Augustinowicz v . Nevelson et a l . CV-10-564-PB 12/16/11 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Joseph C . Augustinowicz Jan M . Augustinowicz

v. Case N o . 10-cv-564-PB Opinion N o .

Marianne W . Nevelson et a l .

MEMORANDUM AND ORDER

Joseph and Jan Augustinowicz (collectively “plaintiffs”)

bring suit, pro s e , against the Town of Acworth (“Town”),

several of the Town’s officials, a law firm that provided

counsel to the Town, and one private individual (collectively

“defendants”). Plaintiffs allege that defendants conspired to

illegally seize their property. Defendants have filed motions

to dismiss, and for the reasons discussed below I grant those

motions.

I. BACKGROUND1

From 2007 until 2010, plaintiffs defied numerous attempts

by the Town to collect property taxes on a parcel of land they

1 It is difficult to discern any clear narrative from plaintiffs’ complaint. I have pieced together the facts from the documents attached to the complaint, and have been careful to ensure that the facts below are consistent with plaintiffs’ allegations. owned at 688 Cold Pond Road in Acworth, New Hampshire. In a

series of letters sent to the Town and its officials, plaintiffs

asserted that the Town could not legally tax them without their

consent, and that as “sovereign citizens” they were not subject

to the jurisdiction of the Town or the courts of the state. See

Doc. Nos. 1-9, 1-12.

On April 2 0 , 2010, and again on October 4 of that year, the

Acworth Tax Collector notified plaintiffs that a tax deed would

issue on October 25 if plaintiffs did not pay the taxes owed.

Doc. N o . 1-14 at 1 . The taxes remained unpaid. Accordingly, on

October 2 5 , the Tax Collector conveyed plaintiffs’ property to

the Town by tax deed. Doc. N o . 1-13. On November 1 5 , the Town

notified plaintiffs that it had recorded the deed, and informed

them of their statutory right to repurchase the property. Doc.

N o . 1-14 at 2 ; see

.

Plaintiffs argue that the Town illegally took title to

their property, broadly alleging “an ongoing conspiracy among

the defendants named in this suit, to knowingly and willingly[]

deny plaintiffs’ Constitutional and civil rights to due process

2 under law.” 2 Compl. at 4 , Doc. N o . 1 . Based on a number of

different factual allegations, plaintiffs contend that

defendants violated their rights under the First, Fourth,

Seventh, Ninth, and Fourteenth amendments to the U.S.

Constitution, Sections 1983, 1985, and 1986 to Title 42 of the

United States Code, and various New Hampshire statutory

provisions.

II. STANDARD OF REVIEW

In considering a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6), I “accept as true the well-pleaded

factual allegations of the complaint, draw all reasonable

inferences therefrom in the plaintiff's favor and determine

whether the complaint, so read, sets forth facts sufficient to

justify recovery on any cognizable theory.” Martin v . Applied

Cellular Tech.,

, 6 (1st Cir. 2002). To survive a

motion to dismiss for failure to state a claim, the general

standard under Rule 8 of the Federal Rules of Civil Procedure is

that the complaint must “state a claim to relief that is

2 Because I determine that plaintiffs have failed to allege any infringement of their constitutional or statutory rights, I do not separately address whether plaintiffs have pled the elements of a conspiracy. 3 plausible on its face.” Ashcroft v . Iqbal, 129 S . C t . 1937,

1949 (2009) (quoting Bell Atl. Corp. v . Twombly,

4 4 ,

570 (2007)). A claim is facially plausible when it pleads

“factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged. The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.”

(citations omitted).

When a plaintiff acts pro s e , this court is obliged to

construe the pleadings liberally in favor of the pro se party.

See Ayala Serrano v . Lebron Gonzales,

, 15 (1st Cir.

1990) (citing Estelle v . Gamble,

7 , 106 (1976)). That

review ensures that pro se pleadings are given fair and

meaningful consideration. See Eveland v . Dir. of C.I.A.,

6 , 49 (1st Cir. 1988).

III. ANALYSIS

Plaintiffs allege that (1) the Town and its officials did

not follow proper state court procedure prior to seizing the

property; (2) defendants sent threatening letters to plaintiffs

4 to accomplish their fraudulent scheme; (3) the property taxes

levied against plaintiffs were illegal because plaintiffs never

consented to their imposition; and (4) defendants illegally

altered the boundaries of the property. I address each claim in

turn.

A. Failure to Follow State Court Procedure

On July 1 9 , 2011, the Sullivan County Superior Court

enjoined plaintiffs from entering and/or residing at the Acworth

property now owned by the Town. Doc. N o . 45-2. Plaintiffs have

attached a copy of a motion to reconsider that order, dated July

2 8 , 2001, and state that it was filed with the Superior Court.

Doc. N o . 50-1. As best I can discern, plaintiffs allege a due

process violation stemming from the fact that the Town retains

title to the property in question even though defendants did not

respond to the motion to reconsider and the motion has yet to be

adjudicated. Compl. at 4 , Doc. N o . 1 , P’s O b j . to Mot. to

Dismiss ¶ 7 , Doc. N o . 5 0 .

