Maroney et al v. Fiorentini et al
Filing
77
Magistrate Judge Donald L. Cabell: ORDER entered. ORDER ON DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS granting in part and denying in part 61 Motion for Judgment on the Pleadings (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, and ROBERT
E. WARD,
Defendants.
ORDER ON DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
CABELL, U.S.M.J.
INTRODUCTION
This
matter
arises
from
a
long-running
dispute
between
residential developer Michael Maroney and various individuals and
departments connected with the City of Haverhill (“the City”). 1
Maroney needed certain permits to advance a subdivision project,
but the City refused to issue them.
Frustrated, Maroney sued
several entities in state court, see Maroney v. City of Haverhill
Planning Bd., No. 1577-CV-001251 (Mass. Essex Sup. Ct. filed July
23, 2015), and then initiated the present action while the state
1
Maroney sues on behalf of the eponymously named Maroney Construction Company,
Inc., as well as in his capacity as the trustee of Premiere Realty Trust.
For ease, the court uses “Maroney” or “the plaintiff” to refer to these
entities.
1
court action was still pending. 2
The state court action was
subsequently resolved on the merits in the defendants’ favor.
Defendant Fiorentini, who was not a defendant in the state matter,
and defendant Ward, who was, move for judgment on the pleadings on
the ground that res judicata bars the present claims because they
are similar to those raised in the state court matter.
(D. 61).
For the reasons that follow the defendants’ motion will be ALLOWED
in part and DENIED in part.
I.
BACKGROUND
A. The Parties and the Development
In or around 2009 Maroney purchased land in Haverhill to build
the Crystal Springs Cluster subdivision, a project that was to
include 50 residential lots on Back Nine Drive and Front Nine
Drive. (Amended Complaint, D. 51 ¶ 9). While subdivision approval
was
pending,
the
City
received
a
professional
evaluation
indicating that the homes on Front Nine Drive would have inadequate
water pressure to satisfy city standards for home and fire flow.
(Id. ¶ 11).
To address this problem, the plaintiff entered into
an agreement with the Haverhill Planning Board to construct and
install municipal ways and services, including a water booster
2
The defendants in the state court lawsuit were the City’s Planning Board;
William Pillsbury, the City’s Economic Development and Planning Director;
Robert E. Ward, the City’s Deputy Director of the Department of Public Works,
Waste/Wastewater Divisions; and Richard Osborne, the City’s Building
Inspector. The defendants in the federal matter presently include the City’s
Mayor (Fiorentini) and Ward, in their individual capacities.
2
station.
for
In exchange, the Planning Board agreed to release lots
construction
as
they
became
serviceable,
property was ready to receive utility services.
i.e.,
when
the
(Id. ¶ 10).
The plaintiff completed the homes on Back Nine Drive, for
which he received all required permits.
(Id. ¶17).
The City Water
Department refused to issue him permits for Front Nine Drive,
however, because the water pressure and fire flow issues for that
part of the development had not been addressed.
(Id. ¶19).
B. The State Court Action
In an effort to compel the City to issue the needed permits,
the plaintiff brought the state court action against the City’s
Planning Board and various departments. 3
(D. 51, ¶ 22).
The
complaint asserted claims for breach of contract, breach of the
duty of good faith and fair dealing, and misrepresentation, and
sought as relief damages, a declaratory judgment that the plaintiff
had satisfied all necessary permitting requirements, a writ of
mandamus compelling the City to issue the necessary permits, and
an injunction
permits.
In
enjoining
the
City
from
refusing
to
issue
the
(Id.).
response,
counterclaimed
for
City
Building
violation
of
3
Inspector
the
Richard
Massachusetts
Osborne
Residential
The only person named in both the federal and state actions is Robert E.
Ward, the City’s Deputy Director of Public Works. In the state lawsuit,
however, he was named in his official capacity; here, he remains a defendant
in his individual capacity only.
3
Building Code and the City Zoning Law, and all defendants moved
for summary judgment on the plaintiff’s claims as well as Osborne’s
counterclaims.
The plaintiff in turn filed a cross-motion for
summary judgment on Osborne’s counterclaims.
The state court denied the plaintiff’s motion and granted the
defendants’ motions in their entirety.
See Memorandum of Decision
and Order (Feb. 12, 2018) (Memorandum).
(D. 62-1).
