Boston Taxi Owners Association, Inc. et al v. City of Boston et al

Filing 66

Judge Nathaniel M. Gorton: MEMORANDUM & ORDER entered granting in part and denying in part 38 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 40 Motion to Dismiss for Failure to State a Claim; granting 42 Motion to Dismiss for Failure to State a Claim; granting 42 Motion to Dismiss for Lack of Jurisdiction; denying 56 Motion for Preliminary Injunction (Caruso, Stephanie)

Case 1:15-cv-10100-NMG Document 66 Filed 03/31/16 Page 1 of 43

United States District Court
District of Massachusetts
)
BOSTON TAXI OWNERS ASSOCIATION, )
INC., RAPHAEL OPHIR and JOSEPH
)
PIERRE
)
)
Plaintiffs,
)
)
v.
)
)
CITY OF BOSTON, BOSTON POLICE
)
COMMISSIONER WILLIAM EVANS,
)
CHAIRMAN ANGELA M. O’CONNOR,
)
COMMISSIONER JOLETTE A.
)
WESTBROOK, COMMISSIONER ROBERT
)
HAYDEN, DEPARTMENT OF PUBLIC
)
UTILITIES, and MASSACHUSETTS
)
DEPARTMENT OF TRANSPORTATION
)
SECRETARY STEPHANIE POLLOCK,
)
)
Defendants.
)
)

Civil Action No.
15-10100-NMG

MEMORANDUM & ORDER
GORTON, J.
In this action, the Boston Taxi Owners Association, Inc.,
along with two individual Boston taxicab license owners, Raphael
Ophir and Joseph Pierre (collectively, “plaintiffs”), challenge
city and state regulations with respect to the registration and
operation of vehicles providing transportation-for-hire
services.

Plaintiffs bring claims on federal constitutional,

state contract and equitable grounds.

The suit is brought

against the City of Boston and Boston Police Commissioner
William Evans (collectively, “the city defendants”) and against
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Angela M. O’Connor, the Chairman of the Massachusetts Department
of Public Utilities (“DPU”) and Jolette A. Westbrook and Robert
Hayden, DPU Commissioners (collectively, “the DPU defendants”),
and Stephanie Pollack, the Secretary of the Massachusetts
Department of Transportation (“MassDOT”) (collectively, “the
state defendants”).
Recent amendments to the state regulations establish
standards for the registration of motor vehicles providing
services for so-called Transportation Network Companies
(“TNCs”), such as Uber, Lyft and Sidecar. See 540 CMR § 2.05.
Plaintiffs contend that those amendments create an arbitrary,
two-tiered system between TNCs and taxicabs that violates
plaintiffs’ constitutional and contract rights.

Moreover, they

argue that the continuing failure of the City of Boston and
Commissioner Evans to enforce existing local regulations
governing the Hackney Carriage industry against TNCs also
violates plaintiffs’ constitutional and contract rights.
Pending before the Court are three motions to dismiss filed
by the City of Boston, William Evans, and the state defendants.
Also pending before the Court is plaintiffs’ second motion for a
preliminary injunction against the City of Boston.

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I.

Background
A.

City Regulation of the Taxi Industry

The main source of regulation for the City of Boston (“the
City” or “Boston”) taxicab industry is its Police Commissioner
(“the Commissioner”), who is authorized by state statute to
regulate the taxi business in Boston.

In exercising that

authority, the Commissioner requires anyone who drives or is “in
charge of” a “hackney carriage” (i.e. taxicab) to possess a
license known as a “taxicab medallion.”

There are currently

1,825 city-issued medallions.
In 2008, the Commissioner issued a comprehensive set of
taxicab regulations under Boston Police Department Rule 403
(“Rule 403”).

Rule 403 defines a taxicab as “[a] vehicle used

or designed to be used for the conveyance of persons for hire
from place to place within the City of Boston.”

Since its

inception, Rule 403 has not been applied to livery vehicles,
despite the fact that the rule’s broad definition of a taxicab
would seem to encompass them.
The rule requires all taxicab operators, inter alia, to
possess a medallion, maintain a properly equipped and
functioning taxicab, display a hackney carriage license at all
times, refrain from cell phone use while operating a taxicab and
belong to an approved dispatch service or “radio association.”

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Rule 403 also sets out the approved manner in which a taxicab in
the City can engage customers.
Beginning in 2012, companies such as Uber, Lyft and Sidecar
began operations in Boston and surrounding communities.

The

cellular phone app-based, for-hire transportation services have
quickly gained popularity and serve as an alternative to
traditional taxicab or livery services.

The new companies rely,

to varying degrees, on drivers who provide pre-arranged
transportation services in their own private vehicles.
The City of Boston has yet to issue regulations
specifically targeted at such companies, nor does it enforce
Rule 403 against them.

In October, 2014, however, the City

convened a “Taxi Advisory Committee” which is authorized to
examine the City’s regulatory framework of for-hire
transportation services and to develop new policies to account
for these relatively new entrants into the market.
B.

State Regulation of Motor Vehicle Registration

Overlaying the specific city regulations for taxicabs,
MassDOT has enacted statewide requirements for the registration
of all motor vehicles. 540 CMR § 2.05.

Prior to a set of

amendments enacted in 2015, 540 CMR § 2.05 outlined two ways in
which small-scale vehicles (designed to carry 15 or fewer
passengers) need to be registered in order to carry passengers

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for hire.

The first kind of registration pertained to

“taxicabs”, defined as
any vehicle which carries passengers for hire, and which
is licensed by a municipality pursuant to M.G.L. c. 40,
§ 22 as a taxicab.
The second kind of registration was for a “livery vehicle”,
defined as
any limousine or other vehicle which ... carries
passengers for hire ... [but] is not required to obtain
a taxicab license pursuant to M.G.L. c. 40, § 22.
As of January 16, 2015, MassDOT revised 540 CMR § 2.05 to
include a third alternative for the registration of small-scale
vehicles used to carry passengers for hired transportation.
Under this third option, private passenger vehicles can be
registered and used as “personal transportation network
vehicles” on behalf of Transportation Network Companies, or
TNCs.

TNCs are defined as

entit[ies]
operating
in
Massachusetts
that,
for
consideration, will arrange for a passenger to be
transported by a driver between points chosen by the
passenger.
The amended regulations also restrict the way in which
drivers using their own private vehicles on behalf of a TNC can
solicit customers.

