Maroney v. Fiorentini

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

MICHAEL J. MARONEY, as TRUSTEE

OF PREMIERE REALTY TRUST and

MARONEY CONSTRUCTION

COMPANY INC., No. 16-CV-11575-DLC

Plaintiffs,

v.

JAMES J. FIORENTINI, and ROBERT

E. WARD,

Defendants.

ORDER ON DEFENDANTS’ MOTION FOR

JUDGMENT ON THE PLEADINGS

CABELL, U.S.M.J.

INTRODUCTION

This matter arises from a long-running dispute between

residential developer Michael Maroney and various individuals and

departments connected with the City of Haverhill (“the City”).1

Maroney needed certain permits to advance a subdivision project,

but the City refused to issue them. Frustrated, Maroney sued

several entities in state court, see Maroney v. City of Haverhill

Planning Bd., No. 1577-CV-001251 (Mass. Essex Sup. Ct. filed July

23, 2015), and then initiated the present action while the state

1 Maroney sues on behalf of the eponymously named Maroney Construction Company,

Inc., as well as in his capacity as the trustee of Premiere Realty Trust.

For ease, the court uses “Maroney” or “the plaintiff” to refer to these

entities.

court action was still pending.2 The state court action was

subsequently resolved on the merits in the defendants’ favor.

Defendant Fiorentini, who was not a defendant in the state matter,

and defendant Ward, who was, move for judgment on the pleadings on

the ground that res judicata bars the present claims because they

are similar to those raised in the state court matter. (D. 61).

For the reasons that follow the defendants’ motion will be ALLOWED

in part and DENIED in part.

I. BACKGROUND

A. The Parties and the Development

In or around 2009 Maroney purchased land in Haverhill to build

the Crystal Springs Cluster subdivision, a project that was to

include 50 residential lots on Back Nine Drive and Front Nine

Drive. (Amended Complaint, D. 51 ¶ 9). While subdivision approval

was pending, the City received a professional evaluation

indicating that the homes on Front Nine Drive would have inadequate

water pressure to satisfy city standards for home and fire flow.

(Id. ¶ 11). To address this problem, the plaintiff entered into

an agreement with the Haverhill Planning Board to construct and

install municipal ways and services, including a water booster

2 The defendants in the state court lawsuit were the City’s Planning Board;

William Pillsbury, the City’s Economic Development and Planning Director;

Robert E. Ward, the City’s Deputy Director of the Department of Public Works,

Waste/Wastewater Divisions; and Richard Osborne, the City’s Building

Inspector. The defendants in the federal matter presently include the City’s

Mayor (Fiorentini) and Ward, in their individual capacities.

station. In exchange, the Planning Board agreed to release lots

for construction as they became serviceable, i.e., when the

property was ready to receive utility services. (Id. ¶ 10).

The plaintiff completed the homes on Back Nine Drive, for

which he received all required permits. (Id. ¶17). The City Water

Department refused to issue him permits for Front Nine Drive,

however, because the water pressure and fire flow issues for that

part of the development had not been addressed. (Id. ¶19).

B. The State Court Action

In an effort to compel the City to issue the needed permits,

the plaintiff brought the state court action against the City’s

Planning Board and various departments.3 (D. 51, ¶ 22). The

complaint asserted claims for breach of contract, breach of the

duty of good faith and fair dealing, and misrepresentation, and

sought as relief damages, a declaratory judgment that the plaintiff

had satisfied all necessary permitting requirements, a writ of

mandamus compelling the City to issue the necessary permits, and

an injunction enjoining the City from refusing to issue the

permits. (Id.).

In response, City Building Inspector Richard Osborne

counterclaimed for violation of the Massachusetts Residential

3 The only person named in both the federal and state actions is Robert E.

Ward, the City’s Deputy Director of Public Works. In the state lawsuit,

however, he was named in his official capacity; here, he remains a defendant

in his individual capacity only.

Building Code and the City Zoning Law, and all defendants moved

for summary judgment on the plaintiff’s claims as well as Osborne’s

counterclaims. The plaintiff in turn filed a cross-motion for

summary judgment on Osborne’s counterclaims.

