HILLMAN, District Judge.
Plaintiffs Christopher Comeau, d/b/a/ Comeau Trucking ("Comeau"), High Roller Transport LTD ("High Roller"), and Roger Comeau (sole owner of High Roller) ("R. Comeau"), collectively "Plaintiffs," have brought suit against the Town of Webster, Massachusetts ("Webster"), its Board of Selectmen ("Selectmen"), Board of Health ("Board of Health"), Police Chief Timothy Bent ("Chief Bent"), Police Department ("Police Department"), and Thomas Purcell, Individually and as Health Agent ("Purcell"). Defendants have moved to dismiss all eighteen (18) counts of the First Amended Complaint citing a variety of alleged deficiencies. (Docket No. 9). For the reasons set forth below, the motion will be granted in part and denied in part.
This case stems from a truck crash on Route 395, Webster, Massachusetts. On July 27, 2008 a tractor trailer owned by Comeau and driven by an employee of High Roller, was carrying over 40,000 lbs of live lobsters and fresh fish. The truck came over a ridge on Rt. 395 when it came upon a sudden traffic stop that blocked the highway. The driver could not stop the truck in time, it struck three motor vehicles, and ended up on the highway median. The truck and trailer were damaged. Even though Webster had previous experience conducting the marathon and was knowledgeable as to the additional public safety hazards that the marathon created, there were still road closures that caused a backup on to Rt. 395. No warning signs were posted.
After the crash, the driver checked the product and determined the packing was intact, the icing looked in its original condition, and that the environment was cool. To protect the load, a replacement refrigerated truck was brought to the scene and the transfer of the seafood product began. The driver observed each of the first ten lobster crates as they were transferred and that the lobsters were alive and active.
Board of Health Agent Purcell arrived on the scene approximately four hours after the accident, when most of the load had been transferred to the replacement truck. Purcell did not have experience, training, or other instruction on the proper handling, transportation, storage, or contamination of seafood product, particularly lobsters. He inspected the seafood to determine whether it was fit for consumption or sale to the public. Purcell sought no information from the driver and Purcell refused efforts to have a knowledgeable fish company representative inspect the seafood cargo. Instead, Purcell ordered the load condemned as a risk to public health safety.
Comeau, High Roller, and R. Comeau have significant expertise in handling, storage, transportation and proper maintenance of seafood products, to ensure that the seafood products are safe for the consuming public when they reach the seafood distributors. This includes the preservation of the product should the refrigerated transportation container become compromised. They have brought suit against Webster and various municipal officials and boards to recover compensatory and punitive damages regarding the condemnation of the seafood.
The complaint (Document No. 11) contains 18 counts, some of which are misnumbered.
On a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court "must assume the truth of all well-plead[ed] facts and give the plaintiff the benefit of all reasonable inferences therefrom." Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir.2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.1999)). To survive a motion to dismiss, the complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678, 129 S.Ct. at 1950. "A plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. at 1965-66. Dismissal is appropriate if the complaint fails to set forth "factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory." Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir.2008) (quoting Centro Médico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir.2005)). With these principles in mind, I turn to Plaintiffs' claims.
All Plaintiffs' negligence claims are governed by the Massachusetts Tort Claims Act, Mass. Gen. Laws. ch. 258 et seq. (the "Act"). The Act is the exclusive remedy for injuries allegedly caused by the negligent acts or omissions of municipal employees. Mass. Gen. Laws. ch. 258, § 2. A plaintiff cannot title a negligence claim under another theory simply to circumvent the requirements of the Act. Schenker v. Binns, 18 Mass.App.Ct. 404, 406, 466 N.E.2d 131 (1984) (citing Thomas v. Mass. Bay Transportation Auth., 389 Mass. 408, 410, 450 N.E.2d 600 (1993)).
In their motion, Defendants seek dismissal based on several provisions of the Act, alleging: that Plaintiffs have not complied with the presentment requirements; that the individual defendants are immune from suit for alleged negligent acts committed
Under Massachusetts law, one who wishes to assert a negligence claim against a municipality must "present[] his claim in writing to the [defendant] within two years after the date upon which the cause of action arose." Mass. Gen. Laws c. 258, § 4. Suit must be brought within "three years after the date upon which such cause of action accrued," id., and the plaintiff must make the required presentment prior to the commencement of suit. Id. This statute is written with conspicuous clarity, and the Massachusetts Supreme Judicial Court has left little doubt that its plain meaning controls. See Holahan v. Medford, 394 Mass. 186, 189, 474 N.E.2d 1117 (1985). While the presentment requirement is not jurisdictional, it is a statutory condition precedent to bringing suit, Vasys v. Metro. Dist. Comm'n, 387 Mass. 51, 55, 438 N.E.2d 836 (1982), and strict compliance with the statute is the rule. Gilmore v. Com., 417 Mass. 718, 721-722, 632 N.E.2d 838 (1994) (citing Richardson v. Dailey, 424 Mass. 258, 261-262, 675 N.E.2d 787 (1997)).
