UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Sanjeev Lath

v. Civil No. 16-cv-00534-LM Opinion No.

Amica Mutual Insurance Company, et al.

O R D E R

Sanjeev Lath, proceeding pro se, brought claims against 17

defendants in 27 counts. His claims arise from several alleged

incidents that occurred while he was a unit owner at the Oak

Brook Condominium. Relevant here, Lath asserted five counts

against Amica Mutual Insurance Company (“Amica”) related to

Amica’s denial of insurance coverage for a fire that occurred at

Lath’s condominium unit.

Amica moved for summary judgment on all Lath’s claims,

contesting both liability and damages. The court denied without

prejudice Amica’s motion as to damages. Regarding liability,

the court held its ruling in abeyance to allow Lath additional

time to file an affidavit or declaration in support of his

objection. The court explained that such a filing must qualify

as either a sworn statement or as an unsworn declaration in

conformance with

to constitute competent

evidence. Lath timely submitted a supplemental filing. The court will now rule on Amica’s motion for summary judgment as to

liability based on the record, including Lath’s supplemental

filing.

STANDARD OF REVIEW

A movant is entitled to summary judgment if it “shows that

there is no genuine dispute as to any material fact and [that

it] is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). In reviewing the record, the court construes all

facts and reasonable inferences in the light most favorable to

the nonmovant. Kelley v. Corr. Med. Servs., Inc.,

(1st Cir. 2013).

BACKGROUND1

On December 15, 2016, a fire occurred at Lath’s condominium

unit. The next day, Lath provided notice of the fire to Amica,

with whom he held a homeowner’s insurance policy (the “Policy”).

As the court explained in its prior order, the Policy includes

an “examination under oath” provision. Doc. no. 405 at 4-5.

This provision requires the insured to submit to the insurer’s

1 A more comprehensive factual background is laid out in the court’s January 30, 2020 order on Amica’s motion for summary judgment. Doc. no. 405.

2 reasonable request for an examination under oath as a

prerequisite for filing suit against the insurer.

On December 30, 2016, Amica’s counsel sent Lath notice by

email and regular mail that Amica was electing to take his

examination under oath. The examination was scheduled for

January 18, 2017, at the law office of Craig and Gatzoulis.

Lath responded that same day, stating that he would “not be

appearing for an examination under oath.” Doc. no. 392-5 at 2.

In the same email, he reiterated: “Again, I do not consent and

will not consent to such an examination under oath.”

On January 3, 2017, Amica’s counsel responded to Lath. He

referred Lath to the specific provision of the Policy regarding

examinations under oath and notified Lath that he had changed

the location of the examination in response to Lath’s concerns

about the prior location. Lath received the January 3 letter

but failed to appear for the January 18 examination. As a

result, Amica denied Lath’s insurance claim. Lath then filed

suit against Amica, asserting the following claims: (1) civil

conspiracy; (2) breach of contract; (3) breach of implied

covenant of good faith and fair dealing; (4) deception; and (5)

invasion of privacy.

Amica moved for summary judgment on all Lath’s claims,

arguing that Lath’s refusal to comply with the examination under

oath provision of the Policy precludes him from bringing this

3 suit. Lath claimed that he informed Amica that he could not

attend the examination on the scheduled date but Amica refused

to reschedule. Specifically, Lath stated that on “January 12,

2019, I requested [Amica’s counsel] to reschedule the

examination as I was sick, and my request for time off from

work, to attend the examination was denied. I never received

any confirmation or follow up on my request to reschedule the

examination.”2 Doc. no. 397-1 at 1.

Lath’s statement, however, was unsworn and did not comply

with

. See

As such, it was not competent

evidence to defeat Amica’s summary judgment motion. See, e.g.,

Link Treasure Ltd. v. Baby Trend, Inc.,

(C.D. Cal. 2011); Bayad v. Chambers, No. CIV A 04-10468-

PBS,

, at *2 n.9 (D. Mass. Dec. 20, 2005). Given

Lath’s pro se status, the court allowed Lath additional time to

submit either a sworn statement or an unsworn declaration in

compliance with

, supporting his claim that he

asked Amica’s counsel to reschedule the examination and Amica

refused to do so. In response to the court’s order, Lath timely

submitted a supplemental filing.

