UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Elena Katz, individually and as parent, next friend, and co-guardian of Eleonora Grodman
v. Civil No. 15-cv-338-LM Opinion No. 2015 DNH 210 Brian McVeigh; et al.
O R D E R
In a case that has been removed from the Hillsborough
County Superior Court (“HCSC”), pro se plaintiff Elena Katz is
suing 29 named defendants in 32 counts, generally asserting
claims arising
out of [her] loss of legal custody of [her] daughter, Eleonora [Grodman], to the New Hampshire [Division for] Children, Youth and Families (“DCYF”) in November 2009, followed by efforts by various law enforcement officials to secure physical custody of Eleanora and, ultimately, her placement at a privately run residential rehabilitation facility.
Katz v. McVeigh, 931 F. Supp. 2d 311, 319 (D.N.H. 2013).
Before the court are six motions to dismiss, filed by 19 of
the 29 named defendants. Katz objects. For the reasons that
follow, defendants’ motions to dismiss are granted, and Katz’s
claims against the 10 remaining defendants are dismissed sua
sponte. I. The Legal Standard
Under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the court must accept the factual allegations in
Katz’s complaint as true, construe reasonable inferences in her
favor, and “determine whether the factual allegations in the
plaintiff’s complaint set forth a plausible claim upon which
relief may be granted.” Foley v. Wells Fargo Bank, N.A., 772
F.3d 63, 71 (1st Cir. 2014) (citation and internal quotation
marks omitted).
II. Background
This case was initiated in the HCSC by a pleading bearing
the caption “Plaintiffs’ Verified Amended Complaint.” Notice of
Removal, Ex. A (doc. no. 1-1), at 5 of 86. The complaint begins
with this sentence: “This is the re-filing of the complaint
original[ly] filed in [the] United States District Court for the
District of New Hampshire, Docket No. 1:10-cv-00410-JL, in this
State court.” Id. Katz makes the same point in her memorandum
of law in opposition to the motions to dismiss:
This action commenced . . . with the filing of the initial Civil Rights complaint in this District Court.
The filing of this lawsuit in State Court on March 2015 was a continuation of the same action in a state venue, arising from the same nexus of facts and unexhausted claims.
Pl.’s Mem. of Law (doc. no. 25) 22 (emphasis added).
2 True to Katz’s characterization of it, the complaint in
this case is all but identical to the operative complaint in 10-
cv-410-JL. The only real differences between the two complaints
involve the named parties. The previous case was brought by
Katz, Arnold Grodman, and Stuart Grodman, while this case has
been brought by Katz alone, in both her individual capacity and
her capacity as parent, next friend, and co-guardian of her
daughter Eleonora. In addition, this case includes five named
defendants who were not defendants in the previous case:
Rockingham County, the Warden of the Rockingham County
Department of Corrections, Hitchcock Clinic, Samuel Casella, and
Paul Boddy. However, the facts alleged and the causes of action
asserted in both complaints are identical.
10-cv-410-JL culminated in an order in which Judge Laplante
granted a combination of Rule 12(b)(6) motions to dismiss and
Rule 12(c) motions for judgment on the pleadings that disposed
of all 32 of the claims in that case. See Katz, 931 F. Supp. 2d
at 357. More specifically, the claims that the plaintiffs
brought in their individual capacities were dismissed with
prejudice, while any claims that were brought in a representa-
tive capacity, on behalf of Eleonora, were dismissed without
prejudice. See id. at 334. The court of appeals affirmed. See
Katz, 10-cv-410-JL, doc. no. 215.
