Maroney et al v. Fiorentini et al
Magistrate Judge Donald L. Cabell: ORDER entered. MEMORANDUM AND ORDER granting in part and denying in part 95 Motion for Summary Judgment. (Russo, Noreen)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MICHAEL J. MARONEY, as
Trustee of Premiere Realty
Trust, and MARONEY
CONSTRUCTION COMPANY, INC.,
JAMES J. FIORENTINI,
Individually and in his
Capacity as Mayor of the
City of Haverhill, ROBERT
E. WARD, Individually and
in his Capacity as Deputy
Director of Public Works
of the City of Haverhill,
and THE CITY OF HAVERHILL,
MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
(“Maroney”) to develop a subdivision of homes in the City of
Haverhill (“the City”).
Having been denied certain permits,
Maroney filed this action through his business entities against
the City and two City officials for violations of 42 U.S.C. § 1983
(“section 1983”) and Massachusetts state law. 1
Maroney filed suit as Trustee of Premiere Realty Trust, and in the name of
his company, Maroney Construction Company, Inc.
For ease of reference, the
court uses “Maroney” or “the plaintiff” in the singular form to refer to these
The defendants, Robert E. Ward (“Ward”), deputy director of
the City’s Department of Public Works (“the Water Department”),
(collectively “the defendants”), move for summary judgment on the
remaining claims in the operative amended complaint (“operative
complaint”) (D. 51).
These claims are:
a violation of
substantive due process under section 1983; a violation of the
Massachusetts Civil Rights Act, M.G.L. c. 12, § 11I (“MCRA”);
interference with contractual or economic relations; and civil
The defendants argue that Ward and other City officials denied
permits and refused to sign off on site plans because of Maroney’s
delay in designing and building a water booster station to serve
the subdivision’s homes. Relatedly, so they contend, Maroney never
submitted a final revised design of the station after October 2013
as required by the City and its outside engineering firm.
defendants further submit that Maroney never provided a compliant
design after Ward required a different pumping system in January
reasonable basis with respect to designing and building the water
The plaintiff also contends that the Mayor made
threats to Maroney to drop a July 2015 state court lawsuit Maroney
filed to secure the necessary permits to develop the subdivision.
Ward purportedly carried out those threats by continuing to deny
permits, changing the pumping system design in January 2016, and
opposing an extension of time to construct the water booster
station in the fall of 2016.
In response, the defendants argue that Ward acted the same
before and after Maroney filed the state court lawsuit.
reasons that follow, the summary judgment motion (D. 95) is allowed
in part and denied in part.
In particular, the motion is allowed
as to Ward, and allowed as to the Mayor except for the interference
with contractual or economic relations claim.
STANDARD OF REVIEW
demonstrate “there is no genuine dispute as to any material fact.”
Dusel v. Factory Mut. Ins. Co., 52 F.4th 495, 503 (1st Cir. 2022)
If the movant is “able to make a showing that
there is no genuine issue of material fact, the burden shifts to
the nonmoving party, who must, with respect to each issue on which
[he] would bear the burden of proof at trial, demonstrate that a
trier of fact could reasonably resolve that issue in [his] favor.”
Id. (citation omitted); see Clifford v. Barnhart, 449 F.3d 276,
280 (1st Cir. 2006) (“[A]s to any essential factual element of its
claim on which the nonmovant would bear the burden of proof at
trial, its failure to come forward with sufficient evidence to
The record, including all reasonable inferences, is viewed in
the nonmovant’s favor.
See Motorists Com. Mut. Ins. Co. v.
Hartwell, 53 F.4th 730, 734 (1st Cir. 2022).
statements of fact in the movant’s L.R. 56.1 statement comprise
part of the summary judgment record.
See, e.g., Cochran v. Quest
Software, Inc., 328 F.3d 1, 12 (1st Cir. 2003).
Viewed under the
foregoing standard, the facts are as follows.
Subdivision Approval with Water Booster Station
property in Haverhill to build a subdivision of homes known as
Crystal Springs Cluster (“Crystal Springs”).
(D. 104, ¶ 6). 2
Premiere owned the land and the Maroney Construction Company, Inc.
(“Maroney Construction”) was the general contractor.
to being Premiere’s trustee, Maroney is the president of Maroney
consisted of 50 residential lots:
16 on a private way known as
The above filing contains both the defendants’ L.R. 56.1 paragraphs and the
plaintiff’s responses to those paragraphs. (D. 104). Unless designated as a
“Response,” a citation to a paragraph includes the portion of the plaintiff’s
response which does not dispute or controvert the defendants’ paragraph.
Back Nine Drive and 34 on a private way known as Front Nine Drive.
(D. 97-13, p. 26). 3
In March 2009, the Planning Board for the City of Haverhill
(“the Planning Board” or “the Board”) held a meeting regarding
Maroney’s application for a special permit to develop Crystal
During the meeting, Maroney acknowledged the City’s
“concerns about water pressure” and “proposed building a water
booster station” to address the concerns.
(D. 104, ¶ 8).
Maroney agreed a booster station would be needed to meet water
pressure and fire hydrant flow requirements.
(D. 104, ¶ 9).
effect of the subdivision on the City’s water supply.
Without identifying specific lots, Wright-Pierce
concluded that higher elevations in the subdivision could not be
served without providing supplemental water boosting.
The lots on Front Nine Drive have higher elevations
than the lots on Back Nine Drive.
(D. 97-2, pp. 13-14).
When the Mayor initially learned about the development in or
planning director, the Mayor supported the project.
Mayor stated he was “all for it.”
In fact, the
(D. 97-12, p. 31).
Except for depositions, page numbers refer to the page number in the upper
right-hand corner of the docketed filing.
In January 2010, 4 the Planning Board approved the subdivision
plan with the inclusion of documents from the Water Department
“about the need for the water booster station.”
(D. 104, ¶ 10).
The approved definitive subdivision plan required Maroney to build
a water booster station.
(D. 97-2, p. 86) (D. 97-4, pp. 93-94).
Notably, the definitive plan did not set a deadline or a segmented
timeline to complete construction of the booster station. 5
104-3, p. 27).
The plan did, however, allow Maroney to post a
security bond for the water booster station or to build the
station, according to John A. D’Aoust (“D’Aoust”), the City’s water
treatment plant manager. 6
(D. 104-3, p. 98, ln. 6-8, 15-18).
Timing to Build Station, Form F, and Tri-Partite Agreements
In a prior opinion, the court determined that Maroney is
estopped from arguing that he had until November 2016 to build the
water booster station.
(D. 77, p. 12).
Rather, he agreed to build
the station after completing Phase I, which was earlier than
The verified operative complaint (D. 51, ¶ 11) states that the Planning Board
approved the plan in January 2010. See Sheinkopf v. Stone, 927 F.2d 1259, 12621263 (1st Cir. 1991).
The parties dispute the timing of “when the station needed to be built” (D.
104, ¶¶ 9, 12, Responses), particularly the plaintiff (D. 105, p. 2) (“[T]he
timing [of] when the station needed to be built is very much disputed.”).
6 The pertinent language reads as follows:
“No building permit will be issued
until all of the utilities shown on the plans to provide service to the proposed
structure are installed and tested, or a security bond is posted for such work.”
(D. 97-13, pp. 7, 25) (emphasis added).
November 2016. 7
(D. 77, p. 12).
Accordingly, Maroney agreed to
build the station earlier than November 2016.
In June 2009, Maroney executed the Planning Board’s “Form F
Covenant” for all lots in the subdivision.
(D. 97-13, pp. 22-23).
The form set a June 12, 2011 deadline for Maroney to complete the
included utilities such as the water booster station.
p. 23) (D. 104-3, p. 98).
Importantly, the form imposed a
condition which required the installation of municipal services
before any lot in the subdivision “may be built upon.”
13, p. 22).
As stated in the form, the Planning Board would release lots
from this condition if the Board executed a performance guarantee
“enumerating the specific lots to be so released.”
(D. 97-13, p.
In this regard, the Planning Board, Maroney, and Pentucket
Bank (or the Lowell Five Cents Savings Bank) (“the bank”) entered
into successive Tri-Partite Agreements under which the Planning
Board agreed to release certain enumerated lots from “any and all
Regardless of the timing dispute Maroney identifies as to “when the station
needed to be built” (D. 105, pp. 2-3), the fact remains he is estopped from
arguing that he had until November 2016 to build the station. (D. 77, p. 12).
Further, and in any event, the purported misconduct does not give rise to a
violation of substantive due process or MCRA, as explained in the discussion
irrevocable lines of credits designating the Planning Board as the
(D. 97-13, pp. 26-47).
By way of example, in the first Tri-Partite Agreement dated
June 8, 2010, the bank agreed to issue an irrevocable letter of
credit to the Planning Board, the Planning Board released 16
enumerated lots on Back Nine Drive from “any and all covenants,”
and the parties extended the deadline for Maroney to install
(D. 97-13, p. 27).
municipal services to January 28, 2012. 8
municipal services to October 1, 2016. 9
In essence, the letters
installation of municipal services to adequately serve the houses
on the released lots.
(D. 97-13, pp. 26-27, 31, 34-35, 44-45).
To explain the construction approval process, the release of
operated on a “separate track” from the permitting process by the
(D. 97-24, pp. 17-18); see City of Haverhill
As previously noted, “municipal services” encompasses the water booster
Although the agreement recites the October 1, 2016 deadline under which Maroney
“shall complete” the installation of municipal services, it also contemplated
a November 1, 2016 deadline. In that vein, the agreement reads that if the
“installation of municipal services is not completed” by November 1, 2016, the
Planning Board may draw on any undisbursed funds under the letter of credit to
complete the remaining work. (D. 97-13, p. 45). The Board’s Counsel advised
the Board of this interpretation in the fall of 2016. (D. 97-24, p. 22).
Rules and Regulations Governing the Subdivision of Land, §§ IV.C,
IV.F (June 14, 2000) (captioned Filing Requirements, Lot Release
7 (“Haverhill Subdivision Rules”). 10
After the Planning Board
releases a lot, the developer submits a site-plan application to
the Engineering Department.
The applicable City departments,
which here include the Water Department, will then “weigh in” or
(D. 104-3, p. 46) (D. 104-7, p. 90) (D. 97-1, p. 9,
n.14); see Haverhill Subdivision Rules, § IV.F.1.
If the site
plan is approved for the released lot or lots in question, the
developer may proceed to obtain the necessary building and other
permits from the applicable departments to construct houses on the
(D. 104-3, p. 46) (D. 104-7, p. 90) (D. 97-1, p.
therefore “had to sign off on the site plans in order for” Maroney
to obtain building permits to begin construction.
