Bigda v. City of Springfield

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

GREGG BIGDA,

Plaintiff,

v. Civil Action No. 23-30067-MGM

CITY OF SPRINGFIELD, et al.,

Defendants.

MEMORANDUM AND ORDER REGARDING CROSS

MOTIONS TO DISMISS AND

PLAINTIFF’S MOTION FOR SANCTIONS

(Dkt. Nos. 19, 21, and 23)

April 29, 2024

MASTROIANNI, U.S.D.J.

INTRODUCTION

This civil action arises from the aftermath of Plaintiff Gregg Bigda’s (“Plaintiff”) December

13, 2021 acquittal on federal criminal charges. As a result of this jury verdict, Plaintiff contends he was

entitled to immediate reinstatement as an officer in the Springfield Police Department (the

“Department”). He further argues this reinstatement must be without restriction, whether in the form

of limitations on his authority to carry a firearm or badge, his ability to obtain an assignment outside

of the stationhouse, or his potential to work overtime details. According to Plaintiff, Defendants —

the City of Springfield, Mayor Domenic J. Sarno, and Police Superintendent Cheryl Clapprood

(collectively, “Defendants”) — conspired, and continue to conspire, to keep him from serving as a

Springfield police officer without restriction.

In response to this asserted conspiracy, Plaintiff filed this lawsuit alleging deprivation of the

rights to substantive and procedural due process as secured by the 14th Amendment to the United

States Constitution in violation of 42 U.S.C. § 1983 (Count I), deprivation of the right to equal

protection of the laws as secured by the 14th Amendment in violation of 42 U.S.C. § 1983 (Count II),

violation of the Massachusetts Civil Rights Act as to Defendants Sarno and Clapprood (Count III),

tortious interference with advantageous business relations as to Defendants Sarno and Clapprood

(Count IV), civil conspiracy (Count V), intentional infliction of emotional distress (Count VI),

defamation as to Defendant Clapprood (Count VII), and violation of Mass. Gen. L. ch. 268A § 25 as

to Defendant City of Springfield (Count VIII).1 Defendants answered, bringing counterclaims

sounding in Massachusetts law seeking contribution pursuant to Mass. Gen. L. ch. 231B, § 1(a)

(Counterclaim I), and alleging Plaintiff breached a fiduciary duty to the City of Springfield

(Counterclaim II).

The parties filed cross-motions for dismissal pursuant to Federal Rule of Civil Procedure

12(b)(6), asserting the complaint and counterclaims, respectively, failed to state a claim upon which

relief may be granted. Before the court can address the merits of the pending motions, it must

determine it has jurisdiction to hear this case pursuant to Article III of the federal constitution. As the

court concludes Plaintiff’s federal constitutional claims—Counts I and II—are not ripe for

adjudication, this court lacks subject matter jurisdiction to hear Plaintiff’s federal claims. Consequently,

Counts I and II are dismissed without prejudice. In addition, the court declines to exercise

supplemental jurisdiction over Plaintiff’s remaining state law claims rendering Counts III-VIII

dismissed. As no operative complaint remains in this matter, Defendants’ remaining counterclaim is

1 Plaintiff voluntarily dismissed Counts V and VI against the City of Springfield, Mayor Sarno in his

official capacity, and Superintendent Clapprood in her official capacity. (Dkt. No. 18.)

also dismissed,2 as is Plaintiff’s pending motion for sanctions.3

FACTUAL BACKGROUND

Plaintiff joined the Springfield Police Department in 1994. From 1994 until October 2018, he

served as an active-duty officer with the Department. On or about October 31, 2018, he was

suspended without pay by the Department because of an indictment returned by a federal grand jury

sitting in the District of Massachusetts. Specifically, the indictment alleged Plaintiff deprived several

juveniles of rights secured by the federal constitution while acting under color of law in violation of