There is much law on how, when, and to whom, proper presentment is to be made. In the case of a city or town, presentment of a claim will be deemed sufficient if presented to either the mayor, city manager, town manager, corporation counsel, city solicitor, town counsel, city clerk, town clerk, chairman of the board of selectmen, or executive secretary of the board of selectmen. Mass. Gen. Laws. ch. 258, § 4. In Vasys, the Supreme Judicial Court identified two principal purposes of the presentment requirement, to wit: (1) to allow those with valid claims in tort to recover against governmental entities, and (2) to help municipalities screen so that only valid claims be paid. Vasys, 387 Mass. at 57, 438 N.E.2d 836. Considering these two purposes, courts should aim to strike "[a]n appropriate balance ... between the public interest in fairness to injured persons and in promoting effective government." Id. (quoting Whitney v. Worcester, 373 Mass. 208, 216, 366 N.E.2d 1210 (1977)).
Defendants' motion, filed in November 2011, sought dismissal of Plaintiffs' negligence claims for their alleged failure to comply with the presentment statute. Plaintiffs did not file an opposition. After a hearing on the motion, I requested an affidavit from Plaintiffs' Counsel "setting forth whether or not there was presentment of the Plaintiffs' claims as that term is used in G.L. c. 258, § 4. That affidavit shall set forth in detail the exact nature and date of the communications (with copies)." On April 2, 2012, Plaintiffs' attorney timely filed an affidavit detailing Plaintiffs' alleged compliance with the presentment requirements. (Docket No. 16).
Counts I, II, and VI (second) assert negligence claims against Webster, as opposed to other counts that target town departments or actors. Under Counts I and II, Plaintiffs allege that Webster knew the marathon was happening, knew that it created public safety risks, and failed to warn the driving public of the dangers. The language in Counts I and II is the same, but the counts are styled, respectively, as a violation of Mass. Gen. Laws ch. 258 and as negligence. At the outset, Count II must be dismissed because common law negligence claims cannot be maintained against municipalities. Mass. Gen. Laws ch. 258, § 2. In Count VI (second), Plaintiffs allege Webster was negligent under Mass. Gen. Laws ch. 258, §§ 1-13 in failing to supervise its employee (Purcell), resulting in damage to Plaintiffs. Compl., ¶¶ 152-159. The question is whether any provisions of chapter 258 provide immunity for the negligence claims in Counts I and VI (second).
Defendants contend they are shielded from liability by Mass. Gen. Laws. ch. 258, § 10(b), arguing that their acts were "discretionary." The Act shields a municipality from tort liability for a claim based on the performance, or nonperformance, of a discretionary function or duty on the part of a public employer or public employee, as defined by the statute. Id. This Court looks to state court decisions for assistance in ruling on this state law question. Chaabouni v. City of Boston, 133 F.Supp.2d 93, 96 (D.Mass.2001).
The first step in deciding whether the discretionary function exception forecloses a plaintiff's claim "is to determine whether the governmental actor had any discretion ... to do or not to do what the plaintiff claims caused [the] harm." Harry Stoller & Co. v. Lowell, 412 Mass. 139, 141, 587 N.E.2d 780 (1992). "[I]f the governmental actor had no discretion because a course of action was prescribed by a statute, regulation, or established agency practice, [the] discretionary function exception to governmental liability has no role to play in deciding the case." Id. The second, and typically more difficult step in this analysis is to determine whether the discretion that the employee exercised is that kind of discretion for which § 10(b) provides immunity from liability. Greenwood v. Easton, 444 Mass. 467, 469-70, 828 N.E.2d 945 (2005). The discretionary function exception is narrow, "providing immunity only for discretionary conduct that involves policy making or planning." Harry Stoller, 412 Mass. at 141, 587 N.E.2d 780; Horta v. Sullivan, 418 Mass. 615, 621, 638 N.E.2d 33 (1994). "Indeed, we can presume that all governmental employees, in their official duties, act in furtherance
In Count I, Plaintiffs contend Webster failed to warn the traveling public about congestion due to the marathon. They claim Webster's negligence regarding highway safety caused the accident. On the record before this Court, it would be premature to say what traffic measures were in effect, what Webster knew or should have known about road conditions, etc., let alone whether Webster exercised its discretion in a way to be immune under the Act. See Harry Stoller, 412 Mass. at 141, 587 N.E.2d 780.
