Maroney et al v. Fiorentini et al

Filing 52

Magistrate Judge Donald L. Cabell: ORDER entered. MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS (Dkt. #24) AND PLAINTIFFS' MOTION TO AMEND (Dkt. #27). (Russo, Noreen)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

MICHAEL J. MARONEY, as TRUSTEE
OF PREMIERE REALTY TRUST and
MARONEY CONSTRUCTION
COMPANY INC.,

No. 16-CV-11575-DLC

Plaintiffs,
v.
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, WATER/WASTEWATER
DIVISION, and THE CITY OF
HAVERHILL,
Defendants.

MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION FOR JUDGMENT ON THE
PLEADINGS (Dkt. #24) AND PLAINTIFFS’ MOTION TO AMEND (Dkt. #27)

CABELL, U.S.M.J.
This case arises from developer Michael Maroney’s efforts to
complete a subdivision of homes in the city of Haverhill (“the
City”).

Having been denied certain permits, he brought suit

through his business entities against the City and two of its
officials, for violations of 42 U.S.C. § 1983 and state law, based
on

an

“unlawful

scheme

to

deprive

[the]

Plaintiffs

of

their

property rights and constitutional rights to equal protection and
due process.”

(Dkt. No. 1, ¶ 1).

on the pleadings.

The defendants move for judgment

(Dkt. No. 24).

The plaintiffs oppose the motion

and in the alternative move for leave to amend the complaint to
assert additional facts.

(Dkt. Nos. 26, 27).

For the reasons

that follow, the motion for judgment on the pleadings is ALLOWED
IN PART and DENIED IN PART.

The motion for leave to amend is

ALLOWED. 1
I.

BACKGROUND
The facts are taken from the Amended Complaint, Doc. No. 27

(“Compl.” ¶ __), and certain documents submitted by the defendants
in connection with their motion.

See Dkt. Nos. 25-1, 25-2. 2

This

does not constitute a finding by the court that any or all of the
alleged facts are true.

At this stage of the proceedings, the law

requires the court to accept the plaintiffs’ allegations as true

1

Although the defendants opposed the motion to amend (Dkt. No. 29), they
indicated at the hearing on the motions that they did not oppose the court’s
consideration of their motion based on the facts alleged in the proposed
amended complaint. Given that representation, interests of efficiency and
common sense impel the court to allow the motion to amend; the court
accordingly considers the facts as alleged in the proposed amended complaint.
(Dkt. No. 27, Exh. B).
2

The two documents consist of (1) a letter dated May 21, 2009, from the
engineering firm that reviewed the impact of the anticipated project on the
City’s water distribution system to the City’s Water Department, and (2) a
notice from the City’s Planning Board dated September 15, 2009, approving the
plaintiffs’ application for the project at issue. No party disputes the
authenticity of the documents or otherwise objects to their submission.
Moreover, the complaint refers to the May 2009 report as a relevant document,
and the September 2009 notice would appear in any event to be a public
record. Accordingly, it is appropriate to consideration the documents at
this stage. See Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993).

2

and to draw all reasonable inferences flowing therefrom in the
plaintiffs’ favor.

Watterson, 987 F.2d at 3.

The Parties and the Project
The plaintiffs are the related entities of (1) Premiere Realty
Trust, (2) Michael J. Maroney as Premiere’s trustee, and (3)
Maroney Construction Company, Inc., of which Michael Maroney is
the president.

(Compl. ¶¶ 4-5).

The defendants are the City, its

mayor James Fiorentini (the Mayor), and Robert Ward (Ward), at the
time

the

Deputy

Director

Water/Wastewater Division.

of

Public

Works

for

the

City’s

(Compl. ¶¶ 6-8).

In or around 2009, Premiere purchased land off North Broadway
in Haverhill with the intent to develop a subdivision known as the
Crystal

Springs

Cluster

Development.

(Compl.

¶

9).

The

development plan consisted of 50 residential lots on Back Nine
Drive and Front Nine Drive.

(Compl. ¶ 9).

Maroney Construction

Company, Inc. (MCC) was general contractor for the subdivision, on
which development began in 2009.

(Compl. ¶¶ 9, 10).

The City had at that time received an engineer’s water system
evaluation report from Wright-Pierce (the May 2009 report), which
indicated that adequate water pressure could not be supplied to
the proposed development, and that supplemental pumping might be
required in order to ensure adequate fire flow capacity throughout
the proposed development.

(Compl. ¶ 11).

On June 12, 2009,

Premiere entered into an agreement with the Haverhill Planning
3

Board.