The state
court made the following findings of fact among others in so doing:
1. The City’s water reports determined in 2009 that certain
lots on Front Nine Drive would not be serviceable —i.e.,
ready to receive all utilities— because of inadequate water
pressure. Id. at 5-6.
2. Maroney initially proposed building a water booster station
to address the City’s water pressure concerns, and
Maroney’s engineer acknowledged the need for a water
booster station. Id. at 4.
3. Maroney agreed with the City that the booster station was
necessary to meet water pressure and hydrant flow
requirements. Id. at 17.
4. The City Planning Board’s approval of the subdivision plan
for the subdivision included documents from the Water
Department about the need for the water booster station.
Id. at 5.
5. In September of 2009, Maroney asked the City for permission
to build homes on Back Nine Drive (“Phase I”), which did
not need enhanced water pressure, before constructing the
water booster station. The Water Department and the
Planning Director agreed to this request so long as those
homes did not require water boosting. Id. at 6-7.
6. Maroney agreed to build the water booster station before
beginning construction of the homes on Front Nine Drive
(“Phase II”), but he never built the station. Id. at 19.
4
7. In May of 2013, Maroney submitted a water boosting station
plan to the Water Department, which made comments and
revisions.
Thereafter, Maroney never submitted a water
boosting station design found acceptable by the City. Id.
at 12.
8. After completion of Phase I, Maroney began building Phase
II homes on lots the City had deemed unserviceable without
first having built the water booster station or obtained
permits. Id.
After rejecting Maroney’s contention that the subdivision
plan was a binding agreement that could not be altered by other
requirements, id. at 16-17, the state court found that even if it
accepted Maroney’s argument, his equitable claims would still fail
because he had not shown he was wrongfully denied any permits.
The court noted inter alia that it was undisputed that (1) the
parties agreed from an early point that a booster station was
necessary; (2) the booster station was included in the definitive
subdivision plan; (3) Maroney agreed he would construct the booster
station after completing Phase I; and (4) Maroney never constructed
a water booster station.
The court stated that “[w]here Maroney
did
booster
not
construct
the
station,
as
the
definitive
subdivision plan required, the court fails to see how he can
legitimately claim the Haverhill Defendants failed to process
and/or issue permits to which he was entitled.”
Id. at 17-18.
Maroney also argued that a water booster station was not
actually necessary to meet City water pressure requirements, but
the state court found this point irrelevant where the Planning
5
Board had found otherwise and had conditioned the plan’s approval
on Maroney’s agreement that a booster station was required.
Id.
at 18.
The court also rejected Maroney’s contention that he had
until November 1, 2016 to build the water booster station, finding
instead
that
Maroney
completing Phase I.
Maroney
sought
had
agreed
to
build
the
station
after
The court also found that to the extent
permits
to
build
on
lots
the
City
deemed
unserviceable, “the Department was free to deny those permits, no
matter the date, until the booster station was constructed.”
Id.
at 18-19.
C. The Present Lawsuit
The amended complaint alleges that the City has refused to
sign off on a timetable to complete the water booster station,
even though the plaintiff has submitted a proposal for the water
booster station, laid water lines as a preliminary step, and
secured additional funding for the station construction.
¶¶ 20, 32-24).
(D. 51
The plaintiff contends that the City refused to do
so in order to force Maroney to drop the state court lawsuit.
¶ 36).
(Id.
Specifically, the plaintiff alleges that Fiorentini made
statements to Maroney and others that Maroney would not get any
permits until he dropped the lawsuit, and specifically directed
the Water Department not to issue any permits.
(Id. ¶¶ 37-41).
The plaintiff claims federal due process and equal protection
6
violations (Count I); state civil rights violations (Count II);
interference with contractual and economic relations (Count III);
and conspiracy to deny civil rights under state and federal law
(Count IV).
II.
LEGAL STANDARD
The defendants move for a judgment on the pleadings pursuant
to Federal Rule of Civil Procedure 12(c).
That rule provides that
“[a]fter the pleadings are closed —but early enough not to delay
trial— a party may move for judgment on the pleadings.”
Civ. P. 12(c).
Fed. R.
A motion for judgment on the pleadings is treated
like a motion to dismiss under Fed. R. Civ. P. 12(b)(6), except
that a “‘Rule 12(c) motion . . . implicates the pleadings as a
whole’” rather than a dismissal based on the complaint alone.
