# Fountain v. City of Methuen

> District Court, D. Massachusetts · September 22, 2022

URL: https://www.frixlaw.com/law-library/cases/10200611

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** September 22, 2022
- **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/10200611

## How later opinions describe it (automated extraction)

- noting that the First Amendment “protects (among other things) the right to free speech and the right to petition all branches of the government”
- affirming the dismissal of the plaintiff’s First Amendment retaliation claim
- noting that “‘news letters’ to constituents, news releases, and speeches delivered outside the Congress . . . are political in nature rather than legislative”
- explaining that Section 1983 is “not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred” (citation omitted)
- holding that the Speech or Debate Clause did not immunize a senator from a libel suit because “neither the newsletters nor the press release [at issue] was ‘essential to the deliberations of the Senate’ and neither was part of the deliberative process”

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________________
)
SEAN FOUNTAIN, )
)
Plaintiff, )
)
)
v. )
) Civil Action No. 21-CV-11046-AK
CITY OF METHUEN, NEIL )
PERRY, MICHAEL R. SIMARD, )
DAVID BEAUREGARD, JR., and )
JAMES MCCARTY, )
)
Defendants. )
)

MEMORANDUM AND ORDER
A. KELLEY, D.J.
Sean Fountain (“Fountain”) has brought this suit against the City of Methuen
(“Methuen”); Neil Perry (“Perry”), the mayor of Methuen; and three Methuen City Council
(“City Council”) members, Michael R. Simard (“Simard”), David Beauregard, Jr.
(“Beauregard”), and James McCarty (“McCarty”). Fountain previously served as a City Council
member and eventually became a permanent intermittent police officer for Methuen. He alleges
a variety of federal and state civil rights violations and numerous state common law claims in
connection with comments the defendants made about his role on the police force and his
termination from that employment. The defendants have filed a motion for judgment on the
pleadings, asking the Court to enter judgment in their favor on all claims. [Dkt. 25]. Fountain
opposes the motion. For the following reasons, the defendants’ motion for judgment on the
pleadings [Dkt. 25] is GRANTED IN PART and DENIED IN PART.
I. Background
The following facts are drawn from the complaint and taken as true for the purposes of a
motion for judgement on the pleadings. See Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st
Cir. 1988); see also Fed. R. Civ. P. 12(c). Fountain was a member of the Methuen City Council

from January 2012 through December 2017. [Dkt. 1 (“Complaint”) at ¶ 10]. At various points
during his time as a city councilor, Fountain worked as a firefighter for the North Andover Fire
Department, performed investigations for the Enforcement Unit of the County Sherriff’s Office,
and served as a part-time intermittent police officer for the Methuen Police Department
(“MPD”). [Id. at ¶¶ 12–13]. In July 2016, Fountain sought guidance from the State Ethics
Commission as to whether he could become a full-time permanent intermittent police officer, as
his role on City Council was a potential conflict of interest. [Id. at ¶¶ 14–16]. After the State
Ethics Commission responded that Fountain could serve in both roles and he received proper
approval from state and municipal officials, including Methuen’s mayor (then Stephen Zanni)
and City Council members, Fountain became eligible for a position as a permanent intermittent

police officer starting August 9, 2017. [Id. at ¶¶ 17-21]. Intermittent police officers are not
subject to the same training as regular reserve officers, patrol officers, and ranking officers, and
they do not take the Civil Service Exam, which is required of the other officers. [Id. at ¶ 50].
Intermittent police officers may not be promoted unless they take the Civil Service Exam. [Id. at
¶ 52]. Fountain was voted into the Methuen Police Patrolmen’s Association, Mass. C.O.P. Local
394, and was thus subject to the provisions set forth in the union’s collective bargaining
agreement, after becoming eligible to work as a permanent intermittent police officer. [Id. at
¶ 22].
In the fall of 2017, prior to Fountain assuming the role of permanent intermittent officer,
City Council had to vote on the contracts for MPD’s superior officers and department patrolmen.
[Id. at ¶ 25]. Fountain abstained from voting on the patrolmen’s contract in light of his
upcoming employment as a permanent intermittent officer. [Id. at ¶ 26]. Fountain did, however,

vote on the contract for superior officers after seeking advice—which later turned out to be
inaccurate—from City Solicitor Richard D’Agostino about whether he was eligible to participate
in the vote. [Id. at ¶¶ 27-30]. Fountain alleges he “was victimized [by the defendants] by a long
and calculated course of harassment, retaliation, and other wrongful conduct which sabotaged
and ultimately destroyed his personal and business reputation” in Methuen and his career with
MPD after this vote. [Id. at ¶ 33].
Fountain claims that McCarty and Simard began making “insulting remarks” about
Fountain’s employment with MPD while they campaigned for City Council seats from August
2019 to October 2019. [Id. at ¶¶ 35-38]. The defendants’ public criticism during election season
“unleashed a torrent of negative media attention,” calling into question the propriety of the vote

on the MPD superior officers’ contract and MPD hiring. [Id. at ¶¶ 40-41]. By the fall of 2019,
several government agencies had begun investigations into the vote’s propriety at the request of
City Council. [Id. at ¶¶ 41-42]. In November and December of 2019, Fountain provided
testimony to the U.S. Attorney’s Office, the State Ethics Commission, and the Office of the
Inspector General regarding the vote. [Id. at ¶¶ 42-43]. Defendants McCarty, Simard, and
Beauregard (the “City Council Defendants”) were sworn in as City Council members on January
1, 2020. [Id. at ¶ 39]. Eventually the details of Fountain’s testimony were disclosed to City
Council in a closed-door executive session meeting. [Id. at ¶ 46]. The “attacks” on Fountain
“escalated in content and frequency” after City Council learned of his testimony and “included
not only his vote on the [s]uperior [o]fficers’ contract, but also the fact that he worked for the
[MPD] without having taken the Civil Service Exam and no longer resided” in Methuen. [Id.at
¶¶ 48, 55].
In the spring of 2020, the Inspector General and State Ethics Commissions concluded

their investigations into City Council’s vote on the superior officers’ contract. [Id. at ¶ 56].
Fountain did not receive any fine or punishment, though three other City Council members were
disciplined for having a conflict of interest. [Id. at ¶¶ 56-57]. Fountain eventually became a
detective in the MPD, a role to which he “was assigned . . . not promoted, and thus there was no
triggering of an obligation to take the Civil Service Exam.” [Id. at ¶¶ 59-60]. The City Council
Defendants criticized Fountain’s new role in several public forums. [See id. at ¶¶ 63, 66, 67, 73,
74]. For example, in March 2020, Simard stated at a City Council meeting that a “detective who
isn’t certified and bypassed the hiring process is working major cases, even homicides.” [Id. at
¶ 63]. Simard made several similar comments at other City Council meetings. [See id. at ¶¶ 67,
74]. McCarty also voiced his “unequivocal displeasure” over Fountain’s work with MPD on

