Bobbett v. Portsmouth, NH, City of et al

Filing 42

///ORDER denying without prejudice to refiling prior to the summary judgment filing date 31 defendants' motion for summary judgment; and granting 32 plaintiff's Rule 56(d) motion. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

Oneta Bobbett,
Plaintiff
v.

Case No. 17-cv-265-SM
Opinion No. 2018 DNH 127

City of Portsmouth, et al.,
Defendants

O R D E R

Defendants, City of Portsmouth and Portsmouth police
officers Kristyn Bernier and Michael Leclair, filed a motion for
summary judgment on April 6, 2018.

In response, plaintiff,

Oneta Bobbett, filed a motion for relief under Fed. R. Civ. P.
56(d).

Defendant Bernier objects.

Plaintiff’s motion is

granted.
Background
Plaintiff’s claims arise out of a criminal investigation
and her subsequent prosecution.

As described in her complaint,

plaintiff reported a charge on her credit card statement as
fraudulent to the Portsmouth Police Department, in December of
2013.

At the time, plaintiff was in the midst of a contentious

divorce proceeding with her husband Jonathan Bobbett, a
prominent local businessman with personal ties to the Portsmouth
Police Department.

Following plaintiff’s report, Portsmouth Police Department
Detective Kristyn Bernier began investigating whether plaintiff
had falsely reported the charge as fraudulent.

In connection

with that investigation, Detective Bernier obtained a search
warrant to seize and search plaintiff’s cell phone.

The warrant

limited any search to communications relating to the subject
matter of the investigation during the relevant time period.
Later, Detective Bernier sought and received an arrest warrant
for plaintiff.

In September of 2014, a Rockingham grand jury

returned an indictment against plaintiff, charging her with
tampering with witnesses and informants.

The Rockingham County

Attorney also filed informations charging plaintiff with
providing a false report to law enforcement, and making unsworn
falsifications.

Those state criminal charges were eventually

nol prossed on August 27, 2015, and records of the charges were
annulled on March 7, 2016.
In her civil complaint, plaintiff alleges that the police
gave Jonathan Bobbett information that was obtained through an
unlawful search of her phone.

She further alleges that

Detective Bernier and the police department never actually
suspected her of criminal wrongdoing, but instead began the
criminal investigation as a mere pretext to gather information
to assist her ex-husband in the divorce proceedings.

2

Discussion
In support of her Rule 56(b) motion, plaintiff argues that
defendants’ summary judgment filing effected the sort of
“surprise” upon her that mandatory disclosures and the discovery
process seek to prevent.

She contends that the City of

Portsmouth has yet to respond to her outstanding discovery
requests, including two requests for production of documents and
two sets of interrogatories, all of which were propounded in
February and March of 2018.

Bobbett’s outstanding discovery

requests relate to a variety of topics, including any
relationship between her ex-husband and the Portsmouth Police
Department; the Department’s handling and treatment of her phone
following execution of the search warrant; and the names of
individuals who participated in communications concerning the
decision to prosecute her criminally, and the search of her
phone.
Rather than responding to those outstanding discovery
requests, plaintiff contends, defendants filed a motion for
summary judgment, and submitted in support an affidavit from
Jonathan Bobbett which attributes discoverable information to
people whom defendants had not disclosed, and whom the plaintiff
was unaware might have discoverable information.

Plaintiff

further argues that the affidavits submitted by Detective
Bernier and defendant Portsmouth Police Detective Michael

3

Leclair raise additional questions of fact that discovery is
necessary to resolve, including, inter alia, which members of
Portsmouth Police Department accessed plaintiff’s phone or
participated in communications regarding plaintiff’s phone (as
well as the substance of those communications), actions taken by
the Portsmouth Police Department with respect to the phone while
it was in police custody, and the contents of the phone reviewed
in connection with the search warrant.

Further complicating

discovery matters, says plaintiff, is an April 29, 2016,
settlement demand letter plaintiff’s counsel recently located on
the internet that outlines claims Bernier threatened to bring
against the City of Portsmouth, some of which relate to the
police department’s criminal investigation of the plaintiff.
Bernier is the only defendant who objected to plaintiff’s
Rule 56(d) motion.

She argues that plaintiff’s discovery

requests to her were not propounded until after defendants filed
their motion for summary judgment, and that her responses to
plaintiff’s requests will not be inconsistent with the
information she has already provided in her affidavit attached
to the summary judgment motion.
Our court of appeals has instructed that district courts
should “refrain from entertaining summary judgment motions until
after the parties have had a sufficient opportunity to conduct
necessary discovery.”

