United States Court of Appeals
For the First Circuit
No. 15-1320
NAJAS REALTY, LLC; PETRA BUILDING CORPORATION,
Plaintiffs, Appellants,
v.
SEEKONK WATER DISTRICT; ROBERT BERNARDO, individually and in his
capacity as the Superintendent of the Seekonk Water District,
Defendants, Appellees,
CHRISTOPHER HALKYARD, in his capacity as member of the
Seekonk Water Board; CHRISTINE ALLEN, in her capacity
as member of the Seekonk Water Board; PHILLIP CAMPBELL,
in his capacity as member of the Seekonk Water Board;
JOHN DOES 1-10; JANE ROES 1-10; XYZ CORPORATIONS 1-10,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Judith G. Dein, U.S. Magistrate Judge]
Before
Torruella, Lynch, and Thompson,
Circuit Judges.
Eric S. Brainsky, with whom Michael E. Levinson was on brief,
for appellants.
John Joseph Davis, with whom Seth Brandon Barnett was on
brief, for appellees.
May 2, 2016
THOMPSON, Circuit Judge. This action stems from the
plaintiffs' purchase of a piece of land and the opposition the
defendants mounted to the plaintiffs' plan to develop that
property. Plaintiffs responded by filing suit, claiming the
defendants' conduct violated various constitutional and state law
provisos but the suit never made it past the pleadings stage. The
district court granted judgment on the pleadings in favor of the
defendants and, after taking a fresh look, we affirm.
I. FACTUAL BACKGROUND
Since this appeal follows a judgment on the pleadings, we
take the facts from the pertinent pleadings and, here, that means
the amended complaint,1 the answer, the defendants' motion for
judgment on the pleadings, and the plaintiffs' opposition thereto
(with attached meeting minutes). Grajales v. Puerto Rico Ports
Auth., 682 F.3d 40, 43 (1st Cir. 2012).
Plaintiff Najas Realty, LLC ("Najas") is a real estate
development and property holding company and plaintiff Petra
Building Corporation ("Petra") is a home building company. Both
are based in Rhode Island and both have the same principal owner.
Defendant Seekonk Water District (the "Water District") is an
independent governmental entity charged with ensuring and
1 For the most part, and for ease of reference, we will refer
to this as the complaint. The exception will be when we need
to distinguish between different versions of the complaint.
- 3 -
maintaining safe drinking water in Seekonk, Massachusetts (the
"Town"). Defendant Robert Bernardo is the Water District's
Superintendent.
In early 2012, Najas purchased a ten-acre parcel of land in
Seekonk (the "Property"). It filed a preliminary subdivision plan
application with the Seekonk Planning Board seeking to construct
a ten-lot subdivision on the Property, to be called Pine Hill
Estates (the "Pine Hill project").
The Seekonk Board of Health met to discuss the proposal and
Bernardo spoke at the meeting. He expressed concern, which the
plaintiffs call bogus, that the proposed subdivision could impact
the Town's public water supply given its proximity to one of the
Town's wells, known as GP-4. Bernardo contended that the soil in
the vicinity of GP-4 had elevated nitrate levels due to a
malfunctioning septic system that serviced a nearby middle school,
and he asked the Board to consider this fact when contemplating
whether and how the Property should be developed.2 After some
debate, the Board of Health decided to require Najas to perform a
nitrate loading analysis as part of its definitive plan submission,
which, according to plaintiffs, was a costly endeavor.
2According to Bernardo (said at a later meeting), nitrates
are "organic compounds and when found in drinking water it is
typically from sewage disposal systems or fertilizers; they are
colorless, tasteless, and odorless and can't be boiled away."
- 4 -
Later on in the meeting, after the plaintiffs' representative
had left, Bernardo and the board members spoke more about how to
deal with the potential impact of the Pine Hill project, at which
point Bernardo said (among other things) that he wanted Najas "to
go away" and that it should be made to "jump every hurdle."
Bernardo also explained that Najas had outbid the Water District,
which, at some point, had tried to purchase the Property in an
effort to "protect" it.3
The Town's Board of Selectman also convened to discuss the
Pine Hill project.4 Bernardo appeared at that hearing and repeated
his concerns about increased nitrate levels in the area of the
Property. He suggested that increased nitrates from the Pine Hill
project's proposed septic systems could lead to health issues for
3 In their motion for judgment on the pleadings, defendants
claim that it was actually the Seekonk Community Preservation
Committee, and not the Water District, that sought to purchase the
Property but that the Water District supported this proposed
purchase out of concern that any development of the site would
threaten the Town's public water supply. However, in the minutes
of one of the meetings where Pine Hill was discussed, Bernardo
indicated that the Water District had tried to purchase the
property.
