Tomaselli v. Beaulieu

• Decision Date: 30 August 2013
• Docket Number: Civil Action No. 08–10666–RWZ.
• Parties: Gracemarie TOMASELLI and Joyce Tomaselli v. Donald W. BEAULIEU, et al.
• Court: U.S. District Court — District of Massachusetts

967 F.Supp.2d 423

Gracemarie TOMASELLI and Joyce Tomaselli

v.Donald W. BEAULIEU, et al.

Civil Action No. 08–10666–RWZ.

United States District Court, D. Massachusetts.

Aug. 30, 2013.

Scott F. Gleason, Gleason Law Offices, P.C., Haverhill, MA, for Gracemarie Tomaselli and Joyce Tomaselli.

Thomas W, McEnaney, Janelle M. Austin, Kopelman & Paige, PC, Boston, MA, for Donald W. Beaulieu, et al.

ORDER ON OBJECTIONS TO THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

ZOBEL, District Judge.

Based upon a careful and exhaustive analysis of the facts and the applicable law of this exhausting case, the Magistrate Judge recommends allowance of defendants' motion to dismiss. Plaintiffs object to the entirety of the Report and Recommendation (“R & R”) (Docket # 173); defendants only object to the recommendation that the court decline to exercise pendent jurisdiction over the state law claims.

Plaintiffs' objections (Docket 175 and 177) are overruled.

Defendants' objections (Docket # 176) are sustained with respect to the recommendation that the court not decide the state claims on the merits. Given the age of the underlying dispute, the effort expended in litigating it by all parties and the court, and the fact that the Magistrate Judge did address the merits of the state law claims, it is appropriate that the court exercise its discretion to reach a final judgment on the entire dispute. Moreover, this court is in full agreement with the recommendations pertaining to the merits of the state claims. Accordingly, the motionto dismiss the complaint is allowed as to all claims contained therein.

Judgment may be entered dismissing the complaint with prejudice.

REPORT AND RECOMMENDATION ON THE MUNICIPAL DEFENDANTS' MOTION TO DISMISS

DEIN, United States Magistrate Judge.

I. INTRODUCTION

This action arises out of a long-running dispute between the plaintiffs, Gracemarie Tomaselli and Joyce Tomaselli, and the Town of Salisbury, Massachusetts, relating to a sewer betterment assessment that was imposed by the Town in 1992 and the manner in which the Town calculated the related sewer user fees.¹ This matter is presently before the court on the motion of the Town and its current and former officials (the “Municipal Defendants”) ² to dismiss the Second Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(4), 12(b)(5) and 12(b)(6). (Docket No. 158).

By their motion, the Municipal Defendants are seeking the dismissal of all the claims asserted against them in the Second Amended Complaint (Docket Nos. 33 & 43). Specifically, the Tomaselli's have asserted claims pursuant to 42 U.S.C. § 1983 alleging violations of their First, Fifth and Fourteenth Amendment due process and equal protection rights and their comparable rights under the Massachusetts Declaration of Rights (Counts I–V),³ claims of unfair or deceptive acts or practices in violation of Mass. Gen. Laws ch. 93A (Counts VI and VII), claims that the defendants engaged in or conspired to enter into a criminal enterprise in violation of the Racketeer Influence and Corrupt Organization Act (“RICO”), 18 U.S.C. § 1961 (Counts VIII and IX), and a claim of conspiracy to commit and the commission of conversion, defamation, intentional infliction of emotional distress, abuse of process, invasion of privacy, intentional interferencewith advantageous business relations, misrepresentation and negligent misrepresentation (Count X).

For the reasons detailed herein, this court recommends to the District Judge to whom this case is assigned that the Municipal Defendants' Motion to Dismiss be ALLOWED.

II. STATEMENT OF FACTS⁴

Scope of the Record

When ruling on a motion to dismiss, 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). “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, the parties have attached various documents to their pleadings. To the extent the documents meet this exception they will be considered herein. Otherwise, they will not be considered, as this court is not converting the pending motion into a motion for summary judgment.

This statement of facts focuses on those facts that are relevant to the Municipal Defendants. Additional facts can be found in this court's Reports and Recommendations on Town Counsel's Motion to Dismiss and on the Coppola Defendants' Motion to Dismiss (Docket Nos. 90 and 91).