3 In objecting to defendants’ motions to dismiss, Katz
contends that “new intervening events and causes of action
accrued since this Court dismissed the Plaintiff[’s] complaint
in March 2012.” Pl.’s Mem. of Law (doc. no. 25) 2 (emphasis in
the original). That may be, but the fact remains that this
court conducted a line-by-line comparison of the complaint in
10-cv-410-JL and the complaint Katz filed in the HCSC, and the
claims asserted in the two complaints are the same, word for
word. Indeed, the first page of the complaint Katz filed in the
HCSC bears the typewritten docket number “1:10-cv-00410-JL,”
which was scratched out by hand. See Notice of Removal, Ex. A
(doc. no. 1-1), at 4 of 86. And, notwithstanding Katz’s
assertion that new causes of action have accrued, see Pl.’s Mem.
of Law (doc. no. 25) 2, including one for malicious prosecution,
see Pl.’s Mot. to Remand (doc. no. 21) ¶ 6, she also concedes
that she did not include a claim for malicious prosecution in
her complaint in this case, see Pl.’s Mem. of Law (doc. no. 25)
18.
III. Discussion
In the discussion that follows, the court deals separately
with the claims Katz has brought in her individual capacity and
those she has brought in her representative capacity.
4 A. Individual-Capacity Claims
In their six motions to dismiss, all 19 defendants argue that
Katz’s individual-capacity claims are barred by res judicata, a
doctrine that is also known as claim preclusion. See Newman v.
Krintzman, 723 F.3d 308, 308 (1st Cir. 2013) (describing “claim
preclusion” as the modern name for res judicata). They base their
argument on Judge Laplante’s dismissal, in 10-cv-410-JL, of the
very same claims Katz has brought in this action.1 The res
judicata defense is meritorious and dispositive.2
“According to the doctrine of res judicata, a final
judgment on the merits precludes parties from relitigating
claims that were or could have been brought in a prior action.”
Universal Ins. Co. v. Office of Ins. Comm’r, 755 F.3d 34, 37
(1st Cir. 2014) (citing Haag v. United States, 589 F.3d 43, 45
(1st Cir. 2009)). Res judicata “relieve[s] parties of the cost
and vexation of multiple lawsuits, conserve[s] judicial
1 Katz appears to suggest that defendants’ res judicata defense is based in part upon giving preclusive effect to decisions from state-court neglect or guardianship proceedings. See, e.g., Pl.’s Mem. of Law (doc. no. 25) 2, 3, 24-25. Defendants’ only argument is that Judge Laplante’s decision in 10-cv-410-JL bars Katz from relitigating the claims that were decided against her in that action.
2 Various defendants raise other arguments, including one based upon Katz’s failure to schedule her claims in this case as assets in a 2011 bankruptcy petition. Because defendants’ res judicata argument is meritorious, the court need not address any of their other arguments.
5 resources, and . . . encourage[s] reliance on adjudication.”
Hatch v. Trail King Indus., Inc., 699 F.3d 38, 45 (1st Cir.
2012) (quoting Breneman v. U.S. ex rel. FAA, 381 F.3d 33, 38
(1st Cir. 2004); quoting Allen v. McCurry, 449 U.S. 90, 94
(1980)). Turning to the specifics of res judicata,
[t]he three elements . . . are: “(1) a final judgment on the merits in an earlier proceeding, (2) sufficient identicality between the causes of action asserted in the earlier and later suits, and (3) sufficient identicality between the parties in the two actions.”
Hatch, 699 F.3d at 45 (quoting Breneman, 381 F.3d at 38; citing
Banco Santander De P.R. v. Lopez-Stubbe (In re Colonial Mortg.
Bankers Corp.), 324 F.3d 12, 16 (1st Cir. 2003)).
A claim that is barred by res judicata is not “a plausible
claim upon which relief may be granted.” Foley, 772 F.3d at 71.
As a consequence, a claim that is barred by res judicata is
subject to dismissal under Rule 12(b)(6). See, e.g., Hatch, 699
F.3d at 43-44, 49. With respect to Katz’s individual-capacity
claims against the defendants who have moved to dismiss, those
defendants have established all three elements of res judicata.
The order Judge Laplante entered in 10-cv-410-JL granted a
combination of motions under Rules 12(b)(6) and 12(c). A
dismissal for failure to state a claim upon which relief can be
granted, under Rule 12(b)(6), is a final judgment on the merits
for the purposes of res judicata. See Airframe Sys., Inc. v.
Raytheon Co., 601 F.3d 9, 14 (1st Cir. 2010) (citing AVX Corp.
