# Belezos v. Board of Selectmen of Hingham, Massachusetts

> District Court, D. Massachusetts · November 27, 2019

URL: https://www.frixlaw.com/law-library/cases/10198231

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** November 27, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10198231

## How later opinions describe it (automated extraction)

- stating that unpublished decision cited by the defendant “is a summary decision issued by the [Massachusetts] Appeals Court pursuant to Rule 1:28 and consequently may be cited only for persuasive value, but not as binding precedent”
- noting that payment of motor vehicle fine under chapter 90C, section 3(A)(3), operates as final disposition and “affects automobile insurance premiums”
- explaining that agency’s actions were not ultra vires because the authority to take those actions was implied by the governing statute

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

NICHOLAS G. BELEZOS,
on behalf of himself and
all others similarly situated,
Plaintiff,

v. CIVIL ACTION NO.
17-12570-MBB

BOARD OF SELECTMEN of
Hingham, Massachusetts,
in their official capacity,
on behalf of themselves and
all others similarly situated,
Defendants.

MEMORANDUM AND ORDER RE:
PLAINTIFF’S MOTION FOR PLAINTIFF CLASS CERTIFICATION
(DOCKET ENTRY # 16)

November 27, 2019

BOWLER, U.S.M.J.
Pending before this court is a motion filed by plaintiff
Nicholas G. Belezos (“plaintiff”) to certify a proposed class,
designate himself as class representative, and designate
plaintiff’s current counsel, Frederic P. Zotos, Esq. (“Zotos”),
as class counsel pursuant to Fed. R. Civ. P. 23(c) and (g)
(“Rule 23”). (Docket Entry # 16). Plaintiff contends that
defendants Board of Selectmen of Hingham, Massachusetts
(“defendants”) erected, maintained, and enforced speed limit
signs without regulatory authority. According to plaintiff,
“[t]he claims can be proven on a classwide basis” and “382
potential plaintiff class members have already been identified.”
(Docket Entry # 16, p. 1). Defendants maintain that the
proposed class does not satisfy the requirements for class
certification. (Docket Entry # 25).

PROCEDURAL BACKGROUND
A first amended complaint sets out eight causes of action
against defendants arising out of a speeding ticket plaintiff
received for traveling in excess of a 30-mile-per-hour
(“m.p.h.”) speed limit reflected in a posted speed limit sign on
Gardner Street in Hingham, Massachusetts in violation of
Massachusetts General Laws chapter 90 (“chapter 90”), section 18
(“section 18”). (Docket Entry # 11, pp. 12, 40–51). Counts IV
through VIII allege federal constitutional claims, while counts
I through III are pendent ultra vires claims under state law.
(Docket Entry # 11, pp. 40-51). A prior opinion recites the
causes of action, which need not be repeated. (Docket Entry #

22, pp. 2-3).
Before filing suit in this court, Zotos, plaintiff’s
counsel, challenged a ticket he received for exceeding the 30
m.p.h. posted speed limit on Gardner Street in both state and
federal court. In federal court, Zotos challenged the
legitimacy of the speed limit sign on Gardner Street in Zotos v.
Town of Hingham, et al., Civil Action No. 12-11126-JGD, 2013 WL
5328478 (D. Mass. Sept. 19, 2013) (“Zotos I”), and again in
Zotos v. Town of Hingham, et al., Civil Action No. 13-13065-DJC
(D. Mass. Mar. 25, 2016) (“Zotos II”). (Docket Entry ## 8-3, 8-
6). In a lengthy opinion on the merits, the court in Zotos I
rejected Zotos’ federal constitutional and state law claims and
dismissed the action.1 (Docket Entry # 8-3). The First Circuit

upheld the dismissal. (Docket Entry # 8-4). Zotos filed Zotos
II prior to the First Circuit’s decision in Zotos I. (Docket
Entry ## 8-4, 8-5). On March 25, 2016, the court in Zotos II
issued a comprehensive opinion on the 42 U.S.C. § 1983 (“section
1983”) claims as well as the newly-added ultra vires state law
claims and dismissed the action. (Docket Entry # 8-6).
In the state court proceeding, Zotos exercised his right to
appeal a finding of “‘responsible’” made by a clerk-magistrate
in Hingham District Court for exceeding the posted 30 m.p.h.
speed limit sign on Gardner Street purportedly erected and
enforced in violation of section 18. (Docket Entry ## 25-2, 25-

3). After the Appellate Division of the District Court
Department (“the appellate division”) upheld the decision, Zotos
appealed the matter to the Massachusetts appeals court (“appeals
court”). (Docket Entry ## 25-1, 25-3). In an amended brief to

1 The state law claims consisted of abuse of process, fraudulent
misrepresentation, negligent misrepresentation, and unjust
enrichment. (Docket Entry # 8-3, p. 2).
the appeals court, Zotos argued that the erection and
enforcement of the 30 m.p.h. speed limit sign was ultra vires
and therefore unenforceable given the absence of an engineering
study and a special speed regulation under section 18 to support
the sign. (Docket Entry # 25-1). He also asserted violations

of substantive due process, namely, that the enforcement of the
illegally posted sign “shocks the conscience,” as well as
violations of procedural due process. (Docket Entry # 25-1).
The appeals court affirmed the decision of the appellate
division. (Docket Entry # 25-3); Hingham Police Dep’t v. Zotos,
No. 11-P-1716, 2012 WL 1689189 (Mass. App. Ct. May 16, 2012)
(unpublished). The Massachusetts Supreme Judicial Court (“SJC”)
denied Zotos’ request for leave to obtain further appellate
court review. Police Dep’t of Hingham v. Zotos, 973 N.E.2d 1269
(Mass. 2012) (table).
Before bringing this action in federal court, plaintiff
brought a number of similar claims against the same defendants

in Massachusetts Superior Court (“trial court”) in Belezos v.
Board of Selectmen of the Town of Hingham, No. PLCV2014-01018B
(“Belezos”). (Docket Entry # 15-1). In allowing defendants’
Mass. R. Civ. P. 12(c) motion, the trial court addressed and
rejected the merits of the state law ultra vires claims
regarding erecting and enforcing the 30 m.p.h. speed limit sign
on Gardner Street without a special speed regulation under
section 18. The trial court also dismissed the substantive and
procedural section 1983 claims largely based on the decisions in
Zotos I and Zotos II. (Docket Entry # 8-7). The appeals court
upheld the trial court’s dismissal on the basis that plaintiff
did not exhaust the statutory remedies provided in Massachusetts

General Laws chapter 90C (“chapter 90C”), section three. More
specifically, the appeals court considered it “unnecessary to
reach the merits of Belezos’s claims because he waived his right
to contest the” speeding ticket “by failing to pursue the remedy
expressly provided for by the Legislature” in chapter 90C,
section three. (Docket Entry # 8-8) (citing chapter 90C,
section three). Plaintiff filed an application for leave to
obtain further appellate court review (“ALOFAR”) with the SJC
and, during the pendency of the ALOFAR before the SJC, plaintiff
filed this action on December 28, 2017. The SJC denied the
ALOFAR in February 2018.2 (Docket Entry # 8-9); Belezos v. Board
of Selectman of Hingham, 102 N.E.3d 424 (Mass. 2018) (table).

The ultra vires state law claims and the federal due
process claims under section 1983 in plaintiff’s state court