(D. 104, ¶ 86).
As noted, the parties disagreed about the deadline for Maroney
to complete the water booster station.
In October 2012, Maroney
The court’s ability to take judicial notice encompasses the City’s Rules and
Regulations Governing the Subdivision of Land posted on the City’s website.
See Getty Petroleum Mktg., Inc. v. Cap. Terminal Co., 391 F.3d 312, 321 n.24
(1st Cir. 2004) (Lipez, J., concurring) (collecting cases taking judicial notice
of city building code and town ordinances).
and Ward met to discuss the timing of the station’s construction.
(D. 97-4, pp. 31-32).
In that vein, Maroney sent an October 17,
2012 letter with his schedule to D’Aoust. 11
(D. 104-1, p. 220)
(D. 104-2) (D. 104-3, p. 11) (D. 97-4, pp. 31-32).
As set out in
the letter, the schedule consisted of building houses on Front
Nine Drive “in three phases” consisting of 13 houses in the first
phase, 11 houses in the second phase, and ten houses in the third
phase. (D. 104-2). According to Maroney’s schedule, Maroney would
build or commence the process of building the water booster station
upon completing the first phase of 13 houses. 12
(D. 104-2) (D. 104-1, pp. 220-221).
(D. 104, ¶ 13)
In contrast, in May 2012,
construction “before the homes were built on Front Nine Drive.”
(D. 104-3, pp. 32, 38).
In May 2012, Ward expected the water
booster “station to be done before occupancy of Front Nine” Drive
(D. 97-4, pp. 28, 31).
Subsequent attempts between
Maroney and Ward and/or D’Aoust to agree on a schedule were not
As noted, the last Tripartite Agreement required Maroney to
install the water booster station no later than November 1, 2016. 13
Ward knew about the schedule in the October 17, 2012 letter.
31-32) (D. 104-2).
See supra note 7.
See supra note 9.
(D. 97-4, pp.
Further, Maroney is estopped from arguing he had until November
2016 to build the station.
Maroney’s Progress in Building Station Prior to March 2015
Between 2009 and 2012, Maroney built approximately ten or 11
houses on Back Nine Drive.
Correspondingly, Ward accommodated a
request from Maroney’s engineer by allowing Maroney to build these
and all other houses on Back Nine Drive lots without installing
the water booster station.
(D. 97-4, pp. 19-20).
In 2013, the City initially wanted Maroney to use a water
booster station based on a “skid design” with a “pumping system
designed by either EFI or SyncroFlo,” the two suppliers of pumping
systems specified in the City’s pumping station requirements. 14
(D. 97-4, p. 41) (D. 104, ¶ 17).
The “factory-built” skid design
consisted of pumps and control panels mounted on a skid.
4, pp. 41-42).
In lieu of using the skid design, Maroney proposed
using “a built in place station,” also referred to as “a field
(D. 104-4, ¶ 4) (D. 104, ¶ 18).
Ward and D’Aoust
allowed Maroney to propose “a field built station,” which they
would “take a look at it” and consider.
(D. 97-4, p. 47) (D. 104-
3, pp. 11, 71) (D. 104, ¶ 18). Relatedly, Ward and D’Aoust approved
Under the Haverhill Subdivision Rules, the Water Department “determine[s] the
areas where booster pumping is required.”
Haverhill Subdivision Rules, §
V.5.2.5. Furthermore, “[p]umping stations shall be designed and constructed in
accordance with” the Water Department’s requirements. Id.; (D. 97-3).
the qualifications of Bruce Lewis (“Lewis”), Maroney’s engineer,
to design the built in place station.
(D. 104-4, ¶ 4).
Lewis submitted a preliminary design for the water booster
station to D’Aoust in early June 2013 and a “proposed final plan”
to D’Aoust in late July 2013. (D. 104-4, ¶¶ 3, 6). After receiving
comments by Wright-Pierce, Lewis submitted a revised plan on
September 26, 2013.
(D. 104-4, ¶ 7).
In an October 30, 2013
memorandum to D’Aoust and Ward, Wright-Pierce reviewed the revised
design and added comments. (D. 97-6). D’Aoust, in turn, forwarded
the memorandum and a cover letter to Lewis on October 30, 2013.
In no uncertain terms, the memorandum states that, “A site plan
was not included as part of the resubmittal and is required prior
to final approval.”
(D. 97-6, p. 3, § 3) (emphasis added).
Lewis noted that “Shop drawings for all materials needed to be
(D. 104-4, ¶ 9).
It is undisputed that the
(D. 104, ¶ 22).
Maroney also acknowledged
that the September 26, 2013 revised plan reviewed by Wright-Pierce
in the October 30, 2013 memorandum (“the revised plan”) was “the
last time [he and Lewis] submitted” design plans to the City “for
the water booster station.” (D. 97-2, pp. 39-40) (emphasis added).
By late October 2013, Maroney knew that Wright-Pierce did not
approve the revised design because D’Aoust copied him on the
October 30, 2013 email to Lewis which attached Wright-Pierce’s
Against the backdrop of the accompanying
cover letter, Maroney also knew he had to submit an additional
final set of design plans to obtain the City’s approval.
letter reads as follows:
There are a few items to be addressed. One of importance is
the site plan, the memo will indicate what is needed . . .
Please address these items in one final set of design plans
and specifications that will be adequate for the city and
(D. 96-6) (emphasis added). 15
Maroney did not submit a revised
final set of design plans to the City addressing these items. 16
Ward’s Spring 2015 Refusals to Approve Permits and Water
By September 2014, the Planning Board had released 20 lots
along Front Nine Drive and set the aforementioned November 1, 2016
deadline for Maroney to install, inter alia, the water booster
(D. 97-13, pp. 34-35, 44-45).
In March 2015, however,
Ward refused to approve “water service applications that were being
Notwithstanding the above, Lewis understood “that the design [of the water
booster station] was essentially complete and acceptable” by virtue of the cover
letter and attached memorandum.
(D. 104-4, ¶ 8).
Maroney considered the
revised plan as 95% complete. (D. 92-2, pp. 21-23, 33, 78, 153).
As indicated below, Maroney points out, and the record supports, that he and
Lewis brought the same plans to a January 5, 2016 meeting with Ward and D’Aoust.
Maroney acknowledges that he did not “pull the plans out at the meeting.” (D.
97-2, p. 77). He further testified that nothing was stopping him from October
30, 2013 to January 5, 2016 from submitting revised, final design plans for the
City’s review. (D. 97-2, p. 140).
requested for various homes on Front Nine Drive.” 17
28) (D. 97-4, pp. 80, 94).
(D. 104, ¶
Ward “did not speak with the Mayor
before stating that there would be ‘no more approvals’” for such
That said, Ward may have updated him at one of their
(D. 104, ¶ 30) (D. 97-4, pp. 79-80, 82-83).
based his decision on the lack of progress on the water booster
(D. 97-4, p. 94).
Similarly, “[a]s of April 2015, Ward”
refused to “sign off on additional permits because” he believed
(D. 104, ¶ 30) (D. 97-2, p. 53).
During a meeting the same month, Maroney, Ward, D’Aoust,
Pillsbury, and Maroney’s attorney discussed a schedule for the
station’s construction and tried to arrive at an agreement. 18
104, ¶ 32) (D. 97-2, pp. 52-53).
After the meeting, a proposed
agreement was sent to Ward containing Maroney’s suggested schedule
to complete the water booster station “by the effective bond date.”
(D. 97-2, pp. 53-55, 57) (D. 97-10, p. 4).
In pertinent part, the
proposed agreement stated that “the Water Department shall share
the new Hydraulic Analysis Report (2015) with the builder upon its
At the time and as pointed out by the plaintiff, Ward did not know which lots
on Front Nine Drive met the City’s minimum water pressure standard (35 psi).
(D. 97-4, pp. 81, 84). It was not until May 2015 that Wright-Pierce provided
the City with an analysis of which lots met the minimum requirement such that
they were serviceable without a water booster station. (D. 97-4, pp. 103-104).
Previous attempts in the preceding two years to arrive at an agreed schedule
were unsuccessful. (D. 97-2, pp. 33-36) (D. 104-1, pp. 206-207).
receipt of the same.”
(D. 97-2, p. 57) (D. 104, ¶ 33) (D. 97-10,
Maroney declined to sign the proposed agreement because
the City already had the hydraulic analysis report from WrightPierce but would not provide it to Maroney before he signed the
(D. 97-2, pp. 58-61) (D. 104, ¶ 34).
After the failure to execute the proposed agreement, “Ward
refused to sign off on any additional building permits” for Crystal
(D. 104, ¶ 38).
In fact, Ward testified that after March
2015 the Water Department did not “sign off on anything else to
(D. 97-4, pp. 115-116).
refusals, “Maroney proceeded to build” houses on a number of lots
on Front Nine Drive “without building permits” for a six-week
period in June and early July 2015.
123, 126, 128).
(D. 104, ¶ 39) (D. 97-2, pp.
This, in turn, led the City’s Building Inspector
to issue Maroney a stop-work order on July 15, 2015, and Maroney
stopped building on the lots.
(D. 104, ¶ 40) (97-4, pp. 111, 166-
167, 169) (D. 97-2, p. 121).
By this time, Maroney had completed
the houses on Back Nine Drive.
(D. 104-7, pp. 68-69) (D. 104-6,
p. 77) (D. 97-2, p. 207).
The plaintiff moves to strike the following from the defendants’ undisputed
statement of material facts: “[N]either Ward nor the Mayor made the decision
not to share the hydraulic analysis report with Maroney.” (D. 102) (D. 97, ¶
36). Striking or failing to credit the paragraph would not alter the court’s
decision on the summary judgment motion regarding any of the remaining claims.
State Court Action and the Mayor’s Statements
On July 23, 2015, Maroney filed suit in Massachusetts Superior
Court (Essex County) against Ward, the Planning Board, and various
Haverhill officials, albeit not the Mayor, for impeding Maroney’s
development of Crystal Springs and refusing to issue permits and
approve site-plan applications.
(D. 104, ¶ 41) (97-13, pp. 2-3).
remembers receiving the complaint after it was served.
12, p. 109).
Up until the time Maroney filed the lawsuit, he had
no reason to believe the Mayor “was trying to stop the project.”
(D. 97-2, pp. 230-231).
Shortly after Maroney filed the lawsuit, the Mayor had an
August 2015 meeting with Crystal Springs residents, another August
2015 meeting with a close friend of Maroney’s, and a September
2015 meeting with Maroney.
