COMMONWEALTH OF MASSACHUSETTS ex rel.
Civil Action No. 18-11336-FDS
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
June 30, 2021
SAYLOR, C.J.
MEMORANDUM AND ORDER ON DEFENDANTS’ MOTIONS TO DISMISS AND MOTION FOR JUDGMENT ON THE PLEADINGS
SAYLOR, C.J.
This case involves the allegedly improper disposal of firearms by cities and towns in Massachusetts. Plaintiff-relators Mykel Powell, Commonwealth Second Amendment, Inc., and Brent Carlton, on behalf of the Commonwealth of Massachusetts, have sued 14 cities and towns under the Massachusetts False Claims Act for improperly disposing of firearms surrendered under state law. They also assert claims on behalf of the Commonwealth against a local gun shop and two police officers, in their individual and official capacities, for their participation in the alleged firearms-disposal scheme. Powell has brought two claims on his own behalf against three police officers, in their individual and official
The municipalities and the police officers have moved to dismiss for failure to state a claim upon which relief can be granted. For the reasons set forth below, those motions will be granted in part and denied in part.
I. Background
A. Factual Background
The following facts are presented as alleged in the complaint unless otherwise noted.
1. The Parties
Mykel Powell is a citizen of Rhode Island. (Compl. ¶ 8).
Commonwealth Second Amendment, Inc. (“Comm2A“) is a Massachusetts corporation. (Id. ¶ 9). The president of Comm2A is Brent Carlton, who is a resident of Oregon. (Id. ¶ 10).
Brian Holmes, James O‘Connor, and Donna McNamara (collectively, the “Stoughton Defendants“) are members of the Stoughton Police Department. (Id. ¶¶ 11-13).
Village Gun Shop, Inc., d/b/a Village Vault, is a Massachusetts corporation. (Id. ¶ 14). It is owned, at least in part, by Peter Dowd, who is a resident of Massachusetts. (Id. ¶ 15).
The Cities of Springfield, Chicopee, Medford, and Gardner, and the Towns of Plymouth, Winchester, Dedham, Reading, Wakefield, Wilmington, Andover, Foxborough, Hudson, and Saugus (collectively, the “Municipality Defendants“) are municipalities organized under Massachusetts law. (Id. ¶¶ 16-29).
2. Seizure and Sale of Powell‘s Firearms and Ammunition
On November 26, 2015, Powell was arrested by the Stoughton Police Department. (Id. ¶ 36). He was charged with breaking and entering, assault and battery, and intimidation of a witness. (Id.). As a result of that arrest, the Stoughton Police Department suspended his License to Carry (“LTC“) a firearm. (Id. ¶ 37). After advising Powell of the suspension, Holmes took custody of Powell‘s LTC as well as his handgun, rifle, rifle ammunition, and rifle carrying bag. (Id.).
The criminal charges against Powell resulted in a continuance without a finding and a period of probation. (Id. ¶ 38). The charges were ultimately dismissed on August 3, 2016. (Id.).
Over the following two months, Powell, who had since moved to Rhode Island, repeatedly attempted to contact Holmes about his property. (Id. ¶¶ 39-40). He eventually made contact on September 29, 2016. (Id. ¶ 40). According to the complaint, Holmes informed Powell that he would not reinstate his LTC until he made “lifestyle changes.” (Id.). He would, however, transfer the property to a licensed firearms dealer in Rhode Island if Powell obtained the appropriate firearms license for that state. (Id.).
The complaint alleges that less than one week later, O‘Connor instead transferred Powell‘s property to Village Vault. (Id. ¶ 44). Village Vault then sold the handgun but retained custody of the rifle. (Id.).1
On October 24, 2016, about a month after speaking with Holmes, Powell obtained a Rhode Island Pistol/Revolver Safety Certificate, which authorized him to
Powell sued Holmes and O‘Connor on May 3, 2017. (Id. ¶ 2). The complaint in that action asserted two counts under
Shortly thereafter, on July 5, 2018, O‘Connor advised Powell that the Stoughton Police Department had “re-acquired” the rifle and that Powell could “sell or transfer the firearm to a person or entity with a valid firearm license (FID, LTC and/or FFL).” (Id. ¶ 45). A designee of Powell has since taken possession of the rifle. (Id. ¶ 57).
