Hagenah v. Berkshire County ARC, Inc.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

HELENE E. HAGENAH, )

)

Plaintiff )

)

v. )

) Civil Action No. 3:16-cv-30141-KAR

)

BERKSHIRE COUNTY ARC, INC., )

ET AL., )

)

Defendants )

MEMORANDUM OF DECISION AND ORDER REGARDING PLAINTIFF'S MOTION FOR

LEAVE TO FILE A SECOND AMENDED COMPLAINT

(Dkt. No. 44)

ROBERTSON, U.S.M.J.

I. INTRODUCTION

On December 5, 2016, Plaintiff Helene E. Hagenah ("Plaintiff") filed an amended

complaint against Defendants Berkshire County ARC, Inc. ("BCARC"), and BCARC officers

and employees, Kenneth W. Singer, Maryann T. Hyatt, Bernard C. Melski, Megan B. Anello,

and Angela Buchauer (collectively "Defendants"), arising from Plaintiff's agreement with

BCARC to provide foster care services to two disabled adults and BCARC's termination of

Plaintiff's services (Dkt. No. 6). Plaintiff asserted the following causes of action in her amended

complaint: interference and retaliation in violation of Titles III and V of the Americans with

Disabilities Act ("ADA"); discrimination and retaliation under Mass. Gen. Laws ch. 151B, §§ 4,

4(A), and 5 ("Chapter 151B"); breach of contract; breach of the implied covenant of good faith

and fair dealing; misrepresentation; violations of Title VII of the Civil Rights Act of 1964;

violations of the Rehabilitation Act of 1973; and violations of the Massachusetts Civil Rights Act

("MCRA"), Mass. Gen. Laws ch. 12, § 11I (Dkt. No. 6).

Presently before the court is Plaintiff's motion for leave to file a second amended

complaint (Dkt. No. 44). Plaintiff seeks to amend the complaint by adding the following three

claims: "intracorporate conspiracy to deprive rights under Title VII of the Civil Rights Act of

1964 and in deprivation of Plaintiff's rights under the 14th Amendment to the U.S. Constitution,

pursuant to 42 U.S.C. § 1985(3);" "intracorporate conspiracy to deprive rights under the Anti-

retaliation provisions of the . . . ADA and in deprivation of Plaintiff's rights under the 14th

Amendment to the U.S. Constitution, pursuant to 42 U.S.C. § 1985(3);" and "BCARC-

Defendants' vicarious liability for civil conspiracy" (Dkt. No. 44-1). Defendants oppose

Plaintiff's motion on three grounds: (1) the motion to amend was filed late; (2) the conspiracy

amendments are futile; and (3) the amendments are barred by the statute of limitations (Dkt. No.

46). Plaintiff has responded to Defendants' opposition (Dkt. No. 49).

The parties have consented to this court's jurisdiction (Dkt. No. 26). See 28 U.S.C. §

636(c) and Fed. R. Civ. P. 73. After hearing the parties' arguments on November 15, 2017, the

court DENIES Plaintiff's motion for leave to file a second amended complaint for the reasons set

forth below.

II. BACKGROUND1

Because Defendants oppose Plaintiff's motion to amend "on the grounds including

futility, the 'proposed amendment "is gauged by reference to the liberal criteria of Federal Rule

of Civil Procedure 12(b)(6)."'" Perry v. Rose, Civil Action No.10-10769-JGD, 2012 WL

1 The relevant facts are drawn from the proposed second amended complaint, Dkt. No. 44-1, and

Plaintiff's 120 paragraph affidavit, Dkt. No. 44-2, which is incorporated by reference into the

second amended complaint, and appended materials, which are sufficiently referenced in the

second amended complaint. See Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993). Plaintiff

states that the same supporting affidavit was filed with her amended complaint in December

2016 (Dkt. No. 44 at ¶ 12). See Dkt. Nos. 6, 6-1.

3903475, at *1 (D. Mass. Sept. 6, 2012) (quoting Transwitch Corp. v. Galazar Networks, Inc.,

377 F. Supp. 2d 284, 290 (D. Mass. 2005)). Under this standard, "[t]he court must accept as true

all well-pleaded facts set forth in the proposed amended complaint, and give the plaintiff the

benefit of all reasonable inferences." Id. (citing Transwitch Corp., 377 F. Supp. 2d at 294). See

Cooperman v. Individual, Inc., 171 F.3d 43, 46 (1st Cir. 1999). Applying this standard to the

instant case, the relevant facts are as follows.

BCARC is a nonprofit agency that provides services to disabled individuals (Dkt. Nos.

44-2 ¶ 39; 44-5; 44-8 at 3, 4). At the time of the events that form the basis of the amended

complaint and the proposed second amended complaint, the individual Defendants held the

following positions with BCARC: Kenneth W. Singer was President, CEO, and Executive

Director; Maryann T. Hyatt was Vice President of Community, Day, and Clinical Services;

Bernard C. Melski was Co-Director of Residential Services; Megan B. Anello was an Adult

Family Care Case Manager and Family Advocate; and Angela Buchauer was a registered nurse

(Dkt. No. 44-1 ¶¶ 21-25).