Specifically, the TNC must have pre-arranged

for the driver to provide transportation services and the driver
is not permitted to solicit or accept an on-demand ride,
otherwise known as a “street hail” or “hail pick-up.”

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Thus, the

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amended regulations broadly define TNCs and permit TNC drivers
to use their own private vehicles so long as they register the
vehicle as a “personal transportation network vehicle” and
provide transportation services only to passengers that the TNC
pre-arranged.

Accordingly, the new regulations provide some

restrictions on the way in which companies such as Uber, Lyft
and Sidecar operate within the Commonwealth.

The new state

regulations do not address whether TNC drivers must obtain taxi
medallions, which is a matter of local regulation.
The amendments to 540 CMR § 2.05 also set standards for TNC
drivers’ driving records.

Further, although the regulations

were promulgated by MassDOT, they instruct DPU to regulate TNCs
by (1) requiring TNCs to obtain a certificate from DPU in order
to do business in Massachusetts, (2) ensuring that TNCs and
their drivers to carry appropriate liability insurance and (3)
requiring TNCs to perform background checks on their drivers.
Since the amendments were promulgated, however, the new
gubernatorial administration has adopted a different
interpretation of DPU’s authorizing legislation which does not
permit DPU to implement the aforementioned duties without a
further legislative act granting the agency the authority to do
so.

Accordingly, the restrictions on TNCs which were to be

implemented by DPU have not yet begun to be enforced.

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C.

Procedural History

Plaintiffs filed their lawsuit and an emergency motion for
a preliminary injunction on January 16, 2015, the same day that
MassDOT’s amendments to 540 CMR § 2.05 went into effect.

After

briefing by both parties and a hearing, the Court denied the
motion on February 5, 2015.

In a memorandum and order, the

Court explained that its assessment of the balance of harms
entailed by the proposed preliminary injunction was informed by
its conclusion that issuing an injunction at that moment would
short-circuit an ongoing political process at the city and state
level through which potential legislation regulating TNCs was
being considered.
The Court stated, however, that it expected that the City
would demonstrate a purposeful commitment to action by promptly
submitting recommendations on the regulation of TNCs to the City
Council.

The City was warned that failure to do so would cause

the Court to re-examine plaintiffs’ request for injunctive
relief.
On May 15, 2015, after plaintiffs had filed an amended
complaint, defendants filed three motions to dismiss, one by the
City of Boston, one by Commissioner Evans and one by the state
defendants.

On August 26, 2015 plaintiffs filed a second motion

for a preliminary injunction against the City.

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D.

Legislative and Regulatory Developments Since the
Court’s Consideration of Plaintiffs’ First Motion for
a Preliminary Injunction

Since the Court’s ruling on plaintiffs’ first motion for a
preliminary injunction, developments with respect to the
potential regulation of TNCs have occurred at both the city and
state level.

Specifically, the City of Boston’s Taxi Advisory

Committee has continued to convene and Commissioner Evans has
purportedly been considering several changes to Rule 403,
including a reduction in the required vehicle lease rates for
taxi drivers, elimination of the requirement that medallion
owners be radio association members and withdrawal of the
requirement that taxicabs be factory new vehicles.
Further, several proposed bills that would regulate TNCs
have been filed in the state legislature.

On March 7, 2016 the

Massachusetts House of Representatives reported out of committee
a revised version of House Bill H.4049, a bill proposed by
Governor Baker on April 27, 2015.

The bill immediately moved to

the House floor and was passed with amendments on March 9, 2016.
The Massachusetts Senate is purportedly in the process of
drafting its own bill with the intention that the chamber will
approve a bill in time for both houses to agree on a final
version before the end of the legislative session in July, 2016.

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II.

Defendants’ Motions to Dismiss
The City of Boston, Commissioner Evans and the state

defendants each moved to dismiss all of plaintiffs’ claims
against them for failure to state a claim under Fed. R. Civ. P.
12(b)(6).

The state defendants also move for dismissal of

plaintiffs’ claims for lack of jurisdiction under Fed. R. Civ.
P. 12(b)(1).

Although the same claims apply to all parties,

each party’s motion will be discussed individually with
discussion of the substantive claims preceding any necessary
examination of plaintiffs’ remedial claims.
A.

Legal Standards
1. Motion to Dismiss for Failure to State a Claim

To survive a motion to dismiss for failure to state a claim
under Fed. R. Civ. P. 12(b)(6), a complaint must contain
Asufficient factual matter@ to state a claim for relief that is
actionable as a matter of law and Aplausible on its face.@
Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim is

facially plausible if, after accepting as true all nonconclusory factual allegations, the court can draw the
reasonable inference that the defendant is liable for the
misconduct alleged. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d
1, 12 (1st Cir. 2011).

A court may not disregard properly pled

factual allegations even if actual proof of those facts is
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improbable. Id.

Rather, the relevant inquiry focuses on the

reasonableness of the inference of liability that the plaintiff
is asking the court to draw. Id. at 13.
When rendering that determination, a court may not look
beyond the facts alleged in the complaint, documents
incorporated by reference therein and facts susceptible to
judicial notice. Haley v. City of Boston, 657 F.3d 39, 46 (1st
Cir. 2011).
2. Motion to Dismiss for Lack of Subject Matter
Jurisdiction
In opposing a motion to dismiss for lack of subject matter
jurisdiction under Fed. R. Civ. P. 12(b)(1), the plaintiff bears
the burden of establishing that the Court has jurisdiction.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

The

Court assumes that all material allegations set forth in the
complaint are true. See Mulloy v. United States, 884 F.Supp.
622, 626 (D.Mass. 1995); Williams v. City of Boston, 784 F.2d
430, 433 (1st Cir. 1986).

The averments of the complaint, as

well as their proper inferences, are construed in favor of the
plaintiff and the claim will not be dismissed unless "it appears
beyond doubt that the plaintiff can provide no set of facts in
support of his claim which would entitle him to relief."
Williams, 784 F.2d at 433; Mulloy, 884 F.Supp. at 626.

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B.

City of Boston’s Motion to Dismiss for Failure to
State a Claim (Docket No. 38)

Plaintiffs allege that defendants have violated their
constitutional rights under the Takings and Equal Protection
Clauses and their contract rights under Massachusetts law by
declining to enforce Rule 403 against TNCs.

Defendants move to

dismiss each of these substantive claims as well as plaintiffs’
claim for declaratory relief.
1. Takings Clause (Count 4)
a.

Legal Standard

The Takings Clause of the Fifth Amendment prohibits the
government from taking private property for public use without
just compensation. Maine Educ. Ass’n Benefits Trust v. Cioppa,
695 F.3d 145, 152 (1st Cir. 2012).