At all of these meetings, the Mayor in
essence stated that Maroney needed to drop the state court lawsuit
to obtain the permits for the development.
(“Scalera”), a real estate broker and resident of Back Nine Drive,
organized a meeting with the Mayor and various Crystal Springs
residents and prospective buyers who were concerned about the work
(D. 104-7, pp. 25, 27, 103, 107).
A Front Nine Drive
resident described the meeting’s purpose as “[g]etting permits”
for Front Nine Drive lots or houses.
(D. 104-6, pp. 83, 90).
Maroney knew about the meeting but did not attend.
(D. 104-7, p.
The Mayor, however, knew Scalero was the real estate broker
for the houses of the attendees on Front Nine Drive and assumed
she was a broker for Maroney.
(D. 97-12, pp. 115-116, 144-145).
During the August 27, 2015 meeting, the Mayor acknowledged:
water booster station as part of the definitive plan, the lack of
a timeline to build the station, the option Maroney had “of
building or bonding” the station, the existence of the bond, and
the November 2016 expiration of the bond.
(D. 104-7, pp. 110-111,
The Mayor then stated that “Maroney knows what he has to
do” to get the permits, and “[i]f he drops the lawsuit, he’ll get
the permits.” 20
(D. 104-7, p. 112) (D. 104-6, pp. 91-93).
“was no talk about settling the lawsuit during the meeting,”
according to Rosemary Deyermond (“Deyermond”), a Front Nine Drive
resident who attended the meeting. 21
(D. 104-6, p. 93).
characterized the Mayor’s statement as extortion.
(D. 104-6, p.
(“Healey”), who the Mayor knew was Maroney’s friend, about the
20 Whereas the Mayor denied making these statements (D. 97-12, pp. 116-117), the
record is viewed in the plaintiff’s favor.
In contrast, the Mayor, an attorney for 30 years, testified that either he
or Bill Cox, the City solicitor, said something to the effect that “Maroney
needs to settle the lawsuit.” (D. 97-12, pp. 54, 119). Here again, the record
is construed in the plaintiff’s favor.
Crystal Springs development.
(D. 104-8, pp. 59-60).
ten-minute meeting, Healey posited there must be a means to solve
the situation “in a better way to help the taxpayers.”
8, p. 62).
In response, the Mayor said, “[T]ell Maroney to drop
the lawsuit, and I’ll give him as many permits as he wants, but if
he doesn’t, then he’ll never get any permits while I’m a Mayor.” 22
(D. 104-8, p. 62).
On or about September 11, 2015, the Mayor met with Maroney in
the Mayor’s office.
At the outset, the Mayor noted that Maroney
did not bring his attorney and then stated, “What can we do to
resolve this problem?”
(D. 97-2, p. 121) (D. 104, ¶ 47).
responded, “Give me my permits.”
(D. 97-2, p. 121) (D. 104, ¶
The Mayor then slid a piece of paper across the table
whereupon Maroney asked, “What is this?”
104, ¶ 47).
(D. 97-2, p. 121) (D.
The Mayor responded, “That’s what you owe the City,
you owe the City $250,000.”
Maroney asked, “For what?”
(D. 97-2, p. 121) (D. 104, ¶ 47).
(D. 97-2, p. 121) (D. 104, ¶ 47).
response, the Mayor said, “For all those houses you built illegally
(D. 97-2, p. 121) (D. 104, ¶ 47).
Maroney then explained there are “no fines on the illegal
building because there’s a stop work order and I didn’t go back to
work on any of them.
So there is no fee, no $1,000 a day unless
As before, although the Mayor denies making the statement (D. 97-12, p. 149),
the record is viewed in the plaintiff’s favor.
I do . . . [and] I’m not dropping the lawsuit.”
(D. 104, ¶ 47).
The Mayor replied, “you can have . . . all the
permits you want, just drop the lawsuit.”
(D. 104, ¶ 47).
(D. 97-2, p. 121)
(D. 97-2, pp. 121-122)
When Maroney refused, the Mayor responded, “Well,
you say we owe you money[,] and I say you owe us money, so why
don’t we just call it a day[?]”
(D. 97-2, p. 122) (D. 104, ¶ 47).
Maroney denied he owed any money and reaffirmed he was “not
dropping any lawsuit.”
(D. 97-2, p. 122) (D. 104, ¶ 47).
the meeting ended, the Mayor told Maroney, “You can dismiss the
case and you can have all the permits you want . . . [a]nd we’ll
make these fines go away.” 23
(D. 97-12, p. 123).
At the Mayor’s request, the two met again a few days later.
(D. 104, ¶ 49).
During the meeting, the Mayor said he “would like
to go to mediation” and wanted Maroney “to think about it.”
97-2, p. 132) (D. 104, ¶ 49).
Maroney initially declined to go to
On September 25, 2015, however, he
(D. 104, ¶ 50).
emailed Ward a proposed agreement between Maroney and the Mayor.
The Mayor never signed the agreement.
(D. 104, ¶¶ 51-52).
Change to EFI Pumping System and Maroney’s Efforts to Comply
In or around November 2015, Maroney constructed a new water
main line to support the water booster station.
87) (D. 97-4, p. 115).
(D. 97-2, pp. 86-
Ward acknowledged the installation of the
Maroney viewed the above statement as extortion because he knew that he did
not owe the fines. (D. 97-12, p. 123).
water main line and recalled Maroney telling him the cost was
$150,000 to $160,000.
(D. 97-4, pp. 101-102).
On January 5, 2016,
Maroney and Lewis attended the meeting with Ward and D’Aoust and
brought the revised set of design plans submitted to the City in
late September 2013 and reviewed by Wright-Pierce in October
2013. 24 (D. 97-2, pp. 39, 41, 75, 77-78). At the meeting, however,
“Ward told Maroney and Lewis that they needed to go with the EFI
pumping system,” and, as a result, Maroney and Lewis “didn’t even
pull the plans out.”
(D. 104, ¶ 56) (D. 97-2, p. 77).
Maroney was shocked and surprised about the need to go with
the EFI pumping system.
D’Aoust could not recall that anyone from
the Water Department communicated to Maroney before the January 5,
2016 meeting that he “needed to go with the EFI skid design.”
104-3, pp. 138-139).
Similarly, Lewis does not remember speaking
with “D’Aoust in September 2014 about the need to use the EFI
(D. 104-4, ¶ 14).
Maroney acted promptly after the January 2016 meeting by
engaging the EFI manufacturer’s New England representative, Fred
Haines (“Haines”), to prepare a proposal for an EFI system.
97-2, pp. 91-92).
Thereafter, as instructed by Maroney, Lewis
Maroney testified that he and Lewis “had not done anything more to the [prior]
plans because there was so little . . . left to do.” (D. 97-2, p. 79).
Although the defendants contend otherwise (D. 97, ¶¶ 26-27), the record is
construed in the plaintiff’s favor.
communicated several times with Haines and met with him on January
(D. 104-4, ¶ 15) (D. 97-2, pp. 80-81).
Maroney did not “submit an EFI design to the City for review.” 26
(D. 97-2, p. 99).
He also did not advise the Planning Board at a
November 2016 Planning Board meeting “that he had a contract with
(D. 104, ¶ 74).
In April 2016, Maroney emailed Glenn Smith (“Smith”), the
water distribution system supervisor (D. 97-4, p. 79), asking to
place data loggers on fire hydrants on Parsonage Hill Road. 27
follow-up email from Maroney in May 2016 informed Smith about fire
flow tests that Maroney had scheduled in the near future.
4, p. 146).
Smith forwarded the email to Ward, who then forwarded
the email to the City’s attorney in the state court lawsuit.
97-4, pp. 146-147).
Drawing reasonable inferences in Maroney’s
favor, the City did not allow the tests because Maroney filed a
motion to compel them in the state court lawsuit.
(D. 104, ¶ 61)
(D. 97-4, p. 148) (D. 97-18) 28 (D. 104, ¶ 61).
He explains that he obtained his “first quote” for the design in June 2016,
and, after several requests for flow tests required for the design, Maroney
finally received them on October 23, 2016, shortly before the deadline in the
last Tri-Partite Agreement. (D. 97-2, pp. 91, 99).
In opposing summary judgment (D. 105), the plaintiff does not develop an
argument that the City’s approval of building permits without requiring a water
booster station in the DelHaven Estates and the Parsonage Hill subdivisions, as
stated in the operative complaint (D. 51, ¶¶ 26-27, 56, 59), contravenes
substantive due process. (D. 97-4, p. 135); see Dusel, 52 F.4th at 513-514.
28 The letters (D. 97-18) are not considered for the truth of the matter asserted
but rather for purposes of showing motive. Related to the above, Maroney argues
that Ward “balked at allowing Maroney to conduct the water tests” as one of the
roadblocks Ward created in carrying out the Mayor’s threats. (D. 105, pp. 11-
In June 2016, “Maroney submitted a site plan for the water
(D. 104, ¶ 62).
On July 21, 2016, he met with
Ward and D’Aoust to discuss the additional information needed to
approve the site plan.
(D. 104, ¶ 63, sent. one) (D. 97-2, p.
109) (D. 97-4, p. 152).
Ward believed there was a “holdup” because
Maroney needed “a structural engineer on the foundation,” which
Ward described as “a requirement from the building inspector.”
(D. 97-4, pp. 152-153).
Maroney disagreed about the site plan
needing a more detailed structural plan to obtain review because
it was contrary to the City’s building code.
110) (D. 104, ¶ 63, Response).
(D. 97-2, pp. 109-
A memorandum from the City’s
Building Inspector to Ward the next day recited the need for “[a]
detailed structural plan . . . with professional design for . . .
the pump equipment” and foundation. 29
(D. 97-19, p. 4).
“of submitting the additional information requested for the review
of the site plan, Maroney filed” this lawsuit on August 1, 2016.
(D. 104, ¶ 65).
Decision Not to Extend Tri-Partite Agreement
In the fall of 2016, the Planning Board held a series of
meetings to address Maroney’s request to extend the existing Tri-
12). A reasonable jury could not find that the Mayor instructed or directed
Ward to carry out the Mayor’s threats regarding these tests, which related to
the newly-installed water main and its impact on the design of the water booster
station. See infra note 47 and accompanying text.
The memorandum is not considered for the truth of the matter asserted.
Rather, the court considers it to show Ward’s lack of bad faith or malice.
At a September 14, 2016 meeting, Ward spoke
out against extending the agreement and allowing more time for
Maroney to complete the water booster station.
(D. 97-24, p. 5).
