UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Elena Katz, individually and as parent, next friend, and co-guardian of Eleonora Grodman

v. Civil No. 15-cv-338-LM Opinion No.

Brian McVeigh; et al.

O R D E R

In a case that has been removed from the Hillsborough

County Superior Court (“HCSC”), pro se plaintiff Elena Katz is

suing 29 named defendants in 32 counts, generally asserting

claims arising

out of [her] loss of legal custody of [her] daughter, Eleonora [Grodman], to the New Hampshire [Division for] Children, Youth and Families (“DCYF”) in November 2009, followed by efforts by various law enforcement officials to secure physical custody of Eleanora and, ultimately, her placement at a privately run residential rehabilitation facility.

Katz v. McVeigh,

(D.N.H. 2013).

Before the court are six motions to dismiss, filed by 19 of

the 29 named defendants. Katz objects. For the reasons that

follow, defendants’ motions to dismiss are granted, and Katz’s

claims against the 10 remaining defendants are dismissed sua

sponte. I. The Legal Standard

Under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, the court must accept the factual allegations in

Katz’s complaint as true, construe reasonable inferences in her

favor, and “determine whether the factual allegations in the

plaintiff’s complaint set forth a plausible claim upon which

relief may be granted.” Foley v. Wells Fargo Bank, N.A.,

(1st Cir. 2014) (citation and internal quotation

marks omitted).

II. Background

This case was initiated in the HCSC by a pleading bearing

the caption “Plaintiffs’ Verified Amended Complaint.” Notice of

Removal, Ex. A (doc. no. 1-1), at 5 of 86. The complaint begins

with this sentence: “This is the re-filing of the complaint

original[ly] filed in [the] United States District Court for the

District of New Hampshire, Docket No. 1:10-cv-00410-JL, in this

State court.”

Katz makes the same point in her memorandum

of law in opposition to the motions to dismiss:

This action commenced . . . with the filing of the initial Civil Rights complaint in this District Court.

The filing of this lawsuit in State Court on March 2015 was a continuation of the same action in a state venue, arising from the same nexus of facts and unexhausted claims.

Pl.’s Mem. of Law (doc. no. 25) 22 (emphasis added).

2 True to Katz’s characterization of it, the complaint in

this case is all but identical to the operative complaint in 10-

cv-410-JL. The only real differences between the two complaints

involve the named parties. The previous case was brought by

Katz, Arnold Grodman, and Stuart Grodman, while this case has

been brought by Katz alone, in both her individual capacity and

her capacity as parent, next friend, and co-guardian of her

daughter Eleonora. In addition, this case includes five named

defendants who were not defendants in the previous case:

Rockingham County, the Warden of the Rockingham County

Department of Corrections, Hitchcock Clinic, Samuel Casella, and

Paul Boddy. However, the facts alleged and the causes of action

asserted in both complaints are identical.

10-cv-410-JL culminated in an order in which Judge Laplante

granted a combination of Rule 12(b)(6) motions to dismiss and

Rule 12(c) motions for judgment on the pleadings that disposed

of all 32 of the claims in that case. See Katz,

. More specifically, the claims that the plaintiffs

brought in their individual capacities were dismissed with

prejudice, while any claims that were brought in a representa-

tive capacity, on behalf of Eleonora, were dismissed without

prejudice. See

. The court of appeals affirmed. See

Katz, 10-cv-410-JL, doc. no. 215.

3 In objecting to defendants’ motions to dismiss, Katz

contends that “new intervening events and causes of action

accrued since this Court dismissed the Plaintiff[’s] complaint

in March 2012.” Pl.’s Mem. of Law (doc. no. 25) 2 (emphasis in

the original). That may be, but the fact remains that this

court conducted a line-by-line comparison of the complaint in

10-cv-410-JL and the complaint Katz filed in the HCSC, and the

claims asserted in the two complaints are the same, word for

word. Indeed, the first page of the complaint Katz filed in the

HCSC bears the typewritten docket number “1:10-cv-00410-JL,”

which was scratched out by hand. See Notice of Removal, Ex. A

(doc. no. 1-1), at 4 of 86. And, notwithstanding Katz’s

assertion that new causes of action have accrued, see Pl.’s Mem.

of Law (doc. no. 25) 2, including one for malicious prosecution,

see Pl.’s Mot. to Remand (doc. no. 21) ¶ 6, she also concedes

that she did not include a claim for malicious prosecution in

her complaint in this case, see Pl.’s Mem. of Law (doc. no. 25)

18.

III. Discussion

In the discussion that follows, the court deals separately

with the claims Katz has brought in her individual capacity and

those she has brought in her representative capacity.

4 A. Individual-Capacity Claims

In their six motions to dismiss, all 19 defendants argue that

Katz’s individual-capacity claims are barred by res judicata, a

doctrine that is also known as claim preclusion. See Newman v.