several occasions, including at City Council meetings, to the press, and on social media. [See id.
at ¶¶ 66, 73, 74]. For example, in April 2020, McCarty posted a comment on Facebook that said,
“WHY is former city councilor (detective) Sean Fountain the preferred handler of evidence
rather than a twenty-year veteran such as [Arthur] Hardy?” [Id. at ¶ 66]. McCarty was also
quoted in a newspaper article regarding Fountain’s role at MPD and participation in the superior
officers’ contract vote. [Id. at ¶ 73].
Fountain sent cease-and-desist letters regarding these comments to City Council, the
mayor, and Methuen’s human resources department in April and May 2020. [Id. at ¶ 71]. He
then filed, with the help of counsel engaged by his union, a complaint pursuant to Methuen’s
Whistleblower Act on May 12, 2020. [Id. at ¶¶ 80-81]. That same day, Perry, the mayor of
Methuen, sent a letter to Fountain stating that “within 90 days: (1) Mr. Fountain would be
‘removed from the detective division’ and ‘reverted’ to a Part-Time Intermittent Officer because
he had ‘not attended nor completed the full-time police academy training as required;’ (2) he

could only work shifts or details that were not otherwise filled by permanent patrol officers; (3)
he was limited to 32 hours per week; and (4) in order to retain the lesser position of Part-Time
Intermittent Officer, he must re-establish residency in the City.” [Id. at ¶ 82]. On July 8, 2020,
Fountain received a letter from Methuen’s Director of Human Resources, informing him that
“due to COVID and anticipated budget shortfalls [his] position is being eliminated on July 31,
2020.” [Id. at ¶¶ 88]. Fountain alleges this explanation “flies in the face of” Perry’s public
announcements that the City’s operations were “balanced” and there was “free cash.” [Id. at
¶¶ 91-95].
The City Council Defendants continued to disparage Fountain even after his role with the
MPD was limited and then ultimately terminated. On June 4, 2020, McCarty and Beauregard

responded to a Facebook post by the MPD, which listed Fountain’s contact information “in
furtherance of the investigation” into a burglary. [Id. at ¶¶ 86-87]. McCarty replied, “Contact
former Methuen City Council Chairman Sean Fountain,” while Beauregard wrote, “[W]e must
clearly point out how the Fountain situation is an insult to all academy trained officers and has
made a total mockery of the civil service appointment process. Progress is being made but we
will not stop fighting the corruption in that department. It is outrageous and unacceptable and
needs to stop.” [Id.]. In July 2020, Simard and McCarty both made “public inflammatory
statements” about detectives and deputies at City Council meetings. [Id. at ¶¶ 96, 99]. And on
September 15, 2020, Beauregard published a letter to the editor of the Eagle-Tribune, stating that
he and his colleagues “had made a concerted effort to ‘launch a vocal push for greater
accountability within the department.’”1 [Id. at ¶¶ 110]. In February 2021, City Council voted
to rescind the legislation allowing for the appointment of intermittent police officers, though the
state legislature has yet to ratify the vote to rescind. [See Dkt. 19-1 at 2-3].

Fountain now brings sixteen claims against the defendants. [Complaint at ¶¶ 117-201].
He first brings a claim against the City of Methuen, alleging he was terminated in violation of
public policy (“Count I”). [Id. at ¶¶ 117-21]. Fountain also brings claims pursuant to 42 U.S.C.
§ 1983 against the City Council Defendants, alleging they harassed him for exercising his First
Amendment right to the freedom of speech, specifically, his petition for approval to become a
permanent intermittent police officer and his testimony to government agencies regarding the
superior officers’ contract vote (“Counts II-IV”). [Id. at ¶¶ 122-36]. Fountain brings essentially
the same claims against the City Council Defendants under the Massachusetts Civil Rights Act
as well (“Counts V-VII”). [Id. at ¶¶ 137-57]. Fountain also brings several state common law
claims against the defendants. He alleges tortious interference with advantageous relations

against the City Council Defendants (“Counts VIII-X”); libel and slander (“Count XI”) and
intentional infliction of emotional distress (“Count XII”) against Simard; civil conspiracy against
the City Council Defendants and Perry (“Count XIII”); and abuse of process against the City
Council Defendants (“Counts XIV-XVI”). [Id. at ¶¶ 158-201].
The defendants filed a motion for judgment on the pleadings pursuant to Federal Rule of
Civil Procedure 12(c), seeking dismissal of Fountain’s complaint for failure to state a claim upon
which relief can be granted. [Dkt. 25]. Fountain has opposed this motion. [Dkt. 33]. The Court
heard oral argument on April 13, 2022.

1 Fountain does not allege he was specifically named in this article.
II. Legal Standard
A motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure
12(c) is “treated much like a Rule 12(b)(6) motion to dismiss.” Pérez-Acevedo v. Rivero-
Cubano, 520 F.3d 26, 29 (1st Cir. 2008) (citing Curran v. Cousins, 509 F.3d 36, 43-44 (1st Cir.

2007)). It differs, however, in that it “implicates the pleadings as whole,” and is therefore based
on the factual allegations in the complaint and answer. Aponte-Torres v. Univ. of P.R., 445 F.3d
50, 55 (1st Cir. 2006). Courts must “view the facts contained in the pleadings in the light most
favorable to the nonmovants . . . and draw all reasonable inferences therefrom in their favor.” Id.
at 54 (citing Rivera-Gomez, 843 F.2d at 635). For a complaint to survive a motion for judgment
on the pleadings, it “must contain factual allegations that ‘raise a right to relief above the
speculative level, on the assumption that all the allegations in the complaint are true.’” Pérez–
Acevedo, 520 F.3d at 29 (citing Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)). Courts
may also consider “documents incorporated by reference into the complaint, matters of public
record, and facts susceptible to judicial notice.” Haley v. City of Bos., 657 F.3d 39, 46 (1st Cir.

