Augustinowicz v . Nevelson et a l . CV-10-564-PB 12/16/11 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Joseph C . Augustinowicz Jan M . Augustinowicz
v. Case N o . 10-cv-564-PB Opinion N o . 2011 DNH 211 Marianne W . Nevelson et a l .
MEMORANDUM AND ORDER
Joseph and Jan Augustinowicz (collectively “plaintiffs”)
bring suit, pro s e , against the Town of Acworth (“Town”),
several of the Town’s officials, a law firm that provided
counsel to the Town, and one private individual (collectively
“defendants”). Plaintiffs allege that defendants conspired to
illegally seize their property. Defendants have filed motions
to dismiss, and for the reasons discussed below I grant those
motions.
I. BACKGROUND1
From 2007 until 2010, plaintiffs defied numerous attempts
by the Town to collect property taxes on a parcel of land they
1 It is difficult to discern any clear narrative from plaintiffs’ complaint. I have pieced together the facts from the documents attached to the complaint, and have been careful to ensure that the facts below are consistent with plaintiffs’ allegations. owned at 688 Cold Pond Road in Acworth, New Hampshire. In a
series of letters sent to the Town and its officials, plaintiffs
asserted that the Town could not legally tax them without their
consent, and that as “sovereign citizens” they were not subject
to the jurisdiction of the Town or the courts of the state. See
Doc. Nos. 1-9, 1-12.
On April 2 0 , 2010, and again on October 4 of that year, the
Acworth Tax Collector notified plaintiffs that a tax deed would
issue on October 25 if plaintiffs did not pay the taxes owed.
Doc. N o . 1-14 at 1 . The taxes remained unpaid. Accordingly, on
October 2 5 , the Tax Collector conveyed plaintiffs’ property to
the Town by tax deed. Doc. N o . 1-13. On November 1 5 , the Town
notified plaintiffs that it had recorded the deed, and informed
them of their statutory right to repurchase the property. Doc.
N o . 1-14 at 2 ; see N.H. Rev. Stat. Ann. § 80:89.
Plaintiffs argue that the Town illegally took title to
their property, broadly alleging “an ongoing conspiracy among
the defendants named in this suit, to knowingly and willingly[]
deny plaintiffs’ Constitutional and civil rights to due process
2 under law.” 2 Compl. at 4 , Doc. N o . 1 . Based on a number of
different factual allegations, plaintiffs contend that
defendants violated their rights under the First, Fourth,
Seventh, Ninth, and Fourteenth amendments to the U.S.
Constitution, Sections 1983, 1985, and 1986 to Title 42 of the
United States Code, and various New Hampshire statutory
provisions.
II. STANDARD OF REVIEW
In considering a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), I “accept as true the well-pleaded
factual allegations of the complaint, draw all reasonable
inferences therefrom in the plaintiff's favor and determine
whether the complaint, so read, sets forth facts sufficient to
justify recovery on any cognizable theory.” Martin v . Applied
Cellular Tech., 284 F.3d 1 , 6 (1st Cir. 2002). To survive a
motion to dismiss for failure to state a claim, the general
standard under Rule 8 of the Federal Rules of Civil Procedure is
that the complaint must “state a claim to relief that is
2 Because I determine that plaintiffs have failed to allege any infringement of their constitutional or statutory rights, I do not separately address whether plaintiffs have pled the elements of a conspiracy. 3 plausible on its face.” Ashcroft v . Iqbal, 129 S . C t . 1937,
1949 (2009) (quoting Bell Atl. Corp. v . Twombly, 550 U.S. 5 4 4 ,
570 (2007)). A claim is facially plausible when it pleads
“factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged. The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id.
(citations omitted).
When a plaintiff acts pro s e , this court is obliged to
construe the pleadings liberally in favor of the pro se party.
See Ayala Serrano v . Lebron Gonzales, 909 F.2d 8 , 15 (1st Cir.
1990) (citing Estelle v . Gamble, 429 U.S. 9 7 , 106 (1976)). That
review ensures that pro se pleadings are given fair and
meaningful consideration. See Eveland v . Dir. of C.I.A., 843
F.2d 4 6 , 49 (1st Cir. 1988).
