United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING DEFENDANTS' MOTION
TO DISMISS PLAINTIFF'S AMENDED COMPLAINT (DKT. NO.
KATHERINE A. ROBERTSON, UNITED STATES MAGISTRATE JUDGE.
Thomas Touponce (“Plaintiff” or
“Touponce”) brings the present action against
defendants Town of Lee (“Lee” or “the
Town”) and its Building Inspector, Donald R. Torrico
“Defendants”). Touponce previously brought
litigation against the same Defendants, which resulted in a
settlement agreement and payment to Touponce. According to
Touponce, as a result of the prior litigation and settlement,
Torrico harbors malice toward him, leading Torrico to
selectively target Touponce for zoning and building code
enforcement activities, to interfere with an application for
zoning relief, and to wrongfully subject Touponce to civil
and criminal process. Touponce also alleges that the Town
failed to adequately supervise Torrico to prevent him from
committing these wrongs against Touponce and appropriated and
condemned Touponce's land without justly compensating
him. Touponce brings claims against the Town and Torrico for
violation of 42 U.S.C. § 1983 (Counts I and II) and the
Massachusetts Constitution and Declaration of Rights (Count
VII), against the Town for trespass, nuisance, and unlawful
taking (Count VIII), and against Torrico for malicious
prosecution (Count III), abuse of process (Count IV),
tortious interference with advantageous business relations
(Count V), and violation of the Massachusetts Civil Rights
Act (Count VI) (Dkt. No. 22). Currently pending is
Defendants' motion to dismiss Plaintiff's amended
complaint for failure to state a claim (Dkt. No. 23).
Defendants also argue that Plaintiff's claims insofar as
they relate to the Town's enforcement activities with
respect to two of his properties are barred by the doctrine
of res judicata based on a Massachusetts Superior Court
decision in favor of the Town in an enforcement action
regarding those same two properties. For the reasons stated
herein, the court grants the motion to dismiss as to the
federal claims in the amended complaint and declines to
exercise supplemental jurisdiction over the state law
Applicable Legal Standards
survive a Fed.R.Civ.P. 12(b)(6) motion to dismiss, a
“‘complaint must contain enough factual material
to raise a right to relief above the speculative level . . .
and state a facially plausible legal claim.'”
Guerra-Delgado v. Popular, Inc., 774 F.3d 776, 780
(1st Cir. 2014) (alteration in original) (quoting
Ocasio-Hernández v. Fortuño-Burset,
640 F.3d 1, 12 (1st Cir. 2011)). Courts are to employ a
two-pronged approach to determine whether a claim has facial
plausibility. Medina-Velázquez v.
Hernández-Gregorat, 767 F.3d 103, 108 (1st Cir.
2014) (citing Ocasio-Hernández, 640 F.3d at
First, [the court] “must separate the complaint's
factual allegations (which must be accepted as true) from its
conclusory legal allegations (which need not be
credited).” A.G. ex. rel. Maddox v. Elsevier,
Inc., 732 F.3d 77, 80 (1st Cir. 2013) (internal
quotation marks omitted). Second, [the court] “must
determine whether the remaining factual content allows a
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (internal quotation
Medina-Velázquez, 767 F.3d at 108.
“‘The make-or-break standard . . . is that the
combined allegations, taken as true, must state a plausible,
not a merely conceivable, case for relief.'”
Ocasio-Hernández, 640 F.3d at 12 (alteration
in original) (quoting Sepúlveda-Villarini v.
Dep't of Educ. of P.R., 628 F.3d 25, 29
(1st Cir. 2010)).
resolving a motion to dismiss, the court accepts as true all
well-pleaded facts in the complaint, analyzes those facts in
the light most hospitable to the plaintiff's theory, and
draws all reasonable inferences for the plaintiff. United
State ex rel. Hutcheson v. Blackstone Med., Inc., 647
F.3d 377, 383-84 (1st Cir. 2011) (citing Gagliardi v.