The state court denied the plaintiff’s motion and granted the

defendants’ motions in their entirety. See Memorandum of Decision

and Order (Feb. 12, 2018) (Memorandum). (D. 62-1). The state

court made the following findings of fact among others in so doing:

1. The City’s water reports determined in 2009 that certain

lots on Front Nine Drive would not be serviceable —i.e.,

ready to receive all utilities— because of inadequate water

pressure. Id. at 5-6.

2. Maroney initially proposed building a water booster station

to address the City’s water pressure concerns, and

Maroney’s engineer acknowledged the need for a water

booster station. Id. at 4.

3. Maroney agreed with the City that the booster station was

necessary to meet water pressure and hydrant flow

requirements. Id. at 17.

4. The City Planning Board’s approval of the subdivision plan

for the subdivision included documents from the Water

Department about the need for the water booster station.

Id. at 5.

5. In September of 2009, Maroney asked the City for permission

to build homes on Back Nine Drive (“Phase I”), which did

not need enhanced water pressure, before constructing the

water booster station. The Water Department and the

Planning Director agreed to this request so long as those

homes did not require water boosting. Id. at 6-7.

6. Maroney agreed to build the water booster station before

beginning construction of the homes on Front Nine Drive

(“Phase II”), but he never built the station. Id. at 19.

7. In May of 2013, Maroney submitted a water boosting station

plan to the Water Department, which made comments and

revisions. Thereafter, Maroney never submitted a water

boosting station design found acceptable by the City. Id.

at 12.

8. After completion of Phase I, Maroney began building Phase

II homes on lots the City had deemed unserviceable without

first having built the water booster station or obtained

permits. Id.

After rejecting Maroney’s contention that the subdivision

plan was a binding agreement that could not be altered by other

requirements, id. at 16-17, the state court found that even if it

accepted Maroney’s argument, his equitable claims would still fail

because he had not shown he was wrongfully denied any permits.

The court noted inter alia that it was undisputed that (1) the

parties agreed from an early point that a booster station was

necessary; (2) the booster station was included in the definitive

subdivision plan; (3) Maroney agreed he would construct the booster

station after completing Phase I; and (4) Maroney never constructed

a water booster station. The court stated that “[w]here Maroney

did not construct the booster station, as the definitive

subdivision plan required, the court fails to see how he can

legitimately claim the Haverhill Defendants failed to process

and/or issue permits to which he was entitled.” Id. at 17-18.

Maroney also argued that a water booster station was not

actually necessary to meet City water pressure requirements, but

the state court found this point irrelevant where the Planning

Board had found otherwise and had conditioned the plan’s approval

on Maroney’s agreement that a booster station was required. Id.

at 18.

The court also rejected Maroney’s contention that he had

until November 1, 2016 to build the water booster station, finding

instead that Maroney had agreed to build the station after

completing Phase I. The court also found that to the extent

Maroney sought permits to build on lots the City deemed

unserviceable, “the Department was free to deny those permits, no

matter the date, until the booster station was constructed.” Id.

at 18-19.

C. The Present Lawsuit

The amended complaint alleges that the City has refused to

sign off on a timetable to complete the water booster station,

even though the plaintiff has submitted a proposal for the water

booster station, laid water lines as a preliminary step, and

secured additional funding for the station construction. (D. 51

¶¶ 20, 32-24). The plaintiff contends that the City refused to do

so in order to force Maroney to drop the state court lawsuit. (Id.

¶ 36). Specifically, the plaintiff alleges that Fiorentini made

statements to Maroney and others that Maroney would not get any

permits until he dropped the lawsuit, and specifically directed

the Water Department not to issue any permits. (Id. ¶¶ 37-41).

The plaintiff claims federal due process and equal protection

violations (Count I); state civil rights violations (Count II);

interference with contractual and economic relations (Count III);

and conspiracy to deny civil rights under state and federal law

(Count IV).

II. LEGAL STANDARD

The defendants move for a judgment on the pleadings pursuant

to Federal Rule of Civil Procedure 12(c). That rule provides that

“[a]fter the pleadings are closed —but early enough not to delay

trial— a party may move for judgment on the pleadings.” Fed. R.