2 Zotos also represented a plaintiff bringing similar claims
against the City of Salem in Sever v. City of Salem, Civil
Action No. 18-11482-MBB, which this court dismissed for lack of
standing on July 15, 2019. The case is presently on appeal
before the First Circuit. Sever v. City of Salem, 390 F. Supp.
3d 299 (D. Mass. 2019), appeal docketed, No. 19-1831 (1st Cir.
Aug. 30, 2019).
action and in Zotos II are similar to the ultra vires state law
claims and the federal section 1983 due process claims brought
in this action based on the 30 m.p.h. speed limit sign on
Gardner Street. (Docket Entry # 11, pp. 40-43) (Docket Entry #
15-1, pp. 29-32); (Docket Entry # 8-7, p. 4) (“core issue raised

by Zotos, now on behalf of Belezos, is: Did Hingham have the
right to install that sign, and did the Hingham police have the
authority to enforce a speed limit on Gardner St? . . . ‘Yes,
they did.’”) (emphasis added).
On March 29, 2019 in this proceeding, this court allowed a
motion to dismiss the individual federal law claims (counts IV
to VIII) on the basis of claim preclusion and, in the
alternative, on the merits.3 This court also determined that
claim preclusion barred the individual state law claims but held
the motion to dismiss these state law claims in abeyance pending
a determination of the class certification motion.4 (Docket
Entry # 22, p. 40). On July 3, 2019, this court allowed

plaintiff’s motion for reconsideration as to claim preclusion

3 See 3 William B. Rubenstein, Newberg on Class Actions, § 7:9
(5th ed. 2019) (courts “often handle [motions to dismiss] prior
to deciding a motion for class certification”); id. (also noting
“the trend” is “towards resolving motions to dismiss prior” to
class certification); see, e.g., Mitchell v. U.S. Airways, Inc.,
858 F.Supp.2d 137, 146 (D. Mass. 2012).
4 Defendants accurately recite this ruling (Docket Entry # 31,
p. 2) and plaintiff recognizes this court allowed the “dismissal
in part” (Docket Entry # 32, p. 3).
only on the state law claims in counts I through III. (Docket
Entry # 30). These individual claims, together with the
remaining putative class claims, therefore constitute the claims
in this proceeding at this juncture. On August 1, 2019,
defendants filed a motion to reconsider the July 2019 decision

as to claim preclusion on the state law claims, which remains
pending. (Docket Entry # 31).
STANDARD OF REVIEW
A class action may be certified if:
(1) the class is so numerous that joinder of all members is
impracticable; (2) there are questions of law or fact
common to the class; (3) the claims or defenses of the
representative parties are typical of the claims or
defenses of the class; and (4) the representative parties
will fairly and adequately protect the interests of the
class.

Fed. R. Civ. P. 23(a). Courts “must undertake a ‘rigorous
analysis’ to determine whether plaintiffs me[e]t the four
threshold requirements of Rule 23(a) . . ..” In re Nexium
Antitrust Litig., 777 F.3d 9, 17 (1st Cir. 2015) (internal
citations omitted). Nonetheless, the First Circuit recognizes
in Nexium that “[t]here cannot be a more stringent burden of
proof in class actions than in individual actions.” Id. at 20.
As such, a “‘[r]igorous analysis’” “does not require raising the
bar for plaintiffs higher than they would have to meet in
individual suits.” Id. at 20 (quoting Gen. Tel. Co. of the Sw.
v. Falcon, 457 U.S. 147, 161 (1982)) (emphasis in original).
Where, as here, certification is sought pursuant to Rule
23(b)(2), the court must determine whether defendants have
“acted or refused to act on grounds that apply generally to the
class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a

whole.” Fed. R. Civ. P. 23(b)(2). When a plaintiff seeks to
certify a proposed class under Rule 23(b)(3)——also at issue in
the case at bar——it must be shown that “questions of law or fact
common to class members predominate over any questions affecting
only individual members, and that a class action is superior to
other available methods for fairly and efficiently adjudicating
the controversy.” Fed. R. Civ. P. 23(b)(3). As with Rule
23(a), “‘“rigorous analysis”’” is typically applied to
determinations of whether Rule 23(b) requirements are satisfied.
Schonton v. MPA Granada Highlands LLC, Civil Action No. 16-
12151-DJC, 2019 WL 1455197, at *1 (D. Mass. Apr. 2, 2019)
(quoting In re Nexium Antitrust Litig., 777 F.3d at 17).

Whereas this court considers the pleadings, see Gen. Tel. Co. of
the Sw. v. Falcon, 457 U.S. at 160 (“[s]ometimes the issues are
plain enough from the pleadings to determine whether the
interests of the absent parties are fairly encompassed within
the named plaintiff’s claim, and sometimes it may be necessary
for the court to probe behind the pleadings before coming to
rest on the certification question”), plaintiff must “satisfy
through evidentiary proof at least one of the provisions of Rule
23(b).” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013). The
analysis “will frequently entail overlap with the merits of the
plaintiff’s underlying claim” because “class determination
generally involves considerations that are enmeshed in the

factual and legal issues comprising the plaintiff’s cause of
action.” Id. at 33-34 (internal quotation marks and citations
omitted); accord In re New Motor Vehicles Canadian Exp.
Antitrust Litig., 522 F.3d 6, 24 (1st Cir. 2008) (“It is a
settled question that some inquiry into the merits at the class
certification stage is not only permissible but appropriate to
the extent that the merits overlap the Rule 23 criteria.”).
Inquiry into the merits, however, is relevant only to ascertain
satisfaction of “Rule 23 prerequisites.” Amgen Inc. v.
Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013).
Plaintiff, as the party seeking class certification, “bears the
burden of ‘affirmatively demonstrat[ing] his compliance’ with

the Rule 23 requirements.” In re Nexium Antitrust Litig., 777
F.3d at 18 (quoting Comcast Corp. v. Behrend, 569 U.S. at 33).
BACKGROUND
Succinctly stated, plaintiff alleges that defendants posted
and enforced speed limit signs without following the procedures
required to make them legally enforceable. His claims relate to
the speeding citations that he and other drivers received
pursuant to these signs on Hingham roadways.
Section two of Massachusetts General Laws chapter 85
(“chapter 85”) authorizes cities and towns to erect and maintain
traffic signs, but cautions that “‘speed control signs may be

established only in accordance with the provisions of section
eighteen of chapter ninety.’” (Docket Entry # 11, p. 3, ¶ 6)
(quoting chapter 85, section two) (emphasis omitted). In turn,
section 18 of chapter 90 authorizes the highway division of the
Massachusetts Department of Transportation (“MassDOT”) to make
special regulations regarding motor vehicle speeds albeit “[n]o
such regulation shall be effective until” erection of “signs,
conforming to standards adopted by the department.” Mass. Gen.
Laws ch. 90, § 18. MassDOT adopted such standards in
promulgating the MassDOT Highway Division Procedures for Speed
Zoning on State and Municipal Roadways (“MassHwy Procedures”).
(Docket Entry # 11, pp. 4-8, ¶ 8) (Docket Entry # 11-1). The

MassHwy Procedures, in turn, states that section 18 “authorizes
the posting of numerical speed limits on all roadways in
Massachusetts” and that:
The foundation for the actual posting of a speed limit is a
thorough traffic engineering study. After a study has been
completed, a Special Speed Regulation is drafted and
approved by the governing authority of the roadway, the
Registry of Motor Vehicles and MassDOT. All posted
regulatory speed limit signs must adhere to this approval
process. If a speed limit is posted without this
procedure, it is in violation of Chapter 90, Section 18,
and is therefore considered illegal and unenforceable.
(Docket Entry # 11-1, pp. 4-5).5 The Massachusetts Amendments to
the 2009 Manual on Uniform Traffic Control Devices (“MUTCD”)
explains the step-by-step process as follows:
Of the special regulations adopted by municipalities under
the provisions of Chapter 90, Section 18 of the General
Laws, the most commonly used is the special regulation of
the speed of motor vehicles. Considerable data including
speed observations and trial runs must be obtained by
municipal officials, usually the Police Department. The
final determination is based upon the 85-percentile method,
which is that speed at or below which 85% of the vehicles
observed were actually traveling . . ..
Procedures for Establishment of Legal Speed Zones
(1) The municipality is to conduct proper studies and
submit data to the Department . . ..
(2) After the speed zones, proposed by the local
authorities, are reviewed by the Department, they are
returned to the municipality for formal adoption by the
rule-making body. During this time, the municipality is
responsible for any and all hearings required for adoption.
(3) Upon receipt of notice of formal adoption by the
municipality, the Department, acting jointly with the
Registry, will certify and approve.
(4) Certified regulation is returned to municipality.
(5) Official Speed Limit signs may then be installed in
accordance with the specific provisions of the approved
speed regulation.
(6) The Special Speed Regulation is then enforceable
against violators.

