Smith v. Town of West Bridgewater et al

Filing 68

Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT(Halley, Taylor)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
ROBERT SMITH,
)
)
Plaintiff,
)
)
)
v.
)
TOWN OF WEST BRIDGEWATER,
)
JERRY D. LAWRENCE,
)
DONALD CLARK,
)
VICTOR R. FLAHERTY, JR., and
)
CHRISTOPHER WERNER,
)
)
Defendants.
)
_______________________________________)

Civil Action No.
16-11714-FDS

MEMORANDUM AND ORDER ON DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT
SAYLOR, J.
This is an action for alleged whistleblower retaliation. Plaintiff Robert Smith was
employed as a special police officer in the town of West Bridgewater for more than thirteen
years. He contends that he was suspended and then removed from his position in retaliation after
he reported to the police chief that his sergeant was giving special treatment to a town selectman,
who was also a close friend of the sergeant. The individual defendants and the Town of West
Bridgewater contend that he was not reappointed because of his record of insubordination, and
have filed separate motions for summary judgment as to all the remaining claims against them.
Because Smith did not have a property interest in his continued employment as a special
police officer, the individual defendants’ motion for summary judgment will be granted as to his
due-process claim under 42 U.S.C. § 1983. That is the only federal claim asserted in this matter.
The Court will decline to exercise its discretion to retain supplemental jurisdiction over the

remaining state-law claims, and therefore will remand the case to Plymouth County Superior
Court.
I.

Background
A.

Factual Background

The following facts are undisputed unless otherwise indicated.
1.

The Parties

Robert Smith was appointed as a Special Police Officer (“SPO”) for the West
Bridgewater Police Department (“WPD”) on October 30, 2002. (Ind. Defs. SMF Ex. 3). He
previously served as a sergeant in the WPD before retiring in 2002. (Id. Ex. 4 at 46:18-47:15,
60:10-12). Smith’s last day of employment was on May 5, 2016. (Id. Ex. 4 at 34:10-35:9).
The Town of West Bridgewater (“Town”) employed Smith through the WPD. (Ind.
Defs. SMF Ex. 3).
Jerry Lawrence is a selectman for the Town, who has served continuously since 2006.
(Ind. Defs. SMF Ex. 7 at 10:19-11:2).
Donald Clark is a former WPD police officer. (Ind. Defs. SMF Ex. 20 at 10:7-9). He
began his employment in 1986, and was made Chief of Police in 2004. (Id. Ex. 20 at 10:7-9,
15:20-24). He retired in July 2016. (Id. Ex. 20 at 17:11-22).
Victor R. Flaherty, Jr. is the current WPD Chief of Police, appointed on March 9, 2016.
(Ind. Defs. SMF Ex. 5 at 5:3-7).
Christopher Werner is a sergeant with the WPD. (Ind. Defs. SMF Ex. 13 at 9:13-15). He
joined the WPD in 1996 and was promoted to sergeant in August 2005. (Id. Ex. 13 at 6:3-8,
9:13-15).
2.

Officer Monteiro Encounters Lawrence

Smith retired from the WPD force in 2002, and soon after was appointed to the position
2