On May 15, 2014, BCARC approved Plaintiff to be an Adult Family Care ("AFC")

program caregiver for two developmentally and physically disabled adults ("participants"), F.L.

and L.W., who would reside in her home (Dkt. Nos. 44-2 ¶¶ 5, 39, 42; 44-8 at 3, 4). BCARC

administered the AFC program for MassHealth, the state agency that paid participating

caregivers a per diem rate for services rendered to eligible MassHealth members based on the

level of care they required (Dkt. No. 44-8 at 2). Because Level II participants required more

intensive care than Level I participants, AFC providers received a higher per diem rate for Level

II participants (id.). Both adults who resided with Plaintiff were designated Level I participants

(id. at 3, 4).

On May 29, 2014, Plaintiff, F.L., L.W., and Defendant Anello executed an Adult Foster

Participant and Caregiver Agreement ("Contract # 1"), which stated the responsibilities of

Plaintiff, BCARC, and the participants (Dkt. No. 44-9 at 2-4). As the caregiver, Plaintiff's

charges included, but were not limited to: maintaining a safe residence that complied with all

eligibility criteria; providing twenty-four hour supervision of the participants; supplying the

participants with a "clean attractive room," fresh linens at least once a week, three nutritionally

balanced meals daily, and snacks; supervising and assisting the participants with activities of

daily living; arranging or providing the participants' transportation; and supervising health-

related activities, such as reminding the participants to take their medication, refilling their

medication on time, and assisting with their transportation to physicians' offices (id. at 3).

BCARC's responsibilities included: visiting the participants monthly "to monitor health status,

safety, and satisfaction with the placement;" checking on Plaintiff's performance of her

responsibilities, ability to care for the participants, and satisfaction with the placements; annually

assessing Plaintiff's home for "safety and comfort standards;" and developing, implementing, and

updating, when necessary, a plan of care for each participant and including Plaintiff in the

process (id. at 2). Each participant was responsible for, among other things, paying Plaintiff his

or her share of the cost of room and board at the beginning of each month (id. at 3).

Like the amended complaint, the proposed second amended complaint alleges various

federal and state claims of discrimination based on Plaintiff's gender and advocacy for F.L. and

L.W., plus contract-related claims. Mainly, Plaintiff alleges that Defendants retaliated against

her for exercising rights protected by the ADA and Chapter 151B or for assisting the participants

in exercising their rights under the laws, and for refusing to sign a second contract ("Contract #

2") in August 2014 (Dkt. Nos. 44-1 ¶¶ 28, 29; 44-2 ¶¶ 4, 12, 19, 43, 60). Plaintiff claims that her

advocacy to BCARC and the Massachusetts Department of Developmental Services ("DDS") on

behalf of F.L. and L.W. included seeking "changes" or "improvements" in F.L.'s and L.W.'s

employment, day rehabilitation, and activity programs and additional services (Dkt. No. 44-2 ¶¶

6, 7, 42, 43, 45, 47). She also sought behavioral counseling and treatment for the participants

and a "Rogers"2 attorney for medication determination (id. ¶¶ 46, 52, 57, 115). In addition,

Plaintiff recites a litany of ways in which she assisted F.L. and L.W. in protecting and enforcing

their rights including: advocating for "reasonable accommodations to [their] respective

disabilities," "timely delivery" of appropriate services and care and respect for their privacy;

bringing acts of discrimination and abuse to the attention of state and federal agencies, including

DDS, the Massachusetts Commission Against Discrimination ("MCAD"), and the Equal

Employment Opportunity Commission ("EEOC"); assisting F.L. and L.W. in appealing

determinations made in their care plans and individual service plans; and affording them an

opportunity to consult with legal counsel (id. ¶¶ 8, 44, 48, 50, 55, 56, 58, 60).

Plaintiff alleges that Defendants presented her with Contract # 2 on or about August 5,

2014 in retaliation for her "proper," "effective," and "steadfast" advocacy on behalf of F.L. and

L.W. (Dkt. Nos. 44-2 ¶¶ 65, 66; 44-11). Plaintiff claims that Contract # 2 -- which significantly

differed from Contract # 1 and which she refused to sign -- eliminated her rights as well as those

of F.L. and L.W. by permitting home visits "with or without notice," releasing BCARC from

liability for specific losses, establishing her status as an independent contractor, permitting

BCARC to terminate the contract "with or without cause, any time, in its sole discretion," and

2 "[I]f a patient is declared incompetent, a court must make the original substituted judgment

treatment decision and should approve a substituted judgment treatment plan." Rogers v.

