Soto v. City of Cambridge

Filing 108

Magistrate Judge Judith G. Dein: ORDER entered. MEMORANDUM OF DECISION AND ORDER on 49 Plaintiff's Motion for Summary Judgment and 63 Defendant's Motion for Joinder. (Dambrosio, Jolyne)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

PAULA F. SOTO,
Plaintiff,
v.
CITY OF CAMBRIDGE,
Defendant.

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CIVIL ACTION
NO. 13-10822-JGD

MEMORANDUM OF DECISION AND ORDER ON
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND DEFENDANT’S MOTION FOR JOINDER
June 20, 2016
DEIN, U.S.M.J.
I. INTRODUCTION
As originally filed, this case raised the issue whether the plaintiff’s First Amendment
rights were violated when she was prohibited from placing non-commercial leaflets on parked
cars in the City of Cambridge. It was the City’s position that such leafleting was prohibited by
Cambridge City Ordinance § 9.04.050 (the “Ordinance”) and Mass. Gen. Laws ch. 266, § 126
(the “Statute”). During the pendency of this action, the Ordinance was amended so that it no
longer prohibited “the posting of such items on privately owned motor vehicles in the public
way[.]” Affidavit of City of Cambridge Police Commissioner Robert C. Haas (Docket No. 95)
(“Haas Aff.) ¶ 1. However, the City continued to take the position that Mass. Gen. Laws ch. 266,
§ 126 authorizes it to prohibit such leafleting, and that it is responsible for “enforcing the laws
of the Commonwealth[.]” Id. ¶ 5. Nevertheless, the City also contends that there is no

evidence that it will seek to prevent the plaintiff from placing her leaflets on parked cars in the
future.
The plaintiff argues that neither the Ordinance nor the Statute covers the instant factual
situation of placing non-commercial leaflets on parked cars, but if they were interpreted to
cover the instant situation they would be unconstitutional. The plaintiff gave notice to the
Commonwealth of the possibility that the constitutionality of a statute was being challenged in
this case, but the Commonwealth declined to intervene in this action or to take a position as to
the scope of the Statute. As a result of these events, this case has been buried in issues of
justiciability and whether there exists a case or controversy so as to entitle the plaintiff to the
relief she is seeking, including declaratory and injunctive relief, nominal damages and attorneys’
fees.
This matter is presently before the court on the plaintiff’s Motion for Summary Judgment (Docket No. 49) and the defendant’s Motion to Join the Commonwealth as a Required
Party Defendant Pursuant to Fed. R. Civ. P. Rule 19(a) (Docket No. 63). For the reasons detailed
herein, the summary judgment motion and the joinder motion are DENIED. This court finds
that:
1.

The plaintiff’s claims for declaratory and injunctive relief are moot;

2.

There are disputed facts as to whether the City of Cambridge had a policy of

barring the placement of non-commercial leaflets on the windshields of parked cars prior to the
amendment of the Ordinance;

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3.

This court declines to offer an advisory opinion as to whether the Statute

precludes non-commercial leaflets from being placed on parked cars, or whether such a ban
would be constitutional;
4.

The claim for nominal damages due to an alleged breach of the old Ordinance is

insufficient to keep this case active; and
5.

