United States District Court, D. New Hampshire
Phillip Wight et al.
D'Amante Pellerin Associates et al.
Phillip Wight, pro se.
Clean and Green Recovery Services, LLC, pro se.
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.
MEMORANDUM AND ORDER
Barbadoro, United States District Judge.
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
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.
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.
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.
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.
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.
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
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.
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).
STANDARD OF REVIEW
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
12(b)(1) Motion to Dismiss
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.
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.
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 ...