PAPI et al v. TOWN OF GORHAM et al

Filing 31

ORDER ON PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT re: 19 Motion to Amend. By JUDGE JON D. LEVY. (mjlt)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JOHN PAPI, et al.,
Plaintiffs,
v.
TOWN OF GORHAM, et al.,
Defendants.

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2:16-cv-00560-JDL

ORDER ON PLAINTIFF’S MOTION FOR LEAVE TO FILE AMENDED
COMPLAINT
John Papi and his limited liability company, John J. Papi, LLC, (collectively
“Papi”) filed a seven-count Complaint against the Town of Gorham (“the Town”) and
several of its officials relating to the Town’s enforcement of its solid waste removal
licensing ordinance. See ECF No. 1. Papi now moves to amend the Complaint. ECF
No. 19. For the following reasons, that motion is denied.
I. PROCEDURAL HISTORY
On April 20, 2017, I entered an order granting the Defendants’ Partial Motion
to Dismiss (ECF No. 5). ECF No. 14. That order dismissed Counts I through VI of
the Complaint, as well as Count VII against Defendants Town of Gorham Town
Council, Ronald Shepard, and Daniel Jones. Id. at 10. Papi’s claim in Count VII
against the Town, the Town of Gorham Town Clerk, and David Cole was left as the
only remaining claim. Id.
Papi’s dispute with the Town over the solid waste licensing ordinance was the
subject of a previous case in the Cumberland County Superior Court (Wheeler, J.),

which arose from a citation issued to Papi for hauling waste without a license in
violation of the ordinance. Town of Gorham v. Papi, No. VI-14-001, 2015 WL 1757015
(Me. Super. Mar. 27, 2015). Papi contested the citation, claiming that the Town
violated his Constitutional rights by selectively enforcing the ordinance against him
even though it was not enforced against other waste haulers operating in the town.
Because the Superior Court determined that Papi failed to prove that he was
selectively prosecuted for violating the ordinance, I concluded that Papi was barred
by the principle of collateral estoppel from asserting Counts I through VI in federal
court and ordered the dismissal of those counts. See ECF No. 14 at 6-9. Count VII,
the only remaining count in the Complaint, alleged a violation of Maine Rule of Civil
Procedure 80B stemming from the alleged failure of the Town Clerk to issue a solid
waste removal license to Papi, despite Papi’s payment of the licensing fee. See ECF
No. 1 at 16.
I subsequently met with counsel to address whether the Court should exercise
supplemental federal jurisdiction over Count VII, given that it arose under state law,
and in view of the order dismissing all of Papi’s federal claims. See 28 U.S.C.A. §
1367 (2017). At the conference, Papi’s counsel expressed Papi’s desire to file an
amended complaint in order to assert federal claims arising from the Town’s alleged
failure to issue the solid waste removal license that is the basis of Count VII. I
requested Papi’s counsel to file a motion for leave to amend in order to assert the new
federal claims. Papi subsequently moved for leave to amend, ECF No. 19, and the
Defendants objected, ECF No. 24.

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II. DISCUSSION
A.

Legal Standard
After the time for amendments as a matter of course has passed, a party may

amend its pleading with leave of the court, which should be freely given “when justice
so requires.” Fed. R. Civ. P. 15(a)(2). Accordingly, leave to amend should be granted
where there is no “undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, [or] futility.”
Foman v. Davis, 371 U.S. 178, 182 (1962); see also Chiang v. Skeirik, 582 F.3d 238,
244 (1st Cir. 2009). If leave to amend is sought before discovery is complete and
neither party has moved for summary judgment, a proposed amendment will be
denied if the amendment fails to state a claim and is, therefore, futile. See Hatch v.
Dept. for Children, Youth and Their Families, 274 F.3d 12, 19 (1st Cir. 2001).
“Futility” is gauged by the criteria of Federal Rule of Civil Procedure 12(b)(6)
governing motions to dismiss for failure to state a claim. Id. A proposed amended
complaint therefore “must contain sufficient factual matter to state a claim to relief
that is plausible on its face.” Saldivar v. Racine, 818 F.3d 14, 18 (1st Cir. 2016)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (internal quotation marks and
alterations omitted).
B.

The Proposed Amendment
Papi’s Proposed Amended Complaint seeks to re-assert all seven counts in the

original complaint by alleging “additional facts to clarify that the complained of
actions by the Defendants occurred prior to and subsequent to the state court’s
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decision in Town of Gorham v. John Papi.” ECF No. 19 at 4. Papi claims that the
amendments makes “clear, that [the] state court neither had before it, nor decided all
of the allegations raised in the amended Complaint.” Id. at 5. Papi further argues
that the amended Complaint asserts a claim for selective licensing of solid waste
haulers, which should be understood as distinct from the selective enforcement of the
licensing ordinance.
Papi’s first argument misapprehends the basis for the Court’s order of
dismissal. The doctrine of collateral estoppel, otherwise known as issue preclusion,
does not require that all of the claims raised by a later suit were determined by the
prior judgment. 13C Charles Alan Wright & Arthur R. Miller, et al., Federal Practice
and Procedure § 4416 (3d ed. 2017 Update); see also Southern Pac. R. Co. v. United
States, 168 U.S. 1, 48-49 (1897) (“[E]ven if the second suit is for a different cause of
action, the right, question, or fact once so determined must . . . be taken as
conclusively established.”). Collateral estoppel instead deals with the preclusive
determination of factual matters.

