Mazza v. City Of Boston

United States District Court

District of Massachusetts

)

Anthony MAZZA )

)

Plaintiff, )

)

v. ) Civil Action No.

) 24-10333-NMG

CITY OF BOSTON et al. )

)

Defendants. ))

)

)

MEMORANDUM & ORDER

GORTON, J.

This action arises out of a purported wrongful conviction

for murder. Pending before the Court are 1) a motion of

defendant, the City of Boston (“the City”), to dismiss the

complaint; 2) a motion of plaintiff, Anthony Mazza

(“plaintiff”), to compel the City to accept service on behalf of

deceased officers and detectives of the Boston Police Department

(“BPD”), Edward Kennealy, James Malamphy, Jerome McCallum, John

Murray, Frank Olbrys, John Spencer, Edward Sherry, and George

Whitley (collectively, “the officers”); and 3) a motion of

plaintiff to extend the time for service of process.

For the reasons that follow, the motion to dismiss will be

allowed, in part, and denied, in part; and the motions to serve

and to extend time for service will be denied.

I. Background

In 1972, Peter Armata was robbed and murdered in an

apartment belonging to Robert Anderson (“Anderson”). Four days

later, police arrested Anderson and charged him with the murder.

After his arrest, Anderson spoke with two BPD detectives, Edward

Sherry and Jerome McCallum, and inculpated plaintiff. Plaintiff

was subsequently charged with murder.

After plaintiff’s arrest, BPD detectives Frank Olbrys and

Edward Kennealy interviewed Anderson’s brother, William. During

that interview, he claimed that Anderson, not plaintiff, was

responsible for the murder. According to plaintiff, neither he

nor his counsel ever received the tape or transcript of that

interview. In 1973, plaintiff was tried for murder, found

guilty, and sentenced to life in prison. The Massachusetts

Supreme Judicial Court (“the SJC”) declined to disturb his

sentence on appeal. See Commonwealth v. Mazza, 313 N.E.2d 875

(Mass. 1974).

Two decades later, in the 1990s, plaintiff learned of the

statements Anderson’s brother had made to the police that

incriminated Anderson and exculpated plaintiff. After a

convoluted legal dispute, plaintiff received a transcript of the

statement in 2005. Based on that statement, the SJC granted

plaintiff a new trial in 2020. See Commonwealth v. Mazza, 142

N.E.3d 579, 581 (Mass. 2020). The Commonwealth, however,

declined to re-prosecute the charge and plaintiff succeeded in

having the conviction expunged from his record.

In 2024, plaintiff filed a complaint in this Court against

the City and the officers, all of whom plaintiff avers are

deceased. Plaintiff asserts six counts against the City and the

officers, all brought under 42 U.S.C. §1983: 1) deliberate

suppression of material evidence, 2) malicious prosecution, 3)

conspiracy to deprive constitutional rights, 4) failure to

intervene, 5) supervisory liability, and 6) a Monell claim.

Plaintiff variously alleges that the City is responsible for the

officers’ actions based on indemnification, under respondeat

superior, and because the City maintained policies and practices

that deprived plaintiff of constitutional rights.

Now, the City moves to dismiss these claims for lack of

subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) and

for failure to state a claim under Fed. R. Civ. P. 12(b)(6).

Plaintiff, in turn, moves to compel the City to accept service

on behalf of the officers based on M.G.L. c. 190B §3-803, as

applicable here pursuant to 42 U.S.C. §1988. Plaintiff also

moves to extend the time to complete service of process for up

to 14 days after the issuance of an order. The Court will

address resolution of the pending motions in turn.

II. Motion to Dismiss for Lack of Subject Matter Jurisdiction

The City first moves to dismiss for lack of subject matter

jurisdiction because it claims plaintiff has no standing to hold

the City directly responsible for the officers’ actions by way

of indemnification. Plaintiff, in his opposition to that

motion, does not directly challenge the assertion of lack of

standing but instead suggests that his indemnification claim is

“mere surplusage” that the Court can disregard.

Generally, an opposition to a motion to dismiss is “not

the proper vehicle” to alter the allegations made in a

complaint. Michel v. LoanCare, LLC, No. CV 21-11018-FDS, 2022 WL

355866, at *7 n.7 (D. Mass. Feb. 7, 2022). On at least one

occasion, however, another session of this Court has allowed a

plaintiff in a reply to a motion to dismiss to clarify his

complaint. Johnson v. Brown & Williamson Tobacco Corp., 122 F.

