owners’
Association, Cheryl Vallee,
Perry Vallee, William Quinn
Morey, Gerald Dufresne, Christos
Klardie, Vickie Grandmaison,
Patty Taylor, Betty Mullen,
Scott Sample, John Bisson, and
O R D E R
Pro se plaintiff Sanjeev Lath, who owns a unit in the Oak
Brook Condominium, asserts several dozen federal and state
claims against the Oak Brook Condominium Unit Owner’s
Association (“Association”); the Association’s attorney (John
Bisson); six current or former members of the Association’s
board of directors, some of whom are current or former officers
(Cheryl Vallee, Perry Vallee, William Morey, Christos Klardie,
Patty Taylor, Warren Mills); two current or former employees of
the Association (Vickie Grandmaison and Scott Sample); and two
unit owners (Gerald Dufresne and Betty Mullen).
complaint in this case is Lath’s first amended complaint
(“FAC”), which he filed as a matter of course pursuant to Rule
15(a)(1) of the Federal Rules of Civil Procedure (“Federal
After Lath filed his FAC, three motions to dismiss were
filed, one by the Association, Cheryl Vallee, Perry Vallee,
Morey, Klardie, Grandmaison, Taylor, and Sample (hereinafter
“principal motion to dismiss”); one by Bisson; and one by
Subsequently, Mills joined the principal motion to
Dufresne is the only defendant who has not moved to
dismiss the FAC.
Plaintiff has not objected to any of the three
motions to dismiss but, rather, has moved for leave to file a
second amended complaint (“SAC”), pursuant to Rule 15(a)(2).
objection to plaintiff’s motion for leave to amend has been
filed by the Association, Cheryl Vallee, Perry Vallee, Morey,
Klardie, Grandmaison, Taylor, Sample, Mills, and Mullen
(hereinafter “ten defendants”), and a second objection has been
filed by Bisson.
Dufresne is the only defendant who has not
objected to plaintiff’s motion for leave to amend.
reasons described below, Lath’s motion for leave to amend is
granted in part, and the three pending motions to dismiss are
denied as moot.
I. The Legal Standard
Because plaintiff has already amended his complaint once,
as a matter of course, any subsequent amendment is governed by
the following rule:
[A] party may amend its pleading only with the
opposing party’s written consent or the court’s leave.
The court should freely give leave when justice so
Fed. R. Civ. P. 15(a)(2).
courts “should freely give leave when justice so
requires,” id., amendments may be denied for several
reasons, including “undue delay, bad faith, dilatory
motive of the requesting party, repeated failure to
cure deficiencies, and futility of amendment.”
Hagerty, ex rel. U.S. v. Cyberonics, Inc., 844 F.3d 26, 34 (1st
Cir. 2016) (quoting U.S. ex rel. Rost v. Pfizer, Inc., 507 F.3d
720, 733-34 (1st Cir. 2007); citing Foman v. Davis, 371 U.S.
178, 182 (1962)).
“[I]n assessing futility, the district court
must apply the standard which applies to motions to dismiss
under Fed. R. Civ. P. 12(b)(6).”
Morgan v. Town of Lexington,
823 F.3d 737, 742 (1st Cir. 2016) (quoting Adorno v. Crowley
Towing & Transp. Co., 443 F.3d 122, 126 (1st Cir. 2006)).
Under Rule 12(b)(6), the court must accept the factual
allegations in the complaint as true, construe reasonable
inferences in the plaintiff’s favor, and “determine whether the
factual allegations in the plaintiff’s complaint set forth a
plausible claim upon which relief may be granted.”
Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014)
A claim is facially plausible “when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
Ashcroft v. Iqbal, 556 U.S. 662, 678
Analyzing plausibility is “a context-specific task” in
which the court relies on its “judicial experience and common
Id. at 679.
Finally, in light of plaintiff’s pro se
status, the court must construe his pleadings liberally.
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
In the first part of this section, the court explains its
decision to grant plaintiff’s motion to amend his FAC.
the second part, the court evaluates each of the claims asserted
in the SAC to determine which of them shall remain a part of
this case moving forward.
A. Motion for Leave to Amend
The ten defendants argue that plaintiff’s motion for leave
to amend his FAC should be denied because: (1) it was filed in
bad faith or with a dilatory motive; (2) amendment would be
futile; and (3) plaintiff has failed to comply with the
requirements of Local Rule 15(a).
Bisson argues that the motion
should be denied because: (1) plaintiff has failed to comply
with Rule 15(a); (2) plaintiff has already had one chance to
cure any deficiencies in his complaint; and (3) amendment would
1. LR 15(a)
Plaintiff’s FAC (237 paragraphs, 84 pages) asserts 16
In his motion for leave to amend, plaintiff says that
his “proposed amendment would clarify the specific allegations
without significantly expanding or altering the scope of this
action,” Pl.’s Mot. for Leave to Amend (doc. no. 48) ¶ 7, and
that his “amendment merely provides specific details, incidents,
dates and exhibits,” id. ¶ 11.
Yet, while plaintiff’s FAC
asserts 16 claims, his proposed SAC (406 paragraphs, 95 pages)
asserts more than 40 claims.
Some are identical to claims
asserted in the first amended complaint,1 but, necessarily,
others are entirely new.2
Understandably concerned by the differences between the FAC
and the proposed SAC, both the ten defendants and Bisson point
out, correctly, that plaintiff has failed to comply with the
local rules of this court, which require plaintiffs moving to
amend their complaints to, among other things, “(ii) identify in
the motion or a supporting memorandum any new factual
allegations, legal claims, or parties, and (iii) explain why any
Each complaint includes a claim for negligence (Count 1 in
the FAC and Cause 33 in the proposed SAC).
The proposed SAC includes a claim that is captioned
“Malicious and Damaging Prosecution,” doc. no. 48-1, at 37,
while the FAC includes no such claim.
new allegations, claims, or parties were not included in the
complied with LR 15.1(a).
Lath concedes that he has not
However, denying Lath’s motion for
failure to comply with LR 15.1(a) would merely invite another
motion for leave to amend, and another round of objections.
the interest of conserving the resources of the parties, the
court allows Lath’s motion despite a lack of compliance with LR
2. Dilatory Motive/Opportunity to Cure
In reliance upon a chronicle of plaintiff’s history of
litigation in other fora, and this court’s characterization of
plaintiff’s “numerous recent filings [in this case as]
burdensome to the court and defendants,” Order (doc. no. 49) 2,
the ten defendants argue that plaintiff’s attempt to amend his
complaint is nothing more than a further use of the legal
process to harass them.
Bisson makes a similar point in his
argument that plaintiff has already had a sufficient opportunity
to cure any deficiencies in his original complaint.
sympathetic to defendants’ concern over having to defend against
a stream of claims that seems to continually shift and widen,
the court is also mindful of the indulgence it must afford
Lath’s pleadings, given his status as a pro se litigant.
Erickson, 551 U.S. at 94.
In the end, the court declines
defendant’s request to deny plaintiff’s motion on grounds of a
However, for the reasons explained below,
the court dismisses nine claims for failure to meet the Rule
12(b)(6) standard and dismisses five state law claims for lack
Leave to amend a complaint may be denied if “the complaint,
as amended, would fail to state a claim upon which relief could
D’Agostino v. ev3, Inc., 845 F.3d 1, 6 (1st Cir.
2016) (quoting Glassman v. Computervision Corp., 90 F.3d 617,
623 (1st Cir. 1996); citing 3 Moore’s Federal Practice ¶
15.08[f], at 15-80 (2d ed. 1993)).
As the court explains in
more detail in the section that follows, Causes 1, 4, 10, 14,
15, 18, 27, 29, and 30 of the SAC state claims upon which relief
can be granted.
Accordingly, plaintiff’s motion for leave to
amend cannot be denied on grounds of futility.
The Federal Rules provide that, generally speaking, leave
to amend a complaint should be freely given.
While there are
exceptions to that general rule, see Hagerty, 844 F.3d at 34,
none of them applies to the circumstances of this case.
Accordingly, Lath’s motion for leave to amend his FAC is
granted, which makes the SAC the operative complaint in this
B. Claims Moving Forward
While Lath’s SAC is now the operative complaint, the court
appreciates the difficulties of defending against a 95-page
complaint that comes nowhere close to meeting the “short and
plain statement” requirement of Rule 8(a) of the Federal Rules.
The court also appreciates the challenges in terms of efficiency
and economy that would result from directing Lath to correct the
deficiencies in the SAC.
In addition, the court recognizes that
in their three motions to dismiss the FAC, and in their two
objections to plaintiff’s motion for leave to amend, defendants
have argued that some of plaintiff’s claims do not pass muster
under Rule 12(b)(6), and that the court should decline to
exercise supplemental jurisdiction over some of plaintiff’s
state law claims.
Moreover, plaintiff has had an opportunity to
respond to all of those arguments.
In the interest of clarifying and simplifying things for
both sides, in the interest of conserving the resources of all
parties, and in the interest of judicial economy, the court will
devote the remainder of this order to evaluating each of the
claims asserted in the SAC.
As a result of that analysis, the
court will place each of those claims into one of four
categories: (1) claims that may proceed because they satisfy
Rule 12(b)(6); (2) claims that may proceed if plaintiff is able
to show cause why they should not be dismissed under Rule
12(b)(6);3 (3) claims that are dismissed because they do not
satisfy Rule 12(b)(6); and (4) state law claims that are
dismissed because the court lacks, or declines to exercise,
supplemental jurisdiction over them.
In addition, with respect
to each claim in the first category, the court will identify the
specific defendant(s) against whom plaintiff may pursue that
It would be conventional to evaluate the claims in
plaintiff’s SAC in the order in which they are presented.
SAC, however, is somewhat disjointed.
Thus, rather than
following the organizational scheme of the SAC, the court will
adopt its own, beginning its analysis with Lath’s federal claims
and then turning to the claims that arise under state law.
Moreover, for the sake of clarity, the court will impose its own
numbering scheme on plaintiff’s claims, and directs the parties
to use that numbering scheme as this case moves forward.
The claims in this category are those that the court finds
suspect for reasons that have not been articulated by any
defendant, and to which plaintiff has not had an opportunity to
1. Fair Housing Act
In Causes 1 through 13 of the SAC, Lath asserts claims that
arise under the federal Fair Housing Act (“FHA”), 42 U.S.C. §§
Those claims invoke five different theories of FHA
The court considers each theory in turn.
a. Race & Sexual Orientation Discrimination
Cause 4 of the SAC is a claim for housing discrimination
based upon race and sexual orientation.
Cause 4, in turn,
appears to be a reiteration of Count 7 of the FAC, which
Defendant Warren Mills [who, at the time, was the
president of the Association’s board of directors]
assaulted Lath, by forcing his way into Lath’s
residence, and shouting obscenities at Lath, calling
him a “faggot” and “sand nigger.” Such actions of
Mills were motivated because of Lath’s sexual
orientation as a bisexual man, and Lath’s national
origin and race. Such was a violation of 42 U.S.C. §
3604 et. seq.
