Surprenant, Individually and on Behalf of All Others Similarly Situated v. Massachusetts Turnpike Authority et al
Filing
106
Judge Richard G. Stearns: ORDER entered denying 99 Motion to Alter Judgment; denying 99 Motion to Amend (Zierk, Marsha)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION No. 09-CV-10428-RGS
CAROL SURPRENANT, Individually and
on Behalf of All Others Similarly Situated
v.
THE MASSACHUSETTS DEPARTMENT OF TRANSPORTATION
MEMORANDUM AND ORDER ON MOTION TO
ALTER OR AMEND JUDGMENT AND FOR
LEAVE TO FILE A SECOND AMENDED COMPLAINT’
May 9, 2011
STEARNS, D.J.
On February 4, 2011, the court allowed the Massachusetts Department of
Transportation’s (MassDOT) motion for judgment on the pleadings.1 The court held
that as a recently constituted arm of the Commonwealth, MassDOT is immune from
suit under the Eleventh Amendment. Judgment entered for MassDOT on February 7,
2011. On March 7, 2011, Surprenant filed a motion to alter or amend the judgment
under Rule 59(e), and for leave to file a Second Amended Complaint.
1
In her original Complaint, plaintiff Carol Surprenant, a Rhode Island resident,
alleged that certain concessionary bridge and tunnel tolls granted by the Massachusetts
Turnpike Authority (MTA) and the Massachusetts Port Authority (MassPort) to local
residents discriminate against out-of-state travelers in violation of the Dormant
Commerce Clause. MassDOT, the successor to the MTA and MassPort, moved for
dismissal pursuant to Fed. R. Civ. P. 12(c).
Surprenant argues that leave to amend her Complaint should be granted because:
(1) in her Opposition to MassDOT’s motion for judgment on the pleadings, she made
clear her intention to seek leave to name the Secretary of MassDOT as a defendant in
the event her argument against the motion failed; (2) the prayer in the First Amended
Complaint for a declaration that the Resident Discount Program violates the Dormant
Commerce Clause constituted a curative claim for “prospective declaratory relief”;2 (3)
the court’s factual and legal conclusions in its February 4, 2011 Memorandum and
Order were erroneous; and finally, (4) because granting leave to amend would cause
“absolutely no prejudice . . . to defendants.” MassDOT counters that: (1) Surprenant
delayed seeking leave to amend more for than thirteen months after it made clear that
it intended to invoke sovereign immunity; (2) Surprenant has failed to make the
extraordinary showing of entitlement to relief that a Rule 59(e) motion requires;3 and
2
As the court previously noted, “an award of prospective declaratory relief that
has much the same effect as a full-fledged award of damages or restitution by the
federal court, is the kind of relief prohibited by the Eleventh Amendment.” Mem. and
Order of Feb. 4, 2011 (Dkt. # 94), at 10 n.10, quoting Mills v. State of Maine, 118 F.3d
37, 54-55 (1st Cir. 1997). See also Regents of the Univ. Of California v. Doe, 519
U.S. 425, 429 (1997). Compare Green v. Mansour, 474 U.S. 64, 68 (1985).
3
In the First Circuit, “Rule 59(e) motions are granted only where the movant
shows a manifest error of law or newly discovered evidence.” Prescott v. Higgins, 538
F.3d 32, 45 (1st Cir. 2008). “A Rule 59(e) motion should not . . . raise arguments
which could, and should, have been made before judgment issued.” ACA Fin. Guar.
Corp. v. Advest, Inc., 512 F.3d 46, 55 (1st Cir. 2008), quoting Harley-Davidson Motor
Co. v. Bank of New England, 897 F.2d 611, 616 (1st Cir. 1990).
2
(3) the proposed amendment in any event is futile “as it contains no factual allegations
plausibly suggesting that the resident discount toll programs challenged by Surprenant
violate the Dormant Commerce Clause.” MassDOT Opp’n at 1. I agree on all three
points, but will focus on the third and first argument.
