East Coast Service Industry Companies, Inc. et al v. New Hampshire State Liquor Commission et al

Filing 44

///ORDER granting 41 Motion to Dismiss for Failure to State a Claim. Counts V through VII are dismissed without prejudice for lack of jurisdiction. Because all claims in this case have been dismissed, the Clerk of Court is directed to close the case. So Ordered by Judge Joseph A. DiClerico, Jr. (gla)

Case 1:19-cv-01182-JD Document 44 Filed 02/17/21 Page 1 of 17

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

East Coast Serv. Indus.
Co. Inc., d/b/a Whiskeys 20,
Thomas Svoleantopoulos,
and Rosalie Sweeney
v.

Civil No. 19-cv-1182-JD
Opinion No. 2021 DNH 035

New Hampshire State
Liquor Commission, et al.

O R D E R
East Coast Service Industry (“Whiskeys 20”), Thomas
Svoleantopoulos, and Rosalie Sweeney brought this suit against
the City of Manchester, the Manchester Police Department, and
several of their employees,1 alleging violations of the federal
constitution and state law.2

The City of Manchester, the

Manchester Police Department, and their employees move to
dismiss the claims brought against them in the Amended
Complaint.

The plaintiffs object.

The plaintiffs also brought claims against the New
Hampshire State Liquor Commission and its employees. The court
previously dismissed these claims. East Coast Serv. Indus. v.
N.H. State Liquor Comm., 2020 WL 5578332 (D.N.H. Sept. 17,
2020).
1

The employees of the City of Manchester and Manchester
Police Department named in the Amended Complaint are Carlo T.
Capano, Ryan A. Grant, Alexander W. Martens, and John Does 2
through 20.
2

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Standard of Review
In considering a motion to dismiss, the court asks whether
the plaintiffs have made allegations that are sufficient to
render their entitlement to relief plausible.

Manning v. Boston

Med. Ctr. Corp., 725 F.3d 34, 43 (1st Cir. 2013).

The court

accepts all well-pleaded facts as true and draws all reasonable
inferences in the non-moving party’s favor.

Hamann v.

Carpenter, 937 F.3d 86, 88 (1st Cir. 2019).

The court, however,

disregards conclusory allegations that simply parrot the
applicable legal standard.

Manning, 725 F.3d at 43.

To

determine whether a complaint survives a motion to dismiss, the
court should use its “judicial experience and common sense,” but
should also avoid disregarding a factual allegation merely
because actual proof of the alleged facts is improbable.

Id.

The plaintiffs attached several documents to the Amended
Complaint.

When evaluating a motion to dismiss, “[t]he court

may supplement the facts contained in the pleadings by
considering documents fairly incorporated therein and facts
susceptible to judicial notice.”

R.G. Fin. Corp. v. Vergara-

Nuñez, 446 F.3d 178, 182 (1st Cir. 2006).

The court may also

consider documents about which the parties do not dispute
authenticity, official public records, documents central to the

2

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plaintiff’s claim, and documents sufficiently referenced in the
complaint.

Watterson v. Page, 987 F.2d 1, 3-4 (1st Cir. 1993).

Background
The plaintiffs have operated “Whiskeys 20,” a “restaurant
and late-night lounge” in Manchester, New Hampshire, since
October 2015.

Doc. 13 ¶¶ 1, 23.

The City of Manchester has

required Whiskeys 20 to hire a police detail “nearly every
night” it is open, which is “at least once or twice a week.”
See id. ¶¶ 60, 142.

The plaintiffs do not allege when the City

began requiring Whiskeys 20 to hire police details.

The

plaintiffs do not allege through what process the City required
Whiskeys 20 to hire police details.

