Lath v. Manchester Police Department et al

Filing 416

ORDER re: 391 Motion for Summary Judgment. For the foregoing reasons, the court denies Amica's motion for summary judgment (doc. no. 391) as to liability on Lath's five claims. So Ordered by Chief Judge Landya B. McCafferty.(de)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Sanjeev Lath
v.

Civil No. 16-cv-00534-LM
Opinion No. 2020 DNH 035

Amica Mutual Insurance
Company, et al.
O R D E R
Sanjeev Lath, proceeding pro se, brought claims against 17
defendants in 27 counts.

His claims arise from several alleged

incidents that occurred while he was a unit owner at the Oak
Brook Condominium.

Relevant here, Lath asserted five counts

against Amica Mutual Insurance Company (“Amica”) related to
Amica’s denial of insurance coverage for a fire that occurred at
Lath’s condominium unit.
Amica moved for summary judgment on all Lath’s claims,
contesting both liability and damages.
prejudice Amica’s motion as to damages.

The court denied without
Regarding liability,

the court held its ruling in abeyance to allow Lath additional
time to file an affidavit or declaration in support of his
objection.

The court explained that such a filing must qualify

as either a sworn statement or as an unsworn declaration in
conformance with 28 U.S.C. § 1746 to constitute competent
evidence.

Lath timely submitted a supplemental filing.

The

court will now rule on Amica’s motion for summary judgment as to
liability based on the record, including Lath’s supplemental
filing.

STANDARD OF REVIEW
A movant is entitled to summary judgment if it “shows that
there is no genuine dispute as to any material fact and [that
it] is entitled to judgment as a matter of law.”
P. 56(a).

Fed. R. Civ.

In reviewing the record, the court construes all

facts and reasonable inferences in the light most favorable to
the nonmovant.

Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108,

115 (1st Cir. 2013).

BACKGROUND1
On December 15, 2016, a fire occurred at Lath’s condominium
unit.

The next day, Lath provided notice of the fire to Amica,

with whom he held a homeowner’s insurance policy (the “Policy”).
As the court explained in its prior order, the Policy includes
an “examination under oath” provision.

Doc. no. 405 at 4-5.

This provision requires the insured to submit to the insurer’s

A more comprehensive factual background is laid out in the
court’s January 30, 2020 order on Amica’s motion for summary
judgment. Doc. no. 405.
1

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reasonable request for an examination under oath as a
prerequisite for filing suit against the insurer.

Id.

On December 30, 2016, Amica’s counsel sent Lath notice by
email and regular mail that Amica was electing to take his
examination under oath.

The examination was scheduled for

January 18, 2017, at the law office of Craig and Gatzoulis.
Lath responded that same day, stating that he would “not be
appearing for an examination under oath.”

Doc. no. 392-5 at 2.

In the same email, he reiterated: “Again, I do not consent and
will not consent to such an examination under oath.”

Id.

On January 3, 2017, Amica’s counsel responded to Lath.

He

referred Lath to the specific provision of the Policy regarding
examinations under oath and notified Lath that he had changed
the location of the examination in response to Lath’s concerns
about the prior location.

Lath received the January 3 letter

but failed to appear for the January 18 examination.
result, Amica denied Lath’s insurance claim.

As a

Lath then filed

suit against Amica, asserting the following claims: (1) civil
conspiracy; (2) breach of contract; (3) breach of implied
covenant of good faith and fair dealing; (4) deception; and (5)
invasion of privacy.
Amica moved for summary judgment on all Lath’s claims,
arguing that Lath’s refusal to comply with the examination under
oath provision of the Policy precludes him from bringing this
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suit.

Lath claimed that he informed Amica that he could not

attend the examination on the scheduled date but Amica refused
to reschedule.

Specifically, Lath stated that on “January 12,

2019, I requested [Amica’s counsel] to reschedule the
examination as I was sick, and my request for time off from
work, to attend the examination was denied.

I never received

any confirmation or follow up on my request to reschedule the
examination.”2

Doc. no. 397-1 at 1.

Lath’s statement, however, was unsworn and did not comply
with 28 U.S.C. § 1746.

See id.

As such, it was not competent

evidence to defeat Amica’s summary judgment motion.