of SPO with WPD. (Ind. Defs. SMF Ex. 3, Ex. 4 at 60:10-12). According to Smith, on April 12,
2015, WPD Officer Matthew Monteiro asked to speak with him at the WPD station. (Ind. Defs.
SMF Ex. 4 at 203:23-204:14). Monteiro told him that he recently pulled over Lawrence for
several driving violations, including an expired inspection sticker, driving without his license in
his possession, and attaching license plates to an incorrect vehicle. (Id. Ex. 4 at 204:22-205:14;
see id. Ex. 11 at 9:1-10:21, 16:16-17:1, 32:23-33:4). Smith testified that Monteiro was upset
because Werner had told him to release Lawrence with no further police action and not to enter
the stop in the logbook. (Ind. Defs. SMF Ex. 4 at 205:4-206:15).
Monteiro testified that he recognized Lawrence’s name when he stopped him and knew
that he was a selectman. (Ind. Defs. SMF Ex. 11 at 11:16-12:3, 14:10-22). As a relatively new
officer who had served just 14 months, he called Werner, his superior, to ask advice on how to
proceed. (Id. Ex. 11 at 11:15-12:19).1 After the call, Monteiro released Lawrence with a verbal
warning and did not enter the incident into the official police log. (Id. Ex. 11 at 19:12-18).2 He
could not remember whether he had yelled at Lawrence during the stop. (Id. Ex. 11 at 19:2420:15, 41:17-42:19). At some point, Monteiro learned that another officer had noticed a problem
with Lawrence’s plates approximately two weeks before Monteiro stopped him, but he could not
remember when he learned that. (Id. Ex. 11 at 35:1-36:4; see id. Ex. 13 at 46:4-48:11; id. Ex. 7
at 31:5-12).
Werner testified that he did not specifically tell Monteiro how to proceed during the
motor-vehicle stop, but only informed him that he had discretion to release Lawrence with a

1
Monteiro could not remember whether he had called the unrecorded line, but said it was his “common
practice” to call that line if he had a question. (Ind. Defs. SMF Ex. 11 at 19:4-11).
2

Monteiro testified that he had called Werner for advice on some stops before and chosen not to log stops
before, but could not remember if he had previously done so for the particular combination of motor-vehicle
violations that Lawrence had. (Ind. Defs. SMF Ex. 11 at 13:2-14:9, 24:21-26:8).

3

warning. (Ind. Defs. SMF Ex. 13 at 28:9-29:21). According to Werner, officers also have
discretion as to whether motor-vehicle stops are logged into the WPD system. (Id. Ex. 13 at
38:5-41:23). Werner testified that at the time he spoke to Monteiro on the phone he did not
know that another officer, Officer Winkler, had previously noticed that there was an issue with
Lawrence’s plates. (Id. Ex. 13 at 45:22-46:7). At some point, however, he learned that Winkler
had seen Lawrence’s car parked in the parking lot of the Town Hall and noticed that the plates
were registered to a different vehicle. (Id. Ex. 13 at 46:4-48:12). Werner also testified that he
and Lawrence had been close personal friends for many years, although they had recently grown
a little bit distant. (Id. Ex. 13 at 10:6-18). In recounting a conversation with Lawrence sometime
after Monteiro pulled him over, Werner stated that Lawrence was upset over being lectured by
the officer during the stop. (Id. Ex. 13 at 32:9-33:8).
Lawrence testified that he apologized to Monteiro and told him that Winkler had told him
to take care of the registration issue weeks ago. (Ind. Defs. SMF Ex. 7 at 31:5-12). He said
Monteiro yelled at him and told him he should be ashamed of himself. (Id. Ex. 7 at 31:14-16,
32:19-33:1). He testified that he was “pretty shaken at the way [he] was talked to” and that four
or five days later he contacted the police station to say that “if I ever heard an officer talk to
anybody the way he was talking to me, other than someone that has committed a violent crime, I
would be really not happy as a selectman.” (Id. Ex. 7 at 40:5-17).
3.

Smith Encounters Lawrence

On April 22, 2015, Smith was assigned by WPD to perform detail work in West
Bridgewater. (Ind. Defs. SMF Ex. 4 at 211:13-212:1).3 During his shift, Smith saw Lawrence

3
Smith performed an eight-hour detail for Verizon on April 22, 2015; he provided traffic safety control for
workers and was paid $360 for his services. (Ind. Defs. SMF Ex. 4 at 38:11-39:21).

