# Motion to Dismiss — Hub Theatres, Inc. v. Massachusetts Port Authority > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0509%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion to Dismiss - **Published:** January 1, 1976 - **Citation:** 429 U.S. 891 ## Text gn The Supreme Court Of The Anited States Octoser TERM, 1976 No. 76-281 HUB THEATRES, INC., ASPEN REALTY, INC., SUFFOLK CONCESSIONS, INC., Appellants V. MASSACHUSETTS PORT AUTHORITY, Appellee On Appeal from the Supreme Judicial Court of Massachusetts MOTION TO DISMISS Georce C. Caner, JR. Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 (617) 423-6100 PRESS OF GEORGE H. DEAN CO., BOSTON In The Supreme Court Of The Anited States Ocroser Term, 1976 No. 76-281 HUB THEATRES, INC., ASPEN REALTY, INC., SUFFOLK CONCESSIONS, INC., Appellants v. MASSACHUSETTS PORT AUTHORITY, Appellee On Appeal from the Supreme Judicial Court of Massachusetts MOTION TO DISMISS The appellee Massachusetts Port Authority moves to dismiss the appeal on the grounds that the Court lacks jurisdiction under 28 U.S.C. § 1257(2), the statute invoked by the appellants (Jur. St. 2), that the appeal does not present a substantial federal question, that the purported federal question presented was not timely or properly raised, that the judgment | ‘ow rests on an adequate non- federal basis, and that the appeal does not comply with the rules of this Court, particularly Rule 15(1)(d). The Supreme Judicial Court of Massachusetts affirmed the dismissal of the action on the pleadings by the Massa- 2 chusetts Superior Court. The plaintiffs had commenced an action in tort against the Massachusetts Port Authority, created by an Enabling Act (Chapter 465 of the Massachu- setts Acts of 1956) which directed it, as successor to the state, to maintain and operate Logan Airport, on the ground that flights over the plaintiffs’ theatre were the responsi- bility of the Authority, constituted a nuisance,’ and entitled the plaintiffs to recover three million dollars from the de- fendant. The Authority demurred to the writ and declara- tion and set up the bar of its Enabling Act. R. 4 The appellants say that “[t]he issue in the case from the very outset has been whether or not the state has the power to legislatively sanction . . . a substantial nuisance ... Without the payment of just compensation”. Jur. St. 5. The truth of the matter is that they never pitched their damage claim on the Fourteenth Amendment or any other provision of federal law until such a position became a prerequisite of further judicial review. The plaintiffs’ dec- laration (R.1-3) does not rely upon any constitutional pro- vision. The decision of the Superior Court dismissing the 1 The opening sentences in the plaintiffs’ Supreme Judicial Court (SJC) brief were as follows: “It may be properly inferred that the facts set forth in the Plaintiffs’ Declaration wherein it is alleged that jet aircraft operating below safe navigable air space over an outdoor theatre, emitting noxious fumes and ear-splitting noise with attendant tremendous vibrations and other undesirable operations, would totally interfere with the exhibition and enjoyment of motion pictures by patrons of said outdoor theatre. Such conduct if proven by the Appellants, would certainly warrant the finding of a nuisance.” The appellee has requested that the clerk of the Supreme Judicial Court forward to this Court the record of the proceedings below and the briefs of the parties. Citations are to those materials. eo 3 action on the “clear principle of Massachusetts law that what the Legislature has authorized or directed cannot be a nuisance or trespass” (R.7) does not refer to any issue of whether the federal constitution confers a right to compen- sation for an alleged “nuisance” of this kind, not amounting to a taking. The appellants’ SJC briefs made no such con- tention, leading the Authority in its brief to observe without contradiction that “(t]he constitutionality of the compre- hensive legislation embodying this judgment [that the air- port is not a public nuisance but a public benefit] has at all times been affirmed by our courts and is not challenged in this suit.” Def. Br. 7-8; compare the plaintiffs’ reply brief which takes no exception to this statement. The opinion of the Supreme Judicial Court recognizes no such issue. See Jur. St. 9-13. The plaintiffs’ Petition for Rehearing (letter to Hennessey, C. J. of April 28, 1976) makes no claim that the Enabling Act as construed violates the Fourteenth Amendment, but rather maintains that the declaration was sufficient as a matter of state law falling within the excep- tion mentioned in the SJC opinion for unreasonable and unnecessary activities. Coincidentally, the appellants have discovered their Fourteenth Amendment argument just at the point when it is the only argument statutorily review- able. The passage in the Authority’s SJC brief quoted in the appellants’ jurisdictional statement argues the point that even if a nuisance claim might be recognized by state law for permitting noisy overflights, the area of airplane noise had been occupied by federal law, which would preclude a state claim. Def. SJC Br. 14-18. The Supreme Judicial Court never reached this argument. Instead, it rested its decision on the “adequate non-federal basis” that no cause of action for nuisance existed under state law. 4 The insubstantiality of the contention now made that “(b]lanket immunity such as is urged by the appellee would give the Commonwealth the untrammeled ability to effec- tively foreclose the appellants’ right to compensatory dam- ages pursuant to the Fourteenth Amendment” (Jur. St. 6) is shown by another circumstance. The Superior Court noted the plaintiffs’ right to recover damages for an activity “so extreme that it amounts to a taking” and the pendency of the plaintiffs’ eminent domain petition for assessment of damages then pending in that court. R.9, 8. The plain- tiffs referred to this proceeding in their affidavit filed in the Supreme Judicial Court on behalf of the appellants dated September 30, 1975.2 The Supreme Judicial Court agreed that the plaintiffs in a proper proceeding could try out the issue of whether the activity complained of amounted to a taking but noted that “we do not have that question before us”. Jur. St. 13. Thus, there has never been any question of “blanket” immunity here; it has always been recognized that an interference so major as to amount to a iaking is compensable in an eminent domain proceeding, and the appellants have belatedly sought to take advantage of this remedy. The Fourteenth Amendment does not reach governmental activities not amounting to a taking. See Transportation Co. v. Chicago, 99 U.S. 635 (1878) ; Town of East Haven v. Eastern Airlines, Inc., 331 F.Supp. 16, supplemented, 333 F.Supp. 338 (D. Conn. 1971), aff'd, 470 F.2d 148 (2d Cir. 1972). The appellants’ declaration did not allege a taking, “The action previously instituted against the Appellee alleging a constructive taking of the theatre property by the Appellee (Suf- folk Superior No. 623529; which case is referred to on page 4 of the lower court’s “Memorandum of Decision on Motion to Dismiss’’) is still pending in the Superior Court.” Pl. SJC Aff. 1. 5 and its writ was in tort. While the Fourteenth Amendment does underlie the appellants’ eminent domain position, it is not brought into play by this action of tort. Compare Crane v. Hahlo, 258 U.S. 142, 147 (1922); Mitchell v. W. T. Grant Co., 416 U.S. 600, 610 (1974). Finally, the absence of any legitimate argument for re- view available to these appellants is underlined by their resort to extra-record factual assertions which are quite untrue. Conduct of this sort is a tacit admission that if they were to confine themselves to the truth, they could not prevail. This is a case decided on the pleadings . The Court will not find any allegation that “[iJn the latter part of the 1950’s, and after the construction of the theatre, a new runway was installed at the airport with a glide path di- rectly over the theatre. The first aircraft to use the new runway were prop jets....” Jur. St. 3-4; contrast R.1-3. Instead, one finds that the actual allegation is: “That the Defendant, Massachusetts Port Authority, maintained and presently maintains its runways of vary- ing lengths. Several of these runways were and are aimed at and point directly to the said Suffolk Downs Drive-in Theatre, and the glide paths to said runways are directly over the theatre.” R.2 (Declaration, Count 1). The plaintiffs’ allegation that the runways “were and are aimed at” the theatre is basically truthful and is accepted arguendo on demurrer. The assertion of a “new runway” installed “after the construction of the theatre” not only lacks foundation in the record, but is purely fictional. The truth of the matter is that although there is indeed an air- port runway (4R-22L) which is “aimed at and point[s] directly to” the plaintiffs’ theatre, it was constructed in the 1940’s. From the time of its construction to date there has been no change in its length or direction. The plaintiff- 6 appellants in 1955 deliberately located and built their open- air theatre squarely in the approach path of this runway, then Logan’s longest and principal runway. This was a year before the creation of the Authority. The plaintiffs’ attempt to avoid their share of responsibility for the overflights by misstating the chronology of events is quite unconscionable. For all of the above reasons, appellees’ motion to dismiss should be granted. Respectfully submitted, George C. Caner, JR. Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 (617) 423-6100 Attorney for Appellee-Defendant Massachusetts Port Authority September 24, 1976 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0509%3A2. Public record. Not legal advice.