Lath v. Manchester, NH, City of

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Sanjeev Lath
v. 	Civil No. 17-cv-75-JL
Opinion No. 2018 DNH 099
City of Manchester, et al.
MEMORANDUM ORDER
Pro se plaintiff Sanjeev Lath alleges that two Manchester
Police Department officers illegally entered his property when
responding to a 911 call. 	Lath brings a federal claim against
the City of Manchester under 42 U.S.C. § 1983 for violations of
his Fourth Amendment rights (Count 1), and state-law claims
against the City for common-law trespass (Count 2) and negligent
failure to preserve recordings of the 911 call (Count 3).1 	Lath
also has state-law claims pending against Cynthia and Michael
Camp.2
1 The operative complaint in this case is Lath’s First Amended
Complaint (doc. no. 16-1), as narrowed by Magistrate Judge
Johnstone in her October 4, 2017 Report and Recommendation (doc.
no. 30) (Johnstone, M.J.). 	See also Nov. 7, 2017 Order
(approving October 4, 2017 Report and recommendation)(doc. no.
31). 	Per that Report and Recommendation, this action comprises
five counts, including the three against the City addressed in
this Memorandum Order. 	See Oct. 4, 2017 Report and
Recommendation (doc. no. 30) at 20-21.
2 The Camps moved to dismiss these claims. 	See doc. no. 46. 	In
a recent Memorandum Order, the court denied that motion,
Case 1:17-cv-00075-JL Document 78 Filed 05/15/18 Page 1 of 12

2
In light of Lath’s § 1983 claim, the court has subject-
matter jurisdiction under 28 U.S.C. §§ 1331 (federal question)
and 1367 (supplemental jurisdiction). 	The City moves for
judgment on the pleadings on Counts 1 and 3. 	See Fed. R. Civ.
P. 12(c).
As the pleadings are not closed, the court construes the
City’s motion as a motion to dismiss for failure to state a
claim. 	See Fed. R. Civ. P. 12(b)(6). 	The court grants the
motion as to Count 1, concluding that Lath has failed to allege
that the officers’ conduct was the result of a City policy or
custom. 	As Count 1 is the only federal claim pending in this
action, the court declines supplemental jurisdiction over the
remaining state-law claims against the City, and accordingly
dismisses them without prejudice.
The court declines to dismiss Lath’s state-law claims
against Cynthia and Michael Camp. 	With the City no longer a
party, Lath has alleged facts in his First Amended Complaint
that, when taken at face value, confer diversity jurisdiction
over those claims. 	However, as the court has an independent
obligation to ensure that there is a substantive basis for
subject-matter jurisdiction, the court directs Lath show cause,
concluding that Lath had minimally pleaded his state-law claims
against the Camps. 	See 2018 DNH 098.
Case 1:17-cv-00075-JL Document 78 Filed 05/15/18 Page 2 of 12

3
within 30 days of the date of this Memorandum Order, that the
amount in controversy between he and the Camps actually exceeds
$75,000. 	See 28 U.S.C. § 1332(a).
Applicable legal standard
Under Rule 12(c), a party may move for judgment on the
pleadings “after the pleadings are closed — but early enough not
to delay trial . . . .” 	For Rule 12(c) purposes, pleadings are
“closed” once the defendant has filed its answer. 	Rezende v.
Ocwen Loan Servicing, LLC, 869 F.3d 40, 42 n. 3 (1st Cir. 2017).
As the City filed its present motion in lieu of filing an answer
to Lath’s First Amended Complaint, the pleadings are not closed
with respect to Lath’s claims against the City. 	The court
accordingly interprets the City’s motion as a motion to dismiss
for failure to state a claim under Rule 12(b)(6). 	See Laura v.
Great Lakes Higher Education Guar. Corp., 2018 DNH 023, 7 n. 17.
This does not significantly alter the court’s analysis, however,
as “the two motions are ordinarily accorded much the same
treatment . . . .” 	Aponte–Torres v. Univ. of Puerto Rico, 445
F.3d 50, 54 (1st Cir. 2006).
“A pleading that states a claim for relief must contain,”
among other things, “a short and plain statement of the claim
showing that the pleader is entitled to relief.” 	Fed. R. Civ.
P. 8(a)(2). 	To satisfy this requirement, a plaintiff must
Case 1:17-cv-00075-JL Document 78 Filed 05/15/18 Page 3 of 12

