Gianfrancesco v. Town of Wrentham

United States Court of Appeals
For the First Circuit

No. 12-1677

THOMAS GIANFRANCESCO,
d/b/a Tom's Tavern and Oyster Bar,
and as Trustee of Shears Street Realty Trust,

Plaintiffs, Appellants,

LINDY'S INC.,

Plaintiff,

v.

TOWN OF WRENTHAM ET AL.,

Defendants, Appellees.

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

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

Before

Howard, Stahl, and Thompson,
Circuit Judges.

Edward J. McCormick, III for appellants.
Judy A. Levenson, with whom Deidre Brennan Regan and Brody,
Hardoon, Perkins & Kesten, LLP were on brief, for appellees.

April 5, 2013
 STAHL, Circuit Judge. Thomas Gianfrancesco, the former

proprietor of a now-defunct bar and restaurant in Wrentham,

Massachusetts, sued the Town of Wrentham and a number of town

officials, claiming federal civil rights violations and unfair

trade practices.1 He alleges that the defendants maliciously

imposed excessive regulatory requirements on his restaurant in

retaliation for his opposition to certain town policies. The

district court dismissed his complaint for failure to state a

claim. After careful consideration, we affirm.

I. Facts & Background

We draw the following facts from Gianfrancesco's amended

complaint. See Katz v. Pershing, LLC, 672 F.3d 64, 69 (1st Cir.

2012). From 1998 to 2009, Gianfrancesco owned and operated Tom's

Tavern, a restaurant and bar in Wrentham. At various times,

Gianfrancesco appeared before local governmental bodies (including

the Board of Health, the Planning Board, the Zoning Board of

Appeals, and the Board of Selectmen) to voice his opinion -- most

often critical -- of "the town's regulations and enforcement of

various rules and code provisions concerning local businesses." In

2003, he "openly and publicly defied" the Town's smoking

ordinances, which resulted in state court litigation (the outcome

of which is not described in the complaint).

1
The other named defendants are John McFeeley, Robert
Bogardus, Glen Brown, Ravi Nadvani (whose name, we are told, is
properly spelled "Nadkarni"), and "certain town officials."

-2-
 Gianfrancesco alleges that, during and after the state

court proceedings, the defendants subjected Tom's Tavern to a

pattern of deliberate and selective application and enforcement of

town regulations. This pattern included: repeated inspections

aimed at ferreting out violations; repeated requests for

information; and a series of unjustified orders requiring

"improvements, additions, and renovations," including septic and

sprinkler system upgrades. Gianfrancesco alleges that all of these

actions were deliberately directed at Tom's Tavern and not at

"other similarly situated establishments," and that they were

undertaken "in direct retaliation against Mr. Gianfrancesco for the

exercise of his First Amendments Rights of expression and speech in

criticizing town government and defying the smoking by-law." He

also alleges that during a 2009 meeting regarding the sprinkler

system requirements, the Town Administrator "made remarks to the

effect that 'Tom's Tavern' should be shut down." Indeed, in early

2009, Tom's Tavern "was forced out of business," allegedly "due to

the deliberate and intentional misconduct of the defendants."

Gianfrancesco (on his own behalf and as Trustee of the

Shears Street Realty Trust, which apparently owned the land where

Tom's Tavern was located), along with "Lindy's Inc." (a

Massachusetts corporation whose role here is not clear), brought a

welter of claims against the defendants in Norfolk Superior Court.

The defendants removed the case to the district court. After much

-3-
procedural skirmishing, two sets of claims remained. The first set

alleged violations of Gianfrancesco's free speech, due process, and

equal protection rights under 42 U.S.C. § 1983. The second set

alleged violations of Mass. Gen. Laws ch. 93A, the state unfair-

trade-practices law. The district court dismissed the § 1983

claims on the grounds that they were vague, failed to connect any

of the alleged harms to any particular defendant, and did not

establish a basis for municipal liability. Gianfrancesco v. Town

of Wrentham, No. 09-12222-RWZ, 2012 WL 1164967, at *2 (D. Mass.

Apr. 9, 2012). The court jettisoned the state law claims on the

basis that chapter 93A does not apply beyond the "business

context," and "the amended complaint does not even suggest any

business context nor does it allege any unfair act or deceptive

practice." Id. at *3. This appeal followed.

II. Analysis

A. Standing

Although the defendants wholeheartedly endorse the

district court's dismissal of Gianfrancesco's amended complaint for

failure to state a claim, they also offer another basis for

affirmance: that Gianfrancesco lacks standing to bring his claims.

The gist of the defendants' argument is that Gianfrancesco (who is

the sole remaining plaintiff in the case2) lacks standing to sue

2
The parties agreed to voluntarily dismiss the claims by
Lindy's Inc. and Gianfrancesco-as-Trustee, thus removing those
plaintiffs from the case. Gianfrancesco, 2012 WL 1164967, at *1.

-4-
them for harms inflicted on his business, Tom's Tavern. This

argument invokes the shareholder-standing rule, under which a

corporate shareholder (even a sole shareholder) may not sue in his

own name to redress injuries suffered solely by the corporation.

