Lath v. Manchester Police Department et al

Filing 302

ORDER denying 221 Motion for Summary Judgment; denying as moot 253 Motion to Strike; denying as moot 254 Motion to Strike; denying as moot 256 Motion to Strike; denying as moot 265 Motion to Strike. Lath shall have 20 days from the date of this order to show cause why Causes 20 and 23 should not be 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

Sanjeev Lath
v.

Civil No. 16-cv-534-LM
Opinion No. 2018 DNH 080

BMS Cat and Amica
Mutual Insurance Company
O R D E R
This case now consists of nine claims against two
defendants, including four claims against BMS Cat (“BMS”), a
company with which Sanjeev Lath contracted in the aftermath of a
fire at his unit in the Oak Brook Condominium.

Before the court

is Lath’s motion for summary judgment on Causes 20 and 21 of his
First Amended Complaint (“FAC”).1
and substantive grounds.

BMS objects on both procedural

For the reasons that follow, Lath’s

motion for summary judgment is denied.
I. Discussion
The arguments the parties make for and against summary
judgment in favor of Lath on Causes 20 and 21 are virtually
identical to those they made with respect to Cause 22.

For the

same reasons the court gave in its order denying Lath’s motion

Cause 20 is a claim for breach of the implied covenant of
good faith and fair dealing. Cause 21 asserts claims for breach
of contract and misrepresentation.
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for summary judgment on Cause 22, see doc. no. 301, Lath’s
motion for summary judgment on Causes 20 and 21 is also denied,
and his motion to strike BMS’s surreply is denied as moot.

That

said, there are several aspects of this case that merit
attention at this juncture.
A. Cause 20
Cause 20 bears the following heading: “Breach of Implied
Covenant of Good Faith and Fair Dealing – Inventory List not
prepared and maintained and Items disposed.”

Doc. no. 24 at 77.

According to Lath:
[T]here was an implied covenant of good faith and fair
dealing, that Lath’s belongings [would] only be
“packed” and transported to an offsite location to be
cleaned and washed. The implied covenant was to
refrain [sic] BMS Catastrophe Inc., from disposing of
any of Lath’s belongings.
. . . .
Lath alleges that there was a second implied covenant
in the Contents Advanced Work Authorization that an
accurate list of inventory would be maintained by BMS
Catastrophe Inc. . . . and such a list would be
provided to Lath towards [the] end of the day [on
which BMS packed up his belongings].
Doc. no. 24 at ¶¶ 284 & 286.

It is not at all clear that Lath

has stated a claim upon which relief can be granted for breach
of the implied covenant of good faith and fair dealing.
In New Hampshire, “[i]n every agreement, there is an
implied covenant that the parties will act in good faith and
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fairly with one another.”

Birch Broad., Inc. v. Capitol Broad.

Corp., 161 N.H. 192, 198 (2010) (citing Livingston v. 18 Mile
Point Drive, Ltd., 158 N.H. 619, 624 (2009)).

As the Birch

Broadcasting court further explained:
In New Hampshire, there is not merely one rule of
implied good-faith duty, but a series of doctrines,
each of which serves a different function.
[Livingston, 158 N.H. at 624]. The various implied
good-faith obligations fall into three general
categories: (1) contract formation; (2) termination of
at-will employment agreements; and (3) limitation of
discretion in contractual performance. Id.
161 N.H. at 198.

As for the third category, which is applicable

here, the rule is that
under an agreement that appears by word or silence to
invest one party with a degree of discretion in
performance sufficient to deprive another party of a
substantial proportion of the agreement’s value, the
parties’ intent to be bound by an enforceable contract
raises an implied obligation of good faith to observe
reasonable limits in exercising that discretion,
consistent with the parties’ purpose or purposes in
contracting.
Centronics Corp. v. Genicom Corp., 132 N.H. 133, 143 (1989).
Furthermore:
A claim for relief from a violation of the implied
covenant of good faith contractual performance . . .
potentially raises four questions:
1. Does the agreement ostensibly allow to or
confer 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? . . .

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2. If the ostensible discretion is of that
requisite scope, does competent evidence indicate
that the parties intended by their agreement to
make a legally enforceable contract? . . .
3. Assuming an intent to be bound, has the
defendant’s exercise of discretion exceeded the
limits of reasonableness? . . .
4. Is the cause of the damage complained of the
defendant's abuse of discretion, or does it
result from events beyond the control of either
party, against which the defendant has no
obligation to protect the plaintiff? . . .
Id. at 143–44.
There are several problems with the claim that Lath asserts
in Cause 20.

First of all, he does not appear to identify any

agreement that allowed BMS a degree of discretion in its
performance that, if exercised in bad faith, would have deprived
him of a substantial portion of the contract’s value.

