Snyder v. Collura

United States Court of Appeals
For the First Circuit

No. 15-1384

ROBERT S. SNYDER,

Plaintiff, Appellant,

v.

SERAFINA COLLURA; RALPH GAUDET; PATRICK POWELL; CITY OF WALTHAM;

Defendants, Appellees,

JEANNETTE A. MCCARTHY; BERNADETTE D. SEWELL;

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Kayatta, Stahl, and Barron,
Circuit Judges.

Zaheer A. Samee, with whom Leonard A. Frisoli and Frisoli
Associates, P.C., were on brief, for appellant.
Thomas R. Donohue, with whom Deidre Brennan Regan and
Brody, Hardoon, Perkins & Kesten, LLP, were on brief, for appellee
Serafina Collura.
Bernadette Dunn Sewell, Assistant City Solicitor, City
of Waltham Law Department, for appellees Ralph Gaudet and Patrick
Powell.
Michelle Learned, Assistant City Solicitor, City of
Waltham Law Department, for appellee City of Waltham.
January 27, 2016
 KAYATTA, Circuit Judge. In 2009, Robert Snyder sued the

City of Waltham, Massachusetts, ("Waltham") and several of its

officials alleging that their vindictive application of a local

zoning board's authority violated state law as well as the United

States and Massachusetts Constitutions. This opinion marks our

second encounter with Snyder's claims. In 2014 we ruled, on

interlocutory appeal, that two individual defendants were immune

to suit under 42 U.S.C. § 1983 because Snyder's Equal Protection

claim--the "only preserved federal claim" in the case

--failed because Snyder did not show that the defendants had

treated him differently than any other similarly-situated

individual. Snyder v. Gaudet, 756 F.3d 30, 34–36 (1st Cir. 2014)

("Snyder I"). In this opinion, we now affirm the district court's

dismissal of Snyder's remaining claims and its rejection of his

belated and likely insufficient effort to assert new theories of

recovery.

I. BACKGROUND

Snyder's case has its genesis in his decision to

terminate the employment by his company of then-City Councilor

Serafina Collura, who then turned into an avenging whistle-blower,

goading Waltham to pursue an apparent zoning violation by Snyder.

Id. at 32-33. Further discussion of the facts can be found in our

earlier case. Id.

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 Snyder's original complaint, filed in December 2009 and

still operative, named five counts. Count one alleged that the

defendants conspired to deprive Snyder of his Constitutional

rights. 42 U.S.C. §§ 1983, 1985, 1986. It stated that Snyder's

right to substantive due process and equal protection of law under

the Fourteenth Amendment were "[a]mong" the rights grounding his

section 1983 count, but that it was "not limited to" these

particular rights. Counts two through four alleged various

violations of Massachusetts state law, naming abuse of process,

malicious prosecution, and civil conspiracy. Snyder's fifth count

invoked the Massachusetts Civil Rights Act ("MCRA") to redress

alleged violations of his "state and federal constitutional rights

and liberties." Pursuant to Federal Rule of Civil Procedure 16(b),

the district court set a deadline of December 31, 2010 for any

amendments to the pleadings.

All defendants moved to dismiss the complaint under

Federal Rule of Civil Procedure 12(b). They asserted that Snyder's

"§ 1983 claims must be dismissed against Defendants because

[Snyder's] complaint alleges no facts detailing the sine qua non

of a § 1983 action: the violation of a federal right." In support

of that assertion, they directed their argument to the two federal

rights expressly identified in the complaint: substantive due

process and equal protection of the law.

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 The filing of the motion to dismiss called upon the court

to determine whether the facts alleged in the complaint "allow[]

the court to draw the reasonable inference that the defendant is

liable." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The filing of

that motion also provided Snyder with an opportunity to do what

his complaint need not have done: explain his position on why the

alleged facts supported a finding of liability under the law.

Failure to oppose the motion or to advance an argument in support

of such a finding may well have constituted a waiver of the

argument if the district court had granted the motion and Snyder

then appealed. See, e.g., Butler v. Deutsche Bank Tr. Co. Ams.,

748 F.3d 28, 36 (1st Cir. 2014) (court may find argument waived

when "the argument [the plaintiff] presented in his memorandum in

opposition to the motion to dismiss did not focus on the

[argument]").

