United States District Court, D. Massachusetts
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS'
MOTIONS TO DISMISS
Gail Dein, United States Magistrate Judge.
action arises out of the wrongful conviction of Jorge Arias
(“Mr. Arias”) for attempted larceny from a Home
Depot, in Everett, Massachusetts, and his subsequent
incarceration for almost five years by the Commonwealth of
Massachusetts, and then by ICE, until his conviction was
vacated and he was acquitted following a retrial. The new
trial was granted on the grounds that the Everett Police
Department had withheld material evidence. It is Mr.
Arias' contention that Home Depot, and its then Manager
of Loss Prevention, Kris Gaff, also withheld evidence from
both trials in the form of surveillance tapes which may have
exonerated him as well. The plaintiff Angel Arias
(“Angel”) is Mr. Arias' minor son. The
plaintiffs brought this suit against the City of Everett, its
Mayor Carlo DeMaria, its Chief of Police Steven Mazzie, and
Police Officers Jason Leonard and Chris Hannon (the
“Municipal Defendants”), and Home Depot USA, Inc.
and its former Manager Kris Gaff (“Home Depot
matter is before the court on the Home Depot Defendants'
motion to dismiss (Docket No. 8) and the Municipal
Defendants' motion to dismiss (Docket No. 11). For the
reasons detailed here, the Home Depot Defendants' motion
is ALLOWED and the Municipal Defendants' motion is
ALLOWED IN PART and DENIED IN PART as follows: Count I is
dismissed as to the City of Everett and the individual
defendants in their official capacities only; Count II is
dismissed against the individual defendants in their official
capacities only; Count VI is dismissed as to the City of
Everett only; and Count VII is dismissed against the
individual defendants in their official capacities only.
Otherwise, the Municipal Defendants' motion to dismiss is
STATEMENT OF FACTS
following summarizes the facts as alleged in the
plaintiffs' Amended Complaint. (Docket No. 1 Ex. B
(“Compl.”)). On the night of February
27, 2007, there was an attempted larceny at the Home Depot
located in Everett, Massachusetts. (Compl. ¶
5). Officer Leonard, a defendant, testified at Mr. Arias'
trial that, while working a paid detail at the Home Depot,
around 8:00 p.m. he saw a man throwing boxes over the garden
center wall. (Id.). The man went back inside the
Home Depot. (Id.). Officer Leonard drove over to the
Garden Center and confronted a man who had driven a truck
over to the area. (Id.). The man got back in his
truck and “lurched” toward Officer Leonard,
before reversing and driving away. (Id.). A chase
ensued involving the Everett, Chelsea, and Boston police
departments, including the defendant Officer Hannon of the
Everett Police. (Id. ¶¶ 5, 6). Boston
police apprehended Mr. Arias. (Id. ¶ 5).
Officer Leonard testified that he responded to an address in
East Boston where the Boston Police were holding Mr. Arias
and he identified Mr. Arias as the man he had seen outside
Home Depot. (Id.).
Arias' first trial in 2008, three witnesses were called
to testify on behalf of the prosecution. Officer Leonard
identified Mr. Arias. (Id.). He described the man
who he interacted with at Home Depot as a “Hispanic
male” whose face was “burnt in his memory.”
(Id.). Officer Hannon testified he could not
identify the defendant despite the fact that the man
“came right at him” and was “inches
away.” (Id. ¶ 6). Finally, defendant Kris
Gaff, the Home Depot Asset Protection Manager, testified that
he had reviewed the store surveillance video and he could not
identify the defendant. (Id.). He also testified as
to the value of the goods and that it was common to see
people who dressed and looked like the defendant at Home
Arias counsel called Jose Palacios, who testified that he had
loaned Mr. Arias his old truck so that he could get to work,
and that the truck was not in a condition to drive at high
speeds. (Id. ¶ 7). Mr. Arias also testified,
professing his innocence and testifying that he had gone to
work in Peabody and then driven straight home to East Boston.
(Id.). Mr. Arias testified that he had never been to
the Home Depot in Everett and that he did not even know where
it was located. (Id.).
August 4, 2008, a jury convicted Mr. Arias. (Id.
¶ 8). He was found guilty of larceny over $250, assault
with a dangerous weapon, and reckless operation of a motor
vehicle. (Id.). He was sentenced to 4½ years
in jail. (Id.). During his incarceration, Mr. Arias
suffered “severe emotional distress, anxiety,
post-traumatic stress, and embarrassment, loss of employment
and opportunities, and loss of residency[.]”
