Bobbett v. Portsmouth, NH, City of et al

Filing 30

///ORDER granting in part and denying in part 18 Motion for Judgment on the Pleadings. Defendants motion is granted as to the malicious prosecution claims against Bernier and Portsmouth arising from the prosecution of the witness tampering offense, part of Count II, and is denied as to the remainder of Count II, Count VI, and Count V. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Oneta Bobbett
v.

Civil No. 17-cv-265-JD
Opinion No. 2018 DNH 069

City of Portsmouth, et al.

O R D E R
Oneta Bobbett brings suit against the City of Portsmouth
and two members of its police department, Kristyn Bernier and
Michael Leclair, alleging federal and state law claims arising
from a criminal investigation and prosecution against her.

The

defendants move for judgment on the pleadings on three of the
state law claims, Counts II, IV, and V.

Bobbett objects.

Standard of Review
“The standard of review of a motion for judgment on the
pleadings under Federal Rule of Civil Procedure 12(c) is the
same as that for a motion to dismiss under Rule 12(b)(6).”
Frappier v. Countrywide Home Loans, Inc., 750 F.3d 91, 96 (1st
Cir. 2014) (internal quotation marks omitted).

Under that

standard, the court will dismiss a claim “only if, taking all
the complaint’s well-pled allegations as true and viewing the
other facts in the light most favorable to the plaintiff, the

complaint does not allege ‘enough facts to state a claim to
relief that is plausible on its face.’”

Portugues-Santana v.

Rekomdiv Int’l Inc., 725 F.3d 17, 25 (1st Cir. 2013) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“While

[the plausibility] standard does not impose a ‘probability
requirement,’ it does require ‘more than a sheer possibility
that a defendant has acted unlawfully.’”

Germanowski v. Harris,

854 F.3d 68, 72 (1st Cir. 2017) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)).

“Engaging in this plausibility inquiry

is ‘a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.’”

Id.

(quoting Iqbal, 556 U.S. at 679).
Background1
In late 2013, Bobbett purchased a ring from Jathar Jewelers
with her credit card.

Following that purchase, Bobbett noticed

The facts in this section are taken from Bobbett’s
complaint and several documents that the defendants have
attached to their motion, including the search and arrest
warrants against Bobbett and the indictments and criminal
informations charging Bobbett with the offenses at issue in her
complaint. The court may consider the documents attached to the
defendants’ motion because they are “fairly incorporated” into
the complaint and susceptible to judicial notice. See Mercury
Sys., Inc. v. S’holder Representative Servs., LLC, 820 F.3d 46,
51 (1st Cir. 2016) (discussing what courts may consider when
reviewing motion for judgment on the pleadings).
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two charges on her credit card statement for $1,850, the price
of the ring.

Although one of the purchases was the one that

Bobbett had authorized from Jathar Jewelers, Bobbett had not
authorized the other charge, which was from a merchant named the
Face Café.
Bobbett disputed the Face Café charge with her credit card
company, who advised her to report the charge to the police.
Following that advice, Bobbett reported the Face Café charge as
fraudulent to Officer Todd Goodwin of the Portsmouth Police
Department.
At the time Bobbett made her complaint to Goodwin, she was
in a contentious divorce proceeding with her husband, Jonathan
Bobbett (“Jonathan”).

Jonathan was a prominent local

businessman, who had personal ties to the Portsmouth Police
Department.

Jonathan had socialized with members of the police

department, taken members on trips to Hong Kong, Russia, and Las
Vegas, and made charitable donations to the department.
Following Bobbett’s report, Detective Kristyn Bernier of
the Portsmouth Police Department began investigating Bobbett
based on the theory that Bobbett had falsely reported the Face
Café transaction as fraudulent.

In connection with that

investigation, Bernier executed an affidavit in support of an
application for a search warrant to seize and search Bobbett’s

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cell phone.

On January 15, 2014, Bernier received the warrant,

which authorized police to search Bobbett’s phone “for
subscriber and electronic communication documentation specific
to this case.”

The warrant also provided police the authority

to access, view, and reproduce data from all items referred to
in the search warrant “as necessary for the investigation and
prosecution of this matter from October 20, 2013 through January
15, 2014.”
The day after Bernier obtained the warrant, she met with
Bobbett at the police station.