18 U.S.C. § 242. It further alleged Plaintiff made false reports in violation of 18 U.S.C. § 1519 to cover

up the initial offense. These charges stemmed from an incident in Palmer, Massachusetts wherein

several juveniles stole a Springfield police vehicle. The juveniles led police on a chase that ended in

their apprehension. During the arrest, it was alleged that Plaintiff used an unconstitutional degree of

force against the juveniles. After the arrest, the juveniles were transported to the Palmer police station,

where they were subsequently interrogated by Springfield police officers, including Plaintiff. This

interrogation was recorded and subsequently became publicly available. Upon reviewing the recording,

officials with the United States Attorney’s Office for the District of Massachusetts determined the

conduct depicted “shocked the conscience” in violation of the 14th Amendment thereby further

2 Defendants voluntarily dismissed Counterclaim I on September 15, 2023. (Dkt. No. 14.)

3 In certain circumstances, “[a] court without subject matter jurisdiction may retain some limited

authority to protect its own independent interests in its procedures.” Christopher v. Stanley-Bostitch, Inc.,

240 F.3d 95, 100 (1st Cir. 2001). On occasion, the Rule 11 sanction power fits this unique category of

occurrence. “However, whatever incidental power the court retains cannot go to the merits of the

underlying action.” Id.; see also Hernandez v. Conriv Realty Assocs., 182 F.3d 121, 123 (2d Cir. 1999)

(“Nevertheless, we believe that Article III’s limits on federal jurisdiction are designed not only to

prevent federal courts from assessing the merits of certain disputes, but also to prevent federal courts

from interfering—through such assessments or otherwise—with the jurisdiction of state courts over

certain cases, such as this one, that do not implicate federal interests.”). Plaintiff’s motion for sanctions

(Dkt. No. 23) is so intertwined with the merits of Defendants’ state law counterclaims that the court

could not address the motion for sanctions without passing judgment on the counterclaims.

Consequently, the court exercises its discretion and dismisses this motion without prejudice.

violating the juveniles’ constitutional rights. As alluded to earlier, a grand jury agreed, returning an

indictment against Plaintiff. Plaintiff elected to exercise his constitutional right to a trial by jury. At the

conclusion of this trial, Plaintiff was acquitted by the jury of all charges on December 13, 2021.

According to Plaintiff, Massachusetts law required his immediate reinstatement to the

Springfield Police Department following his acquittal. In line with this position, four days after the

acquittal, on December 17, 2021, the City of Springfield informed Plaintiff he would return to the

Department payroll but would be placed on administrative leave while still receiving his base salary.

Thus, he continues to receive his base pay and he received a certain amount of backpay, but he cannot

receive his badge, carry his gun, volunteer for overtime work details, receive shift assignments, or

report to police facilities. As of April 29, 2024, Plaintiff remains on the Department’s payroll.

In 2020, while Plaintiff’s federal criminal matter was pending, the Massachusetts General

Court undertook to reform the process for regulating the profession of policing in the Commonwealth

of Massachusetts. The result was passage of 2020 Mass. Acts Chapter 253, which was styled: An Act

Relative to Justice, Equity and Accountability in Law Enforcement in the Commonwealth. Among the provisions

in this legislation, Chapter 6E established the Massachusetts Peace Officer Standards and Training

Commission (“P.O.S.T. Commission”) as an independent state agency with the responsibility for

reviewing, certifying, and investigating the qualifications of all law enforcement officers serving in

Massachusetts. See Mass. Gen. L. ch. 6E, § 2 (establishing the composition of the Commission); Mass.

Gen. L. ch. 6E, § 3 (setting forth the powers of the Commission).4 The Commission’s mandate applied

4 In support of this mandate, the General Court delegated the P.O.S.T. Commission substantial quasi-

judicial powers. These include the right to “act as the primary civil enforcement agency for violations

of this chapter”; the ability to “deny an application or limit, condition, restrict, revoke or suspend a

certification, or fine a person certified for any cause that the commission deems reasonable”; the

authority to “levy and collect assessments, fees and fines and impose penalties and sanctions for a

violation of this chapter or any regulations promulgated by the commission”; the obligation to

“conduct adjudicatory proceedings in accordance with chapter 30A”; and the power to “issue

subpoenas and compel the attendance of witnesses at any place within the commonwealth, administer

retroactively. This meant individuals who became police officers before its enactment would

eventually need to apply to the Commission for recertification.