The clause applies to

not only the paradigmatic physical taking ... but also
to regulatory interferences, which transpire when some
significant restriction is placed upon an owner’s ...
property [use] for which fairness and justice require
that compensation be given.
Id. (citation and internal quotations omitted).
b.

Analysis

Plaintiffs’ first substantive claim alleges that the City’s
failure to enforce Rule 403 against TNCs violates the Takings
Clause because it constitutes a taking of property without the
payment of just compensation.

Plaintiffs contend that they hold

property rights in their medallions which they claim provide

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them with the “exclusive right to engage in the taxi business.”
By eliminating the exclusivity of the medallions as a means for
entering the transportation-for-hire market, plaintiffs aver,
the City took their property without paying just compensation.
A threshold question about which the parties disagree is
whether the medallions constitute property.

This is a difficult

and contentious issue given the large investment of resources
that plaintiffs have made to comply with the City’s regulations
in order to obtain and maintain their medallions.
need not, however, decide this issue.

The Court

Even if the medallions

are property the rights associated therewith do not include the
right allegedly confiscated.
Plaintiffs frame the taking as the destruction of their
“exclusive right to engage in the taxi business” which they
obtained through the purchase of their medallions.

They

correctly note that the right to exclude others from one’s
property is “perhaps one of the most fundamental of all property
interests.” Lingle v. Chevron U.S.A., Inc., 528, 539 (2005).
Assuming, arguendo, that medallions are property, by purchasing
medallions plaintiffs each obtained an individual right to enter
the transportation-for-hire market.

Each medallion owner has

the right to exclude others from using his or her medallion and
the authority it confers to provide taxi services.

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But the owner of a medallion does not possess a property
interest in the transportation-for-hire market itself.
Consequently, a medallion owner has no right to exclude others
from the market.

This is evident in the fact that taxi

medallion owners may not exclude other taxi medallion owners
from participating in the market.

Nor would they be able

exclude new medallion purchasers if the City were to increase
summarily the number of available medallions.

Similarly, the

aggregation of the rights of all medallion owners does not
create a right that is new in kind, the right to exclude nonmedallion owners from the market.

Rule 403 did not provide

medallion owners with “an unalterable monopoly” over the
transportation-for-hire market. Minneapolis Taxi Owners’ Coal.
v. City of Minneapolis, 572 F.3d 502, 508 (8th Cir. 2009).
The exclusivity of medallion owners’ access to the market
prior to the arrival of TNCs existed by virtue of the City’s
regulatory structure rather than the medallion owners’ property
rights.

Medallion owners have no property interest in the

enforcement of Rule 403 against others. See Town of Castle Rock,
Colo. v. Gonzales, 545 U.S. 748, 766 (2005).

If a person who

wishes to operate a taxicab without a medallion is prevented
from doing so, it is because he or she would violate municipal
regulations, not because he or she would violate medallion
owners’ property rights.
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Plaintiffs have not alleged that the City has revoked,
suspended or impeded their ability to use their medallions.
Plaintiffs’ sole claim is that the loss of market exclusivity
caused by the City’s failure to enforce Rule 403 against TNCs
has caused the value of their medallions to diminish.

Because

plaintiffs have no right to market exclusivity, they have failed
to state a claim upon which relief can be granted.

As such,

defendant’s motion to dismiss Claim 4 of the amended complaint
will be allowed.
2. Equal Protection (Count 5)
a. Legal Standard
The Equal Protection Clause of the Fourteenth Amendment
“requires that all persons similarly situated ... be treated
alike.” Rocket Learning, Inc. v. Rivera-Sanchez, 715 F.3d 1, 10
(1st Cir. 2013) (quoting City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 439 (1985)).

Unless a fundamental right or

a suspect classification is at issue,
courts will uphold legislation that provides for
differential treatment upon a mere showing of a
rational relationship between the disparate treatment
and a legitimate government objective.
Starlight Sugar, Inc. v. Soto, 253 F.3d 137, 145 (1st Cir. 2001)
(citation omitted).
Rational basis review simply requires that there be “any
reasonably conceivable set of facts” justifying the disparate

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treatment. FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313-14
(1993).

The government, however,

may not rely on a classification whose relationship to
an asserted goal is so attenuated as to render the
distinction arbitrary or irrational.
City of Cleburne, 473 U.S. at 446.

Though differences may exist

between two groups, “mere difference is not enough.” Frost v.
Corp. Comm'n, 278 U.S. 515, 522-23 (1929).

For a difference to

justify two groups being treated differently, the difference
must “hav[e] a fair and substantial relation to the object of
the legislation.” Id.
b. Analysis
Plaintiffs’ second substantive claim alleges that the City
has violated the Equal Protection Clause by requiring taxi
operators to meet the requirements of Rule 403 but declining to
apply the rule to TNCs.

Once again the parties disagree with

respect to a threshold question, whether traditional taxicab
operators and TNCs are similarly situated.

Because several

noticeable differences exist between taxis and TNCs, the issue
is not easily disentangled and is subject to reassessment as the
transportation industry evolves apace.

Taking all of the

allegations in the complaint as true, however, plaintiffs have
stated at least a plausible claim that the Equal Protection
Clause requires that the two groups be treated alike.

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First, the Court finds persuasive plaintiffs’ argument that
many of the obvious differences between taxis from TNCs, such as
the kind of vehicle used and the fact that taxicabs must be
clearly labeled, are caused by the City’s application of the
requirements of Rule 403 to taxi operators but not to TNCs.

The

City may not treat the two groups unequally and then argue that
the results of that unequal treatment render the two groups
dissimilarly situated and, consequently, not subject to equal
protection analysis.

Such circular logic is unavailing.

Other qualities cited by defendants fail to differentiate
taxi operators from TNCs.

Rides with taxis may now be requested

and initiated through an app in an identical manner to rides
with TNCs.

For instance, one TNC app, Uber, allows consumers to

use the same platform to initiate a ride with either a TNC
vehicle or a traditional taxicab.

Similarly, both TNCs and

taxicab operators accept credit cards as a form of payment.

The

fact that taxicabs also may initiate rides through street hails
and accept other forms of payment does not necessarily mean they
are dissimilarly situated to TNCs for the purpose of equal
protection analysis.

In fact, taxis and TNCs are clearly

similarly situated in one important respect.

