UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

William Spencer and Spencer Brothers LLC

v. Civil No. 18-cv-1191-LM Opinion No.

Michael Doran, et al.

O R D E R

Plaintiffs William Spencer (“William”) and Spencer Brothers

LLC (“Spencer Brothers”) filed a second amended complaint

bringing two claims against five current and former employees of

the New Hampshire State Police (collectively “the state

defendants”), three employees of the Federal Motor Carriers

Safety Administration (“FMCSA”), and two employees of the United

States Department of Transportation (collectively “the federal

defendants”). Plaintiffs bring substantive and procedural due

process claims under

and a claim under the

civil remedy provision of the Racketeer Influenced and Corrupt

Organizations (“RICO”) Act,

(c), each arising

from the circumstances of a traffic stop and subsequent

investigations of Spencer Brothers’ business practices. The

state and federal defendants move separately under Federal Rule

of Civil Procedure 12(b)(6) to dismiss the claims against them.

Doc. nos. 36 & 37. In this order, the court will address the motion to dismiss filed by the state defendants Michael Doran,

William Burke, Kenneth Chaput, Steven Kace, and David Hilts.1

STANDARD OF REVIEW

Under Rule 12(b)(6), the court must accept the factual

allegations in the complaint as true, construe reasonable

inferences in the plaintiff’s 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)

(internal quotation marks omitted). A claim is facially

plausible “when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal,

(2009).

On a motion to dismiss, the court ordinarily must not

consider any documents not attached to the complaint or not

expressly incorporated therein. See Ironshore Specialty Ins.

Co. v. United States,

(1st Cir. 2017). There

are, however, narrow exceptions to this rule allowing the court

to consider documents the authenticity of which is not disputed

1 Plaintiffs concede that state defendant David Hilts should be dismissed from this action. Doc. no. 44 at 15. Accordingly, the court does not address any factual or legal allegations directed at defendant Hilts.

2 by the parties, official public records, documents central to

plaintiffs’ claims, or documents sufficiently referred to in the

complaint.

The official public records exception includes

documents that the court could take judicial notice of under

Federal Rule of Evidence 201, such as records of administrative

decisions. See Freeman v. Town of Hudson,

(1st Cir. 2013); O’Hara v. Diageo-Guinness, USA, Inc.,

(D. Mass. 2018).

In support of their objections to both motions, plaintiffs

submitted an administrative order issued by the Department of

Transportation. Doc. nos. 43-1 & 44-1. Similarly, the federal

defendants submitted in support of their motion to dismiss

certain administrative and judicial orders and pleadings filed

in those proceedings. Doc. nos. 36-2 through 36-9. Plaintiffs

do not object to the court’s consideration of these materials or

contest their authenticity. In fact, the second amended

complaint refers to and relies upon certain of the official

public records submitted by the federal defendants—namely an

out-of-service order issued by FMCSA. See doc. no. 36-2 at 102-

04. Accordingly, the court will consider the official public

records submitted in support of all parties’ pleadings in

deciding the instant motion to dismiss. But the court relies on

these official public records only to a limited extent: to

establish the existence of those administrative and judicial

3 proceedings and their legal effect. See O’Hara,

. The court does not, however, rely on the facts as

recited in any of those orders, rulings, pleadings, or exhibits.

See

BACKGROUND

I. Factual Background

The following facts are drawn from the second amended

complaint and from the existence of official public records

attached to the parties’ pleadings as explained above. Spencer

Brothers is a family-owned business located in Laconia, New

Hampshire that removes, installs, cleans, transports, and

properly disposes of cleaned and purged oil tanks and various

other tanks. Spencer Brothers employs William as its only

driver. William holds no ownership interest in the company.

On April 29, 2016, William was driving the company’s truck.

The truck held four tanks containing a small amount of rusty

water, one properly cut, cleaned, and purged oil tank, one

discarded oil-fired hot water tank, and five five-gallon pails.

The truck did not contain hazardous materials.

New Hampshire State Police (“NHSP”) Trooper Michael Doran

effected a traffic stop of William’s vehicle. After examining

his license and registration, Trooper Doran informed William in

a hostile manner that he believed William was operating a

4 commercial motor vehicle. William disagreed based on the weight

of the truck. William made a phone call to a state trooper he

knew in an attempt to deescalate the situation. In response,

Trooper Doran told William not to make any more phone calls and

threatened to arrest William and take away his commercial

driver’s license.

Trooper Doran then demanded that William open the rear door

of the truck. William complied and the trooper took photographs

of the interior of the vehicle. At some point during this

interaction, Trooper Doran accused William of unlawfully

transporting hazardous materials or “hazmat.” Ultimately,

Trooper Doran informed William that the truck was ordered “out

of service” and that it would be towed from the scene. He also

issued William a “fix-it” ticket requiring certain repairs to

the truck.

William hired Extreme Auto to make the repairs necessitated

by the “fix-it” ticket. On May 13, 2016, Trooper Doran and

Kenneth Chaput, another state employee, visited Extreme Auto to

inspect the premises.2 Plaintiffs contend that, during this

2 The second amended complaint alleges that Chaput is an individual employed by the NHSP. Doc. no. 30 at ¶ 6. It also alleges that Chaput was “misidentified” as a NHSP trooper and that “Chaput is an automotive equipment inspector with the [New Hampshire] Department of Safety.” Id. at ¶ 52. In either case, the second amended complaint alleges that Chaput is a New Hampshire state employee.

5 inspection, Doran and Chaput damaged property at Extreme Auto

and harassed its owner in an effort to harass and retaliate

against plaintiffs.

Plaintiffs contend that this campaign of harassment

continued when Trooper Doran requested that FMCSA investigate

Spencer Brothers. On June 13, 2016, FMCSA employees Douglas

Wood and Christopher Gray inspected and photographed Spencer

Brothers’ business location in Laconia. FMCSA agents also

questioned Spencer Brothers’ competitors and customers and

informed them that Spencer Brothers was under investigation,

thereby causing embarrassment and tarnishing its reputation in

the business community.

