Lath v. Manchester Police Department et al
Filing
74
///ORDER granting 27 Motion to Dismiss; granting in part 33 Motion to Dismiss for Failure to State a Claim. This case now consists of Causes 1-3, any claims asserted in Causes 4-14 against Dufresne and Boufford, Cause 17 as to Vachon, any claims asserted in Causes 15-19 against any defendant other than Mullen, Cox, and the nine defendants, and Causes 20-27. Because none of the causes of action remaining in this case assert claims against the Association, Cheryl Vallee, Perry Vallee, Taylor, Klardie, Mullen, Rodriguez, Mills, Cox, or Morey, those defendants are all dismissed from this 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 057
Manchester Police Department;
Oak Brook Condominium Owners’
Association; Cheryl Vallee;
Perry Vallee; Patty Taylor;
Christos Arthur Klardie; Gerald
Dufresne; Dorothy Vachon; Betty
Mullen; Zenaida Rodriguez;
Warren Titus Mills; James
Anthony Mullen; William Quinn
Morey; Al Terry Plumbing and
Heating, Inc.; BMS CAT; Amica
Mutual Insurance Co.; and Justin
Boufford
O R D E R
In this action, pro se plaintiff Sanjeev Lath has sued 17
defendants in 27 counts.
He asserts claims arising from several
incidents that have taken place during his tenure as a unit
owner in the Oak Brook Condominium (“Oak Brook”).
Before the
court are two motions to dismiss, one filed by Betty Mullen and
Jamie Cox,1 the other filed or joined by Oak Brook Condominium
In the caption of his complaint, Lath identifies one of
the defendants as: “James Anthony Mullen a.k.a. Jamie Cox.”
Doc. no. 24, at 1. In the balance of this order, the court
refers to him as “Cox,” as that is the name he uses in his
pleadings.
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Owners’ Association (“Association”), Cheryl Vallee, Perry
Vallee, William Morey, Christos Klardie, Zenaida Rodriguez,
Patty Taylor, Warren Mills, and Dorothy Vachon (hereinafter
“nine defendants”).
Lath has objected to the motion filed by
Mullen and Cox, but has not objected to the motion filed by the
nine defendants.
For the reasons that follow, the motion to
dismiss filed by Mullen and Cox is granted, and the motion filed
by the nine defendants is granted in part.
I. Background
In Cause 1 of his First Amended Complaint (“FAC”),
plaintiff asserts his sole federal claim.
Through the vehicle
of 42 U.S.C. § 1983, he claims that the Manchester Police
Department (“MPD”) violated his right to equal protection under
the Fourteenth Amendment to the United States Constitution by:
(1) refusing to take information from him when he attempted to
report three incidents (i.e., Vachon allegedly drilled holes
into his unit and installed a wiretapping device, his mailbox
was defaced with graffiti, and his car was vandalized); (2)
taking 30 minutes to respond to a burglary alarm from his unit;
and (3) characterizing him in various police records as being a
“mental subject.”
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II. Discussion
In this section, the court considers in turn each of the
two pending motions to dismiss Lath’s FAC.
A. Document No. 27 (Mullen & Cox)
In the paragraph of his FAC in which he identifies the
individual defendants, plaintiff does not mention either Mullen
or Cox.
See doc. no. 24 ¶ 18.
However, in paragraph 33 of the
second amended complaint in Lath v. Oak Brook Condominium
Owners’ Ass’n, No. 116-cv-463-LM, Lath alleges that Mullen is an
Oak Brook unit owner and that Cox is her son.
The FAC includes
the following factual allegations concerning Mullen and Cox:
After a flood emanated from Lath’s unit on December
13, 2016, “Betty Mullen . . . interrogated Lath’s
caretaker and friend, Randall Parker Booth, persuading
Booth to admit Lath was the person who caused the
“flooding.” Mullen asked if Booth was [Lath’s]
“boyfriend” and asked Booth about intimate details
concerning Lath’s life.” FAC (doc. no. 24) ¶ 53.