Prior to September 2016, Ward had not attended a Planning Board
(D. 97-4, p. 154).
the October meeting.
The Board continued the matter to
(D. 97-24, pp. 22-23).
At the October 12, 2016 meeting, Ward again recommended
against extending the time to build the water booster station.
also noted that Wright-Pierce’s hydraulic analysis determined that
the remaining lots were unserviceable in the sense that they lacked
adequate water “pressure and flow under certain circumstances.” 30
(D. 97-25, pp. 5-7, 20-21).
The City’s engineer “defer[red] to
the water department” with respect to the water booster station
and otherwise recommended a one-year extension of the Tri-Partite
Agreement and an accompanying increase in the bond amount.
97-25, pp. 7-8).
Maroney spoke in favor of extending the Tri(D. 97-25, p. 16).
In the end, the Planning
Board voted to extend the time to install municipal services, “with
The plaintiff moves to strike the following from the defendants’ undisputed
statement of material facts: “Ward attended the [October 12, 2016] Planning
Board meeting on advice of Counsel to speak against the extension of the
tripartite agreement and prepared a letter recommending that the Planning Board
deny any requests for the developer to extend the completion date for the water
booster pumping station in September 2016.” (D. 97, ¶ 72). The plaintiff moves
to strike this paragraph because the defendants waived the attorney-client
privilege. (D. 103). The court did not rely on this statement or the cited
deposition testimony regarding advice of counsel.
Accordingly, striking or
failing to credit the paragraph would not alter the court’s decision on the
summary judgment motion.
the exception of the water booster station,” to November 1, 2017.
(D. 97-25, pp. 49-52).
Relatedly, the Board required Maroney to
provide a Tri-Partite Agreement with his and the bank’s signatures
Planning Board before November 1, 2016.
(D. 97-25, pp. 50-55).
Maroney did not provide an executed Tri-Partite Agreement
before November 1, 2016, or at the next Board meeting on November
15, 2016. 31
(D. 97-26, p. 2).
After hearing from Maroney, the
Board voted “to instruct special counsel to take” the necessary
steps to obtain disbursement of the funds from the bank “to
complete the remaining work on the Crystal Springs” development.
(D. 97-26, p. 11).
Eventually, a new developer built the water
booster station using an EFI pumping system after the plaintiff
“lost the development.”
(D. 97-2, p. 192) (D. 97-4, p. 175) (D.
104, ¶ 83).
Mayor’s Interactions with Ward 32
The Mayor appointed Ward to his position. 33
(D. 97-4, p. 10).
Ward typically met with the Mayor and the Director of the Water
The Board’s special counsel represented that Maroney submitted a draft without
the bank’s signature. (D. 97-26, p. 11).
The plaintiff identifies various disputed facts (D. 104, ¶¶ 79-82, Responses)
to refute the defendants’ arguments that Ward was not following directives from
Relatedly, and according to the
time although the Mayor did not
requiring “just cause” to remove
testified that these clauses “are
Mayor’s testimony, Ward had a contract at the
know whether Ward’s contract had a clause
Ward from his position.
The Mayor further
normally” in such contracts. (D. 97-12, pp.
Department on a weekly basis, including from 2014 through 2016.
(D. 97-4, pp. 11, 13).
During the 2014 through 2016 time-period,
Ward would give the Mayor a quick update about the Crystal Springs
subdivision if they had not “spoken about it in quite a while.”
(D. 97-4, p. 13).
According to Ward, at least in or around 2012,
the Mayor was interested in the timing and completion of the water
(D. 97-4, pp. 26-27) (D. 104-11).
The Mayor does “not have permit-granting authority.”
12, p. 140) (D. 104-9, p. 18).
He also did not get involved in
the subdivision’s approval process, according to his testimony.
(D. 104-9, p. 18).
Nevertheless, in October 2012 at the request
of a City employee, the Mayor set up a meeting to see if he “could
help speed along the development” and met with Maroney, Ward, and
other City officials.
(D. 97-12, pp. 36-37).
The Mayor may also
have met with Maroney, Ward, and other City officials in July 2013
to reach an agreement “about the project going forward.”
12, p. 55).
The Mayor remembers “at least one discussion with
pressure to meet state “or local standards and whether some of
them could be released.”
(D. 97-12, p. 77).
As indicated, Ward
did not talk to the Mayor before Ward made the decision to stop
approving water service applications as of March 2015.
After Maroney filed the state court lawsuit, Ward had very
little communication with the Mayor about building the water
(D. 97-4, p. 132).
In December 2015, Maroney
wrote an email to the City Council President stating that “the
Mayor [was] bullying [him].” 34 (D. 97-4, p. 131). The City Council
President forwarded the email to the Mayor and Ward.
(D. 97-4, p.
Upon receiving the email, Ward spoke with the City Council
President about the requirement in the definitive plan that Ward
build the water booster station. 35
(D. 97-4, pp. 132-133).
Ward never suggested to the Mayor that there were steps that
Ward could take to try and delay the Crystal Springs project or
“to exert pressure on [Maroney] to address the [state court]
action,” according to Ward’s deposition testimony.
(D. 97-4, p.
Ward also did not talk to “the mayor about the city building
the [water] booster station using the funds from the bond.”
97-4, pp. 170-171).
Ward further testified that he never heard
the Mayor say to him or anyone else that Maroney should not get
The plaintiff cites the above in responding to a number of the defendants’
statement of material facts. (D. 104, ¶¶ 79-82, Responses).
35 For present purposes, the court accepts the plaintiff’s representation that
“a short time later an offer to mediate issued to Maroney’s counsel.” (D.
104, ¶¶ 79-82, Responses). Ward denied speaking to the Mayor about any such
mediation. (D. 97-4, p. 138). Relatedly, Ward described the Mayor as the
ultimate decision-maker for the offer to mediate. (D. 97-4, p. 138).
any permits until he dismissed the state court lawsuit. 36
4, p. 173).
As noted, the plaintiff asserts the following claims:
relations; and civil conspiracy.
The court addresses
the claims seriatim.
Substantive Due Process
In seeking summary judgment on the substantive due process
claim, the defendants first argue that the plaintiff did not suffer
a cognizable property interest.
Second, they assert that neither
Ward’s nor the Mayor’s conduct “shocks the conscience.”
As to the first argument, the plaintiff relies on the court’s
prior determination under Kennie v. Nat. Res. Dept. of Dennis, 889
N.E.2d 936, 943 (Mass. 2008), that “Massachusetts has recognized
a property interest where a plaintiff alleges that a state actor
improvements on his land.”
(D. 77, pp. 14-15) (D. 105, pp. 13-
The above is not a statement under Federal Rule of Evidence 801(a). See Mack
v. St. Mobile Aerospace Eng’g, Inc., 195 F. App’x 829, 842 (11th Cir. 2006)
(“Wayne’s testimony that Gennaro did not tell him . . company’s EEO Policy
required him to report harassment . . . is not hearsay” because it is not a
statement) (citing Federal Rule of Evidence 801(a)(1)) (emphasis added).
In response to the second argument, the plaintiff
identifies, inter alia, the following conscience-shocking conduct:
permits after he refused to dismiss the state court lawsuit; the
Mayor’s threats to Maroney and others that he would not receive
permits unless he dropped the state court lawsuit; Ward’s January
2016 decision to change to the EFI pumping system even though
Maroney was substantially complete with the design of the field
built station and “the City knew” Maroney would not have sufficient
time to build the water booster station by the November 1, 2016
deadline; 37 Ward’s “balk[ing] at allowing Maroney to conduct the
water tests”; 38 and Ward’s attendance at the October 2016 Planning
meeting, 39 and his opposition to extending the time to build the
water booster station.
(D. 105) (D. 104, ¶¶ 30, 57, 60-61, 70,
To succeed in establishing a substantive due process claim,
the plaintiff must “prove that [he] suffered the deprivation of an
Given the backdrop of the Tri-Partite Agreement expiring on November 1, 2016,
the plaintiff points to D’Aoust’s testimony that a redesign would take 59 weeks,
i.e., until February or March 2017. (D. 104-3, pp. 144-145).
See supra note 28.
Ward did attend the September 2016 meeting, but this fact does not alter
the thrust of the plaintiff’s argument.
established life, liberty, or property interest, and that such
deprivation occurred through governmental action that shocks the
Clark v. Boscher, 514 F.3d 107, 112 (1st Cir. 2008)
The defendants’ twofold argument challenges
Assuming the existence of a cognizable property
interest, the court turns to the latter requirement.
Substantive due process prevents “‘abuse of government power
that shocks the conscience,’ or ‘action that is legally irrational
in that it is not sufficiently keyed to any legitimate state
PFZ Props., Inc. v. Rodriguez, 928 F.2d 28, 31–32
(1st Cir. 1991) (citations omitted), overruled on other grounds by
San Gerónimo Caribe Project, Inc. v. Acevedo-Vilá, 687 F.3d 465
(1st Cir. 2012); Brockton Power LLC v. City of Brockton, 948 F.
Supp. 2d 48, 69 (D. Mass. 2013) (quoting PFZ, 928 F.2d at 31-32).
The First Circuit has “repeatedly held that the substantive due
process doctrine may not, in the ordinary course, be invoked to
challenge discretionary permitting or licensing determinations of
state or local decisionmakers, whether those decisions are right
Clark, 514 F.3d at 113 (emphasis added) (internal
conscience test, an ordinary, “run-of-the-mill land-use case . .
Id.; see Mongeau v. City of Marlborough, 492 F.3d
14, 18 (1st Cir. 2007) (recognizing “shocks-the-conscience test
context”). A land-use planning dispute, “at least when not tainted
with fundamental procedural irregularity, racial animus, or the
like[,] . . . does not implicate the Constitution.”
Env’t, Inc. v. Estabrook, 680 F.2d 822, 833 (1st Cir. 1982); see
Brockton, 948 F. Supp. 2d at 69 (denying motion to dismiss and
stating, in land-use context, “plaintiff must allege ‘fundamental
procedural irregularity, racial animus, or the like,’ or violation
of ‘a fundamental principle’”) 40 (quoting Clark, 514 F.3d at 113).
Whereas the First Circuit has acknowledged using “various
incantations” to describe the substantive due process standard,
Mongeau, 492 F.3d at 19; accord Thayre v. Town of Brookline, Civil
Action No. 20-cv-10510-DJC, 2021 WL 664042, at *6 (D. Mass. Feb.
19, 2021), the standard is undeniably “a high one.”
