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:

DEFENDANTS’ MOTION FOR RECONSIDERATION

OF JULY 3, 2019 ORDER

(DOCKET ENTRY # 31)

November 27, 2019

BOWLER, U.S.M.J.

Defendants Board of Selectmen of the Town of Hingham

(“defendants”), sued in their official capacity, seek

reconsideration of a July 2019 decision (Docket Entry # 30, pp.

4-9) that, in turn, reconsidered a March 2019 decision (Docket

Entry # 22, pp. 17, 26-29) on the third element of claim

preclusion, i.e., the existence of a “‘prior final judgment on

the merits.’” RFF Family P’ship, LP v. Ross, 814 F.3d 520,

531–32 (1st Cir. 2016) (internal citations omitted). They submit

the July 2019 decision constitutes “a manifest error of law as

well as a manifest injustice” which warrants reconsideration.

(Docket Entry # 31, pp. 9-10). Plaintiff maintains that the July

2019 decision is correct, the decision in Springfield Pres. Tr.,

Inc. v. Springfield Library and Museums Ass’n, Inc., 852 N.E.2d

83 (Mass. 2006) (“Springfield Trust”), is controlling, and

defendants are unsuccessfully attempting to raise a new argument

that this court deemed waived in the July 2019 decision. (Docket

Entry # 32). The relevant procedural background is as follows.

BACKGROUND

In April 2018, defendants moved to dismiss all of the claims

in a first amended complaint based, inter alia, on claim

preclusion. (Docket Entry ## 8, 13, 14). They asserted that a

September 2016 decision and final judgment by the trial court in

plaintiff’s state court proceeding in Massachusetts Superior

Court (Plymouth County) (“the trial court”) in Belezos v. Board

of Selectmen of the Town of Hingham, Civil Action No. 1483CV01018

(“Belezos”) (Docket Entry # 8-7), barred adjudication of the

federal and state law claims in this action. (Docket Entry # 8,

pp. 16-17) (Docket Entry # 13) (Docket Entry # 14, p. 10). The

trial court’s decision and judgment in Belezos undeniably reached

and rejected the substantive merits of the federal constitutional

claims and the ultra vires state law claims in that proceeding.

(Docket Entry # 8-7). These federal constitutional and state law

claims are substantially the same as the corresponding claims

brought in this action. (Docket Entry # 11, 15-1).

Plaintiff opposed the claim preclusion argument because the

2

Massachusetts appeals court (“MAC”) in Belezos affirmed the trial

court’s decision on a different ground without “ruling on the

merits.” (Docket Entry # 15, p. 22). Specifically, the MAC

stated, “It is unnecessary to reach the merits of Belezos’s

claims because he waived his right to contest the civil motor

vehicle infraction . . . by failing to pursue the remedy

expressly provided for by the Legislature” in Massachusetts

General Laws chapter 90C (“chapter 90C”), section three.1 Rather,

plaintiff paid the speeding ticket he received on Gardner Street

which, by statute, “‘operate[s] as a final disposition of the

matter.’”2 (Docket Entry # 8-8, p. 4) (quoting Mass. Gen. Laws

1 The July 2019 opinion explains the procedure to challenge

a traffic citation and the appeal process in chapter 90C at

length. (Docket Entry # 30, pp. 18-21). It details the

opportunity plaintiff had to raise various issues of law he

presents in this action.

In contrast to plaintiff, plaintiff’s counsel fully availed

himself of the procedures in chapter 90C in challenging a

speeding ticket he received on Gardner Street in Hingham,

Massachusetts. On appeal in the state-court proceeding,

plaintiff’s counsel raised a number of statutory and federal

constitutional arguments and claims similar to those that

plaintiff asserts in this proceeding. (Docket Entry # 25-1).

The MAC expressly and impliedly addressed and rejected them. See

Hingham Police Dep’t v. Zotos, No. 11-P-1716, 2012 WL 1689189

(Mass. App. Ct. May 16, 2012) (unpublished).

2 In full, the relevant language in the MAC’s decision

reads as follows:

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

3

ch. 90C, § 3).

The March 2019 decision allowed defendants’ motion to

dismiss the federal and the state law claims based on claim

preclusion.3 (Docket Entry # 22, pp. 15-29, 41). Regarding the

third element, this court explained that the trial court decided

“the statutory ultra vires and constitutional section 1983 claims

on the merits (Docket Entry # 8-7, pp. 2-10) and entered a final

judgment on the merits (Docket Entry # 8-7, p. 11).” (Docket

Entry # 22, p. 26) (citing In re Sonus Networks, Inc., 499 F.3d

47, 60, n.6 (1st Cir. 2007)). Thereafter, this court addressed

plaintiff’s argument that the MAC disregarded the merits-based

dismissal of the trial court and decided the matter on another

ground, i.e., plaintiff’s payment of the ticket waived his

ability to further contest the matter. Quoting the March 2019

opinion, this court rejected plaintiff’s argument because

“[c]laim preclusion applies to a final judgment even if it is

subject to an appeal” unless “the appeals court reverses” the

indicated assessment shall operate as a final disposition of

the matter.” For this reason, we need not review the legal

reasoning of the judge who ordered the dismissal of the

complaint. See Ng Bros. Constr. v. Cranney, 436 Mass. 638,

639 (2002) (appellate court may affirm judgment for reasons

that differ from those given by motion judge).

(Docket Entry # 8-8, p. 4) .

3 Additionally, the decision rejected the federal

constitutional claims on the merits.

4

lower court. (Docket Entry # 22, p. 29) (citing Restatement

(Second) of Judgments § 13 cmt. f (1982)). In full, this court

then stated that:

The MAC did not reverse the trial court’s judgment. Rather,

it affirmed the judgment for a different reason. Moreover,

unlike the higher court in Baylis,4 which questioned the

lower court’s alternative ruling, see In re Baylis, 217 F.3d

at 71, the MAC’s decision in Belezos did not question the

trial court’s ruling.

