Maroney v. Fiorentini

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

MICHAEL J. MARONEY, as

Trustee of Premiere Realty

Trust, and MARONEY

CONSTRUCTION COMPANY, INC.,

Plaintiffs,

v. No. 16-CV-11575-DLC

JAMES J. FIORENTINI,

Individually and in his

Capacity as Mayor of the

City of Haverhill, ROBERT

E. WARD, Individually and

in his Capacity as Deputy

Director of Public Works

of the City of Haverhill,

Water/Wastewater Division,

and THE CITY OF HAVERHILL,

Defendants.

MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION

FOR SUMMARY JUDGMENT

CABELL, U.S.M.J.

This case arises from efforts by Michael J. Maroney

(“Maroney”) to develop a subdivision of homes in the City of

Haverhill (“the City”). Having been denied certain permits,

Maroney filed this action through his business entities against

the City and two City officials for violations of 42 U.S.C. § 1983

(“section 1983”) and Massachusetts state law.1

1 Maroney filed suit as Trustee of Premiere Realty Trust, and in the name of

his company, Maroney Construction Company, Inc. For ease of reference, the

court uses “Maroney” or “the plaintiff” in the singular form to refer to these

entities.

The defendants, Robert E. Ward (“Ward”), deputy director of

the City’s Department of Public Works (“the Water Department”),

and James E. Fiorentini, the City’s mayor, (“the Mayor”)

(collectively “the defendants”), move for summary judgment on the

remaining claims in the operative amended complaint (“operative

complaint”) (D. 51). (D. 95). These claims are: a violation of

substantive due process under section 1983; a violation of the

Massachusetts Civil Rights Act, M.G.L. c. 12, § 11I (“MCRA”);

interference with contractual or economic relations; and civil

conspiracy. (D. 51).

The defendants argue that Ward and other City officials denied

permits and refused to sign off on site plans because of Maroney’s

delay in designing and building a water booster station to serve

the subdivision’s homes. Relatedly, so they contend, Maroney never

submitted a final revised design of the station after October 2013

as required by the City and its outside engineering firm. The

defendants further submit that Maroney never provided a compliant

design after Ward required a different pumping system in January

2016. (D. 96, 110).

The plaintiff argues in opposition that Ward repeatedly

denied permits and imposed unfounded requirements without a

reasonable basis with respect to designing and building the water

booster station. The plaintiff also contends that the Mayor made

threats to Maroney to drop a July 2015 state court lawsuit Maroney

filed to secure the necessary permits to develop the subdivision.

Ward purportedly carried out those threats by continuing to deny

permits, changing the pumping system design in January 2016, and

opposing an extension of time to construct the water booster

station in the fall of 2016.

In response, the defendants argue that Ward acted the same

before and after Maroney filed the state court lawsuit. For the

reasons that follow, the summary judgment motion (D. 95) is allowed

in part and denied in part. In particular, the motion is allowed

as to Ward, and allowed as to the Mayor except for the interference

with contractual or economic relations claim.

I. STANDARD OF REVIEW

Entitlement to summary judgment requires the movant to

demonstrate “there is no genuine dispute as to any material fact.”

Dusel v. Factory Mut. Ins. Co., 52 F.4th 495, 503 (1st Cir. 2022)

(citation omitted). If the movant is “able to make a showing that

there is no genuine issue of material fact, the burden shifts to

the nonmoving party, who must, with respect to each issue on which

[he] would bear the burden of proof at trial, demonstrate that a

trier of fact could reasonably resolve that issue in [his] favor.”

Id. (citation omitted); see Clifford v. Barnhart, 449 F.3d 276,

280 (1st Cir. 2006) (“[A]s to any essential factual element of its

claim on which the nonmovant would bear the burden of proof at

trial, its failure to come forward with sufficient evidence to

generate a trialworthy issue warrants summary judgment.”)

(citation omitted).

The record, including all reasonable inferences, is viewed in

the nonmovant’s favor. See Motorists Com. Mut. Ins. Co. v.

Hartwell, 53 F.4th 730, 734 (1st Cir. 2022). Uncontroverted

statements of fact in the movant’s L.R. 56.1 statement comprise

part of the summary judgment record. See, e.g., Cochran v. Quest

Software, Inc., 328 F.3d 1, 12 (1st Cir. 2003). Viewed under the

foregoing standard, the facts are as follows.

II. BACKGROUND

A. Subdivision Approval with Water Booster Station

In 2009, Premiere Realty Trust (“Premiere”) purchased

property in Haverhill to build a subdivision of homes known as

Crystal Springs Cluster (“Crystal Springs”). (D. 104, ¶ 6).2

Premiere owned the land and the Maroney Construction Company, Inc.

(“Maroney Construction”) was the general contractor. In addition

to being Premiere’s trustee, Maroney is the president of Maroney

Construction. (D. 104, ¶¶ 1-3). As designed, the project

consisted of 50 residential lots: 16 on a private way known as

2 The above filing contains both the defendants’ L.R. 56.1 paragraphs and the

plaintiff’s responses to those paragraphs. (D. 104). Unless designated as a

“Response,” a citation to a paragraph includes the portion of the plaintiff’s

response which does not dispute or controvert the defendants’ paragraph.

Back Nine Drive and 34 on a private way known as Front Nine Drive.

(D. 97-13, p. 26).3

In March 2009, the Planning Board for the City of Haverhill

(“the Planning Board” or “the Board”) held a meeting regarding

Maroney’s application for a special permit to develop Crystal

Springs. During the meeting, Maroney acknowledged the City’s

“concerns about water pressure” and “proposed building a water

booster station” to address the concerns. (D. 104, ¶ 8). In fact,

Maroney agreed a booster station would be needed to meet water

pressure and fire hydrant flow requirements. (D. 104, ¶ 9).

In a May 2009 letter, the Water Department’s outside

engineering firm, Wright-Pierce, provided an analysis of the

effect of the subdivision on the City’s water supply. (D. 97-4,

pp. 14-15). Without identifying specific lots, Wright-Pierce

concluded that higher elevations in the subdivision could not be

served without providing supplemental water boosting. (D. 97-4,

pp. 15-17). The lots on Front Nine Drive have higher elevations

than the lots on Back Nine Drive. (D. 97-2, pp. 13-14).

When the Mayor initially learned about the development in or

around 2009 from William Pillsbury (“Pillsbury”), the City’s

planning director, the Mayor supported the project. In fact, the

Mayor stated he was “all for it.” (D. 97-12, p. 31).

3 Except for depositions, page numbers refer to the page number in the upper

right-hand corner of the docketed filing.

In January 2010,4 the Planning Board approved the subdivision

plan with the inclusion of documents from the Water Department

“about the need for the water booster station.” (D. 104, ¶ 10).

The approved definitive subdivision plan required Maroney to build

a water booster station. (D. 97-2, p. 86) (D. 97-4, pp. 93-94).

Notably, the definitive plan did not set a deadline or a segmented

timeline to complete construction of the booster station.5 (D.

104-3, p. 27). The plan did, however, allow Maroney to post a

security bond for the water booster station or to build the

station, according to John A. D’Aoust (“D’Aoust”), the City’s water

treatment plant manager.6 (D. 104-3, p. 98, ln. 6-8, 15-18).

B. Timing to Build Station, Form F, and Tri-Partite Agreements

In a prior opinion, the court determined that Maroney is

estopped from arguing that he had until November 2016 to build the

water booster station. (D. 77, p. 12). Rather, he agreed to build

the station after completing Phase I, which was earlier than

4 The verified operative complaint (D. 51, ¶ 11) states that the Planning Board

approved the plan in January 2010. See Sheinkopf v. Stone, 927 F.2d 1259, 1262-

1263 (1st Cir. 1991).

5 The parties dispute the timing of “when the station needed to be built” (D.

104, ¶¶ 9, 12, Responses), particularly the plaintiff (D. 105, p. 2) (“[T]he

timing [of] when the station needed to be built is very much disputed.”).

6 The pertinent language reads as follows: “No building permit will be issued

until all of the utilities shown on the plans to provide service to the proposed

structure are installed and tested, or a security bond is posted for such work.”

(D. 97-13, pp. 7, 25) (emphasis added).

November 2016.7 (D. 77, p. 12). Accordingly, Maroney agreed to

build the station earlier than November 2016.

In June 2009, Maroney executed the Planning Board’s “Form F

Covenant” for all lots in the subdivision. (D. 97-13, pp. 22-23).

The form set a June 12, 2011 deadline for Maroney to complete the

installation of “municipal services,” which, by definition,

included utilities such as the water booster station. (D. 97-13,

p. 23) (D. 104-3, p. 98). Importantly, the form imposed a

condition which required the installation of municipal services

before any lot in the subdivision “may be built upon.” (D. 97-

13, p. 22).

As stated in the form, the Planning Board would release lots

from this condition if the Board executed a performance guarantee

“enumerating the specific lots to be so released.” (D. 97-13, p.

23). In this regard, the Planning Board, Maroney, and Pentucket

Bank (or the Lowell Five Cents Savings Bank) (“the bank”) entered

into successive Tri-Partite Agreements under which the Planning

Board agreed to release certain enumerated lots from “any and all

covenants,” such as Form F, in return for the bank issuing

7 Regardless of the timing dispute Maroney identifies as to “when the station

needed to be built” (D. 105, pp. 2-3), the fact remains he is estopped from

arguing that he had until November 2016 to build the station. (D. 77, p. 12).

Further, and in any event, the purported misconduct does not give rise to a

violation of substantive due process or MCRA, as explained in the discussion

section.

irrevocable lines of credits designating the Planning Board as the

sole beneficiary. (D. 97-13, pp. 26-47).

By way of example, in the first Tri-Partite Agreement dated

June 8, 2010, the bank agreed to issue an irrevocable letter of

credit to the Planning Board, the Planning Board released 16

enumerated lots on Back Nine Drive from “any and all covenants,”

and the parties extended the deadline for Maroney to install

municipal services to January 28, 2012.8 (D. 97-13, p. 27). The

last Tri-Partite Agreement extended the deadline to install

municipal services to October 1, 2016.9 In essence, the letters

of credit described in the Tri-Partite Agreements served as

performance guarantees or security bonds to complete the

installation of municipal services to adequately serve the houses

on the released lots. (D. 97-13, pp. 26-27, 31, 34-35, 44-45).

To explain the construction approval process, the release of

lots by the Planning Board under the Tri-Partite Agreements

operated on a “separate track” from the permitting process by the

City’s departments. (D. 97-24, pp. 17-18); see City of Haverhill

8 As previously noted, “municipal services” encompasses the water booster

station.

9 Although the agreement recites the October 1, 2016 deadline under which Maroney

“shall complete” the installation of municipal services, it also contemplated

a November 1, 2016 deadline. In that vein, the agreement reads that if the

“installation of municipal services is not completed” by November 1, 2016, the

Planning Board may draw on any undisbursed funds under the letter of credit to

complete the remaining work. (D. 97-13, p. 45). The Board’s Counsel advised

the Board of this interpretation in the fall of 2016. (D. 97-24, p. 22).

