Tompson v. Fisher

Filing 69

///ORDER granting 40 Motion for Summary Judgment. The Clerk of Court shall enter judgment in accordance with this order and close the case. So Ordered by Judge Steven J. McAuliffe.(lml)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

Judith Tompson,
Plaintiff
v.

Case No. 17-cv-069-SM
Opinion No. 2019 DNH 012

David Fisher d/b/a
Fisher Financial Services, Inc.,
Defendant

O R D E R

Pro se plaintiff, Judith Tompson, brings this action
against David Fisher, d/b/a Fisher Financial Services
(“Fisher”), seeking compensation for an array of alleged
violations of state and federal law.

At all relevant times,

Fisher was acting as the duly authorized agent of the Lancelot
Court Condominiums Association.

By prior order (document no. 11), the court dismissed
several of Tompson’s claims.

What remain are her claims that,

by recording three liens against Tompson’s condominium unit for
unpaid assessments, Fisher violated: (1) the federal Fair Debt
Collection Practices Act; (2) the New Hampshire Unfair,
Deceptive or Unreasonable Collection Practices Act; (3) the New
Hampshire Consumer Protection Act; and (4) the Massachusetts
Consumer Protection Act.

Tompson also alleges that, by

recording those liens against her unit, Fisher was negligent and
breached various common law duties he owed to her.

Fisher now moves for summary judgment as to all of
Tompson’s remaining claims.

That motion is granted.

Background
The factual backdrop to this case has been recounted many
times, by numerous courts - both state and federal - including
the magistrate judge in her Report and Recommendation (document
no. 5).

It need not be repeated.

It is sufficient to note that

Tompson lives in the Lancelot Court Condominiums, in Salem, New
Hampshire.

Fisher Financial Services is a Massachusetts

corporation that provides property management, billing, and
payment processing services under a contract with the Lancelot
Court Condominiums Association.

Beginning in or around 2008, Tompson fell into arrears on
her condominium assessments and fees.

Over the course of about

three years, Lancelot Court brought three separate collection
actions against Tompson to recover those unpaid sums.
it prevailed.

Each time

In one of those cases, Tompson brought claims

against Fisher as a third-party defendant, in which she alleged
many of the same (or related) claims to those advanced in this

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action.

See “Counterclaim” in Lancelot Court Condominium v.

Tompson. No. 218-2014-cv-220 (N.H. Sup. Ct.) (document no. 408).

In that case, the jury returned a verdict in favor of

Lancelot Court and awarded it $17,000.

Subsequently, the trial

court awarded the condominium association an additional
$22,742.51 in costs and attorneys’ fees.

See Order dated March

4, 2014 (document no. 40-9) (noting that the “barrage of motions
filed by Tompson in what should have been a fairly
straightforward dispute over unpaid condominium assessments”
justified an award of fees that “would appear to be high given
the size of the verdict and nature of the dispute”).

During that same time period, attorneys for the condominium
association prepared three “memoranda of lien” against Tompson’s
unit.

See generally N.H. Rev. Stat. Ann. 356-B:46 (providing

that the “unit owners’ association shall have a lien on every
condominium unit for unpaid assessments” and stating that such
liens may be perfected by recording a “memorandum of lien” in
the appropriate registry of deeds).

Fisher, as the agent for

the Lancelot Court Condominiums Association, signed and recorded
those liens in the registry of deeds.

See Memoranda of Lien

(documents no. 40-6, 40-10, and 40-11). 1

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During the trial, Tompson questioned Fisher about one of
the liens in question. Fisher testified that, “the attorneys
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Substantial additional state and federal court litigation
ensued involving a writ of execution, a sheriff’s sale of
Tompson’s unit, the eventual foreclosure of the mortgage deed to
Tompson’s unit, and at least two efforts to evict her from that
unit.

But, those proceedings are not material to this action.

In this action, Tompson claims that Fisher violated various
state and federal consumer protection statutes when, as the
authorized agent of the condominium association, he signed and
recorded the various liens prepared by the association’s legal
counsel.

