Adams et al v. Montague, Town of et al

Filing 43

Judge Mark G. Mastroianni: MEMORANDUM AND ORDER entered. For the reasons, the Court DENIES the Pltfs' Motion for Temporary Injunction and Lis Pendens - denying 6 ; cc/Pltfs. (Finn, Mary)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
LISA ADAMS and ROBERT ADAMS,
Plaintiffs,
v.
TOWN OF MONTAGUE, FRANK E.
ABBONDANZIO, CHRISTOPHER
BOUTWELL, MASSACHUSETTS
DEPARTMENT OF TRANSPORTATION,
DAVID JENSEN, WALTER RAMSEY,
THOMAS P. GREY, and TRACY WU,
Defendants.

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Civil Action No. 14-30178-MGM

MEMORANDUM AND ORDER REGARDING
PLAINTIFFS’ MOTION FOR TEMPORARY
INJUNCTION AND LIS PENDENS
(Dkt. No. 6)
November 25, 2014
MASTROIANNI, U.S.D.J.
I.

INTRODUCTION

Lisa Adams and Robert Adams (“Plaintiffs”), proceeding pro se, bring this action against the
Town of Montague (“Town”), Frank Abbondanzio, Christopher Boutwell, the Massachusetts
Department of Education (“DOT”), David Jensen, Walter Ramsey, Thomas Grey, and Tracy Wu.
Plaintiffs’ claims arise out of the re-opening of Greenfield Cross Road and the pending
reconstruction of Hatchery Road, both of which abut property they own in the town of Montague.
Plaintiffs’ primary allegation appears to be that the Town and DOT are attempting to perpetrate or
have perpetrated an unconstitutional taking of their property in violation of the Fifth Amendment.
Presently before the court is Plaintiffs’ motion for temporary injunction and lis pendens.
For the reasons which follow, the court will deny Plaintiffs’ motion.

II. STANDARD OF REVIEW
“[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be
granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v.
Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original; internal quotation marks omitted). “To
obtain a preliminary injunction, the plaintiffs bear the burden of demonstrating (1) a substantial
likelihood of success on the merits, (2) a significant risk of irreparable harm if the injunction is
withheld, (3) a favorable balance of hardships, and (4) a fit (or lack of friction) between the
injunction and the public interest.” Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 120 (1st Cir.
2003). “The first factor, the plaintiff’s likelihood of success, is ‘the touchstone of the preliminary
injunction inquiry.’” Boston Duck Tours, LP v. Super Duck Tours, LLC, 531 F.3d 1, 11 (1st Cir.
2008) (quoting Philip Morris, Inc. V. Harshbarger, 159 F.3d 670, 674 (1st Cir. 1998)). Thus, “if the
moving party cannot demonstrate that he is likely to succeed in his quest, the remaining factors
become matters of idle curiosity.” Id. (quoting New Comm Wireless Servs., Inc. v. SprintCom, Inc.,
287 F.3d 1, 9 (1st Cir. 2002)).

III. ANALYSIS
The court concludes that Plaintiffs have not demonstrated a likelihood of success on the
merits and, therefore, it will deny their motion on that ground alone. Plaintiffs’ central claim related
to their injunction request is a Fifth Amendment takings claim. The remaining claims asserted in the
original complaint, as best the court can discern, arise under state law and, thus, do not provide an
independent basis for federal question jurisdiction. See 28 U.S.C. § 1331. Moreover, to the extent
Plaintiffs’ injunction request is also based, in part, on these additional claims, Plaintiffs likewise have