Counsel for Whiskeys 20

challenged the continued need for the police details in late
2018 and June 2019.3
In a June 2019 e-mail attached to the Amended Complaint and
referenced in the Amended Complaint, Manchester Police
Department Assistant Chief of Police Ryan Grant stated that,

In a June 2019 e-mail that the plaintiffs attached to the
Amended Complaint, an attorney hired by Whiskeys 20 indicated
that he had engaged in “endless rounds of negotiations” with the
police department about the police detail requirement. See doc.
13-5 at 3-4. The attorney also indicated that an unknown
process was used to require the police detail, referencing
“whatever process was used to put it in place the first time.”
Id.
3

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without the police details, patrol units were being called to
Whiskeys 20 around closing time nearly every night it was open.
Grant referenced Manchester City Ordinance § 111.67 as authority
for requiring Whiskeys 20 to hire the police details.4

Whiskeys

20 alleges that it holds a restaurant license and that it does
not hold functions that subject it to regulation under § 111.67.
According to the Amended Complaint, in 2017, 295 calls were
made to the Manchester Police Department for service at Whiskeys
20; in 2018, 191 calls were made; and, through March of 2019,
ten calls had been made for the year.

The plaintiffs allege

that, in the first part of 2019, “the number of calls made to

4

Section 111.67 of the Manchester City Ordinances states:
When it is determined after investigation by the Chief
of Police to be necessary to preserve order, protect the
health, safety, and welfare of the citizens of the city,
or to help avoid traffic-related problems, public
disturbance, or public nuisance, all establishments
required to be licensed under this subchapter shall be
required to hire an off-duty police officer or officers
during
those
hours
the
Chief
of
Police
deems
appropriate. The Chief of Police may suspend the
requirement after investigation as he deems appropriate,
but his or her requirement may be reinstated following
receipt of complaints and investigation by the Chief of
Police.

“Establishments required to be licensed under” § 111.67’s
subchapter include dance halls and “entertainment place[s] of
assembly.” Id. § 111.66. Entertainment places of assembly are
defined as “[a] room or space in which provision is made for
occupancy or assembly for entertainment purposes.” Id.
§ 111.65.
4

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Manchester PD for service at Whiskeys 20 for various incidents
and/or events was lower than the calls made to two neighboring
bars,”

Club Manchvegas and McGarvey’s.

Doc. 13 ¶ 69.

The Manchester Police Department invoices Whiskeys 20 for
the costs of the police details.

Each police detail costs

Whiskeys 20 “approximately $258.”

Id. ¶ 84.

Whiskeys 20 has an

outstanding balance of $3,000 for unpaid invoices.

The

Manchester Police Department has threatened to refer Whiskeys 20
to the Manchester City Solicitor for proceedings to revoke or
suspend Whiskeys 20’s business license if the invoices remain
unpaid.
A.

Claims

The plaintiffs alleged seven claims in their Amended
Complaint:
•

Count I: declaratory judgment;

•

Count II: violation of equal protection rights under
the Fourteenth Amendment;

•

Count III: violation of procedural due process rights
under the Fourteenth Amendment;

•

Count IV: violation of Fourth Amendment;

•

Count V: tortious interference with advantageous
economic advantages with New Hampshire consumers;

•

Count VI: intentional infliction of emotional
distress; and

•

Count VII: negligent infliction of emotional distress.

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In its order on the New Hampshire State Liquor Commission’s
and its employees’ motion to dismiss, the court dismissed Count
I, which was brought against the Commission and two of its
employees only.

The court dismissed Counts II through VII,

which were brought against all the defendants, but only to the
extent allegations were made against the Commission or its
employees.

Therefore, of the original counts in the Amended

Complaint, only Counts II through VII remain in the case and
only to the extent allegations are made against the City of
Manchester, the Manchester Police Department, or their
employees.
Discussion
The City of Manchester, Manchester Police Department, and
their employees move to dismiss the remaining claims.

The

plaintiffs object to dismissal.

A.

Manchester Police Department

The defendants contend that the Manchester Police
Department should be dismissed from the case because it is not a
corporate body with a legal status separate from the City of
Manchester.

They assert that claims putatively against the

Manchester Police Department should be brought against the City

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of Manchester.

The plaintiffs do not make any objection to

dismissal of the Manchester Police Department.
A claim cannot be made against an entity that lacks the
legal status to sue or be sued.

See Evariste v. Boston Police

Dep’t, 2019 WL 1383530, at *1 (D. Mass. March 27, 2019).

The

Manchester Police Department is not a corporate body with a
legal status separate from the City of Manchester.