3. Arrangements Between Village Vault and Massachusetts Municipalities
The complaint alleges that Village Vault and Dowd maintain “arrangements” with several cities and towns in Massachusetts through which police departments transfer to Village Vault certain firearms that have been surrendered under Massachusetts law. (Id. ¶ 46). In exchange, Village Vault either pays the police departments by check or “credits” them an amount that can be used to make purchases from Village Vault. (Id. ¶¶ 46, 48). Village Vault then sells the firearms for its own profit. (Id. ¶ 47).
The complaint identifies 15 municipalities—Stoughton and the fourteen named Municipality Defendants—that operate pursuant to such alleged agreements. (Id. ¶ 46).2 It details specific transactions between those municipalities and Village Vault, including the date of each transaction, the number of firearms transferred, and the payment or credit provided to the relevant police department. (Id. ¶¶ 50-112). It further alleges (on information and belief) that Village Vault and Dowd maintain similar arrangements “with police departments and/or police department personnel throughout the Commonwealth of Massachusetts.” (Id. ¶ 49).
B. Procedural Background
On June 27, 2018—two days before Powell‘s original action was dismissed—Powell and Comm2A filed this action on behalf of the Commonwealth of Massachusetts. Powell also brought a claim under
The complaint has since been amended three times. The third amended complaint asserts four claims. Powell, Comm2A, and Carlton assert two claims on behalf of the Commonwealth of Massachusetts: one against O‘Connor, McNamara, Village Vault, and the Municipality Defendants for violating the Massachusetts False Claims Act (“MFCA“),
The Stoughton Defendants have moved to dismiss Counts 1 and 3 for failure to state a claim under
II. Legal Standard
Motions to dismiss under
An action brought by a relator on behalf of the Commonwealth of Massachusetts alleging violations of the MFCA must satisfy the heightened pleading standard of
In the context of an action brought by a relator,
III. Analysis
A. Count 1: 42 U.S.C § 1983
Count 1 alleges a claim under
1. Timeliness
As an initial matter, plaintiff contends that the motion of the Stoughton Defendants is untimely. He contends that they may not move to dismiss Count 1 or Count 3 because they “already answered these exact same claims when they filed their answer to the (First) Amended Complaint.” (Dkt. No. 111 (“Pl. Stoughton Opp.“) at 1). He further contends that they may not move for judgment on the pleadings either, reasoning that the pleadings have not closed, as required by
When an amended complaint is filed, it “normally supersedes” the original complaint. Connectu LLC v. Zuckerberg, 522 F.3d 82, 91 (1st Cir. 2008) (citing InterGen N.V. v. Grina, 344 F.3d 134, 145 (1st Cir. 2003); 6 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 1476 (2d ed. 1984)). From that point forward, “the earlier complaint is a dead letter and ‘no longer performs any function in the case.‘” Id. (quoting Kolling v. American Power Conversion Corp., 347 F.3d 11, 16 (1st Cir. 2003)). As a result, “pleadings directed to the earlier complaint are a nullity.” Yong Li v. Huffman, 2012 WL 462828, at *1-2 (D. Mass. Jan. 3, 2012). Here, the Stoughton Defendants’ Answer to the First Amended Complaint is void in light of the further amendments to the complaint. In fact, the Stoughton Defendants are not simply “allowed” to respond to the Third Amended Complaint; they are required to do so. See Bern Unlimited, Inc. v. Burton Corp., 25 F. Supp. 3d 170, 177 (D. Mass. 2014) (“An amended complaint requires a ‘response‘—either a motion under Rule 12 or a new (that is, amended) answer.“); Yong Li, 2012 WL 462828, at *1-2 (“A defendant must file a pleading in response to the amended complaint . . . [A] defendant cannot simply do nothing when an amended complaint is filed and assume that pleadings directed to the original complaint will automatically be made applicable to the amended complaint.“).
2. Claims Against McNamara
The Stoughton Defendants contend that Count 1 should be dismissed as to McNamara because the complaint fails to allege that she took any action that deprived plaintiff of property. In his opposition, plaintiff agrees; according to plaintiff, “nothing at the present time indicates that she was personally involved in the deprivation of Plaintiff Powell‘s property, so a dismissal of these claims as to her, without prejudice, would be proper.” (Pl. Stoughton Opp. at 10 n.2 (emphasis omitted)).
