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Case TitleBerry v. Federal Bureau of Investigation et al
DistrictDistrict of New Hampshire
CityConcord
Case Number1:2017cv00143
Date Filed2017-04-18
Date Closed2018-07-18
JudgeJudge Landya B. McCafferty
PlaintiffJason T. Berry
Case DescriptionJason Berry, a former probation and parole officer for the State of Hampshire, submitted a FOIA request to the FBI for records about himself. After hearing nothing further from the agency, Berry also submitted a FOIA request to a state agency. The FBI apparently tried to contact Berry at his parents' home. Berry contacted the FBI agent and asked why he had tried to contact him at his parents' home. After hearing nothing further from the agent, Berry filed suit. Although he cites FOIA as one basis for his claim, his primary claims are under the Privacy Act.
Complaint issues: FOIA mentioned only tangentially

DefendantFederal Bureau of Investigation
DefendantMark Hastbacka Special Agent, Federal Bureau of Investigation, in his individual and official capacities
Documents
Docket
Complaint
Complaint attachment 1
Opinion/Order [17]
Opinion/Order [31]
FOIA Project Annotation: A federal court in New Hampshire has ruled that Jason Berry failed to show that he suffered any actual damages under the Privacy Act when an FBI agent left a voicemail message for Berry on his parents' phone. Berry, a former probation and parole officer for the state of New Hampshire had assisted the FBI's Safe Streets Task Force. Berry made a FOIA request for records regarding his past involvement with the task force. FBI Agent John Hastbacka called Berry's parents and left a voicemail message on their phone, explaining that he was calling about some correspondence that Berry had sent the FBI and that he was unable to contact him on his own phone. Berry's parents were confused by the phone message. Berry filed suit, alleging the phone message constituted an improper disclosure under the Privacy Act. The court found that the Supreme Court's ruling in FAA v. Cooper, 566 U.S. 284 (2012), holding that only actual damages could be recovered for Privacy Act violations, was dispositive. Dismissing Berry's claim, the court noted that "here, the only injury Berry alleges in support of his claim for damages under the Privacy Act is emotional distress. Because damages for emotional distress are not included in the 'actual damages' available under the Privacy Act, Berry has not alleged a plausible claim for damages."
Issues: Litigation - Jurisdiction - Failure to State a Claim
Opinion/Order [41]
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2017-04-181COMPLAINT against Federal Bureau of Investigation, Mark Hastbacka with Jury Demand (Filing fee $400 receipt number 14649014909) filed by Jason T. Berry. (Attachments: # 1 Summons - Waiver) (mc) (Entered: 04/18/2017)
2017-04-18Case assigned to Judge Landya B. McCafferty. The case designation is: 1:17-cv-143-LM. Please show this number with the judge designation on all future pleadings. (mc) (Entered: 04/18/2017)
2017-04-18NOTICE. This case has been designated for Electronic Case Filing. All further submissions shall be filed in compliance with the Administrative Procedures for Electronic Case Filing. Pro se litigants are not required to file electronically and may continue to file documents in paper format. Persons filing electronically are strongly encouraged to complete the interactive training modules available on the courts website. To access these modules, click HERE . (mc) (Entered: 04/18/2017)
2017-04-182Summonses issued by mail as to Federal Bureau of Investigation, Mark Hastbacka. Counsel shall serve all documents in accordance with Fed. R. Civ. P. 4. NOTICE: Counsel shall print and serve the summonses and all attachments in accordance with Fed. R. Civ. P. 4. (Attachments: # 1 Notice ECF) (mc) (Entered: 04/18/2017)
2017-05-054Return of Service Executed as to Federal Bureau of Investigation by Jason T. Berry. Served/Mailed on 5/2/2017. Answer Follow Up on 7/5/2017. (de) (Entered: 06/20/2017)
2017-05-055Return of Service Executed as to Mark Hastbacka by Jason T. Berry. Served/Mailed on 5/2/2017. Answer Follow Up on 7/5/2017. (de) (Entered: 06/20/2017)
2017-05-113CERTIFICATE OF SERVICE by Jason T. Berry re: 1 Complaint. (de) (Entered: 06/20/2017)