See RSA 31:1

(“Every town is a body corporate and politic, and by its
corporate name may sue and be sued, prosecute and defend, in any
court or elsewhere”); RSA 105:1 (describing processes for
appointment of chiefs of police and police officers by
municipalities); see also Kelley v. Hopkinton Vill. Precint, 108
N.H. 206, 207 (1967) (stating that municipal corporation, not
zoning board, was the proper party defendant in appeal of zoning
board action).

The City of Manchester, therefore, is the proper

defendant where the actions of the Manchester Police Department
are involved.

Accordingly, the Manchester Police Department is

dismissed as a party defendant.

The court, however, construes

any allegation that the plaintiffs made against the Manchester
Police Department as being made against the City of Manchester.
See Lath v. Manchester Police Dep’t, 2017 WL 11509857, at *2 n.3
(D.N.H. June 7, 2017) (“In this order, the court treats the MPD
and the City as a single defendant . . . .”).

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B.

Count II (Equal Protection Clause)

In Count II, Whiskeys 20 alleges that, in violation of the
Fourteenth Amendment’s Equal Protection Clause, the City of
Manchester and its employees have treated it differently from
similarly-situated Manchester bars such as Club Manchvegas and
McGarvey’s by requiring Whiskeys 20 to hire a police detail when
it is open for business.

The City of Manchester and its

employees argue that Whiskeys 20 fails to state a claim because
it makes no allegations that they acted with bad faith or
malicious intent to injure.

They also argue that a class-of-one

claim like the one brought by Whiskeys 20 is barred by Engquist
v. Oregon Dep’t of Agric., 553 U.S. 591 (2008).
“The Equal Protection Clause contemplates that similarly
situated persons are to receive substantially similar treatment
from their government.”
(1st Cir. 2015).

Davis v. Coakley, 802 F.3d 128, 132

The Supreme Court has recognized a “class-of-

one” equal protection claim where the plaintiff alleges that,
for reasons unique to it, it “has been intentionally treated
differently from others similarly situated and that there is no
rational basis for the difference in treatment.”

See Village of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Snyder v.
Gaudet, 756 F.3d 30, 34 (1st Cir. 2014).

In a class-of-one

equal protection claim, “the plaintiff ordinarily must also show
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that the defendant's differential treatment of the plaintiff was
motivated by bad faith or malicious intent to injure.”

Snyder,

756 F.3d at 34.
Whiskeys 20 has failed to allege facts or circumstances
from which any bad faith or malicious intent to injure Whiskeys
20 can be imputed to the City of Manchester or its employees.
Whiskeys 20 does not allege facts about the City’s imposition of
the police detail requirement or about the circumstances that
surrounded it.

The only potential allegations relevant to the

City’s motivation for imposing the police detail come from
Assistant Chief Grant’s e-mail indicating that, without the
detail, the police department had to dedicate officers to
respond to Whiskeys 20 almost every night it was open.

This

rationale for the City’s action, however, does not suggest any
bad faith or malicious intent to injure.
Whiskeys 20 argues that the police detail requirement is
improper because the number of calls to the Manchester Police
Department for service at Whiskeys 20 has declined from 2017 to
March 2019.

That the number of calls to the police began to

decline after the City required the police detail5 does not

Although Whiskeys 20 did not
details were first required, it can
allegations that they were required
2018, when an attorney for Whiskeys
continued need for the details.
5

9

allege when the police
be inferred from the
at some point prior to late
20 informally challenged the

Case 1:19-cv-01182-JD Document 44 Filed 02/17/21 Page 10 of 17

support an inference that the City acted maliciously or in bad
faith in imposing the requirement.

Furthermore, even if the

requirement was imposed based on an erroneous belief about the
number of police service calls that would occur without the
police detail, that does not constitute bad faith or a malicious
intent to injure.

See Tapalian v. Tusino, 377 F.3d 1, 6 (1st

Cir. 2004) (“Normally, such a plaintiff must establish more than
that the government official's actions were simply arbitrary or
erroneous; instead, the plaintiff must establish that the
defendant’s actions constituted a ‘gross abuse of power.’”).
For those reasons, the court dismisses Count II of the Amended
Complaint.

C.

Count III (Due Process Clause)

In Count III, Whiskeys 20 alleges that the City and its
employees violated its right to procedural due process under the
Fourteenth Amendment by requiring it to hire police details.
The City and its employees argue that Whiskeys 20 has failed to
allege facts that show it was deprived of any property interest
and that Whiskeys 20 has failed to make any allegations about
what process should have been provided to it.