Likewise, with respect to Count VI (second), Defendants contend Webster has immunity regarding the decision to condemn the seafood. Other than arguing that "certainly" the health agent's exercise of discretion falls under the protection of § 10(b), Defendants offer no precedent to justify dismissal on such a sparse factual record. Dismissal under § 10(b) is not warranted.
In the alternative, Defendants argue that the immunity afforded under § 10(f) of the Act also applies to Webster because it precludes:
Mass. Gen. Laws. ch. 258, § 10(f). Normally, a public employer, such as Webster, is not subject to liability for the adoption of a policy regarding inspections because there is a "high degree of discretion and judgment involved in weighing alternatives and making choices with respect to public policy and planning." Harry Stoller, 412 Mass. at 142, 587 N.E.2d 780 (quoting Whitney, 373 Mass. at 218, 366 N.E.2d 1210). Plaintiffs allege Webster failed to have proper training and policies in place regarding the inspection of seafood, and that its employees' failure to follow proper policies and procedures amounted to negligence. Such conduct as alleged would fall squarely within the scope of § 10(f); however, there is nothing in the record before this Court regarding what policies and procedures Webster had in effect.
Lastly, Defendants argue Webster is immune from suit under the statutory public duty rule. Mass. Gen. Laws ch. 258, § 10(j). They contend this section protects towns from liability for actions that did not "originally cause" a plaintiff's injuries, id., and that Defendants' driver caused the accident, not Webster. Again, this argument is better suited when a record of the who/what/when regarding the accident is available after discovery.
Once Plaintiffs have developed the factual record and have established the Webster policies that were in effect and the conduct of the different actors, then this Court can assess whether the immunity afforded by exceptions in Mass. Gen.
In comparison with the negligence claims asserted against Webster, Plaintiffs assert virtually identical negligence claims against the Board of Selectmen (Count IV (first)), Police Department (Count IV (second)), the Board of Selectmen and Chief Bent (Count V), and against the Board of Health (Counts VI (first), VIII, and IX). The gravamen of Plaintiffs' claims against these different town actors is they were negligent in their official duties, whether it was inspection, training, or highway safety. Under § 2 of the Act, a "public employee" is not liable for "personal injury or death caused by his negligence or wrongful act or omission while acting within the scope of his office or employment." Mass. Gen. Laws ch. 258, § 2. The public employer, however, may be liable for such an injury or death as if it were a private individual, subject to certain limitations. Id. The Board of Selectmen and Chief Bent are "public employees" under the Act and are exempt from liability for any alleged negligence. Mass. Gen. Laws. ch. 258, § 1.
Consequently, Count IV (first) and Count V are dismissed. The motion to
Count III alleges that Webster created a safety hazard by not properly detouring marathon traffic within the town, thereby creating the backup on Route 395. Plaintiffs claim that Mass. Gen. Laws. ch. 85, § 2 imposes a duty on Webster to keep their roadways properly maintained and that duty included Webster implementing appropriate traffic controls to mitigate the marathon traffic. Defendants' argument is that chapter 85 applies to state roadways as opposed to local roadways and imposes a duty upon the Commonwealth's highway department as opposed to the Webster's. Defendants are correct. The duty that is created by § 2 is a duty on the Commonwealth. General Laws c. 85, § 2. See Twomey v. Com., 444 Mass. 58, 61, 825 N.E.2d 989 (2005). Section 2 does not apply to municipalities.
There is a separate statutory scheme found in chapter 84 for the repair and maintenance of municipal ways and bridges. General Laws ch. 84, § 15 provides the sole remedy against a municipality for personal injuries or property damage resulting from a defect or want of repair "in or upon a way." See Huff v. Holyoke, 386 Mass. 582, 585, 436 N.E.2d 952 (1982); Gallant v. Worcester, 383 Mass. 707, 711-12, 421 N.E.2d 1196 (1981); Whalen v. Worcester Elec. Light Co., 307 Mass. 169, 174-75, 29 N.E.2d 763 (1940). Plaintiffs allege that "Webster had a duty pursuant to M.G.L. C. 85 § 2 to take steps to insure that the roadways were properly maintained." (emphasis added) (Compl., ¶ 84). Plaintiffs may have cited to the wrong statute. Plaintiffs' counsel may seek leave to amend the complaint to correct that error. Whether the court would allow such an amendment is for another day. Amendments correcting jurisdictional allegations are specifically authorized by 28 U.S.C.A. § 1653, which provides that defective allegations of jurisdiction may be amended in the trial or appellate courts. Accordingly, Count III is dismissed.