Rules and Regulations Governing the Subdivision of Land, §§ IV.C,

IV.F (June 14, 2000) (captioned Filing Requirements, Lot Release

Procedure and Construction of Subdivision),

https://www.cityofhaverhill.com/departments/economic_development

_and_planning/subdivision_of_land.php#revize_document_center_rz4

7 (“Haverhill Subdivision Rules”).10 After the Planning Board

releases a lot, the developer submits a site-plan application to

the Engineering Department. The applicable City departments,

which here include the Water Department, will then “weigh in” or

“sign off” on the application to indicate their approval or

disapproval. (D. 104-3, p. 46) (D. 104-7, p. 90) (D. 97-1, p. 9,

n.14); see Haverhill Subdivision Rules, § IV.F.1. If the site

plan is approved for the released lot or lots in question, the

developer may proceed to obtain the necessary building and other

permits from the applicable departments to construct houses on the

released lots. (D. 104-3, p. 46) (D. 104-7, p. 90) (D. 97-1, p.

9, n.14); see Haverhill Subdivision Rules, § IV.F.1. Ward

therefore “had to sign off on the site plans in order for” Maroney

to obtain building permits to begin construction. (D. 104, ¶ 86).

As noted, the parties disagreed about the deadline for Maroney

to complete the water booster station. In October 2012, Maroney

10 The court’s ability to take judicial notice encompasses the City’s Rules and

Regulations Governing the Subdivision of Land posted on the City’s website.

See Getty Petroleum Mktg., Inc. v. Cap. Terminal Co., 391 F.3d 312, 321 n.24

(1st Cir. 2004) (Lipez, J., concurring) (collecting cases taking judicial notice

of city building code and town ordinances).

and Ward met to discuss the timing of the station’s construction.

(D. 97-4, pp. 31-32). In that vein, Maroney sent an October 17,

2012 letter with his schedule to D’Aoust.11 (D. 104-1, p. 220)

(D. 104-2) (D. 104-3, p. 11) (D. 97-4, pp. 31-32). As set out in

the letter, the schedule consisted of building houses on Front

Nine Drive “in three phases” consisting of 13 houses in the first

phase, 11 houses in the second phase, and ten houses in the third

phase. (D. 104-2). According to Maroney’s schedule, Maroney would

build or commence the process of building the water booster station

upon completing the first phase of 13 houses.12 (D. 104, ¶ 13)

(D. 104-2) (D. 104-1, pp. 220-221). In contrast, in May 2012,

D’Aoust understood Maroney would complete the station’s

construction “before the homes were built on Front Nine Drive.”

(D. 104-3, pp. 32, 38). In May 2012, Ward expected the water

booster “station to be done before occupancy of Front Nine” Drive

houses. (D. 97-4, pp. 28, 31). Subsequent attempts between

Maroney and Ward and/or D’Aoust to agree on a schedule were not

successful.

As noted, the last Tripartite Agreement required Maroney to

install the water booster station no later than November 1, 2016.13

11 Ward knew about the schedule in the October 17, 2012 letter. (D. 97-4, pp.

31-32) (D. 104-2).

12 See supra note 7.

13 See supra note 9.

Further, Maroney is estopped from arguing he had until November

2016 to build the station.

C. Maroney’s Progress in Building Station Prior to March 2015

Between 2009 and 2012, Maroney built approximately ten or 11

houses on Back Nine Drive. Correspondingly, Ward accommodated a

request from Maroney’s engineer by allowing Maroney to build these

and all other houses on Back Nine Drive lots without installing

the water booster station. (D. 97-4, pp. 19-20).

In 2013, the City initially wanted Maroney to use a water

booster station based on a “skid design” with a “pumping system

designed by either EFI or SyncroFlo,” the two suppliers of pumping

systems specified in the City’s pumping station requirements.14

(D. 97-4, p. 41) (D. 104, ¶ 17). The “factory-built” skid design

consisted of pumps and control panels mounted on a skid. (D. 97-

4, pp. 41-42). In lieu of using the skid design, Maroney proposed

using “a built in place station,” also referred to as “a field

built station.” (D. 104-4, ¶ 4) (D. 104, ¶ 18). Ward and D’Aoust

allowed Maroney to propose “a field built station,” which they

would “take a look at it” and consider. (D. 97-4, p. 47) (D. 104-

3, pp. 11, 71) (D. 104, ¶ 18). Relatedly, Ward and D’Aoust approved

14 Under the Haverhill Subdivision Rules, the Water Department “determine[s] the

areas where booster pumping is required.” Haverhill Subdivision Rules, §

V.5.2.5. Furthermore, “[p]umping stations shall be designed and constructed in

accordance with” the Water Department’s requirements. Id.; (D. 97-3).

the qualifications of Bruce Lewis (“Lewis”), Maroney’s engineer,

to design the built in place station. (D. 104-4, ¶ 4).

Lewis submitted a preliminary design for the water booster

station to D’Aoust in early June 2013 and a “proposed final plan”

to D’Aoust in late July 2013. (D. 104-4, ¶¶ 3, 6). After receiving

comments by Wright-Pierce, Lewis submitted a revised plan on

September 26, 2013. (D. 104-4, ¶ 7). In an October 30, 2013

memorandum to D’Aoust and Ward, Wright-Pierce reviewed the revised

design and added comments. (D. 97-6). D’Aoust, in turn, forwarded

the memorandum and a cover letter to Lewis on October 30, 2013.

In no uncertain terms, the memorandum states that, “A site plan

was not included as part of the resubmittal and is required prior

to final approval.” (D. 97-6, p. 3, § 3) (emphasis added). Even

Lewis noted that “Shop drawings for all materials needed to be

submitted to Wright-Pierce for review and approval prior to

construction.” (D. 104-4, ¶ 9). It is undisputed that the

“Wright-Pierce Memorandum did not approve” the revised,

resubmitted design. (D. 104, ¶ 22). Maroney also acknowledged

that the September 26, 2013 revised plan reviewed by Wright-Pierce

in the October 30, 2013 memorandum (“the revised plan”) was “the

last time [he and Lewis] submitted” design plans to the City “for

the water booster station.” (D. 97-2, pp. 39-40) (emphasis added).

By late October 2013, Maroney knew that Wright-Pierce did not

approve the revised design because D’Aoust copied him on the

October 30, 2013 email to Lewis which attached Wright-Pierce’s

memorandum. (D. 97-6). Against the backdrop of the accompanying

cover letter, Maroney also knew he had to submit an additional

final set of design plans to obtain the City’s approval. The cover

letter reads as follows:

There are a few items to be addressed. One of importance is

the site plan, the memo will indicate what is needed . . .

Please address these items in one final set of design plans

and specifications that will be adequate for the city and

MassDEP approval.

(D. 96-6) (emphasis added).15 Maroney did not submit a revised

final set of design plans to the City addressing these items.16

D. Ward’s Spring 2015 Refusals to Approve Permits and Water

Service Applications

By September 2014, the Planning Board had released 20 lots

along Front Nine Drive and set the aforementioned November 1, 2016

deadline for Maroney to install, inter alia, the water booster

station. (D. 97-13, pp. 34-35, 44-45). In March 2015, however,

Ward refused to approve “water service applications that were being

15 Notwithstanding the above, Lewis understood “that the design [of the water

booster station] was essentially complete and acceptable” by virtue of the cover

letter and attached memorandum. (D. 104-4, ¶ 8). Maroney considered the

revised plan as 95% complete. (D. 92-2, pp. 21-23, 33, 78, 153).

16 As indicated below, Maroney points out, and the record supports, that he and

Lewis brought the same plans to a January 5, 2016 meeting with Ward and D’Aoust.

Maroney acknowledges that he did not “pull the plans out at the meeting.” (D.

97-2, p. 77). He further testified that nothing was stopping him from October

30, 2013 to January 5, 2016 from submitting revised, final design plans for the

City’s review. (D. 97-2, p. 140).

requested for various homes on Front Nine Drive.”17 (D. 104, ¶

28) (D. 97-4, pp. 80, 94). Ward “did not speak with the Mayor

before stating that there would be ‘no more approvals’” for such

applications. That said, Ward may have updated him at one of their

weekly meetings. (D. 104, ¶ 30) (D. 97-4, pp. 79-80, 82-83). Ward

based his decision on the lack of progress on the water booster

station. (D. 97-4, p. 94). Similarly, “[a]s of April 2015, Ward”

refused to “sign off on additional permits because” he believed

“Maroney had not done enough work toward the water booster

station.” (D. 104, ¶ 30) (D. 97-2, p. 53).

During a meeting the same month, Maroney, Ward, D’Aoust,

Pillsbury, and Maroney’s attorney discussed a schedule for the

station’s construction and tried to arrive at an agreement.18 (D.

104, ¶ 32) (D. 97-2, pp. 52-53). After the meeting, a proposed

agreement was sent to Ward containing Maroney’s suggested schedule

to complete the water booster station “by the effective bond date.”

(D. 97-2, pp. 53-55, 57) (D. 97-10, p. 4). In pertinent part, the

proposed agreement stated that “the Water Department shall share

the new Hydraulic Analysis Report (2015) with the builder upon its

17 At the time and as pointed out by the plaintiff, Ward did not know which lots

on Front Nine Drive met the City’s minimum water pressure standard (35 psi).

(D. 97-4, pp. 81, 84). It was not until May 2015 that Wright-Pierce provided

the City with an analysis of which lots met the minimum requirement such that

they were serviceable without a water booster station. (D. 97-4, pp. 103-104).

18 Previous attempts in the preceding two years to arrive at an agreed schedule

were unsuccessful. (D. 97-2, pp. 33-36) (D. 104-1, pp. 206-207).

receipt of the same.” (D. 97-2, p. 57) (D. 104, ¶ 33) (D. 97-10,

p. 3). Maroney declined to sign the proposed agreement because

the City already had the hydraulic analysis report from Wright-

Pierce but would not provide it to Maroney before he signed the

agreement.19 (D. 97-2, pp. 58-61) (D. 104, ¶ 34).

After the failure to execute the proposed agreement, “Ward

refused to sign off on any additional building permits” for Crystal

Springs. (D. 104, ¶ 38). In fact, Ward testified that after March

2015 the Water Department did not “sign off on anything else to

allow any other homes to be built in the Crystal Springs

subdivision.” (D. 97-4, pp. 115-116). Notwithstanding Ward’s

refusals, “Maroney proceeded to build” houses on a number of lots

on Front Nine Drive “without building permits” for a six-week

period in June and early July 2015. (D. 104, ¶ 39) (D. 97-2, pp.

123, 126, 128). This, in turn, led the City’s Building Inspector

to issue Maroney a stop-work order on July 15, 2015, and Maroney

stopped building on the lots. (D. 104, ¶ 40) (97-4, pp. 111, 166-

167, 169) (D. 97-2, p. 121). By this time, Maroney had completed

the houses on Back Nine Drive. (D. 104-7, pp. 68-69) (D. 104-6,

p. 77) (D. 97-2, p. 207).

19 The plaintiff moves to strike the following from the defendants’ undisputed

statement of material facts: “[N]either Ward nor the Mayor made the decision

not to share the hydraulic analysis report with Maroney.” (D. 102) (D. 97, ¶

36). Striking or failing to credit the paragraph would not alter the court’s

decision on the summary judgment motion regarding any of the remaining claims.

E. State Court Action and the Mayor’s Statements

On July 23, 2015, Maroney filed suit in Massachusetts Superior

Court (Essex County) against Ward, the Planning Board, and various

Haverhill officials, albeit not the Mayor, for impeding Maroney’s

development of Crystal Springs and refusing to issue permits and

approve site-plan applications. (D. 104, ¶ 41) (97-13, pp. 2-3).

Although not a party, the Mayor knew about the lawsuit and

remembers receiving the complaint after it was served. (D. 97-

12, p. 109). Up until the time Maroney filed the lawsuit, he had

no reason to believe the Mayor “was trying to stop the project.”

(D. 97-2, pp. 230-231).