As the court stated in footnote 12 of its February 7, 2011 Memorandum and
Order,
[b]ecause sovereign immunity operates as a complete bar to further
litigation, any comment on the Pike test issues that were the subject of
discovery before the immunity defense was raised would be superfluous
dicta. Suffice it to say, there is nothing cited in Surprenant’s brief that
would undermine Judge van Gestel’s decision in Kelen v. Massachusetts
Tpk. Auth., 2007 WL 1418510 (Mass. Super. May 3, 2007), that the
resident toll structure program passes constitutional muster.
The parties’ post-discovery submissions on the Pike issues amply confirm Judge van
Gestel’s common-sense determination that the burdens faced by local residents who
live adjacent to the Sumner and Ted Williams Tunnels and the Tobin Memorial Bridge
are substantial and that the benefit conferred by the Resident Discount Program, while
it is real, is not excessive when weighed against the incidental burden (if it is a burden
at all) placed on transient users of the facilities like Surprenant.
A few examples will suffice. MassDOT has offered Rule 30(b)(6) testimony,
reports, transcripts, and eyewitness accounts documenting the burdens imposed on the
communities that host the Bridge and the Tunnels. Some of these burdens are
3
historical, including the splitting of communities and the takings of housing and other
property.4 Others are on-going, such as increased traffic, noise, air pollution, accidents,
jack hammering, vibration, the diversion of traffic onto local streets, soil contamination,
flooding, and disruptions of utility services and business operations. See O’Meara
Decl. ¶¶ 7-9; Cote Decl. - Exs. 5 and 6; and Ernst Decl. ¶¶ 5-11.5
Stephen Collins, the Director of Statewide Tolling for MassDOT and a
Rule30(b)(6) deponent, testified about the impact the construction of the Ted Williams
4
Although Surprenant disagrees with defendant that the statute of limitations
precludes class claims for damages accrued prior to March 30, 2006, she contends that
the court should ignore any evidence offered by MassDOT that falls outside the statute
of limitations. However, the court notes that the Discount Program was implemented
to redress historical burdens as well as those that MassDOT indicates as“on-going.”
5
A MassDOT Traffic and Revenue Study, dated January 28, 2010, found that
the Tobin Bridge carries volumes “in excess of 80,000 vehicles on an average day, and
in 2009 the Ted Williams Tunnel averaged 33,100 westbound and 31,600 eastbound
trips daily; the Sumner Tunnel averaged 21,300 daily trips; and the Callahan Tunnel
averaged 23,100 daily trips. Small Decl. - Ex. 2 at 24779. With these vehicles comes
pollution and noise.
4
Tunnel and the Big Dig6 have had (and will continue to have) on the host communities.7
According to Collins,
[t]hese communities were host to the project itself, to the construction. The
construction was being done by the Massachusetts Turnpike Authority, and
[the Resident Discount Program] is a goodwill gesture towards the
community for living with those impacts, both the impacts of facility and for
the construction, 24 hours a day, 7 days a week. Not only is it a goodwill
gesture, but it provides the community with a financial – it relieves a
financial hardship from them because these communities are subject to
those tolls to do more than just to commute to and from work every day.
They are subject to those tolls to get their kids to soccer games, to get to
City Hall for a birth certificate, to get back again, to take trips from their
homes that you and I take for granted.
Collins Dep. at 53:21-54:11. Collins also testified to a permanent loss of parking and the
seemingly never-ending need to correct recurring problems with the Central Artery
Project.
Helmut Ernst, MassDOT’s District Highway Director for the District 6 region
(also a Rule 30(b)(6) deponent) testified to the impact of regular maintenance work on
6
The Big Dig involved replacing Boston’s deteriorating six-lane elevated Central
Artery (I-93) with an underground highway connected to the new Leonard P. Zakim
Bunker Hill Memorial Bridge and extending to Boston’s Logan International Airport
and Route 1A. The Big Dig spans over 7.3 miles of highway, 161 lane miles in all,
about half of which is below ground. Excavation work on the Central Artery Tunnel
Project began in earnest in 1995.
7
Collins served as chief of toll operations for the MTA from March of 2008 to
November 1, 2009; Chief of Staff for the MTA from 2007 to 2008; Associate Project
Director for the Central Artery/Tunnel Project from the early 2000s until 2007; and
Manager of Community Relations in Mitigation from 1999 until the early 2000s.
