Steven Dominic v. Goldman & LeBrun Professional Association et al.

2021 DNH 077

• Court: District Court, D. New Hampshire
• Decided: May 20, 2021
• Docket: 20-cv-854-PB
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Steven Dominic Case No. 20-cv-854-PB v. Opinion No. 2021 DNH 077

Goldman & LeBrun Professional Association et al.

MEMORANDUM AND ORDER

Steven Dominic has brought this action in his capacity as

the administrator of his deceased mother’s estate. He has sued

his mother’s lawyer and the lawyer’s affiliated law firms, a

number of employees at banks that did business with his mother,

and several former officials of the New Hampshire Banking

Department. Dominic asserts two federal causes of action and a

plethora of state law claims.

Defendants responded to Dominic’s original complaint with

motions to dismiss, requesting that the court dismiss Dominic’s

federal claims and decline to exercise supplemental jurisdiction

over his state law claims. Instead of objecting to the motions

to dismiss, Dominic sought leave to file a first amended

complaint. Before I had a chance to rule on Dominic's motion,

he moved for leave to file a second amended complaint.

Defendants objected to both of Dominic's motions to amend the

complaint as futile. I denied the defendants' motions to

dismiss without prejudice in light of Dominic's requests to

1 amend and waited until the two motions to amend were ripe. In

the meantime, Dominic filed a third motion to amend, which I

denied without prejudice.1

Because I find defendants’ arguments persuasive, I deny

Dominic’s three motions to amend as futile, dismiss his federal

claims with prejudice, and dismiss his state law claims without

prejudice to his right to pursue the claims in state court.

I. BACKGROUND

Elaine Dominic died on November 8, 2016. 2d Am. Compl. ¶

164.2 For several years prior to her death, Dominic’s older

brother Reginald lived with her at her home in Boscawen, New

Hampshire and cared for her physical and mental health needs.

2d Am. Compl. ¶¶ 28-29.

A. Durable Power of Attorney

In 2011, Reginald hired Attorney Stephen Goldman to

represent Elaine. 2d Am. Compl. ¶¶ 36-38, 134. Dominic alleges

1 In his motion for leave to file a third amended complaint, Dominic failed to attach his proposed complaint and to explain why any new allegations, claims, or parties were not included in the original filing, as required by Local Rule 15.1(a). Because this third amended complaint would not correct the deficiencies apparent in the first or second amended complaint, I now deny the plaintiff’s motion for leave to file a third amended complaint with prejudice.

2 For the purposes of laying out the facts and legal arguments offered by Dominic, I rely on his proposed second amended complaint, the most recent complaint he has filed with this court.

2 that Reginald and Goldman pushed Elaine to sign a general

financial durable power of attorney (“DPOA”) and a durable power

of attorney for health care (“DPOA HC”), which she eventually

signed during a meeting on June 8, 2012. 2d Am. Compl. ¶¶ 54,

57.

B. Sale of Rye Property

That same month, Reginald and Goldman listed Elaine’s beach

home, a property in Rye, New Hampshire, for $399,000.00. 2d Am.

Compl. ¶ 62. On July 1, 2012, an offer was made for

$355,000.00. 2d Am. Compl. ¶ 63. Reginald and Goldman accepted

the offer, and Reginald signed paperwork for the sale using his

DPOA on behalf of Elaine. 2d Am. Compl. ¶ 63. Reginald and

Goldman then worked with the realty group Bean Group Title &

Escrow LLC on the title of the property. 2d Am. Compl. ¶ 64.

On July 13, 2012, Elaine signed a warranty deed for the Rye

home. 2d Am. Compl. ¶ 72. Reginald received $332,458.22 for

the sale of the Rye property. 2d Am. Compl. ¶ 75. Pointing to

Elaine’s absence from the closing and the low price of the sale,

Dominic alleges that the house purchase was a strawman purchase

scheme created by Reginald, Goldman, Bean Group, and Provident

Bank. 2d Am. Compl. ¶¶ 73, 77, 85, 102, 105, 456-457.

