Lath v. Manchester Police Department et al

Filing 105

///ORDER granting 95 Motion to Dismiss. Bouffords motion to dismiss is granted, and he is dismissed from the case. So Ordered by Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Sanjeev Lath
v.

Civil No. 16-cv-534-LM
Opinion No. 2017 DNH 111

Manchester Police Department,
Gerald Dufresne, Dorothy Vachon
BMS CAT, Amica Mutual Insurance
Co., and Justin Boufford

O R D E R
This case now consists of one federal claim against the
Manchester Police Department (“MPD”),1 brought through the
vehicle of 42 U.S.C. § 1983, and state law claims against all
six defendants.

Before the court is Justin Boufford’s motion to

dismiss the claim(s) against him for lack of subject matter
jurisdiction.

See Fed. R. Civ. P. 12(b)(1).

Lath objects.

For

the reasons that follow, Boufford’s motion to dismiss is
granted.
I. Background
In his first amended complaint (“FAC”), Lath asserted 27
claims against 17 defendants.

In an order dated March 23, 2017,

document no. 74, ten of those defendants were dismissed from the

Following the usage of Lath’s FAC, this order uses
“Manchester Police Department” and “City of Manchester”
interchangeably to refer to the same defendant.
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case.

One more defendant was dismissed in an order dated March

27, 2017, document no. 81.

Gerald Dufresne has been defaulted.

See doc. no. 73.
In Cause 1 of his FAC, Lath claims that the MPD violated
his right to equal protection, under the Fourteenth Amendment to
the U.S. Constitution, by: (1) taking 30 minutes to respond to a
burglar alarm from his unit, while responding more quickly to
calls from other residents of the Oak Brook Condominium (“Oak
Brook”); (2) refusing to take information from him when he
attempted to report three incidents,2 while promptly responding
to complaints from other Oak Brook residents; and (3)
characterizing him in various police records as a “mental
subject.”

Causes 2 and 3 of the FAC assert state law claims

against the MPD.
As for Lath’s claims against Boufford, he alleges that
“[d]efendants . . . [including] . . . Justin Boufford . . . are
residents and/or owners of Oak Brook [C]ondominium Owners’
Association, and at all relevant times, were and/or still are,
board members, management, contractors and/or employees of the
Association.”

FAC (doc. no. 24) ¶ 18.

Then, he makes the

Those incidents include: (1) vandalism of his cars, see
FAC (doc. no. 124) ¶¶ 129, 133(a); (2) the drilling of holes
into his unit and the installation of a wiretapping device, see
FAC ¶¶ 30, 120, 155; (d) vandalism of his mailbox, see FAC ¶
133(a).
2

2

following factual allegations that specifically mention
Boufford:
On September 13, 2015, [Gail] Labuda in an email
to [Association] Board members Judy Goudbout, Jane
Bright and Justin Boufford stated that . . . two
police officers who did a “wellness check” upon Lath
“acknowledged that he [Lath] has “some mental issues
and is hearing things in his head.” . . .
On September 14, 2015, Board Member at the time,
Justin Boufford, suggested to other Board Members that
he would call “a [M]anchester police office friend” to
see if “he had an idea.” Upon making the call,
Boufford received [a] recommendation from the “police
officer friend” to “call the police station again to
report those emails that Vickie [Grandmaison]
received.”
FAC ¶¶ 24-25 (citations to the record and emphasis omitted).
Those appear to be the only two paragraphs in the FAC that
specifically mention Boufford.

Moreover, while the headings in

Lath’s FAC specify the defendants against whom each of his
claims are directed, Boufford’s name appears in none of them.
However, Lath’s Cause 19 is asserted against “ALL defendants
EXCEPT City of Manchester, NH.”

FAC 76.

Finally, it is clear

that Causes 20-27 of the FAC are asserted against BMS CAT (“BMS
Catastrophe, Inc.”) and Amica.
Based upon the foregoing, the court can say with certainty
that Boufford is not a defendant in the claims asserted in
Causes 1-3 and Causes 20-27.
FAC is not so helpful.

