UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Sanjeev Lath
v. Civil No. 16-cv-534-LM Opinion No. 2018 DNH 147 BMS CAT and Amica Mutual Insurance Co.
O R D E R
In a procedural order dated June 28, 2018, this court
lifted a stay it had entered on May 1. Before the court is
plaintiff Sanjeev Lath’s motion to reconsider the order lifting
the stay (doc. no. 332). Defendant BMS CAT objects. In
response, Lath has filed a motion for leave to file a reply to
BMS CAT’s objection. That motion, document no. 335, is granted,
and the court has considered Lath’s reply in ruling on his
motion. For the reasons that follow, Lath’s motion to
reconsider is granted as to his claims against the City of
Manchester (“City”) and Gerard Dufresne, but is denied as to his
claims against BMS CAT and Amica Mutual Insurance Company
(“Amica”).
BACKGROUND
On April 17, 2018, the court issued an order that: (1)
denied Lath’s motion for leave to amend his First Amended
Complaint (“FAC”) to add a claim for municipal liability against
the City under the principles enunciated in Monell v. Department of Social Services, 436 U.S. 658 (1978); and (2) dismissed the
City and Dufresne as defendants. The court dismissed those
defendants on grounds that Lath’s proposed Monell claim, Cause 1
of his FAC, was the only federal claim he was asserting, which
deprived the court of supplemental jurisdiction over his other
claims against the City (Causes 2 and 3), and his claim against
Dufresne (Cause 17). See doc. no. 300. On the same day the
court issued its order denying Lath’s motion for leave to amend,
Lath filed a motion for reconsideration. Five days later –
before any defendant had filed an objection to his motion for
reconsideration – Lath filed a notice of appeal with respect to
document no. 300 plus seven other interlocutory orders in this
case. See doc. no. 308 at 1-2. The eight orders that Lath
appealed pertained exclusively to his claims against the City
and Dufresne; he appealed no order that involved his claims
against either BMS CAT or Amica, the two defendants that
remained in the case after the court denied Lath’s motion for
leave to amend his complaint.
On April 30, Lath filed a motion to stay the dismissal of
Dufresne, as ordered in document no. 300, and on May 1, the
court issued a procedural order staying the entire matter,
pending the resolution of Lath’s appeal. In a judgment dated
June 14, 2018, the Court of Appeals for the First Circuit
2 granted a motion to dismiss Lath’s appeal, on grounds that
“[t]he orders appellant included in his notice of appeal [were]
not sufficiently final to allow for appellate review at this
time.” Doc. no. 329 at 1. On the same day the court of appeals
entered its judgment, Lath filed a Notice of Appeal to the
United States Supreme Court, document no. 328. On June 29, this
court issued a procedural order lifting the stay it had entered
on May 1. One day later, Lath filed a motion with the court of
appeals, asking it to stay its judgment of June 14.
DISCUSSION
Lath moves the court to reconsider its procedural order
lifting the stay. Under the local rules of this court, “[a]
motion to reconsider an interlocutory order of the court . . .
shall demonstrate that the order was based on a manifest error
of fact or law.” LR 7.2(d). Lath appears to argue that the
court committed an error of law by lifting the stay of this
matter before the court of appeals had issued its mandate. To
be sure, the Advisory Committee Notes to Rule 41(c) of the
Federal Rules of Appellate Procedure provide that “[a] court of
appeals’ judgment or order is not final until issuance of the
mandate; at that time the parties’ obligations become fixed.”
But, at the same time, “[t]he time to file a petition for a writ
of certiorari [in the Supreme Court] runs from the date of entry
3 of the judgment or order sought to be reviewed, and not from the
issuance date of the mandate.” Sup. Ct. R. 13.1. Here, upon
entry of the judgment of the court of appeals, Lath immediately
filed his notice of appeal, and while he could have moved at
that point to “stay the mandate pending the filing of a petition
for a writ of certiorari in the Supreme Court,” Fed. R. App. P.
41(d)(2)(A), he did not do so. Rather, he moved the court of
appeals to stay its judgment only after this court had lifted
its stay, and his motion does not appear to “show that the
certiorari petition would present a substantial question and
that there is good cause for a stay,” id. Given the
circumstances of this case and the authority the court cited in
its order lifting the stay, see doc. no. 331 at 2, it does not
appear that Lath has carried his burden of showing that the
court has committed a manifest error of fact or law. Even so,
in light of this case’s complicated procedural posture, in
deference to Lath’s pro se status, and out of an abundance of
caution, the court will reinstate the stay in this case until
the court of appeals issues a mandate, but only with respect to
Lath’s claims against the City and Dufresne.
