Dominic v. Goldman et al
///ORDER granting 14 Motion to Dismiss for Failure to State a Claim; granting 16 Motion to Dismiss; granting 23 Motion to Dismiss for Failure to State a Claim. So Ordered by Chief Judge Landya B. McCafferty.(js)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Civil No. 21-cv-148-LM
Opinion No. 2021 DNH 108 P
Stephen R. Goldman, et al.
Proceeding pro se, plaintiff Steven Dominic brings this action against
attorneys who formerly represented his deceased mother’s estate, a former special
administrator of the estate, and judicial officials who presided over administration
of the estate. Plaintiff, who is currently the estate’s executor and the only person
with a beneficial interest in it, alleges that the defendants conspired to deprive him
of his interest in his mother’s estate and intentionally interfered with his
inheritance. Plaintiff brings federal claims under 42 U.S.C. § 1985(3) for conspiracy
to interfere with civil rights and under 42 U.S.C. § 1983 for violation of his
Fourteenth Amendment rights to due process and equal protection. In addition,
plaintiff brings claims under New Hampshire law for intentional interference with
inheritance, unfair business practices, legal malpractice, fraudulent
misrepresentation, and breach of fiduciary duty.
Defendants move to dismiss plaintiffs’ claims (doc. nos. 14, 16, 23). Plaintiff
objects. For the reasons set forth below, the court grants defendants’ motions to
dismiss, dismisses plaintiff’s federal claims with prejudice, and dismisses his state-
law claims for lack of subject-matter jurisdiction without prejudice to his right to
pursue those claims in state court.
Under Federal Rule of Civil Procedure 12(b)(6), the court must accept the
factual allegations in the complaint as true, construe reasonable inferences in the
plaintiff’s favor, and determine whether the factual allegations in the complaint set
forth a plausible claim upon which relief may be granted. See Breiding v.
Eversource Energy, 939 F.3d 47, 49 (1st Cir. 2019). A claim is facially plausible
“when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Except where otherwise noted, the following facts are drawn from plaintiff’s
amended complaint (doc. no. 4) and the attached exhibits.
Plaintiff’s mother, Elaine Dominic (“Elaine”), died on November 8, 2016,
survived by her sons Steven Dominic (the plaintiff in this action), Reginald Dominic
(“Reginald”), and Gary Dominic (“Gary”). At the time of Elaine’s death, Reginald
lived in her house in Boscawen, New Hampshire, and plaintiff, although a New
Hampshire resident, was on an extended visit with his wife’s parents in Florida.
Plaintiff had at that time been estranged from his brothers Reginald and Gary for
several years. Plaintiff did not learn of Elaine’s death until December 6, 2016,
when Reginald notified plaintiff’s mother-in-law by telephone and she, in turn,
On December 7, 2016, plaintiff contacted Elaine’s attorney, defendant
Stephen R. Goldman,1 to advise him of Elaine’s death and to determine whether he
would be willing to represent Elaine’s estate for probate purposes. Attorney
Goldman agreed to take on the representation. On December 12, 2016, having
obtained Reginald’s consent to retaining Attorney Goldman and agreement to meet
with him, plaintiff called Goldman back to confirm their arrangement. It does not
appear that plaintiff had any further involvement with Attorney Goldman or with
Reginald, or otherwise with the administration of Elaine’s estate, until May 26,
On December 28, 2016, Attorney Goldman filed a petition for administration
of Elaine’s estate in the New Hampshire Circuit Court, 6th Circuit — Probate
Division — Concord. The petition requested that the court appoint Reginald as the
estate’s executor. Defendant Margaret-Ann Moran,2 in her capacity as the
At all material times, Attorney Goldman was employed by defendant
Bianco Professional Association Attorneys at Law (the “Bianco law firm”), and
defendant James J. Bianco, Jr., served as the Bianco law firm’s principal. The court
will refer to Attorneys Goldman and Bianco and the Bianco law firm collectively as
the “Bianco defendants” in this order.
At all material times, defendant Sharon A. Richardson served as the clerk
of court for the New Hampshire Circuit Court, 6th Circuit — Probate Division —
Concord. The court will refer to Judge Moran and Clerk Richardson collectively as
the “judicial defendants” in this order.
presiding probate judge of the Circuit Court, granted the request and named
Reginald as the executor.
