Casey, Jr. v. 3M Company, et al.

Filing 29

Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER. The Court ALLOWS Apax's motion to dismiss. D. 13. TheCourt DENIES IN PART Casey's motion to amend the complaint as to the claims against Apax, the Probation Department and Alligator. D. 28. The Court ALLOWS IN PART Casey's motion to amend only to the extent it voluntarily dismisses 3M from the litigation. Id. (McKillop, Matthew)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
)
JAMES T. CASEY, JR.,
)
)
Plaintiff,
)
)
v.
)
)
Case No. 18-cv-11211-DJC
)
3M CORPORATION and
)
APAX PARTNERS,
)
)
Defendants.
)
)
)
__________________________________________)
MEMORANDUM AND ORDER
CASPER, J.
I.

February 12, 2019

Introduction
Plaintiff James T. Casey, Jr. (“Casey”), proceeding pro se, has filed the instant lawsuit

against Defendants 3M Company (“3M”), which is incorrectly identified as 3M Corporation in the
operative complaint, and Apax Partners (collectively, “Defendants”). D. 1-1 at 15-19. Casey
brings design defect and negligence claims against Defendants in connection with a GPS
monitoring bracelet that allegedly malfunctioned while Casey wore the device, causing Casey to
breach a condition of his pre-trial probation. Id. Although there has been some confusion around
the identity of named defendant Apax Partners, Casey has since clarified in pending motion papers
that he intended to name Apax Partners LLP (“Apax”) as a defendant in this action. 1

1

Although Casey named Apax Partners LLP (“Apax”) in his state court summons, D. 14-6, Casey
argued in his opposition to Apax’s motion to dismiss that Apax is not a party to this action, see,
e.g., D. 24 at 5. Casey asserted that the “actual defendant” is Apax Partners LP, a company that
1

Apax has moved to dismiss the action for lack of personal jurisdiction and insufficient
service of process pursuant to Fed. R. Civ. P. 12(b)(2) and 12(b)(5), respectively. D. 13. Casey
now moves to amend the operative complaint to, among other things, voluntarily dismiss 3M from
this action, bring new claims against Apax and to add claims against Alligator Holdco Ltd.
(“Alligator”) and the Commonwealth of Massachusetts Office of the Commissioner of Probation
(“Probation Department”). D. 28. For the reasons explained below, the Court ALLOWS Apax’s
motion to dismiss. The Court DENIES IN PART Casey’s motion to amend the complaint as to
the claims against Apax, the Probation Department and Alligator. The Court ALLOWS IN PART
the motion to amend to the extent it seeks to dismiss 3M voluntarily.
II.

Standard of Review
A.

Motion to Dismiss for Lack of Personal Jurisdiction and Insufficient Service

The Court must apply the prima facie standard of review when evaluating a motion to
dismiss for lack of personal jurisdiction under Rule 12(b)(2) without holding an evidentiary
hearing. United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001). To meet his
burden of establishing the Court has personal jurisdiction under the prima facie standard, Casey
must “demonstrate the existence of every fact required to satisfy both the forum’s long-arm statute
and the Due Process Clause of the Constitution.” Swiss Am. Bank, 274 F.3d at 618 (citing United
Elec. Radio and Mach. Workers of Am. v. 163 Pleasant St. Corp., 987 F.2d 39, 44 (1st Cir. 1993)).
The Court considers the facts alleged in the pleadings as well as the parties’ supplemental filings.

purportedly had an office at “445 Park Avenue” in New York, New York and has since moved to
Maryland. D. 24 at 1. In his subsequently filed motion to amend, however, Casey insists that he
intended to file the instant lawsuit against Apax. D. 28 at 1. Apax, for its part, is proceeding under
the assumption that it is the entity Casey intended to sue. D. 14 at 2-3 n.1; D. 27 at 2. For the
purpose of resolving the pending motions, the Court considers Apax the named defendant in this
action.
2