C. Other Financial Transactions

Dominic further alleges that Reginald engaged in fraud and

financial exploitation of Elaine for the four years leading up

3 to her death in 2016. 2d Am. Compl. ¶ 128. In April 2013, the

Bank of New Hampshire (“BONH”) accepted and certified a DPOA for

Elaine for a claim for lost, stolen, or destroyed U.S. Savings

Bonds, without a written or verbal request by Elaine. 2d Am.

Compl. ¶ 135. In June 2013, the Federal Reserve Bank mailed

Goldman a check from Elaine’s account for $29,614.76. 2d Am.

Compl. ¶ 138. After Elaine's death, Reginald continued to make

withdrawals of over $100,000 from Elaine’s Franklin Savings Bank

account. 2d Am. Compl. ¶ 174.

In September and November of 2019, Dominic filed two

consumer complaints on behalf of Elaine’s estate with the New

Hampshire Banking Department (“NHBD”), demanding the return of

$561,807.60 and $4,000,000.00, respectively, to Elaine’s estate.

2d Am. Compl. ¶¶ 236-237, 243-244. NHPD turned over its

investigation to the Attorney General’s Office in April 2020.

2d Am. Compl. ¶ 358.

D. Administration of Elaine's Estate

Following Elaine’s death, Reginald was appointed

administrator of her estate, and served in that role until his

death on April 5, 2017. 2d Am. Compl. ¶¶ 179-180. Goldman

succeeded Reginald as administrator and continued to serve in

that capacity until November 13, 2017. 2d Am. Compl. ¶ 194. In

June 2017, Dominic filed a petition in probate court alleging

fraud, false statements, and breach of fiduciary duties by

4 Reginald and Goldman. 2d Am. Compl. ¶ 212. Dominic was

appointed administrator in October 2018. 2d Am. Compl. ¶ 349.

II. STANDARD OF REVIEW

“Under Federal Rule of Civil Procedure 15(a)(2), ‘[t]he

court should freely give leave [to amend the complaint] when

justice so requires.’” Sykes v. RBS Citizens, N.A., 2 F. Supp.

3d 128, 133 (D.N.H. 2014) (quoting Manning v. Boston Med. Ctr.

Corp., 725 F.3d 34, 60 (1st Cir. 2013)). However, “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.” Id. (quoting Nikitine v.

Wilmington Tr. Co., 715 F.3d 388, 390 (1st Cir. 2013)). “A

proposed amendment to a complaint is futile if, as amended, ‘the

complaint still fails to state a claim.’” Id. (quoting Abraham

v. Woods Hole Oceanographic Inst., 553 F.3d 114, 117 (1st Cir.

2009)). “Therefore, review for futility is identical to review

under Federal Rule of Civil Procedure 12(b)(6).” Id. (citing

Edlow v. RBW, LLC, 688 F.3d 26, 40 (1st Cir. 2012)).

To survive a motion to dismiss for failure to state a

claim, a plaintiff must make factual allegations sufficient to

“state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This standard

“demands more than an unadorned, the-defendant-unlawfully-

5 harmed-me accusation.” Id. A claim is facially plausible if it

pleads “factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Id.

In testing a complaint’s sufficiency, I employ a two-step

approach. See Ocasio–Hernández v. Fortuño-Burset, 640 F.3d 1,

12 (1st Cir. 2011). First, I screen the complaint for

statements that “merely offer legal conclusions couched as fact

or threadbare recitals of the elements of a cause of action.”

Id. (internal quotation marks and alterations omitted). A claim

consisting of little more than “allegations that merely parrot

the elements of the cause of action” may be dismissed. Id.

Second, I credit as true all non-conclusory factual allegations

and the reasonable inferences drawn from those allegations, and

then determine if the claim is plausible. Id. The plausibility

requirement “simply calls for enough fact to raise a reasonable

expectation that discovery will reveal evidence” of illegal

conduct. Twombly, 550 U.S. at 556. The “make-or-break

standard” is that those allegations and inferences, “taken as

true, must state a plausible, not a merely conceivable, case for

relief.” Sepúlveda–Villarini v. Dep’t of Educ. of P.R., 628

F.3d 25, 29 (1st Cir. 2010).

6 III. ANALYSIS

I analyze Dominic’s two federal claims and conclude that

both fail to state a claim. I address each claim in turn and

then discuss diversity and supplemental jurisdiction over

Dominic’s remaining state law claims.