6 v. Cabot Corp., 424 F.3d 28, 30 (1st Cir. 2005)). Similarly,
“[a] decision pursuant to a motion under Fed. R. Civ. P. 12(c)
is a decision on the merits in . . . the First . . . Circuit[].”
Patterson v. Novartis Pharm. Corp., 909 F. Supp. 2d 116, 120-21
(D.R.I. 2012). Thus, defendants have established the first
element of res judicata. Katz correctly notes that none of the
claims in 10-cv-410-JL ever made it to trial. Nevertheless,
those claims were all adjudicated to a final judgment on the
merits, which is all that is required to establish the first
element of res judicata.
The second element, sufficient identicality between the
causes of action asserted in two different suits, is established
“if both sets of claims – those asserted in the earlier action
and those asserted in the subsequent action – derive from a
common nucleus of operative facts.” Silva v. City of New
Bedford, 660 F.3d 76, 79 (1st Cir. 2011) (quoting Breneman, 381
F.3d at 38; citing Gonzalez v. Banco Cent. Corp., 27 F.3d 751,
755 (1st Cir. 1994)) (internal quotation marks omitted). Here,
the complaint in 10-cv-410-JL and the complaint in this case
both include a 259-paragraph section titled “Factual Predicate,”
and those two factual recitations are identical. Moreover,
plaintiff herself describes this case as “arising from the same
nexus of facts” as 10-cv-410-JL. Pl.’s Mem. of Law (doc. no.
25) 22. Indisputably, the two actions arise from a common
7 nucleus of operative facts, which means that defendants have
established the second element of res judicata.
The third element, “sufficient identicality between the
parties in the two actions,” Hatch, 699 F.3d at 45, has also
been established. Fifteen of the 19 defendants who have moved
to dismiss Katz’s claims in this case were defendants in 10-cv-
410-JL. The four defendants in this case who were not
defendants in the previous case, but who have moved to dismiss
on grounds of res judicata, are closely enough related to named
defendants in the previous action to satisfy the third element
of res judicata. As the court of appeals has explained:
We, along with other circuits, have long held that claim preclusion applies if the new defendant is “closely related to a defendant from the original action — who was not named in the previous law suit,” not merely when the two defendants are in privity. Negrón–Fuentes [v. UPS Supply Chain Solutions], 532 F.3d [1,] 10 [(1st Cir. 2008)]; see id. (collecting cases).
Airframe Systems, 601 F.3d at 17 (citing Hermes Automation
Tech., Inc. v. Hyundai Elec. Indus. Co., 915 F.2d 739, 751 (1st
Cir. 1990); In re El San Juan Hotel Corp., 841 F.2d 6, 10–11
(1st Cir. 1988); Gambocz v. Yelencsics, 468 F.2d 837, 841–42 (3d
Cir. 1972). A key factor in determining whether a close and
significant relationship exists is whether “‘the [later] claims
were or could have been brought against the original defendant
in the original suit’ and the subsequent suit tried to hold
8 related defendants liable on related claims.” Airframe Systems,
601 F.3d at 17-18 (quoting Negrón-Fuentes, 532 F.3d at 10).
Here, Rockingham County and the Warden of the Rockingham
County Department of Corrections were not named defendants in
10-cv-410-JL. But those entities are closely related to the
Rockingham County Sheriff’s office, which was a named defendant.
The County, as a governmental entity, encompasses the Sheriff’s
office. The Department of Corrections, like the Sheriff’s
office, is an agency of the County government. Moreover, the
court can discern no reason why the plaintiffs could not have
named the two new Rockingham County entities as defendants in
10-cv-410-JL alongside the County entity they did name. Indeed,
the facts set forth in the complaint in this case say nothing
about those entities that was not set forth in the complaint
filed in 10-cv-410-JL.