Doc. no. 19 ¶ 31.
The SAC gives two different dates for the incident
underlying Cause 4.
¶ 182 (June 8, 2014).
See doc. no. 48-1 ¶ 180 (June 8, 2013) &
However, several exhibits attached to the
SAC make it clear that plaintiff intends to allege that the
incident took place on June 8, 2014.4
While no defendant raises this issue, the court notes that
civil enforcement under the FHA is subject to a two-year
limitation period. See 42 U.S.C. § 3613(a)(1)(A).
In the principal motion to dismiss the FAC, defendants
argue that Count 7 must be dismissed because the FHA’s antidiscrimination provisions do not apply to post-acquisition
However, this court has determined, in a previous
case, “that ‘the FHA does apply to post-acquisition
United States v. Avatar Props., Inc., No. 14-
cv-502-LM, 2015 WL 2130540, at *3 (D.N.H. May 7, 2015) (quoting
Comm. Concerning Cmty. Improv. v. City of Modesto, 583 F.3d 690,
713 (9th Cir. 2009)) (emphasis added).
argument does not entitle them to dismissal of Lath’s housing
That said, the court describes, briefly, the nature of
plaintiff’s housing discrimination claim.
The FHA makes it
unlawful “[t]o discriminate against any person in the terms,
conditions, or privileges of sale or rental of a dwelling, or in
the provision of services or facilities in connection therewith,
because of race, color, religion, sex, familial status, or
42 U.S.C. § 3604(b).
While the court of
appeals for this circuit has not yet been called upon to do so,
other courts have recognized a cause of action against those who
discriminate by creating a “hostile housing environment” based
upon the classifications identified in 42 U.S.C. § 3604(b).
See, e.g., West v. DJ Mortg., LLC, 164 F. Supp. 3d 1393, 1398
(N.D. Ga. 2016) (discrimination based on sex); Jackson v. Park
Place Condos. Ass’n, Inc., 619 F. App’x 699, 703 (10th Cir.
2015), cert. denied, 136 S. Ct. 484 (2015), reh’g denied, 136 S.
Ct. 887 (2016) (discrimination based on race).
This court will
assume, favorably to Lath, that if asked to do so, the First
Circuit would recognize a cause of action based upon the
creation of a hostile housing environment based upon sexual
orientation, race or national origin.5
may proceed with his claim under 42 U.S.C. § 3604(b).
Race and national origin are specifically listed in §
3604(b). Sexual orientation is not, and courts have held that
“[t]he FHA does not prohibit discrimination based on sexual
orientation in the sale or rental of housing.” Thomas v.
Wright, No. 2:14-cv-01604-RDP, 2014 WL 6983302, at *3 (N.D. Ala.
Dec. 10, 2014) (citing Ordelli v. Mark Farrell & Assocs., 2013
WL 1100811, *2 (D. Or. 2013); Miller v. 270 Empire Realty LLC,
2012 WL 1933798, *5 (E.D.N.Y. 2012); Fair Housing Ctr. of
Washtenaw Cty., Inc. v. Town & Country Apts., 2009 WL 497402,
*3, n.1 (E.D. Mich. 2009); Swinton v. Fazekas, 2008 WL 723914,
*5 (W.D.N.Y. 2008). However, in a recent case out of the
Northern District of Alabama, Judge Acker cited guidance
promulgated by the Department of Housing and Urban Development
interpreting the FHA’s prohibition of sex discrimination to
include “gender stereotyping” discrimination on the basis of
sexual orientation. Thomas v. Osegueda, No. 2:15-CV-0042-WMA,
2015 WL 3751994, at *4 (N.D. Ala. June 16, 2015). Construing
Lath’s complaint liberally, see Erickson, 551 U.S. at 94, the
court cannot say at this early stage that his claim of sexual
orientation discrimination is not cognizable under the FHA. See
Garayalde-Rijos v. Muni. of Carolina, 747 F.3d 15, 23 (1st Cir.
2014) (explaining that sua sponte dismissal is appropriate only
when it is “crystal clear” that the plaintiff cannot prevail and
that amending the complaint would be futile) (internal quotation
As this case moves forward, Lath’s § 3604(b) hostile
housing environment claim shall be referred to as Count 1.
b. Handicap Discrimination
Cause 1 of the SAC is a claim for housing discrimination,
in the form of a failure to provide Lath with a reasonable
accommodation for his mental handicap.
Cause 1, in turn,
appears to be a reiteration of Count 8 of the FAC.
is based upon the following factual allegation:
By constructively refusing to make reasonable
accommodations in [the] “no dog” policy as set forth
in Rule 9 of its Rules and Regulations for Oak Brook
Condominium Owners’ Association, and with an intent to
retaliate and harass [L]ath for filing a complaint
with [the New Hampshire Commission for Human Rights]
and [the Equal Employment Opportunity Commission],
when such accommodations were necessary to afford Lath
equal opportunity to use and enjoy his dwelling,
Defendants failed to reasonably accommodate Lath to
have the company of an “emotional support” dog.
FAC (doc. no. 19) ¶ 172.
Under the FHA, failure to modify the rules applicable to a
dwelling to provide a reasonable accommodation for a handicapped
occupant constitutes unlawful discrimination.
Condo. Ass’n v. Sec’y, HUD, 620 F.3d 62, 67 (1st Cir. 2010)
(citing 42 U.S.C. § 3604(f)(3)(B), which defines discrimination
to include “a refusal to make reasonable accommodations in
rules, policies, practices, or services, which such
accommodations may be necessary to afford [a handicapped] person
equal opportunity to use and enjoy a dwelling”).6
request for a reasonable accommodation may be constructively
denied when the entity from whom the accommodation is requested
unnecessarily delays its response.
See, e.g., United States v.
Town of Garner, 720 F. Supp. 2d 721, 729 (E.D.N.C. 2010)
(“Denial of a reasonable accommodation request may be actual or
constructive, ‘as an indeterminate delay has the same effect as
an outright denial’”) (quoting Groome Res., Ltd. v. Parish of
Jefferson, 234 F.3d 192, 199 (5th Cir. 2000)); see also Sabal
Palms Condos. of Pine Island Ridge Ass’n, Inc., 6 F. Supp. 3d
1272, 1290-91 (S.D. Fla. 2014) (“[i]n some circumstances, a
housing provider that refuses to make a decision could be found
to have constructively denied the request by ‘stonewalling’ and
short-circuiting the process”) (quoting Overlook Mut. Homes,
Inc. v. Spencer, 415 F. App’x 617, 622 (6th Cir. 2011)).
The FHA defines “handicap” to mean “(1) a physical or
mental impairment which substantially limits one or more . . .
major life activities, (2) a record of having such an
impairment, or (3) being regarded as having such an impairment.”
42 U.S.C. § 3602(h). Plaintiff supports his allegation that he
is handicapped with an excerpt from a 2011 disability
determination from the Social Security Administration, which
does not identify the impairment that rendered him disabled.
But, in a recent pleading, plaintiff referred to his current
“forty hour [per] week job,” Pl.’s Reply (doc. no. 56) ¶ 49,
which suggests that he may not be substantially limited in the
major life activity of working. In any event, whether Lath has
a handicap that is cognizable under the FHA is a question for
Cause 1 of the SAC appears to allege conduct that would
support a discrimination claim under 42 U.S.C. § 3604(f)(2)(A),
and no defendant has argued to the contrary.
argues, correctly, that Lath has failed to state a FHA
accommodation claim against him.
As the Association’s attorney,
Bisson was never in a position to grant Lath an exception to the
“no dog” policy in the first instance, which means that he
cannot be liable for any violation of § 3604(f)(2)(A).
defendant in a position to provide Lath with relief from the “no
dog” policy was the Association itself.
Accordingly, while Lath
has stated a claim under § 3604(f)(2)(A), the only defendant on
that claim is the Association.
As this case moves forward, Lath’s § 3604(f)(2)(A) claim
against the Association claim shall be referred to as Count 2.
Causes 2, 3, 7, and 13 of the SAC use the term
Causes 5 and 6 charge defendants with
intimidating and threatening various persons for participating
in activities protected under the FHA.
Cause 8 charges
defendants with making “threats and causing bodily injury,
thereby causing death, to persons participating lawfully in
speech or peaceful assembly and denial of such opportunities.”
SAC (doc. no. 48-1) 36.
Causes 9 and 12 charge defendants with
coercion, intimidation, and interference in violation of 42
U.S.C. § 3617, which is the FHA retaliation provision.
nine retaliation claims, in turn, appear to have their origin in
Count 9 of Lath’s FAC.
In the SAC, Lath alleges that because he
filed a discrimination claim against Mills, Grandmaison, and the
Association’s board of directors with the federal Equal
Employment Opportunity Commission (“EEOC”) and the New Hampshire
Commission for Human Rights (“HRC”),7 he was subjected to the
following acts of retaliation:
Mullen “surreptitiously installed cameras,
capable of capturing both images and sound,
inside Plaintiff’s residence, and/or its
curtilage,” SAC (doc. no. 48-1) ¶ 33;
Mullen, Morey, Sample, and Grandmaison filed
baseless claims against him with various law
enforcement and other public agencies, see id. ¶
Morey, Taylor, Cheryl Vallee, and Klardie
mishandled his request to keep an emotional
support dog; see id. ¶¶ 42-49
Morey, Taylor, Cheryl Vallee, Perry Vallee,
Bisson, Sample, and Grandmaison demanded a copy
of the key to his residence, see id. ¶ 69;
the same seven defendants refused to service the
heat to his unit in 2015, see id. ¶ 72;
The court notes that the FHA provides for administrative
enforcement through the Secretary of Housing and Urban
Development, not the EEOC. See 42 U.S.C. § 3610.
the same seven defendants refused to accept
packages or mail addressed to him, see id. ¶ 74;
the same seven defendants propounded fines
against him for violating the Association’s
rules, see id. ¶ 75;
the same seven defendants failed to take prompt
action to remedy the FHA violations he had
suffered, see id. ¶ 76; and
Sample assaulted him on May 26, 2016, see id. ¶
In the principal motion to dismiss the FAC, defendants object to
the manner in which Lath presented Count 9, but they do not
argue for the dismissal of the claims asserted therein.
However, there is a matter that be must addressed before Lath
may proceed with his retaliation claims.
The court of appeals for this circuit has not described the
contours of an FHA retaliation claim.
But Judge Woodlock has:
Section 3617 of the FHA further provides that a
person cannot “coerce, intimidate, threaten, or
interfere with any person in the exercise or enjoyment
of” rights protected under the FHA. 42 U.S.C. § 3617.