2011). Judgment on the pleadings is proper only when the “uncontested and properly considered
facts conclusively establish the movant’s entitlement to a favorable judgment,” Zipperer v.
Raytheon Co., 493 F.3d 50, 53 (1st Cir. 2007) (citing Aponte-Torres, 445 F.3d at 54), that is,
“when the nonmovant can prove no set of facts in support of a claim that would entitle it to
relief,” Pittner v. Castle Peak 2012-1 Loan Tr., 436 F. Supp. 3d 438, 440 (D. Mass. 2020) (citing
Rivera-Gomez, 843 F.2d at 635).
III. Discussion
The defendants raise several arguments in support of their motion for judgment on the
pleadings. First, they argue that issue preclusion bars Fountain’s wrongful termination claim
against the City of Methuen. [Dkt. 25 at 1]. Second, they maintain that the City Council
Defendants are immune from liability. [Id. at 2]. They relatedly contend that Fountain’s civil
conspiracy claim against Perry must fail because he cannot be held liable for conspiracy with
immunized co-defendants. [Id.]. Third, the defendants state that, regardless, Fountain’s claims

fail as a matter of law. [Id.].
A. Issue Preclusion (Count I)
The defendants argue that Fountain’s claim against the City of Methuen for wrongful
termination in violation of public policy is barred by issue preclusion. [Dkt. 26 at 5-6]. The
doctrine of issue preclusion, also referred to as collateral estoppel, is intended to “conserve
judicial resources, to prevent the unnecessary costs associated with multiple litigation[s], and to
ensure the finality of judgments.” Alba v. Raytheon Co., 809 N.E.2d 516, 521 (Mass. 2004)
(citation omitted). Four factors must be satisfied for issue preclusion to apply: (1) there was a
“final judgment on the merits in the prior adjudication”; (2) the party against whom preclusion is
asserted was a party or in privity with a party in the previous adjudication; (3) the issue decided

in the prior adjudication is identical to the present issue; and (4) the previously decided issue was
“essential” to the judgment in the prior adjudication. Id. The defendants maintain that
Fountain’s termination claim was already decided by an arbitrator in 2021, when the arbitrator
concluded that permanent intermittent police officers “may be removed by the selectman [later
the mayor] at any time for any reason.” [Dkt. 26 at 6 (quoting Dkt. 26-1 at 2 & n.2)]. Fountain
counters that the arbitrator merely evaluated whether the grievance was arbitrable and did not
consider the merits of his termination. [Dkt. 33 at 7-8]. Fountain is correct.
The arbitrator explained that the issue before him was whether the termination grievance
filed by Fountain (and two other permanent intermittent police officers) was “substantively
arbitrable.” [Dkt. 26-1 at 1]. Specifically, the arbitrator had to determine whether Fountain’s
termination and grievance process were governed by Ch. 201 of the Acts of 1945, legislation
allowing Methuen to appoint intermittent police officers and providing that they “may be
removed by the selectmen at any time for any reason,” or by Massachusetts General Law

ch. 150E, § 7(d), which governs labor relations for public employees, including those in the
police officers’ union. [Id. at 8]. The arbitrator found that the grievance was “governed by Ch.
201 of the Acts of 1945 and not by the collective bargaining agreement negotiated under the
aegis of Ch. 150E of the General Laws.” [Id. at 11]. As such, the grievances were “outside [the
arbitrator’s] jurisdiction under the collective bargaining agreement” and were “substantively
non-arbitrable.” [Id.]. Clearly, the arbitrator did not reach the merits of Fountain’s termination
claim and, contrary to the defendants’ assertions, did not “conclude[] that the City of Methuen
may properly remove [] Fountain as a police officer at any time for any reason.” [Dkt. 26 at 6].
And even if the determination that Ch. 201 of the Acts of 1945 governs Fountain’s wrongful
termination claim necessarily implies that his employment is “at will,” at-will employees may

still be terminated in violation of public policy, an issue that was not addressed by the arbitrator.
See King v. Driscoll, 638 N.E.2d 488, 492 (Mass. 1994) (“As an exception to the general rule
that an employer may terminate an at-will employee at any time with or without cause, we have
recognized that an at-will employee has a cause of action for wrongful termination only if the
termination violates a clearly established public policy.”); cf. Hennessy v. City of Melrose, 194
F.3d 237, 245 (1st Cir. 1999) (“Even an at-will employee . . . may not be dismissed for
exercising rights protected under the First Amendment.”). The Court denies the defendants’
motion as to Count I.
B. Immunity (Counts II-XVI)
The City Council Defendants argue that absolute legislative immunity applies to any
claims against them, because their alleged actions were discretionary, concerned public safety
and matters of public policy, and were undertaken in connection with their official legislative

duties. [Dkt. 26 at 7]. Fountain responds that absolute immunity does not apply because the
City Council Defendants’ acts were not legislative in nature, as they targeted a specific
individual (him). [Dkt. 33 at 10]. The City Council Defendants also maintain that they are
entitled to qualified immunity. Fountain counters that the City Council Defendants are not
entitled to qualified immunity because he has sufficiently pleaded a violation of a concrete
constitutional right.
1. Absolute Immunity
Local legislators, including municipal officials, are “absolutely immune from suit under
§ 1983 for their legislative activities.” Bogan v. Scott-Harris, 523 U.S. 44, 49, 52 (1998) (“The
rationales for according absolute immunity to federal, state, and regional legislators apply with

equal force to local legislators.”). Absolute immunity “affords protection not only from liability
but from suit.” Romero-Barcelo v. Hernandez-Agosto, 75 F.3d 23, 28 (1st Cir. 1996). This
immunity “attaches to all actions taken ‘in the sphere of legitimate legislative activity.’” Bogan,
523 U.S. at 54 (citing Tenney v. Brandhove, 341 U.S. 367, 376 (1951)). Acts that are
“administrative in nature” do not give rise to absolute immunity. Romero-Barcelo, 75 F.3d at 29
(citing Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 28 (1st Cir. 1994)). Actions that
“single out individuals or groups, rather than create general policies, are administrative actions,
not legislative.” S. Middlesex Opportunity Council, Inc. v. Town of Framingham, 752 F. Supp.
2d 85, 111 (D. Mass. 2010) (citing Acevedo-Garcia v. Vera-Monroig, 204 F.3d 1, 9 (1st Cir.
2000)). As such, the crucial question is “whether [the defendants’] acts were legislative.”
Bogan, 523 U.S. at 54. Whether an act is legislative “turns on the nature of the act, rather than
on the motive or intent of the official performing it.” Id. The City Council Defendants would
have the Court attach absolute legislative immunity to their actions simply because their

