Lath v. Manchester, NH, City of

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Sanjeev Lath
v. Civil No. 17-cv-075-JL
City of Manchester, New Hampshire
REPORT AND RECOMMENDATION
Before this magistrate judge for consideration are
plaintiff Sanjeev Lath’s second amended complaint (Doc. No. 4)
and Lath’s motion for writs of attachment (Doc. No. 5). For the
reasons that follow, the second amended complaint should be
dismissed without prejudice and the motion for writs of
attachment should be denied without prejudice.
Background
This case originated in December of 2015, with a complaint
that Lath filed in the Hillsborough County Superior Court
(“HCSC”). In that forum, Lath sued the City of Manchester, New
Hampshire (“City”). He asserted claims arising out of the
manner in which officers of the Manchester Police Department
responded to an incident that occurred at the Oak Brook
Condominium (“Oak Brook”), where he is a unit owner. In a March
14, 2016, order granting in part and denying in part defendant’s
motion to dismiss, the HCSC ruled that Lath had stated state-law
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claims for trespass and invasion of privacy. Thereafter, the
case was stayed for several months.
On February 16, 2017, after the stay was lifted, Lath filed
an assented-to motion to amend his complaint in the HCSC, which
that court granted on February 21, 2017. Like Lath’s original
complaint, his amended complaint asserted claims against a
single defendant, the City of Manchester. Lath’s claims against
the City in his amended complaint include a federal
constitutional claim brought under the aegis of 42 U.S.C. §
1983. On the day the HCSC granted the motion to amend, the City
removed this action to this court.
On March 13, 2017, Lath filed, in this court, “Plaintiff’s
Second Amended Complaint as a Matter of Right” (Doc. No. 4). In
his second amended complaint, Lath asserts four claims against
the City and four claims against two new defendants, Cynthia and
Michael Camp. The Camps are former Oak Brook neighbors who were
involved in the incident that gave rise to Lath’s initial claims
against the City. Lath served his second amended complaint on
the City. But, while he filed two “proposed summonses” for the
Camps with his second amended complaint, those summonses have
not been served.
On the same day that Lath filed his second amended
complaint, he also filed a “Motion for Pre-Judgment Attachment
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and Request for Issuance of Writ of Attachment” (Doc. No. 5).
To that motion, he has attached a proposed notice of his intent
to attach property belonging to each of the Camps, but that
notice has not been served. He also attached proposed writs of
attachment, identifying two parcels of real estate in York
County, Maine, as the property, or the loci of the property, he
seeks to attach.
Discussion
I. Second Amended Complaint
Under Rule 15(a)(1) of the Federal Rules of Civil
Procedure, “[a] party may amend its pleading once as a matter of
course within: (A) 21 days after serving it, or (B) if the
pleading is one to which a responsive pleading is required, 21
days after service of a responsive pleading or 21 days after
service of a motion under Rule 12(b), (e), or (f), whichever is
earlier.”
Where plaintiff seeks to amend his complaint a second time,
however, Rule 15(a)(2) allows him to do so only with the consent
of the defendant(s) or with leave of court. Here, plaintiff did
not seek leave of court to file his second amended complaint,
and nothing in the record indicates that his second amended
complaint was filed with the consent of the City. Accordingly,
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this court recommends that the district judge dismiss the second
amended complaint, without prejudice to Lath’s ability to file a
motion amend his complaint that complies with Fed. R. Civ. P. 15
and LR 15.1.
II. Motion for Writs of Attachment
The Federal Rules of Civil Procedure (“Federal Rules”),
provide that
[a]t the commencement of and throughout an action,
every remedy is available that, under the law of the
state where the court is located, provides for seizing
a person or property to secure satisfaction of the
potential judgment.
Fed. R. Civ. P. 64(a). In New Hampshire, the remedy Lath seeks,
pre-judgment attachment, is governed by N.H. Rev. Stat. (“RSA”)
§ 511-A. Under that statute,
[i]n civil actions in which pre-judgment attachment is
authorized, except as otherwise provided in replevin
actions, a defendant shall be given notice and an
opportunity for a preliminary hearing before any pre-
judgment attachment . . . shall be made.
RSA § 511-A:1. The statute goes on to describe the contents of
the notice that must “be served on the defendant and . . .
simultaneously filed with the court.” RSA § 511-A:2 (emphasis
added).
The problem here is that the persons whose property Lath
seeks to attach, the two Camps, are not defendants in this case.
Because Lath seek to attach the property of persons who are not
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parties to this action, his motion should be denied, without
prejudice to his ability to properly seek such an attachment
should the Camps become defendants in this case in the future.
Conclusion
For the foregoing reasons, the district judge should
dismiss the second amended complaint (Doc. No. 4) without
prejudice, and deny the motion for writs of attachment (Doc. No.
5) without prejudice. 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 specific
written objections to the Report and Recommendation 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); Fed. R. Civ. P. 72(b)(2).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
May 9, 2017
cc: Sanjeev Lath, pro se
Robert J. Meagher, Esq.
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