Following the FMCSA agents’ inspection of Spencer Brothers’

property, one of the agents called NHSP Sergeant William Burke

to report what they had found. Sometime thereafter, Sergeant

Burke filed a purportedly false report to the New Hampshire

Department of Environmental Services (“NHDES”). He reported to

NHDES that the Spencer Brothers’ office smelled of petroleum and

that the company was rinsing petroleum tanks in the garage and

discharging the rinsate into a floor drain. A NHDES employee

subsequently inspected the Spencer Brothers premises and

determined that Burke’s complaints about Spencer Brothers were

“unfounded.”

6 Also as a result of the FMCSA inspection of Spencer

Brothers’ premises, on August 3, 2016, FMCSA sent Spencer

Brothers a Proposed Safety Rating. Doc. no. 44-1 at 2; see

. That Proposed Safety Rating notified Spencer

Brothers that FMCSA intended to give it an “Unsatisfactory”

safety rating, based on several alleged regulatory violations,

including two violations related to hazardous materials. On

August 11, 2016, Spencer Brothers filed a petition for

administrative review of the Proposed Safety Rating with the

FMCSA that objected to the “Unsatisfactory” rating. See

. On September 16, 2016, the FMCSA Assistant

Administrator issued a final order denying Spencer Brothers’

petition for administrative review of the Proposed Safety

Rating. As a result of this denial, the “Unsatisfactory” safety

rating became effective on September 18, 2016, and resulted in

an “out-of-service order” directing Spencer Brothers to cease

operating any commercial motor vehicles in interstate or

intrastate commerce. Doc. no. 36-2 at 102-03.3 Spencer Brothers

appealed FMCSA’s assignment of the “Unsatisfactory” safety

3 After FMCSA issued Spencer Brothers the Proposed Safety Rating but before the final order affirming the “Unsatisfactory” safety rating, FMCSA issued Spencer Brothers a Notice of Claim that initiated a separate civil penalty proceeding. That Notice of Claim was premised on the same facts underlying the “Unsatisfactory” safety rating. See

(b); 49 C.F.R pt. 386.

7 rating to the United States Court of Appeals for the First

Circuit, which dismissed the appeal on procedural grounds. See

doc. no. 36-9.

On November 2, 2016, William attended a hearing at the New

Hampshire Department of Motor Vehicles regarding whether Spencer

Brothers’ state registration privileges should be suspended or

revoked due to the FMCSA’s out-of-service order. Retired NHSP

Trooper Stephen Kace represented the state at that hearing.

After the hearing, William was driving the company truck to

a work appointment and noticed that he was being tailgated by a

truck. William eventually pulled off the road and the truck

following him pulled over behind him. Trooper Kace exited the

truck and informed William that he was “under arrest for

operating an ‘out of service’ vehicle.” Doc. no. 30 at ¶ 137.

William explained to Trooper Kace that the truck he was

operating was legal and not under an “out-of-service” order.

William then left the scene. Plaintiffs allege that Trooper

Doran then pursued William in his police cruiser.

Throughout the course of the above-described events,

William made numerous complaints to governmental agencies,

requested investigations into alleged misconduct, and attempted

to enlist the help of various governmental institutions to put

an end to the alleged campaign of harassment. For example,

William initiated three complaints to the NHSP Internal Affairs

8 and Standards and Practices Department about Trooper Doran’s

conduct during the traffic stop and Sergeant Burke’s alleged

false report to NHDES. The NHSP never interviewed William

regarding these complaints and determined each complaint to be

“unfounded.” William also sought help from the Federal Bureau

of Investigation, Governor Sununu’s Office of Citizen Services,

and the New Hampshire Office of the Attorney General—all to no

avail.

II. Procedural Background

Unsatisfied with the response to his complaints and

requests for investigations into the alleged misconduct of state

and federal employees, William filed this litigation pro se on

behalf of himself and Spencer Brothers in December 2018. The

original complaint alleged 16 claims under

against the NHSP and certain of its current and former

employees, the New Hampshire Office of Attorney General and two

of its employees, the FMCSA and three of its employees, and the

United States Department of Transportation and two of its

employees. These claims arose from the same traffic stop and

set of events that form the basis of the second amended

complaint.

Under Local Rule 83.6(c), a corporation, unincorporated

association, or trust may not appear in any action or proceeding

9 pro se. LR 83.6(c). Consequently, William moved to voluntarily

dismiss without prejudice Spencer Brothers from the suit and the

court granted that request. Doc. nos. 13 & 14.

In response to the state defendants’ first motion to

dismiss, the court dismissed with prejudice the claims against

the NHSP, the New Hampshire Office of the Attorney General and

the individual state defendants in their official capacities on

the basis of sovereign immunity. Doc. no. 14 at 2-3, 6. With

respect to the claims against the individual state defendants in

their individual capacities, the court dismissed those claims

without prejudice and granted William leave to file an amended

complaint. Doc. no. 14 at 4-6.

William, still proceeding pro se, filed a first amended

complaint. The state defendants again moved to dismiss. The

court granted the state defendants’ motion, concluding that the

amended complaint failed to comply with the pleading

requirements of Federal Rule of Civil Procedure 8(a). Doc. no.

24. The court dismissed the amended complaint without

prejudice, affording William a “final chance to file a complaint

that states a cognizable claim in compliance with Rule 8(a) and

the court’s rulings.” Doc. no. 24 at 6.

In September 2019, William and Spencer Brothers—by that

time represented by counsel—filed the second amended complaint.

Because it had retained counsel, Spencer Brothers sought to

10 rejoin the suit via the second amended complaint. The court

held a telephone conference with counsel for all parties

regarding Spencer Brothers’ reinstatement as a plaintiff.

Neither group of defendants objected to Spencer Brothers’

reinstatement and the court vacated the prior voluntary

dismissal. Doc. no. 52.