In sum, claim preclusion bars litigation or relitigation of

all of plaintiff’s individual claims.

(Docket Entry # 22, p. 29). In making this ruling, this court

did not rely on defendants’ argument that, “The 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, the parties were the same, and the causes of action were

the same.” (Docket Entry # 8, p. 17) (Docket Entry # 14, p. 10).

Rather, as noted above, this court relied on the Restatement

(Second) of Judgments § 13 cmt. f (1982), the fact that the MAC

did not reverse the trial court’s judgment, and the fact that the

trial court’s decision and judgment did not involve two

alternative grounds to dismiss the claims. (Docket Entry # 22,

p. 29).

Two weeks after the March 2019 decision, plaintiff filed a

motion to reconsider the claim preclusion ruling as it applied to

4 In re Baylis, 217 F.3d 66 (1st Cir. 2000).

5

the state law ultra vires claims.5 In the July 2019 decision on

the motion to reconsider, this court reversed course on the claim

preclusion ruling regarding the third element in light of

overlooking the decision of the Massachusetts Supreme Judicial

Court (“SJC”) in Springfield Trust, which adjudicated claim

preclusion in the context of an appeal. Like the MAC in Belezos

(Docket Entry # 8-8, p. 4), the MAC in the prior case examined

for its claim-preclusive effect in Springfield Trust affirmed the

trial court based on a ground different from the trial court’s

substantive merits-based decision.

More specifically, the SJC in Springfield Trust addressed

the claim-preclusive effect of the prior case wherein the trial

court found an ordinance valid and a 1979 decision by the MAC6 on

direct appeal affirmed the judgment “on procedural grounds.”

Springfield Trust, 852 N.E.2d at 91. Notably, 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 91, n.11.7 On appeal in the prior

5 The claim preclusion bar regarding the federal claims

(Docket Entry # 22) therefore remains intact.

6 Springfield Pres. Tr., Inc. v. Roman Catholic Bishop of

Springfield, 387 N.E.2d 211 (Mass. App. Ct. 1979).

7 Footnote 11 reads as follows:

Specifically, the trust had failed to join the city of

Springfield as a necessary party and to notify the Attorney

General of the suit, as required by G.L. c. 231A, § 8.

6

case, the MAC “specifically stated that it did ‘not reach the

other questions raised.’” Id. at 91 (internal citation omitted).

The SJC therefore refused to apply claim preclusion to the trial

court’s initial decision on the substantive merits because the

MAC decided the matter on other grounds that had nothing “to do

with the merits[,]” namely, the failure to join a necessary party

and the failure to give notice to the Attorney General of the

Commonwealth (“the Attorney General”) regarding the lawsuit. Id.

at 91 n.11. The relevant passage in the SJC’s decision reads as

follows:

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). See

Hartford Acc. & Indem. Co. v. Commissioner of Ins., 407

Mass. 23, 29–30, 551 N.E.2d 502 (1990) (rejecting res

judicata argument where commissioner was without

jurisdiction to hear claims). See also Jarosz v. Palmer,

436 Mass. 526, 533, 766 N.E.2d 482 (2002).

Id.; see In re Sonus Networks, Inc., 499 F.3d 47, 59 (1st Cir.

2007) (“Sonus Networks”) (quoting above language in Springfield

Springfield Preservation Trust, Inc. v. Roman Catholic

Bishop of Springfield, 7 Mass.App.Ct. 895, 387 N.E.2d 211

(1979).

Springfield Trust, 852 N.E.2d at 91 n.11.

7

Trust quoting Curley v. Curley, 40 N.E.2d 272, 274 (Mass. 1942)).8

In the July 2019 decision, this court analogized the trial

court’s merits-based decision in Belezos and the MAC’s decision

“on [the] procedural ground based on a waiver” to the

circumstances in Springfield Trust, which refused to apply claim

preclusion because the MAC affirmed the trial court “‘on

procedural grounds’” even though the trial court addressed the

merits of the claim. (Docket Entry # 30, pp. 5-7). This court

therefore reconsidered the March 2019 decision and refused to

apply claim preclusion because the MAC’s decision in Belezos,

like the MAC’s decision reviewed in Springfield Trust, “decided

the matter on a procedural ground based on a waiver without

reaching the merits (Docket Entry # 8-8).” (Docket Entry # 30,

pp. 5-6). Given plaintiff’s vigorous argument relying on

Springfield Trust (Docket Entry # 26, pp. 5-6), what this court

neglected to perform was to analyze and compare the MAC’s

“procedural grounds” in Springfield Trust (failure to join a

necessary party and notify the Attorney General of the suit) to

the MAC’s grounds in Belezos (statutory waiver by paying the

assessment and failing to pursue a chapter 90C appeal). In

8 Plaintiff repeatedly quoted a portion or the entirety of

the above language in opposing the motion to dismiss, seeking

reconsideration, and opposing defendants’ reconsideration motion.

(Docket Entry # 15, p. 22) (Docket Entry # 26, pp. 5-6) (Docket

Entry # 32, p. 5). As an aside, page references refer to the

page number in the upper right-hand corner of the filing.

8

seeking reconsideration, defendants identify the error in the

analogy. (Docket Entry # 31, pp. 3-4, 6-9). They explicitly and

accurately point out that, “The Trust could correct their

procedural errors and re-file. Belezos cannot reverse the fact

that he waived the right to contest the civil motor vehicle

infraction.” (Docket Entry # 31, p. 8).

The procedural history leading to the SJC’s Springfield

Trust decision not to afford the MAC’s 1979 decision preclusive

effect is instructive.9 The MAC’s 1979 decision affirmed the

trial court’s dismissal because the plaintiffs, including

plaintiff Springfield Preservation Trust, Inc. (“the trust”), did

not join the City of Springfield, a necessary party in any

proceeding involving validity of a municipal ordinance,10 and did

not send notice to the Attorney General, which is a “condition[]

precedent to the entry of” the declaratory relief sought by the

plaintiffs. Springfield Pres. Tr., Inc. v. Roman Catholic Bishop

of Springfield, 387 N.E.2d at 213 (citing Mass. Gen. Laws ch.

