United States District Court, D. Massachusetts
GEORGE W. GILLIS, Plaintiff,
WILLIAM CHASE, Defendant.
MEMORANDUM AND ORDER GRANTING DEFENDANT'S MOTION
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.
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.
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.
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
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).
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. 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.
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.
Standard of Review
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.
To the extent Plaintiff seeks relief under Federal Rule of
Civil Procedure 60(b), his claims are time-barred.
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].
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.