Snyder did oppose the motion to dismiss. In so doing,

he stated: "This case is about the gross abuse of power . . . to

injure and harass [the plaintiff] in violation of his

constitutional rights to equal protection of the laws, freedom

from arbitrary searches and seizures, and substantive due

process." This opposition, as spelled out in Snyder's supporting

memorandum describing how these listed federal rights were

violated, succeeded in obtaining a denial of the motion to dismiss.

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And in its denial of Waltham's motion to dismiss Snyder's

section 1983 count, the district court characterized the claim as

one "for denial of substantive due process and equal protection."

After discovery, Waltham, joined by the other named

defendants, moved for summary judgment on "all of the plaintiff's

claims." Snyder opposed that motion, relying on his contention

that the defendants conspired "to abuse and harass the plaintiff

in violation of his rights to substantive due process and equal

protection." The district court's rejection of the immunity

defenses of two municipal officials in ruling on this motion then

became the subject of last year's interlocutory appeal by two

municipal officials. Snyder I, 756 F.3d at 31-32.

In that appeal, for the first time, Snyder articulated

his desire to assert an Eighth Amendment theory in support of his

section 1983 claim, relying on the Amendment's Excessive Fines

Clause. U.S. Const. amend. VIII, cl. 2. We found the claim to be

not "preserved" because Snyder "never presented [it] to the

district court." Snyder I, 756 F.3d at 34. Our opinion further

explained why Snyder's Equal Protection claim failed to offer a

path past the defendants' qualified immunity. Id. at 33–36.

Snyder's state law claims were not directly at issue in the earlier

appeal. Id. at 34 n.2.

After our decision, in the district court, all

defendants renewed their motions for summary judgment on the

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balance of Snyder's complaint. In response, Snyder abandoned as

against all defendants any argument that they violated his right

to equal protection or substantive due process. Instead, in an

attempt to refresh his case, he contended that the facts in his

complaint supported two other theories of section 1983 liability

that had not yet been addressed by any ruling. First, he argued

that his complaint both originally and as proposed to be amended

adequately makes out a First Amendment claim that City officials

"conspired and retaliated against Snyder" as a consequence of

(i) his statements to a state unemployment agency regarding

Collura's performance as an employee and (ii) his decision to sue

Collura's brother based on an unrelated matter in small claims

court. Second, Snyder argued that his complaint, both originally

and as proposed to be amended, adequately makes out a claim that

certain fines the zoning authority sought to collect from him were

not only improperly motivated but were "excessive" under the Eighth

Amendment. As a back-up, Snyder also moved for leave to amend his

complaint to add conclusory assertions that would make express the

First and Eighth Amendment claims that Snyder contends are implied

by the factual averments already contained in the complaint.

The district court denied without elaboration Snyder's

motion to amend as "futile". Snyder v. Collura, No. 09-CV-12055-

RWZ, 2015 WL 758546, at *1 n.1 (D. Mass. Feb. 20, 2015)

(hereinafter, "Snyder II"). It then granted the defendants' motion

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for summary judgment on the remaining claims, effectively treating

Snyder's effort to assert new theories in support of his federal

claims as inadequate. Id. at *2.

II. ANALYSIS

We review a district court's grant of summary judgment

de novo. Martinez v. Petrenko, 792 F.3d 173, 179 (1st Cir. 2015).

The moving party is entitled to summary judgment if it "shows that

there is no genuine dispute as to any material fact and [it] is

entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

A. Count One: The Section 1983 Claim

Snyder's first argument is that the district court erred

in failing to construe the section 1983 claim in his complaint as

raising two theories of constitutional violation not addressed on

the merits by our prior opinion in this case: a violation of his

First Amendment rights and a violation of his Eighth Amendment

right to be free of excessive fines.

Recognizing that a complaint need plead facts and not

necessarily the specific names of the legal theories and causes of

action fairly raised by these facts, Morales-Vallellanes v.