Whiskeys 20

objects, arguing that the circumstances in which a police detail
can be required are carefully constrained, so a licensee
maintains a property interest in its business license sufficient
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to warrant due process protection.

A procedural due process

claim requires the plaintiff to show that it has a protected
property interest and that the defendants deprived it of that
interest without due process.

Miller v. Town of Wenham, Ma.,

833 F.3d 46, 52 (1st Cir. 2016).
1. Property Interest
"Property interests are created and defined by state law."
Frank v. City of Manchester, No. 9-CV-389-PB, 2011 WL 3489888,
at *3 (D.N.H. Aug. 10, 2011) (citing Leis v. Flynt, 439 U.S.
438, 441 (1979)).

To have a protectable property interest, "a

person clearly must have more than an abstract need or desire
for [the benefit].

He must have more than a unilateral

expectation of it.

He must, instead, have a legitimate claim of

entitlement to it."
(1972).

Bd. of Regents v. Roth, 408 U.S. 564 577

Whiskeys 20 does not have a protected property interest

in holding a business license without paying fees to hire a
police detail.
The Manchester City Ordinances provide City officials
"broad discretion" to deny licenses for applicants who fail to
meet any of the City's requirements, so an applicant for a
business license in the City "has no entitlement to a license."
See Frank, 2011 WL 3489888, at *4.

Under the same ordinances,

the City has broad discretion to condition the continuance of a
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license on the regular hiring of a police detail.

See

Manchester City Ordinances § 110.02(C) ("As a condition of
licensure, and at any time during the license period, a business
required to file under this chapter may be subject to additional
restrictions or conditions ordered by the Planning and Community
Development, Health, Police or Fire Departments as may be
warranted by any circumstances pertaining to a specific
establishment . . . .").

Since the City has broad discretion to

deny or condition licenses based on requirements it creates, a
license holder has no entitlement to holding a business license
without paying fees to hire a police detail.

See Frank, 2011 WL

3489888, at *4; Chongris v. Bd. of Appeals, 811 F.2d 36, 43-44
(1st Cir. 1987) (holding that applicant for "common victualler's
license" had no protectable interest where statute stated
licensing authorities "may" grant licenses and that authorities
had discretion to determine whether license was warranted by
"the public good").

Therefore, Whiskeys 20 does not have a

protected property interest in obtaining or continuing its
business license without the requirement of hiring a police
detail, and its due process claim fails for that independent
reason.

See Miller, 833 F.3d at 52.

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2. Deprivation of Property Interest without Due Process
Even assuming, however, that Whiskeys 20 has a protected
property interest, it has not alleged sufficient facts to show
that it was deprived of that interest without due process.
“[T]o establish the second prong of a procedural due process
claim (that the deprivation occurred without constitutionally
adequate process), plaintiffs must at least describe the process
afforded to them in relation to the alleged deprivation . . .
and identify the failings of that process or describe the
process that was due to them . . . .”

See Spencer v. Doran,

2020 WL 4904826, at *8 (D.N.H. Aug. 20, 2020) (citing AponteTorres v. Univ. of Puerto Rico, 445 F.3d 50, 56 (1st Cir. 2006),
and Doe by Fein v. D.C., 93 F.3d 861, 870 (D.C. Cir. 1996)).
Whiskeys 20 fails to allege facts about when or how the police
detail requirement was imposed or about what process was made
available to it when the requirement was imposed.

The

Manchester City Ordinances, for example, provide a hearing
process to adjudicate disputes over restrictions on business
license holders imposed by the City or its employees in any of
its departments.

See Manchester City Ordinance § 110.27(A)

(“Upon receipt of notification of denial of, or pending
suspension or revocation of, a business license, or for the
issuance of new or revised conditions or restrictions on the

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[business] licensee from the office of the City Clerk, the
applicant or licensee may request, in writing, a hearing before
the Committee on Administration of the Board of Mayor and
Aldermen.”).

Whiskeys 20, however, does not allege that it ever

used that process or allege facts indicating that this process
was unavailable or insufficient under the circumstances, which
renders the claim non-cognizable.

