United States District Court, D. Massachusetts
OPINION AND ORDER
plaintiff, Gerald Alston, has filed a Motion for
Reconsideration of the Court's order on the Reports and
Recommendations on the defendants' motions to dismiss
(dkt. nos. 188 & 189) wherein the Court concluded, in
relevant part, that the doctrine of claim preclusion barred
Alston from asserting claims against the individual
defendants that pre-date the final judgment of the Norfolk
Superior Court case (“Norfolk case”). Alston
argues that claim preclusion cannot apply because
Goldstein v. Galvin, 719 F.3d 16 (1st Cir. 2013),
forecloses any finding of privity between the individual
defendants here, various town officials and members of the
Select Board sued in their individual capacities, and the
defendant in the Norfolk case, the Town of Brookline itself.
is no generally prevailing definition of privity which can be
automatically applied to all cases.” DeGiacomo v.
City of Quincy, 63 N.E.3d 365, 370-71 (Mass. 2016)
(quoting Old Dominion Copper Mining & Smelting Co. v.
Bigelow, 89 N.E. 193, 217 (Mass. 1909),
aff'd, 225 U.S. 111 (1912)). Privity, rather, is
“best understood simply as a legal conclusion that
follows from an analysis of the relationship between the
parties to a prior adjudication and the party to be
bound.” Id. (citations omitted).
reliance on Goldstein is misplaced because the case
is too factually and legally distinguishable to control the
privity determination here. In Goldstein, the
plaintiff filed two lawsuits against the Secretary of the
Commonwealth in connection with Massachusetts securities
regulations. Goldstein, 719 F.3d at 22. In the first
suit, which was filed in state court, the plaintiff brought
claims under 42 U.S.C. § 1983 against the Secretary in
his official capacity, challenging on First Amendment grounds
the constitutionality of state regulations prohibiting the
solicitation of unregistered securities. Id. at 22.
In the second, the federal action underlying the Court of
Appeals opinion in Goldstein, the plaintiff again
brought claims against the Secretary under § 1983, but
this time in the Secretary's individual capacity,
alleging that he had personally induced members of the
Massachusetts Securities Division to prosecute the
plaintiff's hedge fund in retaliation for the
plaintiff's outspoken opposition to securities
Court allowed the second action, holding that, with respect
to claims under § 1983, “a person sued only in his
official capacity is neither identical to, nor in privity
with, the same person sued in his individual capacity.”
Id. at 23. The holding was premised on the different
legal theories, defenses, and sources of liability presented
by individual and official capacity suits, as is evident from
the opinion and the authorities relied upon therein. See,
e.g., Id. (“By definition, [an individual
capacity] suit takes aim at the individual, not the
government entity with which he is associated.”);
Kentucky v. Graham, 473 U.S. 159, 166 (1985);
Conner v. Reinhard, 847 F.2d 384, 395 (7th Cir.
1988); Andrews v. Daw, 201 F.3d 521, 525 (4th Cir.
2000); Restatement (Second) of Judgments § 36 (1982).
claims in the Norfolk case were brought under Sections 4(1)
and 4(4) of Massachusetts General Laws, Chapter 151B. Those
sections do not distinguish between a defendant's
individual and official capacities. Bolduc v. Town of
Webster, 629 F.Supp.2d 132, 154 (D. Mass. 2009);
Bain v. City of Springfield, 678 N.E.2d 155, 159
(Mass. 1997); Beaupre v. Cliff Smith & Assocs., 738
N.E.2d 753, 764 (Mass.App. Ct. 2000). The distinction drawn
in the Goldstein cases is therefore inapplicable.
claims are governed by Massachusetts law, which recognizes
that a non-party may invoke claim preclusion when its
interests were represented by a party to the prior
litigation, or when the party has a close and significant
relationship with a party to the prior suit. Hermes
Automation Tech., Inc. v. Hyundai Elecs. Indus. Co., 915
F.2d 739, 750-51 (1st Cir. 1990); TLT Constr. Corp. v. A.
Anthony Tappe & Assocs., Inc., 716 N.E.2d 1044, 1049-50
(Mass.App. Ct. 1999).
individual defendants named in the Third Amended Complaint
clearly meet this standard. See Hudson v.
MacEachern, 94 F.Supp.3d 59, 66 (D. Mass. 2015). As
Alston himself alleges, members of the Select Board are
responsible for representing the Town of Brookline in
lawsuits as plaintiff and defendant. See Coughlin v. Town
of Arlington, No. CA 10-10203-MLW, 2011 WL 6370932, at
*5-6 (D. Mass. Dec. 19, 2011). Moreover, the acts of
discrimination claimed in both of Alston's lawsuits could
only have been committed by the town officials and/or Select
Board members, who act as the fire commissioner; are the
ultimate decision-makers with respect to the hiring, firing,
promotion, demotion and discipline of Brookline firefighters;
and are responsible for adopting and overseeing town
administrative policies, including the Town's
antidiscrimination and retaliation policy. See
Hudson, 94 F.Supp.3d at 66; Coughlin, 2011 WL
6370932, at *6.
clear from the record that Alston had the factual basis,
incentive, and opportunity to assert in the Norfolk case the
same claims against the individual defendants as were
asserted against the Town. See Kobrin v. Bd. of
Registration in Med., 832 N.E.2d 628, 634 (Mass. 2005)
(noting that claim preclusion is “‘based on the
idea that the party to be precluded has had the incentive and
opportunity to litigate the matter fully in the first
lawsuit.'”) (citations omitted). The final judgment
in that case, therefore, bars Alston's claims against the
individual defendants that could have and should have been
adjudicated in the earlier case. See Heacock v.
Heacock, 520 N.E.2d 151, 152-53 (Mass. 1988); see
also Day v. Kerkorian, 814 N.E.2d 745, 751 (Mass.App.
Ct. 2004) (“It is a requirement that all legal theories
supporting a claim be presented when the opportunity is
available, not preserved for presentation through piecemeal
litigation.”). Concluding otherwise would frustrate the
well-established prohibition against claim splitting by
allowing a plaintiff to withhold federal civil rights claims
as insurance against an adverse judgment on comparable state
law claims, where the issues could have been resolved in a
and as previously stated, Alston may only assert claims
against the defendants-both Town and individual-that have
arisen after the date of the final judgment of the Norfolk
case. All claims prior to this date are barred
and dismissed. The Motion for Reconsideration (dkt. no. 208)
 The claims against Jesse Mermell, for
example, whose tenure on the Select Boarded ended prior to
the final judgment in the Norfolk case, are barred ...