Lath v. Manchester Police Department et al
Filing
201
///ORDER granting in part and denying in part 183 Motion to Dismiss. 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 249
City of Manchester, NH;
Gerard Dufresne; BMS Cat; and
Amica Mutual Insurance Company
O R D E R
This case now consists of one federal claim against the
Manchester Police Department (“MPD”) and/or the City of
Manchester (“City”), brought through the vehicle of 42 U.S.C. §
1983, plus state law claims against all four defendants.
Against Gerard Dufresne, Sanjeev Lath asserts claims for: (1)
unlawful wiretapping and/or eavesdropping, in violation of New
Hampshire Revised Statutes Annotated (“RSA”) § 570-A (Cause 17);
and (2) civil conspiracy (Cause 19).
Dufresne’s motion to dismiss.
Before the court is
Lath objects.
For the reasons
that follow, Dufresne’s motion to dismiss is granted in part and
denied in part.
I. The Legal Standard
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.”
Foley v.
Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014)
(citation omitted).
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
misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
II. Background
In his First Amended Complaint (“FAC”), plaintiff makes the
following relevant allegations:
Plaintiff Lath believes, and on that basis
alleges that on or around September 30, 2016, after
noticing two holes created by Defendant Dorothy
Vachon, a.k.a. Doris Vachon, and a third hole, inside
Lath’s cabinet . . ., with an attached wiretapping
device, Lath called the Manchester Police Department,
to file a criminal report in the matter.
. . . .
Plaintiff Lath believes, and on that basis,
alleges that Defendants Warren Titus Mills, Christos
Arthur Klardie, Gerard Paul Dufresne and Dorothy M.
Vachon installed wiretapping devices from their units
extending into Lath’s unit with an intent to
surreptitiously eavesdrop in Lath’s conversations
. . . .
. . .
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Gerard Paul Dufresne and Christos Arthur Klardie,
obtained a copy of keys to Lath’s unit under false
pretenses and refused to return same.
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.
. . .
Plaintiff Lath believes and on that basis,
alleges that Defendants may have eavesdropped upon
classified conversations and meetings, which Lath
conducts from his home . . . .
FAC (doc. no. 24) ¶¶ 30, 255, 259, 260, 262.
As noted, Lath asserts two claims against Dufresne, one for
violating RSA 570-A, and one for civil conspiracy.
III. Discussion
Dufresne moves to dismiss both of Lath’s claims against
him.
In this section, the court considers each claim in turn.
A. RSA 570-A
Under New Hampshire law, it is a class B felony for any
person, “without the consent of all parties to [a]
communication,” to:
(a) Wilfully intercept[], endeavor[] to intercept,
or procure[] any other person to intercept of endeavor
to intercept, any telecommunication or oral
communication; [or]
(b) Wilfully use[], endeavor[] to use, or procure[]
any other person to use or endeavor to use any
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electronic, mechanical, or other device to intercept
any oral communication when:
(1) Such device is affixed to, or otherwise
transmits a signal through a wire, cable, or
other like connection used in telecommunication
. . .
RSA 507-A:2, I.
The statute further provides that
[a]ny person whose telecommunication or oral
communication is intercepted, disclosed, or used in
violation of this chapter shall have a civil cause of
action against any person who intercepts, discloses,
or uses, or procures any other person to intercept,
disclose or use such communications . . . .
RSA 570-A:11.
The allegations in paragraphs 255, 260, and 262 of
plaintiff’s FAC, quoted above, are sufficient to set forth a
plausible claim that Dufresne is liable to Lath under RSA 570A:11.
Accordingly, as to Cause 17, Dufresne’s motion to dismiss
is denied.
B. Civil Conspiracy
The contours of plaintiff’s civil conspiracy claim are not
quite as clear as those of his RSA 570-A claim.