5
local communities.8 Moreover, much of the work must be done at night to avoid traffic
congestion, thus disrupting the sleep of those who live nearby.
Ernst Dep. at
17:16-18:21. Ernst also noted that construction of the Ted Williams Tunnel and the
Central Artery required the installation of portals in South Boston and East Boston and
the erection of buildings in Charlestown, East Boston and South Boston to house the
needed ventilation systems.
The ventilation fans create additional vibrations and noise as well as dust
within these communities. Traffic now cuts through South Boston to reach
and to travel from the South Boston portal to the Ted Williams Tunnel.
Trucks have been diverted through South Boston particularly with the
construction of the Haul Road that runs from 1-93 to the mouth of the Ted
Williams Tunnel. A continuing issue in each of these communities is the
routing of hazardous cargos through their streets often in close proximity
to residential areas. There also continue to be problems with air quality.
The O’Neill Tunnel and its connecting highways have instances where air
emission standards at the south portal are exceeded.
Ernst Decl ¶¶ 8-9.
In sum, Surprenant’s claim that “the Non-resident Traveler (or commuter) is . . .
being economically burdened while the Resident Traveler (or commuter) is not,” Pl.
Supplemental Br. at 6, is simply not viable in light of the overwhelming evidence to the
8
An example of recurring maintenance cited by MassDOT is the regularly
scheduled repainting of the Tobin Bridge, which generates paint chips, dust, noise, and
traffic snarls in the neighboring communities.
6
contrary.9 Surprenant states that she has used the Tobin Bridge or Ted Williams Tunnel
“on several occasions.” Am. Compl. ¶ 7. On those occasions she has paid $3.00 to
cross the Tobin Bridge and $3.50 to use the Williams Tunnel. Id. ¶ 34. MassDOT offers
concrete examples of local residents who are required to make use of the Bridge or
Tunnels several times a day to take children to school, to commute to work, and to keep
appointments.
Finally, Surprenant argues that the court should grant her leave to file a Second
Amended Complaint because she had noted in her Opposition to MassDOT’s motion for
judgment on the pleadings her contingent intention to name the Secretary as a defendant
if necessary. The same gambit, however, failed in a recent case before the First Circuit
Court of Appeals, Brait Builders Corp. v. Massachusetts, 2011 WL 1631952 (1st Cir.
May 2, 2011). In Brait, as here, the Commonwealth raised the Eleventh Amendment
bar. Plaintiff Brait responded with a motion to amend its complaint by adding four state
officials in their individual and official capacities. Although the district court allowed the
motion, Brait neither filed an amended complaint nor made service on the proposed new
defendants. Brait, like Surprenant, argued that its giving notice to amend should have
9
The court notes that if Surprenant elects to pass through the Tobin Bridge or
one of the Tunnels, she pays the same toll as any Massachusetts resident other than the
small group of local Massachusetts residents who qualify for the Resident Discount
Program.
7
been sufficient and that it would have been “a waste of resources” to file an amended
complaint while the district court was considering the motion to dismiss. The Court of
Appeals gave short shrift to the argument, noting that Brait had had four months to file
an amended complaint and failed to do so. Id. at *3-4. Surprenant had thirteen months
(and unlike the plaintiff in Brait never even filed a motion for leave to amend). Under
the circumstances, the result is the same as in Brait.10
ORDER
Under Pike and Kelen, all that is required is a demonstration that the burdens on
the host communities truly exist and are not illusory, and that any incidental burden
placed on out-of-state users like Surprenant are not “clearly excessive.”
See
Memorandum and Order of August 23, 2010, at 3. The testimony, declarations, and
exhibits submitted by MassDOT easily satisfy this requirement.
Accordingly,
Surprenant’s Motion to Alter or Amend Judgment under Rule 59(e) and Grant Plaintiff
Leave to File a Second Amended Complaint is DENIED.
SO ORDERED.
/s/ Richard G. Stearns
10
As the court noted in its February 4, 2011 Memorandum, the prospective relief
Surprenant had sought in her original Complaint was the establishment of a
constructive trust guaranteeing an eventual payout should the class prevail on her
constitutional claim.
8
________________________________
UNITED STATES DISTRICT JUDGE
9
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