Since this case is moot, and the Commonwealth cannot be joined as a party

without its consent, the joinder motion is denied.
II. STATEMENT OF FACTS
The plaintiff, Paula F. Soto, lives in Cambridge, Massachusetts. Plaintiff’s Statement of
Undisputed Material Facts (Docket No. 51) (“PF”) ¶ 2. She is the founder of UPandOUT, an
organization she created to raise awareness about important political and social issues that she
believes are not adequately addressed by the mainstream media. PF ¶ 3. UPandOUT is not a
registered 501(c)(3) organization, it has no paid staff, and it does not generate any income. PF
¶ 4. Through UPandOUT, Ms. Soto organizes a free monthly film series which is held in the
community room of her apartment building, an affordable housing complex. PF ¶ 5. Ms. Soto
advertises these film screenings, as well as various political and social issues, by distributing
flyers on cars parked on public streets in the City of Cambridge. PF ¶¶ 8-9. In some months,
she distributes over 1,000 flyers this way. PF ¶ 10. To a lesser extent, she also advertises these
events by putting flyers in the windows of local businesses, sending emails and posting flyers on
bulletin boards in parks. PF ¶ 11. It is now undisputed that the flyers constitute noncommercial speech. Defendant’s Response to Plaintiff’s Statement of Material Facts (Docket
No. 67) (“DR”) ¶ 49. However, the record indicates that the City required discovery before
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determining that it was non-commercial speech. See Docket No. 62 (“The City seeks to file an
amended answer in which it concedes that Soto’s activities that are the subject of this litigation
constitute non-commercial speech.”).
Ms. Soto has been involved with UPandOUT, and has been placing leaflets on parked
cars, for at least seven years. PF ¶ 12. On December 12, 2011, Ms. Soto was placing leaflets on
parked cars in Cambridge advertising the free monthly film screenings, when she was
approached by a Cambridge police officer, who informed her that she could not place leaflets
on parked cars.1 PF ¶¶ 16-17. She was also informed that her actions constituted littering. PF
¶ 18. Ms. Soto stopped placing the leaflets on the cars that day, although she did continue to
try and hand them out to passers-by. PF ¶ 19; DR ¶ 19. There is no evidence in the record that
the police interfered with her leafleting activities at all prior to this incident, even though Ms.
Soto had received complaints from car owners over the years. See PF ¶ 15. It is undisputed
that Ms. Soto has not knowingly distributed a flyer on an automobile after an owner asked her
not to do so. Id.
The day after having been told to stop placing leaflets on parked cars, Ms. Soto
contacted the American Civil Liberties Union of Massachusetts (“ACLUM), which contacted the
then-Cambridge City Solicitor on Ms. Soto’s behalf, and objected to the fact that Ms. Soto was
told to stop leafleting. PF ¶¶ 20-22. The City Solicitor sent Ms. Soto’s counsel a copy of an
opinion letter, dated February 3, 1994, written by a former City Solicitor, opining that

1

The defendant has objected to statements of fact propounded by the plaintiff describing oral
statements allegedly made on the grounds that they are “hearsay” and “inadmissible.” See, e.g., DR
¶¶ 17-18, 21-22. The statements are not being offered for the truth and the objections are overruled,
unless otherwise indicated. Since there is no evidence in the record denying the fact that the
statements were made, the court deems them to be undisputed.

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placement of commercial advertising on car windows was illegal and precluded by Mass. Gen.
Laws ch. 266, § 126 and Cambridge City Ordinance § 9.04.050. Am. Compl. Ex. 4 (the “1994
Opinion Letter”); PF ¶¶ 24-27. In particular, Mass. Gen. Laws ch. 266, § 126, entitled “Natural
scenery; penalty for defacement” provided (in 1994 and now) in relevant part as follows:
Whoever paints, or puts upon, or in any manner affixes to, any fence,
structure, pole, rock or other object which is public property or the
property of another, whether within or without the limits of the highway,
any words, device, trade mark, advertisement or notice which is not
required by law to be posted thereon, without first obtaining the written
consent of the municipal or public officer in charge thereof or the owner
or tenant of such property, shall, upon complaint of such municipal or
public officer, or of such owner or tenant, be punished by a fine of not
less than ten nor more than one hundred dollars, and in addition shall
forfeit to the use of the public or private owner of such property or the
tenant thereof the cost of removing or obliterating such defacement to
be recovered in an action of tort. Any word, device, trade mark,
advertisement or notice which has been painted, put up or affixed within
the limits of a highway in violation of this section shall be considered a
public nuisance, and may be forthwith removed or obliterated and
abated by any person.
As quoted in the 1994 Opinion Letter, Cambridge Ordinance § 9.04.050 provided in
relevant part:
A.

No person shall post or attach, or directly or indirectly cause to
be posted or attached in any manner, any handbill, poster,
advertisement or notice of any kind ... on private property
without the consent of the owner or occupant thereof....

C.

The person or persons responsible for causing the unlawful
posting of any notice described herein will be liable for the cost
of removal and for the penalties described below.

