Lath v. Vallee et al
ORDER denying 51 Motion to Intervene; denying 76 Motion to Strike 68 Response to Motion, 69 Response to Motion. 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 065
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
Plaintiff Sanjeev Lath owns a unit in the Oak Brook
Condominium (“Oak Brook”).
He has asserted multiple claims
against the Oak Brook Condominium Owners’ Association
(“Association”) and eleven individual defendants: six present or
former members of the Association’s board of directors, two
present or former Oak Brook employees, two other unit owners,
and the Association’s attorney.
Before the court is a motion to
intervene as a plaintiff, filed by another Oak Brook unit owner,
Barbara Belware, who is appearing pro se.
An objection to
Belware’s motion has been filed or joined by eleven of the
The twelfth defendant, unit owner Gerald
Dufresne, who is also appearing pro se, has filed a “reply” to
Belware, in turn, has moved to strike
For the reasons that follow, Belware’s two
motions are both denied.
I. Motion to Intervene
The Federal Rules of Civil Procedure (“Federal Rules”)
provide for two types of intervention, intervention as of right
and permissive intervention.
Belware argues that she is
entitled to intervene under both theories.
The court does not
In this section, the court considers each form of
intervention in turn, but begins by describing the claims in
this case, as a baseline for evaluating Belware’s motion.
In an order dated March 20, 2017, the court dismissed some
of the claims that Lath asserted in his second amended complaint
(“SAC”), but permitted him to continue pursuing these nine
Count 1: a claim under the federal Fair Housing Act
(“FHA”), against Warren Mills and the Association, for
creating a hostile housing environment based upon
Lath’s sexual orientation, race, and national origin.
Count 2: an FHA claim against the Association, for
handicap based housing discrimination resulting from a
constructive failure to grant Lath an exception to Oak
Brook’s “no dogs” policy so that he could have an
emotional support dog.
Count 4: an FHA claim against the Association, for
publishing a notice indicating a preference for
handicapped people who need true service dogs over
those who need emotional support dogs.
Count 9: an eavesdropping claim under N.H. Rev. Stat.
Ann. § 570-A:11 against Betty Mullen, for installing
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 making statements 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
Mullen, Cheryl Vallee, Perry Vallee, William Morey,
Christos Klardie, Vickie Grandmaison, Patty Taylor,
Scott Sample, and John Bisson, for conspiring to
violate the FHA by retaliating against Lath.
In addition, the court informed plaintiff that if he were able
to show cause why they should not be dismissed, he would be
permitted to continue pursuing these additional claims:
Counts 3(a)-(i): claims that various defendants
retaliated against him, in violation of the FHA, for
filing a discrimination claim against Mills,
Grandmaison, and the Association’s board of directors
with the Equal Employment Opportunity Commission and
the New Hampshire Commission for Human Rights.
Count 5: an FHA claim for failure to comply with the
American National Standards for buildings and
Count 6: a claim under 42 U.S.C. § 1985(2) for
conspiracy to obstruct justice, based upon threats
that were made to witness Jason Manugian.
Count 7: a claim under 42 U.S.C. § 1985(2) for
conspiracy to obstruct justice, based upon the
destruction or alteration of evidence.
Count 8: a claim under 42 U.S.C. § 1986 for failure to
prevent violations of § 1985(2).
Having described the case in which Belware seeks to intervene,
the court turns to the two legal bases for intervention.
B. Rule 24(a)(2) – Intervention as of Right
With respect to intervention as of right, the Federal Rules
provide, in pertinent part:
On timely motion, the court must permit anyone to
. . . .
claims an interest relating to the property
or transaction that is the subject of the
action, and is so situated that disposing of
the action may as a practical matter impair
or impede the movant’s ability to protect
its interest, unless existing parties
adequately represent that interest.
Fed. R. Civ. P. 24(a).