Under the agreement, Premiere agreed to construct and

install municipal ways and services, including a water booster
station.

In exchange, the Planning Board agreed to release lots

for construction.

(Compl. ¶ 10).

The Planning Board approved Premiere’s subdivision plan on
January 25, 2010.
building

permits

(Compl. ¶ 11).
was

conditioned

However, the issuance of
on

the

plaintiffs

either

installing and testing the utilities shown on the plan, or posting
a security bond of $250,000 to guarantee construction of the water
booster station, with an effective bond date of November 1, 2016.
The plaintiffs chose this latter option.

(Compl. ¶¶ 13-15).

Because no completion deadline was imposed by the subdivision
approval, the water booster station only had to be constructed
upon completion of the subdivision, i.e., the effective bond date
of November 1, 2016.
As

of

March

(Compl. ¶ 13).
2015,

the

plaintiffs

had

constructed

and

transferred to purchasers 29 homes in the subdivision, completing
the

Back

Nine

Drive

section

of

remaining lots on Front Nine Drive.

the

subdivision,

leaving

(Compl. ¶¶ 17-18).

21

In March

2015, however, the City, citing water pressure and fire flow
capacity issues, abruptly refused to issue further permits related
to site applications, foundation, building, and occupancy permits.
(Compl. ¶¶ 13, 18, 19).

The plaintiffs (through Maroney) met with

the Planning and Water Departments on a number of occasions, both
4

before and after March 2015, in an effort to resolve the City’s
concerns. (Compl. ¶ 21). Although each of these meetings appeared
to result in an agreement on how to proceed, and although the
plaintiffs subsequently took certain remedial steps recommended by
the City, including the installation of a water line on North
Broadway, the City ultimately refused to issue the plaintiffs the
permits they needed.

(Compl. ¶¶ 20-21).

The State Court Lawsuit
In an effort to compel the City to release the needed permits,
the plaintiffs brought suit in state superior court against the
City’s

Planning

Department,

Water

Department

Inspector (the “state court lawsuit”).

and

Building

(Compl. ¶ 22; Maroney et

al v. City of Haverhill Planning Board, et al., Dkt. No. 1577-CV001251).

The suit, which remains pending at the time of this

opinion, alleges among other things breach of contract, breach of
the

implied

covenant

misrepresentation.

and

good

faith

and

fair

dealing,

and

The parties negotiated a settlement but the

City refused to sign it unless Maroney first agreed to drop the
lawsuit.

(Compl. ¶ 24).

Evidence of Animus and Disparate Treatment
The

plaintiffs

suspect

that

the

City

has

deliberately

exaggerated concerns about water pressure and fire flow safety
issues at Crystal Springs.

(Compl. ¶ 26).

The plaintiffs believe

that the City has done so as part of a plan to compel the plaintiffs
5

to

alleviate

real

water

pressure

subdivision, Parsonage Hill.

concerns

(Compl. ¶ 26).

at

another

nearby

Parsonage Hill was

completed several years earlier, in 1995, and the City subsequently
allowed six more homes to be built thereafter in 2000, all without
regard to whether or how the increased development might adversely
impact low water pressure or adequate fire flow issues.
¶ 26).

(Compl.

The plaintiffs suspect that the City surmised that it could

alleviate

the

issues

at

Parsonage

Hill

if

it

could

get

the

plaintiffs to construct a water booster station in connection with
Crystal Springs.

(Compl. ¶ 26).

Indeed, the City issued permits to at least three other area
developers without requiring them to construct a water booster
station.

(Compl. ¶ 27).

First, in 2012 the City allowed four new

homes to be built across from the entrance to Front Nine Drive,
using the same water main that Parsonage Hill and Front Nine Drive
use.

Id.

The City did not tell the developer, Steve Franciosa,

that there were fire flow or water pressure issues in the area.
(Compl. ¶ 27).
Then, in a second instance in 2015, the City approved a
subdivision for seven homes at the DelHaven Estates on Broadway.
(Compl. ¶ 27).

The DelHaven water supply comes from the same water

tower that supplies the plaintiffs’ Crystal Springs development
and the Parsonage Hill development.

(Compl. ¶ 27).

Moreover, the

City’s consultant, Wright-Pierce, approved the DelHaven Estates
6

even though it had no fire flow and insufficient water pressure.
(Compl. ¶ 27).

Indeed, the City approved DelHaven Estates despite

an elevation level so high that fire hydrants were omitted and
individual water booster pumps had to be installed in each home to
compensate for the low water pressure.

(Compl. ¶ 27).