In late March 2017, Reginald’s health began failing rapidly. On April 2,
2017, Gary moved into the estate’s house in Boscawen, where Reginald was still
residing. Gary observed that the valuables and motor vehicles that he expected to
see in the house were missing, as were all of Elaine’s financial and medical records.
Reginald died on April 5, 2017. On April 10, 2017, Gary met with Attorney
Goldman to discuss how to proceed following Reginald’s death. Gary and Attorney
Goldman agreed that the best course would be for Attorney Goldman to serve as the
administrator of the estate. Accordingly, Attorney Goldman filed a petition to be
named as the administrator of Elaine’s estate. In April or May 2017, Judge Moran
granted the request.
On May 26, 2017, while still in Florida visiting his wife’s family, plaintiff
received written notice of Attorney Goldman’s appointment as the estate’s
administrator. This was plaintiff’s first notice both of Reginald’s death and of
Attorney Goldman’s appointment. That same day, plaintiff called Attorney
Goldman to ask why he had not been consulted in connection with the decision to
request Attorney Goldman’s appointment as administrator. Plaintiff also asked
why Attorney Goldman had not requested that plaintiff be appointed as executor of
the estate. Attorney Goldman responded that Elaine’s will prohibited plaintiff from
serving as executor of her estate. Plaintiff believes that Attorney Goldman’s
response was knowingly false.
Plaintiff returned to New Hampshire on June 1, 2017. On June 6, 2017,
plaintiff met with Attorney Goldman. At that meeting, plaintiff became suspicious
that Attorney Goldman had conspired with Reginald to interfere with plaintiff’s
interest in Elaine’s estate and to cause harm to Elaine.
On June 10, 2017, plaintiff and his wife moved into the estate’s Boscawen
house. Plaintiff’s brother Gary continued to reside there after plaintiff and his wife
On August 24, 2017, plaintiff filed a pleading in probate court objecting to
Attorney Goldman’s inventory of the estate’s assets and requesting that Attorney
Goldman resign as the estate’s administrator. Attorney Goldman subsequently
resigned at a status conference with the court on September 8, 2017. At that
conference, plaintiff requested that the court appoint a special administrator to
replace Attorney Goldman. On October 30, 2017, Judge Moran appointed defendant
Shane R. Stewart to serve as the special administrator of Elaine’s estate.
Attorney Stewart conducted an investigation of Elaine’s financial and
medical records. On February 9, 2018, Attorney Stewart filed a report to apprise
the probate court of his findings. Attorney Stewart reported that it was “clear” that
assets had been misappropriated from Elaine’s estate and that Reginald had
“violated his duties under a power of attorney” prior to Elaine’s death. Doc. no. 4,
Exh. 10, ¶ 2. Attorney Stewart also reported that plaintiff, Elaine’s estate, and
Reginald’s estate were pursuing a global settlement. See id., ¶ 4. Plaintiff
executed a settlement agreement on February 16, 2018, which apparently resulted
in plaintiff becoming the sole beneficiary of both Elaine’s and Reginald’s estates.
However, plaintiff believes that Attorney Stewart failed to disclose the full extent of
Reginald’s misappropriation of Elaine’s assets and counseled plaintiff to settle his
claims in order to conceal improper conduct of Attorney Goldman and the judicial
On August 3, 2018, plaintiff moved the probate court to appoint him as
administrator of Elaine’s estate. Judge Moran granted plaintiff’s motion, and
Attorney Stewart resigned. On October 19, 2018, plaintiff similarly moved the
probate court to appoint him as the administrator of Reginald’s estate. The probate
court granted that motion as well.
On April 26, 2019, plaintiff moved the probate court on behalf of Elaine’s
estate to toll the statute of limitations for recovery of real property. On August 18,
2019, Judge Moran denied the motion. Plaintiff moved on September 5, 2019 for
introduction of certain of Elaine’s medical records into evidence and on September
13, 2019 for reconsideration of Judge Moran’s decision denying his motion to toll.
