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Alston v. Town of Brookline

United States District Court, D. Massachusetts

August 7, 2017

TOWN OF BROOKLINE, MASSACHUSETTS; BROOKLINE BOARD OF SELECTMEN; BETSY DEWITT, in her individual and official capacities; KENNETH GOLDSTEIN, in his individual and official capacities; NANCY DALY, in her individual and official capacities; JESSE MERMELL, in her individual and official capacities; NEIL WISHINSKY, in his individual and official capacities; BERNARD GREENE, in his individual and official capacities; BEN FRANCO, in his individual and official capacities; NANCY HELLER, in her individual and official capacities; SANDRA DEBOW, in her individual and official capacities; JOSLIN MURPHY, in her individual and official capacities; STANLEY SPIEGEL, in his individual capacity; and LOCAL 950, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, Defendants.



         The magistrate judge to whom this matter was referred filed a report and recommendation (dkt. no. 132) (“R&R”) with respect to Defendant Stanley Spiegel's Renewed Motion for Sanctions Pursuant to Federal Rule of Civil Procedure 11 (dkt. no. 91). The magistrate judge recommends allowing the motion and ordering the plaintiff's attorney to pay defendant Spiegel's fees and expenses incurred after this Court issued its Order dismissing without prejudice the First Amended Complaint on September 30, 2016. The plaintiff and defendant Spiegel have filed objections to the R&R (dkt. nos. 138, 139).

         Having reviewed the magistrate judge's recommendation as well as the relevant submissions from the parties, I approve and ADOPT the R&R to the extent that it recommends granting the defendant's motion and imposing sanctions. I conclude, however, that defendant Spiegel should be compensated for fees and expenses incurred after March 8, 2016, the date upon which counsel for Spiegel served plaintiff's counsel with Rule 11 “safe harbor” notice.

         It is SO ORDERED.


          M. Page Kelley United States Magistrate Judge

         I. Introduction.

         On December 1, 2015, plaintiff Gerald Alston brought a complaint against the Town of Brookline (the Town), the Brookline Board of Selectmen (the Board), eight people who were present or past members of the Brookline Board of Selectmen in their individual and official capacities, the Human Resources Director for Brookline, Town Counsel, the union of firefighters to which plaintiff belonged, Local 950 (the Union); and Stanley Spiegel, a Town Meeting member and member of the Town's Advisory Committee, alleging violations of 42 U.S.C. §§ 1981, 1983, and 1985, stemming from an alleged ongoing policy and practice of racial discrimination in Town governance. (#1.)

         On January 26, 2016, an amended complaint was filed naming seven additional plaintiffs.[1] (#21.) The 85-page, 270-paragraph amended complaint stated that the plaintiffs “bring this claim on behalf of themselves and all others who have been damaged by Brookline's longstanding and well-established policy, custom and practice of opposing racial equality, enforcing racial subordination, engaging in affirmative action and favoritism towards [W]hite residents and employees, and retaliating against persons who protest racial discrimination.” Id. ¶ 1. The plaintiffs included Gerald Alston, who is Black and was a firefighter for the Town, whose allegations are set out in detail below. Of the other five plaintiffs, the amended complaint stated that one, a worker in the Sanitation Department, was Black, id. ¶ 87, and three, residents of the Town, identified themselves as being of Puerto Rican, Guatemalan, and Dominican descent. Id. ¶¶ 47-48. With regard to the remaining plaintiff, a Town resident who alleged discriminatory treatment concerning, among other things, an application to be a firefighter, the amended complaint did not state his racial background, a fatal flaw in a case alleging discrimination on the basis of race. Id. ¶¶ 79-86, 252, 261.

         All defendants moved to dismiss the amended complaint (##34, 36, 52), including Spiegel. (#45.) Spiegel filed a motion for sanctions pursuant to Fed.R.Civ.P. 11 against Attorney Brooks Ames.[2] (#54.) Plaintiffs filed a combined opposition to Spiegel's motion to dismiss and motion for sanctions (#56) and Spiegel replied. (#65.)

         In ruling on the defendants' motions to dismiss, this court entered a Report and Recommendation to the District Court, O'Toole, J., recommending that all plaintiffs other than Alston be severed from this action and dismissed without prejudice under Fed.R.Civ.P. 20(a)(1) because many of the plaintiffs' allegations did not arise out of the same “transaction or occurrence.” (#72 at 23.) The court rejected plaintiffs' efforts to join their varied complaints about their treatment by numerous actors in the Town into one action alleging an over-arching conspiracy of racism spanning centuries because plaintiffs' allegations, involving different people and circumstances, complaining of discriminatory acts in hiring, employment conditions, First Amendment retaliation, accommodations for injury, and policing practices, were too disparate to be tried together. See id.

         With regard to the remaining plaintiff, Alston, because the complaint was so poorly drafted and contained so many lengthy, irrelevant assertions, this court found that it “simply [wa]s not clear whether the amended complaint present[ed] an actionable case or controversy that the court c[ould] resolve, or state[d] colorable claims against the named defendants.” (#72 at 28.) Thus, this court recommended that the District Court dismiss the amended complaint without prejudice with leave for Alston to replead his claims in a manner consistent with the requirement of Fed.R.Civ.P. 8(a)(2) (requiring a “short and plain statement of the claim showing that the pleader is entitled to relief”).[3]

         Finally, this court recommended that the claims against Spiegel be dismissed with prejudice pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. (#72 at 33-39.) The basis for that recommendation is described in more detail below.

         Judge O'Toole adopted the Report and Recommendation, with the exception of the recommendation that the claims against Spiegel be dismissed with prejudice: “Since the plaintiff is being granted leave to replead against the other defendants, I think it is fair to give him a chance to replead his claims against Spiegel as well.” (#75 at 2.)

         Alston filed a second amended complaint on October 21, 2016. (#78.) Spiegel again moved to dismiss (#80); this court recommended to Judge O'Toole that the second amended complaint be dismissed with prejudice as to Spiegel. (#98.) Meanwhile, Spiegel renewed his motion for sanctions. (#91.) Judge O'Toole adopted the second Report and Recommendation and dismissed the claims against Spiegel with prejudice: “The plaintiff was provided an opportunity to cure the deficiencies of the first amended complaint with respect to the claims against the defendant, Stanley Spiegel, but has failed to do so.” (#105 at 1-2.)

         A hearing on Spiegel's renewed motion for sanctions was held on Thursday, June 8, 2017. After argument this court found that sanctions against Attorney Ames under R. 11 are appropriate for the reasons set out below. The court ordered counsel for Spiegel to file notice of proposed reasonable attorneys' fees and expenses by June 22, 2017 and Attorney Ames to file any objection to the fees by June 29, 2017.[4]

         II. Facts Concerning Alston's Claims Against Spiegel in the First Amended Complaint.

         Familiarity with the facts of this case is presumed. (#98 at 3-6.) Abbreviated facts pertaining to Alston's claims will be repeated here.

         Alston was the only plaintiff who made allegations against Spiegel. The amended complaint identifies Spiegel as “an elected town meeting member and an appointed member of the advisory committee” who has “frequent contact with the Board of Selectmen both formally and informally.[5] (#21 ¶ 117.) The first amended complaint alleges that Alston, who is Black, joined the Brookline Fire Department in 2002. Id. ¶ 102. In May 2010, Alston's supervisor left a voicemail on his phone; at the end of the voicemail the supervisor used profanity and called Alston a racial slur. Id. ¶¶ 175-178. Alston reported the message to the Fire Department's chief operating officer, who took no action. Id. ΒΆΒΆ 179-180. In the ensuing ...

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