UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Sanjeev Lath
v. Civil No. 16-cv-463-LM Opinion No. 2018 DNH 013 Oak Brook Condominium Owners’ Association, Gerard Dufresne, and Betty Mullen
AMENDED ORDER1
In document no. 152, the court gave Sanjeev Lath permission
to file a motion for leave to amend his complaint to add two new
claims against Gerard Dufresne. In document no. 165, the court
gave Lath permission to file a motion for leave to amend his
complaint to add: (1) claims for constructive eviction and
conspiracy to evict against Dufresne and Betty Mullen; and (2) a
claim for deprivation of food and medical necessities against
the Manchester Police Department. Before the court are: (1)
Lath’s Motion for Leave to Amend, document no. 198; and (2) a
pleading with no caption, document no. 212, in which Lath also
seeks leave to amend his complaint. For the reasons that
follow, Lath’s motions are both denied.
1 There is only one amendment to the prior order. Specifically, on the last page of this Amended Order, the court has added Count 15 to those that “might well be subject to the litigation privilege.” I. Document No. 198
In document no. 198, Lath states that he is seeking to add
two claims against Dufresne and a claim he labels Claim 17
against Mullen. However, the body of Lath’s pleading says
nothing about any claim against Mullen, so the court will
consider only the two claims that Lath designates as Claim 11(A)
and 12(A)—claims that the court designated as Count 11(b) and
Count 12(b) in document no. 152.
A. Claim 11(A)/Count 11(b)
In document no. 152, the court permitted Lath to move for
leave to amend his complaint “to include: [a] Claim for Invasion
of privacy by opening/mishandling Lath’s mail,” Pl.’s Req. (doc.
no. 140) at 1.
Under the circumstances of this case, Lath “may amend [his
complaint] only with the opposing party’s written consent or the
court’s leave.” Fed. R. Civ. P. 15(a)(2). Leave to amend
should be freely given “when justice so requires.” Id. Even
so, “a district court may deny leave to amend when the request
is characterized by undue delay, bad faith, futility, or the
absence of due diligence on the movant’s part.” Mulder v.
Kohl’s Dep’t Stores, Inc., 865 F.3d 17, 20 (1st Cir. 2017)
(quoting Nikitine v. Wilmington Trust Co., 715 F.3d 388, 390
(1st Cir. 2013); citing Palmer v. Champion Mortg., 465 F.3d 24,
2 30 (1st Cir. 2006); Foman v. Davis, 371 U.S. 178, 182 (1962))
(internal quotation marks and brackets omitted). For the
purposes of Rule 15(a)(2), “‘[f]utility’ means that the
complaint, as amended, would fail to state a claim upon which
relief could be granted.” Glassman v. Computervision Corp., 90
F.3d 617, 623 (1st Cir. 1996) (citing 3 Moore’s Federal Practice
¶ 15.08[4], at 15-80 (2d ed. 1993); Vargas v. McNamara, 608 F.2d
15, 17 (1st Cir. 1979)).
A complaint fails to state a claim upon which relief can be
granted when the allegations in it, and all reasonable
inferences that support the plaintiff’s claim, are taken as true
but still do not present “sufficient factual material to state a
facially plausible claim.” Vargas-Colón v. Fundación Damas,
Inc., 864 F.3d 14, 23 (1st Cir. 2017) (citing O’Shea ex rel.
O’Shea v. UPS Ret. Plan, 837 F.3d 67, 77 (1st Cir. 2016)).
“[I]f the proposed amendment would be futile because, as thus
amended, the complaint still fails to state a claim, the
district court acts within its discretion in denying the motion
to amend.” Abraham v. Woods Hole Ocean. Inst., 553 F.3d 114,
117 (1st Cir. 2009) (quoting Bos. & Me. Corp. v. Hampton, 987
F.2d 855, 868 (1st Cir. 1993)).
Lath is not entitled to amend his complaint to add Claim
11(A)/Count 11(b) because the amendment would be futile due to
3 Lath’s failure to state a claim upon which relief can be
granted. The court begins by outlining the relevant substantive
law, and then describes Lath’s proposed invasion of privacy
claims.
