3137, LLC v. Town of Harwich

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

)

3137, LLC, 541 MAIN STREET REALTY )

TRUST, EMBER PIZZA, INC., THE PORT )

RESTAURANT AND BAR, INC., JUSTIN R. )

BRACKETT, and JARED G. BRACKETT, )

)

Plaintiffs, )

)

v. ) Case No. 21-cv-10473-DJC

)

TOWN of HARWICH, et al., )

)

Defendants. )

)

__________________________________________)

MEMORANDUM AND ORDER

CASPER, J. January 28, 2022

I. Introduction

Plaintiffs 3137, LLC, 541 Main Street Realty Trust, Ember Pizza, Inc. (“Ember”), The Port

Restaurant and Bar, Inc. (“The Port”), Justin Brackett and Jared Brackett (collectively,

“Plaintiffs”) have filed this lawsuit against Defendants Town of Harwich, Joseph F. Powers, David

J. Guillemette, Kevin M. Considine, Michael D. Macaskill, Larry G. Ballantine, Donald F. Howell,

Edward J. McManus, Stephen P. Ford1 (collectively, “Town”), Gail O. Sluis (“Sluis”), Patricia A.

O’Neill (“O’Neill”), and Does 1-10 (collectively, “Defendants”), asserting violations of their First

and Fourteenth Amendment rights (Count I), the Massachusetts Civil Rights Act (“MCRA”) and

state constitutional rights (Counts II and III), intentional interference with contractual and

economic relations (Count IV), common law conspiracy (Count V) and defamation (Count VI) in

1 Defendants notified the Court that Stephen P. Ford passed away on April 9, 2021. D. 26.

connection with the Town’s enforcement of its Noise Ordinance (“Ordinance”) and the state’s

COVID-19 restrictions. D. 37. The Town defendants and Sluis have moved to dismiss. D. 58;

D. 60. For the reasons discussed below, the Court ALLOWS the motions.

II. Standard of Review

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

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

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

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

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

perform a close reading of the claim to distinguish the factual allegations from the conclusory legal

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

legal conclusions are not entitled credit. Id. Second, the Court must determine whether the factual

allegations present a “reasonable inference that the defendant is liable for the conduct alleged.”

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

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

García-Catalán, 734 F.3d at 103 (citation omitted).

III. Factual Background

The following facts are drawn from the amended complaint, D. 37, and documents

referenced therein, and the Court assumes the well-pled facts to be true for the purpose of resolving

the motions to dismiss.2

2 Both motions seek dismissal on the basis that Plaintiffs have failed to comply with the pleading

requirements set forth in Fed. R. Civ. P. 8. See D. 59 at 29; D. 61 at 5. As noted above, the Court

only has considered the alleged facts that are well-pled and has “ignore[d] statements in the

complaint that simply offer legal labels and conclusions.” Schatz, 669 F.3d at 55. Accordingly,

dismissal on Rule 8 grounds is not warranted.

A. The Port and Ember

The Port and Ember are restaurants in Harwich, Massachusetts. D. 37 ¶ 37. Both

restaurants have previously held a liquor license granted annually (or seasonally) by the Harwich

Board of Selectmen (“Board”) and approved by the Massachusetts Alcoholic Beverages Control

Commission (“ABCC”). Id. Both restaurants have also held an entertainment license, which

allows them to play music (amplified or acoustic) indoors and outdoors, at certain times. Id. ¶ 39.

B. Ordinance Violations and Discipline

Harwich’s Ordinance provides, in relevant part, that, “[i]t shall be unlawful for any person

or persons to cause or allow any noise which emanates from any building, boat, structure, vehicle,

premises, or any sound amplification system, which is plainly audible at a distance of 150 feet

from any such building, boat, structure, vehicle, premises or sound amplification system.” Id. ¶

42; D. 37-3 at 1. Plainly audible noise “constitute[s] prima facie evidence of a violation.” Id.

The Ordinance defines “plainly audible” as “[a]ny sound from a source regulated by this bylaw

that can be detected above routine or normal ambient background noise by unaided human

hearing.” Id. ¶ 44.

In June 2019, following increased noise complaints, the Town established a seven-member

noise committee, which originally included an employee of Sluis’ restaurant but no representative

from Plaintiffs’ restaurants. Id. ¶ 67. A representative from one of Plaintiffs’ restaurants was later

added to the committee but the noise committee was disbanded shortly after his appointment. Id.

¶ 68.

Plaintiffs allege that false noise complaints against Ember were called into Harwich Police,

orchestrated by the owner of Perks, a competitor, and that the Town selectively enforced the

Ordinance and lacked a written policy for same. Id. ¶¶ 57, 69-70, 72. In September 2019, the

Town Administrator issued findings that four of the complaints showed a violation of the

Ordinance. Id. ¶ 69. On October 28, 2019, the Board voted to suspend Ember’s entertainment

license for two days, and limited Ember’s entertainment license on five additional days to acoustic

only performances. Id. ¶ 70. At that meeting, the Board indicated that “there will be a second

hearing for . . . additional violations.” D. 37-11 at 3-4. On February 27, 2020, the Town

Administrator held a further hearing to address the violations, where Town counsel Gregg Corbo

(“Corbo”) advised the Board on hearing procedure and presented the Town’s case against Ember.