Finally, the Water Department has allowed the owners of Lot
6, who are related to employees of the Water Department, to move
into their house, which was listed in the allegedly unserviceable
area.

(Compl. ¶ 46).
Current Conditions at Crystal Springs
At present, the Haverhill Fire Department has signed off on

all permits regarding the plaintiffs’ development, most recently
on July 7, 2016.

(Compl. ¶ 28).

The Water Department performed

water logger tests which showed that there was more than sufficient
water pressure, surpassing both the state and municipal minimum
requirements.

(Compl. ¶ 29).

Recent fire flow testing also

yielded results well within the state and municipal requirements.
(Compl. ¶ 29).
Despite these positive metrics, the City has refused to
endorse a timetable for construction of the water booster station
with benchmark deadlines, although it previously had done so.
(Compl. ¶ 31).

In fact, the plaintiffs have since July 2015

constructed a parallel water line as part of the first phase of
building the water booster station, at a cost of $162,000, and
7

have secured additional financing for the station itself.

(Compl.

¶¶ 25, 32).
Further, the plaintiffs’ engineer has drafted and submitted
plans for the water booster station to the City for approval.
(Compl. ¶ 33).

But, even though the plans were 95% complete as of

January 1, 2016, and were approved by the City’s engineering
consultant, Wright-Pierce, the Water Department indicated that it
was going to scrap the existing designs and begin anew.
¶ 33).

(Compl.

The plaintiffs’ engineers have since accordingly redrafted

the plans at considerable cost and expense, and re-submitted them
to the City, but the City has yet to approve them.

(Compl. ¶ 34).

The plaintiffs believe that the refusal to process permits is a
direct result of an order from the Mayor’s office to refuse permits
until the plaintiffs dropped the state litigation.

(Compl. ¶ 36).

The Complaint
The operative complaint advances four counts. Count I alleges
that the defendants deprived the plaintiffs of their Fourteenth
Amendment equal protection and substantive due process rights, in
violation

of

42

U.S.C.

§

1983.

Count

II

alleges

that

the

defendants violatied the plaintiffs’ civil rights, in violation of
the state civil rights statute, M.G.L. c. 12, § 11I.
alleges

interference

with

contractual

and

economic

Count III
relations.

Finally, Count IV alleges that the defendants conspired to refuse
to issue permits to the plaintiffs.
8

II.

LEGAL STANDARD

Courts reviewing a motion for judgment on the pleadings under
Rule 12(c) apply essentially the same standard as when reviewing
a motion to dismiss under Rule 12(b)(6).

Pasdon v. City of

Peabody, 417 F.3d 225, 226 (1st Cir. 2005).

When reviewing a

motion to dismiss under Rule 12(b)(6) courts must apply the notice
pleading requirements of Rule 8(a)(2).

Educadores Puertorriquenos

en Accion v. Hernandez, 367 F.3d 61, 66-67 (1st Cir. 2004).

Under

Rule 8(a)(2), a complaint need only include a short and plain
statement of the claim showing that the pleader is entitled to
relief and giving the defendant fair notice of the grounds for the
plaintiff’s claim.

Conley v. Gibson, 355 U.S. 41, 47 (1957).

Therefore, “a Court confronted with a Rule 12(b)(6) motion ‘may
dismiss a complaint only if it is clear that no relief could be
granted under any set of facts that could be proved consistent
with the allegations.’”

Educadores Puertorriquenos en Accion at

66 (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
To demonstrate that one is entitled to relief, the plaintiff
must provide “enough facts to state a claim to relief that is
plausible on its face.”
570

(2007).

“The

Bell Atl. Corp. v. Twombly, 550 U.S. 544,

plausibility

standard

is

not

akin

to

a

‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully,” and is met
when “the plaintiff pleads factual content that allows the court
9

to draw the reasonable inference that the defendant is liable for
the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Twombly, 550 U.S. at 556).

However, the court is

“not bound to accept as true a legal conclusion couched as a
factual allegation.”

Id. at 678 (quoting Twombly, 550 U.S. at

555).
The main difference between a 12(b)(6) and a 12(c) motion is
that a 12(c) motion is filed after the pleadings are closed, that
is, after both the complaint and answer have been filed.
v. Bloise, 741 F. Supp. 2d 357, 360 (D. Mass. 2010).

Santiago

As such, the

court will consider the factual allegations in both the complaint
and the answer.

Id.

Nevertheless, since the case is still at a

very early stage, and given the obligation to view the facts in
the light most favorable to the non-movant, the court must treat
any allegations in the answer that contradict the complaint as
false.

Id.

