Lath v. Manchester Police Department et al
///ORDER granting 101 Motion for Summary Judgment. Vachon is dismissed from the case. So Ordered by Judge Landya B. McCafferty.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Civil No. 16-cv-534-LM
Opinion No. 2017 DNH 164
Manchester Police Department,
Gerard Dufresne, Dorothy Vachon,
BMS CAT, and Amica Mutual
O R D E R
This case now consists of one federal claim against the
Manchester Police Department, brought through the vehicle of 42
U.S.C. § 1983, and state law claims against all five defendants.
Plaintiff’s sole claim against Dorothy Vachon is that she
installed wiretapping devices in his unit at the Oak Brook
Condominium (“Oak Brook”), in violation New Hampshire Revised
Statute Annotated (“RSA”) § 570-A.
Before the court is Vachon’s
motion for summary judgment, to which Lath has not responded.
For the reasons that follow, Vachon’s motion for summary
judgment is granted.
I. Summary Judgment Standard
“Summary judgment is appropriate when the record shows that
‘there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.’”
President & Fellows of Harvard Coll., 840 F.3d 57, 61 (1st Cir.
2016) (quoting Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777,
782 (1st Cir. 2011); citing Fed. R. Civ. P. 56(a)).
issue is one that can ‘be resolved in favor of either party’ and
a material fact is one which ‘has the potential of affecting the
outcome of the case.’”
Walker, 840 F.3d at 61 (quoting Gerald
v. Univ. of P.R., 707 F.3d 7, 16 (1st Cir. 2013); citing PérezCordero v. Wal-Mart P.R., Inc., 656 F.3d 19, 25 (1st Cir.
When a court considers a motion for summary judgment,
“[t]he evidence . . . must be viewed in the light most favorable
to the nonmoving party . . . and all reasonable inferences must
be taken in that party’s favor.”
Harris v. Scarcelli (In re Oak
Knoll Assocs., L.P.), 835 F.3d 24, 29 (1st Cir. 2016) (citing
Desmond v. Varrasso (In re Varrasso), 37 F.3d 760, 763 (1st Cir.
“The nonmovant may defeat a summary judgment motion by
demonstrating, through submissions of evidentiary quality, that
a trialworthy issue persists.”
Cruz v. Mattis, 861 F.3d 22, 25
(1st Cir. 2017) (quoting Iverson v. City of Bos., 452 F.3d 94,
98 (1st Cir. 2006)).
Both Lath and Vachon own units at Oak Brook.
In his First
Amended Complaint (“FAC”), Lath alleges that on or around
September 30, 2016, he “notic[ed] two holes created by Defendant
Dorothy Vachon . . . inside [his] cabinet . . ., with an
attached wiretapping device.”
to the record omitted).
FAC (doc. no. 24) ¶ 30 (citation
And he further alleges that “Vachon
installed wiretapping devices from [her] unit extending into
[his] unit with an intent to surreptitiously eavesdrop on [his]
conversations . . . .”
Id. ¶ 255.
Based upon those
allegations, Lath asserts a claim that Vachon is liable to him
for violating RSA 570-A.
Vachon moves for summary judgment, arguing that she has
produced undisputed evidence that she never installed a
wiretapping device in his unit.
The court agrees.
RSA 570-A:11 provides a civil cause of action for damages
to “[a]ny person whose telecommunication or oral communication
is intercepted . . . in violation of this chapter.”
pertinent part, the New Hampshire wiretapping and eavesdropping
statute makes it unlawful to willfully: (1) intercept “or
endeavor to intercept, any telecommunication or oral
communication,” RSA 570-A:2, I(a); or (2) use “or endeavor to
use, any electronic, mechanical, or other device to intercept
any oral communication,” RSA 570-A:2, I(b), under certain
specified circumstances, see RSA 570-A:2, I(b)(1)-(3).
In support of her motion for summary judgment, Vachon has
produced an affidavit in which she testified that: (1) she once
lived in the unit next to Lath’s unit at Oak Brook; (2) the two
units shared a common wall; (3) she “never created holes in the
common wall . . . for any purpose, let alone for installing
listening devices to record, intercept, wiretap or eavesdrop on
Mr. Lath or conversations in [his] unit,” Def.’s Mem. of Law,
Ex. A (doc. no. 101-2) ¶ 4; (4) she “never installed any device
in Mr. Lath’s condominium unit or in the common wall . . . to
record, intercept, wiretap or eavesdrop on Mr. Lath or
conversations in [his] unit” id. ¶ 5; and (5) she “never used or
attempted to use any device to record, intercept, wiretap or
eavesdrop on Mr. Lath or conversations in [his] unit,” id. ¶ 6.
Vachon testified to similar effect during a deposition in a case
brought by Lath in the Hillsborough County Superior Court.
Def.’s Mem. of Law, Ex. B (doc. no. 101-3) 3-4 of 5.
As the court has noted, Lath has not responded to Vachon’s
motion for summary judgment.
Necessarily, he has not
“demonstrate[ed], through submissions of evidentiary quality,
that a trialworthy issue persists.”
Cruz, 861 F.3d at 25.
Because the undisputed factual record demonstrates that Vachon
did not violate RSA 570-A:2, she is entitled to judgment as a
matter of law on Lath’s eavesdropping claim.
Because Vachon is entitled to judgment as a matter of law
on Lath’s eavesdropping claim, her motion for summary judgment,
document no. 101, is granted.
Moreover, as there are now no
claims remaining against Vachon, she is dismissed from this
United States District Judge
August 28, 2017
Kevin E. Buchholz, Esq.
Gary M. Burt, Esq.
Gerard Dufresne, pro se
Sanjeev Lath, pro se
Bruce Joseph Marshall, Esq.
Sabin R. Maxwell, Esq.
Richard C. Nelson, Esq.
Brendan D. O’Brien, Esq.
James G. Walker, Esq.
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