4

near the playground area of the Howard School and his car parked in the parking lot nearby. (Id.
Ex. 4 at 213:5-19). Lawrence approached him and asked how he was enjoying his retirement.
(Id. Ex. 4 at 214:4-24). Smith responded by asking Lawrence if he had taken care of his car
registration, and he said that he had. (Id. Ex. 4 at 215:1-8). After Lawrence had left, Smith
called the WPD unrecorded dispatch line from his cell phone to request that they run Lawrence’s
plates through their system. (Id. Ex. 4 at 216:1-217:3). The desk officer on the line ran the
plates and told Smith they were active. (Id. Ex. 4 at 217:2-3).
According to defendants, at the time of the call from Smith, WPD had a policy that SPOs
were not to engage in law enforcement activities (such as calling in license plates) while working
a detail. (Ind. Defs. SMF Ex. 6). This stated policy was set forth in a memorandum that was
issued by WPD Chief of Police Anderson in 1992. (Id.). Smith testified that he had heard of the
memorandum at the time of the call on April 22, 2015, but had never actually seen it and
believed it did not constitute official policy. (Ind. Defs. SMF Ex. 4 at 117:2-24, 119:11-17,
126:1-9). According to Smith, the memorandum was referred to as the “Tuck Rule,” and was
written to apply only to a former officer named Phil Tuck, who pulled over multiple cars while
working private details, leading the private companies involved to complain that he was not
doing the job that they hired him to do. (Id. Ex. 4 at 126:6-128:11). Werner testified that SPOs
have made arrests while on detail despite the memorandum. (Id. Ex. 13 at 15:24-16:19).
Monteiro also testified that officers working a detail have previously called into WPD dispatch to
run plates, that he is not aware of any rule or policy against it, and that he had never heard of
anyone getting suspended for doing that. (Id. Ex. 11 at 39:10-40:5).
Werner overheard Smith’s call into the WPD to run Lawrence’s plates while he was
working near the dispatch center. (Ind. Defs. SMF Ex. 13 at 59:1-12). He testified that he found

5

the call unusual because SPOs do not normally call in plates. (Id. Ex. 13 at 59:22-60:6). Werner
testified that he discussed the matter with Flaherty, who told him to speak with Smith and remind
him that SPOs are not issued citation books and should not be involved with motor-vehicle
enforcement while on detail. (Id. Ex. 13 at 62:21-63:19).
4.

Suspension

When Smith returned to WPD after his detail was complete, Werner called him into his
office. (Ind. Defs. SMF Ex. 4 at 229:11-20). Werner asked Smith why he had called in the
plates; Smith replied that he knew Lawrence’s plates were not properly registered and wanted to
ensure the vehicle was legal to be on the road. (Id. Ex. 4 at 231:1-8). According to Smith,
Werner accused him of “trying to start . . . a shit show,” then told him he had previously been
told not to enforce traffic regulations while on detail. (Id. Ex. 4 at 233:1-2, 234:11-21). Smith
pointed his finger at Werner and responded, “Don’t accuse me of doing something or knowing
something that was not told to me. I was never told that, ever.” (Id. Ex. 4 at 234:11-21). The
conversation then escalated, with both men pointing at each other and raising their voices. (Id.
Ex. 4 at 233:6-23, 237:2-23). At some point, according to Smith, he decided they were not
getting anywhere and told Werner that he was done with the conversation and left the office. (Id.
Ex. 4 at 235:14-18). Smith testified that Werner never told him to stop enforcing traffic laws
while on detail and never told him not to leave the office. (Id. Ex. 4 at 97:9-15, 234:2-5, 235:47). Werner followed him outside the office and told him he was suspended from the detail list.
(Id. Ex. 4 at 235:22-24). Smith testified that he asked Warner what authority he had to do that,
and he pointed to his sleeve and said, “Right here. If you don’t like it, go over my head.” (Id.
Ex. 4 at 236:2-8).
Werner testified that Smith repeatedly told him he would not follow his instructions to
stop engaging in traffic enforcement while on detail, and repeatedly questioned Werner’s
6