5 Page numbers here and elsewhere refer to the page number in
the upper right hand corner of the docketed filing rather than
the page number of the actual exhibit.
(Docket Entry # 11-2, pp. 11-12) (Docket Entry # 11, pp. 8-9, ¶
10).
On September 28, 2011, a Hingham police officer issued the
civil motor vehicle infraction (“CMVI”) to plaintiff for
speeding on Gardner Street “under the authority of Mass. Gen. L.

ch. 90, § 18.” (Docket Entry # 11, p. 12, ¶ 15) (Docket Entry #
11-3). The officer cited plaintiff for operating a vehicle at a
rate of speed exceeding the posted speed limit of 30 m.p.h.
(Docket Entry # 11-3). The officer appeared at a subsequent
CMVI hearing and offered as evidence the citation, which
operates as “prima facie evidence of the facts stated in the
citation.” (Docket Entry # 11, p. 13, ¶ 17) (Docket Entry # 11-
3) (Docket Entry # 25-1, p. 4); see Mass. Gen. Laws ch. 90C, §
3(A)(4). The citation reflects that plaintiff was speeding in a
posted 30 m.p.h. speed zone and has checked boxes corresponding
to “radar,” “posted,” and “estimated.” (Docket Entry # 11-3).
A clerk-magistrate found plaintiff responsible, and he paid a

$100 assessment. (Docket Entry # 11, pp. 13-14, ¶¶ 18-20)
(Docket Entry # 11-5).
A January 2012 letter from a District Highway Director
informed plaintiff’s counsel, Zotos, that “the District’s
Records” showed no evidence that a special speed regulation “was
ever issued” for Gardner Street. (Docket Entry # 11-9).
Furthermore, minutes of an August 2015 meeting addressed by a
traffic committee of the Town of Hingham to defendants indicate
there are 30 m.p.h. speed limit signs on Gardner Street:
but there is no record of them . . . The signs which are
currently posted are not permitted but are still
enforceable. The question is whether they are challenged
in court, if it would[,] they would be found to be illegal
and the Town might be sued.

(Docket Entry # 11-10, p. 2) (Docket Entry # 11, p. 17, ¶ 28)
(emphasis omitted).
A 2012 “GPS Survey [of] Posted Speed Limits [for the] Town
of Hingham” conducted by Zotos reflects that 66% of the speed
limit signs surveyed under the town’s jurisdiction “lacked a
required Special Speed Regulation” (“Zotos Speed Study”).
(Docket Entry # 11-8, pp. 1-2). The study spans the time period
of March 2 to 23, 2012, during which “Zotos conducted a visual
and photographic GPS survey” of Hingham roadways and identified
60 “speed limit signs for which there was no record” in the town
or MassDOT files of the issuance “of any Special Speed
Regulations.” (Docket Entry # 11-8, pp. 2, 6-7).6 In an August
24, 2012 letter to the Board of Selectman, a MassDOT State
Traffic Engineer notified the town that, upon review of MassDOT
files, the files contained special speed regulations for five
streets, none of which appear on table three in the Zotos Speed
Study. (Docket Entry # 11-16, p. 3) (Docket Entry # 11-8, pp.

6 As previously noted, page numbers refer to the page number of
the filing as docketed.
6-7). The letter recognizes the relief MassDOT may provide when
notified of an unlawfully posted speed limit sign, namely, that
the department may remove the sign. (Docket Entry # 11-16, p.
2) (quoting chapter 85, section two); Mass. Gen. Laws ch. 90, §
18 (“Any sign, purporting to establish a speed limit, which has

not been erected in accordance with the foregoing provisions may
be removed by or under the direction of the department.”).
In support of class certification, plaintiff filed 382
civil traffic citations issued by Hingham police officers from
September 2011 to January 2018 on 25 Hingham roadways.7 (Docket
Entry ## 17-1 to 17-25). Plaintiff attaches the citations to an
affidavit by Zotos in which Zotos attests to the veracity of
various facts in the first amended complaint. (Docket Entry #
17). The citations all charge violations of section 18 based on
posted speeds. (Docket Entry # 17, p. 2, ¶ 5) (Docket Entry ##
17-1 to 17-25). In a number of the citations, the officers’
method of determining speed varies to include boxes checked as

“clocked,” “radar,” “lidar,” and/or “estimated” in addition to

7 Plaintiff filed another 16 citations for section 18 violations
on various Hingham roadways that resulted in criminal
applications or arrests in light of other charges in the
citations. (Docket Entry # 17, p. 5, ¶ 32) (Docket Entry # 17-
26). As an aside and not considered for purposes of class
certification, the majority of the traffic citations postdate
the Zotos Speed Study as well as the August 24, 2012 letter
identifying the five streets at that time that had a special
speed regulation. (Docket Entry ## 17-1, 17-2, 17-4, 17-5, 17-7
to 17-11, 17-13 to 17-26).
“posted.” (Docket Entry ## 17-1 to 17-26). The majority of the
posted speed rates in the citations are for 30 m.p.h., although
they also include 40 m.p.h. and 45 m.p.h. rates, and a number of
the roadways have more than one posted speed limit sign.
(Docket Entry ## 17-1 to 17-26). The rates of speed, largely

within a 30 m.p.h. posted area, differ as well. For example,
whereas one citation charges a motorist with traveling 40 m.p.h.
in a 30 m.p.h. zone, another charges a different motorist with
traveling 51 m.p.h. in a 30 m.p.h. zone. (Docket Entry # 17-9,
p. 28) (Docket Entry # 17-14, p. 2). A number of the citations
include charges for other driving offenses, including section 17
of chapter 90 (“section 17”). (Docket Entry ## 17-2 to 17-9,
17-11, 17-13 to 17-19, 17-22 to 17-26).
Separately, the first amended complaint, filed in March
2018, represents there are at least 26 speed limit signs “posted
on the public roadways under the sole jurisdiction of the Town
of Hingham” which do not have “approved special speed

regulations on file with MassDOT.” (Docket Entry # 11, pp. 17-
18, ¶ 30) (citing Zotos Speed Study, Docket Entry # 11-8, pp. 6-
7, listing signs without special speed regulations as of March
23, 2012). The first amended complaint further states that from
September 28, 2011 to January 28, 2018, the Town issued 1,247
traffic citations on roadways in Hingham that did not have
“approved special speed regulations on file with MassDOT.”
(Docket Entry # 11, p. 19, ¶ 33(a)). The discussion below
includes additional facts.
DISCUSSION
The first amended complaint defines the putative class as
follows:

Any person who received motor vehicle traffic
citations for violation of a special speed regulation
lawfully made under the authority of Mass. Gen. L. ch.
90, § 18, i.e., operating a vehicle at a rate of speed
in excess of a Speed Limit sign (R2-1), where (in
fact) there is no such approved special speed
regulation, and who, by reason thereof, suffered or
experienced an adverse legal consequence, including
payment of an assessment, surcharge, cost or fee in
disposition of the citation, or whose admission or
finding of responsibility have [sic] been or may be
counted against them in the future for the purposes of
adversely affecting their driving record or automobile
insurance premium, or all these things, from September
28, 2011, to the date of the judgment in this action.
(Docket Entry # 11, p. 35, ¶ 58).8 In order to allow class
certification, plaintiff must meet all four threshold
requirements under Rule 23(a), as well as at least one of the
requirements of Rule 23(b)(1), (2) or (3). See Amchem Prods.,
Inc. v. Windsor, 521 U.S. 591, 613-14 (1997). Plaintiff asserts
that the proposed class, in addition to meeting the requirements

8 The supporting memorandum to the class certification motion
truncates this definition. (Docket Entry # 16). The defendant
class members consist of the Selectman and various town and
state officials who erected, maintained, or enforced speed limit
signs that lacked a special speed regulation or “who, by reason
thereof, enjoyed or experienced a favorable legal consequence.”
(Docket Entry # 11, p. 36, ¶ 60).
of Rule 23(a), satisfies both Rule 23(b)(2) and Rule 23(b)(3).
Finally, with respect to appointment of class counsel, plaintiff
contends that “Zotos is qualified, experienced and able to
litigate this case” pursuant to Rule 23(g). (Docket Entry # 16,
p. 13) (capitalization and emphasis omitted).