They are both

“hackney carriages” as the term is defined by Rule 403.
is, they are both

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used or designed to be used for the conveyance of
persons for hire from place to place within the city
of Boston.
Boston Police Dep’t R. 403 §1(I)(b) (August 29, 2008).
Plaintiffs have also raised a plausible claim that the
City’s disparate treatment of taxicab operators and TNCs is not
rationally related to a legitimate government objective.

The

City offers two policy goals, both of which are legitimate
government objectives, to justify its differential treatment of
taxi operators and TNCs.

Neither objective is, however,

rationally related to any distinction between taxi operators and
TNCs.
First, the City avers that declining to apply Rule 403 to
TNCs enhances the City’s interest in increasing the availability
and accessibility of cost-effective transportation.

It is

likely true that permitting TNCs to operate unfettered by the
requirements of Rule 403 furthers that goal.

The City’s

distinction between taxi operators and TNCs in its application
of the rule has, however, no “fair and substantial relation” to
the furtherance of that objective.

That is, the distinctions

between taxicab operators and TNCs cited by the City, such as
differences in the kind of vehicle and payment methods used, are
unrelated to the City’s policy objective.

The differential

treatment of the two kinds of commercial enterprises in

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furtherance of that objective could, therefore, be considered
arbitrary or irrational.
Second, the City asserts that it is rational for the City
to decline to regulate TNCs for the time being because any
action on the part of the City may be preempted by future state
legislation.

While preemption by state law presents a potential

problem, the prospect of any of the pending state bills becoming
law is speculative at best.

Given that Rule 403’s definition of

“hackney carriages” includes both taxicabs and TNC vehicles, the
City may be required to redraft its existing regulations even if
new state legislation is enacted.

Thus the legitimacy of the

City’s goal of avoiding preemption is not self-evident and
plaintiffs have stated a plausible claim for relief under the
rational basis standard.

Accordingly, the City’s motion to

dismiss Count 5 of the complaint will be denied.
3. Breach of Contract (Count 6)
Plaintiffs’ third substantive claim alleges that the City,
by issuing taxi medallions to plaintiffs pursuant to state law
and city regulations, entered into a binding contract with
plaintiffs which it breached by destroying the market
exclusivity that medallion owners formerly enjoyed.

Even when

all of plaintiffs’ factual allegations are accepted as true,
however, plaintiffs have failed to state a claim upon which
relief can be granted on this count.
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Plaintiffs aver that the state laws and municipal
regulations requiring taxicab operators to obtain a medallion
constitute a binding, written agreement to provide market
exclusivity to medallion holders.
with their theory.

First, the cited statutory provisions are

not bilateral agreements.
by the government.

There are multiple problems

They are orders issued unilaterally

Consequently, at most they can be construed

as offers rather than manifestations of mutual consent.
The statutory provisions cited by plaintiffs do not permit
even this more modest interpretation, however, because they are
written as prohibitions rather than as promises. See, e.g.,
General Court of Massachusetts, Acts of 1930 ch. 392 § 3 (“no
person shall drive or have charge of a hackney carriage, nor
shall any person, firm or corporation set up and use a hackney
carriage, unless licensed thereto by the Police Commissioner of
the City of Boston.”).

As such, they do not manifest

an intention to act or refrain from acting in a
specified way so as to justify a promisee in
understanding that a commitment has been made.
See Rhode Island Hosp. Trust Nat’l Bank v. Varadian, 419 Mass.
841, 849-50 (1995) (quoting Restatement (Second) of Contracts §
2 (1981)).

Nor does the text of the cited provisions mention,

much less promise, exclusivity for medallion holders.
Second, the statutory provisions are not “sufficiently
‘definite and certain in [their] terms’ to be enforceable.”
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Dixon v. Wells Fargo Bank, N.A., F. Supp. 2d 336, 340 (D. Mass.
2011) (quoting Moore v. La-Z-Boy, Inc., 639 F. Supp. 2d 136, 142
(D. Mass. 2009).
issue are mutable.

As defendant points out, the provisions at
Statutes are regularly amended, and Rule 403

includes a provision that explicitly provides for the amendment
of the rule for various reasons, including “the changing needs
of the industry.” Boston Police Dep’t R. 403 §1(II)(d) (August
29, 2008).

Because the “contract” permits the City unilaterally

to modify the terms of the agreement without the assent of taxi
medallion owners, any implied promise that the regulatory scheme
would not change is illusory. See Tinkham v. Jenny Craig, Inc.,
699 N.E.2d 1255, 1257 (Mass. App. Ct. 1998) (holding that an
employee’s at-will employment status, which allowed the employee
to be fired at any time, made any promise of promotion
illusory).
Finally, a contract binding on the City could not have been
formed because the alleged agreement does not comply with the
necessary statutory requirements of M.G.L. ch. 43, § 29.

See

Park Drive Towing, Inc. v. City of Revere, 442 Mass. 80, 83
(2004) (“It is a well-established principle that a party dealing
with a city or town cannot recover if statutory requirements
[such as those contained in G.L. c. 43, § 29] have not been
observed.”).

Although the statutory provisions are in writing,

as discussed above, those provisions constitute at most an
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offer, not an agreement.

Consequently, the requirement of

M.G.L. ch. 43, § 29 that “[a]ll contracts made by any
department, board or commission ... shall be in writing” is not
fulfilled.

Further, plaintiffs do not dispute that

the approval of the mayor ... and also of the officer
of the head of the deparment ... making the contract
was not “affixed” to the agreement as required. M.G.L. ch. 43, §
29.

Accordingly, plaintiffs have failed to allege a viable

claim for breach of contract and Count 6 of the complaint will
be dismissed with respect to the City.
4. Promissory Estoppel (Count 7) and Equitable Estoppel
(Count 8)
a.

Legal Standard

To state a claim for estoppel under Massachusetts law, a
party must show
(1.) A representation or conduct amounting to a
representation intended to induce a course of conduct
on the part of the person to whom the representation
is made. (2.) An act or omission resulting from the
representation, whether actual or by conduct, by the
person to whom the representation is made. (3.)
Detriment to such person as a consequence of the act
or omission.
Turnpike Motors, Inc. v. Newbury Group, Inc., 596 N.E.2d 989,
991 (1992).
b.

Analysis

Plaintiffs’ final substantive claims allege the City should
be required to enforce Rule 403 against TNCs because plaintiffs

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have detrimentally relied on the City’s pre-existing regulatory
structure.

Under their promissory estoppel theory, plaintiffs

claim that the comprehensive regulatory program created by Rule
403 constituted a promise of market exclusivity upon which
plaintiffs relied.