231A, § 8) (emphasis added). In 2001, the trust challenged the

same ordinance culminating in the SJC’s Springfield Trust

decision. Springfield Trust, 852 N.E.2d at 90. This time,

9 In seeking reconsideration, defendants outline the

history.

10 There was no jurisdictional impediment to joining the

City of Springfield inasmuch as the court had jurisdiction over

the city.

9

however, the trust cured the condition precedent to suit by

notifying the Attorney General of the claims and it named the

necessary party, i.e., the City of Springfield, as a defendant.

Jarrett v. Springfield Library and Museums Ass’n, No. 01107, 2003

WL 21246549, at *7 n.8 (Mass. Super. Feb. 21, 2003) (emphasis

added) (unpublished), vacated sub nom. Springfield Trust, 852

N.E.2d 83 (Mass. 2006). The trial court therefore rejected the

argument by defendant Springfield Library and Museums

Association, Inc. (“SLMA”) that the MAC’s 1979 decision barred

the action:

The SLMA also argues that the Trust’s claims are barred by

two earlier cases addressing the application of G.L.c. 40C,

Springfield Preservation Trust, Inc. v. Roman Catholic

Bishop of Springfield, 7 Mass.App.Ct. 895 (1979), and

Springfield Preservation Trust, Inc. v. Springfield

Historical Commission, 380 Mass. 159 (1980). Those cases

held that the Superior Court lacked jurisdiction because the

Trust failed to join the City as a defendant, failed to

notify the Attorney General of its claims, and was not

entitled to standing under the older statutory definition of

“person aggrieved.” Here, the Trust included the City as a

defendant, and provided appropriate notice to the Attorney

General of its constitutional claim (which has since been

abandoned). Additionally, the definition of “person

aggrieved” in G.L.c. 40C, § 5 was amended in 1983 to apply

to “any charitable corporation in which one of its purposes

is the preservation of historic structures or districts,” a

definition that includes the Trust. For these reasons, the

Trust’s claims are not barred by the two pre-1983 cases

cited by the SLMA.

Jarrett v. Springfield Library and Museums Ass’n, 2003 WL

21246549, at *7 n.8 (emphasis added).

It is well established and set out in the Restatement

(Second) of Judgments § 20 that judgments based on a failure to

10

join a party or a failure to satisfy a precondition to suit are

typically not decisions on the merits for purposes of claim

preclusion. Restatement (Second) of Judgments § 20.11 Whereas

issue preclusion may prevent a party from simply refiling suit

without joining the necessary party, see Sonus Networks, 499 F.3d

at 59, 62 (citing Massachusetts case “giving preclusive effect to

an earlier dismissal for failure to join an indispensable party,

where the plaintiff had brought a second suit without joining the

indispensable party”), or without satisfying the precondition,

see id. at 60, ordinarily judgments grounded on nonjoinder of a

party or failure to satisfy a precondition do not provide a basis

for claim preclusion. Restatement (Second) of Judgments §§

20(1)(a), 20(2). In Massachusetts, a prior final judgment

dismissing an action for lack of jurisdiction or for failure to

join a necessary party are reasons not to afford the prior final

judgment claim-preclusive effect because, to use the requisite

terminology, they are not decisions on the merits. See OneBeacon

Am. Ins. Co. v. Narragansett Elec. Co., 31 N.E.3d 1143, 1157–58

(Mass. App. Ct. 2015) (“dismissal for lack of subject matter

11 These comprise exceptions to the general rule in section

19 that, “A valid and final personal judgment rendered in favor

of the defendant bars another action by the plaintiff on the same

claim.” Restatement (Second) of Judgments § 19. Sections 18 to

26 of the Restatement (Second) of Judgments set out the rules

applicable to claim preclusion whereas sections 27 and 28 set out

the rules applicable to issue preclusion. Restatement (Second)

of Judgments, ch. 1, Introduction, Scope.

11

jurisdiction, even if labeled ‘with prejudice,’ will not bar a

subsequent action by the plaintiff on the same claim”) (citing

Department of Rev. v. Ryan R., 383, 816 N.E.2d 1020, 1023 (Mass.

App. Ct. 2004), citing Restatement (Second) of Judgments § 20

cmt. d (1982), and Mass. R. Civ. P. 41(b)(3)); Restatement

(Second) of Judgments § 20(1)(a); see also Mestek, Inc. v. United

Pac. Ins. Co., 667 N.E.2d 292, 294 (Mass. App. Ct. 1996) (relying

on Mass. R. Civ. P. 41(b)(3), which excludes failure to join

party as adjudication on the merits, to conclude that dismissal

for failure to state a claim operates as final judgment on merits

for claim preclusion); accord Buffalo-Water 1, LLC v. Fid. Real

Estate Co., LLC, 111 N.E.3d 266, 273 n.9 (Mass. 2018) (citing

Mestek, 667 N.E.2d at 294). Failing to satisfy a precondition to

suit, such as making a demand or, by analogy, notifying a party,

“is a failure that may be remedied” and does not bar a subsequent

suit once the failure is cured. Sonus Networks, 499 F.3d at 56,

61-62 (applying Massachusetts law); see generally Griffith v. Bd.

of Appeals of Framingham, 537 N.E.2d 161, 163 (Mass. App. Ct.

1989) (citing, inter alia, Restatement (Second) of Judgments §

20(2)). In contrast, plaintiff cannot cure his failure to pursue

the remedies in section three of chapter 90C because he waived

those remedies by paying the assessment for the traffic

infraction. (Docket Entry # 8-8, p. 4); Mass. Gen. Laws ch. 90C,

§ 3(A)(3) (“[p]ayment of the indicted assessment shall operate as

12

a final disposition of the matter”).