As for the remaining causes, the

If left to its own devices, the court

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would be inclined to conclude that Cause 19 (“Conspiracy”) is
the only claim that Lath asserts against Boufford.

But

Boufford, perhaps generously, construes the FAC as asserting
several additional claims against him: Cause 4 (“Deprivation of
Basic Necessities – Water”), Cause 5 (“Violation of Manchester
Ord. § 150.082: Water and Sewer System”), Cause 6 (“Negligence –
Deck”), Cause 7 (“Promissory Estoppel – Deck”), Cause 12
(“Promissory Estoppel – Repairs in Lath’s Unit”), Cause 15
(“Misrepresentation and Deceit”), and Cause 17 (“Unlawful
[W]iretapping – NH Rev. Stat. 570-A”).

In his objection to

Boufford’s motion to dismiss, however, plaintiff addresses only
the conspiracy claim he asserts as Cause 19.

The court will

follow Lath’s lead and construe his complaint as asserting only
a single claim against Boufford: a state law claim for civil
conspiracy.
III. Discussion
Boufford moves to dismiss Lath’s claim against him, arguing
that the court lacks subject matter jurisdiction over that claim
and should decline to exercise supplemental jurisdiction over
it.

Lath’s objection is somewhat difficult to follow, as it

appears to conflate this case with 16-cv-463-LM and/or advances
arguments that appear to presume a favorable ruling on his
motion to consolidate that case, this case, and a case that is
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before Judge Laplante, 17-cv-075-LM.3

In any event, the court is

persuaded that it should not exercise supplemental jurisdiction
over Lath’s conspiracy claim against Boufford.
With regard to subject matter jurisdiction, Lath asserts
that “this court has jurisdiction on this matter based upon
diversity.”

FAC ¶ 12; see also 28 U.S.C. § 1332.

He is wrong.

Both Lath and at least one defendant are New Hampshire
residents.

Thus, the parties are not completely diverse.

For

the court to have subject matter jurisdiction under § 1332,
“[d]iversity must be complete – ‘the presence of but one
nondiverse party divests the district court of original
jurisdiction over the entire action.’”

Aponte-Dávila v. Muni.

of Cagaus, 828 F.3d 40, 46 (1st Cir. 2016) (quoting DCC
Operating, Inc. v. Rivera Siaca (In re Olympic Mills Corp., 477
F.3d 1, 6 (1st Cir. 2007); citing Strawbridge v. Curtiss, 7 U.S.
(3 Cranch) 267, 267 (1806)).

Because the court does not have

diversity jurisdiction over this case, its subject matter
jurisdiction rests upon 28 U.S.C. § 1331 (federal question
jurisdiction) and 28 U.S.C. § 1367 (supplemental jurisdiction).
Plainly, the constitutional claim that Lath asserts in
Cause 1, through the vehicle of 42 U.S.C. § 1983, qualifies as a
federal question over which this court has subject matter

3

That motion has been denied.
5

See doc. no. 104.

jurisdiction under 28 U.S.C. § 1331.

As for the application of

supplemental jurisdiction, Lath’s complaint has this to say:
This Court has supplemental jurisdiction pursuant
to 28 U.S.C. § 1367 to hear and determine Plaintiff’s
state law claims with respect to wiretapping RSA 570A, because those clams are related to Plaintiff’s
federal claims and arise out of a common nucleus of
related facts.
FAC ¶ 13.

The problem is that the statutory wiretapping

claim(s) that Lath asserts in Cause 17 do not implicate Boufford
in any way.

Rather, the violations of RSA 570-A that Lath

asserts in Cause 17 are based upon the following factual
allegations:
[James] Mullen has caused transmission of harmful
[radio] frequencies, primarily to cause physical harm
upon Lath, from the attic space immediately above
Lath’s unit.
. . . .
Plaintiff Lath believes, and on that basis,
alleges that Defendants Warren Titus Mills, Christos
Arthur Klardie, Gerald Paul Dufresne and Dorothy M.
Vachon installed wiretapping devices from their units
extending into Lath’s unit with an intent to
surreptitiously eavesdrop on Lath’s conversations
including privileged conversations which Lath has or
had with his medical professionals and surgeons and
conversations which Lath has or had with his Attorney
Willis Sloat. Esq. of SK Lawyers LLC.
. . . .
Dufresne and Klardie installed wiretapping
devices and transmitters, in Lath’s cabinets within
Lath’s unit, with the intent to harass Lath, and
eavesdrop upon Lath’s conversations.

