McCormick v. Wakefield, NH, Town of et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Kimberly McCormick
v. Civil No. 22-cv-87-LM-AJ
Town of Wakefield
Estate of Brenda Beckwith
REPORT AND RECOMMENDATION
Plaintiff Kimberly McCormick has sued the estate of her
late mother, Brenda T. Beckwith, and the Town of Wakefield, New
Hampshire (“the Town”). Ms. McCormick claims that the Town
violated New Hampshire law by failing to send her notice of a
property tax deficiency that eventually led to the Town
executing a foreclosure deed against the property. She also
claims the Town violated her Fourth Amendment rights when it
unlawfully seized personal property and injured her while doing
so. The Town has filed a motion for judgment on the pleadings.
(Doc. No. 24). See Fed. R. Civ. P. 12(c). Pursuant to LR 72.1,
the motion has been referred to the undersigned Magistrate Judge
for a report and recommendation. For the reasons that follow,
the district judge should grant the defendant’s motion.
Standard of Review
The standard of review for a motion for judgment on the
pleadings filed under Rule 12(c) is the same as the standard for
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a Rule 12(b)(6) motion: the complaint must plead “enough facts
to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (motion to
dismiss standard); see Doe v. Brown Univ., 896 F.3d 127, 130
(1st Cir. 2018) (motion for judgment on the pleadings standard).
The Court “take[s] the well-pleaded facts and the reasonable
inferences therefrom in the light most favorable to the
nonmovant.” Doe, 896 F.3d at 130 (quoting Kando v. R.I. State
Bd. Of Elections, 880 F.3d 53, 58 (1st Cir. 2018)). Finally, as
in the case of a motion under Rule 12(b)(6), the court is
permitted to take judicial notice of public records and consider
documents referred to in the complaint or integral to the
plaintiff's claims. See Curran v. Cousins, 509 F.3d 36, 44 (1st
Cir. 2007) (citing Watterson v. Page, 987 F.2d 1, 3 (1st Cir.
1993)). When such documents contradict an allegation in the
complaint, the document “trumps the allegation[ ].” O'Brien v.
Wilmington Tr. Nat’l Ass’n, 506 F. Supp. 3d 82, 90 (D. Mass.
2019) (citation omitted). This includes “documents from prior
state court adjudications.” Giragosian v. Ryan, 547 F.3d 59, 66
(1st Cir.2008) (quotation marks omitted).1
1 Although Ms. McCormick commenced this litigation pro se,
she has since retained counsel, who filed an objection to the
instant motion on her behalf (Doc. No. 25). The objection,
however, does not respond to the substance of the Town’s legal
arguments. Instead, the objection is based solely on the
argument that the Town’s reference to, and inclusion of, state-
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Factual Background
The remaining claims in this lawsuit2 arise from distinct
factual circumstances. The court, therefore, describes them
separately.
A. Tax and Foreclosure
Ms. McCormick asserts that the Town failed to properly
notify her and Ms. Beckwith, the co-owner of the property at
issue, of real estate tax arrearages. Subsequently, Ms.
McCormick alleges, the Town improperly noticed and executed a
foreclosure deed for the unpaid taxes. Compl. (Doc. No. 1) at
4.3
B. Seizure of Property
Next, Ms. McCormick alleges that in June 2019, in
connection with a domestic violence case and related restraining
order, Town police officers searched her home. Compl. (Doc. No.
court decisions in support its motion is improper. This
argument is misplaced. See Giragosian, 547 F.3d at 66 (“Matters
of public record [that a court can consider in deciding a Rule
12(b)(6) motion] ordinarily include documents from prior state
court adjudications.”) (cleaned up).
2 The court previously dismissed a claim against the Town
pursuant to Rule 12(b)(6) (Doc. No. 23).
3 In her claim against Ms. Beckwith, which is not at issue
in this motion, Ms. McCormick alleges that Ms. Beckwith failed
to pay taxes on the subject property even though Ms. McCormick
had provided money to Ms. Beckwith to make the payments.
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1). The officers seized BB guns, ammunition, an axe, and a
pocket knife from her. Ms. McCormick claims that she was
injured by the officers during the seizure and that she was
unlawfully arrested in connection with the search. Id. A state-
court judge ordered the return of her personal property in
February 2020. See Compl. Add. (Doc. No. 1-1) at 20-23.
Legal Analysis
The Town asserts separate bases for dismissal of Ms.
McCormick’s two claims. First, the Town argues that Ms.
McCormick’s tax-related claim is precluded by the doctrine of
res judicata. Second, the Town argues that Ms. McCormick has
failed to allege facts sufficient to support a claim of
municipal liability for the allegedly improper property seizure.
The court addresses the arguments in turn.
A. Tax Claim (Res Judicata)
“Under federal law, a state court judgment receives the
same preclusive effect as it would receive under the law of the
state in which it was rendered.” Dillon v. Select Portfolio
Servicing, 630 F.3d 75, 80 (1st Cir. 2011). New Hampshire law
provides that:
Res judicata precludes the litigation in a later case
of matters actually decided, and matters that could
have been litigated, in an earlier action between the
same parties for the same cause of action. For the
doctrine to apply, three elements must be met: (1) the
parties must be the same or in privity with one
another; (2) the same cause of action must be before
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the court in both instances; and (3) a final judgment
on the merits must have been rendered in the first
action.
Brooks v. Trs. of Dartmouth Coll., 161 N.H. 685, 690 (2011). The
defendant bears the burden of demonstrating that res judicata
applies. Dillon, 630 F.3d at 80.