The New Hampshire Supreme Court has not written at length
on the tort of invasion of privacy, but it has explained that
[t]he four kinds of invasion comprising the law of privacy include: (1) intrusion upon the plaintiff’s physical and mental solitude or seclusion; (2) public disclosure of private facts; (3) publicity which places the plaintiff in a false light in the public eye; (4) appropriation, for the defendant’s benefit or advantage, of the plaintiff’s name or likeness.
Hamberger v. Eastman, 106 N.H. 107, 110 (1964). To state a
claim for public disclosure of private facts, which seems to be
the theory underlying Lath’s proposed invasion of privacy claim,
a plaintiff must adequately allege that the defendant gave
“publicity to a matter concerning the private life” of the
plaintiff and that “the matter publicized is of a kind that (a)
would be highly offensive to a reasonable person, and (b) is not
of legitimate concern to the public.” Restatement (Second) of
Torts, § 652D (1977).2
2 As the court reads document no. 152, it seems fairly clear that Lath requested, and the court granted him, permission to move to amend his complaint to add a claim for intrusion upon seclusion, see Restatement (Second) of Torts § 652B cmt. b (defining intrusion upon seclusion to include “opening [another person’s private and personal mail”), rather than a claim for public disclosure of private facts. Even so, the court will
4 The first purported invasion on which Lath bases his claim
is that Dufresne submitted to this court, as an exhibit to a
pleading, “various documents and phone records of Lath.” Pl.’s
Mot. for Leave to Amend (doc. no. 198) ¶ 1. Lath does not
further identify or describe the private facts he charges
Dufresne with disclosing nor does he identify the submission in
which those facts were allegedly disclosed.
The second purported invasion on which Lath bases his claim
pleading, the following exchange of text messages between two
unidentified people:
Is your dad ok? He is not answering his phone . . . he always answers . . . just making sure he is ok.
Yah he’s probably napping he went out with my mom this afternoon.
Ah ok . . . was just a lil worried.
Yah thanks for checking in.
Def.’s Resp., Ex. 15 (doc. no. 69-1), at 20 of 22.
The third purported invasion on which Lath bases his claim
pleading, three emails that Lath sent to a person named “Jerry.”
Def.’s Resp., Ex. 14-N (doc. no. 68-28), at 2 of 2. Context
consider Lath’s motion for leave to amend on its merits rather than denying it for exceeding the scope of the court’s order.
5 indicates that the “Jerry” to whom Lath sent the emails at issue
is Gerard Dufresne. Here is the full content of those three
emails:
I don’t want to submit this [a letter requesting information from the Oak Brook Condominium Owners’ Association that had been signed by Lath, Dufresne, and Barbara Belware]. Not sure if the paper was changed after I read it.
I was made to sign the paper under notary today. I never got a copy either. I am not sure what I signed therefore I am withdrawing it.
I was [made] to sign this statement that I never read under threat. Two of my neighbors who call themselves [J]erry and Barbara threatened to hurt me – she came into my unit and stole a few things.
Id.
The fourth purported invasion on which Lath bases his claim
pleading, a letter Lath sent to Dufresne and Belware in which
Lath characterized the emails quoted above as “incorrect and
impulsive,” Def.’s Resp., Ex. 14-P (doc. no. 68-30), at 2 of 2,
and apologized for sending them.
The fifth purported invasion on which Lath bases his claim
pleading, material described as “associated email(s), alleging
Lath ‘meds’ or medications.” Pl.’s Mot. to Amend (doc. no. 198)
¶ 2. Lath does not further identify or describe the private
6 facts he charges Dufresne with disclosing nor does he identify
the submission in which those facts were allegedly disclosed.
The sixth purported invasion on which Lath bases his claim
pleading, “various privileged emails between Lath and his
Attorney Brandon Ross.” Pl.’s Mot. to Amend (doc. no. 198) ¶ 3.
Lath does not further identify or describe the private facts he
charges Dufresne with disclosing nor does he identify the
submission in which those facts were allegedly disclosed.