Judge Moran denied those motions respectively on October 2 and 10, 2019. In
consequence, plaintiff “lost faith” in Judge Moran and moved for her recusal on
October 24, 2019. Doc. no. 4, ¶¶ 195-196. On October 30, 2019, Judge Moran found
that grounds for recusal did not exist but nevertheless granted the motion and
recused herself “given the allegations made by the Administrator.” Doc. no. 4, Exh.
The court takes judicial notice that the probate court subsequently closed
both Elaine’s and Reginald’s estates, that plaintiff appealed both closures, and that
the New Hampshire Supreme Court denied plaintiff’s appeal. See In re Estate of
Elaine Dominic; In re Estate of Reginald J. Dominic, Case No. 2020-0146 (N.H. Dec.
Arising out of the foregoing, plaintiff brings two federal claims and five statelaw claims. Plaintiff’s federal claims are pled as Counts I and II of his amended
complaint. In Count I, plaintiff alleges that all of the individual defendants3
conspired in violation of 42 U.S.C. § 1985(3) to interfere with his civil rights, and in
Count II he alleges that the individual defendants deprived him of his Fourteenth
Amendment rights to due process and equal protection in violation of 42 U.S.C.
Plaintiff’s state-law claims are pled as Counts III-VII of his amended
complaint. Plaintiff alleges that all defendants intentionally interfered with his
inheritance from Elaine (Count III), that all of the individual defendants violated
New Hampshire’s unfair business practices statute through the use of unfair or
deceptive acts or practices in the conduct of trade or commerce (Count IV), that
Attorneys Goldman, Bianco, and Stewart are liable for legal malpractice (Count V),
that Judge Moran and Attorney Goldman are liable for fraudulent
misrepresentation (Count VI), and that Attorneys Goldman and Stewart violated
fiduciary duties in connection with administering Elaine’s estate (Count VII).
That is, all of the defendants other than the Bianco law firm.
For the reasons discussed below, the court finds that the judicial defendants
enjoy immunity from suit in connection with all of plaintiff’s claims, and that
plaintiff fails to state a federal claim against any other defendant. The court
further finds that it lacks federal subject-matter jurisdiction over plaintiff’s statelaw claims.
Judicial Immunity of the Judicial Defendants
Pursuant to the doctrine of judicial immunity, “[a] judge is absolutely
immune from liability for h[er] judicial acts even if h[er] exercise of authority is
flawed by the commission of grave procedural errors.” Stump v. Sparkman, 435
U.S. 349, 359 (1978). In consequence, judicial officers “are not liable to civil actions
for their judicial acts, even when such acts are in excess of their jurisdiction and are
alleged to have been done maliciously or corruptly.” Id. at 356 (citations omitted);
see also Nystedt v. Nigro, 700 F.3d 25, 32 (1st Cir. 2012). For purposes of the
doctrine, whether an act is “judicial act” depends on both the nature of the act (i.e.,
“whether it is a function normally performed by a judge”) and the expectations of
the parties (i.e., “whether [the plaintiff] dealt with the judge in h[er] judicial
capacity”). Id. at 362; see also Goldstein v. Galvin, 719 F.3d 16, 25 (1st Cir. 2013).
“Therefore, it is an axiom of black letter law that when a judge carries out
traditional adjudicatory functions, he or she has absolute immunity for those
actions.” Zenon v. Guzman, 924 F.3d 611, 616 (1st Cir. 2019) (citations omitted).4
“Like other forms of official immunity, judicial immunity is an immunity
from suit, not just from ultimate assessment of damages.” Mireles v. Waco, 502
U.S. 9, 11 (1991) (citations omitted). “Accordingly, judicial immunity is not
overcome by allegations of bad faith or malice, the existence of which ordinarily
cannot be resolved without engaging in discovery and eventual trial.” Id. (citations
omitted). Similarly, judicial immunity applies with full force where a judicial officer
is alleged to have conspired with other, non-judicial defendants to violate a
plaintiff’s constitutional civil rights. See, e.g., Dennis v. Sparks, 449 U.S. 24, 30-31
All of Judge Moran’s alleged conduct was of a traditional judicial nature, and
all of plaintiff’s dealings with Judge Moran took place in connection with her role as
a probate judge. Plaintiff does not seriously dispute that Judge Moran acted at all
material times in her capacity as a judge of the probate court, but rather argues
that Judge Moran in effect waived her right to claim judicial immunity through
allegedly making intentional misrepresentations and otherwise acting with malice
or in bad faith. However, as noted, judicial immunity is absolute, and applies even
New Hampshire also recognizes the doctrine of absolute judicial immunity.