Krintzman,

(1st Cir. 2013) (describing “claim

preclusion” as the modern name for res judicata). They base their

argument on Judge Laplante’s dismissal, in 10-cv-410-JL, of the

very same claims Katz has brought in this action.1 The res

judicata defense is meritorious and dispositive.2

“According to the doctrine of res judicata, a final

judgment on the merits precludes parties from relitigating

claims that were or could have been brought in a prior action.”

Universal Ins. Co. v. Office of Ins. Comm’r,

(1st Cir. 2014) (citing Haag v. United States,

(1st Cir. 2009)). Res judicata “relieve[s] parties of the cost

and vexation of multiple lawsuits, conserve[s] judicial

1 Katz appears to suggest that defendants’ res judicata defense is based in part upon giving preclusive effect to decisions from state-court neglect or guardianship proceedings. See, e.g., Pl.’s Mem. of Law (doc. no. 25) 2, 3, 24-25. Defendants’ only argument is that Judge Laplante’s decision in 10-cv-410-JL bars Katz from relitigating the claims that were decided against her in that action.

2 Various defendants raise other arguments, including one based upon Katz’s failure to schedule her claims in this case as assets in a 2011 bankruptcy petition. Because defendants’ res judicata argument is meritorious, the court need not address any of their other arguments.

5 resources, and . . . encourage[s] reliance on adjudication.”

Hatch v. Trail King Indus., Inc.,

(1st Cir.

2012) (quoting Breneman v. U.S. ex rel. FAA,

(1st Cir. 2004); quoting Allen v. McCurry,

(1980)). Turning to the specifics of res judicata,

[t]he three elements . . . are: “(1) a final judgment on the merits in an earlier proceeding, (2) sufficient identicality between the causes of action asserted in the earlier and later suits, and (3) sufficient identicality between the parties in the two actions.”

Hatch,

(quoting Breneman,

; citing

Banco Santander De P.R. v. Lopez-Stubbe (In re Colonial Mortg.

Bankers Corp.),

(1st Cir. 2003)).

A claim that is barred by res judicata is not “a plausible

claim upon which relief may be granted.” Foley,

.

As a consequence, a claim that is barred by res judicata is

subject to dismissal under Rule 12(b)(6). See, e.g., Hatch,

. With respect to Katz’s individual-capacity

claims against the defendants who have moved to dismiss, those

defendants have established all three elements of res judicata.

The order Judge Laplante entered in 10-cv-410-JL granted a

combination of motions under Rules 12(b)(6) and 12(c). A

dismissal for failure to state a claim upon which relief can be

granted, under Rule 12(b)(6), is a final judgment on the merits

for the purposes of res judicata. See Airframe Sys., Inc. v.

Raytheon Co.,

(1st Cir. 2010) (citing AVX Corp.

6 v. Cabot Corp.,

(1st Cir. 2005)). Similarly,

“[a] decision pursuant to a motion under Fed. R. Civ. P. 12(c)

is a decision on the merits in . . . the First . . . Circuit[].”

Patterson v. Novartis Pharm. Corp.,

(D.R.I. 2012). Thus, defendants have established the first

element of res judicata. Katz correctly notes that none of the

claims in 10-cv-410-JL ever made it to trial. Nevertheless,

those claims were all adjudicated to a final judgment on the

merits, which is all that is required to establish the first

element of res judicata.

The second element, sufficient identicality between the

causes of action asserted in two different suits, is established

“if both sets of claims – those asserted in the earlier action

and those asserted in the subsequent action – derive from a

common nucleus of operative facts.” Silva v. City of New

Bedford,

(1st Cir. 2011) (quoting Breneman,

; citing Gonzalez v. Banco Cent. Corp.,

(1st Cir. 1994)) (internal quotation marks omitted). Here,

the complaint in 10-cv-410-JL and the complaint in this case

both include a 259-paragraph section titled “Factual Predicate,”

and those two factual recitations are identical. Moreover,

plaintiff herself describes this case as “arising from the same

nexus of facts” as 10-cv-410-JL. Pl.’s Mem. of Law (doc. no.

25) 22. Indisputably, the two actions arise from a common

7 nucleus of operative facts, which means that defendants have

established the second element of res judicata.

The third element, “sufficient identicality between the

parties in the two actions,” Hatch,

, has also

been established. Fifteen of the 19 defendants who have moved

to dismiss Katz’s claims in this case were defendants in 10-cv-

410-JL. The four defendants in this case who were not

defendants in the previous case, but who have moved to dismiss

on grounds of res judicata, are closely enough related to named

defendants in the previous action to satisfy the third element

of res judicata. As the court of appeals has explained:

We, along with other circuits, have long held that claim preclusion applies if the new defendant is “closely related to a defendant from the original action — who was not named in the previous law suit,” not merely when the two defendants are in privity. Negrón–Fuentes [v. UPS Supply Chain Solutions], 532 F.3d [1,] 10 [(1st Cir. 2008)]; see

(collecting cases).

