United States District Court, D. New Hampshire
ORDER AND MEMORANDUM
K. Johnstone, United States Magistrate Judge
plaintiff, Lisa Censabella, alleges that various employees of
the Town of Weare Police Department (“WPD”) and
members Board of Selectmen (“Board”) were
complicit in a conspiracy that ultimately resulted in
Censabella's termination as a WPD employee. She brings a
ten-count complaint alleging various violations of federal
and state law. Sheila Savaria, an officer with the WPD, is
named as a defendant in seven of those counts: Counts I, IV,
V, VI, VIII, IX, and X. Savaria moves to dismiss each count
pursuant to Federal Rule of Civil Procedure 12(b)(6) on the
basis that Censabella has failed to state a claim against her
upon which relief may be granted. Doc. no. 12. Censabella
objects, subject to one limited exception. Doc.no. 19. For
the reasons that follow, Savaria's motion is granted as
to all counts except Count X.
Rule 12(b)(6), the court must accept the factual allegations
in the complaint as true, construe reasonable inferences in
the plaintiff's favor, and “determine whether the
factual allegations . . . set forth a plausible claim upon
which relief may be granted.” Foley v. Wells Fargo
Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014) (citation
and quotation marks omitted). A claim is facially plausible
“when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Analyzing plausibility
is “a context-specific task” in which the court
relies on its “judicial experience and common
sense.” Id. at 679.
facts recited in this section are drawn from Censabella's
complaint and certain documents attached to Savaria's
motion to dismiss. When viewed in the light most favorable to
Censabella, the relevant facts are as follows.
was a police officer with the WPD. She was hired by the WPD
as a part-time officer in August 2009, transitioning to full
time in August 2010. Beginning in late-February 2013, Kenneth
Cox, then a sergeant with the WPD, and Kimberly McSweeney,
then the WPD's union steward, separately approached
Censabella and requested that she draft a statement of
misconduct against then-WPD lieutenant James Carney. Carney
had previously been Censabella's supervisor. Censabella
stated that she had not observed any misconduct by Carney and
refused both requests. Soon after these conversations, Carney
was placed on administrative leave, and the Town of Weare
(“Town”) issued a “no contact” order
prohibiting any WPD officer from communicating with Carney.
Carney ultimately left the WPD on or about July 1, 2013.
viewed Cox and McSweeney's actions to be part of a
conspiracy against Carney. She surmised that Savaria was part
of this conspiracy. Over the course of the next several
years, members of this conspiracy targeted Censabella due to
the perception that she remained close to and was
communicating with Carney. At one point, Cox informed
Censabella that Savaria, among others, believed that
Censabella was “leaking” information to Carney.
On another occasion, Carney approached Censabella at a bar
and Censabella started crying uncontrollably, telling Carney
that she could not speak with him because she had
“become the target” of several WPD officers,
including Savaria, for not filing a false report against
Carney. The behavior of the members of the conspiracy caused
Censabella emotional and psychological distress.
December 29, 2014, Censabella was placed on administrative
leave. The Board held a hearing the following week, after
which Censabella was suspended for thirty days and required
to sign a “second chance agreement.” See doc. no.
12-2. Censabella attributes this series of events to the
conspiracy against her.
her suspension, Censabella took a medical leave of absence
for hip replacement surgery. When she returned to work in May
2015, several WPD officers, including Savaria, orchestrated
“an onslaught of false allegations, untrue statements,
and . . . internal affairs investigations” against her.
Doc. no. 1-1 ¶ 121. As a result of these actions,
Censabella was again placed on administrative
leave. Censabella requested a hearing before the
Board and, in September 2015, filed charges of discrimination
against several WPD officers, including Savaria, with the New
Hampshire Commission for Human Rights (“NHCHR”)
and the United States Equal Employment Opportunity Commission
(“EEOC”). See doc. no. 12-4.
Board held a hearing on October 5, 2015. At this hearing,
Sean Kelly, then chief of the WPD, recommended that
Censabella be terminated. Kelly based this recommendation in
part upon a finding that Censabella had gone to the hospital
to arrest the driver of a motor vehicle involved in a
collision without proper authorization to make the arrest.
