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UNITED STATES DISTRICT COURT

FOR THE
DISTRICT OF NEW HAMPSHIRE

ANONYMOUSLY AS SENSA VEROGNA,

Plaintiff,

v.

JUDGE ANDREA JOHNSTONE, IN HER Docket No. 1:21-cv-01047-LM

PERSONAL CAPACITY; JUDGE STEVEN J.
MCAULIFFE, IN HIS PERSONAL CAPACITY;
JULIE E. SCHWARTZ, ESQ.; AND JONATHAN M.
ECK, ESQ.,

Defendants.

OBJECTION TO PLAINTIFF’S RULE 59(E) MOTION TO VACATE

ORDER AND JUDGMENT

Defendant Jonathan M. Eck (“Attorney Eck”), by and through counsel, Morrison

Mahoney LLP, respectfully submits this Objection to Plaintiff’s Rule 59(e) Motion to Vacate

Order and Judgment, stating as follows:

1. On 12/8/21, Plaintiff filed the instant 107-page Complaint1 against Attorney Eck,

Attorney Julie E. Schwartz, Judge Andrea Johnstone and Judge Steven McAuliffe. Attorney Eck

and Attorney Schwartz represented Twitter in an earlier suit brought by Plaintiff against Twitter.

(See Ex. 72 to Doc. #1, docket summary of 1:20-CV-00536, hereinafter the “Underlying

Matter”). Judge Johnstone and Judge McAuliffe made certain rulings in the Underlying Matter

and in other matters involving Twitter. Some of the rulings in the Underlying Matter have been

appealed by Plaintiff. His appeals remain pending.

1 The Complaint is 107 pages without exhibits. With exhibits, the Complaint totals 205 pages.

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2. On 2/24/22, Plaintiff filed a 51-page Plaintiff’s Rule 59(e) Motion to Vacate

Order and Judgment, along with an additional 29 pages of other filings (collectively herein

“Motion”). In his Motion, Plaintiff requests that this court declare void or vacate its 1/27/22

order and 1/28/22 judgment for various reasons. Attorney Eck objects. This Court properly

dismissed Verogna’s Complaint, and his Motion should be denied. In his Motion, like his

Complaint, Plaintiff has done little more than offer “conclusory facts to support the legal

conclusions in his Complaint.” (Order, p. 13.) While he spends much of his 80-page filing

discussing a supposed conspiracy and supposed overt acts, his basis rests entirely upon his own

labels rather than facts, i.e., his labeling of certain acts by this Court as done pursuant to an

“illegal policy,” and his “leap from” his position that certain rulings were incorrect to the

existence of a conspiracy.

3. First, Plaintiff does not seek to alter or amend a judgment. Rather, he asks this

court to vacate the judgment of dismissal altogether. Rule 60 “prescribes the exclusive methods

by which federal judgments may be attacked.” George P. Reintjes Co., Inc. v. Riley Stoker

Corp., 71 F.3d 44, 46 (1995). However, it appears “in general that the grounds for relief from

judgment under Rule 60(b) may also be grounds for a new trial under Rule 59, if the motion is

timely made.” Perez-Perez v. Popular Leasing Rental, Inc., 993 F.2d 281, 283 (1993).

4. “Rule 60(b) invested the federal courts, in certain carefully delimited situations,

with the power to ‘vacate judgments whenever such action is appropriate to accomplish justice.’”

Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local No. 59 v. Superline

Transportation Co., Inc., 953 F.2d 17, 19 (1st Cir. 1992). In Teamsters, the First Circuit Court of

Appeals considered plaintiffs’ motion to reopen their case. In that matter, pursuant to Rule

60(b)(6), plaintiffs “attempted to resurrect the case from its own ashes” by moving to vacate an

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adverse judgment and reopen their case to prosecute two counts. Id. at 18. “[A]n inquiring court

should assume the truth of fact-specific statements contained in a Rule 60(b)(6) motion * * * [it]

need not, give credence to the movant’s bald assertions, unsubstantiated conclusions, periphrastic

circumlocutions, or hyperbolic rodomontade.” Id.