The penalties were “$300 per illegal advertisement, or if punished by noncriminal ticketing, $25
for the first violation, $100 for the second violation, and $200 for the third and all subsequent
violations.” 1994 Opinion Letter at 2. It is undisputed that the Ordinance governs the
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“defacement” of public or private property. PF ¶ 26. This quoted version of the Ordinance
went into effect in May 1992, and was in effect in December 2011. See PF ¶¶ 30-32.
Finally, in the 1994 Opinion Letter the City Solicitor opined that commercial speech
could be limited by reasonable time, place, and manner restrictions that further a significant
governmental interest without violating the free speech guarantee of the First Amendment to
the United States Constitution. 1994 Opinion Letter at 2 (citing John Donnelly & Sons, Inc. v.
Outdoor Advert. Bd., 369 Mass. 206 (1975); Mass. Fair Share, Inc., v. Town of Rockland, 610 F.
Supp. 682 (1985)). As the Solicitor stated, “[i]f a reasonable advertising restriction does not
affect speech based on its content, if it is narrowly drawn, and alternative means of
communication are available, the restriction is likely to be valid.” Id. (quoting 7 McQuillin,
Municipal Corporations, § 24.393: “For example, an ordinance that prohibits the placing of
handbills in any automobile, yard, or porch without the consent of the owner may be valid.”).
While the 1994 Opinion Letter addressed only commercial speech, it is the City’s
position in this litigation that the Ordinance was intended to address visual blight, and that it
covered the placement of commercial and non-commercial flyers on motor vehicles. DR ¶¶ 29,
35. Nevertheless, there is undisputed evidence in the record that the Compliance Officer for
the City of Cambridge’s Public Works Department who, in addition to the police, was responsible for enforcing the Ordinance at issue, had never before this litigation issued a citation,
warning or notice to anyone regarding the placement of leaflets on cars, and was unaware if
anyone else had done so. See PF ¶¶ 67-72; DR ¶¶ 67-72. Rather, it was the Compliance
Officer’s opinion that the Ordinance applied only to leaflets illegally placed on news racks,
poles, trees, park bulletins, utility poles and benches. PF ¶ 73; DR ¶ 73. The plaintiff also is of
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the opinion that the Ordinance and Statute only apply to the more permanent posting of signs,
and are not applicable to leaflets placed on cars. See PF ¶¶ 35-38, 74.
Post Litigation Events
The plaintiff commenced this action on April 10, 2013.2 By her First Amended Complaint
(“Am. Compl.”) (Docket No. 37), brought under 42 U.S.C. § 1983, Soto alleges that the
prohibition on non-commercial leafleting violated her First Amendment rights under both the
United States Constitution and Article XVI of the Massachusetts Declaration of Rights. She is
seeking declaratory and injunctive relief, nominal damages and attorneys’ fees. Soto contends
that by their express terms, the City Ordinance and Statute do not prohibit the placement of
non-commercial leaflets on parked automobiles, that the City’s policy of prohibiting such
leafleting “is not based on any law and cannot be enforceable” and that the City violated her
constitutional rights by precluding her from leafleting. See Am. Compl. ¶¶ 30, 35, 49. She
contends further that to the extent the Ordinance and Statute are deemed to prohibit the
placement of non-commercial leaflets on parked automobiles, they violate her constitutional
rights. See id. ¶¶ 47, 55.
Ms. Soto alleges, and the City denies, that she “has a reasonable apprehension that the
City will punish her if she carries on her leafleting activities.” PF ¶ 45; DR ¶ 45. As she has
admitted, however, she has continued to leaflet on approximately a monthly basis since this
litigation started. Declaration of Kevin S. Prussia (Docket 52) at Ex. B, RFA No. 1. While the
number of flyers varies from month to month, she has distributed approximately 1,200 flyers

2

On or about April 16, 2014, the parties consented to having this case resolved by a Magistrate Judge,
pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. (Docket No. 25).