comments “concerned the public’s safety and matters of public policy,” even if they were
directed at a specific individual. [Dkt. 26 at 7-8]. Fountain would have the Court reject the City
Council Defendants’ argument simply because they, at times, named Fountain or referenced his
employment circumstances specifically, rather than generally commenting on MPD hiring and
reform. The inquiry, however, is not that simplistic.
Absolute legislative immunity is “justified and defined by the functions it protects and
serves, not by the person to whom it attaches.” Romero-Barcelo, 75 F.3d at 29 (citing Negron-
Gaztambide, 35 F.3d at 27). This immunity “does not attach to the activities that are merely
‘casually or incidentally related to legislative affairs.’” Cushing v. Packard, 30 F.4th 27, 49 (1st
Cir. 2022) (citing United States v. Brewster, 408 U.S. 501, 528 (1972)). Rather, the Court must

consider whether the defendants’ actions were legislative “in form,” such that they were “integral
steps in the legislative process,” and “in substance,” such that they “bore all the hallmarks of
traditional legislation.” Gonzalez-Droz v. Gonzalez-Colon, 717 F. Supp. 2d 196, 214 (D.P.R.
2010) (citing Bogan, 523 U.S. at 55). Here, the City Council Defendants commented on City
Council’s approval of an MPD contract; what they perceived to be improper hiring, training, and
control of officers by MPD; City Council’s review of MPD policies; and possible impropriety by
a former City Council member. [See Complaint at ¶¶ 35-38, 62, 66-67, 73-77, 86-87, 96, 99
110]. Many of these statements were made during City Council proceedings, including City
Council meetings and budget meetings, and City Council eventually voted to rescind the rule
allowing for the appointment of intermittent police officers. The City Council Defendants’
comments, then, pertain to the quintessential functions and purposes of a municipal legislature,
and brief references to a particular individual in the course of City Council’s deliberations on
broader policy issues do not necessarily remove those actions from the realm of “legislative” to

“administrative.” See Acevedo-Garcia, 204 F.3d at 8 (noting that employment decisions
“generally are administrative,” while “policymaking and budgetary restructuring” are “traditional
legislative functions,” and “[v]oting for legislation, the introduction of budget plans, and signing
an ordinance into law are ‘quintessentially legislative’ functions”). As such, the City Council
Defendants are immune from any civil action based on conduct directly related to City Council
proceedings.
At the same time, however, the City Council Defendants made several comments naming
or alluding to Fountain outside the realm of City Council forums and traditional legislative
activity, including when speaking with journalists or in posts on social media. [See Complaint at
¶¶ 35-38, 66, 73, 75-77, 86-87, 110]. These statements are not shielded from suit by absolute

legislative immunity. The purpose of absolute legislative immunity is to “insure that the
legislative function may be performed independently without fear of outside interference.”
Acevedo-Garcia, 204 F.3d at 7 (citing Sup. Ct. of Va. v. Consumers Union of the U.S., 446 U.S.
719, 731 (1980)). It cannot be said that the City Council Defendants’ comments on social media
and to newspapers here were essential to the municipal officers’ legislative function, such that
there would otherwise be fear of outside interference with legislative initiatives.
The Supreme Court’s treatment of the Speech or Debate Clause, which is “generally . . .
equated [to] the legislative immunity to which state legislators are entitled under § 1983,” is
instructive here. Sup. Ct. of Va., 446 U.S. at 733 (collecting cases); see U.S. Const. art. I, § 6,
cl. 1; see also Romero-Barcelo, 75 F.3d at 29 (stating that the “scope of legislative immunity
from suit under section 1983 is ‘essentially coterminous’ with the absolute immunity accorded
members of Congress under the Speech or Debate Clause” (citation omitted)). The Speech or
Debate Clause protects members of Congress “not only from the consequence of litigation’s

results but also from the burden of defending themselves” for any “legitimate legislative
activity,” Tenny v. Brandhove, 341 U.S. 367, 367-77 (1951), which includes speech and conduct
that is “an integral part of the deliberative and communicative processes by which Members [of
Congress] participate in committee and House proceedings with respect to the consideration and
passage or rejection of proposed legislation or with respect to other matters which the
Constitution places within the jurisdiction of either House,” Gravel v. United States, 408 U.S.
606, 625 (1972). While this protection includes “[c]ommittee reports, resolutions, . . . the act of
voting,” and “things generally done in a session of the House by one of its members in relation to
the business before it,” it is not unlimited. Powell v. McCormack, 395 U.S. 486, 502 (1969)
(quoting Kilbourn v. Thompson, 103 U.S. 168, 204 (1881)).

On multiple occasions, the Supreme Court has determined that the Speech or Debate
Clause did not shield legislators from liability for comments made beyond the legislative floor,
including the publications of newsletters, press releases, and speeches delivered outside
Congress. See, e.g., Hutchingson v. Proxmire, 443 U.S. 111, 130 (1979) (holding that the
Speech or Debate Clause did not immunize a senator from a libel suit because “neither the
newsletters nor the press release [at issue] was ‘essential to the deliberations of the Senate’ and
neither was part of the deliberative process”); Brewster, 408 U.S. at 512 (noting that “‘news
letters’ to constituents, news releases, and speeches delivered outside the Congress . . . are
political in nature rather than legislative”). Other courts have followed suit. For example, the
Eleventh Circuit has explained that “[a]cts such as voting, speech making on the floor of the
legislative assembly, preparing committee reports, and participating in committee investigations
and proceedings are generally deemed legislative and, therefore, protected by the doctrine of
legislative immunity,” but “acts such as the public distribution of press releases and newsletters

. . . are generally not protected by the doctrine of legislative immunity.” Yeldell v. Cooper
Green Hosp., Inc., 956 F.2d 1056, 1062 (11th Cir. 1992) (internal citations omitted). Here, the
City Council Defendants made several comments about Fountain on social media and to
newspapers. [See Complaint at ¶¶ 35-38, 66, 73, 75-77, 86-87, 110]. These comments did not
further debate about city policies on the legislative floor and instead “are only ‘casually or
incidentally related to legislative affairs.’” Romero-Barcelo, 75 F.3d at 29 (citing Nat’l Ass’n of
Social Workers v. Harwood, 69 F.3d 622, 630 (1st Cir. 1995)). As such, absolute legislative
immunity does not protect the City Council Defendants here from suit based on comments made
outside the forum of City Council meetings, and the Court cannot enter judgment in favor of the
defendants on that basis as to Counts II-XVI. See Barcelo v. Agosto, 876 F. Supp. 1332, 1343

