UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Oneta Bobbett

v. Civil No. 17-cv-265-JD Opinion No.

City of Portsmouth, et al.

O R D E R

Oneta Bobbett brings suit against the City of Portsmouth

and two members of its police department, Kristyn Bernier and

Michael Leclair, alleging federal and state law claims arising

from a criminal investigation and prosecution against her. The

defendants move for judgment on the pleadings on three of the

state law claims, Counts II, IV, and V. Bobbett objects.

Standard of Review

“The standard of review of a motion for judgment on the

pleadings under Federal Rule of Civil Procedure 12(c) is the

same as that for a motion to dismiss under Rule 12(b)(6).”

Frappier v. Countrywide Home Loans, Inc.,

(1st

Cir. 2014) (internal quotation marks omitted). Under that

standard, the court will dismiss a claim “only if, taking all

the complaint’s well-pled allegations as true and viewing the

other facts in the light most favorable to the plaintiff, the complaint does not allege ‘enough facts to state a claim to

relief that is plausible on its face.’” Portugues-Santana v.

Rekomdiv Int’l Inc.,

(1st Cir. 2013) (quoting

Bell Atl. Corp. v. Twombly,

(2007)). “While

[the plausibility] standard does not impose a ‘probability

requirement,’ it does require ‘more than a sheer possibility

that a defendant has acted unlawfully.’” Germanowski v. Harris,

(1st Cir. 2017) (quoting Ashcroft v. Iqbal,

(2009)). “Engaging in this plausibility inquiry

is ‘a context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.’”

(quoting Iqbal,

).

Background1

In late 2013, Bobbett purchased a ring from Jathar Jewelers

with her credit card. Following that purchase, Bobbett noticed

1 The facts in this section are taken from Bobbett’s complaint and several documents that the defendants have attached to their motion, including the search and arrest warrants against Bobbett and the indictments and criminal informations charging Bobbett with the offenses at issue in her complaint. The court may consider the documents attached to the defendants’ motion because they are “fairly incorporated” into the complaint and susceptible to judicial notice. See Mercury Sys., Inc. v. S’holder Representative Servs., LLC,

(1st Cir. 2016) (discussing what courts may consider when reviewing motion for judgment on the pleadings).

2 two charges on her credit card statement for $1,850, the price

of the ring. Although one of the purchases was the one that

Bobbett had authorized from Jathar Jewelers, Bobbett had not

authorized the other charge, which was from a merchant named the

Face Café.

Bobbett disputed the Face Café charge with her credit card

company, who advised her to report the charge to the police.

Following that advice, Bobbett reported the Face Café charge as

fraudulent to Officer Todd Goodwin of the Portsmouth Police

Department.

At the time Bobbett made her complaint to Goodwin, she was

in a contentious divorce proceeding with her husband, Jonathan

Bobbett (“Jonathan”). Jonathan was a prominent local

businessman, who had personal ties to the Portsmouth Police

Department. Jonathan had socialized with members of the police

department, taken members on trips to Hong Kong, Russia, and Las

Vegas, and made charitable donations to the department.

Following Bobbett’s report, Detective Kristyn Bernier of

the Portsmouth Police Department began investigating Bobbett

based on the theory that Bobbett had falsely reported the Face

Café transaction as fraudulent. In connection with that

investigation, Bernier executed an affidavit in support of an

application for a search warrant to seize and search Bobbett’s

3 cell phone. On January 15, 2014, Bernier received the warrant,

which authorized police to search Bobbett’s phone “for

subscriber and electronic communication documentation specific

to this case.” The warrant also provided police the authority

to access, view, and reproduce data from all items referred to

in the search warrant “as necessary for the investigation and

prosecution of this matter from October 20, 2013 through January

15, 2014.”

The day after Bernier obtained the warrant, she met with

Bobbett at the police station. Bobbett believed that the

purpose of the meeting was for Bernier to provide an update

about the investigation concerning the Face Café transaction.