After a fire in Lath’s unit on December 15, 2016,
Mullen and Cox “made statements that Lath
intentionally caused the fire and they had heard and
seen the incident by a camera in Lath’s unit.” Id. ¶
43.
“Lath has been exposed to the dangers and harassment
from the Defendants, Betty Ann Mullen, [Cox], Cheryl
Vallee, Perry Vallee, Zenaida Rodriguez, Patricia
Napolitano, Dorothy Martha Vachon, Gerald Paul
Dufresne, Christos/Christas Arthur Klardie, which has
exponentially deteriorated his health and has deprived
Plaintiff Lath of his Fourteenth [A]mendment rights,
of due process, to report a crime, when he called the
Manchester Police on September 30, 2016, to file a
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report for the actions of the said defendants.”
127.2
Id. ¶
[Cox] has caused transmission of harmful [radio]
frequencies, primarily to cause physical harm upon
Lath, from the attic space immediately above Lath’s
unit.” Id. ¶ 252.
[Cox’s] use of high frequency sound has further caused
Lath to suffer with excruciating headaches. Id. ¶
254.
Based upon the foregoing allegations, Lath asserts three claims
against Mullen and Cox: (1) a claim against Mullen, under the
common law of New Hampshire, for invasion of privacy, based upon
her conversation with Booth (Cause 16, see FAC ¶ 249); (2) a
claim against Cox, under N.H. Rev. Stat. Ann. (“RSA”) § 570-A,
for wiretapping, based upon his transmission of high frequency
radio signals (Cause 17, see id. ¶¶ 251-54); and (3) a claim
against all defendants other than the MPD, under the common law
of New Hampshire, for civil conspiracy (Cause 19, see id. ¶
277).
Mullen and Cox argue that the claims against them should be
dismissed because: (1) the court lacks diversity jurisdiction
over this case under 28 U.S.C. § 1332; (2) the only claims
Earlier in the FAC, Lath makes it clear that the incident
he attempted to report on September 30 did not involve any
conduct by Mullen or Cox but, rather, involved “two holes
created by Defendant Dorothy Vachon . . . and a third hole,
inside [his] cabinet, with an attached wiretapping device.”
Doc. no. 24 ¶ 30 (citation to the record omitted).
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plaintiff has brought against them arise under state law; and
(3) the court lacks supplemental jurisdiction over those claims,
under 28 U.S.C. § 1367(a), or should decline to exercise
supplemental jurisdiction, under § 1367(b).
The court agrees
that it lacks supplemental jurisdiction over Lath’s claims
against Mullen and Cox.
Because both plaintiff and several defendants are New
Hampshire residents, this court does not have subject matter
jurisdiction over this case under 28 U.S.C. § 1332.
See Aponte-
Dávila v. Muni. of Cagaus, 828 F.3d 40, 46 (1st Cir. 2016).
Thus, the court’s subject matter jurisdiction rests upon 28
U.S.C. § 1331, and Lath’s assertion of federal claims against
the City of Manchester, through 42 U.S.C. § 1983.
As a
consequence, the court’s jurisdiction over Lath’s state law
claims against Mullen and Cox depends upon whether the court may
properly invoke supplemental jurisdiction.
It may not.
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.
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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
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, plaintiff’s federal claims against the MPD are based
upon alleged actions or inactions by the MPD that did not
involve Mullen or Cox in any way.3
And his claims against Mullen
Under the caption “Cause 2: State Created Danger,” which
purports to assert a claim against the MPD, the FAC states that
“dangers and harassment from the Defendants, Betty Ann Mullen
[and Cox] . . . has deprived Plaintiff Lath of his Fourteenth
[A]mendment rights, of due process, to report a crime, when he
called the Manchester Police on September 30, 2016, to file a
report for the actions of the said defendants.” Doc. no. 24 ¶
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and Cox are based upon alleged incidents that did not involve
the MPD in any way.
Thus, Lath’s federal claims against the MPD
and his state law claims against Mullen and Cox are not part of
the same nucleus of operative fact and, as a consequence, do not
“form part of the same case or controversy,” 28 U.S.C. §
1367(a).