Under their equitable estoppel theory,

plaintiffs allege that the City’s enactment and consistent
enforcement of Rule 403 against taxi operators constitute
affirmative acts which should require the City to enforce the
rule against TNCs.
Neither theory states a claim upon which relief can be
granted.

While plaintiffs have clearly shown detriment, they

have failed to allege that they reasonably relied on a
representation by the City that they would enjoy permanent
market exclusivity.

As discussed above, Rule 403 explicitly

provides that the City’s regulatory structure may be amended due
to reasons including “the changing needs of the industry.”

If,

as plaintiffs contend, TNCs and taxicab operators work within
the same industry, plaintiffs should have reasonably anticipated
that changes in the industry such as the advent of TNCs could
lead to an alteration of the City’s regulatory structure.

Under

such circumstances, reliance on the existing regulations with
the expectation that they would not change was unreasonable.
Accordingly, defendant’s motion to dismiss will be allowed with
respect to Counts 7 and 8.
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5. Declaratory Judgment (Count 1)
The City contends that the Court should dismiss plaintiffs’
request for declaratory relief on two grounds.
a reason for dismissal.

Neither provides

First, defendant argues that 28 U.S.C.

§ 2210(a) creates a remedy, and not a cause of action.

Even if

that assertion is true, however, it is not grounds for dismissal
of the count nor for precluding plaintiffs from declaratory
relief.

A well-pled complaint must include a demand for the

kinds of relief sought, and plaintiffs’ complaint conforms to
that requirement. See Fed. R. Civ. P. 8(a)(3).
Second, the City avers that the Court should
exercise its discretion not to issue a declaratory
judgment in the present posture of this case.
Given that no request for interim relief in the form of a
declaratory judgment is before the Court, that statement is
undeniable.

The fact that the Court retains discretion to enter

a declaratory judgment if plaintiffs ultimately prevail is not,
however, a reason to deny plaintiffs such a remedy before the
merits of the case have been decided.
therefore premature.

This argument is

Accordingly, defendant’s motion to dismiss

Count 1 of the amended complaint will be denied.
C.

Commissioner Evans’s Motion to Dismiss for Failure to
State a Claim (Docket No. 40)

Plaintiffs allege claims against Commissioner Evans
identical to those alleged against the City of Boston.
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the complaint does not specify whether defendant is being sued
in his individual or official capacity, he appears to have
assumed, and plaintiffs do not disagree, that the claims are
directed toward Commissioner Evans in both capacities.
Accordingly, the Court will address both in ruling on the motion
to dismiss.
1. Takings Clause (Count 4)
Plaintiffs’ Takings Clause claim against Commissioner Evans
is essentially the same as their claim against the City.

As

police commissioner, defendant is vested with the exclusive
authority to regulate “hackney carriages” within the City.
Acting in that capacity, defendant has declined to enforce Rule
403 against TNCs operating within the City.

Plaintiffs allege

that such a decision constitutes a taking of their property
interest in their medallions because it has destroyed their
exclusive right to operate in the transportation-for-hire
market.
As discussed above in the context of the City’s motion to
dismiss, whatever property rights plaintiffs may possess in
their medallions, those rights do not encompass a right to
exclude others from the transportation-for-hire marketplace.
For that reason, plaintiffs have failed to allege a taking of
their property.

Consequently, the motion to dismiss will be

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allowed with respect to plaintiffs’ takings claim against
Commissioner Evans in both his official and personal capacities.
2. Equal Protection Clause (Count 5)
a.

Official Capacity

Plaintiffs’ claim against Commissioner Evans under the
Equal Protection Clause is identical to their claim against the
City.

By choosing to enforce Rule 403 against taxicab operators

but not against TNCs, plaintiffs allege, Commissioner Evans
treated two similarly situated groups differently.

Plaintiffs

have alleged plausible factual allegations supporting their
claim that the classification was not rationally related to the
policy goals that the City and Commissioner Evans contend the
disparate treatment was intended to further.

Therefore

defendant’s motion to dismiss will be denied with respect to
plaintiffs’ equal protection claim against him in his official
capacity.
b.

Personal Capacity

With respect to plaintiffs’ same claim against Commissioner
Evans in his personal capacity, in addition to his substantive
arguments defendant also asserts the protection of qualified
immunity.

Qualified immunity protects government officials

performing discretionary functions from liability for conduct
that is objectively reasonable. Harlow v. Fitzgerald, 457 U.S.

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800, 818 (1982).

It shields officials only from claims brought

against them in their individual capacities.
To assess qualified immunity claims, the Court applies a
two-step inquiry.

In the first step, the Court must decide

“whether the facts alleged or shown by the plaintiff make out a
violation of a constitutional right.” Maldonado v. Fontanes, 568
F.3d 263, 269 (1st Cir. 2009).

In the second step, the Court

must determine whether the right was “clearly established at the
time of the defendant’s alleged violation.” Id.
The second stage of the inquiry has two facets, one
focusing on law and the other on fact.

The first facet requires

the Court to examine the level of clarity of the law at the time
of the alleged civil rights deprivation. Id.

For a right to be

clearly established,
the contours of the right must be sufficiently clear
that a reasonable official would understand that what
he is doing violates that right. This is not to say
that an official action is protected by qualified
immunity unless the very action in question has
previously been held unlawful, but it is to say that
in the light of pre-existing law the unlawfulness must
be apparent.
Wilson v. Layne, 526 U.S. 603, 615 (1999) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987).

The second facet involves

an analysis of whether, given the factual circumstances of the
case, “a reasonable defendant would have understood that his
conduct violated the plaintiffs’ constitutional rights.”

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Maldonado, 568 F.3d at 269.

The inquiry “must be undertaken in

light of the specific context of the case, not as a broad
general proposition.” Mullenix v. Luna, 136 S. Ct. 305, 308
(2015).
As explained above in the discussion of the merits of
plaintiffs’ equal protection claim, plaintiffs have alleged the
violation of a constitutional right.

That right, the right not

to be subjected to the unequal application of Rule 403 on the
basis of a classification that bears no rational relationship to
the City’s goal of expanding the availability and accessibility
of cost-effective transportation, was and continues to be
sufficiently clear to put a reasonable official on notice.

See,

e.g., City of Cleburne v. Cleburne Living Center, 473 U.S. 432,
448 (1985).
The factual aspect of the second prong is, however, less
easily disposed of.

