The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
)
DANIELLE DONOHUE and )
LINCOLNSHOUSE, LLC, )
)
Plaintiffs, )
)
v. ) Civil Action No. 18-10713-LTS
)
CITY OF METHUEN and )
JOHN P. GIBNEY, )
)
Defendants. )
)
ORDER ON MOTION FOR LEAVE TO FILE A SECOND
AMENDED COMPLAINT (DOC. NO. 46)
May 17, 2019
SOROKIN, J.
On April 12, 2019, plaintiffs Danielle Donohue and Lincolnshouse, LLC
(“Lincolnshouse”) moved to amend their complaint against defendants City of Methuen (“the
City”) and John. P. Gibney. Doc. No. 46. The plaintiffs’ proposed second amended complaint
adds a new count of negligence against both defendants, seeking money damages. Doc. No. 46-1
at 10–11. The defendants opposed. Doc. No. 50.
Rule 15 “instructs courts to freely give leave to amend” pleadings in the absence of a
reason “such as undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of amendment, etc.” Klunder v. Brown
Univ., 778 F.3d 24, 34 (1st Cir. 2015) (citations and internal quotations omitted). Before
discovery ends, futility “is gauged by reference to the liberal criteria of Federal Rule of Civil
Procedure 12(b)(6), and “amendment is not deemed futile as long as 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 v. Dep’t for Children, Youth & Their
Families, 274 F.3d 12, 19 (1st Cir. 2001).
The amendment of the negligence claim proposed by the second amended complaint is
futile because Massachusetts law shields both Gibney and the City from liability for the
negligence as alleged in the complaint. The factual basis of plaintiffs’ proposed negligence claim
is that the City, through its employee Gibney, enforced the local zoning ordinance, the state
Building Code, and the state Sanitary Code without reference to the Massachusetts Zoning Act,
Mass. Gen. Laws ch. 40A, § 3. See Doc. No. 37 at 6–7 (discussing the Zoning Act’s preemption
of certain applications of health or safety laws). Plaintiffs argue that this wrongful enforcement
negligently breached defendants’ duty “to enforce the building and zoning laws in accordance
with their terms.” Doc. No. 46-1 at 10.
However, the Massachusetts Tort Claims Act identifies certain categories of claims
within which a claimant cannot recover against a public employer, of which two are relevant
here:
(a) any claim based upon an act or omission of a public employee when such
employee is exercising due care in the execution of any statute or any regulation of
a public employer, or any municipal ordinance or by-law, whether or not such
statute, regulation, ordinance or by-law is valid;
(b) any claim based upon the exercise or performance or the failure to exercise or
perform a discretionary function or duty on the part of a public employer or public
employee, acting within the scope of his office or employment, whether or not the
discretion involved is abused . . .
Mass. Gen. Laws ch. 258, § 10. Gibney’s alleged conduct, upon which the claims against both
him and the City are based, falls into both categories. The complaint does not allege that Gibney
failed to exercise due care in his enforcement of the various laws he intended to enforce, and the
statute specifies that liability for the execution of any law is precluded regardless of the ultimate
validity of the law being executed. In other words, Gibney and the City cannot be held liable for
negligence simply because their position on the application of the Building Code and other laws
was eventually held invalid. Further, given that Gibney’s enforcement decisions are essentially
an exercise of prosecutorial discretion, his decisions in code enforcement also fall within the
discretionary function exception. Accordingly, the proposed negligence count fails to state a
claim and is therefore futile.1
For the foregoing reasons, plaintiffs’ motion for leave to file a second amended
complaint, Doc. No. 46, is DENIED.
SO ORDERED.
/s/ Leo T. Sorokin
Leo T. Sorokin
United States District Judge
1 The claim is also futile as to Gibney himself because he performed his alleged actions in his
official capacity as an employee of the City, a category of actions also exempted from liability.
See Mass. Gen. Laws ch. 258, § 2.