Torro v. Goldberg et al
Filing
33
///ORDER granting 19 Motion for Judgment on the Pleadings, 22 granting Motion for Judgment on the Pleadings, granting 23 Motion for Judgment on the Pleadings to the extent that Counts I, II, and V are dismissed with pre judice. That part of Count III alleged against Mark Goldberg and the Town of Bradford is dismissed with prejudice, and Count IV as to the Town of Bradford is dismissed with prejudice. The court declines to exercise subject matter jurisdiction over Count III against Marilyn Gordon and Count IV against Gordon and Goldberg. Those claims are dismissed without prejudice. The clerk of court shall enter judgment accordingly and close the case. So Ordered by Magistrate Judge Andrea K. Johnstone.(kad) Modified on 3/22/2019 to add: "///" (kad).
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Joseph Torro
v.
Case No. 18-cv-213-AJ
Opinion No. 2019 DNH 052
Mark Goldberg, Marilyn Gordon,
and the Town of Bradford
O R D E R
Joseph Torro brought suit alleging federal claims under 42
U.S.C. § 1983 and state law claims against Mark Goldberg,
Marilyn Gordon, and the Town of Bradford.
The claims arise from
decisions not to grant Torro a certificate of occupancy for the
Bradford Village Inn and not to grant him a tax abatement for
the property.
The defendants each move for judgment on the
pleadings, asserting that the claims are barred by the statute
of limitations and that Torro fails to allege actionable claims.
In response, Torro objects to dismissal of only his equal
protection claim and his state law claim against Gordon for
violation of RSA 91-A and against Gordon and Goldberg for
intentional infliction of emotional distress. 1
1
In his complaint, Torro also alleged a violation by all
defendants of his right to substantive due process, Count II;
violation by all defendants of RSA 91-A, Count III; intentional
infliction of emotional distress against all defendants, Count
IV; and official oppression in violation of RSA 643:1 by Gordon
and Goldberg, Count V. Because Torro did not oppose judgment on
the pleadings on Count II, Count III as to Goldberg and
Bradford, Count IV as to the Town of Bradford, and Count V,
those claims are dismissed.
Standard of Review
A motion for judgment on the pleadings under Federal Rule
of Civil Procedure 12(c) is addressed under the standard for a
motion to dismiss under Rule 12(b)(6).
F.3d 76, 82 (1st Cir. 2012).
Shay v. Walters, 702
The court takes the plaintiff’s
factual allegations as true and draws reasonable inferences in
the plaintiff’s favor.
Kando v. R.I. State Bd. Of Elections,
880 F.3d 53, 58 (1st Cir. 2018).
credited.
Legal conclusions are not
Najas Realty, LLC v. Seekonk Water Dist., 821 F.3d
134, 140 (1st Cir. 2016).
Taken in that light, the complaint
must provide facts to support a claim that “is plausible on its
face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Background
Torro alleges in the complaint that Marilyn Gordon owned
and operated the Candlelite Inn as a “Bed and Breakfast” in
Bradford, New Hampshire.
Torro alleges that Gordon was
romantically involved with Mark Goldberg, the Chief of the
Bradford Fire Department, and that Goldberg lived at the Inn
with Gordon.
Gordon began to list the property for sale beginning in
2010, with listing prices of $500,000 and $600,000.
In August
of 2014, Torro made an offer on the property of $175,000, which
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was rejected, and then an offer of $195,000, which was also
rejected.
The Inn was then listed for sale at auction.
Torro asked two of the Bradford selectmen if they knew any
reason why the Inn could not be operated as a Bed and Breakfast.
They denied knowing of any issues and said that he could
continue to run the Inn as a Bed and Breakfast.
Torro was the
highest bidder at the auction, held in August of 2014, and paid
$258,000 for the Inn.
After Torro took possession of the Inn, Gordon told him he
could not continue to use the name “Candlelite Inn” without
paying for the trade name.
Torro declined to buy the name and
renamed the Inn, “Bradford Village Inn.”
Torro invested in
improvements in the building, including new electrical wiring,
smoke and carbon monoxide detectors, and new chimney liners and
caps.
The chimneys were tested for safety.
The Bradford Code Enforcement Officer, Walter Royal,
visited the building while the improvements were underway.