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FAC ¶¶ 252, 255, 260.

While it is true that in a previous

order, document no. 74, the court determined that Lath’s
wiretapping claim against Vachon was sufficiently related to the
federal claim asserted in Cause 1 to establish a basis for
exercising supplemental jurisdiction over it, Lath does not
assert a wiretapping claim against Boufford.

Thus, the court’s

exercise of supplemental jurisdiction over the wiretapping claim
against Vachon does not compel the court to exercise
supplemental jurisdiction over any claim against Boufford,
because Lath does not assert a wiretapping claim against
Boufford.
Moreover, the court can see no basis for exercising
supplemental jurisdiction over the single state law claim that
Lath does assert against Boufford, the conspiracy claim in Cause
19.

Turning to the applicable law, the supplemental

jurisdiction statute provides, in pertinent part:
Except as provided in subsections (b) and (c) or
as expressly provided otherwise by Federal statute, in
any civil action of which the district courts have
original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that
are so related to claims in the action within such
original jurisdiction that they form part of the same
case or controversy under Article III of the United
States Constitution.
28 U.S.C. § 1367(a).

“State and federal claims are part of the

same case or controversy for the purposes of section 1367(a) if

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they derive from a common nucleus of operative fact or are such
that they would ordinarily be expected to be tried in one
judicial proceeding.”

Allstate Ints. & Exts., Inc. v.

Stonestreet Constr., LLC, 730 F.3d 67, 72 (1st Cir. 2013)
(quoting Penobscot Indian Nation v. Key Bank of Me., 112 F.3d
538, 564 (1st Cir. 1997); citing UMW v. Gibbs, 383 U.S. 715, 725
(1966)) (internal quotation marks and alterations omitted).
Thus, “[a] federal court that exercises federal question
jurisdiction over a single claim may also assert supplemental
jurisdiction over all state-law claims that arise from the same
nucleus of operative facts.”

Ortiz-Bonilla v. Fed’n de Ajedrez

de P.R., Inc., 734 F.3d 28, 35 (1st Cir. 2013) (quoting BIW
Deceived v. Local S6, Indus. Union of Marine & Shipbuilding
Workers of Am., 132 F.3d 824, 833 (1st Cir. 1997)).
Here, there is no basis for a determination that Lath’s
state law conspiracy claim arises from the same nucleus of
operative fact as his § 1983 claim against the MPD, which Lath
expressly excluded as a defendant in his conspiracy claim.

In

his FAC, Lath asserts his conspiracy claim in the following way:
Plaintiff is informed and believes and on that
basis alleges that (a) the Defendant, its agents
and/or employees, and each of them (“coconspirators”),
committed the unlawful, tortious acts, complained [of]
herein above, in this cause of action, in all Counts,
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,
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and cause damage to Plaintiffs property and 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 by
the coconspirators (d) that the coconspirators had an
agreement on their course of action (e) and all such
alleged actions and conduct of the coconspirators, as
complained [of] in counts 1 thru 17 above, inclusive,
were tortious and unlawful.
FAC § 277.

What is missing from Lath’s articulation of his

conspiracy claim – and the court has quoted it in full – is
any description of the nucleus of operative fact from which
it arises.

Indeed, even when read most indulgently, Cause

19 comes close to alleging no facts at all, much less facts
that line up with those alleged in support of the federal
claim asserted in Cause 1.4

Because Lath has failed to

adequately allege a common nucleus of operative fact
underlying the claims he asserts in Causes 1 and 19, the
court lacks supplemental jurisdiction over the conspiracy
claim Lath asserts in Cause 19.