Accordingly, the Court will grant the motion to dismiss Count 1 as to McNamara in her individual and official capacities.
3. Claims Against Holmes and O‘Connor
a. Individual Capacities
i. Whether the Complaint States a Claim for Deprivation of Property Without Due Process
Section 1983 provides a private cause of action against any person who, under color of state law, deprives another of “any rights, privileges, or immunities secured by the Constitution and [federal] laws.”
To assert a procedural due-process claim under § 1983, a plaintiff must show “that he was deprived of a protected property interest and that the deprivation of the property interest was accomplished without due process of law.” Khelfaoui v. Lowell Sch. Comm., 496 F. Supp. 3d 683, 691 (D. Mass. 2020) (citing Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 30 (1st Cir. 2008); Harron v. Town of Franklin, 660 F.3d 531, 537 (1st Cir. 2011)). According to the Supreme Court, however, “the Due Process Clause is . . . not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.” Daniels v. Williams, 474 U.S. 327, 328 (1986) (emphasis omitted). Furthermore, even intentional deprivations of property do not violate the Due Process Clause “if a meaningful postdeprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984).
It does not appear that the Stoughton Defendants contest that plaintiff had a property interest in his guns and related items and that he was deprived of that interest. They contend, however, that the procedure employed constituted adequate process. Specifically, they contend that plaintiff was provided adequate notice when he was informed in writing that he was required to surrender his firearms. They further contend that even if the pre-deprivation process was inadequate, plaintiff has adequate post-deprivation remedies.
As to notice, it is unclear at this stage whether the notice plaintiff received satisfies the requirements of due process. The complaint simply alleges that Holmes “provided [plaintiff] with a letter advising him of the suspension” when he took custody of plaintiff‘s guns and related items. (Compl. ¶ 37). The complaint does not allege, among other things, whether that letter advised plaintiff that his property may be permanently disposed; indeed, as alleged in the complaint, the letter concerns only
Furthermore, and in any event, the complaint alleges that the Stoughton Defendants failed to follow the procedure for the disposal of confiscated firearms identified under
The Stoughton Defendants also rely on the Parratt-Hudson doctrine. They contend that plaintiff‘s ability to sue them for conversion constitutes an adequate state-law remedy that bars his due-process claim. The Parratt-Hudson doctrine provides that “due process is not violated where the deprivation is caused by the random and unauthorized conduct of state officials and where the state provides adequate post-termination procedures.” Mard v. Town of Amherst, 350 F.3d 184, 193 (1st Cir. 2003).
The Court addressed this issue in the prior action. See Powell v. Holmes, 2018 WL 662482 (D. Mass. Feb. 1, 2018). In that case, the Court concluded that it was “doubtful” that “a state-law action for conversion against the individual officers“—which the Stoughton Defendants suggest is adequate here—“provides an adequate post-deprivation remedy.” Id. The Court sees no reason to revisit that conclusion. The ultimate resolution of that issue depended “to a significant degree on the facts of the case,” which were undeveloped at that stage; it was therefore “not appropriate for resolution on a motion to dismiss.” Id. at *8. That reasoning applies with equal force here. Accordingly, the complaint adequately states a claim that Holmes and O‘Connor violated the Fourteenth Amendment by depriving plaintiff of property without due process.4
ii. Qualified Immunity
Holmes and O‘Connor contend, however, that they are protected by the doctrine of qualified immunity. Qualified immunity protects public employees “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is determined according to a two-part test. See Maldonado v. Fontanes, 568 F.3d 263, 268-69 (1st Cir. 2009). The court must determine (1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right, and (2) whether the right at issue was clearly established at the time of the defendant‘s alleged misconduct. See id.
