Athens v. Primmer Piper Eggleston & Cramer PC

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Favorite Things, a d/b/a
Natasha Athens
v. 	Case No. 21-cv-1025-SM
Primmer, Piper,
Eggleston & Cramer, PC
REPORT AND RECOMMENDATION
Plaintiff Favorite Things, a d/b/a Natasha Athens, has sued
New Hampshire law firm Primmer, Piper, Eggleston & Cramer, PC,
alleging tortious and criminal conduct in connection with its
defense of a lawsuit filed against a client of the firm.1 	See
Complaint (Doc. No. 1). 	The complaint is before this magistrate
judge for preliminary review, pursuant to 28 U.S.C. § 1915(e)(2)
and LR 4.3(d)(1). 	For the reasons that follow, the district
judge should dismiss this lawsuit for lack of subject matter
jurisdiction over plaintiff’s civil claims and for failure to
state a claim with respect to her allegations of criminal
behavior.
1 See Athens v. Bank of America, No. 21-cv-748-SM (D.N.H.
filed Sept. 3, 2021; notice of interlocutory appeal (Doc. No.
59) filed Nov. 30, 2021).
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Preliminary Review Standard
The magistrate judge conducts a preliminary review of
pleadings which are filed in forma pauperis. 	See LR 4.3(d).
The magistrate judge may recommend to the district judge that
one or more claims be dismissed if, among other things, the
court lacks jurisdiction, a defendant is immune from the relief
sought, or the complaint fails to state a claim upon which
relief may be granted. 	See 28 U.S.C. § 1915(e)(2); LR 4.3(d).
In conducting its preliminary review, the court construes pro se
complaints liberally. 	See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam). 	The complaint must contain “sufficient
factual matter, accepted as true, to ‘state a claim to relief.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
The court treats as true all well-pleaded factual allegations,
and construes reasonable inferences in plaintiff’s favor. 	See
Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir.
2011).
Background
Plaintiff claims that while defending of a prior lawsuit
against a client of the defendant, an attorney with the
defendant firm “put privileged and protected records on file for
no reason” with “the intent to destroy the Plaintiff, give out
her private data, expose her Social Security number and banking
data . . . .” Complaint (Doc. No. 1) ¶ 1-2. 	She asserts state-
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law claims of defamation, negligent and intentional infliction
of emotional distress, trespass to chattel and criminal
defamation. 	Id. at 1. 	Plaintiff seeks $25 million in damages.
Id. at 6.
Analysis
A. Criminal Allegation
To the extent the plaintiff asserts that the defendant
committed criminal defamation in violation of N.H. Rev. Stat
Ann. § 644:1, the district judge should dismiss that claim for
failure to state a cause of action, as there exists no private
right of action for enforcement of criminal laws. 	See Linda
R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“a private citizen
lacks a judicially cognizable interest in the prosecution or
nonprosecution of another”).
B. 	Subject Matter Jurisdiction
“‘Federal courts are courts of limited jurisdiction,’
possessing ‘only that power authorized by Constitution and
statute.’” 	Gun v. Minton, 568 U.S. 251, 256 (2013) (quoting
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994). 	The plaintiff has the burden to establish the court's
jurisdiction. 	Calderón–Serra v. Wilmington Trust Co., 715 F.3d
14, 17 (1st Cir. 2013).
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To invoke this court's subject matter jurisdiction,
plaintiff must allege either that this action raises a federal
question, in that the cause of action arises under federal law,
or that this court has diversity jurisdiction over the matter.
See 28 U.S.C. § 1331 (federal question) and § 1332 (diversity).
To establish diversity jurisdiction, plaintiff must assert that
the parties are citizens of different states, see id. at §
1332(a)(1), and that the amount in controversy in this action
exceeds $75,000. 	See id. at § 1332(b).
Plaintiff here invokes only New Hampshire law, claiming
that the defendants acted tortiously and criminally. Thus, the
only basis upon which the court could exercise subject matter
jurisdiction is through diversity.
To establish diversity jurisdiction, plaintiff must show
that the parties are citizens of different states and that the
amount in controversy is more than $75,000. 	See 28 U.S.C. §
1332. 	“[D]iversity jurisdiction requires ‘complete diversity of
citizenship as between all plaintiffs and all defendants.’ 	This
means that diversity jurisdiction does not exist where any
plaintiff is a citizen of the same state as any defendant.”
Alvarez–Torres v. Ryder Mem'l Hosp., Inc., 582 F.3d 47, 53–54
(1st Cir. 2009) (citations omitted). 	Here, the face of the
complaint indicates that both plaintiff and defendant law firm
are New Hampshire citizens. 	These allegations fail to satisfy
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the requirement of diversity jurisdiction. 	The district judge
should therefore dismiss the remainder of the complaint due to
lack of subject matter jurisdiction, without prejudice to being
filed in an appropriate court.
Conclusion
For the reasons set forth herein, the undersigned
recommends that the district judge assigned to this case dismiss
the state law tort claims, without prejudice, for lack of
subject matter jurisdiction, and dismiss the criminal claim for
failure to state a claim for which relief can 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). 	The fourteen-day period may be extended
upon motion. 	Failure to file 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
December 6, 2021
cc: 	Favorite Things, a d/b/a
Natasha Athens
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