United States District Court, D. Massachusetts
IVAN A. SEVER, Plaintiff,
CITY OF SALEM, MASSACHUSETTS, Defendant.
MEMORANDUM AND ORDER RE: DEFENDANT'S MOTION TO
DISMISS (DOCKET ENTRY # 19)
MARIANNE B. BOWLER UNITED STATES MAGISTRATE JUDGE.
before this court is a motion to dismiss filed by defendant
City of Salem (“defendant, ” “City of
Salem, ” or “the City”) to dismiss all five
claims brought by plaintiff Ivan A. Sever
“Sever”). (Docket Entry # 19). After conducting a
hearing, this court took the motion (Docket Entry # 19) under
amended complaint alleges the following five causes of action
against the City: (1) a “Massachusetts Statutory
Violation” of section 18 of Massachusetts General Law
chapter 90 (“chapter 90”) for erection,
maintenance, and enforcement of speed limit signs is ultra
vires and therefore void (Count I); (2) a
“Massachusetts Regulatory Standards Violation” of
the “Procedures for Speed Zoning on State and Municipal
Roads” for erection, maintenance, and enforcement of
speed limit signs is ultra vires (Count II); (3) a
“Massachusetts Regulatory Standards Violation” of
“The Massachusetts Amendments to the 2009 Manual on
Uniform Traffic Control Devices” for erection,
maintenance, and enforcement of speed limits signs is ultra
vires (Count III); (4) posting, threatening to enforce, and
enforcing speed limit signs without regulatory authority in
violation of the Due Process Clause of the Fourteenth
Amendment under 42 U.S.C. § 1983 (“section
1983”) (Count IV); and (5) a corresponding failure to
adequately train, supervise, and discipline in violation of
the Due Process Clause of the Fourteenth Amendment under
section 1983 vis-à-vis the due process violation in
Count IV (Count V). (Docket Entry # 17).
five claims in this action are similar to the claims in three
previous actions brought or represented by plaintiff's
counsel, Frederic Zotos, Esq. (“Zotos”). After
unsuccessful attempts to obtain relief in state court, Zotos
challenged the legitimacy of speed limit signs in Hingham,
Massachusetts in Zotos v. Town of Hingham, et al.,
Civil Action No. 12-11126-JGD (D. Mass. Sept. 19, 2013)
(“Zotos I”), and Zotos v. Town of
Hingham, et al., Civil Action No. 13-13065-DJC (D. Mass.
March 25, 2016) (“Zotos II”). He then
represented a plaintiff bringing similar claims in
Belezos v. Board of Selectman, Civil Action No.
17-12570-MBB (D. Mass. March 29, 2019)
(“Belezos”). (Docket Entry # 20-7). In
an opinion on the merits, the court in Zotos I
rejected Zotos' claims and dismissed the action. (Docket
Entry # 20-4). The First Circuit upheld the dismissal.
(Docket Entry # 20-5). Zotos filed Zotos II prior to
the First Circuit's decision in Zotos I. (Docket
Entry # 20-6). On March 25, 2016, the court in Zotos
II issued a comprehensive opinion and dismissed that
action. (Docket Entry # 20-6). Finally, this court dismissed
the federal claims in Belezos in an opinion dated
March 29, 2019. The state law claims and a motion to certify
a class remain pending adjudication in Belezos.
standard of review for a motion to dismiss under Fed.R.Civ.P.
12(b)(6) (“Rule 12(b)(6)”) motion is well
established. To survive a Rule 12(b)(6) motion to dismiss,
the complaint must contain “enough facts to state a
claim to relief that is plausible on its face” even if
“actual proof of [the] facts is improbable.”
Bell Atlantic Corp v. Twombly, 550 U.S. 544, 556,
570 (2007); Miller v. Town of Wenham, Mass., 833
F.3d 46, 51 (1st Cir. 2016). The “standard is not akin
to a “probability requirement, ” but it
“requires more than sheer possibility that a defendant
acted unlawfully.” Saldivar v. Racine, 818
F.3d 14, 18 (1st Cir. 2016) (internal citations omitted).
“Accepting as true all well-pleaded facts contained in
the complaint, ” the court “draw[s] all
reasonable inferences in the pleader's favor.”
Sanders v. Phoenix Ins. Co., 843 F.3d 37, 42 (1st
attached to the complaint are properly considered part of the
pleading ‘for all purposes,' including Rule
12(b)(6).” Trans-Spec Truck Serv., Inc. v.
Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008)
(citations omitted). This court may also “consider
matters of public record and facts susceptible to judicial
notice.” U.S. ex rel. Winkelman v. CVS Caremark
Corp., 827 F.3d 201, 208 (1st Cir. 2016). It is
permissible, then, to “take judicial notice of
proceedings in other courts if those proceedings have
relevance to the matters at hand.” Kowalski v.
