Martha Mogaji v. Rosa Chan, et al.

2022 DNH 017

• Court: District Court, D. New Hampshire
• Decided: February 17, 2022
• Docket: 20-cv-249-JL
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Martha Mogaji

v. Civil No. 20-cv-249-JD Opinion No. 2022 DNH 017 Rosa Chan, et al.

O R D E R

Martha I. O. Mogaji, proceeding pro se, brings claims

against the owners of property where she rented space to operate

several businesses. Mogaji filed a motion for summary judgment

and was then granted leave to file an amended motion with

supporting exhibits, which she has done. The defendants object,

and Mogaji filed a reply.

Standard of Review

“Summary judgment is appropriate when the moving party

shows that ‘there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.’”

Joseph v. Lincare, Inc., 989 F. 3d 147, 157 (1st Cir. 2021)

(quoting Fed. R. Civ. P. 56(a)). A material fact is one that

“‘carries with it the potential to affect the outcome of the

suit.’” French v. Merrill, 15 F.4th 116, 123 (1st Cir. 2021)

(quoting Santiago-Ramos v. Centennial P.R. Wireless Corp., 217

F.3d 46, 52 (1st Cir. 2000)). A material fact is in genuine

dispute if “a reasonable jury could resolve the point in the

favor of the non-moving party.” Id. When, as here, the moving party bears the burden of proof,

she “cannot prevail unless the evidence [she] provides on that

issue is conclusive.” E.E.O.C. v. Union Independiente de la

Autoridad de Acueductos y Alcantarillados de P.R., 279 F.3d 49,

55 (1st Cir. 2002). Evidence is conclusive if “no reasonable

trier of fact could find other than for the moving party.”

Torres Vargas v. Santiago Cummings, 149 F.3d 29, 35-36 (1st Cir.

1998). The court construes the record in the light most

favorable to the nonmoving party. Benson v. Wal-Mart Stores

East, L.P., 14 F.4th 13, 17 (1st Cir. 2021).

Background

Neither Mogaji nor the defendants complied with the

requirements of Local Rule 56.1. Both Mogaji and the defendants

provided documents and an affidavit to support their positions.

The affidavit Mogaji filed, however, attempts to incorporate all

of her summary judgment filings by reference and, therefore, is

not competent evidence for purposes of Federal Rule of Civil

Procedure 56(c)(4).

On July 27, 2015, Mogaji entered into a commercial lease

with TRC Trust for Units 2 and 3 at 23 Burnham Road, Hudson, New

Hampshire.1 The lease, as provided by Mogaji, states, among

1 In support of her motion, Mogaji provided a copy of only the first page of the lease. The defendants, however, do not dispute the validity of the lease as presented by Mogaji.

2 other things, that the parking spaces in front of the rented

units are for those units; that the landlord granted consent for

the tenant to “build-to-suit for multiple businesses;” that the

landlord would provide utilities; the lease term, payment and

trigger for eviction, and the security deposit amount. Doc. 58-

1. Mogaji also filed a copy of a check that is apparently the

security deposit.

Mogaji applied to the Town of Hudson for permits to allow

signs and renovations for the businesses in the rented units.

Mogaji states that she obtained an occupancy certificate but

needed a signed authorization from the landlord, and the copy of

the authorization is for a site plan review. Mogaji states that

the defendants refused to sign the needed authorization.

The defendants through counsel notified Mogaji of a demand

for rent and an eviction notice that was being served on the

businesses in Units 2 and 3.2 Mogaji states that she paid the

late rent, but the defendants continued to refuse to sign the

needed authorization. Mogaji states that she also informed the

defendants that she was being harassed by other tenants and had

parking issues with other tenants.

The defendant brought an eviction proceeding against Mogaji

in June of 2018. Mogaji answered the eviction complaint and

2 Although the copy of the letter provided is dated May 11, 2017, the date apparently should have been May 11, 2018.

3 contested the eviction proceeding. On August 1, 2018, the New

Hampshire Circuit Court, 9th Circuit, District Division, Nashua,

New Hampshire, entered judgment in favor of the landlord, the

defendants in this case. The court also found against Mogaji on

her claim of vandalism. Mogaji appealed that decision, which

was dismissed by the New Hampshire Supreme Court on

recommendation of the district court because Mogaji failed to

pay rent as it became due. The district court then issued a

writ of possession for the units on December 26, 2018.

Possession of the units was delivered to the defendants on

January 9, 2019, when the locks were changed. Mogaji planned to

move out of the property on January 15, 2019. The defendants

arranged to have a police officer present during the move to

keep peace.

The move did not go smoothly. Mogaji contends that the

police officer made threats and interfered with the move. She

also contends that others were present who laughed when the

officer made fun of Mogaji’s name. Mogaji states that the

officer demanded payment from her and she refused. When he was

not paid, the officer locked the units, which stopped the move.

