Miller, Trustee v. City of Gloucester

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

___________________________________

)

KEITH L. MILLER, Trustee of )

the MRFS Living Trust, )

)

Plaintiff, )

)

v. ) Civil Action

) No. 18-11666-PBS

SBA TOWERS V, LLC, NEW CINGULAR )

WIRELESS PCS, LLC, and THE CITY )

OF GLOUCESTER, )

)

Defendants. )

___________________________________)

MEMORANDUM AND ORDER

July 8, 2019

Saris, C.J.

INTRODUCTION

This case arises from the Gloucester City Council’s

decision to issue a special permit to construct a cell tower on

the property located at 250 Concord Street in Gloucester,

Massachusetts. Plaintiff Keith L. Miller, an attorney, is the

trustee of the MRFS Living Trust, which owns land near the

proposed cell tower site. He alleges that Defendants SBA Towers

V, LLC and New Cingular Wireless PCS, LLC (the “Wireless

Defendants”) and the City of Gloucester intentionally deprived

him of statutorily required notice of the Zoning Board of

Appeals proceedings concerning a variance needed to build the

cell tower.

Plaintiff alleges that all three Defendants violated 42

U.S.C. § 1983 (Count I) and that the Wireless Defendants

violated Mass. Gen. Laws ch. 93A (Count II) (Docket No. 39).

Defendants move to dismiss both counts under Federal Rule of

Civil Procedure 12(b)(6) (Docket Nos. 44 and 48). The Wireless

Defendants also move to dismiss the 93A claim based on

Massachusetts’s anti-SLAPP statute (Docket No. 48). Defendants

move for Rule 11 sanctions against Miller for statements made in

his verified complaint (Docket No. 51). After hearing, the Court

ALLOWS the motions to dismiss (Docket Nos. 44 and 48) and ALLOWS

Defendants’ motion for sanctions (Docket No. 51).

FACTUAL BACKGROUND

The following background comes from the First Amended

Verified Complaint (“FAC”) (Docket No. 39). See Foley v. Wells

Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014). The Court

also considers other documents not in dispute, including emails

submitted by Defendants. See Watterson v. Page, 987 F.2d 1, 3

(1st Cir. 1993). Plaintiff has not objected to the consideration

of these emails.

Miller is the trustee of the MRFS Living Trust, which owns

real property located in Gloucester, Massachusetts (the “Miller

Property”).1

1 The First Amended Verified Complaint inconsistently describes the property

the Trust owns. Compare FAC at 2, with FAC ¶ 1.

A. Petition for a Variance

Gloucester Zoning Ordinance 5.13 (the “Ordinance”) governs

the construction of cell towers in the City. The Ordinance

establishes certain height restrictions depending on whether the

proposed cell tower location is within an overlay district as

designated on the City’s zoning map. Under the Ordinance, and

pursuant to Mass. Gen. Laws ch. 40A, § 10, the Gloucester Zoning

Board of Appeals (“ZBA”) has jurisdiction to hear and vote on

petitions for variances from the requirements of the ordinance.

On September 5, 2014, the Wireless Defendants filed a

petition with the ZBA seeking a variance to construct a 150-foot

cell tower at 250 Concord Street in Gloucester. The real

property at 240/250 Concord Street is owned by the Donald L.

Fryklund Living Trust (the “Fryklund Property”). The petition

included a list of abutters to 250 Concord Street who were

entitled to notice of any hearing and any decision of the ZBA as

“parties in interest” under Mass. Gen. Laws ch. 40A, § 11. The

abutters report, which was prepared by the City’s Assessors

Office for the purpose of notifying abutters as required, does

not list the Miller Property as abutting 250 Concord Street.2

Miller did not receive notice as an abutter.

2 Exhibit D to the First Amended Verified Complaint is the City of Gloucester

Abutters Report and states:

The list of owners of record as shown on the most recent tax list

of the City of Gloucester has been prepared for the purposes of

notifying abutters as required by the City’s Zoning Board of

B. Neighborhood Emails

From October 2014 through December 2014, Miller received

emails from his neighbors in Gloucester concerning the Wireless

Defendants’ petition for a variance to build the cell tower. On

November 15, 2014, Sue Klem emailed a group of neighbors,

including Miller, the following:

For those of you who did not attend the ZBA hearing on

November 13 on the Fryklund cell tower:

The ZBA said they do not have experience with cell

towers and seemed to feel that it was not their

role/jurisdiction to make decisions on such

potentially controversial projects as the Fryklund’s

cell tower height . . . . They would like the City

Council to handle this.

