Belezos v. Board of Selectmen of Hingham, Massachusetts

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

NICHOLAS G. BELEZOS, on behalf

of himself and all others

similarly situated,

Plaintiffs,

v. CIVIL ACTION NO.

17-12570-MBB

BOARD OF SELECTMEN of

Hingham, Massachusetts,

in their official capacity,

on behalf of themselves and

all others similarly situated,

Defendants.

MEMORANDUM AND ORDER RE:

PLAINTIFF BELEZOS’ MOTION FOR RECONSIDERATION

OF MARCH 29, 2019 ORDER

(DOCKET ENTRY # 26)

July 3, 2019

BOWLER, U.S.M.J.

Plaintiff Nicholas G. Belezos, on behalf of himself and all

others similarly situated, (“plaintiff”) seeks reconsideration of

a March 29, 2019 Memorandum and Order (Docket Entry # 22) “on the

basis of manifest errors of law and manifest injustice.” (Docket

Entry # 26). As to the state law claims, he submits this court

“erroneously overlooked the controlling Massachusetts law of

claim preclusion (res judicata), in particular the law of

‘appellate disregard’ as enunciated in” Springfield Preservation

Trust, Inc. v. Springfield Library and Museums Ass’n, Inc., 852

N.E.2d 83 (Mass. 2006) (“Springfield Trust”). (Docket Entry #

26, pp. 1, 4-6).1 As to the substantive due process claims,

plaintiff argues this court “misapprehended and erroneously

distinguished Limone, Kennie, and Rose I & II, erroneously

overlooked Sharpe, and erroneously relied upon Zotos I & II.”

(Docket Entry # 26, pp. 1, 7-21). With respect to the procedural

due process claim, plaintiff asserts this court “erroneously

overlooked the Mathews2 balancing test.” (Docket Entry # 26, pp.

1, 21-22). Defendants Board of Selectmen of the Town of Hingham

(“defendants”), sued in their official capacity, on behalf of

themselves and all others similarly situated, disagree. (Docket

Entry # 29).

DISCUSSION

The standard to warrant reconsideration is difficult to

meet. See Mulero-Abreu v. Puerto Rico Police Dep’t, 675 F.3d 88,

95 (1st Cir. 2012). One means to succeed is for a movant to

“‘demonstrate . . . that the rendering court committed a manifest

error of law.’” Id. at 94; see Villanueva v. United States, 662

F.3d 124, 128 (1st Cir. 2011) (“[r]econsideration may be proper

where the movant shows a manifest error of law . . . or where the

district court has misunderstood a party or made an error of

apprehension”); Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76,

1 Page references refer to the page number in the upper

right-hand corner of the docketed filing.

2 Mathews v. Eldridge, 424 U.S. 319 (1976).

2

82 (1st Cir. 2008) (reconsideration appropriate when “‘movant

shows a manifest error of law’” or “if the court ‘has patently

misunderstood a party or has made an error not of reasoning but

apprehension’”) (internal ellipses omitted); accord United States

v. Allen, 573 F.3d 42, 53 (1st Cir. 2009) (reconsideration

appropriate “if there has been an intervening change in the law,

or if the movant can demonstrate that the original decision was

based on a manifest error of law or was clearly unjust”); Ellis

v. United States, 313 F.3d 636, 648 (1st Cir. 2002)

(reconsideration “warranted if there has been a material change

in controlling law” or “manifest injustice”). As indicated, the

existence of a manifest injustice also provides a basis for

reconsideration. Ellis v. United States, 313 F.3d at 648; see

Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817

(1988) (“court has the power to revisit prior decisions . . .,

although as a rule courts should be loathe to do so in the

absence of extraordinary circumstances such as where the initial

decision was ‘clearly erroneous and would work a manifest

injustice’”). The manifest injustice exception “requires a

definite and firm conviction that a prior ruling on a material

matter is unreasonable or obviously wrong,” Ellis, 313 F.3d at

648, “‘as well as a finding of prejudice.’” United States v.

Garcia-Ortiz, 792 F.3d 184, 190-91 (1st Cir. 2015) (quoting

United States v. Wallace, 573 F.3d 82, 89 (1st Cir. 2009), in

3

parenthetical), cert. denied, 138 S.Ct. 694 (Jan. 8, 2018).

Reconsideration is not an appropriate means “to advance

arguments that could and should have been presented to the

district court prior to its original ruling.” Villanueva v.

United States, 662 F.3d at 128; accord United States v. Allen,

573 F.3d at 53. Finally, this court has considerable discretion

in adjudicating a motion for reconsideration. See Harlow v.

