Markham v. Town of Chelmsford

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

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DAVID MARKHAM et al., )

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Plaintiffs, )

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v. )

) Civil Action No. 19-10018-DJC

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TOWN OF CHELMSFORD et al., )

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Defendants. )

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__________________________________________)

MEMORANDUM AND ORDER

CASPER, J. August 26, 2019

I. Introduction

Defendants Town of Chelmsford (“Chelmsford”), the Town of Chelmsford Board of

Selectmen, Emily Antul, Paul Cohen, Glenn Diggs, George Dixon, Jr., Kenneth Lefebvre and

Patricia Wojitas (“Defendants”) seek dismissal of Plaintiffs David Markham, the Sewer Fairness

Alliance of Chelmsford and the Sewer Fairness Alliance of Chelmsford, Inc.’s (“Plaintiffs”)

complaint, D. 1-2, which alleges that Defendants violated Plaintiffs’ due process rights under both

the Massachusetts Declaration of Rights and the United States Constitution. D. 5. Defendants

have also moved to strike the affidavit of David Foley (the “Foley Affidavit”), D. 10, which

Plaintiffs included as an exhibit to their opposition, D. 10. For the reasons set forth below, the

Court ALLOWS the motion to strike, D. 10, but DENIES the motion to dismiss, D. 5.

II. Standard of Review

On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant

to Fed. R. Civ. P. 12(b)(6), the Court must determine if the facts alleged “plausibly narrate a claim

for relief.” Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (internal

citation omitted). Reading the complaint “as a whole,” the Court must conduct a two-step, context-

specific inquiry. García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013). First, the

Court must perform a close reading of the claim to distinguish the factual allegations from the

conclusory legal allegations contained therein. Id. Factual allegations must be accepted as true,

while conclusory legal conclusions are not entitled credit. Id. Second, the Court must determine

whether the factual allegations present a “reasonable inference that the defendant is liable for the

conduct alleged.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011). In sum, the complaint

must provide sufficient factual allegations for the Court to find the claim “plausible on its face.”

García-Catalán, 734 F.3d at 103. “In determining whether a [pleading] crosses the plausibility

threshold, the reviewing court [must] draw on its judicial experience and common sense.” García-

Catalán, 734 F.3d at 103 (internal quotation marks and citations omitted). “This context-specific

inquiry does not demand a high degree of factual specificity.” Id. (internal quotation marks and

citations omitted).

When reviewing a motion pursuant to Fed. R. Civ. P. 12(b)(6), the Court “may properly

consider only facts and documents that are part of or incorporated into the complaint; if matters

outside the pleadings are considered, the motion must be decided under the more stringent

standards applicable to a Rule 56 motion for summary judgment.” Trans-Spec Truck Serv. Inc. v.

Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008); see also Fed. R. Civ. P. 12(d). The Court may

make exceptions for “documents the authenticity of which are not disputed by the parties; for

official public records; for documents central to plaintiffs' claim; or for documents sufficiently

referred to in the complaint.” Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33

(1st Cir. 2001) (quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)). If the documents do

not fall within this narrow class of exceptions, and the Court nevertheless considers them in

deciding the motion, the parties “must be given a reasonable opportunity to present all the material

that is pertinent to the motion,” and the motion “must be treated as one for summary judgment

under Rule 56.” Fed. R. Civ. P. 12(d). If the Court declines to convert the motion, the Court may

strike the additional documents. See, e.g., Penney v. Deutsche Bank Nat'l Tr. Co., No. 16-CV-

10482-ADB, 2017 WL 1015002, at *3 (D. Mass. Mar. 15, 2017).

III. Factual Allegations

This summary is based upon the allegations in the complaint, D. 1-2, which the Court must

accept as true for the purposes of resolving this motion to dismiss.