Bobbett believed that the

purpose of the meeting was for Bernier to provide an update
about the investigation concerning the Face Café transaction.
During the meeting, however, Bernier executed the search warrant
and confiscated Bobbett’s phone.
In April of 2014, Bernier sought, and received, an arrest
warrant for Bobbett based on the crimes of providing a false
report to law enforcement, making unsworn falsifications, and
tampering with witnesses and informants.

In September of 2014,

a Rockingham grand jury returned an indictment against Bobbett
on the witness tampering count.

In addition, the Rockingham

County Attorney filed informations charging Bobbett with
providing a false report to law enforcement and making unsworn
falsifications.

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The criminal charges against Bobbett were ultimately nolprossed on August 27, 2015.

The records of the charges were

annulled on March 7, 2016.
On October 6, 2014, a guardian ad litem report in the
Bobbetts’ divorce proceeding stated that Jonathan had expressed
concerns that Bobbett was moving to Atlanta.

Bobbett had never

discussed anything with Jonathan about moving to Atlanta.

The

phone seized by Bernier, however, contained text messages
between Bobbett and a man she used to date, in which that man
urged her to move to Atlanta to be with him.

Those text

messages were from the summer of 2013, which was outside of the
time limitation established in the search warrant.
Bobbett alleges that the police gave Jonathan this
information, which they obtained through an illegal search of
her phone.

Bobbett further alleges that Bernier and the

Portsmouth Police Department never actually suspected her of
criminal wrongdoing, but rather started the criminal
investigation as a means of obtaining information to aid
Jonathan in the divorce.
Bobbett brings a claim against Bernier and Leclair under 42
U.S.C. § 1983 for violation of her constitutional rights (Count
I).

In addition, Bobbett brings a claim for malicious

prosecution against Bernier and Portsmouth (Count II), and

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claims for abuse of process (Count III), intrusion upon
seclusion (Count IV), and public disclosure of private facts
(Count V), against Bernier, Leclair, and Portsmouth.
Discussion
Bernier and Portsmouth move for judgment on the pleadings
on Bobbett’s claims for malicious prosecution against them.
Bernier, Leclair, and Portsmouth move for judgment on the
pleadings on the claims against them for intrusion upon
seclusion and public disclosure of private facts.

Bobbett

objects.2
I.

Malicious Prosecution (Count II)
To state a claim for malicious prosecution, Bobbett must

allege that “(1) [s]he was subjected to a criminal prosecution
or civil proceeding instituted by the defendant; (2) without
probable cause; (3) with malice; and (4) the prior action
terminated in [her] favor.”

Ojo v. Lorenzo, 164 N.H. 717, 727

(2013); see also Farrelly v. City of Concord, 168 N.H. 430, 445
(2015).

In support of her malicious prosecution claim, Bobbett

alleges that Bernier (1) did not have an honest suspicion that
Although Bernier, Leclair, and Portsmouth moved jointly
for judgment on the pleadings, see doc. no. 18, Portsmouth and
Leclair filed a joint reply to Bobbett’s objection, which
Bernier did not join. Doc. no. 26. Rather, Bernier filed her
own reply to Bobbett’s objection. Doc. no. 25.
2

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she engaged in criminal conduct and (2) maliciously initiated
the criminal proceedings against her.

Portsmouth and Bernier

move for judgment on the pleadings on the malicious prosecution
claims, arguing that Bobbett’s claims fail because the grand
jury returned an indictment against her.

Portsmouth and Bernier

also contend that Bobbett has failed to allege that the
prosecution was malicious.
A. Probable Cause
The defendants contend that they are entitled to judgment
on the pleadings on the malicious prosecution claim because a
grand jury in Rockingham County returned an indictment against
Bobbett on the charge of tampering with witnesses and
informants.

Because Bobbett has not alleged that Bernier

engaged in impropriety in obtaining that indictment, the
defendants argue that Bobbett has not plausibly pled that the
prosecutions occurred without probable cause.
In response, Bobbett argues that the grand jury only
indicted her on the tampering charge and not the charges for
making a false report to law enforcement and making unsworn
falsifications.