I. Ascertainability
In addition to the foregoing requirements of Rule 23, it is
an implicit prerequisite to class certification that a putative
class be ascertainable; that is, “it must be ‘administratively
feasible to determine whether a particular individual is a
member.’” Schonton v. MPA Granada Highlands LLC, 2019 WL
1455197, at *3 (internal citations omitted). It is not
necessary that every class member be identified, “but the class
must be sufficiently ascertainable to permit a court to ‘decide
and declare who will receive notice, who will share in any
recovery, and who will be bound by the judgment.’” Id. at *3
(citing, inter alia, Crosby v. Soc. Sec. Admin. of the United

States, 796 F.2d 576, 580 (1st Cir. 1986)). Although plaintiff
need not specifically identify each proposed class member, he
must present “‘stable and objective factors’ at the outset of a
case” by which potential members can be deemed part of the
class. Id. at *3 (internal citation omitted); see In re Nexium
Antitrust Litig., 777 F.3d at 19; 1 William B. Rubenstein,
Newberg on Class Actions § 3:1 (5th ed. 2019).
Plaintiff submits “[a]scertainability is not a hurdle here,
since traffic citations (of c. 90, § 18 violations) and special
speed regulations (indicating authorized signs) are all
recorded.” (Docket Entry # 16, p. 7). The key characteristics
of class members are receipt of citations for speeding in excess

of posted speed limit signs “‘lawfully made’” under section 18
when, in fact, there is no approved special speed regulation for
the erected signs. (Docket Entry # 11, p. 35, ¶ 58). The
citations all identify the Hingham roadway at issue, the
individual’s name, the posted speed, and the charged violation
of section 18. The citations, taken together with records at
MassDOT and/or the town documenting the multilayered process to
erect a posted speed limit sign, provide objective criteria to
ascertain class membership. The class is therefore sufficiently
ascertainable. Accordingly, this court turns to the
requirements of Rule 23(a).
II. Rule 23(a) Requirements

A. Numerosity
Under Rule 23(a)(1), a plaintiff seeking to certify a class
must show that “the class is so numerous that joinder of all
members is impracticable.” Fed. R. Civ. P. 23(a)(1). There is
no minimum number of plaintiffs necessary to establish
numerosity, “‘but generally if the named plaintiff demonstrates
that the potential number of plaintiffs exceeds 40, the first
prong of Rule 23(a) has been met.’” García-Rubiera v. Calderón,
570 F.3d 443, 460 (1st Cir. 2009) (internal citations omitted).
Here, relying on the 382 traffic citations attached to the
Zotos affidavit, plaintiff maintains there are “hundreds of
plaintiff class members” which amount to a figure “almost ten

(10x) greater than the 40 person threshold.” (Docket Entry #
16, pp. 6-7). Plaintiff’s attempt to demonstrate numerosity is
not without flaws. Most obviously, it is possible that a number
of motorists received multiple citations——in which case the
number of putative class members may be lower than 382.
However, given the “low threshold for numerosity” and that a
plaintiff generally need only show that the “potential” number
of class members is greater than 40, plaintiff sufficiently
demonstrates numerosity.9 García-Rubiera v. Calderón, 570 F.3d
at 460.
B. Commonality
Turning to the second Rule 23(a) requirement, commonality,

a putative class can be certified only when “there are questions

9 Defendants argue that plaintiff fails to establish numerosity
because the 382 citations were issued on 24 separate streets in
the Town of Hingham, and each street contains multiple speed
limit signs. (Docket Entry # 25, pp. 14-15). Thus, defendants
contend that plaintiff’s showing is “representative of twenty-
four separate groupings of plaintiffs.” (Docket Entry # 25, p.
15). With respect to numerosity, the argument is not
convincing. Separately, defendants’ failure to count Water
Street leads to 25 separate streets with 25 separate groupings.
(Docket Entry # 17-25).
of law or fact common to the class.”10 Fed. R. Civ. P. 23(a)(2).
The “common questions of law or fact” that plaintiff identifies
include:
a. Whether Defendants’ conduct of erecting, maintaining
and enforcing Speed Limit signs (R2-1) as alleged
herein violates Mass. Gen. L. ch. 90, § 18 (and set
forth in Mass. Gen. L. ch. 85, § 2), the “Procedures
for Speed Zoning on State and Municipal Roads”, and
“The Massachusetts Amendments to the 2009 Manual on
Uniform Traffic Control Devices”;
b. Whether Defendants’ conduct of erecting, maintaining
and enforcing Advisory Speed plaques (W13-1P) as
alleged herein violates the “Procedures for Speed
Zoning on State and Municipal Roads” (as authorized by
Mass. Gen. L. ch. 90, § 18 and set forth in Mass. Gen.
L. ch. 85, § 2);

c. Whether Defendants’ conduct of [restraining motorists,
leveling false section 18 charges, and] fabricating
false prima facie evidence of Speed Limit signs and
traffic citations as alleged . . . deprives Plaintiffs
of their property and liberty without due process of
law; and,

d. Whether the lack of any evidentiary proof requirement
under Mass. Gen. L. ch. 90C, § 3(A)(4) or Mass. Gen.
L. ch. 90, § 17, or both of these, pertaining to
whether a Speed Limit sign (R2-1) has been duly
established upon any way in accordance with the
provisions of Mass. Gen. L. ch. 90, § 18 (i.e., a
special speed regulation), deprives Plaintiffs of their
property and liberty without due process of law.

(Docket Entry # 11, pp. 37-38, ¶ 63) (Docket Entry # 16, p. 8).

10 “It is well settled that the requirement of ‘common questions
of law or fact’ in Rule 23(a) is disjunctive; that is, either a
question of law or a question of fact will suffice.” 1 William
B. Rubenstein, Newberg on Class Actions § 3:21 (5th ed. 2019)
(emphasis in original).
“Commonality requires the plaintiff to demonstrate that the
class members ‘have suffered the same injury.’ This does not
mean merely that they have all suffered a violation of the same
provision of law.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
338, 349-350 (2011) (quoting Gen. Tel. Co. of the Sw. v. Falcon,

457 U.S. at 157). To satisfy commonality, putative class claims
“must depend upon a common contention . . . of such a nature
that it is capable of classwide resolution——which means that
determination of its truth or falsity will resolve an issue that
is central to the validity of each one of the claims in one
stroke.” Id. at 350.
What matters to class certification . . . is not the
raising of common “questions”—even in droves—but rather,
the capacity of a class-wide proceeding to generate common
answers apt to drive the resolution of the litigation.
Dissimilarities within the proposed class are what have the
potential to impede the generation of common answers.
Id. at 350 (quoting Richard A. Nagareda, Class Certification in
the Age of Aggregate Proof, 84 N.Y.U. L. REV. 97, 132 (2009)
(emphasis in original)). Furthermore, “[t]he commonality test
is more qualitative than quantitative, and thus, there need be
only a single issue common to all members of the class.” 1
William B. Rubenstein, Newberg on Class Actions § 3:20 (5th ed.
2019); see also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. at 359
(“[F]or purposes of Rule 23(a)(2), ‘“[e]ven a single [common]
question”’ will do.”). “[T]he requirement is easily met in most
cases.” 1 William B. Rubenstein, Newberg on Class Actions §
3:20 (5th ed. 2019).
In the case at bar, plaintiff contends that commonality is
satisfied because all putative class members suffered the same
injury, namely, “the Selectmen’s same enforcement of

unauthorized speed limit signs by issuance of traffic
citations.” (Docket Entry # 16, p. 8). Defendants point out
that a key aspect of plaintiff’s theory of relief is “that the
law requires a separate engineering study” for each speed sign.
(Docket Entry # 25, p. 16). While this is true, it is not fatal
to commonality.
Dukes makes clear that claims of harm arising from a truly
common source, such as illegal bias arising from a
particular supervisor, can provide the common contention
required for a class action. Even where that common
contention is shown . . . individual questions will of
course remain as to how to remedy the harm to a particular
[class member] . . . But those inquiries go not to
commonality (since clearly, these are not common questions
of fact) but to predominance.
George v. Nat’l Water Main Cleaning Co., 286 F.R.D. 168, 175 (D.
Mass. 2012) (emphasis added); see also Crowe v. Examworks, Inc.,
136 F. Supp. 3d 16, 47 (D. Mass. 2015). Here, all members of
the class can trace their injury to a common source:
defendants’ alleged noncompliance with state laws and MassDOT
standards, arising through their failure to conduct speed
studies for Hingham roadways with posted speed limits or
advisory speed limits leading to purportedly false charges and
illegal enforcement of the posted and advisory speed limits.
This suffices to establish commonality.
C. Typicality
Next, a plaintiff seeking to certify a class must establish
that “the claims or defenses of the representative parties are

typical of the claims or defenses of the class.” Fed. R. Civ.
P. 23(a)(3). “‘The central inquiry . . . is whether the class
representatives’ claims have the same essential characteristics
as the claims of the other members of the class.’” Barry v.
Moran, Civil Action No. 05-10528-RCL, 2008 WL 7526753 at *11 (D.
Mass. May 7, 2008) (quoting McLaughlin v. Liberty Mut. Ins. Co.,
224 F.R.D. 304, 310 (D. Mass. 2004)). Typicality may be
satisfied when putative class claims “‘arise[] from the same
event or practice or course of conduct that gives rise to the
claims of the other class members, and . . . are based on the
same legal theory.’” García-Rubiera v. Calderón, 570 F.3d at
460 (internal citations omitted). Typicality “ensure[s] that

the plaintiff’s interests are ‘aligned with those of the
represented group, [so that] in pursuing his own claims, the
named plaintiff will also advance the interests of the class
members.’”11 1 William B. Rubenstein, Newberg on Class Actions §

