Lath v. Manchester Police Department et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Sanjeev Lath
v. Civil No. 16-cv-534-LM
Opinion No. 2018 DNH 079
BMS Cat and Amica
Mutual Insurance Company
O R D E R
This case now consists of nine claims against two
defendants, including four claims against BMS Cat (“BMS”), a
company with which Sanjeev Lath contracted in the aftermath of a
fire at his unit in the Oak Brook Condominium. Before the court
is Lath’s motion for summary judgment on Cause 22, which is a
claim for common law conversion.1 BMS objects on both procedural
and substantive grounds. For the reasons that follow, Lath’s
motion for summary judgment is denied.
I. The Legal Standard
A movant is entitled to summary judgment where he “shows
that there is no genuine dispute as to any material fact and
[that he] is entitled to judgment as a matter of law.” Fed. R.
1 That claim is based upon Lath’s allegations that during
the performance of the services for which he had contracted,
BMS: (1) disposed of some of his belongings without his
permission; and (2) refused to return other belongings to him
until he paid an outstanding bill.
Case 1:16-cv-00534-LM Document 301 Filed 04/17/18 Page 1 of 12

2
Civ. P. 56(a). Moreover, under the Federal Rules of Civil
Procedure, in summary judgment practice: (1) “[a] party
asserting that a fact cannot be or is genuinely disputed must
support the assertion by . . . citing to particular parts of
materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations,
stipulations . . ., admissions, interrogatory answers, or other
materials,” Fed. R. Civ. P. 56(c)(1)(A); and (2) “[a] party may
object that the material cited to support or dispute a fact
cannot be presented in a form that would be admissible in
evidence,” Fed. R. Civ. P. 56(c)(2). Finally, in this court,
“[a] memorandum in support of a summary judgment motion shall
incorporate a short and concise statement of material facts,
supported by appropriate record citations, as to which the
moving party contends there is no genuine issue.” LR 56.1(a).
A similar requirement applies to memoranda in opposition to
summary judgment motions. See LR 56.1(b).
II. Discussion
BMS argues that Lath’s motion should be denied because: (1)
his memorandum does not comply with Local Rule 56.1(a); (2) none
of the exhibits he attached to his motion are authenticated by
affidavit or otherwise, which means that he has produced no
admissible evidence to support his argument for summary
Case 1:16-cv-00534-LM Document 301 Filed 04/17/18 Page 2 of 12

3
judgment; (3) even if the court were to accept Lath’s evidence,
he cannot establish each of the elements of his conversion claim
by conclusive evidence; and (4) Lath’s failure to pay BMS for
the services it provided gave BMS the legal right to retain
Lath’s property. In response, Lath concedes that “the
requirements of [L]ocal Rule 56.1(a) [were] missed in oversight
by Plaintiff,” doc. no. 260 at 7, but he does not attempt to
cure that oversight in his reply. In any event, before making
his concession regarding Local Rule 56.1(a), Lath challenges the
format in which BMS provided discovery, attacks two of the
affidavits that BMS submitted in support of its objection, and
criticizes BMS’s Local Rule 56.1(b) statement for being
insufficiently specific.
BMS’s first argument for denying Lath’s motion carries the
day. As Lath concedes, his memorandum does not include the
statement of facts required by Local Rule 56.1(a). “Ordinarily,
the appropriate remedy for such an omission is a denial of the
motion.” Maryea v. Baggs, No. 13-cv-318-LM, 2016 WL 1060226, at
*2 n.3 (D.N.H. Mar. 15, 2016). The reason for that general rule
is readily apparent; a Local Rule 56.1(a) statement provides the
baseline for the legal analysis necessary to rule on a motion
for summary judgment, and without a proper starting point, any
consideration of the merits would, necessarily, have speculative
quality, amounting to little more than an academic exercise. In
Case 1:16-cv-00534-LM Document 301 Filed 04/17/18 Page 3 of 12

