United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
Maltese Towing and Recovering, Inc. ("Maltese") has
sued the Town of Truro, Massachusetts, the Truro Board of
Selectman, and the Truro Chief of Police (collectively
"Truro"). The Truro Police Department has a list of
approved towing companies that it calls when a tow truck is
needed (the "Tow List") . Maltese alleges it has
been denied "due process, rights and privileges" by
being removed from the Tow List. It seeks relief under 42
has filed a Motion for Judgment on the Pleadings. Maltese has
opposed it. As explained in this Memorandum, the Motion for
Judgement on the Pleadings is being allowed because Maltese
had no constitutionally protected property interest in being
on the Tow List and, therefore, no constitutional right to
initiated this case by filing the Verified Complaint in the
Superior Court of Barnstable County for the Commonwealth of
Massachusetts. On December 30, 2015, Truro removed the case
to this court based on federal question jurisdiction pursuant
to 28 U.S.C. §1331. On January 22, 2016, Truro filed an
answer. On February 10, 2016, Truro filed a Motion for
Judgment on the Pleadings and supporting memorandum (the
"Memorandum"). On March 23, 2016, Maltese filed an
opposition (the "Opposition").
Rule of Civil Procedure 8(a)(2) requires that a complaint
include a "short and plain statement of the claim
showing that the pleader is entitled to relief." This
pleading standard does not require "detailed factual
allegations, " but requires "more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do." Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A court may disregard
"bald assertions, unsupportable conclusions, and
opprobrious epithets." In re Citigroup, Inc.,
535 F.3d 45, 52 (1st Cir. 2008); see also Penalbert-Roia
v. Fortuno-Burset, 631 F.3d 592, 595 (1st Cir. 2011).
However, "[n]on-conclusory factual allegations in the
complaint must then be treated as true, even if seemingly
incredible." Ocasio-Hernandez v.
Fortuno-Burset, 640 F.3d 1, 12 (2011).
standard for considering a motion for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure 12(c)
is the same as the standard for a motion to dismiss under
Rule 12(b)(6). See Perez-Acevedo v. Rivero-Cubano,
520 F.3d 26, 29 (1st Cir. 2008). A motion to dismiss should
be denied if a plaintiff has shown "a plausible
entitlement to relief." Twombly, 550 U.S. at
559. That is, the complaint "must contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face. 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."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). "The plausibility
standard is not akin to a 'probability requirement, '
but it asks for more than a sheer possibility that a
defendant has acted unlawfully." Id. (quoting
Twombly, 550 U.S. 556). "Where a complaint
pleads facts that are merely consistent with a
defendant's liability, it stops short of the line between
possibility and plausibility of entitlement to relief."
Id. (quoting Twombly, 550 U.S. at 557).
"The relevant inquiry focuses on the reasonableness of
the inferences of liability that the plaintiff is asking the
court to draw from the facts alleged in the complaint."
Ocasio-Hernandez, 640 F.3d at 13.
otherwise stated, the Verified Complaint alleges the
following facts. Maltese is a Massachusetts corporation with
its main office in Provincetown, Massachusetts. It was
incorporated in March 2012, and began doing business in the
Town of Truro, towing and detailing motor vehicles. At some
point in 2012, Maltese was placed on the Tow List and
"receiv[ed] towing calls from [the] police department
..." Verified Compl. ¶6. "At some point toward
the end of 2012, [Maltese] began to experience lost calls
from the Truro Police Department in favor of companies
outside of Truro, which caused loss of revenue and financial
damage to [Maltese]." Id. ¶7. Maltese
unsuccessfully asked to be placed back on the Tow List.
Maltese asserts that companies outside of Truro are now
performing tows, which increases the costs for the people
whose vehicles are towed.
filed the Affidavit of Paul Redanz, the manager of Maltese,
with its Opposition. Redanz states that at the end of 2012, the
Truro Police Chief informed him that Maltese would be removed
from the "Tow List" without stating any reasons for
the decision. See id. ¶¶l-2. He states
also that "[i]t has come to my attention that on several
occasions" where Maltese was requested to perform the
tow, "customers or potential customers have been
diverted to Silvercloud, a competitor of my company, even
though this would involve a greater distance tow than I would
provide." See id. ¶4.
argues that Maltese fails to state a claim for a violation of
its right to due process because being on the Tow List is not
a federally protected right. Maltese argues that: (1)
Truro's decision to remove Maltese from the tow list was
"unfair, unjust, arbitrary and capricious, "
Opposition at 1; ...