United States District Court, D. New Hampshire
McCafferty United States District Judge
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
The Legal Standard
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.
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, at 15-80 (2d ed. 1993); Vargas v.
McNamara, 608 F.2d 15, 17 (1st Cir. 1979)).
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)).
proposed amendment would be futile because it does not assert
an actionable defamation claim. It fails to do so for two
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
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
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 ...