United States District Court, D. New Hampshire
Sanjeev Lath, pro se
P. Polansky, Esq.
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge
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.
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.
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.
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.
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) and constructive
eviction (Count 6).
objects to Lath's proposed supplement to the Amended
Complaint on the grounds that it is futile and that it is
procedurally improper. Lath filed a reply. As discussed
further below, it is recommended that the district judge deny
Lath's motion to supplement his complaint because it is
Standard of Review
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
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