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Lath v. Oak Brook Condominium Owners' Association

United States District Court, D. New Hampshire

January 25, 2018

Sanjeev Lath
v.
Oak Brook Condominium Owners' Association, Gerard Dufresne, and Betty Mullen

          AMENDED ORDER [1]

          Landya McCafferty United States District Judge.

         In document no. 152, the court gave Sanjeev Lath permission to file a motion for leave to amend his complaint to add two new claims against Gerard Dufresne. In document no. 165, the court gave Lath permission to file a motion for leave to amend his complaint to add: (1) claims for constructive eviction and conspiracy to evict against Dufresne and Betty Mullen; and (2) a claim for deprivation of food and medical necessities against the Manchester Police Department. Before the court are: (1) Lath's Motion for Leave to Amend, document no. 198; and (2) a pleading with no caption, document no. 212, in which Lath also seeks leave to amend his complaint. For the reasons that follow, Lath's motions are both denied.

         I. Document No. 198

         In document no. 198, Lath states that he is seeking to add two claims against Dufresne and a claim he labels Claim 17 against Mullen. However, the body of Lath's pleading says nothing about any claim against Mullen, so the court will consider only the two claims that Lath designates as Claim 11(A) and 12(A)-claims that the court designated as Count 11(b) and Count 12(b) in document no. 152.

         A. Claim 11(A)/Count 11(b)

         In document no. 152, the court permitted Lath to move for leave to amend his complaint “to include: [a] Claim for Invasion of privacy by opening/mishandling Lath's mail, ” Pl.'s Req. (doc. no. 140) at 1.

         Under the circumstances of this case, Lath “may amend [his complaint] only with the opposing party's written consent or the court's leave.” Fed.R.Civ.P. 15(a)(2). Leave to amend should be freely given “when justice so requires.” Id. Even so, “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). For the purposes of Rule 15(a)(2), “‘[f]utility' 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) (citing 3 Moore's Federal Practice ¶ 15.08[4], at 15-80 (2d ed. 1993); Vargas v. McNamara, 608 F.2d 15, 17 (1st Cir. 1979)).

         A complaint fails to state a claim upon which relief can be granted when the allegations in it, and all reasonable inferences that support the plaintiff's claim, are taken as true but still do not present “sufficient factual material to state a facially plausible claim.” Vargas-Colón v. Fundación Damas, Inc., 864 F.3d 14, 23 (1st Cir. 2017) (citing O'Shea ex rel. O'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)).

         Lath is not entitled to amend his complaint to add Claim 11(A)/Count 11(b) because the amendment would be futile due to Lath's failure to state a claim upon which relief can be granted. The court begins by outlining the relevant substantive law, and then describes Lath's proposed invasion of privacy claims.

         The New Hampshire Supreme Court has not written at length on the tort of invasion of privacy, but it has explained that

[t]he four kinds of invasion comprising the law of privacy include: (1) intrusion upon the plaintiff's physical and mental solitude or seclusion; (2) public disclosure of private facts; (3) publicity which places the plaintiff in a false light in the public eye; (4) appropriation, for the defendant's benefit or advantage, of the plaintiff's name or likeness.

Hamberger v. Eastman, 106 N.H. 107, 110 (1964). To state a claim for public disclosure of private facts, which seems to be the theory underlying Lath's proposed invasion of privacy claim, a plaintiff must adequately allege that the defendant gave “publicity to a matter concerning the private life” of the plaintiff and that “the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.” Restatement (Second) of Torts, § 652D (1977).[2]

         The first purported invasion on which Lath bases his claim is that Dufresne submitted to this court, as an exhibit to a pleading, “various documents and phone records of Lath.” Pl.'s Mot. for Leave to Amend (doc. no. 198) ¶ 1. Lath does not further identify or describe the private facts he charges Dufresne with disclosing nor does he identify the submission in which those facts were allegedly disclosed.

         The second purported invasion on which Lath bases his claim is that Dufresne submitted to this court, as an exhibit to a pleading, the following exchange of text messages between two unidentified people:

Is your dad ok? He is not answering his phone . . . he always answers . . . just making sure he is ok.
Yah he's probably napping he went out with my mom this afternoon.
Ah ok . . . was just a lil worried. Yah thanks for checking in.

Def.'s Resp., Ex. 15 (doc. no. 69-1), at 20 of 22.

         The third purported invasion on which Lath bases his claim is that Dufresne submitted to this court, as an exhibit to a pleading, three emails that Lath sent to a person named “Jerry.” Def.'s Resp., Ex. 14-N (doc. no. 68-28), at 2 of 2. Context indicates that the “Jerry” to whom Lath sent the emails at issue is Gerard Dufresne. Here is the full content of those three emails:

I don't want to submit this [a letter requesting information from the Oak Brook Condominium Owners' Association that had been signed by Lath, Dufresne, and Barbara Belware]. Not ...

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