While Torro was talking with Royal outside the Inn, Goldberg
drove up and appeared to be angry as he approached Torro and
Royal.
Goldberg said that Torro could not open the Inn because
of “all the deficiencies.”
Torro asked why the deficiencies did
not prevent Gordon from running the Inn, and Goldberg left.
On October 6, 2014, Torro attended a board of selectmen
meeting to explain the improvements he was making to the Inn.
3
Goldberg also attended the meeting and said that because he knew
Gordon he would not be able to do the fire safety inspection.
Because Goldberg recused himself from the inspection, it was
done by the state fire marshal, who did not issue a certificate
of occupancy.
In December of 2014, the Bradford Business Association
planned to hold a luncheon at the Inn to welcome Torro to the
Bradford Business Community.
Gordon objected to holding the
meeting at the Inn, and it was held elsewhere.
On March 10, 2015, Goldberg sent an email to the state fire
marshal’s office to report a listing for the Inn on a rental
website. 2
Goldberg asked if renting the Inn was legal.
Gordon
sent Goldberg an email about the rental listing the day before.
The fire marshal had the matter investigated, and the
investigator determined that because Torro was renting the
entire building, not individual rooms within the building, that
rental activity did not come under the Fire Code’s restriction
on a lodging or rooming house and was not prohibited by the fire
codes.
Torro and his wife petitioned Bradford for a tax abatement,
which was being considered by the town in April or May of 2015.
Torro alleges that the selectmen were prepared to grant him a
2
Although Torro states that the email was sent on March 10,
it is dated March 12.
4
fifty percent tax abatement on the Inn property.
Torro further
alleges that Gordon, who is the treasurer of the Town of
Bradford, objected to the tax abatement and expressed her
objections during a nonpublic meeting of the selectmen.
The tax
abatement was not granted.
Discussion
Torro’s remaining claims are that the defendants violated
his equal protection rights by treating him differently than
Gordon was treated in running the Inn.
He also alleges that
Goldberg’s and Gordon’s conduct amounted to intentional
infliction of emotional distress and that Gordon violated RSA
91-A.
The defendants move for judgment on the pleadings on the
grounds that the claims are time barred and that Torro fails to
allege actionable claims.
A.
Equal Protection
In Count I, Torro alleges that Goldberg, as town fire
chief, and Gordon, as town treasurer, conspired to deny him
equal protection of the law by having Goldberg recuse himself
from the fire safety inspection of the Inn.
Because of
Goldberg’s recusal, Torro theorizes, he was subjected to a
stricter level of inspection by the state fire marshal’s office,
which resulted in the Inn not being given a certificate of
5
occupancy.
He argues that because the inspection of the
property by the fire marshal was more stringent than Goldberg’s
inspection would have been, he was treated differently than
Gordon was while she owned the property.
1.
Statute of limitations
When a claim under § 1983 arose in New Hampshire, the
statute of limitations is three years.
Gorelik v. Costin, 605
F.3d 118, 121 (1st Cir. 2010); RSA 508:4.
“‘Section 1983 claims
generally accrue when the plaintiff knows, or has reason to know
of the injury on which the action is based, and a plaintiff is
deemed to know or have reason to know at the time of the act
itself and not at the point that the harmful consequences are
felt.’”
Id. at 122 (quoting Moran Vega v. Cruz Burgos, 537 F.3d
14, 20 (1st Cir. 2008)).
The complaint was filed on March 12,
2018, so the three-year period extends back to March 12, 2015.
Based on the allegations in the complaint, Torro knew that
Goldberg had recused himself from conducting the fire inspection
on October 6, 2014.
He also knew that the state fire marshal
would conduct the inspection.
Although Torro fails to allege
when the inspection was done or when the state marshal issued
the decision denying a certificate of occupancy, that occurred
before March of 2015 when Goldberg reported the rental
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activities to the state fire marshal.
As a result, Torro did
not bring his claim within three years of its accrual.
Torro argues, however, that the time is extended by the
continuing violation doctrine.
“Under the ‘continuing
violation’ doctrine, a plaintiff may obtain recovery for
discriminatory acts that otherwise would be time-barred so long
as a related act fell within the limitations period.”