Children’s Hosp., 432 F.3d 50, 56 (1st Cir. 2005) (“district

court was not barred from reconsidering the prior decision; at

most we review the decision to reconsider only for a particularly

egregious abuse of discretion”); accord Ray v. Ropes & Gray LLP,

799 F.3d 99, 109 n.3 (1st Cir. 2015) (even if “law of the case

doctrine applied to the court’s interlocutory order, we would

‘review the decision to reconsider only for a particularly

egregious abuse of discretion’”) (quoting Harlow v. Children’s

Hosp., 432 F.3d at 55); Karter v. Pleasant View Gardens, Inc.,

323 F. Supp. 3d 179, 181 (D. Mass. 2018) (court “has substantial

discretion to grant or deny a motion for reconsideration”).

I. Claim Preclusion

Plaintiff initially seeks reconsideration of the “state

claims” (counts I to III) because this court overlooked the

controlling precedent of Springfield Trust. (Docket Entry # 26,

pp. 1, 4-6). He correctly indicates (Docket Entry # 26, p. 4)

that this court dismissed the individual state law claims based

4

on claim preclusion (Docket Entry # 22, § A and p. 41).

The decision by the Massachusetts Supreme Judicial Court

(“SJC”) in Springfield Trust, 852 N.E.2d at 91, sets out a

strikingly similar procedural fact pattern and arrives at a

conclusion different from this court on the third element of

claim preclusion in the context of an appeal. See generally RFF

Family P’ship, LP v. Ross, 814 F.3d 520, 531-32 (1st Cir. 2016)

(setting out the three required elements of claim preclusion

under Massachusetts law, including third element, i.e., existence

of “‘prior final judgment on the merits’”) (internal citation

omitted).

For reasons largely expressed by plaintiff (Docket Entry #

26, pp. 5-6), this court has a firm conviction that its decision

finding that claim preclusion applied as to the third element,

notwithstanding a decision by the Massachusetts Appeals Court

(“MAC”) affirming the lower court in plaintiff’s state court

proceeding,3 constitutes a manifest error of law as well as a

manifest injustice sufficient to warrant reconsideration. The

MAC affirmed the lower court’s ruling on a procedural basis and

found it “unnecessary to reach the merits of Belezos’s claims.”

(Docket Entry # 8-8, p. 4). Whereas the lower court decided the

claims on the merits and entered a final judgment (Docket Entry #

3 Belezos v. Board of Selectmen of the Town of Hingham,

Civil Action No. PLCV2014-01018B (“Belezos”). (Docket Entry ##

8-7, 8-8, 15-1).

5

8-7), the MAC decided the matter on a procedural ground based on

a waiver without reaching the merits (Docket Entry # 8-8).4 The

Springfield Trust decision, which this court regretfully

overlooked, is controlling, involves similar procedural facts,

and is dispositive of the judgment-on-the-merits element of claim

preclusion regarding appellate disregard in Massachusetts. See,

e.g., Poirier v. Mass. Dep’t of Corr., 186 F. Supp. 3d 66, 68–69

(D. Mass. 2016) (reconsidering and reversing prior statute of

limitations ruling because “DOC brings my attention to a First

Circuit decision . . . which is dispositive of the timeliness

issue with regard to Plaintiff’s federal claim”) (citation

4 In moving to dismiss the amended complaint based on claim

preclusion, defendants did not argue that the MAC’s decision

based on waiver was itself a decision on the merits. Rather,

defendants acknowledged and asserted the contrary. (Docket Entry

# 8, p. 4) (MAC found “it unnecessary to reach the merits of Mr.

Belezos’ claims because of this waiver”); (Docket Entry # 8, p.

17) (distinguishing “fact that the Appeals Court affirmed the

judgment on other grounds without the need to reach the merits of

Judge Muse’s decision does not alter the fact that the prior

action produced a final judgment on the merits”) (emphasis

added). On reconsideration, defendants therefore waived the

argument that the MAC’s conclusion that plaintiff “waived his

right to contest” that the traffic citation was itself a decision

on the merits for purposes of claim preclusion. See

Curet-Velázquez v. ACEMLA de Puerto Rico, Inc., 656 F.3d 47, 54

(1st Cir. 2011) (“[a]rguments alluded to but not properly

developed before a magistrate judge are deemed waived”); see also

United States v. Caparotta, 676 F.3d 213, 218 (1st Cir. 2012)

(“argument consist[ing] of just two sentences and two cursory

citations in his brief . . . is therefore waived”); see generally

Alston v. Town of Brookline Mass., 308 F. Supp. 3d 509, 549 (D.

