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Jacobs v. Soars

United States District Court, D. Massachusetts

December 19, 2014

LISA JACOBS, Plaintiff,
v.
DAVID SOARS, et al., Defendants.

ORDER ON REPORT AND RECOMMENDATIONS

LEO T. SOROKIN, Magistrate Judge.

On December 2, 2014, Magistrate Judge Kelley issued a Report and Recommendations (Docket #115) on Defendant Kopelman & Paige, P.C.'s Partial Motion to Dismiss (Docket #41). After careful consideration and de novo review of the Report and Recommendations in light of the objections filed by Plaintiff (Docket ##127, 128), the Court hereby ADOPTS the Report and Recommendations as follows: The Partial Motion to Dismiss is ALLOWED and Counts I and II are DISMISSED for failure to state a claim, while the remaining claims are DISMISSED WITHOUT PREJUDICE. Plaintiff, however, may file an Amended Complaint within 45 days.

On December 2, 2014, Magistrate Judge Kelley issued a Report and Recommendations (Docket #116) on Defendants David Soars, Deborah Davenport, Town Of Weston, Donna Vanderclock, Ed Coburn, Doug Gillespie, Mike Harrington, Eric Josephson, Gary Koger, Paul Zorgass, Phyllis Kominz, Allan Orth, Tamilyn Levin, William O'Neil, Steve Shaw, John Lyons, Dan McGuire, William Carlo, Mike Forti, Efthimios Bousios, and Louison, Costello, Condon & Pfaff, LLP's Motion to Dismiss (Docket #44). After careful consideration and de novo review of the Report and Recommendations in light of the objections filed by Plaintiff (Docket ##127, 128), the Court hereby ADOPTS the Report and Recommendations as follows: The Motion to Dismiss is ALLOWED and Counts I and II are DISMISSED for failure to state a claim while the remaining claims are DISMISSED WITHOUT PREJUDICE. Plaintiff, however, may file an Amended Complaint within 45 days.

SO ORDERED.

REPORT AND RECOMMENDATION ON EFENDANT KOPELMAN AND PAIGE, P.C.'S PARTIAL MOTION TO DISMISS (#41)

KELLEY, U.S.M.J.

Reference is made to the Report and Recommendation On Defendants David Soars, Deborah Davenport, Town Of Weston, Donna Vanderclock, Ed Coburn, Doug Gillespie, Mike Harrington, Eric Josephson, Gary Koger, Paul Zorgass, Phyllis Kominz, Allan Orth, Tamilyn Levin, William O'Neil, Steve Shaw, John Lyons, Dan McGuire, William Carlo, Mike Forti, Efthimios Bousios and Louison, Costello, Condon & Pfaff, LLP's Motion To Dismiss Pursuant To M.R.C.P. (sic) Rule 12(b)(6) (#44) issued this date. For the reasons stated in that Report and Recommendation, I RECOMMEND that action on Defendant Kopelman and Paige, P.C.'s Partial Motion To Dismiss (#41) be PRETERMITTED at this time and that the plaintiff be GRANTED forty-five (45) days within which to file an amended complaint that complies with Rules 8(a)(2), Rule 18(a) and Rule 20(a)(2), Fed. R. Civ. P.

If the plaintiff fails to file an amended complaint that complies with the Federal Rules of Civil Procedure within forty-five (45) days, I RECOMMEND that Defendant Kopelman and Paige, P.C.'s Partial Motion To Dismiss (#41) be ALLOWED to the extent that the federal claims alleged in Counts I and II be DISMISSED WITH PREJUDICE. I FURTHER RECOMMEND that the state law claims alleged in Counts III-VIII be DISMISSED WITHOUT PREJUDICE.

Review by the District Judge

The parties are hereby advised that any party who objects to this recommendation must file a specific written objection thereto with the Clerk of this Court within 14 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the recommendation, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with Rule 72(b), Fed. R. Civ. P., shall preclude further appellate review. See Keating v. Secretary of Health and Human Services, 848 F.2d 271 (1st Cir. 1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir., 1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980); see also Thomas v. Arn, 474 U.S. 140 (1985).

REPORT AND RECOMMENDATION ON DEFENDANTS DAVID SOARS, DEBORAH DAVENPORT, TOWN OF WESTON, DONNA VANDERCLOCK, ED COBURN, DOUG GILLESPIE, MIKE HARRINGTON, ERIC JOSEPHSON, GARY KOGER, PAUL ZORFASS, PHYLLIS KOMINZ, ALLAN ORTH, TAMILYN LEVIN, WILLIAM O'NEIL. STEVE SHAW, JOHN LYONS, DAN McGUIRE, WILLIAM CARLO, MIKE FORTI, EFTHIMIOS BOUSIOS AND LOUISON, COSTELLO, CONDON & PFAFF, LLP's MOTION TO DISMISS PURSUANT TO M.R.C.P. (sic) RULE 12(b)(6) (#44)

KELLEY, U.S.M.J.