2017-06-126Return of Service Executed as to US Attorney's Office by Jason T. Berry. Served/Mailed on 5/15/2017. Answer Follow Up on 7/17/2017.(de) (Entered: 06/20/2017)
2017-07-037MOTION to Dismiss for Failure to State a Claim filed by Federal Bureau of Investigation, Mark Hastbacka. Attorney Robert J. Rabuck added to party Federal Bureau of Investigation(pty:dft), Attorney Robert J. Rabuck added to party Mark Hastbacka(pty:dft). Follow up on Objection on 7/17/2017. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c). (Attachments: # 1 Memorandum of Law)(Rabuck, Robert) (Entered: 07/03/2017)
2017-07-038MOTION for Preliminary Injunction filed by Jason T. Berry. Served on 7/3/2017. Follow up on Objection on 7/17/2017. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c). (Attachments: # 1 Memorandum in Support of Request for Preliminary Injunction, # 2 Exhibit Letter)(de) (Entered: 07/05/2017)
2017-07-05ENDORSED ORDER re: 8 MOTION for Preliminary Injunction. Text of Order: Plaintiff has requested preliminary injunctive relief (doc. no. 8). The magistrate judge is designated to consider the request and, if necessary, conduct a hearing on the matter. The magistrate judge shall file proposed findings and recommendations with the court. See 28 U.S.C. § 636(b)(1)(B). So Ordered by Judge Landya B. McCafferty.(de) (Entered: 07/05/2017)
2017-07-079REPLACED by Doc. 10; BRIEF/MEMORANDUM in Opposition to Plaintiff's Motion for Preliminary Injunction by Federal Bureau of Investigation, Mark Hastbacka(Rabuck, Robert) Modified on 7/12/2017 to add: replaced by language(de). (Entered: 07/07/2017)
2017-07-0710REPLACES Doc. 9; MEMORANDUM in Opposition re 8 MOTION for Preliminary Injunction (to replace DN 9) filed by Federal Bureau of Investigation, Mark Hastbacka. (Rabuck, Robert) Modified on 7/12/2017 to add: replaces language(de). (Entered: 07/07/2017)
2017-07-2011OBJECTION to 7 MOTION to Dismiss for Failure to State a Claim served on 7/20/2017 filed by Jason T. Berry. (Attachments: # 1 Memorandum in Support of Objection)(de) (Entered: 07/20/2017)
2017-07-20ORAL Notice of Intent to Reply to Objection to 7 MOTION to Dismiss for Failure to State a Claim . Follow up on Reply on 8/3/2017. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c).(de) (Entered: 07/20/2017)
2017-07-20ENDORSED ORDER re: ORAL Notice of Intent to Reply. Text of Order: In accordance with this particular court's reply/surreply practice, the court will accept the reply no later than July 28, 2017, and grants leave to file (but does not require) a surreply, which will be accepted no later than August 4, 2017. So Ordered by Judge Landya B. McCafferty.(de) (Entered: 07/20/2017)
2017-07-2412REPORT AND RECOMMENDATION re 8 Motion for Preliminary Injunction, recommending that the district judge should deny the motion for a preliminary injunction (Doc. No. 8). Any objections to this Report and Recommendation must be filed within fourteen days of receipt of this notice. Follow up on Objections to R&R on 8/7/2017. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c). So Ordered by Magistrate Judge Andrea K. Johnstone.(de) (Entered: 07/24/2017)
2017-07-2614Notice of Intent to Surreply to Reply to 7 MOTION to Dismiss for Failure to State a Claim Surreply Follow Up on 8/4/2017. (jbw) (Entered: 07/31/2017)
2017-07-2813REPLY to Objection to Motion re 7 MOTION to Dismiss for Failure to State a Claim filed by Federal Bureau of Investigation, Mark Hastbacka. (Rabuck, Robert) (Entered: 07/28/2017)
2017-08-0415SURREPLY to Reply to 7 MOTION to Dismiss for Failure to State a Claim filed by Jason T. Berry. (de) (Entered: 08/09/2017)
2017-08-0716OBJECTION to 12 Report and Recommendation filed by Jason T. Berry. (Attachments: # 1 Memorandum of Law in Support of Objection, # 2 Exhibit A, # 3 Exhibit B).(de) (Entered: 08/09/2017)
2017-08-09ENDORSED ORDER. Text of Order: No pretrial conference will be scheduled until after resolution of the pending Motion to Dismiss (doc. no. 7). Given the issues raised in the motion, the court finds good cause to extend the deadline for issuing the scheduling order pursuant to Fed. R. Civ. P. 16(b) to after the rescheduled pretrial conference. So Ordered by Magistrate Judge Andrea K. Johnstone.(de) (Entered: 08/09/2017)
2017-08-10Notice regarding 7 MOTION to Dismiss for Failure to State a Claim : Pursuant to Local Rule 72.1, this motion has been referred to Magistrate Judge Andrea K. Johnstone for proposed findings of fact and a recommendation as to its disposition. Any such findings and recommendations shall be filed with the Court and a copy shall forthwith be served on all parties. (de) (Entered: 08/10/2017)
