Courtemanche v. Motorola Solutions, Inc.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

JASON COURTEMANCHE, BRETT )

FORESMAN, JUAN RIOS, AND DENNIS )

WILLIAMS, on behalf of themselves and )

all others similarly situated, ) Civil No. 4:24-cv-40030-MRG

)

Plaintiffs, )

)

v. )

)

MOTOROLA SOLUTIONS, INC., )

CALLYO 2009 CORP., SHI )

INTERNATIONAL CORP., and )

COLONEL GEOFFREY D. NOBLE., )

Superintendent of the Massachusetts State )

Police, in his official capacity, )

)

Defendants. )

)

MEMORANDUM AND ORDER

GUZMAN, J.

I. BACKGROUND

The Court previously related the underlying facts in its memorandum and order on

Defendants’ motions to dismiss dated March 28, 2025. [MTD Order, ECF No. 72]. In that Order,

the Court denied a motion to dismiss brought by Massachusetts State Police Superintendent

Geoffrey Noble (hereinafter “MSP”). The Court rejected MSP’s assertion that it was entitled to

Eleventh Amendment sovereign immunity against Plaintiffs’ Section 1983 claim. [See MTD Order

at 35–37, 42–44]. The Court determined that Plaintiffs had standing and adequately alleged the

existence of valid prospective injunctive relief in the First Amended Complaint (“FAC”) [ECF No.

8], which allowed Plaintiffs to proceed against MSP in federal court under the doctrine set out in

Ex Parte Young, 209 U.S. 123 (1908). [See MTD Order at 35–37, 42–44].

On April 18, 2025, MSP initiated an appeal in the First Circuit of the MTD Order. [ECF

No. 75]. On April 25, 2025, MSP filed a motion for relief pursuant to Federal Rule of Civil

Procedure 60(b)(6). [ECF No. 83]. Subsequently, on May 2, 2025, MSP filed an emergency motion

to stay pending its appeal pursuant to Federal Rule of Appellate Procedure 8(a)(1)(A). [ECF No.

90]. On May 9, 2025, this Court denied those two motions by electronic order with written order

to issue. This memorandum of decision explains the Court’s reasoning for the denials.

II. JURISDICTION

The Court first considers whether it has jurisdiction to rule on MSP’s motions, ECF Nos.

83 & 90, and concludes that it does. The First Circuit Court of Appeals generally only has

jurisdiction to hear appeals of final judgments of the district court. Wadsworth v. Chuck Nguyen,

No. 23-1400, 2024 U.S. App. LEXIS 28778, at *3 (1st Cir. Nov. 13, 2024) (quoting Lee-Barnes

v. Puerto Ven Quarry Corp., 513 F.3d 20, 25 (1st Cir. 2008)); 28 U.S.C. § 1291. The MTD Order

denied MSP’s motion to dismiss Plaintiffs’ claim under 42 U.S.C. § 1983 (“Section 1983”), which

allowed the case to continue to trial. Hence, the MTD Order was not a final order. Nor did this

Court certify the Order as an interlocutory appeal under 28 U.S.C. § 1292(b). “As a general rule,

[the First Circuit] do[es] not grant interlocutory appeals from a denial of a motion to dismiss.”

Caraballo-Seda v. Municipality of Hormigueros, 395 F.3d 7, 9 (1st Cir. 2005) (citation omitted).

MSP contends its appeal to the First Circuit is proper under the collateral order doctrine as the

Court’s denial of MSP’s motion to dismiss was based on a determination of Eleventh Amendment

sovereign immunity. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139,

141 (1993); Espinal-Dominguez v. Puerto Rico, 352 F.3d 490, 496 (1st Cir. 2003). The Court will

leave the determination of whether appellate jurisdiction is appropriate for the First Circuit to

determine.

Even if MSP’s appeal is proper, this Court still has jurisdiction to decide MSP’s Rule 60(b)

motion:

Typically, “[t]he filing of a notice of appeal is an event of jurisdictional

significance—it confers jurisdiction on the court of appeals and divests the district

court of its control over those aspects of the case involved in the appeal.” Griggs v.

Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (per curiam). Under the

Federal Rules of Appellate Procedure, however, a notice of appeal filed while a Rule

60(b) motion is outstanding in the district court “becomes effective” only once that

motion is resolved. Fed. R. App. P. 4(a)(4)(B)(i); see also Fed. R. App. P. 4(a)(4)

advisory committee's note to 1993 amendment (“A notice [of appeal] filed . . . after

the filing of a motion [such as a Rule 60(b) motion] but before disposition of the

motion is, in effect, suspended until the motion is disposed of . . . .”).

Fontanillas-Lopez v. Morell Bauza Cartagena & Dapena, LLC, 832 F.3d 50, 63 n. 10 (1st Cir.

2016) (“The district court therefore acted within its jurisdiction in denying Fontanillas’s Rule 60(b)

motion and, consequently, we have jurisdiction over Fontanillas's properly noticed, see Fed. R.

App. P. 4(a)(4)(B)(ii), appeal of that denial.”). The First Circuit’s jurisdiction over MSP’s appeal

does not become effective until the Rule 60(b) motion is ruled on.

III. STAY PENDING APPEAL

Before reaching MSP’s Rule 60(b) motion, the Court turns to MSP’s motion for a stay

pending appeal, ECF No. 90. “A stay is an intrusion into the ordinary processes of administration

and judicial review, and accordingly is not a matter of right.” New Jersey v. Trump, 131 F.4th 27,

34 (1st Cir. 2025) (quoting Nken v. Holder, 556 U.S. 418, 427 (2009) (internal quotation marks

omitted)). The party seeking a stay – here, MSP – “bears the burden of proving that the

circumstances justify one.” Id. (citing Nken. 556 U.S. at 433–34). As a result, MSP must: “(1)

make a ‘strong showing that [it] is likely to succeed on the merits in its appeal; (2) show that it

‘will be irreparably injured absent a stay’; (3) show that ‘issuance of the stay will [not] substantially

injure the other parties interested in the proceeding’; and (4) show that the stay would be in ‘the

public interest.’” Id. at 34–35 (quoting Nken, 556 U.S. at 434). In conducting this analysis, “[t]he

first two factors . . . are the most critical.” Id. (quoting Nken, 556 U.S. at 434).

MSP fails to make a “strong showing that [it] is likely to succeed on the merits in its

appeal,” id., because its appeal asks the court to allow a declaration filed after the Order was

entered to supersede the reasonable conclusions this Court made based on a detailed reading of

the FAC with all inferences taken in favor of the Plaintiffs, as is required on a motion to dismiss.

Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir. 2010) (citing Valentin v. Hosp. Bella Vista,

254 F.3d 358, 363 (1st Cir. 2001)) (The district court “must credit the plaintiff’s well-pled factual

allegations and draw all reasonable inferences in the plaintiff’s favor”). Unlike a 12(b)(6) motion,

when considering a 12(b)(1) motion, the Court may consider materials beyond the pleadings to

determine jurisdiction. Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir. 2002). While the

Court has the freedom to consider jurisdictional evidence beyond the complaint, it is restricted to

evidence that “has been submitted[.]” See also Aversa v. United States, 99 F.3d 1200, 1210 (1st

Cir. 1996).

In this case, the underlying issue in dispute is whether Plaintiffs sufficiently alleged the

existence of valid prospective injunctive relief. The Court will not restate its entire reasoning from

the MTD Order here. See MTD Order at 35–44. Based on the record before the Court as was filed

when deciding the motion to dismiss, the Court determined that Plaintiffs had plausibly alleged

that MSP’s conduct was ongoing. As the Plaintiffs note, “the Court’s ruling was based on

additional ongoing acts and omissions by the MSP above and beyond the threat of future repetition

of the MSP’s wrongful conduct involving Callyo, such as MSP’s continuing obstruction of efforts

to investigate its actions and the existing Motorola server housing the MSP’s illicit recordings.”

[ECF No. 93 at 7; MTD Order at 42–43]. The Court held a hearing on the matter and asked counsel

for MSP directly if MSP has “gotten rid of” the Callyo apps. Counsel replied, “I don’t know[.]”

