UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

William Spencer & Spencer Brothers LLC

v. Civil No. 23-cv-227-LM Opinion No.

P U.S. Department of Transportation, et al.

ORDER

Plaintiffs William Spencer (“William”) and Spencer Brothers LLC (“Spencer

Brothers”) bring a malicious prosecution claim against a group of both federal and

state officials, and a federal agency.1 The federal defendants are the U.S.

Department of Transportation (“DOT”); two DOT employees (Attorney Cynthia

Campise and Officer Todd Damiani); and three employees of the Federal Motor

Carriers Safety Administration (“FMCSA”) (Steve Piwowarski, Douglas Wood, and

Christopher Gray). The state defendants are three current and former New

Hampshire State Police (“NHSP”) employees (Trooper Michael Doran, Sergeant

William Burke, retired Trooper Steven Kace) and a New Hampshire Department of

Safety automotive inspector (Kenneth Chaput).2 All individual defendants are sued

only in their official capacities.

1 The court refers to William Spencer by his first name to avoid confusion with

Spencer Brothers.

2 David Hilts is named in the complaint, but plaintiffs concede he should be

dismissed from the case. The federal defendants move to dismiss under Rule 12(b)(1), arguing that the

court lacks subject-matter jurisdiction. See doc. no. 19. The state defendants move

to dismiss under Rule 12(b)(6) on the ground that plaintiffs fail to state a cognizable

claim. See doc. no. 20. For the following reasons, the court grants both motions.

STANDARDS OF REVIEW

I. Rule 12(b)(1)

A motion under Rule 12(b)(1) to dismiss for lack of subject-matter jurisdiction

may raise either a facial challenge (where the moving party asserts that the

complainant’s allegations are insufficient on their face to state a basis for federal

jurisdiction) or a factual challenge (where the moving party argues that the court

lacks jurisdiction as a matter of fact). See Torres-Negron v. J & N Records, LLC,

, 162 & n.8 (1st Cir. 2007) (citations omitted). Where the challenge is

facial, the court presumes the truth of the jurisdictional facts alleged in the

complaint. See Gordo-González v. United States,

(1st Cir. 2017).

Where the challenge is factual, “there is no presumption of truthfulness attached to

the plaintiff's allegations, and plaintiff bears the burden of proving the facts

supporting subject matter jurisdiction by a preponderance of the evidence.” 5B

Wright & Miller, Fed. Prac. & Proc. Civ. § 1350 (3d ed.); see also Torres-Negron,

.

The federal defendants bring a factual 12(b)(1) challenge. When considering a

factual challenge to its subject-matter jurisdiction, the court may consider and

2 weigh evidence beyond the complaint without converting the motion to dismiss into

a motion for summary judgment.3 See Torres-Negron,

.

II. Rule 12(b)(6)

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) (quotation 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). Analyzing plausibility is “a context-

specific task” in which the court relies on its “judicial experience and common

sense.”

.

BACKGROUND

Plaintiffs have a history of prior litigation before this court involving the

same underlying dispute and the identical set of defendants. See Spencer v. Doran,

No. 18-cv-1191-LM (“Spencer I”). In prior orders, the court outlined the underlying

factual background of the dispute. See Spencer I,

, 651-56

3 But where jurisdiction is so intertwined with the substantive merits of the

claims that they must be determined together, the court should decide the jurisdictional question under the standard applicable to a motion for summary judgment. See Torres-Negron v. J & N Records, LLC,

(1st Cir. 2007) (citing Autery v. United States,

(9th Cir. 2005)). That is not the case here. 3 (D.N.H. 2021) (granting federal defendants’ motion to dismiss); Spencer I, No. 18-

cv-1191-LM,

, at *10, *13 (D.N.H. Aug. 20, 2020) (granting state

defendants’ motion to dismiss). Because the underlying factual allegations (and

named defendants) here overlap significantly with those in Spencer I, the court

repeats only those facts necessary to decide the motions in this case.4

Spencer Brothers is a New Hampshire company in the business of cleaning

and disposing of various tanks, including oil tanks. William works for Spencer

Brothers as its only driver. On April 29, 2016, William was pulled over by Trooper

Doran while driving a company truck. In a hostile encounter, Trooper Doran

accused William of transporting hazardous materials and of improperly operating a

commercial vehicle. Trooper Doran issued William a ticket and ordered the

company’s truck out of service.