A good example of a common nucleus of operative fact may
be seen in the relationship between the wiretapping claim Lath
asserts against Vachon in Cause 17 and the § 1983 claim he
asserts in Cause 1. With respect to those claims, the nexus
that supports supplemental jurisdiction is this: in Cause 17,
Lath accuses Vachon of installing a wiretapping device in his
unit, and in Cause 1, he accuses the MPD of violating his right
to equal protection by declining to accept his report that
Vachon had drilled holes through the wall of his unit, so she
could install a wiretapping device.
4

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Moreover, even if Lath’s blanket references to “the
unlawful, tortious acts, complained [of] herein above, in
this cause of action, in all Counts,” FAC ¶ 277, and to
“all such alleged actions and conduct of the conspirators,
as complained [of] in counts 1 thru 17 above, inclusive,”
id., are sufficient to allege a common nucleus of operative
fact underlying Lath’s conspiracy claim and his § 1983
claim, another significant problem emerges.

If Lath is

alleging a conspiracy to violate his constitutional right
to equal protection, Cause 19 is legally deficient, because
none of the defendants Lath names are state actors.
Under New Hampshire law, the elements of a claim for
civil conspiracy include “one or more unlawful overt acts.”
In re Armaganian, 147 N.H. 158, 163 (2001) (quoting Jay
Edwards, Inc. v. Baker, 130 N.H. 41, 47 (1987)).

If Lath

is alleging a conspiracy to violate his constitutional
rights, then, necessarily, the requisite unlawful overt act
would be a violation of his constitutional rights.

Such a

violation would be actionable, if at all, only by means of
42 U.S.C. § 1983.

However, because liability under 42

U.S.C. § 1983 is limited to persons acting under color of
state law, see Saldivar v. Racine, 818 F.3d 14, 18 (1st
Cir. 2016), Lath’s conspiracy claim names no defendant who,

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as a matter of law, could possibly have committed the
unlawful overt act necessary to state a claim for civil
conspiracy to violate his constitutional right to due
process.

Thus, it does not appear that Cause 19 states a

claim upon which relief can be granted.
Finally, even if the claim Lath asserts in Cause 19
did share a common nucleus of operative fact with the claim
he asserts in Cause 1, and even if Lath had asserted Cause
19 against a defendant who could face legal liability for
conspiring to violate his right to due process, the court
would still decline to exercise supplemental jurisdiction
over Lath’s conspiracy claim.

The supplemental

jurisdiction statute provides that “district courts may
decline to exercise supplemental jurisdiction over a claim
under subsection (a) if . . . the claim substantially
predominates over the claim or claims over which the
district court has original jurisdiction.”
1367(c)(2).

28 U.S.C. §

In Cause 19, Lath asserts that all defendants

other than the MPD conspired to commit the unlawful acts
alleged in Causes 1 through 17.

Cause 1, however, is the

only federal claim that Lath asserts.

Where Lath alleges a

conspiracy to commit 16 different violations of state law
and one violation of federal law, the court has no

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difficulty concluding that Lath’s state law conspiracy
claim substantially predominates over his § 1983 claim.

On

that basis, even if the court could properly exercise
supplemental jurisdiction over Lath’s conspiracy claim, it
would decline to do so.
In sum, the court lacks supplemental jurisdiction over
the state law conspiracy claim that Lath asserts against
Boufford in Cause 19.

But even if it had such

jurisdiction, the court would decline to exercise it,
pursuant to 28 U.S.C. § 1367(c)(2).
IV. Conclusion
Because the court does not have, or declines to exercise,
supplemental jurisdiction over the conspiracy claim asserted in
Cause 19, Boufford’s motion to dismiss, document no. 95, is
granted, and he is dismissed from the case.
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge
June 12, 2017
cc:
Gary M. Burt, Esq.
Sanjeev Lath, pro se
Sabin R. Maxwell, Esq.
Richard C. Nelson, Esq.
Michael B. O’Shaughnessy, Esq.
James G. Walker, Esq.
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