Shortly after Maroney filed the lawsuit, the Mayor had an

August 2015 meeting with Crystal Springs residents, another August

2015 meeting with a close friend of Maroney’s, and a September

2015 meeting with Maroney. At all of these meetings, the Mayor in

essence stated that Maroney needed to drop the state court lawsuit

to obtain the permits for the development.

More specifically, in August 2015, Rosemary Scalera

(“Scalera”), a real estate broker and resident of Back Nine Drive,

organized a meeting with the Mayor and various Crystal Springs

residents and prospective buyers who were concerned about the work

stoppage. (D. 104-7, pp. 25, 27, 103, 107). A Front Nine Drive

resident described the meeting’s purpose as “[g]etting permits”

for Front Nine Drive lots or houses. (D. 104-6, pp. 83, 90).

Maroney knew about the meeting but did not attend. (D. 104-7, p.

104). The Mayor, however, knew Scalero was the real estate broker

for the houses of the attendees on Front Nine Drive and assumed

she was a broker for Maroney. (D. 97-12, pp. 115-116, 144-145).

During the August 27, 2015 meeting, the Mayor acknowledged: the

water booster station as part of the definitive plan, the lack of

a timeline to build the station, the option Maroney had “of

building or bonding” the station, the existence of the bond, and

the November 2016 expiration of the bond. (D. 104-7, pp. 110-111,

114). The Mayor then stated that “Maroney knows what he has to

do” to get the permits, and “[i]f he drops the lawsuit, he’ll get

the permits.”20 (D. 104-7, p. 112) (D. 104-6, pp. 91-93). There

“was no talk about settling the lawsuit during the meeting,”

according to Rosemary Deyermond (“Deyermond”), a Front Nine Drive

resident who attended the meeting.21 (D. 104-6, p. 93). She

characterized the Mayor’s statement as extortion. (D. 104-6, p.

94).

In late August 2015, the Mayor met with Francis Healey

(“Healey”), who the Mayor knew was Maroney’s friend, about the

20 Whereas the Mayor denied making these statements (D. 97-12, pp. 116-117), the

record is viewed in the plaintiff’s favor.

21 In contrast, the Mayor, an attorney for 30 years, testified that either he

or Bill Cox, the City solicitor, said something to the effect that “Maroney

needs to settle the lawsuit.” (D. 97-12, pp. 54, 119). Here again, the record

is construed in the plaintiff’s favor.

Crystal Springs development. (D. 104-8, pp. 59-60). During the

ten-minute meeting, Healey posited there must be a means to solve

the situation “in a better way to help the taxpayers.” (D. 104-

8, p. 62). In response, the Mayor said, “[T]ell Maroney to drop

the lawsuit, and I’ll give him as many permits as he wants, but if

he doesn’t, then he’ll never get any permits while I’m a Mayor.”22

(D. 104-8, p. 62).

On or about September 11, 2015, the Mayor met with Maroney in

the Mayor’s office. At the outset, the Mayor noted that Maroney

did not bring his attorney and then stated, “What can we do to

resolve this problem?” (D. 97-2, p. 121) (D. 104, ¶ 47). Maroney

responded, “Give me my permits.” (D. 97-2, p. 121) (D. 104, ¶

47). The Mayor then slid a piece of paper across the table

whereupon Maroney asked, “What is this?” (D. 97-2, p. 121) (D.

104, ¶ 47). The Mayor responded, “That’s what you owe the City,

you owe the City $250,000.” (D. 97-2, p. 121) (D. 104, ¶ 47).

Maroney asked, “For what?” (D. 97-2, p. 121) (D. 104, ¶ 47). In

response, the Mayor said, “For all those houses you built illegally

without permits.” (D. 97-2, p. 121) (D. 104, ¶ 47).

Maroney then explained there are “no fines on the illegal

building because there’s a stop work order and I didn’t go back to

work on any of them. So there is no fee, no $1,000 a day unless

22 As before, although the Mayor denies making the statement (D. 97-12, p. 149),

the record is viewed in the plaintiff’s favor.

I do . . . [and] I’m not dropping the lawsuit.” (D. 97-2, p. 121)

(D. 104, ¶ 47). The Mayor replied, “you can have . . . all the

permits you want, just drop the lawsuit.” (D. 97-2, pp. 121-122)

(D. 104, ¶ 47). When Maroney refused, the Mayor responded, “Well,

you say we owe you money[,] and I say you owe us money, so why

don’t we just call it a day[?]” (D. 97-2, p. 122) (D. 104, ¶ 47).

Maroney denied he owed any money and reaffirmed he was “not

dropping any lawsuit.” (D. 97-2, p. 122) (D. 104, ¶ 47). Before

the meeting ended, the Mayor told Maroney, “You can dismiss the

case and you can have all the permits you want . . . [a]nd we’ll

make these fines go away.”23 (D. 97-12, p. 123).

At the Mayor’s request, the two met again a few days later.

(D. 104, ¶ 49). During the meeting, the Mayor said he “would like

to go to mediation” and wanted Maroney “to think about it.” (D.

97-2, p. 132) (D. 104, ¶ 49). Maroney initially declined to go to

mediation. (D. 104, ¶ 50). On September 25, 2015, however, he

emailed Ward a proposed agreement between Maroney and the Mayor.

The Mayor never signed the agreement. (D. 104, ¶¶ 51-52).

F. Change to EFI Pumping System and Maroney’s Efforts to Comply

In or around November 2015, Maroney constructed a new water

main line to support the water booster station. (D. 97-2, pp. 86-

87) (D. 97-4, p. 115). Ward acknowledged the installation of the

23 Maroney viewed the above statement as extortion because he knew that he did

not owe the fines. (D. 97-12, p. 123).

water main line and recalled Maroney telling him the cost was

$150,000 to $160,000. (D. 97-4, pp. 101-102). On January 5, 2016,

Maroney and Lewis attended the meeting with Ward and D’Aoust and

brought the revised set of design plans submitted to the City in

late September 2013 and reviewed by Wright-Pierce in October

2013.24 (D. 97-2, pp. 39, 41, 75, 77-78). At the meeting, however,

“Ward told Maroney and Lewis that they needed to go with the EFI

pumping system,” and, as a result, Maroney and Lewis “didn’t even

pull the plans out.” (D. 104, ¶ 56) (D. 97-2, p. 77).

Maroney was shocked and surprised about the need to go with

the EFI pumping system. D’Aoust could not recall that anyone from

the Water Department communicated to Maroney before the January 5,

2016 meeting that he “needed to go with the EFI skid design.” (D.

104-3, pp. 138-139). Similarly, Lewis does not remember speaking

with “D’Aoust in September 2014 about the need to use the EFI

product.”25 (D. 104-4, ¶ 14).

Maroney acted promptly after the January 2016 meeting by

engaging the EFI manufacturer’s New England representative, Fred

Haines (“Haines”), to prepare a proposal for an EFI system. (D.

97-2, pp. 91-92). Thereafter, as instructed by Maroney, Lewis

24 Maroney testified that he and Lewis “had not done anything more to the [prior]

plans because there was so little . . . left to do.” (D. 97-2, p. 79).

25 Although the defendants contend otherwise (D. 97, ¶¶ 26-27), the record is

construed in the plaintiff’s favor.

communicated several times with Haines and met with him on January

11, 2016. (D. 104-4, ¶ 15) (D. 97-2, pp. 80-81). Nevertheless,

Maroney did not “submit an EFI design to the City for review.”26

(D. 97-2, p. 99). He also did not advise the Planning Board at a

November 2016 Planning Board meeting “that he had a contract with

EFI.” (D. 104, ¶ 74).

In April 2016, Maroney emailed Glenn Smith (“Smith”), the

water distribution system supervisor (D. 97-4, p. 79), asking to

place data loggers on fire hydrants on Parsonage Hill Road.27 A

follow-up email from Maroney in May 2016 informed Smith about fire

flow tests that Maroney had scheduled in the near future. (D. 94-

4, p. 146). Smith forwarded the email to Ward, who then forwarded

the email to the City’s attorney in the state court lawsuit. (D.

97-4, pp. 146-147). Drawing reasonable inferences in Maroney’s

favor, the City did not allow the tests because Maroney filed a

motion to compel them in the state court lawsuit. (D. 104, ¶ 61)

(D. 97-4, p. 148) (D. 97-18)28 (D. 104, ¶ 61).

26 He explains that he obtained his “first quote” for the design in June 2016,

and, after several requests for flow tests required for the design, Maroney

finally received them on October 23, 2016, shortly before the deadline in the

last Tri-Partite Agreement. (D. 97-2, pp. 91, 99).

27 In opposing summary judgment (D. 105), the plaintiff does not develop an

argument that the City’s approval of building permits without requiring a water

booster station in the DelHaven Estates and the Parsonage Hill subdivisions, as

stated in the operative complaint (D. 51, ¶¶ 26-27, 56, 59), contravenes

substantive due process. (D. 97-4, p. 135); see Dusel, 52 F.4th at 513-514.

28 The letters (D. 97-18) are not considered for the truth of the matter asserted

but rather for purposes of showing motive. Related to the above, Maroney argues

that Ward “balked at allowing Maroney to conduct the water tests” as one of the

roadblocks Ward created in carrying out the Mayor’s threats. (D. 105, pp. 11-

In June 2016, “Maroney submitted a site plan for the water

booster station.” (D. 104, ¶ 62). On July 21, 2016, he met with

Ward and D’Aoust to discuss the additional information needed to

approve the site plan. (D. 104, ¶ 63, sent. one) (D. 97-2, p.

109) (D. 97-4, p. 152). Ward believed there was a “holdup” because

Maroney needed “a structural engineer on the foundation,” which

Ward described as “a requirement from the building inspector.”

(D. 97-4, pp. 152-153). Maroney disagreed about the site plan

needing a more detailed structural plan to obtain review because

it was contrary to the City’s building code. (D. 97-2, pp. 109-

110) (D. 104, ¶ 63, Response). A memorandum from the City’s

Building Inspector to Ward the next day recited the need for “[a]

detailed structural plan . . . with professional design for . . .

the pump equipment” and foundation.29 (D. 97-19, p. 4). In lieu

“of submitting the additional information requested for the review

of the site plan, Maroney filed” this lawsuit on August 1, 2016.

(D. 104, ¶ 65).

G. Decision Not to Extend Tri-Partite Agreement

In the fall of 2016, the Planning Board held a series of

meetings to address Maroney’s request to extend the existing Tri-

12). A reasonable jury could not find that the Mayor instructed or directed

Ward to carry out the Mayor’s threats regarding these tests, which related to

the newly-installed water main and its impact on the design of the water booster

station. See infra note 47 and accompanying text.

29 The memorandum is not considered for the truth of the matter asserted.

Rather, the court considers it to show Ward’s lack of bad faith or malice.

Partite Agreement. At a September 14, 2016 meeting, Ward spoke

out against extending the agreement and allowing more time for

Maroney to complete the water booster station. (D. 97-24, p. 5).

Prior to September 2016, Ward had not attended a Planning Board

meeting. (D. 97-4, p. 154). The Board continued the matter to

the October meeting. (D. 97-24, pp. 22-23).

At the October 12, 2016 meeting, Ward again recommended

against extending the time to build the water booster station. He

also noted that Wright-Pierce’s hydraulic analysis determined that

the remaining lots were unserviceable in the sense that they lacked

adequate water “pressure and flow under certain circumstances.”30

(D. 97-25, pp. 5-7, 20-21). The City’s engineer “defer[red] to

the water department” with respect to the water booster station

and otherwise recommended a one-year extension of the Tri-Partite

Agreement and an accompanying increase in the bond amount. (D.