As for the specific requirements imposed
by Rule 24(a)(2), the court of appeals has recently explained:
Successful intervention by right under this rule
requires intervenors to demonstrate that (1) their
motion is timely; (2) they have an interest related to
the property or transaction that forms the foundation
of the ongoing action; (3) the disposition of the
action threatens to impair or impede their ability to
protect their interest; and (4) no existing party
adequately represents their interest. Ungar v.
Arafat, 634 F.3d 46, 50 (1st Cir. 2011). Failure to
satisfy any one of the four requirements defeats
intervention by right. Id. at 51.
Students for Fair Admissions, Inc. v. President & Fellows of
Harvard Coll., 807 F.3d 472, 474 (1st Cir. 2015).
“[t]he inherent imprecision of Rule 24(a)(2)’s individual
elements dictates that they ‘be read not discretely, but
together,’ and always in keeping with a commonsense view of the
Pub. Serv. Co. of N.H. v. Patch, 136 F.3d
197, 204 (1st Cir. 1998) (quoting United States v. Hooker Chems.
& Plastics Corp., 749 F.2d 968, 983 (2d Cir. 1984)); see also
Daggett v. Comm’n on Gov’t Ethics & Election Practices, 172 F.3d
104, 110 (1st Cir. 1999) (noting connection between second and
Belware may not intervene as of right in this action
because she has failed to satisfy the second requirement, “an
interest related to the property or transaction that forms the
foundation of the ongoing action.”
The court of appeals
has described the related interest requirement this way:
It is black-letter law that an aspiring
intervenor’s claim “must bear a sufficiently close
relationship to the dispute between the original
litigants.” Travelers Indem. [Co. v. Dingwell], 884
F.2d [629,] 638 [(1st Cir. 1989)] (internal quotation
marks omitted). Although this requirement is not
amenable to a surgically precise definition, we know
that the interest must be direct and “significantly
protectable.” Donaldson v. United States, 400 U.S.
517, 531 (1971); see Patch, 136 F.3d at 205; 7C
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice & Procedure § 1908.1, at 309 (3d ed.
Ungar, 634 F.3d at 51 (parallel citations omitted).
words, “[t]o satisfy the ‘interest’ requirement [a potential
intervenor must] assert, at a minimum, that it has something at
stake in the underlying action.”
Id. at 52.
For example, in B.
Fernández & Hnos., Inc. v. Kellogg USA, Inc., 440 F.3d 541, 545
(1st Cir. 2006), the court of appeals determined that a
potential intervenor had a protectable interest when it had
contractual rights that would be affected by the remedy sought
by the plaintiff in the underlying action.
In support of her motion, Belware argues that she “has a
substantial, legally-protectable interest in the outcome of this
litigation,” Belware’s Mem. of Law (doc. no. 51-2) 12, but she
identifies no claim in Lath’s original complaint or either of
his two amended complaints that involves her legal rights in any
Moreover, based upon its review of the nine claims that
Lath has been permitted to pursue and the additional claims that
he might be permitted pursue, the court can discern no claim
asserted by Lath in this action in which Belware has a stake.
That is fatal to her attempt to intervene as of right.
In her reply brief, Belware points out that Lath’s “Second
Amended Complaint . . ., has Belware’s name mentioned forty four
times alleging various unlawful actions perpetrated by the
Defendants against her.”
Belware’s Reply (doc. no. 62) 6.
also describes the SAC as “narrat[ing] a timeline of events in
paragraphs 157 [through] 178 delineating Defendants’ sporadic
notices,” id. at 7, in response to her request to be notified
before Oak Brook’s landscapers sprayed chemicals.
of Lath’s allegations about defendants’ treatment of Belware
have any bearing on any of Lath’s claims, and Lath’s inclusion
of irrelevant factual allegations concerning Belware in his FAC
does not give her any stake in the outcome of his claims.
Belware’s attempt to establish a protectable interest in this
case by citing the SAC falls short of the mark.
Belware has failed to establish the second requirement for
intervention as of right under Rule 24(a)(2).
She has also failed to establish the third requirement,
i.e., that the disposition of Lath’s suit threatens to impair or
impede her ability to protect her interest.