This is
plaintiff’s civil conspiracy claim, in its entirety:
Plaintiff is informed and believes and on that
basis alleges that (a) the Defendant, its agents
and/or employees, and each of them (“conspirators”),
committed the unlawful, tortious acts complained
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
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the Plaintiff financial, emotional and mental injury,
and cause damage to Plaintiff’s 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 in counts 1 thru 17
above, inclusive, were tortious and unlawful.
FAC ¶ 277.
In other words, Cause 19 is a claim that more than a
dozen individuals conspired to commit approximately 20 different
unlawful acts against Lath.
Having described plaintiff’s civil conspiracy claim, the
court turns to the relevant law:
[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.” Jay Edwards, Inc. v.
Baker, 130 N.H. 41, 47 (1987).
In re Armaganian, 147 N.H. 158, 163 (2001) (parallel citation
and emphasis omitted).
A comparison of plaintiff’s factual allegations and the
elements of a claim for civil conspiracy demonstrates the
insufficiency of Cause 19.
While “a complaint need not set
forth ‘detailed factual allegations,’ Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007), . . . it must ‘contain
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sufficient factual matter . . . to state a claim that is
plausible on its face,’ Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).”
Privitera v. Curran (In re Curran), 855 F.3d 19, 25
(1st Cir. 2017) (parallel citations omitted).
Thus, “[i]f the
facts articulated in the complaint are ‘too meager, vague, or
conclusory to remove the possibility of relief from the realm of
mere conjecture,’ the complaint is vulnerable to a motion to
dismiss.”
Id. (quoting SEC v. Tambone, 597 F.3d 436, 442 (1st
Cir. 2010)).
Here, even when Cause 19 is read with all the
indulgence that must be afforded a pro se pleading, see Erickson
v. Pardus, 551 U.S. 89, 94 (2007), Cause 19 falls short of the
mark.
Indeed, Cause 19 barely rises to the level of a
“[t]hreadbare recital[] of the elements of a cause of action,
supported by mere conclusory statements.”
Labor Rels. Div. of
Constr. Indus. of Mass., Inc. v. Healey, 844 F.3d 318, 327 (1st
Cir. 2016)).
That is not sufficient to state a claim upon which
relief can be granted.
See id.
Even if Cause 19 were generally sufficient to state a claim
under the Iqbal standard, which it is not, there are two
specific aspects of that claim that would entitle Dufresne to
the dismissal of Cause 19.
At one level, the claim that
plaintiff sets out in Cause 19 is a catch-all in which he
asserts that all the defendants identified in Causes 1 through
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18 had conspired to commit all the unlawful acts alleged
therein.
But, at the same time, Cause 19 identifies the
coconspirators as “the Defendant, its agents and/or employees,
and each of them.”
FAC ¶ 277.
Because Lath nowhere alleges
that Dufresne ever had agents or employees, or was himself an
agent or employee of any other entity named as a defendant in
this case, plaintiff has failed to adequately allege that
Dufresne is one of the coconspirators.
Similarly, plaintiff
asserts that the conspiracy’s “purposes were . . . achieved
under the pretext and guise of fulfilling the covenants of the
Condominium instruments,” id., but nowhere alleges that Dufresne
had any role in fulfilling any covenant of the condominium
instruments involving duties owed to Lath.
Because Lath does
not allege that Dufresne was either a principal/employer or an
agent/employee, and does not allege that Dufresne had any role
in performing the obligations owed by the Oak Brook Condominium
Owners’ Association under the condominium instruments, Lath has
failed to adequately allege that, as a factual matter, Dufresne
was a member of the conspiracy he alleges in Cause 19.
In sum, because plaintiff’s civil conspiracy claim against
Dufresne fails both generally and specifically, as to Cause 19,
Dufresne’s motion to dismiss is granted.
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IV. Conclusion
For the reasons detailed above, Dufresne’s motion to
dismiss, document no. 183, is granted in part and denied in
part.
As this case moves forward, Lath’s only claim against
Dufresne is the wiretapping claim he states in Cause 17.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
December 14, 2017
cc:
Kevin E. Buchholz, Esq.
Gary M. Burt, Esq.
Samantha Dowd Elliott, 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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