Civ. P. 12(c). A motion for judgment on the pleadings is treated

like a motion to dismiss under Fed. R. Civ. P. 12(b)(6), except

that a “‘Rule 12(c) motion . . . implicates the pleadings as a

whole’” rather than a dismissal based on the complaint alone.

Kimmel & Silverman, P.C. v. Porro, 969 F. Supp.2d 46, 49 (D. Mass.

2013) (quoting Aponte-Torres v. University of P.R., 445 F.3d 50,

54-55 (1st Cir. 2006)). Because a motion for judgment on the

pleadings requires “assessment of the merits, we view the facts

contained in the pleadings in the light most favorable to the party

opposing the motion . . . .” Curran v. Cousins, 509 F.3d 36, 43

(1st Cir. 2007).

The court may also consider matters fairly incorporated

within the complaint or susceptible to judicial notice. Id.; In

re Colonial Mortg. Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003).

Where the motion is based on a claim of res judicata, the court

may take judicial notice of the record in the original action.

See Boateng v. InterAmerican Univ., 210 F.3d 56, 60 (1st Cir. 2000)

(court may treat documents from prior court adjudication as public

record).

III. ANALYSIS

A. Applicable Law

The defendants argue that the plaintiff’s claims are barred

under the doctrine of res judicata by the findings of the

Massachusetts Superior Court in the plaintiff’s state court

action. Whether and to what extent the plaintiff’s claims may be

so barred is determined under Massachusetts law. See Isaac v.

Schwartz, 706 F.2d 15, 16 (1st Cir. 1983) (“[f]ederal courts are

to give state court judgments the res judicata effect that state

law prescribes”). Massachusetts uses the term “res judicata”

generally to describe the doctrine under which a previous judgment

can have binding effect upon a subsequent action. Kelso v. Kelso,

86 Mass. App. Ct. 226, 229 (2014). In fact, though, res judicata

encompasses two prongs, claim preclusion and issue preclusion.

Claim preclusion operates at the level of the claim, or cause

of action, alleged in each proceeding. It is based on the notion

that the party against whom claim preclusion is being asserted had

the opportunity and motivation to fully litigate the claim in the

earlier action. In re: Sonus Networks, Inc. Shareholder Derivative

Litigation, 499 F.3d 47, 56 (1st Cir. 2007) (applying Massachusetts

law). Therefore, claim preclusion bars all matters that were or

could have been adjudicated in the earlier action on the claim.

Id. In order for claim preclusion to apply, the respective parties

must be identical or in privity with the parties in the prior

action, the causes of action must be the same or arise from the

same nucleus of operative facts, and there must have been a final

judgment on the merits in the prior action. Cavic v. America’s

Servicing Co., 806 F. Supp.2d 288, 290 (D. Mass. 2011).

By contrast, issue preclusion, which is sometimes also

referred to as “collateral estoppel,” see, e.g., Meltzer v. Epstein

Becker & Green, 233 F. Supp.2d 213, 217 (D. Mass. 2002), bars re-

litigation of issues of law and fact that were determined in an

earlier action, and it can apply even if those issues arise in a

completely different claim in the second action. TLT Constr. Corp.

v. A. Anthony Tappe & Assocs., 48 Mass. App. Ct. 1, 5 (1999)

(citing Heacock v. Heacock, 402 Mass. 21, 23 n.2 (1988)).

A party asserting issue preclusion/collateral estoppel must

show that (1) there was a final judgment on the merits in a prior

adjudication; (2) the plaintiff was a party (or in privity with a

party) to the prior adjudication; (3) the issue in the prior

adjudication is identical to the issue in the current adjudication;

and (4) the issue decided in the prior litigation was essential to

the earlier judgment. Commissioner of the Dept. of Employment &

Training v. Dugan, 428 Mass. 138, 142 (1998). While strict

essentiality is not required, the issue must have been the subject

of full litigation and careful decision. Id. at 144. Issue

preclusion typically acts to bar re-litigation of any issue, but

it may also bar an entire claim where the issue precluded is an

essential element of that claim. Montesa v. Schwartz, No. 12-CV-

6057, 2016 WL 8140048, at *2 (S.D.N.Y. Jan. 13, 2016); see

generally Vargas-Colón v. Fundación Damas, Inc., 864 F.3d 14 (1st

Cir. 2017)(earlier determination that defendant did not own

hospital barred plaintiff’s later claim for malpractice against

defendant).