11 To the extent plaintiff seeks certification of putative
federal claims, his lack of a viable federal claim renders his
claims not typical of the putative class members’ federal
claims. “[T]he typicality requirement demands that a member of
3:29 (5th ed. 2019) (citations omitted); accord Schonton v. MPA
Granada Highlands LLC, 2019 WL 1455197, at *7 (typicality
ensures that “‘named plaintiffs, in presenting their case, will
necessarily present the claims of the absent plaintiffs’”)
(internal brackets and citations omitted). Like commonality,

typicality serves as a “guidepost[] for determining whether
under the particular circumstances maintenance of a class action
is economical and whether the named plaintiff’s claim and the
class claims are so interrelated that the interests of the class
members will be fairly and adequately protected in their
absence.’” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. at 349 n.5.

the class be the class representative.” 1 William B.
Rubenstein, Newberg on Class Actions § 3:28 (5th ed. 2019); see
also E. Texas Motor Freight Sys. Inc. v. Rodriguez, 431 U.S.
395, 403 (1977) (“this Court has repeatedly held, a class
representative must be part of the class and ‘possess the same
interest and suffer the same injury’ as the class members”);
accord Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 625-26
(1997) (quoting Texas Motor, 431 U.S. at 403); W. Virginia ex
rel. McGraw v. CVS Pharmacy, Inc., 646 F.3d 169, 176 (4th Cir.
2011) (“class action is an action filed by an individual as a
member of a class and whose claim is typical of the class
members’ claims”) (emphasis in original); Chisholm v. U.S.
Postal Serv., 665 F.2d 482, 493 (4th Cir. 1981); see generally
White v. Baptist Mem’l Health Care Corp., 699 F.3d 869, 878 (6th
Cir. 2012); Wiesmueller v. Kosobucki, 513 F.3d 784, 787 (7th
Cir. 2008) (“decision that the claim of the named plaintiffs
lacks merit ordinarily” disqualifies plaintiff “as proper class
representative[]”). In the alternative, the putative federal
class claims also fail certification for the same reasons the
state law putative class claims fail.
(quoting Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. at 157–
158, n.13).
In the case at bar, plaintiff argues that his claims “are
typical of, indeed identical to” those of the other class
members, all of which “involve the Selectmen’s same misconduct

of erecting, maintaining and enforcing unauthorized speed limit
signs by issuance of traffic citations.” (Docket Entry # 16, p.
10). Plaintiff asserts that typicality is met because “[t]he
systemic failure of the Selectmen to obey statutes and
regulatory standards exposes everyone to harm.” (Docket Entry #
16, p. 11). Defendants argue that “the evidence underlying the
posting of each sign must be separately analyzed to determine
whether the sign was posted with or without a traffic
engineering study.” (Docket Entry # 25, pp. 17-18).
At a general level, the claims emanate from the purportedly
illegal conduct of erecting and enforcing speed limit signs that
were unauthorized under section 18. The essential

characteristics of the claims, however, arise from the legality
of each individual sign and defendants’ course of conduct or
practice in erecting and enforcing that sign. Plaintiff’s
interest centers on presenting the illegality of the 30 m.p.h.
speed limit sign on upper Gardner Street to show his claims that
defendants’ conduct was ultra vires. Even assuming these claims
typify the claims of other putative class members who received a
citation under the same 30 m.p.h. sign on Gardner Street,12
however, such claims are not typical of claims by putative class
members who received citations elsewhere, each of whom would
require a separate inquiry into the legality of the sign
corresponding to his or her citation.13 Again, the class

includes individuals cited on 25 separate roadways (Docket Entry
# 17-1 to 17-26) (Docket Entry # 17, ¶¶ 6-32) under different
speed limit signs subject to different erection and enforcement
proceedings which, in turn, evidence (or do not evidence) each
sign’s illegally. Thus, plaintiff’s claims do not “‘arise[]
from the same event’”——posting and enforcing a sign on Gardner
Street——“‘that gives rise to the claims of other class
members.’” García-Rubiera v. Calderón, 570 F.3d at 460
(internal citations omitted). Nor do they arise from the same
practice of repeatedly enforcing that sign against 13 other
drivers. (Docket Entry # 17-14). In other words, it is not
likely that plaintiff, in pursuing his claims regarding the

ultra vires illegality of the posted speed limit on upper

12 The citations attached to the Zotos affidavit include 13
citations against drivers for violating a 30 m.p.h. speed limit
sign on Gardner Street. (Docket Entry # 17-14). A duplicate
citation for Gardner Street appears in another exhibit. (Docket
Entry # 17-26, p. 14) (Docket Entry # 17-14, p. 10).
13 Here again, if more than one putative class member received a
citation for speeding in excess of the same posted sign, then
the claims of these members overlap each other but are still not
typical of plaintiff’s claims under a different sign.
Gardner Street, will advance the interests of the putative class
members challenging different speed limit signs posted at
different times on different roadways and supported, if at all,
by a speed study. Consequently, typicality is lacking.
D. Adequacy of Representation

Because plaintiff fails to demonstrate typicality, it is
unnecessary to consider the fourth Rule 23(a) requirement at
length. It suffices to state that at this juncture in the
proceedings, this court is not aware of conflicts between
plaintiff and the proposed class members.
II. Rule 23(b) Requirements
Even if plaintiff could show that all four requirements of
Rule 23(a) are satisfied——which he has not done——he would still
have to show that the proposed class satisfies one of the
requirements of Rule 23(b)(1), Rule 23(b)(2), or Rule 23(b)(3).
Plaintiff submits that the putative class meets the requirements
of Rule 23(b)(2) and Rule 23(b)(3). (Docket Entry # 16, p. 14).

“Alternatively, he seeks certification of a declaratory and
injunctive relief subclass under Rule 23(b)(2), and a damages
subclass under Rule 23(b)(3). If the court does not certify a
damages subclass under Rule 23(b)(3), then he instead seeks
certification of a liability-only subclass under Rule 23(b)(3).”
(Docket Entry # 16, p. 14) (citations omitted).
A. Rule 23(b)(2)
Plaintiff argues that Rule 23(b)(2) certification is
appropriate because defendants “have acted and refused to act on
grounds generally applicable to the entire plaintiff class, so
that final declaratory or injunctive relief would be appropriate
to the plaintiff class as a whole, i.e., they have erected,

maintained and enforced unauthorized speed limit signs with
arbitrarily low speed limits.” (Docket Entry # 16, p. 15).
Plaintiff maintains that “Rule 23(b)(2) is also appropriate,
because [he] predominantly seeks declaratory and injunctive
relief that ‘would benefit the entire class.’” (Docket Entry #
16, p. 16) (citation omitted). He explains that “[e]ven though
monetary relief is also sought, these relatively small
individual amounts are more or less incidental to the
declaratory and injunctive relief.” (Docket Entry # 16, p. 16).
Defendants respond that the injunctive and declaratory relief
plaintiff seeks is not answered in a single question or by a
single injunction. Rather, each sign raises separate legal and

factual issues suitable, if at all, for individualized
injunctive or declaratory relief. (Docket Entry # 25, p. 19).
They also submit that the putative class members seek monetary
damages and that Rule 23(b)(2) does not authorize individualized
monetary awards.
Under Rule 23(b)(2), “the party opposing the class” must
have “acted or refused to act on grounds that apply generally to
the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a
whole.” Fed. R. Civ. P. 23(b)(2). As emphasized by the Supreme
Court in Wal-Mart:
Rule 23(b)(2) applies only when a single injunction or
declaratory judgment would provide relief to each member of
the class. It does not authorize class certification when
each individual class member would be entitled to a
different injunction or declaratory judgment against the
defendant. Similarly, it does not authorize class
certification when each class member would be entitled to
an individualized award of monetary damages.