The second amended complaint asserts two claims against all

defendants. Count I of the second amended complaint alleges a

claim under

that all defendants violated

plaintiffs’ substantive and procedural due process rights under

the Fifth and Fourteenth Amendments to the United States

Constitution. Count II alleges a civil RICO claim against all

defendants based on their alleged coordinated efforts to injure

plaintiffs’ reputation and business due to a “personal vendetta”

against plaintiffs. Doc. no. 30 at ¶ 189.

DISCUSSION

The state defendants move to dismiss the two counts

asserted against them under Federal Rule of Civil Procedure

12(b)(6), arguing that both counts fail to state a claim upon

which relief could be granted. The court addresses each claim

below.

11 I. Count I: Substantive and Procedural Due Process Violations4

Plaintiffs bring due process claims under

,

“which supplies a private right of action against a person who,

under color of state law, deprives another of rights secured by

the Constitution or by federal law.” Mead v. Indep. Ass’n,

, 231 (1st Cir. 2012) (internal quotation marks

omitted). “In order to make out a viable claim under § 1983, a

plaintiff must show both that the conduct complained of

transpired under color of state law and that a deprivation of

federally secured rights ensued.” Id. (internal quotation marks

omitted). There appears to be no dispute here that the state

defendants’ alleged conduct was perpetrated under color of state

law. The court therefore trains its focus on whether plaintiffs

have adequately alleged a deprivation of a federally secured

right.

Plaintiffs allege that the state defendants deprived them

of their substantive and procedural due process rights. The

Fourteenth Amendment to the United States Constitution prohibits

a state from depriving any person of “life, liberty, or

It is unclear from the drafting of Count I whether it is 4

asserted on behalf of only William or both William and Spencer Brothers. Compare doc. no. 30 at ¶ 176, with ¶ 179. During a telephone conference with counsel for all parties, plaintiffs’ counsel clarified that Count I is asserted on behalf of both plaintiffs. The court will therefore treat Count I as advanced on behalf of both William and Spencer Brothers.

12 property, without due process of law.” U.S. Const. amend. XIV,

§ 1. “The touchstone of this due process guarantee is the

protection of the individual against arbitrary action of

government.” Depoutot v. Raffaelly,

(1st Cir.

2005) (internal quotation marks omitted). The Due Process

Clause has both substantive and procedural components.

. The substantive due process guarantee “safeguards

individuals against certain offensive government action,

notwithstanding that facially fair procedures are used to

implement them.”

The procedural aspect of the due process

guarantee “ensures that government, when dealing with private

persons, will use fair procedures.”

The court will address

plaintiffs’ substantive and procedural due process claims

separately.

A. Substantive Due Process Claim

To set out a substantive due process claim, a plaintiff

challenging specific acts of state officials must sufficiently

allege that: 1) the officials’ “acts were so egregious as to

shock the conscience”; and (2) that the acts “deprived him of a

protected interest in life, liberty, or property.” Pagan v.

Calderon,

(1st Cir. 2006); see also DePoutot,

. The question whether “the challenged conduct

shocks the contemporary conscience is a threshold matter that

13 must be resolved before a constitutional right to be free from

such conduct can be recognized.” DePoutot,

.

The court will therefore first examine whether plaintiffs have

adequately alleged conduct by the state defendants that was so

egregious as to shock the conscience.

The First Circuit has described the conscience-shocking

standard as “admittedly imprecise.” Gonzalez-Fuentes v. Molina,

, 880 (1st Cir. 2010) (internal quotation marks

omitted). Nevertheless, the First Circuit has established

certain guideposts to direct the analysis. See id. at 880-81.

On one end of the spectrum, it is well established that

“negligence, without more, is simply insufficient to meet the

conscience-shocking standard.” Id. at 881 (internal quotation

marks omitted). On the other end, allegations that state

officials had “an intent to injure in some way unjustifiable by

any government interest is likely sufficient” to meet the

conscience-shocking threshold. Id. (internal quotation marks

and brackets omitted). Between these two poles are cases that

present “closer calls.” Id. (internal quotation marks omitted).

Ultimately, determining whether official conduct is

conscience-shocking is necessarily a fact-specific inquiry that

must be considered in the unique context and circumstances in

which the conduct occurred. Cruz-Erazo v. Rivera-Montanez,

(1st Cir. 2000); see also Gonzalez-Fuentes, 607

14 F.3d at 881. Though a highly fact-specific inquiry, the shocks-

the-conscience threshold is necessarily a “high one,” to prevent

the Constitution from being demoted to a “font of tort law.”

Drake v. Town of New Bos., No. 16-CV-470-SM,

, at

*13 (D.N.H. June 6, 2017) (quoting County of Sacremento v.

Lewis,

, 847 n.8 (1998)).

Although each case must be judged on its own facts,

examples of successful substantive due process claims are

informative. The First Circuit has collected representative

cases in which plaintiffs established a viable substantive due

process claim:

Among the cases in which plaintiffs have prevailed are those involving a student blinded in one eye when a coach intentionally struck him in the head with a metal weight; a teacher’s fabrication of sexual abuse charges against a father, resulting in loss of contact with his child for three years; rape by a police officer in connection with a car stop; a 57–day unlawful detention in the face of repeated requests for release, police officers aiding a third-party in shooting the plaintiff; an intentional assault by a police officer who struck a pretrial detainee twice in the head and threatened to kill him; and a principal forcing his way into a room where a student was hiding, grabbing her from the floor, throwing her against the wall, and slapping her.

Cummings v. McIntire,

(1st Cir. 2001)

(citations and footnote omitted); see also Harrington v. Almy,

(1st Cir. 1992) (concluding plaintiff’s

substantive due process claim survived summary judgment where he

claimed that defendants violated his rights by conditioning his

15 reinstatement as a police officer on his submission to a

psychological test in which he would have a gauge strapped to

his genitalia to monitor sexual arousal). As illustrated by the

above examples, official conduct is more likely to meet the

“conscience-shocking” threshold if it involves highly physically

intrusive conduct, use of physical force or violence, or

interference with a protected relationship (e.g., a parent-child

relationship). See Cruz-Ezaro,

; Pratt v.