Comm'r of the Dep't of Mental Health, 458 N.E.2d 308, 318 (Mass. 1983).

limiting commencement of any legal action under the contract to either the Central Berkshire

District Court or the Berkshire Superior Court (Dkt. Nos. 44-2 ¶¶ 12, 13, 61, 67, 71; 44-11 at 4-

5).

Plaintiff alleges that her refusal to sign Contract # 2 spurred Defendants' further acts of

retaliation, threats, intimidation, and coercion (Dkt. No. 44-2 ¶12). Specifically, Defendant

Anello's August 11, 2014 e-mail message indicated that BCARC "was unable to begin issuing . .

. checks" until Plaintiff signed Contract # 2 (Dkt. Nos. 44-2 ¶¶ 70, 72; 44-12 at 9). Plaintiff

alleges that, in fact, payments were withheld until her attorney contacted Defendants regarding

the "egregious, rights violating terms" of Contract # 2 (Dkt. No. 44-2 ¶ 62). Thereafter,

Defendants purportedly delayed making payments to Plaintiff, withheld F.L.'s and L.W.'s

stipends, which they used to pay Plaintiff for their room and board, "intentionally" incorrectly

classified F.L.'s and L.W.'s disabilities as Level I resulting in Plaintiff being underpaid, and made

false reports to MassHealth and DDS including allegations that Plaintiff provided subpar care to

F.L. and L.W. and that she failed to pay the real estate taxes on her home (id. ¶¶ 11, 12, 25, 32,

33, 63, 72, 74). Plaintiff further alleges that Defendants disqualified her home as an AFC

placement for L.W. based on the alleged danger posed by a railing on a balcony and stairway,

which was one-half inch lower than the building code requirements and which MassHealth and

DDS previously had approved (id. ¶¶ 25, 31, 33).

Plaintiff maintains that Defendants' acts of retribution culminated in them terminating

F.L.'s and L.W.'s occupancy of Plaintiff's home thereby stopping payments to Plaintiff and

ending her role as an AFC provider (id. ¶¶ 25, 33, 101-03). Defendants allegedly instigated

F.L.'s departure from Plaintiff's home on September 24, 2014 by telling him that he would not

have to work or attend a day program and could just "'hang out'" and go fishing every day (Dkt.

Nos. 44-2 ¶¶ 5, 101, 102, 115; 44-21 at 5). Plaintiff claims that these representations

"encouraged and enabled" F.L.'s disruptive and threatening behavior that resulted in F.L. asking

to move out "more than eight times" in one night (id. ¶¶ 99, 101-03). Plaintiff further alleges

that after F.L. moved from her home, Defendants ignored his requests to move back, threatened

to stop caring for him if he contacted Plaintiff or his attorney, and "forced [him] to sign papers"

(id. ¶¶ 5, 97, 104, 111, 112, 115).

On Friday, October 17, 2014, Defendant Hyatt notified Plaintiff of a meeting scheduled

for Monday, October 20, 2014 to discuss Plaintiff's continued role as the AFC provider for L.W.

as well as the "appropriateness" of Plaintiff's home as L.W.'s placement based on MassHealth's

determination that the height of a railing failed to comply with its safety standards (Dkt. Nos. 44-

2 ¶¶ 9, 22, 35; 44-18 at 2-5). Plaintiff states that she did not attend the meeting because she was

denied adequate notice of BCARC's and MassHealth's allegations, the opportunity to be heard,

and representation by legal counsel (Dkt. No. 44-2 ¶¶ 19-24, 35). Plaintiff alleges that the lack

of sufficient notice regarding the meeting further evinced Defendants' deprivation of her rights

and their "continuing policy of retaliatory animus and discrimination" based upon her advocacy

for F.L. and L.W. (id. ¶ 19).

L.W. was removed from Plaintiff's home on October 23, 2014 purportedly against her

will and pursuant to a court order based on Plaintiff's alleged failure to comply with

MassHealth's AFC regulations (Dkt. Nos. 44-2 ¶¶ 25, 33; 44-19 at 3). BCARC's final payment

to Plaintiff was by check dated October 28, 2014 (Dkt. No. 44-21 at 3).

III. ANALYSIS

As noted earlier, Defendants raise three grounds in opposition to Plaintiff's second

motion to amend: (1) the failure to file the motion to amend on or before the date set by the

court's scheduling order; (2) the futility of the proposed amendments; and (3) the statute of

limitations bar (Dkt. No. 46). Because the court finds that the motion to amend was timely filed,

but the proposed amendments fail to state a viable claim, it addresses only the first two grounds.

A. Plaintiff established good cause for filing the motion to amend three days beyond

the date set by the scheduling order.

Defendants' first objection to Plaintiff's request for leave to file a second amended

complaint alleges that Plaintiff's motion was filed late (Dkt. No. 46 at 2-3). Because Plaintiff

established good cause for filing the motion to amend three days after the deadline set in the

scheduling order, Defendants' position is a nonstarter.

