UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Monica Banerjee

v. Civil No. 15-cv-488-JD Opinion No.

Town of Wilmot

O R D E R

Monica Banerjee, proceeding pro se, brought suit against

the Town of Wilmot, New Hampshire, alleging a federal due

process claim and a state claim for fraudulent misrepresentation

that arose from her dispute with the town about a building

permit for construction of a building for her business and her

home. Wilmot moves to dismiss the federal due process claim on

the ground that it is barred by res judicata and moves to

dismiss both the federal and state law claims on the ground that

they are time-barred. Banerjee objects to the motion to dismiss

and also moves to stay the case pending her appeal in the New

Hampshire Supreme Court.

I. Motion to Stay

Banerjee states that her “initiating documents and

subsequent amended complaint indicates [sic] there is a pending

appeal in New Hampshire Supreme Court, docket # 20150704 Monica

Banerjee v. Town of Wilmot, N.H.” She did not submit any documents to show what was appealed. It appears that Banerjee

appealed the decision of the Merrimack County Superior Court,

issued on September 29, 2015, that dismissed her promissory

estoppel claim against Wilmot.

In support of her motion to stay, Banerjee represents that

if her claims in this suit survive the pending motion to dismiss

and if her appeal is successful, she intends to seek leave to

remove her state claim, for promissory estoppel, to this court

to be heard concurrently with this case. She provides no

authority to support her request for a stay.1 Cf. Watson v.

Perez, --- F. Supp. 3d ---,

(D. Mass.

Mar. 11, 2016) (discussing Younger abstention); AIG Property

Casualty Co. v. Green, --- F. Supp. 3d ---,

(D. Mass. Dec. 15, 2015) (discussing other abstention

doctrines applicable when a related state action is pending);

Goulette v. Service Credit Union,

, at *2 (D.N.H.

Sept. 16, 2015) (same).

This case does not include a claim for promissory estoppel.

Banerjee does not contend that the outcome in this case would

affect the appeal or that the appeal would affect this case.

Further, Banerjee’s removal theory is contrary to the removal

1 Wilmot, which is represented by counsel, failed to file a response to the motion to stay. For that reason, Wilmot does not object to the stay.

2 statute that allows defendants, not plaintiffs, to remove cases

to federal court. See

(a). Therefore, Banerjee

has provided no cognizable ground to support imposing a stay in

this case while her appeal is pending.

II. Motion to Dismiss

Wilmot moves to dismiss the federal due process claim on

the ground that it is barred by res judicata and moves to

dismiss both the due process claim and the state law fraud claim

on the ground that they are barred by the statute of

limitations. In response, Banerjee argues that she is bringing

a different due process claim in this case, which does not

implicate res judicata, and that neither claim is barred by the

statute of limitations.

Standard of Review

In considering a motion to dismiss for failure to state a

claim under Federal Rule of Civil Procedure 12(b)(6), the court

assumes the truth of the properly pleaded facts and takes all

reasonable inferences from the facts that support the

plaintiff’s claims. Mulero-Carrillo v. Roman-Hernandez,

(1st Cir. 2015). Conclusory statements in the

complaint that merely provide the elements of a claim or a legal

standard are not credited for purposes of a motion under Rule

3 12(b)(6). Lemelson v. U.S. Bank Nat’l Assn.,

(1st Cir. 2013). Based on the properly pleaded facts, the court

determines whether the plaintiff has stated “a claim to relief

that is plausible on its face.” Bell Atl. Corp. v. Twombly,

(2007).

Background

In her amended complaint, Banerjee alleges that in 2003 she

purchased a lot in Wilmot, New Hampshire, to build “a residence

and business.” She was granted a building permit and obtained

other permits for a 14,000 square foot building with a height of

thirty-five feet. Banerjee then submitted an application for an

amended building permit which was granted in September of 2004.

By the spring of 2006, the dry shell of the residential portion

of the structure had been built.

Wilmot contacted Banerjee in January of 2007 about

complaints they had received concerning her construction.

Because of changes in the structure, Banerjee submitted a third

application that was approved in March of 2007. Construction

continued. In August of 2008, Banerjee moved into the top floor

of the structure while construction continued.

In June of 2009, Banerjee called the New Hampshire

Department of Safety to inspect the electrical wiring because of

a hum in her audio equipment. The state inspector told Banerjee

4 that he was discussing concerns about her occupancy of the

unfinished structure with Wilmot officials.