Actions under this section require the plaintiff to
make the following showing: (1) the plaintiff is a
member of an FHA-protected class; (2) the plaintiff
exercised a right protected by §§ 3603–06 of the FHA,
or aided others in exercising such rights; (3) the
defendants’ conduct was at least partially motivated
by intentional discrimination; and (4) the defendants’
conduct constituted coercion, intimidation, threat, or
interference on account of having exercised, aided, or
encouraged others in exercising a right protected by
the FHA. King v. Metcalf 56 Homes Ass’n, Inc., 385 F.
Supp. 2d 1137, 1142–43 (D. Kan. 2005).
S. Middlesex Opp. Council, Inc. v. Town of Framingham, 752 F.
Supp. 2d 85, 95 (D. Mass. 2010) (emphasis added).8
As for the
third element of a § 3617 claim, Judge Woodlock further
explained that “in connection with a disparate treatment claim
under Section 3604 and under Section 3617, 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.”
Id. at 95-96 (emphasis
added, internal quotation marks omitted).
Neither the FAC nor the SAC has much to say about animus
related to Lath’s protected characteristics, i.e., his race
and/or national origin.
To be sure, plaintiff alleges that
Mills once called him a “sand nigger.”
But plaintiff does not
allege that Mills engaged in any of the conduct underlying his
retaliation claim, and he makes no allegations of animus on the
part of any of the defendants who did engage in the conduct he
Plaintiff’s inadequate allegations of animus
While Judge Woodlock discussed the elements of a § 3617
claim, Count 9 of the FAC also cites § 3631. But as that
section provides for criminal penalties, it does not provide
Lath with a private cause of action. See, e.g., Lawton v. N.J.
Dep’t of Cmty. Affairs, Civ. No. 15-8526 (RBK/JS), 2016 WL
5012321, at *3 (D.N.J. Sept. 16, 2016) (citations omitted);
Lewis v. Doe, No. 16-cv-01167-EMC, 2016 WL 4411818, at *3 (N.D.
Cal. Aug. 19, 2016). Accordingly, Lath’s § 3631 claims are
dismissed, sua sponte. See Garayalde-Rijos, 747 F.3d at 23.
would appear to be fatal to his retaliation claims.
sua sponte dismissal can be appropriate “where ‘it is crystal
clear that the plaintiff cannot prevail and that amending the
complaint would be futile.’”
Garayalde-Rijos, 747 F.3d at 23
(quoting Chute v. Walker, 281 F.3d 314, 319) (1st Cir. 2001);
citing Gonzalez-Gonzalez v. United States, 257 F.3d 31, 37 (1st
While the court harbors concerns over the
allegations of animus in the SAC, the better course of action
with respect to plaintiff’s retaliation claims under § 3617,
i.e., Causes 2, 3, 5, 6, 7, 8, 9, 12, and 13 of the SAC, is to
give him an opportunity to show cause why those claims should
not be dismissed for failing to allege that “defendants’ conduct
was at least partially motivated by intentional discrimination.”
S. Middlesex, 752 F. Supp. 2d at 95.
At the end of this order,
the court will explain how, precisely, plaintiff must go about
If he is able to do so, then he will be allowed
to continue pursuing his retaliation claims.
If he declines to
show cause, or is unable to do so, then those claims will be
As this case moves forward, Lath’s nine § 3617 retaliation
claims shall be referred to as Counts 3(a)–(i).
d. Discriminatory Preference
Cause 10 of the SAC is captioned “Unlawful Representation
by Printing and Publishing a Notice and Statement that Indicates
a Preference for ‘True Service Dogs.’”
Doc. no. 48-1, at 36.
The FAC does not include a separate claim for “unlawful
However, both the FAC and the SAC include this
Defendants engaged in a discriminatory practice by
printing, or publishing, or caus[ing] to be made,
printed, or published any notice, statement, or
advertisement, with respect to the sale or rental of a
dwelling, or provision of its services or facilities,
in connection with this dwelling, that . . . indicate
preference, limitation, or discrimination, based on
handicap or an intention to make any such preference,
limitation, or discrimination which were published by
Defendants in a periodic newsletter, that state a
preference for “real service dogs” only.
Doc. no. 19 ¶ 27 (FAC); doc. no. 48-1 ¶ 27 (SAC).
dogs’ on property.
In his SAC,
“Defendants have only allowed ‘true service
Defendants made it clear in a summer
Id. ¶ 156.9
Neither the principal
The quoted statement concludes with a citation to Exhibit
66, but Exhibit 66 is not the Association’s summer newsletter;
it is a set of interrogatory answers that Mills produced in a
case in the New Hampshire Superior Court. In attempt to locate
the newsletter, the court examined Exhibits 56 through 76,
without success. The SAC includes numerous erroneous citations
to the record. The court admonishes Lath to peruse his future
filings carefully and take care to correct these kinds of
errors. Such mistakes complicate the jobs of both the court and
motion to dismiss the FAC nor the ten defendants’ objection to
Lath’s motion to amend the FAC makes any specific mention of the
claim asserted in Cause 10, but the ten defendants do argue,
generally, that Cause 10 does not state a claim upon which
relief can be granted.
The court does not agree.
The FHA includes a provision which makes it unlawful for a
[t]o make, print, or publish, or cause to be made,
printed, or published any notice, statement, or
advertisement, with respect to the sale or rental of a
dwelling that indicates any preference, limitation, or
discrimination based on race, color, religion, sex,
handicap, familial status, or national origin, or an
intention to make any such preference, limitation, or
42 U.S.C. § 3604(c).
The court of appeals has acknowledged that
“[t]here is not much case law under the [FHA] in this circuit.”
Astralis, 620 F.3d at 66.
Indeed, in Langlois v. Abington
Housing Authority, a case that involved a claim that a local
housing authority published an advertisement that indicated
racial preferences, Judge Gertner looked outside the circuit to
find the elements of a claim under § 3604(c):
[O]ther courts have construed the requirement in §
3604(c) as follows: the standard for a § 3604(c)
violation is whether “an ad for housing suggests to an
ordinary reader that a particular race is preferred or
dispreferred for the housing in question.” Ragin v.
New York Times Co., 923 F.2d 995, 999 (2d Cir. 1991)
(citing United States v. Hunter, 459 F.2d 205, 215
(4th Cir. 1972) and Spann v. Colonial Village, Inc.,
899 F.2d 24 (D.C. Cir. 1990)); see also Jancik v.
Dep’t of Housing & Urban Devel., 44 F.3d 553, 556 (7th
Cir. 1995) (“Significantly, no showing of a subjective
intent to discriminate is . . . necessary to establish
a violation of [§ 3604(c)].”); see also Ragin, 923
F.2d at 1000.
234 F. Supp. 2d 33, 78–79 (D. Mass. 2002).
While the statements in Langlois appeared in advertisements
and other publications intended to attract applicants to Section
8 rental assistance programs, courts have entertained § 3604(c)
claims based upon regulations published by entities such as the
See, e.g., Fair Housing Ctr. of the Greater Palm
Beaches, Inc. v. Sonoma Bay Cmty. Homeowners Ass’n, Inc., 136 F.
Supp. 3d 1364, 1368 (S.D. Fla. 2015) (condominium rules alleged
to discriminate against children); Llanos v. Estate of Cohelo,
24 F. Supp. 2d 1052, 1060 (E.D. Cal. 1998) (apartment complex
rules that discriminated against children).
In light of cases
such as Fair Housing Center, and the court’s obligation to
construe plaintiff’s complaint liberally, see Erickson, 551 U.S.
at 94, the court concludes that plaintiff has stated a claim
upon which relief can be granted based on the publication of an
item in the Oak Brook newsletter stating that when considering
requests for exceptions to the Association’s “no dog” policy,
the Association prefers to grant such exceptions to residents
who need “true service dogs,” which could be construed as a
preference for unit owners with handicaps that require service
dogs over unit owners with handicaps that require emotional
As this case moves forward, Lath’s § 3604(c) claim shall be
referred to as Count 4.
e. ANSI Compliance
Cause 11 of the SAC is captioned “Non-compliance with ANSI
A117.1 Sec 804(f)(3)(C)(iii).”
Doc. no. 48-1, at 36.
does not include a separate claim based upon ANSI 117.1, but
both the FAC and the SAC include this paragraph:
Defendants engaged in discriminatory practices, by
being non-compliant with the appropriate requirements
of the American National Standard for buildings and
facilities providing accessibility and usability for
physically handicapped people (commonly cited as “ANSI
Doc. no. 19 ¶ 26 (FAC); doc. no. 48-1 ¶ 26 (SAC).
neither the 112 paragraphs of general allegations that precede
Cause 11 in the SAC nor the 186 paragraphs of factual
allegations that follow Cause 11 say anything further about ANSI
Neither the principal motion to dismiss the FAC
nor the ten defendants’ objection to Lath’s motion to amend the
And, as best the court can tell, plaintiff does not
allege that he has any physical handicap, so it is difficult to
see how, with respect to ANSI compliance, he is “[a]n aggrieved
person,” 42 U.S.C. § 3613(a)(1)(A), entitled to bring a claim
for an alleged failure to comply with ANSI.
FAC ever mentions the ANSI compliance claim asserted in Cause
To be sure, a failure to comply with ANSI 117.1 could give
rise to liability for discrimination under the FHA.
U.S.C. §§ 3604(f)(1), (3) & (4).
But because Lath has made no
factual allegations concerning ANSI compliance, it is difficult
to see how Cause 11 states a claim upon which relief can be
See O’Shea ex rel. O’Shea v. UPS Ret. Plan, 837 F.3d
67, 77 (1st Cir. 2016) (“to survive a motion to dismiss, a
complaint must contain sufficient factual material to state a
facially plausible claim”).
Accordingly, before he may proceed
on Cause 11, Lath must show cause why the claim asserted therein
should not be dismissed for failure to state a claim upon which
relief can be granted.
As this case moves forward, Lath’s § 3604(f)(2) ANSI
compliance claim shall be referred to as Count 5.
2. Civil Rights Statutes
In Causes 21 and 31 of his SAC, Lath asserts claims arising
under 42 U.S.C. §§ 1983, 1985(2), and 1996.
The court discusses
each legal theory in turn.
a. Section 1983
In Cause 31 of his SAC, through the vehicle of 42 U.S.C. §
1983, plaintiff accuses Morey, Klardie, Bisson, Taylor, and both
Vallees of violating his constitutional right to substantive due
process by: (1) appointing Perry Vallee to the Association’s
board of directors; (2) applying his condominium fee to the
payment of fines that were imposed upon him; and (3) preventing
him from voting in a condominium election on grounds that he was
not in good standing.
Cause 21 of the SAC is captioned
“Deprivation of Civil Rights 42 U.S.C. 1981-1996 et. seq.”
no. 48-1, at 72, and given that caption, Cause 21 may represent
an attempt to assert a claim under § 1983.
Lath made claims in
Count 10 of his FAC that are substantially similar to those
asserted in Cause 31 of his SAC.
In both the principal motion
to dismiss the FAC and in the ten defendants’ objection to
plaintiff’s motion for leave to amend, defendants argue that
plaintiff has failed to state a claim pursuant to § 1983 because
he has not alleged that any of the actions on which he bases his
§ 1983 claims were undertaken under color of state law.