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per month in some months. Id. at RFA No. 12. She also uses the internet to announce the
location, time, and date of monthly free film screenings, and continues to communicate with
the public through the use of email distribution lists, flyers in the windows of local businesses,
and postings on bulletin boards in parks. Id. at RFA Nos. 14-17. There is no evidence in the
record that the City has interfered in any way with any of this leafleting since the one alleged
encounter on December 12, 2011. It is undisputed that the City has never issued a fine to any
individual or business for placing leaflets on parked cars pursuant to the Ordinance. PF ¶ 63.
The City contends, however, that it “has enforced the Ordinance on numerous occasions
without the issuance of a citation or a fine.” DR ¶ 64. There is no documentary proof of this
assertion to the extent it pertains to the placement of leaflets on cars that are parked on City
streets. See PF ¶¶ 77-79; DR ¶¶ 77-79.
On June 18, 2014, the issue whether the Ordinance should be repealed, amended to
clarify that leafleting is not prohibited, or deemed not to apply to non-commercial leafleting
was referred to the Cambridge City Council. PF ¶ 60. On August 26, 2014, the plaintiff filed a
“Rule 5.1 Notice of Possible Constitutional Question” asserting that the constitutionality of
Mass. Gen. Laws ch. 266, § 126 may be drawn into question if the statute is deemed to apply to
Ms. Soto’s actions. Docket No. 34. Despite having notice of this possibility, the Attorney
General has declined to intervene in this action. Docket No. 42. See generally PF ¶¶ 41-42.
On March 16, 2015, after discovery was complete, Ms. Soto filed the pending motion for
summary judgment. Docket No. 49. A few days before the motion was due to be filed, the City
moved to stay the action on the grounds that the Cambridge City Council had decided to consider an amendment to the City Ordinance. Docket No. 47. The plaintiff opposed the motion.
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When, at the hearing on the motion to stay, it became clear that no resolution by the City
Council would be forthcoming soon, and the outcome would not necessarily resolve the issues
in dispute, this court denied the motion to stay on April 7, 2015. Docket No. 60.
On May 18, 2015, the Cambridge City Council amended Ordinance § 9.04 so that it “no
longer prohibits the posting of non-commercial handbills, poster[s], advertisements or notices
on private property and hence the posting of such items on privately owned motor vehicles in
the public way is no longer prohibited by the Ordinance.” Haas Aff. ¶ 1. According to the City,
as a result of this amendment, “the City no longer has a policy, custom or practice of prohibiting
the placement of non-commercial fliers on motor vehicles parked on the public way, pursuant
to the Ordinance.” Id. ¶ 3. However, also according to the City, it “does have a policy, custom
and/or practice of responding to and investigating citizen complaints about alleged violations of
law” and “a policy, custom and/or practice of enforcing the laws of the Commonwealth as [it is]
required to do.” Id. at ¶¶ 4-5. The City has not altered its position that Mass. Gen. Laws ch.
266, § 126 prohibits leafleting on parked cars. Nevertheless, the City argues that there
currently is no case or controversy before this court, as it is speculative that the Statute will be
enforced against the plaintiff to prohibit her from engaging in such activity. See Docket No. 102
at 4-5.3
On May 29, 2015, the City filed its motion to join the Commonwealth as a required party
defendant pursuant to Fed. R. Civ. P. 19(a) on the grounds that since the Ordinance has been

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After the Ordinance was amended, this court attempted to ascertain whether there was still a live
dispute between the parties and whether the City intended to prevent the placement of leaflets on
parked cars on the public way. This resulted in far more briefing than this court ever imagined, which
lasted through the end of 2015. The plaintiff contends that there remains a live controversy, while the
City contends that there is no case or controversy.

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amended, the only remaining issue in this litigation is the constitutionality of Mass. Gen. Laws
ch. 266, § 126. Docket No. 63. Ms. Soto has opposed the joinder motion on the grounds that
her claims are not a facial attack on the constitutionality of the laws, but rather on the City’s
interpretation of the state statute. Docket No. 74. The Attorney General’s Office, in an email
dated September 21, 2015, reiterated that the Commonwealth has elected not to intervene in
this action under Fed. R. Civ. P. 5.1. Docket No. 91. Therefore, the record is devoid of the
Commonwealth’s position as to whether it believes that Mass. Gen. Laws ch. 266, § 126 applies
to Ms. Soto’s conduct.
Additional facts will be provided below where appropriate.
III. ANALYSIS
A.

