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The Do Corporation v. Town of Stoughton

United States District Court, D. Massachusetts

July 24, 2015

THE DO CORPORATION and DANIEL SILVA, Plaintiffs,
v.
TOWN OF STOUGHTON et al., Defendants.

MEMORANDUM AND ORDER

DENISE J. CASPER, District Judge.

I. Introduction

Plaintiffs The Do Corporation ("TDC") and its President, Daniel Silva (collectively "Plaintiffs"), filed this lawsuit against the Town of Stoughton (the "Town"); its Board of Selectmen, John M. Anzivino, Cynthia A. Walsh, Stephen G. Anastos, [1] Robert J. O'Regan and Thomas J. Recupero; its Police Chief, Paul J. Shastany; and Town Manager, Michael Hartman (collectively "Defendants"). D. 1-2. Plaintiffs allege that Defendants deprived them of their rights to freedom of speech, freedom of association and equal protection of the law under the First and Fourteenth Amendments of the United States Constitution by revoking TDC's entertainment license and modifying its liquor license (Counts I-III). Id . ¶¶ 35-49. Plaintiffs also allege claims under various provisions of Massachusetts statutory law and the Massachusetts Declaration of Rights (Counts IV-XII). Id . ¶¶ 50-88. Defendants have moved for summary judgment.[2] D. 59; D. 63. For the reasons stated below, the Court ALLOWS the motions.

II. Standard of Review

The Court grants summary judgment where there is no genuine dispute as to any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). "A fact is material if it carries with it the potential to affect the outcome of the suit under applicable law." Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). The movant bears the burden of demonstrating the absence of a genuine issue of material fact. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000); see Celotex v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets its burden, the non-moving party may not rest on the allegations or denials in her pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but "must, with respect to each issue on which she would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in her favor." Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). "As a general rule, that requires the production of evidence that is significant[ly] probative.'" Id . (quoting Anderson, 477 U.S. at 249) (alteration in original). The Court "view[s] the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor." Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).

III. Factual Background

Unless otherwise noted, the following facts are drawn from the undisputed facts submitted by the parties, D. 61; D. 65; D. 71.

From late 2001 through May 8, 2013, TDC and its president, Daniel Silva ("Silva"), operated a nightclub, "Whiplash, " which was located at 63 Wyman Street, Stoughton, Massachusetts. D. 61 ¶ 1; D. 65 ¶ 1; D. 71 ¶ 1. TDC and Silva held a liquor license and an entertainment license for Whiplash issued by the Stoughton Board of Selectmen ("Board"), pursuant to Mass. Gen. L. c. 138 and c. 140. D. 61 ¶ 1. From the time of its opening and for several years following, Whiplash offered entertainment in the form of live bands, rock music and "Top 40" music. D. 61 ¶ 2; D. 71 ¶ 1. In January 2012, Whiplash changed its entertainment format to provide primarily "hip-hop" music played by disc jockeys. D. 61 ¶ 2; D. 71 ¶ 1. The format change was made for financial reasons because the live entertainment "wasn't bringing in enough money... [disc jockeys] seemed to bring in more of a crowd" and because the "dance crowd, " who came to hear the music "drank more liquor." D. 61 ¶ 3 (quoting TDC Depo, D. 61-1 at 3-4).

After the club changed its format, a number of incidents occurred at Whiplash requiring police response, including:

• On July 1, 2012, the Boston Police Department's Gang Unit arrested a suspected gang member from Roxbury, pursuant to a warrant, as part of an investigation into the presence of gang members at Whiplash.
• On July 14, 2012, Stoughton police arrested a Whiplash patron for disorderly conduct and indecent assault and battery. The patron, who was intoxicated, urinated in public and groped and harassed female patrons at the club.
• On September 16, 2012, Stoughton police arrested a patron of Whiplash for disturbing the peace.
• On October 29, 2012, there was a report and subsequent investigation of attempted arson with an accelerant at Whiplash.
• On November 11, 2012, Stoughton police issued a criminal summons to a juvenile from Randolph for assault and battery on three females, which took place outside the club after a "teen night" event.
• On March 24, 2013, Stoughton police arrested a Whiplash patron for intentionally running over the legs of another patron with a motor vehicle, putting the vehicle in reverse and accelerating into the victim, then stopping on the victim's legs. ...

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