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25-P-28 Appeals Court
GRAFTON & UPTON RAILROAD COMPANY vs. EDWARD BURT & others.1
No. 25-P-28.
Worcester. October 9, 2025. – February 12, 2026.
Present: Vuono, Desmond, & Toone, JJ.
Immunity from Suit. Unlawful Interference. Massachusetts Civil Rights Act. Malice. Railroad. Municipal Corporations, Water supply. Practice, Civil, Motion to dismiss.
Civil action commenced in the Superior Court Department on April 16, 2024.
A motion to dismiss was heard by J. Gavin Reardon, Jr., J.
Andrew P. DiCenzo for the plaintiff. David S. Mackey (Sean M. Grammel also present) for the defendants.
DESMOND, J. Every day, municipal officials throughout the
Commonwealth make discretionary decisions to further and promote
1 Timothy Watson, John Doe, and Jane Doe. The defendants are sued solely in their individual capacities. John and Jane Doe are alleged to be employees or public officials of the town of Hopedale. 2
the interests of their towns and cities. Our courts have long
protected the rights of public employees acting within the scope
of their employment to do their work without fear of liability.
In fact, under the common law, municipal officials performing
acts ostensibly for the good of the public welfare are presumed
to be acting honestly and in good faith. See South Boston
Betterment Trust Corp. v. Boston Redev. Auth., 438 Mass. 57, 69
(2002).
Between the summer of 2022 and the spring of 2023, the
defendant, Edward Burt, the chair of the water and sewer
commission of the town of Hopedale (town or Hopedale), called
and sent a series of e-mail messages primarily to the United
States Environmental Protection Agency (EPA), which was then
overseeing a major "Superfund" remediation and cleanup project
with ties to Hopedale.2 See 42 U.S.C. §§ 9601-9675, the
Comprehensive Environmental Response, Compensation, and
Liability Act; G. L. c. 21E. In those communications, Burt
expressed his concerns about the potential impact on Hopedale's
water supply from the role of Grafton & Upton Railroad Company
(Grafton & Upton) in the cleanup project -- specifically the
transfer of contaminated soils from trucks to trains in
2 Hopedale is a small town in Worcester County that had a population of 6,017 as of the 2020 Massachusetts census. 3
Hopedale. After Grafton & Upton lost its subcontract on the
project, it commenced this action against Burt as well as
Timothy Watson, the manager of the town's water and sewer
department, seeking to hold them personally liable under
intentional tort and other theories for millions of dollars in
lost anticipated revenue.3 After a hearing, a judge of the
Superior Court concluded that Grafton & Upton's allegations
failed to state a plausible claim that Burt and Watson acted in
bad faith, with malice, or with corruption so as to lose their
common-law immunity. The judge further concluded that Grafton &
Upton's allegations were insufficient to plausibly suggest that
any interference with Grafton & Upton's constitutional rights
was accomplished by "threats, intimidation or coercion," a
required element of its Massachusetts Civil Rights Act (MCRA)
claims. See G. L. c. 12, §§ 11H, 11I. Consequently, the judge
dismissed the complaint. We affirm.
3 In its first amended complaint, Grafton & Upton raised parallel claims against Burt and Watson of intentional interference with contractual relations, intentional interference with advantageous business relations, and violation of the Massachusetts Civil Rights Act. It also asserted a single count of conspiracy against Burt, Watson, John Doe, and Jane Doe. The town is not a named defendant in the first amended complaint, and Grafton & Upton make no arguments regarding the Doe defendants on appeal. All claims against the town, John Doe, and Jane Doe, therefore, have been waived. See Nelson v. Salem State College, 446 Mass. 525, 527 n.2 (2006). 4
Background. We recite the well-pleaded allegations from
the first amended complaint and the documents relied upon by
Grafton & Upton in drafting it, which in this case consists of a
substantial number of e-mail messages. See Porter v. Board of
Appeal of Boston, 99 Mass. App. Ct. 240, 243-244 (2021). We
reserve some allegations for the discussion.
Concord is home to the Nuclear Metals, Inc. (NMI),
Superfund site (site). For decades, NMI produced depleted
uranium and ultimately contaminated the site. Administered by
the EPA's Superfund program, the long-term remediation of the
NMI site (project) began around 2001 and includes the expected
removal of over 100,000 tons of contaminated soils and
materials.