“Issue preclusion reflects the fundamental

principle that courts should not revisit factual matters that a party previously
litigated and another court actually decided.” Miller v. Nichols, 586 F.3d 53, 60 (1st
Cir. 2009). Because the Superior Court’s judgment determined that the Town did not
engage in selective enforcement and had a rational basis for enforcing the licensing
ordinance against Papi, Papi is estopped from asserting any claim that requires him
to prove that the Town acted without a rational basis, regardless of whether that
specific claim was before the Superior Court. See ECF No. 14 at 7-9. Papi had his
day in court, and thus had an opportunity to prove that the ordinance had been
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selectively enforced against him. Because he failed to prove selective enforcement in
state court, collateral estoppel prevents trying the case a second time in federal court.
Moreover, the fact that some of the allegations set forth in the Proposed
Amended Complaint relate to events that took place after the date of the Superior
Court judgment does not save Papi’s Proposed Amended Complaint. There is no
allegation that the Defendants have changed their conduct in any way; Papi asserts
that they continue to require him to have a license while not requiring other haulers
to have a license, just as he claimed they did before the state case was brought against
him. The allegation of continuing conduct does not give rise to a new claim. The
Superior Court determined that the Defendants’ actions were constitutional. The fact
that the Defendants continued to act in the same way after the Superior Court’s
decision therefore cannot give rise to a claim for a constitutional violation.
Papi further argues that the Superior Court did not address the argument he
seeks to make in support of his Amended Complaint, namely that the Town is
engaging in selective administration of the licensing scheme at the level of the town
clerk’s office, rather than selective enforcement of the licensing ordinance. Papi
asserts that selective administration is different from the selective enforcement that
was at issue in the state case because enforcement requires the exercise of discretion,
while administration of the ordinance by the town clerk’s office does not allow for the
exercise of any discretion. Specifically, Papi asserts that the town clerk’s office does
not have the discretion to allow some haulers to operate without a license, but that it
is nonetheless permitting some haulers to do so.

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Papi’s proposed distinction between “selective administration” or “selective
licensing,” on the one hand, and “selective enforcement,” on the other, rests on a false
distinction between requiring haulers to have a license under the ordinance, and
enforcing the ordinance against those who do not have a license. As discussed in my
previous order in this case, those are one and the same thing. See ECF No. 14 at 8
(“The Town’s ordinance compels unlicensed waste haulers to obtain a license with the
threat of enforcement citations, like the one Papi received. Thus, the selective
administration of the licensing scheme and the selective prosecution of enforcement
citations are one and the same.”). The town clerk’s office cannot compel haulers to
obtain a license, or authorize some haulers to operate without one. The clerk’s office
is responsible for issuing licenses to those who apply for them; it is not responsible
for forcing people to apply for a license in the first place. The threat of an enforcement
citation is what compels haulers to apply for and obtain a license.
Papi’s claim of “selective administration” was therefore considered and
rejected by the Superior Court when it considered and rejected his arguments
regarding selective enforcement. Papi presented evidence that not all waste haulers
in the Town had the required license, but that they were nonetheless not issued
citations. See Town of Gorham v. Papi, No. VI-14-001, 2015 WL 1757015, at *3 (“Papi
established that there are other haulers that are not licensed.”). Moreover, the court
recognized that “Papi simply wants the court to level the playing field and to make
the community business friendly for competition.”

Id.

The Superior Court

nonetheless determined that no Constitutional violation had occurred. Id. Papi has
already made his arguments both that the Town unfairly targeted him, and unfairly
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failed to target others. The Superior Court heard and decided those allegations, and
its decision must be respected by this Court under sound jurisprudential principles.
Thus, Papi’s Proposed Amended Complaint does not cure the defect contained
in his original Complaint, and his Proposed Amended Complaint is futile.
C.

Count VII
Count VII asserts that Papi was not issued a license despite paying the

required fee. Papi’s counsel confirmed at oral argument, however, that Papi had in
fact been issued a license before the filing of the proposed amended complaint,
although counsel was unsure whether the license was in effect as of the date of
argument. It is therefore not clear that a factual basis for this claim exists.
Moreover, Count VII in the Proposed Amended Complaint is identical to Count
VII in the original Complaint, and does not present an independent basis for the
exercise of federal jurisdiction. Compare ECF No. 1 at 16 with ECF No. 19-2 at 18.
Accordingly, it will be dismissed without prejudice so that Papi may pursue the claim
in state court if he chooses. See Eves v. LePage, 842 F.3d 133, 146 (1st Cir. 2016) (“A
district court may decline to exercise supplemental jurisdiction if the court has
dismissed all claims over which it has original jurisdiction.”) (internal quotation
marks omitted); see also United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726
(1966) (noting that supplemental jurisdiction is “a doctrine of discretion, not of
plaintiff’s right”).

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III. CONCLUSION
For the foregoing reasons, Papi’s Motion for Leave to Amend the Complaint
(ECF No. 19) is DENIED. Furthermore, Count VII of the Complaint is DISMISSED
without prejudice.

SO ORDERED.
Dated this 14th day of August 2017
/s/ JON D. LEVY
U.S. DISTRICT JUDGE

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