Defendants are correct.
“42 U.S.C. § 1983 . . . furnishes a cause of action against
any person who, while acting under color of state law,
transgresses someone else’s constitutional rights.”
Lynch, 847 F.3d 71, 74 n.1 (1st Cir. 2017) (citing Kalina v.
Fletcher, 522 U.S. 118, 123 (1997)).
To succeed on a § 1983
claim, a plaintiff “must show: (1) that the complained-of
conduct was committed under the color of state law, and (2) that
such conduct violated his constitutional or federal statutory
Miller v. Town of Wenham, 833 F.3d 46, 51 (1st Cir.
2016) (citing Chongris v. Bd. of Appeals, 811 F.2d 36, 40 (1st
The problem with Lath’s § 1983 claims is that he
has not adequately alleged that any of the conduct he challenges
in those claims was undertaken under color of state law.
In Jarvis v. Village Gun Shop, Inc., 805 F.3d 1 (1st Cir.
2015), cert. denied, 136 S. Ct. 2020 (2016), a case in which the
plaintiff attempted to use § 1983 to sue “a privately owned
storage facility,” id. at 4, the court of appeals “train[ed] the
lens of [its] inquiry on the ‘under color of state law’
requirement,” id. at 8.
The court began by noting that
[b]ecause [the under color of state law] requirement
is the functional equivalent of the Fourteenth
Amendment’s “state action” requirement, see Perkins v.
Londonderry Basketball Club, 196 F.3d 13, 17 n.1 (1st
Cir. 1999), “we regard case law dealing with either of
these formulations as authoritative with respect to
the other, and we use the terminologies
interchangeably,” Santiago [v. Puerto Rico], 655 F.3d
[61,] 68 [(1st Cir. 2011)].
The court continued:
When the named defendant in a section 1983 case is a
private party, the plaintiff must show that the
defendant’s conduct can be classified as state action.
See Rendell–Baker v. Kohn, 457 U.S. 830, 838 (1982).
The state action inquiry is preliminary to, and
independent of, the due process inquiry. If there is
no state action, the plaintiff’s claim fails. See id.
The bar for such a showing is set quite high, and
we have cautioned that “[i]t is ‘[o]nly in rare
circumstances’ that private parties can be viewed as
state actors.” Estades–Negroni v. CPC Hosp. San Juan
Capestrano, 412 F.3d 1, 4 (1st Cir. 2005) (quoting
Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir.
1992)) (alterations in original). This inquiry is
typically factbound. See Brentwood Acad. v. Tenn.
Secondary Sch. Athl. Ass’n, 531 U.S. 288, 295–96
(2001); Burton v. Wilmington Parking Auth., 365 U.S.
715, 722 (1961) (explaining that “[o]nly by sifting
facts and weighing circumstances can the nonobvious
involvement of the State in private conduct be
attributed its true significance”).
Id., 805 F.3d at 8 (parallel citations omitted).
There are three ways in which a plaintiff may show that a
private entity has acted under color of state law:
State action may be found if the private party
“assumes a traditional public function when performing
the challenged conduct,” or if the private party’s
conduct is “coerced or significantly encouraged by the
state,” or if the private party and the state have
become so intertwined that they were effectively
“joint participant[s]” in the challenged conduct.
Santiago, 655 F.3d at 68 (quoting Estades–Negroni, 412
F.3d at 5).
Id. (emphasis added).
In his SAC, plaintiff makes the following allegation in an
attempt to satisfy the state action requirement: “defendants
acted under the color of authority, granted to them under the NH
Condominium Act and NH Voluntary Associations Act.”
48-1 ¶ 394.
Plainly, that is not an allegation that any
defendant took any of the three challenged actions under state
And almost as plainly, plaintiff does not
adequately allege that in taking the challenged actions, all of
which involved the Association’s governance, any defendant was
“perform[ing] a service that, traditionally, the state has
Jarvis, 805 F.3d at 11.11
That leaves the possibility that defendants were engaged in
joint action with the state, based upon the fact that the
Association operates under one or more statutory schemes.
However, “for purposes of demonstrating the required nexus
between state action and private action, . . . it [is]
insufficient simply to point to a state statute authorizing the
actions of the private entity.”
Jarvis, 805 F.3d at 9 (citing
Jackson v. Metro. Edison Co., 419 U.S. 345, 350 (1974); Perkins,
196 F.3d at 20).
But a pair of authorizing statutes is the sole
basis for Lath’s contention that the § 1983 defendants engaged
in joint action with the state.
That is not enough.
Jarvis, 805 F.3d t 9; see also Alberto San, Inc. v. Consejo de
Titulares del Condo. San Alberto, 522 F.3d 1, 4-5 (1st Cir.
2008) (affirming dismissal of § 1983 action against condominium
Plaintiff does contend that “Oak Brook assum[es] a quasigovernment function by providing heat and water to its
residents.” SAC (doc. no. 48-1) ¶ 112. Whether the provision
of heat and water is a “traditional public function,” Jarvis,
805 F.3d at 8, none of the conduct that plaintiff challenges
through the vehicle of § 1983 involved the provision of heat or
water. Thus, the Association’s assumption of those functions
did not make it a state actor for the purpose of plaintiff’s §
1983 claims. See id.
board and owners, and ruling that board vote, taken in
conformance with Puerto Rico statute governing condominium
voters’ rights, was not state action).
Because Lath has failed to adequately allege that any
defendant was acting under color of state law when engaging in
the conduct that allegedly violated his constitutional rights,
he has failed to state a § 1983 claim upon which relief can be
Thus, Cause 31 of the SAC is dismissed in its
entirety, and to the extent that Cause 21 asserts a § 1983
claim, it is also dismissed.
b. Section 1985(2)
Cause 21 of the SAC is captioned: “Deprivation of Civil
Rights 42 U.S.C. 1981-1996 et. seq.”
Doc. no. 48-1, at 72.
Construing the SAC liberally, see Erickson, 551 U.S. at 94, the
court presumes that Lath intends for Cause 21 to encompass
claims under 42 U.S.C. § 1985(2) that are asserted either
expressly or implicitly in paragraphs 95, 97, 105, 118, and 120
of the SAC.
Those claims, in turn, appear to be rooted in Count
5 of the FAC, which asserts a claim for obstruction of justice,
in violation of both 42 U.S.C. § 1985(2) and 18 U.S.C. §§ 15011521.
In the principal motion to dismiss the FAC, defendants
argue that Lath has not sufficiently alleged facts to support
the conspiracy aspect of his § 1985(2) claims, and that the
witness intimidation component of Count 5 of the FAC, asserted
in paragraph 118, fails because § 1985(2) applies only to
witnesses in proceedings pending in federal court.
objection to Lath’s motion for leave to amend, the ten
defendants do not specifically address plaintiff’s § 1985(2)
For the reasons that follow, the § 1985(2) claims
asserted in paragraphs 95, 97, and 105 are dismissed, and before
plaintiff may proceed on the § 1985(2) claims asserted in
paragraphs 118 and 120, he must show cause why they should not
“Section 1985 concerns conspiracies to violate civil
. . .
Section 1985(2) pertains to conspiracies to
obstruct justice or to interfere with witnesses.”
Perez, Civ. Action No. 16-11860-RGS, 2016 WL 6871233, at *7 (D.
Mass. Nov. 21, 2016).
Section 1985(2) consists of two clauses.
The first prohibits the deterrence “by force, intimidation, or
threat, [of] any party or witness in any court of the United
States, from attending such court, or from testifying to any
matter pending therein . . . .”
42 U.S.C. § 1985(2).
The second clause of Section 1985(2) creates a
cause of action where “two or more persons conspire
for the purpose of impeding, hindering, obstructing,
or defeating, in any manner, the due course of justice
in any State or Territory, with intent to deny to any
citizen the equal protection of the laws. . . .”
Powell v. Massachusetts, No. 16-cv-30004-MGM, 2016 WL 7115887,
at *11 (D. Mass. Sept. 20, 2016) (quoting 42 U.S.C. § 1985(2)),
R. & R. adopted by 2016 WL 7118260 (Dec. 6, 2016).12
Magistrate Judge Robertson went on to explain:
“There are . . . four elements of a § 1985(2) claim:
(1) a conspiracy between two or more persons, (2) to
impede, hinder, obstruct, or defeat, in any manner,
the due course of justice in any State, (3) with
invidiously discriminatory animus, (4) which results
in injury to plaintiff.” Bolduc v. Town of Webster,
629 F. Supp. 2d 132, 150-51 (D. Mass. 2009) (citing
Greco v. Fitzpatrick, 59 F.3d 164, *1 (1st Cir. 1995)
(unpublished disposition)). A plaintiff may recover
“only when the conspiratorial conduct of which he
complains is propelled by ‘some racial, or perhaps
otherwise class-based, invidiously discriminatory
animus.’” Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.
1996) (citing Griffin v. Breckenridge, 403 U.S. 88,
102 (1971)). Thus, Plaintiff “must allege facts
showing that (1) the defendants conspired against
[him] because of [his] membership in a class, and (2)
the criteria defining the class are invidious.” Id.
Powell, 2016 WL 7115887, at *11 (emphasis added).
As for the
Stating a claim under Section  requires
plausible allegations of an agreement among the
conspirators to violate a plaintiff’s rights (or
factual allegations that allow the reasonable
inference of such an agreement). See LeBaron v.
Spencer, 527 Fed. Appx. 25, 33 (1st Cir. 2013);
Williams v. City of Boston, 771 F. Supp. 2d 190, 204
(D. Mass. 2011). Further, “allegations of conspiracy
must . . . be supported by material facts, not merely
In light of the second clause of § 1985(2), the ten
defendants are incorrect in arguing that plaintiff’s claim of
witness intimidation is fatally flawed because the witness at
issue was not involved in matters pending in federal court.
conclusory statements” and such claims of conspiracy
are subject to dismissal where the allegations
“neither elaborate  nor substantiate[the] bald
claims that certain defendants ‘conspired’ with one
another.” Slotnick v. Garfinkle, 632 F.2d 163, 165–66
(1st Cir. 1980) (per curiam).
Olmo v. Narker, No. CV 14-13434-WGY, 2015 WL 4535669, at *3 (D.
Mass. July 27, 2015).13
To the extent that plaintiff’s § 1985(2) claims are based
upon the facts alleged in paragraphs 95, 97, and 105 of the SAC,
those claims are dismissed.
That is because: (1) paragraphs 95,
97, and 105 all assert conspiracy claims while identifying only
a single defendant; and (2) a conspiracy necessarily involves
two or more persons, see Powell, 2016 WL 7115887, at *11.
That leaves two § 1985(2) claims based upon the factual
allegations in paragraphs 118 and 120 of the FAC.
paragraphs do, in fact, allege conduct by two or more persons,
thus partially satisfying the conspiracy element of a § 1985(2)
But, it is far less clear that either of those two
paragraphs includes allegations sufficient to satisfy the
agreement aspect of a conspiracy claim.