See, e.g., Gould v. Dir., N.H. Div. of Motor Vehicles, 138 N.H. 343, 346 (1994) (“all
judicial officers, when acting on subjects within their jurisdiction, are exempted
from civil prosecution for their acts . . . ; [such] immunity applies even when the
judge is accused of acting maliciously and corruptly”) (citations omitted); see also
Surprenant v. Mulcrone, 163 N.H. 529, 531 (2012).
where a judicial officer allegedly acts with patent malice or bad faith, so long as the
complained-of actions were judicial and jurisdiction was not completely absent. See
Mireles, 502 U.S. at 12. For these reasons Judge Moran enjoys absolute judicial
immunity from suit in connection with all of plaintiff’s claims against her.
Clerk Richardson similarly enjoys immunity from suit. The First Circuit has
observed that judicial immunity “attaches or does not attach depending on what
kind of action was performed rather than on who performed it.” Harper v. Begley,
37 F.3d 1484 (1st Cir. 1994) (quoting Acevedo-Cordero v. Cordero-Santiago, 958
F.2d 20, 23 (1st Cir. 1992)). Pursuant to the doctrine of judicial immunity,
“[a]bsolute immunity from damages . . . is extended to court officials other than
judges when the officials perform judicial functions. . . .” Id. (citing Antoine v. Byers
& Anderson, Inc., 508 U.S. 429, 436 (1993)); see also Slotnick v. Staviskey, 560 F.2d
31, 32 (1st Cir. 1977) (holding without significant analysis that judicial immunity
applies to clerks of court to the same extent as to judges); Sullivan v. Kelleher, 405
F.2d 486, 487 (1st Cir. 1968) (same).5
However, the First Circuit has also observed, apparently in dicta, that:
While there is general agreement that court officials. . . who act at the
behest of a judge or pursuant to a court order are entitled to absolute
quasi-judicial immunity from suit as to those actions, the circuits are
split regarding whether such officials are also entitled to absolute
quasi-judicial immunity when acting within the scope of their
employment, but not pursuant to the orders of a judge.
Forte v. Sullivan, 935 F.2d 1, 3 (1st Cir. 1991) (footnotes omitted). The Forte court
did not attempt to resolve the circuit-split that it identified.
The amended complaint does not contain clear and specific allegations of
Clerk Richardson’s allegedly wrongful conduct, but rather generally avers that
Clerk Richardson is liable to plaintiff because she either implemented or failed to
oppose Judge Moran’s decisions.6 As Clerk Richardson’s complained-of conduct
consisted entirely in assisting Judge Moran in connection with administration of
Elaine’s estate, she enjoys immunity from plaintiff’s claims in this action. See, e.g.,
Antoine, 508 U.S. at 436.
For these reasons, the court grants the judicial defendants’ motion to dismiss
(doc. no. 23) and dismisses plaintiff’s claims against the judicial defendants with
prejudice. See, e.g., Del-Villar-Rosario v. P.R. DOJ, 573 F. Supp. 2d 496, 501
(D.P.R. 2008). The court therefore need not address the judicial defendants’
alternative arguments in favor of dismissal.
Plaintiff’s Federal Claims
Conspiracy to Effect Deprivation of Civil Rights in Violation of 42
U.S.C. § 1985(3)
Plaintiff alleges in Count 1 of the amended complaint that all of the
individual defendants conspired to deprive him of his protected civil rights in
The sole exception to this generality is a small handful of allegations that,
liberally construed in plaintiff’s favor, suggest that Clerk Richardson intentionally
lost certain exhibits that plaintiff believes he properly submitted to the probate
court. See doc. no. 4, ¶¶ 108, 185. Plaintiff concedes, however, that the probate
court later accepted those same exhibits into evidence. See id., ¶¶ 172-174. The
court does not find that the resulting brief delay in the probate court’s receipt of the
exhibits renders Clerk Richardson’s actions non-judicial in character.
violation of 42 U.S.C. § 1985(3). The individual Bianco defendants and Attorney
Stewart move to dismiss plaintiff’s Section 1985(3) claim on the ground that
plaintiff has failed to allege the requisite discriminatory animus.
