Ortolano v. City of Nashua, NH et al

Filing 131

///ORDER granting 91 Motion for Summary Judgment. So Ordered by Chief Judge Landya B. McCafferty. (gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Laurie Ortolano
v.

Civil No. 22-cv-326-LM
Opinion No. 2025 DNH 033 P

City of Nashua, et al.
ORDER
Plaintiff Laurie Ortolano brings this suit against the City of Nashua
(“Nashua” or “the City”), several Nashua officials and employees, and two private
parties. The private parties are Inception Technologies, Inc. (“Inception”) and its
president, Raymond Feoli. The gist of Ortolano’s complaint is that the City and its
officials improperly deprived her of various rights in retaliation for her criticism of
City acts and officials, for seeking access to public records, and for bringing lawsuits
against the City. She also brings a defamation claim against Inception and Feoli
(who had a contract with the City) alleging that Feoli defamed her when he
represented to the Nashua Board of Aldermen that Ortolano deceived him into
believing she was a City employee. Presently before the court is Inception and
Feoli’s motion for summary judgment. Doc. no. 91. Ortolano objects. Doc. no. 101.
For the following reasons, Inception and Feoli’s motion (doc. no. 91) is granted.
STANDARD OF REVIEW
A movant is entitled to summary judgment where he “shows that there is no
genuine dispute as to any material fact and [that he] is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). In reviewing the record, the court construes all

facts and reasonable inferences in the light most favorable to the nonmovant. Kelley
v. Corr. Med. Servs., Inc., 707 F.3d 108, 115 (1st Cir. 2013).
BACKGROUND1
I.

Background on Ortolano’s Dispute with the City
Ortolano moved to Nashua in late 2013. Shortly after she moved into her

home, the City reassessed her property value, which increased her property tax
liability. Ortolano believed the new assessment was inaccurate and that her new
property tax obligation was too high. She thereafter engaged in various efforts to
lower her property tax bill, including by seeking a reevaluation of her
assessment. Ultimately, the City did not lower its assessment of Ortolano’s property
value to her satisfaction.
Ortolano’s experience seeking to lower her property tax assessment led her to
become a vocal public critic of the City and many of its departments, officials, and
employees, including the Assessing Department. Since 2018, she has attended and
spoken at over 200 public meetings. See doc. no. 84-4 (424-page document outlining
Ortolano’s statements since 2018). She frequently criticizes the City and the
Assessing Department for a perceived lack of accessibility to property records. See,
e.g., id. at 228.
Ortolano also makes public statements online. She posts her critiques on
social media and even launched a website where she has posted blogs about
perceived problems with Nashua city government. Some of those blogs were entitled

1 The following facts are not in dispute unless otherwise indicated.

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“An Overview of Nashua Assessing,” “What is Sales Chasing?” and “Will the 2019
Abatement Process in Nashua be Fair?” Doc. no. 1 ¶ 97. According to Ortolano, her
statements online and at public meetings gave her a “public profile” such that many
members of the public began asking her to assist them with property tax abatement
applications. Id. ¶ 98.
In addition to expressing public criticism of the City and its departments and
employees, Ortolano has submitted several hundred written and verbal “Right-toKnow” requests with the City. See RSA ch. 91-A. The requests primarily seek to
obtain documents pertaining to the City’s Assessing Department and its policies
and processes for assessing property taxes. Ortolano has also filed multiple lawsuits
against the City in New Hampshire state court alleging violations of the Right-toKnow law. See, e.g., Ortolano v. City of Nashua, 176 N.H. 175 (2023). Ortolano
characterizes her public criticism, Right-to-Know requests, and lawsuits against the
City as “a public crusade to pressure Nashua officials to clean up the Assessing
Department.” Doc. no. 1 ¶ 33. Ortolano’s disputes with the City have received
substantial media coverage. See, e.g., Dean Shalhoup, Property Owner Alleges
Wrongdoing by City, Nashua Telegraph (Feb. 20, 2019).2
II.