Plaintiffs allege civil rights violations in contravention of 42 U.S.C. § 1983 against the Board of Health (Count VII) and its agent Purcell (Count X). To establish a claim under § 1983, a plaintiff must show he was "deprived of a right, immunity, or privilege secured by the constitution or laws of the United States by a person acting under color of state law." Pittsley v. Warish, 927 F.2d 3, 6 (1st Cir.1991).
To establish municipal liability, a plaintiff must show that "the municipality itself causes the constitutional violation at issue. Respondeat superior or vicarious liability will not attach under § 1983." City of Canton v. Harris, 489 U.S. 378, 387, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). See Monell v. Dept. of Soc. Servs., 436 U.S. 658, 694-95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A municipality can be said to have caused a violation where there is both the existence of a policy or custom, and a "direct causal link" between that policy and the alleged constitutional deprivation. Harris, 489 U.S. at 385, 109 S.Ct. 1197; Monell, 436 U.S. at 694, 98 S.Ct. 2018 (policy must be the "moving force [behind] the constitutional violation"); Santiago v. Fenton, 891 F.2d at 373, 381-82 (1st Cir.1989). Such custom "must be so well settled and widespread that the policymaking officials of the municipality can be said to have either actual or constructive knowledge of it yet did nothing to end the practice." Bordanaro v. McLeod,
Here, to survive the motion to dismiss, Plaintiffs must have pled facts to show it is plausible that the Board of Health adopted and implemented spoilage/storage/contamination policies, not for the purpose of a neutral health and safety reason, but for the purpose of violating Plaintiffs' civil rights. See e.g., Iqbal, 556 U.S. at 677, 129 S.Ct. at 1949 (where the Court dismissed § 1983 claims because the complaint did not contain any factual allegation sufficient to plausibly suggest petitioners' discriminatory state of mind).
In support of their § 1983 claim, Plaintiffs merely contend Webster's Board of Health: (1) "has a duty and an obligation of reasonable care to administer, properly supervise, direct, and control those agents acting on its behalf ...," Compl., ¶ 161; and (2) "had policies and customs in place for the purpose, including but not limited to administering, directing, supervising and controlling inspection and disposition of food products." Id., ¶ 163. None of Plaintiffs' allegations identify a policy that caused a violation of their right to due process. Instead, Plaintiffs attempt to implicate the town by parroting the elements of a § 1983 claim. On such meager allegations, Plaintiffs' claim for municipal liability cannot succeed. See Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65 (dismissal of complaint is warranted when complaint contains only threadbare recitals of the elements of a cause of action, supported by mere conclusory statements). To survive a motion to dismiss, a complaint need not have detailed factual allegations, but must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Id. (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 2944, 92 L.Ed.2d 209 (1986) (on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation")). See also, 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed.2004) ("[T]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action").
Plaintiffs' formulaic allegation that the Board of Health "had policies and customs in place" is precisely the type of blanket, conclusory allegation that the Supreme Court has determined should not be given credit when standing alone. Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65; Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949. Accordingly, Count VII against Webster's Board of Health must be dismissed.
The gravamen of Plaintiffs' § 1983 claim is that Purcell caused them "to lose property and suffer damages without due process or in violation of the law." Compl., ¶ 190. "Section 1983 supplies a private right of action against a person who, under color of state law, deprives another of rights secured by the Constitution or by federal law." Evans v. Avery, 100 F.3d 1033, 1036 (1st Cir.1996). Plaintiffs have satisfied the first condition of a § 1983 claim — that the act in question occur "under color of state law" — by alleging Purcell, who is Webster's Health Agent, harmed them through his acts. Plaintiffs must also identify a protected property or liberty interest. Bd. of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). To establish a constitutionally protected property interest, a plaintiff "must have more than an abstract
Qualified immunity shields public officials from suit, and is not a mere defense to liability. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). It is therefore important for the immunity question to be resolved at the earliest possible stage in litigation. Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991); Mitchell, 472 U.S. at 527-29, 105 S.Ct. at 2816-818 (immunity ordinarily should be decided by the court long before trial). "The basic thrust of the qualified immunity doctrine is to free officials from the concerns of litigation, including `avoidance of disruptive discovery.'" Iqbal, 556 U.S. at 685, 129 S.Ct. at 1953 (quoting Siegert v. Gilley, 500 U.S. 226, 236, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991) (Kennedy, J., concurring in judgment)).