Plaintiff’s Claims for Declaratory and Injunctive Relief are Moot

The crux of the plaintiff’s complaint is her contention that she was denied the right to
place non-commercial leaflets on parked cars in violation of her First Amendment rights, and
that she is entitled to declaratory and injunctive relief to that effect.4 The parties agree that
any prohibition on the placement of leaflets on parked cars in this case constitutes “contentneutral restrictions on the time, place, and manner of expression” and that the applicable
standard is whether the restrictions are “narrowly tailored to serve some substantial governmental interest, and . . . leave open adequate alternative channels of communication.” New

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The parties have limited their arguments to non-commercial speech and this court will do so as well.
It is undisputed that “the Constitution accords less protection to commercial speech than to other
constitutionally safeguarded forms of expression.” Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 6465, 103 S. Ct. 2875, 2879, 77 L. Ed.2d 469 (1983). Nevertheless, a state’s right to regulate commercial
speech is not unfettered. See Sorrell v. IMS Health Inc., 564 U.S. 552, 571-72, 131 S. Ct. 2653, 2667-68,
180 L.Ed.2d 544 (2011) (discussing State’s burden when restricting commercial speech).

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England Reg’l Council of Carpenters v. Kinton, 284 F.3d 9, 20 (1st Cir. 2002). See also id. at 19
(recognizing that “[t]hough solicitously protected,” “the right to leaflet is not absolute.”).
Neither the First Circuit nor the Massachusetts Supreme Judicial Court has evaluated whether
placing leaflets on parked cars is constitutional, and other jurisdictions have reached differing
results. Compare Klein v. City of San Clemente, 584 F.3d 1196, 1200-02 (9th Cir. 2009) (city
ordinance prohibiting leafleting of unoccupied vehicles parked on city streets not likely to
withstand constitutional challenge absent proof of a nexus between leafleting and increase in
litter) with Jobe v. City of Catlettsburg, 409 F.3d 261, 267-69 (6th Cir. 2005) (city ordinance
prohibiting individuals from placing leaflets on car windshields without the owner’s consent
found consistent with the First and Fourteenth Amendments). In light of the posture of this
case, this court declines to issue an advisory opinion on whether banning leafleting on parked
cars in Cambridge is constitutional.
Request for Rulings Regarding the Repealed Ordinance
The parties dispute whether the old City Ordinance, which by its terms makes no
mention of leaflets placed on parked cars, prohibited the placement of such non-commercial
flyers. The plaintiff argues that it did not apply to Ms. Soto’s actions, while the City argues that
it did. Nevertheless, Ms. Soto continues to seek a ruling that her constitutional rights were
violated by the Cambridge police officer who purported to act in accordance with the
Ordinance. Since such a ruling would be advisory only, this court will not reach the issue.
There is no question that the new Ordinance does not prohibit placing leaflets on
parked cars. This court raised the question whether, in light of this new Ordinance, this case is
moot or whether there remains a live case or controversy. Since “mootness is an issue of
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subject matter jurisdiction,” it was appropriate for the court to raise the issue sua sponte. Coll.
Standard Magazine v. Student Ass’n of State Univ. of N.Y. at Albany, 610 F.3d 33, 35 (2d Cir.
2010) (citing, inter alia, Muhammad v. City of New York Dep’t. of Corr., 126 F.3d 119, 122-23
(2d Cir. 1997)). Ms. Soto argues that the case remains alive, while the City argues that it is
moot.
This court is restricted to deciding “actual controversies by a judgment which can be
carried into effect, and [is] not [permitted] to give opinions upon moot questions or abstract
propositions, or to declare principles or rules of law which cannot affect the matter in issue in
the case before it[.]” Local No. 8-6, Oil, Chem. & Atomic Workers Int’l Union v. Missouri, 361
U.S. 363, 367, 80 S. Ct. 391, 394, 4 L. Ed. 2d 373 (1960) (internal quotations omitted). Accord
Ortiz-Gonzalez v. Fonovisa, 277 F.3d 59, 64-65 (1st Cir. 2002), and cases cited. “The doctrine of
mootness enforces the mandate ‘that an actual controversy must be extant at all stages of the
review, not merely at the time the complaint is filed.’” Mangual v. Rotger-Sabat, 317 F.3d 45,
60 (1st Cir. 2003) (quoting Steffel v. Thompson, 415 U.S. 452, 460 n.10, 94 S. Ct. 1209, 39 L. Ed.
2d 505 (1974)). “Mootness is a ground which should ordinarily be decided in advance of any
determination on the merits. Further, [courts] are obligated to follow the doctrine of
constitutional avoidance, under which federal courts are not to reach constitutional issues
where alternative grounds for resolution are available.” Am. Civil Liberties Union of Mass. v.
U.S. Conference of Catholic Bishops, 705 F.3d 44, 52 (1st Cir. 2013) (internal citation omitted).
In light of the fact that the relevant City Ordinance has been repealed, there is no basis for this
court to issue either the injunctive or declaratory relief being sought by the plaintiff relating to