Potter, 339 F.3d 9, 14 (1st Cir. 2003), we nevertheless find in

Snyder's complaint barely a hint of any facts that might support

such theories. The complaint contains no allegation that the

municipal officials retaliated against Snyder because he supplied

information to a state tribunal. While it mentions that a state

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tribunal requested information from Snyder, and denied Collura

benefits, it does not even allege that Collura knew what

information he supplied to the tribunal. It also expressly alleges

that the retaliatory campaign began before the state agency

requested any information. Leaving no room for doubt as to the

motive for the alleged retaliation, the complaint expressly

alleges that the acts of which it complains were "[in] retaliation

for [Collura's] termination of employment." As for the lawsuit

against Collura's brother, the complaint does allege that Waltham

issued a notice of fine on "the very same day" that Snyder

prevailed in a lawsuit against Collura's brother, but makes no

allegation that the latter preceded the former, or was a reason

for the notice. Finally, as for the Eighth Amendment claim, the

complaint mentions "notice" of a "$300" fine for each day a zoning

violation was not abated, but offers no facts suggesting how such

a fine was excessive, or was either paid or still threatened. See

United States v. Bajakajian, 524 U.S. 321, 337 (1998) (gravamen of

Eighth Amendment excessive fines inquiry is whether "the amount of

the forfeiture is grossly disproportional to the gravity of the

defendant's offense").

Even if we were to assume that such vague hints of a

claim were enough to survive a motion to dismiss, the motion to

dismiss stage in this lawsuit has long passed. Snyder has not

done what he needed to do to develop and preserve such arguably

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latent claims. In our prior opinion, we noted that Snyder had not

"preserved" his Eighth Amendment theory. While that holding might

be read narrowly as limited to the immunity issues on interlocutory

review, or as not preclusive of subsequent efforts to revive such

a claim, we make clear now that, to the extent one might arguably

glean these claims from the spare hints in the complaint, Snyder

waited too long to undertake such a recasting of his lawsuit. See

Schneider v. Local 103 I.B.E.W. Health Plan, 442 F.3d 1, 3 (1st

Cir. 2006) (per curiam) ("Even an issue raised in the complaint

but ignored at summary judgment may be deemed waived." (citing

Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir.

1995))); Torres-Rios v. LPS Labs., Inc., 152 F.3d 11, 16 (1st Cir.

1998) (mere "hint of a possible additional claim" insufficient

"[g]iven the absence of any development of such a claim" as the

suit progressed).

The defendants filed a motion to dismiss the section 1983

claim in whole, and they then later moved for summary judgment

after discovery. Unlike Federal Rule of Civil Procedure 8, motions

of this type necessarily call on a plaintiff to tie his allegations

to a tangible theory of recovery. Otherwise, waiver looms. See

Grenier, 70 F.3d at 678; Johnston v. Holiday Inns, Inc., 595 F.2d

890, 894 (1st Cir. 1979) ("It is by now axiomatic that an issue

not presented to the trial court cannot be raised for the first

time on appeal."). In response first to the motion to dismiss and

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then in response to the original motions for summary judgment,

Snyder omitted any mention of the theories that he now urges we

find implicit in the complaint. In short, to the extent that the

complaint left Snyder leeway in picking his legal theories, the

point at which he needed to reveal those theories passed well

before he announced the theories that he now wishes to pursue.

See Torres-Rios, 152 F.3d at 16 ("Given the absence of any

development of such a claim by the time of the Joint Case

Management Memorandum, we join the district court in concluding

that a design defect claim was not raised by the complaint.") To

rule otherwise would be to turn an orderly marshalling of the

reasons for and against dismissal of a claim into a game of whack-

a-mole, with seriatim summary judgment proceedings not ending

until the defendant manages to guess every possible legal theory

upon which a plaintiff might rely to support a claim.

That leaves Snyder's appeal from his request for leave

to amend the complaint. The proposed amendment did not contain

new facts. Rather, it simply served as an alternative vehicle

arguing that he should be able to recast his claims at what would

otherwise be the end of the case. The district court rejected the

effort on the grounds that it was futile. Snyder II, 2015 WL

758546, at *1 n.1. For all the reasons we have already stated, we

agree. We add only that once a court sets a deadline for seeking

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leave to amend,1 the complaint may be modified "only for good

cause." Martinez, 792 F.3d at 180 (citing Fed. R. Civ. P.