However, even assuming
that the facts alleged in paragraphs 118 and 120 allow for a
The first sentence of the quotation from Olmo actually
refers to § 1983, but both the context and the citation to
LaBaron make it clear that the reference to § 1983 was a
typographical error, and that the sentence was intended to refer
to § 1985.
reasonable inference of an agreement among the defendants
mentioned in those paragraphs, there is another problem common
to the claims asserted in both paragraphs.
As Judge Robertson pointed out in Powell, a § 1985(2)
“plaintiff may recover only when the conspiratorial conduct of
which he complains is propelled by some racial, or perhaps
otherwise class-based, invidiously discriminatory animus.”
WL 7115887, at *11 (citation and internal quotation marks
The only allegations of discriminatory animus to be
found anywhere in either the FAC or the SAC concern the incident
in which Warren Mills called Lath a “sand nigger.”
however, is not identified as a defendant in any of the
paragraphs of factual allegations that support plaintiff’s
§ 1985(2) claims.
Accordingly, before plaintiff may proceed on
his two remaining § 1985(2) claims, he must show cause why those
claims should not be dismissed for failure to allege that the
alleged acts of conspiracy were caused by invidiously
In addition to addressing the matter of animus, plaintiff’s
response to the court’s show cause order should also address the
following specific issues.
Paragraph 118 of the SAC accuses
nine defendants of “individually or in concert, obstruct[ing]
the administration of justice [through] witness tampering and
intimidation by threatening or caus[ing] to [be] threaten[ed],
witness Jason Manugian and/or his family [with] bodily harm.”
Doc. no. 48-1 ¶ 118.
That allegation is highly conclusory; Lath
says nothing at all about who did what to Manugian to threaten
or intimidate him.14
That is a problem because “[t]hreadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice [to state a claim upon
which relief can be granted].”
Ashcroft, 556 U.S. at 678.
in paragraph 120, plaintiff does not even identify any specific
defendants, much less allege the conduct on which the claim is
The foregoing deficiencies in paragraphs 118 and 120
must be resolved before Lath may proceed on his two remaining §
As this case moves forward, the § 1985(2) claims arising
from the conduct alleged in paragraphs 118 and 120 of the SAC
shall be referred to as Counts 6 and 7.
c. Section 1986
Finally, plaintiff accuses Morey, Taylor, Klardie, Bisson,
and both Vallees of violating 42 U.S.C. § 1986 by failing to
Moreover, the evidence Lath cites in his SAC to support
this claim, a transcript of a voice mail from Manugian, see doc.
no. 48-334, shows that Manugian became reluctant to testify for
Lath in a court case, but does not support an allegation that
two or more persons threatened Manugian to prevent him from
testifying, with the intent to deprive Lath of the equal
protection of the laws.
prevent the violations of § 1985(2) discussed in the previous
See SAC (doc. no. 48-1) ¶ 119.
Plaintiff’s § 1986
claim rises and falls with his § 1985(2) claims.
status of plaintiff’s § 1985(2) claims is yet to be determined,
his § 1986 claim is not subject to dismissal at this point, and
shall remain a part of the case.
The status of the § 1986 claim
is, of course, subject to review depending upon the disposition
of the § 1985(2) claims.
As this case moves forward, Lath’s § 1986 claim shall be
referred to as Count 8.
3. Obstruction of Justice (Criminal)
In addition to asserting obstruction of justice claims
under 42 U.S.C. 1985(2), plaintiff also asserts, in Cause 32 of
the SAC, that Dufresne, Grandmaison, the Association, Sample,
Bisson, Morey, and someone named Dorothy Vachon committed
various acts that violated 18 U.S.C. § 1512.
Cause 32, in turn,
has its origins in the second of two claims captioned “Count 5”
in the FAC,15 which asserts, in a single count, that various
defendants obstructed justice, in violation of both 42 U.S.C. §
1985(2) and 18 U.S.C. §§ 1501-1521.
Plaintiff’s FAC contains two claims captioned Count 4,
two claims captioned Count 5, and two claims captioned Count 11.
As defendants argue in the principal motion to dismiss the
FAC, 18 U.S.C. § 1512 does not provide for a private right of
As Magistrate Judge Collings has explained:
Title 18 U.S.C. § 1512 is a federal criminal statute
that prohibits the obstruction of justice by tampering
with a witness in a pending federal proceeding. As
discussed above, as a private citizen, Cichocki does
not have standing to initiate a criminal action
against another. Keenan [v. McGrath], 328 F.2d 610,
611 [(1st Cir. 1964)]. Further, 18 U.S.C. § 1512 does
not provide for a private cause of action. See Reilly
v. Concentrex, Inc., No. CIV 99–983–HU, 1999 WL
1285883 (D. Or. Nov. 19, 1999) (no private cause of
action under Section 1512); Gipson v. Callahan, 18 F.
Supp. 2d 662, 668 (W.D. Tex. 1997) (same); Naehu v.
Provest, No. CIV. 97–00262 ACK, 1997 WL 1037947, *2
(D. Haw. Aug. 12, 1997) (same).
Cichocki v. Mass. Bay Cmty. Coll., Civ. Action No. 12-10728-GAO,
2013 WL 783068, at *10 (D. Mass. Feb. 28, 2013).
U.S.C. § 1512 does not provide for a private cause of action,
plaintiff has not stated a federal claim for obstruction of
justice under that statute, and the claims asserted in Cause 32
of the SAC are dismissed.
Cause 26 of the SAC is captioned “Racketeering Activities
Under R.I.C.O. Predicate Act – Mail Fraud – 18 U.S.C. 1341,”
doc. no. 48-1, at 76, and an unnumbered claim that starts on
page 90 of the SAC is captioned “Conspiracy to Violate and
Violations of 18 USC 1961-1968a (RICO), Tortious Interference
Those claims, in turn, originated with Count
14 of the FAC, which is captioned “Conspiracy and Fraud Pursuant
to Racketeering Influenced Corrupt Organization (RICO), 18
U.S.C. (sec) 1962, and Request for Treble Damages.”
19, at 76.
In the principal motion to dismiss the FAC,
defendants argue that plaintiff does not adequately allege facts
to support the racketeering activity element of a RICO
In their objection to plaintiff’s motion for
leave to amend, the ten defendants argue that plaintiff has
failed to allege fraud with adequate specificity and that he has
failed to adequately allege mail fraud.
For the reasons that
follow, Lath’s RICO claims are dismissed.
Under the heading “Prohibited activities,” the RICO statute
provides, in pertinent part:
(c) It shall be unlawful for any person employed
by or associated with any enterprise engaged in, or
the activities of which affect, interstate or foreign
commerce, to conduct or participate, directly or
indirectly, in the conduct of such enterprise’s
affairs through a pattern of racketeering activity or
collection of unlawful debt.
New Hampshire recognizes a cause of action for tortious
interference with contractual relations. See City of Keene v.
Cleaveland, 167 N.H. 731, 738 (2015). But plaintiff alleges no
facts corresponding to any of the elements of that tort. So, to
the extent, if any, that the unnumbered claim on page 90 is
intended to assert a claim for tortious interference with
contractual relations, that claim is dismissed. See O’Shea, 837
F.3d at 77.
(d) It shall be unlawful for any person to
conspire to violate any of the provisions of
subsection (a), (b), or (c) of this section.
18 U.S.C. § 1962.
The statute defines “racketeering activity”
to include conduct that violates any one of several dozen
specific provisions of the U.S. criminal code.
See 18 U.S.C. §
Finally, the statute gives a private right of
action to parties injured by conduct proscribed by § 1962.
18 U.S.C. § 1964.
While the SAC makes passing references to a deprivation of
honest services, see doc. no. 48-1 ¶¶ 370-71, and embezzlement,
see id. ¶ 404, the racketeering activity on which plaintiff
bases his RICO claim and his RICO conspiracy claim is mail
fraud, in violation of 18 U.S.C. § 1341.
And, indeed, mail
fraud is listed among the criminal acts that qualify as
racketeering activity under RICO.
See 18 U.S.C. § 1961(1)(B).
But, as the ten defendants correctly point out, plaintiff has
failed to allege facts that, if proven, would establish a
violation of the mail fraud statute.
Plaintiff accuses defendants of committing mail fraud by
refusing, on several occasions, to sign for and accept postal
deliveries on his behalf when he was not at home to receive them
See SAC (doc. no. 48-1) ¶¶ 349, 350, 358, and 359.
Some of those deliveries, plaintiff alleges, contained
“important medications,” id. ¶ 366, while others contained
“information concerning his secret security clearance, that
contained private and privileged information filed with the
Defense Contract Management Agency,” id. ¶ 74.
plaintiff, the Association owed him a contractual duty to accept
mail on his behalf, and committed mail fraud by failing to do
Under the federal criminal code, mail fraud has the
(1) a scheme to defraud based on false pretenses; (2)
the defendant’s knowing and willing participation in
the scheme with the intent to defraud; and (3) the use
of interstate mail communications in furtherance of
United States v. Tavares, 844 F.3d 46, 58 (1st Cir. 2016)
(quoting United States v. Hebshie, 549 F.3d 30, 35–36 (1st Cir.
2008) (internal formatting omitted); citing United States v.
Cheal, 389 F.3d 35, 41 (1st Cir. 2004)).
The court of appeals
“The federal mail fraud statute does not purport
to reach all frauds, but only those limited instances
in which the use of the mails is a part of the
execution of the fraud, leaving all other cases to be
dealt with by appropriate state law.” Schmuck v.
United States, 489 U.S. 705, 710 (1989) (quoting Kann
v. United States, 323 U.S. 88, 95 (1944)). “[T]he
mailing must be ‘for the purpose of executing the
scheme, as the statute requires.’” United States v.
Maze, 414 U.S. 395, 400 (1974) (quoting Kann, 323 U.S.
Tavares, 844 F.3d at 58 (parallel citations omitted).
Based upon Tavares, it is evident that Lath has failed to
allege facts sufficient to support his assertion that one or
more of the defendants committed mail fraud.
A person commits
mail fraud by using the mails to defraud another.
however, plaintiff does not allege that any defendant used the
mails in any way but, rather, he alleges that some defendants
prevented him from receiving his mail.
To be sure, the federal
criminal code makes it unlawful to: (1) “obstruct or retard
the passage of the mail,” 18 U.S.C. § 1701; (2) steal mail, see
18 U.S.C. § 1708; and (3) receive or possess stolen mail, see
And, while plaintiff may have alleged facts that would
support a claim that one or more of the defendants obstructed or
stole his mail, a matter on which the court offers no opinion,
those crimes do not qualify as racketeering activity for
purposes of the RICO statute.
Because plaintiff has not alleged facts sufficient to
establish that any defendant engaged in racketeering activity,
see 18 U.S.C. § 1961(a), he has necessarily failed to state a
claim upon which relief can be granted under RICO.
both Cause 26 of the SAC and the unnumbered RICO conspiracy
claim asserted on page 90 of the SAC are dismissed.