Since at least 2020, the EPA and the Massachusetts
Department of Environmental Protection (DEP) have overseen the
project, including the removal of contaminated soil from the
site. The general contractor on the project, de Maximis, Inc.
(de Maximis), retained US Ecology, Inc. (US Ecology), as the
transportation and disposal subcontractor. US Ecology in turn
entered into an exclusive, three-year contract with Grafton &
Upton to provide transloading services at its facility in
Hopedale (facility or railyard) as well as rail transportation.4
4 Grafton & Upton, a short-line rail carrier with rail lines that run through several Massachusetts towns, owns and operates 5
In October 2021, de Maximis and US Ecology finalized a
transportation and offsite disposal plan (transportation and
disposal plan) that called for Grafton & Upton to provide the
first leg of rail transportation from Hopedale to North Grafton;
and from there, the contaminated soil would be carried to its
final destination at a Michigan landfill. The EPA and the DEP
approved the plan.
The complaint alleged that since around 2014, Burt and
Watson have harbored "personal animosity" and "ill-will" toward
Grafton & Upton and its principal, Jon Delli Priscoli. For
example, during his presentation to an unknown group in 2019,
Burt asked,
"What can Hopedale do to gain environmental justice against the Federal Transportation Act that exempts interstate railroads from any restrictions by the towns they occupy? First of all, this is not interstate railroad. [Grafton & Upton] is [a] local, 16-1/2 mile railroad that serves Grafton, Upton, and Hopedale. . . . What can we do to oppose the railroad's hegemony?"
Burt historically opposed projects and developments proposed by
Grafton & Upton in the town, writing with regard to one project,
"Before that, the railroad planned development behind our factory that would have resulted in population of working couples, singles and small families. The selectmen were working with the railroad to map out one- and two-bedroom
transloading facilities in Upton, North Grafton, and Hopedale. A significant part of Grafton & Upton's business is transloading, which, for purposes of this case, is the transfer of materials between trucks and rail cars for transportation out of the area. 6
condos. The additional population would place strain on our services. Townspeople voted it down, but the selectmen are still advocating for it. For so many reasons, we need the railroad to back off" (emphasis added).
In August 2022, after Burt first reached out to the EPA
requesting more information about the plan to transport the
contaminated soil from Concord to Hopedale, Christopher Smith,
the EPA official managing the NMI site, suggested a meeting by
telephone between the "Town" and the EPA, the DEP, and a de
Maximis representative. After the meeting was held on August
22, 2022, Burt sent e-mail messages "on behalf of the Hopedale
community" thanking all the officials who had attended and
expressing his appreciation for their "attention to our
concerns."5 Smith responded by e-mail, thanked Burt and the
group for meeting with the EPA, stated that they would be in
touch moving forward, and noted that the transportation and
disposal plan was "subject to be updated if circumstances
changed." In a follow-up e-mail message to Smith, Burt
commented on the transportation and disposal plan and asked
5 According to Burt's notes from the meeting, which he attached to one of the e-mail messages, "[m]ost of the concerns related to this transport [were focused] on the 'what if's, the accidents' and the associated contingencies." The notes reflected that "[p]er [Grafton & Upton's] past practice," the town expected that Grafton & Upton would "not allow any oversight, or establish systematic emergency procedures unless directed to by a federal level agency." Burt asked Smith to "[p]lease edit, correct, add to" his notes "if anything is misstated or missed." 7
questions about it, including whether the EPA would consider a
more direct shipping route for the NMI materials that would
exclude Hopedale altogether, stating, "Sorry -- had to ask."
