United States District Court, D. Massachusetts
RICHARD D. BOSTWICK and RICHARD D. BOSTWICK as a CLASS OF ONE, Plaintiffs,
44 CHESTNUT STREET, et al., Defendants.
MEMORANDUM AND ORDER ON DEFENDANT RICHARD F. GANTTS
MOTION TO DISMISS
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.
Richard D. Bostwick ("Plaintiff) asserts claims for
various civil rights violations and claims for breach of
contract, negligence, and fraud, among others, allegedly
stemming from the provision of deleading and related services
at his home in approximately 2001, and for subsequent
foreclosure proceedings, and related decisions made by the
Land Court, Middlesex Superior Court, and the Massachusetts
Appeals Court in various civil suits surrounding ongoing
issues at his property. [ECF No. 1 ("Complaint"
or"Compl.")]. Defendant Richard F. Gantt
("Gantt") has moved to dismiss the claims against
him on the grounds that they are barred by Federal Rule of
Civil Procedure 8, Federal Rule of Civil Procedure 12(b)(6),
or the statute of limitations. [ECF No. 15]. For the reasons
set forth below, Gantt's motion to dismiss is
following facts are drawn from the Complaint, the
well-pleaded allegations of which are taken as true for the
purposes of evaluating the motion to dismiss. See Ruivo
v. Wells Fargo Bank, N.A., 766 F.3d 87, 90 (1st Cir.
2014). As it may on a motion to dismiss, the Court has also
considered "documents incorporated by reference in [the
complaint], matters of public record, and other matters
susceptible to judicial notice." Giragosian v.
Ryan, 547 F.3d 59, 65-66 (1st Cir. 2008) (quoting In
re Colonial Mortg. Bankers Corp., 324 F.3d 12, 20 (1st
here, where the Plaintiff is proceeding pro se, the
Court "hold[s] pro se pleadings to less
demanding standards than those drafted by lawyers and
endeavors, within reasonable limits, to guard against the
loss of pro se claims due to technical
defects." Santiago v. Action for Bos. Cmtv. Dev.,
Inc., No. 17-cv-12249-ADB, 2018 WL 5635014, at *2 (D.
Mass. Oct. 31, 2018) (quoting Dutil v. Murphy, 550
F.3d 154, 158 (1st Cir. 2008)). Accordingly, the Court
liberally construes Plaintiffs complaint. Foley v. Wells
Fargo Bank, N.A, 772 F.3d 63, 75 (1st Cir. 2014) (citing
Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
owns a multi-family home at 44 Chestnut Street in Wakefield,
MA ("44 Chestnut Street"). [Compl. ¶ 1].
Plaintiff signed a contract with The Classic Group,
previously known as Classic Restorations ("Classic
Group"),  on December 14, 2001 to complete deleading
work at 44 Chestnut Street that had been started by a
previous general contractor and to itemize and repair damages
caused by the previous general contractor. [ECF No. 1-1
¶¶ 82-83]. Items to be deleaded in Plaintiffs house
included nine window units and a mantle. [Id.
¶34]. The deleading work was completed on June 13, 2002.
[Id. ¶ 84]. Between October 2003 and April 13,
2004, an individual associated with
"Classic-Lexington" named Aruda "and Bostwick
generated the cost of [the previous contractor's]
Damages." [Compl. ¶¶ 227.b, 228.b]. In March
or April 2004, individuals named Bates and Lawlor, both
associated with "Classic-Lexington," stopped the
project of calculating damages and promised to complete it
a deposition on November 14, 2007, for an unspecified action,
Plaintiff discovered that the Classic Group lacked the
licenses or permits that were required for the work performed
at 44 Chestnut Street. [ECF No. 1-1 ¶85]. A month later,
Plaintiff delivered a demand letter to the Classic Group
pursuant to Mass. Gen. Laws ch. 93 A, to which the Classic
Group responded. [Id. ¶ 86].
unspecified times, Plaintiff met up to fifteen times with
Paul Hunter, the director of the Childhood Lead Poisoning
Prevention Program ("CLPPP") at the Massachusetts
Department of Public Health ("DPH') concerning the
deleading activities at his property. [Compl. ¶40]. On
May 30, 2008, Plaintiff submitted to DPH a "Report and
Evidence of Unauthorized Deleading" at 44 Chestnut
Street by Leonard J. Sims and the Classic Group. [ECF No. 1-1
¶ 33]. Hunter directed Plaintiff to work with Warren
Laskey to conduct a re-inspection of 44 Chestnut Street.
[Id. ¶34]. Plaintiff received alerter on August
21, 2008 identifying deleading activities at 44 Chestnut
Street for which there were not licenses or permits.
[Id.] On September 2, 2008, CLPPP filed an
unauthorized deleading complaint against 44 Chestnut Street.
[Id. ¶35]. The status of the deleading at 44
Chestnut Street has been publicly posted by DPH since 2008.
[Id. ¶ 37].
approximate cost of completing the deleading of 44 Chestnut
Street has been estimated to be $275, 888. [Compl. ¶49].
The approximate value of lost rents for the first floor unit
at 44 Chestnut Street for the length of the mortgage
Plaintiff has on the property is $414, 000. [Id.
Classic Group filed for Chapter 7 bankruptcy on January 25,
2011. [Id. ¶ 129.1].
History of Prior Litigation
has sued Gantt twice before for claims stemming from the
deleading of 44 Chestnut Street.
in May 2012, Plaintiff commenced an adversary proceeding in
bankruptcy court against the Classic Group, Kyle Barnard,
Philip Bates, and Gantt ("Bankruptcy Action"),
Bostwick v. Classic Grp., No. 12-ap-01137(Bankr. D.
Mass.), in which Plaintiff sought a determination of an
alleged violation of the bankruptcy court's automatic
stay by Classic Group, "pose[d] a series of questions as
to the joint and several liability under Mass. Gen. Laws ch.
142 A, § 9 of the individual defendants," and
requested "a determination of the rights, duties, status
and legal relations" of parties to actions pending in
the Superior Court, a determination regarding the
availability of insurance policies which may be available to
satisfy a judgment, and discovery on potential causes of
action. See [ECF No. 100-8 at 2; ECF No. 100-9 at 2-4]. All
defendants, including Gantt, filed motions to dismiss. [ECF
No. 100-9 at 4-7]. The bankruptcy court granted the motions
to dismiss on the grounds that the complaint failed to comply
with Federal Rule of Civil Procedure 8's pleading
requirements and failed to state a claim for relief under
Federal Rule of Civil Procedure 12(b)(6) and because the
bankruptcy court lacked jurisdiction to determine claims
against non-debtors or to review state court decisions under
the Rooker-Feldman doctrine as well as Plaintiff s
lack of standing to pursue causes of action for violation of
the automatic stay. [Id. at 8-9]. The complaint was
dismissed on January 18, 2013 "without prejudice to a
determination of the allowance of [Plaintiff s] proof of
claim and without prejudice to the filing of amotion for
relief from the automatic stay to pursue available insurance
policies, if any, in the event [Plaintiff] is ...