Mass. 2018) (moving party seeking to establish claim preclusion

“bears the burden of establishing each of” the three elements),

reconsideration denied, 2018 WL 3302995 (D. Mass. July 5, 2018).

6

omitted), aff’d, No. 16-1587 (1st Cir. Feb. 22, 2018), cert.

denied, No. 18-5401 (Nov. 19, 2018).

More specifically, the SJC in Springfield Trust addressed

claim preclusion in the context of a prior case in which a lower

court found an ordinance valid, followed by the appeals court

affirming the judgment “on procedural grounds.” Springfield

Trust, 852 N.E.2d at 91. The procedural grounds consisted of a

failure to join a necessary party and a failure to “notify the

Attorney General of the suit, as required” under a state statute.

Id. at 417, n.11. On appeal in the prior case, the MAC

“specifically stated that it did ‘not reach the other questions

raised.’” Id. at 417 (internal citation omitted). Based on

these procedural facts, the SJC refused to apply claim preclusion

to the lower court’s initial decision on the merits because the

MAC decided the matter on procedural grounds. Id. at 91.

While the lower court had addressed the merits of the

trust’s claim, the case was ultimately decided on other

grounds having nothing to do with the merits (see note 11,

supra). “It is settled . . . that no [preclusive] effect

can be attributed to a decree dismissing a bill or petition

in equity, for want of jurisdiction or any other cause not

involving the essential merits of the controversy.” Curley

v. Curley, 311 Mass. 61, 66, 40 N.E.2d 272 (1942).

Springfield Trust, 852 N.E.2d at 91; see In re Sonus Networks,

Inc., 499 F.3d 47, 59 (1st Cir. 2007) (quoting above language in

Springfield Trust quoting Curley v. Curley, 40 N.E.2d 272, 274

(Mass. 1942)).

Plaintiff presented the appellate disregard argument in his

7

initial brief by quoting Sonus Networks’ quotation of Springfield

Trust. (Docket Entry # 15, p. 20). This court entirely

overlooked the Springfield Trust decision and focused on In re

Baylis, 217 F.3d 66, 71 (1st Cir. 2000), another decision cited

in plaintiff’s brief, as well as the lower court’s merits-based

decision in plaintiff’s state court proceeding, Belezos v. Board

of Selectmen of the Town of Hingham, Civil Action No.

PLCV2014-01018B. (Docket Entry # 22, pp. 26-29). Further,

whereas this court cited to a case involving issue preclusion

that addressed the preclusive effect of an appellate court’s

decision affirming on a procedural ground a lower court’s merits-

based decision (Docket Entry # 22, pp. 28-29), this court did not

address or cite a Massachusetts case involving claim preclusion

with a similar procedural fact pattern involving an appeal of a

lower court’s decision resting on a singular ground rather than

alternative grounds. The SJC’s decision in Springfield Trust,

however, addresses this fact pattern and finds no preclusive

effect. Refusing to reconsider the unreasonable ruling, which

overlooked Springfield and reached a diametrically opposite

result, will work a manifest injustice result on plaintiff. See

Ellis v. United States, 313 F.3d at 648 & n.5 (recognizing “a

meaningful difference between an arguably erroneous ruling . . .

and an unreasonable ruling that paves the way for a manifestly

unjust result”). Accordingly, in this court’s discretion and

8

based on a manifest error of law or, alternatively, the existence

of manifest injustice, see United States v. Carta, 690 F.3d 1, 5

(1st Cir. 2012) (“‘manifest injustice requires a definite and

firm conviction that a prior ruling is unreasonable or obviously

wrong and a finding of prejudice’”) (internal brackets, citation,

and ellipses omitted); Ellis v. United States, 313 F.3d at 648

(manifest injustice “requires a definite and firm conviction that

a prior ruling on a material matter is unreasonable or obviously

wrong” and prejudice), reconsideration is appropriate and the

motion to reconsider (Docket Entry # 26) is allowed as to the

state law claims. See Poirier v. Mass. Dep’t of Corr., 186 F.

Supp. 3d at 68–69; see also DeGrandis v. Children’s Hosp. Boston,

Civil Action No. 14-10416-FDS, 2015 WL 1959433, at *4, *6 (D.

Mass. Apr. 30, 2015) (allowing motion to reconsider because court

previously and erroneously concluded memorandum of agreement was

“a repudiation,” First Circuit law does not consider such

“last-chance agreements . . . to be a form of repudiation,” and

court incorrectly determined claim was “straight breach-of-

contract claim rather than a ‘hybrid’ claim under the LMRA”).