On October 5, 2022, Burt sent an e-mail message to Smith
asking why "EPA/DEP are allowing [prohibited] contaminated soils
within Hopedale's Zone II[6]" (Zone II protected area). As he
prepared for an upcoming water and sewer commission meeting,
Burt requested that Smith confirm that certain safety and
emergency procedures for the transport would be implemented
before shipments began. In response, Smith explained that the
revised transportation and disposal plan -- updated at Burt's
request -- now reflected that Grafton & Upton's Hopedale
transloading facility was located in the town's Zone II
protected area; however, Smith continued, the EPA was unaware of
any EPA or DEP regulations prohibiting the shipment of
contaminated soils through such areas, and although the soils
were contaminated, they did not constitute "hazardous waste" for
6 A release of hazardous materials on a site located in a "Zone II" protected area (a term further defined in the Massachusetts Contingency Plan regulations) poses a risk to a public water supply and is subject to special cleanup requirements. See generally Peterborough Oil Co. v. Department of Envtl. Protection, 474 Mass. 443, 446-447 & n.7 (2016). 8
purposes of Massachusetts statutory and regulatory law that
would prohibit Grafton & Upton's activities.7
On October 24, 2022, Burt contacted Kara Kelly Nierenberg,
Smith's successor, to explain that "progress ha[d] been made"
regarding the town's issues, but "there were still concerns to
be addressed."8 Burt acknowledged the clarification from the EPA
and the DEP that the contaminated soils were not considered
hazardous waste and that transloading was not a prohibited
activity. Burt stated that because Grafton & Upton "does not
provide Hopedale with any information regarding the activities
within the railyard . . . we are dependent upon the EPA to
ensure the overall safety of this Zone II water protected area."
Some of Burt's concerns were realized when, in the course
of the first delivery, three "zipper shut" bags opened during
the transloading process, spilling a "minor" amount of
contaminated soil in the town's Zone II protected area. Indeed,
Nierenberg later indicated that forty percent of the bags were
7 A DEP official also reported to Burt that the contaminated soils being transported to Grafton & Upton's railyard were not considered hazardous waste and explained that the materials would arrive in Hopedale in "fully sealed containers" and would not be stored at Grafton & Upton's facility.
8 For example, Burt pointed out that there were still "no site precautions, such as ground area protective barriers, nor any systematic emergency procedures reflecting the importance of [the] Zone II water protected area." Burt stated that the presence of the soil at the railyard remained "a major concern." 9
tearing during rail to truck transfers. In his ensuing e-mail
messages to Nierenberg on November 21 and November 23, 2022,
Burt continued to reiterate the concerns of the town, including
those about the lack of "Zone II specific measures," the "lack
of local oversight," and local officials' "inability to perform
their public safety responsibilities." He also continued to ask
many questions, including some from the Hopedale conservation
commission, about topics such as the spill, the trucking route,
the malfunctioning packaging, and emergency procedures. As he
had done previously and would continue to do, Burt copied a
number of town officials on his e-mail messages. Burt asserted
that a number of local officials would like to view Grafton &
Upton's operations. Nierenberg subsequently explained that the
EPA did not have the authority to bring town officials on to
Grafton & Upton's property "for oversight."
On December 5, 2022, as he prepared for the next water and
sewer commission meeting, Burt contacted Nierenberg with another
list of questions about Grafton & Upton's operations, raising
many of the same concerns. He apologized "for the long list"
but stated he was "obligated to continue to request this
information," because "[the water and sewer commission],
responsible for the Hopedale public water supply, and the
community, remain concerned." See G. L. c. 40N, §§ 1, 4, 8. At
this point, a DEP official sent an e-mail message to Nierenberg 10
stating, "Sorry this won't end. I would suggest not answering
these questions directly. I think it's time to somehow end the
back and forth."
Nierenberg did respond, however, reiterating to Burt that
under the Federal law that governed the project, permits were
not required, the EPA and the DEP would continue to oversee all
work, and together they would verify that all work under the
transportation and disposal plan met all State and Federal
standards. She assured Burt that the "issues" with the bags
were "a priority for the site team" and revealed that the EPA,
the DEP, and de Maximis were investigating why forty percent of
the bags were tearing during the transfer process (emphasis
added). She pointed out that only a small portion of the tears
had resulted in spills, that "poly sheeting" placed on the
ground each morning was "working to limit new releases of soil
. . . that require an emergency response," and that "more
permanent measures were being considered."
On December 16, 2022, Burt asked Nierenberg to provide a
"quick status" about the potential impact of the recent heavy
rain on the NMI materials at the railyard. A de Maximis
employee explained to Burt that the rain would be a nonissue for
the materials.
On January 19, 2023, Burt sent another list of questions
and concerns to Nierenberg, most of which had been asked and 11
answered previously. He requested answers before the next water
and sewer commission meeting and advised her to possibly expect
more questions from the town administrator, who "coordinates
with the Select Board and other town boards, which we can
address as a follow-up."