On June 16, 2017, the court issued a scheduling order establishing August 15, 2017 as the

deadline for seeking leave to amend the pleadings (Dkt. No. 36). See Fed. R. Civ. P.

16(b)(3)(A). On August 15, 2017, Plaintiff moved for leave to file a second amended complaint

with two exhibits (Dkt. No. 40), and then moved to amend the exhibits to her proposed second

amended complaint (Dkt. No. 41).3 On August 16, 2017, the court denied, without prejudice,

Plaintiff's two motions due to their failure to certify compliance with LR 7.1(a)(2), which

requires counsel to "certify that they have conferred and have attempted in good faith to resolve

or narrow the issue" (Dkt. Nos. 42, 43). LR 7.1(a)(2). Plaintiff's counsel indicated that the

failure to comply with LR 7.1(a)(2) was "not intentional . . . but was simple, excusable error"

(Dkt. No. 44 at 2). According to Plaintiff's counsel, he and Defendants' counsel briefly conferred

on August 16, 2017 and engaged in a more extensive discussion late in the afternoon of the next

3 Defendants claim that these pleadings were filed at 6:02 P.M. on August 15, 2017, and,

therefore, were filed late (Dkt. No. 46 at 2-3). See LR 5.4(D) ("All electronic transmissions of

documents must be completed prior to 6:00 p.m. to be considered timely filed that day.").

However, the docket reflects filing on August 15, 2017 (Dkt. Nos. 40, 41).

day, but were unable to resolve or narrow the issues (Dkt. No. 44 at 2). Plaintiff's motion that

complied with LR 7.1(a)(2) was filed the following day, August 18, 2018 (Dkt. No. 44).

"Rule 16(b) requires that the district court enter a scheduling order setting certain

deadlines, including a deadline for the parties to amend the pleadings." Somascan, Inc. v. Philips

Med. Sys. Nederland, B.V., 714 F.3d 62, 64 (1st Cir. 2013). See Fed. R. Civ. P. 16(b)(3)(A).

"Those deadlines may be modified 'only for good cause and with the judge's consent.'"

Somascan, Inc., 714 F.3d at 64 (quoting Fed. R. Civ. P. 16(b)(4)). Although Plaintiff's motion

that was filed on the deadline set by the scheduling order was defective for failing to comply

with LR 7.1(a)(2), the court denied the motion without prejudice (Dkt. Nos. 42, 43). See Direnzo

Towing & Recovery, Inc. v. Owner-Operator Indep. Drivers Assoc., Inc., CIVIL ACTION NO.

4:16-10073, 2016 WL 9402847, at *1-2 (D. Mass. May 4, 2016) (denying without prejudice a

motion to dismiss for failure to comply with LR 7.1(a)(2)). Compare Maloney v. Town of

Hinsdale, Civil Action No. 11-11297-MAP, 2012 WL 4103909, at *2 (D. Mass. Aug. 10, 2012)

("a violation of . . . rule [7.1(a)(2)] does not necessitate summary denial.") (citing Blanchard v.

Swaine, Civil No. 08-40073-FDS, 2010 WL 4922699, at *5 (D. Mass. Nov. 9, 2010)). The

motion to amend that conformed to the rule was filed three days after the scheduling order

deadline passed (Dkt. No. 44).

The law of this circuit "'clearly establishes that Rule 16(b)'s "good cause" standard, rather

than Rule 15(a)'s "freely give[n]" standard, governs motions to amend filed after scheduling

order deadlines'" have passed. Flores–Silva v. McClintock-Hernández, 710 F.3d 1, 3 (1st Cir.

2013) (quoting Trans–Spec Truck Serv. v. Caterpillar Inc., 524 F.3d 315, 327 (1st Cir. 2008)).

Rule 16's "'good cause' standard 'focuses on the diligence (or lack thereof) of the moving party

more than it does on any prejudice to the party-opponent.'" Id. (quoting Steir v. Girl Scouts of

the USA, 383 F.3d 7, 12 (1st Cir. 2004)). See O'Connell v. Hyatt Hotels of P.R., 357 F.3d 152,

155 (1st Cir. 2004) ("Rule 16(b)'s 'good cause' standard emphasizes the diligence of the party

seeking the amendment."). Because Plaintiff's counsel has demonstrated the requisite diligence

to establish good cause for the three day delay in filing a motion that complied with the local

rule, the technical violation does not present a basis for denying Plaintiff's motion to amend.

B. Plaintiff's proposed second amended complaint fails to state a claim upon which

relief can be granted.

Defendants fare better with their argument based on the futility of Plaintiff's proposal to

add two conspiracy claims against BCARC and Defendants Singer, Hyatt, and Melski under 42

U.S.C. § 1985(3) and one conspiracy claim against all Defendants under Massachusetts law

(Dkt. No. 44-1 ¶¶ 88-107).