Similarly, Hitchcock Clinic and Samuel Casella were not
named defendants in 10-cv-410-JL. But they are closely related
to Sreenivas Katragadda, who was a named defendant. In the
complaint in 10-cv-410-JL, the plaintiffs alleged that Hitchcock
Clinic employed Dr. Katragadda, an allegation Katz repeats in
her complaint in this case. She also alleges that Dr. Casella
and Dr. Katragadda were both employed by Hitchcock Clinic and
both provided care for Eleonora. And, as with the two new
Rockingham County entities, the court can discern no reason why
9 the plaintiffs could not have named Hitchcock Clinic and Dr.
Casella as defendants in 10-cv-410-JL. Accordingly, defendants
have established the third element of res judicata.
To sum up, as to the claims Katz has brought in her
individual capacity, all 19 defendants who have moved to dismiss
are entitled to dismissal on grounds of res judicata. As in 10-
cv-410-JL, that dismissal is with prejudice.
B. Representative-Capacity Claims
This case also involves some number of claims brought by
Katz in her capacity as parent, next friend, and co-guardian of
her daughter Eleonora. In 10-cv-410-JL, Judge Laplante
dismissed all the claims that had been brought on Eleonora’s
behalf. The basis for that dismissal was the rule that “‘an
individual may appear in federal courts only pro se or through
legal counsel,’ and not through ‘third-party lay representa-
tion.’” Katz, 931 F. Supp. 2d at 333 (quoting Herrera-Venegas
v. Sanchez-Rivera, 681 F.2d 41, 42 (1st Cir. 1982); citing L.R.
83.6(b)). Accordingly, Judge Laplante dismissed the
representative-capacity claims without prejudice to their being
brought in an action in which Eleonora’s representative was
represented by counsel.
Here, like the plaintiffs in 10-cv-410-JL, Katz is
appearing pro se. Five of the six pending motions to dismiss
10 identify Katz’s pro se status as a ground for dismissing her
representative-capacity claims. Defendants’ arguments on that
point are correct, for the reasons stated by Judge Laplante in
Katz. See 931 F. Supp. 2d at 333-34. Katz’s representative-
capacity claims are dismissed. That dismissal, however, is
without prejudice to claims being brought, on Eleonora’s behalf,
by a representative who is represented by counsel.
At this point, the court notes that Katz makes a
considerable effort to establish her standing to sue on her
daughter’s behalf. See, e.g., Pl.’s Mem. of Law (doc. no. 25)
4-16. That issue, however, has no bearing on the question
before this court, which is whether Katz’s claims are barred by
res judicata. Because Katz has devoted so much attention to
this issue, it is worth pointing out that Judge Laplante never
ruled that the plaintiffs in 10-cv-410-JL lacked standing. He
determined that Arnold Grodman, “as guardian of Eleonora’s
estate” was authorized “under New Hampshire law . . . ‘to
prosecute or defend actions, claims, or proceedings in any
jurisdiction for the protection of [Eleonora’s] estate’s
assets.’” Katz, 931 F. Supp. 2d at 333. But, he ruled that
Grodman could not do so without legal counsel. See id.
Grodman’s (or Katz’s) standing to sue on Eleonora’s behalf and
their ability to do so in federal court without counsel are two
separate legal issues.
11 C. The Remaining Defendants
Only 19 of the 29 named defendants in this case have moved
to dismiss. Under ordinary circumstances, the court would
dismiss Katz’s claims against the 19 defendants who have moved
to dismiss and allow her claims against the remaining 10
defendants to continue moving forward. But these are not
ordinary circumstances, and the claims against the remaining
defendants are dismissed, sua sponte. In making that ruling,
the court is aware that “[s]ua sponte dismissals are strong
medicine, and should be dispensed sparingly.” Garayalde-Rijos
v. Municipality of Carolina, 747 F.3d 15, 22 (1st Cir. 2014)
(quoting Chute v. Walker, 281 F.3d 314, 319 (1st Cir. 2002);
citing Gonzalez-Gonzalez v. United States, 257 F.3d 31, 33 (1st
Cir. 2001)).
