Lath v. City of Manchester

          ORDER

          Landya McCafferty United States District Judge

         Before the court is Sanjeev Lath's motion for leave to amend his First Amended Complaint ("FAC") to add a claim for defamation against Gerard Dufresne. Dufresne has not objected. For the reasons that follow, Lath's motion is denied.

         I. The Legal Standard

         Under the circumstances of this case, Lath "may amend [his complaint] only with [Dufresne's] written consent or the court's leave." Fed.R.Civ.P. 15(a)(2). Dufresne has not given his written consent, so Lath may amend his complaint only with leave of the court.

         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 ¶ l5.O8[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-Colon v. Fundaci6n 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)).

         II. Discussion

         Lath's proposed amendment would be futile because it does not assert an actionable defamation claim. It fails to do so for two different reasons.

         Under New Hampshire law, defamation consists of a "fail[ure] to exercise reasonable care in publishing, without a valid privilege, a false and defamatory statement of fact about the plaintiff[s] to a third party." Gould v. No. Human Servs., No. 2015-0696, 2016 WL 5831602, at *2 (N.H. Aug. 22, 2016) (quoting Indep. Mech. Contractors v. Gordon T. Burke & Sons, 138 N.H. 110, 118 (1993)) (brackets in Gould).

         Lath bases his proposed defamation claim on the following statements, which appear in a motion to dismiss that Dufresne filed in this case:

Lath created a false persona named Vachon by which Dufresne opines are effects of extenuating circumstances of events created by Lath, which are the results of, Capgras and/or Fregoli Delusions, and/or Delusional Misidentification Syndrome (DMS), from Dufresne removing himself from Lath's control when Dufresne was a tireless Co-Plaintiff with Lath, to Lath not being able to relinquish that control.

.....

Lath's psychiatric-neurological linguisticwordsmithing response. . . . Dufresne knowing Lath's psychiatric-neurological linguistic wordsmithing, obtained proof that was verified by the Superior Court manager of the records department, that the docket record for September 12, 2017, was there was no hearing scheduled, or held, for Lath on that date. . . Lath's ...