Mogaji went to court to get a restraining order. Mogaji

called Rosa Chan to tell her that she had obtained an order that

gave her more time to move, but Chan did not unlock the units.

After the delay, the movers demanded payment, and when they were

4 not paid, the movers called the police. With the officers

present, Mogaji agreed to pay the movers what money she had

available with the balance to be paid later and required them to

write a report of what had happened. The movers wrote the

reports; Mogaji paid them, and the officers ordered everyone to

leave.

The restraining order was later revoked, and the case was

dismissed. The New Hampshire Supreme Court affirmed the lower

court’s ruling that because the units were commercial space, the

landlord-tenant statutes for residential property did not apply.

Mogaji filed the complaint in this court that initiated

this proceeding on December 24, 2019. In her amended complaint,

she alleges that the defendants breached the parties’ agreement,

interfered with her businesses, were negligent in their actions

that interfered with her move, and seized and damaged her

property. She also alleges violation of the Massachusetts

Consumer Protection Act.

Discussion

In her amended motion, Mogaji states that she seeks summary

judgment on “counts of violation of the District Court Order on

the Writ of Possession, Temporary Restraining Order; Breach of

Contract, Trespass to Chattel, Negligence, and Conversion in

violation of 42 U.S.C. § 1981.” As has been previously ordered,

5 however, Mogaji cannot bring claims challenging state court

orders or seeking to enforce state court orders. Doc. no. 25,

at 5-6; doc. no. 28. Mogaji also seeks damages on behalf of

entities that are not parties in this case, and Mogaji cannot

represent their interests. Doc. no. 25; doc. no. 28; doc. no.

37. Further, Mogaji did not allege a claim under § 1981 in her

amended complaint, and for that reason, that claim is not

considered. Mogaji is limited to the claims alleged in her

amended complaint, document no. 31, and with the limitations

imposed in prior orders.

A. Breach of Contract

A lease is a contract. Gibson v. LaClair, 135 N.H. 129,

133 (1991). A breach occurs when a party to the contract fails,

without legal excuse, to perform any promise that is the whole

or a part of the contract. Teatotaller, LLC v. Facebook, Inc.,

173 N.H. 442, 447 (2020). “Only a breach that is sufficiently

material and important to justify ending the whole transaction

is a total breach that discharges the injured party’s duties.”

Fitz v. Coutinho, 136 N.H. 721, 725 (1993).

Mogaji contends that the defendants breached the lease by

failing to sign the authorization form that she appended to her

motion. Mogaji does not identify what provision in the lease

required the defendants to sign the authorization that she

6 appended. Although the landlord granted consent to Mogaji in

the lease to “build-to-suit for multiple businesses,” she has

not shown that failure to sign the authorization was a violation

of that provision or any other provision of the lease.

Therefore, Mogaji provides no evidence that the defendants

breached the lease.

B. Trespass to Chattels or Conversion

The tort of a trespass to chattels occurs when

[o]ne who without consensual or other privilege to do so, uses or otherwise intentionally intermeddles with a chattel which is in possession of another is liable for a trespass to such person if, (a) the chattel is impaired as to its condition, quality or value, or (b) the possessor is deprived of the use of the chattel for a substantial time, or (c) bodily harm is thereby caused to the possessor or harm is caused to some person or thing in which the possessor has a legally protected interest.

Foley v. Town of Lee, 871 F. Supp. 2d 39, 54 (D.N.H. 2012)

(quoting Glidden v. Szybiak, 95 N.H. 318, 320(1949) quoting

Restatement of Torts § 218 (1939)). It appears that Mogaji

contends that the defendants took her property from the units

that was left after she was evicted and moved. She does not

develop this theory in support of her motion for summary

judgment and, therefore, has not shown that she is entitled to

judgment in her favor.

A claim of conversion requires proof that the defendant

“exercise[d] dominion or control over goods which [was]

7 inconsistent with the rights of the person entitled to immediate

possession.” Rinden v. Hicks, 119 N.H. 811, 813 (1979).

Conversion does not occur if a person abandons her property or

appears to have abandoned the property before the defendant took

possession. Id. at 813-14. Again, this claim appears to

pertain to property left behind in the units after Mogaji was

evicted and moved. Mogaji has not shown that the defendants

took any of her property that was not previously abandoned.3

Conclusion

For the foregoing reasons, the plaintiff’s motion for

summary judgment (document no. 57) is denied.

SO ORDERED.

______________________________ Joseph A DiClerico, Jr. United States District Judge

February 17, 2022

cc: Martha Mogaji, pro se. Counsel of record.

3She provides no evidence that the defendants took any of her property. Assuming that her claim pertains to property she left in the units, the circumstances suggest abandonment, which would preclude a claim for conversion.