United States District Court, D. New Hampshire
Michael Kane, pro se
Michael P. Courtney, Esq.
Russell F. Hilliard, Esq.
McCafferty United States District Judge
Kane, proceeding pro se, filed a complaint listing the Town
of New Ipswich, New Hampshire, and present and former town
officials. Kane challenges defendants’ efforts to
collect property taxes from him, asserting that his property
is a “household utensil” that is exempt from
property tax pursuant to RSA 80:9. Defendants move to dismiss
on the ground that the complaint is barred by the Tax
Injunction Act. Kane objects to the motion to dismiss.
move to dismiss under both Federal Rule of Civil
Procedure 12(b)(1) and Rule 12(b)(6). For purposes of
this motion, where extrinsic evidence is not an issue, the
standard of review under both rules is the same. Cf. U.S.
ex rel. Winkelman v. CVS Caremark Corp., __ F.3d
__, 2016 WL 3568145, at *5 (1st Cir. June 30, 2016).
considering motions under Rules 12(b)(1) and 12(b)(6), the
court accepts as true the properly pleaded facts and takes
all reasonable inferences from those facts that support the
plaintiff’s claims. Mulero-Carrillo v.
Roman-Hernandez, 790 F.3d 99, 104 (1st Cir. 2015);
New England Patriots Fans v. Nat’l Football
League, 2016 WL 3248207, at *2 (D. Mass. June 10, 2016).
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). A claim is plausible
if the facts as pleaded, taken in the context of the
complaint and in light of “judicial experience and
common sense, ” allow the court to draw “the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678-79 (2009).
background information provided here is summarized from
Kane’s complaint. As such, the summary of Kane’s
allegations is provided for purposes of the present order
only and does not include factual findings or rulings.
identifying the parties in the case, Kane states that he is
“a flesh-and-blood man created by God and endowed with
unalienable rights.” Complaint, doc. 1, ¶ 35. He
alleges that the individual defendants are or have been town
officials in various capacities.
circumstances that lead to the complaint began twenty years
ago. Kane alleges that he and his wife bought property with a
mobile home in New Ipswich in 1995. He began building a house
on the property in 1999. On May 10, 2000, defendants George
H. Lawrence and Joanne Meshna, on behalf of New Ipswich, sent
Kane a letter notifying him that he was required to have a
building permit. Kane challenged that requirement.
in 1996, Kane asked defendant George K. Slyman, the New
Ipswich tax collector, for proof of his authority to collect
taxes from Kane, but received no response. When defendant Amy
Thibault was elected to serve as tax collector in 2005, Kane
questioned her authority to collect taxes from him but
received no response. Kane also requested past tax records
from Thibault, but then was able to compile his own tax
records from his retained receipts.
April 9, 2012, Kane sent a notarized letter by certified mail
to defendant Cynthia Lussier, as an agent of New Ipswich, to
notify New Ipswich “and its agents and principal”
that Kane believed the town’s tax collection process
violated his constitutional rights. He asked the town to
provide proof of their authority to collect taxes and to
return the taxes he had paid with interest. Lussier responded
two days later to his request, explaining that his request
was unclear and that he ...