III. ANALYSIS
A. Count I – Violation of 42 U.S.C. § 1983
Count I alleges a violation of 42 U.S.C. § 1983.

Section

1983 creates no independent substantive rights but rather provides
a cause of action by which individuals may seek damages for
governmental

violations

of

rights

protected

Albright v. Olivier, 510 U.S. 266, 271 (1994).

by

federal

law.

To succeed under

§ 1983, a plaintiff therefore must prove that the challenged
10

conduct is attributable to a person acting under color of state
law, and that the conduct effected a denial of rights secured by
the Constitution or by federal law. See Soto v. Flores, 103 F.3d
1056, 1061 (1st Cir. 1997).

Here, the plaintiffs allege that the

defendants violated their right to equal protection under the law,
and their right to substantive due process, both protected rights
under the Fourteenth Amendment.

The court addresses each in turn.

i. Equal Protection
The plaintiffs assert a “class of one” equal protection claim.
While

equal

protection

claims

typically

focus

on

alleged

differential treatment of classes, an equal protection claim may
be brought by a “class of one” where a plaintiff can demonstrate
that (1) he has been intentionally treated differently (2) from
others similarly situated, (3) that no rational basis exists for
the difference in treatment, and that (4) the different treatment
was based on a malicious or bad faith intent to injure the
plaintiff. Buchanan v. Maine, 469 F.3d 158, 177 (1st Cir. 2006);
Walsh v. Town of Lakeville, 431 F. Supp. 2d 134, 145 (D. Mass.
2006).

Proof of a similarly situated but differently treated

comparator

is

“essential,”

and

the

plaintiff

must

“show

an

extremely high degree of similarity between themselves and the
persons to whom they compare themselves.”
F.3d 30, 34 (1st Cir. 2014).
must

have

engaged

in

Snyder v. Gaudet, 756

These “similarly situated” persons

essentially
11

the

same

activity,

without

mitigating or distinguishing circumstances that would render the
comparison inutile.

Id.

This similarity requirement “must be

enforced with particular rigor in the land-use context because
zoning decisions ‘will often, perhaps almost always, treat one
landowner differently from another.’” Id. (quoting Village of
Willowbrook

v.

Olech,

528

U.S.

562,

565

(2000)

(Breyer,

J.,

concurring)).
To survive a motion to dismiss (or for judgment on the
pleadings), a plaintiff must provide facts that the court can use
to determine whether the cited comparable is in any way similar to
the plaintiff’s project. Najas Realty, LLC v. Seekonk Water Dist.,
68 F. Supp. 3d 246, 257 (1st Cir. 2014).

In that regard, the

“Court must be able to compare ‘apples to apples’ and not be
presented ‘with a fruit basket’ of different types of allegedly
comparable developments.”

Clark v. Boscher, 514 F.3d 107, 114

(1st Cir. 2008).
Here, the defendants assert two primary challenges to the
plaintiffs’ equal protection claim, arguing:

(1) the complaint

fails to plead facts sufficient to show that the plaintiffs’
project is “similarly situated” to any other projects; and (2) the
complaint fails to adequately allege that the defendants acted
with malice or bad faith.

The plaintiffs may indeed face some

difficulty in proving an equal protection violation, but neither

12

of these challenges justifies dismissal of the equal protection
claim at this early juncture of the case.
With
defendants

respect
argue

to
that

similarly
the

situated

complaint

fails

comparators,
to

identify

the
any

developers similarly situated to the plaintiffs in all relevant
respects.

Notably, though, this argument is based on the facts as

pled in the original complaint.

The court also agrees that the

complaint, limited to those factual allegations, falls short of
adequately identifying any similarly situated developers.

The

amended complaint, however, appears to have been intended to
specifically redress this issue and does in the court’s view set
forth enough additional details to push the plaintiffs’ equal
protection claim over the 12(b)(6) hurdle.
According to the facts alleged in the amended complaint, at
least one nearby development, DelHaven Estates, would appear to be
similarly situated to the Crystal Springs development. The amended
complaint alleges that DelHaven Estates, a subdivision of seven
homes which the City approved for development in 2015, will use
the

same

water

tower

that

also

serves

the

Crystal

Springs

development (as well as Parsonage Hill), and was approved despite
the fact that it too purportedly had insufficient water pressure
and no fire flow.
complaint

alleges

(Compl. ¶ 27).
that

the

Significantly, the amended

DelHaven

Estates

developers

were

permitted to remediate the low water pressure issue by installing
13

individual water booster pumps in each house; by contrast, the
City fabricated concerns about water pressure at Crystal Springs
and ultimately prevented the plaintiffs from taking any steps to
remediate any reported water pressure/flow issues by constructing
a water booster station.