4 Around this same time, Najas had another residential
development in the works, Orchard Estates. Najas and the Water
District butted heads over that project too. With Bernardo
claiming water quality concerns, the Water District voted to
require Najas to "loop" the Orchard Estates water line, as opposed
to allowing a less costly "dead ended" line. In the complaint,
Najas suggests that this costly requirement came at the eleventh
hour, causing substantial construction delays and further damages,
and was simply another attempt to harass and hinder Najas.
- 5 -
the residents of Seekonk, including the risk of pregnant or nursing
mothers having their infants contract "Blue Baby Syndrome," a
severe medical condition that causes infants to asphyxiate.
Bernardo reiterated similar concerns at a joint meeting between
the Board of Health, the Board of Selectmen, and the Water
District, which was convened given the concerns that had been
raised about the Pine Hill project. Again, according to
plaintiffs, the unease Bernardo voiced was unfounded.
A couple of months later, following Najas's completion of the
special nitrate loading analysis and submission of its definitive
subdivision plan, the Board of Health met to discuss the plan.
There plaintiffs presented evidence that purported to show that
the Pine Hill project satisfied the regulatory requirements for
septic systems and that the nitrate levels in the area of the GP-
4 well were within regulatory limits. The Board of Health voted
to approve the nitrate loading analysis and the Pine Hill project.
The Planning Board held a public hearing a month later.
Although the Planning Board's peer review engineer had not raised
any concerns regarding the nitrate level in the area or potential
groundwater contamination, Bernardo appeared at the meeting to
again voice worry about the Pine Hill project's impact on the
public water supply, including the potential health consequence of
- 6 -
Blue Baby Syndrome.5 He suggested that the project could cause
the Town to spend hundreds of thousands of dollars dealing with
the increased nitrates and that the data Najas engineers had
submitted to the Board of Health was false. After convening to
review the data, the Planning Board denied the Pine Hill project.
Najas appealed to the Massachusetts Land Court and ultimately
settled that matter by agreeing to reduce the number of lots from
ten to nine and to shorten the road length. The Planning Board
took up the revised plan at another public meeting; again Bernardo
was there sounding the alarm on the water contamination issues.
This time the Planning Board approved the Pine Hill project.
Undeterred, the Water District filed a petition with the Planning
Board to rescind and/or modify the approved plan.
Prior to the hearing on the petition, according to the
plaintiffs, Bernardo embarked on a campaign of defamation,
spreading the same supposed falsehoods about the Pine Hill project
leading to public water contamination and Blue Baby Syndrome. At
the Planning Board hearing, Bernardo raised the same health
concerns, again cautioned the board about the potential cost to
the Town, and suggested that potential buyers of the future homes
could be opening themselves up to legal action. The Planning
Board was not convinced and it denied the Water District's
5Prior to the meeting, a Planning Board member raised
concerns similar to Bernardo's in a local newspaper article.
- 7 -
petition. The Pine Hill project went ahead as planned, though the
plaintiffs claim one more transgression, which is the Water
District unreasonably delaying acting on Najas's application to
connect the Pine Hill project to the public water supply
infrastructure.
II. TRAVEL OF THE CASE
The plaintiffs filed suit, the operative complaint for our
purposes being the amended complaint. In essence, it alleged that
the concerns Bernardo raised about the Pine Hill project's impact
on the Town's water supply were baseless, inflammatory, and
defamatory, and part of a retaliatory campaign by Bernardo and the
Water District meant to "interfere with and ultimately destroy"
the plaintiffs' businesses and reputations. The plaintiffs'
theory was that the defendants were seeking to punish the
plaintiffs for outbidding the Water District on the Property, to
penalize them for seeking to develop it, and to coerce them into
abandoning the project. Plaintiffs alleged that they suffered
hundreds of thousands of dollars in damages, some stemming from
home buyers walking away from lots they had reserved.