"Although Rule 15 proposes that leave to amend be 'freely give[n]' in instances in which

'justice so requires,' Fed R. Civ. P. 15(a)(2), this 'does not mean . . . that a trial court must

mindlessly grant every request for leave to amend.'" Mulder v. Kohl's Dep't Stores, Inc., 865

F.3d 17, 20 (1st Cir. 2017) (quoting Aponte–Torres v. Univ. of P.R., 445 F.3d 50, 58 (1st Cir.

2006)). "Rather, 'a district court may deny leave to amend when the request is characterized by

"undue delay, bad faith, futility, [or] the absence of due diligence on the movant's part."'" Id.

(quoting Nikitine v. Wilmington Tr. Co., 715 F.3d 388, 390 (1st Cir. 2013)). See also Foman v.

Davis, 371 U.S. 178, 182 (1962). In the instant case, the focus is on whether Plaintiff's proposed

amendments would be futile. See Hatch v. Dep't for Children, Youth & Their Families, 274 F.3d

12, 19 (1st Cir. 2001) ("[F]utility is fully sufficient to justify the denial of a motion to amend.");

Correa–Martinez v. Arillaga-Belendez, 903 F.2d 49, 59 (1st Cir. 1990), overruled on other

grounds by Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d 61 (1st Cir. 2004)

("Where an amendment would be futile or would serve no legitimate purpose, the district court

should not needlessly prolong matters."). Where, as here, "leave to amend is sought before

discovery is complete and neither party as moved for summary judgment . . ." the proposed

amendment is measured against the plaintiff-favorable rule 12(b)(6) standard to determine

whether or not "the proposed amended complaint sets forth a general scenario which, if proven,

would entitle the plaintiff to relief against the defendant on some cognizable theory." Hatch, 274

F.3d at 19 (citing Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996)). After

applying this standard to each of Plaintiff's three proposed amendments, the court agrees with

Defendants' contention that, as a matter of law, Plaintiff's proposed amendments fail to state a

viable claim for relief (Dkt. No. 46 at 4). See Glassman, 90 F.3d at 623 (leave to amend should

be denied as futile if "the complaint, as amended, would fail to state a claim upon which relief

could be granted.").

1. Proposed Count VII: Alleged intracorporate-conspiracy to deprive

Plaintiff of rights under Title VII.

In proposed Count VII, Plaintiff, a female, alleges that 42 U.S.C. § 1985(3) entitles her to

relief based on a conspiracy among BCARC and Defendants Singer, Hyatt, and Melski to

deprive her of her rights under Title VII (Dkt. No. 44-1 ¶¶ 88-92). Plaintiff alleges that the

conspiracy occurred at meetings when Defendants determined her rates of pay, which were

purportedly less "than other employees of BCARC, Inc., and particularly . . . the rates of pay [of]

male workers who perform[ed] similar duties and [had] similar responsibilities, though they

[may] not [have] work[ed]" as AFC providers (Dkt. Nos. 44-1 ¶¶ 89, 90; 44-2 ¶ 17). Plaintiff

also points to the "discriminatory effect" of Contract # 2's other terms as further proof of

Defendants' gender-based conspiracy (Dkt. No. 44-1 ¶¶ 90-91).

"To state a claim under § 1985(3) a plaintiff must allege the existence of (1) a conspiracy,

(2) a conspiratorial purpose to deprive a person or class of persons, directly or indirectly, of the

equal protection of the laws or of equal privileges and immunities under the laws, (3) an overt act

in furtherance of the conspiracy, and (4) either (a) an injury to person or property, or (b) a

deprivation of a constitutionally protected right or privilege." Aulson v. Blanchard, 83 F.3d 1, 3

(1st Cir. 1996). See Griffin v. Breckenridge, 403 U.S. 88, 102 (1971); Williams v. Northfield

Mount Hermon Sch., 504 F. Supp. 1319, 1327 (D. Mass. 1981). "In Griffin, the Supreme Court

placed a gloss on these four elements, effectively adding a fifth requirement." Aulson, 83 F.3d at

3. "It construed the statute's references to 'equal protection' and 'equal privileges and immunities

under the laws' to signify that a plaintiff may recover thereunder only when the conspiratorial

conduct of which [s]he complains is propelled by 'some racial, or perhaps otherwise class-based,

invidiously discriminatory animus.'" Id. (quoting Griffin, 403 U.S. at 102).

The Supreme Court's holding in Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S.

366 (1979), dooms Plaintiff's proposed Title VII conspiracy claim. In Novotny, the Court "held

that Section 1985(3) cannot be invoked to redress violations of Title VII." Pierce v. Runyon, 857

F. Supp. 129, 132 (D. Mass. 1994).

In making this ruling, the Court reasoned that "Section 1985(3) provides no substantive

rights itself; it merely provides a remedy for violation of the rights it designates. The

primary question in the present case, therefore, is whether a person injured by a

conspiracy to violate [Title VII] is deprived of 'the equal protection of the laws, or of

equal privileges and immunities under the laws' within the meaning of § 1985(3)."