Supp. 2d 194, 208 n.1 (D. Mass. 2000). In Johnson, plaintiff’s

complaint had alleged a claim of “true conspiracy” in addition

to “joint liability” against defendant. Id. In response to

defendant’s motion to dismiss, plaintiff clarified that he

sought only to claim a “joint liability civil conspiracy.” Id.

The Court treated the “true conspiracy” aspect of plaintiff’s

complaint as “mere surplusage.” Id.

Plaintiff’s complaint here expressly alleges that the City

is “obligated to indemnify” the officers. Given that his

response to the City’s motion unambiguously disclaims any right

to indemnification, this Court will follow the logic in Johnson

and accept those allegations as mere surplusage and hereinafter

disregard them. See 122 F. Supp. 2d at 208 n.1. It remains only

to determine whether the balance of plaintiff’s complaint,

absent a claim against the City for indemnification, states a

viable claim at law. See Garcia v. Fantauzzi, 20 F.2d 524, 527

(1st Cir. 1927) (recognizing that even where complaint is

“imperfectly drawn and contains superfluous and irrelevant

allegations . . . [a] general demurrer [i.e., a motion to

dismiss] cannot be sustained . . . if, fairly construing the

complaint, a case is stated”).

III. Motion to Dismiss for Failure to State a Claim

The City next moves to dismiss plaintiff’s complaint for

failure to state a claim. Because that motion concerns only

claims brought against the City, the Court also disregards

Counts 1 through 6 against the officers, the BPD and any other

defendants individually, and addresses only the §1983 claims of

municipal liability against the City. See Coulsey v. Option One

Mortg. Corp., No. 15-CV-10471-MGM, 2016 WL 8710881, at *1 (D.

Mass. Sept. 30, 2016) (confining discussion of motion to dismiss

only to claims brought against moving party).

To survive a motion to dismiss, a plaintiff complaint must

contain factual matter sufficient to state a claim for relief

that is actionable as a matter of law and “plausible on its

face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is

plausible if, after accepting as true all non-conclusory factual

allegations, the Court can draw the reasonable inference that

the defendant is liable for the misconduct alleged. Ocasio-

Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). In

considering the merits of a motion to dismiss, the Court must

accept all factual allegations in the complaint as true and draw

all reasonable inferences in the plaintiff’s favor. R.G. Fin.

Corp. v. Vergara-Nunez, 446 F.3d 178, 182 (1st Cir. 2006).

The requirements for bringing a §1983 claim against a

municipality are articulated by the United States Supreme Court

in Monell v. Department of Social Services of City of New York,

436 U.S. 658 (1978), in which the Court held that

[A] municipality cannot be held solely liable because it

employs a tortfeasor [and thus] cannot be held liable under

§1983 on a respondeat superior theory [for the actions of

its agents, employees, officers, or the like].

Id. at 691 (emphasis in original). A municipality can, however,

be held liable if an “official policy” or practice of the

municipality “cause[d] an employee to violate another’s

constitutional rights.” Id. (internal quotations omitted). This

limitation on municipal liability under §1983, as recognized by

the Supreme Court in Monell, stemmed from

[C]oncern[] that municipal liability based on fault by the

City [would] collapse into de facto respondeat superior.

Young v. City of Providence ex rel. Napolitano, 404 F.3d 4, 26

(1st Cir. 2005).

A. Direct Liability Against the City

Plaintiff’s §1983 claims, under Counts 1 through 6, first

advance allegations of direct liability against the City. His

complaint asserts that the City is liable under “the doctrine of

respondeat superior” for the officers’ alleged wrongs, namely,

depriving plaintiff of his constitutional rights by failing to

disclose the exculpating statements made by Anderson’s brother.

That claim is incorporated by reference into Counts 1 through 6

of the complaint. Counts 1 and 6 further reiterate direct

allegations of liability against the City for the actions taken

by the City’s “officers, agents, and employees.”

