United States District Court, D. New Hampshire
Joseph DiClerico, Jr. United States District Judge
Monica Banerjee, proceeding pro se, brought suit against the Town of Wilmot, New Hampshire, alleging a federal due process claim and a state claim for fraudulent misrepresentation that arose from her dispute with the town about a building permit for construction of a building for her business and her home. Wilmot moves to dismiss the federal due process claim on the ground that it is barred by res judicata and moves to dismiss both the federal and state law claims on the ground that they are time-barred. Banerjee objects to the motion to dismiss and also moves to stay the case pending her appeal in the New Hampshire Supreme Court.
I. Motion to Stay
Banerjee states that her “initiating documents and subsequent amended complaint indicates [sic] there is a pending appeal in New Hampshire Supreme Court, docket # 20150704 Monica Banerjee v. Town of Wilmot, N.H.” She did not submit any documents to show what was appealed. It appears that Banerjee appealed the decision of the Merrimack County Superior Court, issued on September 29, 2015, that dismissed her promissory estoppel claim against Wilmot.
In support of her motion to stay, Banerjee represents that if her claims in this suit survive the pending motion to dismiss and if her appeal is successful, she intends to seek leave to remove her state claim, for promissory estoppel, to this court to be heard concurrently with this case. She provides no authority to support her request for a stay. Cf. Watson v. Perez, ___ F.Supp.3d ___, 2016 WL 1054404, at *6 (D. Mass. Mar. 11, 2016) (discussing Younger abstention); AIG Property Casualty Co. v. Green, ___ F.Supp.3d ___, 2015 WL 8779732, at *3 (D. Mass. Dec. 15, 2015) (discussing other abstention doctrines applicable when a related state action is pending); Goulette v. Service Credit Union, 2015 WL 5539929, at *2 (D.N.H. Sept. 16, 2015) (same).
This case does not include a claim for promissory estoppel. Banerjee does not contend that the outcome in this case would affect the appeal or that the appeal would affect this case. Further, Banerjee’s removal theory is contrary to the removal statute that allows defendants, not plaintiffs, to remove cases to federal court. See 28 U.S.C. § 1441(a). Therefore, Banerjee has provided no cognizable ground to support imposing a stay in this case while her appeal is pending.
II. Motion to Dismiss
Wilmot moves to dismiss the federal due process claim on the ground that it is barred by res judicata and moves to dismiss both the due process claim and the state law fraud claim on the ground that they are barred by the statute of limitations. In response, Banerjee argues that she is bringing a different due process claim in this case, which does not implicate res judicata, and that neither claim is barred by the statute of limitations.
Standard of Review
In considering a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), the court assumes the truth of the properly pleaded facts and takes all reasonable inferences from the facts that support the plaintiff’s claims. Mulero-Carrillo v. Roman-Hernandez, 790 F.3d99, 104 (1st Cir. 2015). Conclusory statements in the complaint that merely provide the elements of a claim or a legal standard are not credited for purposes of a motion under Rule 12(b)(6). Lemelson v. U.S. Bank Nat’l Assn., 721 F.3d 18, 21 (1st Cir. 2013). Based on the properly pleaded facts, the court determines whether the plaintiff has stated “a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
In her amended complaint, Banerjee alleges that in 2003 she purchased a lot in Wilmot, New Hampshire, to build “a residence and business.” She was granted a building permit and obtained other permits for a 14, 000 square foot building with a height of thirty-five feet. Banerjee then submitted an application for an amended building permit which was granted in September of 2004. By the spring of 2006, the dry shell of the residential portion of the structure had been built.
Wilmot contacted Banerjee in January of 2007 about complaints they had received concerning her construction. Because of changes in the structure, Banerjee submitted a third application that was approved in March of 2007. Construction continued. In August of 2008, Banerjee moved into the top floor of the structure while construction continued.
In June of 2009, Banerjee called the New Hampshire Department of Safety to inspect the electrical wiring because of a hum in her audio equipment. The state inspector told Banerjee that he was discussing concerns about her ...