On July 1, 2022, Plaintiff’s certification expired, and he was required to apply to the

commission for recertification. Plaintiff applied for recertification before the deadline. As part of the

recertification process, Defendant Clapprood was required to provide a letter to the Commission

explaining whether she believed Plaintiff possessed the requisite good character and fitness to serve

as a police officer. This requirement was set forth in an administrative rule promulgated by the

P.O.S.T. Commission. See 555 Mass. Code Regs. § 7.05. In June 2022, Defendant Clapprood certified

Plaintiff did not possess the requisite character and fitness to serve as a police officer. As a result,

Plaintiff was denied recertification. In a subsequent administrative review, this decision was confirmed

by the Executive Director of the Commission. Plaintiff then exercised his administrative right to

appeal the decision to an appointed hearing officer. On January 8, 2024, following a two- and half-day

hearing, a retired Associate Justice of the Massachusetts Superior Court rendered an eighteen-page

written decision upholding Plaintiff’s decertification. (See Dkt. No. 48-2, In the Matter of Gregg Bigda,

Case No. 23-001-C (Mass. P.O.S.T. C’mmn January 8, 2024.)) Plaintiff appealed the hearing officer’s

decision to the full Commission. On April 22, 2024, after receiving briefing and hearing arguments, a

quorum of the P.O.S.T. Commission voted eight to zero to uphold the hearing officer’s initial

decision. (Dkt. No. 48-1.) Pursuant to Mass. Gen. L. ch. 30A, § 14, Plaintiff has thirty days to seek

judicial review of this final agency action from the Massachusetts Superior Court. As of today, Plaintiff

cannot serve as a police officer without restriction because he lacks the required certification from the

Commission.

oaths and require testimony under oath before the commission in the course of an investigation or

hearing conducted under this chapter.” See Mass. Gen. L. ch. 6E, § 3(1), (4), (22), (24), and (26).

LEGAL STANDARD

In this case, the parties filed cross-motions to dismiss relying on Fed. R. Civ. P. 12(b)(6).

However, according to Fed. R. Civ. P. 12(h)(3), “[i]f the court determines at any time that it lacks

subject-matter jurisdiction, the court must dismiss the action.” After reviewing the initial Rule 12(b)(6)

motions, the court raised the issue of subject matter jurisdiction sua sponte by requesting briefing on

the potential application of the ripeness doctrine or the Younger abstention doctrine.5 See Bacardi Int’l

Ltd. v. V. Suarez & Co., 719 F.3d 1, 13 (1st Cir. 2013) (“Although neither party raised the possibility

of deferring the exercise of federal jurisdiction, we may do so sua sponte.”); see also Wright & Miller,

FED. PRAC. & PROC. § 1350 (4th ed.) (explaining the myriad ways a subject matter jurisdiction

challenge may be initially raised). Although raised sua sponte, the court will apply the standard applicable

in reviewing a Rule 12(b)(1) motion because the “rule is a large umbrella . . . [including challenges]

grounded in considerations of ripeness, mootness, sovereign immunity, and the existence of federal

question jurisdiction.” Valentin v. Hosp. Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001).