Though Censabella recalls McSweeney ordering her to make the
arrest while they were both at the scene of the collision,
McSweeney later prepared a written statement claiming that no
such order had been made. Savaria was also at the scene, but
not within earshot of Censabella and McSweeney. Savaria
nevertheless prepared a memorandum stating that she observed
McSweeney “ask Officer Censabella to meet Weare
Rescue at the Concord Hospital to investigate further, and
make an arrest if she felt she had probable cause to do
so” but that “[a]t no point did [Savaria] hear
Sergeant McSweeney tell Officer Censabella to go to the
hospital specifically to arrest [the driver].” Doc. no.
12-3 (hereinafter the “memorandum”).
employment with the WPD was terminated following the hearing.
This action followed.
brings claims against Savaria for: (1) interference with
contractual relationships (Count I); (2) civil conspiracy
(Count IV); (3) intentional infliction of emotional distress
(Count V); (4) negligent infliction of emotional distress
(Count VI); (5) violations of substantive and procedural due
process and freedom of speech (Count VIII); (6) conspiracy to
violate substantive and procedural due process and freedom of
speech (Count IX); and (7) aiding and abetting and
retaliation in violation of New Hampshire Revised Statutes
Annotated (“RSA”) § 354-A (Count X). Savaria
moves to dismiss each of these counts for failure to state a
claim. Censabella concedes that she has not stated a claim
for negligent infliction of emotional distress, see infra p.
12, but otherwise objects. The court considers each count in
Count I: Tortious Interference with Contractual
succeed on a claim for tortious interference with contractual
relations, a plaintiff must demonstrate that “(1) the
plaintiff had an economic relationship with a third party;
(2) the defendant knew of this relationship; (3) the
defendant intentionally and improperly interfered with this
relationship; and (4) the plaintiff was damaged by such
interference.” City of Keene v. Cleaveland,
167 N.H. 731, 738 (2015) (citation and quotation marks
omitted). When, as here, the plaintiff alleges interference
by a fellow employee with her employment contract,
“[the] employer may be a third party only if the fellow
employee was acting outside of the scope of his
employment.” O'Neill v. Valley Reg'l Health
Care, Inc., No. 00-cv-441-JD, 2001 WL 276968, at *3
(D.N.H. Mar. 21, 2001) (citing, e.g., Preyer v. Dartmouth
Coll., 968 F.Supp. 20, 26 (D.N.H. 1997)); see also
Balsamo v. Univ. Sys. of N.H., No. 10-cv-500-PB,
2011 WL 4566111, at *5 (D.N.H. Sept. 30, 2011).
raises three basic categories of allegations against Savaria.
First, she alleges that Savaria was, at least in part,
responsible for the “onslaught of false alelgations,
untrue statements, and . . . internal affairs
investigations” brought against Censabella. Doc. no.
1-1 ¶ 121. This allegation is insufficient to establish
a claim of tortious interference with contractual relations,
however, because Censabella has not elaborated upon the
nature of the purported allegations, untrue statements, and
internal investigations, let alone Savaria's involvement
in them. See Iqbal, 556 U.S. at 679 (noting that “naked
assertions devoid of any further factual enhancement”
are insufficient to defeat a motion to dismiss (brackets and
quotation marks omitted)).
Censabella's suggests that Savaria interfered with
Censabella's employment through her statements in the
memorandum. This argument, too, is unavailing because
Censabella has failed to allege any facts that would support
a reasonable inference was Savaria was operating outside of
the scope of here employment with the WPD when she wrote the
memorandum. See Aversa v. United States, 99 F.3d
1200, 1210 (1st Cir. 1996) (“An act is within the scope
of employment under New Hampshire law if it was authorized by
the employer or incidental to authorized duties; if it was
done within the time and space limits of the employment; and
if it was actuated at least in part by a purpose to serve an
objective of the employer.”). Indeed, there is every