During the meeting, however, Bernier executed the search warrant

and confiscated Bobbett’s phone.

In April of 2014, Bernier sought, and received, an arrest

warrant for Bobbett based on the crimes of providing a false

report to law enforcement, making unsworn falsifications, and

tampering with witnesses and informants. In September of 2014,

a Rockingham grand jury returned an indictment against Bobbett

on the witness tampering count. In addition, the Rockingham

County Attorney filed informations charging Bobbett with

providing a false report to law enforcement and making unsworn

falsifications.

4 The criminal charges against Bobbett were ultimately nol-

prossed on August 27, 2015. The records of the charges were

annulled on March 7, 2016.

On October 6, 2014, a guardian ad litem report in the

Bobbetts’ divorce proceeding stated that Jonathan had expressed

concerns that Bobbett was moving to Atlanta. Bobbett had never

discussed anything with Jonathan about moving to Atlanta. The

phone seized by Bernier, however, contained text messages

between Bobbett and a man she used to date, in which that man

urged her to move to Atlanta to be with him. Those text

messages were from the summer of 2013, which was outside of the

time limitation established in the search warrant.

Bobbett alleges that the police gave Jonathan this

information, which they obtained through an illegal search of

her phone. Bobbett further alleges that Bernier and the

Portsmouth Police Department never actually suspected her of

criminal wrongdoing, but rather started the criminal

investigation as a means of obtaining information to aid

Jonathan in the divorce.

Bobbett brings a claim against Bernier and Leclair under

for violation of her constitutional rights (Count

I). In addition, Bobbett brings a claim for malicious

prosecution against Bernier and Portsmouth (Count II), and

5 claims for abuse of process (Count III), intrusion upon

seclusion (Count IV), and public disclosure of private facts

(Count V), against Bernier, Leclair, and Portsmouth.

Discussion

Bernier and Portsmouth move for judgment on the pleadings

on Bobbett’s claims for malicious prosecution against them.

Bernier, Leclair, and Portsmouth move for judgment on the

pleadings on the claims against them for intrusion upon

seclusion and public disclosure of private facts. Bobbett

objects.2

I. Malicious Prosecution (Count II)

To state a claim for malicious prosecution, Bobbett must

allege that “(1) [s]he was subjected to a criminal prosecution

or civil proceeding instituted by the defendant; (2) without

probable cause; (3) with malice; and (4) the prior action

terminated in [her] favor.” Ojo v. Lorenzo,

(2013); see also Farrelly v. City of Concord,

(2015). In support of her malicious prosecution claim, Bobbett

alleges that Bernier (1) did not have an honest suspicion that

2 Although Bernier, Leclair, and Portsmouth moved jointly for judgment on the pleadings, see doc. no. 18, Portsmouth and Leclair filed a joint reply to Bobbett’s objection, which Bernier did not join. Doc. no. 26. Rather, Bernier filed her own reply to Bobbett’s objection. Doc. no. 25.

6 she engaged in criminal conduct and (2) maliciously initiated

the criminal proceedings against her. Portsmouth and Bernier

move for judgment on the pleadings on the malicious prosecution

claims, arguing that Bobbett’s claims fail because the grand

jury returned an indictment against her. Portsmouth and Bernier

also contend that Bobbett has failed to allege that the

prosecution was malicious.

A. Probable Cause

The defendants contend that they are entitled to judgment

on the pleadings on the malicious prosecution claim because a

grand jury in Rockingham County returned an indictment against

Bobbett on the charge of tampering with witnesses and

informants. Because Bobbett has not alleged that Bernier

engaged in impropriety in obtaining that indictment, the

defendants argue that Bobbett has not plausibly pled that the

prosecutions occurred without probable cause.

In response, Bobbett argues that the grand jury only

indicted her on the tampering charge and not the charges for

making a false report to law enforcement and making unsworn

falsifications. Bobbett further contends that because the grand

jury did not return indictments for those two charges, her

malicious prosecution claim can proceed.