As for

what such a contractual provision might look like,
New Hampshire’s seminal case on the implied
obligation of good faith performance, Griswold v. Heat
Incorporated, 108 N.H. 119 [(1967)], held that a
contract to pay $200 a month for such personal
services as the plaintiff, in his sole discretion, may
render required the plaintiff to provide a level of
services consistent with good faith, id. at 124.
Centronics, 132 N.H. at 141 (internal quotation marks, brackets,
and parallel citations omitted).

Lath makes no allegations that

he entered into any contract with BMS that afforded BMS the

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degree of discretion that was enjoyed by the defendant in
Griswold.
There is another problem with Cause 20.

Lath appears to

claim that the implied covenant of good faith and fair dealing
imposed upon BMS two duties that were not set out in any of his
three agreements with BMS: (1) a duty to refrain from disposing
of any of his possessions, see doc. no. 24 at ¶ 284; and (2) a
duty to make a list of his possessions, see id. at ¶ 286.2
However, in Olbres v. Hampton Cooperative Bank, after the trial
court used the implied covenant to read a provision into the
parties’ agreement that they had not included, the New Hampshire
Supreme Court reversed, explaining that the trial court’s
expansive construction of the contract was
inconsistent with the principles that “[p]arties
generally are bound by the terms of an agreement
freely and openly entered into, and courts cannot make
better agreements than the parties themselves have
entered into or rewrite contracts merely because they
might operate harshly or inequitably.”
142 N.H. 227, 233 (1997) (quoting Mills v. Nashua Fed. Sav. &
Loan Ass’n, 121 N.H. 722, 726 (1981)); see also Sovereign Bank,
N.A. v. Bosse, No. 2014-0398, 2014 WL 11485848, at *1 (N.H. Dec.
5, 2014) (“Courts have generally concluded . . . that the

Lath does not explain how BMS’s alleged failure to make a
proper list of his belongings deprived him of a substantial
portion of the value of any agreement he had with BMS.
2

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covenant of good faith and fair dealing in a loan agreement
cannot be used to require the lender to modify or restructure
the loan.”) (quoting Moore v. Mortg. Elec. Reg. Sys., 848 F.
Supp. 2d 107, 130 (D.N.H. 2012)); Carter v. N. Cent. Life Ins.
Co., No. 05-cv-399-JD, 2006 WL 2381004, at *3 (D.N.H. Aug. 17,
2006) (“North Central contends that the court should read a
notice requirement into its policies as part of the insureds’
implied obligation of good faith and fair dealing.

That request

would stretch contract interpretation far beyond its permissible
scope in this case.”).
Based upon the foregoing, there appear to be two
significant problems with the claim that Lath asserts in Cause
20.

Accordingly, Lath is hereby ordered to show cause why Cause

20 should not be dismissed on grounds that: (1) he has not
alleged the existence of a contract that would support a claim
for breach of the implied covenant of good faith and fair
dealing; and (2) his claim impermissibly uses the implied
covenant to add terms to the contract(s) at issue that the
parties did not include themselves.
B. Cause 23
Cause 23 bears the following heading: “Deliberate
Indifference and Deprivation of Ba[s]ic Necessities such as
medications.”

Doc. no. 24 at 86.
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The conduct underlying Cause

23 is BMS’s alleged insistence that Lath pay a bill for its
services before it returned various items of personal property
to him, including medication.

But, however objectionable that

conduct may have been to Lath, the statement of Cause 23 in
Lath’s FAC identifies no legal principle that required BMS to
provide him with basic necessities, including his medication.
Accordingly, before he may proceed on Cause 23, Lath must show
cause why that cause of action should not be dismissed for
failure to state a claim upon which relief can be granted.

In

responding to the court’s show cause order, Lath must identify a
legal basis for his claim, i.e., a rule enforceable by the court
under which BMS’s alleged conduct was unlawful, not merely
objectionable.
C. Motions to Strike
In response to BMS’s objection to his motion for summary
judgment, Lath moves the court to strike: (1) three paragraphs
from the affidavit of Robert Smith; (2) the entirety of the
affidavit of Richard Nelson; and (3) the entirety of the
affidavit of Gustavo Jimenez.

Given the court’s denial of

Lath’s motion for summary judgment, those three motions are
denied as moot.
Even so, the court turns briefly to the arguments Lath
makes in those motions.

The court has already discussed Lath’s
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objections to the Smith and Jimenez affidavits in its order
denying Lath’s motion for summary judgment on Cause 22, and
because BMS submitted those same affidavits in support of its
objection to Lath’s motion for summary judgment on Causes 20 and
21, it is unnecessary to say anything further about the Smith
and Jimenez affidavits.

However, for the benefit of the

parties, the court offers the following observations on Lath’s
challenge to the Nelson affidavit.
In support of its objection to Lath’s motion for summary
judgment, BMS produced the affidavit of Richard Nelson, who
identified himself as BMS’s counsel.
1.