4
include “factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” 	Martinez v. Petrenko, 792 F.3d 173, 179
(1st Cir. 2015). 	In ruling on a motion to dismiss under Rule
12(b)(6), the court accepts as true all well-pleaded facts set
forth in the complaint and draws all reasonable inferences in
the plaintiff’s favor. 	See, e.g., Martino v. Forward Air, Inc.,
609 F.3d 1, 2 (1st Cir. 2010). 	In light of Lath’s pro se
status, the court liberally construes his pleadings. 	See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
Background3
On November 22, 2015, Lath was entering his residence with
his friend, Barbara Belware, when Cynthia Camp called 911 and
falsely reported that Lath had kicked a door.4 	Two Manchester
Police Department officers responded to the call.5 	The officers
knocked on the door of Lath’s unit.6 	As Lath opened the door,
one of the officers stepped inside Lath’s unit.7 	Lath asked the
3 The court gleans the facts in this section from Lath’s First
Amended Complaint (doc. no. 16-1).
4 First Amend. Compl. (doc. no. 16-1) ¶ 13.
5 Id. ¶ 15.
6 Id.
7 Id. ¶ 16.
Case 1:17-cv-00075-JL Document 78 Filed 05/15/18 Page 4 of 12

5
officer to leave his unit several times, but each time the
officer refused.8
While inside Lath’s unit, the officer demanded that Lath
remove his shoe and provide it to the officer.9 	In response,
Lath asserted his Fourth Amendment right to be free from
unreasonable searches and seizures.10 	The officer informed Lath
that he would break down Lath’s door if he had to return with a
warrant to seize Lath’s shoe.11
Analysis
A. 	Section 1983 claim
In Count 1, Lath brings a claim against the City under
§ 1983, alleging that the officers’ actions violated his Fourth
Amendment rights. 	The City contends that this claim must be
dismissed because Lath fails to allege that the officers’
conduct was caused by a municipal policy or custom, as required
by Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978). 	The
court agrees.
A municipality can only be held liable under § 1983 for
constitutional violations committed by its employees “if the
8 Id.
9 Id. ¶ 17.
10 Id. ¶ 18.
11 Id. ¶ 19.
Case 1:17-cv-00075-JL Document 78 Filed 05/15/18 Page 5 of 12

6
violation occurs pursuant to an official policy or custom.”
Welch v. Ciampa, 542 F.3d 927, 941 (1st Cir. 2008) (citing
Monell, 436 U.S. at 694). 	For a municipality to be held liable,
a plaintiff’s injury must result “from either an officially
sanctioned policy or from a custom or practice that is so well-
settled and widespread that the policymaking officials can be
said to have either actual or constructive knowledge of it yet
did nothing to end the practice.” 	Wood v. Hancock Cty.
Sheriff's Dep't, 354 F.3d 57, 64 (1st Cir. 2003) (ellipsis,
internal quotation marks, and citation omitted). 	Thus, a
plaintiff must show that, “through its deliberate conduct, the
municipality was the ‘moving force’ behind the injury alleged.”
Haley v. City of Boston, 657 F.3d 39, 51 (1st Cir. 2011)
(emphasis and citation omitted).
Here, Lath has not alleged that the officers were acting
pursuant to a City policy or custom when they responded to the
call on November 22, 2015. 	Indeed, Lath makes no mention of a
policy or custom (or alleges facts from which such a policy or
custom could be inferred) anywhere in his First Amended
Complaint. 	As such, Lath has failed to allege a claim against
the City under § 1983. 	See Massó-Torrellas v. Municipality of
Toa Alta, 845 F.3d 461, 469 (1st Cir. 2017) (a plaintiff must
adequately allege a municipal policy or custom in order to
survive a Rule 12(b)(6) motion).
Case 1:17-cv-00075-JL Document 78 Filed 05/15/18 Page 6 of 12