On February 16, 2023, Burt notified an EPA official that he
continued to receive comments from residents about the town's
"railyard situation" in light of a recent train derailment in
Ohio that had caused an environmental disaster. He stated that
the town had expected "ground barriers, emergency procedures and
oversight" would follow after the Zone II issue was revealed to
the EPA, but "[t]hat didn't happen." He concluded, "At this
point, I don't think the community will accept anything less
than stopping the soils . . . from being brought into the
Zone II."
On March 13, 2023, Burt contacted Nierenberg again as well
as her contact at the Federal Surface Transportation Board
complaining again about the lack of local oversight and
requesting direct trucking of the contaminated soil from Concord
to Michigan or the use of a "more appropriate (non-Zone II)"
transloading facility. A week later, having been notified about
more shipments of contaminated soil headed to Hopedale, Burt
made the same "direct trucking" request to Nierenberg. 12
Despite Grafton & Upton's provision of "exceptional"
transloading services, in April 2023, US Ecology terminated its
contract with Grafton & Upton without explanation, and Grafton &
Upton was removed from the transportation and disposal plan.
Discussion. 1. Standard of review. "We review a motion
to dismiss de novo, accepting all well-pleaded facts in the
complaint as true, drawing all reasonable inferences in the
plaintiff's favor, and determining whether the allegations
plausibly suggest an entitlement to relief." Cannata v.
Mashpee, 496 Mass. 188, 191 (2025). Conclusory assertions cast
as well-pleaded facts, however, are not regarded as true. See
Edwards v. Commonwealth, 477 Mass. 254, 260 (2017), S.C., 488
Mass. 555 (2021). To withstand a motion to dismiss, "[t]he
factual allegations must 'raise a right to relief above the
speculative level . . . .'" Cannata, supra, quoting Iannacchino
v. Ford Motor Co., 451 Mass. 623, 636 (2008).
2. Claims against Watson. We start by testing the legal
adequacy of the claims against Watson, the manager of the town's
water and sewer department. The theory of Grafton & Upton's
case against Watson is that commencing in 2022, Watson and Burt
"worked in concert" and conspired together to pressure and
harass the EPA, the DEP, and de Maximis with the ultimate goals
of securing (1) the termination of Grafton & Upton's contract
with US Ecology and (2) Grafton & Upton's removal from the 13
transportation and disposal plan. The first amended complaint
paints Watson as a "behind the scenes" member of the conspiracy,
providing encouragement and support to Burt. Beyond conclusory
accusations made "[u]pon information and belief," however, we
are hard pressed to find any allegations at all about what
Watson did or said to support or advance any such conspiracy.9
It may be inferred (although not expressly alleged) that Watson
was present at the August 22, 2022 meeting with Smith of the
EPA, and he was copied on several of Burt's e-mail
communications that followed. But there is no allegation that
Watson contacted any government officials, US Ecology, or de
Maximis on his own or took any other action designed to
interfere with Grafton & Upton's contractual and business
relations or its constitutional rights.10 Removing from
consideration, as we must, the labels and legal conclusions, the
sparse allegations against Watson, individually, do not
plausibly suggest an entitlement to relief on any legal basis.
See Cannata, 496 Mass. at 191; Edwards, 477 Mass. at 260. See
also Anzalone v. Administrative Office of the Trial Court, 457
9 The first amended complaint contains repeating allegations made "[u]pon information and belief" that Burt conferred and consulted with Watson before he sent each of the e-mail messages mentioned in the complaint and detailed in this opinion.
10Indeed, at the oral argument before this court, Grafton & Upton candidly admitted that it does "not have specific allegations with respect to [what Watson] did." 14
Mass. 647, 660-661 (2010) (plaintiff cannot withstand motion to
dismiss by "talismanic invocation" of labels like
"unconscionable" and "wrongful interference"); Schaer v.