In Cause 33 of his SAC, plaintiff charges Grandmaison,
Sample, Klardie, Morey, and the Association with negligence for
failing to install security cameras in the Oak Brook parking
Cause 33 is an abbreviated version of Count 1 from the
FAC, in which plaintiff identified other acts of negligence
surrounding the Association’s failure to install security
cameras and asserted that he had been harmed by defendants’
negligence because his cars had been vandalized while parked in
the Oak Brook parking lot.
In their objection to plaintiff’s
motion for leave to amend, the ten defendants argue that
plaintiff has failed to state a claim for negligence because he
has failed to identify “any duty that he claims Defendants have
breached with respect to him.”
Doc. no. 53 ¶ 14.
plaintiff has attempted to identify a duty, the duty he
identifies is insufficient as a matter of law.
Under New Hampshire law, a “plaintiff [claiming negligence]
has the ‘burden to prove facts upon which the law imposes a duty
of care, breach of that duty, and so-called proximate causation
Yager v. Clauson, 169 N.H. 1, 5 (2016) (quoting N.
Bay Council, Inc. v. Bruckner, 131 N.H. 539, 542 (1989)).
“Whether a duty exists in a particular case is a question of
Riso v. Dwyer, 168 N.H. 652, 654 (2016) (citing England
v. Brianas, 166 N.H. 369, 371 (2014)).
In Cause 33 of his SAC,
plaintiff claims that defendants were aware of vandalism in the
Oak Brook parking lot and, thus, were “under the duty to
exercise reasonable care, by installing security cameras in the
premises, . . . commensurate with the foreseeable risk of danger
to the two cars of the Plaintiff and other residents.”
48-1 ¶ 406.17
Defendants, however, were under no such duty.
In Walls v. Oxford Management Co., this court certified the
following question to the New Hampshire Supreme Court: “Does New
Hampshire law impose a duty on landlords to provide security to
protect tenants from the criminal attacks of third persons?”
137 N.H. 653, 655 (1993).
The court answered:
We hold that while landlords have no general duty
to protect tenants from criminal attack, such a duty
may arise when a landlord has created, or is
responsible for, a known defective condition on a
premises that foreseeably enhanced the risk of
criminal attack. Moreover, a landlord who undertakes,
either gratuitously or by contract, to provide
security will thereafter have a duty to act with
reasonable care. Where, however, a landlord has made
no affirmative attempt to provide security, and is not
responsible for a physical defect that enhances the
risk of crime, we will not find such a duty. We
reject liability based solely on the landlord-tenant
relationship or on a doctrine of overriding
This citation is to the paragraph 406 that starts on page
90 of the SAC, not the paragraph 406 that appears on page 91.
Id. at 659.
Because plaintiff has alleged no facts that would
establish either of the two recognized exceptions to the general
rule that landlords have no duty to protect tenants from the
criminal acts of third parties, the negligence claim he asserts
in Cause 33 fails to state a claim upon which relief can be
granted and, therefore, is dismissed.
In Cause 18 of his SAC, plaintiff asserts a claim for
eavesdropping, in violation of RSA 570-A.
As best the court can
tell, that claim is based upon allegations that: (1) “[s]hortly
after [the] . . . incident [involving Mills and Lath], Defendant
Betty Mullen . . . installed cameras that were capable of
recording both images and sound, in and/or around Lath’s
residence and its curtilage,” doc. no. 48-1 ¶ 311; and (2) on
November 22, 2015, Bisson surreptitiously recorded the
Association’s annual meeting, see id. ¶ 233.18
In his FAC,
plaintiff asserted claims for invasion of privacy and
eavesdropping, and supported both claims with allegations
concerning Mullen’s installation of cameras.
¶¶ 33, 152.
See doc. no. 19
Mullen moved to dismiss the eavesdropping claim
Plaintiff also alleges that Perry Vallee installed a
camera in his bathroom, see SAC (doc. no. 48-1) ¶ 232, but he
does not appear to base his eavesdropping claim on that factual
asserted against her in the FAC on grounds that the court lacked
supplemental jurisdiction over it.19
Bisson objects to
plaintiff’s motion for leave to amend on grounds that the SAC
does not state a claim for eavesdropping against him because
Lath did not have a reasonable expectation of privacy at the
meeting where Bisson allegedly recorded his verbal
Bisson’s objection to plaintiff’s eavesdropping
claim is meritorious but, at this juncture, Mullen’s is not.
The problem with plaintiff’s eavesdropping claim against
Bisson is that he has not adequately alleged that Bisson
intercepted an oral communication.
New Hampshire law gives a
civil cause of action to “[a]ny person whose . . . oral
communication is intercepted . . . against any person who
intercepts . . . such communication.”
statute defines “interception” to “mean the aural or other
acquisition of, or the recording of, the contents of any . . .
oral communication through the use of any electronic,
mechanical, or other device.”
RSA 570-A:1, III.
In the principal motion to dismiss the FAC, defendants
argue that the court should not exercise supplemental
jurisdiction over plaintiff’s eavesdropping claim on grounds
that Oak Brook has already prevailed on a similar claim in an
action in the Superior Court. But that argument is based upon a
characterization of Counts 3 and 4 of the FAC as being based on
allegations concerning the recording of the Association’s 2015
annual meeting. The claims asserted in Counts 3 and 4, however,
are based exclusively on Mullen’s installation of cameras.
communication,” in turn, “means any verbal communication uttered
by a person who has a reasonable expectation that the
communication is not subject to interception, under
circumstances justifying such expectation.”
RSA 570-A:1, II.
Plaintiff’s claim fails because he has not alleged any
communication on his part that satisfies the statutory
definition of “oral communication.”
complaint liberally, see Erickson, 551 U.S. at 94, the
communications on which he bases his eavesdropping claim against
Bisson are things he said at the Association’s 2015 annual
However, the Association’s by-laws, which plaintiff
attached to his SAC, provide that the secretary of the
Association shall keep minutes of the Association’s meetings.
See doc. no. 48-137, at 10.
Thus, Lath had no reasonable
expectation that his verbal communications at the annual meeting
were not subject to interception.
As a result, nothing he said
at the annual meeting was an oral communication for purposes of
the New Hampshire eavesdropping statute.
Absent an allegation
that Bisson intercepted an oral communication, plaintiff has
failed to state a claim upon which relief can be granted against
Bisson for eavesdropping.
Accordingly, Bisson is entitled to
dismissal of plaintiff’s eavesdropping claim against him.
Mullen, however, does not argue that plaintiff has failed
to adequately state an eavesdropping claim against her.
she argues that plaintiff has asserted no federal claims against
her and that plaintiff’s state law eavesdropping claim is so
unrelated to his federal claims that the court lacks
supplemental jurisdiction over it under 28 U.S.C. § 1367(a).
Alternatively, she argues that even if the court does have
jurisdiction under § 1367(a), it should decline to exercise that
jurisdiction because “the [eavesdropping] claim substantially
predominates over the claim or claims over which the district
court has original jurisdiction,” 18 U.S.C. § 1367(c)(2), and
because “the district court has dismissed all claims over which
it has original jurisdiction,” 18 U.S.C. § 1367(c)(3).
court is not persuaded by Mullen’s arguments.
First of all, the court cannot agree with Mullen that
plaintiff’s allegation that she installed cameras trained on his
unit is “entirely distinct from the discrimination, Fair
Housing, civil rights, and racketeering claims alleged under
federal law against other Defendants.”
no. 33-1) 4.
Def.’s Mem. of Law (doc.
To the contrary, in paragraphs 33 through 36 of
both the FAC and the SAC, plaintiff identifies Mullen’s
installation of cameras as contributing to the hostile housing
environment he faced at Oak Brook (Count 1) and as an act of
retaliation (Count 3(a)).
In other words, plaintiff’s
allegations about Mullen’s installation of cameras support both
his state law eavesdropping claim against her and two of his FHA
While plaintiff may not prevail on the claims asserted
in Counts 1 and 3(a), their presence in this case gives the
court supplemental jurisdiction over plaintiff’s state law
eavesdropping claim under § 1367(a).
Moreover, as the court has
not dismissed all of the claims over which it has original
jurisdiction, § 1367(c)(3) does not apply, and given the scope
of plaintiff’s FHA claims alone, it can hardly be said that
plaintiff’s eavesdropping claim predominates over the federal
claims that remain viable.
In sum, the court has supplemental
jurisdiction over plaintiff’s eavesdropping claim against
Mullen, and is not inclined to decline that jurisdiction
pursuant to §§ 1367(c)(2) or (3).
In sum, plaintiff may proceed on his eavesdropping claim
against Mullen, and as this case moves forward, that claim shall
be referred to as Count 9.
7. Invasion of Privacy - Intrusion on Seclusion
In Cause 27 of his SAC, plaintiff asserts a claim for
invasion of privacy, based upon allegations that Perry Vallee
installed a camera in his unit.
He appears not to have asserted
any such claim in the FAC; the invasion of privacy claim in his
FAC is limited to allegations concerning Mullen’s installation
The ten defendants argue that Cause 27 “could not survive a
motion to dismiss because Plaintiff already raised it in a New
Hampshire state court, and it is entirely unrelated to any other
claim in the Second Amended Complaint.”
no. 53) ¶ 10.
Defs.’ Joint Obj. (doc.
In defendants’ view, because “Plaintiff has
already raised his invasion of privacy claim in state court, it
would be contrary to all of the policies underlying supplemental
jurisdiction for this Court to address that claim.”
court is not persuaded.
Just as plaintiff’s eavesdropping claim
against Mullen is sufficiently related to his FHA claims, his
invasion of privacy claim is sufficiently related to his civil
conspiracy claim, discussed below, to establish the court’s
supplemental jurisdiction over it under 28 U.S.C. § 1367(a).20
Based upon the foregoing, plaintiff may proceed on his
invasion of privacy claim against Parry Vallee, and as this case
moves forward, that claim shall be referred to as Count 10.
That said, the court notes that the ten defendants have
suggested that the claim asserted in Count 10 has already been
Nothing in this order shall preclude
In that claim, plaintiff charges Mullen with
participating in a conspiracy to violate his rights under the
defendants from invoking the doctrines of res judicata or
collateral estoppel at some point down the line.
8. Invasion of Privacy - False Light
In Cause 29 of his SAC, plaintiff asserts a claim for
invasion of privacy, based upon allegations that in a case in
the Superior Court, Dufresne introduced statements and documents
implying that Lath was suffering from a mental illness, thus
placing him in a false light.
Count 4 of his FAC.
Plaintiff made the same claim in
Dufresne has neither moved to dismiss the
FAC nor objected to plaintiff’s motion for leave to amend it.
As the court has been presented with no basis for dismissing
plaintiff’s invasion of privacy claim against Dufresne, he may
proceed on it.
As this case moves forward, that claim shall be
referred to as Count 11.