7
Lath raises a litany of arguments in his objection to the
City’s motion. 	First, Lath relies on York v. Story, 324 F.2d
450 (9th Cir. 1963), to contend that he need not allege a policy
or custom to state a viable claim against the City under § 1983.
Even setting aside that York is non-binding precedent that
predates Monell by nearly 15 years, Lath’s reliance is
misplaced. 	York only addressed individual, rather than
municipal, liability. 	See id. at 451. 	Thus, York has no
bearing on the present analysis.
Next, Lath appears to contend that he has stated a viable
claim against the City under Bivens v. Six Unknown Named Agents
of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). 	This
argument, too, is unavailing. 	In Bivens, the Supreme Court held
that a plaintiff may recover damages for Fourth Amendment
violations by federal officials. 	See id. at 396-97. 	As Lath
solely alleges violations by municipal officers, Bivens plainly
does not apply.
Finally, Lath argues that he has adequately stated a claim
in Count 1 because New Hampshire is a notice-pleading
jurisdiction, and Count 1 puts the City on notice of the claim
against it. 	Lath is incorrect. 	The Federal Rules of Civil
Procedure govern proceedings in federal court. 	See Granny Goose
Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No.
70, 415 U.S. 423, 438 (1974). 	As discussed supra, Lath has
Case 1:17-cv-00075-JL Document 78 Filed 05/15/18 Page 7 of 12

8
failed to plead a § 1983 claim against the City under those
rules.
For these reasons, the court grants the City’s motion with
respect to Count 1.
B. 	State-law claims
As noted, Lath also brings state-law claims against both
the City and Cynthia and Michael Camp. 	In his First Amended
Complaint, Lath invokes the court’s supplemental jurisdiction
under 28 U.S.C. § 1367 with respect to those claims. 	When, as
here, all federal claims are dismissed, however, the usual
course is to decline to exercise jurisdiction over the remaining
state-law claims. 	See Wilber v. Curtis, 872 F.3d 15, 23 (1st
Cir. 2017). 	Indeed, the First Circuit has held that “when all
federal claims have been dismissed, it is an abuse of discretion
for a district court to retain jurisdiction over the remaining
pendent state law claims unless doing so would serve the
interests of fairness, judicial economy, convenience, and
comity.” 	Id. (internal quotation marks and citations omitted).
Concluding that none of these factors weighs heavily in favor of
retaining jurisdiction here, the court declines supplemental
jurisdiction over the state-law claims. 	The court accordingly
dismisses the remaining claims against the City without
prejudice.
Case 1:17-cv-00075-JL Document 78 Filed 05/15/18 Page 8 of 12

9
The court does not dismiss the state-law claims against the
Camps at this time. 	Though there is no longer a compelling
reason to retain supplemental jurisdiction over those claims,
Lath has alleged facts in his First Amended Complaint that, when
taken at face value, establish diversity jurisdiction over the
claims under 28 U.S.C. § 1332(a). 	Under that statute, a court
has diversity jurisdiction over a claim if there is complete
diversity between the plaintiffs and the defendants and the
amount in controversy exceeds $75,000. 	See id. § 1332(a)(1);
see also Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005). 	As
Lath alleges that he resides in Manchester, New Hampshire, and
that the Camps both reside in Kittery, Maine,12 there is complete
diversity between Lath and the Camps. 	Additionally, in his
prayer for relief Lath requests “[t]wo million dollars in
compensatory, enhanced compensatory, incidental, consequential
and liquidated damages for each and every cause of action[].”13
This exceeds the amount in controversy required for diversity
jurisdiction. 	In light of these assertions, and given Lath’s
pro se status, the court declines to dismiss his claims against
the Camps at present.
12 See First Amend. Compl. (doc. no. 16-1) §§ 1, 3, 4.
13 Id. at 35 (formatting altered).
Case 1:17-cv-00075-JL Document 78 Filed 05/15/18 Page 9 of 12

