Veale, et al. v. Furness, et al. CV-10-147-JL 2/2/12 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

David T. Veale and Scott W. Veale

v. Civil No. lO-cv-147-JL Opinion No.

Robert T. Furness, Apple Tree Animal Hospital, Tufts University Steven Rowell, Windham Veterinary Clinic, Stephen Anqell, Anqell Animal Medical Center, Megan Sullivan, New England Veterinary Oncology Group, LLC, Jeff Philibert, Animal Medical Center, Veterinary Emergency Specialty Center of New England, Veterinary Emergency Center of Manchester, Capital Area Veterinary Emergency Center, Emergency Veterinary Clinic of the Seacoast

MEMORANDUM ORDER

Plaintiffs David and Scott Veale, proceeding pro se, have

brought this suit against a number of veterinary professionals

and organizations who, they allege, committed malpractice that

resulted in the death of their dog, Elsie. In addition to state-

law claims for breach of contract, negligence, veterinary

malpractice, bailment, and fraud, the Veales have asserted

federal claims for conspiracy to interfere with their civil

rights under

(3) and violations of the Racketeer

Influenced and Corrupt Organizations Act ("RICO"),

et seg. Defendants have moved to dismiss the suit, arguing,

among other things, that the Veales' complaint fails to state a

1 claim under federal law, see Fed. R. Civ. P. 12(b)(6), and that,

because at least one plaintiff and one defendant are citizens of

the same state, this court lacks subject-matter jurisdiction over

the remaining state-law claims, see

(a) (1). For

essentially those reasons, the court dismisses the case.

I. Applicable legal standard

To survive a motion to dismiss under Rule 12(b) (6), the

plaintiff's complaint must make factual allegations sufficient to

"state a claim to relief that is plausible on its face."

Ashcroft v. Igbal, 129 S. C t . 1937, 1949 (2009). "A claim has

facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged." Id. at 1940.

In ruling on such a motion, the court must accept as true all

well-pleaded facts set forth in the complaint and must draw all

reasonable inferences in the plaintiff's favor. See, e.g.,

Martino v. Forward Air, Inc.,

(1st Cir. 2010) .

Similarly, when evaluating a motion to dismiss for lack of

jurisdiction under Rule 12(b) (1), the court "accept [s] as true

all material allegations of the complaint, and construe[s] the

complaint in favor of the complaining party." Peterson v. United

States,

(D.N.H. 2011) (guoting Warth v.

Seldin,

(1975)). However, "the burden lies

2 with the plaintiff, as the party invoking the court's

jurisdiction, to establish that it extends to his claims." Id^

(citing Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994) ) .

The following background summary is consistent with that

approach.

II. Background

In mid- to late September 2006, Elsie, a 10-year old English

setter belonging to plaintiffs David and Scott Veale, developed a

serious pyrothorax infection which caused a great deal of pus and

swelling to accumulate in her chest and around her lungs. The

Veales brought Elsie to Dr. Robert Furness, a veterinarian at

Apple Tree Animal Hospital in Hopkinton, New Hampshire. This,

they say, was a mistake--Dr. Furness, motivated by "group hatred

toward the Plaintiffs because of who they are and their false

reputations," conspired with "others" to harm Elsie. Among other

things. Dr. Furness allegedly misdiagnosed Elsie with an infected

uterus, prescribed unnecessary medication, and performed

unnecessary surgery to remove her uterus. During this surgery.

Dr. Furness either intentionally or negligently caused lesions to

Elsie's spleen, liver, kidney, heart, and lungs.

Immediately after the surgery, the Veales picked up Elsie

from Apple Tree and took her to Tufts University's Hospital for

3 Small Animals to obtain a second opinion. The personnel at Tufts

told the Veales that Elsie was in very critical condition, and

would die if not treated for her chest infection and the injuries

suffered during surgery. Over the next several days. Tufts

personnel stabilized Elsie and contacted Dr. Furness. They then

performed an additional surgery on Elsie "to straighten a few

things out." The surgery appeared to have gone well. However,

when the Veales picked up Elsie from Tufts, they were not told

about any test results or recommended follow-up treatments; nor

did Tufts provide them with a copy of Elsie's records.

For the next several months. Dr. Stephen Angell of Windham

Animal Hospital in Brattleboro, Vermont treated Elsie. He did

not provide the Veales with any opinion about what had happened

to Elsie. The Veales remained concerned about Elsie's condition,

and contacted a Dr. Whalen at Tufts regarding those concerns.