The reconsideration of the state law claims (counts I to III)

leads to their inclusion as claims in this case and no longer

dismissed.

II. Substantive Due Process Claims

Plaintiff also seeks reconsideration of the dismissal of the

9

substantive due process claims (counts IV and VI) along with the

corresponding failure to train, supervise, and discipline claims

(counts V and VII). The gravamen of these claims is the

deliberate, knowing, and reckless fabrication of false evidence

by erecting or failing to remove speed-limit signs that lacked

regulatory authority and the repeated issuance of traffic

citations under these illegal speed-limit signs. (Docket Entry #

11, ¶¶ 79, 83, 90, 94). Plaintiff insists this court overlooked

Petition of Sharpe, 77 N.E.2d 769 (Mass. 1948) (“Sharpe”),

because this court’s Memorandum and Order (Docket Entry # 22) did

not cite the decision. (Docket Entry # 26, pp. 11-12).

This court did not overlook the decision. Rather, like the

court in Zotos v. Town of Hingham, et al., Civil Action No.

13-13065-DJC (D. Mass. March 25, 2016) (“Zotos II”) (Docket Entry

# 8-6), wherein plaintiff’s counsel relied more heavily on Sharpe

(Docket Entry # 21, p. 22, in Zotos II) in opposing a motion to

dismiss similar substantive due process claims, this court simply

did not cite Sharpe. Sharpe involves a criminal prosecution by

the Commonwealth and a conviction for violating a traffic light

signal that did not comply with a permit granted by the Newton

Department of Public Works. Sharpe, 77 N.E.2d at 769-771 (trial

judge assumed traffic lights were unlawfully maintained and

nevertheless denied motion for new trial). It is distinguishable

on the same basis the Massachusetts Superior Court (Plymouth

10

County) distinguished the decision in the state court proceedings

plaintiff pursued regarding the traffic citation. (Docket Entry

# 8-7, p. 6, n.1). Furthermore, whereas the Sharpe court

reversed the trial court’s denial of a motion for a new trial

under a “manifest injustice” standard, see Sharpe, 77 N.E.2d at

771 (“fundamental test . . . in denying a motion for a new trial

on the ground of newly discovered evidence is that . . .

decision, unless reversed, will result in manifest injustice”),

the holding did not apply the “‘shock the conscience’ standard”

that adheres to a substantive due process claim. Estate of

Bennett v. Wainwright, 548 F.3d 155, 162 (1st Cir. 2008)

(citation omitted). Rather, the court used the principle that

permitting a criminal “‘sentence to stand for that which is not a

crime would shock judicial conscience and result in a palpable

miscarriage of justice’” to support and justify the satisfaction

of the less-demanding manifest injustice standard. Sharpe, 77

N.E.2d at 771 (quoting Commonwealth v. Bracy, 46 N.E.2d 580

(Mass. 1943)). The relevant language is therefore dicta. More

specifically, applying the state-law manifest injustice standard,

the SJC overruled the trial judge’s denial of the new trial

motion as “wrong” because “the defendant obviously was not guilty

of the offense charged if the traffic signals were not lawfully

maintained.” Id. The more difficult-to-meet “‘shock the

conscience’ standard implicates behavior ‘so egregious, so

11

outrageous, that it may fairly be said to shock the contemporary

conscience.’” Estate of Bennett v. Wainwright, 548 F.3d at 162

(quoting Ramos–Piñero v. Puerto Rico, 453 F.3d 48, 53 (1st Cir.

2006), in parenthetical). “It is bedrock law in this circuit . .

. that violations of state law—even where arbitrary, capricious,

or undertaken in bad faith—do not, without more, give rise to a

denial of substantive due process under the U.S. Constitution.”

Coyne v. City of Somerville, 972 F.2d 440, 444 (1st Cir. 1992)

(citations omitted). Finally, the criminal prosecution and

resulting criminal conviction at issue in Sharpe is more shocking

and egregious than the civil infraction at issue in the case at

bar.5

Plaintiff next contends this court misapplied and

misinterpreted the decisions it did cite, namely, Limone v.

Condon, 372 F.3d 39 (1st Cir. 2004); Kennie v. Nat. Res. Dep’t of

Dennis, 889 N.E.2d 936 (Mass. 2008); Rose v. Vill. of Peninsula,

839 F. Supp. 517 (N.D. Ohio 1993) (“Rose I”); Rose v. Vill. of

Peninsula, 875 F. Supp. 442 (N.D. Ohio 1995) (“Rose II”); Zotos

v. Town of Hingham, Civil Action No. 12-11126-JGD, 2013 WL

5 “Proceedings under c. 90C, were revised by St.1986, c.