Id. (quoting Novotny, 442 U.S. at 372). The Court answered the question in the negative. See

Novotny, 442 U.S. at 378 ("[D]eprivation of a right created by Title VII cannot be a basis for a

cause of action under § 1985(3)."). "The Court also noted that if a violation of Title VII could be

pursued through § 1985(3), a plaintiff could avoid most, if not all, of the elaborate judicial and

administrative process 'which plays such a crucial role in the scheme established by Congress in

Title VII.'" Pierce, 857 F. Supp. at 132 (quoting Novotny, 442 U.S. at 376). See also Rice v.

New England Coll., 676 F.2d 9, 11 (1st Cir. 1982) ("Title VII rights cannot form the basis for a §

1985(3) action."); Siupa v. Astra Tech, Inc., Civil Action No. 10-10525-LTS, 2013 WL 212613,

at *3 (D. Mass. Jan. 18, 2013) (same).

Plaintiff "cannot assert a cause of action under § 1985(3) to redress violations of Title

VII." Pierce, 857 F. Supp. at 132. Accordingly, the court denies Plaintiff's motion to amend the

complaint to add proposed Count VII.

2. Proposed Count VIII: Alleged intracorporate-conspiracy to deprive

Plaintiff of rights under the ADA.

For similar reasons, the court denies Plaintiff's motion for leave to add proposed Count

VIII, which alleges that Defendants Singer, Hyatt, and Melski are liable under 42 U.S.C. §

1985(3) based on their alleged meeting to draft Contract # 2 (Dkt. No. 44-1 ¶¶ 94-97). Plaintiff

alleges that Defendants' actions were taken in retaliation for her engagement in conduct protected

by the ADA (id. ¶ 97).

As is the case with Title VII claims, the First Circuit has held that § 1985(3) does not

provide a remedy for a claim of conspiracy to violate the ADA. See Isaacs v. Trs. of Dartmouth

Coll., Civil No. 17-cv-040-LM, 2017 WL 2982954, at *7 (D.N.H. July 12, 2017) (citing D.B. ex

rel. Elizabeth B. v. Esposito, 675 F.3d 26, 44 (1st Cir. 2012)). See also M.M.R.-Z. ex rel.

Ramírez-Senda v. Puerto Rico, 528 F.3d 9, 13 n.3 (1st Cir. 2008) ("Section 1983 cannot be used

as a vehicle for ADA or other statutory claims that provide their own frameworks for

damages."). Compare Garity v. APWU Nat'l. Labor Org., 655 Fed. App'x 523, 526 (9th Cir.

2016) (unpublished) (parties agreed that § 1985(3) "'may not be invoked to redress violations' of

anti-discrimination statutes like . . . the ADA.") (quoting Novotny, 442 U.S. at 378); Doe v. U.S.

Dep't of Veteran Affairs, No. 08-14958-BC, 2009 WL 2023663, at *4 (E.D. Mich. July 7, 2009)

(claims of age and disability discrimination "are not cognizable under 42 U.S.C. § 1985 because

a delineated avenue of relief is available under the ADEA and ADA"); Medvey v. Oxford Health

Plans, 313 F. Supp. 2d 94, 100 (D. Conn. 2004) ("Section 1985(3) cannot be used to enforce

statutes [like the ADA] which already provide[s] a mechanism for relief.").

Accordingly, because Count VIII of the proposed complaint fails to state a cognizable

legal theory, Plaintiff's motion to amend is denied as to Count VIII.

3. Proposed Count IX: Alleged BCARC-Defendants' vicarious liability for

common law civil conspiracy.

Plaintiff's final proposed amendment alleges a state common law claim for civil

conspiracy. Plaintiff alleges that Defendants Singer, Hyatt, Melski, Anello, and Buchauer acted

in concert with or "substantially assisted" one another or unidentified third parties in depriving

Plaintiff of enumerated federal and state rights or in committing "tortious acts of interference,

coercion, intimidation and in veiled or direct threats of [retaliation] against [Plaintiff], F.L. and

L.W." (Dkt. No. 44-1 ¶¶ 100, 101). Plaintiff seeks vicarious liability for BCARC and liability

for the other Defendants "to the extent of their illegal participation or assistance" in the alleged

conspiracy and points to Contract # 2 as "express evidence" of the conspiracy (id. ¶¶ 103, 107).

Defendants counter that there is no viable civil conspiracy claim "because . . . Defendants were

all part of the same organization" that cannot conspire with itself (Dkt. No. 46 at 4). The court

agrees with Defendants.

"Massachusetts recognizes two types of civil conspiracy, so-called 'true conspiracy' and

conspiracy based on section 876 of the Restatement (Second) of Torts." Taylor v. Am. Chemistry

Council, 576 F.3d 16, 34 (1st Cir. 2009) (citing Kurker v. Hill, 689 N.E.2d 833, 836 (Mass. App.