After Tufts finally sent Elsie's records to the Veales in March

2007, they discovered that, in November 2006, Tufts had received

test results suggesting that Elsie should have received further

x-rays to monitor the progress of her internal injuries.

On Friday, March 23--within a week of receiving the records-

-the Veales noticed that Elsie was becoming weak and was "not her

usual self." They immediately brought her to the Capital Area

Veterinary Emergency Center ("CAVEC") in Concord, New Hampshire,

which referred them to Dr. Megan Sullivan at Angell Animal

4 Medical Center ("AAMC") in Boston, Massachusetts. After

examining Elsie, Dr. Sullivan informed the Veales that Elsie had

developed very serious stage V leukemia. She told them that it

would cost "thousands and thousands of dollars" to begin treating

her for the cancer, and recommended that they arrange to have

Elsie euthanized. When the Veales asked that AAMC perform an

ultrasound and urinalysis. Dr. Sullivan told them that AAMC did

not have enough time to do any further tests or treatments to

help save Elsie at that time. She also told the Veales that she

did not believe the cancer had been caused by anything Dr.

Furness or Tufts had done.

The Veales then brought Elsie to the Veterinary Emergency &

Specialty Hospital in South Deerfield, Massachusetts, which

agreed to perform the ultrasound. The ultrasound revealed

numerous unusual lesions in Elsie's spleen and on her liver.

Armed with these results, the Veales brought Elsie to Dr. Jeff

Philibert at the New England Veterinary Oncology Group ("NEVOG").

Dr. Philibert recommended a cancer treatment plan for Elsie.

After the first treatment, Elsie had a mild reaction that caused

bleeding from her nose. Dr. Philibert nonetheless recommended

further treatment, which caused additional serious reactions,

including additional bleeding.

NEVOG advised the Veales to take Elsie to the Animal Medical

Center ("AMC") in Nashua, New Hampshire for further evaluation.

5 AMC allegedly told the Veales that it had the largest blood bank

supply in New Hampshire, and that it would be able to treat Elsie

for her cancer. Nonetheless, the day after Elsie arrived, AMC

called the Veales to ask whether they knew Elsie's blood type, as

it had given her some "bad blood" to which she had an adverse

reaction. AMC further told the Veales that it was "not sure

whether it was the right blood or not, or what blood type Elsie

had." The Veales allege that Elsie contracted a serious blood

disease due to this "bad blood." AMC asked them to pick up Elsie

and take her directly to the Veterinary Emergency and Specialty

Center of New England ("VESCONE") in Waltham, Massachusetts.

VESCONE admitted Elsie and performed several tests. It

discovered that Elsie had been suffering for some time from a

serious bladder infection, which had not been treated. It was

unable, though, to find or match her blood type, and therefore

was unable to begin a treatment plan for her blood disease. The

Veales again picked up Elsie and took her to the Veterinary

Emergency Center of Manchester, New Hampshire ("VECM"). VECM was

able to immediately match Elsie's blood type, and gave her a

transfusion. It told the Veales, however, that it had no other

means of treating her, and recommended that she be euthanized.

Not long thereafter, the Veales brought Elsie back to CAVEC

in Concord, after CAVEC told them that it had the right blood

type and could provide the additional treatment Elsie needed to

6 survive. After examining Elsie, however, CAVEC decided it would

not treat her, and referred the Veales to Emergency Veterinary

Clinic of the Seacoast ("EVCS") in Portsmouth, New Hampshire.

EVCS completed a blood transfusion for Elsie, but told the Veales

that it could not do anything else for her, either. It

recommended that they take Elsie back to Dr. Phillibert and NEVOG

for further evaluation.

The Veales instead brought Elsie to Cornell University,

which recommended that she be euthanized due to her serious

condition. The Veales finally agreed to this, and Elsie was put

down. Cornell then performed a necropsy that revealed that Elsie

had a fatal blood disease, which the Veales allege she contracted

from the transfusion of "bad blood" she received at AMC. That

disease had gone undiagnosed by all of the various veterinary

professionals that examined Elsie after her visit at AMC.

The Veales subseguently filed the present suit against

nearly all of the individuals and entities who provided care to

Elsie from September 2006 onward. They allege that defendants

were engaged in a broad-ranging conspiracy reaching across state

lines. Among other things, they allege, defendants chose not to

provide appropriate veterinary treatment for Elsie, failed to

document all of Elsie's ailments and their causes, and concealed

information regarding Elsie's condition from them--including the

alleged connections between Elsie's conditions and the treatments

7 she had previously received--all in order to escape liability for

their own wrongdoing. In addition, defendants provided Elsie

with different treatments than those outlined in their original

estimates and agreements, not only to hide their wrongdoing, but

also in order to mistreat both the Veales and Elsie. All this,

in addition to causing Elsie's death, caused the Veales to incur

tens of thousands of dollars in unnecessary veterinary expenses.