[12]

the meaning of the repealed Ordinance. “[I]t would be pointless either to enjoin the enforcement of a regulation that is no longer in effect or to declare its constitutional status.” New
England Reg’l Council of Carpenters, 284 F.3d at 18 (in light of new regulations adopted during
litigation, issues relating to constitutionality of old regulations limiting leafleting were moot).
See also Coll. Standard Magazine, 610 F.3d at 35 (declining to address constitutionality of
repealed statute since “[a]ny declaration that the policy was unconstitutional would be strictly
advisory.”).
Potential Enforcement of Mass. Gen Laws ch. 266, § 126
The plaintiff argues that the controversy is not moot because the City may seek to
prohibit leafleting on parked cars based on its interpretation of Mass. Gen. Laws ch. 266, § 126.
As noted above, the plaintiff denies that the Statute applies to leaflets placed on parked cars, as
opposed to documents more permanently affixed to structures. The Commonwealth has not
expressed an opinion as to the scope of the Statute, has not intervened in this action, and has
expressly “not claimed an interest relating to the subject of the action.” Docket No. 91 (internal
quotations and punctuation omitted). The City has taken the position that the Statute prohibits
the placement of leaflets on parked cars, but also asserts that there is no evidence that the City
will seek to prohibit the placement of leaflets on the basis of its interpretation of the Statute.
This court agrees that the plaintiff’s concern regarding efforts by the City to enforce the statute
in the future is merely speculative.

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The record is devoid of any evidence that the Statute alone ever was used as the basis
for prohibiting leafleting of non-commercial announcements.5 While mentioned in the 1994
Opinion Letter, the Letter opined on the placement of commercial literature. Moreover, the
Letter referenced both the Ordinance and the Statute, and did not rely on the Statute itself. In
connection with the instant case, the Commonwealth has not affirmed the City’s interpretation
of the Statute, although given the opportunity to do so. Given these facts, this court cannot
find it likely that the City will rely on the Statute to prohibit leaflets being placed on cars. This is
especially true since prohibiting the placement of leaflets on parked cars would be entirely
inconsistent with the Ordinance as amended. This court finds that there is no longer a live
controversy for this court to address.
This is not a case which raises the “capable-of-repetition” exception to the mootness
doctrine. See Conference of Catholic Bishops, 705 F.3d at 56-57. This doctrine “applies only in
exceptional situations,” and requires the plaintiff to establish that “(1) the challenged action
was in its duration too short to be fully litigated prior to its cessation or expiration, and
(2) there was a reasonable expectation that the same complaining party would be subjected to
the same action again.” Id. at 57 (internal quotations and citations omitted). Neither component is met here. Ms. Soto had been leafleting for many years while the Ordinance and Statute
were in effect – there would have been sufficient time for the issue to wind its way through the

5

The only time the Statute has been cited as support for a prohibition on leafleting was in the 1994
Opinion Letter regarding commercial speech. That Letter did not address the current situation, i.e., the
placement of non-commercial leaflets on parked cars. It stretches the imagination to suggest that the
City of Cambridge would rely on the Statute when the Commonwealth has not joined in its interpretation of the Statute and the City Ordinance was expressly amended to allow the leafleting at issue in the
instant case.