Town of Windham, No. CIV 03-321-JD,

, at *3

(D.N.H. Oct. 13, 2004).

Accepting plaintiffs’ allegations as true and drawing all

inferences in their favor, the state defendants’ alleged

misconduct here does not involve any threats of harm or

violence, use of physical force, or interference with a

protected relationship that would rise to the level of

conscience-shocking behavior. Plaintiffs allege a campaign of

harassment whereby Troopers Doran and Kace unlawfully stopped

William, treated him in a hostile manner, accused him of

unlawful activity, and threatened his arrest and suspension of

his commercial driver’s license. The state defendants allegedly

devised this harassment to undermine Spencer Brothers’ ability

to operate and to sully its reputation. Further, the state

defendants made false reports to state and federal

administrative bodies to interfere with Spencer Brothers’

16 operations and harm its reputation. Sergeant Burke made a false

report to NHDES which painted Spencer Brothers in a negative

light. And Trooper Doran allegedly trumped up a claim that

William was unlawfully transporting hazmat and reported that to

FMCSA, which ultimately resulted in a federal inspection of the

premises and an out-of-service order. Drawing all inferences in

plaintiffs’ favor, these allegations paint a picture of

deliberate misuse of official authority through verbal bullying,

false claims, and false reporting to harass and intimidate

William and cause economic and reputational harm to Spencer

Brothers.

The First Circuit has expressly left open the question

whether verbal harassment and intimidation as alleged in this

case might, under appropriate circumstances, violate the

substantive due process guarantee. See Cruz-Ezaro,

. But, here, plaintiffs’ allegations fail to even rise

to the level of verbal harassment and intimidation that the

First Circuit has held does not meet the conscience-shocking

threshold.

In Cruz-Erazo, the First Circuit held that plaintiffs’

allegations of months of police harassment and intimidation did

not rise to the shocks-the-conscience level and therefore the

district court did not err when it concluded that plaintiffs

failed to state a valid claim under § 1983. See Cruz-Erazo, 212

17 F.3d at 623-24. In that case, one of the defendant police

officers began unlawfully occupying plaintiffs’ second home.

Id. at 618. When plaintiffs attempted to enlist law enforcement

to help remove defendant from the property, the officers were

unwilling to help because the complaint was against a fellow

officer. Id. Officers later insisted that the home actually

belonged to their fellow officer, not plaintiffs. Id. at 619.

Plaintiffs took matters into their own hands by changing the

locks at the property. Id. Subsequently, one of the

plaintiffs, Cruz-Ezaro, was charged with disturbing the peace

and burglary for entering her own property. Id. Defendant

police officers testified falsely against Cruz-Ezaro, leading to

her arrest on the burglary charge. Id. at 620. Plaintiffs also

experienced continuing harassment over a period of months,

including threatening phone calls and police cars driving by

their home every night. Id. at 619-20.

If the deliberate campaign of harassment and use of false

testimony to fabricate criminal charges against plaintiffs in

Cruz-Ezaro does not reach the shocks-the-conscience threshold,

plaintiffs’ allegations here must fall short. See also Frei v.

Town Of Holland,

(1st Cir. 2007) (allegations

that defendants committed perjury, falsified documents, and

engaged in retaliatory action against plaintiff insufficient to

establish substantive due process claim); Michel v. Town of

18 Hampden, No. 10-CV-30213-MAP,

, at *2 (D. Mass.

Mar. 14, 2012) (plaintiff failed to meet shocks-the-conscience

standard with allegations that local police maliciously procured

arrest warrant, exaggerated situation to state police, illegally

searched plaintiff’s home, prosecuted him based on false

evidence, and made defamatory statements about him in the

media).

If true, plaintiffs’ allegations describe official

misconduct that is deplorable and inexcusable. That does not,

however, necessarily raise it to the level of conscience-

shocking required to make out a substantive due process claim.

See Cruz-Erazo,

(describing defendants’ alleged

conduct as “disgraceful” but concluding it did not sufficiently

“shock the conscience” to establish a substantive due process

claim). Because plaintiffs have failed to sufficiently allege

conduct by the state defendants that meets the shocks-the-

conscience threshold, the court concludes that the second

amended complaint does not state a viable substantive due

process claim against any of the state defendants. See

DePoutot,

.

B. Procedural Due Process Claim

Plaintiffs also claim that the state defendants violated

the procedural component of the Fourteenth Amendment’s Due

19 Process Clause. Under the Due Process Clause of the Fourteenth

Amendment, “certain substantive rights—life, liberty, and

property—cannot be deprived except pursuant to constitutionally

adequate procedures.” Garcia-Gonzalez v. Puig-Morales,

(1st Cir. 2014) (internal quotation marks omitted). In

order to properly plead a procedural due process violation, a

plaintiff must allege: (1) a protected liberty or property

interest; and (2) that the defendants, while acting under color

of state law, deprived him of that interest without

constitutionally adequate process. Id.; see also Rocket

Learning, Inc. v. Rivera-Sanchez,

(1st Cir.

2013).

The second amended complaint alleges that the state

defendants deprived plaintiffs of their property and their

liberty interest in their right to pursue their chosen

profession.5 Specifically, plaintiffs explain in their objection

to the motion to dismiss that they were deprived of these

5 To the extent plaintiffs also intend to allege a deprivation of William’s liberty interest based on the state defendants’ alleged unlawful seizures of his person, that claim is more properly analyzed under the framework of the Fourth Amendment, not substantive due process. See Albright v. Oliver,

(1994); Doyle v. Falmouth Police Dep’t, No. 2:14-CV-259-JDL,

, at *5 (D. Me. Feb. 4, 2015). Because plaintiffs have not alleged or developed argument in support of such a Fourth Amendment violation, the court will not address it.