97-25, pp. 7-8). Maroney spoke in favor of extending the Tri-

Partite Agreement. (D. 97-25, p. 16). In the end, the Planning

Board voted to extend the time to install municipal services, “with

30 The plaintiff moves to strike the following from the defendants’ undisputed

statement of material facts: “Ward attended the [October 12, 2016] Planning

Board meeting on advice of Counsel to speak against the extension of the

tripartite agreement and prepared a letter recommending that the Planning Board

deny any requests for the developer to extend the completion date for the water

booster pumping station in September 2016.” (D. 97, ¶ 72). The plaintiff moves

to strike this paragraph because the defendants waived the attorney-client

privilege. (D. 103). The court did not rely on this statement or the cited

deposition testimony regarding advice of counsel. Accordingly, striking or

failing to credit the paragraph would not alter the court’s decision on the

summary judgment motion.

the exception of the water booster station,” to November 1, 2017.

(D. 97-25, pp. 49-52). Relatedly, the Board required Maroney to

provide a Tri-Partite Agreement with his and the bank’s signatures

containing the extension and a performance guarantee to the

Planning Board before November 1, 2016. (D. 97-25, pp. 50-55).

Maroney did not provide an executed Tri-Partite Agreement

before November 1, 2016, or at the next Board meeting on November

15, 2016.31 (D. 97-26, p. 2). After hearing from Maroney, the

Board voted “to instruct special counsel to take” the necessary

steps to obtain disbursement of the funds from the bank “to

complete the remaining work on the Crystal Springs” development.

(D. 97-26, p. 11). Eventually, a new developer built the water

booster station using an EFI pumping system after the plaintiff

“lost the development.” (D. 97-2, p. 192) (D. 97-4, p. 175) (D.

104, ¶ 83).

H. Mayor’s Interactions with Ward32

The Mayor appointed Ward to his position.33 (D. 97-4, p. 10).

Ward typically met with the Mayor and the Director of the Water

31 The Board’s special counsel represented that Maroney submitted a draft without

the bank’s signature. (D. 97-26, p. 11).

32 The plaintiff identifies various disputed facts (D. 104, ¶¶ 79-82, Responses)

to refute the defendants’ arguments that Ward was not following directives from

the Mayor.

33 Relatedly, and according to the Mayor’s testimony, Ward had a contract at the

time although the Mayor did not know whether Ward’s contract had a clause

requiring “just cause” to remove Ward from his position. The Mayor further

testified that these clauses “are normally” in such contracts. (D. 97-12, pp.

141-142).

Department on a weekly basis, including from 2014 through 2016.

(D. 97-4, pp. 11, 13). During the 2014 through 2016 time-period,

Ward would give the Mayor a quick update about the Crystal Springs

subdivision if they had not “spoken about it in quite a while.”

(D. 97-4, p. 13). According to Ward, at least in or around 2012,

the Mayor was interested in the timing and completion of the water

booster station. (D. 97-4, pp. 26-27) (D. 104-11).

The Mayor does “not have permit-granting authority.” (D. 97-

12, p. 140) (D. 104-9, p. 18). He also did not get involved in

the subdivision’s approval process, according to his testimony.

(D. 104-9, p. 18). Nevertheless, in October 2012 at the request

of a City employee, the Mayor set up a meeting to see if he “could

help speed along the development” and met with Maroney, Ward, and

other City officials. (D. 97-12, pp. 36-37). The Mayor may also

have met with Maroney, Ward, and other City officials in July 2013

to reach an agreement “about the project going forward.” (D. 97-

12, p. 55). The Mayor remembers “at least one discussion with

[Ward] about” whether some of the lots had sufficient water

pressure to meet state “or local standards and whether some of

them could be released.” (D. 97-12, p. 77). As indicated, Ward

did not talk to the Mayor before Ward made the decision to stop

approving water service applications as of March 2015. (D. 97-4,

pp. 82-83).

After Maroney filed the state court lawsuit, Ward had very

little communication with the Mayor about building the water

booster station. (D. 97-4, p. 132). In December 2015, Maroney

wrote an email to the City Council President stating that “the

Mayor [was] bullying [him].”34 (D. 97-4, p. 131). The City Council

President forwarded the email to the Mayor and Ward. (D. 97-4, p.

132). Upon receiving the email, Ward spoke with the City Council

President about the requirement in the definitive plan that Ward

build the water booster station.35 (D. 97-4, pp. 132-133).

Ward never suggested to the Mayor that there were steps that

Ward could take to try and delay the Crystal Springs project or

“to exert pressure on [Maroney] to address the [state court]

action,” according to Ward’s deposition testimony. (D. 97-4, p.

141). Ward also did not talk to “the mayor about the city building

the [water] booster station using the funds from the bond.” (D.

97-4, pp. 170-171). Ward further testified that he never heard

the Mayor say to him or anyone else that Maroney should not get

34 The plaintiff cites the above in responding to a number of the defendants’

statement of material facts. (D. 104, ¶¶ 79-82, Responses).

35 For present purposes, the court accepts the plaintiff’s representation that

“a short time later an offer to mediate issued to Maroney’s counsel.” (D.

104, ¶¶ 79-82, Responses). Ward denied speaking to the Mayor about any such

mediation. (D. 97-4, p. 138). Relatedly, Ward described the Mayor as the

ultimate decision-maker for the offer to mediate. (D. 97-4, p. 138).

any permits until he dismissed the state court lawsuit.36 (D. 97-

4, p. 173).

III. DISCUSSION

As noted, the plaintiff asserts the following claims: a

violation of substantive due process under section 1983; a

violation of MCRA; interference with contractual or economic

relations; and civil conspiracy. (D. 51). The court addresses

the claims seriatim.

A. Substantive Due Process

In seeking summary judgment on the substantive due process

claim, the defendants first argue that the plaintiff did not suffer

a cognizable property interest. Second, they assert that neither

Ward’s nor the Mayor’s conduct “shocks the conscience.” (D. 96,

110).

As to the first argument, the plaintiff relies on the court’s

prior determination under Kennie v. Nat. Res. Dept. of Dennis, 889

N.E.2d 936, 943 (Mass. 2008), that “Massachusetts has recognized

a property interest where a plaintiff alleges that a state actor

has interfered with his right to obtain permits to make

improvements on his land.” (D. 77, pp. 14-15) (D. 105, pp. 13-

36 The above is not a statement under Federal Rule of Evidence 801(a). See Mack

v. St. Mobile Aerospace Eng’g, Inc., 195 F. App’x 829, 842 (11th Cir. 2006)

(“Wayne’s testimony that Gennaro did not tell him . . company’s EEO Policy

required him to report harassment . . . is not hearsay” because it is not a

statement) (citing Federal Rule of Evidence 801(a)(1)) (emphasis added).

14, n.5). In response to the second argument, the plaintiff

identifies, inter alia, the following conscience-shocking conduct:

Ward’s post-lawsuit decision to prevent Maroney from getting

permits after he refused to dismiss the state court lawsuit; the

Mayor’s threats to Maroney and others that he would not receive

permits unless he dropped the state court lawsuit; Ward’s January

2016 decision to change to the EFI pumping system even though

Maroney was substantially complete with the design of the field

built station and “the City knew” Maroney would not have sufficient

time to build the water booster station by the November 1, 2016

deadline;37 Ward’s “balk[ing] at allowing Maroney to conduct the

water tests”;38 and Ward’s attendance at the October 2016 Planning

Board meeting, which was the first time he attended such a

meeting,39 and his opposition to extending the time to build the

water booster station. (D. 105) (D. 104, ¶¶ 30, 57, 60-61, 70,

Responses).

1. Conscience-Shocking Conduct

To succeed in establishing a substantive due process claim,

the plaintiff must “prove that [he] suffered the deprivation of an

37 Given the backdrop of the Tri-Partite Agreement expiring on November 1, 2016,

the plaintiff points to D’Aoust’s testimony that a redesign would take 59 weeks,

i.e., until February or March 2017. (D. 104-3, pp. 144-145).

38 See supra note 28.

39 Ward did attend the September 2016 meeting, but this fact does not alter

the thrust of the plaintiff’s argument.

established life, liberty, or property interest, and that such

deprivation occurred through governmental action that shocks the

conscience.” Clark v. Boscher, 514 F.3d 107, 112 (1st Cir. 2008)

(citation omitted). The defendants’ twofold argument challenges

each requirement. Assuming the existence of a cognizable property

interest, the court turns to the latter requirement.

Substantive due process prevents “‘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.’” PFZ Props., Inc. v. Rodriguez, 928 F.2d 28, 31–32

(1st Cir. 1991) (citations omitted), overruled on other grounds by

San Gerónimo Caribe Project, Inc. v. Acevedo-Vilá, 687 F.3d 465

(1st Cir. 2012); Brockton Power LLC v. City of Brockton, 948 F.

Supp. 2d 48, 69 (D. Mass. 2013) (quoting PFZ, 928 F.2d at 31-32).

The First Circuit has “repeatedly held 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.” Clark, 514 F.3d at 113 (emphasis added) (internal

quotation marks omitted). Under the applicable shocks-the-

conscience test, an ordinary, “run-of-the-mill land-use case . .

. does not rise to the level of behavior that shocks the

conscience.” Id.; see Mongeau v. City of Marlborough, 492 F.3d

14, 18 (1st Cir. 2007) (recognizing “shocks-the-conscience test

applied to a substantive due process claim in the land use

context”). A land-use planning dispute, “at least when not tainted

with fundamental procedural irregularity, racial animus, or the

like[,] . . . does not implicate the Constitution.” Creative

Env’t, Inc. v. Estabrook, 680 F.2d 822, 833 (1st Cir. 1982); see

Brockton, 948 F. Supp. 2d at 69 (denying motion to dismiss and

stating, in land-use context, “plaintiff must allege ‘fundamental

procedural irregularity, racial animus, or the like,’ or violation

of ‘a fundamental principle’”)40 (quoting Clark, 514 F.3d at 113).

Whereas the First Circuit has acknowledged using “various

incantations” to describe the substantive due process standard,

Mongeau, 492 F.3d at 19; accord Thayre v. Town of Brookline, Civil

Action No. 20-cv-10510-DJC, 2021 WL 664042, at *6 (D. Mass. Feb.

19, 2021), the standard is undeniably “a high one.” Licari v.

Ferruzzi, 22 F.3d 344, 350 (1st Cir. 1994) (citation omitted). In

the context of land-use cases, the First Circuit has only “left

the door slightly ajar for federal relief in truly horrendous

situations.” Néstor Colon Medina & Sucesores, Inc. v. Custodio,

964 F.2d 32, 45 (1st Cir. 1992) (emphasis added); accord Licari,

22 F.3d at 350 (citation omitted).

40 The “fundamental procedural irregularity” identified in Brockton was an

“ongoing refusal of the defendants to even consider the plaintiffs’

submissions,” i.e., a “systemic denial of any pre-deprivation process at all

despite repeated reversals by the state courts.” Brockton, 948 F. Supp. 2d at

69.