(Id. ¶16). He maintained his innocence
throughout. (Id. ¶ 9). Upon Mr. Arias'
conviction, his minor son, Angel, went to live with his aunt
and uncle who were in the United States. (See id.
¶ 12). Angel's separation from his father
caused him to become angry and depressed. (Id.). He
went for mental health counseling and would cry every day
because his father was not able to be with him.
(Id.). He had a difficult time in school, his grades
suffered, and he had to repeat a grade. (Id.).
the time of his trial, Mr. Arias, a native of El Salvador,
was a legal resident of the United States pursuant to
temporary protected status.” (Id. ¶ 10).
He lost that status as a result of his conviction so, after
serving his sentence, Mr. Arias was taken into custody by ICE
where he remained until he was released on bond on January
17, 2013. (Id. ¶¶ 10-11, 14). During that
time, Angel continued to live with his aunt and uncle.
(Id. ¶ 12).
prior to January 17, 2013, Mr. Arias' conviction was
vacated. (See id. ¶ 14). It was discovered that
exculpatory evidence had not been produced or disclosed to
the defense. (Id. ¶ 13). The plaintiffs
originally described this missing evidence as a “call
log record from the Chelsea Police Department [that]
indicated that there were three suspects occupying the black
pickup truck that the officers were chasing and not just one
occupant as officer Leonard testified to and wrote in his
police report.” (Id.). In the Amended
Complaint, the plaintiffs allege that both Officers Hannon
and Leonard testified and reported that there was only one
occupant in the truck. (Id. ¶ 38).
Arias' second trial in 2014, Officer Leonard, Officer
Hannon, and Kris Gaff again testified. (Id. ¶
36). By the time of the second trial, Kris Gaff was no longer
employed by Home Depot but was a police officer with the
Everett Police Department. (Id. ¶ 32).
According to the plaintiffs, Mr. Gaff testified as a police
officer at the second trial. (Id.). Again, at the
second trial Home Depot did not produce the potentially
exculpatory evidence of either the Home Depot surveillance
video or the Home Depot Asset Protection reports.
(Id. ¶ 31). However, the Chelsea call log was
admitted into evidence at the second trial, and Mr. Arias was
found not guilty. (Id. ¶ 14).
to the plaintiffs, Mr. Arias “continues to suffer from
the consequences of his arrest dating back to 2007, the first
trial in 2008 and the continued prosecution of him at the
second trial in 2014 and continuing into 2015, 2017, and
2018.” (Id. ¶ 33). Mr. Arias continues to
be subject to immigration proceedings. (Id. ¶
34). He currently has no legal status as his temporary
protected status was removed following his first conviction.
(Id.). Imminent deportation was stayed by his
finding of not guilty. (Id.). Mr. Arias continues to
“suffer mentally and physically due to actions taken
by Defendants: Police Officers Hannon and Leonard, and Home
Depot and its' [sic] asset protection manager Kris
also continues to suffer both physically and emotionally.
(Id. ¶ 35). He was young while his father was
going through two criminal trials, years of incarceration,
and immigration proceedings. (Id.). He continues to
suffer because Angel is aware his father could be deported at
any time. (Id.).
facts will be provided below where appropriate.
plaintiff filed the instant suit on September 27, 2017 in
Essex Superior Court. (See Docket No. 1 at 1). The
complaint alleged 15 counts: Count I - Civil Rights
Violations Under Mass. Gen. Laws ch. 12, § 11H-1, Count
II - Deliberate Indifference, Count III - Negligent Training,
Count IV - Negligent Supervision, Count V - Mass. Tort Claims
Act, Count VI -Intentional Infliction of Emotional Distress,
Count VII - Negligent Infliction of Emotional Distress, Count
VIII - False Imprisonment, Count IX - Abuse of Process, Count
X - Malicious Prosecution, Count XI - Wrongful Conviction,
Count XII - False Arrest, Count XIII - Defamation, Count XIV
-Negligence, Count XV - Pendant Causes of Action.
(Id. at Ex. A.).
September 2018, the Superior Court dismissed claims III, IV,
V, VIII, XI, XII, XIII, XIV and XV with prejudice. (Docket
No. 22 at p. 266/818 (“Mem. of
Decision”)). Counts I, II, VI, and VII were
dismissed, in part, without prejudice. (Id.).