20 liberty and property interests because the out-of-service order

caused Spencer Brothers to shut down and William to lose his

employment. Though it is unclear from the pleadings, the court

will assume that “out-of-service order” refers both to Trooper

Doran’s instruction to William on April 29, 2016, that the

company truck was ordered “out of service” and to FMCSA’s

September 18, 2016 order that Spencer Brothers cease commercial

motor vehicle operations. The court assumes without deciding

that the fact that the out-of-service orders terminated Spencer

Brothers’ operations and William’s employment is sufficient to

establish the deprivation of a protected liberty or property

interest.6 Even assuming that the second amended complaint

6 Although the court assumes for the sake of argument that plaintiffs have adequately alleged a deprivation of a protected interest, the court makes two observations. First, the allegations that the out-of-service orders shut down Spencer Brothers and put William out of work are found only in the objection to the motion to dismiss; they are not included in the second amended complaint. Plaintiffs cannot amend the second amended complaint with facts raised only in their objection to the motion to dismiss. See Cass v. Airgas USA, LLC, No. 17-CV- 313-JD,

, at *8 n.8 (D.N.H. Aug. 2, 2018). Second, the facts as alleged in the second amended complaint belie plaintiffs’ contention that the out-of-service orders halted Spencer Brothers’ operations and William’s employment. The second amended complaint contains multiple factual allegations indicating that William was still employed by Spencer Brothers and still conducting work on behalf of the company following both out-of-service orders. See, e.g., doc. no. 30 at ¶ 76 (on June 13, 2016, William was “away on a jobsite” when FMCSA agents called him to attend a meeting at the company premises), at ¶¶ 134-135 (on November 2, 2016, William was “travel[ing] toward his afternoon job appointment” when Trooper Kace began tailgating him), at ¶¶ 172(b)-(c) (in August

21 sufficiently alleges the deprivation of liberty and property

interests occasioned by the out-of-service orders, it is devoid

of allegations about what process plaintiffs were afforded

before or after the out-of-service orders issued, the

inadequacies of such process, and what process plaintiffs

contend they should have received.

“The basic guarantee of procedural due process is that,

before a significant deprivation of liberty or property takes

place at the state’s hands, the affected individual must be

forewarned and afforded an opportunity to be heard at a

meaningful time and in a meaningful manner.” Gonzalez-Droz v.

Gonzalez-Colon,

(1st Cir. 2011) (internal

quotation marks omitted). It follows that, to establish the

second prong of a procedural due process claim (that the

deprivation occurred without constitutionally adequate process),

plaintiffs must at least describe the process afforded to them

in relation to the alleged deprivation, see Aponte-Torres v.

Univ. Of Puerto Rico,

, 56 (1st Cir. 2006), and

identify the failings of that process or describe the process

that was due to them, see Doe by Fein v. D.C.,

(D.C. Cir. 1996), so that the court can assess whether the

process given accords with the due process guarantee. The court

and October 2018, William was stopped and questioned by NHSP troopers while driving the Spencer Brothers’ company truck).

22 will examine plaintiffs’ allegations (or lack thereof) regarding

each of the two out-of-service orders below.

i. Trooper Doran’s out-of-service order

The second amended complaint alleges that Trooper Doran

informed William during the April 29, 2016 traffic stop that

Spencer Brothers’ truck was ordered “out of service” and that it

would be towed from the scene. There are, however, no

allegations in the second amended complaint about what process

plaintiffs were afforded before or after that deprivation, or

what process should have been afforded to plaintiffs by Trooper

Doran or the NHSP before or after Trooper Doran ordered the

truck out of service. Without any allegations as to what

process occurred or was due, the second amended complaint fails

to state a cognizable procedural due process violation on the

basis of Trooper Doran’s out-of-service order. See Aponte-

Torres, 445 F.3d at 56; Doyle v. Falmouth Police Dep’t, No.

2:14-CV-259-JDL,

, at *5 (D. Me. Feb. 4, 2015)

(granting motion to dismiss procedural due process claim because

complaint was “entirely silent about any post-deprivation

process available to him, or its inadequacy”); Johnson v. Town

of Weare, No. 12-CV-032-SM,

, at *8 (D.N.H. June

4, 2012), report and recommendation approved,

(D.N.H. June 27, 2012) (complaint failed to state procedural due

23 process claim when it did not allege what process plaintiff

pursued after his truck was seized or whether such procedures

were inadequate).

ii. FMCSA’s out-of-service order

Next, plaintiffs contend that FMCSA’s out-of-service order

deprived them of property and liberty interests without due

process.7 The second amended complaint lacks any allegations

about what process plaintiffs were provided in relation to the

FMCSA out-of-service order. The official public records the

parties submitted in support of their motion to dismiss

pleadings, however, shed some light on this issue. See doc.

nos. 36-2, 36-9, & 44-1.

Those official public records reveal the following. On

August 3, 2016, FMCSA issued Spencer Brothers a Proposed Safety

7 As an initial matter, plaintiffs have not developed an argument establishing the causal connection between any of the state defendants’ conduct and the lack of adequate process afforded to them in relation to the out-of-service order issued by FMCSA. See Manzini v. The Fla. Bar,

(11th Cir. 2013) (to state claim for procedural due process violation, plaintiff must establish an “affirmative causal connection” between defendant’s acts or omissions and the alleged constitutional deprivation); Reimer v. Smith,

(5th Cir. 1981) (“It is axiomatic that a plaintiff cannot succeed in a [section] 1983 action if he fails to demonstrate a causal connection between the state official’s alleged wrongful action and his deprivation of life, liberty, or property.”). The court will assume for the sake of argument that plaintiffs have alleged a sufficient causal connection.