A. § 1983 Claim

In Count 1 of his proposed second amended complaint,

Dominic attempts to base a claim for relief on 42 U.S.C. § 1983.

“A plaintiff must allege two elements to establish a claim

for relief under section 1983: first, ‘that they were denied

some right “secured by the constitution and laws” of the United

States,’ and, second, ‘that [defendants] deprived them of this

right while acting “under color of state law.”’” Rubin v.

Smith, 817 F. Supp. 987, 993 (D.N.H. 1993) (quoting Rodriguez–

Garcia v. Davila, 904 F.2d 90, 94 (1st Cir. 1990)). “To

establish an equal protection claim, a plaintiff needs to allege

facts showing that ‘(1) the person, compared with others

similarly situated, was selectively treated; and (2) that such

selective treatment was based on impermissible considerations

such as race, religion, intent to inhibit or punish the exercise

of constitutional rights, or malicious or bad faith intent to

injure a person.’” Davis v. Coakley, 802 F.3d 128, 132-33 (1st

Cir. 2015) (quoting Rubinovitz v. Rogato, 60 F.3d 906, 910 (1st

Cir. 1995)).

7 Dominic does not even attempt to allege an equal protection

violation. Instead, viewed generously, he seems to invoke §

1983 as a statutory device for enforcing various requirements of

federal banking law against the three defendant banks and the

NHBD. However, Dominic fails to point to any federal banking

law that can be enforced via § 1983. See Rio Grande Cmty.

Health Ctr., Inc. v. Rullan, 397 F.3d 56, 72 (1st Cir. 2005)

(quoting Blessing v. Freestone, 520 U.S. 329, 340 (1997)) (“Not

all violations of federal law give rise to § 1983 actions:

‘[the] plaintiff must assert the violation of a federal right,

not merely a violation of federal law.’”). Accordingly, Dominic

has failed to state a viable claim under § 1983, either as an

equal protection claim or as an enforcement mechanism for

federal banking law.

B. § 1985(3) Conspiracy Claim

Dominic’s § 1985(3) conspiracy claim also fails for the

same reason that I rejected a comparable conspiracy claim he

made in Dominic v. Concord Hospital, Inc. et al., 2021 DNH 053

(citing D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 44

(1st Cir. 2012)). Dominic’s § 1985(3) claim is therefore also

fatally defective.

C. State Law Claims

“When the parties to a federal lawsuit have citizens of the

same state on both sides, and the court has dismissed all of the

8 federal claims, the court generally should dismiss, without

prejudice, pendent state law claims for lack of subject matter

jurisdiction.” Ginsberg v. DeHart, No. 1:10-cv-00452, 2011 WL

1100989, at *2 (D.N.H. Mar. 22, 2011) (citing Lares Grp., II v.

Tobin, 221 F.3d 41, 45 (1st Cir. 2000)).

I do not have diversity of citizenship jurisdiction over

Dominic’s state law claims because all the parties are New

Hampshire residents. Further, because this case is in its early

stages, I decline to exercise my discretion to retain

supplemental jurisdiction over the state law claims.

Accordingly, these claims are dismissed without prejudice to

Dominic’s right to refile them in state court.

IV. CONCLUSION

For the reasons set forth in this Memorandum and Order,

Dominic’s motions for leave to file a first (Doc No. 15), second

(Doc. No. 42), and third (Doc. No. 52) amended complaint are

denied, his two federal claims are dismissed with prejudice, and

all state claims are dismissed without prejudice to Dominic’s

right to renew his claims in state court. I direct the clerk of

court to enter judgment and close the case.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

May 20, 2021

9 cc: Steve Dominic, pro se Simon R. Brown, Esq. Linda M. Smith, Esq. Gregory A. Moffett, Esq. Frank P. Spinella, Jr., Esq. Matthew Vernon Burrows, Esq. Seth Michael Zoracki, Esq. Laura Jean Lee, Esq. Matthew R. Johnson, Esq. Roy W. Tilsley, Jr., Esq. Stephen P. Griffin, Esq. Hilary Holmes Rheaume, Esq.