16(b)(4)). And "'[g]ood cause' does not typically include a change

of heart on a litigation strategy." Id.; see also Trans-Spec Truck

Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 327 (1st Cir. 2008)

(a party is "bound by the consequences of its litigation strategy"

and leave is properly denied when it delays moving to amend because

it "thought that it would prevail on the motion to dismiss without

any need to further amend").

B. Counts Two through Five: The State Law Claims

While Snyder rests the bulk of his argument on the

viability of his revised federal theories, his state law claims

were also a victim of the defendants' renewed summary judgment

motion. Snyder II, 2015 WL 758546 at *1-2. Snyder does not

contest the entry of summary judgment on his abuse of process and

malicious prosecution claims, but he does argue that the district

court erred in granting the defendants' motion with respect to his

civil conspiracy claim and his claim under the Massachusetts Civil

Rights Act. We therefore address these arguments in turn.

1 According to the district court's scheduling order, amended
pleadings were due in this case by December 31, 2010. Snyder moved
for leave to make the amendment at issue almost four years later
on December 3, 2014.

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 1. Civil Conspiracy Claim

The district court found that Snyder's civil conspiracy

count failed as a matter of law because "[a] claim for civil

conspiracy requires a showing of an underlying tortious act," which

Snyder had failed to make. Id. at *2 (citing Garvin v. Hampden

Cnty. Sheriff's Dep't, No. 3:05-CV-30102-MAP, 2008 WL 877797, at

*8 (D. Mass. Mar. 27, 2008)). Although this is an incomplete

statement of the law, the district court's resolution of the case

is unaffected.

"Massachusetts recognizes two types of civil

conspiracy." Taylor v. Am. Chemistry Council, 576 F.3d 16, 34

(1st Cir. 2009). One, "based on section 876 of the Restatement

[(Second) of Torts], is a form of vicarious liability for the

tortious conduct of others." Id. The plaintiff is thus required

to prove an underlying tort. Id. at 35. The other, drawn from

the common law, amounts to "a very limited cause of action in

Massachusetts" for civil conspiracy based on the defendants'

allegedly unique ability to exert a "'peculiar power of coercion'"

when acting in unison. Jurgens v. Abraham, 616 F. Supp. 1381,

1386 (D. Mass. 1985) (quoting Fleming v. Dane, 22 N.E.2d 609, 611

(Mass. 1939)). Under the latter theory, the "wrong" suffered by

the plaintiff is "in the particular combination of the defendants

rather than in the tortious nature of the underlying conduct."

Kurker v. Hill, 689 N.E.2d 833, 836 (Mass. App. Ct. 1998).

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Collusive behavior among market competitors is a good example of

one of those rare instances in which it is the act of agreeing

that constitutes the wrong. See, e.g., Neustadt v. Emp'rs Liab.

Assurance Corp., 21 N.E.2d 538, 539–41 (Mass. 1939) (discussing

nature of such a conspiracy in the context of claim that insurers

"unlawfully combined with each other").

From the complaint through the 2014 appeal and on into

the second round of summary judgment, Snyder has consistently and

squarely cast his case as being of the first type, which does

require proof of an underlying tort. Snyder alleged, for example,

that the defendants "conspired to retaliate against Snyder and

deny him equal protection of the laws," and that they were engaged

in a "civil conspiracy to commit tortious conduct." Snyder has

thus waived the opportunity to assert the second type of conspiracy

by eschewing such an argument until the instant appeal. See Aetna

Cas. Sur. Co. v. P & B Autobody, 43 F.3d 1546, 1564 (1st Cir. 1994)

(finding the question waived when "[d]espite the fact that the

pleading was sufficient to state a claim of ['coercive'] civil

conspiracy, . . . Count X was tried and the jury was ultimately

instructed on a . . . quite different 'civil conspiracy' cause of

action"). And because, as explained in this opinion, he has no

underlying tort, his conspiracy claim fails.

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 2. MCRA Claim

On the last page and one-half of his complaint, Snyder

asserted a claim under the Massachusetts Civil Rights Act, Mass.