As noted, the complaint plausibly alleges that Holmes and O‘Connor violated plaintiff‘s right to due process under the Fourteenth Amendment. The remaining inquiry is therefore limited to whether that right was clearly established. See Jordan v. Town of Waldoboro, 943 F.3d 532, 548 (1st Cir. 2019) (“We have already concluded that the officers violated a federal constitutional right, so the sole question is whether the unlawfulness of their conduct was clearly established at the time.” (internal quotation marks omitted)); Gray v. Cummings, 917 F.3d 1, 10 (1st Cir. 2019) (“[W]e already have decided that a jury
Holmes and O‘Connor contend that plaintiff cannot show that they violated any clearly established constitutional right. Specifically, they contend that plaintiff alleges that they violated his rights under
But that mischaracterizes plaintiff‘s claim. The § 1983 claim is premised on the deprivation of his property without due process in violation of the Fourteenth Amendment; it is not premised on a violation of
More than thirty years ago, the First Circuit found that it had “long been ‘clearly established’ that due process safeguards must be afforded” when “persons are deprived of property interests.” Amsden v. Moran, 904 F.2d 748, 752 (1st Cir. 1990) (citing Paul v. Davis, 424 U.S. 693, 711 (1976); Board of Regents v. Roth, 408 U.S. 564, 569-70 (1972)). Indeed, Holmes and O‘Connor offer no argument to the contrary. Furthermore, no reasonable officer would have understood that their conduct as alleged in the complaint—disposing of plaintiff‘s guns and other items without notice, opportunity to be heard, or adequate state-law remedies—would come close to satisfying due-process requirements. (Compl. ¶¶ 114-16).
Accordingly, the Court will deny the Stoughton Defendants’ motion to dismiss Count 1 as to Holmes and O‘Connor in their individual capacities.
b. Official Capacities
Count 1 also alleges a claim under § 1983 against the Stoughton Defendants in their official capacities. It is well-settled that “[a] suit against a public official in his official capacity is a suit against the government entity.” Rosaura Bldg. Corp. v. Municipality of Mayaguez, 778 F.3d 55, 62 (1st Cir. 2015) (citing Surprenant v. Rivas, 424 F.3d 5, 19 (1st Cir. 2005); Wood v. Hancock Cnty. Sheriff‘s Dep‘t, 354 F.3d 57, 58 n.1 (1st Cir. 2003)). The claim against the Stoughton Defendants in their official capacities is therefore effectively a claim against the Town of Stoughton.
The Town of Stoughton, as a municipality, is a “person” within the meaning of § 1983 and thus may be liable for constitutional deprivations under some circumstances. See Monell v. Department of Soc. Servs., 436 U.S. 658, 690 (1978). “Local governing bodies . . can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where . . . the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body‘s officers.” Id. They may also be sued “for
Here, the complaint does not allege that the Town of Stoughton has a policy or custom of depriving individuals of property—either through
In his opposition, plaintiff does not contest that the complaint fails to allege any constitutional deprivation arising from a policy or custom of the Town of Stoughton. Instead, he contends that the complaint “states a valid claim for prospective relief (i.e. a declaratory judgment) against the Defendants in their official capacities.” (Pl. Stoughton Opp. at 11). He reasons that his claim against the Stoughton Defendants in their official capacities is governed by Ex Parte Young rather than Monell. That argument, however, is premised on several fundamental misunderstandings.
Plaintiff first contends that Monell does not apply to his claim because he is suing governmental officials rather than a governmental entity: ”Monell provides that a governmental body, like the Town of Stoughton, is not liable in a § 1983 action unless a policy, custom or practice of that body causes the plaintiff‘s injury. It does nothing to shield a government official from being named as an official capacity defendant on account of actions that the government official took.” (Pl. Stoughton Opp. at 9; see also id. at 11). But that ignores well-settled law that a suit against a government officer in his official capacity is a suit against the government entity itself. See Rosaura Bldg. Corp., 778 F.3d at 62. To be sure, Monell does not “shield” the government official from liability; it does, however, effectively narrow the circumstances in which a government official, sued in his official capacity, may be found liable.
Plaintiff later acknowledges that “[i]t is generally true that ‘[a] § 1983 suit brought against a police officer or chief of a municipal police department in his or her official capacity is a suit against the municipality itself.‘” (Pl. Stoughton Opp. at 11 (quoting Stoughton Def. Mem. at 15) (second alteration in original; internal citation omitted)). But according to plaintiff, that is of little significance here because ”Ex Parte Young permits suits to proceed against government officials ‘in their official capacities to compel them to comply with federal law.‘” (Id. (quoting Monjitas v. Irizarry, 587 F.3d 464, 478 (1st Cir. 2009))). He appears to contend that because he seeks, among other relief, a judgment declaring that the Stoughton Defendants violated his right to due process, his claim against them in their official capacities falls within the ambit of Ex Parte Young.
