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Torro v. Goldberg

United States District Court, D. New Hampshire

March 22, 2019

Joseph Torro
v.
Mark Goldberg, Marilyn Gordon, and the Town of Bradford

          ORDER

          Andrea K. Johnstone, United States Magistrate Judge.

         Joseph Torro brought suit alleging federal claims under 42 U.S.C. § 1983 and state law claims against Mark Goldberg, Marilyn Gordon, and the Town of Bradford. The claims arise from decisions not to grant Torro a certificate of occupancy for the Bradford Village Inn and not to grant him a tax abatement for the property. The defendants each move for judgment on the pleadings, asserting that the claims are barred by the statute of limitations and that Torro fails to allege actionable claims. In response, Torro objects to dismissal of only his equal protection claim and his state law claim against Gordon for violation of RSA 91-A and against Gordon and Goldberg for intentional infliction of emotional distress.[1]

         Standard of Review

         A motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) is addressed under the standard for a motion to dismiss under Rule 12(b)(6). Shay v. Walters, 702 F.3d 76, 82 (1st Cir. 2012). The court takes the plaintiff's factual allegations as true and draws reasonable inferences in the plaintiff's favor. Kando v. R.I. State Bd. Of Elections, 880 F.3d 53, 58 (1st Cir. 2018). Legal conclusions are not credited. Najas Realty, LLC v. Seekonk Water Dist., 821 F.3d 134, 140 (1st Cir. 2016). Taken in that light, the complaint must provide facts to support a claim that “is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         Background

         Torro alleges in the complaint that Marilyn Gordon owned and operated the Candlelite Inn as a “Bed and Breakfast” in Bradford, New Hampshire. Torro alleges that Gordon was romantically involved with Mark Goldberg, the Chief of the Bradford Fire Department, and that Goldberg lived at the Inn with Gordon.

         Gordon began to list the property for sale beginning in 2010, with listing prices of $500, 000 and $600, 000. In August of 2014, Torro made an offer on the property of $175, 000, which was rejected, and then an offer of $195, 000, which was also rejected. The Inn was then listed for sale at auction.

         Torro asked two of the Bradford selectmen if they knew any reason why the Inn could not be operated as a Bed and Breakfast. They denied knowing of any issues and said that he could continue to run the Inn as a Bed and Breakfast. Torro was the highest bidder at the auction, held in August of 2014, and paid $258, 000 for the Inn.

         After Torro took possession of the Inn, Gordon told him he could not continue to use the name “Candlelite Inn” without paying for the trade name. Torro declined to buy the name and renamed the Inn, “Bradford Village Inn.” Torro invested in improvements in the building, including new electrical wiring, smoke and carbon monoxide detectors, and new chimney liners and caps. The chimneys were tested for safety.

         The Bradford Code Enforcement Officer, Walter Royal, visited the building while the improvements were underway. While Torro was talking with Royal outside the Inn, Goldberg drove up and appeared to be angry as he approached Torro and Royal. Goldberg said that Torro could not open the Inn because of “all the deficiencies.” Torro asked why the deficiencies did not prevent Gordon from running the Inn, and Goldberg left.

         On October 6, 2014, Torro attended a board of selectmen meeting to explain the improvements he was making to the Inn. Goldberg also attended the meeting and said that because he knew Gordon he would not be able to do the fire safety inspection. Because Goldberg recused himself from the inspection, it was done by the state fire marshal, who did not issue a certificate of occupancy.

         In December of 2014, the Bradford Business Association planned to hold a luncheon at the Inn to welcome Torro to the Bradford Business Community. Gordon objected to holding the meeting at the Inn, and it was held elsewhere.

         On March 10, 2015, Goldberg sent an email to the state fire marshal's office to report a listing for the Inn on a rental website.[2] Goldberg asked if renting the Inn was legal. Gordon sent Goldberg an email about the rental listing the day before. The fire marshal had the matter investigated, and the investigator determined that because Torro was renting the entire building, not individual rooms within the building, that rental activity did not come under the Fire Code's restriction on a lodging or rooming house and was not prohibited by the fire codes.

         Torro and his wife petitioned Bradford for a tax abatement, which was being considered by the town in April or May of 2015. Torro alleges that the selectmen were prepared to grant him a fifty percent tax abatement on the Inn property. Torro further alleges that Gordon, who is the treasurer of the Town of Bradford, objected to the tax abatement and ...


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