D. 37 ¶¶ 73-74. On August 3, 2020, in light of additional Ordinance violations and the fact that

Plaintiffs did not serve at least some of their prior suspension in summer 2020 (due to the

pandemic), the Board voted to rescind its prior discipline and impose a seven-day suspension of

Ember’s entertainment license covering all the 2019 Ordinance violations. Id. ¶ 90; D. 37-31.

Plaintiffs allege that the seven-day suspension was erroneously imposed and failed to consider its

responses to the underlying violation reports. D. 37 ¶ 90. At the same meeting, the Board voted

to suspend Perks’ entertainment license for one day, despite three written warnings, one

unconfirmed violation, five confirmed violations between 2016 and 2018, and two confirmed

violations in 2019. Id. ¶ 91. On August 13, 2020, the Board imposed the suspension of Ember’s

entertainment license. Id. ¶ 72. Ember did not receive any noise complaints in 2020. Id.

C. COVID-19 Restrictions

By May 2020, Massachusetts COVID-19 guidance allowed restaurants to remain open for

takeout food and alcohol sales. Id. ¶ 76. On May 28, 2020, the Harwich Police Deputy Chief

referred several alleged violations of the guidance by The Port and Ember to the Town. Id. ¶ 78;

D. 37-16. Plaintiffs allege that these violations were unsupported by the narratives of Harwich

police investigating the violations. Id. ¶ 78. Plaintiffs further allege that the Town did not

discipline other establishments for violating the state restrictions by allowing alcohol consumption

on-premises and hosting live entertainment. See id. ¶¶ 76-79.

In July 2020, Harwich restaurants were allowed to seat patrons outside and patrons could

consume alcohol so long as they were served by wait staff and food was available for purchase.

Id. ¶ 80. On July 10, 2020, a Harwich Police officer accused The Port of allowing a patron to exit

the restaurant with an open container of alcohol and demanded that The Port install a doorman

every night of the summer. Id. ¶ 81. Plaintiffs allege that the “offending can of alcohol” was sold

by Perks. Id. ¶ 82. The Port filed a complaint about the incident with the Harwich Police

Department, but no action was taken. Id. ¶ 83. Six days after Plaintiffs filed the complaint, on

July 16 and 17, 2020, three investigators from the ABCC visited The Port and claimed that it had

violated the State’s “phase 2” COVID-19 guidance, although The Port alleges it was then operating

under “phase 3” guidance. Id. ¶ 86; D. 37-37 at 42-43. Plaintiffs allege that ABCC investigators

did not visit any other licensed establishment in the Town at that time. D. 37 ¶ 86.

D. Board Hearings

On August 12, 2020, the Board held a remote disciplinary hearing regarding Plaintiffs’

alleged COVID-19 violations that was subsequently suspended due to technical difficulties. Id.

¶¶ 92-93. At the hearing, Corbo advised the Board on questions of procedure and evidence and

led direct examination of witnesses. Id. ¶ 93. The hearing was continued until January 12, 2021,

despite Plaintiffs and their counsel being unavailable. Id. ¶¶ 97-98.

Meanwhile, Plaintiffs had applied to renew their entertainment license from the Town in

November 2020. Id. ¶ 96. On February 21, 2021, the Board approved entertainment licenses for

other establishments, but not Plaintiffs’ restaurants. Id. ¶ 100. The Board declined to vote on the

renewal pending the results of the Board’s hearing related to the alleged COVID-19 guidance

violations. Id. ¶ 101. On February 8, 2021, the Town Administrator submitted findings to the

Board, prepared by Corbo, and such findings were sent to Plaintiffs on February 11, 2021. Id. ¶

102. The Board scheduled a public hearing for February 16, 2021. Id. Then, a public hearing was

scheduled for March 21, 2021 but continued while the Board sought advice regarding potential

conflicts of interest that it believed were created by ongoing litigation between Plaintiffs and the

Town, including this lawsuit. D. 37 ¶ 105. On April 23, 2021, Defendants’ counsel represented

that the State Ethics Commission had cleared the Board for a public hearing on April 26, 2021, but

Plaintiffs have not been provided with any written determination of same. Id. ¶ 108.

In advance of the April 26, 2021 hearing (and subsequent hearings), the Board allegedly

refused to include certain documents and letters of support that Plaintiffs allege would refute the

Town Administrator’s prior findings. Id. ¶ 114. During the hearing, the Board stated that they

had discussed with each other and with Harwich residents ex parte concerning outdoor noise

complaints at Plaintiffs’ restaurants, which was not previously disclosed to Plaintiffs. Id. ¶ 115.

