Bourne v. Gardner et al
Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDERIn accordance with the foregoing,1) defendants motion to dismiss (Docket No. 8) is ALLOWED and2) plaintiffs motion to amend his complaint (Docket No. 15) is DENIED.So ordered.(Caruso, Stephanie)
United States District Court
District of Massachusetts
Roy E. Gardner and Town of East )
Civil Action No.
MEMORANDUM & ORDER
This cases involves a land dispute between Samuel Bourne
(“Bourne” or “plaintiff”), the Town of East Bridgewater,
Massachusetts (“the Town”) and the Chairman of its Planning
Board, Roy E. Gardner (collectively, “defendants”).
generally alleges that defendants violated his constitutional
right to due process and that their actions prevented him from
acquiring the subject parcel of land, in violation of the
Takings Clause of the Fifth Amendment to the United States
Pending before the Court are defendants’ motion to dismiss
plaintiff’s claims, or, alternatively, to transfer the case to
state court and plaintiff’s motion to amend his complaint.
the reasons that follow, defendant’s motion to dismiss will be
allowed and plaintiff’s motion to amend will be denied.
On March 17, 2016, Bourne acquired title to a parcel of
land known as “Lot 31” in East Bridgewater, Massachusetts.
recorded the deed on April 1, 2016 with the Plymouth County
Registry of Deeds (“the Registry of Deeds”).
On June 30, 2016, Roy Gardner (“Gardner”), the Chairman of
the Planning Board for the Town of East Bridgewater wrote Bourne
a letter in which he notified Bourne that the acquisition of
Lot 31 violated several local zoning ordinances.
day, Gardner’s letter was recorded with the Registry of Deeds.
In response to Gardner’s letter, Bourne filed a complaint
in the Massachusetts Superior Court for Plymouth County,
asserting claims against Gardner and the Town for 1) slander of
title, 2) negligence, 3) quiet title and 4) “injunction to
Meanwhile, Bourne also filed suit against Gardner and the
Town in this Court in November, 2016.
Although the factual
allegations are nearly identical, here Bourne alleges three
causes of action:
1) “ultra vires” (Count I), 2) due process
violations (Count II) and 3) unlawful taking (Count III).
In December, 2016, defendants moved to dismiss this case
or, in the alternative, to transfer plaintiff’s claims for
resolution in the state court case.
While that motion was
pending plaintiff filed a motion to amend his complaint, seeking
to add Dorothy L. Simpson (“Simpson”), a secretarial clerk who
works for the Town under Gardner, as a defendant and two causes
conspiracy against Gardner and Simpson and
intentional interference with contractual relations against all
This memorandum addresses both pending motions.
The Pending Motions
Motion to Dismiss
To survive a motion to dismiss for failure to state a claim
under Fed. R. Civ. P. 12(b)(6), a complaint must contain
“sufficient factual matter” to state a claim for relief that is
actionable as a matter of law and “plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A claim is
facially plausible if, after accepting as true all nonconclusory factual allegations, the court can draw the
reasonable inference that the defendant is liable for the
misconduct alleged. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d
1, 12 (1st Cir. 2011).
A court may not disregard properly pled
factual allegations even if actual proof of those facts is
Rather, the relevant inquiry focuses on the
reasonableness of the inference of liability that the plaintiff
is asking the court to draw. Id. at 13.
When rendering that determination, a court may not look
beyond the facts alleged in the complaint, documents
incorporated by reference therein and facts susceptible to
judicial notice. Haley v. City of Boston, 657 F.3d 39, 46 (1st
Motion to Amend
The Court has broad discretion under Fed. R. Civ. P.
15(a)(2) to allow the plaintiff to amend his pleadings and
“should freely give leave when justice so requires.” United
States ex rel. Gagne v. City of Worcester, 565 F.3d 40, 48 (1st
Courts may deny such leave to amend, however, if
the amendment would be “futile”. Palmer v. Champion Mortg., 465
F.3d 24, 30 (1st Cir. 2006).
In determining whether an
amendment would be futile, the Court applies the same standard
which it applies to motions to dismiss under Rule 12(b)(6).
Adorno v. Crowley Towing & Transp. Co., 443 F.3d 122, 126 (1st
Defendant’s Motion to Dismiss or Transfer
The “prior pending action” doctrine provides that, to
ensure judicial efficiency and avoid inconsistent judgments,
the pendency of a prior action, in a court of
competent jurisdiction, between the same parties,
predicated upon the same cause of action and growing
out of the same transaction, and in which identical
relief is sought, constitutes good ground for
abatement of the later suit.
Quality One Wireless, LLC v. Goldie Grp., LLC, 37 F. Supp. 3d
536, 540-41 (D. Mass. 2014).
The doctrine permits a court to
stay or dismiss the later action if 1) there is an “identity of
issues” between the earlier and later cases and 2) the earlier
action will determine the controlling issues in the later case.
Id. at 541.