Gagne, 914 F.2d 299, 305 (1st Cir. 1990); see,
e.g., Bluetarp Fin., Inc. v. Matrix Constr. Co.,
Inc., 709 F.3d 72, 78 (1st Cir. 2013) (taking judicial
notice of related state court cases). Therefore, the Rule
12(b)(6) record includes the state court pleadings and
opinions regarding the relevant cases attached to
defendant's motion (Docket Entry # 19).
stated, plaintiff alleges that the City improperly modified
the speed limit ordinance for Swampscott Road and therefore
lacks authority to enforce the speed limit signs posted
there. (Docket Entry # 17, ¶¶ 46-52). The amended
complaint quotes various Massachusetts speeding laws to
support this claim. It also quotes regulatory standards
promulgated by the Massachusetts Department of Transportation
Highway Division (“MassDOT Highway Division”)
pursuant to these laws.
Massachusetts Speeding Laws and Regulations
first law at issue is section two of Massachusetts General
Laws chapter 85. This law authorizes cities and towns to
erect and maintain traffic signs in their jurisdiction.
(Docket Entry # 17, ¶ 6). It reads in pertinent part
that “‘speed control signs may be established
only in accordance with the provisions of section eighteen of
chapter ninety.'” (Docket Entry # 17, ¶ 6)
(quoting Mass. Gen. Laws ch. 85, § 2).
other laws at issue are sections 17 and 18 of chapter 90
(“section 17” and “section 18”).
“Section 17 sets forth the basic law [while] section 18
allows modifications to it.” Hingham Police
Dep't v. Zotos, 2012 WL 1689189, at *1 (Mass. App.
Ct. May 16, 2012). Section 17 provides in pertinent part:
 No. person operating a motor vehicle on any way shall run
it at a rate of speed greater than is reasonable and
proper, having regard to traffic and the use of the way
and the safety of the public.  Unless a way is
otherwise posted in accordance with the provisions
of section eighteen, it shall be prima facie
evidence of a rate of speed greater than is reasonable
and proper as aforesaid (1) if a motor vehicle is operated on
a divided highway outside a thickly settled or business
district at a rate of speed exceeding fifty miles per hour
for a distance of a quarter of a mile, or (2) on any other
way outside a thickly settled or business district at a rate
of speed exceeding forty miles per hour for a distance of a
quarter of a mile, or (3) inside a thickly settled or
business district at a rate of speed exceeding thirty miles
per hour for a distance of one-eighth of a mile, or (4)
within a school zone which may be established by a city or
town as provided in section two of chapter eighty-five at a
rate of speed exceeding twenty miles per hour. . . .  If a
speed limit has been duly established upon any way, in
accordance with the provisions of said section, operation of
a motor vehicle at a rate of speed in excess of such limit
shall be prima facie evidence that such speed is
greater than is reasonable and proper.
(Docket Entry # 17, ¶ 11) (quoting section 17).
Furthermore, Massachusetts General Laws chapter 90
(“chapter 90”), section 17C (“section
17C”), provides in pertinent part that a city council
“that accepts this section . . . may, . . . without
further authority, establish a speed limit of 25 miles per
hour on any roadway inside a thickly settled or business
district in the city or town on any way that is not
a state highway.” (Docket Entry # 17, ¶ 13)
(citing section 17C).
contrast, G.L. c. 90, § 18, permits the imposition of a
different speed limit so long as certain procedures are
followed.” Hingham Police Dep't, 2012 WL
1689189, at *1. It states in pertinent part that
“‘[n]o such Special Speed Regulation shall be
effective until there shall have been erected . . . signs,
conforming to standards adopted by the department,
setting forth the speed or other restrictions established by
the regulation.'” (Docket Entry # 17, ¶ 7)
(quoting section 18).
on the enabling authority in section 18, the MassDOT Highway
Division promulgated regulatory standards entitled
“Procedures for Speed Zoning on State and Municipal
Roadways” (“MassDOT Roadway Procedures”)
(Docket Entry # 17, ¶ 8) (Docket Entry # 17-1). With
respect to the laws governing speed regulations, it states in
Sections 17, 17A, 17C, 18, and 18B of Chapter 90 of the
Massachusetts General Laws (MGL) govern speed limits on all
streets and highways throughout the Commonwealth . . .. In
addition, MassDOT and all municipalities are required by MGL
§ 2 to conform to the Manual on Uniform Traffic
Control Devices (MUTCD) for the posting of all
regulatory and warning signage, including speed limit signs,
on all streets and highways.
(Docket Entry # 17, ¶ 8(a)) (Docket Entry # 17-1, p. 1).
With respect to the classification of speed limits, it states
in pertinent part:
Under satisfactory operating conditions, speed limits can be
classified into two different categories: regulatory (posted)
speed limits and statutory (unposted, with some exceptions)
speed limits. MGL c. 90 §§ 18 and 18B establish the
requirements for posting regulatory speed limits. MGL c. 90
§§ 17, 17A, and 17C cover the criteria for
statutory speed limits.
(Docket Entry # 17, ¶ 8(b)) (quoting Docket Entry #
Finally, with respect to regulatory speed limits, the MassDOT
Roadway Procedures states in pertinent part:
“A regulatory speed limit is one that has completed a
thorough traffic engineering study, has a Special Speed
Regulation that has been signed by the roadway owner, the
Registry of Motor Vehicles, and the MassDOT Traffic &
Safety Engineering Section, and has the appropriate numerical
speed limit signage erected to clearly define the special
speed zones. . . . With exception to Safety Zones as noted in
Section 9.c, the establishment of a regulatory speed
limit must ...