A Section 1985(3) claim has four elements:
First, the plaintiff must allege a conspiracy; second, he must allege a
conspiratorial purpose to deprive the plaintiff of the equal protection of
the laws; third, he must identify an overt act in furtherance of the
conspiracy; and finally, he must show either injury to person or
property, or a deprivation of a constitutionally protected right.
Parker v. Landry, 935 F3d 9, 17-18 (1st Cir. 2019) (modifications omitted) (quoting
Perez-Sanchez v. Pub. Bldg. Auth., 531 F.3d 104, 107 (1st Cir. 2008)). In addition,
however, “[i]t has long been established that a claim under § 1985(3) requires ‘some
racial, or perhaps otherwise class-based, invidiously discriminatory animus behind
the conspirators’ action.’” Perez-Sanchez, 531 F.3d at 107 (quoting Griffin v.
Breckenridge, 403 U.S. 88, 102 (1971)). The Supreme Court has explained that the
“predominant purpose” of Section 1985(3) is to combat animus against members of
racial minorities “and their supporters.” United Bhd. of Carpenters & Joiners,
Local 610 v. Scott, 463 US 825, 836 (1983). Accordingly, the Supreme Court has
declined to extend the scope of Section 1985(3) beyond racially motivated
conspiracies, see id. at 837, and has specifically found that Section 1985(3) does not
reach “conspiracies motivated by economic or commercial animus,” id. at 838.
Following Scott, nearly all circuit courts—including the First Circuit—have
declined to extend Section 1985(3) beyond invidious class-motivated conspiracies.
See Perez-Sanchez, 531 F3d at 109 (collecting cases).
Here, plaintiff alleges that the individual defendants conspired to defraud
him of his economic interest in Elaine’s estate. See doc. no. 4, ¶¶ 218-248. He does
not allege that he is a member of a racial minority or of any other class that has
historically been subject to invidious discrimination. See id. To the contrary, the
only motive for the conspiracy that may be gleaned from the amended complaint, if
any, is economic in nature. See id. Absent allegations of racial or otherwise
invidiously class-based animus, plaintiff cannot state a Section 1985(3) claim. See,
e.g., Perez-Sanchez, 531 F.3d at 109. Accordingly, the court grants the Bianco
defendants’ motion to dismiss (doc. no. 14) and Attorney Stewart’s motion to dismiss
(doc. no. 16) as to Count 1.
Deprivation of Fourteenth Amendment Equal Protection and Due
Process Rights in Violation of 42 U.S.C. § 1983
In Count 2, plaintiff alleges all individual defendants’ liability under Section
1983 for violating his Fourteenth Amendment rights of equal protection and due
process. The individual Bianco defendants and Attorney Stewart move to dismiss
Count 2 on the ground that they are private persons and that plaintiff has failed
adequately to allege that they acted under color of state law as required under
Section 1983. Attorney Stewart further argues, in the alternative, that plaintiff has
failed to allege an actionable deprivation of his equal protection or due process
Section 1983 provides a remedy against persons who deprive a plaintiff of
constitutionally or federally secured rights while acting under color of state law.
See 42 U.S.C. § 1983; see also Klunder v. Brown Univ., 778 F.3d 24, 30 (1st Cir.
2015) (quoting Santiago v. Puerto Rico, 655 F.3d 61, 68 (1st Cir. 2011)). “Although
a private party does not ordinarily act under the color of state law, a ‘plaintiff may
demonstrate state action by showing that a private party has conspired with state
actors to deprive him of a civil right.’” Webber v. Deck, 433 F. Supp. 3d 237, 246
(D.N.H. 2020) (quoting Arias v. City of Everett, CV 19-10537-JGD, 2019 WL
6528894, at *9 (D. Mass. Dec. 4, 2019)). Here, plaintiff argues that Attorney
Stewart is a state actor because the probate court appointed him to serve as special
administrator of Elaine’s estate. In addition, plaintiff argues that the individual
Bianco defendants and Attorney Stewart acted under color of state law because they
were engaged in a conspiracy to deprive him of his Fourteenth Amendment rights
with the judicial defendants, who are officers of the New Hampshire judiciary.