As for the legal nuts and bolts, the plaintiffs claimed that
Najas deprived them of their constitutional rights, pursuant to 42
U.S.C. § 1983, and state law rights, citing the state-law analogue
to § 1983, the Massachusetts Civil Rights Act ("MCRA"), Mass. Gen.
Laws Ann. ch. 12, § 11I. Counts I and III contained First
- 8 -
Amendment retaliation claims that, respectively, concerned Najas's
right to petition and freedom of speech, with Counts II and IV
presenting the corresponding Massachusetts claims.6 Count XI was
a Fourteenth Amendment equal protection claim; Count X was its
state law equivalent. And rounding out the constitutional claims
was Najas's Fourteenth Amendment substantive due process claim,
again both federal and state (Counts XII and XIII). Finally,
there was Count XV, this one on behalf of both Najas and Petra,
for tortious interference with advantageous business relations.
A few months after answering the amended complaint, the
defendants, pursuant to Federal Rule of Civil Procedure 12(c),
moved for partial judgment on the pleadings seeking dismissal of
the above-chronicled counts. Defendants maintained that the
plaintiffs had failed to mount a single viable cause of action.
Plaintiffs opposed the motion, claiming that they had met
their pleading burden and, for support, attached the meeting
minutes from various pertinent board meetings. The plaintiffs
also sought leave to file a second amended complaint. The proposed
augmentations had to do with the plaintiffs' equal protection
claim; specifically, plaintiffs sought to identify similarly
6We chart only the relevant counts. There were others (e.g.,
declaratory judgment and defamation counts) that the plaintiffs
voluntarily dismissed and, therefore, are not relevant to this
appeal.
- 9 -
situated comparators and the disparate treatment they were subject
to.7
The district court was unconvinced on all fronts. It ruled
for the defendants, granting judgment in their favor on all of the
disputed counts due to the plaintiffs' failure to state any viable
claims. The court also denied plaintiffs' motion to amend the
amended complaint. It concluded that the motion was futile
because, even with the new additions, the proposed second amended
complaint failed to state an equal protection claim. After the
court granted the plaintiffs' motion to voluntarily dismiss the
remaining counts, final judgment was entered.
Plaintiffs timely appealed. To this court, they maintain
that the district court required too much at the pleading stage
and that the allegations plaintiffs put forth were more than
sufficient to warrant a denial of the motion for judgment on the
pleadings.
III. STANDARD OF REVIEW
We review de novo a trial court's order entering judgment on
the pleadings under Federal Rule of Civil Procedure 12(c) and
dismissing the complaint. Elena v. Municipality of San Juan, 677
F.3d 1, 5 (1st Cir. 2012). We take all well-pleaded facts in the
7
More to be said later but this information could have been
relevant since plaintiffs were advancing a class of one equal
protection theory.
- 10 -
light most favorable to the non-moving party and draw all
reasonable inferences in that party's favor. Gray v. Evercore
Restructuring L.L.C., 544 F.3d 320, 324 (1st Cir. 2008). If,
after we separate these accepted-as-true factual allegations from
any conclusory legal ones (these need not be credited), Grajales,
682 F.3d at 45, we find that "the complaint fails to state facts
sufficient to establish a claim to relief that is plausible on its
face," we must affirm the trial court's judgment on the pleadings.
Gray, 544 F.3d at 324 (citation omitted).
IV. DISCUSSION
Before getting underway with our analysis, we deal with a
couple of preliminary issues. With respect to the § 1983 claims,
plaintiffs must plausibly plead two essential elements, "(i) that
the conduct complained of has been committed under color of state
law, and (ii) that this conduct worked a denial of rights secured
by the Constitution or laws of the United States." Rodríguez-
Reyes v. Molina-Rodríguez, 711 F.3d 49, 55 (1st Cir. 2013). There
is no dispute that Bernardo was acting under the color of state
law and, therefore, we focus on whether his conduct encroached on
the plaintiffs' constitutional rights.
Further narrowing things is the fact that the parties agree
that the MCRA and § 1983 operate co-extensively and so we will not
- 11 -
conduct any separate state law analysis.8 Lyons v. Nat'l Car
Rental Sys., Inc., 30 F.3d 240, 245-46 (1st Cir. 1994) (citing
Batchelder v. Allied Stores Corp., 473 N.E.2d 1128, 1131 (Mass.
1985)).
With that said, we proceed to plaintiffs' claims.
