Perkins v. City of Attleboro
| Decision Date | 17 September 2013 |
| Docket Number | Civil Action No. 12–11206–GAO. |
| Citation | 969 F.Supp.2d 158 |
| Parties | Dennis PERKINS, Plaintiff, v. CITY OF ATTLEBORO, et al., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
OPINION TEXT STARTS HERE
Kathryn M. Fallon, Attorney Kathryn M. Fallon, Reading, MA, for Plaintiff.
John J. Davis, Adam Simms, Pierce, Davis & Perritano, LLP, Boston, MA, for Defendants.
The magistrate judge to whom this matter was referred has filed a Report and Recommendation (“R & R”) with respect to the defendants' motions to dismiss (dkt. nos. 26, 30). After carefully reviewing the pleadings, the parties' submissions, the R & R, and the plaintiff's objections, I agree with the magistrate judge's analysis and conclusions. I specifically note that despite the plaintiff's objection to the contrary, the magistrate judge properly considered the letter that the plaintiff submitted to the union. See Watterson v. Page, 987 F.2d 1, 3 (1st Cir.1993) ().
Accordingly, I approve and ADOPT the magistrate judge's recommendation in its entirety. The City defendants' Motion to Dismiss (dkt. no. 26) and the Union's Motion to Dismiss (dkt. no. 30) are GRANTED.
It is SO ORDERED.
The plaintiff Dennis Perkins (“Perkins”) is a Captain in the City of Attleboro's Fire Department. He was suspended for five days following an altercation on July 4, 2009 with another firefighter, the defendant Vincent Bailey. Perkins contends, inter alia, that the other defendant firefighters and the defendant International Association of Firefighters Local 848 (the “Union”) improperly interfered with the investigation of the altercation and caused him to be suspended due to his opposition to then-Chief Ronald Churchill's bid to remain as Chief for a year over the age of mandatory retirement.
Perkins has brought a seventeen-count Second Amended Complaint (Docket No. 10) (“Compl.”) against the City of Attleboro, various firefighters in their individual and professional capacities, and the Union, alleging violations of his federal constitutional rights (Counts I–II, IV–VII), as well as violations of his state constitutional, statutory and common law rights. The City, on its own behalf and on behalf of all defendants except the Union (the “City defendants”), has filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. (Docket No. 26).1 For the reasons detailed herein, this court finds that Perkins has failed to state a claim of a violation of his federal constitutional rights. Therefore, this court recommends to the District Judge to whom this case is assigned that the City defendants' motion to dismiss be ALLOWED, that Counts I, II, IV, V, VI and VII be dismissed, and that this court decline to exercise supplemental jurisdiction over the remaining state law claims.
When ruling on a motion to dismiss brought under Fed.R.Civ.P. 12(b)(6), the court must accept as true all well-pleaded facts, and give the plaintiff the benefit of all reasonable inferences. See Cooperman v. Individual, Inc., 171 F.3d 43, 46 (1st Cir.1999). In connection with its motion to dismiss, the City has attached a copy of a letter written by Perkins to the president of the Union dated July 3, 2009, which is referenced in the Complaint. ( See Docket No. 26–2). The plaintiff has not disputed the authenticity of the letter, although he does argue that the City has not affirmatively established its authenticity. He also argues that either the letter should not be considered or the defendants' motion to dismiss should be treated as a motion for summary judgment. For the reasons detailed herein, this court recommends that the letter be considered in the context of a motion to dismiss. There is no basis to convert the motion to one for summary judgment.
“Ordinarily, a court may not consider any documents that are outside of the complaint, or not expressly incorporated therein, unless the motion is converted into one for summary judgment.” Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir.2001). “There is, however, a narrow exception ‘for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to plaintiffs' claim; or for documents sufficiently referred to in the complaint.’ ” Id. (quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir.1993)). In the instant case, Perkins has made repeated references to the letter in his Complaint. ( See, e.g., Compl. ¶¶ 58, 60, 62). In fact, the only statement that Perkins has identified in which he opposed the then-Chief's bid to remain in office past the mandatory retirement age is the letter of July 3, 2009. Accordingly, the letter is central to Perkins' claim that he was retaliated against for exercising his First Amendment rights. ( See, e.g., id. ¶¶ 206–08). The letter should be considered in connection with the motion to dismiss.