The first problem with Lath’s invasion of privacy claim is
that all of the disclosures on which it is based are absolutely
privileged. In a decision affirming the trial court’s dismissal
of claims for negligent misrepresentation and fraud, the New
Hampshire Supreme Court explained:
It is well-settled in New Hampshire that “certain communications are absolutely privileged and therefore immune from civil suit.” Pickering v. Frink, 123 N.H. 326, 328, 461 A.2d 117, 119 (1983); see McGranahan v. Dahar, 119 N.H. 758, 762-63, 408 A.2d 121, 124 (1979). Statements made in the course of judicial proceedings constitute one class of communications that is privileged from liability in civil actions if the statements are pertinent or relevant to the proceedings. See Pickering, 123 N.H. at 329, 461 A.2d at 119; McGranahan, 119 N.H. at 763, 408 A.2d at 124; cf. Supry v. Bolduc, 112 N.H. 274, 276, 293 A.2d 767, 769 (1972) (determining statements made during a public hearing were not absolutely privileged because the hearing did not have all the hallmarks of a judicial proceeding). “A statement is presumed relevant unless the person allegedly [injured] demonstrates that it was so palpably irrelevant to the
7 subject matter of the controversy that no reasonable man can doubt its irrelevancy or impropriety.” McGranahan, 119 N.H. at 766, 408 A.2d at 126 (quotation omitted).
Provencher v. Buzzell-Plourde Assocs., 142 N.H. 848, 853 (1998).
While Provencher involved claims for negligent misrepresentation
and fraud, the litigation privilege bars invasion of privacy
claims arising from disclosures of facts made in civil
pleadings. See 8 R. McNamara, New Hampshire Practice: Personal
Injury—Tort and Insurance Practice, § 3.19 (4th ed. 2015)
(citing Restatement (Second) of Torts § 652F).
Here, it would be futile to amend Lath’s complaint to add
Claim 11(A)/Count 11(b) because the invasion of privacy claims
asserted therein are based upon disclosures that are subject to
the litigation privilege. That is the case because those
disclosures were made in conjunction with one or more pleadings
submitted to this court.
Moreover, even if Dufresne were not entitled to the benefit
of the litigation privilege, it would appear that few, if any of
his six claims adequately alleges the private facts element of
an invasion of privacy claim. Plainly, the text message
conversation, the three emails from Lath, and the letter from
Lath to Dufresne and Belware that are quoted above disclosed no
private facts about Lath. As for the remaining disclosures,
Lath has neither quoted nor cited them, so the court cannot
8 independently assess their content, and Lath does not appear to
have made factual allegations about the content of those
disclosures that, if proven, would establish that those
disclosures involved private facts. Thus, it is far from clear
that Lath has adequately alleged an actionable claim for
invasion of privacy in the form of public disclosure of private
facts.
To summarize, because the disclosures underlying Claim
11(A)/Count 11(b) are absolutely privileged, they cannot support
a claim for invasion of privacy. Accordingly, it would be
futile to add Claim 11(A)/Count 11(b) to this case and for that
reason, as to that claim, Lath’s motion for leave to amend is
denied.
B. Claim 12(A)/Count 12(b)
leave to amend his complaint “to include . . . [a] Claim for
Defamation/Libel and slander,” Pl.’s Req. (doc. no. 140) at 1
(emphasis in the original), arising from annotations Dufresne
made on documents he submitted to the court in support of his
Motion Requesting Court Appointed Defense Counsel, document no.
139.
12(A)/Count 12(b) because the amendment would be futile due to
9 Lath’s failure to state a claim upon which relief can be
granted. The court begins by outlining the relevant substantive
law, and then describes Lath’s proposed defamation claims.
Under New Hampshire law, defamation consists of a
“fail[ure] to exercise reasonable care in publishing, without a
valid privilege, a false and defamatory statement of fact about
the plaintiff[s] to a third party.” Gould v. No. Human Servs.,
No. 2015-0696, 2016 WL 5831602, at *2 (N.H. Aug. 22, 2016)
(quoting Indep. Mech. Contractors v. Gordon T. Burke & Sons, 138
N.H. 110, 118 (1993)) (brackets in Gould). Moreover, to state a
claim for defamation, the plaintiff must allege, with
specificity, the substance of the statements at issue, the
person making the statements, when they were made, and to whom
they were made. See Cluff-Landry v. Roman Catholic Bishop of
Manchester, 169 N.H. 670, 680 (2017). In document no. 198, Lath
identifies three statements with the specificity required by
Cluff-Landry.