Brandeis Univ., 432 Mass. 474, 478 (2000) (plaintiff may not
"rest on subjective characterizations or conclusory descriptions
of a general scenario which could be dominated by unpleaded
facts" [quotations and citations omitted]). For this reason, if
no other (see the common-law immunity analysis, infra), Watson
was entitled to dismissal of the claims against him.11
3. Claims against Burt. a. Common-law immunity. Under
the Massachusetts Tort Claims Act (MTCA), "public employees who
commit negligent or wrongful acts or omissions 'while acting
within the scope of [their] office or employment' are immune
from liability," Berry v. Commerce Ins. Co., 488 Mass. 633, 636
(2021), quoting G. L. c. 258, § 2, regardless of the capacity in
which they are sued, Doyle v. Quincy, 104 Mass. App. Ct. 761,
765 n.7 (2024). Public employees sued in their individual
capacity for intentional torts, like the defendants here,
however, are not shielded by the MTCA, but they are protected by
the doctrine of common-law immunity. See Bresler v. Muster, 496
11Given our conclusion as to the claims against Watson and the waiver of claims against the Doe defendants, we need not separately address the conspiracy claim against Burt as a person cannot conspire with himself. See Wodinsky v. Kettenbach, 86 Mass. App. Ct. 825, 837 (2015) (element of civil conspiracy is two or more defendants acting in concert). 15
Mass. 111, 122 (2025), citing Nelson v. Salem State College, 446
Mass. 525, 537 (2006). See also South Boston Betterment Trust
Corp., 438 Mass. at 69 (claim against mayor, individually, for
intentional tort covered by common-law immunity doctrine).
"Under the doctrine of common-law immunity, a public
official exercising judgment and discretion is not liable for
negligence or other errors during official decision-making,
provided the official acted in good faith, without malice, and
free of corruption." Bresler, 496 Mass. at 122. The "bad
faith" that would trigger the loss of immunity is "more than bad
judgment or negligence, but rather suggest[s] a dishonest
purpose or some moral obliquity, a conscious doing of wrong, or
a breach of a known duty through some motive of interest or ill
will" (quotations and citation omitted), id., while the
"'[m]alice' [that would trigger the loss of immunity]
constitutes a wrongful act, done intentionally, without just
cause or excuse" (quotations and citations omitted). Id. See
Spiegel v. Beacon Participations, Inc., 297 Mass. 398, 416
(1937) (bad faith "partakes of the nature of fraud").
Importantly here, as we noted earlier, "[t]here is every
presumption in favor of the honesty and sufficiency of the
motives actuating public officers in actions ostensibly taken 16
for the general welfare" (citation omitted).12 South Boston
Betterment Trust Corp., 438 Mass. at 69. "To overcome this
presumption, the plaintiff bears the burden of showing that the
officials acted in bad faith or with malice." Bresler, supra.
From a pleading perspective, "isolated allegation[s] . . . [that
are] vague, unsupported, and conclusory" are inadequate to meet
the plaintiff's burden. Id. at 121 n.8. Mere poor judgment or
negligence will not suffice to establish a lack of good faith.
Id. at 123. Applying these principles, we conclude that the
allegations in the amended complaint are insufficient to
overcome the presumption that Burt was acting in good faith and
without the requisite malice.
Grafton & Upton's transloading facility is located in
Hopedale's Zone II protected area -- a fact that was apparently
brought to the EPA's attention by Burt. The contaminants headed
Hopedale's way in 2022 under the transportation and disposal
plan and Grafton & Upton's contract were from a Superfund site
and included depleted uranium -- reasonably raising concerns for
a public servant charged with oversight of the public water
supply. And more than trains passing through Hopedale en route
to other destinations was involved: over 100,000 tons of
12Moreover, there is no merit to Grafton & Upton's claim that the presumption does not apply at the pleading stage. See Bresler, 496 Mass. at 112-113. 17
contaminated soil in bags that had experienced frequent tearing
were expected to be shipped by tractor trailers to the railyard
in Hopedale's Zone II protected area and transferred from the
trucks via gondolas to the railcars.
So far as the record reveals, as the chair of the water and
sewer commission -- the public body charged with ensuring the
environmental condition of the town's public water supply, see
G. L. c. 40N, § 1 -- Burt had every right and the responsibility
as part of his official duties to question the possible impact
of the shipments, the safety precautions in place, and the
oversight of the transloading. Indeed, it would have been a
dereliction of duty not to have asked questions about activities
of this magnitude in the town's Zone II protected area and not
to have monitored and questioned the operations closely, as Burt
did.