Plaintiff relies on Berk v. Ascott Inv. Corp., 759 F.Supp. 245 (E.D.Pa.1991), for the proposition that “the document must be ‘incorporated by reference’ into the Plaintiff's Complaint; a summary of the content or limited quotations do not constitute ‘incorporation by reference.’ ” ( See Pl. Opp. (Docket No. 33) at 3). Berk, however, presents a very different factual scenario. In Berk, the court was assessing the sufficiency of a complaint in class actionsecurities litigation. The plaintiffs had alleged that the defendants had made numerous misrepresentations in a number of documents, and had only summarized the alleged misrepresentations in the complaint. Id. at 249. The court declined to consider one of the documents, an Offering Memorandum, which had been attached to one of the defendants' briefs, because it was only one of a number of documents in which misrepresentations were allegedly made, and because it was not expressly incorporated by reference into the complaint. Id. Therefore, the court ruled that it did “not find that consideration of the Offering Memorandum at this point in the litigation will help resolve the motion to dismiss.” Id. at 249–50.
In sharp contrast, in the instant case, the plaintiff has identified only one communication on which he relies, the communication is easily identifiable from the Complaint, and it is not necessary to parse the content of a long, complicated document to determine which part, or why, it is relevant to the plaintiff's claim. This is a situation, also recognized by the Berk court, where the authenticity of the document is not in dispute and it may appropriately be considered in ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Id. at 249 and cases cited.
Applying these principles, the facts relevant to the motion to dismiss are as follows.
Perkins was appointed as a permanent Firefighter/Paramedic for the City of Attleboro Fire Department on July 24, 2000. (Compl. ¶ 53). He was promoted to the position of Captain on December 1, 2002, and has held that position since then. ( Id. ¶ 55). The defendant Ronald Churchill was the Fire Chief. ( Id. ¶ 57). In 2009, Churchill sought to retain his position as Chief notwithstanding the fact that he had attained the maximum age for that position. ( Id.).
On July 3, 2009, Perkins submitted a letter to the Union president opposing the extension of Churchill's service. ( Id. ¶ 58). In the letter he wrote:
President Dubuc,
Honorable Mayor Dumas has recently announced his support in regards to extending the cities [sic] fire chief's tenure for an additional year based on the cities [sic] forecasted financial challenges. I am strongly opposed.
Chief Churchill has served with distinction for many years, but it [sic] time for a leadership change. The retirement laws governing group four employees clearly state that firefighters are not exempt from mandatory retirement unless age is determined to be a non essential qualification. The stresses associated with the profession extend from the junior most firefighter to the highest ranking department representative as illustrated by annual loss data documenting 100–110 firefighter line of duty deaths each year. The majority of untimely deaths are secondary to coronary or other cardiovascular failures. The American Heart Association lists age as a significant risk factor in experiencing such an event. Therefore, age is an essential qualification.
Chief Churchill actively participates in both interior and exterior management functions at a fire scene in addition to those stresses associated with his managerial obligations. For example, the chief bravely directed interior operations at the district court fire several weeks ago. Interior conditions were such that all members, including the chief, donned breathing apparatus.
Mayor Dumas cited the chief's leadership experience as a necessity to progressthrough the next fiscal year and groom a successor based on the results of a civil service exam. The promotion to fire chief exam was held last March, and upon certification will yield viable candidates ready and willing to assume the position. The process produces a list that extends beyond the requested years extension making an additional exam unwarranted. There would be no better time than the present to groom a successor. A year extension is unnecessary and will not change fiscal hardships that historically plague public service agencies.
City and state leaders are currently under severe financial constraints that require active leadership. A department head change will significantly reduce payroll output on the city side similar to early buyout programs. It is clear that savings is a priority for the city. Unions have been requested by city administrators for monetary concession and a hiring freeze...
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...job responsibilities.The cases relied on by the defendants are easily distinguishable. For example, in Perkins v. City of Attleboro , 969 F.Supp.2d 158 (D.Mass.2013), a Captain of the Fire Department wrote a letter to the union president in furtherance of his role as a union member, which r......
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Tian v. Aspen Tech., Inc., CIVIL ACTION NO. 12-11793-GAO
...summary judgment or anywhere else in her motion papers. Therefore, any such claims have been waived. See Perkins v. City of Attleboro, 969 F. Supp. 2d 158, 177 (D. Mass. 2013) (where plaintiff failed to address claim for violation of his right to privacy in his opposition to defendant's mot......
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Tian v. Aspen Tech., Inc.
...summary judgment or anywhere else in her motion papers. Therefore, any such claims have been waived. See Perkins v. City of Attleboro, 969 F.Supp.2d 158, 177 (D.Mass.2013) (where plaintiff failed to address claim for violation of his right to privacy in his opposition to defendant's motion,......
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Tian v. Aspen Tech., Inc.
...summary judgment or anywhere else in her motion papers. Therefore, any such claims have been waived. See Perkins v. City of Attleboro, 969 F.Supp.2d 158, 177 (D.Mass.2013) (where plaintiff failed to address claim for violation of his right to privacy in his opposition to defendant's motion,......