(Id.).

As such, the amended complaint

alleges that a developer constructing a development near Crystal
Springs, at around the same time, and with similar water pressure
issues,

was

permitted

to

proceed

while

the

plaintiffs

were

prevented from proceeding.
Understanding that time and discovery will reveal whether
there is real substance to this claim, the court finds for now
that

the

amended

complaint

adequately

identifies

a

similarly

situated developer and thus satisfies (for pleading purposes) this
element of an equal protection claim. 3

3

See e.g., Mosdos Chofetz

The amended complaint refers to two other Haverhill developments but the
allegations lack sufficient detail to readily determine whether they are
similarly situated to the plaintiffs’ Crystal Springs development. (Compl. ¶
27).
With respect to the nearby development known as Parsonage Hill, the
complaint alleges that the defendants allowed six homes to be built there “after
2000” without consideration for water pressure or fire flow, but fails to
articulate any facts (aside from geographic proximity) that would allow the
court conclude that the developments are comparable.
(Compl. ¶ 27).
Among
other things, where the amended complaint asserts that the defendants were aware
of water capacity issues “as far back as May 21, 2009” (Compl. ¶ 11), any homes
added to Parsonage Hill before 2009 would thus not be relevant, because the
defendants probably would not have been considering water capacity issues when
approving those permits.
With respect to the development built by Steve
Franciosa, the plaintiffs allege that the defendants in 2012 gave Franciosa
four building permits to develop homes along the same water main as Front Nine
Drive, but did not tell him that there would be any issues with fire flow or
water pressure in the area, and gave him the permits without any concerns.
(Compl. ¶ 27). As the court reads the amended complaint, however, these facts
do not evince disparate treatment where the plaintiffs also received or
possessed permits to proceed during the same time period, and there is no
allegation that Franciosa thereafter received permits in 2015 that the
plaintiffs were denied.

14

Chaim, Inc. v. Vill. Of Wesley Hills, 815 F. Supp. 2d 679, 697
(S.D.N.Y. 2011) (Although at summary judgment stage court asks
whether jury, based on reasonable evidence, could conclude that
plaintiff and proposed comparator are similarly situated, such
evidence is not necessary at motion to dismiss stage).
In addition, the plaintiffs have sufficiently pled that the
defendants’ actions were “motivated by malicious or bad faith
intent to injure.”

Snyder, 756 F.3d at 34.

To evidence this bad

faith or malice, the plaintiff must show that the government
official’s decisions were not simply arbitrary and erroneous;
instead, the plaintiff must establish that the defendants’ actions
constituted a “gross abuse of power.”

Tapalian v. Tusino, 377

F.3d 1, 6 (1st Cir. 2004) (quoting Baker v. Coxe, 230 F.3d 470,
474 (1st Cir. 2000)).

The amended complaint meets that standard

because it alleges that (1) there is in fact no need for a water
booster

station

at

Crystal

Springs

and

that

the

impetus

for

requiring the plaintiffs to build one is to cure the problems that
plague nearby Parsonage Hill; (2) the defendants disingenuously
denied the plaintiffs permits based on the false claim that they
were obligated to have built the station much earlier; and (3) the
Mayor has refused to allow any permits to be released unless the
plaintiffs dismiss the state lawsuit. If true, these actions would
certainly constitute a gross abuse of power.
F.3d at 6 (collecting cases).
15

See Tapalian, 337

To be sure, the defendants argue that these assertions cannot
be probative of bad faith or malice.

They argue that even assuming

the impetus for requiring the plaintiffs to build the booster
station was to benefit Parsonage Hill, that fact is irrelevant
because the plaintiffs never appealed the requirement.

Even

assuming that is true, however, proof that the defendants had an
ulterior motive for forcing the plaintiffs to build a booster
station at Crystal Springs could still be probative of their
animus.
The defendants also argue that the court should not credit
the allegation that the Mayor has refused to allow anyone to
approve any permits for the plaintiffs until they drop the state
court lawsuit, because attempting to resolve a lawsuit does not
constitute bad faith or malice.
be

benign

and

wholly

The court agrees that there may

justified

reasons

for

encouraging

the

plaintiffs to dismiss the state court lawsuit, and makes no adverse
findings against the defendants in that regard.