Plaintiff’s arguments to the contrary are not persuasive.
His primary argument, i.e., that his FAC “delineates a series of
events, which the defendants contemplated against the Plaintiff
in concert, much like an orchestra, where each defendant played
a specific role and in specific time to cause . . . a living
hell on Lath,” Pl.’s Obj. (doc. no. 28) 17, is too general to
establish the necessary factual nexus between his federal claims
against the MPD and his state law claims against Mullen and Cox.
That said, plaintiff does argue that his claims against Mullen
and Cox share a common nucleus of operative fact with the claim
asserted against the MPD in Cause 2 and the conspiracy claim
asserted in Cause 19, but neither Cause 2 nor Cause 19 asserts a
127. Notwithstanding plaintiff’s inclusion of Mullen, Cox, the
MPD, and the Fourteenth Amendment in the same sentence, that
sentence cannot reasonably be read as alleging that Mullen’s
conversation with Booth (the factual basis for Cause 16), Cox’s
radio transmissions (a basis for Cause 17), or a conspiracy that
did not involve the MPD (the basis for Cause 19) had anything to
do with the MPD’s failure to take reports from Lath concerning
Vachon’s alleged wiretapping, graffiti on his mailbox, and
vandalism to his car (the basis for Cause 1).
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federal claim over which the court has original jurisdiction.
For supplemental jurisdiction to be proper, the state law claims
against Mullen and Cox must share a common nucleus of operative
fact with the federal claims that plaintiff asserts in Cause 1.
Plaintiff does not even argue that they do and, as the court has
explained, they do not.
In sum, the court lacks supplemental jurisdiction over the
state law claims that Lath asserts against Mullen and Cox in
Causes 16, 17, and 19.
For that reason, their motion to dismiss
is granted.
B. Document No. 33 (the nine defendants)
Plaintiff’s FAC includes numerous allegations about conduct
involving the Association, Cheryl Vallee, Perry Vallee, Morey,
Klardie, Rodriguez, Taylor, Mills, and Vachon.
According to the
FAC, all the individual defendants listed above are or were
either members of the Association’s board of directors or
employees of Oak Brook.
While the FAC is somewhat imprecise in
linking specific causes of action to specific defendants, Lath
appears to assert the following claims against one or more of
the defendants listed above:
Cause 4: Deprivation of basic necessities. This
claim is based upon allegations that the water to
Lath’s kitchen (but not his bathroom) was shut off
after the December 13, 2016, flooding incident.
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Cause 5: Violation of Manchester Ordinance § 150.982.
This claim is based upon the same factual allegations
as Cause 4.
Cause 6: Negligence. This claim is based upon
allegations that the Association failed to properly
maintain the deck outside Lath’s unit, thus causing
Lath and several of his guests to get splinters in
their feet.
Cause 7: Promissory estoppel. This claim is based
upon allegations that the Association failed to
inspect and properly maintain the deck outside Lath’s
unit.
Cause 8: Negligence. This claim is based on
allegations that Vachon installed faulty electrical
wiring in the common wall between her unit and Lath’s.
Cause 9: Theft of utilities, in violation of RSA
687:8. This claim is based upon allegations that the
Association and Vachon diverted electrical service
from Lath’s unit to Vachon’s.
Cause 10: Theft by deception, in violation of RSA
637:4. This claim is based upon allegations that
various defendants misappropriated condominium fees
collected from unit owners by the Association.
Count 11: Breach of contract. This claim is based
upon allegations that the Association failed to
provide Lath with a copy of its master insurance
policy.
Cause 12: Promissory estoppel. This claim is based
upon allegations that the Association has not promptly
repaired Lath’s unit after the fire on December 15,
2016.
Cause 13: Intentional and/or negligent infliction of
emotional distress. This claim is based upon
allegations that has Lath suffered emotional distress
as a result of the conduct alleged in Causes 11 and
12.
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Cause 14: Improper interference with contract or
expectancy. This claim is based upon allegations that
the Association has interfered with Lath’s attempt to
make a claim on his homeowner’s insurance.