Plaintiffs allege that, following that traffic stop, defendants engaged in a

series of actions designed to injure and harass plaintiffs. Of note, plaintiffs claim

that certain of the state defendants successfully urged FMCSA to investigate

plaintiffs. In August 2016, following that investigation, FMCSA initiated civil

penalty proceedings against Spencer Brothers, filed a Notice of Claim, and ordered

the company’s vehicles out of service. Plaintiffs denied the hazardous materials

4 On November 16, 2022, plaintiffs filed a complaint nearly identical to this one

(against the same defendants) in Belknap County Superior Court, which the federal defendants removed to this court on January 17, 2023. Spencer v. U.S. Dep’t of Transp., No. 23-cv-00022-JL (“Spencer II”). Like this case, the complaint in Spencer II alleged only a single claim (malicious prosecution) against all defendants. After all defendants moved to dismiss that case, plaintiffs voluntarily dismissed it on February 21, 2023. Plaintiffs filed the instant case on April 10, 2023. 4 violations and prepared to contest them at a hearing. Because of the COVID-19

pandemic, the parties delayed depositions of the key witnesses until September

2021. On September 9, 2021, on the eve of those depositions, FMCSA voluntarily

withdrew the civil penalty action against plaintiffs. Plaintiffs were surprised and

disappointed by the sudden withdrawal of the action, as they anticipated they

would be vindicated at a hearing. Plaintiffs allege that the withdrawal of the Notice

of Claim, on the eve of the depositions of key individuals in the case, reveals the

baselessness of defendants’ pursuit of the case against them.

Following the traffic stop and throughout the FMCSA proceedings, William

voiced complaints to individual defendants about the hostility and harassment

directed towards plaintiffs. William asked FMCSA’s Piwowarski to lift FMCSA’s

order on the company vehicles, but Piwowarski refused. William also told FMCSA’s

Campise that the proceedings were premised on false statements. In addition to

these repeated oral complaints, William filed written complaints (regarding the

April 29, 2016 traffic stop and the resulting investigation) with the following

agencies: the Federal Bureau of Investigation; the NHSP Internal Affairs

Department; Governor Sununu’s Office of Citizen Services; and New Hampshire’s

Office of the Attorney General. After FMCSA officials dismissed the case against

them, plaintiffs never filed any sort of formal complaint with DOT or FMCSA, or

any other federal agency. However, plaintiffs claim they “informed the defendants

by mail of [their] intent to sue.” Doc. no. 1 ¶ 175.

5 In their complaint, plaintiffs assert one count of malicious prosecution

against all defendants. They allege that all defendants conspired to bring the

FMCSA penalties against plaintiffs. They further allege that—until defendants

dismissed the FMCSA case against them—defendants engaged in a course of

conduct involving falsifying evidence and acts of retaliation against plaintiffs for

contesting the accusations. At bottom, they contend that FMCSA’s prosecution was

lacking in probable cause and malicious in nature.

DISCUSSION

The federal and state defendants move to dismiss the malicious prosecution

claim, but on different grounds. The federal defendants move to dismiss for lack of

subject-matter jurisdiction. The state defendants move to dismiss for failure to state

a cognizable claim. The court addresses the motions in turn.

I. The Federal Defendants’ Motion to Dismiss

The federal defendants argue that this court lacks subject-matter jurisdiction

over plaintiffs’ claim because plaintiffs failed to exhaust their administrative

remedies.

The United States is immune from suit unless it consents to be sued. Skwira

v. United States,

(1st Cir. 2003). Thus, absent a waiver of sovereign

immunity, “the federal courts lack subject matter jurisdiction over torts against the

United States.” Wood v. United States,

(1st Cir. 2002). The Federal

Tort Claims Act (“FTCA”),

(b)(1), 2680(h), is one such waiver.

Soto-Cintrón v. United States,

(1st Cir. 2018). Under the FTCA,

6 Congress has waived sovereign immunity for certain civil “claims against the

United States, for money damages . . . for injury or loss of property, or personal

injury or death caused by the negligent or wrongful act or omission of [an] employee

of the Government while acting within the scope of his office or employment,” if a

private person would be so liable. § 1346(b)(1).