Wal–Mart Stores, Inc. v. Dukes, 564 U.S. at 360-61 (emphasis in
original).14 Extensively amended in 1966, “the Rule reflects a
series of decisions involving challenges to racial segregation-
conduct that was remedied by a single classwide order.” Id. at

14 Wal-Mart, an employment discrimination case, foreclosed “ex-
employee standing to sue for injunctive and declaratory relief”
under Rule 23(b)(2). Chen-Oster v. Goldman, Sachs & Co., 877 F.
Supp. 2d 113, 121 (S.D.N.Y. 2012); see 2 William B. Rubenstein,
Newberg on Class Actions § 4:32 (5th ed. 2019) (noting, in
context of employment discrimination case seeking to certify
class of past and current employees, that because “the
injunctive relief would appear to affect only current, and not
former, employees, it would not apply to the class as a whole
and thus the class would seem to fall without the language of
Rule 23(b)(2). Indeed, the Supreme Court’s decision in the Wal-
Mart case appears to foreclose (b)(2) certification on this
ground.”) (internal citations omitted); see also In re Nexium
(Esomeprazole) Antitrust Litig., 297 F.R.D. 168, 174 (D. Mass.
2013) (enjoining “reverse payment agreements at the conclusion
of a March 2014 trial . . . provides but little relief when the
reverse payment agreements are set to expire just three months
later, in May 2014” and, given “such limited injunctive relief,
especially where the primary relief sought is monetary damages,”
Rule 23(b)(2) class certification “is inappropriate”), aff’d sub
nom. In re Nexium Antitrust Litig., 777 F.3d 9 (1st Cir. 2015).
361; see Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614
(1997). “The key to the (b)(2) class is ‘the indivisible nature
of the injunctive or declaratory remedy warranted——the notion
that the conduct is such that it can be enjoined or declared
unlawful only as to all of the class members or as to none of

them.’” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. at 360
(internal citation omitted).
As indicated, Rule 23(b)(2) certification is also not
appropriate when monetary claims are more than incidental. See
id. at 360 (holding that claims for monetary relief “may not” be
certified under Rule 23(b)(2) “at least where (as here) the
monetary relief” of back pay “is not incidental to the
injunctive or declaratory relief”). Here, the monetary damages
for plaintiff and putative class members consist of a refund of
the fines, costs, and surcharges for the citation based on the
illegal and unenforceable posted and advisory speed limit signs.
(Docket Entry # 11, p. 54, ¶ 13). Whereas a number of citations

do not impose a fine, a substantial number of other citations
show fines ranging from $150 to $430. (Docket Entry # 17-1 to
17-25). The monetary damages sought also encompass
“compensatory damages,” including “actual, consequential and
incidental damages” (Docket Entry # 11, p. 54), a description
that would, for example, include increases in automobile
insurance premiums. See generally Police Dep’t of Salem v.
Sullivan, 953 N.E.2d 188, 190 (Mass. 2011) (noting that payment
of motor vehicle fine under chapter 90C, section 3(A)(3),
operates as final disposition and “affects automobile insurance
premiums”); Mass. Gen. Laws ch. 90C, § 3(A)(3). These and other
compensatory damages for each putative class member are not

incidental to the injunctive and declaratory relief plaintiff
identifies. (Docket Entry # 16, p. 14) (Docket Entry # 11, p.
53). Even assuming defendants’ conduct can be declared unlawful
as to all putative class members or none at all, certification
under Rule 23(b)(2) fails. See Wal-Mart Stores, Inc. v. Dukes,
564 U.S. at 362 (“[I]ndividualized monetary claims belong in
Rule 23(b)(3).”). Hence, because the monetary claims are not
merely incidental to the injunctive and declaratory relief, Rule
23(b)(2) certification does not apply.
B. Rule 23(b)(3)
Rule 23(b)(3) allows certification when “the court finds
that the questions of law or fact common to class members

predominate over any questions affecting only individual
members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the
controversy.” Fed. R. Civ. P. 23(b)(3). In assessing
predominance:
Issues are characterized as common or individual primarily
based on the nature of the evidence: If “the members of a
proposed class will need to present evidence that varies
from member to member, then it is an individual question.”
If “the same evidence will suffice for each member to make
a prima facie showing,” or if the issue is “susceptible to
generalized, class-wide proof,” then it is a common issue.

2 William B. Rubenstein, Newburg on Class Actions § 4:50 (5th
ed. 2019) (citations and bullet points omitted). “Common
questions do not predominate if ‘a great deal of individualized
proof’ would need to be introduced or ‘a number of
individualized legal points’ would need to be established after
common questions were resolved.” 2 William B. Rubenstein,
Newberg on Class Actions § 4:50 (5th ed. 2019) (citations
omitted). As compared with Rule 23(a)’s commonality
requirement, “‘the predominance criterion is far more
demanding.’” Schonton v. MPA Granada Highlands LLC, 2019 WL
1455197, at *10 (quoting Amchem Prods., Inc. v. Windsor, 521
U.S. at 624).
Plaintiff argues that common questions of law “are
dispositive of the issue of liability. Evidence exists which
proves the factual elements of the case on a simultaneous,
classwide basis, according to plaintiff. This includes records
of speed limit signs, special speed regulations, and individual
traffic citations indicating c. 90, ¶ 18 violations and street
locations,” according to plaintiff. (Docket Entry # 16, p. 17).
To the contrary, establishing common evidence to show
liability does not predominate. See generally Gintis v.
Bouchard Transp. Co., Inc., 596 F.3d 64, 67 (1st Cir. 2010)
(focus on remand “will be on the plaintiffs’ claim that common
evidence will suffice to prove injury, causation and
compensatory damages” for “substantial portions of the claims”
by putative class members). Rather, individualized “‘questions

will overwhelm common ones.’” In re Nexium Antitrust Litig.,
777 F.3d at 21 (internal citations and emphasis omitted). Here,
plaintiff seeks certification of a class which would include
members cited for speeding violations on 25 separate roadways, a
number of which contain multiple speed limit signs.15 (Docket
Entry # 16, p. 1) (Docket Entry # 17, pp. 2-5, ¶¶ 7-32) (Docket
Entry ## 17-1 to 17-26). Putative class members were cited on
25 separate roadways, at numerous speed limit signs, for
traveling various speeds. The only way to establish defendants’
liability to each class member would be to examine each one
individually, given that each sign’s legality requires a
separate and independent engineering study. Plaintiff’s

contention that the claims “arise from the Selectmen’s
standardized conduct, procedures and policies of erecting,
maintaining and enforcing speed limit signs” and that “[t]here
is no dispute that the Selectmen have uniformly engaged in the

15 Again, plaintiff’s traffic violation relevant to the case at
bar is a single citation for speeding in excess of a “30 m.p.h.
Speed Limit sign posted on Gardner Street.” (Docket Entry # 11,
p. 12, ¶ 15).
described conduct” (Docket Entry # 16, p. 17) overlooks the
myriad of individualized legal and factual issues that
predominate defendants’ erection of each sign and the
enforcement of each sign regarding each putative class member.
Thus, after resolving and establishing the general procedure for

defendants to erect a posted speed limit sign on a Hingham
roadway under section 18, “‘a great deal of individualized
proof,’” 2 William B. Rubenstein, Newberg on Class Actions §
4:50 (5th ed. 2019) (citations omitted), becomes necessary to
resolve the legal and factual issues regarding the erection of
each posted speed limit sign and, more specifically, whether the
town adhered to the process set out in the MassHwy Procedures or
the MUTCD with respect to each sign. Notably, “common
questions” do not “predominate if, ‘“as a practical matter, the
resolution of an overarching common issue breaks down into an
unmanageable variety of individual legal and factual issues.”’”
2 William B. Rubenstein, Newberg on Class Actions § 4:50 (5th

ed. 2019) (internal ellipses, brackets and citations omitted).
In formulating a “‘prediction as to how’” the “‘issues will
play out,’” In re New Motor Vehicles Canadian Exp. Antitrust
Litig., 522 F.3d at 25 (internal citation omitted), determining
liability will require discrete inquiries as to each member
concerning the sign at which that member was cited. To provide
an example, the erection date of each sign as predating or
postdating the imposition of a traffic engineering study as a
requirement presents individualized issues, as pointed out by
defendants. (Docket Entry # 25, p. 18).
Further, the fact that a sign is not posted under section
18 with an approved speed regulation, as plaintiff suggests,

does not necessarily establish defendants’ liability to the
putative class member under the state law claims, which was
exactly the case with Zotos’ similar individual ultra vires
state law claims in Zotos II. See Zotos v. Town of Hingham, et
al., Civil Action No. 13-13065-DJC (D. Mass. Mar. 25, 2016).
Additional divergence of proof will arise to ascertain whether a
class member was, like Zotos, traveling in a section-17 posted
area such as a school zone, business district, or thickly
settled area. To place this divergence of proof in context, a
brief explanation of the merits is helpful.16
As explained in Zotos II:
An officer “may be said to act ultra vires only when he
acts without any authority whatever.” New Hampshire Ins.
Guar. Assen v. Markem Corp., 424 Mass. 344, 353 (1997)
(internal quotation marks omitted) (quoting Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 n.11 (1984));
cf. Entergy Nuclear Generation Co. v. Dep’t of Envtl.
Prot., 459 Mass. 319, 332 (2011) (explaining that agency’s
actions were not ultra vires because the authority to take
those actions was implied by the governing statute). Only
a procedure that has “no authority” in the relevant
statutes, considering both the authority expressly and

16 This court is examining the merits only to ascertain the
predominance of the issues under Rule 23(a) and not to make a
free-standing merits determination.
impliedly granted, is ultra vires. Morey v. Martha’s
Vineyard Comm’n, 409 Mass. 813, 818 (1991).

