Mogaji v. Chan et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Martha I.O. Mogaji
v. Civil No. 20-cv-249-JL
Opinion No. 2022 DNH 092
Tom Chan, Rosa Chan,
TRC Trust, Nan King Restaurant
ORDER
Plaintiff Martha I.O. Mogaji has sued her former landlords for damages following her
eviction from commercial premises she had leased. This order addresses the parties’ pretrial
motions to limit, include or exclude evidence. These rulings are made without prejudice to
revisiting particular issues in response to circumstances that might arise during trial.
Furthermore, these rulings are limited to grounds argued in the parties’ filings and at oral
argument. The court reserves the right to assess other factors at trial, such as hearsay,
authenticity, and best evidence, see Fed. R. Evid. 800 et seq., 900 et seq., and 1000 et seq., and
where appropriate, arguments and grounds not raised by each side.
A. Defendants’ Motion in Limine (Doc. No. 84)
1. Harm or loss to the plaintiff’s corporations
The defendants seek to exclude evidence of any loss suffered by any of the corporate
entities affiliated with the plaintiff that were tenants at the subject premises. This motion is
granted. The court has previously ruled that only the individual plaintiff, Martha I.O. Mogaji, is
a party to this suit. See March 31, 2021 Order (Doc. No. 30); June 7, 2021 Order (Doc. No. 37).
The plaintiff’s affiliated corporate entities are not parties here and have no entitlement to
recovery in this litigation. Evidence of loss suffered by those other entities is therefore irrelevant
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and inadmissible. See Fed. R. Evid. 401, 402; see also 28 U.S.C. § 1654 (parties can plead and
conduct “their own cases” in federal court); see also United States, ex rel. Busse v. United States,
Civ. No. 10-cv-321-JL, 2011 WL 941584, at *5 (“It is well established that the privilege to
represent oneself pro se provided by § 1654 is personal to the litigant and does not extend to
other parties or entities.”) (quoting Simon v. Hartford Life Ins. Co., 546 F.3d 661, 665 (9th Cir.
2008)).
2. Compliance with temporary order
The defendants seek to exclude evidence of harm or loss resulting from their alleged
failure to comply with a New Hampshire Circuit Court ex parte order granting the plaintiff seven
days to remove property from the premises. The issuing court later vacated that order and
dismissed the plaintiff’s case, finding it had issued the order without jurisdiction. (Doc. No. 58-
17). The New Hampshire Supreme Court affirmed the dismissal. (Doc. No. 58-12).
The plaintiff argues that the defendants were nonetheless required to comply with that
order between the time it was granted and the time it was vacated. This is incorrect. The
defendant’s motion is granted because the January 15, 2019 order was invalid from its inception,
rendering the order irrelevant to these proceedings. Fed. R. Evid. 401, 402. See Cooperman v.
MacNeil, 465 A.2d 879, 881 (N.H. 1983) (“any action taken by a court without jurisdiction is
void and may be challenged at any stage of the proceedings.”); In re Sculley, 890 A.2d 914, 915
(N.H. 2006) (vacating lower court’s order enforcing child support decree issued without
jurisdiction order of reversing declining to enforce);; Hussey v. Town of Barrington, 604 A.2d
82, 85 (N.H. 1982) (variance issued without jurisdiction was “invalid and of no effect; it
conferred no rights upon [the party receiving it], as it was void from the very date on which it
was issued.”).
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Accordingly, the temporary order is irrelevant and inadmissible. See Fed. R. Evid. 401,
402. The defendants’ motion to exclude evidence of harm or loss resulting from their alleged
failure to comply with that order is therefore granted.
3. Failure to cooperate in permitting/res judicata
The genesis of the underlying eviction proceedings in this case was the Town of Hudson
notifying the plaintiff that she was violating the town’s land use ordinances by, among other
things, operating a restaurant and erecting signs at the premises without proper permits. The
Town subsequently issued a stop-work order. The defendants commenced eviction proceedings
one week later, alleging that the defendants’ failure to procure proper permits materially violated
the parties’ lease agreement. (Doc. 58-5). In this suit, the plaintiff alleges that the defendants
breached their obligation to assist the plaintiff in procuring the appropriate permits.
The defendants argue that plaintiff’s claim is precluded by the doctrine of res judicata,
because: a) the state court awarded the defendants possession of the premises, implicitly finding
that the plaintiff breached the lease by failing to obtain the permits; and b) the plaintiff could
have raised the defendants’ lack of cooperation in the state court proceedings. See Sleeper v.
Hoban Family P'ship, 157 N.H. 530, 533 (2008) (“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.”)
Although the plaintiff asserted the defendants’ failure to cooperate as a counterclaim in
the eviction proceeding, (Doc. No. 58-8 at 4), it is not clear to this court that the state court had
the authority to rule on that counterclaim in the absence of a landlord’s claim for unpaid rent.
See Lukens v. Quigley, No. 2020-0013, 2021 WL 531956, at *5 (N.H. Jan. 15, 2021) (finding
that trial court erred by not dismissing tenants’ counterclaims where landlord did not assert claim
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for unpaid rent.). As the defendant has not briefed the issue of whether the cooperation issue
was, or could have been, litigated in the eviction proceeding, defendant’s motion to preclude this
issue on the basis of res judicata is denied.1
B. Plaintiff’s Motion in Limine (Doc. No. 85)
1. February 17, 2015 Unsigned Lease
The defendants’ exhibit list include a document described as “February 17, 2015 lease . .
. .” Doc. No. 87 ¶ 2a. The plaintiff asserts that this is an unsigned document. Pltf. Mot. (Doc.