Ill. Analysis

A. Conspiracy to interfere with civil rights under

(3)

As noted, the Veales assert a claim against defendants

pursuant to

(3) for an alleged conspiracy to

deprive them of their civil rights. To state a cognizable claim

under this section, a plaintiff must allege four elements:

First, the plaintiff must allege a conspiracy; second, he must allege a conspiratorial purpose to deprive the plaintiff of the egual protection of the laws; third, he must identify an overt act in furtherance of the conspiracy; and finally, he must show either injury to person or property, or a deprivation of a constitutionally protected right.

Perez-Sanchez v. Public Building Auth.,

(1st

Cir. 2 008).

The court need not look beyond the second of these elements.

In connection with that reguirement, "[i]t has long been

established that a claim under § 1985(3) reguires some racial, or

perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Id. (quoting Griffin v.

Breckenridqe,

(1971)); see also Veale v.

Griffin,

(1st Cir. 2000) (table) (affirming

dismissal of § 1985(3) claim where plaintiff--the same plaintiff

in this case--failed to allege class-based animus); Veale v.

Penuche's Ale House, No. 98-447-B,

, *6 (D.N.H.

Nov. 2, 1998)(similar; also the same plaintiff as here). The

Veales do not plausibly allege that defendants' conspiracy was

motivated by any racial or otherwise class-based animus.

The Veales do aver, in a single paragraph of the complaint,

that Dr. Furness's alleged actions were a result of "group

animus" and "group hatred toward the Plaintiffs because of who

they are and their false reputations." Am. Compl. (document no.

15) 5 23. But the complaint provides no further factual detail

regarding "who they are," i.e., what class they belong to, nor

does it explain what the Veales' "reputations" are or, for that

matter, how reputation-based animus would entitle them to relief

under § 1985(3). At best, then, the complaint's passing

references to "group hatred" and "group animus" amount to no more

than "a formulaic recitation of the elements" of their claim and

"naked assertions devoid of further factual enhancement," neither

of which meets the federal pleading standards. Igbal, 129 S. C t .

at 1949. Accordingly, the Veales' claim under

(3) is dismissed. B. Racketeer Influenced and Corrupt Organizations Act,

et sec.

The Veales have also asserted a claim under RICO,

et seg., arising from the alleged conspiracy among

defendants. "To state a RICO claim, plaintiffs must allege four

elements: (1) conduct, (2) of an enterprise, (3) through a

pattern, (4) of racketeering activity." Giuliano v. Fulton,

(1st Cir. 2005).

Here, it is the fourth element on which the Veales' claim

founders. RICO defines "racketeering activity" by reference to a

lengthy list of state and federal criminal offenses, including

but not limited to murder, kidnapping, gambling, arson, robbery,

bribery, extortion, and dealing in controlled substances. See

(1). While that definition encompasses an extremely

broad range of conduct, the court is at a loss to see how the

actions alleged in the complaint could plausibly constitute a

single instance of racketeering activity, let alone make out a

pattern of such activity. The complaint itself does not refer to

any specific predicate acts that could give rise to a RICO claim.

The Veales suggest in their memoranda that defendants committed

mail or wire fraud, but they do not explain how the complaint

alleges the elements of either of those offenses, particularly

where are no allegations in the complaint that the defendants

ever mailed anything, as part of a scheme to defraud or

otherwise, see

, or that during the few phone

10 conversations defendants had with plaintiffs, they made any

statements in furtherance of a scheme to defraud, see

§ 1343.

Although the complaint does make generic allegations of common-

law fraud, that does not constitute an "racketeering activity"

subject to the RICO statute. Giuliano,

. The

Veales' RICO claim is therefore dismissed.

C. Plaintiffs' remaining claims

The Veales' federal statutory claims under

(3) and RICO provided the sole basis upon which this court

was empowered to exercise jurisdiction. See

.

Each of their remaining claims arises solely under state law, and

typically this court may only exercise jurisdiction over such

claims if the prereguisites to diversity jurisdiction in

are met. See In re Olympic Mills Corp.,

(1st Cir. 2007). Here, those reguirements are not met:

plaintiffs David and Scott Veale are citizens of Vermont and New

Hampshire, respectively, and they have named citizens of both

those states as defendants.1 As a result, this court does not

have jurisdiction over the Veales' state-law claims under § 1332.

