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Touponce v. Town of Lee

United States District Court, D. Massachusetts

April 6, 2018

THOMAS TOUPONCE, Plaintiff,
v.
TOWN OF LEE, et al., Defendants.

          MEMORANDUM AND ORDER REGARDING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT (DKT. NO. 23)

          KATHERINE A. ROBERTSON, UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Plaintiff 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 (“Torrico”) (collectively, “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 claims.[1]

         II. Applicable Legal Standards

         To 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 12).

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 marks omitted).

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)).

         In 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)).

         Res 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)).

         III. Background

         A. Facts

         The facts are set forth as described in the amended complaint and documents attached thereto.

         Touponce 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.

         In 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.

         On June 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.[2] Touponce reported the trespass to the Lee Police Department.

         On 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.

         On 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 . . ..”

         On November 28, 2014, Touponce applied to the Town for a special permit for the purpose of operating a retail ...


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