III. ANALYSIS
Plaintiffs allege that (1) the Town and its officials did
not follow proper state court procedure prior to seizing the
property; (2) defendants sent threatening letters to plaintiffs
4 to accomplish their fraudulent scheme; (3) the property taxes
levied against plaintiffs were illegal because plaintiffs never
consented to their imposition; and (4) defendants illegally
altered the boundaries of the property. I address each claim in
turn.
A. Failure to Follow State Court Procedure
On July 1 9 , 2011, the Sullivan County Superior Court
enjoined plaintiffs from entering and/or residing at the Acworth
property now owned by the Town. Doc. N o . 45-2. Plaintiffs have
attached a copy of a motion to reconsider that order, dated July
2 8 , 2001, and state that it was filed with the Superior Court.
Doc. N o . 50-1. As best I can discern, plaintiffs allege a due
process violation stemming from the fact that the Town retains
title to the property in question even though defendants did not
respond to the motion to reconsider and the motion has yet to be
adjudicated. Compl. at 4 , Doc. N o . 1 , P’s O b j . to Mot. to
Dismiss ¶ 7 , Doc. N o . 5 0 .
I conclude that plaintiffs have failed to plead with
sufficient specificity any facts from which I can infer a due
process violation. Neither the mere fact of filing a motion to
reconsider in state court, nor the alleged failure of defendants
5 to respond to such a motion, entitle plaintiffs to any relief in
a federal forum.
B. Threatening Letters
Plaintiffs claim that the Town and its officials issued
threatening letters on October 4 and November 1 5 , 2010.
Plaintiffs allege that defendants “outlin[ed] what they will do
to the Plaintiffs” in the letters, and that the use of the mail
by town officials to execute a fraudulent scheme violated their
constitutional and statutory rights. Compl. ¶ 5 , 8 , Doc. N o . 1 .
The letters are attached to the complaint, and both letters do
no more than provide notice to plaintiffs, in perfectly civil
terms, of their rights and obligations vis-à-vis the impending
tax deed on plaintiffs’ property and the Town’s subsequent
recording of the deed. See Doc. N o . 1-14.
Plaintiffs have failed to state a viable claim. First, the
content and tone of the letters do not evince even a hint of the
“harassment,” “oppression,” or “intimidation” claimed by
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Augustinowicz v . Nevelson et a l . CV-10-564-PB 12/16/11 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Joseph C . Augustinowicz Jan M . Augustinowicz
v. Case N o . 10-cv-564-PB Opinion N o . 2011 DNH 211 Marianne W . Nevelson et a l .
MEMORANDUM AND ORDER
Joseph and Jan Augustinowicz (collectively “plaintiffs”)
bring suit, pro s e , against the Town of Acworth (“Town”),
several of the Town’s officials, a law firm that provided
counsel to the Town, and one private individual (collectively
“defendants”). Plaintiffs allege that defendants conspired to
illegally seize their property. Defendants have filed motions
to dismiss, and for the reasons discussed below I grant those
motions.
I. BACKGROUND1
From 2007 until 2010, plaintiffs defied numerous attempts
by the Town to collect property taxes on a parcel of land they
1 It is difficult to discern any clear narrative from plaintiffs’ complaint. I have pieced together the facts from the documents attached to the complaint, and have been careful to ensure that the facts below are consistent with plaintiffs’ allegations. owned at 688 Cold Pond Road in Acworth, New Hampshire. In a
series of letters sent to the Town and its officials, plaintiffs
asserted that the Town could not legally tax them without their
consent, and that as “sovereign citizens” they were not subject
to the jurisdiction of the Town or the courts of the state. See
Doc. Nos. 1-9, 1-12.
On April 2 0 , 2010, and again on October 4 of that year, the
Acworth Tax Collector notified plaintiffs that a tax deed would
issue on October 25 if plaintiffs did not pay the taxes owed.
Doc. N o . 1-14 at 1 . The taxes remained unpaid. Accordingly, on
October 2 5 , the Tax Collector conveyed plaintiffs’ property to
the Town by tax deed. Doc. N o . 1-13. On November 1 5 , the Town
notified plaintiffs that it had recorded the deed, and informed
them of their statutory right to repurchase the property. Doc.