Gen. Laws ch. 12, §§ 11H, 11I. This claim incorporated all of the

allegations and theories of liability asserted in the federal

claims. They make no reference to any theory of liability based

on notions of either free speech or excessive fines. Nor do they

add any factual allegations that might point to or support any

such theories of liability. Specifically, there is no allegation

that would suggest that any fine imposed was excessive, nor is

there any allegation that the retaliatory campaign alleged was

based on anything other than Collura's firing. Finally, Snyder

raised no such theories in opposing the motion to dismiss, nor did

he otherwise raise them in response to the original motion for

summary judgment until after discovery closed. Accordingly, for

the same reasons that we affirm the dismissal of the federal

claims, we reject as well Snyder's effort to assert state law

versions of those same claims. And the same logic leads us to

reject Snyder's late attempt to assert two other state-law rights:

the right to "impartial interpretation of the laws," Mass. Const.

pt. 1, Art. XXIX, and the right to "access the courts," id. Amend.

XLVIII, pt. 2, § 2 ¶ 3.

Snyder's complaint did, however, fairly raise one state

law theory of liability not incorporated in the section 1983 count.

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His complaint asserts that the conduct of the defendants as

described in the complaint violated a state law right "to own land

and use and enjoy it for his comfort and profit without harassment

and unlawful interference." Apart from its cameo role in the

complaint, this theory was never again discussed by Snyder beyond

brief references in his briefs submitted to us now and in his

opposition to the renewed motion for summary judgment.

In support of this claim on appeal, Snyder does no more

than point, in passing, to a Massachusetts case holding that the

plaintiffs stated an MCRA claim by alleging that a neighborhood

group's threatening and aggressive opposition to the construction

of a tennis court, when the proposed construction violated no

zoning law, impinged upon the plaintiffs' constitutionally-secure

property rights. Bell v. Mazza, 474 N.E.2d 1111 (Mass. 1985); see

also Ayasli v. Armstrong, 780 N.E.2d 926, 941 (Mass. App. Ct. 2002)

(Rapoza, J., dissenting) (noting that in Bell, "the plaintiffs

complied with all relevant regulations and were without fault in

the development of their land." (citing Bell v. Zoning Bd. of

Appeals of Cohasset, 437 N.E.2d 532 (Mass. App. Ct. 1982))). While

we are skeptical that Snyder's complaint could fairly be read to

state such a claim,2 Snyder's wholly inadequate briefing on this

point precludes our review of its merits.

2 In Bell, the Supreme Judicial Court was clear that MCRA
liability did not attend the "pursuit of legal rights" absent

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 It is a "settled appellate rule that issues adverted to

in a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived." United States v. Zannino, 895

F.2d 1, 17 (1st Cir. 1990). As we have noted, "[i]t is not enough

merely to mention a possible argument in the most skeletal way,

leaving the court to do counsel's work, create the ossature for

the argument, and put flesh on its bones." Id. "This rule is

commonly deployed . . . against ancillary arguments tossed

carelessly against the wall in the hope that one might stick."

United States v. Zayas-Ortiz, 808 F.3d 520, 524 n.1 (1st Cir.

2015). Through perfunctory briefing, Snyder has waived this arm

of his complaint.

III. CONCLUSION

Snyder is correct that the facts of this case reflect

poorly on Collura and Waltham. Collura was apparently perfectly

happy to remain silent about Snyder's apparent zoning violations

so long as it suited her personal interest, and then, when her

interests changed, used her influence to ensure that the Town

enforced its ordinances against Snyder as if it were suddenly one

of the more important topics on the City's agenda. Nevertheless,

as we previously explained in our prior opinion in this case, an

"extraordinary circumstances." Bell, 474 N.E.2d at 1115. Our
ruling in Snyder I precludes Snyder from claiming now that Waltham
could not rationally have viewed him at fault under the zoning
laws. Snyder I, 756 F.3d at 35–36.

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attempt to enforce a zoning law in the face of an apparent

violation does not violate the equal protection clause of the U.S.

Constitution absent evidence that other similarly situated

individuals were treated differently. See Snyder I, 756 F.3d at

36. And because Snyder's subsequent efforts to find another legal

basis for striking back either fall short of the mark, or come too

late, we must affirm the entry of summary judgment on all of

Snyder's claims and the denial of his motion for leave to amend.

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