Ex Parte Young, however, represents an exception to Eleventh Amendment immunity under which state officials may be sued in their official capacities for injunctive relief. See Town of Barnstable v. O‘Connor, 786 F.3d 130, 138 (1st Cir. 2015). It is not relevant to the liability of municipalities or municipal officers sued in their official capacities. Nor does it allow for § 1983 liability to be imposed on municipalities outside the Monell framework. Indeed, the Supreme Court has specifically held that Monell‘s “policy or custom” requirement does not turn on the nature of relief sought by a plaintiff; it
Furthermore, and in any event, even if plaintiff were suing state, rather than local, officers in their official capacities, Ex Parte Young would still be unhelpful. The judgment he seeks—“a declaratory judgment that Defendants violated his right to due process of law when they agreed to and did transfer Plaintiff‘s guns and other property to Defendant Village Vault without providing notice or opportunity to be heard” (Compl. at 39)—is retrospective in nature. Under Ex Parte Young, individuals can sue state officials only for prospective injunctive relief. See Rosie D. ex rel. John D. v. Swift, 310 F.3d 230, 234 (1st Cir. 2002). It does not permit “judgments against state officers declaring that they violated federal law in the past” or any other “claims for retrospective relief.” Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, 506 U.S. 139, 145-46 (1993); Green v. Mansour, 474 U.S. 64, 68 (1985); see also Verizon Md. Inc. v. Public Serv. Comm‘n, 535 U.S. 635, 645 (2002) (“In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” (internal quotation marks and alterations omitted)). The claim therefore could not proceed under the doctrine of Ex Parte Young.
Accordingly, the Court will grant the motion of the Stoughton Defendants to dismiss Count 1 as to Holmes and O‘Connor in their official capacities.
B. Count 2: Massachusetts False Claims Act
Count 2 alleges a claim for violation of the MFCA,
1. Standing
Defendants first contend that the plaintiff-relators—Powell, Comm2A, and Carlton—are not proper relators under the MFCA. They contend that Comm2A is not a proper relator because it is not a natural person and that Powell and Carlton are not proper relators because they do not have “direct and independent knowledge” of the facts underlying the claim.
Only the Massachusetts Attorney General or a relator may bring an action under the MFCA. See
b. Individual Standing
Defendants contend that Powell and Carlton are improper relators because they do not have “direct and independent knowledge” of the alleged false claims. It does not appear, however, that the MFCA requires that relators have such knowledge. No requirement to that effect appears in the current version of the statute. See, e.g.,
Before the 2012 amendments to the MFCA, the statute expressly required that relators, under some circumstances, have direct and independent knowledge. It defined the term “original source” as “an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the attorney general, without public disclosure, before filing an action under this section which is based on such information.”
It is true that since 2012, the Supreme Judicial Court has stated that the MFCA “provides an incentive for an individual, referred to as a relator, with ‘direct and independent knowledge of information that an entity is defrauding the Commonwealth to come forward by awarding to such individuals a percentage of the Commonwealth‘s recovery from the defrauding entity.‘” Phone Recovery Servs., 480 Mass. at 228 (quoting Scannell v. Attorney General, 70 Mass. App. Ct. 46, 48 (2007)). Indeed, it has done so on more than one occasion. See Chawla v. Appeals Court, 482 Mass. 1001, 1001 n.1 (2019) (“The False Claims Act ‘encourages individuals with direct and independent knowledge of information that an entity is defrauding the Commonwealth to come forward by awarding to such individuals a percentage of the Commonwealth‘s recovery from the defrauding entity.‘” (quoting Scannell, 70 Mass. App. Ct. at 48)). But in neither case did the SJC require that an individual have “direct and independent knowledge” to qualify as a relator; it merely quoted a 2007 Massachusetts Appeals Court case when describing the general purpose of the MFCA. It therefore appears that neither the previous nor current version of the MFCA requires that relators have “direct and independent knowledge” of the alleged false claims under most circumstances. As a result, Powell and Carlton have standing to bring claims as relators under the MFCA.