As for when it is permissible to dispense a sua sponte
dismissal:
The general rule is that sua sponte dismissals of complaints under Rule 12(b)(6) are “erroneous unless the parties have been afforded notice and an opportunity to amend the complaint or otherwise respond.” Futura Dev. of P.R., Inc. v. Estado Libre Asociado de P.R., 144 F.3d 7, 14 (1st Cir. 1998). Only where “it is crystal clear that the plaintiff cannot prevail and that amending the complaint would be futile” can a sua sponte Rule 12(b)(6) dismissal stand. Chute, 281 F.3d at 319 (quoting Gonzalez– Gonzalez, 257 F.3d at 37) (internal quotation mark omitted).
Garayalde-Rijos, 747 F.3d at 22-23.
12 Given the circumstances of this case, which include two
complaints alleging identical facts and asserting identical
causes of action, and Katz’s own characterization of this case
as a re-filing of the case that she and her co-plaintiffs lost
before Judge Laplante, it is crystal clear that Katz’s claims
against the 10 remaining defendants could not survive a motion
to dismiss asserting a res judicata defense. Under these
unusual circumstances, sua sponte dismissal is warranted.
Katz’s individual-capacity claims against the 10 remaining
defendants are dismissed with prejudice, and her representative-
capacity claims against the remaining defendants are dismissed
without prejudice to claims being brought, on Eleonora’s behalf,
VI. Motion to Remand
More than one month after the six pending motions to
dismiss had been filed, and nearly a month after the statutory
deadline for moving to remand on grounds other than subject
matter jurisdiction had passed, see 28 U.S.C. § 1447(c), Katz
filed a motion to remand this case to the HCSC. Given this
court’s ruling on defendants’ motions to dismiss, Katz’s motion
to remand is moot; there is nothing left of this case to remand.
However, even if this court were to reach the merits of Katz’s
motion to remand, it would deny the motion.
13 The 30-day deadline for moving to remand an improperly
removed case is subject to one exception: lack of subject matter
jurisdiction, which may be raised at any time. See 28 U.S.C. §
1447(c). Katz argues that this court lacks subject matter
jurisdiction over this case, but she is mistaken.
In her motion, she characterizes this case as a “refiled
action[] [w]hich was dismissed by Fed Court.” Mot. to Remand
(doc. no. 21) 1. When Katz and her fellow plaintiffs filed the
case that Judge Laplante dismissed, they necessarily invoked
this court’s subject matter jurisdiction. And, while all the
defendants in 10-cv-410-JL prevailed, none of them prevailed by
arguing that the court lacked subject matter jurisdiction over
the claims that had been brought against them. Rather, Judge
Laplante dismissed 10-cv-410-JL under Rules 12(b)(6) and 12(c).
He could not have made those rulings if the court lacked subject
matter jurisdiction over the claims he dismissed.
In short, the court had subject matter jurisdiction over
the claims in 10-cv-410-JL, and has subject matter jurisdiction
over Katz’s claims in this case. Because Katz has no valid
argument that the court lacks subject matter jurisdiction over
her claims, she has waived any objection to litigating her
claims in this court. See Universal Truck & Equip. Co. v.
Southworth-Milton, Inc., 765 F.3d 103, 110-11 (1st Cir. 2014).
14 Consequently, if Katz’s motion to remand were not moot, the
court would be compelled to deny it on the merits.
V. Conclusion
For the reasons described above: (1) the court grants all
six of the pending motions to dismiss, document nos. 5, 7, 8,
10, 11, and 14; (2) Katz’s claims against Matel, Weinberg, Doty,
Morris, Lovett, Roy, Boddy, Hennessy, Donatelli, and the BPD are
all dismissed sua sponte; and (3) Katz’s motion to remand,
document no. 21, is denied as moot. The clerk of the court
shall enter judgment in accordance with this order and close the
case.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
November 12, 2015
cc: Elena Katz, pro se Corey S. Belobrow, Esq. Brian J.S. Cullen, Esq. Samantha Dowd Elliott, Esq. Paul B. Kleinman, Esq. Sabin R. Maxwell, Esq. Adams B. Pignatelli, Esq. Michael A. Pignatelli, Esq. Kenneth A. Sansone, Esq. Donald L. Smith, Esq. Nancy J. Smith, Esq.