That being said,

if arguendo the Mayor has refused to allow permits to be issued to
the plaintiffs, in order to force the plaintiffs to abandon their
right to seek redress for a perceived legal wrong, the court has
no issue in concluding that such conduct could comprise malice or
bad faith.
In sum, the plaintiffs have adequately alleged that the
defendants have treated their development differently than others,
16

that there was no rational basis for the difference, and that the
difference in treatment was motivated by malice or bad faith.

As

such, the equal protection claim survives the motion for judgment.
ii. Substantive Due Process
Next, the defendants argue that the plaintiffs have not
alleged a cognizable due process claim.

They argue that because

the alleged deprivation here is merely a delay in the issuance of
construction permits, rather than a denial of permits, it is
questionable

whether

such

conduct

constitutes

a

cognizable

property interest able to form the basis of a substantive due
process claim.

They argue that even if it could, it is not enough

to constitute the type of conscience-shocking conduct required to
support a substantive due process claim.
The Fourteenth Amendment provides protection to an individual
from state deprivation of life, liberty, or property without due
process of law.
process

ensures

U.S. Const. Amend. XIV.
that

[a

state

proceeding

“[S]ubstantive due
which

results

in

a

deprivation of property] is not arbitrary and capricious.” Licari
v. Ferruzzi, 22 F.3d 344, 347 (1st Cir. 1994).

It prevents the

“abuse of government power that shocks the conscience, or action
that

is

...

not

sufficiently

keyed

to

any

legitimate

state

interest.” PFZ Props., Inc. v. Rodriguez, 928 F.2d 28, 31–32 (1st
Cir. 1991); accord Clark, 514 F.3d at 112.

Although the First

Circuit has routinely rejected substantive due process claims in
17

the zoning and land-use contexts, it has “left the door slightly
ajar for federal relief in truly horrendous situations.”

Nestor

Colon Medina & Sucesores Inc. v. Custodio, 964 F.2d 32, 45 (1st
Cir. 1992); accord Licari, 22 F.3d at 350; Collier v. Town of
Harvard, No. 95–cv–11652, 1997 WL 33781338, at *5 (D. Mass. Mar.
28, 1997); see Chongris v. Board of Appeals, 811 F.2d 36, 43 (1st
Cir. 1987) (noting “even abridgments of state law [in the landuse context] committed in bad faith do not necessarily amount to
constitutional deprivation of due process,” but acknowledging that
there could exist a “type of egregious official behavior which
could conceivably work a breach of the due process clause”); cf.
Gianfrancesco v. Town of Wrentham, 712 F.3d 634 (1st Cir. 2013)
(finding

“vague”

excessive

complaints

enforcement

of

of

“a

pattern

municipal

of

selective

regulations”

were

and
not

conscience-shocking).
To state such a claim in this Circuit in the land-use context,
a

plaintiff

racial

must

animus,

principle.”

allege

or

the

“fundamental

like,”

or

procedural

violation

of

irregularity,
“a

fundamental

Clark, 514 F.3d at 113 (internal quotations omitted);

cf. Nestor Colon Medina, 964 F.2d at 45–47 (noting a plaintiff
must demonstrate a “high” level of “abuse of government power,”
and

distinguishing

between

actions

demonstrating

“personal

hostility toward the applicants” and obstacles that “any other
developer would have faced”).

For example, another session of
18

this court permitted a substantive due process claim to not only
survive through discovery but also proceed to trial where the
plaintiffs

had

adduced

evidence

of

governmental

coercion

and

extortion to further the personal interests of a local official.
Collier, 1997 WL 33781338, at *5–7.

Among other things, there was

evidence that the defendants visited the plaintiff at his home and
told him that “things would go a lot more smoothly . . . if [the
plaintiff] gave [a defendant] the easement that he wanted.”

The

court concluded that because the plaintiff had alleged specific
facts that were more than just “loose claims of conspiracy and
corruption,” a reasonable jury could find that a substantive due
process violation had been committed.

Id.

In yet another matter, a court in this session concluded that
the plaintiffs had done enough at the pleading stage to distinguish
their allegations from the sort of “run of the mill land-use claims
often brought by disappointed developers and rejected by the
federal courts in this jurisdiction” where they alleged that the
mayor had led an orchestrated campaign against the developers by
changing zoning laws that only affected the plaintiffs’ project,
refusing to issue water permits to the plaintiffs’ property, and
forcing

the

plaintiffs

to

repeatedly

engage

in

frivolous

litigation that was intended to expend the plaintiffs’ resources.
Brockton Power LLC v. City of Brockton 948 F. Supp. 2d 48, 69 (D.
Mass. 2013).
19

Considering the foregoing here and, importantly, accepting
all of the allegations in the amended complaint as true as the
court is constrained to do, the plaintiffs have done enough at
this stage of the proceedings to state a valid substantive due
process claim against the Mayor and Ward.