Kimmel & Silverman, P.C. v. Porro, 969 F. Supp.2d 46, 49 (D. Mass.
2013) (quoting Aponte-Torres v. University of P.R., 445 F.3d 50,
54-55 (1st Cir. 2006)).
Because a motion for judgment on the
pleadings requires “assessment of the merits, we view the facts
contained in the pleadings in the light most favorable to the party
opposing the motion . . . .”
Curran v. Cousins, 509 F.3d 36, 43
(1st Cir. 2007).
The
court
may
also
consider
matters
fairly
incorporated
within the complaint or susceptible to judicial notice.
Id.; In
re Colonial Mortg. Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003).
Where the motion is based on a claim of res judicata, the court
7
may take judicial notice of the record in the original action.
See Boateng v. InterAmerican Univ., 210 F.3d 56, 60 (1st Cir. 2000)
(court may treat documents from prior court adjudication as public
record).
III. ANALYSIS
A. Applicable Law
The defendants argue that the plaintiff’s claims are barred
under
the
doctrine
Massachusetts
action.
of
Superior
res
Court
judicata
in
the
by
the
findings
plaintiff’s
state
of
the
court
Whether and to what extent the plaintiff’s claims may be
so barred is determined under Massachusetts law.
See Isaac v.
Schwartz, 706 F.2d 15, 16 (1st Cir. 1983) (“[f]ederal courts are
to give state court judgments the res judicata effect that state
law prescribes”).
Massachusetts uses the term “res judicata”
generally to describe the doctrine under which a previous judgment
can have binding effect upon a subsequent action.
86 Mass. App. Ct. 226, 229 (2014).
Kelso v. Kelso,
In fact, though, res judicata
encompasses two prongs, claim preclusion and issue preclusion.
Claim preclusion operates at the level of the claim, or cause
of action, alleged in each proceeding.
It is based on the notion
that the party against whom claim preclusion is being asserted had
the opportunity and motivation to fully litigate the claim in the
earlier action. In re: Sonus Networks, Inc. Shareholder Derivative
Litigation, 499 F.3d 47, 56 (1st Cir. 2007) (applying Massachusetts
8
law).
Therefore, claim preclusion bars all matters that were or
could have been adjudicated in the earlier action on the claim.
Id. In order for claim preclusion to apply, the respective parties
must be identical or in privity with the parties in the prior
action, the causes of action must be the same or arise from the
same nucleus of operative facts, and there must have been a final
judgment on the merits in the prior action.
Cavic v. America’s
Servicing Co., 806 F. Supp.2d 288, 290 (D. Mass. 2011).
By
contrast,
issue
preclusion,
which
is
sometimes
also
referred to as “collateral estoppel,” see, e.g., Meltzer v. Epstein
Becker & Green, 233 F. Supp.2d 213, 217 (D. Mass. 2002), bars relitigation of issues of law and fact that were determined in an
earlier action, and it can apply even if those issues arise in a
completely different claim in the second action. TLT Constr. Corp.
v. A. Anthony Tappe & Assocs., 48 Mass. App. Ct. 1, 5 (1999)
(citing Heacock v. Heacock, 402 Mass. 21, 23 n.2 (1988)).
A party asserting issue preclusion/collateral estoppel must
show that (1) there was a final judgment on the merits in a prior
adjudication; (2) the plaintiff was a party (or in privity with a
party) to the prior adjudication; (3) the issue in the prior
adjudication is identical to the issue in the current adjudication;
and (4) the issue decided in the prior litigation was essential to
the earlier judgment.
Commissioner of the Dept. of Employment &
Training v. Dugan, 428 Mass. 138, 142 (1998).
9
While strict
essentiality is not required, the issue must have been the subject
of full litigation and careful decision.
Id. at 144.
Issue
preclusion typically acts to bar re-litigation of any issue, but
it may also bar an entire claim where the issue precluded is an
essential element of that claim.
6057,
2016
WL
8140048,
at
*2
Montesa v. Schwartz, No. 12-CV(S.D.N.Y.
Jan.
13,
2016);
see
generally Vargas-Colón v. Fundación Damas, Inc., 864 F.3d 14 (1st
Cir.
2017)(earlier
determination
that
defendant
did
not
own
hospital barred plaintiff’s later claim for malpractice against
defendant).