Ferruzzi, 22 F.3d 344, 350 (1st Cir. 1994) (citation omitted).
the context of land-use cases, the First Circuit has only “left
the door slightly ajar for federal relief in truly horrendous
Néstor Colon Medina & Sucesores, Inc. v. Custodio,
964 F.2d 32, 45 (1st Cir. 1992) (emphasis added); accord Licari,
22 F.3d at 350 (citation omitted).
The “fundamental procedural irregularity” identified in Brockton was an
“ongoing refusal of the defendants to even consider the plaintiffs’
submissions,” i.e., a “systemic denial of any pre-deprivation process at all
despite repeated reversals by the state courts.” Brockton, 948 F. Supp. 2d at
Circumstances that do not rise to this high level help to
clarify the boundaries of the standard.
For example, when state
procedures, such violations do not ordinarily rise to the level of
a constitutional deprivation.”
Mongeau, 492 F.3d at 17 (citations
“[E]ven abridgments of state law committed in bad faith
do not necessarily amount to unconstitutional deprivations of due
Chongris v. Bd. of Appeals of Town of Andover, 811 F.2d
36, 43 (1st Cir. 1987); accord Creative Env’t, 680 F.2d at 831833 (affirming allowance of summary judgment on substantive due
“distortion” of “statutory and regulatory scheme”); see Chiplin
Enter., Inc. v. City of Lebanon, 712 F.2d 1524, 1528 & n.6 (1st
Cir. 1983) (stating, in context of substantive due process claim,
administrative matters simply does not amount to a deprivation of
due process where the state courts are available to correct the
regulatory board does not transgress constitutional due process
requirements merely by making decisions ‘for erroneous reasons’ or
by making ‘demands which arguably exceed its authority under the
relevant state statutes.’”
Licari, 22 F.3d at 350 (citations
examples of conscience-shocking conduct the plaintiff identifies
For example, Ward’s March and April 2015 refusals to
additional permits” because of the lack of “work toward the water
booster station” (D. 104, ¶¶ 29-30) as well as Ward’s continued
refusals after the July 2015 lawsuit and the Mayor’s statements
are not conscience shocking.
This remains true even if Ward’s
refusals and denials were erroneous, contrary to the definitive
plan (which did not require such progress or set a deadline to
completing phase one of Front Nine Drive.
See Martone Place, LLC
v. City of Springfield, C.A. No. 16-cv-30170-MAP, 2017 WL 5889222,
at *16 (D. Mass. Nov. 29, 2017) (dismissing substantive due process
claim based, inter alia, on Springfield’s Department of Public
project and using authority unlawfully granted to him by another
city official, imposed multiple obstacles to issuance of building
permit); see also Creative Env’ts, 680 F.2d at 833 (affirming
rejection of substantive due process claim on summary judgment and
violate[d]” or “‘distort[ed]’ the state [subdivision] scheme under
Creative Env’ts, 680 F.2d at 826, 833-834, as “holding that city
planning board’s denial of the permits required to develop a
residential subdivision, allegedly premised on criteria that were
conscience”); Licari, 22 F.3d at 350 (decisions made for erroneous
reasons do not transgress substantive due process).
Ward’s January 2016 decision to change the design of the
pumping system likewise fails to support a substantive due process
design and construction of a pumping station to comply with the
authority to change the design.
Maroney’s failure to work on
completing the field-built design for the water booster station
between October 2013 and January 2016 underscores the legitimate
interest Ward had in changing the pumping system design.
a planning official’s violation of state law or administrative
procedures does not typically contravene substantive due process,
See supra note 14.
see Mongeau, 492 F.3d at 17 (citations omitted), even if committed
in bad faith, see Chongris, 811 F.2d at 43.
Ward’s January 2016
decision to change his prior decision to consider (or even accept)
egregious than a violation of state law committed in bad faith. 42
As such, the decision falls short of conscience-shocking conduct.
Likewise, Ward’s 2016 involvement in the water tests or Ward’s
July 2016 misinterpretation, if any, of the City’s building code
regarding the site plan is not conscience shocking.
22 F.3d at 350 (citations omitted); Thayre, 2021 WL 664042, at *7
(Defendant’s alleged violation of substantive due process “by
interpreting the [Zoning Bylaw] in a manner beyond the scope of
its authority, thereby committing ultra vires,” does not violate
substantive due process.).
Ward’s appearance at the October 2016 Planning Board meeting
and speaking out against an extension of the Tri-Partite Agreement
to allow Maroney to build the water booster station also was not
At the meeting, Ward explained that the
remaining Front Nine Drive lots lacked adequate water pressure as
determined by Wright-Pierce’s hydraulic analysis.
(D. 97-25, pp.
Ward’s expressed concern at the meeting was not baseless.
As such, his conduct is not conscience shocking even if Ward had
This court assumes, in the plaintiff’s favor, that Ward knew Maroney would
not be able to complete the redesign until February or March 2017, thus giving
rise to the possibility that he acted in bad faith.
not attended a Planning Board meeting before the fall of 2016.
See Najas Realty, LLC v. Seekonk Water Dist., 821 F.3d 134, 138139 (1st Cir. 2016) (noting that Water District’s Superintendent
spoke out against subdivision’s impact on water supply at Planning
Board meeting); id. at 145 (concluding that Water District’s
Superintendent’s concern that subdivision would harm town’s water
supply “does not . . . appear baseless” and “is hardly the . . .
stuff that makes a substantive due process claim”).
In all, Ward’s conduct considered in its entirety does not
shock the conscience.
Rather, it is similar to (or even less
egregious than) the conduct at issue in Clark, in which dismissed
plausibility standard of Federal Rule of Civil Procedure 12(b)(6).
See Clark, 514 F.3d at 110-113.
In Clark, the Westfield City Water
Department (“WD”) denied the developers’ municipal water service
request for a proposed residential subdivision because it “would
threaten the municipal water supply” even though the WD’s own
contractor determined the project “would benefit the entire city
with increased water pressure and flow.”
Clark, 514 F.3d at 110-
WD officials also advised the developers’ engineer that they
“did not intend to grant” the developers “municipal water service
because ‘the City did not want the project there.’”
Id. at 110.
Like the case at bar, the officials spoke out against the project
at a municipal planning board meeting.
Eventually, the City of
Westfield exercised its eminent domain powers and took a portion
of the property rendering the “development plans unfeasible.”
In sum, and per the foregoing, the substantive due process
claim fails against Ward on the merits.
It is therefore not
necessary to address his qualified immunity argument.
Casillas v. Camacho-Morales, 415 F.3d 127, 134 (1st Cir. 2005)
(failure of “constitutional claims obviates our need to address
the qualified immunity defense:
we have found no constitutional
The Mayor argues that he made the alleged statements to drop
the state court lawsuit in exchange for the permits to Maroney and
repeatedly asserts that “the Mayor is not the permit granting
authority” for the City.
The defendants further contend
that the statements had no impact on Ward’s decisions to continue
not approving water service applications and not signing-off on
attendance at the Planning Board’s fall 2016 meetings.
also seeks qualified immunity.
The plaintiff argues that the Mayor’s threats to Maroney and
others that he would never receive any permits unless he dropped
the state court lawsuit were conscience shocking, and that Maroney
as well as Deyermond viewed them as extortionate.
plaintiff additionally maintains that Ward shared the Mayor’s
motivation and/or acted at the Mayor’s direction, as evidenced by
their weekly meetings and the Mayor’s appointment of Ward to his
As a basis to show conscience-shocking
fundamental principle,’” namely, “the fundamental constitutional
principle that public officials cannot threaten” or deny benefits
because an individual uses “the courts to redress grievances,” a
principle “embedded in the First Amendment.”
(D. 105, pp. 13-14,
“[s]ubstantive due process is an inappropriate avenue of relief
when the governmental conduct at issue is covered by a specific
constitutional provision,” such as “the First Amendment.” 43
Moreover, this “rule depends only on whether a specific
constitutional provision addresses the type of conduct at issue.”
Id. at 34 (emphasis added).
“[I]t does not depend on a prediction
that the complaining party will be successful in pursuing a claim
The fact that the defendants did not develop this argument “does not prevent
[the court] from ruling on this basis . . . .”
ML-CFC 2007-6 Puerto Rico
Props., LLC v. BPP Retail Props., LLC, 951 F.3d 41, 46 (1st Cir. 2020)
(citations omitted); see id. (“When an issue or claim is properly before the
court, the court is not limited to the particular legal theories advanced by
the parties, but rather retains the independent power to identify and apply the
proper construction of governing law.” (quoting Kamen v. Kemper Fin. Servs.,
Inc., 500 U.S. 90, 99 (1991))).
under the applicable provision, nor does it depend on a conclusion
Rodriguez-Deynes v. Moreno-Alonso, Civ. No. 16-2986 (PG), 2019 WL
1354030, at *9 (D.P.R. Mar. 2, 2019) (“[S]uccess or failure of
plaintiff’s First Amendment retaliation claim is immaterial to the
inapplicability of a substantive due process claim.”). 44
Second, the defendants’ settlement argument, at least with
Maroney, is well taken.
See Raskiewicz v. Town of New Boston, 754
F.2d 38, 41 (1st Cir. 1985) (upholding decision by Board of
Selectmen, which had the authority to issue gravel permit, to
condition permit on dismissal of developer’s state court lawsuit).
In Raskewicz, the condition placed on the gravel permit to dismiss
the lawsuit arose after the state court continued a hearing and
ordered the plaintiff to submit a proposal to the defendants for
the gravel removal operation and further ordered the defendants to
respond with any concerns or conditions.
responded with the condition.
Viewing the circumstances as
settlement-related, the First Circuit found “no impropriety in the
unacceptable, the requirement that he drop his state court suit,
In that regard, the denial of amendment to add a First Amendment retaliation
claim for separate reasons has no bearing on the viability of the substantive
due process claim. Furthermore, it does not warrant allowing the substantive
due process to proceed.
because as the district court noted, ‘[e]ven the shabbiest of
lawyering practice requires that in settling a suit you bargain to
have any pending actions dropped.’” 45
district court’s decision).
Id. at 45 n.6 (quoting
Relatedly, one of the Selectman in
Raskiewicz stated to the plaintiff and separately to another
individual that the plaintiff “would never be given a gravel
Id. at 40 & n.1.
similarly concerned the settlement of the state court action.
reasonable juror could conclude otherwise. The Mayor asked Maroney
why he had not brought his attorney and the two discussed how “to
resolve this problem.”
(D. 104, ¶ 47).
During the meeting, the
Mayor indicated that Maroney owed the City $250,000 for illegally
building the houses without permits, Maroney disagreed, and the
Mayor stated to Maroney that he could dismiss the lawsuit, have
all the permits he wanted, and “we’ll make the fines go away.”