4
any event, under the circumstances of this case, the court can
see no reason for deviating from the normal course.
Accordingly, Lath’s motion for summary judgment is denied
because his memorandum of law does not include a Local Rule
56.1(a) statement. That said, in the interest of aiding the
parties by addressing issues that are adequately developed, and
with the hope that guidance on these procedural issues will
allow the parties to focus on substantive legal issues, the
court turns to several matters that the parties have raised in
their summary judgment briefing.
A. Lath’s Evidence
In its objection, BMS argues that in addition to failing to
produce a proper Local Rule 56.1(a) statement, Lath also failed
to produce any properly authenticated evidence in support of his
motion for summary judgment. The court agrees.
As BMS notes, Lath supports his summary judgment motion
with 20 exhibits, mostly documents. Those exhibits, however,
are not attached to an affidavit. That is a problem, because
“[t]o be admissible at the summary judgment stage, documents
must be authenticated and attached to an affidavit that meets
the requirements of Rule 56(e) (personal knowledge and
competency).” Bank of N.Y. Mellon v. Lezdey, Civ. No. 13-11118-
MLW, 2016 WL 5539759, at *6 n.9 (D. Mass. Sept. 22, 2016)
(quoting Rhodes v. JPMorgan Chase & Co., 562 F. Supp. 2d 186,
Case 1:16-cv-00534-LM Document 301 Filed 04/17/18 Page 4 of 12

5
181 n.12 (D. Mass. 2008); citing Carmona v. Toledo, 215 F.3d
124, 131 (1st Cir. 2000)). While Lath’s failure to properly
support his summary judgment motion would appear to be an
independent ground for denying it, it is sufficient for the
moment to remind Lath of the requirement for producing evidence
that is admissible at summary judgment.2
In his reply to BMS’s objection to his summary judgment
motion, Lath argues that because BMS produced certain documents
in discovery by e-mail, purportedly in violation of the court’s
scheduling order, BMS has waived any challenge to the
authenticity of those documents. Lath cites no authority for
that proposition, and the court is aware of none.
Lath further argues that BMS’s challenge to the documents
he attached to his motion should be rejected because he attached
many of those documents to his complaint, and BMS did not
challenge their authenticity in its answer. While it is true
that “[a] copy of a written instrument that is an exhibit to a
pleading is a part of the pleading for all purposes,” Fed. R.
Civ. 10(c), incorporation of a document by reference into an
2 In response to BMS’s argument about the inadequacy of the
manner in which he attempted to produce evidence to support his
motion, Lath points out that several of the documents he
produced, without an affidavit, were also produced by BMS in
support of its objection. However, BMS’s production of several
of the same documents that Lath produced does nothing to negate
BMS’s argument, which is that none of Lath’s exhibits are
supported by an affidavit.
Case 1:16-cv-00534-LM Document 301 Filed 04/17/18 Page 5 of 12

6
unverified complaint, such as the one in this case, does not
make that document admissible at summary judgment, c.f. Barth v.
City of Peabody, Civ. Action No. 15-13794-MBB, 2017 WL 114403,
at *2 (D. Mass. Jan. 11, 2017) (“Because the complaint was not
signed under the pains and penalties of perjury, it cannot be
considered part of the summary judgment record.”) (citing
Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell v. Medfit
Int’l, Inc., 982 F.2d 686, 689-90 (1st Cir. 1993)). Moreover,
because a complaint merely recites factual allegations, BMS was
under no obligation, in its answer, to challenge the
authenticity of the documents that Lath attached to his
complaint.
B. BMS’s Affidavits
In his reply, Lath challenges two of the three affidavits
that BMS submitted in support of its objection to his motion for
summary judgment. While Lath’s failure to properly produce
evidence to support his motion means that BMS’s obligation to
produce evidence was never triggered in the first place, the
court will, nevertheless respond to Lath’s challenges to BMS’s
affidavits, in an effort to streamline any potential summary
judgment briefing in the future.
1. Jimenez Affidavit
In support of its objection to Lath’s motion for summary
judgment, BMS produced the affidavit of Gustavo Jimenez, who
Case 1:16-cv-00534-LM Document 301 Filed 04/17/18 Page 6 of 12