Superior Court Judge Lu dismissed as untimely the Count I and
II claims, “arising out of his alleged
misidentification, arrest, and incarceration that commenced
on or about February 27, 2007.” (Mem. of
Decision at 2.). However, Judge Lu dismissed the claims
without prejudice because “[i]t is unclear to the court
whether the complaint alleges civil rights violations that
may have accrued during Arias's incarceration or his
re-trial.” (Id.). Similarly, Judge Lu
dismissed as untimely Counts VI and VII, “based upon
the arrest of Jorge Arias, and the alleged false accusations
and false testimony at his trial that concluded on August 4,
2008.” (Id. at 3). Judge Lu granted plaintiffs
the opportunity to amend their complaint to clarify the basis
for these claims. (Id.).
filed an Amended Complaint in Superior Court on March 7,
2019. (Docket No. 1 Ex. B). The Amended Complaint re-alleges
Counts I, II, VI, VII. (Id.). Defendants
jointly removed the case to federal court pursuant to 28
U.S.C. § 1331 on the grounds that Counts I and II
present substantial federal issues.
(Id.). The Home Depot Defendants then filed their
motion to dismiss for failure to state a claim. (Docket No.
8). The Municipal Defendants subsequently filed a motion to
dismiss. (Docket No. 11). This court held a hearing regarding
the motions to dismiss and took the matter under advisement.
(Docket No. 27).
ANALYSIS - HOME DEPOT DEFENDANTS' MOTION TO
Standard of Review
to dismiss under Rule 12(b)(6) test the sufficiency of the
pleadings. When confronted with such a motion, the court
accepts as true all well-pleaded facts and draws all
reasonable inferences in favor of the plaintiff. See
Cooperman v. Individual Inc., 171 F.3d 43, 46 (1st Cir.
1999). As the First Circuit has explained, in considering the
merits of a motion to dismiss, the court proceeds in two
steps. Schatz v. Republican State Leadership Comm.,
669 F.3d 50, 55 (1st Cir. 2012). First, we “isolate and
ignore statements in the complaint that simply offer legal
labels and conclusions or merely rehash cause-of-action
elements.” Id. Second, we “take the
complaint's well-pled (i.e., non-conclusory,
non-speculative) facts as true, drawing all reasonable
inferences in the pleader's favor, and see if they
plausibly narrate a claim for relief.” Id.
Dismissal is only appropriate if the complaint, so viewed,
fails to allege “a plausible entitlement to
relief.” See Rodriguez-Ortiz v. Margo Caribe,
Inc., 490 F.3d 92, 95 (1st Cir. 2007) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 559, 127 S.Ct.
1955, 1967, 167 L.Ed.2d 929 (2007)). “Plausible . . .
means something more than merely possible[.]”
Schatz, 669 F.3d at 55. “The bottom line is
that the combined allegations, taken as true, must state a
plausible, not merely conceivable, case for relief.”
Carrero-Ojeda v. Autoridad de Energia Electrica, 755
F.3d 711, 718 (1st Cir. 2014) (internal citations and
quotations omitted). “Engaging in this plausibility
inquiry is ‘a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.'” Germanowski v. Harris, 854 F.3d
68, 72 (1st Cir. 2017) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 679, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868
addition, this case is before the court on a removal
following a State court order ruling on a motion to dismiss.
“Whenever any action is removed from a State court to a
district court of the United States . . . [a]ll injunctions,
orders, and other proceedings had in such action prior to its
removal shall remain in full force and effect until dissolved
or modified by the district court.” 28 U.S.C. §
1450 (2012). The statute is designed to promote judicial
efficiency when shifting between state and federal court by
giving full force and effect to state proceedings so that
they do not need to be duplicated in federal court.
Granny Goose Foods, Inc. v. Bhd. of Teamsters, 415
U.S. 423, 435-36, 94 S.Ct. 1113, 1122, 39 L.Ed.2d 435 (1974);
Concordia Partners, LLC v. Pick, 790 F.3d 277, 279
(1st Cir. 2015) (“we read § 1450-in keeping with
its text-merely to preserve the status quo in the removed
case. So read, § 1450 simply ensures that the state
court order ‘remain[s] in full force and effect,'
and thus that the filing of the notice of removal does not
have the consequential effect of wiping that state court
these principles to the instant case compels the conclusion
that the Home Depot Defendants' motion to dismiss must be
The Litigation Privilege 
initial matter, the actions of Kris Gaff are protected by the
litigation privilege, and cannot form the basis of his or
Home Depot's liability. For this reason alone, the claims
against Mr. Gaff must be dismissed, as should the claims
seeking to hold Home Depot vicariously liable for Mr.
is well established that statements made by a witness or
party during trial, if pertinent to the matter in hearing,
are protected with an absolute privilege[.]”