The Police Chief similarly stated that he did not disclose any complaints he had received to

Plaintiffs, but also did not refer any such complaints to the Board as Ordinance violations. Id. The

Board then renewed Ember’s liquor and entertainment licenses but imposed an acoustic-only

restriction on Ember’s entertainment license. Id. ¶ 116. On April 27, 2021, the Board held a public

meeting where it revoked The Port’s expanded outdoor dining permit, and Plaintiffs allege that the

Board denied Plaintiffs’ counsel the chance to meaningfully cross-examine adverse witnesses and

refused to consider the full extent of Plaintiffs’ proposed designs and improvements to

accommodate its expanded outdoor dining. Id. ¶ 117. As a result of the revocation, The Port lost

the deposit on its tent and had to refund deposits for six wedding reception reservations. Id. ¶ 118.

On May 10, 2021, the Board imposed the same acoustic-only restriction on The Port’s 2021

entertainment license but did not impose the same on Perks despite Perks’ two violations of the

Ordinance in 2019. Id. ¶ 120. On May 12, 2021, the Board renewed The Port’s liquor license, but

suspended it for three days as discipline for the COVID-19 violations articulated in the Board’s

February findings. Id. ¶ 121.

IV. Procedural History

Plaintiffs instituted this lawsuit on March 19, 2021. D. 1. Plaintiffs then moved for a

preliminary injunction. D. 7. After the Court heard the parties on that motion, D. 31, the Court

requested additional briefing from the parties on whether abstention from granting injunctive relief

was required in light of ongoing state proceedings between the parties, D. 32. Before such briefing

was complete, Plaintiffs amended their complaint.3 D. 37. The Town and Sluis have now moved

to dismiss. D. 58; D. 60. The Court heard the parties on the pending motions and took this matter

under advisement. D. 72.

V. Discussion

A. Constitutional Claims (Count I)

Plaintiffs assert Count I against all Defendants for alleged violations of their First and

Fourteenth Amendment rights, pursuant to 42 U.S.C. §§ 19834 and 1985.5

3 The injunctive relief Plaintiffs originally requested, that the Town reinstate Plaintiffs’ licenses

for summer 2021, D. 7, is now moot in light of the Town granting the licenses, see D. 37 ¶¶ 116,

120-21, and to the extent that it seeks other relief, D. 7 at 15, it is denied as moot in light on this

ruling on the motions to dismiss.

4 Plaintiffs cannot assert a § 1983 claim against Sluis where the amended complaint does not

plausibly allege that Sluis, a fellow restaurant owner and private citizen, acted “under color of

law.” See Davignon v. Hodgson, 524 F.3d 91, 112 (1st Cir. 2008).

5 To the extent Plaintiffs continue to press their § 1985 claim, see D. 65, they fail to state a claim

because “a plaintiff may recover only when the conspiratorial conduct of which he complains is

propelled by some racial, or perhaps otherwise class-based, invidiously discriminatory animus,”

Perkins v. City of Attleboro, 969 F. Supp. 2d 158, 178 (D. Mass. 2013) (quoting Aulson v.

1. First Amendment

Plaintiffs allege that the Ordinance violates their First Amendment rights because it is

overly broad and impermissibly vague. D. 37 ¶¶ 143-45; D. 65 at 8. To the extent Plaintiffs seek

to mount a facial challenge to the Ordinance, they have failed to allege one. “In the First

Amendment context . . . a law may be invalidated as overbroad if a substantial number of its

applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.”

United States v. Stevens, 559 U.S. 460, 473 (2010) (internal citation and quotation marks omitted).

Here, Plaintiffs make no argument as to the constitutionality of any other application of the

Ordinance, and thus have not plausibly alleged that the Ordinance is facially unconstitutional for

its overbreadth.6 See Project Veritas Action Fund v. Rollins, 982 F.3d 813, 841 (1st Cir. 2020)

(affirming dismissal where plaintiff did not point to other unconstitutional applications of statute).

In assessing Plaintiffs’ challenge to the Ordinance as it applies to them, the Court first

considers the appropriate level of scrutiny, which “turns on whether the restriction is content-based

or content-neutral.” Martin v. Evans, 241 F. Supp. 3d 276, 287 (D. Mass. 2017) (citing Rideout

v. Gardner, 838 F.3d 65, 71 (1st Cir. 2016)). Here, the Court applies intermediate scrutiny. The

Ordinance is content-neutral as it regulates noise regardless of the underlying content of the noise

(i.e., the message conveyed or the purpose of same). See March v. Mills, 867 F.3d 46, 55-56, 64

(1st Cir. 2017) ( applying intermediate scrutiny and noting “it is well established that, even in

Blanchard, 83 F.3d 1, 3 (1st Cir. 1996)), and here Plaintiffs do not allege racial or class-based

discrimination.