B. Application of Claim Preclusion

Applying the foregoing here, the doctrine of claim preclusion

does not apply because the privity of parties requirement is not

fully satisfied. Although Defendant Ward appears in the caption

of both lawsuits, he was sued in the state court action in his

official capacity as a Deputy Director for the City’s Department

of Public Works but remains as a defendant in the present case

only in his individual capacity. This matters because “a person

sued only in his official capacity is neither identical to, not in

privity with, the same person sued in his individual capacity.”

Goldstein v. Galvin, 719 F.3d 16, 23 (1st Cir. 2013). Further,

defendant Fiorentini was not named in any capacity in the state

court matter. In short, the doctrine of claim preclusion does not

apply to or bar any portion of the present action.

C. Application of Issue Preclusion

By contrast, the initial threshold requirements for issue

preclusion/collateral estoppel are met here where the state court

action was adjudicated on the merits and the plaintiff was a party

in the action. Thus, the court must examine the state court’s

factual findings and legal conclusions to determine which issues

were the subject of full litigation and careful deliberation; that

is, the court must determine whether any issue in this case is

identical to an issue that was adjudicated in the prior action,

and whether that issue was essential to that court’s judgment.

The court must then evaluate what effect, if any, such issues have

on the plaintiff’s present claims.

1. Violation of 42 U.S.C. § 1983

Count I of the amended complaint alleges pursuant to 42 U.S.C.

§ 1983 that the defendants violated Maroney’s rights to equal

protection and also his right to substantive due process.

With respect to the first prong of the claim, Maroney contends

that he was denied equal protection when the City required him to

construct a water booster station in order to get necessary permits

but issued permits to other developers without requiring them to

do the same. To prevail on this claim Maroney must show among

other things that there was no rational basis for the difference

in treatment between him and other similarly situated developers.

Buchanan v. Maine, 469 F.3d 158, 177 (1st Cir. 2006). In denying

the defendants’ prior motion for judgment on this count, the court,

as required, accepted as true Maroney’s assertion that he had until

November of 2016 to construct the station. The court found on

that basis that Maroney thus raised a colorable claim that there

was no rational basis to deny him permits in March of 2015 because

his deadline had not yet passed. (D. 51 ¶15).

Notably, though, the plaintiff litigated this factual issue

in the state court action and the court found contrarily that

Maroney had agreed to build the water booster station after

completing Phase I, which was earlier than November 2016. The

court’s factual finding was indisputably essential to its

reasoning and conclusion that Maroney thus had no basis to

“legitimately claim the Haverhill Defendants failed to process

and/or issue permits to which he was entitled,” and that “the

Department was free to deny those permits, no matter the date,

until the booster station was constructed.” Memorandum at 17-18.

Against this backdrop, the court is constrained to adopt the

state court’s finding that the plaintiff agreed both that a water

booster station was necessary and that he would build the station

after completing Phase I. Accordingly, the plaintiff is estopped

from arguing differently here that he at all times had until

November 2016 to do so. As such, the plaintiff no longer has a

basis for arguing that there was no rational basis for the

difference in treatment between him and any other similarly

situated developer; there was in fact a rational basis for denying

him a permit where he failed to construct a water booster station

after completing Phase I. Count I thus fails to state a viable

equal protection claim.

With respect to Maroney’s substantive due process claim, this

court previously concluded that the complaint adequately pled a

viable claim for relief based in part on two factual allegations,

including that the City was forcing the plaintiff to build the

booster station to benefit a pre-existing development, and that a

water station was arguably not even necessary. (D. 51, ¶¶ 26, 30-

31).

The plaintiff litigated the latter allegation in the state

court action, however. Although Maroney did not raise the

necessity of a water booster station until he filed his motion for

summary judgment, the court considered this issue and observed

that when Maroney’s plans were approved, the Planning Board’s then-

available data indicated that a water booster station was needed.