24 Rating indicating that it proposed to give Spencer Brothers an

“Unsatisfactory” safety rating for several alleged regulatory

violations involving transportation of hazardous materials. On

August 11, 2016, Spencer Brothers filed a Petition for

Administrative Review of the Proposed Safety Rating, objecting

to the proposed “Unsatisfactory” rating. FMSCA filed a

response. Subsequently, on September 16, 2016, a FMCSA

Assistant Administrator issued a final order denying Spencer

Brothers’ Petition for Administrative Review of the Proposed

Safety Rating, concluding that Spencer Brothers had not met its

burden of demonstrating that FMCSA had erred in assigning it an

“Unsatisfactory” safety rating. Following that final order, on

September 18, 2016, FMSCA issued an order effective that day

that Spencer Brothers cease all transportation in interstate and

intrastate commerce, referred to herein as the “out-of-service

order.” Doc. no. 36-2 at 102. Spencer Brothers then filed a

Petition for Review of that order with the United States Court

of Appeals for the First Circuit, which was ultimately

dismissed.

This procedural history demonstrates that plaintiffs were

afforded both notice of the proposed “Unsatisfactory” safety

rating and an opportunity to be heard by the FMCSA Assistant

Administrator prior to the effective date of the out-of-service

order. The second amended complaint makes no allegations about

25 how those procedural safeguards were deficient. Cf. Maldonado

v. Municipality of Barceloneta, No. CV 07-1992 (JAG),

, at *6 (D.P.R. Nov. 12, 2009) (finding plaintiffs

adequately alleged procedural due process violation where

complaint alleged that notice was given only five days prior to

deprivation of property right and in a language most of them did

not speak). Furthermore, it appears that the process afforded

to plaintiffs complied with applicable regulations. See

(governing notification of safety fitness

determination);

(outlining procedure for

administrative review of proposed safety rating).

In their objection to the state defendants’ motion to

dismiss, plaintiffs argue that FMCSA’s out-of-service order was

issued “before and without a hearing.” Doc. no. 44 at 8. But

this allegation was not included in the second amended

complaint. As this court has reminded plaintiffs previously in

this action, they cannot amend their second amended complaint

through matters raised only in an objection to a motion to

dismiss. See Spencer v. N.H. State Police, Civ. No. 18-cv-1191-

LM,

, at *2 (D.N.H. July 22, 2019). For all the

reasons discussed above, the court concludes that plaintiffs

have failed to state a viable procedural due process claim

against any of the state defendants.

26 C. Impact of February 6, 2020, Department of Transportation Order

Plaintiffs argue that the recent DOT decision attached to

their objection to the motion to dismiss somehow supports their

procedural due process claim and demonstrates that they were

entitled to a hearing before FMCSA issued the out-of-service

order. Doc. no. 44-1. Plaintiffs’ reliance on that order is

misplaced.

The DOT order, served February 6, 2020, is entitled “Order

Denying The FMCSA’s Motion For Preclusion.” The order explains

that FMCSA has taken two separate administrative actions against

Spencer Brothers: issuance of an “Unsatisfactory” safety rating

resulting in the out-of-service order pursuant to

and 49 C.F.R. part 385; and issuance of a Notice of Claim

that commenced a civil penalty proceeding pursuant to

(b) and 49 C.F.R part 386. Both of those administrative

actions stem from the same facts: Spencer Brothers’ alleged

improper transportation of hazardous material at the time of

Trooper Doran’s traffic stop on April 29, 2016. In the February

6, 2020 order, the DOT Administrative Law Judge (“ALJ”)

confronted the question whether the FMCSA’s “finding” in the

safety rating proceeding that Spencer Brothers transported

hazardous material on April 29, 2016, should have preclusive

effect in the separate civil penalty proceeding that the ALJ was

27 presiding over. In other words, the ALJ was asked to decide

whether the doctrine of collateral estoppel applied to preclude

Spencer Brothers from re-litigating whether it transported

hazardous materials on the relevant date.

The ALJ concluded that FMCSA’s “finding” during the safety

rating proceeding that Spencer Brothers transported hazardous

materials did not have preclusive effect in the separate civil

penalty proceeding. It therefore denied FMCSA’s pending “Motion

on Preclusion.” In practical terms, the ALJ’s order means that

Spencer Brothers is permitted in the ongoing civil penalty

proceeding to litigate the factual issue of whether it

improperly transported hazardous materials on April 29, 2016.

Such litigation may occur at an evidentiary hearing during the

course of the ongoing civil penalty proceeding to the extent

permitted under the applicable regulations. See 49 C.F.R §§

386.16, 386.56.

The ALJ’s order does not in any way opine about the

constitutional adequacy of the procedures FMCSA afforded to

plaintiffs in the separate safety rating proceeding culminating

in the out-of-service order. Nor does the order explicitly or

implicitly find that plaintiffs were entitled to a hearing

before FMCSA imposed the out-of-service order in the safety

rating proceeding. Thus, plaintiffs’ reliance on DOT’s February

28 6, 2020 order is misdirected; it lends no support to plaintiffs’

procedural due process claim.

D. Summary

As outlined above, the court concludes that plaintiffs have

failed to allege sufficient facts to state a cognizable claim

for violation of either of their substantive or procedural due

process rights. The court therefore grants the state

defendants’ motion to dismiss Count I.

II. Count II: RICO Claim

Plaintiffs allege a civil RICO claim, claiming that all

defendants were associated in some way as law enforcement

personnel and that, based on a “personal vendetta” against

plaintiffs, they coordinated their conduct to perpetuate

falsehoods about plaintiffs in order to harm their business and

reputation in the community. See doc. no. 30 at ¶¶ 189, 194,

200-06. The RICO civil remedy provision provides that “[a]ny

person injured in his business or property by reason of a

violation of section 1962 of this chapter may sue therefor in

any appropriate United States district court . . . .”

(c). In order to set out a civil RICO claim, a plaintiff

must sufficiently allege: (1) that a violation of § 1962 has

occurred; (2) that he has been injured in his business or

29 property; and (3) that a causal nexus exists between the

violation and his asserted injury. See Sedima, S.P.R.L. v.