Plaintiffs David and Jill Markham are residents of Chelmsford and members of Plaintiff

Sewer Fairness Alliance of Chelmsford. D. 1-2 at ¶ 3. The Sewer Fairness Alliance of Chelmsford

is an unincorporated organization of over three hundred households in Chelmsford, most of which

use grinder pumps provided by the Town of Chelmsford. Id. at ¶ 4. Plaintiff Sewer Fairness

Alliance of Chelmsford, Inc. is a 501(c)(3) organization with a mission to advocate on behalf of

homeowners with grinder pumps. Id. at ¶ 5. Defendants are Chelmsford, the Town of Chelmsford

Board of Selectmen, and all of the current Selectmen, in their official capacities. Id. at ¶¶ 12-13.

The instant dispute arises out of Chelmsford’s provision of a sewage grinder pump to the

Markhams and subsequent repair costs for the pump. See id. at ¶ 6. The Markhams’ pump

experienced a failure on September 11, 2016 during a power outage. Id. at ¶¶ 28-38. In July 2017,

the Markhams received a bill for repair of the grinder pump resulting from that power failure from

the Town along with notification that the Chelmsford would not cover the costs of the repair. Id.

at ¶¶ 47-48. The Markhams then sought review of the repair charges by reaching out to town

administrators for a meeting. Id. at ¶¶ 53-54. In December 2017 and January 2018, Sewer Fairness

Alliance of the Town of Chelmsford, Inc., through its president, David Foley, investigated the

September 11, 2016 grinder pump failure and prepared a report stating that the failure could have

been due to the power outage and there was no negligence by the Markhams in their operation of

same. Id. at ¶ 56. Following further outreach by Foley, town officials held a hearing to discuss

the repair charge for the Markhams’ grinder pump. Id. at ¶ 57. Foley presented the results of his

investigation at the hearing. Id. On February 28, 2018, the Department of Public Works notified

the Markhams that they continued to find them responsible for the grinder pump failure, but were

willing to reduce the amount of the repair charge from $1065 to $640. Id. at ¶ 58. Following the

hearing results, Foley spoke on behalf of the Markhams at a March 12, 2018 Selectmen meeting

and sent his remarks to one Selectman who was not present for the meeting. Id. at ¶¶ 60-61. Foley

continued to advocate on behalf of the Markhams through outreach to the community via letter in

the Lowell Sun, emails to the Board of Selectmen, the Town Manager and the Director of Public

Works. Id. at ¶¶ 62-70. When Foley received responses, town officials informed him that the

Markhams had either received an appropriate hearing or had failed to pursue additional options to

be heard. Id.

IV. Procedural History

Plaintiffs brought this action in Middlesex Superior Court on December 4, 2018. D. 1-2.

Defendants removed the action to this Court on January 3, 2019. D. 1. Defendants have now

moved to dismiss both claims, for violation of procedure due process under the Massachusetts

Declaration of Rights and under the U.S. Constitution, under Fed. R. Civ. P. 12(b)(6). D. 5.

Defendants also have moved to strike an affidavit by Foley attached to Plaintiffs’ opposition to the

motion to dismiss. D. 11. The Court heard oral argument on the motions and took the matters

under advisement. D. 17.

V. Discussion

A. Standing of the Sewer Fairness Alliance Plaintiffs

As an initial matter, the Court addresses the Defendants’ standing argument as to the Sewer

Fairness Alliance of Chelmsford and the Sewer Fairness Alliance of Chelmsford, Inc. D. 6 at 10-

11. As alleged, the two entities are distinct where the Sewer Fairness Alliance is an

“unincorporated organization of over three hundred households in Chelmsford, most of which have

been forced to have grinder pumps by the Town of Chelmsford” and Sewer Fairness Alliance of

Chelmsford, Inc. is an “an incorporated organization.” D. 1-2 at 3. Both entities share similar

missions of education and advocacy concerning grinder pumps and homeowners who have grinder

pumps. Id. Plaintiffs point to Hunt v. Washington State Apple Advert. Comm'n, 432 U.S. 333

(1977), for the principle of “associational standing” whereby “an association may have standing

solely as the representative of its members.” Id. (citing Warth v. Seldin, 422 U.S. 490, 511

(1975)). To establish associational standing:

[t]he association must allege that its members, or any one of them, are suffering

immediate or threatened injury as a result of the challenged action of the sort that

would make out a justiciable case had the members themselves brought suit. . . . So

long as this can be established, and so long as the nature of the claim and of the

relief sought does not make the individual participation of each injured party

indispensable to proper resolution of the cause, the association may be an

appropriate representative of its members, entitled to invoke the court's jurisdiction.