In reviewing a Rule 12(b)(1) motion, the court may take two approaches depending on the

nature of the jurisdictional challenge. See Valentin, 254 F.3d at 363. When a defendant accepts the

plaintiff’s jurisdictionally significant facts as true, the court “take[s] as true all well-pleaded facts in the

5 As the court finds the ripeness doctrine is the most efficient method for addressing its subject matter

jurisdiction, it does not engage in a full analysis of the Younger abstention question. Nevertheless, the

court would dismiss Plaintiff’s third request for relief, which seeks an order reinstating Plaintiff to the

Springfield Police Department, on Younger grounds, as such injunctive relief would constitute

unwarranted federal interference in an ongoing state civil enforcement proceeding with attributes akin

to a criminal proceeding. See Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 78-80 (2013); see also Sirva

Relocation, LLC v. Richie, 794 F.3d 185, 193-94 (1st Cir. 2015) (explaining when civil enforcement

proceedings are covered by Younger). Moreover, the court would stay the entirety of Plaintiff’s

remaining claims because continuing the proceeding would “‘needlessly inject’ the federal court into

ongoing state proceedings.’” Coggeshall v. Mass. Bd. of Reg. of Psychologists, 604 F.3d 658, 665 (1st Cir.

2010) (quoting Brooks v. N.H. Supreme Court, 80 F.3d 633, 637 (1st Cir. 1996)). The allegations in

Plaintiff’s complaint are completely intertwined with the sufficiency and truthfulness of the evidence

relied upon by first the P.O.S.T. Commission, and then, potentially, the Massachusetts Superior Court

in reviewing Plaintiff’s recertification request. Orders and rulings by this court would function as a

collateral attack on the legitimacy of the state process.

plaintiffs’ complaints, scrutinize[s] them in the light most hospitable to the plaintiffs’ theory of liability,

and draw[s] all reasonable inferences therefrom in the plaintiffs’ favor.” Fothergill v. United States, 566

F.3d 248, 251 (1st Cir. 2009) (alteration added). “If the well-pleaded facts, evaluated in that generous

manner, do not support a finding of federal subject-matter jurisdiction, the orders of dismissal must

[issue].” Id. (alteration added). When a defendant “engage[s] the gears of Rule 12(b)(1) by

controverting the accuracy (rather than the sufficiency) of the jurisdictional facts . . . the plaintiff’s

jurisdictional averments are entitled to no presumptive weight; the court must address the merits of

the jurisdictional claim by resolving the factual disputes between the parties.” Valentin, 254 F.3d at 363

(alteration added). “In conducting this inquiry, the court enjoys broad authority to order discovery,

consider extrinsic evidence, and hold evidentiary hearings in order to determine its own jurisdiction.”

Id. at 364. Here, the parties are in general agreement on the relevant jurisdictional facts. Consequently,

the court relies principally on the parties’ own uncontroverted pleadings as supplemented by

documents from the public record when necessary to properly ascertain whether jurisdiction exists.

See, e.g., Groden v. N&D Transportation Co., Inc., 866 F.3d 22, 25 n. 3 (1st Cir. 2017) (“When considering

motions to dismiss for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure

12(b)(1), the court may consider materials outside the pleadings.”).

DISCUSSION

Plaintiff’s two federal constitutional claims, Counts I and II, both rely on the premise that the

Springfield Police Department unlawfully refused to reinstate him as a police officer without

restriction. However, as Defendants note, Plaintiff has not been terminated as an employee of the

Springfield Police Department, rendering his claims unfit for adjudication before this court.

Accordingly, Counts I and II are dismissed for failing to present a sufficiently ripe case or controversy.

Ripeness doctrine is a natural corollary of the “foundational [constitutional] principle of Article

III that ‘an actual controversy must exist not only at the time the complaint is filed, but through all

stages of the litigation.’” Trump v. New York, 592 U.S. 125, 131 (2020) (quoting Already, LLC v. Nike,

Inc., 568 U.S. 85, 90-91 (2013)) (alteration added). In determining ripeness, the court considers two

factors, “[1] the fitness of the issues for judicial decision and [2] the hardship to the parties of

withholding court consideration.” Roman Cath. Bishop of Springfield v. City of Springfield, 724 F.3d 78, 89

(1st Cir. 2013) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967), abrogated on other grounds by

Califano v. Sanders, 430 U.S. 99 (1977)) (alteration added). When considering these factors, the court

recalls “[t]he ripeness inquiry is often sui generis” because “[m]ost litigation has idiosyncratic features,

and the various integers that enter into the ripeness equation play out quite differently from case to

case, thus influencing the bottom line.” Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 535-

36 (1st Cir. 1995).

