Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bostwick v. 44 Chestnut Street

United States District Court, D. Massachusetts

March 27, 2019

RICHARD D. BOSTWICK and RICHARD D. BOSTWICK as a CLASS OF ONE, Plaintiffs,
v.
44 CHESTNUT STREET, et al., Defendants.

          MEMORANDUM AND ORDER ON DEFENDANTS KYLE BARNARD AND PHILIP BATES' MOTION TO DISMISS

          ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.

         Plaintiff 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, subsequent foreclosure proceedings, and 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.")]. Defendants Kyle Barnard ("Barnard") and Philip Bates ("Bates," and together with Barnard, "Defendants") have moved to dismiss the claims against them on the grounds that they are barred by Federal Rule of Civil Procedure 12(b)(6), and, in the alternative, ask that this Court abstain. [ECF No. 57]. For the reasons set forth below, Barnard and Bates' motion to dismiss is GRANTED.

         I. BACKGROUND

         A. Factual Background

         The 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 Cir. 2003)).[1]

         As 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. Cmty. 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)). The Court also must generously construe the arguments in Plaintiffs briefing. 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)).

         Plaintiff 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"), [2] 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"[3] named Aruda "and Bostwick generated the cost of [the previous contractor's] Damages." [Compl. ¶¶ 227.b, 228.b]. In March or April 2004, Bates and an individual named Lawlor, both associated with "Classic-Lexington," stopped the project of calculating damages and promised to complete it later. [Id.].

         During a deposition on November 14, 2007, for an unspecified action, Plaintiff discovered that the Classic Group lacked the licenses or permits 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].

         At 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 without licenses or permits at 44 Chestnut Street. [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].[4]

         The approximate cost of completing the deleading of 44 Chestnut Street has been estimated to be $275, 888. [Compl. ¶49]. Damages against Barnard and Bates include lost rents of up to $828, 000 and a decrease in property value of $403, 800. [Id. ¶ 154].

         The Classic Group filed for Chapter 7 bankruptcy on January 25, 2011. [Id. ¶ 129.1].

         B. History of Prior Litigation

         Plaintiff has sued Barnard and Bates twice before for claims stemming from the deleading of 44 Chestnut Street.

         First, in May 2012, Plaintiff commenced an adversary proceeding in bankruptcy court against the Classic Group, Barnard, Bates, and Richard 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 Barnard and Bates, 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); as well as because the bankruptcy court lacked jurisdiction to determine claims against non-debtors or to review state court decisions under the Rooker-Feldman doctrine; and, the Plaintiff lacked 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 a motion for relief from the automatic stay to pursue available insurance policies, if any, in the event [Plaintiff] ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.