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 DEFENDANTS KYLE BARNARD AND
PHILIP BATES' 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, 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.
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. 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)).
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, Bates and an individual named Lawlor,
both associated with "Classic-Lexington," stopped
the project of calculating damages and promised to complete
it later. [Id.].
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].
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].
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].
Classic Group filed for Chapter 7 bankruptcy on January 25,
2011. [Id. ¶ 129.1].
History of Prior Litigation
has sued Barnard and Bates 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, 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] ...