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Lath v. City of Manchester

United States District Court, D. New Hampshire

October 4, 2017

Sanjeev Lath
v.
City of Manchester, New Hampshire

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone United States Magistrate Judge

         Before 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.

         Background

         This 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"), [1] the November 22 incident unfolded in the following manner.

         While 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.[2] 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.

         In response to Ms. Camp's call to the MPD, Officers Andrew Choi and Austin Goodman arrived on the scene. According to Lath:

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's door".
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.

         Initially, 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);[3] (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.

         In the 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 defendants.

         Discussion

         Under 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)).

         Notwithstanding 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. 1996) .

         A 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)).

         This 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.

         A. Count 4

         Proposed 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.

         Under 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 second element,

[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., ...


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