The ZBA will take up the Fryklund cell tower at their

next meeting on Thursday, December 11 at 7pm. It

sounds like this meeting will deal with technicalities

of moving the decision to the City Council.

Docket No. 51-2 at 67. Miller responded to Klem via email that

same evening: “Thanks. I was away on thursday [sic], but will

plan on coming to next meeting.” Id. at 66.

On December 8, 2014, Miller received another email from

Klem stating:

The Zoning Board of Appeals hearing has been moved to

Thursday, December 18 at Gloucester Town Hall in the

second floor auditorium. The Fryklund cell tower will

be discussed at 7pm, at the beginning of the meeting.

The ZBA and the City Council seem to want the request

by [the Wireless Defendants] for variances to the city

Appeals or City Council and it reflects the abutters to the

Parcel known as Map 246 Lot 13 as further shown on the attached

map dated 7/23/2014.

Docket No. 39-4 at 3.

cell phone tower ordinance to be taken up by the City

Council, most likely starting in January. So the

December 18 ZBA meeting will likely be more of

formality [sic].

Id. at 48.

On December 18, 2014, the ZBA issued an opinion denying the

Wireless Defendants’ request for a use-variance to build the

tower but granting their request for a procedural variance to

appear before the Gloucester City Council and request a cell

tower special permit, pursuant to Ordinance Section 5.13.3.1(c).

In its opinion on the petition, the ZBA expressly stated that

the “decision granting the petitioners zoning relief is made

solely for the purpose of allowing them to appear before City

Council, which is the proper and exclusive forum for determining

whether a special permit should be granted for the Cell Tower.”

Docket No. 39-5 at 7. Miller received no notice of the ZBA’s

decision granting the variance and asserts he had no “actual

knowledge that the ZBA had rendered a decision with legal

significance.” FAC ¶¶ 17-18.

C. Petition for Special Permit

On March 4, 2015, relying on the variance from the ZBA, the

Wireless Defendants filed an application with the City Council

seeking a special permit to build a 150-foot cell tower. The

City Council and the its Planning and Development Committee held

several public hearings related to the application in 2015. FAC

On June 23, 2015, the City Council conducted a public hearing to

vote on the application, which Miller attended and spoke at.

On August 11, 2015 the City Council issued a written

opinion granting the Wireless Defendants a special permit to

construct a 130-foot cell tower on the Fryklund Property. The

decision was filed with the City Clerk on August 13, 2015.

D. Prior Litigation

Miller challenged the City Council’s decision to grant the

special permit in both Massachusetts Superior Court and

Massachusetts Land Court. In superior court, Miller asserted two

counts against the City and Wireless Defendants. On January 15,

2016, the superior court granted the Wireless Defendants’ motion

to dismiss Count I, which sought declaratory relief pursuant to

Mass. Gen. Laws ch. 231A, § 1, holding: “To the extent that

Miller seeks to use Count I to challenge the ZBA’s December

Decision, which he did not appeal, the claim must be dismissed.”

Docket No. 39-6 at 4. On January 11, 2018, the superior court

also allowed the Defendants’ motion to dismiss Count II for lack

of standing. The Court held Miller was not a “person aggrieved”

under Mass. Gen. Laws ch. 40A, § 17 and thus lacked standing to

challenge the issuance of the special permit. Docket No. 45-1 at

2.

In the land court case, the Court granted judgment on the

pleadings for the City based on preclusion from the judgment of

the superior court. The land court also held that an appeal

under Mass. Gen. Laws ch. 40A, § 17 was the exclusive remedy

available to Miller. Miller filed notices of appeal from both

judgments.

E. Withdrawal of Intent to Build

On July 10, 2018, the Wireless Defendants sent a letter to

the City stating their intent not to pursue construction of the

cell tower on the Fryklund Property. The letter stated in part:

The [Wireless Defendants] hereby surrender all rights

and interests under the special permit . . . .

Accordingly, the [Wireless Defendants] will not be

constructing, operating, or maintaining the proposed

[cell tower] at [the Fryklund Property] as authorized

by the special permit. However, the [Wireless

Defendants] reserve the right to seek authorization

for a [cell tower] at that same (or any other

Gloucester) location in accordance with the provisions

of the now applicable Zoning By-Law.

