United States District Court, D. New Hampshire
NIMCO Real Estate Associates, LLC, et al.
Gregory G. Nadeau, as Administrator of the Federal Highway Administration, et al. Opinion No. 2017 DNH 058
DiClerico, Jr. United States District Judge.
Real Estate Associates, LLC; Ultima Nashua Equipment
Corporation; and Anoosh Irvan Kiamanesh brought suit against
Gregory G. Nadeau, the administrator of the Federal Highway
Administration (“FHWA”) the City of Nashua, and
the New Hampshire Department of Transportation
(“NHDOT”), alleging claims that arose from the
acquisition of the plaintiffs' property by eminent domain
for a highway project. The FHWA moves to dismiss the claim
against it on the ground that the court lacks subject matter
jurisdiction. The NHDOT and the City of Nashua move to
dismiss the claims against them and join in the motion to
dismiss filed by the FHWA. The plaintiffs object, to the
motions to dismiss and move for a preliminary
considering motions under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6), the court credits a plaintiff's
properly pleaded allegations and draws all reasonable
inferences in the plaintiff's favor. Reddy v.
Foster, 845 F.3d 493, 497 (1st Cir. 2017); Sanders
v. Phoenix Ins. Co., 843 F.3d 37, 42 (1st Cir. 2016).
Properly pleaded allegations are factual allegations not
conclusory legal allegations. Guadalupe-Baez v.
Pesquera, 819 F.3d 509, 515 (1st Cir. 2016). To avoid
dismissal under Rule 12(b)(6), the properly pleaded facts,
with appropriate inferences, must “raise a right to
relief above the speculative level.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). When subject
matter jurisdiction is challenged, “[t]he parties
asserting jurisdiction, here the plaintiffs, have the burden
of demonstrating the existence of federal
jurisdiction.” Acosta-Ramirez v. Banco Popular de P.R.,
712 F.3d 14, 20 (1st Cir. 2013).
is a company that manufactures specialty machines, equipment,
and parts and has operated at its place of business at 1 Pine
Street Extension, Nashua, New Hampshire, since 1958. NIMCO is
a real estate limited liability company that owns the
property at 1 Pine Street where Ultima is located. Anoosh
Kiamanesh is the manager of Nimco, the president and sole
director of Ultima, and the majority owner of both NIMCO and
early 2000, the City of Nashua and NHDOT were planning a
highway project, called the Broad Street Parkway. Officials
of the NHDOT and the city met, and Mike Rousseau, a
representative of NIMCO, Ultima, and Kiamanesh was also at
the meeting. The city and state officials told Rousseau that
NIMCO's property at 1 Pine Street was needed for the
project, which would require acquisition of the property and
relocation of NIMCO and Ultima.
time, the city and NHDOT expected to make an offer for the
Pine Street property in September of 2000 and anticipated
that plans for a new site for Ultima and NIMCO would be
complete by the spring of 2002. Construction on the segment
of the parkway that required the 1 Pine Street property was
to begin in the fall of 2002.
has hundreds of pieces of manufacturing equipment and
machinery at the property with an estimated value of $12
million. Some of the pieces of equipment and machinery are
large and heavy, making them difficult to move, and some
require special foundations and service connections.
plaintiffs (NIMCO, Ultima, and Kiamanesh) requested
relocation assistance and benefits under the Uniform
Relocation Assistance and Real Property Acquisition Policies
Act of 1970, 42 U.S.C. § 4601, et seq.,
(“URA”). In a letter dated March 14, 2000, Jeanne
A. Grover, Chief Relocation Advisor at NHDOT told the
plaintiffs that NHDOT would grant advanced relocation
benefits with certain conditions. Thereafter, when the
plaintiffs inquired about relocation benefits in 2000 and
2001, they were told that the project was on hold.
project began to move forward again in March of 2002. The
plaintiffs received a letter from NHDOT about the process for
applying for advanced relocation benefits. The NHDOT offered
$870, 000 to acquire the property. The plaintiffs obtained
moving bids of several million dollars each, because of the
nature of the machinery and equipment.
plaintiffs found a property that would be suitable and
available for relocation, which was to be auctioned on May 2,
2003. Alan Rau, the plaintiffs' relocation manager,
notified the NHDOT of the auction on April 25, 2003,
emphasizing that it was imperative that the relocation funds
be available to move the plaintiffs to the new location and
asked that the relocation funding be expedited.