Qualified immunity is a doctrine that "balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009). Its protection applies regardless of whether the government official's error is "a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact." Groh v. Ramirez, 540 U.S. 551, 567, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004) (Kennedy, J., dissenting) (quoting Butz v. Economou, 438 U.S. 478, 507, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), for the proposition qualified immunity covers "mere mistakes in judgment, whether the mistake is one of fact or one of law").
Following Pearson, the First Circuit abandoned its former three-part qualified immunity analysis and adopted a two-part test. See Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir.2009). The relevant inquiry is: (1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right, and (2) whether the right at issue was clearly established at the time of the defendant's alleged misconduct. Id. Moreover, the second part of the test requires facts showing it was "sufficiently clear" that a reasonable defendant-official would know he was violating a constitutionally protected right, and that he knew his conduct violated the plaintiff's constitutional rights. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). "That is, the salient question is whether the state of the law at the time of the alleged violation gave the defendant fair warning that his particular conduct was unconstitutional." Maldonado, 568 F.3d at 269, and cases cited. This Court may exercise discretion in deciding which of the two prongs of the test should be addressed first. Pearson, 555 U.S. at 236, 129 S.Ct. at 818.
Based on the complaint, Plaintiffs have alleged, among other things, that Webster had "policies, rules regulations [sic], statutes, and customs in place" regarding the inspection and disposition of food products, and that Purcell with "intentional or reckless disregard for the consequences failed to properly administer, supervise, direct and control the inspection and disposition of the seafood cargo." Compl., ¶ 188. At this stage of the proceedings, the policies,
Lastly, Plaintiffs are reminded that for their § 1983 claim against Purcell to succeed, they most show his conduct "shocks the conscience." Schiller v. Strangis, 540 F.Supp. 605, 616 (D.Mass.1982). Accordingly, the motion to dismiss Count X against Purcell is denied.
Under Count XI (v. Purcell) and Count XII (Board of Health), Plaintiffs pursue redress for alleged state civil rights violations. Plaintiffs argue Defendants' actions regarding the accident were "unlawful" and caused a loss of rights through "interference by threats, intimidation or coercion." Compl., ¶¶ 198, 206.
The Massachusetts Civil Rights Act provides a right of action to any person whose exercise or enjoyment of rights secured by the federal or state constitution or laws has been interfered with by "threats, intimidation or coercion." Mass. G. L c. 12, § 11I. A threat "involves the intentional exertion of pressure to make another fearful or apprehensive of injury or harm"; intimidation "involves putting in fear for the purposes of compelling or deterring conduct"; and coercion means "the application to another of such force, either physical or moral, as to constrain him to do against his will something he would not otherwise have done." Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, 474, 631 N.E.2d 985 (1994).
The MCRA contemplates a two-part sequence: liability may be found where (1) the defendant threatens, intimidates, or coerces the plaintiff in order to (2) cause the plaintiff to give up something that he has the constitutional right to do. Goddard v. Kelley, 629 F.Supp.2d 115, 128 (D.Mass.2009). The element of "threats, intimidation, or coercion" must be separately present in addition to the violation of rights. See Sarvis v. Boston Safe Deposit and Trust Co., 47 Mass.App.Ct. 86, 93, 711 N.E.2d 911 (1999).
Again, as discussed in the § 1983 discussion above, Plaintiffs' allegations in Counts XI and XII show Plaintiffs understand the "magic" language required by the statute (i.e., asserting threats, intimidation, or coercion); however, Plaintiffs need to do more than parrot the standard to prevent dismissal of their state civil rights claims. Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65; Papasan, 478 U.S. at 286, 106 S.Ct. at 2944. Because Plaintiffs merely set forth a formulaic recitation of the elements of the cause of action, dismissal of their state civil rights claims is warranted. Accordingly, Count XI and Count XII are dismissed.