See Sawtelle v. Farrell, 70 F.3d 1381, 1385 (1st Cir. 1995). The Court will “take specific facts
affirmatively alleged by the plaintiff as true (whether or not disputed) and construe them in the
light most congenial to the plaintiff’s jurisdictional claim.” Mass. Sch. of Law at Andover, Inc. v.
Am. Bar Ass’n, 142 F.3d 26, 34 (1st Cir. 1998). The Court will not “credit conclusory allegations
or draw farfetched inferences,” Ticketmaster-N.Y., Inc. v. Alioto, 26 F.3d 201, 203 (1st Cir. 1994),
and recognizes that it is the plaintiff’s burden to “verify the facts alleged through materials of
evidentiary quality.” Killion v. Commonwealth Yachts, 421 F. Supp. 2d 246, 252 (D. Mass. 2006)
(quoting Barrett v. Lombardi, 239 F.3d 23, 27 (1st Cir. 2001)). The Court is also required to “add
to the mix facts put forward by the defendants, to the extent that they are uncontradicted.” Mass.
Sch. of Law, 142 F.3d at 34.
As to Apax’s Rule 12(b)(5) motion, “[a] district court may dismiss a complaint for a
plaintiff’s failure to effectively serve a defendant with process.” Sosa Polanco v. United States,
No. CV 17-1327 (JAG), 2017 WL 9772872, at *1 (D.P.R. Dec. 13, 2017). “The Court may
consider such matters outside of the pleadings when deciding a motion to dismiss based upon lack
of service of process under Rule 12(b)(5).” Awadh v. Tourneau, No. 15-cv-13993-DJC, 2017 WL
1246326, at *1 n.2 (D. Mass. Feb. 17, 2017). Where “[the defendant] challenges service of process
pursuant to Rule 12(b)(5), [the plaintiff] has the burden of proving he effected proper service.” Id.
at *2.
B.

Motion to Amend

In considering Casey’s motion to amend the complaint, the Court recognizes that “leave to
amend is to be ‘freely given when justice so requires’ . . . unless the amendment ‘would be futile,
or reward, inter alia, undue or intended delay.’” Steir v. Girl Scouts of the USA, 383 F.3d 7, 12
(1st Cir. 2004) (quoting Fed. R. Civ. P. 15(a)(2) and Resolution Trust Corp. v. Gold, 30 F.3d 251,

3

253 (1st Cir. 1994)). To evaluate futility, the Court determines if the amended complaint fails to
state a claim upon which relief could be granted, which is the same standard used by the Court to
evaluate a motion to dismiss under Rule 12(b)(6). Hatch v. Dep’t for Children, Youth & Their
Families, 274 F.3d 12, 19 (1st Cir. 2001).
Rule 15(a)’s “liberal amendment policy . . . does not mean that leave will be granted in all
cases.” Acosta-Mestre v. Hilton Int’l of P.R., 156 F.3d 49, 51 (1st Cir. 1998) (quoting 6 Charles
Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1487, at 611
(2d ed. 1990)).
III.

Factual Background
The following facts are as alleged in the operative complaint and attachments thereto, D.

1-1 at 15-24, and uncontroverted facts set forth by Apax for the purpose of the motion to dismiss
for lack of personal jurisdiction, D. 13. At some point prior to May 18, 2015, Casey was ordered
to wear a GPS monitoring bracelet as a condition of “pre-trial probation.” D. 1-1 at 16 ¶ 5. On
May 18, 2015, Casey received a call from an assistant coordinator of the Probation Department’s
Electronic Monitoring Program (“ELMO”), explaining that the monitoring bracelet was no longer
transmitting a signal with Casey’s location. Id. ¶¶ 5-6. After a failed attempt at troubleshooting,
the assistant coordinator informed Casey that he should report to his probation officer by the next
morning. Id. ¶ 8. Casey alleges that about one hour later, police officers arrived at his home and
arrested him because of the bracelet’s purported malfunction. Id. ¶ 9. After two days of
incarceration, Casey was released on May 20, 2015. Id. ¶ 12. According to the operative
complaint, ELMO leases GPS monitoring bracelets from 3M and utilizes 3M’s software to
transmit data. Id. ¶ 10. Casey alleges that 3M divested its electronic monitoring business to an
unidentified affiliate of Apax on or about October 3, 2017. Id. ¶ 11.