6 Plaintiffs instead assert that the Ordinance is overbroad because a business violates it “merely by

operating, even without music, amplified or otherwise, as patron noise emanating from their

outdoor patios is ‘plainly audible’ at distances greater than 150 feet from the establishment,” and

that the Ordinance “constitutes a complete ban on the use of amplified sound for any form of

speech.” D. 65 at 9. Even if this assertion were relevant to the overbreadth inquiry articulated

above, there is no allegation in the amended complaint to support such an assertion. See D. 37 ¶

96.

public places, the government may enforce reasonable restrictions on the time, place, or manner

of speech in order to protect persons from unduly burdensome noise”). Under intermediate

scrutiny, the law must be “narrowly tailored to serve a significant governmental interest,” but

“need not be the least restrictive or least intrusive means of serving the government’s interests.”

Rideout, 838 F.3d at 71–72 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989));

McCullen v. Coakley, 573 U.S. 464, 486 (2014)) (internal quotation marks omitted).

The Supreme Court has held that governments have a “substantial interest in protecting its

citizens from unwelcome noise . . . [which includes] even such traditional public forums as city

streets and parks from excessive noise.” Ward, 491 U.S. at 796 (citations omitted). Turning to

the narrow tailoring requirement, such consideration “is satisfied as long as the particular

regulation promotes a substantial government interest that would be achieved less effectively

absent the regulation,” Knights of Columbus, Council No. 94 v. Town of Lexington, 272 F.3d 25,

33 (1st Cir. 2001) (internal citation omitted). Here, the substantial government interest in abating

noise would be less effective in the absence of the Ordinance and it likewise leaves open alternative

channels of communication because it does not prohibit all noise or music, just that which it defines

as excessive. In the context of music, at issue here, an individual or business may turn their outdoor

music down or play music inside to not run afoul of the Ordinance. See March, 867 F.3d at 68–

69. Plaintiffs assert that the Ordinance “does not leave open alternative channels of

communication because music is ‘plainly audible’ at distances of more than 150 feet, whether

amplified or not,” D. 65 at 10, but have not alleged any facts as to this assertion.

To the extent Plaintiffs argue that the Ordinance fails intermediate scrutiny because it is

vague, see id., they have also not plausibly alleged any facts as to same.7 Here, the Ordinance

proscribes noise that is “plainly audible” to a listener at 150 feet, and Plaintiffs have not alleged

any facts that challenge the objectiveness of this measure.8 Moreover, similar measures of

excessive noise in municipal ordinances have been upheld and Plaintiffs do not contend with these

arguments beyond their own interpretation of the Ordinance’s definitions. See Kovacs v. Cooper,

336 U.S. 77, 79 (1949) (holding that “loud and raucous,” while “abstract” had “through daily use

acquired a content that conveys to any interested person a sufficiently accurate concept of what is

forbidden”); March, 867 F.3d at 67 (rejecting argument that lack of specific decibel level in statute

made it overly broad when statute proscribed excessive noise that could be “heard within a

building”); Abrami v. Town of Amherst, No. 09-cv-30176-DPW, 2013 WL 3777070, at *15 (D.

Mass. July 16, 2013) (concluding that noise ordinance specifying decibel levels was not

constitutionally required, even if ordinance could include such measure and be written more

precisely).

Accordingly, Plaintiffs have not plausibly stated a First Amendment claim.

2. Fourteenth Amendment

Defendants next argue that Plaintiffs have failed to allege procedural and substantive due

process claims. D. 59 at 11-14. Plaintiffs contend that the Town violated their due process rights

by unlawfully delaying renewal of their liquor and entertainment licenses. D. 65 at 12.

7 A law may be “void for vagueness if its prohibitions are not clearly defined,” thus violating due

process. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

8 For support, Plaintiffs point to cautionary language from the Attorney General’s review of the

Ordinance, but that language pertains to a different subsection, dealing with “special permits,” and

is not related to the relevant portion of the Ordinance at issue here. See D. 37-4 at 3.

a) Substantive Due Process

“To establish a substantive due process claim, a plaintiff must demonstrate an ‘abuse of

government power that shocks the conscience’ or ‘action that is legally irrational in that it is not

sufficiently keyed to any legitimate state interests.’” Coll. Hill Properties, LLC v. City of

Worcester, 135 F. Supp. 3d 10, 15 (D. Mass. 2015), aff’d, 821 F.3d 193 (1st Cir. 2016) (quoting

Collins v. Nuzzo, 244 F.3d 246, 250 (1st Cir. 2001)). Although the First Circuit routinely rejects

substantive due process claims in the context of local licensing decisions, “it has ‘left the door

slightly ajar for federal relief in truly horrendous situations.’” Brockton Power LLC v. City of

Brockton, 948 F. Supp. 2d 48, 69 (D. Mass. 2013) (internal citation omitted); Pagan v. Calderon,

448 F.3d 16, 33 (1st Cir. 2006) (noting that the First Circuit has “held, with a regularity bordering

on the monotonous, that the substantive due process doctrine may not, in the ordinary course, be

invoked to challenge discretionary permitting or licensing determinations of state or local

decisionmakers, whether those decisions are right or wrong”). The Town’s acts therefore “must

be ‘truly outrageous, uncivilized, and intolerable,’ . . . and ‘the requisite arbitrariness and caprice

must be stunning, evidencing more than humdrum legal error.’” Harron v. Town of Franklin, 660