No. 85) ¶ 1. Neither party has addressed, explained, or developed this issue in a way that allows
the court to resolve it prior to trial. The motion is therefore denied, without prejudice, pending
further argument from the parties.
2. Counterclaims to writ of possession and order vacating temporary order
The plaintiff seeks to exclude from evidence the counterclaims she asserted in the 2018
state court eviction proceedings, (Doc. No. 58-8) and the February 2019 state court order
vacating the January 2019 temporary order allowing the plaintiff seven days to move her
possessions from the leased premises. (Doc. No. 58-22). Subject to the defendants
demonstrating that the counterclaim and February 2019 order are relevant, Fed. R. Evid. 401,
402, plaintiff’s motion is denied. It is well-settled that the court can take judicial notice of
pleadings and orders in related cases. See E.I. Du Pont de Nemours & Co., Inc. v. Cullen, 791
F.2d 5, 7 (1st Cir. 1986); Fed. R. Evid. 201(b) (“The court may judicially notice a fact that is not
subject to reasonable dispute because it: (1) is generally known within the trial court's territorial
1The end result may be that the matter is res judicata, and that the defendants will
ultimately prevail on that basis. That ruling, however, will not be made without briefing as a
pretrial evidentiary issue, which would deprive the plaintiff the opportunity to present evidence
on the issue before it has been resolved.
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jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.).
3. Text messages
Plaintiff seeks to exclude certain text message exchanges that the defendants claim
occurred on the day plaintiff attempted to move her belongings from the leased premises. She
argues that the time on the messages does not “correspond to the occurring events.” On these
grounds, which appear to be relevance-based arguments as to weight (as opposed to hearsay or
best evidence), the plaintiff’s motion is denied. Subject to the defendant authenticating the
messages, see Fed. R. Evid. 901 et seq., the plaintiff’s argument is best addressed through cross-
examination of witnesses and non-evidentiary proceedings, such as closing argument.
4. Itemization of special damages
With respect to the defendants’ counterclaim for unpaid rent, the plaintiff argues that the
defendants’ failure to provide an itemized list of special damages precludes their damage claim.
See Fed. R. Civ. P. 26(a)(1)(A)(iii) (requiring a party seeking damages to provide a computation
of each category of damages). The motion is denied, as there is no prejudice to the plaintiff. The
amount claimed for unpaid rent is indicated in the defendant’s counterclaim (Doc. No. 16 ¶¶ 22-
23) and pretrial statement (Doc. No. 77). See Fed. R. Civ. P. 37(c)(1) (failure to disclose
requires exclusion of evidence unless failure is harmless or substantially justified.). The
plaintiff’s motion is therefore denied with respect to the defendants’ counterclaim for unpaid
rent.
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5. Attorney’s fees
Plaintiff seeks to exclude evidence of defendants’ attorney’s fees. The defendants have
indicated that they are not seeking attorneys’ fees. Def. Obj. (Doc. No. 93) ¶ 3. Therefore, this
motion is denied as moot.
C. Plaintiff’s motions to exclude witnesses (Doc. Nos. 86 and 90)
1. Marie Hamlin2
Plaintiff seeks to exclude the testimony of Marie Hamlin, a neighbor in the leased
premises. Plaintiff asserts no appropriate grounds for excluding the witness. The asserted
grounds – the witness’ prior statements and conduct – go to her credibility, rather than the
admissibility of her testimony. See, e.g., Fed. R. Evid. 401, 402, 608, 613. Credibility issues are
for the trier of fact to resolve. The plaintiff can explore the witness’ credibility through cross-
examination. Plaintiff’s motion is therefore denied as to Marie Hamlin.
2. Tom Chan
Plaintiff cites no specific reason for excluding the testimony of one of the defendants,
Tom Chan, other than a general complaint of “trial by ambush.” Pltf. Mot. (Doc. No. 90) ¶ 2.
The plaintiff can not credibly claim she is surprised by the testimony of a party defendant against
whom she brought this lawsuit. Plaintiff’s motion is denied as to Mr. Chan.
2The defendants’ pretrial statement (Doc. No. 76) includes witnesses named “Brenda
Hamelin” and “Marie Lucce.” The plaintiff’s motion (Doc. No. 86) seeks to exclude “Marie
Hamlin” (or “Hamling”). The defendants’ witness list (Doc. No. 87), includes only Marie
Lucce, a former tenant at the premises. The court assumes that the plaintiff’s motion is directed
at the proposed witness, Marie Lucce.
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3. Bruce Buttrick
Plaintiff seeks to exclude the testimony of the Town of Hudson’s Zoning and Code
Enforcement Officer, Bruce Buttrick. Plaintiff includes this witness in her claim of “trial by
ambush.” The court notes that Mr. Buttrick is included in defendants’ pretrial statement (Doc.
No. 76). Barring any argument that his name was withheld from a discovery response, this does
not constitute “trial by ambush.” The plaintiff’s motion to exclude Mr. Buttrick’s testimony is
therefore denied.
Conclusion
As set forth herein:
--the defendants’ motion in limine (Doc. No. 84) is granted in part and denied in part;
--the plaintiff’s motion in limine (Doc. No. 85) is granted in part and denied in part;
--the plaintiff’s motion in limine is granted in part and denied in part (Doc. No. 86); and
--the plaintiff’s motion to exclude witnesses (Doc. No. 90) is denied.
SO ORDERED.
______________________
Joseph N. Laplante
United States District Judge
Dated: August 3, 2022
cc: Martha I.O. Mogaji, pro se
Arthur O. Gormley, III, Esq.
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