Velez v. Awning Windows, Inc., 375 F.3d

4

35, 39 (1st Cir. 2009) (citations omitted).
56(d) serves a valuable purpose.”

Therefore, “Rule

Maz Partners LP v. PHC, Inc.

(In re PHC, Inc. Shareholder Litig.), 762 F.3d 138, 143 (1st
Cir. 2014) (internal quotations omitted).

“In order to gain the

benefit of Rule 56(d), the party opposing summary judgment must
make a sufficient proffer: ‘the proffer should be authoritative;
it should be advanced in a timely manner; and it should explain
why the party is unable currently to adduce the facts essential
to opposing summary judgment.’”

Id. (quoting Resolution Trust

Corp. v. North Bridge Assoc., 22 F.3d 1198, 1203 (1st Cir.
1994)).

With respect to the third requirement, the litigant’s

statement should: (i) “explain[] his or her current inability to
adduce the facts essential to filing an opposition; (ii)
provide[] a plausible basis for believing that the sought-after
facts can be assembled within a reasonable time; and (iii)
indicate[] how those facts would influence the outcome of the
pending summary judgment motion.”

Velez, 375 F.3d at 40

(citations omitted).
Plaintiff easily satisfies the first two requirements of
authoritativeness, and timeliness.

“Plaintiff[] promptly

invoked Rule 56 shortly after defendants moved for summary
judgment, and . . . did so by filing an authoritative
affidavit.”

In re PHC Shareholder Litig., 762 F.3d at 144.

5

Plaintiff satisfies the third requirement as well.

As the

affidavit submitted by plaintiff’s counsel explains, defendants
have yet to respond to plaintiff’s multiple outstanding
discovery requests.
¶¶ 2-4.

See King Declaration (Document No. 32-9) at

And, plaintiff has identified “material evidence that

[she] is likely to uncover if
conduct discovery.”

. . .

given additional time to

Animal Hosp. of Nashua, Inc. v. Antech

Diagnostics, No. 11-CV-448-SM, 2012 WL 3956705, at *1 (D.N.H.
Sept. 10, 2012) (internal quotation and citation omitted).
Plaintiff seeks information from defendants that generally
relates, inter alia, to the relationship between her ex-husband
and the Portsmouth Police Department; the police department’s
decision to initiate a criminal investigation into her conduct;
and the police department’s treatment of her phone while it was
in police custody.

“Such evidence meets Rule 56(d)’s

‘necessarily low’ ‘threshold of materiality.’”

Animal Hosp. of

Nashua, 2012 WL 3956705, at *1 (quoting Resolution Trust, 22
F.3d at 1207).
Moreover, as plaintiff’s counsel states, “the discovery
requests . . . propounded seek factual information within the
possession of the City of Portsmouth, not otherwise available to
the plaintiff.”

King Declaration (Document No. 32-9) at ¶ 7.

“In a matter like this, when ‘plaintiff[‘s] case turns so
largely on [her] ability to secure evidence within the

6

possession of defendants, courts should not render summary
judgment because of gaps in a plaintiff’s proof without first
determining that plaintiff has had a fair chance to obtain
necessary and available evidence from the other party.”

In re

PHC Shareholder Litig., 762 F.3d at 145.
Finally, plaintiff has adequately demonstrated her
diligence in pursuing discovery.

The majority of her discovery

requests to the defendants were outstanding when the defendants
filed their motions for summary judgment.

And, while at the

time defendants’ motion was filed, summary judgment motions were
due to be filed by June 2, 2018, and the deadline for completion
of discovery was August 3, 2018, the parties subsequently filed
a joint motion to extend those deadlines.

On May 22, 2018, the

court granted that motion, extending the summary judgment filing
date to December 4, 2018, and the discovery completion deadline
to February 4, 2019.

That extended schedule supports “providing

time under Rule 56(d) to pursue discovery before addressing
summary judgment.”

Drew v. New Hampshire Drug Task Force, No.

14-CV-462-JD, 2015 WL 4526968, at *2 (D.N.H. July 27, 2015)
Conclusion
For the foregoing reasons, the plaintiff’s Rule 56(d)
motion (document no. 32) is granted.

The defendants’ motion for

summary judgment (document no. 31) is denied without prejudice
to refiling prior to the summary judgment filing date.

7

Plaintiff ought to be prepared by that point to fully respond
based upon a developed factual record.

SO ORDERED.

____________________________
Steven J. McAuliffe
United States District Judge
June 21, 2018
cc:

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

8