F.3d 531, 536 (1st Cir. 2011) (internal citation omitted). The “test is primarily concerned with

violations of personal rights so severe[,] so disproportionate to the need presented, and so inspired

by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to a

brutal and inhumane abuse of official power literally shocking to the conscience.” Id. (internal

citation omitted). Moreover, “any permit or license denial, no matter how unattractive, that falls

short of being ‘truly horrendous’ is unlikely to qualify as conscience-shocking.” Id. (quotation

omitted) (affirming dismissal where allegations that Town and officials sought to put tavern out

of business by denying liquor license were conclusory).

Accordingly, Plaintiffs must allege conduct that is “truly horrendous,” which here they

have not. See Harron, 660 F. 3d at 536. Even as alleged, Plaintiffs describe, at best, animosity

between them, their competitors, and the Town, but no conduct that could meet the high bar

required here. For example, Plaintiffs state that Plaintiff Brackett was not considered for a position

on the now-disbanded ad-hoc noise committee but fail to allege that the committee took any action

against Plaintiffs. See D. 37 ¶ 37. Plaintiffs also assert, in conclusory fashion, that the noise

complaints and subsequent investigation into and discipline for same were biased and erroneous,

see id. ¶¶ 69-79, but the amended complaint does not allege any specific facts as to these

complaints or investigations into same such that the Court can infer the unlawful conduct asserted

here. Moreover, Plaintiffs’ licenses were eventually granted in April and May, despite allegedly

improper delay. Id. ¶ 116, 120-21. To the extent that such delay was in violation of state law,

even that cannot sustain a claim for conscience-shocking conduct. See Baker v. Coxe, 940 F.

Supp. 409, 415-16 (D. Mass. 1996), aff’d, 230 F.3d 470 (1st Cir. 2000) (noting “[i]t is not enough

to show that [board] ‘exceeded, abused or ‘distorted’ its legal authority’”).

b) Procedural Due Process

The Court does not read Plaintiffs’ opposition to address Defendants’ procedural due

process arguments, see D. 65 at 12-18, but briefly addresses them for the sake of completeness.

To plausibly allege a procedural due process claim, Plaintiffs “must identify a protected liberty or

property interest and allege that the defendants, acting under color of state law, deprived [them] of

that interest without constitutionally adequate process.” González-Droz v. González-Colón, 660

F.3d 1, 13 (1st Cir. 2011) (internal citation and quotation marks omitted). For such claim, Plaintiffs

would also need to show that Massachusetts law did not provide them with an adequate post-

deprivation remedy. Hadfield v. McDonough, 407 F.3d 11, 21 (1st Cir. 2005). “Post-deprivation

remedies have been deemed sufficient (and fatal to a procedural due process claim) even where

‘relief might be delayed, and damages are unavailable.’” Brockton Power LLC, 948 F. Supp. 2d

at 67 (quoting Licari v. Ferruzzi, 22 F.3d 344, 348 (1st Cir. 1994)). Here, Plaintiffs have availed

themselves of post-deprivation remedies provided by statute, bringing multiple state court lawsuits

following the Board’s delay in renewing the licenses (pursuant to Mass. Gen. L. c. 249, § 4) and

filed an appeal with the ABCC regarding same (pursuant to Mass. Gen. L. c. 138, § 67). See

Burnham v. City of Salem, Mass., 101 F. Supp. 2d 26, 35 (D. Mass. 2000) (noting that “[s]hould

any doubt exist as to the adequacies of Massachusetts’ post-deprivation remedies, it is answered

by” Massachusetts law providing for an appeal, “to which [plaintiff] in fact appealed”).

c) Equal Protection

Plaintiffs assert an equal protection claim, premised on a “class of one” theory, alleging

that the Town treated other restaurants on more favorable terms. See D. 65 at 18; Rectrix

Aerodome Centers, Inc. v. Barnstable Mun. Airport Comm’n, 632 F. Supp. 2d 120, 128 (D. Mass.

2009), aff’d, 610 F.3d 8 (1st Cir. 2010). A class of one equal protection claim is “cognizable

when—and only when—a ‘plaintiff alleges that she has been intentionally treated differently from

others similarly situated and that there is no rational basis for the difference in treatment.’” Cordi-

Allen v. Conlon, 494 F.3d 245, 250 (1st Cir. 2007) (quoting Vill. of Willowbrook v. Olech, 528

U.S. 562, 564 (2000) (per curiam)). Therefore, Plaintiffs must “identify and relate specific

instances where persons situated similarly in all relevant aspects were treated differently, instances

which have the capacity to demonstrate that [plaintiffs] were singled . . . out for unlawful

oppression.” Buchanan v. Maine, 469 F.3d 158, 178 (1st Cir. 2006) (citation and internal quotation

marks omitted) (alteration in original).