The Monell decision effectively precludes the direct

liability of the City on those counts. It is well settled that

plaintiff cannot, per Monell, “hold [the City] liable under a

theory of respondeat superior.” Board of Cty. Comm’rs v. Brown,

520 U.S. 397, 403 (1997). Accordingly, plaintiff’s assertions

that the City is directly responsible for the actions of the

officers fails as a matter of law against the City.

Specifically, Count 5 fails because it addresses only the

actions of the officers and supervisors of the BPD. A §1983

claim against a police department is not, however, the same as a

claim against a municipality. Cf. Henschel v. Worcester Police

Dept., 445 F.2d 624, 624 (1st Cir. 1971) (dismissing §1983 suit

because it was brought against police department rather than

municipality itself). Similarly, all aspects of Counts 1

through 4 and 6 that allege any form of direct liability against

the City based upon actions of its “officers, agents, and

employees” likewise fail because the City is not directly

responsible for the actions of its officers or supervisors. See

Monell, 436 U.S. at 692 (holding that municipality is “not

responsible for the . . . unlawful acts of its officers”).

B. Indirect Liability Under Monell

In addition to his assertion of direct liability against

the City, plaintiff contends, in Counts 1 through 4 and 6, that

the alleged violations of his constitutional rights result from

1) the City’s policies, regulations and procedures and 2) the

City’s practices in failing to train and supervise its officers.

Cf. Haley v. City of Boston, 657 F.3d 39, 51-52 (1st Cir. 2011)

(recognizing claims based on policies and allegations of failure

to train and supervise as separate forms of Monell liability).

For reasons that are unclear, plaintiff asserts claims against

the City’s policies and practices in Counts 1 through 4 and 6

but limits its reference to a “Monell claim” to Count 6.

Nevertheless, the effect of these allegations is an expansive,

multi-part Monell claim. See Torres Ramirez v. Bermudez Garcia,

898 F.2d 224, 226–27 (1st Cir. 1990) (“It is not fatal to a

complaint that a legal theory has been mischaracterized.”).

1. Alleged Unconstitutional Policies

To successfully impose Monell liability on a municipality

for its policies and practices, a plaintiff must first show that

the alleged deprivation of constitutional rights occurred as a

result of the municipality’s “policy or custom.” DiRico v. City

of Quincy, 404 F.3d 464, 468–69 (1st Cir. 2005); Freeman v. Town

of Hudson, 714 F.3d 29, 38 (1st Cir. 2013) (quoting Monell, 436

U.S. at 694). This in effect requires proof of a causative link

between the municipality’s policy or practice and the harm the

plaintiff alleges. See Bordanaro v. McLeod, 871 F.2d 1151, 1156

(1st Cir. 1989) (collecting cases requiring causative link).

The plaintiff must also demonstrate that

[The] municipal decisionmakers knew or should have known

[that the policy was inadequate but] nonetheless exhibited

deliberate indifference to the unconstitutional effects of

those inadequacies.

Echavarria v. Roach, 565 F. Supp. 3d 51, 91 (D. Mass. 2021)

(quoting Gray v. Cummings, 917 F.3d 1, 14 (1st Cir. 2019)).

Here, plaintiff contends that officers withheld exculpatory

evidence from him, namely the statement made by Anderson’s

brother, conspired to prosecute and deprive him of his rights,

and failed to intervene on his behalf. Regarding the witness

statement, plaintiff blames his conviction on the City, whose

policies, regulations, rules, and practices he alleges were

prejudicial. Moreover, plaintiff claims that municipal

authorities had notice of police misconduct yet allowed it to

continue with deliberate indifference to the harm caused.

Such allegations are analogous to those in Haley v. City of

Boston and are therefore sufficient to state a plausible Monell

claim. In Haley, plaintiff claimed the BPD withheld exculpatory

statements made by his sister and that the withholding was

pursuant to standing BPD policy. Haley, 657 F.3d at 52.

Plaintiff’s complaint contrasted the policy with that of the

district attorney’s office, which purportedly had a policy of

disclosing all exculpatory evidence as required, and asserted

that the difference caused his conviction. Id. (citing Brady v.

Maryland, 373 U.S. 83 (1963)). On these facts, the First

Circuit recognized the Monell claim as plausible. See id.

(determining valid Monell claim based on claim that police

withheld “statements . . . pursuant to a standing BPD policy,

under which . . . officers regularly kept helpful evidence from

criminal defendants,” and which caused a “wrongful conviction”).