authority over him. (Ind. Defs. SMF Ex. 13 at 82:23-83:23; see id. Ex. 14, 15). One of the
officers sitting outside Werner’s office wrote in a memo dated August 3, 2016, that Werner told
Smith, “Don’t walk away from me, Smitty, I’m not done talking to you,” and “If you walk out of
here you can consider yourself suspended.” (Id. Ex. 15).
On April 27, 2015, Smith met with Clark, who reaffirmed Werner’s decision and
suspended Smith from the detail list for 45 days, citing his insubordination to Werner. (Ind.
Defs. SMF Ex. 4 at 62:23-64:21, 94:2-16, 248:13-16). According to Smith, he told Clark during
that meeting that he believed Werner “violated the law by telling [Monteiro] not to enter any of
the related info concerning [Lawrence’s April 12, 2015 vehicle stop] into the police log.” (Id.
Ex. 10 at Answer Nos. 5 & 6). According to Smith, Clark said he would look into the matter.
(Id. Ex. 4 at 100:2-24). Clark testified that he spoke to Monteiro about his stop of Lawrence, but
did not conduct any formal investigation or have Monteiro make a written report. (Ind. Defs.
SMF Ex. 20 at 57:18-21, 76:20-22).
5.

May 2015 Reappointment

The appointment and removal of SPOs is governed by Mass. Gen. Laws ch. 41, § 96,
which provides:
In any town in which such appointments are not subject to chapter thirty-one, they
shall be made annually or for a term of years not exceeding three years, as the
selectmen shall determine, and the selectmen may remove such officers for cause
at any time during such appointment after a hearing.
Mass. Gen. Laws ch. 41, § 96. The Town appoints SPOs for a term of one year. (Ind. Defs.
SMF Ex. 7 at 71:15-72:7, 84:19-21; see id. Ex. 3). The appointments are made each May by the
West Bridgewater Board of Selectmen, of which Lawrence is a member. (Id.). The
appointments are made based on recommendations by the Chief of Police, and they are
customarily “rubber-stamped” by the Board. (Id. Ex. 7 at 71:15-72:7).
7

On May 20, 2015, less than a month after his suspension, Smith was unanimously
appointed as an SPO for another year by the Board, having been recommended by Clark. (Ind.
Defs. Ex. 9 at 9-10).
Upon Smith’s return to duty on June 1, 2015, Clark testified that he instructed Smith not
to run plates, write tickets, or do anything other than direct traffic. (Ind. Defs. SMF Ex. 20 at
66:7-13). After that, according to defendants, Smith stopped communicating with his superior
officers. (Id. Ex. 4 at 66:10-67:21).4
6.

May 2016 Failure to Reappoint

The following year, on May 2, 2016, newly appointed Chief of Police Flaherty gave his
SPO recommendations to the Board. (Ind. Defs. SMF Ex. 16). Smith was the only eligible
officer not included as a recommended SPO for the next year. (Id. Ex. 5 at 82:6-84:8). The
Board unanimously voted to approve the list of recommended SPOs. (Id. Ex. 17 at 2). Flaherty
conceded in his deposition that nothing occurred between Smith’s reappointment in 2015 and
non-reappointment in 2016 to warrant “just cause” for his termination. (Id. Ex. 5 at 102:22103:5). However, when asked why he did not recommend Smith for reappointment as an SPO in
2016, Flaherty testified that:
[The reason I elected not to recommend Smith as an SPO was] [h]is
insubordination record. His lack of communication with the sergeants. We have
young sergeants, young officers, and they felt restricted and tension with the fact
that they would speak with [Smith] about certain situations that they felt needed
to be done, when he comes back and says he argued with them or says that’s not
the way I’d do it and if there’s an issue I’ll just go see the Chief. So a lot of us
sergeants, younger sergeants were really afraid to the fact that they didn’t want to
approach him. Younger officers were seeing this. I didn’t think it was
appropriate for our younger officers to believe that this was appropriate, and

Smith disputes that fact “to the extent that the above-statement implies that the Plaintiff was the reason
the individuals stopped communicating,” although he does not provide a clear reason for the cessation of
communications. (Pl. SMF ¶ 23).
4

8

that’s why I discontinued and didn’t recommend [Smith] to be reappointed.
(Def. SMF Ex. 5 at 44:4-21).
Smith had been previously disciplined twice for insubordination, once in 1997 and once
in 2002. (Ind. Defs. SMF Ex. 18; id. Ex. 4 at 86:10-92:22). Smith testified that the 2002
complaint filed against him had been dismissed on appeal to the Civil Service. (Id. Ex. 4 at
89:17-24).
Flaherty personally informed Smith he had not been reappointed on May 5, 2016. (Id.
Ex. 4 at 36:12-37:4). Flaherty did not give a reason to Smith for his non-renewal at that time.
(Id. Ex. 4 at 40:24-41:10).
B.