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On March 12, 2018, Casey sent a letter addressed to “Apax Partners” at “443 Park Avenue,
New York, NY 10022” regarding his intent to file suit against the company due to its purported
ownership of 3M’s divested electronic monitoring business, including the allegedly defective GPS
monitoring bracelet at issue. D. 1-1 at 21. The operative complaint likewise suggests that “Apax
Partners” is a business located at the same address on Park Avenue in New York, New York. D.
1-1 at 16 ¶ 4. The summons and complaint, however, were placed in an envelope addressed to
“Apax Partners LLP” at “601 Washington Avenue, 53rd Floor, New York, New York.” D. 14 at
10; D. 14-2.
Apax maintains that it is a private equity advisory firm registered under the laws of England
and Wales, with its principal place of business in London, England. D. 14-1 ¶¶ 1, 4. Apax asserts
that it does not have an office in New York and it never assumed the rights or liability of 3M’s
electronic monitoring business. D. 14-1 ¶¶ 7-8.
IV.

Procedural History
Casey filed this action in Suffolk Superior Court on or about April 23, 2018. D. 1-1 at 19.

3M removed the action to this Court on June 4, 2018. D. 1. Apax has now moved to dismiss. D.
13. Casey subsequently moved to amend the operative complaint. D. 28.
V.

Discussion
A.

Personal Jurisdiction

Apax contends the prima facie case for personal jurisdiction has not been established here
given that Apax was formed and maintains a principal place of business in London, England and
lacks any connection to Massachusetts. See, e.g., D. 14 at 2. “Prior to exercising personal
jurisdiction over a nonresident defendant, a judge must determine that doing so comports with both
the forum’s long-arm statute and the requirements of the United States Constitution.” SCVNGER,

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Inc. v. Punchh, Inc., 478 Mass. 324, 325 (2017) (citing World–Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 290 (1980)). The “Massachusetts [long-arm] statute does not purport to
extend jurisdiction as far as due process would allow.” Id. at 328. The Court’s analysis of the
Massachusetts long-arm statute, therefore, “precede[s] consideration of the constitutional
question.” Id. at 325.
1.

Massachusetts Long-Arm Statute

The Massachusetts long-arm statute, Mass. Gen. L. c. 223A, § 3, enumerates eight grounds
on which a nonresident defendant may be subjected to personal jurisdiction. Casey has not cited
to specific sections of the long-arm statute that are applicable to his jurisdictional claim. Moreover,
the sections of the long-arm statute that might otherwise be relevant, namely c. 223A, § 3(a), (b),
(c), (d)—do not apply given that the record here does not reveal that Apax “transact[ed] any
business in this commonwealth,” “contract[ed] to supply services or things in this
commonwealth,” “caus[ed] tortious injury by an act or omission in this commonwealth,” or
“caus[ed] tortious injury in this commonwealth by an act or omission outside this commonwealth
if [it] regularly does or solicits business, or engages in any other persistent course of conduct, or
derives substantial revenue from goods used or consumed or services rendered, in this
commonwealth.” Mass. Gen. L. c. 223A, §3(a)-(d).
Instead, Casey appears to contend, as a general matter, that personal jurisdiction is
appropriate because an unidentified “affiliate” of Apax acquired 3M’s electronic monitoring
business, which allegedly leased GPS monitoring bracelets to the Probation Department in
Massachusetts. D. 1-1 at 16 ¶ 11.2 In other words, Casey’s jurisdictional claim depends on