As Maroney agreed to this condition, he could not thereafter argue

that the condition was unreasonable. Memorandum at 18-19. In

this light, this court finds that, although the state court was

not obligated to consider this issue, it did give it full

consideration and its finding was essential to its judgment that

Maroney’s rights were not violated by the denial of a permit.

That being said, the court finds that the complaint continues

to plead a viable substantive due process claim even absent this

allegation. As discussed more fully in the court’s memorandum on

the first Motion for Judgment on the Pleadings (D. 52), a

substantive due process “‘protects individuals from particularly

offensive actions on the part of government officials, even when

the government employs facially neutral procedures in carrying out

those actions.’” Freeman v. Town of Hudson, 714 F.3d 29, 40 (1st

Cir. 2013) (quoting Pagán v. Calderón, 448 F.3d 16, 32 (1st Cir.

2006)).

To be sure, the standard for prevailing in such actions in

the land use context is high. It is not enough for a plaintiff to

challenge a discretionary licensing or permitting decision, even

if that decision is wrong. Mongeau v. City of Marlborough, 492

F.3d 14, 17 (1st Cir. 2007). Instead, a plaintiff must allege a

“fundamental procedural irregularity, racial animus, or the like”

or violation of “a fundamental principle.” Clark v. Boscher, 514

F.3d 107, 113 (1st Cir. 2008) (citations omitted). A plaintiff

must also make a plausible allegation that he has a protected

property interest under state law. Caesars Mass. Mgmt. Co. v.

Crosby, 778 F.3d 327, 332 (1st Cir. 2015). Massachusetts has

recognized a property interest where a plaintiff alleges that a

state actor has interfered with his right to obtain permits to

make improvements on his land. See, e.g., Kennie v. Natural

Resources Dept. of Dennis, 451 Mass. 754, 763 (2008) (property

owners seeking permit to build waterfront dock could pursue

substantive due process claim against seafood constable who

allegedly planted shellfish in sufficient quantities to provide

basis for permit denial and compel owners to withdraw their

application).

In the court’s view, the plaintiff meets that pleading

standard here where he alleges that the defendants have infringed

his right to obtain permits to develop his property. (D. 51, ¶

48). The plaintiff provides three specific instances in which

Fiorentini purportedly told Maroney or others that the plaintiff

would not receive any permits until he dropped his state court

suit. (Id. ¶¶ 37-41). This includes Fiorentini telling Maroney,

“You drop the lawsuit, we’ll give you all the permits your want!”

The plaintiff has also alleged that Fiorentini directed the Water

Department, under the authority of defendant Ward, to continue to

refuse to issue permits until the lawsuit was voluntarily

dismissed. (Id. ¶ 43).

Further, although the plaintiff took steps to build the

booster station and had plans approved by a City engineering

consultant, the Water Department decided to scrap Maroney’s design

and start over, and it never acted upon re-drafted plans submitted

by the plaintiff. (Id. ¶¶ 33-34). The plaintiff claims that the

City’s continued refusal to approve a water booster station design

(which leads to a refusal to issue permits) was also due to

Fiorentini’s insisting that the plaintiff first dismiss the state

lawsuit. (Id. ¶ 36).

The defendants argue that conditioning an action upon the

dismissal of a lawsuit is a perfectly normal course of conduct.

Perhaps, but it depends on the circumstances. At this early

juncture, where discovery has not yet fleshed out whether any

overtures made to the plaintiff regarding dismissal of the state

action were benign or otherwise, the plaintiff has alleged conduct

which, if true, could shock the conscience of a reasonable person.

See Brockton Power LLC v. City of Brockton, 948 F. Supp.2d 48, 69

(D. Mass. 2013) (plaintiffs sufficiently pled substantive due

process violation when they alleged that mayor led orchestrated

campaign by changing zoning laws to impact plaintiffs only; refused

to issue permits for plaintiffs’ property; and forced the

plaintiffs to repeatedly engage in frivolous litigation). The

motion as to the plaintiff’s substantive due process claim is

therefore denied.4

2. The State Claims

The complaint also asserts state claims for (i) violation of

the Massachusetts Civil Rights Act (MCRA), M.G.L. c. 12 § 11, (ii);

Interference with Contractual and Economic Relations, and (iii)

4 For the reasons stated in its earlier memorandum, the court also finds that

dismissal based on qualified immunity is not appropriate at this stage of the

proceedings. (D. 52, pp. 22-23).

civil conspiracy. The court finds that none of these claims is

barred as a result of the state court action.