(D. 97-2, p. 123).
As was the case in Raskiewicz, the Mayor’s
threat or extortion-like statement to drop the lawsuit to receive
To add a caveat, it is unclear whether the section 1983 due process claim in
Raskiewicz, which primarily involved allegations that the Board of Selectman
was biased but also concerned the imposition of the condition, was a procedural
and/or substantive due process claim. The decision does not distinguish between
procedural and substantive due process. Rather, it refers to a “due process
claim.” Id. at 44-45. Nevertheless, the court’s finding “no impropriety in
the” condition on the permit to drop the lawsuit was not addressing the adequacy
of administrative remedies, which would be suggestive of a procedural due
process claim or the bias of the decisionmakers, see id. at 44-45.
event, the court’s finding “no impropriety” and, thus, no due process violation,
concerning conduct analogous to the case at bar serves as clearly established
law to warrant qualified immunity for the Mayor, as discussed below.
the permits amounted to bargaining with Maroney to have him dismiss
The Mayor’s expressed desire “to go to meditation”
at a meeting two days later along with Maroney emailing the
proposed agreement thereafter reinforces the settlement construct.
(D. 104, ¶¶ 49, 51).
The Mayor’s two other purported threats to allegedly extort
Maroney to drop the lawsuit occurred shortly after Maroney filed
the state court lawsuit and before he met with the Mayor.
a reasonable jury could consider these statements as arising
outside the settlement context.
Nevertheless, the First Circuit
has only suggested the possibility that bribing or threatening the
permitting authority “could constitute a substantive due process
Mongeau, 492 F.3d at 19-20 (“In Néstor Colón, we
suggested that it was possible that bribery or threats could
constitute a substantive due process violation.”); Néstor, 964
F.2d at 47 (facts did not indicate Puerto Rico Planning Board
“officials were bribed or threatened” and declining to consider
“in what circumstances such conduct might violate due process”); 46
Collier v. Town of Harvard, No. Civ. A. 95–11652–DPW, 1997 WL
33781338, at *5 (D. Mass. Mar. 28, 1997) (finding this language in
Néstor “suggests the First Circuit would be willing to permit,
The permitting authority in Néstor was the Puerto Rico Planning Board
process claims to go forward”).
In addition, the suggestion in Néstor that threats could
constitute a violation of substantive due process pertained to
threats against “PRPB officials.”
Néstor, 964 F.2d at 47.
the PRPB officials, the Mayor was not a member of the Planning
Board, and he did not have permit-granting authority.
applications and the redesigned EFI water pump system. 47
It is true that the Mayor met with Ward on a weekly basis
between 2014 and 2016.
It is also true that the Mayor was
interested in the completion of the water booster station, and he
appointed Ward to his position.
The subject of meetings during
the 2014 to 2016 time-period, however, did not revolve around
Rather, as previously noted, when Ward and the
Mayor had not spoken about the development “in quite a while,”
Ward would merely provide a “quick update.”
(D. 97-4, p. 13).
Similarly, “if there was something going on or something different
happening” at the development, Ward would provide “a brief update.”
(D. 97-4, p. 13).
Further, Ward did not speak with the Mayor
before the March 2015 decision to not approve more water service
Tellingly, after the lawsuit’s filing and the
See supra note 14.
Mayor’s August statements, Ward acted consistently with his prior
Based on the entire record, including the December 2015
email that led to the mediation offer as well as the water tests
and all the other evidence the plaintiff identifies, a reasonable
juror could not find that Ward was following the Mayor’s directives
in changing to the EFI design in January 2016 and opposing the
extension of time to build the water booster station during the
September and October Planning Board meetings. 48
Third, viewed against the high standard for “federal relief
reasonable jury could only conclude that the Mayor’s conduct falls
short of the conscience-shocking standard.
In sum, and per the
foregoing, the substantive due process claim against the Mayor is
subject to summary judgment on the merits.
Although the analysis
could end here, the court addresses the Mayor’s qualified immunity
in the interest of thoroughness.
The defendants argue that the Mayor is entitled to qualified
immunity because of the absence of a violation of a constitutional
right and because any such constitutional right was not clearly
Separately, the same reasoning and facts, along with the record as a whole,
foreclose a genuinely disputed fact that Ward: (1) gave substantial assistance
to the Mayor with respect to the civil conspiracy claim; and/or (2) acted in
concert with or pursuant to a common design or an agreement with the Mayor as
to this claim.
established. (D. 96, pp. 13-16). In addressing qualified immunity
on the Mayor’s substantive due process claim, the plaintiff’s brief
argument reads as follows:
[T]he substantive due process law regarding “shocking the
actions” was established in this Circuit well before the
conduct occurred here.
Attempts to interfere with
prohibited and offensive, also barring qualified immunity
from applying to the claim under Count I.
(D. 105, p. 16).
The qualified immunity doctrine “shields officers from civil
liability so long as their conduct ‘does not violate clearly
reasonable person would have known.’”
142 S. Ct. 9, 11 (2021).
City of Tahlequah v. Bond,
Under a “two-prong framework, courts ask
(1) whether the defendant violated the plaintiff’s constitutional
rights and (2) whether the right at issue was ‘clearly established’
at the time of the alleged violation.”
Swartz v. Sylvester, 53
F.4th 693, 698 (1st Cir. 2022) (citation omitted).
may entitle an official to qualified immunity.
internal brackets omitted).
Id. (citation and
Here, the court relies on the second
“Clearly established means that, at the time of” the conduct
at issue, “the law was sufficiently clear that every reasonable
official would understand that what he is doing is unlawful.”
Castagna v. Jean, 2 F.4th 9, 10 (1st Cir. 2021) (quoting District
of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)) (emphasis added);
accord French v. Merrill, 15 F.4th 116, 126 (1st Cir. 2021)
(quoting Wesby, 138 S. Ct. at 589).
Although “a case directly on
point” is not required, the “existing precedent must have placed
the statutory or constitutional question beyond debate.”
Pauly, 137 S. Ct. 548, 551 (2017) (per curiam).
The clearly established prong has two subparts.
v. Lynch, 847 F.3d 71, 75 (1st Cir. 2017).
First, “the plaintiff
must ‘identify either controlling authority or a consensus of
persuasive authority sufficient to put an officer on notice that
his conduct fell short of the constitutional norm.’” Est. of Rahim
by Rahim v. Doe, 51 F.4th 402, 410 (1st Cir. 2022) (citation
omitted); Alfano, 847 F.3d at 75 (“[F]irst sub-part requires the
‘consensus of cases of persuasive authority’ sufficient to send a
clear signal to a reasonable official that certain conduct falls
short of the constitutional norm.”) (citations omitted); accord
Punsky v. City of Portland, 54 F.4th 62, 66 (1st Cir. 2022) (Under
first subpart, “a ‘clearly established’ right is one that is
‘sufficiently clear’ such that ‘every reasonable official would
have understood that what he is doing violates that right.’”)
(citations omitted); Justiniano v. Walker, 986 F.3d 11, 26 (1st
Cir. 2021) (framing first subpart as “‘whether the right was
The plaintiff fails under the first subpart
because he does identify controlling authority or a consensus of
persuasive authority that would send a clear signal to a reasonable
official that certain conduct violates the substantive due process
reasonable officer would have known that his conduct violated the
Est. of Rahim by Rahim, 51 F.4th at 410 (citation omitted);
accord Justiniano, 986 F.3d at 26 (depicting second subpart as
understand that the challenged conduct violated that established
The plaintiff’s burden to show “that the law is clearly
established” is “a heavy” one.
Est. of Rahim by Rahim, 51 F.4th
at 410 (citation omitted).
Notably, “[t]o be clearly established, a legal principle must
have a sufficiently clear foundation in then-existing precedent.”
Wesby, 138 S.Ct. at 589–90.
“The rule must be ‘settled law,’
which, as indicated above, “means it is dictated by ‘controlling
Id. (citations omitted).
Significantly, “[i]t is
not enough that a rule be suggested by then-existing precedent;
the rule’s contours must be so well defined that it is ‘clear to
a reasonable officer that his conduct was unlawful in the situation
he confronted.’” City of Tahlequah, 142 S.Ct. at 9 (quoting Wesby,
138 S.Ct. at 590) (emphasis added). Here, as previously explained,
process claims, namely, Néstor, 964 F.2d at 47, only “suggested
that it was possible that bribery or threats could constitute a
substantive due process violation.”
Mongeau, 492 F.3d at 19-20
(addressing Néstor, 964 F.2d at 47) (emphasis added); see Néstor,
964 F.2d at 47 (declining to consider “[w]hether and in what
process” because record merely indicated “politicians participated
in demonstrations . . . and wrote letters” opposing project).
Coupled with the precedent in Raskiewicz, 754 F.2d at 41, 45 &
n.6, which affirmed summary judgment on the due process challenge
to the gravel permit conditioned on dismissing the state court
lawsuit against the backdrop of settlement negotiations, it would
not be clear to a reasonable official in the Mayor’s shoes “‘that
his conduct was unlawful . . . .’”
City of Tahlequah, 142 S. Ct.
at 11 (quoting Wesby, 138 S. Ct. at 590); see Justiniano, 986 F.3d
defendant’s shoes would have understood that he was violating it”)
Specifically, it would not be clear to a
established substantive due process rule in stating that Maroney
needed to drop the lawsuit to get the requested permits. Likewise,
assuming dubitante the Mayor somehow directed or even materially
influenced Ward to change the pumping system design or oppose the
extension of the Tri-Partite Agreement in 2016, it would not be
clear to a reasonable official, similarly situated, that his
substantive due process right.
Per the foregoing, the Mayor is also entitled to qualified
Summary judgment on the substantive due process claim
therefore is appropriate. 49
The dismissal of the anchoring federal claim raises the issue of whether to
retain jurisdiction over the state law claims. See 28 U.S.C. § 1367(c)(3).
“Federal courts may retain jurisdiction in appropriate cases but, before doing
so, must consider ‘the interests of fairness, judicial economy, convenience,
and comity,’ the last of which is ‘a particularly important concern in these
Lambert v. Fiorentini, 949 F.3d 22, 29 (1st Cir. 2020) (citation
“[I]n the usual case,” the balance of these factors “will point
toward declining to exercise jurisdiction over the remaining state-law claims.”
Wilber v. Curtis, 872 F.3d 15, 23 (1st Cir. 2017) (citation omitted). The MCRA
and section 1983 claims, however, are coextensive, as discussed below, and raise
overlapping issues of substantive due process. Hence, the MCRA claim does not
present “substantial question[s] of state law.”