7 “Probable cause in the malicious prosecution context has

long been defined as ‘such a state of facts in the mind of the

prosecutor as would lead a man of ordinary caution and prudence

to believe or entertain an honest and strong suspicion that the

person arrested is guilty.’” Stock v. Byers,

(1980) (quoting MacRae v. Brant,

(1967)). “It

depends not upon the accused’s guilt or innocence of the crime

charged but upon the prosecutor’s honest and reasonable belief

in such guilt at the time the prosecution is commenced.”

“Courts are nearly uniform in holding that the return of an

indictment defeats a claim for malicious prosecution unless the

plaintiff alleges that the defendant engaged in impropriety when

procuring the indictment.” Ojo,

. An indictment

“‘definitively establishes probable cause’ unless, at the

pleading stage, the plaintiff asserts that ‘the defendants

wrongfully obtained the indictment by knowingly presenting false

testimony to the grand jury.’”

(quoting Gonzalez Rucci v.

United States I.N.S.,

(1st Cir. 2005)).

1. Tampering Charge

The grand jury indicted Bobbett for the offense of

tampering with witnesses or informants. Bobbett does not allege

that Bernier or Portsmouth engaged in impropriety in obtaining

the indictment. Therefore, the indictment definitively

8 establishes probable cause for the tampering charge, and Bobbett

may not proceed on her malicious prosecution claim based on that

offense. Accordingly, to the extent Bobbett’s malicious

prosecution claim is based on the prosecution of the tampering

charge, that claim is dismissed.

2. False Statement Charges

Bobbett contends that her malicious prosecution claims may

proceed because the grand jury did not return an indictment on

the false statement charges. Generally, in the malicious

prosecution context, “probable cause as to one charge will not

bar a malicious prosecution claim based on a second, distinct

charge as to which probable cause was lacking.” See Mendonca v.

City of Providence,

(D.R.I. 2016)

(citing cases) (concluding that plaintiff’s conviction on a

concurrently prosecuted charge did not defeat malicious

prosecution claim on different charge); see also Soto v. City of

N.Y.,

(E.D.N.Y. 2015) (“[W]here a grand

jury indicts on some, but not all charges, the presumption [of

probable cause] attaches only to those charges in the

indictment.”).

Bernier and Portsmouth provide no argument or authority

supporting their assertion that the indictment, which only

addressed the witness tampering charge, conclusively establishes

9 probable cause for all of the charges. For that reason, their

assertion is not sufficiently developed to permit review. Coons

v. Indus. Knife Co.,

(1st Cir. 2010) (explaining

that district courts are free to discard underdeveloped

arguments); United States v. Zannino,

(1st Cir.

1990) (observing that issues discussed in a perfunctory manner

without “developed argumentation” are waived). Accordingly, for

the purpose of defendants’ motion for judgment on the pleadings,

the court concludes that the indictment in this case does not

definitively establish probable cause as to the false statement

charges.3

Bobbett has adequately alleged that Portsmouth and Bernier

did not possess probable cause to initiate the two false

statement counts against her.

3 Portsmouth and Bernier also argue that Bobbett cannot plead probable cause because (1) Bernier obtained an arrest warrant for the false statement charges and (2) the Rockingham County Attorney provided informations charging Bobbett with the false statement offenses. Portsmouth and Bernier, however, provide no authority supporting the theory that an arrest warrant or an information conclusively demonstrate probable cause at this stage of the proceedings. Therefore, the court concludes that, for the purposes of this motion for judgment on the pleadings, the informations and arrest warrant do not preclude Bobbett from proceeding on her malicious prosecution claims.

10 B. Malice

Portsmouth and Bernier also assert that the complaint fails

to plead a claim for malicious prosecution because it contains

only conclusory allegations of malice. In response, Bobbett

contends she has properly alleged malice. In the context of a

malicious prosecution claim, “[m]alice exists ‘when the primary

purpose in instituting the criminal proceeding was not to bring

an offender to justice, but was, on the contrary, ill will,

personal hostility, or to obtain a personal advantage.’” Toney

v. Perrine, No. CIV 06-CV-327-SM,

, at *6 (D.N.H.