See Aponte-Torres, 445 F.3d

at 56 (“The amended complaint is devoid of any information about
the process afforded to the plaintiffs at the time any adverse
actions were taken.

Without this rudimentary factual

underpinning, no cognizable due process claim can be culled from
the meanderings of the amended complaint.”).
For the foregoing reasons, Count III is dismissed.
D.

Count IV (Fourth Amendment)

Whiskeys 20 alleges that the City and its employees
violated the Fourth Amendment by conducting searches of its
premises without a warrant or Whiskeys 20’s consent.

In the

motion to dismiss, the City and its employees assert that
Whiskeys 20 fails to allege facts to show that any search or
seizure occurred.

They also argue that Whiskeys 20 consented to

any searches or seizures that occurred.

Whiskeys 20 objects,

arguing that the police details were stationed inside the
establishment.

It contends that it did not consent to hiring

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the police details and that it urged the City to terminate the
police details, which the City refused to do.
“The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated . . . .”

U.S. Const. amend. IV.

“A search within the meaning of the Fourth Amendment occurs
whenever the government intrudes upon any place and in relation
to any item in which a person has a reasonable expectation of
privacy.”
2019).

United States v. Moss, 936 F.3d 52, 58 (1st Cir.

“[T]he Fourth Amendment protects people, not places.

What a person knowingly exposes to the public, even in his own
home or office, is not a subject of Fourth Amendment
protection.”

Katz v. United States, 389 U.S. 347, 351 (1967).

The court has already found in this case that Whiskeys 20
has no reasonable expectation of privacy in the areas of its
business that are open to the public.
2020 WL 5578332, at *8.

East Coast Serv. Indus.,

Although the Amended Complaint alleges

that the police details were stationed inside Whiskeys 20, there
are no allegations in the Amended Complaint that indicate any
officers in the police detail entered any non-public part of
Whiskeys 20 in which it held a reasonable expectation of
privacy.

Therefore, Count IV of the Amended Complaint is

dismissed.

See Moss, 936 F.3d at 58.

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E.

State Law Claims (Counts V through VII)

The City’s employees argue that they are entitled to
official immunity under RSA 99-D:1 as to all the state law
claims.

The City and its employees also contend that Counts V

and VI, which allege violations of state law, should be
dismissed for failure to state a claim upon which relief can be
granted.

The court, however, must first address the question of

its jurisdiction to consider the state law claims.

See Camelio

v. American Fed., 137 F.3d 666, 672 (1st Cir. 1998).
The court’s subject matter jurisdiction in this case is
premised on the existence of federal questions, specifically,
the federal constitutional claims raised by Whiskeys 20.
claims have been dismissed.

Those

As the parties in this case are

non-diverse, the state law claims that remain may proceed only
through the court’s supplemental jurisdiction.
§ 1367(a).

See 28 U.S.C.

While a district court, in some circumstances, may

use its discretion to exercise supplemental jurisdiction even
after the basis for its original jurisdiction has evaporated, it
is prudent for a court to decline to exercise supplemental
jurisdiction when it has dismissed all original jurisdiction
claims during the early stages of a case.

See 28 U.S.C.

§ 1367(c)(3); Rossi v. Gemma, 489 F.3d 26, 38-39 (1st Cir. 2007)
(“As a general principle, the unfavorable disposition of a
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plaintiff's federal claims at the early stages of a suit . . .
will trigger the dismissal without prejudice of any supplemental
state-law claims.”).

Because the court has dismissed all claims

over which it has original jurisdiction during the early stages
of this case, the court declines to exercise supplemental
jurisdiction over the remaining state law claims.

Therefore,

Counts V through VII of the Amended Complaint are dismissed
without prejudice for lack of jurisdiction.

See Rossi, 489 F.3d

at 38-39.

Conclusion
For the foregoing reasons, the motion to dismiss (doc. no.
41) is granted.

Counts V through VII are dismissed without

prejudice for lack of jurisdiction.

Because all claims in this

case have been dismissed, the Clerk of Court is directed to
close the case.
SO ORDERED.

__________________________
Joseph A. DiClerico, Jr.
United States District Judge

February 17, 2021
cc:

Counsel of Record.

17