Warth, 422 U.S. at 511. The Hunt Court extended the associational standing doctrine to an

organization that “for all practical purposes, performs the functions of a traditional trade

association.” Hunt, 432 U.S. at 344. Here, the Sewer Fairness Alliance of Chelmsford is alleging

injury both real and threatened on behalf of its members which include the Markhams. D. 1-2 ¶¶

3-4. Sewer Fairness Alliance of Chelmsford, Inc., while not alleged to have traditional “members,”

see id. ¶ 5, still seems to “perform[] the functions of a traditional trade association” by advocating

for homeowners with grinder pumps and developing plans to improve their lives. Id. Given these

allegations and the nature of the claims asserted by Plaintiffs the Markhams, the Court concludes

that both entities have standing here at least as to the claims asserted by the Markhams and will

proceed to address the Defendants’ other grounds for dismissal.

B. Motion to Strike

Before turning to the other grounds for dismissal, the Court ALLOWS Defendants’ motion

to strike the Foley Affidavit, D. 11, given the nature of the Defendants’ motion. Plaintiffs urge

the Court to view the Foley Affidavit as falling within one of the narrow exceptions to the rule

limiting review to the ‘four corners’ of the complaint for a challenge under Fed. R. Civ. P. 12(b)(6),

but their arguments are unavailing. Unlike the circumstances in the cases upon which Plaintiffs

rely, D. 12 at 1-2, the Foley Affidavit is neither referenced in the complaint nor is a document the

authenticity of which the parties do not dispute, an official public records or document central to

Plaintiffs' claims. See Alt. Energy, Inc., 267 F.3d at 33. Instead, the Foley Affidavit, as Plaintiffs

appear to acknowledge, is not such a document, but attestations contested by Defendants, that

instead “explains the contents of the [c]omplaint and the exhibits attached to the [c]omplaint.” D.

12 at 2. Since the Foley Affidavit “touches on many of the allegations from the Complaint and

effectively functions as an amendment to the Complaint,” see Penney, 2017 WL 1015002, at *3,

it is not appropriate to consider in resolution of the Defendant’s motion to dismiss under Rule

12(b)(6). Moreover, given Defendants’ objection to consideration of this contested affidavit and

the current posture of this case, the Court declines to convert Defendants’ pending motion to a

motion for summary judgment pursuant to Fed. R. Civ. P. 12(d); see Gulf Coast Bank & Tr. Co.

v. Reder, 355 F.3d 35, 38 (1st Cir. 2004). Accordingly, the Court ALLOWS the motion to strike

the Foley Affidavit, and the Court has not considered it in deciding the pending motion to dismiss.

C. Motion to Dismiss

1. Procedural Due Process Claims

a) Direct Claim Under the Massachusetts Declaration of Rights

Plaintiffs’ first cause of action is for a violation of their procedural due process rights under

the Massachusetts Declaration of Rights. D. 1-2 at 5. As an initial matter, Defendants contend

that there is no private right of action exists under the state constitution and so the claim must be

converted to one under the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, §§ 11H &

11I (“MCRA”), which, according to Defendants, must also fail. D. 6 at 3-6. Plaintiffs counter

that a private cause of action, at least for injunctive or declaratory relief, does exist under the

Massachusetts Declaration of Rights. D. 10 at 3-6.

