United States District Court, D. New Hampshire
McCafferty United States District Judge.
the court is plaintiff's motion for leave to file a first
supplement to his second amended complaint
(“SAC”). Four of the five defendants have
objected; Gerard Dufresne has not. For the reasons that
follow, plaintiff's motion is granted in part and denied
outlined in document no. 72, this case now consists
of eight claims: (1) a hostile housing environment claim
under the federal Fair Housing Act (“FHA”),
against Warren Mills and the Oak Brook Condominium
Owners' Association (“Association”) (Count
1); (2) two FHA claims arising from alleged handicap based
housing discrimination, against the Association (Counts 2 and
4); (3) an eavesdropping claim against Betty Mullen (Count
9); (4) an invasion of privacy claim against Perry Vallee
(Count 10); (5) claims for false light invasion of privacy
and defamation, against Gerard Dufresne (Counts 11(a) and
12(a)); and (6) a breach of contract claim against the
Association (Count 13).
has also asserted claims arising out of his tenure as an Oak
Brook unit owner in a second action, 16-cv-534-LM. On the day
Lath filed that action, there was a fire in his unit, and he
amended his complaint in 16-cv-534-LM to assert claims
arising from the aftermath of the fire. Then, based upon
rulings on several motions to dismiss, 16-cv-534-LM was
(1) a claim, brought through the vehicle of 42 U.S.C. §
1983, asserting that the Manchester Police Department
(“MPD”) violated Lath's federal
constitutional right to equal protection; and (2) state law
claims against the MPD, Dorothy Vachon, Gerald Dufresne,
Justin Boufford, Amica [Mutual Insurance Co.], and BMS
Catastrophe, Inc. (“BMS CAT”).
Lath v. Manchester Police Dep't, No.
16-cv-534-LM, 2017 WL 1740197, at *1 (D.N.H. May 4, 2017).
While 16-cv-534-LM was in the state described above, and in
reliance upon Rule 15(d) of the Federal Rules of Civil
Procedure, Lath moved to supplement his complaint in that
case to add discrimination and retaliation claims under the
FHA. The court denied Lath's motion, “but without
prejudice to Lath's filing a Rule 15(d) motion in
16-cv-463-LM.” Id. at *4.
motion currently before the court is the one that Lath was
granted leave to file by the above quoted order in
16-cv-534-LM. In it, Lath seeks to supplement his SAC in this
case with causes of action captioned: (1) “Claim 14
(Continued): Conspiracy by defendants, City of Manchester,
Police and Fire Departments, Amica, Cheryl Vallee, Perry
Vallee, Morey, Klardie, Grandmaison, Taylor, Mullen, Sample,
and Bisson, whether or not acting under the color of law, to
violate FHA by retaliating against Lath, ” doc. no.
118, at 2; and (2) “Claim 15: Invasion of
Privacy by disclosure of Private Facts by Defendant Gerard
Dufresne, ” Id. at 18.
The Legal Standard
15(d) affords litigants a pathway for pleading ‘any
transaction, occurrence, or event that happened after the
date of the pleading to be supplemented.'”
United States ex rel. Gadbois v. PharMerica Corp.,
809 F.3d 1, 4 (1st Cir. 2015) (quoting Fed.R.Civ.P. 15(d)),
cert. denied, 136 S.Ct. 2517 (2016). Regarding the
application of that rule, the court of appeals has explained:
Rule 15(d) contains no standards at all to guide the district
court's analysis; it merely authorizes the district court
to permit service of a supplemental pleading “on just
terms.” In an effort to fill this vacuum and in keeping
with the overarching flexibility of Rule 15, courts
customarily have treated requests to supplement under Rule
15(d) liberally. See, e.g., Walker v. United Parcel
Serv., Inc., 240 F.3d 1268, 1278 (10th Cir. 2001). This
liberality is reminiscent of the way in which courts have
treated requests to amend under Rule 15(a)'s leave
“freely give[n]” standard. See, e.g., Glatt
v. Chi. Park Dist., 87 F.3d 190, 194 (7th Cir. 1996);
Quaratino v. Tiffany & Co., 71 F.3d 58, 66 (2d
Cir. 1995); Mueller Co. v. U.S. Pipe & Foundry
Co., 351 F.Supp.2d 1, 2 (D.N.H. 2005).
Gadbois, 809 F.3d at 7. Moreover:
In the last analysis, a district court faced with a Rule
15(d) motion must weigh the totality of the circumstances,
just as it would under Rule 15(a). See Palmer v. Champion
Mortg.,465 F.3d 24, 30-31 (1st Cir. 2006).
Idiosyncratic factors - say, the futility of supplementation,
see Haggard v. Bank of the Ozarks, Inc., 668 F.3d
196, 202 (5th Cir. 2012) (per curiam); Motorola Credit
Corp. v. Uzan,388 F.3d 39, 65 (2d Cir. 2004), prejudice
to the opposing party, see Walker, 240 F.3d at
1278-79, and unreasonable delay in ...