An examination of the pleadings in the public record
establishes that the “prior pending action” doctrine bars
plaintiff’s claims against Gardner and the Town in this action.
Plaintiff’s claims against defendants in this case and the
state court case concern a letter sent (and later recorded at
the Registry of Deeds) by Gardner which has allegedly clouded
plaintiff’s title to Lot 31.
The witnesses and documents at
issue in both cases, the parties and the claimed damages are all
Moreover, the result of the state court litigation will be
binding on this court. See Spencer v. Dookhan, No. 16-cv-12076,
2017 WL 2785423, at *4 (D. Mass. June 27, 2017) (explaining
that, in the context of § 1983 claims raised in federal court,
federal courts must give “preclusive effect” to Massachusetts
state court judgments involving the same parties and issues).
Finally, the fact that plaintiff could have amended his
complaint in state court to add the causes of action raised
here, see Haywood v. Drown, 556 U.S. 729, 735 (2009)
(recognizing that state courts have jurisdiction over § 1983
claims), supports dismissal. Cf. Quality One at 541 (“[W]hen it
is possible that, through amendment, each action may contain all
of the issues and parties presently contained in either action,
the continuation of the first action to be filed is favored.”
(quoting Holliday v. City of Newington, No. 3:03CV1824, 2004 WL
717160, at *1 (D. Conn. Mar. 19, 2004))).
Accordingly, defendants’ motion to dismiss plaintiff’s
complaint will be allowed and the claims will be dismissed
Plaintiff’s Motion to Amend
Plaintiff seeks to amend his complaint to add Simpson and
two causes of action because he “discovered” new evidence.
Defendants respond that such evidence was information they
provided as part of discovery in the pending state court case
and, in any event, the proposed amendments would be futile
because the new claims are subject to dismissal.
First, the addition of Simpson as a defendant does not save
plaintiff’s original three claims, which are repeated in his
proposed amended complaint, from application of the prior
pending action doctrine. See id. (“The parties in the two suits
need not be identical; they need only share sufficient
congruence of interests.” (citing Whitten Ranch, Inc. v. Premier
Alfalfa, Inc., No. 4:09CV3007, 2009 WL 1844482, at *2 (D. Neb.
June 18, 2009)).
Here, plaintiff alleges that the Gardner and
Simpson worked with each other to cloud title to his property.
Thus, both individuals have the same interest in the outcome of
the case. See Whitten Ranch, 2009 WL 1844482, at *2.
In Count IV of his proposed amended complaint, plaintiff
alleges that the individual defendants (Gardner and Simpson)
conspired against him, in violation of 42 U.S.C. § 1985(3).1
Gardner and Simpson maintain that they entitled to qualified
In the context of § 1985(3) claims, to be entitled to
qualified immunity, Gardner and Simpson must not have known, or
could not have predicted, that the statute would preclude them
corresponding with each other about the subject letter. See
Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 (2017).
Here, the fact that Gardner and Simpson work as part of the
same agency establishes that they are entitled to qualified
immunity because it is unlikely that government officials within
Defendants contend that plaintiff has stated a claim for
conspiracy against the Town as well as against the individual
defendants but the allegations in Count IV only refer to Gardner
a single agency could conspire with each other for the purpose a
of § 1985(3) claim. Id. at 1867-69.
Moreover, the statute requires that the conspiracy be based
upon “class-based animus,” Aulson v. Blanchard, 83 F.3d 1, 4
(1st Cir. 1996), and plaintiff has made no such allegation.
Thus, Count IV of the proposed amended complaint is subject
In Count V of the proposed amended complaint, plaintiff
claims that Gardner, Simpson and the Town intentionally
interfered with his “contractual relations”.
With respect to
the claims asserted against Gardner and Simpson, defendants
contend that plaintiff has not alleged any improper conduct on
The Court agrees.
To state a claim for intentional interference with
contractual relations, plaintiff must allege facts that show
that Garnder and Simpson acted “for an improper purpose or by
improper means.” Swanset Dev. Corp. v. Taunton, 668 N.E.2d 333
Plaintiff’s conclusory allegations that they
“rushed to . . . directly interfere” with his land deal are not
sufficient to state a claim upon which relief can be granted. In
re Ariad Pharm., Inc. Sec. Litig., 842 F.3d 744, 750 (1st Cir.
2016) (“[The Court] need not credit the plaintiffs’ legal
conclusions or characterizations.” (internal quotation marks
omitted) (quoting In re Bos. Sci. Corp. Sec. Litig., 686 F.3d
21, 27 (1st Cir. 2012))).
With respect to plaintiff’s claim against the Town, the
Massachusetts Tort Claims Act, M.G.L. c. 258, § 10(c), expressly
bars such claims.
Accordingly, Count V is also subject to dismissal.
Plaintiff’s proposed amendment would thus be futile.
In accordance with the foregoing,
defendants’ motion to dismiss (Docket No. 8) is
plaintiff’s motion to amend his complaint (Docket No.
15) is DENIED.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated September 7, 2017
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