Zotos v. Town of Hingham, et al., Civil Action No. 13-13065-DJC
(D. Mass. Mar. 25, 2016); see also Alliance to Protect Nantucket
Sound, Inc. v. Dep’t of Pub. Utilities, 959 N.E.2d 413, 431
(Mass. 2011) (noting, in context of addressing state agency’s
ultra vires conduct, that statute “‘taken as a whole’” shapes
agency’s powers, including powers “‘necessarily or reasonably
implied’”) (internal citations omitted); Souza v. Sheriff of
Bristol Cty., 918 N.E.2d 823 (Mass. 2010). For the ultra vires
claims to survive, the conduct of the putative defendant class
must be “without any authority whatsoever.” Id.
Both section 17 and section 18 pertain to motor vehicle
speed limits and traffic signs. Zotos v. Town of Hingham, et
al., Civil Action No. 13-13065-DJC (D. Mass. Mar. 25, 2016); see
generally Alliance to Protect Nantucket Sound, Inc. v. Dep’t of
Pub. Utilities, 959 N.E.2d at 431 (“consider[ing] both the
authority specifically conferred on the department by § 83 and
that conferred more generally by the department’s enabling
statutes” in assessing claim of “ultra vires administrative

action”). Captioned “Speed limits,” section 17 sets out the
fundamental and overarching command that, “No person operating a
motor vehicle on any way shall run it at a rate of speed greater
than is reasonable and proper . . ..” Mass. Gen. Laws ch. 90, §
17. Section 18, in turn, pertains to establishing a “special
regulation as to the speed of a motor vehicle” and allows the
posting of a regulatory speed limit sign if “certain procedures
are followed.” Hingham Police Dep’t v. Zotos, 2012 WL 1689189,
at *1. “If a speed limit is posted in violation of § 18, it

cannot [and does not] mean that there is no speed limit
whatsoever for that area.” Id. “In such an instance, § 17 is
the fallback position as to what is reasonable and proper.” Id.
Simply stated, “if a speed limit is posted in violation of § 18,
§ 17 controls.” Id.; Zotos v. Town of Hingham, et al., Civil
Action No. 13-13065-DJC (D. Mass. Mar. 25, 2016) (applying this
principle to ultra vires claims). At a minimum, section 17’s
reasonable and proper speed limit controls over section 18
illegal and legally posted speed limits. See Cambridge Police
Dep’t v. Olenick, No. 09-P-1845, 2010 WL 2609456, at *1 (Mass.
App. Ct. July 1, 2010) (in both “posted and unposted areas . .
., the police have to establish that a defendant was driving ‘at

a rate of speed greater than is reasonable and proper’”)
(unpublished); accord Commonwealth v. Diviacchi, No. 13-P-1020,
2014 WL 2719698, at *1 (Mass. App. Ct. June 17, 2014) (“the
issue under § 17 as well as under § 18 is whether the defendant
was driving ‘at a rate of speed greater than is reasonable and
proper’”) (quoting section 17) (unpublished).17 Indeed, the
MassHwy Procedures, upon which plaintiff relies, state that
section 17’s reasonable and proper speed is “the fundamental
speed law” and that a special speed regulation, i.e., one
erected under section 18, does not supersede it. (Docket Entry

# 11-1, p. 5) (“reasonable and proper” is “fundamental speed
law” and “[n]o form of regulation . . . can supersede it”); see
Natick Police Dep’t v. Labutti, No. 07–P–1785, 2008 WL 5047854,
at *1-2 (Mass. App. Ct. 2008) (quoting this language from
MassHwy Procedures and finding defendant’s 51 m.p.h. speed not
“reasonable and proper” under section 17 and also examining
argument that defendant complied with posted regulatory 50
m.p.h. speed) (unpublished).
Hence, given the foregoing, even if the section 18-erected
sign is illegal as to a putative class member cited for a
section 18 violation, section 17 controls. Thus, the board of
selectmen putative class defendants do not act ultra vires as to

a putative class plaintiff traveling in excess of a reasonable
and proper speed limit in an area with a section 17-erected

17 This court cites and relies on unpublished decisions only for
their persuasive value and not as binding precedent. Ameriprise
Fin. Servs., Inc. v. Brady, 325 F. Supp. 3d 219, 230 (D. Mass.
2018) (stating that unpublished decision cited by the defendant
“is a summary decision issued by the [Massachusetts] Appeals
Court pursuant to Rule 1:28 and consequently may be cited only
for persuasive value, but not as binding precedent”).
traffic sign. See Zotos v. Town of Hingham, et al., Civil
Action No. 13-13065-DJC (D. Mass. Mar. 25, 2016). Having
analyzed this underlying liability solely to ascertain
predominance, additional divergence of proof will arise for
putative class members traveling in section-17 designated school

zones, business districts, or thickly settled areas. Further
divergence results in determining whether the rates of speed of
these putative class plaintiffs exceed the reasonable and proper
speed for that designated area.
In short, defendants’ liability to putative class members
therefore presents “‘individual question[s]’” because “‘the
members of a proposed class will need to present evidence that
varies from member to member.’” 2 William B. Rubenstein,
Newberg on Class Actions § 4:50 (5th ed. 2019) (citations
omitted). Indeed, defendants’ liability cannot be a “common
issue” because “‘the same evidence will [not] suffice . . . to
make a prima facie showing’” and because the issue is not

“‘susceptible to generalized, class-wide proof.’” Id. § 4:50
(citations omitted). Plaintiff nevertheless asserts that
evidence exists which supports the “factual elements of the case
on a simultaneous, classwide basis,” such as the “records of
speed limit signs.” (Docket Entry # 16, p. 17). The fact
remains, however, that each class member (or each group of class
members cited under a single sign) will rely on different
evidence to prove the illegality of the sign that led to the
ticket(s) at issue. Moreover, in the case of putative class
members traveling in section-17 posted areas, the proof will
likely entail their reasonable and proper rate of speed as
exceeding the speed for that designated area. In sum, because

“‘a great deal of individualized proof’ would need to be
introduced,” common “questions do not predominate.” 2 William
B. Rubenstein, Newberg on Class Actions § 4:50 (5th ed. 2019).
Turning to superiority, plaintiff submits this “is a
classic case with relatively small recoveries, in which the
small amount of individual monetary damages makes the retention
of counsel on an individual basis prohibitively expensive.”
(Docket Entry # 16, p. 18). Motorists cited for traffic
violations lack the incentive to litigate claims that only
generate small recoveries, according to plaintiff. He also
quotes language from an SJC decision in which the court held
that a decision to pay a traffic citation cannot be used as an

admission at a later civil trial. (Docket Entry # 16, p. 18)
(quoting LePage v. Bumila, 552 N.E.2d 80, 82 (Mass. 1990)). As
stated in LePage, “mount[ing] a judicial challenge to a traffic
citation takes time and money (almost certainly exceeding the
fine), and often involves a great deal of aggravation. In the
context of a $40 noncriminal fine, those factors bear much
greater weight than the righteousness of one’s cause.” Id.
Plaintiff additionally asserts that “remedies against government
officials” are replete with “fictional explanations,” and a
putative class member does not necessarily have the expertise to
pursue such claims. (Docket Entry # 16, p. 19). According to
plaintiff, a class action will avoid individual, “[p]iecemeal

litigation,” which imposes a “burden on the courts” and creates
a “risk of inconsistent results.” (Docket Entry # 16, p. 19).
Defendants point out that Massachusetts provides an
efficient and inexpensive method to challenge speeding
citations, namely, the process laid out in section three of
chapter 90C. They point out that both Zotos and plaintiff fully
availed themselves of that process. (Docket Entry # 25, p. 20).
Zotos challenged the failure to comply with section 18
procedures to post the 30 m.p.h. speed limit sign on Gardner
Street throughout his state court appeal of the clerk-
magistrate’s decision finding him responsible. Neither Zotos
nor plaintiff were successful. Defendants additionally contend

that certifying a class for 382 motorists cited for section 18
violations based on theories “repeatedly rejected” is both
“clumsy and inefficient.” (Docket Entry # 25, p. 20).
In assessing superiority, factors this court considers
include:
(A) the class members’ interests in individually
controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the
controversy already begun by or against class members;

(C) the desirability or undesirability of concentrating the
litigation of the claims in the particular forum; and

(D) the likely difficulties in managing a class action.

