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Gillis v. Chase

United States District Court, D. Massachusetts

April 27, 2017

GEORGE W. GILLIS, Plaintiff,



         On July 12, 2016, Plaintiff George Gillis filed a complaint in the instant case. [ECF No.1]. Defendant William Chase moved to dismiss the complaint on December 2, 2016 [ECF No.10] and Plaintiff filed an opposition on February 6, 2017 [ECF No. 23]. For the reasons stated herein, Defendant's motion to dismiss is GRANTED.

         I. BACKGROUND

         In evaluating a motion to dismiss, the Court accepts all factual allegations in the complaint as true and construes all reasonable inferences in the plaintiff's favor. Alt. Energy, Inc. v. St. Paul Fire and Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001). While a court may not ordinarily consider documents outside the complaint when evaluating a motion to dismiss, consideration of official public records, including court filings, is permissible. Id. The following facts are drawn from the complaint and supplemented as necessary by pleadings filed in this Court under case numbers 11-cv-10736 and 12-cv-12043.[1]

         On December 9, 2008, while operating a multi-wheeled truck to remove rock and debris from a construction site in Westwood, Massachusetts, Plaintiff struck and fatally injured Edward Hansen, who had been videotaping the excavation. Mr. Hansen was transported to the Caritas Norwood Hospital where he was pronounced dead. At the time of the accident, Mr. Hansen was facing away from Plaintiff's truck and not wearing his prescribed hearing aids. Further, Plaintiff's truck was in good working order and equipped with all applicable safety features and alarms, including the reverse gear alarm, which was sounding when the accident occurred. Law enforcement officers who responded to the scene determined that Plaintiff was not under the influence of alcohol or narcotics at the time of the accident. Plaintiff was charged with Motor Vehicle Homicide, but acquitted following a trial in the Dedham District Court. See Gillis II, ECF No. 65 at 5.

         Thereafter, on April 29, 2011, Plaintiff filed suit against Defendant Chase, who was the Westwood Chief of Police at the time of the accident, and William Keating, who was the Norfolk Country District Attorney. Gillis I, ECF No. 1. In that complaint, Plaintiff alleged that, in knowingly charging him with a crime unsupported by probable cause, the defendants violated his rights to due process of law as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. Id. ¶ 20. In response, Mr. Keating filed a motion to dismiss and a memorandum of law in support, Gillis I, ECF Nos. 6, 7, and Defendant Chase filed a motion for judgment on the pleadings, or in the alternative, for summary judgment and a memorandum of law in support, Gillis I, ECF Nos. 14, 15. Plaintiff opposed both motions and requested discovery. Gillis I, ECF Nos. 13, 21. On March 7, 2012, Judge Tauro issued an Order and Memorandum holding that “Plaintiff's claims against [Mr.] Keating must be dismissed on the ground of immunity” and “[t]he facts alleged . . . [were] insufficient to state a plausible claim for relief against either” Mr. Keating or Defendant Chase. Gillis I, ECF No. 23. Judge Tauro also denied Plaintiff's request for discovery. Id. at 7. Plaintiff appealed this decision, but he later voluntarily withdrew the appeal. Gillis I, ECF No. 26; Gillis v. Keating, No. 12-1393 (1st Cir. Aug. 17, 2012).

         On September 12, 2012, Plaintiff filed a second action in the Bristol Superior Court against Brian Clark, the Chief of Police for the Town of Norton, and Robert Kimball, a member of the Town of Norton's Board of Selectmen. See Gillis II, ECF Nos. 1-1, 65. This second cause of action did not concern the December 9, 2008 accident or the related criminal charges.[2] On November 1, 2012, Mr. Clark and Mr. Kimball removed the case to this Court. Gillis II, ECF No. 1. In connection with this second suit, Plaintiff conducted several depositions.

         In the case currently before this Court, hereinafter referred to as Gillis III, Plaintiff alleges that the facts learned from these depositions “directly relate to the heart of the allegations set forth . . . in his original Complaint [filed in Gillis I].” [ECF No. 1 ¶ 21]. Plaintiff further alleges that if he had been afforded discovery in his original action (Gillis I), the case would not have been dismissed. Plaintiff requests that the judgment entered by Judge Tauro on March 7, 2012, be vacated pursuant to Federal Rule of Civil Procedure 60.


         a. Standard of Review

         Federal Rule of Civil Procedure 8(a)(2) requires a plaintiff to plead “a short and plain statement of the claim” that provides a defendant with fair notice of what the claim is and the grounds upon which it rests. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint need not contain “detailed factual allegations, ” however, “more than labels and conclusions, [or] a formulaic recitation of the elements of a cause of action” are required. Id. In evaluating a motion to dismiss pursuant to Rule 12(b)(6), the Court accepts as true all well-pleaded facts and analyzes “those facts in the light most hospitable to the plaintiff's theory, and drawing all reasonable inferences for the plaintiff.” United States ex. rel. Hutcheson v. Blackstone Med., Inc., 647 F.3d 377, 383 (1st Cir. 2011). “A suit will be dismissed if the complaint does not set forth ‘factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.'” Id. at 384 (quoting Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008)). The factual allegations, when taken as true, “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.

         b. To the extent Plaintiff seeks relief under Federal Rule of Civil Procedure 60(b), his claims are time-barred.

         In the instant complaint, Plaintiff claims he is entitled to relief under Rule 60. [ECF No. 1 at 1]. In his opposition to Defendant's motion to dismiss, Plaintiff clarifies that his claims are brought pursuant to Rules 60(b), (d)(1), and (d)(3). [ECF No. 24 at 7].

         Rules 60(b)(1)-(3) permit “the court [to] relieve a party . . . from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party.” Fed.R.Civ.P. 60(b)(1)-(3). Any request for relief under Rules 60(b)(1)-(3) “must be made . . . no more than a year after the entry of the judgment or order or the date of the proceeding.” Id. at 60(c)(1). “By its own terms, Rule 60(b) applies only to final judgments.” United States v. Baus, 834 F.2d 1114, 1118 (1st Cir. 1987). A judgment is final if it is appealable. Id. at 1119 (citing Solaroll Shade and Shutter Corp. v. Bio-Energy Systems, Inc., 803 F.2d 1130, 1131 (11th Cir. ...

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