The first statement on which Lath bases his proposed
defamation claim is an annotation that Dufresne made on a March
13, 2017, e-mail from Lath to Dufresne that Dufresne submitted
to this court in support of his motion for the appointment of
counsel. In that e-mail, Lath said: “Your amalgamated pleading
did not get docketed . . . oops!!” Def.’s Mot. for Counsel, Ex.
10 2 (doc. no. 139-2), at 5 of 5. Dufresne added this annotation:
“Lath, always seeing ways to incite, insult, and harass, with
irrational paper bully statements.” Id. (emphasis in the
original).
The second and third statements on which Lath bases his
proposed defamation claim are two annotations that Dufresne made
on a November 3, 2016, e-mail from Lath and Barbara Belware to
Dufresne that Dufresne submitted to this court in support of his
motion for the appointment of counsel. In that e-mail, Lath and
Belware expressed their unhappiness with Dufresne for allegedly
misappropriating their names in the pretrial statement he had
filed in this case. The first annotation to which Lath objects
says: “Lath had already devised a plan, on how he would breach,
the Agreement, exclude Dufresne, and Belware, and get away with
it.” Def.’s Mot. for Counsel, Ex. 5 (doc. no. 139-5), at 2 of 2
(emphasis in the original). The second annotation says:
As always, Lath without any Co-Plaintiffs can claim . . . It is Lath who is being discriminated against, . . it is Lath who is being retaliated against, . . . . it is Lath who is being harassed, . . . . . because Lath comes from different ancestry . . . because Lath comes from another country . . . . because Lath claims to believe another religion, . . . because Lath has darker skin, . . . because Lath claims to be gay/bisexual. All as Lath claimed in his Human Rights Case.
Id. (emphasis in the original).
11 The first problem with Lath’s defamation claim is that all
of the statements on which it is based are absolutely
privileged. The court has already quoted the New Hampshire
Supreme Court’s decision in Provencher, which sets out the
doctrine of litigation privilege. While Provencher involved
claims for negligent misrepresentation and fraud, the New
Hampshire Supreme Court had previously held, in McGranahan, that
the litigation privilege bars defamation claims arising from
statements in civil pleadings, see 119 N.H. 765-67.
Claim 12(A)/Count 12(b) because the defamation claims asserted
therein are based upon statements that are subject to the
litigation privilege. That is the case because those statements
were made in conjunction with a pleading submitted to this
court. While Lath states, in a conclusory manner, that the
statements are unprivileged, he goes no further. As a
consequence, Lath has given the court no reason to conclude that
the three statements at issue were “so palpably irrelevant to
the subject matter of the controversy that no reasonable man can
doubt [their] irrelevancy or impropriety,” Provencher, 142 N.H.
at 853 (quoting McGranahan, 119 N.H. at 766).
Moreover, even if all three of Dufresne’s allegedly
defamatory statements were not privileged, none of them appear
12 to be defamatory in the first place. As to the first two, they
are statements of opinion, not statements of fact, and “[a]
statement of opinion is not actionable unless it may reasonably
be understood to imply the existence of defamatory fact as the
basis for the opinion.” Thomas v. Tel. Publ’g Co., 155 N.H.
314, 338 (2007) (citing Nash v. Keene Publ’g Corp., 127 N.H.
214, 219 (1985); Milkovich v. Lorain Journal Co., 497 U.S. 1,
18-19 (1990)). Because neither Dufresne’s characterization of
Lath’s communications with him nor Dufresne’s interpretation of
Lath’s performance of an agreement with him can reasonably be
understood to imply the existence of a defamatory fact, the
first two statements underlying Lath’s defamation claim are non-
actionable statements of opinion. Beyond that, while Lath
characterizes the three statements at issue as “malicious” and
as “innuendo” intended to “ashame” him, see Pl.’s Mot. for Leave
to Amend (doc. no. 198) ¶ 8, he makes no allegations of falsity,
which is necessary for a statement to be actionable as
defamation.
As for the third statement at issue, it appears to be a
list of allegations Lath has made in his complaints in this
case. It is not clear what statement of fact in that list Lath
alleges to be false. Thus, as with the first two statements,
even if the third one were not privileged, it is not defamatory.