(D.P.R. 1995) (“[D]efendants’ alleged dissemination of false, defamatory, and slanderous
information about the plaintiff through press releases, interviews, and speeches occurring outside
the strict scope of their legislative duties is not similarly protected by the immunity.”), aff’d
Romero-Barcelo, 75 F.3d at 35. However, the City Council Defendants may still be immune
from suit with respect to Fountain’s civil rights claims (Counts II-VII) based on the doctrine of
qualified immunity.
2. Qualified Immunity
The City Council Defendants argue that they are protected by qualified immunity even if
absolute legislative immunity does not apply.2 [Dkt. 26 at 8]. They claim that, as City
Councilors, they had the right to speak about matters of public interest and safety, and their

concerns about Fountain and MPD were “well-founded.” [Id.]. Fountain contends that qualified
immunity is inapplicable because it does not protect defendants who have violated a “concrete
constitutional right.” [Dkt. 33 at 11].
The doctrine of qualified immunity “protects government officials . . . from suit and
liability for monetary damages under [Section] 1983.” Acevedo-Garcia, 204 F.3d at 10. Section
1983 provides that “[e]very person” acting “under color of any statute, ordinance, regulation,
custom, or usage of any State or Territory or the District of Columbia” who subjects or causes to
subject someone “to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws” of the United States shall be liable to the injured party. 42 U.S.C. § 1983.
An individual asserting a Section 1983 claim must show that the challenged conduct is

“attributable to a person acting under color of state law” and that the conduct was a “denial of
rights secured by the Constitution or by federal law.” Soto v. Flores, 103 F.3d 1056, 1061 (1st
Cir. 1997); see Graham v. Connor, 490 U.S. 386, 393-94 (1989) (explaining that Section 1983 is
“not itself a source of substantive rights, but merely provides a method for vindicating federal
rights elsewhere conferred” (citation omitted)).
Qualified immunity provides that “government officials performing discretionary
functions” are generally “shielded from liability for civil damages insofar as their conduct does

2 Because the City Council Defendants have established absolute legislative immunity for any acts that occurred
within City Council meetings, the Court will consider only those allegations related to conduct that occurred beyond
that forum when examining whether qualified immunity applies.
not violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” Floyd v. Farrell, 765 F.2d 1, 4 (1st Cir. 1985) (citing Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). The Court must decide “(1) whether the facts alleged or shown by
the plaintiff make out a violation of a constitutional right; and (2) if so, whether the right was

‘clearly established’ at the time of the defendant’s alleged violation.” Maldonado v. Fontanes,
568 F.3d 263, 269 (1st Cir. 2009) (citing Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009)).
To answer the second question, the Court must evaluate whether the law was “sufficiently clear”
such that “every reasonable official would understand that what he is doing is unlawful.” Eves v.
LePage, 927 F.3d 575, 583 (1st Cir. 2019) (citation and internal quotation marks omitted). In
other words, immunity “exists even where the abstract ‘right’ invoked by the plaintiff is well-
established, so long as the official could reasonably have believed ‘on the facts’ that no violation
existed.” Dirrane v. Brookline Police Dep’t, 315 F.3d 65, 69 (1st Cir. 2002) (citations omitted).
Subjective intent is irrelevant to a qualified immunity defense. Abreau-Guzman v. Ford, 241
F.3d 69, 73 (1st Cir. 2001) (citing Crawford-El v. Britton, 523 U.S.574, 588 (1998)). Courts

need not follow the two-step analysis sequentially. Maldonado, 568 F.3d at 270. Fountain has
claimed that the City Council Defendants violated his constitutional rights by “wag[ing] a
campaign of threats, intimidation, and coercion” against him after he “engaged in protected free
speech,” including “petitioning” for his dual role as a City Council member and intermittent
police officer and “providing testimony to state and federal agencies.” [Complaint at ¶¶ 123-25,
128-30, 133-35, 140-42, 147-49, 154-56]. The Court is not convinced Fountain has established a
violation of his constitutional rights, and even if he has, those rights were not sufficiently
established at the time of the alleged violation.
Undoubtedly, petitioning and testifying are protected activities under the First
Amendment. See Najas Realty, LLC v. Seekonk Water Dist., 821 F.3d 134, 141 (1st Cir. 2016)
(noting that the First Amendment “protects (among other things) the right to free speech and the
right to petition all branches of the government”). And the First Amendment “guarantees not

only freedom from government censorship, but also freedom from official retaliation on the basis
of protected speech.” Mattei v. Dunbar, 217 F. Supp. 3d 367, 373 (D. Mass. 2016) (citing
Hartman v. Moore, 547 U.S. 250, 256 (2006)). A “campaign of harassment can support a First
Amendment retaliation claim if the harassment would deter a reasonably hardy individual in the
exercise of his or her First Amendment rights.” Barton v. Clancy, 632 F.3d 9, 30 (1st Cir. 2011)
(citations omitted). However, courts are “not typically receptive to retaliation claims arising out
of government speech.” Najas Realty, 821 F.3d at 143. This is because public officials have “an
obligation to speak out about matters of public concern,” which include topics “fairly considered
as relating to any matter of political, social, or other concern to the community.” Id. (affirming
the dismissal of the plaintiff’s First Amendment retaliation claim).

In Najas Realty, LLC v. Seekonk Water District, the First Circuit found that the
plaintiffs’ First Amendment retaliation claim was not plausible on its face. Id. at 142. The
plaintiffs had sought approval for construction on a parcel of land, and one of the defendants, the
Water District’s Superintendent, voiced at various meetings his objections to the plaintiffs’ plans
based on the potential for water contamination. Id. at 139. The plaintiffs claimed the
Superintendent “embarked on a campaign of defamation” and spread “supposed falsehoods”
about the project in violation of their First Amendment right to petition. Id. The First Circuit
explained that there was no indication in the record that the Superintendent’s beliefs on the
potential impact of the project “were not genuinely held.” Id. at 142. The First Circuit also
explained that the Superintendent “had a duty . . . to raise objections he deemed valid and it is
hard to find any allegations in the complaint that [the Superintendent] was doing anything more
than fulfilling this duty.” Id. at 143. Because his official position charged him with
“maintaining safe drinking water” for the town’s residents, and “[n]ot only do public officials