B. Application of Claim Preclusion
Applying the foregoing here, the doctrine of claim preclusion
does not apply because the privity of parties requirement is not
fully satisfied.
Although Defendant Ward appears in the caption
of both lawsuits, he was sued in the state court action in his
official capacity as a Deputy Director for the City’s Department
of Public Works but remains as a defendant in the present case
only in his individual capacity.
This matters because “a person
sued only in his official capacity is neither identical to, not in
privity with, the same person sued in his individual capacity.”
Goldstein v. Galvin, 719 F.3d 16, 23 (1st Cir. 2013).
Further,
defendant Fiorentini was not named in any capacity in the state
court matter.
In short, the doctrine of claim preclusion does not
apply to or bar any portion of the present action.
10
C. Application of Issue Preclusion
By contrast, the initial threshold requirements for issue
preclusion/collateral estoppel are met here where the state court
action was adjudicated on the merits and the plaintiff was a party
in the action.
Thus, the court must examine the state court’s
factual findings and legal conclusions to determine which issues
were the subject of full litigation and careful deliberation; that
is, the court must determine whether any issue in this case is
identical to an issue that was adjudicated in the prior action,
and whether that issue was essential to that court’s judgment.
The court must then evaluate what effect, if any, such issues have
on the plaintiff’s present claims.
1. Violation of 42 U.S.C. § 1983
Count I of the amended complaint alleges pursuant to 42 U.S.C.
§ 1983 that the defendants violated Maroney’s rights to equal
protection and also his right to substantive due process.
With respect to the first prong of the claim, Maroney contends
that he was denied equal protection when the City required him to
construct a water booster station in order to get necessary permits
but issued permits to other developers without requiring them to
do the same.
To prevail on this claim Maroney must show among
other things that there was no rational basis for the difference
in treatment between him and other similarly situated developers.
Buchanan v. Maine, 469 F.3d 158, 177 (1st Cir. 2006).
11
In denying
the defendants’ prior motion for judgment on this count, the court,
as required, accepted as true Maroney’s assertion that he had until
November of 2016 to construct the station.
The court found on
that basis that Maroney thus raised a colorable claim that there
was no rational basis to deny him permits in March of 2015 because
his deadline had not yet passed.
(D. 51 ¶15).
Notably, though, the plaintiff litigated this factual issue
in the state court action and the court found contrarily that
Maroney
had
agreed
to
build
the
water
booster
station
after
completing Phase I, which was earlier than November 2016.
The
court’s
to
its
basis
to
factual
reasoning
and
finding
conclusion
was
that
indisputably
Maroney
essential
thus
had
no
“legitimately claim the Haverhill Defendants failed to process
and/or issue permits to which he was entitled,” and that “the
Department was free to deny those permits, no matter the date,
until the booster station was constructed.”
Memorandum at 17-18.
Against this backdrop, the court is constrained to adopt the
state court’s finding that the plaintiff agreed both that a water
booster station was necessary and that he would build the station
after completing Phase I.
Accordingly, the plaintiff is estopped
from arguing differently here that he at all times had until
November 2016 to do so.
As such, the plaintiff no longer has a
basis
there
for
difference
arguing
in
that
treatment
was
between
12
no
him
rational
and
any
basis
other
for
the
similarly
situated developer; there was in fact a rational basis for denying
him a permit where he failed to construct a water booster station
after completing Phase I.
Count I thus fails to state a viable
equal protection claim.
With respect to Maroney’s substantive due process claim, this
court previously concluded that the complaint adequately pled a
viable claim for relief based in part on two factual allegations,
including that the City was forcing the plaintiff to build the
booster station to benefit a pre-existing development, and that a
water station was arguably not even necessary.
(D. 51, ¶¶ 26, 30-
31).
The plaintiff litigated the latter allegation in the state
court
action,
however.
Although
Maroney
did
not
raise
the
necessity of a water booster station until he filed his motion for
summary judgment, the court considered this issue and observed
that when Maroney’s plans were approved, the Planning Board’s thenavailable data indicated that a water booster station was needed.
As Maroney agreed to this condition, he could not thereafter argue
that the condition was unreasonable.
Memorandum at 18-19.
In
this light, this court finds that, although the state court was
not
obligated
to
consider
this
issue,
it
did
give
it
full
consideration and its finding was essential to its judgment that
Maroney’s rights were not violated by the denial of a permit.
