United States District Court, D. Massachusetts
DANIEL A. CAPODILUPO, Plaintiff,
SOUTH SHORE VOCATIONAL TECHNICAL HIGH SCHOOL, Defendant.
ORDER ON MOTION FOR LEAVE TO FILE SECOND AMENDED
COMPLAINT (DOC. NO. 14) AND MOTION TO DISMISS (DOC. NO.
Sorokin United States District Judge.
Daniel Capodilupo brought suit against Defendant South Shore
Vocational Technical High School (“South Shore”)
in Superior Court on March 29, 2018. On May 15, 2018, Mr.
Capodilupo, then acting pro se, filed a First
Amended Complaint, which for the first time included a claim
under the United States Constitution. South Shore promptly
removed the case to federal court.
Capodilupo, now represented by counsel, has moved for leave
to file a Second Amended Complaint, which “[d]eletes
approximately twelve pages of legal memoranda, ”
“[o]mits claims for personal injury, ”
“[p]rovides the Court with a clear and concise
statement of facts, ” and “[i]s paginated and
presents all factual and legal conclusions in numbered
paragraphs.” Doc. No. 14 at 1-2. South Shore opposes
the motion on futility grounds, as it argues the Second
Amended Complaint fails to state a claim for which relief may
be granted. Doc. No. 18 at 1. However, Rule 15 states that a
“court should freely give leave [to amend] when justice
so requires.” Fed.R.Civ.P. 15(a)(2). Here, the Second
Amended Complaint streamlines the claims and brings the
complaint into conformity with the governing pleading rules.
The motion for leave to file a second amended complaint, Doc.
No. 14, is therefore ALLOWED WITHOUT PREJUDICE to the Court
evaluating the futility arguments defendant advances.
Accordingly, the Court adopts the Plaintiff's Second
Amended Complaint, Doc. No. 14-1, as the operative complaint.
Shore also filed a motion to dismiss the First Amended
Complaint. Because the claims presented in the Second Amended
Complaint are substantially similar to those presented in the
First Amended Complaint, the Court considers South
Shore's motion to dismiss as relating to the Second
Amended Complaint. The Court also considers the grounds
advanced by South Shore in its opposition to the motion for
leave to file a second amended complaint in deciding the
pending motion to dismiss. For the reasons that follow, South
Shore's motion to dismiss is ALLOWED as to Count III of
the Second Amended Complaint.
Capodilupo lives in Hanover, Massachusetts, in a home which
abuts South Shore. Doc. No. 14-1 ¶¶ 1, 5. South
Shore, a public school, operates “dozens of school
buses on-site on a daily basis.” Id.
¶¶ 2, 6. These buses are “equipped with a
safety device known in the industry as a ‘Back-up
beeper.'” Id. ¶ 9. When a bus moves
in reverse, this device emits “a loud, repetitive
beeping sound” in order to “alert anyone in the
general vicinity that the bus is moving in reverse.”
Id. ¶ 10. The noise emitted by the device is
“unusually loud and noxious, ” and is
“intended to be loud [and] unpleasant.”
Id. ¶¶ 11-12.
noise emitted by the back-up beepers only became an issue for
Mr. Capodilupo in the 2017-2018 school year. Prior to that
year, the buses were parked on a portion of South Shore's
property which was farther away from Mr. Capodilupo's
home. Importantly, when the buses were parked in that area,
the drivers were able “to enter the lot, turn
counter-clockwise while moving forward, and park the buses in
such a manner that they were never required to shift into
reverse.” Id. ¶ 7. Beginning in the
2017-18 school year, however, “the buses were moved to
a lot that is immediately behind, and abutting, [Mr.
Capodilupo's] property.” Id. ¶ 8.
“As a result, the buses are now required to back-up
into their parking spots.” Id. As a result,
when the buses are being operated, the noise emitted by the
devices “is continuous for at least fifteen-twenty
minutes and sometimes for as long as thirty minutes.”
Id. ¶ 24.
these allegations, Plaintiff's Second Amended Complaint
asserts three claims: (1) violation of Article 97 of the
Massachusetts Constitution, (2) common law nuisance, and (3)
a violation of the Fifth and Fourteenth Amendments of the
United States Constitution arising from an uncompensated
taking. Id. ¶¶ 30-39. Count III, the
takings claim, provides the sole basis for federal
survive a motion to dismiss under Rule 12(b)(6), a complaint
must contain sufficient factual matter, accepted as true, to
“state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). The court “must accept all
well-pleaded facts alleged in the Complaint as true and draw
all reasonable inferences in favor of the plaintiff.”
Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993).
Dismissal for failure to state a claim is appropriate when
the pleadings fail to set forth “factual allegations,
either direct or inferential, respecting each material
element necessary to sustain recovery under some actionable
legal theory.” Berner v. Delahanty, 129 F.3d
20, 25 (1st Cir. 1997) (quoting Gooley v. Mobil Oil
Corp., 851 F.2d 513, 515 (1st Cir. 1988) (internal
quotation marks omitted).
Court caselaw has “long established that mere
diminution in the value of property, however serious, is
insufficient to demonstrate a taking.” Concrete
Pipe & Prod. of California, Inc. v. Constr. Laborers
Pension Tr. for S. California, 508 U.S. 602, 645 (1993)
(citing Village of Euclid v. Ambler Realty Co., 272
U.S. 365, 384 (1926); Hadacheck v. Sebastian, 239
U.S. 394, 405 (1915)). See also Penn Cent. Transp. Co. v.
City of New York, 438 U.S. 104, 131 (1978)
(“[D]ecisions sustaining other land-use regulations,
which, like the New York City law, are reasonably related to
the promotion of the general welfare, uniformly reject the
proposition that diminution in property value, standing
alone, can establish a ‘taking.'”).
Additionally, the First Circuit has noted that
“[w]hatever else can be said about the law of takings,
government action which interferes with the value of land
only by making it less desirable for its present uses does
not effect a taking.” Ortega Cabrera v.
Municipality of Bayamon, 562 F.2d 91, 101 (1st Cir.
support of his takings claim, Mr. Capodilupo asserts that
South Shore “has created noise pollution that
substantially interferes with [his] use and enjoyment of his
property and has substantially reduced the fair market value
of his property.” Doc. No. 14-1 ¶ 38. He also
asserts that he “has suffered and continues to suffer
harm including but not limited to the substantial diminution
of the fair market value of his property.” Id.
¶ 39. The diminution in fair market value of Mr.
Capodilupo's property does not alone constitute a taking.
Concrete Pipe, 508 U.S. at 645.
opposition to the motion to dismiss, Mr. Capodilupo argues
that “[t]akings claims that allege ‘special
inconvenience and discomfort not experienced by the public at
large' or a private nuisance, [are] compensable.”
Doc. No. 19 at 11 (quoting Richards v. Washington
Terminal Co., 233 U.S. 546, 555-57 (1914). However,
Richards involved a case where railroad tunnel smoke
and gases were emptied directly onto plaintiff's property
through a single portal, creating “special and peculiar
damage to the plaintiff.” Id. at 556. The harm
Mr. Capodilupo alleges in his complaint is not focused
particularly on his property as was the case
Richards. By Mr. Capodilupo's own account,
“Back-up beepers can be heard by the human ear for a
distance up to 1.9 miles.” Doc. ...