Procedural Background

Smith filed this action in state court on June 27, 2016. Defendants removed the case on
the basis of federal-question jurisdiction pursuant to 28 U.S.C. § 1331.
The complaint contains four claims. Count 1 alleges a violation of Mass. Gen. Laws ch.
149, § 185, providing protection from retaliation to whistleblowers, against the Town. Count 2
alleges violations of Massachusetts Civil Rights law against defendants Lawrence, Clark,
Flaherty, and Warner, in their individual and official capacities. See Mass Gen. Laws ch. 12,
§§ 11H, 11I. Count 3 alleges a claim for civil conspiracy against all defendants. And Count 4
alleges a § 1983 claim for violation of plaintiff’s procedural-due-process rights against all
defendants.
Defendant Town of West Bridgewater moved to dismiss all claims against it for failure to
state a claim upon which relief can be granted. The motion was granted as to Counts 3 and 4 and
denied as to Count 1, which is the only remaining claim against the Town.
The Town has moved for summary judgment as to Count 1. Defendants Clark, Flaherty,
Lawrence, and Werner have moved for summary judgment as to Counts 2-4.
9

II.

Standard of Review
The role of summary judgment is to “pierce the pleadings and to assess the proof in order

to see whether there is a genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822
(1st Cir. 1991) (internal quotation mark omitted). Summary judgment is appropriate when the
moving party shows that “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Essentially, Rule 56[] mandates
the entry of summary judgment ‘against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.’” Coll v. PB Diagnostic Sys., Inc., 50 F.3d 1115, 1121 (1st Cir.
1995) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). In making that
determination, the court must “view the record in the light most favorable to the nonmovant,
drawing reasonable inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir.
2009). When “a properly supported motion for summary judgment is made, the adverse party
must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotation marks and footnotes omitted). The
non-moving party may not simply “rest upon mere allegation or denials of his pleading,” but
instead must “present affirmative evidence.” Id. at 256-57.
III.

Analysis
A.

Count 4: Procedural Due Process

The only federal claim in this case is Count 4, which alleges that defendants Lawrence,
Clark, Flaherty, and Werner violated Smith’s constitutional right to due process by removing
him from his position without a hearing. Specifically, the complaint alleges as follows:
At all relevant times, the Plaintiff possessed a constitutionally and statutorily
protected property interest in his continued employment with the West
Bridgewater Police Department.
10

The actions of the Defendants in removing the Plaintiff from his position without
a hearing as required under [sic] were retaliatory and taken with reckless
disregard for the Plaintiff’s constitutional rights, including, but not limited to, his
rights under M.G.L. c. 41 § 96.
The Defendants intentionally delayed until the annual appointments of Special
Police Officers to remove the Plaintiff from his position rather than discharge him
pursuant to M.G.L. c.41 § 96, which would have required a full hearing. This
process would have revealed the blatant impropriety of the Department in
covering up the violations of law by Defendant Lawrence and members of the
Department.
(Compl. ¶¶ 61-63).
The complaint thus alleges a procedural-due-process claim under 42 U.S.C. § 1983.
Section 1983 provides a cause of action against “[e]very person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws.” 42 U.S.C. § 1983; see Gagliardi v. Sullivan, 513 F.3d 301, 306 (1st Cir.
2008). It is not a source of substantive rights, but a vessel for relief from deprivation of rights
protected elsewhere by the Constitution or federal law. Albright v. Oliver, 510 U.S. 266, 271
(1994) (citing Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Thus, Smith must demonstrate
that there is a genuine issue of material fact as to whether defendants deprived him of a right
protected by the Constitution or federal law.
The Fourteenth Amendment provides that a state may not “deprive any person of life,
liberty, or property, without due process of law.” U.S. CONST. amend. XIV, § 1. “For an interest
in a statutorily created benefit to become a protected property interest under the Fourteenth
Amendment, a person ‘must have more than a unilateral expectation of it. He must, instead,
have a legitimate claim of entitlement to it.’” Coyne v. City of Somerville, 972 F.2d 440, 443
(1st Cir. 1992) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)). In the specific
11