Ct. 1998)). See also Grant v. John Hancock Mut. Life Ins. Co., 183 F. Supp. 2d 344, 362–63 (D.

Mass. 2002). "The 'true conspiracy' is a very limited cause of action that requires an element of

coercion." Blake v. Prof'l Coin Grading Serv., 898 F. Supp. 2d 365, 391 (D. Mass. 2012) (citing

Aetna Cas. Sur. Co. v. P & B Autobody, 43 F.3d 1546, 1563 (1st Cir. 1994)). Although

Plaintiff's proposed second amended complaint fails to clearly specify the form of conspiracy

alleged, Plaintiff cites cases that address the Restatement type and the proposed count references

"vicarious liability" (Dkt. No. 44 ¶ 8; Dkt. No. 44-1 at 26 & ¶ 107). 4

"A civil conspiracy claim, based on § 876 of the Restatement, is a form of vicarious

liability that requires an underlying tort." Blake, 898 F. Supp. 2d at 391-92 (citing Taylor, 576

F.3d at 34-35). See Aetna Cas. Sur. Co., 43 F.3d at 1564 ("[T]he concept is invoked to support

liability of one person for a tort committed by another."). "Massachusetts courts have recognized

two theories of liability under section 876: (1) 'concert of action,' and (2) 'substantial assistance'

or 'aiding and abetting.'" Taylor, 576 F.3d at 35. Both theories require the plaintiff to "'show an

underlying tortious act in which two or more persons acted in concert and in furtherance of a

common design or agreement.'" Boyle v. Barnstable Police Dept., Civil Action No 09-11435-

MBB, 2012 WL 2126868, at *9 (D. Mass. June 11, 2012) (quoting Bartle v. Berry, 953 N.E.2d

243, 253 (Mass. App. Ct. 2011)). See Aetna Cas. Sur. Co., 43 F.3d at 1564 ("For liability to

attach [under the Restatement type of conspiracy], there must be, first, a common design or an

agreement, although not necessarily express, between two or more persons to do a wrongful act

and, second, proof of some tortious act in furtherance of the agreement.").

4 The coercive type is "drawn from the common law [and] amounts to 'a very limited cause of

action in Massachusetts' for civil conspiracy based on the defendants' allegedly unique ability to

exert a '"peculiar power of coercion"' when acting in unison." Snyder v. Collura, 812 F.3d 46, 52

(1st Cir. 2016) (quoting Jurgens v. Abraham, 616 F. Supp. 1381, 1386 (D. Mass. 1985)). "[T]he

'wrong' suffered by the plaintiff is 'in the particular combination of the defendants rather than in

the tortious nature of the underlying conduct.'" Id. (quoting Kurker, 689 N.E.2d at 836). To the

extent Plaintiff's proposed second amended complaint can be read to allege that Defendants

conspired to coerce her to sign Contract # 2, she did not sign it (Dkt. No. 44-2 ¶¶ 12, 71).

The complaint fails to state an actionable conspiracy claim because Plaintiff alleges that

BCARC and its officers or employees acted as a single legal entity. See Williams, 504 F. Supp.

at 1328-29. "Under this principle – sometimes called the intracorporate-conspiracy doctrine – an

agreement between or among agents of the same legal entity, when the agents act in their official

capacities, is not an unlawful conspiracy." Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 (2017) (citing

Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 752, 769-71 (1984)). The doctrine developed

from the requirement that a conspiracy necessarily involves more than one separate actor. See

id.; Boyle, 2012 WL 2126868, at *9. "When two [or more] agents of the same legal entity make

an agreement in the course of their official duties, . . . as a practical and legal matter their acts are

attributed to their principal." Ziglar, 137 S. Ct. at 1867. Plaintiff does not allege that any of the

five individual Defendants acted other than within the scope of their duties as officers,

employees, or agents of BCARC when they allegedly conspired against her (Dkt. No. 44-1 ¶¶

100-107). See Wentworth Precious Metals, LLC v. City of Everett, No. Civ.A. 11-10909-DPW,

2013 WL 441094, at *14 (D. Mass. Feb. 4, 2013) ("Even joining officers of a corporation . . . in

their individual capacities 'is not enough to make them persons separate from the corporation in

legal contemplation' if they are acting in the course of their employment.") (quoting Williams,

504 F. Supp. at 1328–29). Consequently, as a matter of law, the individual Defendants' acts are

attributed to BCARC, which "cannot conspire with itself." Platten v. HG Bermuda Exempted

Ltd., 437 F.3d 118, 131 (1st Cir. 2006). See Williams, 504 F. Supp. at 1328-29. See also Ziglar,

