United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper United States District Judge
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.
Standard of Review
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).
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).
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.
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.
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.
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.
Standing of the Sewer Fairness ...