instance of termination from state employment, to maintain a procedural-due-process claim, “a
public employee must first demonstrate that he has a reasonable expectation, arising out of a
statute, policy, rule, or contract, that he will continue to be employed.” Wojcik v. Mass. State
Lottery Comm’n, 300 F.3d 92, 101 (1st Cir. 2002) (citing Perkins v. Bd. of Dirs., 686 F.2d 49, 51
(1st Cir. 1982)).
Smith points to Mass. Gen. Laws ch. 41, § 96 as the authority for his expectation of
continued employment. As noted, that statute provides that “the selectmen may remove such
officers for cause at any time during such appointment after a hearing.” (Mass. Gen. Laws ch.
41, § 96) (emphasis added). By its terms, the statute provides for for-cause removal after a
hearing only if the removal is effected “during such appointment.” It is undisputed that the
Board appoints SPOs for one-year terms. (Pl. Resp. to Ind. Defs. SMF ¶ 13). And it is wellestablished that annual contracts do not give employees a property interest beyond the stated
duration of their contracts, regardless of previous reappointment. See Gomez. v. Rivera
Rodriguez, 344 F.3d 103, 111 (1st Cir. 2003) (reversing district court’s holding that continuously
re-employed plaintiffs had property interest beyond stated duration of annual contracts).
Therefore, the statute did not give Smith a reasonable expectation of continued employment
beyond his annual term.
Smith alleges that defendants intentionally delayed his “termination” to hide the
retaliatory reasons behind it. On a motion for summary judgment, the facts must be viewed in
the light most favorable to the moving party. Therefore, the Court will assume, for present
purposes, that Werner in fact ordered Monteiro not to write up Lawrence’s driving violations;
that the order violated WPD policy; that any existing policy prohibiting SPOs from enforcing
traffic violations while on detail was not generally enforced; and that Smith was not reappointed

12

because he had complained about Lawrence’s special treatment.
That evidence, even taken in the light most favorable to Smith, does not provide him a
constitutionally protected property interest in his job. Even if he had received a hearing and
defendants had not been able to provide cause for terminating him, Smith was entitled, at most,
to employment through the end of his annual contract. He maintained employment for that term,
and was in fact reinstated and kept as an SPO for an additional contract year. Therefore, any
failure to give him a hearing has not resulted in deprivation of a protected property interest.
It is true that even absent a property interest in a job, public employees cannot be fired for
constitutionally impermissible reasons. E.g., Bleeker v. Dukakis, 665 F.2d 401, 403 n.3 (1st Cir.
1981) (explaining that plaintiff’s “employment interest might well be protected against action
‘based on some constitutionally impermissible ground, such as racial, religious or sexual
discrimination, or retaliation for assertion of rights guaranteed by . . . the Constitution.’”
(alteration in original) (quoting Beitzell v. Jeffrey, 643 F.2d 870, 876 n.13 (1st Cir. 1981)));
Beitzell, 643 F.2d at 877-78 (examining potential liberty interest where no property interest
exists).5 However, Smith has not alleged that the retaliation here rises to the level of a
constitutional violation; at most, it is a violation of state law. (See Compl. ¶¶ 50-54 (alleging
violations of the Massachusetts whistleblower statute, Mass. Gen. Laws ch. 149, § 185)). “It is
bedrock law in this circuit . . . that violations of state law—even where arbitrary, capricious, or
undertaken in bad faith—do not, without more, give rise to a denial of substantive due process