Fed. R. Civ. P. 23(b)(3).18 As evidenced by the traffic
citations plaintiff submits, putative class members previously
litigated their traffic citations before a clerk-magistrate or
other hearing officer thus evidencing some desire to control
their own litigation. See 2 William B. Rubenstein, Newberg on
Class Actions § 4:70 (5th ed. 2019) (citing advisory committee’s
comment as implying that “other pending litigation is evidence
that individuals have an interest in controlling their own
litigation”) (emphasis omitted). It is unclear, however, if
these prospective class members pursued an appeal and, if so,
whether they raised the claims proposed for class certification.
Moreover, it is the putative class members’ interest in
controlling the litigation of the putative class claims that
warrants consideration. Where, as here, each putative class
member’s claim is small, the putative class member is likely to
have far less interest in controlling his or her own litigation

18 These factors are also relevant to the predominance inquiry.
Fed. R. Civ. P. 23(b)(3). For instance, the potential problems
managing the varying issues and proof relative to each of the
signs at issue in each of the traffic citations militated
against finding predominance.
of the matter. See In re Dial Complete Mktg. and Sales
Practices Litig., 312 F.R.D. 36, 57 (D.N.H. 2015) (“‘[g]iven the
size of the claims, individual members have virtually no
interest in individually controlling the prosecution of separate
actions’”) (quoting In re Hannaford Bros., 293 F.R.D. 21, 33–34

(D. Me. 2013)).
Notably, “‘The policy at the very core of the class action
mechanism is to overcome the problem that small recoveries do
not provide the incentive for any individual to bring a solo
action prosecuting his or her rights.’” Amchem Prods., Inc. v.
Windsor, 521 U.S. at 617 (internal citation omitted). As
similarly expressed by the First Circuit in Smilow, “[t]he core
purpose of Rule 23(b)(3) is to vindicate the claims of consumers
and other groups of people whose individual claims would be too
small to warrant litigation.” Smilow v. Sw. Bell Mobile Sys.,
Inc., 323 F.3d 32, 41 (1st Cir. 2003) (citations omitted). In
these so-called “‘negative-value’” suits, the class method is

often the only viable method because “the value of the claim is
dwarfed by the costs of adjudicating it.” 2 William B.
Rubenstein, Newberg on Class Actions § 4:87 (5th ed. 2019)
(internal citations omitted).
Here, the core purpose of the class action method of
vindicating small claims that are otherwise too small to pursue
is served by adhering to the class method but it is also served
in the streamlined procedures provided in chapter 90C, section
three, which gives defendants the opportunity to raise issues of
law to the appellate courts. See generally Commonwealth v.
Mongardi, 522 N.E.2d 984, 987 (Mass. App. Ct. 1988)
(“noncriminal method of enforcement permitted by the statute is

essentially a sensible, simple, administrative method of making
necessary traffic rules effective, without clogging the courts,
causing undue public inconvenience and resentment, or depriving
any citizen of full opportunity at his option for a judicial
determination of facts”) (internal citations, brackets,
ellipses, and quotation marks omitted). In comparing the two
methods, however, the relatively small recoveries coupled with
the likely need to appeal a clerk-magistrate’s finding of
responsibility to obtain a more complete resolution of issues of
law in an individualized chapter 90C procedure reduces the
incentive to litigate the claims individually. Accordingly, the
class method provides the superior means to adjudicate the

controversy. See 2 William B. Rubenstein, Newberg on Class
Actions § 4:85 (5th ed. 2019) (“the ‘superior’ moniker implies
that the search is for the best of the lot”) (citations
omitted); see generally In re Warfarin Sodium Antitrust Litig.,
391 F.3d 516, 534 (3d Cir. 2004) (“individual consumer class
members have little interest in ‘individually controlling the
prosecution’ . . . because each consumer has a very small claim
in relation to the cost of prosecuting a lawsuit”) (internal
citation omitted). In sum, the strong absence of predominance
coupled with the lack of typicality foreclose certification
under Rule 23(b)(3) notwithstanding the superiority given the
small monetary damages as well as other concerns.

Defendants also argue that a number of the putative class
members’ claims fail because they are untimely under the
applicable three-year statute of limitations in Massachusetts
for tort and ultra vires claims. (Docket Entry # 25, p. 13)
(citing Mass. Gen. Laws ch. 260, § 2A). They do not tie this
argument, which appears in their opposition to class
certification, to any particular Rule 23(a) or 23(b) factor.19
Differences in the application of the same statute of
limitations to class members’ claims are relevant but not
automatically fatal to class certification. See generally Waste
Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir.
2000). Specifically, “‘possible differences in the application

of a statute of limitations to individual class members . . .
does not preclude certification of a class action so long as the

19 To the extent the argument seeks a merits determination of
the timeliness of putative class members’ claims, class
certification is not a merits determination, and merits
questions are considered “only to the extent . . . they are
relevant to determining whether the Rule 23 prerequisites for
class certification are satisfied.” Amgen Inc. v. Connecticut
Ret. Plans & Tr. Funds, 568 U.S. at 466.
necessary commonality and, in a 23(b)(3) class action,
predominance, are otherwise present.’” Id. at 296 (citations
omitted). Whereas Mowbray involved the more complex and
divergent application of different statutes of limitations in
effect in different states, the decision recognizes that

differences in the application of a statute of limitations
warrants consideration, id., and cases apply the principle in
Mowbray to differences in applying the same statute of
limitations to different class members. See, e.g., In re Celexa
and Lexapro Mktg. and Sales Practices Litig., 325 F.R.D. 529,
540 (D. Mass. 2017) (noting that plaintiffs did not show “common
issues predominate with respect [to] the statute of limitations
defenses,” albeit in context of applying discovery rule). As to
predominance in the case at bar, the differences in the statute
of limitations for each putative class member’s claims are
discrete and highly unlikely to pose difficulties in managing a
class action. As to numerosity, the three year statute of

limitations may reduce the number of class members but that
number still exceeds 40 by a comfortable margin. In light of
the above and the brevity of defendants’ contention regarding
the statute of limitations, defendants’ argument is not
convincing in the context of this motion.
C. Alternative Certification Arguments
As an alternative to certification under Rule 23(b)(2) or
Rule 23(b)(3), plaintiff summarily states that:
he seeks certification of a declaratory and injunctive
relief subclass under Rule 23(b)(2),[20] and a damages
subclass under Rule 23(b)(3). See Fed. R. Civ. P. 23(c)(4)
& (5). If the Court does not certify a damages subclass
under Rule 23(b)(3), then he instead seeks certification of
a liability-only subclass under Rule 23(b)(3). Id.

(Docket Entry # 16, p. 14). At the end of the argument section
in the motion for class certification, plaintiff repeats the
option that:
the Court may choose to separate claims or issues within
the complaint, and thereby specify and certify a damages
subclass under Rule 23(b)(3). See Fed. R. Civ. P. 23(c)(4)
& (5). If the Court declines to certify a damages subclass
under Rule 23(b)(3), then it may instead certify a
liability-only subclass under Rule 23(b)(3).

(Docket Entry # 16, p. 20). He provides no developed argument
to support these three subclasses or any analysis regarding why
such subclass certification is appropriate and satisfies Rule
23. Plaintiff therefore fails in his burden to “‘affirmatively
demonstrate his compliance’ with Rule 23” regarding these
proposed subclasses. Comcast Corp. v. Behrend, 569 U.S. at 33
(internal citation omitted); see, e.g., Riva v. Ashland, Inc.,
Civil Action No. 09-12074-DJC, 2011 WL 6202888, at *12 (D. Mass.

20 Plaintiff repeats this statement later in the filing, again
citing Fed. R. Civ. P. 23(c)(4) and (5). (Docket Entry # 16, p.
17).
Dec. 13, 2011) (plaintiff’s summary presentation to certify
class under Rule 23(c)(5) did not satisfy his burden).
IV. Rule 23(g) Appointment of Class Counsel
Because plaintiff fails to establish the requisite elements
for class certification, it is unnecessary to consider

plaintiff’s argument for the appointment of Zotos, who prepared
and authored the Zotos speed study, as class counsel. (Docket
Entry # 16, pp. 13-14).
CONCLUSION
In accordance with the foregoing discussion, the motion for
class certification (Docket Entry # 16) is DENIED.

/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10198231. Public record. Not legal advice.