Circumstances that do not rise to this high level help to

clarify the boundaries of the standard. For example, when state

planning officials “violate[] state law or administrative

procedures, such violations do not ordinarily rise to the level of

a constitutional deprivation.” Mongeau, 492 F.3d at 17 (citations

omitted). “[E]ven abridgments of state law committed in bad faith

do not necessarily amount to unconstitutional deprivations of due

process.” Chongris v. Bd. of Appeals of Town of Andover, 811 F.2d

36, 43 (1st Cir. 1987); accord Creative Env’t, 680 F.2d at 831-

833 (affirming allowance of summary judgment on substantive due

process claim against subdivision developer notwithstanding

Planning Board’s arbitrary misapplication of state law and

“distortion” of “statutory and regulatory scheme”); see Chiplin

Enter., Inc. v. City of Lebanon, 712 F.2d 1524, 1528 & n.6 (1st

Cir. 1983) (stating, in context of substantive due process claim,

“mere bad faith refusal to follow state law in such local

administrative matters simply does not amount to a deprivation of

due process where the state courts are available to correct the

error”). Likewise, First Circuit “cases make clear that a

regulatory board does not transgress constitutional due process

requirements merely by making decisions ‘for erroneous reasons’ or

by making ‘demands which arguably exceed its authority under the

relevant state statutes.’” Licari, 22 F.3d at 350 (citations

omitted).

A. Ward

Viewed under these boundaries, Ward’s conduct and the

examples of conscience-shocking conduct the plaintiff identifies

fall squarely outside the realm of substantive due process

violations. For example, Ward’s March and April 2015 refusals to

approve more water service applications and to “sign off on

additional permits” because of the lack of “work toward the water

booster station” (D. 104, ¶¶ 29-30) as well as Ward’s continued

refusals after the July 2015 lawsuit and the Mayor’s statements

are not conscience shocking. This remains true even if Ward’s

refusals and denials were erroneous, contrary to the definitive

plan (which did not require such progress or set a deadline to

complete the booster station’s construction), or contrary to

Maroney’s October 2013 schedule to build the station after

completing phase one of Front Nine Drive. See Martone Place, LLC

v. City of Springfield, C.A. No. 16-cv-30170-MAP, 2017 WL 5889222,

at *16 (D. Mass. Nov. 29, 2017) (dismissing substantive due process

claim based, inter alia, on Springfield’s Department of Public

Works Director who, knowing plaintiff’s deadline to complete

project and using authority unlawfully granted to him by another

city official, imposed multiple obstacles to issuance of building

permit); see also Creative Env’ts, 680 F.2d at 833 (affirming

rejection of substantive due process claim on summary judgment and

finding no violation even if planning officials “clearly

violate[d]” or “‘distort[ed]’ the state [subdivision] scheme under

which they operate”); accord Clark, 514 F.3d at 113 (citing

Creative Env’ts, 680 F.2d at 826, 833-834, as “holding that city

planning board’s denial of the permits required to develop a

residential subdivision, allegedly premised on criteria that were

arbitrary and capricious and exceeded the Planning Board’s

discretion, did not constitute behavior that shocked the

conscience”); Licari, 22 F.3d at 350 (decisions made for erroneous

reasons do not transgress substantive due process).

Ward’s January 2016 decision to change the design of the

pumping system likewise fails to support a substantive due process

violation. First, Haverhill’s Subdivision Rules require the

design and construction of a pumping station to comply with the

Water Department’s requirements.41 Ward therefore had the

authority to change the design. Maroney’s failure to work on

completing the field-built design for the water booster station

between October 2013 and January 2016 underscores the legitimate

interest Ward had in changing the pumping system design. Second,

a planning official’s violation of state law or administrative

procedures does not typically contravene substantive due process,

41 See supra note 14.

see Mongeau, 492 F.3d at 17 (citations omitted), even if committed

in bad faith, see Chongris, 811 F.2d at 43. Ward’s January 2016

decision to change his prior decision to consider (or even accept)

a field-built design is decidedly less horrendous and less

egregious than a violation of state law committed in bad faith.42

As such, the decision falls short of conscience-shocking conduct.

Likewise, Ward’s 2016 involvement in the water tests or Ward’s

July 2016 misinterpretation, if any, of the City’s building code

regarding the site plan is not conscience shocking. See Licari,

22 F.3d at 350 (citations omitted); Thayre, 2021 WL 664042, at *7

(Defendant’s alleged violation of substantive due process “by

interpreting the [Zoning Bylaw] in a manner beyond the scope of

its authority, thereby committing ultra vires,” does not violate

substantive due process.).

Ward’s appearance at the October 2016 Planning Board meeting

and speaking out against an extension of the Tri-Partite Agreement

to allow Maroney to build the water booster station also was not

conscience shocking. At the meeting, Ward explained that the

remaining Front Nine Drive lots lacked adequate water pressure as

determined by Wright-Pierce’s hydraulic analysis. (D. 97-25, pp.

18-20). Ward’s expressed concern at the meeting was not baseless.

As such, his conduct is not conscience shocking even if Ward had

42 This court assumes, in the plaintiff’s favor, that Ward knew Maroney would

not be able to complete the redesign until February or March 2017, thus giving

rise to the possibility that he acted in bad faith.

not attended a Planning Board meeting before the fall of 2016.

See Najas Realty, LLC v. Seekonk Water Dist., 821 F.3d 134, 138-

139 (1st Cir. 2016) (noting that Water District’s Superintendent

spoke out against subdivision’s impact on water supply at Planning

Board meeting); id. at 145 (concluding that Water District’s

Superintendent’s concern that subdivision would harm town’s water

supply “does not . . . appear baseless” and “is hardly the . . .

stuff that makes a substantive due process claim”).

In all, Ward’s conduct considered in its entirety does not

shock the conscience. Rather, it is similar to (or even less

egregious than) the conduct at issue in Clark, in which dismissed

a substantive due process claim under the more forgiving,

plausibility standard of Federal Rule of Civil Procedure 12(b)(6).

See Clark, 514 F.3d at 110-113. In Clark, the Westfield City Water

Department (“WD”) denied the developers’ municipal water service

request for a proposed residential subdivision because it “would

threaten the municipal water supply” even though the WD’s own

contractor determined the project “would benefit the entire city

with increased water pressure and flow.” Clark, 514 F.3d at 110-

111. WD officials also advised the developers’ engineer that they

“did not intend to grant” the developers “municipal water service

because ‘the City did not want the project there.’” Id. at 110.

Like the case at bar, the officials spoke out against the project

at a municipal planning board meeting. Eventually, the City of

Westfield exercised its eminent domain powers and took a portion

of the property rendering the “development plans unfeasible.” Id.

at 111.

In sum, and per the foregoing, the substantive due process

claim fails against Ward on the merits. It is therefore not

necessary to address his qualified immunity argument. See Ruiz-

Casillas v. Camacho-Morales, 415 F.3d 127, 134 (1st Cir. 2005)

(failure of “constitutional claims obviates our need to address

the qualified immunity defense: we have found no constitutional

violation”).

B. The Mayor

The Mayor argues that he made the alleged statements to drop

the state court lawsuit in exchange for the permits to Maroney and

others in the context of settlement discussions. He also

repeatedly asserts that “the Mayor is not the permit granting

authority” for the City. (D. 96). The defendants further contend

that the statements had no impact on Ward’s decisions to continue

not approving water service applications and not signing-off on

permits, Ward’s change to an EFI pumping system, and Ward’s

attendance at the Planning Board’s fall 2016 meetings. The Mayor

also seeks qualified immunity. (D. 96).

The plaintiff argues that the Mayor’s threats to Maroney and

others that he would never receive any permits unless he dropped

the state court lawsuit were conscience shocking, and that Maroney

as well as Deyermond viewed them as extortionate. (D. 105). The

plaintiff additionally maintains that Ward shared the Mayor’s

motivation and/or acted at the Mayor’s direction, as evidenced by

their weekly meetings and the Mayor’s appointment of Ward to his

position. (D. 105). As a basis to show conscience-shocking

behavior, the plaintiff identifies the “violation of ‘a

fundamental principle,’” namely, “the fundamental constitutional

principle that public officials cannot threaten” or deny benefits

because an individual uses “the courts to redress grievances,” a

principle “embedded in the First Amendment.” (D. 105, pp. 13-14,

¶ III).

The plaintiff’s arguments are not convincing. First,

“[s]ubstantive due process is an inappropriate avenue of relief

when the governmental conduct at issue is covered by a specific

constitutional provision,” such as “the First Amendment.”43 Pagán

v. Calderón, 448 F.3d 16, 33–34 (1st Cir. 2006) (citations

omitted). Moreover, this “rule depends only on whether a specific

constitutional provision addresses the type of conduct at issue.”

Id. at 34 (emphasis added). “[I]t does not depend on a prediction

that the complaining party will be successful in pursuing a claim

43 The fact that the defendants did not develop this argument “does not prevent

[the court] from ruling on this basis . . . .” ML-CFC 2007-6 Puerto Rico

Props., LLC v. BPP Retail Props., LLC, 951 F.3d 41, 46 (1st Cir. 2020)

(citations omitted); see id. (“When an issue or claim is properly before the

court, the court is not limited to the particular legal theories advanced by

the parties, but rather retains the independent power to identify and apply the

proper construction of governing law.” (quoting Kamen v. Kemper Fin. Servs.,

Inc., 500 U.S. 90, 99 (1991))).

under the applicable provision, nor does it depend on a conclusion

that the party has a valid claim thereunder.” Id.; accord

Rodriguez-Deynes v. Moreno-Alonso, Civ. No. 16-2986 (PG), 2019 WL

1354030, at *9 (D.P.R. Mar. 2, 2019) (“[S]uccess or failure of

plaintiff’s First Amendment retaliation claim is immaterial to the

inapplicability of a substantive due process claim.”).44

Second, the defendants’ settlement argument, at least with

respect to the September 2015 meeting between the Mayor and

Maroney, is well taken. See Raskiewicz v. Town of New Boston, 754

F.2d 38, 41 (1st Cir. 1985) (upholding decision by Board of

Selectmen, which had the authority to issue gravel permit, to

condition permit on dismissal of developer’s state court lawsuit).

In Raskewicz, the condition placed on the gravel permit to dismiss

the lawsuit arose after the state court continued a hearing and

ordered the plaintiff to submit a proposal to the defendants for

the gravel removal operation and further ordered the defendants to

respond with any concerns or conditions. Id. The defendants

responded with the condition. Id. Viewing the circumstances as

settlement-related, the First Circuit found “no impropriety in the

one condition that Raskiewicz contend[ed] made the permit

unacceptable, the requirement that he drop his state court suit,

44 In that regard, the denial of amendment to add a First Amendment retaliation

claim for separate reasons has no bearing on the viability of the substantive

due process claim. Furthermore, it does not warrant allowing the substantive

due process to proceed.

because as the district court noted, ‘[e]ven the shabbiest of

lawyering practice requires that in settling a suit you bargain to

have any pending actions dropped.’”45 Id. at 45 n.6 (quoting

district court’s decision). Relatedly, one of the Selectman in

Raskiewicz stated to the plaintiff and separately to another

individual that the plaintiff “would never be given a gravel

permit.” Id. at 40 & n.1.

Here, the Mayor’s September 2015 meeting with Maroney

similarly concerned the settlement of the state court action. No

reasonable juror could conclude otherwise. The Mayor asked Maroney

why he had not brought his attorney and the two discussed how “to

resolve this problem.” (D. 104, ¶ 47). During the meeting, the

Mayor indicated that Maroney owed the City $250,000 for illegally

building the houses without permits, Maroney disagreed, and the

Mayor stated to Maroney that he could dismiss the lawsuit, have

all the permits he wanted, and “we’ll make the fines go away.”