See Pagán v. Calderón, 448 F.3d 16, 28-30 (1st Cir. 2006); 13A

Charles Alan Wright et al., Federal Practice & Procedure

§ 3531.9.2, at 704 (3d ed. 2008).

Standing doctrine has two elements: an "irreducible

constitutional minimum," Lujan v. Defenders of Wildlife, 504 U.S.

555, 560 (1992), and a prudential component, see Allen v. Wright,

468 U.S. 737, 751 (1984). The former requires that a plaintiff

allege a concrete injury that is fairly traceable to the

defendant's conduct and likely to be redressed by the requested

relief. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006);

Lujan, 504 U.S. at 560-61. The latter has various aspects,

including a requirement that a party "assert his own legal rights

and interests," not those of third parties. Warth v. Seldin, 422

U.S. 490, 499 (1975). The shareholder-standing rule is a species

of prudential limitation, not a component of the core

constitutional standing requirement. See Franchise Tax Bd. of Cal.

v. Alcan Aluminium Ltd., 493 U.S. 331, 336-37 (1990).

Here, the ownership structure of Tom's Tavern is actually

unclear. The amended complaint lists Gianfrancesco as "d/b/a Tom's

Tavern" in the caption, but elsewhere alleges that he is "the owner

-5-
and operator of Tom’s Tavern." The complaint also says that

Lindy's Inc. is "d/b/a Tom's Tavern" and "is a Massachusetts

corporation." It is unclear from these descriptions whether "Tom's

Tavern" is some separate corporate entity or is simply a business

name for Lindy's, Inc. (or is something else entirely). Of course,

if Tom's Tavern (whatever its formal designation) is not a

corporation in which Gianfrancesco has an interest, the

shareholder-standing rule likely does not apply to him. But, in

light of this confusion, we think it prudent to bypass the

shareholder-standing issue in favor of a more straightforward

resolution on the merits. We are able to do so because, although

we may never bypass a question of constitutional standing to reach

the merits of a case, see Steel Co. v. Citizens for a Better Env't,

523 U.S. 83, 93-102 (1998), the same is not true of prudential

standing limitations like the shareholder-standing rule, see Grubbs

v. Bailes, 445 F.3d 1275, 1281 (10th Cir. 2006) (collecting cases).

For example, in Franchise Tax Board, a pair of foreign

parent companies challenged the constitutionality of taxes imposed

on their subsidiaries; the defendants disputed their standing to do

so. 493 U.S. 334-35. The Supreme Court found that the parent

companies had Article III standing, but assumed without deciding

that they could duck the shareholder-standing rule (and thus show

prudential standing) because a statute barred their claim anyway.

See 493 U.S. at 336-38. Following the Court's example, we need not

-6-
decide whether the shareholder-standing rule bars Gianfrancesco's

claims because we conclude that, under any construction of the

allegations in his complaint, see Allen, 468 U.S. at 752, he does

have Article III standing and, as explained below, his claims fail

on the merits.

If Tom's Tavern is simply the name under which

Gianfrancesco personally does business, then he has Article III

standing because he suffered direct financial harm as a result of

the defendants' alleged conduct. See Danvers Motor Co. v. Ford

Motor Co., 432 F.3d 286, 291 (3d Cir. 2005) (noting that economic

harm is a "paradigmatic" injury-in-fact for standing purposes).

And if Tom's Tavern is a separate corporate entity of some sort, he

has Article III standing for the same reason the parent companies

had it in Franchise Tax Board: the defendants' actions, although

taken against his business rather than against Gianfrancesco

himself, caused him "actual financial injury" by driving Tom's

Tavern out of business. See 493 U.S. at 336; see also SBT

Holdings, LLC v. Town of Westminster, 547 F.3d 28, 37-38 (1st Cir.

2008) (plaintiffs suffered Article III injury-in-fact by virtue of

actions taken against their business, which caused them "direct and

consequential financial harm"). At the pleading stage, when

"general factual allegations . . . may suffice" to show standing,

Lujan, 504 U.S. at 561, no more is required, see Franchise Tax Bd.,

493 U.S. at 336.

-7-
B. Failure to State a Claim

To survive a motion to dismiss for failure to state a

claim, a complaint need not present "detailed factual allegations,"

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), but it "must

contain sufficient factual matter, accepted as true, to 'state a

claim to relief that is plausible on its face,'" Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The

precise parameters of the plausibility standard are "still a work

in progress," Menard v. CSX Transp., Inc., 698 F.3d 40, 45 (1st

Cir. 2012), but, at bottom, a complaint's non-conclusory factual

content must "allow[] the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged," Iqbal,

556 U.S. at 663. An "unadorned, the-defendant-unlawfully-harmed-me

accusation" will not do. Id. at 678. We review the district

court's dismissal de novo, construing the complaint and drawing any

reasonable inferences in Gianfrancesco's favor. Harron v. Town of

Franklin, 660 F.3d 531, 535 (1st Cir. 2011).

