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Markham v. Town of Chelmsford

United States District Court, D. Massachusetts

August 26, 2019

DAVID MARKHAM et al., Plaintiffs,
v.
TOWN OF CHELMSFORD et al., Defendants.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge

         I. Introduction

         Defendants Town of Chelmsford (“Chelmsford”), the Town of Chelmsford Board of Selectmen, Emily Antul, Paul Cohen, Glenn Diggs, George Dixon, Jr., Kenneth Lefebvre and Patricia Wojitas (“Defendants”) seek dismissal of Plaintiffs David Markham, the Sewer Fairness Alliance of Chelmsford and the Sewer Fairness Alliance of Chelmsford, Inc.'s (“Plaintiffs”) complaint, D. 1-2, which alleges that Defendants violated Plaintiffs' due process rights under both the Massachusetts Declaration of Rights and the United States Constitution. D. 5. Defendants have also moved to strike the affidavit of David Foley (the “Foley Affidavit”), D. 10, which Plaintiffs included as an exhibit to their opposition, D. 10. For the reasons set forth below, the Court ALLOWS the motion to strike, D. 10, but DENIES the motion to dismiss, D. 5.

         II. Standard of Review

         On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6), the Court must determine if the facts alleged “plausibly narrate a claim for relief.” Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (internal citation omitted). Reading the complaint “as a whole, ” the Court must conduct a two-step, context-specific inquiry. García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013). First, the Court must perform a close reading of the claim to distinguish the factual allegations from the conclusory legal allegations contained therein. Id. Factual allegations must be accepted as true, while conclusory legal conclusions are not entitled credit. Id. Second, the Court must determine whether the factual allegations present a “reasonable inference that the defendant is liable for the conduct alleged.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011). In sum, the complaint must provide sufficient factual allegations for the Court to find the claim “plausible on its face.” García-Catalán, 734 F.3d at 103. “In determining whether a [pleading] crosses the plausibility threshold, the reviewing court [must] draw on its judicial experience and common sense.” García-Catalán, 734 F.3d at 103 (internal quotation marks and citations omitted). “This context-specific inquiry does not demand a high degree of factual specificity.” Id. (internal quotation marks and citations omitted).

         When reviewing a motion pursuant to Fed.R.Civ.P. 12(b)(6), the Court “may properly consider only facts and documents that are part of or incorporated into the complaint; if matters outside the pleadings are considered, the motion must be decided under the more stringent standards applicable to a Rule 56 motion for summary judgment.” Trans-Spec Truck Serv. Inc. v. Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008); see also Fed.R.Civ.P. 12(d). The Court may make exceptions for “documents the authenticity of which are not disputed by the parties; for official public records; for documents central to plaintiffs' claim; or for documents sufficiently referred to in the complaint.” Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001) (quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)). If the documents do not fall within this narrow class of exceptions, and the Court nevertheless considers them in deciding the motion, the parties “must be given a reasonable opportunity to present all the material that is pertinent to the motion, ” and the motion “must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). If the Court declines to convert the motion, the Court may strike the additional documents. See, e.g., Penney v. Deutsche Bank Nat'l Tr. Co., No. 16-CV-10482-ADB, 2017 WL 1015002, at *3 (D. Mass. Mar. 15, 2017).

         III. Factual Allegations

         This summary is based upon the allegations in the complaint, D. 1-2, which the Court must accept as true for the purposes of resolving this motion to dismiss.

         Plaintiffs David and Jill Markham are residents of Chelmsford and members of Plaintiff Sewer Fairness Alliance of Chelmsford. D. 1-2 at ¶ 3. The Sewer Fairness Alliance of Chelmsford is an unincorporated organization of over three hundred households in Chelmsford, most of which use grinder pumps provided by the Town of Chelmsford. Id. at ¶ 4. Plaintiff Sewer Fairness Alliance of Chelmsford, Inc. is a 501(c)(3) organization with a mission to advocate on behalf of homeowners with grinder pumps. Id. at ¶ 5. Defendants are Chelmsford, the Town of Chelmsford Board of Selectmen, and all of the current Selectmen, in their official capacities. Id. at ¶¶ 12-13.

         The instant dispute arises out of Chelmsford's provision of a sewage grinder pump to the Markhams and subsequent repair costs for the pump. See id. at ¶ 6. The Markhams' pump experienced a failure on September 11, 2016 during a power outage. Id. at ¶¶ 28-38. In July 2017, the Markhams received a bill for repair of the grinder pump resulting from that power failure from the Town along with notification that the Chelmsford would not cover the costs of the repair. Id. at ¶¶ 47-48. The Markhams then sought review of the repair charges by reaching out to town administrators for a meeting. Id. at ¶¶ 53-54. In December 2017 and January 2018, Sewer Fairness Alliance of the Town of Chelmsford, Inc., through its president, David Foley, investigated the September 11, 2016 grinder pump failure and prepared a report stating that the failure could have been due to the power outage and there was no negligence by the Markhams in their operation of same. Id. at ¶ 56. Following further outreach by Foley, town officials held a hearing to discuss the repair charge for the Markhams' grinder pump. Id. at ¶ 57. Foley presented the results of his investigation at the hearing. Id. On February 28, 2018, the Department of Public Works notified the Markhams that they continued to find them responsible for the grinder pump failure, but were willing to reduce the amount of the repair charge from $1065 to $640. Id. at ¶ 58. Following the hearing results, Foley spoke on behalf of the Markhams at a March 12, 2018 Selectmen meeting and sent his remarks to one Selectman who was not present for the meeting. Id. at ¶¶ 60-61. Foley continued to advocate on behalf of the Markhams through outreach to the community via letter in the Lowell Sun, emails to the Board of Selectmen, the Town Manager and the Director of Public Works. Id. at ¶¶ 62-70. When Foley received responses, town officials informed him that the Markhams had either received an appropriate hearing or had failed to pursue additional options to be heard. Id.

         IV. Procedural History

         Plaintiffs brought this action in Middlesex Superior Court on December 4, 2018. D. 1-2. Defendants removed the action to this Court on January 3, 2019. D. 1. Defendants have now moved to dismiss both claims, for violation of procedure due process under the Massachusetts Declaration of Rights and under the U.S. Constitution, under Fed.R.Civ.P. 12(b)(6). D. 5. Defendants also have moved to strike an affidavit by Foley attached to Plaintiffs' opposition to the motion to dismiss. D. 11. The Court heard oral argument on the motions and took the matters under advisement. D. 17.

         V. Discussion

         A. Standing of the Sewer Fairness ...


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