Docket No. 39-7 at 2. Due to the letter, Miller voluntarily

withdrew his appeals in both cases “on the basis of mootness.”

FAC ¶ 28. Miller subsequently filed his initial complaint in

this case on August 7, 2018 (Docket No. 1).

LEGAL STANDARD

In analyzing whether a complaint states a claim sufficient

under Federal Rule of Civil Procedure 12(b)(6), a court must set

aside any statements that are merely conclusory and examine only

the pleader's factual allegations. See Ashcroft v. Iqbal, 556

U.S. 662, 679 (2009). “When there are well-pleaded factual

allegations, a court should assume their veracity and then

determine whether they plausibly give rise to an entitlement to

relief.” Id. “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Id. at 678.

In addition to the complaint, a court may consider

“documents the authenticity of which are not disputed by the

parties,” “official public records,” “documents central to the

plaintiff’s claim” and “documents sufficiently referred to in

the complaint” on a motion to dismiss. Newman v. Lehman Bros.

Holdings Inc., 901 F.3d 19, 25 (1st Cir. 2018) (quoting

Freeman v. Town of Hudson, 714 F.3d 29, 36 (1st Cir. 2013)).

Defendants ask the Court to consider the emails sent to Miller

in the fall of 2014 alerting him to the Wireless Defendants’

petition for a variance and the various ZBA hearings on the

issue. Although Miller did not attach the emails to the

complaint, the Court considers their contents because the

parties do not dispute the authenticity of the emails.3

3 Defendants submitted these emails in support of their Rule 11 motion for

sanctions against the Plaintiff. At the hearing, Miller readily agreed to

have the Court consider the emails and did not dispute that he received,

read, and sent them:

THE COURT: Can I consider the emails in resolving this?

MR. MILLER: I have no problem with you looking at the emails. I read

the emails. I conceded that I read the emails. The emails give me no

knowledge of what was being sought. The emails say the ZBA doesn't

DISCUSSION

I. Count I: 42 U.S.C. § 1983

Miller complains that the failure to receive notice was a

violation of his right to procedural due process under the

Constitution and 42 U.S.C. § 1983.4 For four separate reasons,

Miller’s § 1983 claim is dismissed against the City and the

Wireless Defendants.

A. Protected Property Interest

Miller asserts that even though he is not listed in the

abutters report, he is a “party in interest” and was thus

deprived of statutory notice under Mass. Gen. Laws ch. 40A,

§ 11. FAC ¶¶ 16-17. Miller further alleges that the Defendants’

failure to send him statutory notice deprived him of the

opportunity to be heard at the ZBA hearings, and then deprived

him of the opportunity to appeal the ZBA’s decision.

To state a claim under 42 U.S.C. § 1983, the plaintiff must

establish that he was “deprived of a right secured by the

Constitution or laws of the United States, and that the alleged

think this is their issue. Read the emails. They're going to kick the

can to the City Council. I knew by reading the statute that that's

where it had to be.

Docket No. 71 at 43:23-44:5.

4 Defendants also move to dismiss any substantive due process claim. See

Docket No. 45 at 11. Miller asserts a procedural due process claim in his

First Amended Verified Complaint and in his opposition to the motion to

dismiss. To the extent Miller seeks to assert any substantive due process

claim, it is waived.

deprivation was committed under color of state law.” Am. Mfrs.

Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999). “The first

step in seeking relief from a deprivation of property without

due process . . . is a legally plausible allegation of a

protected property interest recognized under state law.” Caesars

Mass. Mgmt. Co. v. Crosby, 778 F.3d 327, 332 (1st Cir. 2015)

(quotation omitted).

Miller cannot sustain a § 1983 claim based on a deprivation

of a state-created procedural right. See Town of Castle Rock v.

