UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Sanjeev Lath

v. Civil No. 16-cv-534-LM Opinion No.

Manchester Police Department, Gerard Dufresne, Dorothy Vachon, BMS CAT, and Amica Mutual Insurance Company

O R D E R

This case now consists of one federal claim against the

Manchester Police Department, brought through the vehicle of

, and state law claims against all five defendants.

Plaintiff’s sole claim against Dorothy Vachon is that she

installed wiretapping devices in his unit at the Oak Brook

Condominium (“Oak Brook”), in violation New Hampshire Revised

Statute Annotated (“RSA”) § 570-A. Before the court is Vachon’s

motion for summary judgment, to which Lath has not responded.

For the reasons that follow, Vachon’s motion for summary

judgment is granted.

I. Summary Judgment Standard

“Summary judgment is appropriate when the record shows that

‘there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.’” Walker v. President & Fellows of Harvard Coll.,

(1st Cir.

2016) (quoting Farmers Ins. Exch. v. RNK, Inc.,

(1st Cir. 2011); citing Fed. R. Civ. P. 56(a)). “A genuine

issue is one that can ‘be resolved in favor of either party’ and

a material fact is one which ‘has the potential of affecting the

outcome of the case.’” Walker,

(quoting Gerald

v. Univ. of P.R.,

(1st Cir. 2013); citing Pérez-

Cordero v. Wal-Mart P.R., Inc.,

(1st Cir.

2011)).

When a court considers a motion for summary judgment,

“[t]he evidence . . . must be viewed in the light most favorable

to the nonmoving party . . . and all reasonable inferences must

be taken in that party’s favor.” Harris v. Scarcelli (In re Oak

Knoll Assocs., L.P.),

(1st Cir. 2016) (citing

Desmond v. Varrasso (In re Varrasso),

(1st Cir.

1994)). “The nonmovant may defeat a summary judgment motion by

demonstrating, through submissions of evidentiary quality, that

a trialworthy issue persists.” Cruz v. Mattis,

(1st Cir. 2017) (quoting Iverson v. City of Bos.,

(1st Cir. 2006)).

II. Background

Both Lath and Vachon own units at Oak Brook. In his First

Amended Complaint (“FAC”), Lath alleges that on or around

2 September 30, 2016, he “notic[ed] two holes created by Defendant

Dorothy Vachon . . . inside [his] cabinet . . ., with an

attached wiretapping device.” FAC (doc. no. 24) ¶ 30 (citation

to the record omitted). And he further alleges that “Vachon

installed wiretapping devices from [her] unit[] extending into

[his] unit with an intent to surreptitiously eavesdrop on [his]

conversations . . . .” Id. ¶ 255. Based upon those

allegations, Lath asserts a claim that Vachon is liable to him

for violating RSA 570-A.

III. Discussion

Vachon moves for summary judgment, arguing that she has

produced undisputed evidence that she never installed a

wiretapping device in his unit. The court agrees.

RSA 570-A:11 provides a civil cause of action for damages

to “[a]ny person whose telecommunication or oral communication

is intercepted . . . in violation of this chapter.” In

pertinent part, the New Hampshire wiretapping and eavesdropping

statute makes it unlawful to willfully: (1) intercept “or

endeavor to intercept, any telecommunication or oral

communication,” RSA 570-A:2, I(a); or (2) use “or endeavor to

use, any electronic, mechanical, or other device to intercept

any oral communication,” RSA 570-A:2, I(b), under certain

specified circumstances, see RSA 570-A:2, I(b)(1)-(3).

3 In support of her motion for summary judgment, Vachon has

produced an affidavit in which she testified that: (1) she once

lived in the unit next to Lath’s unit at Oak Brook; (2) the two

units shared a common wall; (3) she “never created holes in the

common wall . . . for any purpose, let alone for installing

listening devices to record, intercept, wiretap or eavesdrop on

Mr. Lath or conversations in [his] unit,” Def.’s Mem. of Law,

Ex. A (doc. no. 101-2) ¶ 4; (4) she “never installed any device

in Mr. Lath’s condominium unit or in the common wall . . . to

record, intercept, wiretap or eavesdrop on Mr. Lath or

conversations in [his] unit” id. ¶ 5; and (5) she “never used or

attempted to use any device to record, intercept, wiretap or

eavesdrop on Mr. Lath or conversations in [his] unit,” id. ¶ 6.

Vachon testified to similar effect during a deposition in a case

brought by Lath in the Hillsborough County Superior Court. See

Def.’s Mem. of Law, Ex. B (doc. no. 101-3) 3-4 of 5.

As the court has noted, Lath has not responded to Vachon’s

motion for summary judgment. Necessarily, he has not

“demonstrate[ed], through submissions of evidentiary quality,

that a trialworthy issue persists.” Cruz,

.

Because the undisputed factual record demonstrates that Vachon

did not violate RSA 570-A:2, she is entitled to judgment as a

matter of law on Lath’s eavesdropping claim.

4 IV. Conclusion

Because Vachon is entitled to judgment as a matter of law

on Lath’s eavesdropping claim, her motion for summary judgment,

document no. 101, is granted. Moreover, as there are now no

claims remaining against Vachon, she is dismissed from this

case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

August 28, 2017

cc: Kevin E. Buchholz, Esq. Gary M. Burt, Esq. Gerard Dufresne, pro se Sanjeev Lath, pro se Bruce Joseph Marshall, Esq. Sabin R. Maxwell, Esq. Richard C. Nelson, Esq. Brendan D. O’Brien, Esq. James G. Walker, Esq.

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