The Alleged Defamation
Inception provides document scanning and data storage solutions to private

companies and public entities in New Hampshire, including municipalities. In or

Available at: https://www.nashuatelegraph.com/news/2019/02/20/propertyowner-alleges-wrongdoing-by-city/.
2

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around 2020, Inception entered into a contract with the City to digitize Assessing
Department records. The digitization project continued through 2022.
In late 2021 or early 2022, Ortolano called Feoli. She was unable to access
the Assessing Department records that were with Inception for scanning, and was
frustrated with how long the project was taking. Feoli had never communicated
with Ortolano before, and he was unaware of her disputes with the City. Ortolano
told Feoli that she was “of Nashua,” doc. no. 31-2 at 2, and that she was “trying to
find out when we are going to have the scanning job done” because “we don’t have
access to those files” that were with Inception to be scanned, doc. no. 91-2 at 7-8.
Ortolano recited information from a pending purchase order as well as amounts
Inception had billed to the City for the project. She told Feoli that she would contact
Kim Kleiner, who oversaw the Assessing Department, about when the City would
be making additional payments to Inception in order to complete the project.
Inception routinely handles customers’ confidential data and is therefore
required to adhere to strict confidentiality and security protocols. Feoli states that
he thought Ortolano was a City employee during their conversation given her
statement that she was “of Nashua” and her detailed knowledge of the project.3 He
therefore disclosed information to her about the status of the project.
On or about February 4, 2022, Ortolano called Feoli again, identifying herself
as “from Nashua.” Doc. no. 101-1 at 3. Ortolano asked Feoli about public access to

3 Feoli also states that, in his nearly three decades in this field, he had never

been contacted by a citizen of a municipality seeking information about work that
Inception was performing for the municipality.
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scanned documents, stating: “We don’t have access to those files. When can we get
those files back?” Doc. no. 31-2 at 2. Believing Ortolano to be a City employee, Feoli
told Ortolano that Kleiner could provide City employees with log-in credentials to
access the electronic copies of documents that Inception had already scanned. In
response, Ortolano did not make explicit that she was a Nashua citizen rather than
a Nashua employee.
Following Feoli’s second phone call with Ortolano, Kleiner called him and
asked him to identify all City officials he had communicated with about the
digitization project. Feoli said that Ortolano was one of the City officials he had
spoken with about the project. Kleiner told Feoli that Ortolano was not a City
employee and that she had brought several lawsuits against the City. She told Feoli
that she would update the Board of Aldermen on the status of the digitization
project at their next session.
Upon learning that Ortolano was not a City employee, Feoli concluded that
his conversations with Ortolano breached Inception’s data security obligations to
the City. On February 6, 2022, he wrote a letter to the Board of Aldermen and
emailed it to Kleiner. In the letter, he stated that he had “been deceived” by
Ortolano, “who portrayed herself as [a] city employee to me.” Doc. no. 31-2 at 5. He
then detailed what he and Ortolano said to each other during their conversations.
On February 8, 2022, the Board of Aldermen held a public meeting, at which
Kleiner spoke.4 After detailing Inception’s progress on the project and its cost, she