In Roman Catholic Bishop of Springfield, the First Circuit comprehensively set forth the

requirements for each prong of the ripeness test. As to fitness, the First Circuit wrote:

The fitness prong of the ripeness test has both jurisdictional and prudential

components. The former, “grounded in the prohibition against advisory opinions, is

one of timing.” It concerns whether there is a sufficiently live case or controversy, at

the time of the proceedings, to create jurisdiction in the federal courts. The prudential

component asks “whether resolution of the dispute should be postponed in the name

of ‘judicial restraint from unnecessary decision of constitutional issues’; if elements of

the case are uncertain, delay may see the dissipation of the legal dispute without need

for decision.

Roman Cath. Bishop of Springfield, 724 F.3d at 89 (internal citations omitted). By contrast, the “hardship”

prong is “wholly prudential.” Id. at 90. Hardship analysis “looks at whether the challenged action

creates a direct and immediate dilemma for the parties,” recalling that the “mere possibility of future

injury, unless it is the cause of some present detriment, does not constitute hardship.” Id. (internal

quotations omitted). For a claim to proceed, a plaintiff must demonstrate both prongs of the ripeness

inquiry are met. See Ernst & Young, 45 F.3d at 535.

First, addressing the fitness prong, Plaintiff fails to satisfy either the jurisdictional or prudential

subcomponents of the test. Plaintiff’s core constitutional complaint is that the Defendants have

deprived him of a “constitutionally protected property right to continued employment as a police

officer without restriction.” (See Dkt. No. 1, ¶¶ 105, 115-16.) Assuming such a right exists, no party

disputes that Plaintiff has not been fully deprived of this right. This is fatal because “[r]ipeness turns

upon the existence of ‘an ‘actual’ controversy,’ which ‘is a sine qua non of any assumption of federal

jurisdiction.’” O’Connell v. Walsh, No. CV 15-10096-DJC, 2015 WL 9581735, at *2 (D. Mass. Dec. 30,

2015) (quoting Verizon New England, Inc. v. Int’l Bhd. of Elec. Workers, Loc. No. 2322, 651 F.3d 176, 188

(1st Cir. 2011)). As Plaintiff remains on the Department’s payroll, his asserted constitutional

deprivation is purely hypothetical until the Massachusetts state courts render a final decision on his

certification application, thereby triggering either his termination or retention. Moreover, until Plaintiff

is terminated, any decision or order regarding his asserted constitutional injuries would require the

court to decide issues based on factual scenarios that have not yet occurred. Specifically, the court

would need to conclude Plaintiff had been (or had not been) deprived of his constitutional right to

serve as a police officer without restriction during a timeframe where it is undisputed Plaintiff

remained in the employ of the Springfield Police Department. Thus, providing the parties with a

hypothetical resolution to a hypothetical constitutional question. As a jurisdictional matter, answering

this hypothetical on behalf of either Plaintiff or Defendants would not constitute a decision regarding

a live case or controversy rendering it a constitutionally impermissible advisory opinion. See Project

Veritas Action Fund v. Rollins, 982 F.3d 813, 826 (1st Cir. 2020) (“The ripeness inquiry is grounded in

Article III’s prohibition against advisory opinions.” (internal quotation marks omitted)); see also Eves v.

LePage, 927 F.3d 575, 590 (1st Cir. 2019) (en banc) (explaining, in the context of a different justiciability

doctrine, that “Federal courts should not issue such advisory opinions.”).6 Consequently, Plaintiff’s

6 In responding to the court’s inquiry regarding ripeness, Plaintiff directed the court to a decision from

another session of this court, Meuse v. Nat’l P.I. Servs., LLC, No. 21-CV-11533-ADB, 2022 WL

2532831 (D. Mass. July 7, 2022). After careful review, the court concludes Meuse is factually

distinguishable from this matter for two reasons. First, the Meuse plaintiff was actually denied a job by

constitutional claims are premature in a jurisdictional sense because Plaintiff has not yet suffered the

harm that he alleges gives rise to his federal causes of action.