When TNCs began to enter the

transportation-for-hire market, it may not have been discernible
that they were situated similarly to taxicab operators.

Over

time, however, differences between taxis and TNCs have receded.
Taxicabs may now be requested in the same manner as TNCs, and
TNCs have become fixtures in the transportation-for-hire
marketplace, commonly used for the same purposes as taxis.
Taking the situation as it has evolved and based on the
allegations in the complaint, a reasonable official would
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understand that refusing to apply Rule 403 to TNCs while
continuing to enforce it against taxicab operators violates the
Equal Protection Clause. Maldonado, 568 F.3d at 269.
Consequently, the Court cannot determine, at this stage of the
litigation, whether Commissioner Evans is entitled to qualified
immunity.

Defendant’s motion to dismiss Count 5 against him in

his personal capacity will be denied.
3. Breach of Contract (Count 6), Promissory Estoppel
(Count 7) and Equitable Estoppel (Count 8)
In their opposition, plaintiffs concede that that they have
not stated claims against Commissioner Evans for breach of
contract, promissory estoppel and equitable estoppel.

They

submit that they intend to pursue such claims only against the
City of Boston.

Accordingly, Counts 6, 7 and 8 of the complaint

will be dismissed with respect to Commissioner Evans in both his
official and individual capacities.
D.

The State Defendants’ Motion to Dismiss for Lack of
Subject Matter Jurisdiction and for Failure to State a
Claim (Docket No. 42)

Plaintiffs allege claims against Angela M. O’Connor, the
DPU Chairman and Jolette A. Westbrook and Robert Hayden, DPU
Commissioners, as well as against MassDOT Secretary Stephanie
Pollack.

All four defendants move to dismiss the claims against

them for lack of jurisdiction and for failure to state a claim.
Fed. R. Civ. P. 12(b)(1)&(6).

Because plaintiffs’ claims differ

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with respect to the two agencies and the regulations they
implement, the claims against the two sets of defendants will be
addressed separately.
1. Claims Against the DPU Defendants
The three DPU defendants challenge plaintiffs’ claims
against them on the ground that they are not ripe for
adjudication.

The purpose of the ripeness doctrine is

to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract
disagreements.
Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967) abrogated
on other grounds by Califano v. Sanders, 430 U.S. 99 (1977).

To

demonstrate that a claim is ripe for litigation, a plaintiff
must show two elements, 1) “the fitness of the issues for
judicial decision” and 2) “the hardship to the parties of
withholding court consideration.” Roman Catholic Bishop of
Springfield v. City of Springfield, 724 F.3d 78, 89 (1st Cir.
2013) (quoting Abbott Labs., 387 U.S. at 149).

The first

element, fitness, examines
whether the claim involves uncertain and contingent
events that may not occur as anticipated or may not
occur at all.
Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 535
(1st Cir. 1995).
Defendants aver that DPU lacks statutory authority to
regulate TNCs and plaintiffs do not provide any basis for
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challenging that assertion.

Massachusetts law provides DPU with

authority to license operators of motor vehicles that carry
passengers in
a manner as to afford a means of transportation
similar to that afforded by a railway company ... or
for transporting passengers for hire as a business
between fixed and regular termini.
M.G.L. ch. 159A § 1.

Charter vehicles, school vehicles and

special service vehicles all must obtain licenses from DPU.
§11A.

Id.

TNCs vehicles do not, however, meet the requirements for

any of those categories of vehicles.
MassDOT regulations issued under the prior gubernatorial
administration state that
DPU shall have general supervision and regulation of,
and jurisdiction and control over Transportation
Network Companies as common carriers.
540 C.M.R. § 2.05(4¾)(b).

The regulations also state that TNCs

must hold a valid Transportation Network Company Certificate
issued by DPU or a notice stating that DPU is not yet issuing
such certificates. Id. § 205.3.

The regulations of one agency

cannot, however, grant another agency regulatory power where no
statute has done so. See, e.g., City of Arlington v. Fed. Comm.
Commc’n Comm’n, 133 S. Ct. 1863, 1868 (2013) (holding that an
agency must “stay[] within the bounds of its statutory
authority.”).

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Plaintiffs assert that DPU’s issuance of notices clarifying
that the agency is not yet providing TNC certificates
constitutes an affirmative act by DPU in connection with the
enforcement of MassDOT’s regulations.

They maintain that DPU

“should be forced to apply the same law to taxicabs and TNCs,”
presumably by requiring TNCs to meet requirements similar to
those which taxis are required to meet under MassDOT’s
regulations.

But because DPU does not currently have the

statutory authority to regulate either TNCs or taxis, it would
be impossible for the Court to award plaintiffs their requested
relief.
Although a bill is currently pending in the Massachusetts
legislature which would grant DPU the authority to regulate
TNCs, the enactment of the bill remains an “uncertain and
contingent event” which renders plaintiffs’ claim unfit for
judicial review. Ernst & Young, 45 F.3d at 535.

Accordingly,

plaintiffs’ claims against the DPU defendants in both their
official and personal capacities will be dismissed for lack of
ripeness.
2. Claims Against the MassDOT Defendant
a. Takings Clause (Count 4)
Plaintiffs’ claim under the Takings Clause against
Secretary Pollock advances a similar theory to their claims
against the City and Commissioner Evans.
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Plaintiffs allege that

Case 1:15-cv-10100-NMG Document 66 Filed 03/31/16 Page 32 of 43

the amendments to the MassDOT regulations have destroyed their
exclusive right to operate within the transportation-for-hire
market by permitting TNCs to operate without being required to
purchase taxi medallions.

As explained above in the context of

plaintiffs’ takings claims against the City and Commissioner
Evans, however, plaintiffs’ property rights in their medallions,
if such rights exist, does not include a right to market
exclusivity.
Furthermore, plaintiffs have failed to explain how the
MassDOT’s failure to require TNCs to purchase taxi medallions
from the City constitutes a taking.

Unlike the City’s

regulations, the MassDOT regulations do not require taxi
operators or TNCs to purchase City medallions.

The amendments

to the regulations do not alter that fact, and thus it is
unclear what aspect of the amendments plaintiffs allege
constitutes a taking.

Accordingly, the motion to dismiss will

be allowed with respect to Count 4 of plaintiffs’ amended
complaint against Secretary Pollock.
b. Equal Protection Clause (Count 5)
Plaintiffs’ claim against Secretary Pollock under the Equal
Protection Clause alleges that the new amendments to 540 C.M.R.
§ 2.05 issued by MassDOT governing TNCs, which took effect in
January, 2015, create an “unequal application of two sets of
laws to persons engaging in substantially the same business
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Case 1:15-cv-10100-NMG Document 66 Filed 03/31/16 Page 33 of 43

activity” without a rational basis for doing so.