Contrary to the City’s assertion, plaintiffs are not

required to detail the alleged unconstitutional policies with

specificity at the pleading stage. Compare Cosenza v. City of

Worcester, 355 F. Supp. 3d 81, 91 (D. Mass. 2019) (finding

sufficient facts to allege Monell claim under Haley where

plaintiff alleged that a widespread policy caused constitutional

violations), with McClinton v. City of Boston, No. CV 19-11235-

LTS, 2020 WL 1245307, at *2 (D. Mass. Mar. 16, 2020) (finding

insufficient facts to allege Monell claim under Haley where

plaintiff failed to connect his constitutional violation to

allegations of any municipal policy or practice).

2. Alleged Failure to Train and Supervise

To demonstrate a Monell claim based on a failure to train,

a plaintiff must show that

[M]unicipal decisionmakers either knew or should have known

that training was inadequate but nonetheless exhibited

deliberate indifference to the unconstitutional effects of

those inadequacies.

Haley, 657 F.3d at 52. Deliberate indifference typically

requires a “pattern of similar constitutional violations.”

Aprileo v. Clapprood, No. 3:21-CV-30114-MGM, 2024 WL 3430855, at

*9 (D. Mass. May 21, 2024) (citing Connick v. Thompson, 563 U.S.

51, 62 (2011)), report and recommendation adopted, No. CV 21-

30114-MGM, 2024 WL 3665802 (D. Mass. Aug. 6, 2024); Hill v.

Walsh, 884 F.3d 16, 24 (1st Cir. 2018). Thus, “isolated

instances of unconstitutional activity” are often “insufficient

to establish . . . deliberate indifference.” Maldonado-Denis v.

Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir. 1994).

Plaintiff here claims that the officers’ unconstitutional

actions resulted from the City’s failure properly to train and

supervise its officers on appropriate procedures, namely the

proper handling of evidence and witness interviews. Cf. Haley,

657 F.3d at 51-52 (recognizing claims based on failure to train

and supervise as alternative argument to claim of

unconstitutional policy under Monell). Plaintiff contends that

the City was responsible for training its officers and that the

City’s failure adequately to train or supervise them caused the

alleged unconstitutional withholding of evidence.

Such allegations, unlike plaintiff’s more general claims

with respect to the City’s policies, fail to survive the City’s

motion to dismiss. Plaintiff has not alleged anything that

would amount to “deliberate indifference,” as the First Circuit

has defined it. See Maldonado-Denis, 23 F.3d at 582.

Specifically, his complaint fails to allege that his harm is

related in any way to a history of recurring rights violations,

nor does he claim another instance of an unconstitutional

withholding of evidence or improper interview that would

constitution a Monell violation. See Aaron v. City of Lowell,

No. 20-CV-11604-ADB, 2022 WL 2953033, at *4 (D. Mass. July 26,

2022) (finding insufficient facts to allege Monell claim where

plaintiff failed to show pattern of conduct); Qualls v. Roache,

No. CV 23-10435-GAO, 2024 WL 1333610, at *2 (D. Mass. Mar. 28,

2024) (finding failure to establish Monell claim based

allegation of plaintiff’s own injury without pattern of

conduct). While there are instances where a violation is “so

obvious” that a failure to train is self-evident, plaintiff

makes no assertion that this is such a case. Hill, 884 F.3d at

24 (citing City of Canton v. Harris, 489 U.S. 378, 390 (1989)).

Instead, as courts have recognized, the criteria for liability

in failure-to-train cases are “exceptionally stringent” and

difficult to prove, and the instant case is no exception.

Hayden v. Grayson, 134 F.3d 449, 456 (1st Cir. 1998); see

Connick, 563 U.S. at 61 (“A municipality’s culpability for a

deprivation of rights is at its most tenuous where a claim turns

on a failure to train.”).

Because failure-to-supervise claims are subject to the same

stringent standard as failure-to-train claims, plaintiff’s

allegation that the City is liable for failure to supervise is

equally unavailing. See Consolo v. George, 835 F. Supp. 49, 51

n.1 (D. Mass. 1993) (“Although the Supreme Court cases only

discuss failure to train claims, this Court has held that the

same standard is equally applicable to failure to supervise.”).