2. Public-Disclosure Bar
The MFCA has long barred relators from bringing claims that have previously been publicly disclosed. Defendants contend that the public-disclosure bar blocks plaintiff-relators’ claims under Count 2, reasoning that “the underlying and allegedly fraudulent scheme concerning Defendant Village Vault‘s arrangements with police departments was already disclosed in prior public litigation“—namely, Powell‘s earlier case against Holmes and O‘Connor. (Dkt. No. 100-1 (“Municipality Def. Mem.“) at 11; see also Compl. ¶ 2).
The public-disclosure bar is codified in
(1) in a Massachusetts criminal, civil or administrative hearing in which the commonwealth is a party; (2) in a Massachusetts legislative, administrative, auditor‘s or inspector general‘s report, hearing, audit or investigation; or (3) from the news media, unless the action is brought by the attorney general, or the relator is an original source of the information.
3. Presentment
Defendants next contend that plaintiff-relators failed to comply with the presentment requirements of the MFCA.
When a relator brings an action under the MFCA, he or she must serve the Massachusetts Attorney General with “a copy of the complaint and written disclosure of substantially all material evidence and information the relator possesses . . . pursuant to Rule 4(d)(3) of the Massachusetts Rules of Civil Procedure.”
The original complaint in this case was filed on June 27, 2018. After she was served with the complaint, the Attorney General declined to intervene. Defendants nonetheless contend that the action, in its present form, was never presented to the Attorney General. They point out that the Attorney General declined to intervene only after the original complaint. That complaint asserted claims on behalf of the Commonwealth against O‘Connor, McNamara, and Village Vault, but it did not assert claims against the Municipality Defendants. According to defendants, however, the Third Amended Complaint “fundamentally changes the nature of the action” by adding 14 municipalities—subdivisions of the state itself—as defendants. (Municipality Def. Mem. at 9).
It is unclear whether plaintiff-relators were required to serve the amended complaint upon the Attorney General. The statute contains no such requirement, and Massachusetts case law does not provide a clear answer. See, e.g., Rosenberg v. JPMorgan Chase & Co., 2021 WL 1883085, at *3 (Mass. May 11, 2021) (describing procedural history, including the Commonwealth declining to intervene after the original complaint and the relator subsequently twice amending the complaint). Case law concerning the federal FCA indicates that re-service after amendment of a complaint may not be necessary. See, e.g., United States ex rel. Mikes v. Straus, 931 F. Supp. 248, 259 (S.D.N.Y. 1996) (concluding that relator‘s failure to serve amended complaint, in which certain claims were asserted for the first time, on government did not bar action). Even after declining to intervene, the Commonwealth can request that the relator serve on it a copy of all pleadings in the action and reserve its right to intervene for good cause, as it did here. See
At the same time, there is some force to the argument that when an action fundamentally changes, relators should be required to serve the Commonwealth. The present case offers a particularly acute example, where the action not only dramatically expanded in scope but also is now brought against subdivisions of the Commonwealth itself.
In any event, for the reasons discussed below, the MFCA claim against the Municipality Defendants will be dismissed. As a result, the Court need not resolve whether the Commonwealth should have been afforded another opportunity to intervene. And even though the MFCA claim will survive as to O‘Connor and McNamara in their individual capacities (and as to Village Vault, which has not moved to dismiss), the original complaint that was served on the Commonwealth asserted that claim against those defendants. Accordingly, to the extent that the MFCA claim survives, the presentment requirement was satisfied.
4. Whether Municipalities Can Be Liable Under the MFCA
Defendants next contend that municipalities cannot be found liable under the MFCA.
The MFCA imposes liability on any “person” who, among other things, makes a false claim for payment from the Commonwealth or from one of its political subdivisions. See
The remainder of the MFCA reinforces that understanding. The statutory text makes clear that “political subdivisions” are intended beneficiaries of the statute. For example, the statute makes violators liable for a civil penalty and damages “to the commonwealth or a political subdivision thereof“; it directs the Attorney General to investigate violations “involving state funds or funds from any political subdivision“; and it allows for civil actions by relators “on behalf of the relator and the commonwealth or any political subdivision thereof.”