2

The affiliate is not mentioned by name in the operative complaint or papers filed in opposition to
Apax’s motion to dismiss. Casey’s motion to amend the complaint, however, identifies Alligator
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whether another company’s alleged contacts with Massachusetts may be imputed to Apax. For
support, Casey points to a letter, dated March 26, 2018, from a 3M representative who explained
that “3M completely divested its electronic monitoring business to an affiliate of Apax Partners on
October 3, 2017,” D. 24-1 at 5, and a screenshot purportedly from Apax’s website, dated June 1,
2017, that indicates “[f]unds advised by Apax Partners today announced a definitive agreement to
acquire 3M’s . . . electronic monitoring business,” D. 24-1 at 29. 3
Even if the Court concluded that the affiliate’s activities within the forum rendered personal
jurisdiction appropriate as to that entity, Casey has not established that such contacts may be
imputed to Apax. The “theory for imputing contacts from one entity to another is a theory based
on piercing the corporate veil.” Scallop Imaging, LLC v. Blackhawk Imaging, LLC, No. 17-CV10092-ADB, 2018 WL 1440314, at *5 (D. Mass. Mar. 22, 2018) (quoting Katz v. Spiniello Cos.,
244 F. Supp. 3d 237, 253 (D. Mass. 2017)). “The veil piercing standard in Massachusetts is
demanding, as corporations are presumed to be separate and distinct entities notwithstanding [the]
relationships between them.” Id. (alteration in original) (citations and internal quotation marks
omitted).
Under Massachusetts law, disregard of corporate separateness is permitted where two
factors are met: (1) “when there is active and direct participation by the representatives of one

Holdco Ltd. as the Apax affiliate that allegedly acquired 3M’s electronic monitoring business. See
D. 28 at 1.
3

In its reply, Apax suggests that the Court may not consider documents outside of the pleadings
for the purpose of conducting the jurisdictional analysis. See D. 27 at 3 (challenging Casey’s
reliance on documents “outside of the pleadings”). To the contrary, the First Circuit has held that
plaintiffs “ordinarily cannot rest upon the pleadings” to set forth a prima facie showing of personal
jurisdiction, “but [are] obliged to adduce evidence of specific facts.” Foster-Miller, Inc. v.
Babcock & Wilcox Canada, 46 F.3d 138, 145 (1st Cir. 1995). As a result, the Court may “accept
the plaintiff’s (properly documented) evidentiary proffers as true for the purpose of determining
the adequacy of the prima facie jurisdictional showing.” Id.
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corporation, apparently exercising some form of pervasive control, in the activities of another and
there is some fraudulent or injurious consequence of the intercorporate relationship,” or (2) “when
there is a confused interminingling of activity of two or more corporations engaged in a common
enterprise with substantial disregard of the separate nature of the corporate entities, or serious
ambiguity about the manner and capacity in which the various corporations and their respective
representatives are acting.” My Bread Baking Co. v. Cumberland Farms, Inc., 353 Mass. 614, 619
(1968). Here, Casey has not proffered any facts to support piercing the corporate veil and
conferring jurisdiction upon Apax as the alter ego of the affiliated company that allegedly
transacted business with the Probation Department in Massachusetts.

Indeed, other than

allegations that Apax advised the affiliated company at issue, see D. 24-1 at 29 (providing
screenshot purportedly from Apax’s website which states that “[f]unds advised by Apax Partners”
acquired 3M’s electronic monitoring business), the record before the Court includes no
information regarding the relationship between these companies nor does it indicate that Apax had
pervasive control over or shared common ownership with its alleged affiliate. Because Casey has
not met this standard for piercing the corporate veil and where no provision of the Massachusetts
long-arm statute otherwise authorizes personal jurisdiction over a nonresident corporation with no
forum contacts in the circumstances alleged here, the Court concludes that Casey has not satisfied
the prima facie standard for personal jurisdiction. A failure to meet the requirements of the longarm statute is fatal to personal jurisdiction over Apax, but the Court nevertheless turns to the
constitutional due process analysis.
2.