That means that the court will defer ruling on Lath’s
motion to reconsider its order dismissing the City and Dufresne,
consideration of which was cut off by Lath’s appeal and the
4 resulting stay. However, in further deference to Lath’s pro se
status, see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam) (directing district courts to construe pro se pleadings
liberally), when the stay is lifted and the court does turn to
Lath’s motion to reconsider, it will construe that motion as
asserting both: (1) the arguments stated therein; and (2) the
argument advanced in document no. 332 to the effect that the
court erred in its determination that out of Lath’s three claims
against the City, only Cause 1 asserted a federal claim. If the
court reinstates Cause 1, or if it determines that Cause 2
states a cognizable federal claim, then the court will reinstate
Dufresne as a defendant by exercising supplemental jurisdiction
over Lath’s claims against him. But, because the court is
granting Lath’s motion to reconsider as to his claims against
the City and Dufresne, the question of whether the City and
Dufresne will be reinstated as defendants must wait for another
day.
However, while there is a reasonable basis for staying the
litigation of Lath’s claims against the City and Dufresne until
the court of appeals issues a mandate, there is no good reason
for staying the litigation of Lath’s claims against BMS CAT and
Amica. First of all, none of the eight orders that Lath
appealed involve any of his claims against either BMS CAT or
5 Amica. Moreover, there is no connection between the conduct
underlying the claims against the City and Dufresne, on the one
hand, and the conduct underlying the claims against BMS CAT and
Amica, on the other. In document no. 319, which is Lath’s
objection to a motion filed by BMS CAT, he made several attempts
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Sanjeev Lath
v. Civil No. 16-cv-534-LM Opinion No. 2018 DNH 147 BMS CAT and Amica Mutual Insurance Co.
O R D E R
In a procedural order dated June 28, 2018, this court
lifted a stay it had entered on May 1. Before the court is
plaintiff Sanjeev Lath’s motion to reconsider the order lifting
the stay (doc. no. 332). Defendant BMS CAT objects. In
response, Lath has filed a motion for leave to file a reply to
BMS CAT’s objection. That motion, document no. 335, is granted,
and the court has considered Lath’s reply in ruling on his
motion. For the reasons that follow, Lath’s motion to
reconsider is granted as to his claims against the City of
Manchester (“City”) and Gerard Dufresne, but is denied as to his
claims against BMS CAT and Amica Mutual Insurance Company
(“Amica”).
BACKGROUND
On April 17, 2018, the court issued an order that: (1)
denied Lath’s motion for leave to amend his First Amended
Complaint (“FAC”) to add a claim for municipal liability against
the City under the principles enunciated in Monell v. Department of Social Services, 436 U.S. 658 (1978); and (2) dismissed the
City and Dufresne as defendants. The court dismissed those
defendants on grounds that Lath’s proposed Monell claim, Cause 1
of his FAC, was the only federal claim he was asserting, which
deprived the court of supplemental jurisdiction over his other
claims against the City (Causes 2 and 3), and his claim against
Dufresne (Cause 17). See doc. no. 300. On the same day the
court issued its order denying Lath’s motion for leave to amend,
Lath filed a motion for reconsideration. Five days later –
before any defendant had filed an objection to his motion for
reconsideration – Lath filed a notice of appeal with respect to
document no. 300 plus seven other interlocutory orders in this
case. See doc. no. 308 at 1-2. The eight orders that Lath
appealed pertained exclusively to his claims against the City
and Dufresne; he appealed no order that involved his claims
against either BMS CAT or Amica, the two defendants that
remained in the case after the court denied Lath’s motion for
leave to amend his complaint.
On April 30, Lath filed a motion to stay the dismissal of
Dufresne, as ordered in document no. 300, and on May 1, the
court issued a procedural order staying the entire matter,
pending the resolution of Lath’s appeal. In a judgment dated
June 14, 2018, the Court of Appeals for the First Circuit
2 granted a motion to dismiss Lath’s appeal, on grounds that
“[t]he orders appellant included in his notice of appeal [were]
not sufficiently final to allow for appellate review at this
time.” Doc. no. 329 at 1. On the same day the court of appeals
entered its judgment, Lath filed a Notice of Appeal to the
United States Supreme Court, document no. 328. On June 29, this
court issued a procedural order lifting the stay it had entered
on May 1. One day later, Lath filed a motion with the court of
appeals, asking it to stay its judgment of June 14.
DISCUSSION
Lath moves the court to reconsider its procedural order
lifting the stay. Under the local rules of this court, “[a]
motion to reconsider an interlocutory order of the court . . .
shall demonstrate that the order was based on a manifest error
of fact or law.” LR 7.2(d). Lath appears to argue that the
court committed an error of law by lifting the stay of this
matter before the court of appeals had issued its mandate. To
be sure, the Advisory Committee Notes to Rule 41(c) of the
Federal Rules of Appellate Procedure provide that “[a] court of
appeals’ judgment or order is not final until issuance of the
mandate; at that time the parties’ obligations become fixed.”