2 Reading this statement in the context of the affidavit, it appears that the date includes a scrivener’s error and should read 2017, not 2019.

4 DISCUSSION

I. Competency of Supplemental Filing

The court first evaluates whether it can consider Lath’s

supplemental filing as competent evidence in opposition to entry

of summary judgment. Lath’s filing states: “I swear under the

pains and penalty of perjury that the foregoing statements are

true to the best of my knowledge and belief.” Doc. no. 406 at

2. It also includes Lath’s signature and the date it was

executed.

This filing is an unsworn declaration in

substantially the same form as that required by

(2). This court therefore may consider it as competent

evidence in opposition to summary judgment. See Goldman,

Antonetti, Ferraiuoli, Axtmayer & Hertell v. Medfit Int'l, Inc.,

(1st Cir. 1993).3

Lath’s unsworn declaration contains the same factual

statements as his original “affidavit.” Compare doc. no. 397-1,

with doc. no. 406. Specifically, Lath asserts that on January

12, he asked Amica’s counsel to reschedule the examination but

never received any response from Amica regarding his request to

reschedule.

3 Lath’s filing also appears to qualify as a sworn statement because it is sworn, signed, and notarized.

5 The fact that Lath’s affidavit is self-serving does not

render it improper summary judgment evidence. A “party’s own

affidavit, containing relevant information of which he has

first-hand knowledge, may be self-serving, but it is nonetheless

competent to support or defeat summary judgment.” Santiago-

Ramos v. Centennial P.R. Wireless Corp.,

(1st

Cir. 2000) (internal quotation marks omitted); see also Harley-

Davidson Credit Corp. v. Galvin,

(1st Cir.

2015). And, although there may be conflicting evidence in the

record, the court construes Lath’s statement as true for

purposes of summary judgment.4

II. Merits of Summary Judgment Motion as to Liability

The court next considers whether, given the facts stated in

Lath’s unsworn declaration, Amica is entitled to summary

judgment. Amica asserts that it is entitled to summary judgment

because Lath failed to fulfill a condition precedent to this

suit—his submission to Amica’s reasonable request for an

examination under oath. Lath counters that Amica’s request was

4Amica also states in its memorandum in support of its motion for summary judgment, without citing to the record, that Lath did not make any request to change the timing of the examination under oath. Even if the court could credit such a statement at this stage, there would still be a genuine issue of material fact in light of Lath’s affidavit.

6 not reasonable because it refused to reschedule the examination

to accommodate him.

As explained in the court’s prior order, “submission to a

reasonable request for an [examination under oath] [is] a

condition precedent to filing suit.” Krigsman v. Progressive N.

Ins. Co.,

(2005). “Reasonableness is a fairly

low threshold in this context.” Lessard v. EMC Ins. Companies,

No. 10-CV-302-JL,

, at *4 (D.N.H. Aug. 17, 2011)

(internal quotation marks omitted). In this case, however, a

rational factfinder viewing the record in the light most

favorable to Lath could conclude that Amica’s request for an

examination under oath was unreasonable in light of its

purported failure to accommodate Lath’s request to reschedule.

See

(denying insurer’s motion for summary judgment based on

plaintiff’s failure to submit to an examination under oath

because whether insurer’s lengthy delay in requesting the

examination was “reasonable” was a jury question). For this

reason, there exists a genuine dispute of material fact about

whether Amica’s request for Lath’s examination under oath was

reasonable under the circumstances. Amica is not entitled to

summary judgment as to liability.

7 CONCLUSION

For the foregoing reasons, the court denies Amica’s motion

for summary judgment (doc. no. 391) as to liability on Lath’s

five claims.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

March 9, 2020

cc: Pro Se Party and Counsel of Record

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