Bobbett further contends that because the grand

jury did not return indictments for those two charges, her
malicious prosecution claim can proceed.

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“Probable cause in the malicious prosecution context has
long been defined as ‘such a state of facts in the mind of the
prosecutor as would lead a man of ordinary caution and prudence
to believe or entertain an honest and strong suspicion that the
person arrested is guilty.’”

Stock v. Byers, 120 N.H. 844, 846

(1980) (quoting MacRae v. Brant, 108 N.H. 177, 180 (1967)).

“It

depends not upon the accused’s guilt or innocence of the crime
charged but upon the prosecutor’s honest and reasonable belief
in such guilt at the time the prosecution is commenced.”

Id.

“Courts are nearly uniform in holding that the return of an
indictment defeats a claim for malicious prosecution unless the
plaintiff alleges that the defendant engaged in impropriety when
procuring the indictment.”

Ojo, 164 N.H. at 727.

An indictment

“‘definitively establishes probable cause’ unless, at the
pleading stage, the plaintiff asserts that ‘the defendants
wrongfully obtained the indictment by knowingly presenting false
testimony to the grand jury.’”

Id. (quoting Gonzalez Rucci v.

United States I.N.S., 405 F.3d 45, 49 (1st Cir. 2005)).
1. Tampering Charge
The grand jury indicted Bobbett for the offense of
tampering with witnesses or informants.

Bobbett does not allege

that Bernier or Portsmouth engaged in impropriety in obtaining
the indictment.

Therefore, the indictment definitively
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establishes probable cause for the tampering charge, and Bobbett
may not proceed on her malicious prosecution claim based on that
offense.

Accordingly, to the extent Bobbett’s malicious

prosecution claim is based on the prosecution of the tampering
charge, that claim is dismissed.
2. False Statement Charges
Bobbett contends that her malicious prosecution claims may
proceed because the grand jury did not return an indictment on
the false statement charges.

Generally, in the malicious

prosecution context, “probable cause as to one charge will not
bar a malicious prosecution claim based on a second, distinct
charge as to which probable cause was lacking.”

See Mendonca v.

City of Providence, 170 F. Supp. 3d 290, 302 (D.R.I. 2016)
(citing cases) (concluding that plaintiff’s conviction on a
concurrently prosecuted charge did not defeat malicious
prosecution claim on different charge); see also Soto v. City of
N.Y., 132 F. Supp. 3d 424, 452 (E.D.N.Y. 2015) (“[W]here a grand
jury indicts on some, but not all charges, the presumption [of
probable cause] attaches only to those charges in the
indictment.”).
Bernier and Portsmouth provide no argument or authority
supporting their assertion that the indictment, which only
addressed the witness tampering charge, conclusively establishes
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probable cause for all of the charges.

For that reason, their

assertion is not sufficiently developed to permit review.

Coons

v. Indus. Knife Co., 620 F.3d 38, 44 (1st Cir. 2010) (explaining
that district courts are free to discard underdeveloped
arguments); United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990) (observing that issues discussed in a perfunctory manner
without “developed argumentation” are waived).

Accordingly, for

the purpose of defendants’ motion for judgment on the pleadings,
the court concludes that the indictment in this case does not
definitively establish probable cause as to the false statement
charges.3
Bobbett has adequately alleged that Portsmouth and Bernier
did not possess probable cause to initiate the two false
statement counts against her.

Portsmouth and Bernier also argue that Bobbett cannot
plead probable cause because (1) Bernier obtained an arrest
warrant for the false statement charges and (2) the Rockingham
County Attorney provided informations charging Bobbett with the
false statement offenses. Portsmouth and Bernier, however,
provide no authority supporting the theory that an arrest
warrant or an information conclusively demonstrate probable
cause at this stage of the proceedings. Therefore, the court
concludes that, for the purposes of this motion for judgment on
the pleadings, the informations and arrest warrant do not
preclude Bobbett from proceeding on her malicious prosecution
claims.
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B.

Malice

Portsmouth and Bernier also assert that the complaint fails
to plead a claim for malicious prosecution because it contains
only conclusory allegations of malice.

In response, Bobbett

contends she has properly alleged malice.