Fair Admissions, 807 F.3d at 474.
See Students for
In an attempt to meet the
third requirement, Belware argues:
Disposition of this action may, as a practical matter,
impede and impair the interest Movant claims in this
action. If Plaintiff Lath is successful, movant, who
has suffered direct and palpable injury to herself may
lose her right to sue for injury she has sustained for
over sixteen years.
. . . .
If this case resulted in a judgment that was
favorable to the Plaintiff then Belware would be
barred by res judicata to pursue her claims before
this Court, because a plethora of evidence in this
case which is of probative value stems from incidents
and injuries that the Movant has experienced and
Belware’s Mem. of Law (doc. no. 51-2) 12-13.
That argument is
To begin, the court has already determined that Belware has
no legal interest in the subject matter of any of Lath’s claims.
Thus, it would appear to be self-evident that Lath is not
pursuing any claim whose disposition could possibly affect
Belware’s ability to protect her own interests.
172 F.3d at 110 (noting connection between third and fourth
requirements for intervention as of right).
does not identify any specific claim that she would be unable to
pursue if Lath were to prevail on one or more of his claims.
There is a good reason for that.
There is no such claim.
As best the court can tell, Belware wishes to intervene so
that she can assert federal claims under the FHA and the
Racketeer Influenced and Corrupt Organizations Act (“RICO”),
along with state law claims for proxy abuse and embezzlement.
Those two state law claims have been dismissed from this case,
see Order (doc. no. 72) 57-58, 59-60, so there is no chance that
Lath will receive a favorable judgment on them, much less a
judgment that would put Belware’s rights at risk.
holds true for any RICO claim that Belware might bring, given
the court’s dismissal of Lath’s RICO claims.
See id. at 36-40.
That leaves Belware’s putative FHA claim(s).
Based upon a liberal construction of all the pro se
pleadings before it, see Erickson v. Pardus, 551 U.S. 89, 94
(2007), Belware’s only colorable FHA claim is that defendants’
alleged failure to notify her in advance of chemical spraying by
Oak Brook’s landscapers denied her a reasonable accommodation
for a handicap, i.e. chemical sensitivity.1
does not explain, and the court cannot see, how a victory for
Lath on any of his FHA claims would impair her ability to pursue
her FHA claim.
The FHA claim that Belware might bring for an
alleged failure to provide a reasonable accommodation would be
based upon a handicap (chemical sensitivity) and a requested
accommodation (prior notification of chemical spraying) that are
entirely unrelated to the handicap (mental and emotional
impairments) and the accommodation (an emotional support dog)
that underlie Lath’s FHA accommodation claim.
Unlike Lath, Belware does not even begin to suggest that
she was subjected to discrimination because of her sexual
orientation, race, or national origin, or that she was subjected
to retaliation for complaining about such discrimination.
Belware mentions “a plethora of evidence in this instant case
[stemming] from incidents and injuries that [she] has
experienced and sustained,” Belware’s Mem. of Law (doc. no.
51-2) 13, and raises the specter of res judicata, her injuries
cannot form the factual basis for any claim by Lath.
Lath’s inclusion of several pages of irrelevant allegations
concerning Belware in his SAC would not bar her from asserting
claims based upon those allegations.
In other words, absent
privity, Lath did not subject Belware to res judicata by putting
irrelevant allegations about her injuries into his complaint.
To sum up, just as she has failed to establish the second
requirement for intervention as of right, Belware has also
failed to establish the third requirement.
Because she must
establish all four, see Students for Fair Admission, 807 F.3d at
472, her request for intervention as of right is denied.
C. Rule 24(b)(1)(B) – Permissive Intervention
With respect to permissive intervention, the Federal Rules
provide, in pertinent part:
On timely motion, the court may permit anyone to
. . . .
has a claim or defense that shares with the
main action a common question of law or
Fed. R. Civ. P. 24(b)(2).