I. Introduction

On May 21, 2014, plaintiff Lisa A. Jacobs filed a complaint against twenty-two named defendants in the Middlesex Superior Court; the action was subsequently removed to the federal court on June 16, 2014. In lieu of answering the complaint, twenty-one of the defendants filed a motion to dismiss for failure to state a claim (#44). Jacobs has filed an opposition (#50) to the dispositive motion.

II. The Facts

The following facts are alleged in the complaint. Jacobs is a resident of Weston, Massachusetts. (#1-3 ¶ 1) Donna Vanderclock is the Town Manager of Weston, while Ed Coburn, Doug Gillespie and Mike Harrington are selectmen in the town. (#1-3 ¶¶ 3-6) Gary Kroger is the chair of the Board of Assessors; Paul Zorfass, Phyllis Kominz, Allan Orth and Tamilyn Levin are members of the Board. (#1-3 ¶¶ 8-12) William O'Neil is the Supervisor of Weston Public Works. (#1-3 ¶ 13) Steve Shaw is the Chief of the Weston Police. (#1-3 ¶ 14) John Lyons and Dan Maguire are Lieutenants, Bill Carlo is a Detective, Mike Foti is a Sergeant, and Efthimios Bousios is an officer on the Weston police force. (#1-3 ¶¶ 15-19) David Soars is the Weston Fire Chief. (#1-3 ¶ 20) Deborah Davenport is the town clerk in Weston. (#1-3 ¶ 21) Kopelman and Paige P.C. and Louison, Costello, Condon & Pfaff LLP serve as town counsel for Weston. (#1-3 ¶¶ 22-23)

Jacobs alleges that she "is handicapped with 2 cancers, degenerative disc disease, a sensitivity/allergy to dogs, Jewish female who was born in 1966 who was discriminated against as a member of those protected classes as well as discrimination on the basis of the perception of being mentally ill and she has a caretaker alliance with her disabled mother." (#1-3 ¶ 26) According to Jacobs, on or about March 19, 2013, the Town of Weston and the named members of the Weston police department wrote up an automobile accident report[1] untruthfully against her because she was a member of those protected classes. (#1-3 ¶ 27) Among the allegations plaintiff makes about this accident is the complaint that no charges were brought against the other driver who purportedly was at fault while the police applied to prosecute her. (#1-3 ¶ 29) Jacobs contends that a non-disabled male she knew was treated differently by the Weston police when he was in an automobile accident. (#1-3 ¶¶ 32-33)

The plaintiff alleges that over a period of years two employees at the transfer station competed for her "sexual interest, asked her out on dates, and made advances repeatedly." (#1-3 ¶¶ 36-42)

According to Jacobs, on or about October 24, 2013, she received a letter from O'Neil who is alleged to have "insulted" the plaintiff's shrubs at her family cemetery plot and notified her that the shrubs were going to be "ripped out." (1-3 ¶ 43) The plaintiff claims that this action evidences that she was treated differently from other similarly situated people and also constitutes retaliation for her prior discrimination complaints. (#1-3 ¶ 43)

Jacobs claims that on November 19, 2013 "a big not service dog sexually assaulted and battered [her] inside the federal Weston post office." (#1-3 ¶ 46) Members of the Weston police force purportedly refused to accept the police report the plaintiff attempted to file and refused to investigate the dog attack.[2] (#1-3 ¶¶ 46-47)

Next, the plaintiff alleges that on November 18, 2013, she requested certified documents from defendant Josephson and other members of the Board of Assessors and that they refused to give her any documents. (#1-3 ¶ 52) As a result of this refusal, Jacobs filed a public accommodation discrimination complaint. (#1-3 ¶ 52) That same day the plaintiff also requested certified documents from the Weston Town Clerk's office, Weston Town Manager's Office, Kopelman and Paige P.C. and Louison, Costello, Condon & Pfaff LLP; all of these requests were refused. (#1-3 ¶ 53)

According to Jacobs, on December 4, 2013 "Davenport promised to issue an affidavit determination that Tamilyn Levin did the crime [of illegal voter registration in violation of Mass. Gen. L. c. 56 § 8] on or by 12/10/2013 and then refused to issue the affidavit." (#1-3 ¶¶ 58, 60) That same day Vanderclock and the Town of Weston are alleged to have stopped the plaintiff's real estate firm ...


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