2017-08-1017ORDER approving 12 Report and Recommendation denying 8 Motion for Preliminary Injunction. So Ordered by Judge Landya B. McCafferty.(de) (Entered: 08/11/2017)
2017-08-2118MOTION To Allow Limited Submission of Evidence Prior to Time Specified in Rule 26(f) and Rule 16(b) filed by Jason T. Berry. Served on 8/21/2017. Follow up on Objection on 9/5/2017. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c). (Attachments: # 1 Memorandum of Law In Support)(de) (Entered: 08/25/2017)
2017-08-2219MOTION for Reconsideration re 17 Order on Motion for Preliminary Injunction filed by Jason T. Berry. Served on 8/22/2017. Follow up on Objection on 9/5/2017. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c). (Attachments: # 1 Memorandum of Law In Support)(de) (Entered: 08/25/2017)
2017-09-0520MEMORANDUM in Opposition re 18 MOTION To ALlow Limited Submission of Evidence Prior to Time Specified in Rule 26(f) and Rule 16(b) filed by Federal Bureau of Investigation, Mark Hastbacka. (Rabuck, Robert) (Entered: 09/05/2017)
2017-09-0521MEMORANDUM in Opposition re 19 MOTION for Reconsideration re 17 Order on Motion for Preliminary Injunction, Order on Report and Recommendation filed by Federal Bureau of Investigation, Mark Hastbacka. (Rabuck, Robert) (Entered: 09/05/2017)
2017-09-0822Notice of Intent to Reply to Objection to 18 MOTION To Allow Limited Submission of Evidence Prior to Time Specified in Rule 26(f) and Rule 16(b), 19 MOTION for Reconsideration re 17 Order on Motion for Preliminary Injunction, Order on Report and Recommendation.(de) (Entered: 09/08/2017)
2017-09-08ENDORSED ORDER re: 22 Notice of Intent to Reply. Text of Order: In accordance with this particular court's reply/surreply practice, the court will accept the reply no later than September 18, 2017, and grants leave to file (but does not require) a surreply, which will be accepted no later than September 25, 2017. So Ordered by Judge Landya B. McCafferty.(de) (Entered: 09/11/2017)
2017-09-1823REPLY to Objection to Motion re 19 MOTION for Reconsideration re 17 Order on Motion for Preliminary Injunction filed by Jason T. Berry. (de) (Entered: 09/21/2017)
2017-09-1824REPLY to Objection to Motion re 18 MOTION To Allow Limited Submission of Evidence Prior to Time Specified in Rule 26(f) and Rule 16(b) filed by Jason T. Berry. (de) (Entered: 09/21/2017)
2017-09-27ENDORSED ORDER denying 19 Motion for Reconsideration Re: 17 Order on Motion for Preliminary Injunction. Text of Order: Denied for the reasons stated in document no. 21 . So Ordered by Judge Landya B. McCafferty.(gla) (Entered: 09/27/2017)
2017-09-2725///ORDER granting 18 Motion for To Allow Limited Submission of Evidence Prior to Time Specified in Rule 26(f) and Rule 16(b); denying without prejudice 7 Motion to Dismiss for Failure to State a Claim. So Ordered by Judge Landya B. McCafferty.(gla) (Entered: 09/27/2017)
2017-10-0426AMENDED COMPLAINT with Jury Demand against Federal Bureau of Investigation, Mark Hastbacka filed by Jason T. Berry. Certain exhibit(s) maintained conventionally in Clerks Office - Exhibit A: audio cassette. (de) Modified on 10/17/2017 to add: Exhibit A (de). (Entered: 10/17/2017)
2017-10-1927MOTION to Dismiss for Failure to State a Claim filed by Federal Bureau of Investigation, Mark Hastbacka. Follow up on Objection on 11/2/2017. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c). (Attachments: # 1 Memorandum of Law)(Rabuck, Robert) (Entered: 10/19/2017)
2017-11-0228OBJECTION to 27 MOTION to Dismiss for Failure to State a Claim served on 11/2/2017 filed by Jason T. Berry. (de) (Entered: 11/03/2017)
2017-11-03ORAL Notice of Intent to Reply to Objection to 27 MOTION to Dismiss for Failure to State a Claim .(de) (Entered: 11/03/2017)
2017-11-06ENDORSED ORDER re: ORAL Notice of Intent to Reply. Text of Order: In accordance with this particular court's reply/surreply practice, the court will accept the reply no later than November 13, 2017, and grants leave to file (but does not require) a surreply, which will be accepted no later than November 20, 2017. So Ordered by Judge Landya B. McCafferty.(de) (Entered: 11/06/2017)
2017-11-1329REPLY to Objection to Motion re 27 MOTION to Dismiss for Failure to State a Claim filed by Federal Bureau of Investigation, Mark Hastbacka. (Rabuck, Robert) (Entered: 11/13/2017)