Defendants’ position has some recent support where at least one court in this district has

concluded that it would not recognize a direct state constitutional claim because “[n]o

Massachusetts appellate court . . . has ever held that such a right exists” and “[i]t is up to the courts

of Massachusetts, not this Court, to make that choice.” See Pimentel v. City of Methuen, 323 F.

Supp. 3d 255, 274 (D. Mass. 2018) (reciting history of decisions addressing direct claims under

the Declaration of Rights); but see Podgurski v. Dep't of Correction, No. CIV.A. 13-11751-DJC,

2014 WL 4772218, at *7 (D. Mass. Sept. 23, 2014) (noting “as a general proposition, a cause of

action can, in certain circumstances, be brought directly under the Massachusetts Declaration of

Rights in the absence of a statutory vehicle for obtaining relief”) (citing Parsons ex rel. Parsons v.

Town of Tewksbury, No. 091595, 2010 WL 1544470, at *4 (Mass. Super. Jan. 19, 2010)). Even

more recently, however, a Massachusetts appellate court has recognized a direct claim for

declaratory or injunctive relief under the Declaration of Rights. Doe v. Sex Offender Registry Bd.,

94 Mass. App. Ct. 52, 64 (2018) (citing Lane v. Commonwealth, 401 Mass. 549, 552 (1988) and

distinguishing direct constitutional claim for declaratory or injunctive relief from a claim for

damages that would have to be made under the MCRA). Accordingly, to the extent that Plaintiffs

seek declaratory or injunctive relief for their state constitutional claim,1 the Court shall not dismiss

it on the grounds that they have failed to make a showing for a MCRA claim.

b) Addressing the Federal and State Procedural Due Process Claim

Other than that a federal due process claim must be asserted under 42 U.S.C. § 1983, Doe,

94 Mass. App. Ct at 64, the standard for asserting a procedural due process claim under state or

federal law is the same: Plaintiffs must allege that they were deprived of a constitutional property

or liberty interest without due process of law. Coyne v. City of Somerville, 972 F.2d 440, 443 (1st

Cir. 1992); Leger v. Comm'r of Revenue, 421 Mass. 168, 172 (1995) (noting that procedural due

process requirements are “substantially the same” under Massachusetts and federal law). “‘The

fundamental requisite of due process is an opportunity to be heard at a meaningful time and in a

meaningful manner.’” Christensen v. Kingston Sch. Comm., 360 F. Supp. 2d 212, 222 (D. Mass.

2005) (quoting Matter of Kenney, 399 Mass. 431, 435 (1987)). “It is well established that in every

case where a protected property interest is at stake, the Constitution requires, at a minimum, some

kind of notice and some kind of opportunity to be heard.” Clukey v. Town of Camden, 717 F.3d

52, 59 (1st Cir. 2013) (and cases cited).

Although it may well be that the Plaintiffs have received all of the process that was due

them, the Court cannot resolve that issue at this juncture since “[e]xactly what sort of notice and

1 Plaintiffs’ complaint, D. 1-2, requests compensation for grinder pump charges levied

against Plaintiffs and other homeowners, but in subsequent filings, Plaintiffs have clarified that

they are only seeking declaratory and injunctive relief. D. 10 at 5.

what sort of hearing the Constitution requires . . . vary with the particulars of the case,” Clukey,

717 F.3d at 59. The Markhams, along with Sewer Fairness Alliance, Inc. President David Foley,

appealed the repair charge for the grinder pump and received a hearing in front of the town Sewer

Superintendent, the Assistant Director of the Department of Public Works and the Sewer Division

Departmental Assistant. D. 1-2 at 16. Following the results of that hearing, the Markhams and

Foley contacted and were heard by the town Board of Selectmen, the Town Manager, the Assistant

Town Manager and the Director of Public Works. Id. at 17-20. Even as alleged, it appears that

the Markhams were given notice of such hearing, but the contours of same in terms of witnesses

and evidence proffered and/or rejected are not clear. Plaintiffs also point out that the decisionmaker

in the hearing was the same entity levying the repair charge, which alone does not support their

claims, but, if accompanied by bias that served to undermine the integrity of the proceeding, may

lend credence to their claims. See Duhani v. Town of Grafton, 52 F. Supp. 3d 176, 182 (D. Mass.