In the context of a

malicious prosecution claim, “[m]alice exists ‘when the primary
purpose in instituting the criminal proceeding was not to bring
an offender to justice, but was, on the contrary, ill will,
personal hostility, or to obtain a personal advantage.’”

Toney

v. Perrine, No. CIV 06-CV-327-SM, 2007 WL 2688549, at *6 (D.N.H.
Sept. 10, 2007) (quoting MacRae v. Brant, 108 N.H. 177, 181
(1967)); see also Aranson v. Schroeder, 140 N.H. 359, 364 (1995)
(describing malicious process as requiring “an improper purpose
in the use of legal process” (internal quotation marks
omitted)).
Here, Bobbett alleges that “[t]he defendants procured the
institution of criminal proceedings against [her] with malice.”
Doc. no. 1 at ¶ 33.

Standing alone, this allegation could be

considered, as defendants contend, a conclusory recitation of
the elements of malicious prosecution.

The complaint, however,

goes on to allege a number of additional facts concerning
malice.

Bobbett alleges that she did not falsely report the

Face Café charge, and that Bernier did not honestly suspect that

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she had.

The complaint also alleges that the defendants had an

improper motive in conducting the investigation; namely, that
they sought to help Jonathan in the divorce by giving him
information from Bobbett’s phone.

Finally, the complaint

alleges that as a result of the investigation, Jonathan did
indeed receive such information.

Those allegations are

sufficient to allege that the defendants acted with malice in
instituting the prosecution against Bobbett.
Accordingly, Bobbett has properly alleged a claim for
malicious prosecution based on the false statement charges.
II.

Intrusion upon Seclusion (Count IV)
Bobbett alleges that the defendants intruded on her

seclusion by searching her phone beyond the limits authorized by
the search warrant and by searching content that had nothing to
do with the criminal investigation.

The defendants move for

judgment on the pleadings, arguing that the alleged intrusion
upon Bobbett’s seclusion did not go beyond the accepted
standards of decency.

In addition, the defendants contend that

Bobbett has failed to allege that “the defendants should have
realized” that the alleged conduct “would be offensive to
persons of ordinary sensibilities.”
Under New Hampshire law, “‘a person who unreasonably and
seriously interferes with another’s interest in not having his
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affairs known to others is liable to the other.’”

Hamberger v.

Eastman, 106 N.H. 107, 111 (1964) (quoting Restatement (First)
of Torts § 867 (1939)).

To recover under this tort, a plaintiff

need not “prove any harm beyond the intrusion itself.”
Preferred Nat. Ins. Co. v. Docusource, Inc., 149 N.H. 759, 766–
67 (2003) (citing Restatement (Second) of Torts § 652H
comment a at 402 (1977)).

An intrusion is tortious, however,

only “if the defendant’s conduct was such that he should have
realized that it would be offensive to persons of ordinary
sensibilities.”

Hamberger, 106 N.H. at 111 (internal quotation

marks omitted).

Liability attaches only “where the intrusion

has gone beyond the limits of decency.”

Id. (internal quotation

marks omitted).
Whether a particular intrusion is offensive is a question
usually reserved for the factfinder.
Inc., 149 N.H. 148, 156 (2003).

Remsburg v. Docusearch,

In making this determination,

the factfinder should consider “the degree of intrusion, the
context, conduct and circumstances surrounding the intrusion as
well as the intruder's motives and objectives, the setting into
which he intrudes, and the expectations of those whose privacy
is invaded.”

Id. (internal quotation marks omitted).

Bobbett alleges that the defendants pursued baseless
criminal charges against her to gain access to the information

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on her cell phone, which included her private messages.

Bobbett

further alleges that the defendants did this for the purpose of
providing information to Jonathan to use in the couple’s divorce
proceeding.

Taking these allegations as true, as the court is

required to do at this stage, the complaint plausibly alleges
(1) conduct that goes beyond the limits of decency and (2)
conduct that the defendants should have known would be offensive
to persons of ordinary sensibilities.

Accordingly, Bobbett has

alleged a claim for intrusion upon seclusion.4
III. Public Disclosure of Private Facts (Count V)
Bobbett brings a claim for public disclosure of private
facts against the defendants, alleging that they improperly
publicized the contents of the personal information on her cell
phone.