Allegations of one’s own injury, unmoored from a pattern of

conduct by the municipality, thus cannot support a Monell claim

on a theory of failure either to train or supervise. Cf. Haley,

657 F.3d 39 at 52 (finding Monell claim for failure to train and

supervise plausible based on “volume of [similar] cases”).

III. Motion to Serve

Plaintiff next moves to compel the City to accept service of

process on behalf of the officers. Under the statute plaintiff

cites, a claim of personal injury brought against a deceased

individual can be served on that individual’s personal

representative if the action is filed within one year of the

individual’s death. M.G.L. c. 190B §3-803(a). After that

allotted time, a claim can be brought only if:

1) [T]he action is commenced not later than 3 years after

the . . . action accrues [and] 2) any judgment recovered

. . . [will] only be satisfied from the proceeds of a

policy of liability bond or liability insurance.

Id. If no personal representative has been appointed, the

plaintiff can

[N]ame the decedent[s] as the defendant[s] [directly, and]

any service of process that may be necessary [can

effectively be] made upon the entity providing the

[liability] insurance or bond.

M. G. L. c. 190B §3-803(d)(2).

There is no dispute here among the parties that plaintiff’s

action, a §1983 claim, is a personal injury claim under

Massachusetts law. See Pomeroy v. Ashburnham Westminster

Regional School Dist., 410 F. Supp. 2d 7, 12-14 & n.5 (D. Mass.

2006) (holding that courts treat §1983 claim “as a claim for

personal injury under Massachusetts law” (internal quotations

omitted)). The parties likewise do not appear to contest that

this action was timely commenced. Thus, the only dispute is

whether the City is subject to a “policy of liability bond or

liability insurance” for the officers’ actions and, as such, is

eligible to be served on the officers’ behalf. Plaintiff argues

that the City is subject to such service pursuant to §3-

803(d)(2) because a liability bond is required under the

indemnification clause in its Collective Bargaining Agreement

(“CBA”) with the BPD.

A. Form of Indemnification

The parties dispute at the outset the form of

indemnification applicable to the City. Massachusetts law

provides two forms of indemnification to which municipalities

may be subject. Under M.G.L. c. 258, §9, municipalities

[M]ay indemnify public employees . . . from personal

financial loss [that arises out of any claim based on

violations] of the civil rights of any person under any

federal or state law.

(emphasis added). It is well settled that this form of

indemnification is permissive such that a municipality can

choose to indemnify the individual but is not obligated to do

so. See Triplett v. Town of Oxford, 791 N.E.2d 310, 315 (Mass.

2003) (indicating that municipalities have “discretion to

indemnify public employees” under §9). By contrast, under

M.G.L. c. 258, §13, a public employer “shall indemnify” certain

persons. (emphasis added). Once a municipality authorizes

indemnification under §13, it becomes mandatory. See Williams

v. City of Brockton, No. CIV.A. 12-10430-JGD, 2013 WL 254778, at

*6 (D. Mass. Jan. 23, 2013) (contrasting indemnification under

§9 and §13 and indicating that the latter form is “mandatory”).

Here, plaintiff’s complaint asserts that indemnification

under §13 applies, while the City’s motion to dismiss contends

§9 is applicable. After due consideration, the Court concludes

there is no support for plaintiff’s assertion. Plaintiff in

fact later produced an agreement demonstrating that the CBA

indemnifies police officers only “to the extent permitted by

M.G.L. c. 258, §9” (emphasis added). As a result, the Court is

satisfied that the City is subject to §9, not §13.

Nevertheless, plaintiff contends that the language in the

CBA indemnifying officers to the extent allowed by §9 imposes

mandatory indemnification on the City. To the contrary,

however, that language makes indemnification permissive, not

mandatory, and permits the City to indemnify or not on a case-

by-case basis. Cases from other sessions of this Court and

state court have interpreted nearly identical provisions

similarly. See Williams v. City of Brockton, No. CIV.A. 12-

10430-JGD, 2013 WL 254778, at *8 (D. Mass. Jan. 23, 2013)

(finding contractual provision that required “indemnification

. . . as per M.G.L. c. 258, §9” left city with “discretion to

determine whether to indemnify its officers on a case-by-case

basis”); City of Bos. v. Bos. Police Patrolmen’s Ass’n, Inc.,

717 N.E.2d 667, 668 (Mass. App. Ct. 1999) (indicating that

contractual provision obligating city to indemnify officers “to

the extent permitted by [M.]G.L. c. 258, §9” would leave city

with “discretionary power to decide whether to indemnify on a

case-by-case basis”).