Turning to the prudential subcomponent, Plaintiff’s framing of his constitutional right as the

ability to be a “police officer without restriction” raises prudential concerns. Plaintiff is currently

barred from serving without restriction because the Massachusetts P.O.S.T. Commission declined to

certify him as qualified to be a police office. (Dkt. No. 48.) After confirmation by the full Commission,

this decision is now subject to review by the Massachusetts state courts. In the state forum, a decision

in Plaintiff’s favor would eliminate his concerns with respect to serving without restriction. In contrast,

a state court ruling upholding the P.O.S.T. Commission’s decision would independently disqualify

Plaintiff from serving as a police officer in the Commonwealth. The result of the process is uncertain

but exercising judicial restraint may lead to “the dissipation of the legal dispute without need for

decision.” Roman Cath. Bishop of Springfield, 724 F.3d at 89. In response, Plaintiff correctly notes that

Section 1983 claims are not restricted by any requirement of administrative exhaustion, see Knick v.

Twp. of Scott, Pennsylvania, 588 U.S. 180, 185 (2019), but by raising the ongoing certification process the

court does not imply otherwise. Rather, the court considers the ongoing certification process

indicative of the contingent and uncertain nature of Plaintiff’s constitutional claims and injuries. See

City of Fall River, Mass. v. FERC, 507 F.3d 1, 6 (1st Cir. 2007) (citing Texas v. United States, 523 U.S. 296,

300 (1998)). Specifically, until the certification process is complete, it is not possible for Plaintiff to

the Everett Fire Department which means he never was on the departmental payroll. Id. at *3. As

discussed, Plaintiff remains on the Department’s payroll. Second, the Meuse plaintiff’s claim for

reputational damages was directly tied to the harm he allegedly suffered through denial of employment

with the Everett Fire Department. As Plaintiff remains formally on the Department payroll, his alleged

reputational injury, premised on losing his job as a police officer, is contingent on future events. In so

far as Plaintiff asserts reputational injury caused by other factors such as his criminal trial or the

P.O.S.T. process, this injury is not fairly traceable to the constitutional harm alleged in his complaint.

See, e.g., California v. Texas, 593 U.S. 659, 669 (2021) (“Neither the individual nor the state plaintiffs

have shown that the injury they will suffer or have suffered is ‘fairly traceable’ to the ‘allegedly unlawful

conduct’ of which they complain.”).

adequately allege that he has been deprived of his right to serve as a police officer without restriction

by these Defendants. After all, he remains on the Springfield Police payroll while an independent state-

level licensing scheme prevents him from serving without restriction. As a matter of prudence, the

court concludes Plaintiff’s constitutional claims are not yet fit for judicial adjudication.

As to the hardship prong, Plaintiff cannot demonstrate a “direct and immediate dilemma”

justifying this court’s immediate adjudication of his constitutional claims. Here, Plaintiff continues to

receive pay and benefits from the Springfield Police Department. This ability to collect pay and retain

the benefits of employment is at the core of his alleged constitutionally protected interest. The

operative complaint raises the specter of future harm in the form of removal from the police force if

the P.O.S.T. Commission’s decision to decertify Plaintiff is upheld by the Massachusetts courts, but

this constitutional injury has not matured because this removal has not yet occurred. See Doe v. Bush,

323 F.3d 133, 138 (1st Cir. 2003) (“A third [rationale for the ripeness doctrine] is the recognition that,

by waiting until a case is fully developed before deciding it, courts benefit from a focus sharpened by

particular facts.”). Moreover, dismissal on ripeness grounds is not a dismissal on the merits of

Plaintiff’s claims. See, e.g., O'Connell v. Gross, No. CV 19-11654-FDS, 2020 WL 1821832, at *5 n. 3 (D.