Id. (finding no abuse of
discretion in district court exercising supplemental jurisdiction over MCRA
claim after dismissal of section 1983 claim). Fairness as well as judicial
economy and convenience also warrant retaining jurisdiction over the remaining
state law claims. First, the court’s disposition of the remaining state law
claims “will materially shorten the time it will take to resolve the parties’
Desjardins v. Willard, 777 F.3d 43, 45 (1st Cir. 2015) (citing
Camelio v. Am. Fed’n, 137 F.3d 666, 672 (1st Cir. 1998)). The court is familiar
with the facts and issues in this case, having previously issued two opinions
(D. 52, 77), and the parties have a firm trial date in one month. Second, the
claims do not raise novel, complex, or “knotty and unresolved question[s] of
state law.” Lawless v. Steward Health Care Sys., LLC, 894 F.3d 9, 20 (1st Cir.
2018). Third, the case is not in its early stages, which would counsel in favor
of dismissal. See Lambert, 949 F.3d at 29. Rather, it is more than six years
old with a trial scheduled in June. The balance of factors therefore weighs in
favor of retaining supplemental jurisdiction over the three state law claims.
“To state a claim under the MCRA, a plaintiff must show that
(1) his exercise or enjoyment of rights secured by the constitution
Massachusetts (2) has been interfered with, or attempted to be
interference was by threats, intimidation or coercion.”
Moses, No. 20-cv-11479-LTS, 2022 WL 1272215, at *2 (D. Mass. Feb.
14, 2022) (quoting Amirault v. City of Malden, 241 F. Supp. 3d
288, 304 (D. Mass. 2017)).
In seeking summary judgment on the
MCRA claim, the defendants argue that “‘the MCRA and [section]
guarantees,” and the MCRA claim therefore “fails for the same
reason” the section 1983 substantive due process claim fails.
96, p. 16).
The plaintiff argues that economic coercion provides a basis
to impose liability against the Mayor.
(D. 105, pp. 16-17).
plaintiff argues that that the factual dispute warrants denying
summary judgment on the MCRA claim.
(D. 105, pp. 5-6, 16-17).
existence of a right secured by ‘the Constitution or laws of either
the United States or of the Commonwealth.’”
K. Hovnanian at
Taunton, Inc. v. City of Taunton, 642 N.E.2d 1044, 1048 (Mass.
App. Ct. 1994) (quoting Bally v. Ne. Univ., 532 N.E.2d 49, 51
A “plaintiffs’ right to use and enjoy their
property is constitutionally secured” by “the Fourteenth Amendment
to the United States Constitution.”
Kennie, 889 N.E.2d at 941.
In the case at bar, both the section 1983 substantive due process
and the MCRA claims allege that the defendants deprived Maroney of
the right “to own and develop [his] property,” which is secured by
the United States Constitution.
(D. 51, ¶¶ 57-58, 68-69).
The defendants’ argument that the MCRA due process claim is
coextensive with the section 1983 due process claim is well taken.
“The MCRA is the state ‘counterpart’ to Section 1983 and, in
general, is coextensive therewith.” 50
Bruce v. Worcester Reg’l
Transit Auth., CIV. ACT. NO. 18-40037-TSH, 2023 WL 1822786, at *7
(D. Mass. Feb. 8, 2023). Regardless of the two differences between
the statutes, under both the MCRA and section 1983, a plaintiff
“must demonstrate that [the defendants] ‘caused [the plaintiff] to
be deprived of his constitutional rights.”
Morgan v. Town of
Lexington, 138 F. Supp. 3d 82, 91 (D. Mass. 2015).
the court concludes the plaintiff was not denied substantive due
process on the merits under section 1983, as previously discussed,
The “two primary differences” between the statutes is that under the MCRA
“(1) the offensive conduct need not be attributable to a state actor; and (2)
to succeed on [a] MCRA claim, a plaintiff must also show that the violation of
rights occurred ‘by threats, intimidation or coercion.’”
Bruce, 2023 WL
1822786, at *7 (quoting Bally, 532 N.E.2d at 52) (additional citation omitted).
the defendants are entitled to summary judgment on the MCRA claim
plaintiff] was not denied substantive due process [under section
1983], discussed above, the Defendants are entitled to summary
judgment on [the MCRA claim] as well.”); accord Stuart v. City of
Gloucester, Civil Action No. 18-cv-11877-ADB, 2019 WL 3082830, at
coextensive with [section 1983],’” albeit “with some differences
in . . . required elements,” and dismissing MCRA due process claim,
“concerning the Section 1983 claim”) (citation omitted); see also
Mondol v. City of Somerville, Civil Action No. 15-cv-13697-ADB,
constitutional violations alleged under § 1983 fail, an MCRA claim
predicated on those same alleged violations must also fail.”). 51
The defendants therefore are entitled to summary judgment on the
Interference with Contractual or Economic Relations Claim
An “[i]ntentional interference with contractual or business
relations” claim requires the plaintiff to “show (1) the existence
The court discerns no difference between the right to substantive due process
under federal and state law in the area of land-use regulation that is material
to the section 1983 versus the MCRA due process claims in this case. In any
event, the plaintiff does not argue that differences exist and therefore waives
the issue. See Dusel, 52 F.4th at 513-514.
economic benefit; (2) the defendants’ knowledge of the contract or
interference with the contract or business relationship for an
improper purpose or by improper means; and (4) damages.”
Dev. Corp. v. City of Taunton, 668 N.E.2d 333, 338 (Mass. 1996).
With respect to the third element, the operative complaint alleges
that the defendants interfered with Maroney’s business dealings
through improper means by depriving him of the right to develop
his property “free from threats, intimidation and coercion.”
51, ¶ 74).
The defendants argue there is no evidence “that either Ward
fundamentally, though, they argue they are entitled to summary
judgment because a public official is entitled to common-law
immunity when he exercises discretion, acts in good faith, without
malice, and without corruption.
In relation to the this
latter argument, the defendants submit that Ward and the Mayor did
not interfere with Maroney “developing his property in bad faith
or with malice.”
The plaintiff argues in opposition that a reasonable jury
could infer that Ward and the Mayor acted in bad faith or with
Specifically, they retaliated against the plaintiff for
challenging their interpretations of the subdivision plan and for
exercising his First Amendment rights by filing the state court
lawsuit, according to the plaintiff.
The law regarding common-law immunity is well settled.
liability when acting within his discretion as a public official
and in good faith.
Summers v. City of Fitchburg, Case No: 15-cv-
13358-DJC, 2016 WL 4926415, at *5 (D. Mass. Sept. 15, 2016) (citing
Najas, 821 F.3d at 145-146); Nelson v. Salem State Coll., 845
N.E.2d 338, 349 (Mass. 2006) (immunity shields liability when
“conduct was within their discretion as public officials, and they
were acting in good faith”).
Specifically, under “Massachusetts
discretion, is not liable for negligence or other error in the
making of an official decision if the official acted in good faith,
without malice, and without corruption.’”
Najas, 821 F.3d at 146
(quoting Nelson, 845 N.E.2d at 348); South Boston Betterment Trust
Corp. v. Boston Redevelopment Auth., 777 N.E.2d 812, 820 (Mass.
2002) (“public official like the mayor would not have been liable
‘for negligence or other error in the making of [an official]
decision’ if the official acted “in good faith, without malice and
Furthermore, there is a “presumption in
favor of the honesty and sufficiency of the motives actuating
Najas, 821 F.3d at 146 (citation omitted).
“discretionary decisions within the scope of” his official duties
and acts in good faith.
Nelson, 845 N.E.2d at 349.
when an official acts “in bad faith or with malice,”
Id.; accord Najas, 821 F.3d at 146 (dismissing
Superintendent because complaint failed to plausibly show “bad
faith or malice, as opposed to a concern for the Town’s residents’
general welfare, motivated [Superintendent’s]
Bache v. Town of Boxborough, Civil Action No. 21-11187-FDS, 2022
WL 392819, at *5 (D. Mass. Feb. 9, 2022), aff’d, 2022 WL 16551384
(1st Cir. Oct. 31, 2022) (dismissing claim because no allegations
“Gath acted outside of his official capacity” as police officer
enforcing court order or “in bad faith or with malice”).
Ward’s conduct parallels the conduct of the Water District
Superintendent (“Superintendent”) in Najas.
See Najas, 821 F.3d
The First Circuit in Najas found that no bad faith or
malice motivated the Superintendent’s behavior, which included
attending Planning Board meetings and voicing opposition to the
project based on the “project’s impact on the public water supply.”
opposition to Crystal Springs at Planning Board meetings in the
fall of 2016 does not evidence sufficient bad faith or malice to
avoid summary judgment.
Further, against the backdrop of the delays in designing the
pumping system, the failure to submit a final field-built design,
and the increased elevations of the Front Nine Drive lots, Ward
acted within his discretion as the deputy director of the Water
applications or sign off on additional permits after March and
Throughout, Ward’s concern about adequate water
pressure and having Maroney work toward completing the water
booster station to secure adequate water pressure was by and large
See Najas, 821 F.3d at 142 (finding Superintendent’s
concern that project would contaminate water supply genuinely held
and that “he continually voiced the same worry”); Swanset, 668
N.E.2d at 339 (noting “council members, acting individually, would
likely have immunity” regarding interference with contractual or
business relations claims “because, in considering the permit
applications, they were making discretionary decisions within the
scope of their official duties”).
Here, no reasonable jury could
find that Ward acted in bad faith and with malice.
It was also within Ward’s discretion and official duties to
change the design of the pumping station in January 2016.
Haverhill Subdivision Rules, § V.5.2.5 (“Pumping stations shall be
designed and constructed in accordance with the Water Department’s
requirements.”) (emphasis added); (D. 97-3) (setting out City’s
service, as defined by the City and discussed herewithin”).
again, the presumption of honesty of Ward’s motives in actions
residents, particularly those in the higher elevated Front Nine
Drive lots, applies.
For reasons stated previously, a reasonable
jury could not find that Ward was following a directive from the
In sum, the presumption that Ward’s motives and concerns for
the water supply and pressure were honest and sufficient applies.
The actions about which Maroney complains were within Ward’s
discretion as a public official. A reasonable jury could not infer
that Ward acted in bad faith or with malice.
Accordingly, Ward is
shielded from liability under common-law immunity.
845 N.E.2d at 349 (Because officials “acted in good faith, engaging
in activity that was within their discretion, they are shielded
from liability by . . . common-law immunity.”).