Moreover, the CBA itself precludes reading its §9

indemnification as mandatory. If the CBA had intended make

indemnification mandatory, it could have so provided by relying

on §13 or otherwise. It did not do so, and this Court cannot

read into the CBA a more extensive indemnification than the

parties bargained for. See McCormick v. Lischynsky, 539 F. Supp.

3d 225, 243 (D. Mass. 2021) (recognizing that courts “may not

read into an agreement terms that are not reasonably encompassed

by the language of the agreement itself”). In the absence of a

specific disclaimer of discretion, the City retains it. See

Williams, 2013 WL 254778, at *4 (finding claim that §9 “mandates

indemnification” to be “inconsistent with the statutory

language”); see also Stull v. Town of Weymouth, No. CIV.A. 11-

11549-JLT, 2013 WL 5592605, at *6 (D. Mass. Oct. 9, 2013)

(indicating that “[§] 9 . . . permits but does not require a

municipality to indemnify its employees . . . .”).

B. Indemnification as a Liability Bond

Having determined that the City is subject only to the

discretionary form of indemnification under §9, the only

remaining question is whether such indemnification is a

“liability bond” for purposes of §3-803(d)(2). That issue is

one of first impression. Cf. Weichel v. Town of Braintree, No.

1:20-CV-11456-IT, 2022 WL 17852109, at *1-2, *4 (D. Mass. Dec.

22, 2022) (recognizing but not resolving issue of whether §9

indemnification creates “policy of liability bond”).

Different sessions of this Court have concluded that

indemnification under §13 is a “policy of liability bond” for

purposes of §3-803(d)(2). See Rosario v. Waterhouse, No. 1:19-

cv-10532-LTS, 2019 WL 4765082, at *2 (D. Mass. Sep. 27, 2019)

(“[T]he City’s obligation [under §13] must be understood as a

policy of liability bond within the meaning of [§3-803](d)(2).”

(internal quotations omitted)); Cifizzari, 2024 WL 869149, at *4

(“[A t]own’s indemnification obligation under . . . §13 is a

policy of liability bond.” (internal quotations omitted)). As

the court explained in Rosario, the term “liability bond” is not

defined within the statute itself and therefore is assumed to

retain its plain, ordinary meaning. 2019 WL 4765082, at *3 (D.

Mass. Sept. 27, 2019) (citing Casey v. Mass. Elec. Co., 467

N.E.2d 1358, 1362 (Mass. 1984)). In defining that term’s

ordinary meaning, Rosario relied on dictionary definitions of

the terms “bond” and “liability bond” respectively. Rosario,

2019 WL 4765082, at *3 (D. Mass. Sept. 27, 2019) (quoting

Black’s Law Dictionary 200-01 (9th ed. 2009))). Based on these

definitions, Rosario classified mandatory indemnification under

§13 as a policy of liability bond under §3-803(d)(2). 2019 WL

4765082, at *3 (citing Echavarria v. Roach, No. 16-CV-11118-ADB,

2017 WL 3928270, at *14 n.14 (D. Mass. Sept. 7, 2017)).

As applied to §9 indemnification, however, this session

finds the interpretation of “liability bond” in Rosario to be

inconsistent with the prevailing meaning of liability bond. The

term liability bond has long been defined as a promise to pay a

victim directly for a wrongdoer’s alleged harm. In re Opinion of

the Justs., 147 N.E. 681, 686 (Mass. 1925); Flaherty v.

Travelers Ins. Co., 340 N.E.2d 888, 890 n.1 (Mass. 1976).

Indemnification, by contrast, creates a promise to reimburse the

wrongdoer after the victim has already brought a claim and held

him responsible for the injury he caused, not to pay the victims

themselves. Rathbun v. W. Massachusetts Elec. Co., 479 N.E.2d

1383, 1385 (Mass. 1985); Stull v. Town of Weymouth, No. CIV.A.