In Cause 30 of his SAC, plaintiff asserts a claim for
defamation, based upon allegations that in a case in the
Superior Court, Dufresne introduced statements about him made by
Barbara Belware that brought him into disrepute.
the same claim in the first Count 5 of his FAC.
For the same
reasons that apply to plaintiff’s false light invasion of
privacy claim, his defamation claim against Dufresne may
As this case moves forward, that claim shall be
referred to as Count 12.
10. Malicious Prosecution
In Cause 16 of his SAC, plaintiff asserts a claim against
“Defendants and their agents,” doc. no. 48-1 ¶ 244, for
That claim arises from the dismissal of
a stalking petition that had been filed against Lath by a nowdeceased former neighbor, Gail LaBuda.
No such claim appears in
In their objection to plaintiff’s motion for leave to
amend, the ten defendants argue, generally, that Cause 16 does
not state a claim upon which relief can be granted.
Under New Hampshire law, “[t]he four elements of a claim
for malicious prosecution are: (1) the plaintiff was subjected
to a criminal prosecution or civil proceeding instituted by the
defendant; (2) without probable cause; (3) with malice; and (4)
the prior action terminated in the plaintiff’s favor.”
v. City of Concord, 168 N.H. 430, 445 (2015) (citing Ojo v.
Lorenzo, 164 N.H. 717, 727 (2013)).
The dismissed stalking
petition on which plaintiff bases his malicious prosecution
claim was initiated by Gail LaBuda, who died on February 9,
See SAC (doc. no. 48-1) ¶ 248.
In addition to being
deceased, LaBuda is not a defendant in this action.
Accordingly, plaintiff has failed to state a claim upon which
relief can be granted for malicious prosecution, which entitles
all defendants to dismissal of the claim asserted in Cause 16.
11. Abuse of Legal Process
In Cause 17 of his SAC, plaintiff asserts a claim for abuse
of process against “Defendants.”
Doc. no. 48-1 ¶ 313.
Specifically, he claims:
Defendants abused the legal process [through] the
pleading of a stalking petition and various baseless
complaints concerning the plaintiff when the defendant
(1) entertained an ulterior motive in using the Law
and (2) in a wrongful manner to harass the Plaintiff
(3) committed this [willful] act [through] the
coercion to obtain a collateral advantage in defending
the complaints pending before the Commission or run
Lath out of money.
The “various baseless complaints” to which plaintiff
refers in paragraph 313 appear to be these:
[a]fter having dual filed a complaint of
discrimination with [the] HRC and [the] EEOC, against
defendants, Warren Mills, Vickie Grandmaison and Scott
Sample . . . Defendants William Quinn Morey, Scott
Plaintiff makes another allegation that is apparently
intended to support a claim for abuse of process:
Cyndy Camp and Michael Camp, abused the judicial
process by irregularly, corruptly, improperly or
wrongfully using a judicial proceeding, in the
furtherance of the retaliation against Lath, by
alleging Lath has stalked Board member, Gail Labuda
since June 8, 2014.
SAC (doc. no. 48-1) ¶ 66. However, neither of the Camps is a
defendant in this action, so the foregoing allegations are
Sample, Vickie Grandmaison, Betty Mullen and other
members of the board, including Gail Labuda, filed [a]
multitude of false and baseless claims, with the
Manchester Police Department, Manchester Fire
Department, New Hampshire Department of Elderly
Services, alleging Lath to be an “arsonist” and a
“murderer”, that initiated or caused to [be]
initiate[d] criminal or civil proceedings against the
The said Defendants were without any reasonable
grounds whatsoever, to believe that the allegations
were true, and in some cases, staged the reasons
themselves for criminal claims made with the Police
and Fire Department. Such actions . . . were
committed with the sole purpose of intimidating and
harassing the Plaintiff, or creat[ing] a “quid pro quo
harassment” and “hostile environment.”
SAC (doc. no. 48-1) ¶¶ 38-39.
appears in plaintiff’s FAC.
No claim for abuse of process
In their objection to plaintiff’s
motion for leave to amend, the ten defendants argue, generally,
that Cause 17 does not state a claim upon which relief can be
The court agrees.
In New Hampshire, “[a] party claiming abuse of process must
prove the following elements: (1) a person used (2) legal
process, whether criminal or civil, (3) against the party (4)
primarily to accomplish a purpose for which it is not designed
and (5) caused harm to the party (6) by the abuse of process.”
Tessier v. Rockefeller, 162 N.H. 324, 335 (2011) (quoting Long
v. Long, 136 N.H. 25, 29 (1992)).
As the Tessier court further
The gravamen of the misconduct for which [liability
for abuse of process] is imposed is not the wrongful
procurement of legal process or the wrongful
initiation of criminal or civil proceedings . . . .
The subsequent misuse of the process, though properly
obtained, constitutes the misconduct for which the
liability is imposed.
162 N.H. at 335 (quoting Long, 136 N.H. at 29-30) (emphasis
Here, even viewing plaintiff’s SAC most liberally, see
Erickson, 551 U.S. at 94, all plaintiff alleges is the wrongful
initiation of criminal or civil proceedings.
insufficient to state a claim for abuse of process.
Tessier, 162 N.H. at 335.
Accordingly, all defendants are
entitled to dismissal of the claim asserted in Cause 17.
12. Breach of the Implied Covenant
In Cause 15 of his SAC, plaintiff asserts a claim for
breach of the implied covenant of good faith and fair dealing.
While plaintiff’s style of pleading makes it difficult to
ascertain the basis for Cause 15, this paragraph appears to
contain his claim:
[W]ith an intent to retaliate against Lath for having
filed a complaint with the Human Rights Commission and
[the] EEOC, in or around October 2015, Defendants
Scott Walker Sample, William Quinn Morey, Cheryl
Vallee, Perry Vallee, John Bisson, Vickie Lynn Davis
Grandmaison and Patty Taylor, either collectively or
in a conspiracy or individually, and without any
notice, refused to accept any packages and mail for
Lath, a service that Lath is promised [through] the
implied covenants, and for which Lath contributes his
share, to the Common Assessment Fund, pursuant to NH
SAC (doc. no. 48-1) ¶ 74.22
In the section of the SAC devoted to
his RICO claim, plaintiff makes the following factual
allegations that appear to pertain to his claim for breach of
the implied covenant:
Orientation information is provided to every new
resident who decides to make Oak Brook, his/her home.
Defendant Bisson testified that the orientation
information is an implied covenant. SAC ¶ 342
(citations to the record omitted).
This Orientation information, states “UPS and
other packages will be accepted at the office if you
are not home at the time of delivery.” Id. ¶ 344
(citation to the record omitted).
On October 10, 2015 Lath received a USPS slip
indicating package is “at clubhouse.” When Lath went
to the club house to pick [up] the package Defendants
and [their] agents conceded that Lath’s package was
not there. Id. ¶ 349 (citation to the record
On October 19, 2015, another package was denied
by Defendants and [their] agents. Another UPS package
slip stated that it was “left at office.” When Lath
went to retrieve the package, it was not there. Id. ¶
350 (citations to the record omitted).
Plaintiff also asserted a claim for breach of the implied
covenant of good faith and fair dealing in the first Count 11 of
his FAC, but the breach alleged in Count 11 was the application
of his condominium fee to the satisfaction of purportedly
unlawful fines imposed against him by the Association, not the
Association’s refusal to accept packages for him. Even when the
court construes the SAC liberally, see Erickson, 551 U.S. at 94,
plaintiff’s claim for breach of the implied covenant of good
faith and fair dealing appears to be based solely upon
defendants’ failure to accept his mail.
“[P]rior to October 2015, Lath’s packages were being
accepted by office staff. Despite [the] “promise” to
accept packages, that [was] made during the
orientation and again in August 2014, and irrespective
of the fact, that Lath’s packages were being accepted
until October 2015, Grandmaison, testified, “it was
never required that we [office] ever take packages.”
Id. ¶ 358 (citation to the record omitted).
Another package which the mail carrier attempted
to deliver was mishandled by the Defendants and their
agents. Id. ¶ 358 (citations to the record omitted).
On November 05, 2016, Cheryl Vallee refused to
accept another package of Lath[’s], when Lath asked
his friend and neighbor, Barbara Belware, to pick up
the package. Vallee “did not leave the office to
verify that Lath’s package was in the mail room” but
rather stated, “We do not have his package, how do I
know where they are . . .” Id. ¶ 359 (citation to the
In their objection to plaintiff’s motion for leave to amend, the
ten defendants argue, generally, that Cause 15 does not state a
claim upon which relief can be granted.
While the SAC does not
state a claim for breach of the implied covenant of good faith
and fair dealing, it does state a claim for breach of contract.
In Centronics Corp. v. Genicom Corp., 132 N.H. 133 (1989),
the New Hampshire Supreme Court explained that in its cases, it
had recognized an implied covenant of good faith and fair
dealing “in three distinct categories of contract cases: those
dealing with standards of conduct in contract formation, [those
dealing] with termination of at-will employment contracts, and
[those dealing] with limits on discretion in contractual
Id. at 139.
It is self-evident that this case
does not fall into either of the first two categories.
it fit into the third.
A case falls into the third category when the underlying
agreement “confer[s] upon the defendant a degree of discretion
in performance tantamount to a power to deprive the plaintiff of
a substantial proportion of the agreement’s value.”
Id. at 144.
For an example of such a contract, the Centronics court turned
to “New Hampshire’s seminal case on the implied obligation of
good faith performance,” id. at 141, which involved “a contract
to pay $200 a month for such personal services as the plaintiff,
in his sole discretion, may render,” id. (quoting Griswold v.
Heat Inc., 108 N.H. 119, 124 (1967)) (internal quotation marks
and brackets omitted).
In Griswold, the court relied upon the
implied covenant to hold that the contract at issue “required
the plaintiff to provide a level of services consistent with
Centronics, 132 N.H. at 141.
Here, plaintiff does not allege the existence of a contract
such as the one in Griswold.
Rather, he alleges that he had an
express agreement with the Association that required the
Association to accept his mail.
Thus, he has not stated a claim
for breach of the implied covenant of good faith and fair
dealing, but he has stated a claim for breach of contract.
As this case moves forward, Lath’s breach of contract claim
against the Association shall be referred to as Count 13.
13. Proxy Abuse
In Cause 20 of his SAC, plaintiff asserts a claim captioned
“Proxy Abuse: RSA 356-B:39 (III)-(IV), RSA 292:6-b (IV),” doc.
no. 48-1, at 72, which is the same claim that he asserted as the
second Count 11 in his FAC, see doc. no. 19, at 67.
speaking, that claim is based upon allegations concerning the
use of proxies during Association elections and, in particular,
the format of the proxy form and defendants’ use of the proxy
process to retain their seats on the Association’s board of
In the principal motion to dismiss the FAC,
defendants do not address the merits of plaintiff’s proxy abuse
claim but, rather, argue that the court “should . . . decline to
exercise supplemental jurisdiction over Plaintiff’s proxy abuse
claim as it raises complex issues regarding the use of proxies
during condominium association elections.”