Furthermore, as lucidly explained by the First Circuit in

Sonus, “the requirement that the prior judgment be ‘on the

merits’ was omitted from the Restatement (Second), which has been

quoted and relied on by Massachusetts courts, even as they have

continued to reiterate ‘on the merits’ as a requirement for issue

preclusion,” Sonus Networks, 499 F.3d at 57, and by analogy,

claim preclusion. See Semtek Int’l Inc. v. Lockheed Martin

Corp., 531 U.S. 497, 503 (2001). Although the classic case

“‘continues to be one in which the merits of the claim are in

fact adjudicated against the plaintiff after trial,’” the trend

is to expand claim preclusion to “‘judgments not passing directly

on the substance of the claim . . ..’” Sonus Networks, 499 F.3d

at 57-58 (quoting Restatement (Second) of Judgments § 19 cmt. a).

The cited comment is particularly appropriate to the case at bar:

The rule that a defendant’s judgment acts as a bar to a

second action on the same claim is based largely on the

ground that fairness to the defendant, and sound judicial

administration, require that at some point litigation over

the particular controversy come to an end. These

considerations may impose such a requirement even though the

substantive issues have not been tried, especially if the

plaintiff has failed to avail himself of opportunities to

pursue his remedies in the first proceeding, . . ..

Restatement (Second) of Judgments § 19 cmt. a.

Returning to the Springfield Trust decision, which Sonus

recognizes applied claim as opposed to issue preclusion, see

Sonus Networks, 499 F.3d at 59, the SJC rejected a defendant’s

13

claim-preclusion argument because the MAC decided the matter on

the “procedural grounds” of failing to join a necessary party and

failing to notify the Attorney General. Springfield Trust, 852

N.E.2d at 91 n.11. In contrast, the MAC in Belezos decided the

matter on a non-substantive basis (plaintiff’s failure to pursue

remedies provided in chapter 90C), which continues to render

plaintiff unable to refile the claims against the very same

parties, defendants. Belezos does not involve the nonjoinder of

a party that plaintiff can subsequently sue. Likewise, it does

not involve a precondition of notification that plaintiff can

subsequently satisfy. Plaintiff’s waiver of the remedies

provided in chapter 90C, section three, is not a precondition he

is able to cure. Rather, his decision not to avail himself of

the remedies in chapter 90C, section three, is final and

appropriate for claim preclusion even though the MAC did not pass

upon the substantive merits of the ultra vires state law claims.

See Restatement (Second) of Judgments § 19 cmt. a. The plain

language of section three of chapter 90C admits no exceptions.12

Beyond the exact confines of the third element of claim

preclusion, the policies that give rise to the doctrine support

its application in this action. Claim preclusion as well as

issue preclusion “relieve parties of the cost and vexation of

12 As previously noted in footnote one, plaintiff’s counsel

fully availed himself of these remedies.

14

multiple lawsuits, conserve judicial resources, and, by

preventing inconsistent decisions, encourage reliance on

adjudication.” Allen v. McCurry, 449 U.S. 90, 94 (1980); accord

Alicea v. Commonwealth, 993 N.E.2d 725, 731 (Mass. 2013) (quoting

Allen, 449 U.S. at 94). Claim preclusion also “promote[s] the

comity between state and federal courts that has been recognized

as a bulwark of the federal system.” Allen, 449 U.S. at 96;

accord Alicea, 993 N.E.2d at 731; see also Semtek, 531 U.S. at

504 (discussing federalism principle); Willhauck v. Halpin, 953

F.2d 689, 704 (1st Cir. 1991). Indeed, under the long-standing

full faith and credit statute, 28 U.S.C. § 1738, Congress

commands “all federal courts to give preclusive effect to

state–court judgments whenever the courts of the State from which

the judgments emerged would do so.” Allen, 449 U.S. at 96.

Here, as repeatedly and consistently reiterated by

defendants, plaintiff’s state court litigation regarding the

speed limit sign on Gardner Street compelled them to defend

against the hard-fought litigation that plaintiff pursued in the

state trial court, the MAC, and the SJC. (Docket Entry ## 8-7,

8-8, 8-9, 15-1, 25-4). The merits of the litigation did not

favor plaintiff in light of his counsel’s repeatedly-unsuccessful

attempts in state and federal court to obtain relief related to

his own speeding ticket on Gardner Street. (Docket Entry ## 8-1

to 8-5, 25-3). Claim preclusion will relieve the further cost

15

and vexation to defendants of extending this already extensively

litigated matter and conserve additional judicial resources

devoted to this case at the expense of other cases. In addition,

federalism and comity caution against a federal court interfering

and essentially overlooking or overturning a state court decision

(Docket Entry # 8-8) that applies a state statute to bar

plaintiff from further challenges in this matter because he

failed to avail himself of the opportunities initially provided

in chapter 90C. Allowing the claims in this case, which comprise

substantially the same claims against the same defendants that

the MAC precluded in Belezos (Docket Entry ## 8-8, 11, 15-1), to

go forward goes directly against the premise of the MAC’s

decision, which the MAC considered final. (Docket Entry # 8-8,

p. 4) (quoting chapter 90C, section three, that payment of

assessment “‘shall operate as a final disposition’”) (emphasis

added).13 Placed in this context, the policies underlying claim

preclusion are well served and, indeed, strongly served by its

application.

In light of this court’s clear error of law to allow

reconsideration in the July 2019 decision and reinstate the state

13 Moreover, the SJC denied plaintiff’s application for

leave to obtain further appellate review (“ALOFAR”) raising a

number of points for further review, including the purported

error in the MAC’s decision to preclude relief. (Docket Entry #

8-9); Belezos v. Bd. of Selectmen of Hingham, 102 N.E.3d 424

(Mass. 2018) (Table).