The Board of Selectmen in Wilmot called Banerjee to meet

with them about possible violations at her home. They

questioned the legality of her septic system and the height of

the building. The next day the septic issue was resolved. The

Selectmen inquired about visiting the property to measure the

height of the building. In February of 2010, the Wilmot Fire

Chief, Doug Rayno, and his deputy met with Banerjee and

attempted to measure the building. Banerjee refused to allow

them to measure because she believed she had designed the house

to comply with the thirty-five foot height restriction.

Banerjee then refused a request by Wilmot’s attorney to allow

measurement of the building.

On April 6, 2010, Wilmot’s attorney gave Banerjee an

indemnity agreement for her signature. Under the agreement,

Banerjee would be allowed to keep the building as it existed,

without changing the height or taking other measures, if she

agreed that Wilmot and the fire department would not be liable

to Banerjee for any damage to her property or personal injury

resulting from the height of the building. The agreement also

provided that Banerjee would indemnify the Town and the fire

department for any claims against them by third parties that

5 arose from the height of the building. Banerjee refused to sign

the agreement.

On April 29, 2010, the Board of Selectmen served Banerjee

with a cease and desist order that required her to stop using or

occupying the building on her property until the height of the

building was decreased to comply with the New Hampshire Building

Code, the Wilmot Zoning Ordinance, and her building permit. The

cease and desist order required her appearance and an answer in

Newport District Court. When Banerjee could not find an

attorney to represent her, she appeared pro se. The case was

then moved to Lebanon District Court.

Through discovery, Banerjee learned that the Wilmot Fire

Department’s highest ladder was twenty-four feet, not thirty-

five feet. Additional discovery showed that the town ordinance

for a thirty-five foot restriction on buildings had not passed,

leaving the prior restriction to the height of the fire

department ladder. After further litigation, the Lebanon

District Court issued its order on July 11, 2011, in which the

cease and desist order was annulled and set aside. The court

held that the Wilmot ordinance limiting building height to the

capability of the town’s firefighting equipment was

unenforceable and also held that Banerjee was entitled to fees

and costs pursuant to RSA 676:17-a, VII.

6 Banerjee filed suit against Wilmot in this court on April

26, 2013. Banerjee v. Town of Wilmot, 13-cv-203-PB (D.N.H.

2013). She alleged federal claims, pursuant to

, that Wilmot violated her rights to procedural and

substantive due process under the Fourteenth Amendment and

violated her rights under the Contract Clause. She also alleged

state law claims for abuse of process, malicious prosecution,

fraudulent misrepresentation, and libel and slander. The court

dismissed the federal claims, including the new claims Banerjee

alleged in an amended complaint, because Banerjee failed to

state cognizable claims. The court declined supplemental

jurisdiction over the state law claims, which were dismissed

without prejudice.

On appeal, the First Circuit held that Banerjee did not

have a protectable property interest “in her reliance on Wilmot

providing firefighting services for buildings as high as her

own. This is not a viable claim to a legally-cognizable right.”

Banerjee v. Town of Wilmot, No. 13-2512 (1st Cir. June 20,

2014). The court further explained that the height limit in her

building permit “was no more than a ‘false or merely unkept’

promise.”

The court affirmed the remainder of the order

dismissing Banerjee’s federal claims. The mandate issued on

July 31, 2014. Banerjee alleges that she then petitioned for a

7 writ of certiorari to the United States Supreme Court, which was

denied on December 1, 2014.

Banerjee filed a claim of promissory estoppel against

Wilmot in state court on April 6, 2015. The court ruled that

Banerjee failed to state a claim for promissory estoppel and

that her claim was also barred by the statute of limitations,

RSA 508:4. Banerjee v. Town of Wilmot, No. 217-2015-CV-00124

(Merrimack Sup. Ct. September 21, 2015). Banerjee appealed that

decision, and her appeal remains pending.

Banerjee filed the complaint in this case on November 30,

2015, alleging a claim under § 1983 that Wilmot violated her

procedural due process rights and a state claim of fraudulent

misrepresentation. In support of her procedural due process

claim, Banerjee alleges that Wilmot deprived her without

adequate process:

of fundamental protected and State derived liberty interests of the ability to choose where and under what conditions she would build and establish a home and family, the choice of legal and gainful employment through her intended business without governmental interference that had no legitimate interest which caused her unreasonable personal risk and competitive disadvantage to her business.

