United States District Court, D. New Hampshire
E. Buchholz, Esq. Gary M. Burt, Esq. Gerard Dufresne, pro se.
Sanjeev Lath, pro se.
Joseph Marshall, Esq. Sabin R. Maxwell, Esq. Richard C.
Nelson, Esq. Brendan D. O'Brien, Esq. James G. Walker,
McCafferty United States District Judge.
case now consists of one federal claim against the Manchester
Police Department, brought through the vehicle of 42 U.S.C.
§ 1983, and state law claims against all five
defendants. Plaintiff's sole claim against Dorothy Vachon
is that she installed wiretapping devices in his unit at the
Oak Brook Condominium (“Oak Brook”), in violation
New Hampshire Revised Statute Annotated (“RSA”)
§ 570-A. Before the court is Vachon's motion for
summary judgment, to which Lath has not responded. For the
reasons that follow, Vachon's motion for summary judgment
Summary Judgment Standard
judgment is appropriate when the record shows that
‘there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.'” Walker v. President & Fellows of
Harvard Coll., 840 F.3d 57, 61 (1st Cir. 2016) (quoting
Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777, 782
(1st Cir. 2011); citing Fed.R.Civ.P. 56(a)). “A genuine
issue is one that can ‘be resolved in favor of either
party' and a material fact is one which ‘has the
potential of affecting the outcome of the case.'”
Walker, 840 F.3d at 61 (quoting Gerald v. Univ.
of P.R., 707 F.3d 7, 16 (1st Cir. 2013); citing
Pérez-Cordero v. Wal-Mart P.R., Inc., 656
F.3d 19, 25 (1st Cir. 2011)).
court considers a motion for summary judgment, “[t]he
evidence . . . must be viewed in the light most favorable to
the nonmoving party . . . and all reasonable inferences must
be taken in that party's favor.” Harris v.
Scarcelli (In re Oak Knoll Assocs., L.P.), 835 F.3d 24,
29 (1st Cir. 2016) (citing Desmond v. Varrasso (In re
Varrasso), 37 F.3d 760, 763 (1st Cir. 1994)). “The
nonmovant may defeat a summary judgment motion by
demonstrating, through submissions of evidentiary quality,
that a trialworthy issue persists.” Cruz v.
Mattis, 861 F.3d 22, 25 (1st Cir. 2017) (quoting
Iverson v. City of Bos., 452 F.3d 94, 98 (1st Cir.
Lath and Vachon own units at Oak Brook. In his First Amended
Complaint (“FAC”), Lath alleges that on or around
September 30, 2016, he “notic[ed] two holes created by
Defendant Dorothy Vachon . . . inside [his] cabinet . . .,
with an attached wiretapping device.” FAC (doc. no.
24) ¶ 30 (citation to the record omitted). And
he further alleges that “Vachon installed wiretapping
devices from [her] unit extending into [his] unit with an
intent to surreptitiously eavesdrop on [his] conversations .
. . .” Id. ¶ 255. Based upon those
allegations, Lath asserts a claim that Vachon is liable to
him for violating RSA 570-A.
moves for summary judgment, arguing that she has produced
undisputed evidence that she never installed a wiretapping
device in his unit. The court agrees.
570-A:11 provides a civil cause of action for damages to
“[a]ny person whose telecommunication or oral
communication is intercepted . . . in violation of this
chapter.” In pertinent part, the New Hampshire
wiretapping and eavesdropping statute makes it unlawful to
willfully: (1) intercept “or endeavor to intercept, any
telecommunication or oral communication, ” RSA 570-A:2,
I(a); or (2) use “or endeavor to use, any electronic,
mechanical, or other device to intercept any oral
communication, ” RSA 570-A:2, I(b), under certain
specified circumstances, see RSA 570-A:2, I(b)(1)-(3).
support of her motion for summary judgment, Vachon has
produced an affidavit in which she testified that: (1) she
once lived in the unit next to Lath's unit at Oak Brook;
(2) the two units shared a common wall; (3) she “never
created holes in the common wall . . . for any purpose, let
alone for installing listening devices to record, intercept,
wiretap or eavesdrop on Mr. Lath or conversations in [his]
unit, ” Def.'s Mem. of Law, Ex. A (doc. no.
101-2) ¶ 4; (4) she “never installed any
device in Mr. Lath's condominium unit or in the common
wall . . . to record, intercept, wiretap or eavesdrop on Mr.
Lath or conversations in [his] unit” Id.
¶ 5; and (5) she “never used or attempted to use
any device to record, intercept, wiretap or eavesdrop on Mr.
Lath or conversations in ...