Defendant

argues that plaintiffs’ equal protection claim should be
dismissed both for lack of standing and for failure to state a
claim on the merits.
To allege standing to bring a particular claim, a plaintiff
must show that
(1) it has suffered an “injury in fact” that is (a)
concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) the
injury is fairly traceable to the challenged action of
the defendant; and (3) it is likely, as opposed to
merely speculative, that the injury will be redressed
by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 180-81 (2000).
Secretary Pollock first responds that plaintiffs have not
alleged an injury-in-fact.

In their amended complaint,

plaintiffs allege that the enforcement of MassDOT’s new
amendments to 540 C.M.R. § 2.05 would cause an injury in the
form of damage to the “market and collateral value of the [taxi]
medallions and their marketability.”

Defendant argues that this

does not constitute an injury because plaintiffs state in their
amended complaint that the injury would be “the same” whether
MassDOT continued its prior enforcement patterns or began
enforcing the new amendments.

Defendant asserts that, in order

to show an injury, plaintiffs must allege that enforcement of
the regulations would lead to increased harm.
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Secretary Pollock further submits that plaintiffs have
failed to allege
a causal connection between the challenged action and
the identified harm . . . [or that a] favorable
resolution of [the] claim would likely redress the
professed injury.
Katz v. Pershing, LLC, 672 F.3d 64, 71 (1st Cir. 2012).
Plaintiffs request as relief an order requiring that the
unamended version of the regulation be enforced, in which case
MassDOT would be required to regulate TNCs as livery vehicles.
Secretary Pollock responds that this would merely constitute a
return to the state of affairs before the implementation of the
new amendments and, as such, plaintiffs would once again
experience “the same” harm.
Plaintiffs allege, however, that MassDOT did not require
TNCs to register as livery vehicles before the amendments were
enacted.

Instead, prior to the implementation of the new

amendments TNC vehicles were purportedly allowed to register as
private passenger motor vehicles which were not and are not
subjected to the extensive and burdensome requirements to which
taxicabs and livery vehicles are subjected.

The new amendments

essentially codify this lack of enforcement by officially
permitting TNC vehicles to register as private passenger motor
vehicles.

Accordingly, if the unamended version of the

regulations were enforced, plaintiffs would no longer experience

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Case 1:15-cv-10100-NMG Document 66 Filed 03/31/16 Page 35 of 43

“the same” harm which they experienced before the implementation
of the amendments and which they continue to experience after
the implementation.
Although plaintiffs have stated a more logically cohesive
theory than defendant alleges gives them credit for, their
allegations still fail to show that their injury is caused by
Secretary Pollock’s alleged conduct.

Plaintiffs’ primary

argument with respect to their alleged loss of medallion value
is that taxicab operators are burdened by expensive regulations
that
the City imposes ... on taxis [but] that the State
Defendants do not require TNCs to comply with.
Nor does the state require TNCs to comply with City livery
regulations.

Nevertheless, plaintiffs fail to acknowledge that

the State does not require taxicab operators to comply with City
taxi or livery regulations either.

The MassDOT regulations

define a “taxicab” as “any vehicle ... which is licensed by a
municipality pursuant to M.G.L. ch. 40, § 22 as a taxicab.”

The

regulations do not, however, require any particular vehicle to
be licensed by a municipality as a taxicab.

Therefore any

burden created by the City’s regulations is attributable solely
to the City and Commissioner Evans, not to the state defendants.
Plaintiffs also allege more generally that the amended
MassDOT regulation places a “heavier burden” on taxicabs than on

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Case 1:15-cv-10100-NMG Document 66 Filed 03/31/16 Page 36 of 43

TNC vehicles and that such a disparate burden has caused their
economic injury.

Plaintiffs have failed, however, to allege

sufficient facts to support that claim.

Based on the facts set

forth in this Court and a review of 540 C.M.R. ch. 2.00, the
only requirements imposed upon taxicabs by the MassDOT
regulations are a requirement that they bear a particular kind
of license plate and pay a registration fee corresponding to
that kind of license plate.
vehicles.

The same requirements apply to TNC

Plaintiffs complain that the regulations do not

require TNC drivers to carry commercial vehicle insurance but
they also do not require taxi drivers to carry commercial
vehicle insurance.
In fact, 540 C.M.R. § 2.05 actually creates additional
requirements for TNC drivers, such as an age limit, proof of
personal motor vehicle insurance and limitations with respect to
traffic violations, to which taxi drivers are not subjected.
Although taxicabs and TNC vehicles are required to bear
different license plates, they are currently required to pay the
same amount in vehicle registration fees.

Plaintiffs fail to

state any reason why such differences in treatment would impose
a greater burden on taxicab operators.

They have, therefore,

failed to allege a causal connection between the alleged unequal
treatment and their economic injury.

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Accordingly, Secretary

Case 1:15-cv-10100-NMG Document 66 Filed 03/31/16 Page 37 of 43

Pollock’s motion to dismiss will be allowed with respect to
Count 5 of the complaint.
c. Breach of Contract (Count 6), Promissory
Estoppel (Count 7) and Equitable Estoppel
(Count 8)
Defendant does not address plaintiffs’ claims for breach of
contract, promissory estoppel and equitable estoppel in her
motion to dismiss but rather presumes that those claims do not
apply to her.

Plaintiffs, on the other hand, summarily assert

in their opposition to the motion to dismiss that the state
defendants are liable on all three counts
for allowing TNCs to operate private passenger
vehicles in the City of Boston without taxi
medallions, thereby depriving Plaintiffs of their
property interest in their taxi medallions.
Plaintiffs do not explain, however, how Secretary Pollack
or MassDOT could be liable for allowing TNCs to operate without
medallions when MassDOT has no control over the issuance of taxi
medallions or the enforcement of municipal regulations connected
therewith.

Further, the terms of the three claims in the

amended complaint refer only to the City and its actions and
fail even to mention Secretary Pollack or MassDOT.

Accordingly,

the Court will dismiss Counts 6, 7 and 8 with respect to
Secretary Pollack for failure to state a claim upon which relief
can be granted.

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d. Declaratory Judgment (Count 1), Injunctive
Relief (Count 2) and Monetary Relief (Count 3)
Defendant argues for the dismissal of plaintiffs’ remedial
claims only with respect to the application of the request for
monetary relief against Secretary Pollock in her official
capacity.