Tompson also claims that, in so doing, Fisher became

liable to her for various acts of negligence.

Discussion
Judith Tompson is no ordinary pro se litigant.

First, she

is an attorney, apparently licensed to practice in
Massachusetts.
claims.

She is also a prolific filer of meritless

For example, in the last three years, Tompson has filed

(or improvidently removed) at least eleven cases in (or to) this

[for the association] actually drafted it. The number on here,
the amount that’s due, comes from my office, but, you know, I
have no idea how you go about drafting a memorandum of lien.
. . . I’m not an attorney. I’m a CPA.” Trial Transcript from
Lancelot Court Condominium Association v. Tompson, No. 218-2014cv-220 (document no. 54-28) at 87.
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court alone.

Not one had any merit.

And, none advanced even a

single claim that survived dismissal or summary judgment. 2

Tompson has fared no better in state court.

During the

same three year period, the New Hampshire Supreme Court has
issued at least seven opinions in cases brought by, or appealed
by, Tompson.

In none of those cases did she prevail.

While Tompson’s opponents in each of those cases ultimately
prevailed, it was not until after they were forced to expend
substantial time, energy, and money vindicating their rights,
defending themselves against meritless attacks, or seeking to
have an improvidently removed action remanded to state court.

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Three of Tompson’s federal cases involved “appeals” of, or
collateral attacks upon, her state court convictions for felony
reckless conduct, resisting arrest, and disobeying a police
officer. See Tompson v. State of N.H., 15-cv-293-JL; Tompson v.
Rockingham County Sheriff’s Dept., 15-cv-471-LM; Tompson v.
LeDuc, 17-cv-042-SM. One involved a challenge to Tompson’s
elevated Medicaid deductible (due to her receipt of SSA
benefits) on grounds that it discriminates against her on the
basis of disability. Tompson v. N.H. Dept. of Health and Human
Service, 16-cv-168-JL. And, at least seven cases in this court
(including this one) have related in some way to Tompson’s
failure to pay her condominium assessments, the association’s
efforts to collect those assessments, and Tompson’s eventual
loss of title to her condominium unit to foreclosure. See
Tompson v. Lancelot Court Condo. Ass’n, 16-cv-215-JD; Tompson v.
Lancelot Court Condo Ass’n, 16-cv-488-JL; Tompson v. First
Eastern Mortgage Corp., 17-cv-113-PB; Thompson v. FNMA, 17-cv699-SM; Tompson v. Madhu Gaddam, 18-cv-470-LM; Tompson v. Madhu
Estates, LLC; 18-cv-555-PB.
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Tompson’s numerous meritless cases have also required both the
state and federal courts to expend substantial resources to
resolve them.

Although the various judges of this court have been patient
with Tompson, they have also warned her that frivolous and/or
vexatious litigation will not be tolerated.

So, for example,

the magistrate judge advised Tompson that she “should be aware
that the federal court may sanction a party for filing vexatious
litigation.

The court will not wait to be inundated with

frivolous actions, arising from the same, previously litigated
matters, before issuing sanctions as necessary to prevent
abuses.

If future filings relating to the same or closely-

related matters in the future are deemed to be vexatious, this
court may issue an injunction restricting plaintiff’s ability to
file new cases in this court.”

Tompson v. Lancelot Court Condo.

Assn, 16-cv-488-JL, Report and Recommendation (document no. 3)
(citing Fed. R. Civ. P. 11(c)).
Tompson in a similar fashion.

Judge Barbadoro has counselled
See Madhu Estates v. Tompson, 18-

cv-555-PB (“Tompson is cautioned that vexatious removals are
sanctionable . . . [and] this court will not hesitate to
sanction Tompson if she removes another landlord-tenant action
based on a frivolous or objectively unreasonable argument that

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her counterclaims provide a basis for the court to exercise its
removal jurisdiction.”).

As was the case in each of Tompson’s prior suits, the
claims advanced in this proceeding cannot survive summary
judgment.