Imrex Co.,

(1985); Miranda v. Ponce Fed.

Bank,

(1st Cir. 1991).

Turning to the first prong of that test, plaintiffs allege

that defendants engaged in conduct that violated § 1962(c).

That provision makes it unlawful “for any person employed by or

associated with any enterprise engaged in, or the activities of

which affect, interstate or foreign commerce, to conduct or

participate, directly or indirectly, in the conduct of such

enterprise’s affairs through a pattern of racketeering

activity.”

(c). In order to plead a violation

of § 1962(c), a plaintiff must sufficiently allege that the

defendant: (1) conducted or participated in the conduct of; (2)

an enterprise; (3) through a pattern; (4) of racketeering

activity. Sedmina,

;

(c).

The state defendants argue that plaintiffs have failed to

adequately allege elements two, three, and four of a § 1962(c)

violation. The court will assume without deciding that

plaintiffs have sufficiently alleged the “enterprise” element of

a § 1962(c) violation and therefore focus its analysis on

elements three and four—the requirements that plaintiffs allege

a pattern of racketeering activity.

30 The RICO statute defines “racketeering activity” as conduct

that violates any one of a number of specified federal laws,

such as the mail and wire fraud statutes.

(1);

Efron v. Embassy Suites (Puerto Rico), Inc.,

(1st Cir. 2000). A “pattern of racketeering activity” is

defined as “at least two acts of racketeering activity”

occurring within a 10-year period.

(5). The

second amended complaint alleges two forms of racketeering

activity: obstruction of justice in violation of

; and mail fraud in violation of

. Doc. no.

30 at ¶ 199. The individual acts of racketeering activity, here

obstruction of justice and mail fraud, are often referred to as

the “predicate acts.” Micro-Med. Indus., Inc. v. Hatton,

(D.P.R. 1985). The court will evaluate whether

plaintiffs have sufficiently pled facts establishing two

predicate acts constituting a pattern of racketeering activity.

A. Obstruction of Justice

(a) makes it unlawful to endeavor to

influence, obstruct, or impede the due administration of justice

by intentionally influencing, intimidating, or impeding “any

grand or petit juror, or officer in or of any court of the

United States.”

(a). To constitute an offense

under this statute, the allegedly obstructive act “must relate

31 to a proceeding in a federal court of the United States.”

O'Malley v. New York City Transit Auth.,

, 707 (2d

Cir. 1990); see also Michaud v. Delkner,

(1st

Cir. 2001) (citing O’Malley for same proposition); Michaud v.

Nadeau,

(1st Cir. 2001) (same). The

defendant’s action must be taken “with an intent to influence

judicial or grand jury proceedings; it is not enough that there

be an intent to influence some ancillary proceeding, such as an

investigation independent of the court’s or grand jury’s

authority.” United States v. Aguilar,

(1995).

Here, Count II does not specify which of the state

defendants’ acts constitute obstruction of justice in violation

of § 1503, but rather states generally “[r]epresentative

predicate acts are pled throughout the complaint.” Doc. no. 30

at ¶ 198. Cf. O’Malley, 896 F.2d at 707-08 (outlining four

specific acts plaintiffs alleged constituted predicate acts of

obstruction of justice). Count II also vaguely refers to

falsehoods about plaintiffs’ business practices that the state

defendants perpetuated through statements and testimony. See

doc. no. 30 at ¶¶ 200-206. Drawing all reasonable inferences in

plaintiffs’ favor, the court construes the alleged obstructive

acts as any and all false testimony, reports, or statements the

state defendants made, including, but not limited to: Trooper

Doran’s false statement to FMCSA about his findings during the

32 April 29, 2016, traffic stop; Sergeant Burke’s false report to

NHDES; and Trooper Kace’s statements made at the November 2016

administrative hearing.

Even drawing all inferences in plaintiff’s favor, however,

the second amended complaint does not set forth any allegedly

obstructive act related “to a proceeding in a federal court of

the United States.” O’Malley, 896 F.2d at 707. Instead, most

of the state defendants’ purportedly obstructive acts occurred

in state administrative proceedings or investigations. See id.

(finding obstruction of justice predicate acts insufficiently

pled when all alleged conduct occurred in state courts or state

administrative proceedings.)

The only identifiable statement remotely related to a

federal proceeding is Trooper Doran’s communication with FMCSA

that precipitated FMCSA’s investigation of Spencer Brothers and,

eventually, the out-of-service order. But that statement was

made in relation to a federal administrative investigation or

inspection, not a federal court proceeding, and therefore does

not fall within the scope of § 1503. See Kimberlin v. Nat’l

Bloggers Club, No. GJH-13-3059,

, at *5 (D. Md.

Mar. 17, 2015) (finding predicate act of obstruction of justice

insufficiently pled when plaintiff alleged defendants provided

false evidence to the FBI and state and local law enforcement

about plaintiff); cf. Lockheed Martin Corp. v. Boeing Co., 357

(M.D. Fla. 2005) (finding predicate

act of obstruction of justice adequately alleged when plaintiff

claimed defendant gave false deposition testimony and false

affidavit in ongoing federal litigation). Thus, the second

amended complaint fails to allege that any of the state

defendants engaged in any conduct that would constitute a

violation of § 1503 and qualify as a predicate act for

plaintiffs’ RICO claim.

B. Mail Fraud

Plaintiffs also allege that the state defendants engaged in

the racketeering activity of mail fraud. The mail fraud statute

makes it unlawful to knowingly use interstate mail

communications in furtherance of a scheme to defraud under false

pretenses.

; United States v. Hebshie,

(1st Cir. 2008). It is well established in the First

Circuit that predicate acts of mail fraud in a civil RICO action

must be pleaded with particularity in compliance with Federal

Rule of Civil Procedure 9(b). Cordero-Hernandez v. Hernandez-

Ballesteros,

(1st Cir. 2006); Ahmed v.