5. The Teamsters court also noted that under Rule 60(b), a reviewing Court should

consider the following criteria: timeliness of the filing of the motion; the existence of

“exceptional circumstances justifying extraordinary relief;” the “absence of unfair prejudice to

the opposing party” and whether the movant’s case which it seeks to reopen has merit. See id. at

19-20, 21 (it is “the rule in this circuit, that a litigant, as a precondition to relief under Rule 60(b),

must give the trial court reason to believe that vacating the judgment will not be an empty

exercise. [The movant must] demonstrate a meritorious claim or defense.”). The First Circuit

affirmed the trial court’s denial of the motion as plaintiffs failed to present “any cognizable

representation that its underlying suit possessed merit.” Id. at 21.

6. The same is true here. Plaintiff’s Complaint remains, as this Court noted,

“patently frivolous.” As such, this Court’s order of 1/27/22 was correct, and Plaintiff’s Motion

should be denied.

7. Plaintiff misunderstands this Court’s reasoned position that it has no jurisdiction.

Primarily, Plaintiff, in the instant Complaint, improperly seeks to attack rulings made in the

Underlying Matter, even though he couches it in terms of a conspiracy (based upon his self-

proclaimed, conclusory position that decisions were made based upon “illegal policies” and as a

result of a “conspiracy”). As discussed below, Plaintiff has alleged no facts which support his

claims, and the Complaint was properly dismissed.

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8. In the instant Complaint, Plaintiff alleges:

Count I Violation of 42 U.S. Code § 1985(2) (Clause 1) and § 1985(3) (Doc. #1,
pp. 80-93, ¶¶ 216-256.)
Count II Violations of 42 U.S. Code § 1986 (Doc. #1, pp. 93-97, ¶¶ 257-271.)
Count III Bivens (1971) Violations (Doc. #1, pp. 97-105; ¶¶ 272-304.)
Count IV Punitive Damages. (Doc. #1, p. 105, ¶¶ 305-306.)

In Count I, Plaintiff alleges that Judge Johnstone and Judge McAuliffe breached a duty to him

inasmuch as he claims there was a lack of due process and fairness related to policies of the

Court, his view that the Court permitted the filing of “illegal pleadings,” a failure to rule on

jurisdiction, a conspiracy against and coercion of Plaintiff in some fashion, and that he was

“damaged” “in his person and property.” (Doc. #1, ¶¶ 217-235.) Further, Plaintiff alleges that

all defendants “privately conspired” “in favor of Twitter,” each conspirator had a duty to speak

the truth, that the Court somehow gave “legal advice” to Twitter, and all deprived Plaintiff of

“the due orderly administration of law and justice.” (Doc. #1, ¶¶ 236-241.) Plaintiff claims as

injury “diminished leverage” in contract settlement negotiations, discrimination claims, a

diminished position in litigation, emotional damages, “moral disenfranchisement,” and attorneys’

fees. (Doc. #1, ¶¶ 250.) In Count II, Plaintiff alleges that all defendants participated in a

conspiracy and neglected or refused to prevent the alleged §1985 conspiracy. (Doc. #1, ¶ 262.)

9. In Count III, Plaintiff alleges wrongdoing by the judicial defendants acting under

the color of federal authority in failing to protect his Constitutionally protected right to due

process, right to a jury trial, and right to equal protection of the law, primarily as “Coie and

partner attorneys Mrazik and Schwartz of Coie” were permitted – according to the Plaintiff

wrongfully – to practice before the Court and this fact was concealed in some fashion. (Doc. #1,

¶¶ 274-305.) Further, Plaintiff maintains the judicial defendants’ actions in other cases

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demonstrated a bias in favor of Twitter. (Doc. #1, ¶ 300.) Attorney Eck is not mentioned in

Count III. (Doc. #1, ¶¶ 273-304.)

