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Lath v. PennyMac Loan Services LLC

United States District Court, D. New Hampshire

August 1, 2019

Sanjeev Lath
v.
PennyMac Loan Services LLC

          Sanjeev Lath, pro se

          Kevin P. Polansky, Esq.

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone United States Magistrate Judge

         Pro se plaintiff Sanjeev Lath moves to supplement his Amended Complaint. Doc. 29. Defendant PennyMac Loan Services objects. Lath'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 deny the motion.

         Background

         In his Amended Complaint, Lath alleged that he owned a condominium unit in a building in Manchester, New Hampshire. In 2017, during the period when Lath owned the unit, the City of Manchester found that the unit was in violation of several provisions of the City of Manchester Housing Code (the “Housing Code”). PennyMac foreclosed on the unit in March 2018.

         Lath brought claims for a declaratory judgment (Count 1); conversion (Counts 2 and 5); trespass (Count 3); and unjust enrichment (Count 4). PennyMac answered the complaint and filed a motion to dismiss as to Counts 1, 2, and 3. The motion to dismiss was granted as to Count 1 and denied as to Counts 2 and 3.

         In his proposed supplemented complaint Lath alleges that in October 2017, “the Manchester District Court issued a temporary order prohibiting Lath to reside at his unit” so long as there was a Housing Code prohibition on occupancy. Doc. 29-1 ¶ 19. Lath also alleges that he moved out of the unit after PennyMac foreclosed on it in March 2018.

         Lath alleges that he continued to pay assessment fees, which were charged to him by the unit's homeowners' association. In the proposed supplemented complaint, Lath contends that these payments were, in function, rent payments which created a landlord-tenant relationship between him and PennyMac. Doc. 29-1 ¶¶ 10-15. Based on that alleged landlord-tenant relationship, Lath seeks to supplement his Amended Complaint with new claims against PennyMac: breach of the covenant of quiet enjoyment and breach of the warranty of habitability (labelled together as Count 5)[1] and constructive eviction (Count 6).

         Discussion

         PennyMac objects to Lath's proposed supplement to the Amended Complaint on the grounds that it is futile and that it is procedurally improper.[2] Lath filed a reply.[3] As discussed further below, it is recommended that the district judge deny Lath's motion to supplement his complaint because it is futile.

         A. Standard of Review

         “On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.” Fed.R.Civ.P. 15(d). Leave to supplement pleadings should be freely given “absent an adequate basis to deny amendment such as futility, bad faith, undue delay or a dilatory motive.” Noonan v. Wonderland Greyhound Park Realty LLC, 2011 WL 1232990, at *1 (D. Mass. Mar. 30, 2011); see also Fed.R.Civ.P. 15(a).[4]

         A proposed supplemented complaint is futile if it would fail to state a claim upon which relief could be granted. See Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996). The court applies the same standard as it applies ...


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