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Lath v. Manchester Police Department

United States District Court, D. New Hampshire

June 12, 2017

Sanjeev Lath
v.
Manchester Police Department, Gerald Dufresne, Dorothy Vachon BMS CAT, Amica Mutual Insurance Co., and Justin Boufford Opinion No. 2017 DNH 111

          Gary M. Burt, Esq., Sanjeev Lath, pro se Sabin R. Maxwell, Esq., Richard C. Nelson, Esq., Michael B. O'Shaughnessy, Esq., James G. Walker, Esq.

          ORDER

          Landya McCafferty United States District Judge

         This case now consists of one federal claim against the Manchester Police Department (“MPD”), [1] brought through the vehicle of 42 U.S.C. § 1983, and state law claims against all six defendants. Before the court is Justin Boufford's motion to dismiss the claim(s) against him for lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). Lath objects. For the reasons that follow, Boufford's motion to dismiss is granted.

         I. Background

         In his first amended complaint (“FAC”), Lath asserted 27 claims against 17 defendants. In an order dated March 23, 2017, document no. 74, ten of those defendants were dismissed from the case. One more defendant was dismissed in an order dated March 27, 2017, document no. 81. Gerald Dufresne has been defaulted. See doc. no. 73.

         In Cause 1 of his FAC, Lath claims that the MPD violated his right to equal protection, under the Fourteenth Amendment to the U.S. Constitution, by: (1) taking 30 minutes to respond to a burglar alarm from his unit, while responding more quickly to calls from other residents of the Oak Brook Condominium (“Oak Brook”); (2) refusing to take information from him when he attempted to report three incidents, [2] while promptly responding to complaints from other Oak Brook residents; and (3) characterizing him in various police records as a “mental subject.” Causes 2 and 3 of the FAC assert state law claims against the MPD.

         As for Lath's claims against Boufford, he alleges that “[d]efendants . . . [including] . . . Justin Boufford . . . are residents and/or owners of Oak Brook [C]ondominium Owners' Association, and at all relevant times, were and/or still are, board members, management, contractors and/or employees of the Association.” FAC (doc. no. 24) ¶ 18. Then, he makes the following factual allegations that specifically mention Boufford:

On September 13, 2015, [Gail] Labuda in an email to [Association] Board members Judy Goudbout, Jane Bright and Justin Boufford stated that . . . two police officers who did a “wellness check” upon Lath “acknowledged that he [Lath] has “some mental issues and is hearing things in his head.” . . .
On September 14, 2015, Board Member at the time, Justin Boufford, suggested to other Board Members that he would call “a [M]anchester police office friend” to see if “he had an idea.” Upon making the call, Boufford received [a] recommendation from the “police officer friend” to “call the police station again to report those emails that Vickie [Grandmaison] received.” FAC ¶¶ 24-25 (citations to the record and emphasis omitted).

         Those appear to be the only two paragraphs in the FAC that specifically mention Boufford. Moreover, while the headings in Lath's FAC specify the defendants against whom each of his claims are directed, Boufford's name appears in none of them. However, Lath's Cause 19 is asserted against “ALL defendants EXCEPT City of Manchester, NH.” FAC 76. Finally, it is clear that Causes 20-27 of the FAC are asserted against BMS CAT (“BMS Catastrophe, Inc.”) and Amica.

         Based upon the foregoing, the court can say with certainty that Boufford is not a defendant in the claims asserted in Causes 1-3 and Causes 20-27. As for the remaining causes, the FAC is not so helpful. If left to its own devices, the court would be inclined to conclude that Cause 19 (“Conspiracy”) is the only claim that Lath asserts against Boufford. But Boufford, perhaps generously, construes the FAC as asserting several additional claims against him: Cause 4 (“Deprivation of Basic Necessities - Water”), Cause 5 (“Violation of Manchester Ord. § 150.082: Water and Sewer System”), Cause 6 (“Negligence - Deck”), Cause 7 (“Promissory Estoppel - Deck”), Cause 12 (“Promissory Estoppel - Repairs in Lath's Unit”), Cause 15 (“Misrepresentation and Deceit”), and Cause 17 (“Unlawful [W]iretapping - NH Rev. Stat. 570-A”). In his objection to Boufford's motion to dismiss, however, plaintiff addresses only the conspiracy claim he asserts as Cause 19. The court will follow Lath's lead and construe his complaint as asserting only a single claim against Boufford: a state law claim for civil conspiracy.

         III. Discussion

         Boufford moves to dismiss Lath's claim against him, arguing that the court lacks subject matter jurisdiction over that claim and should decline to exercise supplemental jurisdiction over it. Lath's objection is somewhat difficult to follow, as it appears to conflate this case with 16-cv-463-LM and/or advances arguments that appear to presume a favorable ruling on his motion to consolidate that case, this case, and a case that is before Judge Laplante, 17-cv-075-LM.[3] In any event, the court is persuaded that it should not exercise supplemental jurisdiction over Lath's conspiracy claim against Boufford.

         With regard to subject matter jurisdiction, Lath asserts that “this court has jurisdiction on this matter based upon diversity.” FAC ¶ 12; see also 28 U.S.C. § 1332. He is wrong. Both Lath and at least one defendant are New Hampshire residents. Thus, the parties are not completely diverse. For the court to have subject matter jurisdiction under § 1332, “[d]iversity must be complete - ‘the presence of but one nondiverse party divests the district court of original jurisdiction over the entire action.'” Aponte-Dávila v. Muni. of Cagaus,828 F.3d 40, 46 (1st Cir. 2016) (quoting DCC Operating, Inc. v. Rivera Siaca (In re Olympic Mills Corp., 477 F.3d 1, 6 (1st Cir. 2007); citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 267 (1806)). Because ...


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