Mass. Apr. 10, 2020). If his removal does come to pass, he may have an alleged constitutional injury

with a concomitant ability to file an action under Section 1983 raising substantially similar allegations

to the ones raised in his current complaint. In view of Plaintiff’s continued presence on the Springfield

Police payroll, his alleged constitutional injury is not ripe when reviewed under either prong of the

ripeness test. Accordingly, Counts I and II are dismissed without prejudice.

Plaintiff’s remaining claims, Counts III-VIII, all arise out of Massachusetts state law. “Given

the absence of jurisdiction over the federal law claims, the court will decline to exercise supplemental

jurisdiction over the state law claims.” Sexual Minorities Uganda v. Lively, 254 F. Supp. 3d 262, 270-71

(D. Mass. 2017), aff’d in part, appeal dismissed in part, 899 F.3d 24 (1st Cir. 2018). Plaintiff’s state claims

implicate novel and sensitive questions of state law. See Lambert v. Fiorentini, 949 F.3d 22, 29 (1st Cir.

2020) (noting it is appropriate to decline to exercise supplemental jurisdiction when the state law

claims are “novel or sensitive.”). Specifically, they implicate the sovereign prerogative of the

Commonwealth of Massachusetts to regulate the profession of policing to ensure the requisite “high

degree of judgment and discretion” necessary for a police officer to function in a free society. Foley v.

Connelie, 435 U.S. 291, 297-300 (1978); cf. Printz v. United States, 521 U.S. 898, 921-22 (1997) (explaining

the authority of the individual states to exercise control over local policing is an element of the

“[r]esidual state sovereignty [that] was also implicit [in the federal constitution].”).7 Thus, “it [is] more

prudent to allow a court of the Commonwealth of Massachusetts to take the lead.” Sexual Minorities

Uganda, 254 F. Supp. 3d at 271. Accordingly, Counts III-VIII are dismissed without prejudice.

Similarly, the court declines to exercise supplemental jurisdiction over Defendants’ Counterclaim II,

as this counterclaim raises novel questions of state law with respect to the fiduciary duties owed by

police officers to the municipalities in which they work. See, e.g., Broderick v. Talbot, No. CIV.A. 09-

11511-DJC, 2012 WL 4321355, at *9 (D. Mass. Sept. 20, 2012); Shen v. Biogen Idec Inc., 523 F. Supp. 2d

48, 57 (D. Mass. 2007). As no claims or counterclaims remain before the court, this action is dismissed

in its entirety without prejudice.

CONCLUSION

For the reasons set forth above, the court concludes it lacks subject matter jurisdiction over

Plaintiff’s federal claims and therefore dismisses those claims without prejudice in accordance with

Federal Rule of Civil Procedure 12(h)(3). The court also declines to exercise supplemental jurisdiction

7 As but one example, Plaintiff’s defamation claim asserts Superintendent Clapprood’s statements to

the P.O.S.T. Commission were defamatory. (Dkt. No. 1, ¶ 159-61.) However, as discussed, she was

required to provide these statements to the Commission by state regulation. This raises immediate

questions of privilege. These questions, arising out of new state regulatory scheme, are best addressed

in the first instance by state courts. Cf. Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 79 (1997) (warning

federal courts against unnecessary speculation on unsettled questions of state law).

over the remaining state-law claims and therefore dismisses those claims without prejudice as well.

Consequently, Plaintiff’s motion to dismiss for failure to state a claim (Dkt. No. 19), Plaintiff’s motion

for sanctions (Dkt. No. 23), and Defendants’ motion to dismiss for failure to state a claim (Dkt. No.

21) are DENIED without prejudice.

It is So Ordered.

_/s/ Mark G. Mastroianni________

MARK G. MASTROIANNI

United States District Judge