Phillip Wight v. D’Amante Pellerin Associates et al.

2019 DNH 118

• Court: District Court, D. New Hampshire
• Decided: July 31, 2019
• Docket: 18-cv-812-PB
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Phillip Wight Case No. 18-cv-812-PB v. Opinion No. 2019 DNH 118

D’Amante Pellerin Associates et al.

ORDER

Pro se plaintiff Phillip Wight filed this matter in

Merrimack County Superior Court, asserting claims for common-law

negligence and violations of the Americans with Disabilities Act

(“ADA”) and Section 504 of the Rehabilitation Act. He sued ten

defendants, including his former business partner, his partner’s

lawyers, and various state and federal entities. The defendants

removed the action to this court based on federal question

jurisdiction. I dismissed the original complaint against the

Commissioner of Social Security Administration for failure to

exhaust administrative remedies and against the remaining

defendants for failure to state a claim. See Wight v. D’Amante

Pellerin Assocs., 2018 DNH 230, 2018 WL 6188363, at *3-7 (D.N.H.

Nov. 27, 2018). I allowed Wight to amend his complaint.

Wight has filed his amended complaint along with more than

70 pages of documents. See Doc. No. 41, 42, 42-1. In addition

to the original claims, the amended complaint appears to assert

claims for defamation against all defendants, breach of fiduciary duty against Wight’s former business partner Keith

Richard, and civil conspiracy against Richard and Richard’s

lawyers at D’Amante Couser Pellerin & Associates (“D’Amante”).

Seven of nine defendants named in the amended complaint have

moved for dismissal of all claims against them. 1

The amended complaint fails to cure the defects of the

original complaint concerning the claims for negligence and

discrimination based on disability. Therefore, I dismiss those

claims against all defendants for the reasons set forth in my

prior dismissal order. See Wight, 2018 WL 6188363, at *3-7.

The amended complaint also fails to state a defamation

claim against any defendant. Wight has failed to allege “facts

that would show that [any] defendant failed to exercise

reasonable care in publishing a false and defamatory statement

of fact about the plaintiff to a third party.” Sanguedolce v.

Wolfe, 164 N.H. 644, 645–46 (2013) (internal quotation marks

omitted). Specifically, the amended complaint does not identify

an allegedly defamatory statement, who made it, when it was

made, or to whom it was published. See Cluff-Landry v. Roman

1 The remaining defendants, U.S. Senators Jeanne Shaheen and Maggie Hassan, were belatedly served and have until August 29, 2019 to respond to the amended complaint. Because the claims against the Senators fail on the same grounds as the claims against the other defendants, I dismiss the claims sua sponte. 2 Catholic Bishop of Manchester, 169 N.H. 670, 680 (2017).

Accordingly, the defamation claims are dismissed.

The remaining claims are for breach of fiduciary duty

against Richard and civil conspiracy against Richard and the

D’Amante law firm. Although the amended complaint contains some

factual allegations supporting those claims, 2 I need not evaluate

their sufficiency. Having dismissed all federal claims at this

early stage of the litigation, I decline to exercise

supplemental jurisdiction over the remaining state-law claims.

See 28 U.S.C. § 1367(c)(3) (“The district courts may decline to

exercise supplemental jurisdiction . . . if . . . the district

court has dismissed all claims over which it has original

jurisdiction . . . .”). The remaining claims are remanded to

state court.

In summary, I dismiss all claims except for the two state-

law claims against Richard and the D’Amante law firm. The clerk

is directed to remand the surviving claims to Merrimack County

Superior Court, enter judgment for the defendants as to all

other claims, and close the case.

2 Specifically, Wight alleges that Richard siphoned funds from their joint business entity, Big Green Recycling LLC, into an account associated with another entity bearing the same name that was controlled by individuals associated with Richard. Richard allegedly conspired with D’Amante to set up that alternative entity for this unlawful purpose. 3 SO ORDERED.

/s/ Paul Barbadoro Paul Barbadoro United States District Judge

July 31, 2019

cc: Phillip Wight, pro se Andru H. Volinsky, Esq. Hilary Holmes Rheaume, Esq. T. David Plourde, Esq. Anthony Galdieri, Esq. Karyl Roberts Martin, Esq. Jeanine M. Girgenti, Esq. Elizabeth M. Lacombe, Esq. Bruce Joseph Marshall, Esq. Kathryn M. Bradley, Esq. Adam R. Mordecai, Esq.