Here, Plaintiffs have failed to allege sufficient facts about other restaurants to show that

they were similarly situated, either as an establishment, as to complaints that had been filed against

them, or as to how the Town treated them. Plaintiffs merely list other licensed establishments in

the Town that allegedly faced no discipline for similar conduct, but do not allege any facts about

these businesses size and structure, whether residents had reported violations to the Harwich Police

regarding noise or COVID-19 guidance, previous violations (save for Perks), or the specific

circumstances of the alleged violations charged to each establishment, if any. See D. 37 ¶ 77

(listing other businesses and lack of discipline), ¶ 91 (noting that Perks received one day

suspension of entertainment license but admitting that it had only two confirmed Ordinance

violations in 2019 and not providing details of prior discipline served), ¶ 96 (asserting that other

establishments had their licenses renewed in February 2021 but not naming any except Perks);

Clark v. Boscher, 514 F.3d 107, 114 (1st Cir. 2008) (affirming dismissal of equal protection claim

brought by developers of residential subdivision dismissed where developers presented the court

multitude of different types of allegedly comparable developments because they were not

objectively similar in “all relevant respects”); Najas Realty, LLC v. Seekonk Water Dist., 68 F.

Supp. 3d 246, 257 (D. Mass. 2014), aff’d, 821 F.3d 134 (1st Cir. 2016) (dismissing equal protection

claim where complaint did not include “facts from which the court [could] determine whether

these alleged ‘comparables’ are in any way similar to the plaintiffs’”). As such, Plaintiffs’

allegations, even assumed to be true, do not plausibly allege comparators, a necessary predicate

for this type of equal protection claim.

Accordingly, Plaintiffs have not plausibly stated Fourteenth Amendment claims.9

9 To the extent that the Town also moves to dismiss the constitutional claims on qualified immunity

grounds, see D. 59 at 17-19, the Court need not reach the issue in light of its dismissal on other

grounds.

B. MCRA Claims (Count II)

Defendants argue that the MCRA claims should be dismissed because there is no allegation

that they acted through threats, intimidation or coercion. D. 59 at 22. “To establish a claim under

the [MCRA], the plaintiffs must prove that (1) their exercise or enjoyment of rights secured by the

Constitution or laws of either the United States or of the Commonwealth, (2) have been interfered

with, or attempted to be interfered with, and (3) that the interference or attempted interference was

by threats, intimidation or coercion.” Swanset Dev. Corp. v. City of Taunton, 423 Mass. 390, 395

(1996) (citation and internal quotation marks omitted) (citing Mass. Gen. L. c. 12, § 11I). “‘Threat’

in this context involves the intentional exertion of pressure to make another fearful or apprehensive

of injury or harm.” Planned Parenthood League of Massachusetts. Inc. v. Blake, 417 Mass. 467,

474 (1994) (citations omitted). “Intimidation,” meanwhile, “involves putting in fear for the

purpose of compelling or deterring conduct.” Id. Finally, “coercion” amounts to “the use of

physical or moral force to compel [another] to act or assent.” Freeman v. Planning Bd. of W.

Boylston, 419 Mass. 548, 565 (1995). Here, the complaint is devoid of specific allegations as to

Plaintiffs’ fear of harm, or fear such that they felt compelled or deterred from any conduct, or that

Defendants exhibited any use of force. Instead, the complaint contains conclusory assertions that

Plaintiffs were subjected to allegedly wrongful conduct here, which is itself insufficient to support

the MCRA claim. See, e.g., D. 37 ¶¶ 125, 150; Longval v. Comm’r of Correction, 404 Mass. 325,

333 (1989) (noting that “[a] direct violation of a person’s rights does not by itself involve threats,

intimidation, or coercion and thus does not implicate the [MCRA]”).

Accordingly, Plaintiffs have failed to state a claim for violation of the MCRA.

C. Massachusetts Declaration of Rights (Count III)

Defendants argue that the Court should dismiss Count III, which alleges a deprivation of

rights guaranteed by the Massachusetts Declaration of Rights in the Massachusetts Constitution

because there is no provide right of action for violations of these rights. D. 59 at 23. It is generally

accepted that MCRA “occup[ies] the field” under most circumstances, Martino v. Hogan, 37 Mass.

App. Ct. 710, 720 (1994), leaving no other recourse for an individual to assert a state constitutional

claim against a state actor. The Supreme Judicial Court has noted in dicta that “a person whose

constitutional rights have been interfered with may be entitled to judicial relief even in the absence

of a statute providing a procedural vehicle for obtaining relief.” Phillips v. Youth Dev. Program,

Inc., 390 Mass. 652, 657–58 (1983); see also Layne v. Superintendent, Mass. Corr. Inst., Cedar

Junction, 406 Mass. 156, 159–60 (1989) (finding constitutional claim moot, but noting that “a

State may not violate a person’s constitutional rights and then fairly assert that no redress can be

had because the State has not provided a statutory means of enforcing those rights”). In addition,

“[a]t least one justice of the Superior Court has also indicated that claims brought directly under

the Declaration of Rights should be permitted.” Parsons ex rel. Parsons v. Town of Tewksbury,

No. 09–1595, 2010 WL 1544470, at *5 (Mass. Super. Jan. 19, 2010) (citing McClure v. East

Brookfield, No. 97–2004, 1999 WL 1323628, at *2 (Mass. Super. Mar. 11, 1999)). The dicta in

Layne, however, and those cases citing it aim to address harms that have no statutory redress.