13
That being said, the court finds that the complaint continues
to plead a viable substantive due process claim even absent this
allegation.
the
first
As discussed more fully in the court’s memorandum on
Motion
for
Judgment
on
the
Pleadings
(D.
52),
a
substantive due process “‘protects individuals from particularly
offensive actions on the part of government officials, even when
the government employs facially neutral procedures in carrying out
those actions.’”
Freeman v. Town of Hudson, 714 F.3d 29, 40 (1st
Cir. 2013) (quoting Pagán v. Calderón, 448 F.3d 16, 32 (1st Cir.
2006)).
To be sure, the standard for prevailing in such actions in
the land use context is high.
It is not enough for a plaintiff to
challenge a discretionary licensing or permitting decision, even
if that decision is wrong.
F.3d 14, 17 (1st Cir. 2007).
Mongeau v. City of Marlborough, 492
Instead, a plaintiff must allege a
“fundamental procedural irregularity, racial animus, or the like”
or violation of “a fundamental principle.”
Clark v. Boscher, 514
F.3d 107, 113 (1st Cir. 2008) (citations omitted).
A plaintiff
must also make a plausible allegation that he has a protected
property interest under state law.
Caesars Mass. Mgmt. Co. v.
Crosby, 778 F.3d 327, 332 (1st Cir. 2015).
Massachusetts has
recognized a property interest where a plaintiff alleges that a
state actor has interfered with his right to obtain permits to
make improvements on his land.
14
See, e.g., Kennie v. Natural
Resources Dept. of Dennis, 451 Mass. 754, 763 (2008) (property
owners
seeking
substantive
permit
due
to
process
build
claim
waterfront
against
dock
seafood
could
pursue
constable
who
allegedly planted shellfish in sufficient quantities to provide
basis
for
permit
denial
and
compel
owners
to
withdraw
their
application).
In
the
court’s
view,
the
plaintiff
meets
that
pleading
standard here where he alleges that the defendants have infringed
his right to obtain permits to develop his property.
48).
(D. 51, ¶
The plaintiff provides three specific instances in which
Fiorentini purportedly told Maroney or others that the plaintiff
would not receive any permits until he dropped his state court
suit.
(Id. ¶¶ 37-41).
This includes Fiorentini telling Maroney,
“You drop the lawsuit, we’ll give you all the permits your want!”
The plaintiff has also alleged that Fiorentini directed the Water
Department, under the authority of defendant Ward, to continue to
refuse
to
dismissed.
issue
permits
until
the
lawsuit
was
voluntarily
(Id. ¶ 43).
Further, although the plaintiff took steps to build the
booster station and had plans approved by a City engineering
consultant, the Water Department decided to scrap Maroney’s design
and start over, and it never acted upon re-drafted plans submitted
by the plaintiff.
(Id. ¶¶ 33-34).
The plaintiff claims that the
City’s continued refusal to approve a water booster station design
15
(which leads to a refusal to issue permits) was also due to
Fiorentini’s insisting that the plaintiff first dismiss the state
lawsuit.
(Id. ¶ 36).
The defendants argue that conditioning an action upon the
dismissal of a lawsuit is a perfectly normal course of conduct.
Perhaps, but it depends on the circumstances.
At this early
juncture, where discovery has not yet fleshed out whether any
overtures made to the plaintiff regarding dismissal of the state
action were benign or otherwise, the plaintiff has alleged conduct
which, if true, could shock the conscience of a reasonable person.
See Brockton Power LLC v. City of Brockton, 948 F. Supp.2d 48, 69
(D. Mass. 2013) (plaintiffs sufficiently pled substantive due
process violation when they alleged that mayor led orchestrated
campaign by changing zoning laws to impact plaintiffs only; refused
to
issue
permits
for
plaintiffs’
property;
and
forced
plaintiffs to repeatedly engage in frivolous litigation).
the
The
motion as to the plaintiff’s substantive due process claim is
therefore denied. 4
2. The State Claims
The complaint also asserts state claims for (i) violation of
the Massachusetts Civil Rights Act (MCRA), M.G.L. c. 12 § 11, (ii);
Interference with Contractual and Economic Relations, and (iii)
4
For the reasons stated in its earlier memorandum, the court also finds that
dismissal based on qualified immunity is not appropriate at this stage of the
proceedings. (D. 52, pp. 22-23).