Compl. Doc. no. 1, ¶ 85. She alleges in support of her

fraudulent misrepresentation claim that the Selectmen induced

her to build under false pretenses by “stating the capabilities

8 of the Wilmot Fire Department were 35 feet when they were in

fact 24 feet.” Id., ¶ 114.

Discussion

In support of its motion to dismiss, Wilmot contends that

Banerjee’s procedural due process claim is barred by res

judicata based on Banerjee’s prior suit where her procedural due

process claim was dismissed. Wilmot also contends that the

procedural due process claim and the fraudulent

misrepresentation claim are barred by the statute of

limitations. Banerjee argues that res judicata does not apply

because she is alleging a new procedural due process claim in

this case and that RSA 508:10 provided her a year from the

denial of her petition for a writ of certiorari to file suit on

her claims.

A. Claim Preclusion

When the preclusive effect of a federal judgment by a court

exercising federal question jurisdiction is at issue, the court

applies federal law of claim preclusion.2 Maher v. GSI Lumonics,

Inc.,

(1st Cir. 2005). “Under the federal law

Although the parties use the term “res judicata,” the more 2

precise term in this case is claim preclusion. See Silva v. City of New Bedford,

, 78 n.1 (1st Cir. 2011).

9 of claim preclusion, a final judgment on the merits of an action

precludes the parties or their privies from relitigating claims

that were raised or could have been raised in that action.”

Hatch v. Trail King Indus., Inc.,

(1st Cir.

2012). “Claim preclusion applies if (1) the earlier suit

resulted in a judgment on the merits, (2) the causes of action

asserted in the earlier and later suits are sufficiently

identical or related, and (3) the parties in the two suits are

sufficiently identical or closely related.” Airframe Sys., Inc.

v. Raytheon Co.,

(1st Cir. 2010).

There is no dispute that Banerjee’s first federal suit

ended in a final judgment on the merits that dismissed her

procedural due process claim.3 Banerjee and Wilmot were the

parties in the prior suit. Therefore, the only issue raised by

Banerjee is whether the procedural due process claims in the

prior suit and this suit are sufficiently identical or related

to support claim preclusion.

To decide whether claims are sufficiently identical or

related for purposes of claim preclusion, the court applies a

“transactional approach” that “considers whether the underlying

factual bases for the causes are related in time, space, origin

3 For that reason, RSA 508:10 does not apply to Banerjee’s procedural due process claim. See Jenks v. Menard,

(2000).

10 or motivation.” Silva,

(internal quotation marks

omitted). Therefore, the claims are sufficiently identical or

related if they “derive from a common nucleus of operative

facts.”

Banerjee’s procedural due process claims in the first

federal suit and in this suit both arise from the building

permit process in Wilmot.4 Although Banerjee attempts to

refashion her current procedural due process claim to avoid the

First Circuit’s ruling on the lack of a property interest, her

claim continues to allege procedural due process violations that

arise from the Wilmot building permit process and the height of

construction being limited by the capabilities of the fire

department. As such, Banerjee’s first procedural due process

claim and the claim in this case are sufficiently related to

support the application of claim preclusion.

Therefore, Banerjee’s procedural due process claim is

barred and must be dismissed.

B. Supplemental Jurisdiction

Subject matter jurisdiction in this case is based on the

procedural due process claim, which presents a federal question.

In the first suit, Banerjee was given an opportunity to 4

provide additional briefing on her procedural due process claim and also to amend her complaint. Despite those additional opportunities, her claim was dismissed.

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. With the dismissal of the procedural due

process claim, the court declines to exercise supplemental

jurisdiction over the state law claim of fraudulent

misrepresentation. See

(c)(3). Therefore, the

fraudulent misrepresentation claim is dismissed for lack of

jurisdiction.

Conclusion

For the foregoing reasons, the plaintiff’s motion to stay

(document no. 18) is denied. The defendant’s motion to dismiss

(document no. 13) is granted. The procedural due process claim,

Count I, is dismissed with prejudice. The fraudulent

misrepresentation claim, Count II, is dismissed without

prejudice.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

May 3, 2016

cc: Monica Banerjee, pro se Andrew B. Livernois, Esq.

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