10. In Count IV, Plaintiff alleges that he is entitled to punitive damages and attorneys’

fees in accordance with 42 U.S.C. §1988. (Doc. #1, ¶¶ 305-306.) Count IV is a statement by

Plaintiff in which he contends he is entitled to punitive damages. Plaintiff relies, at least in part,

on 42 U.S.C. § 1988. This section provides that a “court, in its discretion, may allow the

prevailing party” in a claim under 42 U.S.C. §§ 1985 and 1986 (and others) “a reasonable

attorney’s fee as part of the costs….” There is no independent cause of action for punitive

damages nor does § 1988 create an independent cause of action.

11. Count I was properly dismissed. Plaintiff essentially alleges that he disagrees

with rulings in the Underlying Matter. Plaintiff assigns wrongdoing to the rulings based upon

the Court having accepted pleadings, signed and filed by an attorney admitted to practice before

the Court, because the pleadings also indicated that Attorney Schwartz would be seeking

admission Pro Hac Vice. The Underlying Matter has not gone to final judgment, but rather is

stayed pending appeal. (Ex. 72 to Doc. #1).

12. In order to press his position in the Underlying Matter, Plaintiff has invented a

conspiracy allegation based upon the appearance of out-of-state counsel in the Underlying Matter

and other matters in which he is not a party. Plaintiff’s allegations consist of a lengthy listing of

pleadings filed in these matters. Stripping away the conclusions, labels and argument, Plaintiff

alleges that: (a) Attorney Eck, as local counsel, filed documents in the Underlying Matter that he

did not author, (b) the four defendants communicated, (c) the judicial defendants provided

Plaintiff’s CM/ECF identification information to Eck and Schwartz, and this information was

supposedly utilized to gain insight into Plaintiff’s private research and a preview of Plaintiff’s

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positions or arguments. Accepting the alleged facts as true, Plaintiff has failed to plead sufficient

facts to demonstrate a deprivation of his civil rights, particularly as the Underlying Matter

remains pending.

13. Plaintiff suggests in his Complaint that there was impropriety as filed pleadings

were “ghostwritten,” relying in part on Ellis v. State of Maine, 448 F.2d 1325 (1st Cir. 1971)

(Doc. #1, ¶ 212, fn 4.) First, there is no Rule 11 violation. Attorney Eck signed all pleadings

that he filed. Next, Verogna misunderstands Ellis. In Ellis, the allegation was that an attorney

had ghostwritten a brief for a pro se litigant. The First Circuit Court of Appeals held that “[i]f a

brief is prepared in any substantial part by a member of the bar, it must be signed by him.” Ellis

at 1328. As is stated in footnote 4 of Plaintiff’s Complaint, when assisting pro se litigants, an

attorney should disclose the assistance. Thus, Plaintiff’s claim of impropriety based upon Ellis is

not supported by any fact alleged in his Complaint.

14. Similarly, Plaintiff’s claim that the four defendants conspired together to

participate in the alleged unauthorized practice of law by Attorney Schwartz, Judge Johnstone

and Judge McAuliffe is without factual support. The Complaint also does not demonstrate an

agreement or conspiracy among the defendants. Plaintiff’s Complaint generally talks about lines

of “communications,” but points to no fact upon which his conspiracy theory rests. This is made

plain by Plaintiff’s allegations that the defendants:

communicated with each other through either: (1) ECK'S established

communication using his connections within the COURT through JOHNSTONE,
MCAULIFFE, or other unknown judges, clerks or other employees within the
COURT; or (2) established channels of communication similarly used in the 2018
fraud, or; (3) established channels of communication similarly used in Delima 2;
or (4) established channels of communication used to direct PEREZ to file an
answer with the Appeals Court to the PLAINTIFF'S [Notice of Appeal, at 57] on
August 10, 2021; or (5) through ECK'S established communication via phone or
e-mail with SCHWARTZ; or (6) established channels of communication to which
judges in the COURT would normally communicate with each other, including

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face to face or; (7) a combination of any of the above methods, a meeting of the
minds, or other method(s) unknown without any discovery being completed

(emphasis added) (Doc. #1, ¶ 106). Plaintiff clearly is speculating without any facts.