16

law claims, the issue reduces to whether to allow reconsideration

for the second time on the third element of claim preclusion. As

noted above, defendants rely on a manifest error of law and a

manifest injustice to obtain reconsideration.

As an interlocutory ruling prior to a final judgment, this

court has the discretionary power to reconsider the July 2019

ruling. See Geffon v. Micrion Corp., 249 F.3d 29, 38 (1st Cir.

2001); 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”); see also Harlow v.

Children’s Hosp., 432 F.3d 50, 55 (1st Cir. 2005) (“law of the

case” applied to previous orders “of the court rendering them in

the same case, merely expresses the practice of courts generally

to refuse to reopen what has been decided, not a limit to their

power”) (parenthetical quoting First Circuit case, which quotes

Messenger v. Anderson, 225 U.S. 436, 444 (1912)) (internal

quotation marks omitted). Reconsideration, however, presents a

standard difficult to meet. Latin Am. Music Co. v. Am. Soc’y of

Composers, Authors and Publishers (ASCAP), 642 F.3d 87, 91 (1st

Cir. 2011) (“hurdle is a high one”). It is appropriate when

“‘the movant shows a manifest error of law’” as well as “if the

court ‘has patently misunderstood a party or has made an error

not of reasoning but apprehension.’” Ruiz Rivera v. Pfizer

Pharm., LLC, 521 F.3d 76, 81-82 (1st Cir. 2008) (internal

17

citations and ellipses omitted); accord Villanueva v. United

States, 662 F.3d 124, 128 (1st Cir. 2011) (same); see

Mulero-Abreu v. P.R. Police Dep’t, 675 F.3d 88, 94 (1st Cir.

2012) (“‘manifest error of law’” provides basis for

reconsideration) (internal citations omitted). Manifest

injustice also constitutes a basis for reconsideration. Ellis v.

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

injustice exception “requires a definite and firm conviction that

a prior ruling on a material matter is unreasonable or obviously

wrong,” id., “‘as well as a finding of prejudice.’” United

States v. Garćia-Ortiz, 792 F.3d 184, 190-91 (1st Cir. 2015)

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

2009), in parenthetical), cert. denied, 138 S.Ct. 694 (Jan. 8,

2018). Reconsideration is not appropriate “to advance arguments

that could and should have been presented to the district court

prior to its original ruling.” Villanueva, 662 F.3d at 128

(finding no abuse of discretion for court to deny reconsideration

because “Villanueva simply reiterated” arguments that “could and

should have been presented in his original request”).

For reasons stated above and having considered the matter at

greater length and in greater depth, this court has a definite

and firm conviction that the July 2019 decision is obviously

wrong as well as unreasonable on the third element of claim

preclusion. The policies underlying claim preclusion strongly

18

support its application and Springfield Trust is distinguishable

as explained above. Whereas reconsidering the July 2019 decision

in one sense does not encourage reliance on adjudications, in

another sense it avoids an inconsistency in results. See

generally Ellis, 313 F.3d at 647 (recognizing various concerns

including inconsistency). As to the latter, if this court let

the July 2019 decision stand it produces the inconsistent result

of applying claim preclusion to the federal constitutional claims

while not applying claim preclusion to the ultra vires state law

claims, all of which the MAC viewed as barred due to plaintiff’s

failure to avail himself of the remedies provided in chapter 90C,

section three. (Docket Entry # 8-8). In addition, the error, if

allowed to stand, will prejudice defendants by requiring them,

yet again, to defend the claims they previously and successfully

defended in the state trial court and then again in the MAC. The

trial court rewarded defendants with a dismissal that it

considered final and the MAC rewarded defendants with an

affirmation of the judgment because plaintiff did not pursue the

remedies provided in chapter 90C. Refusing to reconsider the

claim preclusion of the state law claims denies defendants the

relief the state courts gave them and forces them to defend

against the same claims notwithstanding the finality of each of

these decisions. See generally Negrón-Almeda v. Santiago, 579

F.3d 45, 52 (1st Cir. 2009) (examining prejudice in context of

19

analogous law of the case doctrine). In affirming the district

court’s reconsideration of an initial grant of summary judgment

to the defendants, the First Circuit in Negrón-Almeda explained

that the “obviously wrong” ruling “prevented [plaintiffs] from

obtaining the equitable relief they sought and to which the

district court determined they were otherwise entitled,” which

was reinstatement. Id.14 Here too, letting the obviously

incorrect claim preclusion decision stand will work a manifest

injustice and prejudice defendants.

As a final matter, plaintiff is correct that ordinarily

reconsideration is not allowed where, as here, the party advances

an argument that it could and should have presented to the court

prior to the initial ruling. See Villanueva, 662 F.3d at 128.

Plaintiff therefore strenuously asserts that defendants cannot

argue that the MAC’s decision was a “‘merit-based finding of

waiver.’” (Docket Entry # 32, § III). It is true that

defendants did not raise the argument that the MAC’s decision was

itself a decision on the merits for purposes of claim preclusion

in opposing plaintiff’s motion for reconsideration. This court

therefore determined that for purposes of opposing plaintiff’s

reconsideration motion (Docket Entry # 26), defendants waived the

14 The court also cited Sulik v. Taney Cty., Mo., 393 F.3d

765, 766 (8th Cir. 2005), in a parenthetical as “holding that to

let stand a dismissal that was based on an error about the

statute of limitations would work a manifest injustice.”

Negrón-Almeda, 579 F.3d at 52.

20

argument that the MAC’s decision on waiver was itself a decision

on the merits for purposes of claim preclusion. (Docket Entry #

30, p. 6 n.4).15 This court’s waiver determination applied solely

to defendants’ failure to raise the argument “[o]n

reconsideration.” (Docket Entry # 30, p. 6). The waiver was

limited to the context of deciding plaintiff’s motion for

reconsideration. It was not a determination that the waiver

extended to a future motion made by defendants to reconsider the

ruling. See Iacobucci v. Boulter, 193 F.3d 14, 19-20 (1st Cir.