Tobin v.
Liberty Mut. Ins. Co., 553 F.3d 121, 130 (1st Cir. 2009).
To be
related, the more recent act must be part of the same
discriminatory course of conduct, such as a hostile work
environment, not a discrete act of discrimination.
Id.
In this case, Torro argues that Goldberg’s emails to the
fire marshal’s office about listing the Inn on rental websites
in March of 2015 constitute a continuing violation.
mistaken.
He is
Torro has not shown how the emails are a continuation
of Goldberg’s decision to recuse himself from the fire
inspection or the fire marshal’s fire safety inspection of the
Inn.
Those matters were complete when they occurred.
To the
extent the emails could be construed as a violation of equal
protection, which is not apparent, they would constitute
discrete acts separate from the fire safety inspection of the
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Inn. 3
Therefore, the continuing violation doctrine does not
apply to extend the limitation period in this case.
2.
Merits of the Claim
In addition, even if the claim were not time barred, Torro
has not stated a violation of his right to equal protection of
the laws.
As he acknowledges, Torro contends that his claim is
an equal protection violation based on a class of one.
To
succeed on that claim, Torro must allege facts to show “‘that
[he] has been intentionally treated differently from others
similarly situated and that there is no rational basis for the
difference in treatment.”
Gianfrancesco v. Town of Wrentham,
712 F.3d 634, 640 (1st Cir. 2013) (quoting Vill. Of Willowbrook
v. Olech, 528 U.S. 562, 564 (2000)).
Importantly, “a class-of-
one plaintiff bears the burden of showing that his comparators
are similarly situated in all respects relevant to the
challenged government action.”
Id. at 640.
Torro contends that he was treated differently than Gordon
was treated, while owning the same property.
His allegations,
however, do not show that unequal treatment occurred.
He does
not contest that the Inn was subject to a fire safety inspection
3
Further, no action was taken against Torro as a result of
the emails. The investigation determined that he could rent the
Inn in its entirety.
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before he could get a certificate of occupancy and open for
business.
He also does not contest that he was attempting to
open the Inn for business, under new ownership, after making
significant changes, and after the Inn had not been in operation
for over a year.
He does not allege what standard applied to the Inn while
Gordon was the owner, and what different standard was applied to
him. 4
In addition, he does not allege that a single entity
applied two different standards.
Instead, he alleges that
Goldberg discriminated against him by recusing himself from
doing the inspection.
Under the circumstances, the recusal was
eminently rational and reasonable.
General and conclusory
statements that another business was treated differently are not
enough to carry a class-of-one plaintiff’s burden to show a
similarly situated comparator.
Gianfrancesco, 712 F.3d at 640.
Therefore, Torro fails to state an equal protection
violation.
B.
State Law Claims
Subject matter jurisdiction in this case is based on the
existence of a federal question.
28 U.S.C. § 1331.
4
When the
The defendants do provide information about the fire
safety codes and what additional requirements applied to Torro
because he was opening a new business.
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federal claims that provided the basis for subject matter
jurisdiction have been dismissed early in a lawsuit and only
state law claims remain, “the federal court should decline the
exercise of jurisdiction by dismissing the case without
prejudice.”
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350
(1988); see also 28 U.S.C. § 1367(c).
The federal claims in this case are being dismissed early
in the case, leaving only state law claims.
Therefore, the
court declines to exercise supplemental jurisdiction over
Torro’s remaining state law claims, which are a claim against
Gordon in Count III and against all defendants in Count IV.
Conclusion
For the foregoing reasons, the defendants’ motions for
judgment on the pleadings (documents nos. 19, 22, and 23) are
granted to the extent that Counts I, II, and V are dismissed
with prejudice.
That part of Count III alleged against Mark
Goldberg and the Town of Bradford is dismissed with prejudice,
and Count IV as to the Town of Bradford is dismissed with
prejudice.
The court declines to exercise subject matter jurisdiction
over Count III against Marilyn Gordon and Count IV against
Gordon and Goldberg.
Those claims are dismissed without
prejudice.
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The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED
______________________________
Andrea K. Johnstone,
United States Magistrate Judge
March 22, 2019
cc:
All counsel of record
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