5

Even without a protected property interest in their continued employment, public employees cannot be
fired in retaliation for exercising their First Amendment rights. Gomez, 344 F.3d at 111 n.5; Nieves-Villanueva v.
Soto-Rivera, 133 F.3d 92, 98 (1st Cir. 1997) (citing Elrod v. Burns, 427 U.S. 347 (1976); Branti v. Finkel, 445 U.S.
507 (1980)) (explaining that the Elrod-Branti line of cases “applies to a local government’s decision whether to
renew the contract of a transitory employee” and that “the fact that a transitory employee does not have a reasonable
expectation of renewal in his or her employment that would require due process protections does not defeat a First
Amendment claim”); see also Garcetti v. Ceballos, 547 U.S. 410 (2006). Here, however, Smith has neither pleaded
nor argued that he was fired in retaliation for exercising his First Amendment rights.

13

under the U.S. Constitution.” Coyne, 972 F.2d at 444. Accordingly, the individual defendants’
motion for summary judgment will be granted as to Count 4.
B.

Remand

Having disposed of the only federal question in the case, the Court must determine
whether to exercise supplemental jurisdiction over the remaining state-law claims.
A district court’s original jurisdiction extends, among other things, to “all civil actions
arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. If an
action includes both federal claims and state-law claims, then the district court may exercise
supplemental jurisdiction over the state-law claims to the extend they are “so related to claims in
the action within such original jurisdiction that they form part of the same case or controversy
under Article III of the United States Constitution.” 28 U.S.C. § 1367(a).
However, “[t]he district courts may decline to exercise supplemental jurisdiction over a
claim” if “the district court has dismissed all claims over which it has original jurisdiction.” Id.
§ 1367(c)(3); Uphoff Figueroa v. Alejandro, 597 F.3d 423, 431 n.10 (1st Cir. 2010). The
decision “is a ‘pragmatic and case-specific’ one” that is committed to the district court’s
discretion; the court “must take into account considerations of judicial economy, convenience,
fairness to the litigants, and comity.” Delgado v. Pawtucket Police Dep’t, 668 F.3d 42, 48 (1st
Cir. 2012) (quoting Roche v. John Hancokc Mut. Life Ins. Co., 81 F.3d 249, 257 (1st Cir. 1996)).
“[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of
factors to be considered under the pendent jurisdiction doctrine—judicial economy, convenience,
fairness, and comity—will point toward declining to exercise jurisdiction over the remaining
state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). Indeed, “it
can be an abuse of discretion—if no federal claim remains—for a district court to retain
jurisdiction over a pendent state law claim when that state law claim presents a substantial
14

question of state law that is better addressed by the state courts.” Wilber v. Curtis, 872 F.3d 15,
23 (1st Cir. 2017).
Here, the remaining state-law claims are for violations of the Massachusetts
whistleblower statute, the Massachusetts Civil Rights Act, and civil conspiracy. Those claims—
particularly the whistleblower claim, which derives from state policies affording greater
protection than federal constitutional law—raise substantial questions of state law and would
certainly be better addressed by the state court. While this case is not in early stages—fact
discovery is closed and dispositive motions have been filed—no trial has been scheduled and no
pretrial conference has been held. Filson v. Langman, 2002 WL 31528616, at *5-6 (D. Mass.
Nov. 13, 2002) (remanding at summary judgment stage even though the case had been on the
docket for more than three years and discovery had closed); see also Conrad v. Caliber Home
Loans, Inc., 2017 WL 1496922, at *2-3 (D. Mass. Apr. 25, 2017). Undoubtedly there may be
some delay associated with the remand, but there will be little duplication of effort.
Furthermore, the risk of delay and inconvenience is substantially outweighed by the interest of
the state courts in deciding the substantive state-law issues presented here.
Accordingly, the Court declines to exercise its supplemental jurisdiction over the
remaining counts. This case will therefore be remanded to the state court.
IV.

Conclusion
For the foregoing reasons, the individual defendants’ motion for summary judgment is

GRANTED in part as to Count 4. The case is hereby REMANDED to the Plymouth County
Superior Court. The Court does not reach defendants’ motions for summary judgment as to
Counts 1-3, which will remain pending after remand.

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So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor, IV
United States District Judge

Dated: July 10, 2018

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