I conclude that plaintiffs have failed to plead with

sufficient specificity any facts from which I can infer a due

process violation. Neither the mere fact of filing a motion to

reconsider in state court, nor the alleged failure of defendants

5 to respond to such a motion, entitle plaintiffs to any relief in

a federal forum.

B. Threatening Letters

Plaintiffs claim that the Town and its officials issued

threatening letters on October 4 and November 1 5 , 2010.

Plaintiffs allege that defendants “outlin[ed] what they will do

to the Plaintiffs” in the letters, and that the use of the mail

by town officials to execute a fraudulent scheme violated their

constitutional and statutory rights. Compl. ¶ 5 , 8 , Doc. N o . 1 .

The letters are attached to the complaint, and both letters do

no more than provide notice to plaintiffs, in perfectly civil

terms, of their rights and obligations vis-à-vis the impending

tax deed on plaintiffs’ property and the Town’s subsequent

recording of the deed. See Doc. N o . 1-14.

Plaintiffs have failed to state a viable claim. First, the

content and tone of the letters do not evince even a hint of the

“harassment,” “oppression,” or “intimidation” claimed by

plaintiffs. See Compl. at 8 , Doc. N o . 1 . Second, notice is

statutorily required prior to the imposition of a tax deed and

prior to the sale of property acquired by tax deed. See

, 80:89. It is therefore nonsensical to

6 argue that town officials may not send a letter to a property

owner detailing an impending tax deed or sale.

C. Lack of Consent to be Taxed

Plaintiffs allege that property taxes cannot be imposed

without the taxpayer’s consent. Compl. ¶ 2 , 4 , Doc. N o . 1 .

They base their claim on a provision of the New Hampshire Code

that states, in relevant part, “Real and personal property shall

be taxed to the person claiming the same, or to the person who

is in the possession and actual occupancy thereof, if such

person will consent to be taxed for the same . . . .”

.

Although plaintiffs’ interpretation of the provision is

grammatically plausible, it defies common sense and is

foreclosed by New Hampshire case law.3 Under the correct

interpretation of the statute, consent is required to tax the

possessor/occupant, but not the person claiming the property.

3 Plaintiffs do not spell out their claim, but I presume their argument is based on a reading of the statute where the conditional clause –- “if such person will consent to be taxed for the same” –- modifies both prior instances of the term “person.” Under that reading, consent is required to tax not only possessors/occupiers, but claimants as well. If plaintiffs’ interpretation were law, any property owner in New Hampshire would have the right to opt out of paying property taxes. 7 See Quimby v . Quimby,

0 7 , 910-11 (1978)

(distinguishing taxation scheme as between owner and occupant,

where the latter can be taxed only with consent). Plaintiffs

owned the Acworth property, and therefore cannot disavow

taxation on the basis of withholding consent.

D. Illegal Alteration of Boundaries

Plaintiffs allege that certain defendants did “knowingly

and willingly[] work in a concerted effort . . . to change our

mutual boundaries, which are under ‘contention,’ though we

contested it in writing to the Board of Selectmen[.]” Compl. ¶

1 , Doc. N o . 1 . Although I struggle to understand the

statement’s thrust, from the documents attached to plaintiffs’

complaint I glean that in 2006, Dennis Earl, the only individual

defendant not an official of the Town (and presumably a relative

of codefendant and Acworth Zoning Board member Lisa Earl),

requested and was granted a change in the boundary line of his

property on the Town’s tax map. Doc. N o . 1-4. A letter from a

surveying company indicates that the request was based on

confusion over the location of a boundary between Earl’s

property and plaintiffs’ abutting property.

at 2 . As a

result of the correction of the tax map, plaintiffs were

8 informed that the boundary line to their own property was not

where they believed it had been.

at 8 .

Plaintiffs contend only that certain defendants violated

their rights by working together to effect the alteration in the

tax map. The allegations, however, are entirely conclusory, and

fail to provide any detail at all about defendants’ conduct. By

failing to specify any actions or omissions that might be the

basis for liability, the pleadings are insufficient to state a

claim upon which relief can be granted.4

IV. CONCLUSION

For the foregoing reasons, defendants’ motions to dismiss

(Doc. Nos. 2 0 , 45) are granted. The clerk is directed to enter

judgment accordingly and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

December 1 6 , 2011

4 Because plaintiffs have failed to state any claim upon which relief can be granted, I need not decide whether the claims against the law firm of Gardner, Fulton & Waugh, PLLC, should be dismissed under Fed. R. Civ. P. 12(b)(5) for insufficient service of process. See Doc. N o . 20 at 1-2. 9 cc: Joseph C . Augustinowicz Jan M . Augustinowicz Daniel J. Mullen Adele M . Fulton Erik Graham Moskowitz Charles P. Bauer

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