Sullivan, 513 F.3d 301, 305 (1st Cir. 2008)). The court
may supplement those facts and inferences “by examining
‘documents incorporated by reference into the
complaint, matters of public record, and facts susceptible to
judicial notice.'” Butler v. Balolia, 736
F.3d 609, 611 (1st Cir. 2013) (quoting Haley v. City of
Boston, 657 F.3d 39, 46 (1st Cir. 2011)). “[W]here
the motion to dismiss is premised on a defense of res
judicata - as is true in the case at hand - the court may
take into account the record in the original action.”
Andrew Robinson Int'l, Inc. v. Hartford Fire Ins.
Co., 547 F.3d 48, 51 (1st Cir. 2008) (citing R.G.
Fin. Corp. v. Vergara-Nuñez, 446 F.3d 178, 183-84
(1st Cir. 2006); Boateng v. InterAm. Univ., Inc.,
210 F.3d 56, 60 (1st Cir. 2000)).
judicata is an affirmative defense. Medina-Padilla v.
U.S. Aviation Underwriters, Inc., 815 F.3d 83, 85 (1st
Cir. 2016). “As a general rule, a properly raised
affirmative defense can be adjudicated on a motion to dismiss
so long as (i) the facts establishing the defense are
definitively ascertainable from the complaint and the other
allowable sources of information, and (ii) those facts
suffice to establish the affirmative defense with
certitude.” Rodi v. S. New Eng. Sch. of Law,
389 F.3d 5, 12 (1st Cir. 2004) (citing In re Colonial
Mortg. Bankers Corp., 324 F.3d 12, 16 (1st Cir. 2003)).
facts are set forth as described in the amended complaint and
documents attached thereto.
is a developer of agricultural, residential, and commercial
properties in Lee, Massachusetts. Touponce owns a number of
properties in Lee, including 15 Cone Avenue, 1125 Meadow
Street, 905 Pleasant Street, and 1160 Pleasant Street. At all
times relevant to the amended complaint, Torrico was the
Building Inspector for the Town.
March 2008, Touponce commenced a civil action in this court
against the Town and Torrico, among others, for violation of
42 U.S.C. § 1983, malicious prosecution, abuse of
process, tortious interference with advantageous relations,
and violation of the Massachusetts Civil Rights Act. In
January 2010, the parties entered into a settlement agreement
regarding the case, whereby Touponce provided a release and
waiver to Defendants and received a payment of $200, 000.00.
News of the settlement agreement garnered press coverage in
and around the Town. According to Touponce, Torrico harbors
malice toward him as a result of the prior litigation and
settlement agreement and, as a consequence, singled him out
for adverse treatment.
10, 2011, Torrico trespassed on Touponce's property at 15
Cone Avenue by parking his vehicle in the driveway while
inspecting a damaged house located at 30 Cone
Avenue. Touponce reported the trespass to the Lee
October 24, 2011, the Town of Lee sent a letter to Touponce
informing him that a road improvement project on Tyringham
Road near 1125 Meadow Street would interfere with his
property rights. The Town requested that Touponce donate
permanent and temporary easements related to drainage and
advised him that, if he declined to donate the easements, the
Town would exercise its power of eminent domain with
appropriate compensation. Touponce did not agree to donate
drainage easements to the Town. In June 2014, the Town
intentionally appropriated and condemned Touponce's land
at 1125 Meadow Street for drainage from Tyringham Road
without any formal action, without compliance with Mass. Gen.
Laws ch. 79, without due process of law, and without
compensation. The Town then intentionally diverted water onto
the property, thereby causing damage.
September 12, 2014, Defendants initiated an enforcement
action under the Massachusetts State Board of Building
Regulations and Standards, codified at 780 Mass. Code Regs.
§ 101 et seq., alleging that Touponce required
a permit to construct a greenhouse at 1125 Meadow Street.
However, greenhouses covered exclusively with plastic are
exempt from the permitting requirement, and Defendants did
not require other property owners in the Town to apply for
building permits for “similar greenhouses, ”
including those owned and operated by Clark's Garden
Center, which are “virtually identical” to
Plaintiff's. To the contrary, “Defendants
intentionally treated [P]laintiff differently from others
similarly situated without a rational basis for the
difference in treatment . . ..”
November 28, 2014, Touponce applied to the Town for a special
permit for the purpose of operating a retail ...