137 S. Ct. at 1867 ("The Court's precedent indicates that there is no unlawful conspiracy when

officers within a single corporate entity consult among themselves and then adopt a policy for

the entity.") (citing Copperweld Corp., 467 U.S. at 769-71);5 Bell v. Rinchem Co., CIVIL

ACTION NO. 4:14-40177-TSH, 2014 WL 11290899, at *17 (D. Mass. Mar. 10, 2016)

(dismissing civil conspiracy claim alleging vicarious liability for employees acting within the

scope of their employment); Wentworth Precious Metals, LLC, 2013 WL 441094, at *14 ("The

conspiracy claim fails under both federal and state law for the independent reason that the City

cannot conspire with itself. Plaintiff alleges that Field, Nuzzo, and Mayor DeMaria acted to

enforce City ordinances, albeit unlawfully. When these employees acted in the course of their

employment, they acted on behalf of the City of Everett, and a conspiracy of one fails to state a

claim."); Limone v. United States, 336 F. Supp. 2d 18, 50 (D. Mass. 2004) ("Under the

intercorporate [sic] conspiracy doctrine, a corporate officer cannot be held to conspire with his

own corporation. The idea is that a corporation cannot conspire with its own employees insofar

as they are acting for the corporation."); Williams, 504 F. Supp. at 1328 (actions of defendants

undertaken in their official capacities "are properly attributed to the single entity Northfield

Mount Hermon School, which clearly cannot conspire with itself.").

The two cases upon which Plaintiff relies to refute Defendants' argument that her claims

are barred by the intracorporate-conspiracy doctrine are distinguishable (Dkt. No. 49 at 8-10). In

Stathos v. Bowden, 728 F.2d 15 (1st Cir. 1984), the court upheld a jury's verdict finding that

government officials were liable under § 1985(3) for conspiring to discriminate against the

5 In Ziglar, the Court also noted that it "has not given its approval to [the intracorporate-

conspiracy] doctrine in the specific context of § 1985(3)," that "[t]here is a division in the courts

of appeals . . . respecting the validity or correctness of the intracorporate-conspiracy doctrine

with reference to § 1985 conspiracies," and "[n]othing in this opinion should be interpreted as

either approving or disapproving the intracorporate-conspiracy doctrine's application in the

context of an alleged § 1985(3) violation." Ziglar, 137 S. Ct. at 1868. Here, the court's decision

applies the intracorporate-conspiracy doctrine to a state law conspiracy claim, not to the §

1985(3) claims, which are not viable for the other reasons previously discussed.

plaintiffs based on their gender. Id. at 20-21. The court found that the intracorporate-conspiracy

doctrine did not shield the defendants from liability because the officials' conduct "went beyond

'a single act' of discrimination." Id. at 21 (quoting Dombrowski v. Dowling, 459 F.2d 190, 196

(7th Cir. 1972)). Similarly, Webb v. Cty. of El Dorado, No. 2:15-cv-01189-KJM-EFB, 2016 WL

4001922 (E.D. Cal. July 26, 2016), addressed the viability of a § 1985(3) claim for gender

discrimination against a governmental body where "the individual defendants met over several

months and made various plans, taking action in some instances that did not require ratification

by the County Board." Id. at *8. The court granted plaintiff leave to amend her complaint to

provide additional allegations to support her claim of gender-based discrimination. Id. While

courts of this circuit have applied an exception to the intracorporate-conspiracy doctrine to

permit § 1985(3) liability for rights violations committed by officials in the public sector, see,

e.g., Stathos, 728 F.2d at 20-21, here, on the other hand, Plaintiff alleges that agents of a private

entity conspired against her in violation of Massachusetts common law. The intracorporate-

conspiracy doctrine has been applied to bar claims in similar circumstances. See Platten, 437

F.3d at 131; Bell, 2014 WL 11290899, at *17; Williams, 504 F. Supp. at 1328-29.

Accordingly, Plaintiff's proposed Count IX fails as a matter of law and her motion to

amend the complaint to add Count IX is denied.6

IV. CONCLUSION

For the reasons stated above, Plaintiff's motion for leave to file a second amended

complaint (Dkt. No. 44) is DENIED. On or before February 28, 2018, Defendants should either

6 Based on the court's finding that the proposed amendments would be futile, it is not required to

address Defendants' argument that Plaintiff's motion to amend should be denied on the ground

that the three year statute of limitations for conspiracy claims bars the proposed amendments

(Dkt. No. 46 at 3-4). See Nieves v. McSweeney, 73 F. Supp. 2d 98, 102 & n.4 (Mass. 1999).

renew their motion to dismiss for failure to state a claim (Dkt. No. 23), which the court found

was moot in light of Plaintiff's motion to file an amended complaint, or file a new motion to

dismiss, or notify the court that they will not move to dismiss.

It is so ordered.

Dated: February 15, 2018 /s/ Katherine A. Robertson

KATHERINE A. ROBERTSON

UNITED STATES MAGISTRATE JUDGE