A. First Amendment Claim
When a government actor retaliates against someone for
exercising constitutionally protected First Amendment rights, that
individual has a cognizable retaliation claim pursuant to § 1983.9
Powell v. Alexander, 391 F.3d 1, 16 (1st Cir. 2004). To make out
a valid claim, a plaintiff must first show that his conduct was
constitutionally protected and, second, he must show proof of a
causal connection between the allegedly protected conduct and the
supposedly retaliatory response. Goldstein v. Galvin, 719 F.3d
16, 30 (1st Cir. 2013).
8 There are a couple differences between the MCRA and § 1983,
the only pertinent one for our purposes being that "the MCRA is
narrower than § 1983 in that it limits its remedy to conduct that
interferes with a secured right 'by threats, intimidation or
coercion.'" Nolan v. CN8, 656 F.3d 71, 76 (1st Cir. 2011) (citing
Mass. Gen. Laws Ann. ch. 12, § 11H). Because we find that the
facts alleged do not amount to viable § 1983 claims, they would
necessarily fail to pass this narrower test.
9 This is the general rule for how to state a cognizable
retaliation claim but, as we will explain, things are a little
different when the alleged retaliatory act is itself government
speech.
- 12 -
On the first point, the First Amendment protects (among other
things) the right to free speech and the right to petition all
branches of the government. Powell, 391 F.3d at 16. The
plaintiffs here claim to have exercised both such rights, the
protected petitioning conduct being Najas's submission of the Pine
Hill project applications, and the free speech being Najas speaking
in favor of the Pine Hill project, a matter of public concern
according to plaintiffs.
However, we are not sure we can get on board with plaintiffs'
contention that they engaged in protected petitioning conduct and
free speech. It is not clear that Najas's submission of a
development application would be constitutionally protected
petitioning conduct. Compare EJS Props., LLC v. City of Toledo,
698 F.3d 845, 863 (6th Cir. 2012) (finding that a zoning request,
because it is akin to generally seeking redress from a government
official, constitutes protected petitioning conduct), with WMX
Tech., Inc. v. Miller, 197 F.3d 367, 372 (9th Cir. 1999)
(concluding that an application for a major use permit was not
equivalent to a constitutionally protected petition for redress to
the government). And it is questionable whether Najas's
advocating as a developer for one of its projects would comprise
commentary on a matter of public concern, such that it is
constitutionally protected speech. See Levinsky's, Inc. v. Wal-
Mart Stores, Inc., 127 F.3d 122, 132 (1st Cir. 1997) (providing
- 13 -
that issues of public concern are those "fairly considered as
relating to any matter of political, social, or other concern to
the community").
But, because it is clear that plaintiffs cannot satisfy the
second prong of the test -- establish a causal connection between
the protected conduct and the alleged retaliatory response -- we
will go ahead and assume that the plaintiffs' petitioning and
speech were constitutionally protected. That takes us to the
retaliation piece and, like we said, plaintiffs don't get far.
The claim that Bernardo and the Water District's opposition to the
Pine Hill project was a retaliatory response to the plaintiffs
submitting for approval, and advocating on behalf of, the Pine
Hill project is not plausible on its face.10
Plaintiffs point to Bernardo's "fabricated, false,
inflammatory, and baseless statements" that the Pine Hill project
would contaminate the Town's water supply potentially leading to
10 To this court, plaintiffs focus on the Pine Hill project
but make one quick reference to the Orchard Estates project. They
cite, as an example of retaliatory behavior, the "financially
onerous design and construction requirements" that were imposed in
connection with that project, presumably referring to the looping
of the water line and the attendant delay. To the extent this
argument is developed enough to be preserved, plaintiffs have not
plausibly alleged that the looping requirement was not justified
and was imposed as pay back. The fact that Bernardo's initial
focus, in suggesting the line be looped, was related to water
pressure, and that he later cited "water quality" as a concern,
does not nudge this claim from possible to plausible. And for
reasons we will get into, Bernardo had his own First Amendment
rights.
- 14 -
increased nitrate levels and causing infants to develop Blue Baby
Syndrome. However, there is no indication in the record, other
than plaintiffs' say-so, that Bernardo's concerns about the
project's impact on water were not genuinely held.11
Bernardo continually voiced the same worry about the
project's impact on the water supply, both before various boards
and in the motion to rescind or modify the Pine Hill project. It
was a concern that, according to the Board of Health meeting
minutes plaintiffs provided, members of the board shared even
11
Plaintiffs suggest that newly discovered evidence, which
they submitted to the district court via a supplemental memorandum
of law in support of the motion to amend the amended complaint,
shows that Bernardo's concerns about nitrate levels were fiction.
