# Mazza v. City Of Boston

> District Court, D. Massachusetts · October 15, 2024

URL: https://www.frixlaw.com/law-library/cases/10649349

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** October 15, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10649349

## How later opinions describe it (automated extraction)

- holding that municipality is “not responsible for the . . . unlawful acts of its officers”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10649349. Public record. Not legal advice.