The court rejects the argument that Attorney Stewart was a state actor by
virtue of his appointment as special administrator of Elaine’s estate. Courts have
routinely found that appointment by a court to serve as an estate administrator
does not transform a private party into a state actor. See Polk v. County of Dodson,
454 U.S. 312, 325 (1981); see also, e.g., Patterson v. Rodgers, 708 F. Supp. 2d 225,
238-39 (D. Conn. 2010) (attorneys appointed to acts as executors of estate are not
state actors); Cummings v. LaCorte, No. CIV 10-0051 (SDW), 2010 WL 2710589, at
*3 (D.N.J. July 7, 2010) (court-appointed administrator of estate not a state actor);
Keeney v. Donatelli, No. CIV. A.06-5403, 2007 WL 475818, at *2 (E.D. Pa. Feb. 9,
2007) (court-appointed administrator for an intestate is not a state actor for
purposes of section 1983); Howard v. Brown, 738 F. Supp. 508, 509 (S.D. Ga. 1988)
(attorney acting as administrator and counsel for estate was not acting under color
of state law). The court therefore turns to the argument that Attorney Stewart and
the individual Bianco defendants acted under color of state law by conspiring with
the judicial defendants.
To establish that a private party acted under color of state law by conspiring
with state actors, a plaintiff must plead “the relationship or nature of cooperation
between the state and a private individual . . . in some detail.” McGillicuddy v.
Clements, 746 F.2d 76, 77 (1st Cir. 1984) (quoting Glaros v. Perse, 628 F.2d 679,
685 (1st Cir. 1980) (emphasis original)). Speculation about what might have
occurred and general allegations of conspiracy or joint action with a state actor
without supporting allegations of specific underlying facts are insufficient to
establish that a private party acted under color of state law. See McGillicuddy, 746
F.2d at 78; Webber, 433 F. Supp. 3d at 247. Here, the only factual allegations
underlying plaintiff’s broadly alleged theory of conspiracy with the judicial
defendants are that: Judge Moran appointed Attorney Goldman rather than
plaintiff to serve as administrator of Elaine’s estate after Reginald’s death, see id.,
¶¶ 33, 46-48, 114, 124; that at plaintiff’s request Judge Moran appointed Attorney
Stewart to serve as special administrator following Attorney Goldman’s resignation,
see id., ¶¶ 53, 124; that Attorney Stewart did not report the full extent of his
investigation to plaintiff or to the probate court, see id., ¶¶ 77-102, 110-113, 115117, 135-138, 145-146; that Attorney Stewart failed to take action in his capacity as
special administrator of Elaine’s estate either to secure Judge Moran’s
disqualification or to investigate the Bianco defendants, see id., ¶¶ 118-119, 139140, 142; that Attorney Goldman wrote two letters to Attorney Stewart offering to
assist with Attorney Stewart’s transition to the role of special administrator and
thanking him in closing for his “consideration,” id., ¶¶ 143-144; and that Judge
Moran “acted pleased with special administrator Attorney Stewart’s legal work” in
facilitating negotiated resolution of disputes regarding Elaine’s estate, id., ¶ 154.
These factual allegations, together with the other allegations of the amended
complaint, fall well short of establishing an agreement among the defendants to
violate plaintiff’s rights, let alone describing the nature of defendants’ cooperation
in furtherance of such an agreement. Plaintiff’s allegations are therefore
insufficient to support his theory that the private individual defendants acted under
color of state law.
Even if plaintiff had adequately alleged that Attorney Stewart and the
individual Bianco defendants acted under color of state law, he has failed to allege
an actionable deprivation of his equal protection or due process rights under the
Fourteenth Amendment. “To establish an equal protection claim, a plaintiff needs
to allege facts showing that ‘(1) the [plaintiff], compared with others similarly
situated, was selectively treated; and (2) . . . such selective treatment was based on
impermissible considerations such as race, religion, intent to inhibit or punish the
exercise of constitutional rights, or malicious or bad faith intent to injure a person.’”