Because all of plaintiffs’ substantive claims will be

dismissed, however, their complaint no longer provides a ground
upon which relief can be granted.

Counts 1, 2 and 3 of the

amended complaint will therefore also be dismissed as against
Secretary Pollock.
III. Plaintiffs’ Second Motion for a Preliminary Injunction
Plaintiffs, for their part, renew their motion seeking a
preliminary injunction against the City.

They seek an order

directing the City 1) to enforce Rule 403 against all vehicles
operating for hire in the City, including TNC vehicles and 2) to
order TNCs not in compliance with the applicable city codes and
insurance laws, i.e. vehicles operating with private plates and
using personal insurance policies to operate for hire, to cease
operation within the City until they have complied with the
requirements of Rule 403.
Because plaintiffs’ Takings Clause, breach of contract,
promissory estoppel and equitable estoppel claims against the
City will be dismissed, the Court is without authority to grant
plaintiffs a preliminary injunction based upon those claims.

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Consequently, the Court will limit its consideration of
plaintiffs’ request for injunctive relief to an analysis of
plaintiffs’ remaining equal protection claim.
A. Legal Standard
In order to obtain a preliminary injunction, the moving
party must establish 1) a reasonable likelihood of success on
the merits, 2) the potential for irreparable harm if the
injunction is withheld, 3) a favorable balance of hardships and
4) a favorable effect on the public interest. Jean v. Mass.
State Police, 492 F.3d 24, 26-27 (1st Cir. 2007).

Courts

balance these factors on a “sliding scale,” sometimes awarding
relief based on a lower likelihood of success on the merits when
the potential for irreparable harm is high.

11A C. Wright, A.

Miller, & M. Kane, Federal Practice and Procedure § 2948.3, p.
195 (2d ed. 1995).
The Court may accept as true “well-pleaded allegations [in
the complaint] and uncontroverted affidavits.” Rohm & Haas Elec.
Materials, LLC v. Elec. Circuits, 759 F. Supp. 2d 110, 114, n.2
(D. Mass. 2010) (quoting Elrod v. Burns, 427 U.S. 347, 350, n.1
(1976).

The Court may also rely on otherwise inadmissible

evidence, including hearsay, in deciding a motion for
preliminary injunction. See Asseo v. Pan Am. Grain Co., Inc.,
805 F.2d 23, 26 (1st Cir. 1986).

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B. Analysis
Nearly 14 months have elapsed since this Court’s ruling on
plaintiffs’ first motion for a preliminary injunction.

During

that time, the Court has benefitted from numerous additional
briefings from the parties on the claims at issue in this case,
plaintiffs’ amendments to their complaint and further time to
observe the development of the City and State political
processes.

During this period it has become apparent that

plaintiffs face a growing potential for irreparable harm if
neither the City nor the State addresses the issues they raise.
As TNCs become more prevalent and their existing
operational structure becomes an engrained segment of the
transportation-for-hire market, amending the existing regulatory
structure to address TNCs becomes mandatory.

Further, as the

value of plaintiffs’ medallions wanes, the medallion financing
market has begun to collapse, threatening irreparable harm to
the ability of the holders of individual medallions to continue
operating in the industry.
In the interim, the Taxi Advisory Committee has failed to
take any meaningful action toward changing Boston’s regulations
to address TNCs.

The General Court has begun to move through

the bicameral approval process one or two of the numerous bills
filed but no legislation has yet been enacted.

Yet it is

imperative that the state political process be allowed to
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proceed unfettered so that a legislative solution to the
concerns raised by plaintiffs can be devised.
As defendants note, federal courts considering equitable
remedies must exercise discretion to “avoid ... needless
friction with state policies.” R.R. Comm’n of Tex. v. Pullman
Co., 312 U.S. 496, 500-01 (1941).

Comity considerations urge

federal courts to adopt a “proper reluctance” to interfere with
the operations of state governments “where the Federal rights of
the persons could otherwise be preserved unimpaired.” Levin v.
Commerce Energy, Inc., 560 U.S. 413, 422 (2010).

Where such

interests do not remain unimpaired, however, the Court may be
compelled to provide appropriate relief to protect such Federal
rights.
As detailed in the Court’s discussion of plaintiffs’ equal
protection claim, plaintiffs have made a reasonable showing of
their ability to succeed on that claim.

Should the balance of

hardships continue to shift toward favoring interim relief, the
Court will respond accordingly.
Therefore, taking judicial notice of recent activity in the
Massachusetts General Court with respect to the regulation of
TNCs and in expectation of some resolution during the current
legislative session, the Court will direct the defendant City of
Boston, on or before September 30, 2016, 1) to inform the Court
what changes to Rule 403 it intends to adopt regardless of the
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status of the state law at that time and 2) to show cause why
this Court should not enter a preliminary injunction ordering
the City to apply Rule 403 to TNCs.
ORDER
For the forgoing reasons,
1) as to defendant City of Boston,
a. the motion to dismiss (Docket No. 38) is, with respect
to Counts 1, 2, 3 and 5 of the amended complaint,
DENIED and
b. the motion to dismiss (Docket No. 38) is, with respect
to Counts 4, 6, 7 and 8 of the amended complaint,
ALLOWED;
2) as to defendant William Evans,
a. the motion to dismiss (Docket No. 40) is, with respect
to Counts 1, 2, 3 and 5 of the amended complaint,
DENIED,
b. the motion to dismiss (Docket No. 40) is, with respect
to Count 4 of the amended complaint, ALLOWED and
c. Counts 6, 7 and 8 of the amended complaint are
DISMISSED;
3) as to defendants Angela M. O’Connor, Jolette A. Westbrook
and Robert Hayden, the motion to dismiss (Docket No. 42) is
ALLOWED;

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4) as to defendant Stephanie Pollock, the motion to dismiss
(Docket No. 42) is ALLOWED;
5) plaintiffs’ second motion for a preliminary injunction
(Docket No. 56) is DENIED without prejudice.

On or before

September 30, 2016, defendant City of Boston is directed
1) to inform the Court what changes to Rule 403 it intends
to adopt regardless of the status of the state law at that
time and 2) to show cause why this Court should not enter a
preliminary injunction ordering the City to apply Rule 403
to TNCs.

So ordered.

/s/ Nathaniel M. Gorton _ __
Nathaniel M. Gorton
United States District Judge
Dated March 31, 2016

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