35, § 10 to provide that certain minor automobile law violations

‘shall be deemed civil motor vehicle infractions and not criminal

offenses, and all statutes, ordinances, by-laws or regulations

heretofore providing for such automobile law violations shall be

so interpreted.’” Commonwealth v. Weiss, 2004 Mass. App. Div.

144, 2004 WL 2110593, at *3 (Sept. 21, 2004) (per curiam)

(citation omitted).

12

5328478 (D. Mass. Sept. 19, 2013) (“Zotos I”); and Zotos II.

(Docket Entry # 26, pp. 7-10, 12-21). The basis to distinguish

these cases (Docket Entry # 22, pp. 30-37) remains entirely

appropriate.

In addition, plaintiff’s attempt to distinguish Zotos I and

Zotos II because he alleges in his briefs that the traffic signs

at issue were not “erected for safety reasons” (Docket Entry #

15, p. 18) (Docket Entry # 26, p. 20) is misguided. The amended

complaint does not include this allegation. Even if it did, the

facts and reasonable inferences in the amended complaint are less

extreme, less egregious, and less shocking than the facts in

cases where courts find substantive due process violations. See

Rochin v. People of Cal., 342 U.S. 165 (1952) (forcibly pumping

suspect’s stomach to obtain evidence); Limone v. Condon, 372 F.3d

at 43-45 (intentionally fabricating incriminating evidence and

withholding exculpatory evidence to frame three individuals in a

murder they did not commit). The alleged misconduct is even less

conscious shocking than the misconduct in cases where courts do

not find due process violations. See Maldonado v. Fontanes, 568

F.3d 263, 273-74 (1st Cir. 2009) (mayor’s alleged conduct of

authorizing the seizing of public housing tenants’ pets did not

violate tenants’ substantive due process rights); Cruz–Erazo v.

Rivera–Montañez, 212 F.3d 617, 621-23 (1st Cir. 2000)

(months-long campaign of harassment of plaintiffs by police

13

officers and officers’ deliberate testimony perjuring themselves

in court did not set out substantive due process violation);

Boveri v. Town of Saugus, 113 F.3d 4, 7 (1st Cir. 1997)

(reckless, high-speed, police car chase resulting in physical

injuries did not violate substantive due process); Zotos I, 2013

WL 5328478, at *12 (collecting authority); see also J.R. v.

Gloria, 593 F.3d 73, 80 (1st Cir. 2010). As pointed out in Zotos

I, a motorist, such as plaintiff, who drives on roads with

unlawfully posted speed limit signs “always has an option” to

drive “within the posted limit and” avoid a traffic citation.

Zotos I, 2013 WL 5328478, at *13. “Under such circumstances, the

defendants’ alleged actions in unlawfully posting and enforcing

speed limits is not the type of conduct that is ‘so extreme,

egregious, or outrageously offensive as to shock the contemporary

conscience.’” Id. (quoting DePoutot v. Raffaelly, 424 F.3d 112,

119 (1st Cir. 2005)). Indeed, “‘the requisite arbitrariness and

caprice’ for a conscience-shocking executive action ‘must be

stunning, evidencing more than humdrum legal error’” and, as

previously noted, “[m]ere violations of state law, even

violations resulting from bad faith, do not necessarily amount to

unconstitutional deprivations of substantive due process.”

DePoutot v. Raffaelly, 424 F.3d at 119 (citation omitted); accord

Coyne v. City of Somerville, 972 F.2d at 444 (“violations of

state law—even where arbitrary, capricious, or undertaken in bad

14

faith—do not, without more, give rise to a denial of substantive

due process under the U.S. Constitution”); see generally

Marrero-Rodriguez v. Municipality of San Juan, 677 F.3d 497, 502

(1st Cir. 2012) (recognizing that “‘Supreme Court has been firm

in its reluctance to expand the doctrine of substantive due

process’”) (citation omitted). Finally, the facts in the case at

bar do not involve “physical or psychological abuse, or

significant interference with a protected relationship, such as

the parent-child relationship.” McConkie v. Nichols, 446 F.3d

258, 261 (1st Cir. 2006).

In sum, there is no basis to reconsider the decision as to

the substantive due process claims given the absence of any

manifest error of law or manifest injustice. Indeed, the

foregoing discussion supports the correctness of the March 29,

2019 decision on the substantive due process claims.