have free speech rights, but they also have an obligation to speak out about matters of public
concern,” the plaintiffs failed to plead a plausible First Amendment retaliation claim. Id. (citing
Goldstein v. Galvin, 719 F.3d 16, 30 (1st Cir. 2016)).
Similarly, in Barton v. Clancy, the plaintiff brought a First Amendment retaliation claim
against the city’s mayor after he publicly criticized the plaintiff’s ability to coach basketball at a
city high school, following the plaintiff’s retirement on disability, and called for the rescission of
the plaintiff’s appointment in letters and interviews with local newspapers. 632 F.3d at 11-12.
The First Circuit concluded that the mayor was entitled to qualified immunity. Id. at 12. The
First Circuit observed that the mayor’s “statements consisted of substantively appropriate speech
criticizing the decision to hire [the plaintiff] as a city-employed coach while he was receiving a

disability pension from the city,” which invoked the financial interests of the city. Id. at 30. The
First Circuit further explained that the mayor “instigated a public controversy about an unusual
hiring decision that had larger policy implications,” and his “focus on that decision, the
legitimate fiscal-responsibility thrust of his commentary, and the limited nature of his records
inquiry” made it “far from clear that [the mayor’s] actions were sufficiently oppressive to chill
the speech of a reasonably hardy individual.” Id. As such, the First Circuit could not say that a
“reasonable official” in the mayor’s shoes would have “understood that his conduct violated” the
plaintiff’s constitutional rights. Id. (citation omitted).
Here, Fountain was a City Council member who was also employed by the MPD during
(part-time) and after (full-time) his tenure as a municipal officer. [See Complaint at ¶¶ 10, 13-
22]. While on City Council, he voted on a contract for superior officers in the MPD, which he
admits “became the subject of much public controversy within the City [of Methuen] which

continues to this day.” [Id. at ¶¶ 25-32]. Fountain also acknowledges that, as an intermittent
police officer, he was ineligible for promotion unless he took the Civil Service Exam, which is
required of reserve officers, patrol officers, and ranking officers, though he claims he was
eventually “assigned to the role of detective, not promoted . . . based on exceptional
performance” and therefore was not subject to the Civil Service Exam requirements. [Id. at
¶¶ 50, 52, 60 (emphasis added)]. The City Council Defendants’ comments about Fountain, at
their core, questioned whether Fountain’s appointment to permanent intermittent police officer
was appropriate and raised concerns of corruption in Methuen’s public services. The City
Council Defendants’ alleged actions, like the mayor’s in Barton, “instigated a public controversy
about an unusual hiring decision that had larger policy implications” reaching areas typically

within the purview of the City Council, Barton, 632 F.3d at 30, and they “had a duty” to raise
those concerns, Najas Realty, 821 F.3d at 143. Accordingly, the City Council Defendants are
entitled to qualified immunity as to Fountain’s First Amendment claims. They are also entitled
to qualified immunity as to Fountain’s Massachusetts Civil Rights Act claims, which are also
premised on the First Amendment.3 See Wagner v. City of Holyoke, 241 F. Supp. 2d 78, 96 (D.
Mass. 2003) (“Qualified immunity under § 1983 applies with equal force to claims brought

3 Fountain also alleges in a cursory fashion that he has a “due process interest in his continued employment with the
City of Methuen Police Department” in connection with his Massachusetts Civil Rights Act claims, though the
majority of his allegations focus on the First Amendment. [See Complaint at ¶¶ 139, 146, 153]. Fountain, however,
has failed to allege any facts demonstrating that the City Council Defendants could be held responsible for any due
process violations, as the City Council Defendants were not responsible for hiring or terminating Fountain.
under the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I.”); Duarte v. Healy,
537 N.E.2d 1230, 1232 (Mass. 1989) (“We conclude it [the ‘issue of qualified immunity under
our State Civil Rights Act’] to be consistent with the intent of the Legislature in enacting the
Civil Rights Act to adopt thereunder the standard of immunity for public officials developed

under § 1983.”).
Because the Court finds that absolute or qualified immunity applies to all of the City
Council Defendants’ alleged actions in violation of Fountain’s First Amendment rights, brought
pursuant to 42 U.S.C. § 1983 or the Massachusetts Civil Rights Act, the Court grants the
defendants’ motion for judgment as to Counts II-VII.
C. Civil Conspiracy (Count XIII)
Fountain has alleged that the City Council Defendants and Perry “acted in concert to
inflict wrongdoing” upon him by “attack[ing] [his] qualifications and training as a police officer,
the circumstances under which he was hired, and his integrity as a City Councilor,” which
“interfered with his employment” with the MPD. [Complaint at ¶¶ 184-85]. The defendants

argue that the City Council Defendants are immune from liability and Fountain’s civil
conspiracy claim against Perry must fail because he cannot conspire with protected individuals.
[Dkt. 26 at 9-10]. The defendants do not cite any statutory or case law supporting this
contention. Fountain counters that judgment on the conspiracy claim should not be granted
because the City Council defendants are not immune from suit. [Dkt. 33 at 12]. The defendants
also maintain that Fountain has failed to allege facts supporting a civil conspiracy claim. [Dkt.
26 at 14-15; Dkt. 37 at 4].
The Court has already determined that the City Council Defendants are not entitled to
absolute immunity for comments made outside the purview of City Council meetings—and
therefore did not grant judgment for the defendants for all claims against the City Council
Defendants—and qualified immunity applies only to Fountain’s civil rights claims (Counts II-
VII). See supra. Fountain has brought several other charges against the defendants, including
tortious interference with advantageous relations, libel, intentional infliction of emotional

distress, and abuse of process. Thus, the defendants’ first argument fails.
To establish civil conspiracy, the plaintiff must demonstrate that “a combination of
persons acted pursuant to an agreement to injure the plaintiff.” Gutierrez v. Mass. Bay Transp.
Auth., 772 N.E.2d 552, 568 (Mass. 2002). There are two kinds of civil conspiracy. Kurker v.
Hill, 689 N.E.2d 833, 836 (Mass. App. Ct. 1998). The first requires the plaintiff to establish that
the “defendants, acting in unison, had some peculiar power of coercion over [the] plaintiff that
they would not have had if they had been acting independently.” Aetna Cas. Sur. Co. v. P&B
Autobody, 43 F.3d 1546, 1563 (1st Cir. 1994). That approach is not applicable here, which
Fountain acknowledges. [See Dkt. 33 at 17]. The second derives from “concerted action”
between multiple individuals, in which liability is imposed on one for the tort of another.