13 To summarize, because the statements underlying Claim
12(A)/Count 12(b) are absolutely privileged and not defamatory,
they cannot support a claim for defamation. Accordingly, it
would be futile to add Claim 12(A)/Count 12(b) to this case and
for that reason, as to that claim, Lath’s motion for leave to
amend is denied.
II. Document No. 212
In document no. 165, the court granted Lath leave to file a
motion to amend his complaint to assert claims for “constructive
eviction” and “conspiracy to evict” against Mullen and Dufresne,
along with a claim for deprivation of food and medical
necessities against the Manchester Police Department (“MPD”).
In support of the request that led the court to issue document
no. 165, Lath represented to the court that his claims against
Mullen and Dufresne would be based upon events that took place
during approximately one week in July of 2017, and that the
claim against the MPD arose from the treatment he received while
he was detained in a holding cell on July 6, 2017.
In document no. 212, Lath describes the claim he seeks to
add in the following way:
Claim 16 against Gerard Dufresne, Betty Mullen, Oak Brook Condominium Owners’ Association, thru its present and past board members and employees, for conspiracy to cause constructive eviction of Plaintiff from his residence and conspiracy to deprive Sanjeev Lath of basic necessities such as safe drinking water,
14 physical safety and proper sanitary conditions by interfering, coercing and intimidating Lath in violation of [the] Fair Housing Act.
Doc. no. 212, at 1.
The problem is that the claim that Lath describes in
document 212 bears a striking resemblance to the claim that the
court denied him leave to add to this case in document 170, and
nearly no resemblance to the claims the court permitted Lath to
seek leave to add to this case in document no. 165. For one
thing, Lath’s proposed Claim 16 names a defendant, the Oak Brook
Condominium Owners’ Association, that was not mentioned in the
request the court granted in document no. 165. More
importantly, while the claims the court addressed in document
no. 165 were focused on events that took place during
approximately one week in July of 2017, the body of Lath’s
motion alleges events spanning several years, and does so in a
way that is so vague that even if Lath’s proposed Claim 16 did
not exceed the scope of the permission that the court granted
him in document no. 165, it would fail, by a wide margin, to
meet the requisite pleading standard, see Fed. R. Civ. P. 8(a).
In short, because Lath’s proposed Claim 16 is not the claim that
the court granted him permission to pursue in document no. 165,
Lath’s second motion for leave to amend, document no. 212, is
15 III. Conclusion
For the reasons described above, Lath’s two motions for
leave to amend his complaint, document nos. 198 and 212, are
both denied. As a consequence, this case now consists of the
following claims:
Count 2: a claim under 42 U.S.C. § 3604(f)(2)(A) against the Association, for handicap based housing discrimination resulting from a constructive failure to allow Lath to have an emotional support dog.
Count 4: a claim under 42 U.S.C. § 3604(c) against the Association, for publishing a notice indicating a preference for handicapped people who need true service dogs over those who need emotional support dogs.
Count 9: an eavesdropping claim under RSA 570-A:11 against Mullen, for installing cameras in and/or around Lath’s residence.
Count 11(a): a common law false light invasion of privacy claim against Dufresne, for statements he made about Lath in filings in the New Hampshire Superior Court.
Count 12(a): a common law defamation claim against Dufresne, for introducing statements about Lath in an action in the New Hampshire Superior Court.
Count 13: a breach of contract claim against the Association, for failing to accept mail addressed to Lath.
Count 15: a common law claim for invasion of privacy against Dufresne, for disclosure of private facts, i.e., a confidential settlement agreement between Lath and a former employer that Dufresne attached to a pleading in this case.
16 As the court reads the docket, there appear to be no other
pending motions for leave to amend. Thus, as this case moves
forward, the claims described above are the only claims that
remain to be litigated.
That said, the court harbors a concern that Counts 11(a),
12(a) and 15 might well be subject to the litigation privilege.
Accordingly, on or February 14, 2018, Lath must show cause why
Counts 11(a), 12(a) and 15 should not be dismissed, and his
briefing on this limited issue shall not exceed 10 pages.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
January 25, 2018
cc: All counsel and pro se parties of record.