Davis v. Coakley, 802 F3d 128, 132-33 (1st Cir. 2015) (quoting Rubinovitz v. Rogato,
60 F.3d 906, 910 (1st Cir. 1995)). Plaintiff does not allege that persons similarly
situated to him received different treatment from the defendants, nor does he
plausibly allege any impermissible basis upon which he was singled out for selective
treatment. Accordingly, he has not alleged an actionable Equal Protection
“To state a procedural due process claim under § 1983, the plaintiff must
allege facts which, if true, establish that the plaintiff (1) had a property interest of
constitutional magnitude and (2) was deprived of that property interest without due
process of law.” Clukey v. Town of Camden, 717 F.3d 52, 55-56 (1st Cir. 2013)
(citing García-Rubiera v. Fortuño, 665 F.3d 261, 270 (1st Cir. 2011)). Here, the
court has no difficulty in finding that plaintiff had a constitutionally protected
property interest in Elaine’s estate. However, plaintiff has not clearly alleged that
any defendant before this court deprived him of his interest in the estate. As noted,
plaintiff is currently the estate’s sole beneficiary as well as its administrator. The
only impairment of plaintiff’s interest in the estate that can be gleaned from the
amended complaint is Reginald’s alleged conversion of some of its assets before his
death in April 2017. Perhaps more critically, the first amended complaint does not
identify any process due to plaintiff in connection with any such deprivation that he
did not receive or that any defendant prevented him from pursuing. To the
contrary, plaintiff alleges that the probate court held a series of hearings at which
plaintiff was permitted to appear and to present evidence. Plaintiff may disagree
with the outcome of some of the probate court’s proceedings, but it is well settled
that “[t]he constitutional right to due process protects a person’s right to be heard,
but does not guarantee a right to any particular outcome once he . . . has been
heard.” Johnson v. Prospect Mountain JMA Sch. Dist. SAU 301, No. 13-CV-207LM, 2014 WL 2588952, at *7 (D.N.H. June 9, 2014). Plaintiff has thus failed to
allege an actionable violation of his Fourteenth Amendment procedural due process
For all of these reasons, the court grants the Bianco defendants’ motion to
dismiss (doc. no. 14) and Attorney Stewart’s motion to dismiss (doc. no. 16) as to
Plaintiff’s State-Law Claims
Because the federal courts are courts of limited jurisdiction, see
Commonwealth Sch., Inc. v. Commonwealth Acad. Holdings LLC, 994 F3d 77, 84
(1st Cir. 2021), when the presence of federal causes of action is the sole basis for the
court’s exercise of subject matter jurisdiction, it is generally appropriate to dismiss
state-law claims for lack of jurisdiction following dismissal of all federal claims. See
28 U.S.C. § 1367(c)(3) (“[t]he district courts may decline to exercise supplemental
jurisdiction over a [state-law] claim ... if... the district court has dismissed all claims
over which it has original jurisdiction”); Lares Grp., II v. Tobin, 221 F3d 41, 45 (1st
Cir 2000); see also, e.g., Carnegie-Mellon Univ. v Cohill, 484 U.S. 343, 350 n.7
(1988); Dispensa v. Nat'l Conf. of Cath. Bishops, No. 19-CV-556-LM, 2020 WL
2573013, at *12 (D.N.H. May 21, 2020).
Here, because all of the parties are New Hampshire residents, diversity
jurisdiction is not available over this action. Moreover, for the reasons discussed
above, plaintiff has not stated any viable federal claim. At this early stage of these
proceedings, it is therefore appropriate to dismiss plaintiff’s state-law claims
without prejudice to his right to refile them in state court. Accordingly, the court
declines to exercise supplemental jurisdiction over plaintiff’s state-law claims and
dismisses them without prejudice for lack of subject-matter jurisdiction.
For the reasons set forth above, the Bianco defendants’ motion to dismiss
(doc. no. 14), Attorney Stewart’s motion to dismiss (doc. no. 16), and the judicial
defendants’ motion to dismiss (doc. no. 23) are granted. To the extent alleged
against the judicial defendants, plaintiff’s claims are dismissed with prejudice on
grounds of absolute judicial immunity. To the extent alleged against the Bianco
defendants and Attorney Stewart, plaintiff’s federal claims are dismissed with
prejudice for failure to state a claim and plaintiff’s state-law claims are dismissed
without prejudice for lack of federal subject-matter jurisdiction.
United States District Judge
July 14, 2021
cc: Counsel of Record
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