1999) (deferring to district judge’s interpretation of her own

order); accord Subsalve USA Corp. v. Watson Mfg., Inc., 462 F.3d

41, 46 (1st Cir. 2006).

At this juncture, the matter reduces to whether to allow

defendants to advance their argument that “Springfield Trust is

not on all fours” because, inter alia, the MAC’s 1979 decision

affirmed the lower court on the basis “that the Trust failed to

comply with procedural requirements of the applicable statute, a

major distinction which will be discussed below[,]” and “[t]wo

decades later the Trust challenged the validity of the same

ordinance, this time impleading the necessary parties . . ..”

(Docket Entry # 31, p. 6) (capitalization and bolding omitted).

15 More precisely, the operative determination states: “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.” (Docket Entry # 30, p. 6, n.4)

(emphasis added).

21

As noted above, this new argument further adds that, “The Trust

could correct their procedural errors and re-file” whereas

“Belezos cannot reverse the fact that he waived the right to

contest the civil motor vehicle infraction.” (Docket Entry # 31,

p. 8). In the exercise of this court’s discretion in

adjudicating a reconsideration motion, defendants’ failure to

previously advance this argument will not foreclose

reconsideration. As discussed, reconsideration is strongly

warranted based on the third factor and the policies supporting

the doctrine. Furthermore, barring defendants from raising the

argument now imposes the continuing prejudice on them of

defending against claims the state courts rejected, not on a

procedural technicality as in Springfield Trust, 852 N.E.2d at 91

n.11, but instead because plaintiff waived the remedies in

chapter 90C, which he can no longer access because his payment is

a “final disposition.” Mass. Gen. Laws ch. 90C, § 3.

Finally, plaintiff submits he is not challenging a vacatur

of the traffic citation. (Docket Entry # 32, p. 15). According

to plaintiff, he therefore “avoids any issue preclusion stemming

from the MAC’s decision on waiver.” (Docket Entry # 32, p. 15).

He also contends that the MAC passed over his assertions that

defendants’ erection and enforcement of unauthorized speed limit

signs did not comply with procedures and state statutes governing

their erection and enforcement. (Docket Entry # 32, p. 15). To

the contrary, the MAC summarized the statutory allegations in

22

plaintiff’s state court complaint and stated that the civil

action “at its core” is a challenge to the speeding citation.16

(Docket Entry # 8-8, p. 3). Immediately thereafter, the MAC

implicitly deemed these assertions or claims waived because

plaintiff did not contest the traffic infraction “at the heart”

or core of the civil action when he failed to pursue the remedies

afforded in chapter 90C, section three. The relevant portion of

the opinion 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, and set forth in G. L. c. 85, § 2. In

addition, Belezos argues the text of G. L. c. 90, § 17, does

not “authorize municipalities to . . . establish speed zones

or post speed limit signs.” At its core, Belezos’s civil

action challenges the basis of his speeding citation and, in

addition, asserts constitutional and due process violations

. . ..

(Docket Entry # 8-8, p. 3). Two sentences later in the

discussion section, the MAC recites the finding that:

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.”

16 In finding a waiver, the MAC also summarized the

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

Massachusetts General Laws chapter 90, including special speed

regulations adopted by towns subject to the oversight approval of

the Massachusetts Department of Transportation. (Docket Entry #

8-8).

23

(Docket Entry # 8-8, p. 4). The MAC’s decision therefore deemed

the assertions or claims regarding the erection and enforcement

of the unauthorized speed limit signs encompassed within the

waiver. Furthermore, the MAC affirmed the judgment of the trial

court, which dismissed the state statutory claims as well as the

federal constitutional claims. If the MAC passed over the

erection and illegal enforcement of the speed limit signage

assertions, as plaintiff suggests, the MAC would not have

affirmed the judgment dismissing all of the claims. Simply put,

the MAC did not pass over them.

In any event, the trial court considered the issues

regarding the unauthorized speed limit signs and made necessary

findings regarding them to support the final judgment. As

previously explained, the trial court did not render alternative

findings and the MAC did not affirm the judgment based on one of

two alternative grounds. (Docket Entry # 22, p. 28).

Plaintiff’s issue preclusion argument therefore lacks merit.

Plaintiff’s related argument that chapter 90C limits his

appeal rights to a challenge to the clerk-magistrate’s final

judgment on the citation (Docket Entry # 32, p. 14) is similarly

unavailing. First, the SJC denied plaintiff’s ALOFAR, which made

a similar, more elaborate argument. (Docket Entry # 8-9);

Belezos v. Bd. of Selectmen of Hingham, 102 N.E.3d 424 (Mass.

2018) (Table). Second, the decision by the MAC in the appeal by

24

plaintiff’s counsel of his traffic ticket on Gardner Street found

no impediment to addressing a related argument.17 See Hingham

Police Dep’t v. Zotos, No. 11-P-1716, 2012 WL 1689189 (Mass. App.

Ct. May 16, 2012) (unpublished).

In sum, reconsideration is appropriate. Consistent with the

claim-preclusion bar of the federal constitutional claims (Docket

Entry # 22), claim preclusion bars the ultra vires state law

claims in this action. As such, they are subject to dismissal.18

II. Supplemental Jurisdiction

On September 24, 2019, this court requested briefing from

the parties to address this court’s supplemental jurisdiction.

Plaintiff urges this court to retain jurisdiction over the state

law claims. With briefing from each side complete, it is

appropriate to address this court’s decision to retain

supplemental jurisdiction over the state law claims.

BACKGROUND

In light of prior recitals of the procedural history and

facts in this action, it is not necessary to reiterate them in

detail. For present purposes, this court notes the following

before proceeding to address supplemental jurisdiction.

