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Lath v. Oak Brook Condominium Owners' Association

United States District Court, D. New Hampshire

April 3, 2017

Sanjeev Lath
v.
Oak Brook Condominium Owners' Association, Cheryl Vallee, Perry Vallee, William Quinn Morey, Gerald Dufresne, Christos Klardie, Vickie Grandmaison, Patty Taylor, Betty Mullen, Scott Sample, John Bisson, and Warren Mills Opinion 2017 DNH 066

          ORDER

          Landya McCafferty United States District Judge.

         In an order dated March 20, 2017, pro se plaintiff Sanjeev Lath was given the opportunity to show cause why Counts 3(a)-(i) and Counts 5-8 of his second amended complaint (“SAC”) should not be dismissed for failing to state a claim upon which relief can be granted. Lath has responded to that order. For the reasons that follow, Counts 3(a)-(i), Counts 5-8, and Count 14 of the SAC are all dismissed.

         I. Discussion

         In the show cause order, the court gave Lath the option of voluntarily dismissing any claims he no longer wished to pursue, but also stated that to continue pursuing any claim he did not give up, he would have to “(1) identify the specific defendant or defendants; (2) specify the cause of action . . .; (3) state the elements of that cause of action . . .; and (4) allege facts that satisfy each element of the cause of action.” Doc. no. 72, at 65. Lath has declined to dismiss any of the claims that are covered by the show cause order. In the balance of this order, the court considers each of the claims that are subject to the show cause order, and also considers the claim for civil conspiracy asserted in Count 14 of the SAC.

         A. Counts 3(a)-(i)

         Counts 3(a)-(i) assert claims for retaliation, in violation of 42 U.S.C. § 3617. In the show cause order, the court noted “that ‘in connection with a . . . claim . . . under Section 3617, there must be sufficient evidence for a reasonable jury to conclude that the Defendants were motivated by a protected characteristic in performing the challenged conduct.'” Doc. no. 72, at 18 (quoting S. Middlesex Opp. Council, Inc. v. Town of Framingham, 752 F.Supp.2d 85, 95-96 (D. Mass. 2010)). The court continued:

[P]laintiff alleges that [Warren] Mills once called him a “sand nigger.” But Plaintiff does not allege that Mills engaged in any of the conduct underlying his retaliation claim[s], and makes no allegations of animus on the part of any of the defendants who did engage in the conduct he calls retaliatory. Plaintiff's inadequate allegations of animus would appear to be fatal to his retaliation claims. . . . While the court harbors concerns over the allegations of animus in the SAC, the better course of action with respect to plaintiff's retaliation claims under § 3617 . . . is to give him an opportunity to show cause why those claims should not be dismissed for failing to allege that “defendants' conduct was at least partially motivated by intentional discrimination.” S. Middlesex, 752 F.Supp.2d at 95.

Doc. no. 72, at 18-19 (emphasis in the original).

         In his response, Lath says absolutely nothing about animus toward a protected characteristic on the part of any of the defendants who engaged in allegedly retaliatory conduct. Thus, he has failed to show cause why Counts 3(a)-(i) should not be dismissed.

         B. Count 5

         Count 5 arises from an alleged failure to comply with the American National Standards for buildings and facilities (“ANSI”), in violation of 42 U.S.C. § 3604(f)(2). In its show cause order, the court pointed out that apart from mentioning ANSI in the heading of a claim, the SAC said nothing about ANSI compliance. The court also said this:

[P]laintiff does not allege that he has any physical handicap, so it is difficult to see how, with respect to ANSI compliance, he is “[a]n aggrieved person, ” 42 U.S.C. § 3613(a)(1)(A), entitled to bring a claim for an alleged failure to comply with ANSI.

Doc. no. 72, at 23 n.10. In other words, the court raised the issue of standing.

         In his response to the show cause order, Lath fleshes out the claim ...


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