III. Procedural Due Process

Plaintiff seeks reconsideration of the dismissal of the

procedural due process claim (Count VIII) because this court did

not expressly analyze the three factors in Mathews v. Eldridge,

424 U.S. 319, 321, 333 (1976). Contrary to plaintiff’s argument

(Docket Entry # 26), this court’s decision was neither a manifest

error of law nor a manifest injustice. Rather, it was a correct

one. Moreover, neither Zotos I nor Zotos II engaged in an

analysis under Mathews. See Zotos I, 2013 WL 5328478, at *13;

15

Zotos II, Civil Action No. 13-13065-DJC (D. Mass. March 25, 2016)

(Docket Entry # 8-6).

In any event, even reconsidering the decision and, as

requested by plaintiff (Docket Entry # 26), explicitly applying

the Mathews test, the procedural due process claim in Count VIII

remains not plausible. The balancing test in Mathews weighs:

“(A) the private interest affected; (B) the risk of erroneous

deprivation of that interest through the procedures used; and (C)

the governmental interest at stake.” Nelson v. Colorado, 137 S.

Ct. 1249, 1255 (2017) (citing Mathews v. Eldridge, 424 U.S. at

335). Plaintiff identifies property interests in his driver’s

license and his money as well as a liberty interest in being free

from restraint. (Docket Entry # 15, pp. 18-20). In general, the

“Due Process Clause applies to the deprivation of a driver’s

license by the State.” Dixon v. Love, 431 U.S. 105, 112 (1977)

(citation omitted); Raper v. Lucey, 488 F.2d 748, 752 (1st Cir.

1973) (“‘freedom to make use of one’s own property, here a motor

vehicle, as a means of getting about from place to place, whether

in pursuit of business or pleasure, is a “liberty” which under

the Fourteenth Amendment cannot be denied or curtailed by a state

without due process of law’”) (citation omitted); cf. Luk v.

Commonwealth, 658 N.E.2d 664, 669 (Mass. 1995) (“[i]n

Massachusetts, one’s right to operate a motor vehicle is a

privilege voluntarily granted”). That said, plaintiff did not

16

lose his driver’s license. See González-Droz v. González-Colón,

660 F.3d 1, 13 (1st Cir. 2011) (to establish “procedural due

process violation, the plaintiff ‘must identify a protected

liberty or property interest and allege that the defendants . . .

deprived [him] of that interest without constitutionally adequate

process’”) (internal citation omitted); Raper v. Lucey, 488 F.2d

748, 752 (“[e]ven though federally protected rights are at issue,

plaintiff must sufficiently allege facts to indicate that a

deprivation of those rights by defendants has occurred” to avoid

dismissal for “fail[ure] to state a claim”). Rather, he paid a

$100 fine to avoid a “threatened suspension of his license”

thereby implicating a property interest in his money.6 (Docket

Entry # 11, ¶ 20); see Sansotta v. Town of Nags Head, 724 F.3d

533, 540 (4th Cir. 2013) (“money is clearly a cognizable property

6 The property interest in his money extends to increased

automobile insurance premiums. (Docket Entry # 11, ¶ 21).

Although plaintiff also lost his job (Docket Entry # 11, ¶¶ 22-

23), it is unlikely that he has a property interest in his

continued employment inasmuch as the facts alleged in the amended

complaint fail to reasonably infer that plaintiff was not an

employee at will. “Under ordinary circumstances, an at-will

employee lacks a reasonable expectation of continued employment

(and, thus, has no property interest in [his or] her job).”

Gomez v. Rivera Rodriguez, 344 F.3d 103, 111 (1st Cir. 2003); see

also Burton v. Town of Littleton, 426 F.3d 9, 14–15 (1st Cir.

2005) (“‘neither the termination of employment nor statements

that might be characterized as defamatory are, by themselves,

sufficient to implicate the liberty interest’”) (quoting

Ortega–Rosario v. Alvarado–Ortiz, 917 F.2d 71, 74 (1st Cir.

1990)).

17

interest”) (citation omitted); Herrada v. City of Detroit, 275

F.3d 553, 556 (6th Cir. 2001) (plaintiff “clearly has a property

interest in her money”). Assuming for purposes of argument that

the traffic stop implicates a liberty interest under the Due

Process Clause, the limited and brief traffic stop does not

warrant any prior process. See Doyle v. Falmouth Police Dep’t,

No. 2:14-CV-259-JDL, 2015 WL 470715, at *5 (D. Me. Feb. 4, 2015);

see also Johnson v. Crooks, 326 F.3d 995, 1000 (8th Cir. 2003).