There is no evidence of record suggesting that

Fisher’s challenged conduct - the recordation of valid,
statutorily-authorized liens against Tompson’s unit - runs afoul
of the requirements of the federal Fair Debt Collections
Practices Act, New Hampshire’s Unfair, Deceptive or Unreasonable
Collection Practices Act, the New Hampshire Consumer Protection
Act, or the Massachusetts Consumer Protection Act.

As for

Tompson’s negligence claims, she has failed to show that Fisher
breached any duty of care owed her.

Moreover, because it

appears that Tompson’s claims were (or could have been) fully
litigated in earlier state court proceedings, it is likely that
she is precluded from relitigating them in this forum.

See

Tompson’s “counterclaims” in Lancelot Court Condominium v.
Tompson, no. 218-2014-cv-220 (N.H. Sup. Ct.) (document no. 40-8)
(advancing claims of negligence and statutory violations against
Fisher relating to the recordation of liens against her
condominium unit).

See also Tompson’s complaint in Tompson v.

Lancelot Court Condo. Ass’n, 16-cv-488-JL (asserting that the
recordation of “non-conforming property liens for alleged

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default of condo fee payments” violates state law and
“constitutes a taking under the fifth amendment.”)

See

generally In re Alfred P., 126 N.H. 628, 629 (1985) (discussing
the doctrines of res judicata and collateral estoppel).

Parenthetically, the court notes that it is unclear whether
Fisher is even a proper defendant for many, if not all, of
Tompson’s claims.

Fisher did not prepare the liens at issue,

nor was any recorded in his name or for his benefit.

Rather,

each was “in the name of the Association for unpaid condominium
assessments and dues.”

Moreover, Fisher executed each of those

liens as the disclosed “duly authorized” agent of the Lancelot
Court Condominiums Association.

That is to say, he was

undeniably acting as the authorized agent of a disclosed
principal.

But, because neither party has briefed the issue,

the court need not resolve whether the association’s authorized
agent can be held personally liable for alleged statutory
violations arising from the recordation of the liens at issue.
See generally Bald v. PCPA, LLC, 2016 WL 1587227, 2016 DNH 081
(D.N.H. April 19, 2016) (discussing general principles that
limit personal liability of an authorized agent acting on behalf
of a disclosed principal).

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Conclusion
In a relatively short period of time, Judith Tompson has
become one of this court’s most prolific filers of meritless
claims.

Of course, the court cannot rule out the possibility

that she may, one day, have a viable cause of action to pursue
in this forum.

But, if “what’s past is prologue,” that seems

unlikely - particularly given her apparent unwillingness to
accept the finality of the numerous state court decisions ruling
against her or the implications of res judicata, collateral
estoppel, and the Rooker-Feldman doctrine.

This much is clear, however: all of Tompson’s claims
arising out of her failure to pay condominium assessments, liens
against her unit, the foreclosure of the mortgage deed to that
unit, and the efforts to evict her from that unit appear to have
been fully, fairly, and finally resolved.

As an attorney, she

is presumed to understand the implications of those final
resolutions and the preclusive effect they have on future
filings.

She is also presumed to understand that this court

does not act as an appellate court with respect to state court
decisions.

Any future claims filed in this court and arising

out of the same or related facts will be resolved summarily.

If

necessary, the court will consider whether it is appropriate to

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restrict Tompson’s ability to file such cases.

It will also

impose appropriate costs and fees.

For the foregoing reasons, as well as those set forth in
defendant’s legal memoranda, the record reveals that there are
no genuinely disputed material facts and that defendant is
entitled to judgment as a matter of law.

Accordingly,

defendant’s motion for summary judgment (document no. 40) is
granted.

The Clerk of Court shall enter judgment in accordance

with this order and close the case.

SO ORDERED.

____________________________
Steven J. McAuliffe
United States District Judge
January 15, 2019
cc:

Judith Tompson, pro se
Kenneth B. Walton, Esq.
Elena M. Brander, Esq.

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