It is virtually beyond dispute that Ms. McCormick’s claims
related to the foreclosure have already been litigated in state
court and are barred by the doctrine of res judicata. “In order
for res judicata to apply to a finding or ruling, there must be
‘a final judgment by a court of competent jurisdiction [that] is
conclusive upon the parties in a subsequent litigation involving
the same cause of action.’” In re Donovan, 137 N.H. 78, 81
(1993) (quoting Marston v. United States Fidelity & Guar. Co.,
135 N.H. 706, 710 (1992)). “The term ‘cause of action’ means the
right to recover, regardless of the theory of recovery.” Eastern
Marine Constr. Corp. v. First Southern Leasing, 129 N.H. 270,
274 (1987) (citations omitted).
All of the elements of res judicata are satisfied with
respect to the foreclosure. First, Ms. McCormick previously
filed a lawsuit against the Town in the New Hampshire Superior
Court on November 16, 2016. See Def. Mem., Exh. A (Doc. No. 24-
2). Next, the state court action and the current lawsuit contest
the same issue --foreclosure of the same property. Compare
Compl. (Doc. No. 1) at 4 (alleging that “[t]he Town . . . did
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not notify all owners of the property of late taxes” and
auctioned off more property than it was entitled to) with
Superior Court Order (Doc. No. 24-2) (describing causes of
action as improper notification of arrearages and execution of
tax deed and noting claim for lost acreage had been brought and
abandoned). Finally, the state court action was resolved on the
merits in the Town’s favor after a bench trial in Superior Court
and dismissal of Ms. McCormick’s appeal by the New Hampshire
Supreme Court. See Def. Mot., Ex. A (Doc. No. 24-2) at 1.
Accordingly, Ms. McCormick’s claim relating to the
foreclosure of the Wakefield property are barred by res judicata
and should be dismissed.4
B. Fourth Amendment Claim
Ms. McCormick’s property seizure claim alleges that her
Fourth Amendment rights were violated. The Fourth Amendment
provides that, in relevant part, “[t]he right of the people to
be secure in their persons, houses, papers, and effects, against
4 The fact that Ms. McCormick abandoned the “lost acreage”
claim prior to judgment in the Superior Court does not preclude
application of res judicata to that claim in this court, as the
doctrine also applies to claims that “could have been brought”
in the earlier proceeding. See Bel-Air Nursing & Rehab Ctr.,
Inc. v. Town of Goffstown, New Hampshire, No. 16-CV-259-JL, 2018
WL 264091, at *6 (D.N.H. Jan. 2, 2018) (“res judicata bars
claims that could have been raised in the earlier proceeding,
including [a] federal constitutional claim.”) (emphasis in
original) (citing Brooks, 161 N.H. at 690)).
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unreasonable searched and seizures shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be
searched and the persons or things to be seized.” U.S. Const.
amend. IV. Pursuant to 42 U.S.C. § 1983, a plaintiff may bring
a claim alleging the “deprivation of any rights, privileges, or
immunities secured by the Constitution and [federal laws].”
Ms. McCormick seeks to hold the Town liable for alleged
Fourth Amendment violations related to the seizure of her
personal property. Though municipalities can be held liable
under section 1983, they may be held legally responsible only
for “their own illegal acts” and may not be held vicariously
liable for their employees’ purported misconduct. Pembaur v.
City of Cincinnati, 475 U.S. 469, 479 (1986) (citing Monell v.
Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978)).
Under Monell, a municipality may only be held liable for
the allegedly unconstitutional acts of an employee when the
denial of the plaintiff’s constitutional rights occurred as a
result of “the execution of a government’s policy or custom,
whether made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy . . . .” Id. at
694-95. As the First Circuit Court of Appeals has observed,
“[h]olding the city liable only if the injury results from an
officially sanctioned policy or custom, exempts the municipality
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from responsibility for the aberrant and unpredictable behavior
of its employees while making it liable for acts and conduct
rightly attributable to the city.” Bordanaro v. McLeod, 871 F.2d
1151, 1155 (1st Cir. 1989) (citations omitted). Ultimately,
to state an actionable claim against a municipality under
section 1983, a plaintiff must establish a “direct causal link
between a municipal policy or custom, and the alleged
constitutional deprivation.” City of Canton v. Harris, 489 U.S.
378, 385 (1989). See, e.g., B.A. v. Manchester Sch. Dist. SAU
37, No. 15-CV-433-JD, 2017 WL 3049424, at *7 (D.N.H. July 18,
2017) (facts alleged support claim against School District for
failure to train a staff member accused of mistreating
students).
Here, Ms. McCormick’s filings contain no facts to support a
claim that the Town’s official municipal policy or custom caused
her alleged Fourth Amendment injuries when officers allegedly
conducted an unlawful search and seizure, and injured her in the
course of an arrest, as Monell requires. Accordingly, the
Fourth Amendment claim against the Town should be dismissed.
Conclusion
Based on the foregoing, the Town’s motion for judgment on
the pleadings (Doc. No. 24) should be granted. Any objections
to this Report and Recommendation must be filed within fourteen
days of receipt of this notice. See Fed. R. Civ. P. 72(b)(2).
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The fourteen-day period may be extended upon motion. Only those
issues raised in the objection(s) to this Report and
Recommendation are subject to review in the district court. See
Sch. Union No. 37 v. United Nat'l Ins. Co., 617 F.3d 554, 564
(1st Cir. 2010). Any issues not preserved by such objection(s)
are precluded on appeal. See id. Failure to file any objections
within the specified time waives the right to appeal the
district court's Order. See Santos-Santos v. Torres-Centeno,
842 F.3d 163, 168 (1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
January 22, 2024
cc: Counsel of Record.
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