7
identified himself as the operations managers of BMS’s
Littleton, Massachusetts, office. Doc. no. 251-11 at ¶ 2. Lath
argues that the court should disregard the Jimenez affidavit in
its entirety because the acknowledgement of the notary public
who signed it does not bear a seal and therefore runs afoul of
the principles enunciated in Schelsteder v. Montgomery County,
Texas, Civ. Action No. H-05-0941, 2006 WL 1117883 (S.D. Tex.
Apr. 21, 2006). Lath is mistaken.
Neither Massachusetts law nor New Hampshire law appears to
require a notary to affix a seal to a document to make his or
her acknowledgment effective. See Mass. Gen. Law. § 222:8(a);
N.H. Rev. Stat. Ann. § 455:3. But, more importantly, Lath
relies upon a misunderstanding of Schelsteder. In that case,
Judge Werlein stated:
Plaintiffs have filed a number of witness statements
that Plaintiffs’ counsel characterize as “affidavits,”
but they are not sworn to nor are they statements made
under penalty of perjury. The mere signing of a
statement in the presence of a notary, or a notary’s
placement of an “acknowledgment” on a statement, does
not constitute a sworn statement or affidavit. See
Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1305-06
(5th Cir. 1988) (disregarding as summary judgment
evidence a notarized, self-described “affidavit” that
was “neither sworn nor its contents stated to be true
and correct nor stated under penalty of perjury” so as
to bring unsworn statement into compliance with 28
U.S.C. § 1746). Accordingly, the witness statements
of [five named individuals] do not constitute summary
judgment evidence under Fed. R. Civ. P. 56(c), and are
not considered on the pending motion.
Case 1:16-cv-00534-LM Document 301 Filed 04/17/18 Page 7 of 12

8
Schelsteder, 2006 WL 1117883, at *3 n.5 (emphasis added,
citations to the record omitted); see also Inman v. Riebe, No.
2:15-cv-0080-JAW, 2016 WL 3102199, at *1 (D. Me. May 5, 2016),
R. & R. adopted by 2016 WL 3129115 (D. Me. June 2, 2016)
(observing that in previous order, district judge had noted the
inadmissibility at summary judgment of affidavit that was not
“subscribed to by the affiant under penalty of perjury”). The
problem with Lath’s reliance upon Schelsteder is that in the
last line of his affidavit, Jimenez stated: “I declare under
penalty of perjury that the foregoing is true and correct.”
Doc. no. 251-11 at 2. Because the Jimenez affidavit was a
statement made under penalty of perjury, there is nothing in
Schelsteter that would counsel in favor of disregarding it.3
Thus, Lath’s challenge to the Jimenez affidavit is meritless.
2. Smith Affidavit
In support of its objection to Lath’s motion for summary
judgment, BMS produced the affidavit of Robert Smith, who
3 Like the affiant in Inman, Jimenez stated: “I have
personal knowledge of the facts stated in this affidavit, and
they are true and accurate to the best of my information and
belief.” Doc. no. 251-11 at ¶ 1. In Inman, Judge Nivison noted
that similar language was problematic because it “qualified” the
affiant’s attestation. See 2016 WL 3102199, at *1. But later
on in his affidavit in this case, Jimenez stated, unequivocally
and under penalty of perjury, that the statements in his
affidavit were true and correct. Accordingly, the apparent
qualification in paragraph 1 of Jimenez’s affidavit is cured by
the unequivocal language of his attestation.
Case 1:16-cv-00534-LM Document 301 Filed 04/17/18 Page 8 of 12