“‘[A]llegations of conspiracy must . . . be supported by material facts, not merely conclusory

statements’ and such claims of conspiracy are subject to dismissal where the allegations ‘neither

elaborate []nor substantiate [][the] bald claims that certain defendants ‘conspired’ with one

another.’ Slotnick v. Garfinkle, 632 F.2d 163, 165-55 (1st Cir. 1980) (per curiam).” Lath v. Oak

Brook Condominium Owners’ Association, 2017 DNH 052, at *12 (2017). Such is the case

here. Plaintiff’s bald claims are insufficient to allege a conspiracy, and this Court properly

dismissed Plaintiff’s Complaint, to include his claims in Count I and Count II.

15. Under Rule 60, newly discovered evidence may serve as the basis to attack a

judgment. In his Declaration in Support of Plaintiff’s Rule 59(e) Motion to Vacate Order and

Judgment, he contends that he has “new information,” i.e., “[d]ays after filing [his] Motion to

Recuse . . . [he] noticed . . . that Judge Johnstone was to be re-appointed to Magistrate Judge.

Before [he] had a chance to understand the significance of the ‘vote to re-appoint’, Judge

McCafferty’s role and to amend the Motion, the Court dismissed the case….” (Declaration, p. 2,

paragraph 4.) Judge Johnstone’s reappointment provides no Rule 60 (or Rule 59) basis to vacate

this court’s 1/27/22 order. It is not a fact that gives credence to any of his bald assertions and

unsubstantiated conclusions within his Complaint.

16. Next, Plaintiff cannot prevail on a Bivens claim. First, this Court correctly noted

that neither Attorney Eck nor Attorney Schwartz is a state or federal actor. (Order, p. 14). See

also DeMay v. Nugent, 517 F.3d 11, 14 (2008). Here, it is abundantly clear that Attorney Eck is

not a “federal official,” but rather was an attorney representing a client in an action brought

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against that client by Plaintiff. (See Doc. #1, Ex. 72). Thus, there is no cause of action under

Bivens against Attorney Eck or the other defendants.

17. Also, “[i]n 1971, . . . this Court recognized in Bivens an implied damages action

to compensate persons injured by federal officers who violated the Fourth Amendment’s

prohibition against unreasonable searches and seizures. In the following decade, the Court

allowed Bivens-type remedies twice more, in a Fifth Amendment gender-discrimination case

[citation omitted] and in an Eighth Amendment Cruel and Unusual Punishments Clause case.

[citation omitted]. These are the only cases in which the Court has approved an implied damages

remedy under the Constitution itself.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1848 (2017). All three

Bivens-type claims are inapplicable to the facts alleged in Plaintiff’s Complaint. Further, the

Supreme Court “has made clear that expanding the Bivens remedy is now a ‘disfavored’ judicial

activity.” Ziglar, 137 S.Ct. at 1857, citing Iqbal, 556 U.S. at 675.

Wherefore Defendant Jonathan M. Eck respectfully requests that this Honorable Court:

A. Deny Plaintiff’s Rule 59(e) Motion to Vacate Order and Judgment; and

B. Grant such other and further relief as is equitable and just

Respectfully submitted,

Jonathan M. Eck, Esq.

MORRISON MAHONEY LLP

By /s/ Linda M. Smith

Linda M. Smith, #265038
lsmith@morrisonmahoney.com
1001 Elm Street, Suite 304
Manchester, NH 03101
Phone: 603-622-3400
Fax: 603-622-3466

Dated: March 10, 2022

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was served on the following persons on
March 10, 2022 date in the manner specified herein:

Electronically Served:

Dan L. Bagatell dbagatell@perkinscoie.com

Sensa Verogna sensaverogna@gmail.com

/s/ Linda M. Smith

Linda M. Smith, #265038

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