Airframe Systems,

(citing Hermes Automation

Tech., Inc. v. Hyundai Elec. Indus. Co.,

(1st

Cir. 1990); In re El San Juan Hotel Corp.,

, 10–11

(1st Cir. 1988); Gambocz v. Yelencsics,

, 841–42 (3d

Cir. 1972). A key factor in determining whether a close and

significant relationship exists is whether “‘the [later] claims

were or could have been brought against the original defendant

in the original suit’ and the subsequent suit tried to hold

8 related defendants liable on related claims.” Airframe Systems,

-18 (quoting Negrón-Fuentes, 532 F.3d at 10).

Here, Rockingham County and the Warden of the Rockingham

County Department of Corrections were not named defendants in

10-cv-410-JL. But those entities are closely related to the

Rockingham County Sheriff’s office, which was a named defendant.

The County, as a governmental entity, encompasses the Sheriff’s

office. The Department of Corrections, like the Sheriff’s

office, is an agency of the County government. Moreover, the

court can discern no reason why the plaintiffs could not have

named the two new Rockingham County entities as defendants in

10-cv-410-JL alongside the County entity they did name. Indeed,

the facts set forth in the complaint in this case say nothing

about those entities that was not set forth in the complaint

filed in 10-cv-410-JL.

Similarly, Hitchcock Clinic and Samuel Casella were not

named defendants in 10-cv-410-JL. But they are closely related

to Sreenivas Katragadda, who was a named defendant. In the

complaint in 10-cv-410-JL, the plaintiffs alleged that Hitchcock

Clinic employed Dr. Katragadda, an allegation Katz repeats in

her complaint in this case. She also alleges that Dr. Casella

and Dr. Katragadda were both employed by Hitchcock Clinic and

both provided care for Eleonora. And, as with the two new

Rockingham County entities, the court can discern no reason why

9 the plaintiffs could not have named Hitchcock Clinic and Dr.

Casella as defendants in 10-cv-410-JL. Accordingly, defendants

have established the third element of res judicata.

To sum up, as to the claims Katz has brought in her

individual capacity, all 19 defendants who have moved to dismiss

are entitled to dismissal on grounds of res judicata. As in 10-

cv-410-JL, that dismissal is with prejudice.

B. Representative-Capacity Claims

This case also involves some number of claims brought by

Katz in her capacity as parent, next friend, and co-guardian of

her daughter Eleonora. In 10-cv-410-JL, Judge Laplante

dismissed all the claims that had been brought on Eleonora’s

behalf. The basis for that dismissal was the rule that “‘an

individual may appear in federal courts only pro se or through

legal counsel,’ and not through ‘third-party lay representa-

tion.’” Katz,

(quoting Herrera-Venegas

v. Sanchez-Rivera,

(1st Cir. 1982); citing L.R.

83.6(b)). Accordingly, Judge Laplante dismissed the

representative-capacity claims without prejudice to their being

brought in an action in which Eleonora’s representative was

represented by counsel.

Here, like the plaintiffs in 10-cv-410-JL, Katz is

appearing pro se. Five of the six pending motions to dismiss

10 identify Katz’s pro se status as a ground for dismissing her

representative-capacity claims. Defendants’ arguments on that

point are correct, for the reasons stated by Judge Laplante in

Katz. See

. Katz’s representative-

capacity claims are dismissed. That dismissal, however, is

without prejudice to claims being brought, on Eleonora’s behalf,

by a representative who is represented by counsel.

At this point, the court notes that Katz makes a

considerable effort to establish her standing to sue on her

daughter’s behalf. See, e.g., Pl.’s Mem. of Law (doc. no. 25)

4-16. That issue, however, has no bearing on the question

before this court, which is whether Katz’s claims are barred by

res judicata. Because Katz has devoted so much attention to

this issue, it is worth pointing out that Judge Laplante never

ruled that the plaintiffs in 10-cv-410-JL lacked standing. He

determined that Arnold Grodman, “as guardian of Eleonora’s

estate” was authorized “under New Hampshire law . . . ‘to

prosecute or defend actions, claims, or proceedings in any

jurisdiction for the protection of [Eleonora’s] estate’s

assets.’” Katz,

. But, he ruled that

Grodman could not do so without legal counsel. See

Grodman’s (or Katz’s) standing to sue on Eleonora’s behalf and

their ability to do so in federal court without counsel are two

separate legal issues.

