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Maltese Towing and Recovering, Inc. v. Town of Truro

United States District Court, D. Massachusetts

September 2, 2016

MALTESE TOWING AND RECOVERING, INC., Plaintiff
v.
TOWN OF TRURO, MASSACHUSETTS; TRURO BOARD OF SELECTMAN; and TRURO CHIEF OF POLICE, Defendants.

          MEMORANDUM AND ORDER

          WOLF, D.J.

         I. SUMMARY

         Plaintiff 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 U.S.C. §1983.

         Truro 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 due process.

         II. PROCEDURAL HISTORY

         Maltese 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").

         III. APPLICABLE STANDARD

         Federal 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).

         The 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.

         IV. FACTS

         Unless 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.

         Maltese filed the Affidavit of Paul Redanz, the manager of Maltese, with its Opposition.[1] 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.

         V. DISCUSSION

         Truro 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; ...


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