See doc. no. 250-12 at ¶

This is the entire substantive content of Atty. Nelson’s

affidavit:
On January 23, 2018, I notified Plaintiff Sanjeev
Lath (“Lath”) via email that he could pick up his
personal property that BMS is holding in storage.
Lath has refused to accept the return of his personal
property. See January 23, 2018 emails between Sanjeev
Lath and Richard Nelson, a true and accurate copy of
which is attached hereto as Exhibit 1.
Id. at ¶ 3.

To his affidavit, Atty. Nelson attached an e-mail

he sent Lath and Lath’s response, both dated January 23, 2018.
In his motion to strike, Lath discusses a string of e-mails
between himself and Atty. Nelson dating back to December of
2017, presumably to provide context for the January 2018
exchange by explaining that in January of 2018, he was
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attempting to make an appointment to inventory and photograph
the property that BMS was holding, as a part of his pre-trial
discovery.

Then, he argues that: (1) the Nelson affidavit

violates Rule 56(e) of the Federal Rules of Civil Procedure
because in it, Atty. Nelson “failed to properly address, Lath’s
assertion of the scope of the [proposed] January 26, 2018
meeting,” doc. no. 254 at 6; and (2) because it was authored by
BMS’s counsel, the Nelson affidavit suffers from the same
infirmities as the affidavit that was criticized by the court of
appeals in Friedel v. City of Madison, 832 F.2d 965 (7th Cir.
1987).

Neither argument is persuasive.

Lath’s argument that Atty. Nelson violated Rule 56(e) by
failing to explain, in his affidavit, that his e-mail exchange
with Lath took place in the context of Lath’s attempt to conduct
pre-trial discovery appears to conflate the content of a party’s
summary judgment briefing and the content of an affidavit, and
only the former is addressed by Rule 56(e).

That rule sets out

the consequences that may result from a party’s failure “to
properly support an assertion of fact or . . . to properly
address another party’s assertion of fact as required by Rule
56(c).”

Fed. R. Civ. P. 56(e).

While Rule 56(e) imposes

consequences for failing to properly support or address a fact,
in a brief arguing for against summary judgment, that rule does
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not impose requirements on the contents of an affidavit
supporting a brief,3 and surely does not specify the matters an
affiant must address in an affidavit.

Thus, it is logically

impossible for an affidavit to violate Rule 56(e), and nothing
in that rule provides a basis for striking an affidavit on
grounds of insufficient content.

In other words, the argument

that Lath makes may be a basis for rejecting an argument in
BMS’s objection to his motion for summary judgment, but it
provides no grounds for striking the Nelson affidavit.
Turning to Lath’s second argument, his reliance upon
Friedel is unavailing.

In Friedel, the court of appeals

affirmed the trial court’s grant of summary judgment to the
defendants in an employment discrimination case.
at 966.

See 832 F.2d

On the way to reaching that decision, the court

criticized the plaintiffs’ reliance, at summary judgment, on a
single affidavit submitted by their counsel.

The court

described that affidavit this way:
The only affidavit provided was that of
plaintiffs’ counsel. To this affidavit the plaintiffs
The content of a summary judgment affidavit is governed by
Rule 56(c)(4), which provides that “[a]n affidavit or
declaration used to support or oppose a motion must be made on
personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to
testify on the matters stated.” But even Rule 56(c)(4) does not
say anything about the range of issues that an affiant must
address in his or her affidavit.
3

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attached a number of interviews of police recruits
performed by a police official and not taken under
oath. Plaintiffs also attached other documents that
included materials not supported by sworn statements
on the basis of personal knowledge, and in some cases
would not be admissible in court.
Id. at 969–70.

In Friedel, the plaintiffs’ counsel attempted to

introduce into the summary judgment record, as attachments to
his own affidavit, evidence related to events about which he had
no personal knowledge.

Here, by contrast, Atty. Nelson attached

to his affidavit only evidence related to an event about which
he did have personal knowledge, i.e., his e-mail exchange with
Lath.

In short, Friedel is entirely inapplicable to the facts

of this case, and provides no basis for striking the Nelson
affidavit.
While Lath may have legal arguments to make arising out of
BMS’s use of statements of fact drawn from the Nelson affidavit
and supported by the exhibit attached to it, he does not appear
to have advanced any proper grounds for striking the Nelson
affidavit.
II. Conclusion
For the reasons described above, Lath’s motion for summary
judgment, document no. 221, is denied, and his motion to strike
BMS’s surreply, document no. 265, is denied as moot.

Also

denied as moot are the following: (1) Lath’s motion to strike

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paragraphs 10, 12, and 14 of the Smith affidavit, document no.
253; (2) Lath’s motion to strike the Nelson affidavit, document
no. 254; and (3) Lath’s motion to strike the Jimenez affidavit,
document no. 256.

Finally, Lath shall have 20 days from the

date of this order to show cause why Causes 20 and 23 should not
be dismissed for failure to state a claim upon which relief can
be granted.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
April 17, 2018
cc:

Counsel and pro se parties of record

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