Gonzales, 545 U.S. 748, 772 (2005) (Souter, J., concurring)

(“[I]n every instance of property recognized by this Court as

calling for federal procedural protection, the property has been

distinguishable from the procedural obligations imposed on state

officials to protect it.”); Olim v. Wakinekona, 461 U.S. 238,

250 (1983) (explaining that “[p]rocess is not an end in itself,”

and that “[i]ts constitutional purpose is to protect a

substantive interest to which the individual has a legitimate

claim of entitlement”). Instead, “[t]he categories of substance

and procedure are distinct . . . . ‘Property’ cannot be defined

by the procedures provided for its deprivation.” Town of Castle

Rock, 545 U.S. at 771 (Souter, J., concurring) (alterations in

original) (quoting Cleveland Bd. of Educ. v. Loudermill, 470

U.S. 532, 541 (1985)). Notice and an opportunity to be heard are

procedural protections for the deprivation of property rights.

Thus, even if Miller were legally entitled to statutory notice

as a “party in interest,” he has not alleged a cognizable due

process violation simply because he failed to receive notice

without also alleging a deprivation of property.

B. Actual Notice

Even if Miller has a protected property interest,5 his due

process claim is barred because he had actual notice of the ZBA

hearings and notice that the ZBA was planning to render a

decision. See Gonzalez-Gonzalez v. United States, 257 F.3d 31,

36 (1st Cir. 2001) (“If, say, an interested party has actual

knowledge of ongoing . . . proceedings from other sources,

inadequacies in the notice afforded by the government will not

work a deprivation of due process.”).

Miller had actual notice that the hearings were occurring,

and notice that the ZBA would issue a decision with legal

significance. In the First Amended Verified Complaint, Plaintiff

alleges that “without [his] knowledge, the [Wireless Defendants]

successfully obtained a variance from the ZBA.” Docket No. 39 at

5 To the extent Miller claims he was a “person aggrieved” by the City

Council’s decision to issue a special permit, he is estopped by the judgment

of the Massachusetts Superior Court. See In re Sonus Networks, Inc, S'holder

Derivative Litig., 499 F.3d 47, 56 (1st Cir. 2007) (“Under the full faith and

credit statute, 28 U.S.C. § 1738, a judgment rendered in a state court is

entitled to the same preclusive effect in federal court as it would be given

within the state in which it was rendered.”). The court held that he was not

a “person aggrieved,” i.e., someone with standing to challenge a zoning

decision, because neither the visual impact of the proposed tower nor the

resulting diminishment in the value of Miller’s property were property

interests protected by the relevant bylaw. See Docket No. 45-1 at 8-11.

3. He also states that he had “had no actual knowledge that the

ZBA had rendered a decision with legal significance.” Id. ¶ 18.

The emails demonstrate that these allegations are not plausible.

The emails between Klem, other neighbors, and Miller, clearly

indicate Miller knew in the fall of 2014 that the ZBA was

holding hearings concerning the Wireless Defendants’ petition

for a variance. Additionally, Miller knew about the purpose of

the ZBA’s December 18, 2014 meeting because Klem informed him

that the “meeting will deal with technicalities of moving the

decision to the City Council.” Docket No. 51-2 at 67.

Miller admitted before this Court that he knew he was not

receiving statutory notice well before the ZBA issued its final

decision. Miller stated that after receiving an email from Klem:

“I called my friend and I said, ‘Do I have a notice in the

mailbox?’ No notice. Okay, I said, ‘Okay, I guess I'm not an

abutter because maybe there are two deeded parcels.’” Docket No.

71 at 41:20-23. Miller cannot now claim to be deprived of any

opportunity to be heard or to appeal the decision when he admits

he voluntarily chose not to go to any of the meetings and did

not make an effort to read the final, publicly docketed

decision. See Commonwealth v. Olivo, 337 N.E.2d 904, 909 (Mass.

1975) (“A party may not shut his eyes to the means of knowledge

which he knows are at hand, and thereby escape the consequences

which would flow from the notice of it had actually been

received.” (quotation omitted)).

C. Statute of Limitations

Miller’s § 1983 claim is also untimely. For § 1983 claims,

the Court ordinarily borrows the forum state’s limitation period

governing personal injury. Nieves v. McSweeney, 241 F.3d 46, 51

(1st Cir. 2001). “Massachusetts prescribes a three-year statute

of limitations for personal injury actions.” Id.(citing Mass.

Gen. Laws ch. 260, § 2A). Federal law determines the date on

which the cause of action accrued. See Marrero-Gutierrez v.

Molina, 491 F.3d 1, 5 (1st Cir. 2007). “The accrual period in a

section 1983 case ordinarily starts when the plaintiff knows, or

has reason to know, of the injury on which the action is based.”

Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 353 (1st Cir.