Before bringing an FTCA claim, plaintiffs must exhaust their administrative

remedies. See

(a); McNeil v. United States,

(1993). The FTCA provides:

An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. . . .

§ 2675(a). Specifically, plaintiffs must bring an administrative claim to the

applicable agency “within two years after such claim accrues” prior to filing suit in

federal court. Holloway v. United States,

(1st Cir. 2017) (quoting

(b)); Jewell v. United States, No. 11-cv-324-SM,

,

at *3 (D.N.H. Aug. 22, 2011). Failure to bring a claim “within that period forever

bar[s] the claim.” Holloway,

(internal quotation omitted).

The First Circuit has ruled that administrative exhaustion is “a non-waivable

jurisdictional requirement.” Santiago-Ramirez v. Sec’y of Dep’t of Def.,

(1st Cir. 1993); Acosta v. U.S. Marshals Serv.,

(1st Cir. 2009).

“This means a federal court lacks subject-matter jurisdiction over an FTCA claim if 7 it was not first presented for administrative review.” Vigneau v. Pedersen, No. 18-

cv-392-JL,

, at *4 (D.N.H. Mar. 26, 2019), report and

recommendation adopted,

(D.N.H. June 11, 2019).

Exhaustion requires more than just putting the agency on notice of a future

lawsuit. Indeed, an FTCA claimant who files a written claim with the agency—but

does not include a specific demand for damages in that claim—fails the exhaustion

requirement. See

(b) (limiting the damages that an FTCA plaintiff

can claim to the amount asserted in front of the agency). This is called the “sum

certain rule.” See, e.g., Holloway,

(“An essential element of a claim

is notification of the incident via an executed SF 95 or other written document

accompanied by a demand for money damages in a sum certain.” (internal quotation

marks omitted) (quoting

(a)); Kokaras v. United States,

(1st Cir. 1992)).

“[L]ike other sovereign-immunity waivers, the FTCA gets a strict reading.”

Holloway, 845 F.2d at 489. “What that means is that judges must faithfully enforce

the FTCA’s requirements, neither extending the waiver beyond that which

Congress intended nor assuming authority to narrow the waiver.” Id. (internal

quotations and brackets omitted).

With respect to the underlying substantive liability in an FTCA claim, the

court applies “the law of the place where the act or omission occurred,” which the

parties agree is New Hampshire. § 1346(b)(1); Soto-Cintrón,

. Under

New Hampshire law, “[t]o prove a claim for malicious prosecution, the plaintiffs

8 must demonstrate that: (1) the plaintiffs were 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 the plaintiffs’ favor.” New Eng.

Backflow, Inc. v. Gagne,

, 671 (2019); accord Lath v. Oak Brook Condo.

Owners’ Ass’n, No. 16-CV-463-LM,

, at *19 (D.N.H. Mar. 20,

2017).

Here, plaintiffs allege that the federal defendants—in the course of their

employment—engaged in a malicious prosecution of them. Plaintiffs are, therefore,

proceeding under the FTCA. See

(b). It is undisputed that, after

FMCSA withdrew its Notice of Claim against Spencer Brothers, plaintiffs did not

file an administrative claim with FMCSA or DOT’s Office of the Inspector General

alleging that the FMCSA investigation and prosecution was malicious.5 Plaintiffs

assert merely that they informed defendants “by mail” of their intent to sue after

FMCSA dismissed the case.6 See doc. no. 1 ¶ 175. In sending notice of their intent to

sue, however, plaintiffs did not thereby exhaust their administrative remedies.

Indeed, nowhere do plaintiffs allege that they included in any written document a

demand for damages, much less one for a sum certain. See Holloway, 845 F.3d at

FMCSA dismissed the Notice of Claim on September 9, 2021. Plaintiffs’ 5

malicious prosecution claim therefore accrued as of that date. Plaintiffs therefore had until September 9, 2023, to file an administrative claim with DOT or FMCSA.

(b) (stating two-year limitations period to present tort claims in writing to a federal agency). Plaintiffs filed the instant lawsuit on February 21, 2023.