We are not persuaded. The Seekonk Water District's 2014 Consumer
Confidence Report, which showed that the nitrate level in the
Town's water was within normal limits, came out at least a year
and a half or so after Bernardo initially raised concerns and,
even so, does not mean that his concern about the Pine Hill project
potentially increasing this number was frivolous. The June 2004
Massachusetts Department of Environmental Protection ("MADEP")
report, which plaintiffs cite to show that MADEP was concerned
that all Town wells were susceptible to contamination, is even
less helpful. It was penned eight years before Bernardo raised
his concerns, and we fail to see why, as plaintiffs suggest, this
means that the defendants' specific concerns about the nitrate
level around GP-4 were false. The random couple of emails
plaintiffs produced are similarly not supportive. Bernardo asked
in one email what ways the Water District might be able to stop
the Pine Hill project. This is fully consistent with his oft
repeated goal of preventing the project from going forward. As
for the second email, we can hardly make the leap that plaintiffs
would have us make, which is that the email, in which Bernardo
agreed that for political reasons Town residents did not need to
know how old the drinking water was, means that he "had no actual
concern for public health related to the quality of the water
supply." These supplemental filings do not edge the plaintiffs'
claims out of the realm of possible into plausible.
- 15 -
before Bernardo made his pitch. The minutes also reflect that the
septic system at the nearby middle school had been monitored since
1995 and Bernardo arrived with graphs in hand showing variable and
sometimes excessive nitrate levels in the area.
At the Planning Board meeting, Bernardo repeated more of the
same but took things a step further, noting the correlation between
increased nitrate levels and Blue Baby Syndrome. Though
plaintiffs call such a claim baseless and inflammatory, as the
district court found -- properly taking judicial notice of this
fact12 -- the United States Environmental Protection Agency has
explained: "Infants who drink water too high in nitrates can become
seriously ill and even die. Symptoms include shortness of breath
and blue-tinted skin, a condition known as blue baby syndrome."
https://www.epa.gov/nutrientpollution/effects-human-health (last
visited on Apr. 27, 2016). And the additional supposedly
groundless concern raised by Bernardo, that the potential clean-
up costs of any contamination would be high, was supported by the
Water District's treasurer (he was a certified public accountant
too) who spoke at the meeting.
12See R.G. Fin. Corp. v. Vergara-Nuñez, 446 F.3d 178, 182
(1st Cir. 2006) (explaining that in connection with a motion for
judgment on the pleadings, "[t]he court may supplement the facts
contained in the pleadings by considering . . . facts susceptible
to judicial notice").
- 16 -
Indeed, though the Planning Board ultimately allowed the Pine
Hill project to go forward, bucking Bernardo's clear preference
otherwise, there evidently was some level of agreement with
Bernardo that there was cause for concern. Plaintiffs were
required to both reduce the number of lots and to install five
specially designed septic systems in the future residential lots
closest to the GP-4 well.
All of this is to say that Bernardo had a duty, as the Water
District's superintendent, to raise objections he deemed valid and
it is hard to find any allegations in the complaint that Bernardo
was doing anything more than fulfilling this duty. No doubt the
parties disagreed on the potential impact the Pine Hill project
would have on the Town's water, but the plaintiffs' allegation
that Bernardo's concerns were imagined and raised simply to get
even with plaintiffs is "too meager, vague, or conclusory to remove
the possibility of relief from the realm of mere conjecture."
S.E.C. v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010) (en banc).13
There is another wrinkle. Like we said, in the First
Amendment free speech context, issues of public concern are those
13 Plaintiffs also allege in the complaint that the defendants
"intentionally and unreasonably delayed" acting on Najas's
application to connect Pine Hill to the Town's public water supply
infrastructure. They say no more than this. When an allegation
is so threadbare that it omits any meaningful content, we treat it
as a naked conclusion. A.G. ex rel. Maddox v. Elsevier, Inc., 732
F.3d 77, 81 (1st Cir. 2013). That is the case here.