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courts if a true constitutional controversy existed. See id. As for the second element, Ms. Soto
has continued her leafleting activities for many years since the December 12, 2011 encounter
without interference. This was true even before the Ordinance was amended. Ms. Soto cannot
meet her burden of proving that there is a “reasonable expectation” or “demonstrated
probability” that she will be subject to the same action again. Id. (internal quotations and
citation omitted). If she is, it would be on a different set of facts and legal posture than is
presently before this court.
Nominal Damages
Finally, the plaintiff argues that this case cannot be considered moot because she is
seeking nominal damages for the events of December 12, 2011.6 This court recognizes that
there are cases in which a valid claim for nominal damages avoids a finding of mootness. See
13C Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure
§ 3533.3 n.47 (3d ed. 2008) (collecting cases). Nevertheless, given the posture of the present
litigation, nominal damages alone are insufficient to keep this case alive.
As an initial matter, this court finds that there are disputed facts as to whether the City
of Cambridge had a custom or policy of prohibiting leaflets from being placed on parked cars,
thereby precluding the entry of summary judgment on the merits in this case. This case

6

While the plaintiff is also seeking attorneys’ fees, it is well established that a claim of attorneys’ fees is
“insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.” Davidson v. Howe, 749 F.3d 21, 27 & n.7 (1st Cir. 2014) (quotations and citations omitted).
In any event, in the instant case there is an argument that the plaintiff would not be entitled to
attorneys’ fees since the case was moot before a ruling on the merits. See Ford v. Bender, 768 F.3d 15,
30-31 (1st Cir. 2014) (party may recover attorneys’ fees for constitutional violation if the party prevailed
in the District Court before the case became moot); New England Reg’l Council of Carpenters, 284 F.3d
at 30 (no award of attorneys’ fees where regulations governing leafleting were revised by defendant
without court order). However, that issue is not before the court.

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presents the unusual posture where the City admitted that it had such a policy, but the facts
are to the contrary. There is no written evidence in the form of tickets, warnings, or the like
which indicate that the “policy” was being enforced in any significant manner. It is undisputed
that no criminal charges were ever brought for leafleting, and no fines were ever sought. The
Compliance Officer of the Public Works Department denies that placing leaflets on parked cars
was precluded by the Ordinance. The plaintiff, herself, says that she placed the flyers on cars
for years without interruption, both before and after the incident of December 12, 2011. She
also argues that neither the Statute nor the Ordinance, by their terms, prohibited her placement of flyers on the cars. “[I]t is black letter law that litigants cannot confer jurisdiction on a
federal court by their agreement alone.” Duffy v. Quattrocchi, 576 F. Supp. 336, 341 (D.R.I.
1983) (suit for declaration that prohibition on bringing signs into a legislative public hearing was
unconstitutional was moot in light of evidence that prohibition was a one-time event: parties
could not stipulate that the situation might occur again in the future). Here, the undisputed
facts fail to establish that there was a municipal policy or custom which would serve as the
basis for the plaintiff’s constitutional claim. See Robinson v. Town of Kent, 835 F. Supp. 2d 1,
8-9 (S.D.N.Y. 2011) (allegations that plaintiff was precluded by police from distributing a flyer
“reflect[ed] a single, isolated incident of allegedly improper conduct of the individual Defendants” and not a municipal custom or policy). Therefore, absent mootness, plaintiff’s motion
for summary judgment would be denied on the merits, and the parties would try a case for
nominal damages on a repealed Ordinance. Under such circumstances, “an award of nominal
damages [should not] keep an otherwise deflated claim afloat.” Duffy, 576 F. Supp. at 342.

[16]

Moreover, under the facts of this case it would be inconsistent to allow the case to go
forward while finding that the request for declaratory relief concerning the constitutionality of
the repealed Ordinance was moot.7 The rationale for allowing an otherwise moot case seeking
nominal damages to go forward is that the alleged “wrong is worthy of vindication by an
essentially declaratory judgment.” 13C Federal Practice & Procedure § 3533.3. Here, however,
to confer nominal damages based on an Ordinance that has been repealed “would have no
effect on the parties’ legal rights.” Morrison v. Bd. of Educ. of Boyd Cty., 521 F.3d 602, 611 (6th
Cir. 2008) (citing Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1268 (10th Cir.
2004) (McConnell, J., concurring) (“Where . . . the challenged past conduct did not give rise to a
compensable injury and there is no realistic possibility of a recurrence, nominal damages would
have no more legal effect than would injunctive or declaratory relief in the same case.”)
(emphasis added)). There is no basis to provide declaratory relief here, and the award of
nominal damages would accomplish nothing. See id. (allowing a case “to proceed to determine
the constitutionality of an abandoned policy – in the hope of awarding the plaintiff a single
dollar – vindicates no interest and trivializes the important business of the federal courts.”).
Thus, this court concludes that the matter is moot and the request for nominal damages does
not keep it alive.