2017-11-2030SURREPLY to Reply to 27 MOTION to Dismiss for Failure to State a Claim filed by Jason T. Berry. (de) (Entered: 11/30/2017)
2018-02-0531///ORDER granting without prejudice 27 Motion to Dismiss for Failure to State a Claim. Granted without prejudice to file a second amended complaint by March 5, 2018. Failure to file a second amended complaint within this time frame will result in the dismissal of Berrys claims against the defendants with prejudice. So Ordered by Judge Landya B. McCafferty.(gla) (Entered: 02/05/2018)
2018-02-2032MOTION For Relief Under Federal Rule 60(b)(6) from February 5, 2018 Order Granting Motion to Dismiss filed by Jason T. Berry. Served on 2/20/2018. Follow up on Objection on 3/6/2018. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c). (Attachments: # 1 Memorandum in Support)(de) (Entered: 03/01/2018)
2018-03-0133RESPONSE to Motion re 32 MOTION For Relief Under Federal Rule 60(b)(6) from February 5, 2018 Order Granting Motion to Dismiss filed by Federal Bureau of Investigation, Mark Hastbacka. (Rabuck, Robert) (Entered: 03/01/2018)
2018-03-0534SECOND AMENDED COMPLAINT with Jury Demand against Federal Bureau of Investigation, Mark Hastbacka filed by Jason T. Berry. (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit D, # 4 Exhibit E). Certain exhibit(s) maintained conventionally in Clerks Office - Exhibit A: audio cassette.(de) (Entered: 03/06/2018)
2018-03-09ENDORSED ORDER denying as moot 32 Motion For Relief Under Federal Rule 60(b)(6) from February 5, 2018 Order Granting Motion to Dismiss. Text of Order: Plaintiff moved for relief from the court's order dismissing his amended complaint. Doc. no. 32 . Plaintiff has since filed a second amended complaint, doc. no. 34 , with leave from the court. As a result, the second amended complaint is the relevant and operative complaint in this matter. Therefore, plaintiffs motion for relief from the courts order dismissing the amended complaint (doc. no. 32) is denied as moot. So Ordered by Judge Landya B. McCafferty.(gla) (Entered: 03/09/2018)
2018-03-2635MOTION to Dismiss for Failure to State a Claim filed by Federal Bureau of Investigation, Mark Hastbacka. Follow up on Objection on 4/9/2018. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c). (Attachments: # 1 Memorandum of Law)(Rabuck, Robert) (Entered: 03/26/2018)
2018-04-0936OBJECTION to 35 MOTION to Dismiss for Failure to State a Claim served on 4/9/2018 filed by Jason T. Berry. Follow up on Reply on 4/16/2018. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c). (Attachments: # 1 Memorandum of Law in Support of Objection, # 2 Exhibit A)(de) (Entered: 04/09/2018)
2018-04-1037Assented to MOTION to Extend Time to file a reply to Plaintiff's Objection to April 20, 2018 filed by Federal Bureau of Investigation, Mark Hastbacka.(Rabuck, Robert) (Entered: 04/10/2018)
2018-04-10ENDORSED ORDER granting 37 Motion to Extend Time to file a reply to Plaintiff's Objection to April 20, 2018. Text of Order: Granted. So Ordered by Judge Landya B. McCafferty. Follow up on Reply on 4/20/2018. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c).(gla) (Entered: 04/10/2018)
2018-04-1138Plaintiff's NOTICE of Assent to a Motion to Extend Time for a Reply for the Defendants by Jason T. Berry.(de) (Entered: 04/11/2018)
2018-04-2039REPLY to Objection to Motion re 35 MOTION to Dismiss for Failure to State a Claim filed by Federal Bureau of Investigation, Mark Hastbacka. Surreply due by 4/25/2018. (Rabuck, Robert) (Entered: 04/20/2018)
2018-04-2740SURREPLY to Reply to 35 MOTION to Dismiss for Failure to State a Claim filed by Jason T. Berry. (de) (Entered: 04/27/2018)
2018-07-1741///ORDER granting 35 Motion to Dismiss for Failure to State a Claim. Clerk shall enter judgment and close the case. So Ordered by Judge Landya B. McCafferty.(gla) (Entered: 07/18/2018)
2018-07-1842JUDGMENT is hereby entered in accordance with 25 Order on Motion and Order on Motion to Dismiss for Failure to State a Claim, 31 Order on Motion to Dismiss for Failure to State a Claim, 41 Order on Motion to Dismiss for Failure to State a Claim. Signed by Daniel J. Lynch, Clerk of Court. (Case Closed) . (de) (Entered: 07/19/2018)
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by FOIA Project Staff
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