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Bobbett v. City of Portsmouth

United States District Court, D. New Hampshire

March 29, 2018

Oneta Bobbett
v.
City of Portsmouth, et al.

          ORDER

          JOSEPH A. DICLERICO JR. UNITED STATES DISTRICT JUDGE.

         Oneta 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

         “The 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).

         Background[1]

         In late 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.

         Bobbett 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.

         At the 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 department.

         Following 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.”

         The day 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.

         In 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.

         The criminal charges against Bobbett were ultimately nol-prossed on August 27, 2015. The records of the charges were annulled on March 7, 2016.

         On 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 search warrant.

         Bobbett 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 divorce.

         Bobbett 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.

         Discussion

         Bernier 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 ...


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