[Hr’g Tr. 35:10–12, ECF No. 70]. When asked if MSP has gotten rid of the evidence recorded

through the apps or the ability to record surreptitiously, counsel for MSP evaded the question and

stated, “I think that’s irrelevant.” [Id. 35:10–16]. In the MTD Order, the Court went on to state,

“[u]ntil there is proof or an unequivocal statement from MSP that it has completely terminated the

use of the Callyo apps for covert recordings and that every single covert recording already made

has been disclosed in any relevant criminal proceeding, the threat that MSP will engage in the

same conduct against Plaintiffs and others similarly situated is a live issue.” MTD Order at 42.

MSP had ample opportunity to establish in the record that it ceased and would not restart its

surreptitious recording practices. However, not until making its motion for relief under Rule 60(b),

after the issuance of the MTD Order, did MSP attempt to provide an unequivocal statement of

such. In support of the Rule 60(b) motion, MSP submitted a Declaration made under oath by

Lieutenant Colonel Daniel T. Tucker, stating that MSP has not conducted surreptitious audio

and/or video recordings without a court order or warrant since the Massachusetts Appeals Court’s

ruling in Commonwealth v. Du, 219 N.E.3d 843 (Mass. App. Ct. 2023). [See ECF No. 87-1]. The

Tucker Declaration further states, “[MSP] has no intention of resuming covert audio1 recordings

without court permission unless there is a change in state law which allows for such practice.” [Id.]

The assertions in the Tucker Declaration are inappropriate for the Court to consider now

as the Tucker Declaration was not before the Court in considering the motion to dismiss. Instead,

the Court properly took as true the facts as alleged in the FAC with all inferences made in favor of

the Plaintiffs. In doing so, the Court found that Plaintiffs have sufficiently alleged a risk of future

injury. In rejecting a defendant’s proffer at a motion to dismiss that it would not engage in future

conduct that plaintiffs sought to enjoin, another session of this Court warned, “[i]t is the duty of

the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform,

especially when abandonment seems timed to anticipate suit[.]” Trailblazhers Run Co. v. Bos. Ath.

Ass’n, No. 1:24-cv-10950-IT, 2025 U.S. Dist. LEXIS 51433, at *31 (D. Mass. Mar. 20, 2025)

(quoting E.E.O.C. v. Astra U.S.A., Inc., 94 F.3d 738, 745 (1st Cir. 1996). Like in Trailblazhers,

the Court finds the Tucker Declaration is irrelevant because it is not appropriate for the Court to

consider at this stage. As MSP’s appeal largely rests on the argument that the Tucker Declaration

makes Plaintiffs’ claim moot, MSP has failed to show that it is likely to succeed on the merits on

appeal.

MSP is likewise unable to meet the other factors for a stay pending appeal. MSP has not

shown it will suffer irreparable harm if the stay is denied. MSP relies on cases involving qualified

immunity, not sovereign immunity, to argue that it should be shielded from discovery. While it is

true that “avoidance of disruptive discovery is one of the very purposes for the official immunity

1 The Court notes that the Tucker Declaration fails to make the same disavowal of covert video

recordings, which MSP concedes were made using the 10-21 Callyo app. [See ECF No 87-1 ¶ 5].

doctrine,” Siegert v. Gilley, 500 U.S. 226, 236 (1991), discovery in this case would not be

disruptive. This litigation has been pending in federal court for over a year, and the MSP audit of

the covert recording practices occurred in June of 2023. [See FAC, Ex. A, ECF No. 8]. The Du

and Aponte decisions in Massachusetts state courts involved substantial discovery and evidentiary

hearings in the summer and fall of 2023 regarding MSP’s creation and usage of the covert

recordings at issue in this case. See Du, 219 N.E.3d 843; Commonwealth v. Aponte, No.

2216CR000495 (Mass. Dist. Ct. July 8, 2024). The Court will not define the scope of any

remaining discovery the Plaintiffs are seeking; however, it would likely pertain to Plaintiffs’

allegations of continued and future harm and MSP’s continued relationship with Motorola in using

Motorola’s server to house recordings. But, given that “the parties have already spent a great deal

of time and expense on discovery[,] ‘disruptive discovery’ will not be avoided because it has

[already] been completed.” See Diaz-Colon v. Toledo-Davila, 980 F. Supp. 2d 214, 218 (D.P.R.