Here, the MCRA provides a means to sue a state actor for constitutional violations, provided that

the actor uses threats, intimidation or coercion. See Grubba v. Bay State Abrasives, Div. of Dresser

Indus., Inc., 803 F.2d 746, 748 (1st Cir. 1986) (noting that the MCRA was “a fully adequate

procedural vehicle” to redress constitutional deprivations); see also Pimentel v. City of Methuen,

323 F. Supp. 3d 255, 274 (D. Mass. 2018) (denying right of action for same reasons and noting

that “[n]o Massachusetts appellate court, in the 35 years since Phillips, has ever held that such a

right exists”).

Accordingly, the Court allows the motion to dismiss as to Count III.

D. Interference with Contractual Relations (Count IV)

To prevail on a claim for interference with contractual or economic relations, Plaintiffs

must establish that: “(1) [they] had a contract with a third party; (2) the defendant knowingly

induced the third party to break that contract; (3) the defendant’s interference, in addition to being

intentional, was improper in motive or means; and (4) [Plaintiffs were] harmed by the defendant’s

actions.” Psy-Ed Corp. v. Klein, 459 Mass. 697, 715–16 (2011) (citation omitted). Plaintiffs point

to three instances of such interference: the loss of The Port’s chef, the loss of its outdoor tent

deposit, and the loss of wedding reception deposits. D. 65 at 26. Here, Plaintiffs fail to allege that

Defendants were aware of any of these relationships or that Defendants knowingly induced these

third parties to break their agreements. As to loss of the chef, the Court is unable to discern what

specific intentional interference allegedly occurred as Plaintiffs allege only that the “loss of their

chef and other valuable employees” was caused by Defendants’ “disparate treatment and

defamatory statements.” See D. 37 ¶ 124. As to Plaintiffs’ assertion that they lost their tent deposit

and deposits on wedding reservations, there is likewise no allegation that the Town was aware of

such contracts, or that the Town intentionally interfered with them. See D. 37 ¶ 118. Accordingly,

Count IV fails to state a claim.

E. Common Law Conspiracy (Count V)

“Two types of civil conspiracy exist under Massachusetts law. The first ‘requires proof of

coercion; the second requires proof of a common plan to commit a tortious act.’” Fiorillo v.

Winiker, 85 F. Supp. 3d 565, 576 (D. Mass. 2015) (quoting Kurker v. Hill, 44 Mass. App. Ct. 184,

188 (1998)). “Under the first type of conspiracy, a plaintiff ‘must allege that defendants, acting in

unison, had some peculiar power of coercion over plaintiff that they would not have had if they

had been acting independently.’” Id. (internal citation omitted). “For the second type of

conspiracy, the plaintiff must allege ‘first, a common design or an agreement, although not

necessarily express, between two or more persons to do a wrongful act and, second, proof of some

tortious act in furtherance of the agreement.’” Id. (internal citation omitted). Plaintiffs have failed

to allege either form of civil conspiracy. First, Plaintiffs do not allege that Defendants had

“peculiar power of coercion” over them, but rather name individuals that “held a peculiar power

of coercion of influence over the Board” to influence its decisions regarding Plaintiffs’ licenses.

See D. 37 ¶ 149. The complaint is otherwise devoid of any facts that allege coercion or control

over Plaintiffs outside of the Board’s regular business of considering licenses and holding hearings

for discipline on same. See Massachusetts Laborers’ Health & Welfare Fund v. Philip Morris,

Inc., 62 F. Supp. 2d 236, 244 (D. Mass. 1999) (noting that first type of civil conspiracy applies to

“remedy direct economic coercion”). Second, there is no plausible allegation of tortious acts

committed by these named individuals in furtherance of any agreement. The only tort alleged

here, as discussed above, fails to state a claim. Plaintiffs point to anonymous social media accounts

and internal non-public memoranda of the Town to argue that “a reasonable person might draw an

inference of a common plan to commit, assist or encourage a tortious act on the part of two or

more defendants.” D. 65 at 27. That argument, however, overlooks the need for an “underlying

tortious conduct for which liability can be assigned,” and here there is no such conduct and no

nexus to individuals for same. See Massachusetts Laborers’ Health & Welfare Fund, 62 F. Supp.

2d at 244.