But, at the same time, “[t]he time to file a petition for a writ
of certiorari [in the Supreme Court] runs from the date of entry
3 of the judgment or order sought to be reviewed, and not from the
issuance date of the mandate.” Sup. Ct. R. 13.1. Here, upon
entry of the judgment of the court of appeals, Lath immediately
filed his notice of appeal, and while he could have moved at
that point to “stay the mandate pending the filing of a petition
for a writ of certiorari in the Supreme Court,” Fed. R. App. P.
41(d)(2)(A), he did not do so. Rather, he moved the court of
appeals to stay its judgment only after this court had lifted
its stay, and his motion does not appear to “show that the
certiorari petition would present a substantial question and
that there is good cause for a stay,” id. Given the
circumstances of this case and the authority the court cited in
its order lifting the stay, see doc. no. 331 at 2, it does not
appear that Lath has carried his burden of showing that the
court has committed a manifest error of fact or law. Even so,
in light of this case’s complicated procedural posture, in
deference to Lath’s pro se status, and out of an abundance of
caution, the court will reinstate the stay in this case until
the court of appeals issues a mandate, but only with respect to
Lath’s claims against the City and Dufresne.
That means that the court will defer ruling on Lath’s
motion to reconsider its order dismissing the City and Dufresne,
consideration of which was cut off by Lath’s appeal and the
4 resulting stay. However, in further deference to Lath’s pro se
status, see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam) (directing district courts to construe pro se pleadings
liberally), when the stay is lifted and the court does turn to
Lath’s motion to reconsider, it will construe that motion as
asserting both: (1) the arguments stated therein; and (2) the
argument advanced in document no. 332 to the effect that the
court erred in its determination that out of Lath’s three claims
against the City, only Cause 1 asserted a federal claim. If the
court reinstates Cause 1, or if it determines that Cause 2
states a cognizable federal claim, then the court will reinstate
Dufresne as a defendant by exercising supplemental jurisdiction
over Lath’s claims against him. But, because the court is
granting Lath’s motion to reconsider as to his claims against
the City and Dufresne, the question of whether the City and
Dufresne will be reinstated as defendants must wait for another
day.
However, while there is a reasonable basis for staying the
litigation of Lath’s claims against the City and Dufresne until
the court of appeals issues a mandate, there is no good reason
for staying the litigation of Lath’s claims against BMS CAT and
Amica. First of all, none of the eight orders that Lath
appealed involve any of his claims against either BMS CAT or
5 Amica. Moreover, there is no connection between the conduct
underlying the claims against the City and Dufresne, on the one
hand, and the conduct underlying the claims against BMS CAT and
Amica, on the other. In document no. 319, which is Lath’s
objection to a motion filed by BMS CAT, he made several attempts
to explain why the litigation of his claims against BMS CAT
should be stayed pending the outcome of his appeal, but none of
those arguments is persuasive. BMS CAT and Amica, in turn, have
an interest in an expeditious resolution of Lath’s claims
against them. On balance, there is no reason why the litigation
of Lath’s claims against BMS CAT and Amica should be held up
until the conclusion of Lath’s appeal of eight orders that have
nothing to do with BMS CAT and Amica. See, e.g., Griggs v.
Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per
curiam) (an interlocutory appeal “confers jurisdiction on the
court of appeals and divests the district court of control over
those aspects of the case involved in the appeal.” (emphasis
added)).
For those reasons, Lath’s motion for reconsideration is
granted as to claims against the City and Dufresne, but denied
as to the claims against BMS Cat and Amica. In light of the
court’s ruling, all that remains are several procedural details
6 pertaining to the litigation of Lath’s claims against BMS CAT
and Amica.
On the day that Lath filed his notice of appeal, the
deadlines had passed for his compliance with the discovery
orders described in document nos. 282, 283, and 292. In
addition, he had 15 days left to respond to the court’s April 17
show cause order, document no. 302. Thus, Lath shall have 10
days from the date of this order to comply with the discovery
orders in document nos. 282, 283, and 292, and he shall have 15
days from the date of this order to comply with the show cause
order in document no. 302.
CONCLUSION
For the reasons described above: (1) Lath’s motion for
leave (doc. no. 335) is granted; and (2) his motion for
reconsideration (doc. no. 332) is granted as to his claims
against the City and Dufresne, but is denied as to his claims
against BMS CAT and Amica.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
July 17, 2018
cc: Counsel and Pro Se Party of Record