N o . 1-14 at 2 ; see N.H. Rev. Stat. Ann. § 80:89.
Plaintiffs argue that the Town illegally took title to
their property, broadly alleging “an ongoing conspiracy among
the defendants named in this suit, to knowingly and willingly[]
deny plaintiffs’ Constitutional and civil rights to due process
2 under law.” 2 Compl. at 4 , Doc. N o . 1 . Based on a number of
different factual allegations, plaintiffs contend that
defendants violated their rights under the First, Fourth,
Seventh, Ninth, and Fourteenth amendments to the U.S.
Constitution, Sections 1983, 1985, and 1986 to Title 42 of the
United States Code, and various New Hampshire statutory
provisions.
II. STANDARD OF REVIEW
In considering a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), I “accept as true the well-pleaded
factual allegations of the complaint, draw all reasonable
inferences therefrom in the plaintiff's favor and determine
whether the complaint, so read, sets forth facts sufficient to
justify recovery on any cognizable theory.” Martin v . Applied
Cellular Tech., 284 F.3d 1 , 6 (1st Cir. 2002). To survive a
motion to dismiss for failure to state a claim, the general
standard under Rule 8 of the Federal Rules of Civil Procedure is
that the complaint must “state a claim to relief that is
2 Because I determine that plaintiffs have failed to allege any infringement of their constitutional or statutory rights, I do not separately address whether plaintiffs have pled the elements of a conspiracy. 3 plausible on its face.” Ashcroft v . Iqbal, 129 S . C t . 1937,
1949 (2009) (quoting Bell Atl. Corp. v . Twombly, 550 U.S. 5 4 4 ,
570 (2007)). A claim is facially plausible when it pleads
“factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged. The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id.
(citations omitted).
When a plaintiff acts pro s e , this court is obliged to
construe the pleadings liberally in favor of the pro se party.
See Ayala Serrano v . Lebron Gonzales, 909 F.2d 8 , 15 (1st Cir.
1990) (citing Estelle v . Gamble, 429 U.S. 9 7 , 106 (1976)). That
review ensures that pro se pleadings are given fair and
meaningful consideration. See Eveland v . Dir. of C.I.A., 843
F.2d 4 6 , 49 (1st Cir. 1988).
III. ANALYSIS
Plaintiffs allege that (1) the Town and its officials did
not follow proper state court procedure prior to seizing the
property; (2) defendants sent threatening letters to plaintiffs
4 to accomplish their fraudulent scheme; (3) the property taxes
levied against plaintiffs were illegal because plaintiffs never
consented to their imposition; and (4) defendants illegally
altered the boundaries of the property. I address each claim in
turn.
A. Failure to Follow State Court Procedure
On July 1 9 , 2011, the Sullivan County Superior Court
enjoined plaintiffs from entering and/or residing at the Acworth
property now owned by the Town. Doc. N o . 45-2. Plaintiffs have
attached a copy of a motion to reconsider that order, dated July
2 8 , 2001, and state that it was filed with the Superior Court.
Doc. N o . 50-1. As best I can discern, plaintiffs allege a due
process violation stemming from the fact that the Town retains
title to the property in question even though defendants did not
respond to the motion to reconsider and the motion has yet to be
adjudicated. Compl. at 4 , Doc. N o . 1 , P’s O b j . to Mot. to
Dismiss ¶ 7 , Doc. N o . 5 0 .
I conclude that plaintiffs have failed to plead with
sufficient specificity any facts from which I can infer a due
process violation. Neither the mere fact of filing a motion to
reconsider in state court, nor the alleged failure of defendants
5 to respond to such a motion, entitle plaintiffs to any relief in
a federal forum.
B. Threatening Letters
Plaintiffs claim that the Town and its officials issued
threatening letters on October 4 and November 1 5 , 2010.
Plaintiffs allege that defendants “outlin[ed] what they will do
to the Plaintiffs” in the letters, and that the use of the mail
by town officials to execute a fraudulent scheme violated their
constitutional and statutory rights. Compl. ¶ 5 , 8 , Doc. N o . 1 .