Under New Hampshire law, “[o]ne who gives publicity to a

matter concerning the private life of another is subject to
liability to the other for invasion of his privacy, if the
matter publicized is of a kind that (a) would be highly
offensive to a reasonable person, and (b) is not of legitimate

In her reply, Bernier argues that Bobbett has not alleged
that she was the person who conducted the search at issue.
Bobbett has alleged that Bernier obtained the search warrant and
confiscated her cell phone. At this stage of the litigation,
those allegations are enough for the court to infer that Bernier
searched Bobbett’s phone.
4

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concern to the public.”

Lovejoy v. Linehan, 161 N.H. 483, 486

(2011) (quoting Restatement (Second) of Torts § 652D (1977)).
The defendants argue that Bobbett has not alleged that they
publicized the relevant information.

In addition, the

defendants contend that Bobbett’s claim fails because the
information they disclosed is not highly offensive to a
reasonable person.

Bobbett objects, arguing that she has

alleged a plausible claim for public disclosure of private
facts.
A.

Publicity

“[P]ublicity differs from mere publication,” in that
“[w]hile publication involves any communication by the defendant
to a third person, publicity means that the matter is made
public, by communicating it to the public at large, or to so
many persons that the matter must be regarded as substantially
certain to become one of public knowledge.”

Karch v. BayBank

FSB, 147 N.H. 525, 535 (2002) (internal quotation marks
omitted).

Although publicity requires communication to the

public at large, the New Hampshire Supreme Court has held that
“determining whether a disclosure of a private matter has become
one of public knowledge does not, as a matter of law, depend on
the number of people told.”

Id.

Rather, “[w]hether publicity

is achieved by broadcasting something private to a few people or
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to the masses is a conclusion best reached by the trier of
fact.”

Id.

For example, in Karch, the New Hampshire Supreme

Court concluded that a complaint alleging that the defendant
shared the private information of its employee to “other . . .
employees and/or officers” stated a claim for public disclosure
of private facts.

Id.

Here, Bobbett alleges that members of the Portsmouth police
department disclosed information from her phone to Jonathan for
use in the couple’s divorce proceedings.

The complaint further

alleges that this information was ultimately included in a
guardian ad litem report that was used in the divorce
proceedings.

As a result, the information was, at the very

least, spread to several people involved in the case, including
the guardian ad litem and the court.

These allegations are

enough to plausibly allege that the defendants publicized
Bobbett’s private information.
B. Offensiveness
Bobbett alleges that it was highly offensive to have police
search her phone for details of her personal life and then
disclose that information to Jonathan.

As discussed above, to

plead a claim for public disclosure of private facts, the
plaintiff must allege that the “matter publicized is of a kind
that would be highly offensive to a reasonable person.”
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Lovejoy, 161 N.H. at 486 (quoting Restatement (Second) of Torts
§ 652D (1997)).
The defendants contend that this disclosure cannot be the
basis for a viable public disclosure of private facts claim
because the subject of that disclosure only concerned Bobbett’s
intention to move to Atlanta, something that is not highly
offensive.

In response, Bobbett asserts that she has alleged a

situation, based on its context, that is highly offensive.
In this case, Bobbett alleges that the defendants disclosed
the contents of her private and personal communications on her
cell phone.

It can be reasonably inferred that the disclosed

statements were highly sensitive, given that they were between
Bobbett and a person that she used to date and were disclosed
while she was in the midst of a divorce proceeding.

In

addition, the defendants allegedly were aware of the divorce and
acted on behalf of Jonathan, to assist him in the divorce
proceedings.

Given these allegations, Bobbett has plausibly

alleged that the disclosure would be highly offensive to
ordinary people.
Conclusion
For the foregoing reasons, defendants’ motion for judgment
on the pleadings (doc. no. 18) is granted as to the malicious
prosecution claims against Bernier and Portsmouth arising from
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the prosecution of the witness tampering offense, part of Count
II, and is denied as to the remainder of Count II, Count VI, and
Count V.
SO ORDERED.

__________________________
Joseph A. DiClerico, Jr.
United States District Judge
March 29, 2018
cc:

Charlie P. Bauer, Esq.
Benjamin T. King, Esq.
Daniel J. Mullen, Esq.

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