Overall and assuming for purposes of argument the asserted

liberty interest, the nature of plaintiff’s private interests “is

not so great as to require” a departure “‘from the ordinary

principle . . . that something less than an evidentiary hearing

is sufficient prior to adverse administrative action.’”7 Dixon v.

Love, 431 U.S. at 113 (quoting Mathews v. Eldridge, 424 U.S. at

343).

Contrary to plaintiff’s argument (Docket Entry # 15), the

statutory process set out in Massachusetts General Laws chapter

90C, section 3(A) (“section 3(A)”), employed in plaintiff’s case

does not lead to a high risk of an erroneous deprivation.

Plaintiff received notice of the opportunity to contest the

citation at a noncriminal hearing, as provided for under section

7 This is not to say that the administrative procedure at

issue involves less than an evidentiary hearing. In fact, the

noncriminal, non-jury hearing may include witness testimony in

addition to the citation. Mass. Gen. Laws ch. 90C, § 3(A)(4).

18

3(A)(2).8 Plaintiff availed himself of that opportunity by

contesting the citation at the noncriminal hearing on December

28, 2011, three months after he received the citation. (Docket

Entry # 11, ¶¶ 15-16). At the hearing, the citation is “prima

facie evidence of the facts stated therein” but the violator may

obtain witnesses to testify at the hearing through “[c]ompulsory

process.” Mass. Gen. Laws ch. 90C, § 3(A)(4). Plaintiff had a

three-month time period to marshal evidence. Prior to the

hearing and upon a showing of need to the magistrate, the statute

allows plaintiff to inspect “documents or materials in the

possession” of the “agency concerned that are essential to [his]

defense.” Mass. Gen. Laws ch. 90C, § 3(A)(4). At a minimum,

plaintiff had the opportunity to argue the absence of a traffic

engineering study for the speed limit sign or to present any

other argument to the magistrate as a basis to find him not

responsible for the infraction. Plaintiff’s assertions of “the

lack of any evidentiary proof requirement” and an “evidentiary

presumption that [the speed-limit] sign is authorized by statute”

(Docket Entry # 15, pp. 19-20) are without merit. Plaintiff had

the opportunity to be heard in a meaningful manner. As

succinctly stated by the court in Zotos II, which this court

8 Plaintiff’s acknowledgment that “he was afforded a

hearing and subsequent appeals prior to his deprivations” (Docket

Entry # 15, p. 19) does not eliminate these facts from the

analysis.

19

independently adopts, the “‘Due Process Clause does not require

any specific set of detailed procedures as long as the procedures

are basically fair ones.’” Zotos II, Civil Action No.

13-13065-DJC (D. Mass. Mar. 25, 2016) (quoting Newman v. Burgin,

930 F.2d 955, 960 (1st Cir. 1991), with internal citation and

ellipses omitted) (Docket Entry # 8-6). Here, those procedures

are eminently fair and the risk of an erroneous deprivation does

not weigh in plaintiff’s favor.

Plaintiff also had the opportunity to challenge the

evidentiary presumption, the purported lack of an evidentiary

proof requirement, and the allegedly unauthorized signage in an

appeal. (Docket Entry ## 8-8, 11-4). In particular, the statute

provides for a de novo appeal of a magistrate’s decision “to a

justice” of the district court.9 Mass. Gen. Laws ch. 90C, §

3(A)(4); Commonwealth v. Mongardi, 522 N.E.2d 984, 985–86 (Mass.

App. Ct. 1988) (operator found responsible “can appeal to a

District Court judge, ‘who shall hear the case de novo’”)

(quoting section 3(A)). Thereafter, the operator may appeal

“[q]uestions of law” in the disposition of the infraction before

the justice to “the appellate division” of the district court and

thereafter the Massachusetts appeals court. Mass. Gen. Laws ch.

90C, § 3(A)(4), (5); Mass. Gen. Laws ch. 90C, § 1 (defining

9 A magistrate conducted the December 28, 2011 noncriminal

hearing. (Docket Entry # 11-4).

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“appellate division”); Commonwealth v. Mongardi, 522 N.E.2d

(“appeal from the [district court] judge’s finding can be taken

to the Appellate Division of the District Courts, and the

Appellate Division’s order can thereafter be appealed to this

court”). Plaintiff, however, waived his opportunity to bring any

questions of law in such an appeal (Docket Entry # 8-8)10 and

commenced a separate action in state court against defendants.