11-11549-JLT, 2013 WL 5592605, at *6 (D. Mass. Oct. 9, 2013);

see Barry v. Keeler, 76 N.E.2d 158, 165 (Mass. 1947) (collecting

cases). This distinction has long been recognized by other

jurisdictions. See, e.g., Twichell v. Hetzel, 64 P.2d 557, 560

(Kan. 1937) (contrasting promise to indemnify with “liability

bond”); Gooschin v. Mercer Cas. Co., 34 P.2d 435, 436 (Wash.

1934) (same); Fenton v. Poston, 195 P. 31, 33 (Wash. 1921)

(same); see also, e.g., Tulchinsky v. Pub. Serv. Mut. Cas. Ins.

Corp., 282 N.Y.S. 944, 946 (App. Div. 1935) (distinguishing

between promise to indemnify and promise of liability coverage).

Given the distinction between the accepted legal

definitions of liability bond and indemnification, it would be

inconsistent with the plain text of the statute to read

“liability bond” as encompassing a promise to indemnify. See

Ellis v. Ford Motor Co., 628 F. Supp. 849, 854 (D. Mass. 1986)

(assuming legislature intends for statutory terms to be read

consistently with their accepted legal meaning); see also

Benitez-Pons v. Com. of Puerto Rico, 136 F.3d 54, 64 (1st Cir.

1998) (indicating courts cannot “read into [statutes] a meaning

that directly conflicts with the intent of the legislature”).

Indeed, it is not for this Court to insert promises of

indemnification into §3-803(d)(2) where the Legislature

specifically limited recovery to liability bonds and liability

insurance. See L.F.O.P. v. Mayorkas, 656 F. Supp. 3d 274, 279

(D. Mass. 2023) (“This Court cannot read words into [a] statute

that are not there.”). Accordingly, the Court finds that §9

indemnification, applicable here via the CBA, cannot be

classified as a liability bond for purposes of §3-803(d)(2).

Because the City does not owe the officers a liability bond

for their alleged actions, the requirements for service under

§3-803(d)(2) have not been met. Therefore, plaintiff cannot

compel the City to accept service on behalf of the officers.

IV. Motion to Extend Time for Service

Plaintiff finally moves for an extension of time to

complete service. Under Fed. R. Civ. P. 4(m), a district court

may extend the 90-day period for serving summons “if the

plaintiff shows good cause” for his failure to serve a defendant

within the required 90 days. Good cause is likely to be found

[W]hen the plaintiff’s failure to complete service in

timely fashion is a result of a third person . . . the

defendant has evaded service of the process or engaged in

misleading conduct, [or] the plaintiff has acted diligently

in trying to effect service or there are understandable

mitigating circumstances[.]

McIsaac v. Ford, 193 F. Supp. 2d 382, 383 (D. Mass. 2002)

(quoting Wright & Miller, 3 Federal Practice & Procedure §1137

(2002)). Even in the absence of good cause, a court may still

“exercise its discretion to enlarge the time for service.” Bell

v. Rinchem Co., Inc., 2014 WL 11290899, at *4 (D. Mass. Mar. 10,

2016).

Here, plaintiff concedes that the officers themselves

cannot be served because they have all been deceased for more

than one year. Nevertheless, plaintiff claims that there is

good cause to extend the deadline for serving process based on

his argument that the City is the appropriate recipient of

service on behalf of the officers. As determined above,

however, the City is not required to accept such service and

there is no other entity available. Accordingly, there is no

reason to extend the time for plaintiff to effectuate service.

ORDER

For the foregoing reasons:

A. The City’s motion to dismiss (Docket No. 8) is:

1) as to Count 5 and all aspects of Counts 1 through 4

and Count 6 that allege claims against the City

under respondeat superior and for failure to train

and supervise under Monell, ALLOWED, but

2) as to all other aspects of Counts 1 through 4 and

Count 6 that allege liability against the City under

Monell based on constitutional violations resulting

from the City’s deliberate indifference to known

widespread policies, DENIED.

B. Plaintiff’s motion to serve (Docket No. 13) is DENIED.

C. Plaintiff’s motion for extension of time for service

(Docket No. 22) is DENIED.

So ordered.

/s/ Nathaniel M. Gorton

Nathaniel M. Gorton

United States District Judge

Dated: October 15, 2024