In Count XIII, Plaintiff Comeau alleges intentional interference with contractual relations against Purcell,
The Restatement (Second) of Torts represents the law of Massachusetts with regard to a claim of intentional interference with contractual relations. Gouin v. Gouin, 249 F.Supp.2d 62, 74 (D.Mass.2003) (citing Shafir v. Steele, 431 Mass. 365, 369 n. 7, 727 N.E.2d 1140 (2000)). That rule states:
Restatement (Second) of Torts, § 766. To state such a claim, Plaintiffs must allege four elements: "(1) the existence of a contract or a business relationship with contemplated economic benefit; (2) the defendant's knowledge of the contract or business relationship; (3) the defendant's intentional interference with the contract or business relationship for an improper purpose or by improper means; and (4) damages." Swanset Dev. Corp. v. Taunton, 423 Mass. 390, 397, 668 N.E.2d 333 (1996).
In slight contrast, claims for intentional interference with advantageous business relations require proof that the plaintiff had an advantageous business relationship with a third party, the defendant knowingly induced a breaking of the relationship, and the defendant's interference was improper in motive or means, causing the plaintiff harm. Anzalone v. Admin. Office of the Trial Ct., 457 Mass. 647, 660, 932 N.E.2d 774 (2010); Blackstone v. Cashman, 448 Mass. 255, 260, 860 N.E.2d 7 (2007).
Thus, the notable difference between the two torts is the existence of a contract. To recover for interference with advantageous business relations, the plaintiff need not prove a binding contract, but he must show a probable future business relationship from which there is a reasonable expectancy of financial benefit. Owen v. Williams, 322 Mass. 356, 361-62, 77 N.E.2d 318 (1948); Goldhor v. Hampshire Coll., 25 Mass.App.Ct. 716, 725, 521 N.E.2d 1381 (1988); Powers v. Leno, 24 Mass.App.Ct. 381, 385, 509 N.E.2d 46 (1987).
The improper motive required by the torts is actual malice: "a spiteful, malignant purpose, unrelated to the legitimate corporate interest." Wright v. Shriners Hospital for Crippled Children, 412 Mass. 469, 476, 589 N.E.2d 1241 (1992) (quoting Sereni v. Star Sportswear Mfg. Corp., 24 Mass.App.Ct. 428, 433, 509 N.E.2d 1203 (1987)). Neither personal or financial gain, nor personal dislike, is enough to satisfy the improper motive requirement. King v. Driscoll, 418 Mass. 576, 587, 638 N.E.2d 488 (1994). "Generally, the propriety of the [defendant's] motives in a particular setting necessarily depends on the attending circumstances, and must be evaluated on a case-by-case basis." Adcom Prod., Inc. v. Konica Bus. Mach. USA, Inc., 41 Mass.App.Ct. 101, 105, 668 N.E.2d 866 (1996).
As a threshold issue, Defendants maintain that Purcell was acting in his official capacity and therefore cannot be liable for intentional torts. Mass. Gen. Laws ch. 258, § 10(c); Saxonis v. Lynn, 62 Mass.App.Ct. 916, 918, 817 N.E.2d 793 (2004) (public employee sued in official capacity for intentional tort immune under
The complaint alleges that Purcell "unlawfully, maliciously, and without justification, intended to interfere with and cause a breach of [Plaintiffs'] contract relationship with the seafood distributors including ... intentionally condemning the cargo of seafood." Compl., ¶¶ 212, 220. The Complaint further alleges Purcell "intended to destroy or impair, and has destroyed or impaired, [Plaintiffs'] advantageous relationship with the Seafood distributors with whom Comeau has a business and professional relationship ...." Id., ¶¶ 230, 241.
Construed in the light most favorable to Plaintiffs, none of those allegations reflect how Purcell acted with purely personal motives, or that his acts were disconnected with Webster's interests. As a matter of law, Plaintiffs have failed to allege sufficient facts to bring their claims outside the umbrella of immunity provided by Mass. Gen. Laws ch. 258, § 10(c) for employees acting in their official capacity.
Even so, these counts, like many of the others discussed above, contain no more than conclusions of law without the factual allegations to support such claims. For example, Plaintiffs fail to allege Purcell knew of any contractual relationship between Plaintiffs and seafood distributors (the second, necessary, element to a claim for intentional interference with contractual relations); and, Plaintiffs fail to allege an improper purpose or means by Purcell in his decision to condemn the seafood (the third, necessary, element for a claim). Similarly, Plaintiffs fail to support their claims for interference with advantageous business relations with any factual allegations that Purcell knew of any business relationships, or that he purposefully interfered with those relationships, when he condemned the seafood. Without facts to bolster their formulaic
For the foregoing reasons, the following order enters regarding Defendants' Motion to Dismiss (Docket No. 9):
The Motion to Dismiss is
The Motion to Dismiss is