4 Feoli did not attend this meeting.

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recounted her conversation with Feoli. She said that Feoli told her “that a city
employee named Ms. Ortolano had . . . reached out to him regarding the project.”
Doc. no. 86-6 at 14. She also provided the Board with Feoli’s letter, which was
accepted into the Board’s public file.
Later that evening, Ortolano emailed Feoli and informed him she was a
Nashua resident, not an employee. This was the first time Ortolano expressly told
Feoli she was a member of the public and was not a Nashua official or employee.
On February 11, 2022, a Nashua Alderman contacted Feoli for clarification
about his letter to the Board. Feoli clarified that Ortolano never explicitly stated
she worked for the City but that he believed she was a City official based on her
statements to him and her intimate knowledge of the City’s affairs, the terms of the
digitization contract, and the status of purchase orders. Around that same time, a
detective with the Nashua Police Department came to Inception’s office to speak
with Feoli about his conversations with Ortolano. He told the detective the same
thing he told the Alderman—that Ortolano never affirmatively claimed to be a City
official but that he believed she was based on her statements and intimate
knowledge of the digitization project and City business.
Feoli and Inception have had no further contact with Ortolano.
DISCUSSION
Ortolano alleges that Inception and Feoli defamed her when Feoli told the
Board of Aldermen in his letter that Ortolano “deceived” him when she “portrayed
herself” as a City employee during their conversations. Inception and Feoli move for
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summary judgment on Ortolano’s defamation claim. They contend that they are
entitled to judgment as a matter of law because Ortolano was a limited-purpose
public figure and there is no evidence Feoli acted with actual malice.
The Constitution imposes a more stringent standard for public figures to
succeed on a defamation claim than it does for private individuals. Pendleton v. City
of Haverhill, 156 F.3d 57, 66 (1st Cir. 1998). This is so because “public figures have
voluntarily exposed themselves to increased risk of injury from defamatory
falsehood” in exchange for “an influential role in ordering society,” whereas private
individuals have “relinquished no part of [their] interest in the protection of [their]
own good name.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974) (quotation
omitted). To succeed on a defamation claim, public figures must show that the
defendant acted with “actual malice,” while private individuals usually only need to
prove that the defendant acted negligently. Pendleton, 156 F.3d at 66. A defendant
acts with “actual malice” when she makes a statement with “knowledge that it was
false or with reckless disregard of whether it was false or not.” Lluberes v.
Uncommon Prods., LLC, 663 F.3d 6, 12 (1st Cir. 2011) (quoting N.Y. Times Co. v.
Sullivan, 376 U.S. 254, 280 (1964)).
There are two categories of public figures: “(1) persons who are public figures
for all purposes; and (2) so-called limited-purpose public figures who are public
figures for particular controversies.” Thomas v. Tel. Publ’g Co., 155 N.H. 314, 340
(2007). A person falls into the first category when they achieve “general fame or
notoriety in the community, and pervasive involvement in the affairs of society.”

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Gertz, 418 U.S. at 352. Few persons achieve such heights. Id. (cautioning that
courts should “not lightly assume that a citizen’s participation in community and
professional affairs render[s] him a public figure for all purposes”). A person is a
limited-purpose public figure when they “have thrust themselves to the forefront of
particular public controversies in order to influence the resolution of the issues
involved.” Id. at 345. When this occurs, courts deem the person a public figure only
for the range of public controversies they have put themselves at the forefront of.
See Lassonde v. Stanton, 157 N.H. 582, 590 (2008). Whether a person is a public
figure or a private individual presents a question of law. Pendleton, 156 F.3d at 68.
The first step of the limited-purpose public figure analysis is to isolate the
public controversy. Lassonde, 157 N.H. at 590. Not all matters of interest to the
public are public controversies for purposes of this analysis. Id. Rather, for a public
controversy to exist, there “must be a real dispute, the outcome of which affects the
general public or some segment of it in an appreciable way.” Id. (quoting Waldbaum
v. Fairchild Publ’ns, Inc., 627 F.2d 1287, 1296 (D.C. Cir. 1980)). In other words, “a
public controversy is a dispute that . . . has received public attention because its
ramifications will be felt by persons who are not direct participants.” Id. at 591
(quoting Waldbaum, 627 F.2d at 1296).
Here, the relevant public controversy is Ortolano’s self-proclaimed “public
crusade” against the City to reform the Assessing Department. Doc. no. 1 ¶ 33. This
dispute qualifies as a public controversy because Ortolano, by her own admission,
sought to increase transparency within the department and improve its operation