(D. 97-2, p. 123). As was the case in Raskiewicz, the Mayor’s

threat or extortion-like statement to drop the lawsuit to receive

45 To add a caveat, it is unclear whether the section 1983 due process claim in

Raskiewicz, which primarily involved allegations that the Board of Selectman

was biased but also concerned the imposition of the condition, was a procedural

and/or substantive due process claim. The decision does not distinguish between

procedural and substantive due process. Rather, it refers to a “due process

claim.” Id. at 44-45. Nevertheless, the court’s finding “no impropriety in

the” condition on the permit to drop the lawsuit was not addressing the adequacy

of administrative remedies, which would be suggestive of a procedural due

process claim or the bias of the decisionmakers, see id. at 44-45. In any

event, the court’s finding “no impropriety” and, thus, no due process violation,

concerning conduct analogous to the case at bar serves as clearly established

law to warrant qualified immunity for the Mayor, as discussed below.

the permits amounted to bargaining with Maroney to have him dismiss

the lawsuit. The Mayor’s expressed desire “to go to meditation”

at a meeting two days later along with Maroney emailing the

proposed agreement thereafter reinforces the settlement construct.

(D. 104, ¶¶ 49, 51).

The Mayor’s two other purported threats to allegedly extort

Maroney to drop the lawsuit occurred shortly after Maroney filed

the state court lawsuit and before he met with the Mayor. Here,

a reasonable jury could consider these statements as arising

outside the settlement context. Nevertheless, the First Circuit

has only suggested the possibility that bribing or threatening the

permitting authority “could constitute a substantive due process

violation.” Mongeau, 492 F.3d at 19-20 (“In Néstor Colón, we

suggested that it was possible that bribery or threats could

constitute a substantive due process violation.”); Néstor, 964

F.2d at 47 (facts did not indicate Puerto Rico Planning Board

“officials were bribed or threatened” and declining to consider

“in what circumstances such conduct might violate due process”);46

Collier v. Town of Harvard, No. Civ. A. 95–11652–DPW, 1997 WL

33781338, at *5 (D. Mass. Mar. 28, 1997) (finding this language in

Néstor “suggests the First Circuit would be willing to permit,

46 The permitting authority in Néstor was the Puerto Rico Planning Board

(“PRPB”).

under certain circumstances, land-use-related substantive due

process claims to go forward”).

In addition, the suggestion in Néstor that threats could

constitute a violation of substantive due process pertained to

threats against “PRPB officials.” Néstor, 964 F.2d at 47. Unlike

the PRPB officials, the Mayor was not a member of the Planning

Board, and he did not have permit-granting authority. Rather,

Ward had the authority to approve or deny water service

applications and the redesigned EFI water pump system.47

It is true that the Mayor met with Ward on a weekly basis

between 2014 and 2016. It is also true that the Mayor was

interested in the completion of the water booster station, and he

appointed Ward to his position. The subject of meetings during

the 2014 to 2016 time-period, however, did not revolve around

Crystal Springs. Rather, as previously noted, when Ward and the

Mayor had not spoken about the development “in quite a while,”

Ward would merely provide a “quick update.” (D. 97-4, p. 13).

Similarly, “if there was something going on or something different

happening” at the development, Ward would provide “a brief update.”

(D. 97-4, p. 13). Further, Ward did not speak with the Mayor

before the March 2015 decision to not approve more water service

applications. Tellingly, after the lawsuit’s filing and the

47 See supra note 14.

Mayor’s August statements, Ward acted consistently with his prior

conduct. Based on the entire record, including the December 2015

email that led to the mediation offer as well as the water tests

and all the other evidence the plaintiff identifies, a reasonable

juror could not find that Ward was following the Mayor’s directives

in changing to the EFI design in January 2016 and opposing the

extension of time to build the water booster station during the

September and October Planning Board meetings.48

Third, viewed against the high standard for “federal relief

in truly horrendous situations,” Néstor, 964 F.2d at 45, a

reasonable jury could only conclude that the Mayor’s conduct falls

short of the conscience-shocking standard. In sum, and per the

foregoing, the substantive due process claim against the Mayor is

subject to summary judgment on the merits. Although the analysis

could end here, the court addresses the Mayor’s qualified immunity

in the interest of thoroughness.

2. Qualified Immunity

The defendants argue that the Mayor is entitled to qualified

immunity because of the absence of a violation of a constitutional

right and because any such constitutional right was not clearly

48 Separately, the same reasoning and facts, along with the record as a whole,

foreclose a genuinely disputed fact that Ward: (1) gave substantial assistance

to the Mayor with respect to the civil conspiracy claim; and/or (2) acted in

concert with or pursuant to a common design or an agreement with the Mayor as

to this claim.

established. (D. 96, pp. 13-16). In addressing qualified immunity

on the Mayor’s substantive due process claim, the plaintiff’s brief

argument reads as follows:

[T]he substantive due process law regarding “shocking the

conscience” and prohibiting particularly “offensive

actions” was established in this Circuit well before the

conduct occurred here. Attempts to interfere with

First Amendment rights such as occurred here, are

prohibited and offensive, also barring qualified immunity

from applying to the claim under Count I.

(D. 105, p. 16).

The qualified immunity doctrine “shields officers from civil

liability so long as their conduct ‘does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.’” City of Tahlequah v. Bond,

142 S. Ct. 9, 11 (2021). Under a “two-prong framework, courts ask

(1) whether the defendant violated the plaintiff’s constitutional

rights and (2) whether the right at issue was ‘clearly established’

at the time of the alleged violation.” Swartz v. Sylvester, 53

F.4th 693, 698 (1st Cir. 2022) (citation omitted). Either prong

may entitle an official to qualified immunity. Id. (citation and

internal brackets omitted). Here, the court relies on the second

prong.

“Clearly established means that, at the time of” the conduct

at issue, “the law was sufficiently clear that every reasonable

official would understand that what he is doing is unlawful.”

Castagna v. Jean, 2 F.4th 9, 10 (1st Cir. 2021) (quoting District

of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)) (emphasis added);

accord French v. Merrill, 15 F.4th 116, 126 (1st Cir. 2021)

(quoting Wesby, 138 S. Ct. at 589). Although “a case directly on

point” is not required, the “existing precedent must have placed

the statutory or constitutional question beyond debate.” White v.

Pauly, 137 S. Ct. 548, 551 (2017) (per curiam).

The clearly established prong has two subparts. See Alfano

v. Lynch, 847 F.3d 71, 75 (1st Cir. 2017). First, “the plaintiff

must ‘identify either controlling authority or a consensus of

persuasive authority sufficient to put an officer on notice that

his conduct fell short of the constitutional norm.’” Est. of Rahim

by Rahim v. Doe, 51 F.4th 402, 410 (1st Cir. 2022) (citation

omitted); Alfano, 847 F.3d at 75 (“[F]irst sub-part requires the

plaintiff to identify either ‘controlling authority’ or a

‘consensus of cases of persuasive authority’ sufficient to send a

clear signal to a reasonable official that certain conduct falls

short of the constitutional norm.”) (citations omitted); accord

Punsky v. City of Portland, 54 F.4th 62, 66 (1st Cir. 2022) (Under

first subpart, “a ‘clearly established’ right is one that is

‘sufficiently clear’ such that ‘every reasonable official would

have understood that what he is doing violates that right.’”)

(citations omitted); Justiniano v. Walker, 986 F.3d 11, 26 (1st

Cir. 2021) (framing first subpart as “‘whether the right was

clearly established at the time of the alleged violation’”)

(citations omitted). The plaintiff fails under the first subpart

because he does identify controlling authority or a consensus of

persuasive authority that would send a clear signal to a reasonable

official that certain conduct violates the substantive due process

constitutional norm.

Second, the plaintiff must “show that an objectively

reasonable officer would have known that his conduct violated the

law.” Est. of Rahim by Rahim, 51 F.4th at 410 (citation omitted);

accord Justiniano, 986 F.3d at 26 (depicting second subpart as

“‘whether a reasonable officer, similarly situated, would

understand that the challenged conduct violated that established

right’”). The plaintiff’s burden to show “that the law is clearly

established” is “a heavy” one. Est. of Rahim by Rahim, 51 F.4th

at 410 (citation omitted).

Notably, “[t]o be clearly established, a legal principle must

have a sufficiently clear foundation in then-existing precedent.”

Wesby, 138 S.Ct. at 589–90. “The rule must be ‘settled law,’

which, as indicated above, “means it is dictated by ‘controlling

authority’ or ‘a robust “consensus of cases of persuasive

authority.”’” Id. (citations omitted). Significantly, “[i]t is

not enough that a rule be suggested by then-existing precedent;

the rule’s contours must be so well defined that it is ‘clear to

a reasonable officer that his conduct was unlawful in the situation

he confronted.’” City of Tahlequah, 142 S.Ct. at 9 (quoting Wesby,

138 S.Ct. at 590) (emphasis added). Here, as previously explained,

precedent in this circuit involving land-use substantive due

process claims, namely, Néstor, 964 F.2d at 47, only “suggested

that it was possible that bribery or threats could constitute a

substantive due process violation.” Mongeau, 492 F.3d at 19-20

(addressing Néstor, 964 F.2d at 47) (emphasis added); see Néstor,

964 F.2d at 47 (declining to consider “[w]hether and in what

circumstances” conduct involving bribes or threats “by the

political leaders” against PRPB officials “might violate due

process” because record merely indicated “politicians participated

in demonstrations . . . and wrote letters” opposing project).

Coupled with the precedent in Raskiewicz, 754 F.2d at 41, 45 &

n.6, which affirmed summary judgment on the due process challenge

to the gravel permit conditioned on dismissing the state court

lawsuit against the backdrop of settlement negotiations, it would

not be clear to a reasonable official in the Mayor’s shoes “‘that

his conduct was unlawful . . . .’” City of Tahlequah, 142 S. Ct.

at 11 (quoting Wesby, 138 S. Ct. at 590); see Justiniano, 986 F.3d

at 26 (contours of clearly established right should be

“sufficiently definite that any reasonable official in the

defendant’s shoes would have understood that he was violating it”)

(citation omitted). Specifically, it would not be clear to a

reasonable official that his conduct violated a clearly

established substantive due process rule in stating that Maroney

needed to drop the lawsuit to get the requested permits. Likewise,

assuming dubitante the Mayor somehow directed or even materially

influenced Ward to change the pumping system design or oppose the

extension of the Tri-Partite Agreement in 2016, it would not be

clear to a reasonable official, similarly situated, that his

conduct engaging in the same violated a clearly established

substantive due process right.

Per the foregoing, the Mayor is also entitled to qualified

immunity. Summary judgment on the substantive due process claim

therefore is appropriate.49

49 The dismissal of the anchoring federal claim raises the issue of whether to

retain jurisdiction over the state law claims. See 28 U.S.C. § 1367(c)(3).

“Federal courts may retain jurisdiction in appropriate cases but, before doing

so, must consider ‘the interests of fairness, judicial economy, convenience,

and comity,’ the last of which is ‘a particularly important concern in these

cases.’” Lambert v. Fiorentini, 949 F.3d 22, 29 (1st Cir. 2020) (citation

omitted). “[I]n the usual case,” the balance of these factors “will point

toward declining to exercise jurisdiction over the remaining state-law claims.”