Background⁵

The Tomasellis own real property located in Salisbury, Massachusetts. (Compl. ¶ 1). The plaintiffs allege that from 1969 until 1981, the Town entered into a series of agreements with both state and federal agencies to secure funding for sewer rehabilitation projects and the construction of a municipal water treatment facility in Salisbury. ( Id. ¶¶ 14–15). This work was done to satisfy a consent judgment the Town had entered into on June 12, 1969 in connection with charges of violations of environmental laws and regulations. ( Id. ¶ 16). Salisbury's agreements required certain costs to be covered by the Town, which was accomplished by charging Salisbury residents a betterment fee and sewer usage fees, which were approved by Town votes in 1990 and 1992. ( Id. ¶ 33).

The 1992 vote authorizing the sewer betterment charges was held on January 27, 1992. (Defs. Ex. 4). On September 12, 1992, the Tomasellis opened a restaurant located at their property. (Compl. ¶ 42). On December 30, 1994, they were informed by the Town tax collector that their business licenses were being withheld for non-payment of taxes, and the restaurant was forced to shut down. ( Id. ¶¶ 43–44). They have been fighting the bettermentassessment and sewer usage fees since then.

Statutory Scheme

Since a general understanding of the statutory scheme relating to sewer charges is helpful in understanding the events that transpired in this matter, a brief overview will follow.

The betterment assessment at issue was a one-time fee earmarked for costs associated with construction of the sewer projects. SeeMass. Gen. Laws ch. 80, § 1 (Assessment of cost of public improvements). By statute, municipalities may assess each parcel which receives the benefit of a public improvement a “proportionate share of the cost of such improvement.” Id. According to the plaintiffs, they were charged a betterment fee of $15,500.00 in 1992, which they chose to amortize over twenty (20) years, payable annually, which has not been paid in full. ( See Pls. Opp. at 3). The plaintiffs contend that they were wrongfully charged the betterment fee since it was not recorded and they were not aware of it when they purchased their property. ( Id.; Compl. ¶ 30). In addition, the plaintiffs contend that the sewer project was, in fact, paid for through state and federal funds and not the Town, and that the betterment assessment is, in reality, an illegal tax. (Compl. ¶¶ 31–32). As detailed below, with respect to this latter contention the Tomasellis contend that they did not learn of the relevant facts until approximately 2005–2006.

Pursuant to Mass. Gen. Laws ch. 80, § 5, “[t]he owner of any real estate upon which betterments have been assessed may, within six months after notice of such assessment has been sent out by the collector, file with the [town] board a petition for an abatement thereof[.]” ⁶ There is a right to appeal the refusal of the board to abate an assessment in whole or in part within 30 days of the adverse decision “by filing a petition for the abatement of such assessment in the superior court for the county in which the land assessed is situated.” Mass. Gen. Laws ch. 80, § 7. In the alternative, a person aggrieved by the board's decision may appeal within 30 days of the adverse decision “to the county commissioners of the county in which the land assessed is situated.” Mass. Gen. Laws ch. 80, § 10.

Sewer usage fees are charged for costs associated with the ongoing operation of the sewer system. ( See Pls. Opp. at 3). SeeMass. Gen. Laws ch. 83, § 16 (Charge for use of sewers). The plaintiffs contend that at the time they purchased their property, the title search and municipal lien certificate failed to disclose the existence of any outstanding charges, but that shortly after the closing they learned of an outstanding $5,320.92 sewer use fee that the seller paid after the closing. (Pls. Opp. at 3). According to the plaintiffs, “[i]t has become obvious the Defendants intentionally and fraudulently hid the excessive sewer user charges and the alleged special assessments from the Plaintiffs when the Plaintiffs purchased the property.” (Compl. ¶ 39). In addition, the plaintiffs contend that instead of assessing such fees “in a fair and equitable manner based on actual water usage method [,]” the “Town has assessed sewer user fees in an arbitrary and discriminatory manner.” ( Id. ¶ 34).

The procedure for challenging a sewer usage fee is set forth in Mass. Gen. Laws ch. 83, §§ 16A–16G. Sewer usage fees that remain unpaid become a lien on the property, and the refusal of a board of assessors to issue an abatement is appealableto the Appellate Tax Board (“ATB”). Id.Mass. Gen. Laws ch. 59, § 59 (made applicable to challenges to sewer usage fees by Mass. Gen. Laws ch. 83, § 16E) requires that an application for an abatement must be filed with the assessors within 30 days of the issuance of a tax bill containing the lien. An aggrieved party then has...