F. Defamation (Count VI)

“To prevail on a defamation claim, a plaintiff must ‘establish that the defendants published

a false statement about him to a third party that either caused him economic loss or was the type

that is actionable without proof of economic loss.’” Driscoll v. Bd. of Trs. of Milton Acad., 70

Mass. App. Ct. 285, 295-96 (2007) (quoting Phelan v. May Dept. Stores Co., 443 Mass. 52, 55-56

(2004)). Relevant here, Plaintiffs identify two alleged instances of defamation. First, Plaintiffs

allege that Sluis falsely reported to Harwich Police that Plaintiffs violated COVID-19 guidance.

D. 37 ¶ 195. Second, Plaintiffs allege that Ballantine made a defamatory statement to the Cape

Cod Times, where he stated with regard to Plaintiffs’ alleged violations of the guidance, “Our

feeling is this was very flagrant. They ignored the whole of COVID-19 regulations.” Id. ¶ 197.10

Plaintiffs have failed to state a defamation claim against Sluis. “To properly allege

defamation, a plaintiff must specifically identify the allegedly false statement,” and “allegation[s]

that the defendant made statements that ‘cast the plaintiff in a negative light,’ but that does not

identify a specific statement, is not sufficient.” Kelleher v. Lowell Gen. Hosp., 98 Mass. App. Ct.

49, 53 n.2 (2020) (citation omitted). Here, the single paragraph in the amended complaint that

mentions Sluis’ call to Harwich Police does not identify the objectionable statement, or any details

about same such that the Court could assess the truth or falsity of the statement.11 See D. 37 ¶ 195;

10 Plaintiffs suggest that the statements are defamation per se because they accuse Plaintiffs of

committing a crime, see D. 65 at 28, but even as alleged these instances refer to alleged violations

of state and local COVID-19 guidance for restaurants, not criminal laws.

11 Plaintiffs have included the purported transcript of Sluis’s call to Harwich police in the text of

their opposition. The Court, however, “may not consider any documents that are outside of the

complaint, or not expressly incorporated therein, unless the motion is converted into one for

summary judgment,” and Plaintiffs have not argued that they meet one of the limited exceptions

to this rule. See Alternative Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st

Cir. 2001).

Piccone v. Bartels, 785 F.3d 766, 772 (1st Cir. 2015) (explaining that court’s inquiry as to

verifiable facts requires consideration of the “specific challenged statements” made).

As to Ballantine, Defendants argue that the statement is conditionally privileged. D. 59 at

28. “Statements made by public officials while performing their official duties are conditionally

privileged [because] threat of defamation suits may deter public officials from complying with

their official duties when those duties include the need to make statements on important public

issues.” Barrows v. Wareham Fire Dist., 82 Mass. App. Ct. 623, 630–31 (2012) (quoting Mulgrew

v. Taunton, 410 Mass. 631, 635 (1991)). Here, Ballantine commented to the newspaper, identified

as Chair of the Board, discussing ongoing matters related to a public Board hearing, and regarding

Plaintiffs’ compliance with COVID-19 restrictions subject to discussion at same. D. 37-27 at 1-

2. Plaintiffs do not contend with this argument but note that “despite the qualified privilege” it

can be lost by a showing that Ballantine abused the privilege, such as “publication with knowledge

of falsity or with reckless disregard of the truth.” See D. 65 at 28-30; Barrows, 82 Mass. App. Ct.

at 631. Plaintiffs do not specify how Ballantine knew the statement was false or that he acted with

reckless disregard. See D. 65 at 30. In their amended complaint, Plaintiffs assert that Ballantine

“kn[ew] that Meggan Eldredge, Harwich Health Agent, inspected and approved Ember’s and The

Port’s operations as compliant with COVID-19 guidance, as such was required to permit each

licensed establishment’s ‘outdoor’ operations.” D. 37 ¶ 197. Even if he did have knowledge of

Eldredge’s inspection and approval of their operations plans, that does not speak to the subsequent

alleged violations of the COVID-19 guidance described by Ballantine and under consideration by

the Board for discipline.

For at least the reasons discussed above, Plaintiffs have failed to state a defamation claim

against Sluis and Ballantine.

VI. Conclusion

For these reasons, the Court ALLOWS the motions to dismiss. 12

So Ordered.

/s/ Denise J. Casper

United States District Judge

12 The Court also dismisses the amended complaint against Does 1-10. To sue an unidentified

party, a plaintiff must “show that ‘a good-faith investigation has failed to reveal the identity of the

relevant defendant and there is a reasonable likelihood that discovery will provide that

information.’” Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 58 n.6 (1st Cir. 2013)

(quoting Martínez–Rivera v. Sánchez Ramos, 498 F.3d 3, 8 (1st Cir. 2007)). As alleged, Plaintiffs’

amended complaint offers no information to assess same. See D. 37 ¶ 32 (alleging only that Does

1-10 “are individuals whose actual names remain unknown after completion of a reasonable and

diligent search”); Messere v. Clarke, No. 11-cv-11705-MLW, 2015 WL 5609959, at *14 (D. Mass.

Sept. 22, 2015) (dismissing Doe defendants for same).