The letters are attached to the complaint, and both letters do
no more than provide notice to plaintiffs, in perfectly civil
terms, of their rights and obligations vis-à-vis the impending
tax deed on plaintiffs’ property and the Town’s subsequent
recording of the deed. See Doc. N o . 1-14.
Plaintiffs have failed to state a viable claim. First, the
content and tone of the letters do not evince even a hint of the
“harassment,” “oppression,” or “intimidation” claimed by
plaintiffs. See Compl. at 8 , Doc. N o . 1 . Second, notice is
statutorily required prior to the imposition of a tax deed and
prior to the sale of property acquired by tax deed. See N.H.
Rev. Stat. Ann. §§ 80:77, 80:89. It is therefore nonsensical to
6 argue that town officials may not send a letter to a property
owner detailing an impending tax deed or sale.
C. Lack of Consent to be Taxed
Plaintiffs allege that property taxes cannot be imposed
without the taxpayer’s consent. Compl. ¶ 2 , 4 , Doc. N o . 1 .
They base their claim on a provision of the New Hampshire Code
that states, in relevant part, “Real and personal property shall
be taxed to the person claiming the same, or to the person who
is in the possession and actual occupancy thereof, if such
person will consent to be taxed for the same . . . .” N.H. Rev.
Stat. Ann. § 73:10.
Although plaintiffs’ interpretation of the provision is
grammatically plausible, it defies common sense and is
foreclosed by New Hampshire case law.3 Under the correct
interpretation of the statute, consent is required to tax the
possessor/occupant, but not the person claiming the property.
3 Plaintiffs do not spell out their claim, but I presume their argument is based on a reading of the statute where the conditional clause –- “if such person will consent to be taxed for the same” –- modifies both prior instances of the term “person.” Under that reading, consent is required to tax not only possessors/occupiers, but claimants as well. If plaintiffs’ interpretation were law, any property owner in New Hampshire would have the right to opt out of paying property taxes. 7 See Quimby v . Quimby, 118 N.H. 9 0 7 , 910-11 (1978)
(distinguishing taxation scheme as between owner and occupant,
where the latter can be taxed only with consent). Plaintiffs
owned the Acworth property, and therefore cannot disavow
taxation on the basis of withholding consent.
D. Illegal Alteration of Boundaries
Plaintiffs allege that certain defendants did “knowingly
and willingly[] work in a concerted effort . . . to change our
mutual boundaries, which are under ‘contention,’ though we
contested it in writing to the Board of Selectmen[.]” Compl. ¶
1 , Doc. N o . 1 . Although I struggle to understand the
statement’s thrust, from the documents attached to plaintiffs’
complaint I glean that in 2006, Dennis Earl, the only individual
defendant not an official of the Town (and presumably a relative
of codefendant and Acworth Zoning Board member Lisa Earl),
requested and was granted a change in the boundary line of his
property on the Town’s tax map. Doc. N o . 1-4. A letter from a
surveying company indicates that the request was based on
confusion over the location of a boundary between Earl’s
property and plaintiffs’ abutting property. Id. at 2 . As a
result of the correction of the tax map, plaintiffs were
8 informed that the boundary line to their own property was not
where they believed it had been. Id. at 8 .
Plaintiffs contend only that certain defendants violated
their rights by working together to effect the alteration in the
tax map. The allegations, however, are entirely conclusory, and
fail to provide any detail at all about defendants’ conduct. By
failing to specify any actions or omissions that might be the
basis for liability, the pleadings are insufficient to state a
claim upon which relief can be granted.4
IV. CONCLUSION
For the foregoing reasons, defendants’ motions to dismiss
(Doc. Nos. 2 0 , 45) are granted. The clerk is directed to enter
judgment accordingly and close the case.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
December 1 6 , 2011
4 Because plaintiffs have failed to state any claim upon which relief can be granted, I need not decide whether the claims against the law firm of Gardner, Fulton & Waugh, PLLC, should be dismissed under Fed. R. Civ. P. 12(b)(5) for insufficient service of process. See Doc. N o . 20 at 1-2. 9 cc: Joseph C . Augustinowicz Jan M . Augustinowicz Daniel J. Mullen Adele M . Fulton Erik Graham Moskowitz Charles P. Bauer