6 Plaintiffs did not attach (to their motion or their complaint) the document

notifying defendants of their intent to sue. 9 490-91 (holding that the “sum certain” requirement is not met where a plaintiff filed

an SF 95 with the federal agency but did not include in that form a demand for

damages); LaRosa v. U.S. Postal Serv., No. 21-CV-11409-RGS,

, at

*1 (D. Mass. Feb. 9, 2022) (same).

Plaintiffs argue that their litigation before FMCSA—and “extensive” oral and

written communications with individual defendants—satisfy the exhaustion

requirement by putting defendants on notice of their malicious prosecution claim.

However, plaintiffs’ prior litigation history with the federal defendants in the

underlying case is insufficient to establish exhaustion.

Although the First Circuit has shown some “leniency” concerning technical

compliance with the “sum certain” requirement, see, e.g., Holloway,

(“sum certain” requirement can be met where claimant includes paperwork

along with the claim that permits the agency to calculate the total damages), there

is no support in the law for a “history of litigation” exception to the requirement of a

written FTCA claim. Cf. Kokaras,

(finding sum certain requirement

not met despite fact that plaintiffs had engaged in unsuccessful settlement

negotiations with the agency and, before filing a formal claim, had provided the

agency with medical records and bills during settlement discussions). On the

contrary, the First Circuit has made clear that judges must give the FTCA

exhaustion requirement “a strict reading” and refuse to extend the waiver of

sovereign immunity “beyond that which Congress intended.” Holloway,

(internal quotation omitted).

10 Plaintiffs do not allege that they presented their malicious prosecution claim

to DOT or FMCSA for administrative review and, as a result, they have failed to

satisfy the FTCA’s exhaustion requirement.7 See, e.g., Santiago-Ramirez,

(“Failure to timely file an administrative claim with the appropriate federal

agency results in dismissal of the plaintiff’s claim . . . .” (emphasis added)). Because

plaintiffs have not exhausted their administrative remedies, the court lacks subject-

matter jurisdiction over the claim against the federal defendants. The court

therefore grants the federal defendants’ motion to dismiss.8

II. The State Defendants’ Motion to Dismiss

Plaintiffs bring the same malicious prosecution claim against the state

defendants. The state defendants move to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6). The court has already determined that plaintiffs’ claim against

the federal defendants, which was the basis for the court’s subject-matter

7 As noted above, plaintiffs allege that they made complaints to the New Hampshire Attorney General, NHSP, and Governor Sununu. Plaintiffs also allege that William complained to the FBI, as well as FMCSA defendants Campise and Piwowarski. These complaints, however, do not qualify as administrative exhaustion. The state agencies and federal employees are not the applicable agencies for purposes of the FTCA. See

(a) (requiring that an FTCA claimant “present[] his claim to the appropriate Federal agency” (emphasis added)). Moreover, William’s communications with FBI agents and with Campise and Piwowarski occurred prior to FMCSA’s voluntary dismissal of its investigation into Spencer Brothers. At that point, a potential malicious prosecution claim had not accrued. See New Eng. Backflow, Inc. v. Gagne,

, 671 (2019) (stating that plaintiffs bringing a malicious prosecution claim must demonstrate that the prior case resolved in the plaintiffs’ favor).

8 Because the court dismisses the claim against the federal defendants for lack

of subject-matter jurisdiction, it need not address their two other arguments: lack of proper service and the FTCA’s investigative officer exemption. 11 jurisdiction, should be dismissed. At this early stage in the litigation, the court

declines to exercise supplemental jurisdiction over the state law claim under

(c). See Swartz v. Sylvester,

, 703 (1st Cir. 2022); Camelio

v. Am. Fed’n,

(1st Cir. 1998). The court therefore grants the state

defendants’ motion to dismiss on other grounds.

CONCLUSION

For the above reasons, the court grants the federal defendants’ motion to

dismiss for lack of subject-matter jurisdiction (doc. no. 19). Because the court

declines to exercise supplemental jurisdiction over the remaining claim against the

state defendants, the court dismisses that claim without prejudice and, therefore,

grants the state defendants’ motion to dismiss (doc. no. 20) on other grounds.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

July 16, 2024

cc: Counsel of Record

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