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Sever v. City of Salem

United States District Court, D. Massachusetts

July 15, 2019

IVAN A. SEVER, Plaintiff,
v.
CITY OF SALEM, MASSACHUSETTS, Defendant.

          MEMORANDUM AND ORDER RE: DEFENDANT'S MOTION TO DISMISS (DOCKET ENTRY # 19)

          MARIANNE B. BOWLER UNITED STATES MAGISTRATE JUDGE.

         Pending 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 (“plaintiff” or “Sever”).[1] (Docket Entry # 19). After conducting a hearing, this court took the motion (Docket Entry # 19) under advisement.

         PROCEDURAL BACKGROUND

         The 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).

         The 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

         The 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 Cir. 2016).

         “Exhibits 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).

         FACTUAL BACKGROUND

         Succinctly 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.

         I. Massachusetts Speeding Laws and Regulations

         The 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).

         The 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:

[1] 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. [2] 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. . . . [4] 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[2] in the city or town on any way that is not a state highway.” (Docket Entry # 17, ¶ 13) (citing section 17C).

         “In 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, [3] setting forth the speed or other restrictions established by the regulation.'” (Docket Entry # 17, ¶ 7) (quoting section 18).

         Based 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 pertinent part:

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 # 17-1, pp.

         2). 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 ...

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