1Robert Furness, Apple Tree Animal Hospital, the Animal Medical Center, the Veterinary Emergency Center of Manchester, the Capital Area Veterinary Emergency Center, and the Emergency Veterinary Clinic of the Seacoast are alleged to be citizens of New Hampshire, while Stephen Angell and Windham Veterinary Clinic are alleged to be citizens of Vermont.

11 See id. ("In [diversity] cases involving multiple plaintiffs or

defendants, the presence of but one nondiverse party divests the

district court of original jurisdiction over the entire

action. .

Because those claims form part of the same "case or

controversy" as the Veales' federal claims, however, this court

is empowered to exercise supplemental jurisdiction over them

under

(a). Whether or not to do so lies wholly

within the discretion of the court. See

(c)(3);

Rodriguez v. Doral Mortg. Corp.,

(1st Cir.

1995). As a general principle, though, "the unfavorable

disposition of a plaintiff's federal claims at the early stages

of suit, well before the commencement of trial, will trigger the

dismissal without prejudice of any supplemental state-law

claims." Id.; see also United Mine Workers of Am. v. Gibbs,

(1966) ("Certainly, if the federal claims are

dismissed before trial . . . the state claims should be dismissed

as well."). With this instruction in mind, and taking into

account concerns of both judicial economy and federalism (in

particular the concern of interpreting state law in a matter

devoid of any federal interest) , the court declines to exercise

jurisdiction over plaintiffs' state-law claims. Plaintiffs'

state-law claims are therefore dismissed without prejudice.

12 IV. Conclusion

For the reasons set forth above, the Rule 12(b) (6) and

12(b)(1) motions to dismiss by Veterinary Emergency Center of

Manchester, Veterinary Emergency and Specialty Center of New

England, Animal Medical Center, New England Veterinary Oncology

Group, Jeff Philibert, Stephen Angell, Tufts University, Steven

Rowell, and Capital Area Veterinary Emergency Center2 are

GRANTED. All other pending motions in the case3 are DENIED as

moot. The clerk shall enter judgment accordingly and close the

case.4

2Document nos. 27, 37, 43, 50, 63, 69, 79.

3Document nos. 20, 28, 62, 73.

4Although the motion to dismiss filed by defendants Robert Furness and Apple Tree Animal Hospital (document no. 20) is moot and this court need not consider it, the court would be remiss in not at least mentioning it. The entire argument section of that single-page motion is as follows: In support of this motion, defendants offer the following: 1. The Summons is dated November 2 9, 2010; and 2. On March 9, 2011, plaintiffs delivered to defendants the Summons. While this would otherwise be cryptic, the caption of the motion helpfully explains "TIME LIMIT FOR SERVICE EXCEEDED, RULE 4 (m)." This is an apparent reference to Federal Rule of Civil Procedure 4 (m), which governs the time for service of process; the rule provides that a defendant must be "served within 120 days after the complaint is filed." The motion's reference to the date of the summons is somewhat confusing, as Rule 4 (m) assigns no significance whatsoever to that date. More to the point, though, on November 24, 2010, this court ordered that service be made "within 120 days"--in other words, by March 24, 2011. Service of process on Dr. Furness and

13 SO ORDERED.

/s/Joseph N. Laplante Joseph N. Laplante United States District Judge

February 2, 2012

cc: David T. Veale (pro se) Scott W. Veale (pro se) James D. Gleason, Esq. Alan D. Rose, Esq. Lisa A. Tenerowicz, Esq. Jay M. Niederman, Esq. Michael Magerer, Esq. Molly J. Brown, Esq. Michael P. Johnson, Esq. Russell F. Hilliard, Esq. Richard S. Loftus, Esq. Mark A. Darling, Esq. John L. Kerr, Esq. Wilfred J. Desmarais, Jr., Esq. Mark E. Howard, Esq. Ralph Suozzo, Esq. Jonathan M. Shirley, Esq.

Apple Tree on March 9, 2011 was therefore timely and their motion to dismiss is meritless. The Veales claim in their opposition to the motion that they made counsel aware of his mistake, but that he refused to withdraw the motion. If this is in fact true, counsel's actions are difficult to understand. The court is loath to impose sanctions for this conduct, but counsel for Dr. Furness and Apple Tree is advised to scrutinize the docket of each case closely when he first enters an appearance, so as not to repeat this mistake.

14