10
Still, “federal courts have an independent obligation to
ensure that they do not exceed the scope of their
jurisdiction . . . .” 	See Henderson ex rel. Henderson v.
Shinseki, 562 U.S. 428, 434 (2011). 	“[A] plaintiff’s general
allegation of damages that meet the amount requirement suffices
unless questioned by the opposing party or the court.” 	Spielman
v. Genzyme Corp., 251 F.3d 1, 5 (1st Cir. 2001) (citation
omitted). 	“Once the damages allegation is challenged, however,
the party seeking to invoke jurisdiction has the burden of
alleging with sufficient particularity facts indicating that it
is not a legal certainty that the claim involves less than the
jurisdictional amount.” 	Id. (citation and internal quotation
marks omitted). “A party may meet this burden by amending the
pleadings or by submitting affidavits.” 	Id. (citation and
internal quotation marks omitted).
The court is not convinced that Lath has a good faith basis
to request $2 million in damages for each of his claims against
the Camps. 	Indeed, the court is skeptical, given the nature of
those claims, that there is any way Lath will be able to recover
more than $75,000 in damages from the Camps. 	The court
accordingly directs Lath to show cause, within 30 days of the
date of this Memorandum Order, that this jurisdictional minimum
is met.
Case 1:17-cv-00075-JL Document 78 Filed 05/15/18 Page 10 of 12

11
As noted, the First Circuit permits a party to meet its
burden with respect to the jurisdictional amount by amending its
pleadings or submitting affidavits. 	See Spielman, 251 F.3d at
5. 	Lath has already sought to amend his complaint twice in this
court14 and at least once in state court,15 and the court is not
inclined to permit yet another amendment. 	Instead, the court
directs Lath to support his damages claim by affidavit. 	See id.
Lath’s supplemental filings to establish jurisdiction shall be
limited to ten-double spaced pages, plus any attached
affidavits. 	The Camps may, but are not required to, respond to
Lath’s supplemental filings within 15 days of the date it is
submitted. 	No replies or surreplies will be permitted.
The parties are ordered to refrain from filing any other
materials until the court determines whether it has jurisdiction
over this action. 	The parties likewise need not respond to any
14 Lath attempted to file an amended complaint once the City
removed this matter to this court. 	See doc. no. 4. 	Magistrate
Judge Johnstone recommended that this complaint be dismissed
without prejudice, as Lath had not sought leave to file that
complaint. 	See May 9, 2017 Report and Recommendation (doc. no.
8) at 3-4 (Johnstone, M.J.). 	This court adopted that
recommendation, see June 1, 2017 Order (doc. no. 15), and Lath
subsequently sought leave to file the First Amended Complaint
currently pending, see doc. no. 16.
15 The materials attached to the City’s notice of removal
indicate that Lath had already filed a First Amended Complaint
in state court before this action was removed. 	See doc. no. 1-
1.
Case 1:17-cv-00075-JL Document 78 Filed 05/15/18 Page 11 of 12

12
motions or other filings that are currently pending until this
issue is resolved. 	The court will deny or strike, as may be
appropriate, any filings unrelated to this jurisdictional issue
that are submitted while this issue remains pending.
Conclusion
For the reasons set forth above, the City’s motion to
dismiss is GRANTED as to Count 1. 	As this was the only federal
claim in this case, the court declines supplemental jurisdiction
over Lath’s pendent state-law claims. 	The court accordingly
dismisses Lath’s remaining claims against the City without
prejudice. 	The court does not dismiss Lath’s state-law claims
against Cynthia and Michael Camp, however, because Lath’s First
Amended Complaint, when taken at face value, appears to
establish diversity jurisdiction over those claims. 	Instead,
the court directs Lath to show cause, in the manner set forth
above, that the amount in controversy between he and the Camps
actually exceeds $75,000.
SO ORDERED.
____________________________
Joseph N. Laplante
United States District Judge
May 15, 2018
cc: 	Sanjeev Lath, pro se
Samantha Dowd Elliott, Esq.
Robert J. Meagher, Esq.
Sabin R. Maxwell, Esq.
Case 1:17-cv-00075-JL Document 78 Filed 05/15/18 Page 12 of 12