1992).

Miller’s entire complaint focuses on Wireless Defendants’

failure to give him notice of the ZBA’s hearings and decision.

The ZBA issued its decision on December 18, 2014. It was

docketed with the City Clerk on January 12, 2015. The Wireless

Defendants filed an application with the City Council seeking a

special permit, which was premised on the variance from the ZBA,

on March 4, 2015. Miller knew about the application because he

spoke at one of the City Council meetings in the early spring of

2015. He would have at least been on inquiry notice then to

determine the content of the ZBA’s decision. Miller filed this

suit on August 7, 2018, more than three years after he knew or

had reason to know of any injury arising from the failure to get

notice of the ZBA proceedings.

D. Color of State Law

Miller argues that the Wireless Defendants’ actions are

attributable to the state under the test articulated in Perkins

v. Londonderry Basketball Club, 196 F. 3d 13 (1st Cir. 1999).

However, the complaint is devoid of any facts to support

Miller’s allegation that the Wireless Defendants, “with the

assistance of the City, consciously concocted a scheme” to

deprive him of legal notice of the zoning petition. FAC ¶ 42;

see also FAC ¶ 34. “Conclusory statements” and “generalized

allegations of conspiracy” are not enough to make out a specific

claim. Glaros v. Perse, 628 F.2d 679, 685 (1st Cir. 1980); see

also Elena v. Municipality of San Juan, 677 F.3d 1, 6 (1st Cir.

2012) (affirming the dismissal of claims brought under 42 U.S.C.

§ 1983 when plaintiffs only claimed private defendants “jointly

and concertedly” worked with municipal defendants to violate

their rights without specific factual allegations to support

such a conclusory claim). Miller’s conclusory allegations of a

scheme between the Wireless Defendants and City cannot stand.

Additionally, Miller has not alleged that in seeking a variance

from the ZBA and a special permit from the City Council, the

Wireless Defendants were in any way “exercising power possessed

by virtue of state law.” Polk County v. Dodson, 454 U.S. 312,

317–18 (1981) (quotation omitted).

II. Count II: Mass. Gen. Laws ch. 93A

Miller also alleges that the Wireless Defendants engaged in

unfair and deceptive business practices in violation of Mass.

Gen. Laws ch. 93A, §§ 2 and 9. This claim is dismissed under

Federal Rule of Civil Procedure 12(b)(6) because chapter 93A

only applies to conduct that occurs in the course of trade or

commerce. Additionally, the Court allows the Wireless

Defendants’ special motion to dismiss under Massachusetts’s

anti-SLAPP statute because the claim is based exclusively on the

Wireless Defendants’ protected petitioning activities.

A. Trade or Commerce

It is well established that although chapter 93A “provides

a broad remedy, it is only directed at conduct that occurs in

the course of trade or commerce. ‘[U]nfair or deceptive acts or

practices’ therefore can only form the basis of a ch. 93A claim

if those acts ‘are perpetrated in a business context.’” St.

Paul Fire & Marine Ins. Co. v. Ellis & Ellis, 262 F.3d 53, 66

(1st Cir. 2001) (quoting Lantner v. Carson, 373 N.E.2d 973, 977

(Mass. 1978)). Miller argues that the statutory requirement

under chapter 40A, § 11 to provide notice to parties in interest

“created a direct transactional relationship” between the

Wireless Defendants and Miller. Docket No. 55 at 16. Even if

Miller is a party in interest, he cites no case law to support

the proposition that the requirement to provide statutory notice

creates a transactional relationship in the business context.

Miller is correct that chapter 93A does not require contractual

privity. “Nonetheless, some business, commercial, or

transactional relationship is required even for a claim brought

under section 9. Absent any such relationship, [Plaintiff’s]

chapter 93A claim is frivolous.” Steinmetz v. Coyle & Caron,

Inc., 862 F.3d 128, 131, 141 (1st Cir. 2017) (citation omitted)

(affirming the district court’s dismissal of a chapter 93A claim

where landowners brought claim against landscape design firm

retained by neighborhood association formed to oppose

landowners’ proposed construction of a new home). Therefore,

Count II is dismissed because the alleged conduct of petitioning

for a variance or special permit did not occur during “trade” or

“commerce.”