The Mayor’s immunity, if any, arises in the factual context
of the statements he made shortly after Maroney filed the state
court lawsuit, and turns upon whether a reasonable jury could find
the Mayor acted in bad faith or with malice.
Bad faith is more than “simply bad judgment.”
Beacon Participations, 8 N.E.2d 895, 907 (Mass. 1937).
engenders a conscience sense of wrongdoing and “means a breach of
a known duty through some motive of interest or ill will.”
accord Brothers v. Town of Millbury, Civil Action No. 14-10122TSH, 2014 WL 4102436, at *11 (D. Mass. Aug. 14, 2014) (quoting
Spiegel, 8 N.E.2d at 907).
Malice “means a wrongful act, done
intentionally, without just cause or excuse.”
Brothers, 2014 WL
Foxborough, Case No. 19-cv-11196-DJC, 2020 WL 1027780, at *9 (D.
Mass. Mar. 3, 2020); see also Cachopa v. Town of Stoughton, 893
N.E.2d 407, 414 (Mass. App. Ct. 2008) (noting that showing public
official “acted with actual malice would . . . defeat” official’s
immunity); see generally Rose v. Dennehy, Civil Action No. 08–
10050–NMG, 2010 WL 3703229, at *9-10 (D. Mass. Sept. 15, 2010)
(finding evidence to infer corrections “officers acted in bad faith
officer”) acted in retaliation against another police officer
course taught by the defendant officer and complained to school
officials about the manner in which he conducted the class.
In retaliation for complaining to school officials, the
defendant officer began investigating the complainant.
See id. at
*1, 11 (finding allegations defendant officer was “fueled by
personal animosity and retaliatory motives” plausible).
the “hasty investigation,” the defendant officer destroyed records
of purportedly exonerating interviews.
In addition to other
conduct, the court rejected common law immunity for the defendant
officer regarding state law claims, including an interference with
advantageous relations claim.
Id. at *12.
Here, a reasonable jury could infer that the Mayor acted in
retaliation for the plaintiff filing the state court action without
justification in attempting to intimidate Maroney to drop the
lawsuit to obtain the permits to develop the remaining lots. 52
be sure, a jury could also infer the Mayor acted in a benign manner
discretion and his duties in deciding whether to mediate disputes.
The retaliatory response at issue in Najas involved imposing costly design
and construction requirements and opposing the project with purportedly baseless
statements about the project increasing nitrate levels in the Town’s water
supply. Najas, 821 F.3d at 142 & n.10. The court found that concern for the
Town’s residents, rather than bad faith or malice, motivated the Water
Department’s Superintendent’s behavior. Id. at 146. As such, the circumstances
in Najas are factually distinct from the Mayor’s comments to drop the lawsuit
to get the permits in retaliation for filing the lawsuit weeks earlier. Here,
the Mayor, faced with Crystal Springs residents and prospective residents
concerned about the work stoppage, proceeded to condition any progress on
Maroney dropping the lawsuit.
(D. 97-4, p. 138).
Viewing the record in the plaintiff’s favor,
however, genuinely disputed facts preclude the Mayor’s entitlement
to common-law immunity on summary judgment.
Per the foregoing, summary judgment is not warranted on the
interference with contractual or economic relations claim against
appropriate for Ward.
Massachusetts recognizes a vicarious liability form of civil
conspiracy deriving “from ‘concerted action,’ whereby liability is
imposed on one individual for the tort of another.”
Hill, 689 N.E.2d 833, 836 (Mass. App. Ct. 1998); accord Thomas v.
Harrington, 909 F.3d 483, 490 (1st Cir. 2018) (citing Kurker, 689
N.E.2d at 836).
Liability requires “an underlying tort and the
conspiracy consists of” either “agreeing to, or assisting in, the
Thomas, 909 F.3d at 490 (quoting Taylor, 576
Regarding the conspiracy, Massachusetts recognizes “two theories
of liability” under the Restatement (Second) of Torts § 876 (1979):
“concert of action” and “substantial assistance.”
F.3d at 35 (citations omitted).
In seeking summary judgment, the defendants argue that Ward
and the Mayor did not act in concert with each other to further a
common design or agreement and did not have a conspiratorial
(D. 96, p. 19).
Further, in the context of addressing
conspiracy (D. 51, ¶¶ 81-82), the defendants submit that Ward did
not know about the Mayor’s statements and the Mayor never directed
Ward not to issue permits until Maroney dismissed the lawsuit. 53
(D. 96, p. 18).
The defendants also argue that Ward’s decision to
continue to withhold permits had nothing to do with any statements
the Mayor made.
(D. 96) (D. 110).
The plaintiff argues there is ample evidence from which to
infer that Ward and the Mayor worked together on a common plan to
deny Maroney permits and that Ward carried out the plan “by
refusing to issue permits.”
(D. 105, pp. 19-20) (D. 51, ¶¶ 81-
The defendants also discussed “potential strategies for
getting Maroney to drop his lawsuit,” according to the plaintiff.
(D. 105, p. 20).
As an example of another joint effort which thus
infers the foregoing joint efforts to effectuate the common plan,
Although not crystal clear, the plaintiff appears to maintain that the
defendants do not address the substantial assistance theory. (D. 105, pp. 1920).
To the contrary, the defendants quote the operative complaint’s
substantial assistance language (D. 51, ¶¶ 81-82), which parallels the
substantial assistance language in Kurker, 689 N.E.2d at 837 (“Key to this cause
of action is a defendant’s substantial assistance, with the knowledge that such
assistance is contributing to a common tortious plan,” including “tak[ing]
affirmative steps to . . . achievement of the result.”). (D. 96, p. 18). The
fact that the defendants set out this paragraph under the heading of a
“Conspiracy Claim Under 42 U.S.C. §§ 1985 and 1986” does not mean they do not
make the argument regarding the only conspiracy claim pled in the operative
complaint, namely, one under state common law. As stated in a 2017 Memorandum
and Order, the predecessor complaint (D. 27, ¶¶ 81-82) removed the references
to sections 1985 and 1986 in the original complaint (D. 1, ¶¶ 81-82) and raises
only a common law conspiracy claim. (D. 52, p. 26). The conspiracy claims in
the operative complaint and the predecessor complaints are identical. (D. 27,
¶¶ 81-82) (D. 51, ¶¶ 81-82).
the plaintiff identifies Maroney’s December 2015 email to the City
Council stating that the Mayor was bullying him, which led to the
mediation offer a short time thereafter.
reasons “that the Mayor must have decided to offer” mediation
because he is the decision-maker in this regard (D. 97-4, p. 138)
and Ward must have “simply carried out that direction.”
To establish “a ‘concerted action’ conspiracy, a plaintiff
must show that defendants either (1) acted ‘in concert with or
pursuant to a common design with’ the tortfeasor or (2) ‘gave
substantial assistance to’ the tortfeasor’s conduct.”
F.3d at 490 (citing Kyte v. Philip Morris Inc., 556 N.E.2d 1025,
1027 (Mass. 1990)) (additional citation omitted).
design’ theory” requires the plaintiff to “show ‘first, a common
design or an agreement . . . between two or more persons to do a
wrongful act and, second, proof of some tortious act in furtherance
of the agreement.’”
Id. (citation omitted).
The agreement need
not be express, and a jury may properly draw “[a]n inference of an
implied agreement . . . from the conduct of two or more parties.”
Id. (quoting Kyte, 556 N.E.2d at 1027).
Here, the evidence identified by the plaintiff, as the summary
judgment target, is deficient as to both the Mayor and Ward.
Whether viewing the underlying tortious act as either to wrongfully
deny Maroney permits or to have Maroney drop the lawsuit seeking
to redress his grievances with the City, see generally id. at 490,
492 n.13 (common design requires underlying wrongful act which,
although not explicitly identified, “only plausible candidate” was
Thomas’ wrongful termination), the result is the same.
respect to both, the previously discussed reasoning which defeats
forecloses a finding that Ward acted in concert with the Mayor. 54
Further, no reasonable jury could find that Ward acted pursuant to
a common design with the Mayor to deny permits in general or to
deny permits unless and until Maroney dismissed the lawsuit.
that vein, a reasonable jury could not infer an implied agreement
between Ward and the Mayor to deny permits in general or to deny
permits unless Maroney dismissed the lawsuit.
See id. at 490-491
(affirming allowance of summary judgment on civil conspiracy claim
and explaining common design theory fails to infer agreement to
investigation’s progress leading to termination was insufficient).
With Ward not acting in concert with the Mayor or pursuant to a
common design or agreement with the Mayor, the common design theory
is not a viable avenue of relief.
Turning to substantial assistance in the underlying tort,
liability focuses on whether Ward rendered substantial assistance
See supra note 48 and accompanying text.
to the Mayor.
To succeed under this theory, Ward “must give
‘substantial assistance or encouragement’ to a party engaging in
tortious conduct,” namely, the Mayor.
Taylor, 576 F.3d at 35
to this cause of action is a defendant’s substantial assistance,
with the knowledge that such assistance is contributing to a common
Kurker, 689 N.E.2d at 837.
The theory applies
“where the participants know of the plan and its purpose and take
affirmative steps to encourage the achievement of the result.”
Id. (citations omitted).
In that vein, the record evidences that Ward had very little
contact with the Mayor after Maroney filed the state court lawsuit.
(D. 97-4, p. 132).
Ward also denies that the Mayor ever suggested
or told him to take steps to pressure Maroney to resolve the state
(D. 97-4, p. 141).
The contacts or connections
the plaintiff identifies 55 do not allow a jury to reasonably infer
that Ward rendered assistance, let alone substantial assistance,
to the Mayor to deny permits in general or to deny permits unless
Maroney dismissed the lawsuit.
Ward’s conduct remained largely
consistent in requiring Maroney to progress in building the water
booster station, especially for the higher elevated lots.
Maroney filed the July 2015 lawsuit, Ward continued not approving
water service applications.
He also continued not signing-off on
See supra note 48 and accompanying text.
any site plan applications, which would have allowed Maroney to
obtain building permits and proceed with construction.
pp. 117-118) (D. 104, ¶¶ 30-31, 86).
In all, Ward’s conduct showed
little, if any, alteration before and after the lawsuit and the
Viewed against this backdrop, a reasonable
jury could not find substantial assistance.
In short, the civil conspiracy claim therefore fails to
survive summary judgment.
In accordance with the foregoing discussion, the summary
judgment motion (D. 95) is ALLOWED in part and DENIED in part.
particular, the motion is allowed as to Ward for all claims and
contractual or economic relations claim, which is denied.
/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.
May 18, 2023
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