Due Process

There are two types of personal jurisdiction to consider in the constitutional analysis:
general and specific. Cossaboon v. Me. Med. Ctr., 600 F.3d 25, 31 (1st Cir. 2010). Specific
jurisdiction may be asserted when “a suit arises directly out of [defendant’s] forum-based
8

activities,” while general jurisdiction “may be asserted in connection with suits not directly
founded on [defendant’s] forum-based conduct.” Donatelli v. Nat’l Hockey League, 893 F.2d 459,
462-63 (1st Cir. 1990).
a)

General Jurisdiction

For the Court to exercise general jurisdiction over a foreign company such as Apax, the
company’s “affiliations with the State” must be “so ‘continuous and systematic’ as to render [it]
essentially at home in the forum State.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564
U.S. 915, 919 (U.S. 2011) (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 317 (1945)). The
Supreme Court has further explained that “[w]ith respect to a corporation, the place of
incorporation and principal place of business” are the “paradig[m]” bases for general jurisdiction.
Daimler AG v. Bauman, 571 U.S. 117, 137 (2014) (alteration in original).
Casey has not specifically addressed whether Apax is subject to general jurisdiction in
Massachusetts. Construing the facts “in the light most congenial to the plaintiff’s jurisdictional
claim,” Hannon v. Beard, 524 F.3d 275, 279 (1st Cir. 2008) (citations and quotation marks
omitted), the Court concludes that no set of facts relevant to the jurisdictional analysis at issue here
support general jurisdiction. Casey has not alleged, for example, that Apax maintains a direct
affiliation with the forum, let alone contacts that are so continuous and systematic as to render a
company with its principal place of business in London, England at home in Massachusetts.
General jurisdiction, therefore, does not apply to Apax.
b)

Specific Jurisdiction

The specific jurisdiction inquiry is threefold:

relatedness, purposeful availment and

reasonableness. Astro–Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 9 (1st Cir. 2009) (citing
N. Am. Catholic Educ. Programming Found., Inc. v. Cardinale, 567 F.3d 8, 16 (1st Cir. 2009) and
N. Laminate Sales, Inc. v. Davis, 403 F.3d 14, 25 (1st Cir. 2005)). The Court must find that all
9

three are present to assert personal jurisdiction over a defendant. See id. The plaintiff bears the
burden of proof on all three elements. See Rodriguez v. Samsung Electronics Co., 827 F. Supp.
2d 47, 50 (D. Mass. 2011).
With respect to relatedness, the Court considers whether the claim underlying the litigation
. . . directly arise[s] out of, or relate[s] to, the defendant’s forum-state activities.” Newman v. Eur.
Aeronautic Def. & Space Co. EADS N.V., No. 09-cv-10138-DJC, 2011 WL 2413792, at *4 (D.
Mass. June 16, 2011) (alterations in original) (quoting Astro–Med, 591 F.3d at 9). Although this
is a “flexible, relaxed standard,” id. (quoting Astro–Med, 591 F.3d at 9), relatedness still requires
a causal relationship between Casey’s claims and Apax’s forum-related conduct, Harlow v.
Children’s Hosp., 432 F.3d 50, 61 (1st Cir. 2005). Here, Casey has not alleged sufficient facts to
demonstrate that Apax engaged in any forum-related conduct. Casey’s defective design and
negligence claims, as alleged in the operative complaint, arise from an allegedly defective GPS
monitoring device that 3M leased to the Probation Department and which malfunctioned while
Casey wore it as a condition of pre-trial probation. D. 1-1 at 16 ¶¶ 5-10. On October 3, 2017, as
alleged, 3M divested its electronic monitoring business to Apax’s affiliate. Id. ¶ 11. Casey does
not allege that Apax independently engaged in any activity in Massachusetts, rather, his
jurisdictional claim attempts to impute an affiliated company’s forum related contacts to confer
jurisdiction over Apax. As previously explained, Casey has failed to establish a relationship
between Apax and the affiliate at issue that would allow the Court to consider the affiliate’s alleged
forum related contacts in exercising jurisdiction over Apax. Absent facts that suggest Apax
engaged this forum either directly or indirectly, Casey cannot satisfy his burden under the
relatedness inquiry.