Wilber v. Curtis, 872 F.3d 15, 23 (1st Cir. 2017) (citation omitted). The MCRA

and section 1983 claims, however, are coextensive, as discussed below, and raise

overlapping issues of substantive due process. Hence, the MCRA claim does not

present “substantial question[s] of state law.” Id. (finding no abuse of

discretion in district court exercising supplemental jurisdiction over MCRA

claim after dismissal of section 1983 claim). Fairness as well as judicial

economy and convenience also warrant retaining jurisdiction over the remaining

state law claims. First, the court’s disposition of the remaining state law

claims “will materially shorten the time it will take to resolve the parties’

dispute.” Desjardins v. Willard, 777 F.3d 43, 45 (1st Cir. 2015) (citing

Camelio v. Am. Fed’n, 137 F.3d 666, 672 (1st Cir. 1998)). The court is familiar

with the facts and issues in this case, having previously issued two opinions

(D. 52, 77), and the parties have a firm trial date in one month. Second, the

claims do not raise novel, complex, or “knotty and unresolved question[s] of

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

2018). Third, the case is not in its early stages, which would counsel in favor

of dismissal. See Lambert, 949 F.3d at 29. Rather, it is more than six years

old with a trial scheduled in June. The balance of factors therefore weighs in

favor of retaining supplemental jurisdiction over the three state law claims.

B. MCRA Claim

“To state a claim under the MCRA, a plaintiff must show that

(1) his exercise or enjoyment of rights secured by the constitution

or laws of either the United States or the Commonwealth of

Massachusetts (2) has been interfered with, or attempted to be

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

interference was by threats, intimidation or coercion.” Koppel v.

Moses, No. 20-cv-11479-LTS, 2022 WL 1272215, at *2 (D. Mass. Feb.

14, 2022) (quoting Amirault v. City of Malden, 241 F. Supp. 3d

288, 304 (D. Mass. 2017)). In seeking summary judgment on the

MCRA claim, the defendants argue that “‘the MCRA and [section]

1983 operate co-extensively’ with respect to due process

guarantees,” and the MCRA claim therefore “fails for the same

reason” the section 1983 substantive due process claim fails. (D.

96, p. 16).

The plaintiff argues that economic coercion provides a basis

to impose liability against the Mayor. (D. 105, pp. 16-17).

Pointing out that the Mayor denied making the threats, the

plaintiff argues that that the factual dispute warrants denying

summary judgment on the MCRA claim. (D. 105, pp. 5-6, 16-17).

“Central to proof of a violation of [the MCRA] is the

existence of a right secured by ‘the Constitution or laws of either

the United States or of the Commonwealth.’” K. Hovnanian at

Taunton, Inc. v. City of Taunton, 642 N.E.2d 1044, 1048 (Mass.

App. Ct. 1994) (quoting Bally v. Ne. Univ., 532 N.E.2d 49, 51

(Mass. 1989)). A “plaintiffs’ right to use and enjoy their

property is constitutionally secured” by “the Fourteenth Amendment

to the United States Constitution.” Kennie, 889 N.E.2d at 941.

In the case at bar, both the section 1983 substantive due process

and the MCRA claims allege that the defendants deprived Maroney of

the right “to own and develop [his] property,” which is secured by

the United States Constitution. (D. 51, ¶¶ 57-58, 68-69).

The defendants’ argument that the MCRA due process claim is

coextensive with the section 1983 due process claim is well taken.

“The MCRA is the state ‘counterpart’ to Section 1983 and, in

general, is coextensive therewith.”50 Bruce v. Worcester Reg’l

Transit Auth., CIV. ACT. NO. 18-40037-TSH, 2023 WL 1822786, at *7

(D. Mass. Feb. 8, 2023). Regardless of the two differences between

the statutes, under both the MCRA and section 1983, a plaintiff

“must demonstrate that [the defendants] ‘caused [the plaintiff] to

be deprived of his constitutional rights.” Morgan v. Town of

Lexington, 138 F. Supp. 3d 82, 91 (D. Mass. 2015). Here, because

the court concludes the plaintiff was not denied substantive due

process on the merits under section 1983, as previously discussed,

50 The “two primary differences” between the statutes is that under the MCRA

“(1) the offensive conduct need not be attributable to a state actor; and (2)

to succeed on [a] MCRA claim, a plaintiff must also show that the violation of

rights occurred ‘by threats, intimidation or coercion.’” Bruce, 2023 WL

1822786, at *7 (quoting Bally, 532 N.E.2d at 52) (additional citation omitted).

the defendants are entitled to summary judgment on the MCRA claim

as well. See id. (“Because the Court concludes that [the

plaintiff] was not denied substantive due process [under section

1983], discussed above, the Defendants are entitled to summary

judgment on [the MCRA claim] as well.”); accord Stuart v. City of

Gloucester, Civil Action No. 18-cv-11877-ADB, 2019 WL 3082830, at

*11 (D. Mass. July 15, 2019) (noting MCRA “is ‘basically

coextensive with [section 1983],’” albeit “with some differences

in . . . required elements,” and dismissing MCRA due process claim,

among other MCRA claims, for “same reasons” articulated

“concerning the Section 1983 claim”) (citation omitted); see also

Mondol v. City of Somerville, Civil Action No. 15-cv-13697-ADB,

2017 WL 4845019, at *11 (D. Mass. Oct. 26, 2017) (“[W]here

constitutional violations alleged under § 1983 fail, an MCRA claim

predicated on those same alleged violations must also fail.”).51

The defendants therefore are entitled to summary judgment on the

MCRA claim.

C. Interference with Contractual or Economic Relations Claim

An “[i]ntentional interference with contractual or business

relations” claim requires the plaintiff to “show (1) the existence

of a contract or a business relationship which contemplated

51 The court discerns no difference between the right to substantive due process

under federal and state law in the area of land-use regulation that is material

to the section 1983 versus the MCRA due process claims in this case. In any

event, the plaintiff does not argue that differences exist and therefore waives

the issue. See Dusel, 52 F.4th at 513-514.

economic benefit; (2) the defendants’ knowledge of the contract or

business relationship; (3) the defendants’ intentional

interference with the contract or business relationship for an

improper purpose or by improper means; and (4) damages.” Swanset

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

With respect to the third element, the operative complaint alleges

that the defendants interfered with Maroney’s business dealings

through improper means by depriving him of the right to develop

his property “free from threats, intimidation and coercion.” (D.

51, ¶ 74).

The defendants argue there is no evidence “that either Ward

or the Mayor used threats, intimidation or coercion.” More

fundamentally, though, they argue they are entitled to summary

judgment because a public official is entitled to common-law

immunity when he exercises discretion, acts in good faith, without

malice, and without corruption. (D. 96). In relation to the this

latter argument, the defendants submit that Ward and the Mayor did

not interfere with Maroney “developing his property in bad faith

or with malice.” (D. 96).

The plaintiff argues in opposition that a reasonable jury

could infer that Ward and the Mayor acted in bad faith or with

malice. Specifically, they retaliated against the plaintiff for

challenging their interpretations of the subdivision plan and for

exercising his First Amendment rights by filing the state court

lawsuit, according to the plaintiff. (D. 105).

The law regarding common-law immunity is well settled. A

public official, such as Ward or the Mayor, is immune from

liability when acting within his discretion as a public official

and in good faith. Summers v. City of Fitchburg, Case No: 15-cv-

13358-DJC, 2016 WL 4926415, at *5 (D. Mass. Sept. 15, 2016) (citing

Najas, 821 F.3d at 145-146); Nelson v. Salem State Coll., 845

N.E.2d 338, 349 (Mass. 2006) (immunity shields liability when

“conduct was within their discretion as public officials, and they

were acting in good faith”). Specifically, under “Massachusetts

common law, ‘a public official, exercising judgment and

discretion, is not liable for negligence or other error in the

making of an official decision if the official acted in good faith,

without malice, and without corruption.’” Najas, 821 F.3d at 146

(quoting Nelson, 845 N.E.2d at 348); South Boston Betterment Trust

Corp. v. Boston Redevelopment Auth., 777 N.E.2d 812, 820 (Mass.

2002) (“public official like the mayor would not have been liable

‘for negligence or other error in the making of [an official]

decision’ if the official acted “in good faith, without malice and

without corruption.”). Furthermore, there is a “presumption in

favor of the honesty and sufficiency of the motives actuating

public officers in actions ostensibly taken for the general

welfare.” Najas, 821 F.3d at 146 (citation omitted).

Immunity therefore applies when an official makes

“discretionary decisions within the scope of” his official duties

and acts in good faith. Nelson, 845 N.E.2d at 349. Conversely,

when an official acts “in bad faith or with malice,” he lacks

such immunity. Id.; accord Najas, 821 F.3d at 146 (dismissing

tortious business interference claim against Water District’s

Superintendent because complaint failed to plausibly show “bad

faith or malice, as opposed to a concern for the Town’s residents’

general welfare, motivated [Superintendent’s] behavior”); see

Bache v. Town of Boxborough, Civil Action No. 21-11187-FDS, 2022

WL 392819, at *5 (D. Mass. Feb. 9, 2022), aff’d, 2022 WL 16551384

(1st Cir. Oct. 31, 2022) (dismissing claim because no allegations

“Gath acted outside of his official capacity” as police officer

enforcing court order or “in bad faith or with malice”).

1. Ward

Ward’s conduct parallels the conduct of the Water District

Superintendent (“Superintendent”) in Najas. See Najas, 821 F.3d

at 145-146. The First Circuit in Najas found that no bad faith or

malice motivated the Superintendent’s behavior, which included

attending Planning Board meetings and voicing opposition to the

project based on the “project’s impact on the public water supply.”

Id. at 137-139, 145-146. Similarly, Ward’s attendance and

opposition to Crystal Springs at Planning Board meetings in the

fall of 2016 does not evidence sufficient bad faith or malice to

avoid summary judgment.

Further, against the backdrop of the delays in designing the

pumping system, the failure to submit a final field-built design,

and the increased elevations of the Front Nine Drive lots, Ward

acted within his discretion as the deputy director of the Water

Department in refusing to approve additional water service

applications or sign off on additional permits after March and

April 2015. Throughout, Ward’s concern about adequate water

pressure and having Maroney work toward completing the water

booster station to secure adequate water pressure was by and large

constant. See Najas, 821 F.3d at 142 (finding Superintendent’s

concern that project would contaminate water supply genuinely held

and that “he continually voiced the same worry”); Swanset, 668

N.E.2d at 339 (noting “council members, acting individually, would

likely have immunity” regarding interference with contractual or

business relations claims “because, in considering the permit

applications, they were making discretionary decisions within the

scope of their official duties”). Here, no reasonable jury could

find that Ward acted in bad faith and with malice.

It was also within Ward’s discretion and official duties to

change the design of the pumping station in January 2016. See

Haverhill Subdivision Rules, § V.5.2.5 (“Pumping stations shall be

designed and constructed in accordance with the Water Department’s

requirements.”) (emphasis added); (D. 97-3) (setting out City’s

requirements for “design and construction of water boosting

pumping stations” and stating “Water Department will notify

applicant of the requirements for providing adequate water

service, as defined by the City and discussed herewithin”). Here

again, the presumption of honesty of Ward’s motives in actions

ostensibly taken for the general welfare of Crystal Springs

residents, particularly those in the higher elevated Front Nine

Drive lots, applies. For reasons stated previously, a reasonable

jury could not find that Ward was following a directive from the

Mayor.

In sum, the presumption that Ward’s motives and concerns for

the water supply and pressure were honest and sufficient applies.

The actions about which Maroney complains were within Ward’s

discretion as a public official. A reasonable jury could not infer

that Ward acted in bad faith or with malice. Accordingly, Ward is

shielded from liability under common-law immunity. See Nelson,

845 N.E.2d at 349 (Because officials “acted in good faith, engaging

in activity that was within their discretion, they are shielded

from liability by . . . common-law immunity.”).