The court in Weiss articulates the balancing of the

competing interests. Commonwealth v. Weiss, 2004 WL 2110593, at

10 In finding a waiver, the MAC summarized the provisions

and the inter-relationship of sections 17 and 18 of Massachusetts

General Laws chapter 90 (“chapter 90”), including special speed

regulations adopted by towns subject to the oversight approval of

the Massachusetts Department of Transportation. (Docket Entry #

8-8). The court also recognized that plaintiff’s complaint,

similar to the amended complaint in this action, alleged that the

Board of Selectman of the Town of Hingham “did not obey the

procedures outlined in” section 18 of chapter 90 in connection

with the 30-mile-hour posted speed limit sign on Gardner Street.

(Docket Entry # 8-8). The MAC thereby implicitly found those

claims waived. The relevant language reads as follows:

Belezos’s complaint alleges that the town improperly posted

sixty speed limit signs, including the sign under which he

was cited, when it failed to obey the procedures outlined in

G. L. C. 90, § 18 . . . At its core, Belezos’s civil action

challenges the basis of his speeding citation . . .

It is unnecessary to reach the merits of Belezos’s claims

because he waived his right to contest the civil motor

vehicle infraction that is at the heart of this dispute by

failing to pursue the remedy expressly provided for by the

Legislature. General Laws c. 90C, § 3, par. 2, as appearing

in St. 1991, c. 138, § 161, states that “[p]ayment of the

indicated assessment shall operate as a final disposition of

the matter.”

(Docket Entry # 8-8, pp. 3-4).

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*1-2. The overall fairness of the procedure in section 3(A)(4)

is apparent from the court’s recitation of the process, which

also depicts the governmental interests at stake, i.e., Mathews’

third factor. In section 3(A)(4):

[T]he Legislature sought to fashion a nonjury civil

procedure which would give an operator the protection of an

informal judicial hearing, while ensuring that the

overburdened court system would not be involved in lengthy

trials of matters that no longer carried criminal penalties.

As was said about the noncriminal disposition of parking

violations by a municipal agency: The noncriminal method of

enforcement permitted by [the statute] . . . is essentially

a sensible, simple, administrative method of making

necessary traffic rules effective, without clogging the

courts, causing undue public inconvenience and resentment,

or depriving any citizen of full opportunity at his option

for a judicial determination of facts. It is open to all

citizens on the same basis and constitutes a reasonable

classification of minor offences for special administrative

treatment. Commonwealth v. Mongardi, 26 Mass.App.Ct. 5,

8–9, 522 N.E.2d 984 (1988), quoting Commonwealth v. Marder,

346 Mass. 408, 411, 193 N.E.2d 695 (1963), appeal dismissed,

377 U.S. 407, 84 S.Ct. 1626, 12 L.Ed.2d 405 (1964).

Commonwealth v. Weiss, 2004 WL 2110593, at *1 (internal quotation

marks omitted). The procedure “affords both parties an

opportunity to resolve the case in a simple, informal hearing,

not subject to the rules of evidence, where they can be bound by

the decision of the magistrate only if they agree.” Id. at *2.

As noted, it balances the need to avoid “‘“clogging the courts,

causing undue public inconvenience and resentment,”’” id.

(internal citations omitted), with affording the violator an

initial opportunity to be heard and present witnesses followed by

an appeal subject to de novo review. The availability of an

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appeal and de novo review by a justice and thereafter the

appellate division and the MAC, which may address “[q]uestions of

law[,]” Mass. Gen. Laws ch. 90C, § 3(A)(4), (5), weighs against

finding a procedural due process violation. Indeed, “‘[t]he

availability of judicial review is an especially salient

consideration’ in determining whether procedural due process has

been satisfied.” Zotos II, Civil Action No. 13-13065-DJC (D.

Mass. Mar. 25, 2016) (quoting Amsden v. Moran, 904 F.2d 748, 755

(1st Cir. 1990)) (Docket Entry # 8-6). In sum, weighing and

balancing the various factors under Mathews, including

plaintiff’s interests, the procedural due process claim remains

subject to dismissal.

Separately, upon further review of the motion for class

certification (Docket Entry # 16) and the opposition (Docket

Entry # 25), a hearing on the motion is not necessary. In

addition, neither party requested a hearing in accordance with

LR. 7.1(d). The motion (Docket Entry # 16) will therefore be

decided on the papers.

CONCLUSION

In accordance with the foregoing discussion, the motion for

reconsideration (Docket Entry # 26) is ALLOWED for counts I, II,

and III and DENIED for counts IV to VIII.

/s/ Marianne B. Bowler

MARIANNE B. BOWLER

United States Magistrate Judge

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