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Turning to the purposeful availment prong of the analysis, the Court concludes that Apax
has not “purposefully avail[ed] itself of the privilege of conducting activities within the forum
State.” Hanson v. Denckla, 357 U.S. 235, 253 (1958) (citing Int’l Shoe, 326 U.S. at 319). Neither
the operative complaint and attachments thereto, D. 1-1 at 15-24, nor the proposed amended
complaint, D. 28-1, contain allegations that Apax conducted any activity that could be construed
as availing itself to the “benefits and protections of [Massachusetts] laws,” id., as is required to
show purposeful availment. Apax asserts, by sworn affidavit, that it does not own or lease property
in Massachusetts, it has not consented to personal jurisdiction in any court in Massachusetts nor
does it have an office, mailing address, telephone number, employees or any agents in the
Commonwealth. See, e.g., D. 14-1 ¶¶ 5, 9. Casey, on the other hand, does not allege that Apax
purposefully availed itself of the instant forum and, instead, argues specific jurisdiction is
appropriate as to Apax due to 3M’s transactions with the Probation Department. Casey has also
alleged, however, that Apax’s affiliate (as opposed to Apax) acquired 3M’s monitoring business
along with the rights and liabilities of the same. D. 1-1 at 16 ¶ 11. Given Apax’s uncontroverted
testimony and Casey’s failure or inability to rebut the same, the Court concludes that the purposeful
availment prong is not satisfied here.
Finally, for the reasons mentioned above, including uncontradicted testimony that Apax
has no contacts with this forum, the Court concludes that exercising personal jurisdiction over
Apax would be unreasonable. None of the “Gestalt factors” germane to the reasonableness inquiry
counsel in favor of exercising personal jurisdiction over Apax. See Cossaboon, 600 F.3d at 33 n.3
(outlining the Gestalt factors, including “(1) the defendant’s burden of appearing, (2) the forum
state’s interest in adjudicating the dispute, (3) the plaintiff’s interest in obtaining convenient and
effective relief, (4) the judicial system’s interest in obtaining the most effective resolution of the

11

controversy, and (5) the common interests of all sovereigns in promoting substantive social
policies”) (quoting Harlow, 432 F.3d at 67). Accordingly, Casey has also failed to satisfy this
factor. The Court, therefore, concludes that Casey has not made a prima facie showing of personal
jurisdiction over Apax under the Massachusetts long-arm statute or as a matter of constitutional
due process.4 In light of this ruling, the Court does not reach Apax’s other grounds for dismissal.
B.

Proposed Amended Complaint

Also pending is Casey’s ripe motion for leave to amend the operative complaint pursuant
to Fed. R. Civ. P. 15(a)(2). Casey seeks leave to amend his complaint to dismiss 3M from this
action, to bring new claims against Apax and to add Alligator Holdco Ltd. (“Alligator”) and the
Commonwealth of Massachusetts Office of the Commissioner of Probation (“Probation
Department”). First, although Casey has incorrectly fashioned his voluntary dismissal of 3M as
an amendment to the operative complaint, the Court, nevertheless, dismisses 3M as a defendant in
the instant litigation pursuant to Fed. R. Civ. P. 41(a). Second, as to Casey’s attempt to “add”
Apax as a defendant, see D. 28 at 1, the Court denies this request as moot given that Apax was
already a party to this action and in light of the Court’s ruling on Apax’s motion to dismiss for
lack of personal jurisdiction.
Casey’s proposed amendments to add the Probation Department and Alligator as
defendants come over six months after this action was removed to this Court and, therefore, raise
questions regarding Casey’s diligence in seeking leave to amend. Perez v. Hosp. Damas, Inc., 769
F.3d 800, 802 (1st Cir. 2014) (explaining that “undue delay in moving to amend, even standing