Gianfrancesco's amended complaint asserts claims under 42

U.S.C. § 1983 for violations of his rights to "free-speech, freedom

of enterprise, due process of law and equal protection." See West

v. Atkins, 487 U.S. 42, 48 (1988) (to state a § 1983 claim, a

plaintiff must allege that a person acting under color of state law

violated his federally secured rights). On appeal, however,

Gianfrancesco has offered no developed argument regarding his First

-8-
Amendment or freedom-of-enterprise claims; thus, we do not consider

them. See Wilson v. Moulison N. Corp., 639 F.3d 1, 6 (1st Cir.

2011); United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

Gianfrancesco's due process claim is of the substantive

sort, and alleges executive (rather than legislative) misconduct.3

Thus, he must plausibly allege that the actions taken against him

were so egregious as to shock the conscience and that they deprived

him of a protected interest in life, liberty, or property. Harron,

660 F.3d at 536. He has not done so. Construed in Gianfrancesco's

favor, the amended complaint describes a pattern of selective and

excessive enforcement of municipal regulations. But it is

remarkably vague. The complaint says that Tom's Tavern was subject

to "inapplicable" septic and sprinkler system requirements, but it

does not say how or when it was subjected to these requirements, or

by whom; it also does not say what makes the requirements

excessive. None of these missing facts should be beyond

Gianfrancesco's reach. Cf. Menard, 698 F.3d at 45-46 (allowing

"modest discovery" to seek the "missing link" where necessary

information was in the defendants' control). In any event, even if

Gianfrancesco has established that Tom's Tavern was subjected to

unlawful regulation, he has not plausibly alleged that this

overreaching was "a brutal and inhumane abuse of official power,"

3
Insofar as Gianfrancesco's brief hints at a procedural
due process argument, that argument is too undeveloped (and too
tardy) for us to consider. See Zannino, 895 F.2d at 17.

-9-
or "truly outrageous, uncivilized, and intolerable." Harron, 660

F.3d at 536 (citation and internal quotation marks omitted)

(affirming dismissal of substantive due process claim by bar owner

who alleged that town forced him out of business). The complaint

is devoid of allegations actually describing the defendants'

conduct, and accusatory adverbs like "wrongfully," "deliberately,"

and "selectively" cannot carry a factually inadequate complaint

across the pleading threshold. Cf. Iqbal, 556 U.S. at 686-87.

Gianfrancesco's equal protection claim is similarly

deficient. Under the class-of-one rubric, an equal protection

plaintiff may press a claim "that [he] has been intentionally

treated differently from others similarly situated and that there

is no rational basis for the difference in treatment," even where

he does "not [show] membership in a class or group." Vill. of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam). But,

as we recently explained, a class-of-one plaintiff bears the burden

of showing that his comparators are similarly situated in all

respects relevant to the challenged government action.

Middleborough Veterans' Outreach Ctr., Inc. v. Provencher, No.

12-1347, 2013 WL 135719, at *3 (1st Cir. Jan. 11, 2013); see

Rectrix Aerodrome Ctrs., Inc. v. Barnstable Mun. Airport Comm'n,

610 F.3d 8, 16 (1st Cir. 2010). Gianfrancesco says that he has

carried this burden by identifying one similarly situated business

(the Anvil Pub), but we do not agree. The complaint makes no

-10-
effort to establish how or why the Anvil Pub is similarly situated

to Tom's Tavern in any relevant way, and does not mention any other

putative comparator. It simply says that the regulatory and

enforcement measures taken against Tom's Tavern were not also taken

against "similarly situated establishments." These are "assertions

nominally cast in factual terms but so general and conclusory as to

amount merely to an assertion that unspecified facts exist to

conform to the legal blueprint." Menard, 698 F.3d at 45. And

there is no suggestion that Gianfrancesco lacks the information

needed to identify similarly situated businesses. Cf. Barrington

Cove Ltd. P'ship v. R.I. Hous. & Mortg. Fin. Corp., 246 F.3d 1, 9

(1st Cir. 2001) (plaintiff had access to necessary information and

"readily could have alleged sufficient facts in its amended

complaint to demonstrate that [other parties] were similarly

situated"). In light of these shortcomings, Gianfrancesco has not

pled a plausible class-of-one claim. See id. at 8-10.4

That leaves only Gianfrancesco's chapter 93A claim. But,

because he has not challenged the district court's dismissal of

that claim, we need not address it. See Wilson, 639 F.3d at 6.

4
Because we find that Gianfrancesco has failed to
plausibly allege due process or equal protection violations, we
need not consider whether he has pled a basis for municipal
liability under Monell v. New York City Department of Social
Services, 436 U.S. 658 (1978). "[P]olicy or practice aside, a
municipality cannot be liable for the actions of its officials
under Monell if those actions 'inflicted no constitutional harm.'"
Robinson v. Cook, 706 F.3d 25, 38 (1st Cir. 2013) (quoting City of
Los Angeles v. Heller, 475 U.S. 796, 799 (1986)).

-11-
 III. Conclusion

For the foregoing reasons, we affirm the judgment of the

district court.

-12-