Burt's numerous and frequent communications to the EPA, the
DEP, and de Maximis officials do not show bad faith or actual
malice but reflect the record of a local official trying to do a
thorough job on behalf of his town and to minimize the chance of
any possible disaster. From the start, Burt expressed concern
about possible accidents in the Zone II protected area. See
note 5, supra. Despite the representations by the DEP that the
contaminated soils would arrive in Hopedale in "fully sealed"
containers, a spill occurred during the very first shipment, and 18
the bags used to hold the soils thereafter were often failing
during the process. In this context, Burt acted well within his
authority in repeatedly expressing concern about, among other
things, the risk posed by the spills, questioning the future
containment efforts, and requesting ongoing soil testing and
safety precautions. No town wants depleted uranium-contaminated
soil anywhere near its water supply. No inference of bad faith
or actual malice arises from Burt's repeated requests that EPA
officials amend the transportation and disposal plan to ship the
contaminated soil directly to Michigan or to use another
transloading site that was not located in a Zone II protected
area. Compare Najas Realty, LLC v. Seekonk Water Dist., 821
F.3d 134, 146 (1st Cir. 2016) (Najas Realty II) (concluding
"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 [water district superintendent's]
behavior").
As evidence of Burt's bad faith, Grafton & Upton relies on
his failure to post public notice of the August 22, 2022 meeting
called by Smith of the EPA -- as well as his failure to post
public notice of his August 23, 2022, and December 5, 2022
e-mail messages to Smith and Nierenberg -- allegedly in
violation of the Massachusetts open meeting law. See G. L.
c. 30A, §§ 18, 20. Grafton & Upton has failed to bring to our 19
attention, and we are unaware of any, cases requiring a public
official to post public notice in these circumstances. In any
event, the fact that this meeting and these communications took
place outside of a regular public meeting of the town's water
and sewer commission does not suggest bad faith or actual malice
on Burt's part. See Bresler, 496 Mass. at 122 (defining "[b]ad
faith" and "[m]alice for purposes of common-law immunity).
Nor do the few comments Grafton & Upton has pointed to as
demonstrating Burt's alleged animosity and ill will towards it
evince the type of bad faith or malice sufficient to cause the
loss of immunity. Compare Najas Realty II, 821 F.3d at 137-139,
145-146 (no bad faith or malice shown by "conclusory"
allegations that water district superintendent raised "bogus"
health concerns in opposition to project and stated he wanted
developer "to go away" and be forced to "jump every hurdle").
Businesses subjected to local regulation often perceive local
officials to be acting with ill will or personal animosity
against them. See, e.g., id. at 138 n.4 (plaintiff alleged
water district imposed costly and unnecessary requirement at
"eleventh hour" on its second development project "to harass and
hinder" plaintiff). The alleged demonstration of ill will and
personal animosity in the past regarding "other matters,"
without further supporting allegations, is insufficient to meet
the bad faith and malice standards required to overcome "the 20
presumption that public officials act honestly and in the public
interest."13 Bresler, 496 Mass. at 122. Cf. Massachusetts Auto.
Rating & Acc. Prevention Bur. v. Commissioner of Ins., 401 Mass.
282, 298 (1987) (adverse rulings of commissioner insufficient to
show bias); Clark v. Clark, 47 Mass. App. Ct. 737, 739 ("mere
fact that party suffers adverse rulings during litigation does
not establish lack of judicial impartiality").
Similarly, the February 2021 warning from a former town
administrator to Burt to "stop conflating" his personal opinions
with his official responsibilities was not related to the e-mail
messages at issue as the "warning" preceded by some eighteen
months the first e-mail message at issue here. Given the
presumption of honesty enjoyed by public employees, the
allegations about the warning, without more, do not plausibly
suggest that Burt acted with malice or in bad faith, as those
terms are defined by our case law, toward Grafton & Upton in
2022 and 2023. See Bresler, 496 Mass. at 122. See also South
Boston Betterment Trust Corp., 438 Mass. at 69 (courts must
indulge "every presumption in favor of the honesty and
13Even if Burt had made these comments contemporaneously with his statements to the EPA and the DEP, on their face the comments concerned actions by Grafton & Upton that could reasonably cause concern to local officials, and thus, they were an insufficient basis to defeat his common-law immunity. 21
sufficiency of the motives actuating public officers in actions
ostensibly taken for the general welfare" [citation omitted]).