4

To the extent Casey seeks jurisdictional discovery in his opposition papers, see D. 24 at 9, this
request is denied as Casey has failed to make a colorable claim of personal jurisdiction over Apax.
Am. Med. Sys., Inc. v. Biolitec, Inc., 604 F. Supp. 2d 325, 330 (D. Mass. 2009).
12

alone, may be . . . an adequate reason” to deny a motion for leave to amend); United States ex rel.
Hagerty v. Cyberonics, Inc., No. 13-10214-FDS, 2015 WL 7253675, at *3 (D. Mass. Nov. 17,
2015) (observing that “[d]elays for periods as short as eleven months, four months, and less than
three months have been found to constitute undue delay”). Setting aside the question of undue
delay, the Court notes that Casey’s proposed claim against the Probation Department pursuant to
42 U.S.C. § 1983 is barred by the Eleventh Amendment and, therefore, futile. The Probation
Department is a state agency, see Chmielinski v. Commonwealth of Mass. Office of Comm’r of
Prob., 484 F. Supp. 2d 201, 203 (D. Mass. 2007) (explaining that the Probation Department is an
agency of the Commonwealth of Massachusetts), and “[i]t is settled beyond peradventure . . . that
neither a state agency nor a state official acting in his official capacity may be sued for damages
in a section 1983 action.” Nwaubani v. Grossman, 199 F. Supp. 3d 367, 376 (D. Mass. 2016),
(alteration in original) (quoting Johnson v. Rodriguez, 943 F.2d 104, 108 (1st Cir. 1991)). “The
same is true for injunctive relief where ‘[s]tates and their agencies are entitled to sovereign
immunity regardless of the relief sought.’” Collymore v. Suffolk Cty. Sheriff Dep’t, No. CV 1811217-NMG, 2018 WL 3720057, at *1 (D. Mass. Aug. 3, 2018) (alteration in original) (quoting
Poirier v. Mass. Dep’t of Corr., 558 F.3d 92, 97 (1st Cir. 2009)). Moreover, even if the Probation
Department was not immune, it is not a person subject to suit under 42 U.S.C. § 1983. See Canales
v. Gatzunis, 979 F. Supp. 2d 164, 171 (D. Mass. 2013) (explaining that “neither states nor state
officials sued in their official capacities for damages are ‘persons’ for purposes of § 1983”).
Accordingly, Casey’s sole claim against the Probation Department is barred and the amended
complaint is futile as to that claim.
The proposed amended complaint is futile for the additional reason that Casey has failed
to state a claim against Alligator under either Mass. Gen. L. c. 93A or Mass. Gen. L. c. 93B. First,

13

a Chapter 93A claim requires that plaintiffs serve a written demand letter on prospective
defendants at least thirty days prior to filing an action. Mass. Gen. Law c. 93A, § 9(3). “The
statutory notice requirement is not merely a procedural nicety, but, rather, a pre-requisite to suit”
and “must be alleged in the plaintiff’s complaint.” Rodi v. S. New Engl. Sch. of Law, 389 F. 3d
5, 19 (1st Cir. 2004) (citations and internal quotation marks omitted). Although the notice
requirement does not apply where the defendant does not maintain a place of business or keep any
assets in Massachusetts pursuant to Mass. Gen. Laws c. 93A, § 9(3) (providing in relevant part
that subsection 3 does not apply “if the prospective respondent does not maintain a place of
business or does not keep assets within the commonwealth”), Casey has not alleged facts indicating
that Alligator does not maintain a place of business or keep assets in Massachusetts.
Second, Casey’s Chapter 93B claim against Alligator also fails because the instant dispute
does not involve unfair and deceptive acts in connection with a motor vehicle in the
Commonwealth. See Mass. Gen. L. c. 93B, § 2 (explaining that Chapter 93B is applicable and
jurisdiction is appropriate as to “[a]ny person who engages . . . in purposeful contacts in the
commonwealth in connection with the offering or advertising for sale or has business dealings
with respect to a motor vehicle in the commonwealth”). Accordingly, Casey’s motion to amend
the complaint is also denied as to the claims against the Probation Department and Alligator.
VI.

Conclusion
For the foregoing reasons, the Court ALLOWS Apax’s motion to dismiss. D. 13. The

Court DENIES IN PART Casey’s motion to amend the complaint as to the claims against Apax,
the Probation Department and Alligator. D. 28. The Court ALLOWS IN PART Casey’s motion
to amend only to the extent it voluntarily dismisses 3M from the litigation. Id.
So Ordered.

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/s/ Denise J. Casper
United States District Judge

15