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Athanasiou v. Town of Westhampton

United States District Court, D. Massachusetts

July 14, 2014

LOUANNE ATHANASIOU and GEORGE ATHANASIOU, Plaintiffs
v.
TOWN OF WESTHAMPTON, et al., Defendants

For Louanne Athanasiou, George Athanasiou, Plaintiffs: Michael Pill, LEAD ATTORNEY, Green Miles Lipton, LLP, Northampton, MA; Harry L. Miles, Green, Miles, Lipton, White & Fitz-Gibbon, Northampton, MA.

For Town of Westhampton, Brian Mulvehill, Arthur Pichette, James Huston, John F. Shaw, Jr., Board of Selectmen of the Town of Westhampton, Defendants: Nancy Frankel Pelletier, LEAD ATTORNEY, Robinson Donovan, PC, Springfield, MA; Patricia A. Cantor, LEAD ATTORNEY, Janelle M. Austin, Kopelman & Paige, PC, Boston, MA.

Page 85

MEMORANDUM AND ORDER WITH REGARD TO DEFENDANTS' MOTION TO DISMISS (Document No. 19)

KENNETH P. NEIMAN, U.S. Magistrate Judge.

Louanne Athanasiou and George Athanasiou (" Plaintiffs" ) brought this action in state court against the Town of Westhampton (" Town" ) and its Board of Selectmen (" Selectboard" ), including current Selectboard members John F. Shaw, Jr., in his individual and official capacities, James Huston, in his individual and official capacities, and Arthur Pichette, in his official capacity, as well as former Selectboard member Brian Mulvehill, in his individual capacity (together, " Defendants" ). On February 12, 2014, Defendants removed the action to this court pursuant to 28 U.S.C. § 1441.

Plaintiffs' claims arise out of a property dispute with the Town of Westhampton, culminating in a letter in which the Town challenged Plaintiffs' assertion of ownership over a parcel of land and a traveled way. Plaintiffs assert that the statements in the letter constitute a taking for public use without just compensation. In particular, Plaintiffs assert in their amended complaint a claim for a taking in pais under M.G.L. c. 79, § 10 (Count I) and a claim under 42 U.S.C. § 1983 for a taking in violation of the Fifth Amendment (Count II).[1] Defendants have filed a motion to dismiss.

The parties have consented to this court's jurisdiction. See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. For the reasons which follow, the court will grant Defendants' motion to dismiss without prejudice.

I. Standard of Review

When faced with a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must accept the allegations of the complaint as true, drawing all reasonable inferences in favor of the plaintiff. See Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994); Coyne v. City of Somerville, 972 F.2d 440, 443 (1st Cir. 1992). Moreover, " Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what that . . . claim is and the grounds upon which it rests.'" Sepulveda-Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 28 (1st Cir. 2010). Recently, the Supreme Court made clear that, under Bell A. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), a complaint that states a plausible claim for relief, on its face, will a survive a motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The Court explained that " [a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

II. Background

The following facts come directly from Plaintiffs' complaint, including two attachments thereto, and are stated in a light most favorable to them. Young v. Lepone, 305 F.3d 1, 8 (1st Cir. 2002). In 2012, a deed from Cheryl M. Fuller-Malinowski and Stephen S. Malinowski to Plaintiffs

Page 86

was recorded in the Hampshire Registry of Deeds, along with a survey plan. The deed and survey plan purported to correct description errors in a prior recorded 2010 deed from the Malinowskis to Plaintiffs and its accompanying survey plan. In particular, the 2012 deed and survey plan added a triangular parcel of land located at the intersection of Southampton Road and North Road, as well as a traveled way at the base of the triangular parcel, neither of which were specifically included in the 2010 deed or survey. Plaintiffs allege that the 2012 deed and survey plan are accurate and that they are the owners of the triangular parcel and traveled way.

On April 22, 2013, the Town, acting through its Selectboard, sent Plaintiffs a letter explaining that it had " significant concerns about the accuracy of the description contained in" the 2012 deed and survey plan which " increase[d] the area of [Plaintiffs'] property by approximately 20,000 square feet." [2] The letter continued: " The Selectboard does not agree that your property includes either the triangular parcel or the traveled way (together, the 'Parcel')" because " [t]he Parcel has not been included with your property on plans since at least 1968, and in deeds going back to at least 1951" ; " [t]he Selectboard does not understand that you have exercised control or dominion over the Parcel" ; and " [t]he Town has not assessed you for the Parcel, and you have not paid taxes on the land." Rather, the Town explained, " [t]he Parcel appears to have been added whole cloth, and without any basis, to your property." The Town also explained that the public has ...


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