Additional conclusory allegations against Burt in the first
amended complaint made "[u]pon information and belief" -- that
he "interfere[d] with" Grafton & Upton's "contractual relations"
and its "business relations" "in retaliation" for its
acquisition of a separate property in Hopedale and its
successful opposition to the town's attempt to take that
property by eminent domain -- are unavailing. See Najas Realty,
LLC v. Seekonk Water Dist., 68 F. Supp. 3d 246, 250, 259-260
(D. Mass. 2014), aff'd, Najas Realty II, 821 F.3d 134 (finding
similar allegations -- that water district superintendent
retaliated against developer and interfered with his business
and contractual interests to punish him for having outbid water
district for certain property in town -- inadequate to overcome
common-law immunity). See also Bresler, 496 Mass. at 101 n.8.
As further evidence of Burt's bad faith and malice, Grafton
& Upton relies on a communication from Scott Binder, a US
Ecology vice-president, sent after Grafton & Upton's termination
stating, "I don't see any way that de [M]aximis and EPA Region
II are coming back to [Grafton & Upton] for this project . . .
they don't need the bad publicity and the threats and all that
stuff." However, there are no allegations or evidence in the
record as to the source of the "threats," what other "stuff" was 22
allegedly said or done, the context of the communications, who
was present, or when the "threats" were made. Although Grafton
& Upton is entitled to all reasonable inferences in its favor,
no plausible inference of bad faith or malice by Burt can be
drawn from the vague and generalized statement.14 See Bresler,
496 Mass. at 101 n.8 (absent specifics, vague and unsupported
allegations "fail[ed] to raise more than a speculative right to
relief"); Caverno v. Fellows, 286 Mass. 440, 442-443 (1934),
S.C., 300 Mass. 331 (1938) (affirming dismissal of teacher's
tort claims where general allegations that defendant public
employees made "false and fraudulent" charges against plaintiff
to members of school committee were not "set forth according to
their tenor or . . . their substance and effect" and where
general allegations that "the defendants did hamper, obstruct
and impede the plaintiff in her work" were "of the most general
nature and [did] not particularize in any degree").
Grafton & Upton also rely on an internal US Ecology
communication dated March 3, 2023, that was attached to Grafton
14We note that the tone of Burt's e-mail messages to the EPA, the DEP, and de Maximis was unwaveringly polite and professional, and that the contaminated soil from the Superfund site was transported by truck and rail through a number of towns in addition to Hopedale, one or more of which could have been opposed to the presence of contaminated soil passing through their communities and thus could have been the source of the alleged threats. 23
& Upton's opposition to the defendants' motion to dismiss.15
That message suffers from the same infirmities as the statement
by Binder that we set forth above: the actual source of the
pressure exerted on the EPA and de Maximis to move the
transloading activities is not named, and no further details are
provided. Again, notwithstanding the favorable standard, the
inference that Burt (and Watson) were "the Town" referenced in
the e-mail message is speculative. Many residents of Hopedale
would have been very interested in ensuring that these materials
were not transported there. More than a speculative right to
relief is required to state a claim for relief seeking to hold a
public official individually liable for money damages. See
Bresler, 496 Mass. at 121 n.8.
At bottom, the allegations of the complaint do not
plausibly suggest that Burt acted outside the scope of his
authority or with personal animus against Grafton & Upton. As
Grafton & Upton concedes, Burt held himself out as an official
of the town and signed most of his e-mail messages with his
title. Part of his duties was to communicate with other
15In the March 3, 2023 e-mail message, Joe Weismann, a US Ecology director, reported to Wayne Hinton, a manager, that "Bruce Thompson [of de Maximis] called me earlier this week and shared that the Town of Hopedale is providing more pressure on EPA and de Maximis about the [Grafton & Upton] Railroad. Pressure is being applied to the point where Bruce is strongly considering having us move [the] transload[ing] to another location." 24
government officials. It was neither surprising nor beyond the
scope of his duties for Burt, the chair of the town water and
sewer commission, to direct most of his concerns about
activities in the Zone II protected area to the EPA and the DEP
-- the project overseers charged with ensuring that all Federal
and State standards were being met. Upton & Grafton has
provided no authority by way of the local bylaw or other
regulation of the chair of the water and sewer commission's role
to suggest otherwise. The content of Burt's e-mail messages
demonstrates that he sought information from these government
entities for upcoming water and sewer commission meetings. His
failure to include Grafton & Upton in his communications does
not bespeak bad faith. And where Burt consistently identified
himself as a water and sewer commissioner, the fact that Burt
may have used his personal e-mail account to communicate does
not show that he was acting outside the scope of his official
duties.