Sept. 10, 2007) (quoting MacRae v. Brant,

(1967)); see also Aranson v. Schroeder,

(1995)

(describing malicious process as requiring “an improper purpose

in the use of legal process” (internal quotation marks

omitted)).

Here, Bobbett alleges that “[t]he defendants procured the

institution of criminal proceedings against [her] with malice.”

Doc. no. 1 at ¶ 33. Standing alone, this allegation could be

considered, as defendants contend, a conclusory recitation of

the elements of malicious prosecution. The complaint, however,

goes on to allege a number of additional facts concerning

malice. Bobbett alleges that she did not falsely report the

Face Café charge, and that Bernier did not honestly suspect that

11 she had. The complaint also alleges that the defendants had an

improper motive in conducting the investigation; namely, that

they sought to help Jonathan in the divorce by giving him

information from Bobbett’s phone. Finally, the complaint

alleges that as a result of the investigation, Jonathan did

indeed receive such information. Those allegations are

sufficient to allege that the defendants acted with malice in

instituting the prosecution against Bobbett.

Accordingly, Bobbett has properly alleged a claim for

malicious prosecution based on the false statement charges.

II. Intrusion upon Seclusion (Count IV)

Bobbett alleges that the defendants intruded on her

seclusion by searching her phone beyond the limits authorized by

the search warrant and by searching content that had nothing to

do with the criminal investigation. The defendants move for

judgment on the pleadings, arguing that the alleged intrusion

upon Bobbett’s seclusion did not go beyond the accepted

standards of decency. In addition, the defendants contend that

Bobbett has failed to allege that “the defendants should have

realized” that the alleged conduct “would be offensive to

persons of ordinary sensibilities.”

Under New Hampshire law, “‘a person who unreasonably and

seriously interferes with another’s interest in not having his

12 affairs known to others is liable to the other.’” Hamberger v.

Eastman,

(1964) (quoting Restatement (First)

of Torts § 867 (1939)). To recover under this tort, a plaintiff

need not “prove any harm beyond the intrusion itself.”

Preferred Nat. Ins. Co. v. Docusource, Inc.,

, 766–

67 (2003) (citing Restatement (Second) of Torts § 652H

comment a at 402 (1977)). An intrusion is tortious, however,

only “if the defendant’s conduct was such that he should have

realized that it would be offensive to persons of ordinary

sensibilities.” Hamberger,

(internal quotation

marks omitted). Liability attaches only “where the intrusion

has gone beyond the limits of decency.”

(internal quotation

marks omitted).

Whether a particular intrusion is offensive is a question

usually reserved for the factfinder. Remsburg v. Docusearch,

Inc.,

(2003). In making this determination,

the factfinder should consider “the degree of intrusion, the

context, conduct and circumstances surrounding the intrusion as

well as the intruder's motives and objectives, the setting into

which he intrudes, and the expectations of those whose privacy

is invaded.”

(internal quotation marks omitted).

Bobbett alleges that the defendants pursued baseless

criminal charges against her to gain access to the information

13 on her cell phone, which included her private messages. Bobbett

further alleges that the defendants did this for the purpose of

providing information to Jonathan to use in the couple’s divorce

proceeding. Taking these allegations as true, as the court is

required to do at this stage, the complaint plausibly alleges

(1) conduct that goes beyond the limits of decency and (2)

conduct that the defendants should have known would be offensive

to persons of ordinary sensibilities. Accordingly, Bobbett has

alleged a claim for intrusion upon seclusion.4

III. Public Disclosure of Private Facts (Count V)

Bobbett brings a claim for public disclosure of private

facts against the defendants, alleging that they improperly

publicized the contents of the personal information on her cell

phone. Under New Hampshire law, “[o]ne who gives publicity to a

matter concerning the private life of another is subject to

liability to the other for invasion of his privacy, if the

matter publicized is of a kind that (a) would be highly

offensive to a reasonable person, and (b) is not of legitimate

4 In her reply, Bernier argues that Bobbett has not alleged that she was the person who conducted the search at issue. Bobbett has alleged that Bernier obtained the search warrant and confiscated her cell phone. At this stage of the litigation, those allegations are enough for the court to infer that Bernier searched Bobbett’s phone.