B. Anti-SLAPP

Massachusetts’s anti-SLAPP statute6 provides that “[i]n any

case in which a party asserts that the [claims] against said

party are based on said party’s exercise of its right of

petition under the constitution of the United States or of the

6 SLAPP stands for “Strategic Lawsuit Against Public Participation.” See

Duracraft Corp. v. Holmes Prods. Corp., 691 N.E.2d 935, 939 n.7 (Mass. 1998).

commonwealth, said party may bring a special motion to dismiss.”

Mass. Gen. Laws ch. 231, § 59H. While the statute is said to

provide a “procedural” remedy, it is arguably “substantive”

state law and may be applied to state law claims filed in

federal court. See Godin v. Schencks, 629 F.3d 79, 89-92 (1st

Cir. 2010).

The anti-SLAPP analysis uses a multi-step burden-shifting

framework. First, the “special movant must demonstrate that the

nonmoving party’s claims are solely based on its own petitioning

activities.” Blanchard v. Steward Carney Hosp., Inc., 75 N.E.3d

21, 38 (Mass. 2017). Second, the burden shifts, and the

nonmoving party must show “that the special movant’s petitioning

activities upon which the challenged claim is based lack a

reasonable basis in fact or law, i.e., constitute sham

petitioning, and that the petitioning activities at issue caused

it injury.” Id. Third, the “nonmoving party [must show] that its

own claim - the one being challenged by the special motion - is

itself colorable . . . . If the nonmoving party’s claim is not

colorable, then the special motion must be granted.” Steinmetz,

862 F.3d at 135–36 (quotation and citation omitted). “Fourth,

and finally, [the court] ask[s] whether the nonmoving party has

demonstrate[ed] that each challenged claim was not primarily

brought to chill the special movant’s legitimate petitioning

activities. If the answer to this question is yes, then the

special motion fails. If the answer to this question is no, then

the special motion succeeds.” Id. at 136 (cleaned up).

First, the Wireless Defendants’ petition for a variance and

application for a special permit fall squarely within the

statute’s conception of legitimate petitioning activity.7

“Petitioning includes all statements made to influence, inform,

or at the very least, reach governmental bodies — either

directly or indirectly.” N. Am. Expositions Co. v. Corcoran, 898

N.E.2d 831, 841 (Mass. 2009) (quotation omitted). Second, Miller

has not shown that these petitioning activities constituted a

sham. Miller argues that the petition was a sham not grounded in

law because the Wireless Defendants provided an incomplete list

of “parties in interest.” However, the City’s tax assessor

provided the list of abutters, and there is no plausible

allegation that the Wireless Defendants knew that the list was

incorrect.

Third, Miller’s 93A claim, as discussed above, is without

merit. Based on the history of litigation between the parties,

the statement of the Wireless Defendants that they reserve the

right to re-petition the City, and the frivolous nature of this

7 Plaintiff requests that this Court take judicial notice of a recent

Massachusetts Appeals Court case, Citizens Insurance Company of America v.

290 Auto Body, Inc., No. 18-P-488, 2019 WL 2565358 (Mass. App. Ct. June 21,

2019). The case is inapposite since the claim at issue there was for tortious

interference “not based on any statement or communicative conduct by [the

movant] designed to influence, inform, or even reach a government body,” but

instead was “based on a private interaction involving alleged unruly

assaultive behavior.” Id. at *3.

suit, the Court concludes with “fair assurance” that the purpose

of the suit is to chill the Wireless Defendants’ right to re-

petition the City of Gloucester to build a cell tower.

Blanchard, 75 N.E.3d at 38. Therefore, Wireless Defendants’

special motion to dismiss is granted.

III. Defendants’ Motion for Sanctions

Defendants move pursuant to Federal Rule of Civil Procedure

11 to sanction Plaintiff for alleging in his First Amended

Verified Complaint that he did not have actual knowledge of the

ZBA’s hearings or decision on the Wireless Defendants’ petition

for a variance. See Docket No. 51. Rule 11(b) states that “by

signing, filing, submitting or later advocating” a pleading, a

party represents that “the factual contentions have evidentiary

support.” Fed. R. Civ. P. 11(b)(3). “Rule 11(b) is not a strict

liability provision and a showing of at least culpable

careless[ness] is required before a violation of the Rule can be

found.” Citibank Glob. Mkts., Inc. v. Rodríguez Santana, 573

F.3d 17, 32 (1st Cir. 2009) (alteration in original) (quotation

and citation omitted).