(doc. no. 26-1) 18.
Defs.’ Mem. of Law
The court agrees.
To begin, it is far from clear that the court has
supplemental jurisdiction over plaintiff’s proxy abuse claim in
the first instance.
The federal FHA and civil rights claims
that remain in this case are based upon allegations concerning
conduct directed toward Lath.
The conduct on which the proxy
abuse claim is based seems entirely unrelated to the conduct on
which the FHA and civil rights claims are based, which strongly
suggests a lack of supplemental jurisdiction.
See 28 U.S.C. §
But, even if the court has supplemental jurisdiction
over plaintiff’s proxy abuse claim, § 1367(c)(1) counsels
against exercising that jurisdiction.
Plaintiff’s proxy abuse
claim arises primarily under a provision in New Hampshire’s
Condominium Act that has been the subject of no reported
decisions from the New Hampshire Supreme Court.
resolution of that claim will necessarily involve dealing with
“a novel . . . issue of State law,” id., and the court declines
to do so.
Accordingly, the claim asserted in Cause 20 is
dismissed for want of supplemental jurisdiction.
14. Theft by Deception
In Cause 24 of his SAC, Lath asserts that “[d]efendants
committed the crime of theft by deception,” doc. no. 48-1 ¶ 327,
and then he goes on to make allegations concerning purportedly
false representations that defendants made about the amount of
money the Association spent on fire alarms, water, and sewerage.
No claim for theft by deception appears in plaintiff’s FAC.
their objection to plaintiff’s motion to amend, the ten
defendant argue, generally, that Cause 24 does not state a claim
upon which relief can be granted.
The court agrees.
invoking RSA 637:4 as the legal basis for the claim he asserts
in Cause 24, plaintiff demonstrates why that claim must be
RSA 637:4 is a part of the New Hampshire criminal
code and, as such, does not provide a private right of action.
Accordingly, defendants are entitled to dismissal of the claim
asserted in Cause 24.
In Cause 23 of his SAC, plaintiff asserts a claim captioned
“Embezzlement from Common Assessment Funds.”
Doc. no. 48-1, at
This is his embezzlement claim in full:
Defendants, their agents and employees have embezzled
from this Common Assessment fund that residents and
owners entrusted the Defendants with. Defendants
wrongfully appropriated these funds by inflating the
amounts that were actually billed for fire alarms and
other utilities such as gas, water, sewer, electricity
and professional services. Defendants were in a
position of trust, such as a member of the board, an
employee or otherwise a contractor.
Id. ¶ 326.
No such claim appears in plaintiff’s FAC.
objection to plaintiff’s motion to amend, the ten defendant
argue, generally, that Cause 23 does not state a claim upon
which relief can be granted.
They are correct.
While Cause 23 is captioned “Embezzlement,” it is best
understood as a claim for theft by unauthorized taking or
See RSA 637:3, II.
Because RSA 637:3, II is a part
of the New Hampshire criminal code, the claim plaintiff asserts
in Cause 23 is dismissed for the same reasons that apply to
Cause 24, plaintiff’s claim for theft by deception.
In Cause 14 of his SAC, plaintiff asserts a claim that
bears the one-word caption “Conspiracy.”
Doc. no. 48-1, at 36.
That claim appears to have originated with Count 13 of the FAC,
(a) the Defendant, its agents and/or employees, and
each of them (“coconspirators”), committed the
unlawful, tortious acts, complained herein above, in
this cause of action, jointly and in individual
capacity as actors in a civil conspiracy (b) to harass
the Plaintiff and cause the Plaintiff financial,
emotional and mental injury, and injury to Plaintiff’s
reputation (c) and such purposes were either achieved
under the pretext and guise of fulfilling the
covenants of the Condominium instruments, or such
acts, that are complained herein above, were
negligently purported [sic] by the coconspirators (d)
that the coconspirators had an agreement on their
course of action to conceal such lawful acts (e) and
all such alleged actions and conduct of the
coconspirators, as complained [of] in this cause of
action, were tortious and unlawful.
Doc. no. 19 ¶ 226.
In the principal motion to dismiss the FAC,
defendants argue that the court should decline to exercise
supplemental jurisdiction over plaintiff’s claim for civil
conspiracy because that cause of action “involve[s] different
elements than Plaintiff’s Fair Housing Act claims and relate[s]
to different facts.”
Defs.’ Mem. of Law (doc. no. 26-1) 17.
his SAC, plaintiff repeats the statement of his claim from the
See doc. no. 48-1 ¶ 307.
He also adds several more
specific allegations demonstrating that he is charging various
defendants with engaging in a conspiracy to retaliate against
him for exercising his rights under the FHA.
See id. ¶¶ 72, 74-
Having clarified plaintiff’s claims, the court turns to the
[U]nder New Hampshire law, the elements of a civil
conspiracy are: “(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 object or course of action; (4) one
or more unlawful overt acts; and (5) damages as the
proximate result thereof.”
In re Armaganian, 147 N.H. 158, 163 (2001) (emphasis in the
original) (quoting Jay Edwards, Inc. v. Baker, 130 N.H. 41, 47
Given that plaintiff is alleging a conspiracy to
violate the FHA, the court concludes that the conspiracy claim
is sufficiently related to plaintiff’s federal claims to justify
the exercise of supplemental jurisdiction over it pursuant to 28
U.S.C. § 1367(a).
Accordingly, at this point, Lath may proceed
with the conspiracy claim he asserts in Cause 14 against both
Vallees, Morey, Klardie, Grandmaison, Taylor, Mullen, Sample,
As this case moves forward, Lath’s civil conspiracy claim
shall be referred to as Count 14.
17. Fraud, Etc.
In Cause 19 of his SAC, plaintiff asserts a claim captioned
“Fraud, Deceit, Misrepresentation, Misapplication and
Misappropriation of Funds.”
Doc. no. 48-1, at 72.
to be a restatement of Count 12 of the FAC, which is captioned
“Fraud, Deceit, Misrepresentation, Misapplication of Property,
Disposition Violations Pursuant to RSA 356-B.”
Doc. no. 19, at
That claim, in turn, is based upon allegations concerning
the Association’s acquisition and resale of Unit 702.
plaintiff’s view, that transaction was improper for several
In the principal motion to dismiss the FAC,
defendants argue that the court should decline to exercise
supplemental jurisdiction over the claims asserted in Count 12
of the FAC because those claims “involve different elements than
Plaintiff’s Fair Housing Act claims and relate to different
Defs.’ Mem. of Law (doc. no. 26-1) 17.
The surviving federal claims in this case are based upon
allegations of discriminatory conduct directed toward Lath.
claims asserted in Cause 19 are all based upon allegations about
actions taken by various defendants while managing the affairs
of the Association.
Those two sets of allegations are not
sufficiently related to one another to invoke the court’s
See 28 U.S.C. § 1367(a).
Accordingly, defendants are entitled to dismissal of the
claim(s) asserted in Cause 19.
18. Disposition of Real Estate Property
In Cause 22 of his SAC, plaintiff asserts a claim captioned
“Disposition of Real Estate Property.”
Doc. no. 48-1, at 72.
That claim appears to have been split off from Count 12 of the
FAC, the caption of which includes the phrase “disposition
violations pursuant to RSA 356-B.”
Doc. no. 19, at 70.
same reasons that apply to the claim discussed in the previous
section, the court lacks supplemental jurisdiction over the
claim asserted in Cause 22.
Accordingly, defendants are
entitled to dismissal of that claim.
For the reasons described above, plaintiff’s motion for
leave to amend his complaint, document no. 48, is granted in
part, and the three pending motions to dismiss, documents 26,
30, and 33, are all denied as moot.
The claims asserted in Causes 19, 20, 22, 23, and 24 of the
SAC are dismissed for lack of supplemental jurisdiction, and the
claims asserted in Causes 16, 17, 26, 31, 32, 33, and the § 1983
claims asserted in Cause 21 are dismissed for failure to state a
claim upon which relief can be granted.
On the other hand, Lath may continue to pursue the
Count 1: a claim under 42 U.S.C. § 3604(b) against
Mills and the Association, for creating a hostile
housing environment based upon Lath’s sexual
orientation, race or national origin.
Count 2: a claim under 42 U.S.C. § 3604(f)(2)(A)
against the Association, for handicap based housing
discrimination resulting from a constructive failure
to allow Lath to have an emotional support dog.
Count 4: a claim under 42 U.S.C. § 3604(c) against the
Association, for publishing a notice indicating a
preference for handicapped people who need true
service dogs over those who need emotional support
Count 9: an eavesdropping claim under RSA 570-A:11
against Mullen, for installation cameras in and/or
around Lath’s residence.
Count 10: a common law invasion of privacy claim
against Perry Vallee, for installing a camera in
Count 11: a common law false light invasion of privacy
claim against Dufresne, for statements he made about
Lath in filings in the Superior Court.
Count 12: a common law defamation claim against
Dufresne, for introducing statements about Lath in an
action in the Superior Court.
Count 13: a breach of contract claim against the
Association, for failing to accept mail addressed to
Count 14: a common law civil conspiracy claim against
Cheryl Vallee, Perry Vallee, Morey, Klardie,
Grandmaison, Taylor, Mullen, Sample, and Bisson, for
conspiring to violate the FHA by retaliating against
In addition, plaintiff may continue to pursue the following
claims, if he is able to show cause why they should not be
Counts 3(a)-(i): retaliation, in violation of 42
U.S.C. § 3617.
Count 5: failure to comply with ANSI, in violation of
42 U.S.C. § 3604(f)(2).
Count 6: conspiracy to obstruct justice, in violation
of 41 U.S.C. § 1985(2), based upon threats made to
witness Jason Manugian.
Count 7: conspiracy to obstruct justice, in violation
of 42 U.S.C. § 1985(2), based upon the destruction or
alteration of evidence.
Count 8: failure to prevent violations of § 1985(2),
in violation of 42 U.S.C. § 1986.
For each claim subject to the show cause order, Lath must inform
the court whether he intends to continue pursuing that claim, or
prefers to voluntarily dismiss it.
For each claim that Lath
wishes to pursue, he must, in no more than three pages per
claim: (1) identify the specific defendant or defendants; (2)
specify the cause of action (for example, negligence); (3) state
the elements of that cause action (i.e., duty, breach of that
duty, injury, and a causal link between the breach of duty and
the injury); and (4) allege facts that satisfy each element of
the cause of action.
Lath must file his response on or before
April 19, 2017. Defendants, in turn, shall have 20 days from the
date of Lath’s filing to respond.
United States District Judge
March 20, 2017
Gary M. Burt, Esq.
Sanjeev Lath, pro se
Sabin R. Maxwell, Esq.
Daniel E. Will, Esq.
Joshua M. Wyatt, Esq.
Gerard Dufresne, pro se
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