22 Franklin LLC et al v. Boston Water and Sewer Commission et al

Filing 31

Judge Nathaniel M. Gorton: MEMORANDUM AND ORDER entered.The Order of this Court allowing plaintiffs' motion for a preliminary injunction (Docket No. 27 ) is hereby VACATED and plaintiffs' motion (Docket No. 25 ) is DENIED. So ordered.(McDonagh, Christina)

United States District Court
District of Massachusetts
___________________________________
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22 Franklin LLC, et al.,
)
)
Plaintiffs,
)
)
v.
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Civil Action No.
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20-11570-NMG
Boston Water and Sewer Commission, )
et al.,
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Defendants.
)
___________________________________)

GORTON, J.

MEMORANDUM & ORDER

This case arises out of a dispute between plaintiffs 22
Franklin LLC (“22 Franklin”) and MACCO Construction Corporation
(“MACCO”) (collectively, “plaintiffs”), on the one hand, and
defendants Boston Water and Sewer Commission (“BWSC”), BWSC
Chief Engineer John Sullivan (“Sullivan”) and BWSC Construction
Manager John O’Halloran (“O’Halloran”) (collectively,
“defendants”), on the other hand, concerning the sewer systems
in new residential buildings in Dorchester, Massachusetts (“the
Development Project”).
On May 10, 2021, this Court entered an Order allowing
plaintiffs’ unopposed motion for a preliminary injunction
requiring BWSC to permit plaintiff to connect the subject
property to the municipal water and sewer system.

Before

plaintiffs submitted language for the proposed preliminary
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injunction, however, BWSC sought and was granted leave to file a
late opposition to the motion.
For the reasons that follow, the Order allowing plaintiffs’
motion for injunctive relief will be vacated and the motion will
be denied.
I.

Background
22 Franklin is a Massachusetts limited liability company

which purchased in 2012 a parcel of land in Dorchester,
Massachusetts (“the Property”) for the purpose of constructing
two townhouses with a total of four residential units.

MACCO, a

Massachusetts corporation, has served as the general contractor
for the Development Project.
Plaintiffs applied for BWSC review and approval of its plan
for the Development Project in late 2014.

During its review,

BWSC requested that plaintiffs relocate a 12-inch sewer pipe
which crossed through the Property.

Plaintiffs agreed to the

relocation and provided upon request a color video of the sewer
pipe to BWSC for inspection.

After reviewing the video, BWSC

determined that the pipe was not up to code and needed to be
replaced with a fifteen-inch pipe.

It requested and was granted

an easement for the repair and maintenance of the sewer pipe and
the easement was recorded in December, 2015, after which BWSC
approved the site plan.
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During construction, plaintiffs discovered that the sewer
pipe was in a different location than previously determined.
After plaintiffs proposed leaving the pipe as it was, the
parties appear to dispute what happened next.

Plaintiffs allege

that BWSC refused to release the approved site plan and permits
until they relocated and upgraded the sewer pipe.

BSWC insists,

however, that it agreed to allow plaintiffs to leave the sewer
pipe in place as long as plaintiffs drafted a new easement
agreement and site plan.

According to BSWC, plaintiffs failed

to comply.
In any event, the parties agree that BSWC now refuses to
permit plaintiffs to connect the Development Project to the
water and sewer system.

Consequently, plaintiffs filed suit in

this Court in August, 2020 and moved for a preliminary
injunction in April, 2021 seeking to force defendants to allow
them to connect the Development Project to the municipal water
and sewer system.

Before this Court entered a preliminary

injunction, defendants belatedly sought and obtained leave of
Court to oppose plaintiffs’ motion in May, 2021.
II.

Motion for a Preliminary Injunction
A. Legal Standard
In order to obtain a preliminary injunction, the moving

party must establish 1) a reasonable likelihood of success on
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the merits, 2) the potential for irreparable harm if the
injunction is withheld, 3) a favorable balance of hardships and
4) the effect on the public interest. Jean v. Mass. State
Police, 492 F.3d 24, 26-27 (1st Cir. 2007).

Out of these

factors, the likelihood of success on the merits “normally
weighs heaviest in the decisional scales.” Coquico, Inc. v.
Rodriguez-Miranda, 562 F.3d 62, 66 (1st Cir. 2009).
The moving party has a greater burden when it seeks a
“mandatory” preliminary injunction that would compel the nonmoving party to perform an affirmative act rather than a
“negative” injunction that would prevent the non-moving party
from engaging in a certain activity for the period before trial.
See Braintree Labs, Inc. v. Citigroup Global Mkts. Inc., 622
F.3d 36, 40-41 (1st Cir. 2010).

