United States District Court, D. New Hampshire
N. LAPLANTE UNITED STATES DISTRICT JUDGE.
Leah Boyd's third action challenging the foreclosure on a
home in Somersworth, New Hampshire. Boyd and her mother, Glenda
Castleberry, proceeding pro se, sued the mortgage-holder and
servicer of the mortgage secured by her home, Wells Fargo
Bank, N.A., in Strafford County Superior Court. The defendant
removed the action to this court, see 28 U.S.C. § 1441,
which has jurisdiction under 28 U.S.C. § 1332
(diversity). The defendant then moved to dismiss Boyd's
complaint. Boyd filed no objection. The court dismisses
Boyd's complaint as barred by the doctrine of claim
preclusion and for failure to state a claim for relief, see
court set forth the facts germane to Boyd's claims, drawn
from her complaints and construed in her favor, see
Martino v. Forward Air, Inc., 609 F.3d 1, 2 (1st
Cir. 2010), in its previous two orders. It does not
repeat them here. Boyd pleads no new facts in her most recent
complaint. Instead, Boyd merely repeats claims already raised
before, and dismissed by, this court.
doctrine of claim preclusion (also called res judicata) bars
a party from relitigating claims that were or could have been
addressed in a prior action, and applies when: “(1)
there is a final judgment on the merits of an earlier action,
and (2) there is identity of the parties and (3) identity of
the claims in both suits.” Reppert v. Marvin Lumber
& Cedar Co., 359 F.3d 53, 56 (1st Cir. 2004). All
three elements are satisfied here.
parties in this action are identical to the parties in
Castleberry: Boyd and Castleberry, the plaintiffs in this
action, brought that suit against Wells Fargo, the defendant
in this action. Castleberry, 2017 DNH 240. The
claims in this action are also identical to the claims raised
in Boyd's 2017 action:
• Boyd alludes to loan modification discussions with
Wells Fargo. The court previously construed these allegations
as a claim for breach of the implied covenant of good faith
and fair dealing. See Castleberry, 2017 DNH 240,
5-6. Because the plaintiffs concede default, and because
“New Hampshire imposes no duty to forebear from
foreclosure in the face of default, ” Frangos v.
Bank of Am., N.A., No. 13-CV-472-PB, 2014 WL 3699490, at
*4 (D.N.H. July 24, 2014), the court dismissed that claim.
Castleberry, 2017 DNH 240, 6.
• Boyd also requests time to gather the paperwork
necessary to demonstrate that her interest in the property is
clear of Wells Fargo's mortgage interest. As the court
has previously explained in dismissing her prior complaints,
she took any interest in the property subject to the
mortgage. Id. at 6-7. Accordingly, the court
dismissed this claim, which the court construed as one to
quiet title to the property. Id. at 7.
the court dismissed these claims, with prejudice, under
Federal Rule of Civil Procedure 12(b)(6), after giving the
plaintiffs additional time to respond to Wells Fargo's
motion and to substantiate their claims, and after holding
oral argument, which Boyd attended. Castleberry,
2017 DNH 240. Dismissal for failure to state a claim operates
as a final adjudication on the merits for claim preclusion
purposes. See Acevedo-Villalobos v. Hernandez, 22
F.3d 384, 388 (1st Cir. 1994). Accordingly, the doctrine of
claim preclusion bars Boyd and Castleberry from relitigating
to state a claim for relief.
were Boyd's claims for breach of the implied covenant of
good faith and fair dealing and to quiet title not barred by
the doctrine of claim preclusion, she has yet again failed to
state a claim for relief for the reasons explained this
court's order in Castleberry, 2017 DNH 240.
also failed to state a claim for tortious interference with
contractual relations. Boyd alleges in this action that Wells
Fargo has notified her tenants about upcoming foreclosure
proceedings, causing her tenants to cease paying rent.
“To establish liability for tortious interference with
contractual relations, a plaintiff must show that: ‘(1)
the plaintiff had an economic relationship with a third
party; (2) the defendant knew of this relationship; (3) the
defendant intentionally and improperly interfered with this
relationship; and (4) the plaintiff was damaged by such
interference.” City of Keene v. Cleaveland,
167 N.H. 731, 738 (2015) (quoting Hughes v. N.H. Div. of
Aeronautics, 152 N.H. 30, 40-41 (2005)). “Mere
interference, in itself, is legally insufficient to state a
claim. Rather, ‘[o]nly improper interference is deemed
tortious in New Hampshire.'” Kilty v. Worth
Dev. Corp., 184 Fed.Appx. 17, 19 (1st Cir. 2006)
(quoting Roberts v. Gen. Motors Corp., 138
N.H. 532, 540 (1994)).
and Castleberry have not alleged any improper interference by
Wells Fargo. They allege only that Wells Fargo notified their
tenants about upcoming foreclosure proceedings
--notifications that Wells Fargo is obligated to provide
under N.H. Rev. Stat. Ann. § 479:25. Under these
circumstances, notifications mandated by New Hampshire law do
not constitute improper interference. Accordingly, the
plaintiffs have failed to state a claim for tortious
interference with contractual relations.