14 concern to the public.” Lovejoy v. Linehan,

(2011) (quoting Restatement (Second) of Torts § 652D (1977)).

The defendants argue that Bobbett has not alleged that they

publicized the relevant information. In addition, the

defendants contend that Bobbett’s claim fails because the

information they disclosed is not highly offensive to a

reasonable person. Bobbett objects, arguing that she has

alleged a plausible claim for public disclosure of private

facts.

A. Publicity

“[P]ublicity differs from mere publication,” in that

“[w]hile publication involves any communication by the defendant

to a third person, publicity means that the matter is made

public, by communicating it to the public at large, or to so

many persons that the matter must be regarded as substantially

certain to become one of public knowledge.” Karch v. BayBank

FSB,

(2002) (internal quotation marks

omitted). Although publicity requires communication to the

public at large, the New Hampshire Supreme Court has held that

“determining whether a disclosure of a private matter has become

one of public knowledge does not, as a matter of law, depend on

the number of people told.”

Rather, “[w]hether publicity

is achieved by broadcasting something private to a few people or

15 to the masses is a conclusion best reached by the trier of

fact.”

For example, in Karch, the New Hampshire Supreme

Court concluded that a complaint alleging that the defendant

shared the private information of its employee to “other . . .

employees and/or officers” stated a claim for public disclosure

of private facts.

Here, Bobbett alleges that members of the Portsmouth police

department disclosed information from her phone to Jonathan for

use in the couple’s divorce proceedings. The complaint further

alleges that this information was ultimately included in a

guardian ad litem report that was used in the divorce

proceedings. As a result, the information was, at the very

least, spread to several people involved in the case, including

the guardian ad litem and the court. These allegations are

enough to plausibly allege that the defendants publicized

Bobbett’s private information.

B. Offensiveness

Bobbett alleges that it was highly offensive to have police

search her phone for details of her personal life and then

disclose that information to Jonathan. As discussed above, to

plead a claim for public disclosure of private facts, the

plaintiff must allege that the “matter publicized is of a kind

that would be highly offensive to a reasonable person.”

16 Lovejoy,

(quoting Restatement (Second) of Torts

§ 652D (1997)).

The defendants contend that this disclosure cannot be the

basis for a viable public disclosure of private facts claim

because the subject of that disclosure only concerned Bobbett’s

intention to move to Atlanta, something that is not highly

offensive. In response, Bobbett asserts that she has alleged a

situation, based on its context, that is highly offensive.

In this case, Bobbett alleges that the defendants disclosed

the contents of her private and personal communications on her

cell phone. It can be reasonably inferred that the disclosed

statements were highly sensitive, given that they were between

Bobbett and a person that she used to date and were disclosed

while she was in the midst of a divorce proceeding. In

addition, the defendants allegedly were aware of the divorce and

acted on behalf of Jonathan, to assist him in the divorce

proceedings. Given these allegations, Bobbett has plausibly

alleged that the disclosure would be highly offensive to

ordinary people.

Conclusion

For the foregoing reasons, defendants’ motion for judgment

on the pleadings (doc. no. 18) is granted as to the malicious

prosecution claims against Bernier and Portsmouth arising from

17 the prosecution of the witness tampering offense, part of Count

II, and is denied as to the remainder of Count II, Count VI, and

Count V.

SO ORDERED.

__________________________ Joseph A. DiClerico, Jr. United States District Judge March 29, 2018

cc: Charlie P. Bauer, Esq. Benjamin T. King, Esq. Daniel J. Mullen, Esq.

18