Regarding the civil rights claim, the MCRA is co-extensive

with § 1983. It does not require state action but it does require

threats, intimidation, or coercion. Kelley v. LaForce, 288 F.3d

1, 10 (1st Cir. 2002). Maroney contends that Fiorentini called

him into his office, claimed Maroney owed the City $250,000, but

told him if he dropped the lawsuit he would get all the permits he

wanted. (D. 51, ¶ 37). Fiorentini also allegedly told individuals

who had signed contracts to purchase homes in the disputed area

that he had met with Maroney and that “Mr. Maroney knows what he

has to do.” (Id. ¶ 41). Notwithstanding that some of the

plaintiff’s allegations concern matters precluded by the state

court decision (e.g., id. ¶ 44), the allegations concerning

Fiorentini are distinct from claims Maroney advanced in that action

and thus may be relied upon to allege that the plaintiff was denied

due process by intimidation at the very least. The complaint

therefore asserts a valid MCRA claim.

The complaint also sufficiently pleads the elements of the

tort of interference with contractual or economic relations,

although it certainly could be more detailed. To prevail a

plaintiff must show: “‘(1) the existence of a contract or business

relationship which contemplated economic benefit; (2) the

defendant[’s] knowledge of the contract or business relationship;

(3) the defendant[’s] intentional interference with the contract

or business relationship for an improper purpose or by improper

means; and (4) damages.” Braintree Labs., Inc. v. Bedrock

Logistics, LLC, No. 16-cv-11936, 2018 WL 4100040, at *8 (D. Mass.

Aug. 28, 2018) (alterations in original) (quoting Swanset Dev.

Corp. v. City of Taunton, 668 N.E.2d 333, 338 (Mass. 1996)). The

plaintiff alleges that due to the defendants’ actions, he has

potentially lost substantial sums of money because he cannot

develop his remaining lots as contemplated. (D. 51, ¶ 41). He

also claims that Fiorentini met with twelve people already under

contract with the plaintiff to buy homes and told them that there

was no timetable to complete the water station and, when asked by

a realtor if the plaintiff would need to drop his lawsuit before

being allowed to proceed, Fiorentini nodded yes. (Id. ¶40).

Again, even when precluded allegations are discounted, these

allegations on their own sufficiently allege that the plaintiff

anticipated economic benefit from the completion of the

development, the defendants knew about the development, they

intentionally interfered with prospective purchasers so that the

plaintiff would drop his lawsuit, and the plaintiff suffered

damages.

Regarding the final state claim for civil conspiracy, a

complaint must allege facts sufficient to show that “the

defendants, acting in unison, had some peculiar power of coercion

over plaintiff that they would not have had if they had been acting

independently” (coercion-type conspiracy), or that the defendants

had a common design or agreement to do a wrongful act and committed

a tortious act in furtherance of the agreement (concerted action

conspiracy). Aetna Cas. Sur. Co. v. P&B Autobody, 43 F.3d 1546,

1563-64 (1st Cir. 1994). The complaint meets this standard where

it alleges that Fiorentini directed the Water Department not to

issue any permits until the state lawsuit was voluntarily dismissed

and the water department, overseen by Ward, agreed. (D. 51 ¶ 43).

The alleged conduct post-dates the filing of the state court action

and thus is not precluded by it.

IV. CONCLUSION

For the foregoing reasons, the defendants’ Motion for

Judgment on the Pleadings (D. 61) is ALLOWED in part and DENIED in

part. The portion of Count I of the amended complaint alleging a

violation of the plaintiff’s right to equal protection is

dismissed. The motion is otherwise denied with respect to the

remaining portion of Count I alleging a deprivation of substantive

due process, and is also denied with respect to Counts II, III,

and IV.

SO ORDERED.

/s/Donald L. Cabell________

Donald L. Cabell, U.S.M.J.

Dated: September 13, 2019