United States District Court, D. New Hampshire
A. DICLERICO JR. UNITED STATES DISTRICT JUDGE.
Bobbett brings suit against the City of Portsmouth and two
members of its police department, Kristyn Bernier and Michael
Leclair, alleging federal and state law claims arising from a
criminal investigation and prosecution against her. The
defendants move for judgment on the pleadings on three of the
state law claims, Counts II, IV, and V. Bobbett objects.
standard of review of a motion for judgment on the pleadings
under Federal Rule of Civil Procedure 12(c) is the
same as that for a motion to dismiss under Rule
12(b)(6).” Frappier v. Countrywide Home Loans,
Inc., 750 F.3d 91, 96 (1st Cir. 2014) (internal
quotation marks omitted). Under that standard, the court will
dismiss a claim “only if, taking all the
complaint's well-pled allegations as true and viewing the
other facts in the light most favorable to the plaintiff, the
complaint does not allege ‘enough facts to state a
claim to relief that is plausible on its face.'”
Portugues-Santana v. Rekomdiv Int'l Inc., 725
F.3d 17, 25 (1st Cir. 2013) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “While [the
plausibility] standard does not impose a ‘probability
requirement, ' it does require ‘more than a sheer
possibility that a defendant has acted
unlawfully.'” Germanowski v. Harris, 854
F.3d 68, 72 (1st Cir. 2017) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). “Engaging in
this plausibility inquiry is ‘a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.'” Id.
(quoting Iqbal, 556 U.S. at 679).
2013, Bobbett purchased a ring from Jathar Jewelers with her
credit card. Following that purchase, Bobbett noticed two
charges on her credit card statement for $1, 850, the price
of the ring. Although one of the purchases was the one that
Bobbett had authorized from Jathar Jewelers, Bobbett had not
authorized the other charge, which was from a merchant named
the Face Café.
disputed the Face Café charge with her credit card
company, who advised her to report the charge to the police.
Following that advice, Bobbett reported the Face Café
charge as fraudulent to Officer Todd Goodwin of the
Portsmouth Police Department.
time Bobbett made her complaint to Goodwin, she was in a
contentious divorce proceeding with her husband, Jonathan
Bobbett (“Jonathan”). Jonathan was a prominent
local businessman, who had personal ties to the Portsmouth
Police Department. Jonathan had socialized with members of
the police department, taken members on trips to Hong Kong,
Russia, and Las Vegas, and made charitable donations to the
Bobbett's report, Detective Kristyn Bernier of the
Portsmouth Police Department began investigating Bobbett
based on the theory that Bobbett had falsely reported the
Face Café transaction as fraudulent. In connection
with that investigation, Bernier executed an affidavit in
support of an application for a search warrant to seize and
search Bobbett's cell phone. On January 15, 2014, Bernier
received the warrant, which authorized police to search
Bobbett's phone “for subscriber and electronic
communication documentation specific to this case.” The
warrant also provided police the authority to access, view,
and reproduce data from all items referred to in the search
warrant “as necessary for the investigation and
prosecution of this matter from October 20, 2013 through
January 15, 2014.”
after Bernier obtained the warrant, she met with Bobbett at
the police station. Bobbett believed that the purpose of the
meeting was for Bernier to provide an update about the
investigation concerning the Face Café transaction.
During the meeting, however, Bernier executed the search
warrant and confiscated Bobbett's phone.
April of 2014, Bernier sought, and received, an arrest
warrant for Bobbett based on the crimes of providing a false
report to law enforcement, making unsworn falsifications, and
tampering with witnesses and informants. In September of
2014, a Rockingham grand jury returned an indictment against
Bobbett on the witness tampering count. In addition, the
Rockingham County Attorney filed informations charging
Bobbett with providing a false report to law enforcement and
making unsworn falsifications.
criminal charges against Bobbett were ultimately nol-prossed
on August 27, 2015. The records of the charges were annulled
on March 7, 2016.
October 6, 2014, a guardian ad litem report in the
Bobbetts' divorce proceeding stated that Jonathan had
expressed concerns that Bobbett was moving to Atlanta.
Bobbett had never discussed anything with Jonathan about
moving to Atlanta. The phone seized by Bernier, however,
contained text messages between Bobbett and a man she used to
date, in which that man urged her to move to Atlanta to be
with him. Those text messages were from the summer of 2013,
which was outside of the time limitation established in the
alleges that the police gave Jonathan this information, which
they obtained through an illegal search of her phone. Bobbett
further alleges that Bernier and the Portsmouth Police
Department never actually suspected her of criminal
wrongdoing, but rather started the criminal investigation as
a means of obtaining information to aid Jonathan in the
brings a claim against Bernier and Leclair under 42 U.S.C.
§ 1983 for violation of her constitutional rights (Count
I). In addition, Bobbett brings a claim for malicious
prosecution against Bernier and Portsmouth (Count II), and
claims for abuse of process (Count III), intrusion upon
seclusion (Count IV), and public disclosure of private facts
(Count V), against Bernier, Leclair, and Portsmouth.
and Portsmouth move for judgment on the pleadings on
Bobbett's claims for malicious prosecution against them.
Bernier, Leclair, and Portsmouth move for judgment on the
pleadings on the claims against them for intrusion upon