Grafton & Upton's reliance on Burt's January 19, 2023
e-mail message as evidence that Burt was acting outside his
office is similarly misplaced.16 The fact that none of the town
16In questioning why "the transport is being done without a special permit," Burt wrote, by way of background in that e-mail message, "As a Zone II Water protected district[], the Town (via the Board of Health, Conservation Committee, Zoning Board and Water & Sewer Commission) has an oversight responsibility to ensure water quality. Operating without a special permit, the 25
boards and commissions listed in the e-mail message had
expressly "voted to authorize" him to ask these questions and
make these statements, even if true, does not change that the
boards and commissions in fact have oversight responsibility to
ensure water quality, which is all that Burt asserted, and is
not evidence that he acted beyond the scope of his authority as
chair of the town body charged with overseeing the public water
supply potentially impacted by activities in the Zone II
protected area.17 In short, the allegations do not plausibly
suggest that Burt acted outside the scope of his authority.
To be sure, Burt repeatedly asked the same questions and
made the same complaints to the EPA and others about Grafton &
Upton's transloading activities. He also continued to seek
ability to perform this oversight is being denied." To the extent that Grafton & Upton alleges that this statement was "false" and the complaint alleged, in conclusory fashion, that Burt made a number of false statements and misrepresentations to the EPA, nothing Burt said in any of the e-mail messages of record was untrue. Cf. Brighams Cafe, Inc. v. Price Bros. Co., 334 Mass. 708, 708 (1956) (affirming judgment of dismissal where, in lieu of substantive facts, complaint alleged, "in general terms and by way of conclusions, that the defendant took action or made statements which the [complaint characterized] as 'false and fraudulent'").
17Burt expressly acknowledged that the town understood that the materials were not classified as "hazardous" and were thus allowed to be transported through the Zone II protected area. Burt suggested, however, that if the materials were so bad as to require disposal in a special landfill, the materials should be given "special handling" in the Zone II protected area. 26
local oversight of the transloading operations to which the town
was not entitled. He may even have overstated the risk posed by
the activities. Burt's motives and concerns for the town's
water supply and the welfare of town residents, however, are
presumed to have been honest and sufficient. It was Grafton &
Upton's burden to allege facts showing he was acting in bad
faith, with malice, or with corruption. This it has not done.
Based on his immunity, which Grafton & Upton failed to defeat,
the common-law claims against Burt were properly dismissed.
b. MCRA claim. Grafton & Upton alleges that Burt
"interfered with [its] constitutional rights to use and improve
its property in Hopedale" and that Burt accomplished the
interference by "threats and coercion," terms of art for
purposes of a MCRA claim. See Gibson v. Department of
Correction, 106 Mass. App. Ct. 201, 210 (2025). Specifically,
Grafton & Upton alleges that Burt threatened or exerted pressure
on de Maximis and the EPA, "caus[ing] [them] to direct US
Ecology to terminate [Grafton & Upton]'s transloading contract
under the EPA-approved [transportation and disposal plan]." We
conclude that no plausible inference can be drawn from these
conclusory allegations that Burt engaged in threats or coercion
within the meaning of the MCRA. See Glovsky v. Roche Bros.
Supermkts., Inc., 469 Mass. 752, 753, 762-763 (2014) (affirming
dismissal of MCRA claim where allegations were insufficient to 27
show violation of constitutional right was "by threats,
intimidation or coercion"). Burt's communications contained no
express statement or so much as a hint suggesting any adverse
actions he would take if Grafton & Upton continued with its
transloading activities. Accordingly, this claim was properly
dismissed as well. Cf. Freeman v. Planning Bd. of West
Boylston, 419 Mass. 548, 566, cert. denied, 516 U.S. 931 (1995)
(even where board erroneously sought concession from developer
to improve intersection, claim under MCRA rejected where
function of intersection was legitimately related to purpose of
subdivision control law).
Conclusion. The judgment dismissing the first amended
complaint is affirmed.
So ordered.