United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge
this magistrate judge for consideration is Sanjeev Lath's
motion for leave to amend his First Amended Complaint
("FAC"). For the reasons that follow, Lath's
motion should be granted in part and denied in part.
action first arose out of an incident that occurred on
November 22, 2015, at the Oak Brook Condominium, where Lath
is a unit owner. At the time of the incident, Gail Labuda -
who has since died - was Lath's neighbor. Cynthia Camp is
Labuda's daughter, and Michael Camp is Cynthia's
husband. As described in Lath's proposed Second Amended
Complaint ("SAC"),  the November 22 incident unfolded
in the following manner.
Lath was entering his residence, Ms. Camp made a false report
to the Manchester Police Department ("MPD") that
Lath had kicked the door to Gail Labuda's
unit. After Ms. Camp called the police, an
altercation ensued between the Camps and Lath. During or
after the altercation, Mr. Camp recorded audio and video of
Lath on his smartphone. He did not have permission to do so.
response to Ms. Camp's call to the MPD, Officers Andrew
Choi and Austin Goodman arrived on the scene. According to
In his investigation report Choi stated that Labuda, Cynthia
Camp and Michael Camp watched Lath "through the peep
hole of Labuda's door. While she [Cynthia Camp] was
watching Lath come up the stairs, she watched as Lath reared
up his leg and forcefully kick[ed] the wall next to
Labuda and the Camps went on to allege that she "watched
Lath look down the stairs, smirk at someone else, and
violently kick the same spot again".
SAC (doc. no. 16-1) ¶¶ 19-20.
Lath sued the City of Manchester in the Hillsborough County
Superior Court asserting one or more claims under state law.
Then, he amended his complaint to assert claims against the
City for: (1) violating his rights under the Fourth Amendment
to the U.S. Constitution (Count 1); (2) trespassing (Count 2);
and (3) failing to preserve evidence pertaining to the
November 22 incident (Count 3). After Lath added his Fourth
Amendment claim, asserted through the vehicle of 42 U.S.C.
§ 1983, the City removed his action to this court. The
claims that the City removed are not under consideration in
this report and recommendation, which is why the court has
not recited the facts underlying them.
motion that is under consideration, Lath seeks to amend his
FAC to add: (1) a claim for malicious prosecution against the
City (Count 4); (2) a state-law claim for unlawful
wiretapping (Count 5); (3) a claim for invasion of privacy
(Count 6); (4) a claim for abuse of process (Count 7); (5) a
claim for malicious prosecution against Labuda's estate
(Count 8); and (6) a civil rights conspiracy claim under 42
U.S.C. § 1985 (Count 9). In addition to seeking to add a
new claim against the City arising out of the aftermath of
the November 22 incident, Lath also seeks to add claims to
his FAC that involve both new factual allegations and new
the circumstances of this case, Lath "may amend [his
FAC] only with the opposing party's written consent or
the court's leave." Fed.R.Civ.P. 15(a) (2) . That
said, leave to amend should be freely given "when
justice so requires." Id. "A proposed
amendment seeking to add new parties 'is technically
governed by [Federal Rule of Civil Procedure] 21, ' but
the 'same standard of liberality' applies under
either rule." Design Basics, LLC v. R.J. Moreau
Cmtys., LLC, No. 15-cv-309-LM, 2016 WL 1239256, at *1
(D.N.H. Mar. 29, 2016) (quoting Podkulski v. Doe,
No. 11-cv-102-JL, 2014 WL 5662780, at *1 (D.N.H. Nov. 3,
2014); citing Garcia v. Pancho Villa's of Huntington
Vill., Inc., 268 F.R.D. 160, 165 (E.D.N.Y. 2010)).
the standard of liberality established by Rule 15(a)(2),
"a district court may deny leave to amend when the
request is characterized by undue delay, bad faith, futility,
or the absence of due diligence on the movant's
part." Mulder v. Kohl's Dep't Stores,
Inc., 865 F.3d 17, 20 (1st Cir. 2017) (quoting
Nikitine v. Wilmington Trust Co., 715 F.3d 388, 390
(1st Cir. 2013); citing Palmer v. Champion Mortg.,
465 F.3d 24, 30 (1st Cir. 2006); Foman v. Davis, 371
U.S. 178, 182 (1962)) (internal quotation marks and brackets
omitted). In the context of Rule 15(a)(2), "futility
means that the complaint, as amended, would fail to state a
claim upon which relief could be granted, " Glassman
v. Computervision Corp., 90 F.3d 617, 623 (1st Cir.
plaintiff fails to state a claim upon which relief can be
granted when, with all reasonable inferences drawn in his
favor, the allegations in his complaint, taken as true, do
not present "sufficient factual material to state a
facially plausible claim." Vargas-Colon v. Fundaci6n
Damas, Inc., 864 F.3d 14, 23 (1st Cir. 2017) (citing
0'Shea ex rel. 0'Shea v. UPS Ret. Plan, 837
F.3d 67, 77 (1st Cir. 2016)). "[I]f the proposed
amendment would be futile because, as thus amended, the
complaint still fails to state a claim, the district court
acts within its discretion in denying the motion to
amend." Abraham v. Woods Hole Ocean. Inst., 553
F.3d 114, 117 (1st Cir. 2009) (quoting Bos. & Me.
Corp. v. Hampton, 987 F.2d 855, 868 (1st Cir. 1993)).
section examines the claims that Lath seeks to add one by one
and then concludes by listing all the claims that will be a
part of this action going forward if the report and
recommendation is adopted by the district judge.
Count 4, labeled Cause 5 in Lath's SAC, is a claim for
malicious prosecution against the City arising from the
Manchester City Solicitor's decision to nol pros a charge
of criminal mischief that had been brought against Lath as a
result of the incident on November 22, 2015.
the common law of New Hampshire, "[t]he four elements of
a claim for malicious prosecution are: (1) the plaintiff was
subjected to a criminal prosecution or civil proceeding
instituted by the defendant; (2) without probable cause; (3)
with malice; and (4) the prior action terminated in the
plaintiff's favor." Farrelly v. City of
Concord, 168 N.H. 430, 445 (2015) (citing Ojo v.
Lorenzo, 164 N.H. 717, 726 (2013)). With regard to the
[i]t is well settled that in the context of a malicious
prosecution claim, probable cause is defined as "such a
state of facts in the mind of the prosecutor as would lead a
[person] of ordinary caution and prudence to believe or
entertain an honest and strong suspicion that the person
arrested is guilty." Stock v. Byers, 120 N.H.
844, 846 (1980) (citing Cohn v. Saidel, 71 N.H. 558,
567 (1902)). The plaintiff is required to prove that the
defendant, when he initiated the underlying suit against the
plaintiff, "did not possess such knowledge of facts as
would lead a [person] of ordinary caution and prudence to
believe that [he or she] had a cause of action against the
plaintiff." Cohn, 71 N.H. at 567 (quotation omitted).
Paul v. Sherburne,
153 N.H. 747, 749-50 (2006)
(parallel citations omitted). In other words, probable cause
"depends not upon the accused's guilt or innocence
of the crime charged but upon the prosecutor's honest and
reasonable belief in such guilt at the time the prosecution
is commenced." Stock, 120 N.H. at 846 (citing MacRae
v. Brant,108 N.H. 177, 180 (1967)). As for the
relationship between the second and fourth elements, i.e.,