However, even when a potential
intervenor can establish a sufficient basis for permissive
intervention, “the court must consider whether the intervention
will unduly delay or prejudice the adjudication of the original
Fed. R. Civ. P. 24(b)(3).
court “can consider almost any factor rationally relevant [and]
enjoys very broad discretion in granting or denying [a] motion
[for permissive intervention].”
Daggett, 172 F.3d at 113
(citing U.S. Postal Serv. v. Brennan, 579 F.2d 188, 191-92 (2d
For example, in Daggett, the court of appeals
ruled that it was permissible for the district court to deny a
motion for permissive intervention on grounds “that it thought
that the addition of still more parties would complicate a case
that badly needed to be expedited.”
172 F.3d at 113.
Here, Lath has asserted a claim that defendants violated
the FHA by failing to provide him with a reasonable
accommodation for a handicap.
Belware wants to intervene and
assert a claim that defendants violated the FHA by failing to
provide her with a different accommodation for a different
While both claims are based upon the same statute, it
is not so clear that both claims share “a common question of
Fed. R. Civ. P. 24(b)(2)(B).2
However, even if Belware’s FHA claim does share a common
question of law with Lath’s FHA claim, the court declines to
grant her motion because prejudice would result from allowing
her to intervene.
This case already involves one pro se
litigant, and he is such a prolific filer that the court has
placed restrictions on his ability to file documents in this
See doc. no. 49.
Stylistically and rhetorically,
Belware’s motion shares many similarities with Lath’s numerous
and voluminous pleadings.
Thus, the court concludes that if
Belware were allowed to intervene in this case to pursue claims
arising from “the horrific sixteen years that [she] has spent at
Oak Brook,” id., her intervention would significantly complicate
a case that has already proven to be a challenge to manage.
further complication would necessarily prejudice the
adjudication of defendants’ rights in this case.
the court denies Belware’s request for permissive intervention.
With regard to common questions of fact, Belware argues
that “Lath’s second amended complaint . . . cite[s] several
incidents and facts relating to Belware and these are common
with the main action.” Belware’s Mem. of Law (doc. no. 51-2)
14. To be sure, Lath’s SAC includes numerous factual
allegations about Belware, but those facts are irrelevant to any
of Lath’s legal claims, and Belware does not explain how the
inclusion of those facts in Lath’s SAC gives her a basis for
II. Motion to Strike
Dufresne has filed a pleading captioned “Amalgamated
Replies of Defendant Gerald Dufresne Filed in Response to
Barbara Belware’s Motion to Intervene.”
Doc. no. 68.
has moved to strike that pleading in its entirety, pursuant to
In a previous order in this case, the court noted
that “Rule 12(f) motions are narrow in scope, disfavored in
practice, and not calculated readily to invoke the court’s
Lath v. Oak Brook Condo. Owners’ Ass’n, No. 16-cv-
463-LM, 2017 WL 401198, at *2 (D.N.H. Jan. 30, 2017) (quoting
Carney v. Town of Weare, No. 15-cv-291-LM, 2016 WL 320198, at *2
(D.N.H. Jan. 16, 2016)) (internal quotation marks and other
Leaving aside the question of whether
Belware, who is not a party to this case, even has standing to
move to strike Dufresne’s pleading, she has not established her
entitlement to the relief she seeks.
While Dufresne’s reply is
difficult to decipher, it contains nothing that appears to be
scandalous, and the court is not inclined to comb through it to
identify content that is redundant or immaterial.
circumstances of this case, the court can see no reason to look
with favor upon the generally disfavored remedy provided by Rule
Accordingly, Belware’s motion to strike is denied.
For the reasons detailed above, Belware’s motion to
intervene, document no. 51, and her motion to strike Dufresne’s
reply, document no. 76, are both denied.
United States District Judge
March 30, 2017
Gary M. Burt, Esq.
Sanjeev Lath, Esq.
Sabin R. Maxwell, Esq.
Daniel E. Will, Esq.
Joshua M. Wyatt, Esq.
Gerard Dufresne, pro se
Barbara Belware, pro se
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