11 C. The Remaining Defendants

Only 19 of the 29 named defendants in this case have moved

to dismiss. Under ordinary circumstances, the court would

dismiss Katz’s claims against the 19 defendants who have moved

to dismiss and allow her claims against the remaining 10

defendants to continue moving forward. But these are not

ordinary circumstances, and the claims against the remaining

defendants are dismissed, sua sponte. In making that ruling,

the court is aware that “[s]ua sponte dismissals are strong

medicine, and should be dispensed sparingly.” Garayalde-Rijos

v. Municipality of Carolina,

(1st Cir. 2014)

(quoting Chute v. Walker,

(1st Cir. 2002);

citing Gonzalez-Gonzalez v. United States,

(1st

Cir. 2001)).

As for when it is permissible to dispense a sua sponte

dismissal:

The general rule is that sua sponte dismissals of complaints under Rule 12(b)(6) are “erroneous unless the parties have been afforded notice and an opportunity to amend the complaint or otherwise respond.” Futura Dev. of P.R., Inc. v. Estado Libre Asociado de P.R.,

(1st Cir. 1998). Only where “it is crystal clear that the plaintiff cannot prevail and that amending the complaint would be futile” can a sua sponte Rule 12(b)(6) dismissal stand. Chute,

(quoting Gonzalez– Gonzalez,

) (internal quotation mark omitted).

Garayalde-Rijos,

.

12 Given the circumstances of this case, which include two

complaints alleging identical facts and asserting identical

causes of action, and Katz’s own characterization of this case

as a re-filing of the case that she and her co-plaintiffs lost

before Judge Laplante, it is crystal clear that Katz’s claims

against the 10 remaining defendants could not survive a motion

to dismiss asserting a res judicata defense. Under these

unusual circumstances, sua sponte dismissal is warranted.

Katz’s individual-capacity claims against the 10 remaining

defendants are dismissed with prejudice, and her representative-

capacity claims against the remaining defendants are dismissed

without prejudice to claims being brought, on Eleonora’s behalf,

by a representative who is represented by counsel.

VI. Motion to Remand

More than one month after the six pending motions to

dismiss had been filed, and nearly a month after the statutory

deadline for moving to remand on grounds other than subject

matter jurisdiction had passed, see

(c), Katz

filed a motion to remand this case to the HCSC. Given this

court’s ruling on defendants’ motions to dismiss, Katz’s motion

to remand is moot; there is nothing left of this case to remand.

However, even if this court were to reach the merits of Katz’s

motion to remand, it would deny the motion.

13 The 30-day deadline for moving to remand an improperly

removed case is subject to one exception: lack of subject matter

jurisdiction, which may be raised at any time. See

(c). Katz argues that this court lacks subject matter

jurisdiction over this case, but she is mistaken.

In her motion, she characterizes this case as a “refiled

action[] [w]hich was dismissed by Fed Court.” Mot. to Remand

(doc. no. 21) 1. When Katz and her fellow plaintiffs filed the

case that Judge Laplante dismissed, they necessarily invoked

this court’s subject matter jurisdiction. And, while all the

defendants in 10-cv-410-JL prevailed, none of them prevailed by

arguing that the court lacked subject matter jurisdiction over

the claims that had been brought against them. Rather, Judge

Laplante dismissed 10-cv-410-JL under Rules 12(b)(6) and 12(c).

He could not have made those rulings if the court lacked subject

matter jurisdiction over the claims he dismissed.

In short, the court had subject matter jurisdiction over

the claims in 10-cv-410-JL, and has subject matter jurisdiction

over Katz’s claims in this case. Because Katz has no valid

argument that the court lacks subject matter jurisdiction over

her claims, she has waived any objection to litigating her

claims in this court. See Universal Truck & Equip. Co. v.

Southworth-Milton, Inc.,

(1st Cir. 2014).

14 Consequently, if Katz’s motion to remand were not moot, the

court would be compelled to deny it on the merits.

V. Conclusion

For the reasons described above: (1) the court grants all

six of the pending motions to dismiss, document nos. 5, 7, 8,

10, 11, and 14; (2) Katz’s claims against Matel, Weinberg, Doty,

Morris, Lovett, Roy, Boddy, Hennessy, Donatelli, and the BPD are

all dismissed sua sponte; and (3) Katz’s motion to remand,

document no. 21, is denied as moot. The clerk of the court

shall enter judgment in accordance with this order and close the

case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

November 12, 2015

cc: Elena Katz, pro se Corey S. Belobrow, Esq. Brian J.S. Cullen, Esq. Samantha Dowd Elliott, Esq. Paul B. Kleinman, Esq. Sabin R. Maxwell, Esq. Adams B. Pignatelli, Esq. Michael A. Pignatelli, Esq. Kenneth A. Sansone, Esq. Donald L. Smith, Esq. Nancy J. Smith, Esq.

15