2, 2003, Kiamanesh attended the auction and successfully bid
on the property for the price of $3, 275, 000. He put a
deposit of $100, 000 on the property. The plaintiffs notified
the NHDOT of their winning bid and that they needed the
eminent domain compensation award and relocation benefits by
June 21, 2003, to close on the new property. Also in May of
2003, the NHDOT increased the acquisition offer to $1, 210,
000, although no payment was made.
plaintiffs defaulted on the purchase of the new property on
June 21, 2003, and lost their deposit of $100, 000. The
plaintiffs received $1, 210, 138.76 from the Board of Land
and Tax Appeals on July 7, 2003.
auction was scheduled on the property the plaintiffs had
defaulted on, which was held on August 14, 2003. The
plaintiffs again placed the winning bid of $3, 260, 000 for
the property, and again gave a deposit in the amount of $100,
000. Although the plaintiffs received a letter in September
that they qualified for relocation funds, no payment was made
at that time. On October 3, 2003, the plaintiffs again
defaulted on the purchase of the new property and again lost
the $100, 000 deposit. The plaintiffs did not receive
2004 through 2008, the plaintiffs looked for property for
relocation. Beginning in 2005 and through 2010, Rau, on
behalf of the plaintiffs, signed leases for the 1 Pine Street
property. The leases identified the owner of the property as
NHDOT. Under the leases, the plaintiffs were required to pay
Nashua the amount of real estate taxes on the property. The
leases also included a provision that released the landlord,
its agents and assigns, from liability for claims related to
the taking of the property and construction and maintenance
of the highway project.
2006, Ultima was in financial difficulty and signed a
contract with Kia Technologies Corporation, a Canadian
corporation, through which Ultima agreed to sell its
machinery and equipment to Kia. Kiamanesh is a stockholder in
Kia. Ultima, with Kia, entered into contracts with companies
in China to use the equipment and machinery and to deliver
the equipment and machinery to the companies in China. On
September 27, 2009, a representative of the Chinese companies
came to Ultima to inspect the machinery and equipment.
next day, September 28, 2009, Kiamanesh met with the Economic
Director of Nashua and the manager of the highway project to
tell them about the venture with the Chinese companies and
the need for money to ship the equipment and machinery to
China. No relocation funds were provided.
December 18, 2009, Rau, on behalf of the plaintiffs, sent a
letter to the NHDOT Right of Way Agent requesting relocation
assistance and benefits. When Rau followed up the letter with
a phone call in early January, 2010, he was told that Nashua
was revising the highway project and might not need the 1
Pine St. property.
Director of Public Works notified the plaintiffs on April 26,
2010, that the 1 Pine Street property was no longer needed
for the highway project. As a result, the plaintiffs were no
longer required to move. The NHDOT agent also notified the
plaintiffs on August 2, 2010, that the property was no longer
needed and that relocation funds were not available. On
September 12, 2014, the plaintiffs received a letter from
Nashua offering the property for sale at a price of $1, 210,
responded that he was not able to buy back the property.
Nashua then told the plaintiffs that it was preparing to sell
the property and that Ultima would have to enter into a lease
agreement. The draft lease sent by Nashua in June of 2015
required rent of $8, 800 per month. The plaintiffs were
unable to pay the rent in the lease.
of 2015, Kiamanesh again requested relocation assistance
funds. On August 6, 2015, Nashua sent the plaintiffs an
eviction notice and a notice to quit before November 6, 2015.
The plaintiffs remained on the property.
of 2016, Nashua filed an action against Ultima in
Hillsborough County Superior Court, seeking the unpaid real
estate taxes through 2015. Nashua also sent a notice to
vacate, and brought a landlord and tenant writ against the
plaintiffs filed suit on September 9, 2016, alleging nine
claims against the FHWA, the City of Nashua, and
“various unnamed officials of the aforesaid agencies,
and of the NHDOT.” The plaintiffs have not clarified
which, if any officials, are defendants in this case.
is brought against the FHWA “and/or its Officials for
failing or neglecting to undertake its responsibilities under
the [URA] and regulations thereunder.” Count II is
brought against the NHDOT “and its officials as they
are and have acted as Agents for the City” with respect
to relocation benefits under the URA, which is incorporated
into state eminent domain proceedings by RSA 124-A:13. Count
III, against Nashua, alleges that Nashua has taken the
plaintiffs' property by failing to provide relocation
assistance and benefits under the URA in violation of the
Fifth Amendment. Count IV seeks to reopen the original taking
of the property and seeks additional eminent domain damages.
Count V claims that Nashua violated the equal protection
clause of the Fourteenth Amendment by providing URA
relocation assistance and benefits to other businesses but
not to the plaintiffs. Count VI is a claim against Nashua
under 42 U.S.C. § 1983, alleging violations of the URA,
the Takings Clause of the Fifth Amendment, and the Equal
Protection Clause of the Fourteenth Amendment. In Count VII,
the plaintiffs seek an award of attorneys' fees and
litigation expenses under the URA. Count VIII alleges
“municipal estoppel” against Nashua, and Count IX
alleges unjust enrichment against Nashua.
FHWA, the NHDOT, and Nashua have each moved to dismiss the
claims against them. The NHDOT and Nashua have also joined in
the FHWA's motion. The plaintiffs object to the motions
to dismiss. NHDOT moved to dismiss Nashua's cross claims
against it. Nashua did not respond to the motion to dismiss.
NHDOT's Motion to Dismiss Nashua's Cross Claims
brings cross claims against NHDOT alleging that NHDOT was
negligent in failing to collect rent from the plaintiffs
(Claim I), that NHDOT breached “agency
agreements” with Nashua (Claim II), and that NHDOT is
“obligated to indemnify the City” (Claim III).
NHDOT moves to dismiss the claims on the grounds that they
are barred by the statute of limitations, are barred by
sovereign immunity and the Eleventh Amendment, and Claim III