In particular, where

the plaintiffs allege that the fire department has signed off on
all

building

and

site

application

permits,

that

the

water

department has determined that the water pressure at Crystal
Springs exceeds state and municipal requirements, that the City’s
own water tests have shown that the plaintiffs’ subdivision meets
all state and municipal fire flow requirements, but that the City,
instead of allowing the plaintiffs to proceed, has required them
to

build

a

booster

station

to

address

issues

at

another

development, has prevented them from building the booster station,
and has moreover held the allowance of any additional permits
hostage to force the plaintiffs to drop the state court lawsuit,
they allege that the defendants have engaged in arbitrary and
capricious conscience-shocking conduct.

See e.g., Dolan v. City

of Tigard, 512 U.S. 374, 387 (1994) (where there is no nexus
between a permit condition and a legitimate state interest, valid
land

regulation

is

converted

into

an

“out-and-out

plan

of

extortion”).
But, the court agrees with the defendants that the complaint
as framed fails to state a valid § 1983 claim against the City.
20

It is well established that a municipality cannot be held liable
under § 1983 for the acts of its employees unless a plaintiff has
shown that the violation occurred as a result of an official policy
or custom of the municipality.

Freeman v. Town of Hudson, 714

F.3d 29, 37-38 (1st Cir. 2013) (citing Monell v. Dept. of Soc.
Servs. Of the City of New York, 436 U.S. 658, 694 (1978)).

“The

‘official policy’ requirement was intended to distinguish acts of
the municipality from acts of employees of the municipality, and
thereby make clear that municipal liability is limited to action
for which the municipality is actually responsible.” Pembaur v.
City of Cincinnati, 475 U.S. 469, 479 (1986).

The decision of a

municipal policymaker only constitutes official policy where the
“decisionmaker possesses final authority to establish municipal
policy with respect to the action ordered.”
38.

Freeman, 714 F.3d at

In order to make this determination, “[c]ourts must look to

state law, including ‘valid local ordinances and regulations,” for
descriptions

of

the

duties

and

obligations

policymakers in the relevant area at issue.’”

of

putative

Id.

Here, although the complaint alleges among other things that
“[t]he Mayor has directed the Water Department not to issue any
permits until the [state court lawsuit] is voluntarily dismissed”
(Compl. ¶ 43), it fails to reference any state or local laws
establishing the policy making authority of the Mayor or any City
officials involved.

Anecdotal allegations that the Mayor has told
21

Maroney and/or others that the plaintiffs could receive the needed
permits

if

Maroney

dropped

the

state

court

lawsuit,

while

suggestive of political clout, fail without more to constitute
proof that the City has actually delegated policy making authority
on this matter to the Mayor.

Accordingly, Count I is dismissed

against the City, but without prejudice to the plaintiffs’ ability
to seek to amend.
iii. Qualified Immunity
The

defendants

argue

that

assuming

any

constitutional

violation occurred, they enjoy qualified immunity from liability.
“The doctrine of qualified immunity protects government officials
from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.”
555 U.S. 223, 231 (2009).
the

defendant’s

Pearson v. Callahan,

At the motion to dismiss stage “it is

conduct as

alleged

in

the

complaint that

scrutinized for ‘objective legal reasonableness.’”

is

Behrens v.

Pelletier, 516 U.S. 299, 309 (1996) (emphasis original).

Here,

the court presumes without finding that manipulating and abusing
the permitting process in order to coerce the plaintiffs into
building an unneeded water booster station to cure problems at
another development, as well as to coerce them into dropping a
potentially

non-frivolous

lawsuit,

would

violate

established statutory or constitutional right.
22

a

clearly

It is generally unwise though to venture into a qualified
immunity analysis at the pleading stage because in the majority of
cases it is necessary to develop the factual record to test the
veracity

of

the

complaint’s

allegations.

See

Giragosian

v.

Bettencourt, 614 F.3d 25, 29 (1st Cir. 2010) (“[i]t is not always
possible to determine before any discovery has occurred whether a
defendant is entitled to qualified immunity, and courts often
evaluate
stage.”).

qualified

immunity

defenses

at

the

summary

judgment

Consequently, if qualified immunity is not granted at

the motion to dismiss stage, nothing prevents a party from raising
it again after further development of the facts.

Maldonado v.