Cause 15: Misrepresentation and deceit. This claim
is based upon allegations that Rodriguez made false
representations to Lath concerning: (a) the number of
people who would enter his unit to inspect it after
the December 13 flooding incident; and (b) the manner
in which the condition of his unit would be documented
after the December 13 flooding incident.
Cause 16: Invasion of privacy. This claim is based
upon allegations that: (a) employees Al Terry Plumbing
and Heating, Inc. took photographs or video footage of
Lath’s unit after the December 13 flooding incident
without his permission; and (b) Mullen asked Booth
about Lath’s private life.
Cause 17: Wiretapping, in violation of RSA 570-A.
This claim is based upon allegations that: (a) Cox
transmitted high frequency radio signals into Lath’s
unit; and (b) Klardie, Dufresne, and Vachon installed
listening devices in his unit.
Cause 18: Deliberate indifference and deprivation of
basic necessities such as water, shelter, electricity,
food, heat, and hot water through defendants’
intentional negligence. This claim is based upon
allegations that defendants have not promptly repaired
Lath’s unit after the December 15 fire.
Cause 19: Conspiracy. This claim is based on
allegations “that (a) the Defendant [excluding the
MPD], its agents and/or employees, and each of them
(“coconspirators”), 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 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
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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 [through] 17 above, inclusive,
were tortious and unlawful.” FAC (doc. no. 24) 277.
The nine defendants argue that the court lacks supplemental
jurisdiction over the state law claims that Lath asserts against
them and also argue that even if supplemental jurisdiction is
proper, the court should decline to exercise that jurisdiction,
pursuant to 28 U.S.C. § 1367(c)(2), because Lath’s state law
claims predominate over his federal claims.
As the court has
noted, Lath has not objected to the nine defendants’ motion to
dismiss.
Their first argument for dismissal is persuasive.
Plaintiff’s federal claims against the MPD and his various
state law claims against the nine defendants have only one
factual overlap: Lath’s allegation that Vachon installed a
wiretapping device in his unit, which figures into both his
wiretapping claim against her (Cause 17), and his constitutional
claim against the MPD for failing to take a report from him
concerning Vachon’s alleged installation of a wiretapping device
(Cause 1).
Because of that common nucleus of operative fact,
the court has supplemental jurisdiction over the claim asserted
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in Cause 17 that Vachon is liable for wiretapping.4
Other than
that, Lath’s federal claims against the MPD and his state law
claims against the nine defendants do not arise from a common
nucleus of operative fact and, as a consequence, do not “form
part of the same case or controversy,” 18 U.S.C. § 1367(a).
Accordingly, apart from the wiretapping claim asserted against
Vachon in Cause 17, the court lacks supplemental jurisdiction
over the state law claims that Lath asserts against the nine
defendants in Causes 4-19.
On that basis, their motion to
dismiss is granted, except as to the claim against Vachon
asserted in Cause 17.
III. Conclusion
For the reasons detailed above, the motion to dismiss filed
by Mullen and Cox, document no. 27, is granted, and the nine
defendants’ motion to dismiss, document no. 33, is granted in
part.
As a result, this case now consists of Causes 1-3, any
claims asserted in Causes 4-14 against Dufresne and Justin
Boufford, Cause 17 as to Vachon, any claims asserted in Causes
15-19 against any defendant other than Mullen, Cox, and the nine
defendants, and Causes 20-27.
Because none of the causes of
But, the court does not have supplemental jurisdiction
over the wiretapping claim asserted in Cause 17 against Cox,
because that claim shares no operative facts with Lath’s federal
claims.
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action remaining in this case assert claims against the
Association, Cheryl Vallee, Perry Vallee, Taylor, Klardie,
Mullen, Rodriguez, Mills, Cox, or Morey, those defendants are
all dismissed from this case.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
March 23, 2017
cc:
Gary M. Burt, Esq.
Sanjeev Lath, pro se
Bruch Joseph Marshall, Esq.
Sabin R. Maxwell, Esq.
Robert J. Meagher, Esq.
Richard C. Nelson, Esq.
James G. Walker, Esq.
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