Courts are generally

disinclined to issue mandatory preliminary injunctions “unless
the facts and the law clearly favor the moving party.” L.L.
Bean, Inc. v. Bank of Am., 630 F. Supp. 2d 83, 89 (D. Me. 2009).
Ultimately, the issuance of injunctive relief is “an
extraordinary and drastic remedy that is never awarded as of
right.” Peoples Fed. Sav. Bank v. People’s United Bank, 672 F.3d
1, 8-9 (1st Cir. 2012) (quoting Voice of the Arab World, Inc. v.
MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011)).

It

should issue “only where the intervention of a court of equity
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is essential in order effectually to protect property rights
against injuries otherwise irremediable.” Weinberger v. RomeroBarcelo, 456 U.S. 305, 312 (1982) (citation and internal
quotations omitted).
B. Application
1. Likelihood of Success
Although the likelihood of success on the merits inquiry is
only the first of four factors, it is the most significant.
Weaver v. Henderson, 984 F.2d 11, 12 (1st Cir. 1993) (stating
that whether the plaintiffs are likely to succeed on the merits
is the “sine qua non” of the test for a preliminary injunction).
Plaintiffs have not demonstrated a likelihood of success on
the merits on their claims against defendants.

They submit that

defendants violated their due process rights and unlawfully
denied them access to the municipal water system but they
provide no support for those claims outside of allegations that
defendants “arbitrarily and in bad faith continued to insist
upon . . . unreasonable conditions” before approving the site
plan.

Plaintiffs do not indicate how such conditions were

unreasonable in light of BWSC’s function to maintain “a sound
economical and efficient water supply and . . . sewerage system”
and its authority to make contracts and do that which is
necessary to carry out its purpose and the powers granted to it.
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See Boston Water and Sewer Reorganization Act, St. 1977, c. 436,
§§ 1, 6.

Plaintiffs also fail to address whether their due

process claims brought pursuant to 42 U.S.C. § 1983 may be
barred by the limitations on municipal liability.
In sum, plaintiffs fail to address the merits of their
claims against defendants and, therefore, have not demonstrated
a likelihood of success on those claims.
2. Irreparable Harm
The second factor to evaluate in considering a preliminary
injunction is whether the plaintiffs are “likely to suffer
irreparable harm in the absence of preliminary relief.” Voice of
the Arab World, 645 F.3d at 32 (citation omitted).

The movant

must demonstrate that its legal remedies are inadequate and it
faces “a substantial injury that is not accurately measurable or
adequately compensable by money damages.” Id. at 18-19 (citation
omitted).
Plaintiffs concede that monetary damages generally do not
constitute irreparable harm but contend that the damages here
“may be subject to the municipal cap” and, therefore, they may
not be able to recover for their continuing losses.

Plaintiffs

fail to elaborate on the purported municipal cap or its
applicability to the instant dispute.

Even if they could

demonstrate that money damages would not compensate them
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adequately, this factor is not enough to overcome the
insufficient showing as to their likelihood of success. See
Braintree Labs., Inc. v. Citigroup Global Mkts. Inc., 622 F.3d
36, 42-43 (1st Cir. 2010) (explaining the “sliding scale” under
which irreparable harm is weighed against the likelihood of
success on the merits).
3. Balance of Hardships and the Public Interest
Finally, the Court is convinced that the balance of
hardships and the public interest weigh against the issuance of
a preliminary injunction.

There is a strong public interest in

the maintenance of public health through functioning water and
sewer systems and, even though the subject sewer pipe is not
located within the Development Project, defendants persuasively
contend that the foundations of the buildings in the project are
close enough to the sewer pipe that it could compromise BWSC’s
ability to conduct repairs.

Ensuring the safety of the public

and the structural integrity of the sewer system for other
customers of BWSC outweighs plaintiffs’ interest in the
completion and sale of the units comprising the Development
Project.

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ORDER
In accordance with the foregoing, the Order of this Court
allowing plaintiffs’ motion for a preliminary injunction (Docket
No. 27) is hereby VACATED and plaintiffs’ motion (Docket No. 25)
is DENIED.

So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated July 15, 2021

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