- 17 -
"fairly considered as relating to any matter of political, social,
or other concern to the community." Levinsky's, Inc., 127 F.3d
at 132. There is little doubt that speech regarding a
development's impact on the public water supply and, by extension,
its impact on resident health, touches on matters of public
concern. And, as superintendent of the Water District, Bernardo
was charged with maintaining safe drinking water for the Town's
residents. As this court has explained, "[n]ot only do public
officials have free speech rights, but they also have an obligation
to speak out about matters of public concern." Goldstein, 719
F.3d at 30. For this reason, courts are not typically receptive
to retaliation claims arising out of government speech. Id. This
case certainly does not persuade us to deviate from this trend.
Plaintiffs have failed to plead a plausible unconstitutional
retaliation claim. We move on to their equal protection offering.
B. Equal Protection Claim
Citing the same facts that support the retaliation claim,
plaintiffs charge the defendants with violating their equal
protection rights. They advance a class of one theory, which
means that the aggrieved parties were singled out for reasons
unique to them, not because of their membership in a particular
group. Snyder v. Gaudet, 756 F.3d 30, 34 (1st Cir. 2014). To
prevail, plaintiffs would need to show that Bernardo and the Water
District intentionally treated them differently from others
- 18 -
similarly situated and there was no rational basis for this
disparate treatment. Id. Based on how the plaintiffs have pled
the claim, they would also need to show that the differential
treatment "was motivated by 'bad faith or malicious intent to
injure.'" Id. (citing Rubinovitz v. Rogato, 60 F.3d 906, 911 (1st
Cir. 1995)).
We have no trouble concluding that the complaint fails to
allege a plausible equal protection claim. The two equal
protection counts (state and federal) simply rehash the
plaintiffs' retaliation claims, relying on the same operative
facts with a couple of buzzwords like "disparate" and
"unprecedented" thrown in to describe the defendants' conduct.
Nothing more is given. This is not sufficient. See Rosaura Bldg.
Corp. v. Municipality of Mayaguez, 778 F.3d 55, 68 (1st Cir. 2015)
(finding that simply rehashing a First Amendment retaliation claim
is not sufficient to make out a valid equal protection claim).
Plaintiffs do not even attempt to allege the existence of any
similarly situated comparators, and as our analysis in the previous
section likely makes clear, they fail to state a plausible claim
that bad faith or malice were the driving factors behind Bernardo
and the Water District's opposition to the Pine Hill project.
"[O]nly in extreme circumstances will a land-use dispute give rise
to an equal protection claim." Torromeo v. Town of Fremont, 438
- 19 -
F.3d 113, 118 (1st Cir. 2006) (citation omitted). This is not one
of those circumstances.
The plaintiffs make a last ditch effort to get around these
deficiencies by arguing that even assuming they needed to identify
comparators at the pleadings stage, the proposed second amended
complaint did just that and, as a result, the district court should
have granted their motion to amend. Employing the abuse of
discretion standard the denial of a motion to amend warrants, and
deferring to the district court's hands-on judgment as we must, we
conclude that the court had sufficient reason to deny the request.
Aponte-Torres v. Univ. of Puerto Rico, 445 F.3d 50, 58 (1st Cir.
2006).
Though the proposed second amended complaint identified ten
subdivisions or land use projects that had been built in the Town,
which the Water District and/or Bernardo had reviewed the plans
for, it in no way explained how the projects were similarly
situated, for example, where they were located, when they were
built, whether they were built on environmentally sensitive sites,
or their proximity to GP-4 or other Town water sources. This does
not cut it, even at the pleading stage.14 See, e.g., Freeman v.
14Because plaintiffs fail to set forth a believable bad faith
or malice claim, their argument that the degree of similarity
between comparators should be relaxed, relying on Cordi-Allen v.
Conlon, 494 F.3d 245, 251 n.4 (1st Cir. 2007), is unavailing.
Even so, their claim would fail the more relaxed standard.
- 20 -
Town of Hudson, 714 F.3d 29, 39-40 (1st Cir. 2013) (concluding
that the complaint's "failure to do more than conclusorily state
that the [plaintiffs] were both similarly situated to and treated
differently from unspecified 'other contractors' is insufficient
to survive the defendants' motion to dismiss"). On top of this,
the proffered additions to the complaint did not address the
complaint's other infirmity, the absence of a believable bad faith
or malice claim. Given these shortcomings, allowing the
plaintiffs to amend the complaint would have been, as the district
court found, pointless. If a proffered amendment would be an
exercise in futility, the district court does not need to allow
it. Aponte-Torres, 445 F.3d at 58. We find no abuse of
discretion.