The original and the first amended complaints raise federal

17 See footnote one.

18 It is therefore not necessary to address any remaining

arguments in defendants’ motion to dismiss (Docket Entry # 13).

25

constitutional claims under 42 U.S.C. § 1983 (“section 1983”) and

ultra vires claims under state law.19 The first amended complaint

appropriately relies on federal question and civil rights

jurisdiction for the section 1983 claims. 28 U.S.C. §§ 1331,

1343; (Docket Entry # 1, ¶ 2) (Docket Entry # 11, ¶ 2). Although

it also cites the Declaratory Judgment Act, 28 U.S.C. § 2201

(“DJA”), as a basis for jurisdiction (Docket Entry # 11, ¶ 2),

such reliance is misplaced because the DJA applies to “a case of

actual controversy within its jurisdiction.” 28 U.S.C. § 2201

(emphasis added); see Cavallaro v. Mendelsohn, Tr. of the Pearl

Mendelsohn Revocable Living Tr., Civil Action No. 19-10508-FDS,

2019 WL 2060114, at *3 (D. Mass. May 9, 2019) (quoting DJA with

added emphasis); see Watchtower Bible and Tract Soc’y of N.Y.,

Inc. v. Colombani, 712 F.3d 6, 11 (1st Cir. 2013) (“Declaratory

Judgment Act, 28 U.S.C. § 2201, simply is not a grant of

jurisdiction.”). The DJA “does not itself confer subject matter

jurisdiction, but, rather, makes available an added anodyne for

disputes that come within the federal courts’ jurisdiction on

some other basis.” Ernst & Young v. Depositors Econ. Prot.

Corp., 45 F.3d 530, 534 (1st Cir. 1995); accord In re the Fin.

Oversight and Mgmt. Bd. for P.R., 919 F.3d 638, 645 (1st Cir.

19 The subject-matter jurisdiction asserted in each pleading

is identical. (Docket Entry # 1, ¶ 2) (Docket Entry # 11, ¶ 2).

For convenience, this court references only the first amended

complaint.

26

2019) (quoting same language in Ernst & Young, 45 F.3d at 534);

Boston Redevelopment Auth. v. Nat’l Park Serv., 838 F.3d 42, 48

(1st Cir. 2016).

On April 13, 2018, defendants filed the motion to dismiss

all of the claims in the amended complaint on the basis of claim

preclusion, the merits, and the Rooker-Feldman doctrine.20

(Docket Entry # 13). Plaintiff filed an opposition to the motion

on April 27, 2018. (Docket Entry # 15). Less than a month

later, he filed a motion for class certification. (Docket Entry

# 16). In lieu of responding, defendants asked for an extension

of time to oppose the class certification motion until after this

court ruled on the motion to dismiss. (Docket Entry # 19). On

June 5, 2018, this court granted the motion for an extension.

On March 29, 2019, this court allowed the motion to dismiss

the federal claims on claim preclusion and on the merits.

(Docket Entry # 22). At the same time and in lieu of declining

to exercise supplemental jurisdiction, this court allowed a

dismissal of the state law claims solely on the basis of claim

preclusion but held the dismissal of these claims in abeyance

until a decision on the pending class certification motion filed

almost a year earlier. (Docket Entry # 22, pp. 29, 40-41). The

March 29, 2019 decision did not address defendants’ merits-based

20 See Rooker v. Fidelity Tr. Co., 263 U.S. 413 (1923); D.C.

Court of Appeals v. Feldman, 460 U.S. 462 (1983).

27

argument to dismiss the state law claims. (Docket Entry # 22).

On April 12, 2019, defendants filed the opposition to class

certification. (Docket Entry # 25). Three days later, plaintiff

filed the motion to reconsider the dismissal of the federal

claims and the state law claims. (Docket Entry # 26). The July

3, 2019 opinion addressed both the federal and the state law

claims, allowed reconsideration of the claim-preclusion dismissal

of the state law claims, and denied reconsideration of the

merits-based dismissal of the federal claims. (Docket Entry #

30). Again less than one month later, defendants filed the

motion to reconsider the denial of claim preclusion for the state

law claims. (Docket Entry # 31). Plaintiff opposed the motion

and asserted there was no bar to prevent him from litigating the

state law claims. (Docket Entry # 32). The motion therefore

called into question the existence of a remedy in state court in

the event this court declined supplemental jurisdiction and

dismissed the state law claims without prejudice.

DISCUSSION

Supplemental jurisdiction under 28 U.S.C. § 1367 (“section

1367”) provides a basis to exercise jurisdiction where, as here,

the state law claims are “so related to” the federal claims “that

they form part of the same case or controversy under Article III

of the United States Constitution.” 28 U.S.C. § 1367(a). “State

and federal claims are part of the same ‘case or controversy’ for

28

the purposes of section 1367(a) if they ‘“derive from a common

nucleus of operative fact” or “are such that [they] would

ordinarily be expected to [be] tr[ied] in one judicial

proceeding.”’” Allstate Interiors & Exteriors, Inc. v.

Stonestreet Constr., LLC, 730 F.3d 67, 72 (1st Cir. 2013)

(internal citations and ellipses omitted). The federal and state

law claims derive from plaintiff’s September 2011 speeding ticket

on Gardner Street and defendants’ failure to undergo the process

to obtain a special regulation under Massachusetts General Laws

chapter 90, section 18, to properly erect and enforce the speed

limit sign on Gardner Street. Accordingly, the necessary common

nucleus of operative fact exists between the federal substantive

and procedural due process claims and the state law ultra vires

claims.

The subsequent dismissal of the foundational federal claims

on March 29, 2019 does not deprive this court of jurisdiction.

Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 256–57

(1st Cir. 1996). Rather, it poses the question of whether to

retain jurisdiction under section 1367(c). See id. at 256–57 (in

“federal-question case, the termination of the foundational

federal claim . . . sets the stage for an exercise of the court’s

informed discretion”). In such instances, “the factors to”

consider “in determining whether to exercise supplemental

jurisdiction include ‘judicial economy, convenience, fairness,

29

and comity.’” Sexual Minorities Uganda v. Lively, 899 F.3d 24,

35 (1st Cir. 2018) (quoting Carnegie-Mellon Univ. v. Cohill, 484

U.S. 343, 350 n.7 (1998)). “Additionally, the court may consider

other relevant factors, including the presence of novel or

sensitive issues of state law.” Id. at 35. As is often stated,

it is “an abuse of discretion for a district court to retain

jurisdiction over the remaining pendent state law claims unless

doing so would serve ‘the interests of fairness, judicial

economy, convenience, and comity.’” Wilber v. Curtis, 872 F.3d

15, 23 (1st Cir. 2017) (internal citations omitted).

As noted, in March 2019, this court adjudicated the claim

preclusion of the state law ultra vires claims at the same time

it adjudicated the claim preclusion of the federal claims.

(Docket Entry # 22). Judicial economy and convenience provided a

basis to adjudicate both sets of claims because they involved the

same legal issue, i.e., claim preclusion, and the same procedural

facts, i.e., plaintiff’s state-court proceedings. See Redondo

Constr. Corp. v. Izquierdo, 662 F.3d 42, 49 (1st Cir. 2011)

(state and federal claims “rested on virtually the same factual

basis” and “sought essentially the same relief” which supported

retaining jurisdiction). In July 2019, this court addressed

reconsideration of the federal and the state law claims. Because

neither party raised nor objected to the continued exercise of

supplemental jurisdiction, this court addressed the state law

30

claims at the same time it addressed the federal law claims.

First and foremost, the parties waived any challenge to this

court’s exercise of supplemental jurisdiction at that time. See

Lawless v. Steward Health Care Sys., LLC, 894 F.3d 9, 20 (1st

Cir. 2018) (affirming discretionary exercise of supplemental

jurisdiction because “parties never challenged the district

court’s continuing exercise of supplemental jurisdiction” and

therefore “waived any such challenge”).

Moreover, the July 2019 decision determined that claim

preclusion did not bar relitigation of the state law ultra vires

claims. The ability to file a separate suit in state court is

germane to a determination of supplemental jurisdiction and thus

warranted a determination of the claim-preclusive effect of the

state law claims. See Rodriguez v. Doral Mortg. Corp., 57 F.3d

1168, 1177 (1st Cir. 1995) (“running of the statute of

limitations on a pendent claim, precluding the filing of a

separate suit in state court, is a salient factor to be evaluated

when deciding whether to retain supplemental jurisdiction”).

Here, the applicable tolling rules of 28 U.S.C. § 1367(d)

(“section 1367(d)”) suspend any state statute of limitations

during the pendency of this putative class action and for 30 days

after a dismissal.21 See Artis v. D.C., 138 S. Ct. 594, 603

21 The litigation in Zotos v. Town of Hingham, Civil Action

No. 12-11126-JGD, 2013 WL 5328478 (D. Mass. Sept. 19, 2013), was

not a class action proceeding. Hence, the court exercised

31

(2018) (section 1367(d), “phrased as a tolling provision[,]”

suspends state “statute of limitations for two adjacent time

periods: while the claim is pending in federal court and for 30

days postdismissal”); Deppner v. Spectrum Health Care Res., Inc.,

325 F. Supp. 3d 176, 191 (D.D.C. 2018). Hence, the statute of

limitations is no more of a bar to plaintiff’s state law claims

than it was at the outset of this litigation. Defendants are

just as likely to argue the statute of limitations, which they

previously asserted in opposing class certification (Docket Entry

# 25), as they would in a refiled state court proceeding raising

the ultra vires claims.22 More to the point, however, the July

2019 decision increased the likelihood of plaintiff’s ability to

refile the ultra vires claims in state court because they were no

longer barred under principles of claim preclusion. Thereafter

and upon review of defendants’ motion for reconsideration, it

became apparent that the state law claims were barred. The

resurgence of the issue of a state forum and remedy as barred by

claim preclusion thus provided justification to exercise

supplemental jurisdiction over the state law claims and decide

that issue by adjudicating defendants’ reconsideration motion.

supplemental jurisdiction in part because a dismissal would

implicate statute of limitations issues. (Docket Entry # 8-3, p.

32).

22 The original complaint relied on Massachusetts General

Laws chapter 260, section 32, to avoid a statute of limitations

bar. (Docket Entry # 1, ¶ 45).

32

See Rodriguez, 57 F.3d at 1177 (inability to file separate suit

in state court, albeit due to running of statute of limitations,

“is a salient factor” in deciding supplemental jurisdiction).

There is also no unfairness to plaintiff inasmuch as he

chose the federal forum. See generally Tomaiolo v. Mallinoff,

281 F.3d 1, 11 (1st Cir. 2002) (“perceiv[ing] no unfairness” in

continued exercise of supplemental jurisdiction because “Tomaiolo

chose to be in federal court, and once there received ample

opportunity to litigate all of her claims, federal and state”).

In any event, plaintiff waived any objection to this court’s

continued exercise of supplemental jurisdiction in deciding

defendants’ reconsideration motion because he presently requests

that this court “continue to exercise supplemental jurisdiction

over the state law claims in this case” (Docket Entry # 34). See

Lawless v. Steward Health Care Sys., LLC, 894 F.3d at 20.

Defendants, for their part, ask this court to “grant [their]

pending motion for reconsideration” (Docket Entry # 33, p. 5),

which necessarily entails exercising supplemental jurisdiction

over the state law claims.

CONCLUSION

In accordance with the foregoing discussion, the motion for

reconsideration (Docket Entry # 31) is ALLOWED and the state law

claims in counts I, II, and III are DISMISSED as barred under the

doctrine of claim preclusion.

33

/s/ Marianne B. Bowler

MARIANNE B. BOWLER

United States Magistrate Judge

34