Rosenblatt,

(1st Cir. 1997); Birch St.

Recovery Corp. v. Thomas, No. CV-99-571-B,

, at

*8 (D.N.H. July 29, 2000). Specifically, under the First

Circuit’s interpretation of the Rule 9(b) particularity

34 requirement, the plaintiff must specify the time, place, and

content of the allegedly false mail communications. See Ahmed,

.

The second amended complaint falls well short of that

standard. The only allegation in the complaint regarding mail

communication is that defendants “acting in concert perpetuated

several[] falsehoods through the mail and by testimony in order

to . . . injure the Plaintiffs.” Doc. no. 30 at ¶ 200. This

allegation clearly fails to specify the time, place, or content

of any alleged mail communications. In their objection to the

motion to dismiss, plaintiffs try to fill in the gaps in the

second amended complaint by asserting that defendants

“necessarily” sent falsehoods in the mail due to the “nature of

written statements and the overall process requiring paper

filings that were not hand delivered between state lines.” Doc.

no. 44 at 14. There are, however, no facts alleged in the

second amended complaint that give rise to an inference that

defendants “necessarily” sent mail interstate, let alone specify

the time, place, or content of that interstate mail

communication. Because plaintiffs’ allegations supporting the

predicate act of mail fraud are not pleaded with particularity,

the second amended complaint fails to state any predicate acts

of mail fraud.

35 The court must go one step further, however, because the

First Circuit has placed a “special gloss” on the Rule 9(b)

particularity requirement in the RICO context. Feinstein v.

Resolution Tr. Corp.,

(1st Cir. 1991); see also

New England Data Servs., Inc. v. Becher,

(1st Cir. 1987). When the court finds that the alleged

predicate acts of mail or wire fraud fail to meet the

particularity requirements, it “should make a second

determination as to whether further discovery is warranted and,

if so, the plaintiff should be provided with the opportunity to

amend the complaint after the completion of this discovery.”

Ahmed,

. A plaintiff is not, however,

automatically entitled to such discovery and opportunity to

amend.

Indeed, dismissal should follow a failure to plead

mail fraud with particularity unless the plaintiff “suggests to

the district court, in a timely manner, that a limited period of

discovery will likely allow him to plug the holes in the

complaint and requests leave (i) to conduct discovery for this

limited purpose and (ii) thereafter to amend his complaint.”

Feinstein,

.

Plaintiffs have not made such an express request here. In

their objection to the motion to dismiss, plaintiffs assert

generally that they “require discovery to provide a clearer

image of who sent these documents by mail and should proceed to

36 be able to investigate this issue further.” Doc. no. 44 at 14.

This assertion amounts to a general plea that the court allow

the second amended complaint to survive the motion to dismiss as

pleaded so that plaintiffs can move to the discovery phase of

litigation. Plaintiffs have not asked for permission to conduct

discovery for the limited purpose of fleshing out the mail fraud

predicate acts. Not only is plaintiffs’ discovery request vague

and unsupported, it comes rather late in the game. Plaintiffs

have now had two opportunities to amend the original complaint

to state viable claims. And plaintiffs had the benefit of

counsel when they filed the current iteration of their claims in

the second amended complaint. If plaintiffs determined that

they needed to conduct limited discovery to properly plead the

mail fraud predicate acts, they could have asked the court for

leave to conduct such limited discovery before filing the second

amended complaint.

Additionally, based on the facts alleged in the second

amended complaint, there does not appear to be a strong

likelihood that discovery would uncover information enabling

plaintiffs to allege two interstate mail communications with

particularity. The majority of the activity and conduct alleged

in the second amended complaint occurred in New Hampshire and

therefore involved intrastate communications. See Cordero-

Hernandez,

(concluding that facts alleged did

37 not suggest that limited discovery would uncover interstate wire

communications when all parties were based in same state at all

relevant times).

The only allegation in the second amended complaint that is

even close to raising the inference of interstate mail

communication is the fact that federal defendant Todd Damiani of

DOT’s Massachusetts Office of Inspector General authored a

report about Spencer Brothers. See doc. no. 30 at ¶ 127.

However, plaintiffs did not plead, even on information and

belief, that Damiani authored that report in Massachusetts and

then mailed it to another state. While information and belief

pleading is not sufficient to meet the particularity

requirement, such pleading would at least raise an inference

that interstate communications might have occurred and that

further discovery would illuminate the time, place, and content

of the communications. See Cordero-Hernandez,

;

see also Capozza Tile Co. v. Joy, No. 01-108-P-C,

, at *6 (D. Me. Sept. 13, 2001) (finding wire fraud

insufficiently pleaded and leave to take additional discovery

unwarranted when complaint mentioned only a single fax).

Because there are no factual allegations that defendants

utilized interstate mail communications and plaintiffs have not

timely requested leave to conduct limited discovery and then

amend the complaint to adequately plead predicate acts of mail

38 fraud, the court finds that limited discovery on this issue is

not warranted.

As explained above, plaintiffs have failed adequately to

plead any predicate acts of obstruction of justice or of mail

fraud. In other words, plaintiffs have failed to sufficiently

plead even one single predicate act and have consequently failed

to plead a pattern of racketeering activity. “Failure to plead

predicate acts adequately is enough to sink [a plaintiff’s] RICO

claim.” Ahmed,

; see also Di Giambattisa v.

McGovern,

(1st Cir. 1992). The court therefore

concludes that plaintiffs have failed to state a civil RICO

claim against the state defendants upon which relief could be

granted. The court grants the state defendants’ motion to

dismiss Count II.

CONCLUSION

For the foregoing reasons, the court grants the state

defendants’ motion to dismiss all counts asserted against them

(doc. no. 37).

SO ORDERED.

__________________________ Landya McCafferty United States District Judge August 20, 2020

cc: Counsel of Record.

39