2. The Mayor

The Mayor’s immunity, if any, arises in the factual context

of the statements he made shortly after Maroney filed the state

court lawsuit, and turns upon whether a reasonable jury could find

the Mayor acted in bad faith or with malice. See id.

Bad faith is more than “simply bad judgment.” Spiegel v.

Beacon Participations, 8 N.E.2d 895, 907 (Mass. 1937). Rather, it

engenders a conscience sense of wrongdoing and “means a breach of

a known duty through some motive of interest or ill will.” Id.;

accord Brothers v. Town of Millbury, Civil Action No. 14-10122-

TSH, 2014 WL 4102436, at *11 (D. Mass. Aug. 14, 2014) (quoting

Spiegel, 8 N.E.2d at 907). Malice “means a wrongful act, done

intentionally, without just cause or excuse.” Brothers, 2014 WL

4102436, at *11 (citation omitted); accord Nasir v. Town of

Foxborough, Case No. 19-cv-11196-DJC, 2020 WL 1027780, at *9 (D.

Mass. Mar. 3, 2020); see also Cachopa v. Town of Stoughton, 893

N.E.2d 407, 414 (Mass. App. Ct. 2008) (noting that showing public

official “acted with actual malice would . . . defeat” official’s

immunity); see generally Rose v. Dennehy, Civil Action No. 08–

10050–NMG, 2010 WL 3703229, at *9-10 (D. Mass. Sept. 15, 2010)

(finding evidence to infer corrections “officers acted in bad faith

or with malice” by assaulting and battering inmate “without

justification”).

In Brothers, a defendant police officer (“the defendant

officer”) acted in retaliation against another police officer

(“the complainant”). Brothers, 2014 WL 4102436, at *11.

Specifically, years earlier, the complainant took a graduate

course taught by the defendant officer and complained to school

officials about the manner in which he conducted the class. Id.

at *1. In retaliation for complaining to school officials, the

defendant officer began investigating the complainant. See id. at

*1, 11 (finding allegations defendant officer was “fueled by

personal animosity and retaliatory motives” plausible). During

the “hasty investigation,” the defendant officer destroyed records

of purportedly exonerating interviews. Id. In addition to other

conduct, the court rejected common law immunity for the defendant

officer regarding state law claims, including an interference with

advantageous relations claim. Id. at *12.

Here, a reasonable jury could infer that the Mayor acted in

retaliation for the plaintiff filing the state court action without

justification in attempting to intimidate Maroney to drop the

lawsuit to obtain the permits to develop the remaining lots.52 To

be sure, a jury could also infer the Mayor acted in a benign manner

in attempting to settle the dispute, which falls within his

discretion and his duties in deciding whether to mediate disputes.

52 The retaliatory response at issue in Najas involved imposing costly design

and construction requirements and opposing the project with purportedly baseless

statements about the project increasing nitrate levels in the Town’s water

supply. Najas, 821 F.3d at 142 & n.10. The court found that concern for the

Town’s residents, rather than bad faith or malice, motivated the Water

Department’s Superintendent’s behavior. Id. at 146. As such, the circumstances

in Najas are factually distinct from the Mayor’s comments to drop the lawsuit

to get the permits in retaliation for filing the lawsuit weeks earlier. Here,

the Mayor, faced with Crystal Springs residents and prospective residents

concerned about the work stoppage, proceeded to condition any progress on

Maroney dropping the lawsuit.

(D. 97-4, p. 138). Viewing the record in the plaintiff’s favor,

however, genuinely disputed facts preclude the Mayor’s entitlement

to common-law immunity on summary judgment.

Per the foregoing, summary judgment is not warranted on the

interference with contractual or economic relations claim against

the Mayor. Conversely, summary judgment on the claim is

appropriate for Ward.

D. Civil Conspiracy

Massachusetts recognizes a vicarious liability form of civil

conspiracy deriving “from ‘concerted action,’ whereby liability is

imposed on one individual for the tort of another.” Kurker v.

Hill, 689 N.E.2d 833, 836 (Mass. App. Ct. 1998); accord Thomas v.

Harrington, 909 F.3d 483, 490 (1st Cir. 2018) (citing Kurker, 689

N.E.2d at 836). Liability requires “an underlying tort and the

conspiracy consists of” either “agreeing to, or assisting in, the

underlying tort.” Thomas, 909 F.3d at 490 (quoting Taylor, 576

F.3d at 35) (emphasis added and internal brackets omitted).

Regarding the conspiracy, Massachusetts recognizes “two theories

of liability” under the Restatement (Second) of Torts § 876 (1979):

“concert of action” and “substantial assistance.” Taylor, 576

F.3d at 35 (citations omitted).

In seeking summary judgment, the defendants argue that Ward

and the Mayor did not act in concert with each other to further a

common design or agreement and did not have a conspiratorial

agreement. (D. 96, p. 19). Further, in the context of addressing

the operative complaint’s substantial assistance theory of

conspiracy (D. 51, ¶¶ 81-82), the defendants submit that Ward did

not know about the Mayor’s statements and the Mayor never directed

Ward not to issue permits until Maroney dismissed the lawsuit.53

(D. 96, p. 18). The defendants also argue that Ward’s decision to

continue to withhold permits had nothing to do with any statements

the Mayor made. (D. 96) (D. 110).

The plaintiff argues there is ample evidence from which to

infer that Ward and the Mayor worked together on a common plan to

deny Maroney permits and that Ward carried out the plan “by

refusing to issue permits.” (D. 105, pp. 19-20) (D. 51, ¶¶ 81-

82). The defendants also discussed “potential strategies for

getting Maroney to drop his lawsuit,” according to the plaintiff.

(D. 105, p. 20). As an example of another joint effort which thus

infers the foregoing joint efforts to effectuate the common plan,

53 Although not crystal clear, the plaintiff appears to maintain that the

defendants do not address the substantial assistance theory. (D. 105, pp. 19-

20). To the contrary, the defendants quote the operative complaint’s

substantial assistance language (D. 51, ¶¶ 81-82), which parallels the

substantial assistance language in Kurker, 689 N.E.2d at 837 (“Key to this cause

of action is a defendant’s substantial assistance, with the knowledge that such

assistance is contributing to a common tortious plan,” including “tak[ing]

affirmative steps to . . . achievement of the result.”). (D. 96, p. 18). The

fact that the defendants set out this paragraph under the heading of a

“Conspiracy Claim Under 42 U.S.C. §§ 1985 and 1986” does not mean they do not

make the argument regarding the only conspiracy claim pled in the operative

complaint, namely, one under state common law. As stated in a 2017 Memorandum

and Order, the predecessor complaint (D. 27, ¶¶ 81-82) removed the references

to sections 1985 and 1986 in the original complaint (D. 1, ¶¶ 81-82) and raises

only a common law conspiracy claim. (D. 52, p. 26). The conspiracy claims in

the operative complaint and the predecessor complaints are identical. (D. 27,

¶¶ 81-82) (D. 51, ¶¶ 81-82).

the plaintiff identifies Maroney’s December 2015 email to the City

Council stating that the Mayor was bullying him, which led to the

mediation offer a short time thereafter. (D. 105). The plaintiff

reasons “that the Mayor must have decided to offer” mediation

because he is the decision-maker in this regard (D. 97-4, p. 138)

and Ward must have “simply carried out that direction.” (D. 105,

p. 20).

To establish “a ‘concerted action’ conspiracy, a plaintiff

must show that defendants either (1) acted ‘in concert with or

pursuant to a common design with’ the tortfeasor or (2) ‘gave

substantial assistance to’ the tortfeasor’s conduct.” Thomas, 909

F.3d at 490 (citing Kyte v. Philip Morris Inc., 556 N.E.2d 1025,

1027 (Mass. 1990)) (additional citation omitted). The “‘common

design’ theory” requires the plaintiff to “show ‘first, a common

design or an agreement . . . between two or more persons to do a

wrongful act and, second, proof of some tortious act in furtherance

of the agreement.’” Id. (citation omitted). The agreement need

not be express, and a jury may properly draw “[a]n inference of an

implied agreement . . . from the conduct of two or more parties.”

Id. (quoting Kyte, 556 N.E.2d at 1027).

Here, the evidence identified by the plaintiff, as the summary

judgment target, is deficient as to both the Mayor and Ward.

Whether viewing the underlying tortious act as either to wrongfully

deny Maroney permits or to have Maroney drop the lawsuit seeking

to redress his grievances with the City, see generally id. at 490,

492 n.13 (common design requires underlying wrongful act which,

although not explicitly identified, “only plausible candidate” was

Thomas’ wrongful termination), the result is the same. With

respect to both, the previously discussed reasoning which defeats

that Ward was following the Mayor’s directives similarly

forecloses a finding that Ward acted in concert with the Mayor.54

Further, no reasonable jury could find that Ward acted pursuant to

a common design with the Mayor to deny permits in general or to

deny permits unless and until Maroney dismissed the lawsuit. In

that vein, a reasonable jury could not infer an implied agreement

between Ward and the Mayor to deny permits in general or to deny

permits unless Maroney dismissed the lawsuit. See id. at 490-491

(affirming allowance of summary judgment on civil conspiracy claim

and explaining common design theory fails to infer agreement to

terminate Thomas’ employment and general awareness of

investigation’s progress leading to termination was insufficient).

With Ward not acting in concert with the Mayor or pursuant to a

common design or agreement with the Mayor, the common design theory

is not a viable avenue of relief.

Turning to substantial assistance in the underlying tort,

liability focuses on whether Ward rendered substantial assistance

54 See supra note 48 and accompanying text.

to the Mayor. To succeed under this theory, Ward “must give

‘substantial assistance or encouragement’ to a party engaging in

tortious conduct,” namely, the Mayor. Taylor, 576 F.3d at 35 “Key

to this cause of action is a defendant’s substantial assistance,

with the knowledge that such assistance is contributing to a common

tortious plan.” Kurker, 689 N.E.2d at 837. The theory applies

“where the participants know of the plan and its purpose and take

affirmative steps to encourage the achievement of the result.”

Id. (citations omitted).

In that vein, the record evidences that Ward had very little

contact with the Mayor after Maroney filed the state court lawsuit.

(D. 97-4, p. 132). Ward also denies that the Mayor ever suggested

or told him to take steps to pressure Maroney to resolve the state

court lawsuit. (D. 97-4, p. 141). The contacts or connections

the plaintiff identifies55 do not allow a jury to reasonably infer

that Ward rendered assistance, let alone substantial assistance,

to the Mayor to deny permits in general or to deny permits unless

Maroney dismissed the lawsuit. Ward’s conduct remained largely

consistent in requiring Maroney to progress in building the water

booster station, especially for the higher elevated lots. After

Maroney filed the July 2015 lawsuit, Ward continued not approving

water service applications. He also continued not signing-off on

55 See supra note 48 and accompanying text.

any site plan applications, which would have allowed Maroney to

obtain building permits and proceed with construction. (D. 97-4,

pp. 117-118) (D. 104, ¶¶ 30-31, 86). In all, Ward’s conduct showed

little, if any, alteration before and after the lawsuit and the

Mayor’s statements. Viewed against this backdrop, a reasonable

jury could not find substantial assistance.

In short, the civil conspiracy claim therefore fails to

survive summary judgment.

IV. CONCLUSION

In accordance with the foregoing discussion, the summary

judgment motion (D. 95) is ALLOWED in part and DENIED in part. In

particular, the motion is allowed as to Ward for all claims and

allowed as to the Mayor except for the interference with

contractual or economic relations claim, which is denied.

/s/ Donald L. Cabell

DONALD L. CABELL, U.S.M.J.

DATED: May 18, 2023