7

Some courts have analyzed the issue of whether a moot case seeking only nominal damages should
proceed as raising an issue of standing. See Morrison v. Bd. of Educ. of Boyd Cty., 521 F.3d 602 (6th Cir.
2008). A plaintiff may establish Article III standing “by tracing a concrete and particularized injury to the
defendant – whether actual or imminent – and establishing that a favorable judgment would provide
redress.” Id. at 608. Where the issue raised has become moot, however, and nominal damages will not
provide redress, the litigation has been found to fail to satisfy the second requirement for standing. Id.
at 611.

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B.

Motion to Join the Commonwealth as a Party

The City has moved to add the Commonwealth as an indispensable party under Fed. R.
Civ. P. 19(a)(1)(B)8 on the grounds that this suit centers on the constitutionality of Mass. Gen.
Laws ch. 266, § 126, and that the Commonwealth has a legally protected interest in defending
the constitutionality of the state law. Docket Nos. 63, 64. Thus, the City has asked that the
court “order that the Commonwealth be joined as a required party in this matter.” Docket No.
64 at 6. The plaintiff opposes joinder on the grounds that although the “City rests its enforcement policy on its interpretation of the state Statute, M.G.L. c. 266 § 126[,]” the statute does
not apply to Ms. Soto’s conduct. Docket No. 74 at 1. Moreover, according to Ms. Soto, she is
not challenging the constitutionality of the statute, just the constitutionality of the City’s
enforcement policy. Id.9 It is clear that the joinder of the Commonwealth is not feasible, since
“states are immune under the Eleventh Amendment from private suit in the federal courts,

8

Fed. R. Civ. P. 19(a)(1) provides in relevant part as follows: “A person who is subject to service of
process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a
party if ... (B) that person claims an interest relating to the subject of the action and is so situated that
disposing of the action in the person’s absence may: (i) as a practical matter impair or impede the
person’s ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent obligations because of the interest.”
9

The plaintiff repeatedly argues that she is not challenging the constitutionality of the statute, she is
just arguing “that the City’s interpretation of the law is incorrect and cannot withstand constitutional
scrutiny.” See, e.g., Pl.’s Response to Motion to Join Commonwealth (Docket No. 74) at 2 (emphasis in
original). This argument is not persuasive. The plaintiff has asked this court to determine that the
Statute does not apply to her actions, and that if it does apply, the Statute is unconstitutional. See, e.g.,
Am. Compl. ¶ 55 (“Soto is entitled to declaratory judgments that: (i) the Defacement Statute, upon
which the City’s policy is based, does not prohibit the placement of non-commercial leaflets on parked
automobiles; and (ii) to the extent that the Defacement Statute is deemed to prohibit the placement of
non-commercial leaflets on parked automobiles, the Defacement Statute violates Soto’s rights under 42
U.S.C. § 1983 and the First Amendment.”). Thus, to afford the plaintiff the relief requested, if this court
finds the state Statute applicable to the facts of this case, this court would also have to rule on the
Statute’s constitutionality.

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absent their consent.” Wojcik v. Mass. State Lottery Comm’n, 300 F.3d 92, 99 (1st Cir. 2002)
(quoting Greenless v. Almond, 277 F.3d 601, 606 (1st Cir. 2002)). The Commonwealth has
indicated that it will not join the litigation voluntary. In light of this court’s ruling that this case
is moot, there is no case for the Commonwealth to join, and no further discussion is necessary.
The motion to join the Commonwealth as a party is denied.
IV. CONCLUSION
For all the reasons detailed herein, the plaintiff’s Motion for Summary Judgment
(Docket No. 49) and the defendant’s Motion to Join the Commonwealth as a Required Party
Defendant Pursuant to Fed. R. Civ. P. Rule 19(a) (Docket No. 63) are DENIED.

/ s / Judith Gail Dein
Judith Gail Dein
United States Magistrate Judge

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