16
civil conspiracy.
The court finds that none of these claims is
barred as a result of the state court action.
Regarding the civil rights claim, the MCRA is co-extensive
with § 1983.
It does not require state action but it does require
threats, intimidation, or coercion.
1, 10 (1st Cir. 2002).
Kelley v. LaForce, 288 F.3d
Maroney contends that Fiorentini called
him into his office, claimed Maroney owed the City $250,000, but
told him if he dropped the lawsuit he would get all the permits he
wanted. (D. 51, ¶ 37). Fiorentini also allegedly told individuals
who had signed contracts to purchase homes in the disputed area
that he had met with Maroney and that “Mr. Maroney knows what he
has to do.”
(Id. ¶ 41).
Notwithstanding that some of the
plaintiff’s allegations concern matters precluded by the state
court
decision
(e.g.,
id.
¶
44),
the
allegations
concerning
Fiorentini are distinct from claims Maroney advanced in that action
and thus may be relied upon to allege that the plaintiff was denied
due process by intimidation at the very least.
The complaint
therefore asserts a valid MCRA claim.
The complaint also sufficiently pleads the elements of the
tort
of
interference
with
contractual
or
economic
although it certainly could be more detailed.
relations,
To prevail a
plaintiff must show: “‘(1) the existence of a contract or business
relationship
which
contemplated
economic
benefit;
(2)
the
defendant[’s] knowledge of the contract or business relationship;
17
(3) the defendant[’s] intentional interference with the contract
or business relationship for an improper purpose or by improper
means;
and
(4)
damages.”
Braintree
Labs.,
Inc.
v.
Bedrock
Logistics, LLC, No. 16-cv-11936, 2018 WL 4100040, at *8 (D. Mass.
Aug. 28, 2018) (alterations in original) (quoting Swanset Dev.
Corp. v. City of Taunton, 668 N.E.2d 333, 338 (Mass. 1996)). The
plaintiff alleges that due to the defendants’ actions, he has
potentially lost substantial sums of money because he cannot
develop his remaining lots as contemplated.
(D. 51, ¶ 41).
He
also claims that Fiorentini met with twelve people already under
contract with the plaintiff to buy homes and told them that there
was no timetable to complete the water station and, when asked by
a realtor if the plaintiff would need to drop his lawsuit before
being allowed to proceed, Fiorentini nodded yes.
Again,
even
when
precluded
allegations
are
(Id. ¶40).
discounted,
these
allegations on their own sufficiently allege that the plaintiff
anticipated
economic
development,
the
benefit
defendants
from
knew
the
about
completion
the
of
the
development,
they
intentionally interfered with prospective purchasers so that the
plaintiff would drop his lawsuit, and the plaintiff suffered
damages.
Regarding the final state claim for civil conspiracy, a
complaint
must
allege
facts
sufficient
to
show
that
“the
defendants, acting in unison, had some peculiar power of coercion
18
over plaintiff that they would not have had if they had been acting
independently” (coercion-type conspiracy), or that the defendants
had a common design or agreement to do a wrongful act and committed
a tortious act in furtherance of the agreement (concerted action
conspiracy).
Aetna Cas. Sur. Co. v. P&B Autobody, 43 F.3d 1546,
1563-64 (1st Cir. 1994).
The complaint meets this standard where
it alleges that Fiorentini directed the Water Department not to
issue any permits until the state lawsuit was voluntarily dismissed
and the water department, overseen by Ward, agreed.
(D. 51 ¶ 43).
The alleged conduct post-dates the filing of the state court action
and thus is not precluded by it.
IV.
CONCLUSION
For
the
foregoing
reasons,
the
defendants’
Motion
for
Judgment on the Pleadings (D. 61) is ALLOWED in part and DENIED in
part.
The portion of Count I of the amended complaint alleging a
violation
of
dismissed.
the
plaintiff’s
right
to
equal
protection
is
The motion is otherwise denied with respect to the
remaining portion of Count I alleging a deprivation of substantive
due process, and is also denied with respect to Counts II, III,
and IV.
SO ORDERED.
/s/Donald L. Cabell________
Donald L. Cabell, U.S.M.J.
Dated:
September 13, 2019
19
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?