United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
K. JOHNSTONE, UNITED STATES MAGISTRATE JUDGE
plaintiff Sanjeev Lath filed this suit for a declaratory
judgment (Count 1) and state claims of conversion (Counts 2
and 5), trespass (Count 3), and unjust enrichment (Count 4).
Defendant PennyMac Loan Services LLC filed a motion to
dismiss Counts 1, 2, and 3. Doc. 15. Lath opposes dismissal.
PennyMac's motion has been referred to the undersigned
magistrate judge for a report and recommendation. As
discussed below, the court recommends that the district judge
grant the motion in part and deny it in part.
Judgment on the Pleadings
PennyMac filed its answer before filing the motion to
dismiss, the motion to dismiss is construed as a motion for
judgment on the pleadings under Federal Rule of Civil
Procedure 12(c). See e.g., Weeks v. Five Bros.
Mortg. Servs. & Securing, Inc., 2014 WL
1379335, at *3 (D.N.H. April 9, 2014). Rule 12(c) implicates
the pleadings as a whole, as opposed to merely the complaint
as in a Rule 12(b)(6) motion. Aponte-Torres v. Univ. of
P.R., 445 F.3d 50, 54-55 (1st Cir. 2006). Thus, to the
extent the facts alleged in the answer do not contradict the
facts in the complaint, the court may consider them.
Goodman v. Williams, 287 F.Supp.2d 160, 161 (D.N.H.
motion for a judgment on the pleadings is used to attack the
plausibility of a complaint, the motion is evaluated under
the same standard as a motion to dismiss under Federal Rule
of Civil Procedure 12(b)(6). Diaz-Nieves v. United
States, 858 F.3d 678, 689 (1st Cir. 2017); Grajales
v. P.R. Ports Auth., 682 F.3d 40, 44 (1st Cir. 2012).
Judgment on the pleadings, therefore, is appropriate if the
facts from the pleadings, taken in the light most favorable
to the nonmovant, fail to allege a plausible entitlement to
relief. Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26,
29 (1st Cir. 2008) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555-58 (2007)). The court,
however, disregards conclusory allegations. Manning v.
Boston Med. Ctr. Corp., 725 F.3d 34, 43 (1st Cir. 2013).
The complaint must allege “factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged[.]” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556).
Facts and Documents Outside the Pleadings
filed 54 exhibits with his objection to PennyMac's
motion. When evaluating a motion for judgment on the
pleadings, “[t]he court may supplement the facts
contained in the pleadings by considering documents fairly
incorporated therein and facts susceptible to judicial
notice.” R.G. Fin. Corp. v.
Vergara-Nuñez, 446 F.3d 178, 182 (1st Cir. 2006).
The court may also consider “documents the authenticity
of which are not disputed by the parties, ” official
public records, documents central to the plaintiff's
claim, and documents sufficiently referred to in the
complaint. Watterson v. Page, 987 F.2d 1, 3-4;
see also Curran v. Cousins, 509 F.3d 36, 44 (1st
the exhibits Lath attached to his objection do not meet that
standard or are not relevant to PennyMac's motion. Having
reviewed the exhibits, the court has found that only one
exhibit, doc. no. 16-25, Exhibit 25, which is a photograph of
the abandonment notice that Lath alleges PennyMac posted to
the door of his condominium unit, is both relevant to the
issues before the court and warrants consideration under
owned a condominium unit in a “secured building”
in Manchester, New Hampshire. Doc. 8 (“Compl.”)
¶¶ 10, 29, 39. He alleges that PennyMac was the
mortgagee on the unit between 2015 and 2017.
Id. ¶ 2.
February 2, 2017, Lath applied for a “Certificate of
Compliance” under the Housing Code of the City of
Manchester (“Housing Code”) to rent out the
unit. Id. ¶ 10. The unit was inspected the same
February 17, 2017, a violation notice was issued. Lath's
unit was found in violation of Housing Code §§
150.050 (smoke and fire damage to interior surfaces), 150.084
(plumbing fixtures in need of repair), 150.088 (missing
kitchen appliances), and 150.090 (missing smoke and carbon
monoxide detector). Doc. 8-1, Compl. Exh. 1. A reinspection
was scheduled for April 12, 2017.
27, 2017,  with his apartment still not in compliance
with the Housing Code, Lath rented his unit to Peter
Fiasconaro. However, on July 30, Manchester removed
Fiasconaro “and imposed a health code violation”
on the unit. Compl. ¶ 16. The city Health Department
issued an abatement letter to Lath on August 4, 2017. The
abatement letter stated as follows:
You are hereby notified that a condition . . . has been
identified and is existent on the premises at [Lath's
condominium unit] in the form of a broken sewer pipe(s) and
resultant discharge of effluent into [the unit below] and
potentially other units. This was determined during a site
visit on July 31, 2017 and similar notice was given to the
occupant of the unit at the time of the visit.
You are hereby ordered to abate the nuisance caused as a
result of the violation, through repair of faulty plumbing,
obtaining a valid plumbing permit as required by the City of
Manchester Planning and Community Development Department. . .
. Until the violation is corrected and per the statute, no
person shall occupy the dwelling, unless for the purposes of
abating the violation.
. . .
Additionally, per discussion with City of Manchester Planning
and Community Development Department, a Certificate of
Compliance may be required when renting ...