In sum, plaintiffs' equal protection claim fails as pled, and
the district court correctly precluded plaintiffs from augmenting
it. The next claim fares no better.
C. Substantive Due Process Claim
Plaintiffs, again pointing to the defendants' opposition to
Pine Hill and the requirements imposed on their development
projects, allege that their substantive due process rights were
violated. In order to assert a viable substantive due process
claim, a plaintiff has "to prove that they suffered the deprivation
of an established life, liberty, or property interest, and that
such deprivation occurred through governmental action that shocks
- 21 -
the conscience." Clark v. Boscher, 514 F.3d 107, 112 (1st Cir.
2008) (emphasis in original). We conclude, without serious
question, that plaintiffs fall short.
For starters, we are unclear as to what deprivation plaintiffs
contend they have suffered. Oddly they claim to have been deprived
of life and liberty in their brief. Property appears a better fit
but even that does not seem quite right. Plaintiffs did not lose
out on any land and were not precluded from developing. Both Pine
Hill and Orchard Estates went forward as planned, albeit with some
requirements plaintiffs are not happy with. In any event, even
assuming they have alleged a valid deprivation, plaintiffs have
not plausibly alleged conscience-shocking government behavior.
In the context of land use disputes, "[s]ubstantive due
process is a constitutional cause of action that leaves the door
'slightly ajar for federal relief in truly horrendous
situations.'" Id. (quoting Néstor Colón–Medina & Sucesores, Inc.
v. Custodio, 964 F.2d 32, 45 (1st Cir. 1992)). It is not a
doctrine to be invoked to challenge discretionary determinations
of local decision makers. Id. Despite all of plaintiffs'
protestations otherwise, this matter is far more akin to a run-
of-the-mill land use case than an abhorrent scenario. At most,
plaintiffs have plausibly alleged that Bernardo and the Water
District were doggedly persistent in their belief that the Pine
Hill project would harm that Town's water, a concern that does not
- 22 -
(according to the record) appear baseless, and is one that Bernardo
was obligated to explore. This is hardly the "brutal, demeaning,
and harmful" stuff that makes a substantive due process claim.
Elena, 677 F.3d at 7.
No more need be said. Plaintiffs have not alleged a
plausible-on-its-face substantive due process claim.15
D. Tortious Business Interference Claim
The plaintiffs included a claim against Bernardo individually
for intentional interference with business expectation,
opportunity, and advantage. In it they called Bernardo's
"actions, statements, and publications" regarding the Pine Hill
project a direct attempt to interfere with their business
relations, alleging the actions were malicious and in retaliation
for the plaintiffs outbidding the Water District for the Property
and seeking to develop it.
But, according to Massachusetts common law, "a public
official, exercising judgment and discretion, is not liable for
negligence or other error in the making of an official decision if
the official acted in good faith, without malice, and without
corruption." Nelson v. Salem State Coll., 845 N.E.2d 338, 348
(Mass. 2006). The rule is "that [t]here is every presumption in
15Since we have found no merit to any of plaintiffs'
constitutional claims, we do not need to address Bernardo's
contention that he is entitled to qualified immunity from suits
filed pursuant to § 1983 and the MCRA.
- 23 -
favor of the honesty and sufficiency of the motives actuating
public officers in actions ostensibly taken for the general
welfare." S. Boston Betterment Trust Corp. v. Boston
Redevelopment Auth., 777 N.E.2d 812, 820 (Mass. 2002) (alteration
in original).
Defendants argue that Bernardo is entitled to this immunity.
We agree. For the reasons set forth above, which we see no reason
to rehash, the complaint failed to state a plausible claim that
bad faith or malice, as opposed to a concern for the Town's
residents' general welfare, motivated Bernardo's behavior.
Plaintiffs' conclusory allegations otherwise are not enough. With
Bernardo entitled to immunity on this state law claim, the court
properly dismissed it.
V. CONCLUSION
What the plaintiffs needed to give were sufficient facts to
state plausible-on-their-face claims, ones that gave "rise to more
than a mere possibility of liability." Grajales, 682 F.3d at 44-
45. That is not what we got. The district court's dismissal of
each of the subject claims was warranted.
Affirmed.
- 24 -