Correllas v. Viveiros, 410 Mass. 314, 320, 572
N.E.2d 7, 11 (1991), and cases cited. Thus,
“[s]tatements made in the course of a judicial
proceeding that pertain to that proceeding are . . .
absolutely privileged and cannot support [civil
liability].” Patriot Group, LLC v. Edmands, __
N.E.3d __, 2019 WL 5959611, *4 (Mass. App. Ct. Nov. 13, 2019)
(quoting Correllas, 410 Mass. at 319, 572 N.E.2d at
10). “Moreover, the absolute litigation privilege
immunizes the maker of the statements from any civil
liability arising from those statements” regardless of
the cause of action alleged. Encompass Ins. Co. of Mass.
v. Giampa, 522 F.Supp.2d 300, 308 (D. Mass. 2007)
(citation omitted). “To rule otherwise would make the
privilege valueless if an individual would then be subject to
liability under a different theory.” Id.
(quoting Doe v. Nutter, McClennen & Fish, 41
Mass.App.Ct. 137, 141, 668 N.E.2d 1329, 1333 (1996)). The
absolute privilege for “[s]tatements made in the course
of a judicial proceeding which pertain to that
proceeding” applies even if the statements are made
“with malice or in bad faith.”
Correllas, 410 Mass. at 319, 572 N.E.2d at 10. Thus,
whether Mr. Gaff is considered as an employee of Home Depot,
or a Police Officer for the City of Everett, his testimony at
trial cannot form the basis of the plaintiffs' claims.
to the extent that the plaintiffs are challenging Mr.
Gaff's conduct apart from his trial testimony, even the
most liberal reading of the complaint establishes that the
claim against Mr. Gaff (and Home Depot's liability for
his actions) are based on conduct that is protected by the
litigation privilege. Thus, the plaintiffs argue that Mr.
testified at both trials about the existence of video
surveillance or CCTV footage of the suspect but then failed
to produce said video surveillance or CCTV footage that had
been in his custody and control. By initiating these actions,
Kris Gaff on behalf of Home Depot took an active role in
prosecuting the Plaintiff on one count of larceny. Without
the involvement of Kris Gaff and Home Depot, the police would
not have been able to charge or arrest the Plaintiff on the
larceny charge. Furthermore, Kris Gaff and the Home Depot
continued their involvement in prosecuting the Plaintiff when
he testified on behalf of Home Depot at the second trial.
Kris Gaff became a police officer for the City of Everett
before the second trial and therefore was working very
closely again with Officers Leonard and Hannon. All three
officers testified at the second trial against the Plaintiff.
(Pls. Home Depot Opp'n at 3). Assuming,
arguendo, that any of this conduct could be
actionable,  all of this conduct relates to the
initiation and/or prosecution of a lawsuit, and is therefore
privileged. See Encompass Ins. Co., 522 F.Supp.2d at
308. The litigation privilege applies to statements made
outside of the courtroom that are “preliminary to a
proposed judicial proceeding, or in the institution of, or
during the course and as a part of, a judicial
proceeding[.]” Leavitt v. Bickerton, 855
F.Supp. 455, 456 (D. Mass. 1994) (quoting Restatement
(Second) of Torts § 586 (1989) (describing scope of
privilege as applied to attorneys). See also
Dear v. Devaney, 83 Mass.App.Ct. 285, 292, 983
N.E.2d 240, 246 (2013) (“An absolute privilege has also
been extended to witness statements made to the
police.”). Consequently, the claims against Home Depot
based on Mr. Gaff's conduct, and against Mr. Gaff, are
barred by the litigation privilege.
arguendo, that the litigation privilege does not
result in the dismissal of all the claims against Home Depot
and Mr. Gaff, a review of each Count establishes that Home
Depot's motion to dismiss must be allowed.
Count I: Civil Rights Violation Under Mass. Gen. Laws ch.