Plaintiff-relators nonetheless contend that “[g]iven the close relationship between the federal False Claims Act and the Massachusetts Act, we begin by looking to the federal Act and its understood meaning and application at the time the General Court took action.” (Pl. Municipality Opp. at 16). It is true that because “[t]here is little decisional law interpreting the MFCA, and its legislative history is scant, . . . [courts] look for guidance to cases and treatises interpreting the Federal False Claims Act.” Scannell, 70 Mass. App. Ct. at 49 n.4. But that maxim does not apply when there are material differences between the text of the two statutes. When such differences exist, courts must follow the text of the MFCA itself. And here, there is a notable difference between the statutes: the MFCA defines “person,” but the federal FCA does not. Compare
Plaintiff-relators also point to other Massachusetts statutes that define “person” to include, among other things, “other legal entity.” (Id. at 18 (citing
Finally, defining “person[s]” in the MFCA to exclude municipalities does not, as plaintiff-relators contend, render ambiguous the provision of the MFCA that divests courts of jurisdiction over certain actions brought against “the governor, the lieutenant governor, the attorney general, the treasurer, the secretary of state, the auditor, a member of the general court, the inspector general or a member of the judiciary.” See
In short, municipalities, like the Municipality Defendants, are not “person[s]” under the MFCA; therefore, they may not be found liable under the Act. To the extent that Count 2 is brought against the Municipality Defendants, it must be dismissed. And as noted, the claims against O‘Connor and McNamara in their official capacities are effectively claims against the Town of Stoughton. Thus, to the extent that Count 2 is brought against them in their official capacities, it must also be dismissed.
But the same is not true as to the claims against them in their individual capacities. In those capacities, O‘Connor and McNamara, as natural persons, are “person[s]” who may be found liable under the MFCA. See
5. Whether Count 2 States a Reverse False Claim
O‘Connor and McNamara contend that the complaint fails to state a claim under the MFCA. In particular, they contend that the type of false claim that the complaint asserts—a “reverse” false claim—requires that it allege that they knowingly used a false record to avoid an obligation to the Commonwealth and that the Commonwealth suffered damages as a result. According to them, the allegations in the complaint fall short on both elements.
The MFCA, like the federal FCA, imposes liability not only for false claims (where an individual seeks improper payment from the government) but also for so-called “reverse” false claims (where an individual withholds required payment to the government). It makes liable any person who, among other things, “knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the commonwealth or a political subdivision thereof.”
O‘Connor and McNamara first contend that the complaint fails to allege that they used a “false record” to avoid an obligation to the Commonwealth. But that argument is based on an outdated version of the statute. The MFCA previously limited liability for reverse false claims to situations
The MFCA defines “obligation” as an established duty arising from, among other things, a statute. See
Upon receiving the firearms, the licensing authority may transfer possession of them “for storage purposes to a federally and state licensed dealer of such weapons and ammunition who operates a bonded warehouse,” as long as the firearms are not evidence in a pending criminal case or investigation.
If the licensing authority cannot reasonably “ascertain a lawful owner” of the weapon within 180 days of acquiring it, the licensing authority may “in its discretion, trade or dispose of surplus, donated, abandoned or junk firearms, rifles, shotguns, or machine guns or ammunition to properly licensed distributors and firearms dealers,” and the proceeds will go to the municipality in which the authority presides.
Here, O‘Connor and McNamara contend that their actions were “expressly permitted” by
O‘Connor and McNamara also contend that any violation of
Finally, O‘Connor and McNamara contend that even if they violated
It does not appear, however, that the complaint is required to allege that the Commonwealth suffered damages to state a claim under the MFCA. The First Circuit has observed, in the context of considering a false claim under the federal FCA, that “a contractor who submits a false claim for payment may still be liable under the FCA for statutory penalties, even if it did not actually induce the government to pay out funds or to suffer any loss.” United States v. Rivera, 55 F.3d 703, 709 (1st Cir. 1995). The court reasoned that “the
That reasoning would appear to apply with equal force to reverse false claims under the MFCA. An individual who violates the reverse false claims provision of the MFCA may be liable for statutory penalties absent any damages. See
* * *
Accordingly, the Court will grant the motion to dismiss of O‘Connor, McNamara, and the Municipality Defendants to the extent that it seeks to dismiss Count 2 against the Municipality Defendants as well as O‘Connor and McNamara in their official capacities. It will also dismiss Comm2A as a relator. It will otherwise deny the motion.
For the same reasons, the Court will grant the motion of the City of Springfield to dismiss Count 2, and the motion of the City of Chicopee for judgment on the pleadings as to Count 2.