Fontanes, 568 F.3d 263, 268 (1st Cir. 2009); see also Olivio
Gonzalez v. Teacher’s Retirement Bd., 208 F. Supp. 2d 163, 167
(D.P.R. 2002) (“Since the issue of qualified immunity has been
raised in the context of a motion to dismiss, and we conclude that
the complaint contains sufficient factual allegations that could
prohibit

Defendants’

reliance

on

the

doctrine

immunity, the court can proceed no further.

of

qualified

However, Defendants

are free to raise this issue in the context of a motion for summary
judgment.”).

Therefore,

the

court

will

deny

the

motion

for

judgment on the grounds of a qualified immunity defense at this
stage of the litigation, without prejudice to the defendants’
ability to renew.

23

B. Remaining Claims: Violation of M.G.L. c. 12 § 11;
Interference with Contractual and Economic Relations;
and Common Law Conspiracy. (Counts II-IV)
i. Count II: Violation of the Massachusetts Civil
Rights Act
The Massachusetts Civil Rights Act (MCRA) provides a cause of
action for any person whose rights under the Constitution, federal
law,

or

state

intimidation,
11H, 11I.

law

or

“The

have

coercion
Supreme

been
of

interfered

another.

Judicial

Court

with

See M.G.L.
of

by
c.

threats,
12,

Massachusetts

§§
has

interpreted the MCRA to be co-extensive with § 1983 except for two
disparities: (1) the MCRA does not require any state action (i.e.,
there is no “under color of state law” requirement), and (2) a
claim under the MCRA requires a violation by threats, intimidation,
or coercion.”

Kelley v. LaForce, 288 F.3d 1, 10 (1st Cir. 2002)

(internal quotation marks original).
Because the court has already determined that Count I states
a valid § 1983, the MCRA claim also survives against the individual
defendants for the same reasons.

However, the court agrees that

Count II must be dismissed against the City because a municipality
is not a “person” within the meaning of the statute and therefore
cannot be sued under the MCRA.

McCarthy v. Szoztkiewicz, 188 F.

Supp. 2d 64, 71 (D. Mass. 2002).
ii. Count III: Interference with Contractual Relations

24

Count III alleges that the defendants interfered with the
plaintiffs’

contractual

relations.

To

establish

a

claim

of

intentional interference, a plaintiff must prove that (1) it had
a contract with a third party; (2) the defendant knowingly induced
the

third

party

to

break

that

contract;

(3)

the

defendant’s

interference, in addition to being intentional, was improper in
motive

or

means;

and

defendant’s actions.

(4)

the

plaintiff

was

harmed

by

the

G.S. Enters., v. Falmouth Marine, Inc., 410

Mass. 262, 272 (1991).

As to the third prong, which is at issue

here, a plaintiff need only establish either improper means or
motive, not both, to sustain a claim of tortious interference.
See Cavicchi v. Koski, 67 Mass. App. Ct. 654, 658 (2006).
The defendants argue that Count III fails to state a claim
against the individual defendants because the plaintiffs have not
sufficiently alleged bad faith or malice.

However, as the court

has already found in discussing the plaintiffs’ equal protection
claim that the complaint does in fact adequately allege that the
defendants were motivated by bad faith or malice, the court rejects
this argument and finds that Count III states a valid claim for
interference with contractual relations.

By contrast, Count III

fails to state a claim against the City because municipalities are
immune

from

claims

of

intentional

torts

pursuant

Massachusetts Tort Claims Act, G.L. c. 258, §10(c).

25

to

the

See Felix v.

Town of Randolph, No. 12-10997-GAO, 2013 WL 3830840, at *4 (D.
Mass. July 22, 2013).
iii. Count IV: Common Law Conspiracy
Count IV as originally drafted alleged that the individual
defendants conspired to violate the plaintiffs’ civil rights, in
violation of 42 U.S.C. §§ 1985 and 1986.

The defendants argue

that this claim fails because a plaintiff must prove class based
discrimination
complaint

does

to
not

prove

a

allege

civil
that

rights
here.

conspiracy,
However,

the

and

the

amended

complaint removes the references to §§ 1985 and 1986 and now
alleges only a common law conspiracy claim.

As such, there is no

basis to strike the claim.
IV.

CONCLUSION

For

the

foregoing

reasons,

the

Defendants’

Motion

for

Judgment on the Pleadings (Dkt. No. 24) is ALLOWED IN PART and
DENIED IN PART.

Specifically, the motion is ALLOWED with respect

to the claims against the City in Counts I, II and III, and DENIED
with respect to the claims against the individual defendants in
Counts I, II, III and IV.

The Plaintffs’ Motion to Amend (Dkt.

No. 27) is ALLOWED.
/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.
DATED:

December 7, 2017

26