9
identified himself as BMS’s treasurer. See doc. no. 251-1 at ¶
1. Lath argues that the court should disregard: (1) paragraphs
6, 7, 8, 9, 11, and 13 of the Smith affidavit, because they cite
business records, and Smith did not make the averments necessary
to make those business records admissible; and (2) paragraphs
10, 12, and 14, because they consist of inadmissible hearsay.
With regard to Lath’s first argument, the court is somewhat
puzzled. For example, Lath asks the court to disregard
paragraphs 6, 7, and 8 of the Smith affidavit and/or strike the
documents that Smith refers to in those paragraphs, but those
paragraphs do nothing more than: (1) state that Lath signed
three agreements with BMS; and (2) refer to copies of those
agreements. Given that Lath is suing BMS for breaching those
agreements, and that he attached them to his complaint, the
court is hard pressed to understand why Lath is asking the
court, in his reply, to disregard or strike those agreements.
Rather than going through each of the six paragraphs in the
Smith affidavit that Lath challenges, and the exhibits referred
to therein, the court will simply take this opportunity to
suggest that Lath may wish to think more carefully about the
strategic value of the relief he seeks from the court. Asking
the court to disregard documents that memorialize the contracts
he is suing on does not seem like a productive tactic.
Case 1:16-cv-00534-LM Document 301 Filed 04/17/18 Page 9 of 12

10
Lath also asks the court to disregard paragraphs 10, 12,
and 14 of the Smith affidavit on hearsay grounds. In paragraph
14, Smith testified about an e-mail that a BMS employee sent to
Lath, and he attached a copy of that e-mail to his affidavit.
Given that Lath attached a copy of that same e-mail to his
motion for summary judgment, it is not clear why he asks the
court to disregard it. In paragraph 12, Smith testified about
an e-mail in which Lath notified a BMS employee that he wanted
his belongings back, and he attached a copy of that e-mail to
his affidavit. Given the content of that e-mail, it is not
clear why Lath asks the court to disregard it; it would seem
that a request by Lath for the return of his belongings would
help rather than hurt his case. Finally, in paragraph 10, Smith
testified about an e-mail from a BMS employee to other BMS
employees in which he purportedly characterized a conversation
he had with Lath. That e-mail, and Smith’s testimony about it,
may be problematic. Leaving aside a possible hearsay problem
with the e-mail, Smith’s affidavit says that “[t]he e-mail
states that Lath gave BMS permission to dispose of the mattress,
box springs, refrigerator, oven, and other items in the unit
that had been damaged in the fire,” doc. no. 251-1 at ¶ 10, but
the e-mail actually says this: “Just got off the phone with the
adjuster for Mr. Lath. He gave us the green light for the
contents. We can dispose of the mattresses, box springs,
Case 1:16-cv-00534-LM Document 301 Filed 04/17/18 Page 10 of 12

11
refrigerator, oven etc. . .,” doc. no. 251-6 at 1 of 3.
Obviously, Smith’s apparent mischaracterization of the e-mail,
i.e., the conflation of Lath and Lath’s insurance adjuster,
would be a problem if the testimony in paragraph 10 of the Smith
affidavit were necessary for the court’s decision to deny Lath’s
motion for summary judgment. But it is not. Accordingly, the
court merely points out the incongruity between Smith’s
statement and the e-mail he describes in that statement, and
leaves it to BMS to determine, if necessary, how to deal with
this issue in the future.
C. BMS’s Local Rule 56.1(b) Statement
Finally, while Lath acknowledges that he violated Local
Rule 56.1(a) by failing to provide any “short and concise
statement of material facts,” id., he asks the court to grant
him summary judgment, on grounds that in the “short and concise
statement of material facts,” id., that BMS actually provided,
BMS failed to give adequately precise citations to the record.
The court declines to grant Lath summary judgment on that basis.
Nor will the court go through BMS’s Local Rule 56.1(b) statement
paragraph by paragraph to assess the quality of its citations to
the record. Rather, the court trusts that in any future
statement pursuant to either Local Rule 56.1(a) or (b), BMS will
cite the record with adequate precision, i.e., by citing to
Case 1:16-cv-00534-LM Document 301 Filed 04/17/18 Page 11 of 12

12
specific paragraphs in an affidavit rather than to that
affidavit as a whole.
III. Conclusion
For the reasons described above, Lath’s motion for summary
judgment on Cause 22 of his first amended complaint, document
no. 220, is denied. Consequently, Lath’s motion to strike BMS’s
surreply, document no. 264, is denied as moot.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
April 17, 2018
cc: Counsel and pro se parties of record
Case 1:16-cv-00534-LM Document 301 Filed 04/17/18 Page 12 of 12