See, e.g.,

Link Treasure Ltd. v. Baby Trend, Inc., 809 F. Supp. 2d 1191,
1195 (C.D. Cal. 2011); Bayad v. Chambers, No. CIV A 04-10468PBS, 2005 WL 6431855, at *2 n.9 (D. Mass. Dec. 20, 2005).

Given

Lath’s pro se status, the court allowed Lath additional time to
submit either a sworn statement or an unsworn declaration in
compliance with 28 U.S.C. § 1746, supporting his claim that he
asked Amica’s counsel to reschedule the examination and Amica
refused to do so.

In response to the court’s order, Lath timely

submitted a supplemental filing.

Reading this statement in the context of the affidavit, it
appears that the date includes a scrivener’s error and should
read 2017, not 2019.
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DISCUSSION
I.

Competency of Supplemental Filing
The court first evaluates whether it can consider Lath’s

supplemental filing as competent evidence in opposition to entry
of summary judgment.

Lath’s filing states: “I swear under the

pains and penalty of perjury that the foregoing statements are
true to the best of my knowledge and belief.”
2.

Doc. no. 406 at

It also includes Lath’s signature and the date it was

executed.

Id.

This filing is an unsworn declaration in

substantially the same form as that required by 28 U.S.C. §
1746(2).

This court therefore may consider it as competent

evidence in opposition to summary judgment.

See Goldman,

Antonetti, Ferraiuoli, Axtmayer & Hertell v. Medfit Int'l, Inc.,
982 F.2d 686, 689 (1st Cir. 1993).3
Lath’s unsworn declaration contains the same factual
statements as his original “affidavit.”
with doc. no. 406.

Compare doc. no. 397-1,

Specifically, Lath asserts that on January

12, he asked Amica’s counsel to reschedule the examination but
never received any response from Amica regarding his request to
reschedule.

Lath’s filing also appears to qualify as a sworn statement
because it is sworn, signed, and notarized.
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5

The fact that Lath’s affidavit is self-serving does not
render it improper summary judgment evidence.

A “party’s own

affidavit, containing relevant information of which he has
first-hand knowledge, may be self-serving, but it is nonetheless
competent to support or defeat summary judgment.”

Santiago-

Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 53 (1st
Cir. 2000) (internal quotation marks omitted); see also HarleyDavidson Credit Corp. v. Galvin, 807 F.3d 407, 413 (1st Cir.
2015).

And, although there may be conflicting evidence in the

record, the court construes Lath’s statement as true for
purposes of summary judgment.4

II.

Merits of Summary Judgment Motion as to Liability
The court next considers whether, given the facts stated in

Lath’s unsworn declaration, Amica is entitled to summary
judgment.

Amica asserts that it is entitled to summary judgment

because Lath failed to fulfill a condition precedent to this
suit—his submission to Amica’s reasonable request for an
examination under oath.

Lath counters that Amica’s request was

Amica also states in its memorandum in support of its
motion for summary judgment, without citing to the record, that
Lath did not make any request to change the timing of the
examination under oath. Even if the court could credit such a
statement at this stage, there would still be a genuine issue of
material fact in light of Lath’s affidavit.
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not reasonable because it refused to reschedule the examination
to accommodate him.
As explained in the court’s prior order, “submission to a
reasonable request for an [examination under oath] [is] a
condition precedent to filing suit.”
Ins. Co., 151 N.H. 643, 648 (2005).
low threshold in this context.”

Krigsman v. Progressive N.
“Reasonableness is a fairly

Lessard v. EMC Ins. Companies,

No. 10-CV-302-JL, 2011 WL 3652507, at *4 (D.N.H. Aug. 17, 2011)
(internal quotation marks omitted).

In this case, however, a

rational factfinder viewing the record in the light most
favorable to Lath could conclude that Amica’s request for an
examination under oath was unreasonable in light of its
purported failure to accommodate Lath’s request to reschedule.
See id. (denying insurer’s motion for summary judgment based on
plaintiff’s failure to submit to an examination under oath
because whether insurer’s lengthy delay in requesting the
examination was “reasonable” was a jury question).

For this

reason, there exists a genuine dispute of material fact about
whether Amica’s request for Lath’s examination under oath was
reasonable under the circumstances.
summary judgment as to liability.

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Amica is not entitled to

CONCLUSION
For the foregoing reasons, the court denies Amica’s motion
for summary judgment (doc. no. 391) as to liability on Lath’s
five claims.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
March 9, 2020
cc:

Pro Se Party and Counsel of Record

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