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Wight v. D'Amante Pellerin Associates

United States District Court, D. New Hampshire

November 27, 2018

Phillip Wight et al.
D'Amante Pellerin Associates et al.

          Phillip Wight, pro se.

          All Clean and Green Recovery Services, LLC, pro se.

          Andru H. Volinsky, Esq., Hilary Holmes Rheaume, Esq., T. David Plourde, Esq., Francis Charles Fredericks, Esq., Karyl Roberts Martin, Esq., Jeanine M. Girgenti, Esq., Russell F. Hilliard, Esq., Brooke Lois Lovett Shilo, Esq., Elizabeth M. Lacombe, Esq., Kathryn M. Bradley, Esq.


          Paul Barbadoro, United States District Judge.

         This action stems from a business venture that ended under less than amicable circumstances. Pro se plaintiff Phillip Wight has sued ten defendants, including his former business partner, his partner's lawyers, and various state and federal entities. Construed generously, the complaint attempts to assert claims for negligence under state law and discrimination in violation of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act. Five defendants have moved to dismiss the complaint. I dismiss the complaint in its entirety without prejudice but give Wight thirty days to file an amended complaint.

         I. BACKGROUND

         Wight has bipolar disorder and has been receiving supplemental security income (“SSI”) for most of his life. In 2010, he partnered with Keith Richard to establish a company called Big Green Recycling LLC (“Big Green”). The two agreed that Wight would own 40% and Richard 60% of the company. Richard's lawyers at D'Amante Pellerin Associates (“D'Amante”) helped execute the requisite documents to form Big Green. Wight became Vice President and Director of Operators, with authority to manage money in Big Green's accounts at TD Bank.

         In an effort to grow the business, Wight sought to participate in the Plan to Achieve Self-Support (“PASS”), a program that the Social Security Administration (“SSA”) offers to disabled individuals. The agency denied his request. He also approached the New Hampshire Vocational Rehabilitation Bureau and the New Hampshire Small Business Development Center to seek financial support and access to unidentified programs and services to which he was allegedly entitled because of his disability. The Vocational Rehabilitation Bureau refused to help him and although staff from the Small Business Development Center met with Wight on several occasions, they were unable to help him because he did not have the company's business records. Undeterred, Wight worked hard and grew a successful business.

         After Wight operated the company for a year and a half, Richard orchestrated a corporate takeover. He locked Wight out of Big Green's offices, cancelled a business credit card, and disabled Wight's access to the company's accounts at TD Bank. Wight sought legal assistance from the Disability Rights Center and New Hampshire Legal Aid, but they refused to help him.

         Wight then engaged a private attorney, who helped him negotiate a settlement with Richard, who was then represented by D'Amante. In a settlement agreement, Wight accepted $20, 000 and reimbursement of his attorney's fees in exchange for Wight's ownership share in the company and his agreement not to solicit Big Green's customers for one year. Wight alleges that because of his disability he did not know that the company was worth significantly more than he was paid, and that Richard and D'Amante “took advantage” of him. See Compl. ¶ 25. Big Green received a grant for $60, 000 after the settlement.

         Wight used the proceeds of the settlement to form a new company, All Clean and Green Recovery Services LLC (“All Clean”). Wight could not open business accounts at TD Bank without management approval because he had been taken off Big Green's accounts.

         Once again, Wight went to the SSA's PASS program, the Vocational Rehabilitation Bureau, and the Small Business Development Center for help with his new business, but they all refused him. Wight then sought assistance from Senator Jeanne Shaheen's office. Her staff contacted the Small Business Development Center on Wight's behalf, which again did not help him. Next, Wight went to then-Governor Maggie Hassan's office. Her staff promised to help him many times but, in the end, all they did was tell Wight that the Small Business Development Center would be looking into his request.

         Wight alleges that all defendants knew he was disabled and that they discriminated against him based on his disability. As a result, he has suffered mental breakdowns and depression.

         Wight also claims that the SSA “took money out of [his] checks for 30 years.” Compl. ¶ 36. In an affidavit, a representative of the SSA has stated that, over the years, the agency made 15 separate determinations to assess Wight for overpayments and recouped approximately $5, 000 from his benefits. Doc. No. 8-1 ¶ 6(f). The SSA has no records that Wight filed any administrative appeals related to those recoupments. Id. According to its records, the SSA sent Wight information about the PASS program, but he never submitted the requisite forms or filed any administrative appeals relating to his eligibility for the program. Id. ¶ 6(b).


         The SSA has moved to dismiss based on Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction. Other defendants challenge the complaint's sufficiency under Rule 12(b)(6). I address the standard under each rule in turn.

         A. Rule 12(b)(1) Motion to Dismiss

         When subject-matter jurisdiction is challenged under Rule 12(b)(1), “the party invoking the jurisdiction of a federal court carries the burden of proving its existence.” Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995) (internal quotation marks omitted). Thus, if a plaintiff sues in federal court, the burden to establish jurisdiction is on the plaintiff. See Id. When the plaintiff instead files suit in state court and the defendant removes the action to federal court, the onus shifts to the defendant to demonstrate that federal jurisdiction exists. Danca v. Private Health Care Sys., Inc., 185 F.3d 1, 4 (1st Cir. 1999). If federal jurisdiction is challenged after removal is accomplished, however, the burden is assigned to the party asserting jurisdiction at that time. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006); Culhane v. Aurora Loan Servs. of Neb., 708 F.3d 282, 289 (1st Cir. 2013).

         The SSA removed this case to federal court and is now challenging subject-matter jurisdiction because Wight has failed to exhaust his administrative remedies. Although Wight has not responded to the SSA's motion in writing, at a hearing held on November 5, 2018 (“November hearing”), he indicated that he wished to press his claims in this court. Accordingly, it is incumbent on Wight to demonstrate that the court has jurisdiction over his claims.

         In determining whether Wight has met his burden, I must construe the complaint liberally, treat all well-pleaded facts as true, and view them in the light most favorable to Wight. Fothergill v. United States,566 F.3d 248, 251 (1st Cir. 2009). I may also consider extrinsic evidence, such as exhibits and affidavits, without converting the motion to dismiss into one for summary judgment. See, e.g., Carroll v. United States,661 ...

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