Defendants point to six statements in the complaint that

they claim are demonstrably false based on the email exchanges

between Miller and Klem: (1) that Defendants “deprived [Miller]

of an opportunity to be heard”; (2) that “without Miller’s

knowledge, the [Wireless Defendants] successfully obtained a

variance from the ZBA”; (3) that Miller “received no notice of

the ZBA Application, the relief sought by the [Wireless

Defendants] or of the decision of the ZBA on December 18, 2014,

granting a variance to the [Wireless Defendants]”; (4) that

“[w]ithout such required notice, Miller had no actual knowledge

that the ZBA had rendered a decision with legal significance,

and was not in a position to timely file an appeal of the

decision under G.L. c. 40A, § 17”; (5) that “Miller was deprived

of notice of the ZBA’s actions, and his right to timely appeal

from the ZBA’s decision”; and (6) that “[t]he conduct of the

Defendants had the . . . effect of depriving Miller of his

opportunity to be heard before the ZBA and to seek judicial

review of the erroneous decisions of the ZBA.” Docket No. 51-1

at 1, 3, 7, and 11.

This Court has already noted that some of Miller’s

allegations with regards to notice are implausible given the

email exchanges. Examination of the record shows that Miller was

copied on numerous emails between October 6, 2014 and December

11, 2014, in which opponents of the proposed tower discussed, in

detail, the ZBA hearing schedule for the proposed tower. See

Docket No. 51-2 (Def. Ex. B).

In response, Miller “denies that the string of emails,

which he previously produced in discovery in related state court

actions, . . . in any way renders the averments in the [First

Amended Verified Complaint] untrue.” Docket No. 57. Miller does

not deny that the emails alerted him to the existence of the

petition or hearings for the proposed cell tower. See Docket No.

55-1 ¶¶ 8, 12-15. Rather, he states in his affidavit that,

“[r]elying on [Klem’s emails], and various conflicts, [he] did

not attend the next ZBA meeting, or any subsequent meetings,

including the final hearing,” and that the emails never

discussed “the true purpose of the Application, or the substance

of the [d]ecision.” Id. ¶¶ 15-16. Miller further asserts that

“the record before the Court is devoid of any constructive or

actual notice to [him] of (a) what was before the ZBA for

consideration regarding the proposed cell tower and/or (b) the

substance of the ZBA’s [d]ecision during any relevant appeal

period.” Id. ¶ 17.

This argument is head-spinning. The emails clearly show

that Miller had actual notice that the ZBA was holding hearings

on the Wireless Defendants’ application and that it would likely

be issuing an opinion to transfer the ultimate decision to the

City Council. Miller’s allegations that he lacked actual notice

and was therefore deprived of the opportunity to be heard are

unsupported by the evidence.

In this case, Attorney Keith L. Miller is representing

himself as trustee of the MRFS Living Trust.8 He verified that

the statements contained in the complaint were true and accurate

to the best of his knowledge. See Docket No. 39 at 14. They were

not. Therefore, the Court allows Defendants’ motion to impose

sanctions on Attorney Keith L. Miller for statements made in the

First Amended Verified Complaint and subsequent affidavit. The

Court awards Defendants reasonable attorney’s fees for pressing

this motion.

ORDER

The Court ALLOWS both motions to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6) (Docket Nos. 44 and 48)

and ALLOWS Wireless Defendants’ special motion to dismiss

pursuant to Massachusetts’s anti-SLAPP statute (Docket No. 48).

The Court also ALLOWS Defendants’ motion for Rule 11 sanctions

(Docket No. 51).

SO ORDERED.

/s/ PATTI B. SARIS

Hon. Patti B. Saris

Chief United States District Judge

8 A litigant's pro se status may be considered when determining whether to

impose Rule 11 sanctions. See Fed. R. Civ. P. 11 advisory committee’s note to

1983 amendment (“[T]he court has sufficient discretion to take account of the

special circumstances that often arise in pro se situations.”). However,

Local Rule 83.5.5(c) does not allow a trust to appear pro se, although a

trustee may appear on behalf of the entity as long as the individual is also

an attorney who is otherwise permitted to practice in this court. Therefore,

Miller, as both a trustee and an attorney permitted to practice in the United

States District Court for the District of Massachusetts, is not considered to

be appearing pro se.