Kurker, 689 N.E.2d at 836. For this type of civil conspiracy to apply, there must be (1) a
“common design or agreement, though not necessarily express, between two or more persons to
do a wrongful act” and (2) proof of “some tortious act in furtherance of the agreement.” Aetna,
43 F.3d at 1564. Under this approach, a defendant must provide “substantial assistance, with the
knowledge that such assistance is contributing to a common tortious plan.” Kurker, 689 N.E.2d
at 837. Fountain’s complaint is devoid of any facts suggestive of a “common design or
agreement,” let alone “substantial assistance” provided by the City Council Defendants to Perry
or vice versa prior to Fountain’s termination. Fountain does not even allege that Perry and the
City Council Defendants ever met or spoke. The fact that the City Council Defendants each
voiced their concerns about the MPD and Fountain’s role there does not imply a “common
design or agreement,” as this topic related to public safety and policy within City Council and
the mayor’s responsibilities and pending City Council initiatives. As such, the Court grants the
defendants’ motion for judgment on the pleadings as to Count XIII.

D. Merits of the Remaining Claims (Counts VIII-XII, XIV-XVI)
Fountain brings several other state common law claims against the City Council
Defendants: tortious interference with advantageous relations, libel and slander, intentional
infliction of emotional distress, and abuse of process. As already explained, absolute legislative
immunity does not shield the City Council Defendants from these claims, as they made several
statements not protected by such immunity, and qualified immunity applies only to the alleged
civil rights violations. The defendants argue that, regardless, these claims should be dismissed
on the merits. [Dkt. 26 at 13-20].
1. Tortious Interference with Advantageous Relations (Count VIII-X)
The defendants argue that Fountain’s claims for tortious interference with advantageous

relations must fail because there is no evidence that the defendants “acted with any purpose other
than to ensure that the police department had properly qualified police officers in positions for
which they were trained” and Methuen had the right to terminate Fountain at will. [Dkt. 26 at
14]. Fountain counters that he need not show that the defendants acted with malicious purpose,
and he has alleged facts sufficient to plead a plausible claim to relief. [See Dkt. 33 at 17].
To establish a plausible claim for tortious interference with advantageous relations under
Massachusetts law, a plaintiff must show that (1) there was a “known advantageous employment
relationship”; (2) the defendant knew of that relationship; (3) the defendant’s interference was
intentional and “improper in motive or means”; and (4) the plaintiff suffered economic harm as a
result of the defendant’s conduct. Ayash v. Dana-Farber Cancer Inst., 822 N.E.2d 667, 690
(Mass. 2005).4 Improper means include “violation of a statute or common-law precept, e.g., by
means of threats, misrepresentation, or defamation,” and “evidence of retaliation or ill will
toward the plaintiff” can support allegations of improper motives. Cavicchi v. Koski, 855

N.E.2d 1137, 1142 (Mass. App. Ct. 2006).
As an initial matter, whether the City of Methuen had the right to terminate Fountain at
will is irrelevant to the City Council Defendants’ actions here. While Fountain has alleged that
he had a relationship with the MPD, which the City Council Defendants knew, he has failed to
allege facts sufficient to demonstrate that the City Council Defendants harbored any improper
motive or utilized improper means to intentionally interfere with Fountain’s relationship with
MPD. Rather, as already discussed by the Court, the City Council Defendants spoke on matters
of public concern, which Fountain happened to be involved in, and, indeed, they had a duty to do
so as municipal officers elected by the people. The Court grants the defendants’ motion for
judgment as to Counts VIII-X.

2. Libel and Slander (Count XI)
Fountain brings a claim for libel and slander against Simard. The defendants argue that
Fountain’s claims against Simard for libel and slander cannot succeed because Simard’s
statements were true or, alternatively, were opinions based on disclosed facts. [Dkt. 26 at 17-
20]. The defendants also claim that Simard has a conditional privilege to make statements about
the MPD and Fountain. [Id. at 20]. Fountain responds that Simard’s statements were “fact-
based,” not “opinion-based,” and false. [Dkt. 33 at 19].

4 The defendants also appear to argue that there must be proof of actual malice. [Dkt. 26 at 13-14]. Proof of actual
malice is required when an employee is claiming a supervisor has intentionally interfered with the employee’s
advantageous relationship with the employer or a corporate official is acting in an official capacity. See Ayash v.
Dana-Farber Cancer Institute, 822 N.E.2d 667, 690 (Mass. 2005). Such is not the case here.
To prevail on a claim of libel or slander, a plaintiff must establish that “(1) the defendant
published a defamatory statement of and concerning the plaintiff; (2) the statement was a false
statement of fact (as opposed to opinion); (3) the defendant was at fault for making the
statement, and any privilege that may have attached to the statement was abused; and (4) the

plaintiff suffered damages as a result, or the statement was of the type that is actionable without
proof of economic loss.” Lawless v. Estrella, 160 N.E.3d 1253, 1257 (Mass. App. Ct. 2020)
(citing Downey v. Chutehall Constr. Co., 19 N.E.3d 470, 474 (Mass. App. Ct. 2014)). In most
cases, the statement “must be false.” Barrows v. Wareham Fire Dist., 976 N.E.2d 830, 836 n.6
(Mass. App. Ct. 2012). Moreover, the statement “must reasonably be understood either as a
statement of actual fact, or one that implies defamatory facts,” and statements “of pure opinion
are not actionable.” Lawless, 160 N.E.3d at 1257-58. Whether a statement is one of fact or
opinion is a question of law “if the statement unambiguously constitutes either fact or opinion.”
Id. at 1259.
In the complaint, Fountain references three specific statements Simard made “falsely and

publicly.” [Complaint at ¶ 174]. The first occurred at an October 2019 “Meet the Candidates”
event, when Simard said he would “implement a hiring freeze to stop the political hack jobs” and
that City Council should follow charter rules and ethics laws that had been “grossly ignored with
the police superiors’ contract.” [Id. at ¶ 38]. The second was at a City Council meeting in
March 2020, when Simard stated that a “detective who isn’t certified and bypassed the hiring
process is working major cases, even homicides.” [Id. at ¶ 63]. The third, a quotation in a
newspaper article in May 2020, questioned “why . . . Fountain’s training [was] accelerated and
modified,” allowing him to be promoted to detective in eight months. [Id. at ¶ 77]. The first
statement does not name or reference Fountain and instead critiques City Council as a whole.
The second statement, which Simard made during a City Council meeting, is protected by
legislative immunity. These two statements are therefore not actionable as to libel and slander
claims. The third statement, which names Fountain and to which legislative immunity does not
apply, requires slightly closer examination. Still, when looked at in context, Fountain has failed