C. Count 3: Civil Conspiracy
Count 3 alleges a claim for civil conspiracy. Powell, Comm2A, and Carlton assert that the claim on behalf of the Commonwealth of Massachusetts against O‘Connor (in his individual and official capacities), McNamara (in her individual and official
To establish a civil conspiracy, “a plaintiff must demonstrate that ‘a combination of persons [acted] pursuant to an agreement to injure the plaintiff.‘” Gutierrez v. Massachusetts Bay Transp. Auth., 437 Mass. 396, 415 (2002) (quoting J.R. Nolan & L.J. Sartorio, Tort Law § 99, at 136 (2d ed. 1989)). In other words, “[i]t is not sufficient to prove joint tortious acts of two or more persons“; rather, a plaintiff must show that those acts were taken in furtherance of an agreement to cause injury. Id. Massachusetts recognizes two types of civil conspiracy, “so-called ‘true conspiracy[,]’ and conspiracy based on section 876 of the Restatement (Second) of Torts.” Taylor v. American Chemistry Council, 576 F.3d 16, 34 (1st Cir. 2009) (citing Kurker v. Hill, 44 Mass. App. Ct. 184, 188 (1998)).
“True conspiracy” is itself an independent tort—no other tortious acts must be shown. See Massachusetts Laborers’ Health & Welfare Fund v. Philip Morris, Inc., 62 F. Supp. 2d 236, 244 (D. Mass. 1999); Fleming v. Dane, 304 Mass. 46, 50 (1939). To rise to the level of an independent tort, the “mere force of numbers acting in unison” must “make a wrong.” Fleming, 304 Mass. at 50 (internal quotation marks omitted). “[I]t must be shown that there was some peculiar power of coercion of the plaintiff possessed by the defendants in combination which any individual standing in a like relation to the plaintiff would not have had.” Id. (internal quotation marks and citations omitted).
Here, the complaint contains no such allegations, and plaintiff-relators make no argument in support of a true conspiracy. Instead, plaintiff-relators contend that the complaint alleges a civil conspiracy based on § 876 of the Restatement (Second) of Torts. That type of conspiracy extends liability for the torts of another when there has been a “concerted action.” Thomas v. Harrington, 909 F.3d 483, 490 (1st Cir. 2018) (quoting Kurker, 44 Mass. App. Ct. at 188). It is, in essence, a form of vicarious liability. “Because it is vicarious liability, this type of civil conspiracy requires an underlying tort and the conspiracy consists in agreeing to, or assisting in, this underlying tort.” Id. (quoting Taylor, 576 F.3d at 35) (alterations omitted). Here, the complaint fails to allege the existence of an underlying tort. It alleges that O‘Connor, McNamara, and Village Vault were aware that their guns-for-credits scheme did not comply with
Plaintiff-relators contend that “[t]he underlying tort isn‘t a violation of
Accordingly, the Court will grant the motion of the Stoughton Defendants to dismiss Count 3 as to McNamara and O‘Connor in their individual and official capacities.
IV. Conclusion
For the foregoing reasons,
- The Motion to Dismiss of the Stoughton Defendants (Dkt. No. 102) is GRANTED to the extent that it seeks to dismiss Count 1 against Holmes, O‘Connor, and McNamara in their official capacities; Count 1 against McNamara in her individual capacity; and Count 3 against O‘Connor and McNamara in their individual and official capacities, and is otherwise DENIED;
- The Motion to Dismiss of O‘Connor, McNamara, and the Municipality Defendants (Dkt. No. 100) is GRANTED to the extent that it seeks to dismiss Count 2 against Municipality Defendants and O‘Connor and McNamara in their official capacities, and is otherwise DENIED;
- The Motion to Dismiss of the City of Springfield (Dkt. No. 92) is GRANTED;
- The Motion for Judgment on the Pleadings of the City of Chicopee (Dkt. No. 101) is GRANTED;
- Pursuant to the Town of Hudson‘s Notice of Joinder to the Municipality Defendants’ Motion to Dismiss (Dkt. No. 115), Count 2 against the Town of Hudson is DISMISSED; and
- The claims of Comm2A as a plaintiff-relator under Count 2 and Count 3 are DISMISSED.
So Ordered.
Dated: June 30, 2021
/s/ F. Dennis Saylor IV
F. Dennis Saylor IV
Chief Judge, United States District Court