2014) (applying summary judgment standard in finding that “[i]n order to establish that he was

deprived of his procedural due process right to a pre-termination hearing, a plaintiff must show

more than bias, he must show that the pre-termination hearing was meaningless because, for

instance, the outcome was pre-ordained, or the bias was so severe as to undermine the concerns

and goals of the hearing”). A determination of the adequacy of such process may be determined

best on a fuller record. Miley v. Hous. Auth. of City of, Bridgeport, 926 F. Supp. 2d 420, 431 (D.

Conn. 2013) (noting that “the question of whether [plaintiff] was afforded procedural due process

is a fact intensive inquiry best reserved for summary judgment or trial”).

Defendants also claim that Plaintiffs have failed to state a plausible procedural due process

claim since, whatever process was due was satisfied by a post-deprivation procedure available

under state law for abatement of the charges. That is, while exhaustion of state remedies is not

required for asserting a federal constitutional claim, Exeter-West Greenwich Regional School Dist.

V. Pontarelli, 788 F.2d 47, 52 (1st Cir. 1986) (citing Patsy v. Board of Regents of the State of

Florida, 457 U.S. 496, 501 (1982)), “the existence of state remedies is relevant” for determining

whether any pre-deprivation (or post-deprivation for those deprivations “occasioned by random

and unauthorized conduct by state officials”) process was sufficient. Zinermon v. Burch, 494 U.S.

113, 125-26 (1990) (emphasis in original); see Leger v. Commissioner of Revenue, 421 Mass. 168,

174 (1995) (concluding under state law that plaintiff’s due process rights regarding assessed taxes

“can be satisfied by post-deprivation proceedings”). Here, Defendants cite to Plaintiffs’ failure to

pursue abatement of the repair charges under Mass. Gen. L. c. 59 § 59 for general tax abatement

or Mass. Gen. L. c. 83 § 16E through appeal to the appellate tax board as the statute permits. Id.;

see Tomaselli v. Beaulieu, 967 F. Supp. 2d 423, 435–36 (D. Mass. 2013) (noting that “[s]ewer

usage fees that remain unpaid become a lien on the property, and the refusal of a board of assessors

to issue an abatement is appealable to the Appellate Tax Board”). Although Plaintiffs may have

effectively sought an abatement from Chelmsford (and the town reduced the charge from $1065

to $640), D. 1-2 ¶ 58, it is not clear from the allegations that they sought (or could seek) such

abatement under Mass. Gen. L. c. 59 § 59 or c. 83 § 16E or, having not having received full relief,

appealed to the appellate tax board. Although it is correct, as Defendants point out, that “so long

as the government provides an adequate post-deprivation remedy, an individual claiming to have

been deprived of a constitutionally protected property interest cannot claim a violation of

procedural due process,” Slavas v. Town of Monroe, No. 16-CV-30034-KAR, 2017 WL 959575,

at *8 (D. Mass. Mar. 10, 2017), the Court cannot conclude at this juncture that even if such post-

deprivation process would be sufficient here, whether such remedy was available to the Markhams

for the grinder repair cost (which Plaintiffs contend it does not, D. 10 at 10).2

VI. Conclusion

For the reasons stated above, the Court ALLOWS Defendants’ motion to strike, D. 11, but

DENIES Defendant’s motion to dismiss, D. 5.

So Ordered.

/s/ Denise J. Casper

United States District Judge

2 Although the Court is aware of the Certificate of Vote attached as Exhibit A to

Defendants’ memorandum, D. 6-1, adopting Mass. Gen. L. c. 83, §§ 16A-16F, and even as the

Court can take judicial notice of this public record for the purposes of this motion, it is not clear

on the present record whether the nature of the repair charge falls under § 16A-16F and gives rise

to the availability of relief under § 16E.