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not demonstrated a likelihood of success on the merits, as these state law claims do not appear to be
viable.1
With regard to the Fifth Amendment takings claim, it is clear that Plaintiffs first must
exhaust their remedies in state court under M.G.L. c. 79 before bringing such a claim in federal
court. The Supreme Court has explained that the Fifth Amendment “does not proscribe the taking
of property; it proscribes taking without just compensation.” Williamson County Reg’l Planning
Commision v. Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985). “As a result, ‘if a State
provides an adequate procedure for seeking just compensation, the property owner cannot claim a
violation of the Just Compensation Clause until it has used the procedure and been denied just
compensation.’ . . . This is sometimes referred to as a ‘state litigation’ requirement.” Downing/Salt
Pond Partners L.P. v. Rhode Island and Providence Plantations, 643 F.3d 16, 20 (1st Cir. 2011)
(quoting Williamson County, 473 U.S. at 195)). “Further, the compensation need not be paid in
advance or at the time of the taking, as long as there is a procedure in place at the time of the taking
that is ‘reasonable, certain and adequate . . . for obtaining compensation.’” Id. at 20 (quoting
Williamson County, 473 U.S. at 194)). 2 “In Massachusetts, M.G.L. c. 79 is the exclusive remedy for
challenging the exercise of eminent domain.” Kelly v. Day, 585 F.Supp.2d 211, 215 (D.Mass. 2008)
(citing Whitehouse v. Town of Sherborn, 419 N.E.2d 293 (1981)); see also Mass. Gen. Laws c. 82, §
24. Moreover, “Massachusetts courts have consistently interpreted Chapter 79 as permitting
challenges to both the validity of a taking and the amount of compensation.” Id. Accordingly,
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Plaintiffs recently filed a motion for leave to file an amended complaint. (Dkt. No. 40.) If leave to file is granted, it
remains to be seen whether Plaintiffs’ new allegations suffer from the same infirmities. At least with regard to Plaintiffs’
Fifth Amendment takings claims, however, an argument for the dismissal of such claims could be made for the reasons
discussed herein.
2 Moreover, despite Plaintiffs’ protestations to the contrary, state courts are fully capable of adjudicating claims asserted
against state defendants as well as claims based on the federal Constitution. See id. at 21 n.5 (“‘State courts are fully
competent to adjudicate constitutional challenges to local land-use decisions’ and ‘undoubtedly have more experience
than federal courts do in resolving the complex factual, technical, and legal questions’ they raise.” (quoting San Remo
Hotel v. City & Cnt. of San Francisco, 545 U.S. 323, 347 (2005)); see also Burt v. Titlow, 134 S.Ct. 10, 15 (2013)
(“‘[S]tate courts have the solemn responsibility equally with the federal courts to safeguard constitutional rights,’ and this
Court has refused to sanction any decision that would ‘reflec[t] negatively upon [a] state court’s ability to do so.’”
(quoting Trainor v. Hernandez, 431 U.S. 434, 443 (1977))).

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“[b]ecause Chapter 79 provides an adequate remedy, recovery under that law must be pursued
before a federal takings claim becomes ripe.” Id. 3
In addition, to the extent Plaintiffs also assert a procedural due process claim, it is based on
the same alleged taking. The First Circuit has explained, however, that “a plaintiff cannot, merely by
recasting its takings claim ‘in the raiment of a due process violation,’ evade the Williamson County
ripeness requirements.” Downing/Salt Pond Partners L.P., 643 F.3d at 28 (quoting Deniz v.
Municipality of Guaynabo, 285 F.3d 142, 149 (1st Cir. 2002)); see also Rupprecht v. City of
Pittsfield, 2007 WL 1559697 (1st Cir. May 31, 2007) (unpublished) (“[L]and-use conflicts rarely
support constitutional claims. . . . Exhaustion of state remedies is a prerequisite for procedural due
process and Fifth Amendment takings claims.”). Accordingly, Plaintiffs’ central claims are not
viable in this forum and, therefore, there is no likelihood of success on the merits which would
justify an injunction.
As for the lis pendens request, Plaintiffs seek court approval of a memorandum of lis
pendens giving notice to the public of this lawsuit which affects their property. The court agrees
with the Commonwealth Defendants, however, that a lis pendens is not appropriate here. “A
memorandum of lis pendens, like an attachment of real estate, temporarily restricts the power of a
landowner to sell his or her property, depriving the owner of the ability to convey clear title while
the litigation is pending.” Debral Realty, Inc. v. DiChiara, 420 N.E.2d 343, 347 (Mass. 1981).
Accordingly, Plaintiffs’ request would have the effect of clouding title to their own property, a
situation the court does not believe the legislature envisioned in enacting Mass. Gen. Laws c. 184, §
15.

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At the hearing on this motion, counsel for both the Commonwealth Defendants and the Town Defendants
represented that no construction work on Hatchery Road in the land area at issue would or was planned to occur soon.
However, counsel for the Commonwealth Defendants indicated that the process of engaging a contractor for the work
was underway. Accordingly, Plaintiffs may have a window of time to pursue this type of relief in state court if they
choose to do so.

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IV.

CONCLUSION

For these reasons, the court DENIES Plaintiffs’ motion for temporary injunction and lis
pendens (Dkt. No. 6).
It is So Ordered.

_/s/ Mark G. Mastroianni________
MARK G. MASTROIANNI
United States District Judge

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