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for the benefit of the public. Indeed, Ortolano’s dispute led other members of the
Nashua community to seek their own property value reassessments, and Ortolano
assisted them as an act of “public service.” Id. ¶ 98. Feoli’s statement to the Board
in February of 2022 was within the context of this controversy because his
statement concerned Ortolano’s efforts to obtain information about the Assessing
Department.
Ortolano thrust herself to the forefront of this public controversy. She has
spoken at over 200 public meetings since 2018, often criticizing the Assessing
Department and its operation. She has also posted her critiques on social media,
and even started a website dedicated to publicizing problems she perceives with
Nashua city government and the Assessing Department specifically. This has led to
notable recognition for Ortolano, as demonstrated by, among other things, press
coverage of her disputes with the City and by members of the public seeking her out
for assistance with their own property tax issues.
For these reasons, Ortolano is a limited-purpose public figure with respect to
her “public crusade” against the Assessing Department. Therefore, to prevail on her
defamation claim, she must show that Feoli acted with actual malice. This she
cannot do.
As noted above, to show actual malice, Ortolano must show that Feoli made
the challenged statement with “knowledge that it was false or with reckless
disregard of whether it was false or not.” Lluberes, 663 F.3d at 12 (quoting N.Y.
Times, 376 U.S. at 280). To overcome summary judgment, “there must be sufficient

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evidence to permit the conclusion that the defendant in fact entertained serious
doubts as to the truth of” his statement. Hi-Tech Pharms., Inc. v. Cohen, 277 F.
Supp. 3d 236, 248 (D. Mass. 2016) (brackets omitted) (quoting St. Amant v.
Thompson, 390 U.S. 727, 731 (1968)). For example, actual malice may be found
“where a publisher fabricates an account, makes inherently improbable allegations,
relies on a source where there is an obvious reason to doubt its veracity, or
deliberately ignores evidence that calls into question his published statements.”
Levesque v. Doocy, 560 F.3d 82, 90 (1st Cir. 2009).
No reasonable trier of fact would conclude that Feoli acted with actual
malice. Feoli had not heard of Ortolano before she contacted him and knew nothing
of her legal battle with the City. In their first conversation, Ortolano told Feoli she
was “of Nashua,” doc. no. 31-2 at 2, and that she was “trying to find out when we
are going to have the scanning job done” because “we don’t have access” to files that
were with Inception, doc. no. 91-2 at 7-8. Ortolano demonstrated intimate
knowledge of Inception’s work for Nashua and even discussed details from specific
purchase orders. She also told Feoli she would speak with Kleiner, a high-ranking
City official overseeing Inception’s work, about when the City would be making
further payments to Inception under the contract. At no point did Ortolano
affirmatively state that she was calling as an interested citizen of Nashua, not as an
employee of the City, and in his nearly three decades in this line of work, a
municipal citizen had never contacted Feoli to discuss work Inception was
performing pursuant to a municipal contract.

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In their second conversation, Ortolano reminded Feoli that she was “from
Nashua,” doc. no. 101-1 at 3, once again told him that “[w]e don’t have access” to the
files that were with Inception, and asked “[w]hen can we get those files back?” Doc.
no. 31-2 at 2. In response, Feoli told her that city employees could ask Kleiner for
log-in credentials to access the electronic versions of records Inception had already
scanned. Again, Ortolano did not affirmatively state that she was a Nashua
resident, not a Nashua employee.
In all the foregoing, there is no evidence Feoli “deliberately ignore[d]”
evidence that undermined his claim. Levesque, 560 F.3d at 90. Nor is there
evidence he relied on a source with obvious credibility issues—indeed, it cannot be
disputed that the basis for his belief was Ortolano’s own statements. And Feoli’s
claim is not “inherently improbable.” Id. To the contrary, Ortolano’s statements
provided Feoli with a reasonable basis to conclude he was speaking with a City
employee. At most, a reasonable jury could find that Feoli should have asked
Ortolano directly whether she was a City employee during their conversations in
order to confirm or dispel his belief. But “mere proof of failure to investigate,
without more, cannot establish reckless disregard for the truth.” Gertz, 418 U.S. at
332. In short, no reasonable jury would find that Feoli knew his statement was
false, or that he entertained serious doubts as to the truth of his statement, when
he wrote in his letter to the Board that Ortolano deceived him into believing she
was a City employee. Feoli and Inception are therefore entitled to summary
judgment on Ortolano’s defamation claim.

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CONCLUSION
Inception and Feoli’s motion for summary judgment (doc. no. 91) is granted.
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge
March 10, 2025
cc:

Counsel of Record

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