to establish that Simard’s third comment was defamatory. Simard made that statement at the
same time he asked “why [Methuen’s] police department would . . . circumvent the civil service
hiring process and appoint a city councilor/firefighter to a police intermittent position.” [Id. at
¶ 76]. Fountain himself has admitted that he did not take the Civil Service Exam, as required of
other officers, and that intermittent officers are “not subject to the Civil Service requirements.”
[Id. at ¶ 50]. As such, Simard’s statement cannot be construed as false statement of fact that is
defamatory. The Court therefore grants the defendants’ motion as to Count XI.
3. Intentional Infliction of Emotional Distress (Count XII)
Fountain brings a claim for intentional infliction of emotional distress against Simard.
The defendants contend that Simard did not act improperly and that Fountain’s allegations are

insufficient to sustain a claim for intentional infliction of emotional distress under Massachusetts
law. [Dkt. 26 at 17]. Fountain argues he has met this burden. [Dkt. 33 at 18-19]. To state a
claim for intentional infliction of emotional distress under Massachusetts law, a plaintiff must
show that (1) the actor “intended to inflict emotional distress” or “knew or should have known”
that emotional distress would result from the conduct; (2) the conduct was “extreme and
outrageous,” “beyond all possible bounds of decency,” and “utterly intolerable in a civilized
community”; (3) the defendant’s actions caused the plaintiff’s distress; and (4) the plaintiff’s
emotional distress was “severe,” such that no reasonable person could be expected to endure it.
Doyle v. Hasbro, Inc., 103 F.3d 186, 195 (1st Cir. 1996) (citing Agis v. Howard Johnson Co.,
355 N.E.2d 315, 318-19 (Mass. 1976)). The plaintiff must allege facts meeting a “requisite level
of severity” of emotional distress “that no reasonable [person] could be expected to endure,” a
high standard to meet. Boyle v. Barnstable Police Dep’t, 818 F. Supp. 2d 284, 310 (D. Mass.
2011).

Fountain has not alleged any facts—beyond conclusory, sweeping statements that the
Court need not credit—suggesting that Simard intended to inflict emotional distress or that he
otherwise knew or should have known that his comments would result in severe emotional
distress to Fountain. He has also failed to establish that Simard’s conduct was extreme and
outrageous. Simard, as a City Council member, has a duty to speak about issues of public
concern, controversy, and safety. As such, the Court cannot say that Simard’s comments
amounted to an “extreme and outrageous” “patten of harassment” that was intended to “shock
and harm a person’s peace of mind.” Tonneson v. Cambridge College, No. 10-cv-12004-RWZ,
2011 WL 3798874, at *3 (D. Mass. Aug. 29, 2011); see Smith v. Jenkins, 718 F. Supp. 2d 155,
172 n.26 (D. Mass. 2010). Fountain’s allegations are therefore insufficient to establish a claim to

intentional infliction of emotional distress against Simard. See Quinn v. Walsh, 732 N.E.2d 330,
338 (Mass. App. Ct. 2000) (citing Tetrault v. Mahoney, Hawkes & Goldings, 681 N.E.2d 1189,
1197 (Mass. 1997) (noting that “mere insults, indignities, threats, annoyances, petty oppressions
or other trivialities” are not enough to establish a claim for intentional infliction of emotional
distress). The Court grants the defendants’ motion as to Count XII.
4. Abuse of Process (Count XIV-XVI)
Fountain alleges the City Council Defendants “utilized official process” for “ulterior,
illegitimate, improper and illegal purposes” in their “successful attempts to separate [Fountain]
from his employment” as a full-time permanent intermittent police officer with the MPD.
[Complaint at ¶¶ 188-189, 193-94, 198-99]. The defendants argue that Fountain has failed to
allege that the City Council Defendants used a “process” recognized by the courts as actionable
under an abuse-of-process claim and, even if he did, the City Council Defendants used any such
process for its stated purpose. [Dkt. 26 at 16]. Fountain does not respond to this argument.

Under Massachusetts law, an abuse of process claim requires the plaintiff to show that a
“‘process’ was used, for an ulterior or illegitimate purpose, resulting in damage.” Scholz v.
Goudreau, 132 F. Supp. 3d 239, 260 (D. Mass. 2015) (quoting Psy-Ed Corp. v. Klein, 947
N.E.2d 520, 534 (Mass. 2011)). Abuse of process claims in Massachusetts courts have been
limited to three types of processes: writs of attachment, the process used to institute a civil
action, and the process related to the bringing of criminal charges. Jones v. Brockton Public
Markets, Inc., 340 N.E.2d 484, 485-86 (Mass. 1975) (citations omitted). As such, “process” in
the context of “abuse of process” refers to “the papers issued by a court to bring a party or
property within its jurisdiction.” Id. (declining to extend the definition of process to include
injunctions); see Gill v. United States, 516 F. Supp. 3d 64, 82 (D. Mass. 2021).

Fountain does not allege that any cognizable process was used here. In fact, he does not
specify the process used at all. He states merely that the City Council Defendants “utilized
official process” to “separate [Fountain] from his employment” with the MPD. [Complaint at
¶¶ 188, 193, 198]. Nothing in the complaint can be read to be a “process” as defined by
Massachusetts law for claims of abuse of process. See Jones, 340 N.E.2d at 485-86. Fountain’s
failure to address the defendants’ abuse-of-process arguments appears to concede this. See
McMann v. Selene Fin. LP, 332 F. Supp. 3d 481, 485 (D. Mass. 2018) (noting that an opposition
that “does not address” a defendant’s argument “seems to concede the point”). The Court grants
the defendants’ motion as to Counts XIV-XVI.
IV. Conclusion
For the foregoing reasons, the defendants’ motion for judgment on the pleadings [Dkt.
25] is GRANTED IN PART and DENIED IN PART. The Court GRANTS judgment in favor
of the defendants as to Counts II, III, IV, V, VI, VII, VIII, IX, X, XI, XII, XIII, XIV, XV, XVI,

and DENIES the defendants’ motion for judgment on the pleadings as to Count I. All claims
against Perry, Simard, Beauregard, and McCarty have been dismissed. Only Fountain’s claim
for wrongful termination against the City of Methuen remains.
SO ORDERED.
Dated: September 22, 2022 /s/ Angel Kelley
Hon. Angel Kelley
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10200611. Public record. Not legal advice.