2013). Accordingly, the Court is not persuaded that MSP will suffer irreparable harm if a stay is

denied and the second Nken factor weighs against MSP. On the other hand, if a stay were granted,

the Plaintiffs, who are otherwise ready for trial, would be harmed – although the Court does not

find their potential injury posed by a stay to be “substantial.” See New Jersey v. Trump, 131 F.4th

at 34 (quoting Nken, 556 U.S. at 434). Thus, the third Nken factor weighs in favor of MSP.

Turning now to the fourth Nken factor, the consideration of the public interest cuts against

a stay. Regarding immunity under the doctrine of qualified immunity, courts have recognized,

“[w]hile ‘there is a strong public interest in protecting public officials from the costs associated

with the defense of damages actions,’ . . . the same public interest is served by quick and efficient

resolutions of lawsuits against those officials and in which official immunity does not

apply.” Diaz-Colon, 980 F. Supp. 2d at 218 (quoting Crawford-El v. Britton, 523 U.S. 574, 590

(1998)). The same reasoning applies to cases involving sovereign immunity under the Eleventh

Amendment. Moreover, there is a presumption that the public has an interest in prompt resolution

of civil cases. See Fed. R. Civ. P. 1; Microfinancial, Inc. v. Premier Holidays Int’l, Inc., 385 F.3d

72, 79 n.4 (1st Cir. 2004)

As three of four of the Nken factors weigh against ordering a stay, the Court finds MSP

has not met its burden and its motion for a stay pending appeal, ECF No. 90, is DENIED.

IV. RELIEF UNDER RULE 60(b)

Rule 60(b) allows a court to “relieve a party . . . from a final judgment, order, or

proceeding” for certain specified reasons. Fed. R. Civ. P. 60(b) (emphasis added). The commentary

to Rule 60(b) makes clear that the rule applies only to final judgments and orders, not interlocutory

judgments. Notes of Advisory Committee on Rules, Fed. R. Civ. P. 60(b) (“the qualifying word

‘final’ emphasizes the character of the judgments, orders or proceedings from which Rule 60(b)

affords relief; and hence interlocutory judgments are not brought within the restrictions of the

rule”). As Plaintiffs assert, federal courts in other jurisdictions agree with this conclusion. See,

e.g., Datiz v. Int’l Recovery Assocs., No. 15-cv-3549 (ADS)(AKT), 2017 U.S. Dist. LEXIS 2477,

at *5-7 (E.D.N.Y. Jan. 4, 2017) (“[I]n the present case, the Court’s order denying the Defendant’s

motion to dismiss was not final because it allowed the case to continue to trial. Therefore, Rule

60(b) is inapplicable in this case.”); Hafferman v. Westinghouse Elec. Corp., 653 F. Supp. 423,

426 (D.D.C. 1986) (“Rule 60(b) has no bearing in this case, however, because it only deals with

final orders. Denial of a motion to dismiss . . . is clearly not a final order.”). The proper procedural

vehicle to challenge “an interlocutory district court decision dismissing portions of a complaint”

is a “routine request for reconsideration[.]” Greene v. Union Mut. Life Ins. Co. of Am., 764 F.2d

19, 22 (1st Cir. 1985). Because the MTD Order was not a final order, MSP’s Rule 60(b) motion is

procedurally improper and ECF No. 83 is DENIED. Having now ruled on the Rule 60(b) motion,

MSP’s notice of appeal is triggered and becomes effective, divesting this Court of further

jurisdiction to rule on any aspects of the case involved in the appeal. See Fontanillas-Lopez, 832

F.3d at 63 n. 10. Accordingly, the Court declines to consider the merits of a hypothetical motion

for reconsideration.

V. CONCLUSION

For the reasons stated above, ECF Nos. 90 & 83 are DENIED.

SO ORDERED.

Dated: May 12, 2025

/s/ Margaret R. Guzman

Margaret R. Guzman

United States District Judge