Sever v. City of Salem

390 F. Supp. 3d 299
CourtDistrict Court, District of Columbia
DecidedJuly 15, 2019
DocketCIVIL ACTION NO. 18-11482-MBB
StatusPublished
Cited by5 cases

This text of 390 F. Supp. 3d 299 (Sever v. City of Salem) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sever v. City of Salem, 390 F. Supp. 3d 299 (D.D.C. 2019).

Opinion

MEMORANDUM AND ORDER RE: DEFENDANT'S MOTION TO DISMISS

(DOCKET ENTRY # 19)

BOWLER, U.S.M.J.

*301Pending before this court is a motion to dismiss filed by defendant City of Salem ("defendant," "City of Salem," or "the City") to dismiss all five claims brought by plaintiff Ivan A. Sever ("plaintiff" or "Sever").1 (Docket Entry # 19). After conducting a hearing, this court took the motion (Docket Entry # 19) under advisement.

PROCEDURAL BACKGROUND

The amended complaint alleges the following five causes of action against the City: (1) a "Massachusetts Statutory Violation" of section 18 of Massachusetts General Law chapter 90 ("chapter 90") for erection, maintenance, and enforcement of speed limit signs is ultra vires and therefore void (Count I); (2) a "Massachusetts Regulatory Standards Violation" of the "Procedures for Speed Zoning on State and Municipal Roads" for erection, maintenance, and enforcement of speed limit signs is ultra vires (Count II); (3) a "Massachusetts Regulatory Standards Violation" of "The Massachusetts Amendments to the 2009 Manual on Uniform Traffic Control Devices" for erection, maintenance, and enforcement of speed limits signs is ultra vires (Count III); (4) posting, threatening to enforce, and enforcing speed limit signs without regulatory authority in violation of the Due Process Clause of the Fourteenth Amendment under 42 U.S.C. § 1983 (" section 1983") (Count IV); and (5) a corresponding failure to adequately train, supervise, and discipline in violation of the Due Process Clause of the Fourteenth Amendment under section 1983 vis-à-vis the due process violation in Count IV (Count V). (Docket Entry # 17).

The five claims in this action are similar to the claims in three previous actions brought or represented by plaintiff's counsel, Frederic Zotos, Esq. ("Zotos"). After unsuccessful attempts to obtain relief in state court, Zotos challenged the legitimacy of speed limit signs in Hingham, Massachusetts in Zotos v. Town of Hingham, et al., Civil Action No. 12-11126-JGD, 2013 WL 5328478 (D. Mass. Sept. 19, 2013) (" Zotos I"), and Zotos v. Town of Hingham, et al., Civil Action No. 13-13065-DJC (D. Mass. March 25, 2016) ("Zotos II"). He then represented a plaintiff bringing similar claims in Belezos v. Board of Selectman, Civil Action No. 17-12570-MBB, 2019 WL 1430340 (D. Mass. March 29, 2019) (" Belezos"). (Docket Entry # 20-7). In an opinion on the merits, the court in Zotos I rejected Zotos' claims and dismissed the action. (Docket Entry # 20-4). The First Circuit upheld the dismissal. (Docket Entry # 20-5). Zotos filed Zotos II prior to the First Circuit's decision in Zotos I.

*302(Docket Entry # 20-6). On March 25, 2016, the court in Zotos II issued a comprehensive opinion and dismissed that action. (Docket Entry # 20-6). Finally, this court dismissed the federal claims in Belezos in an opinion dated March 29, 2019. The state law claims and a motion to certify a class remain pending adjudication in Belezos.

STANDARD OF REVIEW

The standard of review for a motion to dismiss under Fed. R. Civ. P. 12(b)(6) (" Rule 12(b)(6)") motion is well established. To survive a Rule 12(b)(6) motion to dismiss, the complaint must contain "enough facts to state a claim to relief that is plausible on its face" even if "actual proof of [the] facts is improbable." Bell Atlantic Corp v. Twombly, 550 U.S. 544, 556, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Miller v. Town of Wenham, Mass., 833 F.3d 46, 51 (1st Cir. 2016). The "standard is not akin to a "probability requirement," but it "requires more than sheer possibility that a defendant acted unlawfully." Saldivar v. Racine, 818 F.3d 14, 18 (1st Cir. 2016) (internal citations omitted). "Accepting as true all well-pleaded facts contained in the complaint," the court "draw[s] all reasonable inferences in the pleader's favor." Sanders v. Phoenix Ins. Co., 843 F.3d 37, 42 (1st Cir. 2016).

"Exhibits attached to the complaint are properly considered part of the pleading 'for all purposes,' including Rule 12(b)(6)." Trans-Spec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008) (citations omitted). This court may also "consider matters of public record and facts susceptible to judicial notice." U.S. ex rel. Winkelman v. CVS Caremark Corp., 827 F.3d 201, 208 (1st Cir. 2016). It is permissible, then, to "take judicial notice of proceedings in other courts if those proceedings have relevance to the matters at hand." Kowalski v. Gagne, 914 F.2d 299, 305 (1st Cir. 1990) ; see, e.g., Bluetarp Fin., Inc. v. Matrix Constr. Co., Inc., 709 F.3d 72, 78 (1st Cir. 2013) (taking judicial notice of related state court cases). Therefore, the Rule 12(b)(6) record includes the state court pleadings and opinions regarding the relevant cases attached to defendant's motion (Docket Entry # 19).

FACTUAL BACKGROUND

Succinctly stated, plaintiff alleges that the City improperly modified the speed limit ordinance for Swampscott Road and therefore lacks authority to enforce the speed limit signs posted there. (Docket Entry # 17, ¶¶ 46-52). The amended complaint quotes various Massachusetts speeding laws to support this claim.

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Bluebook (online)
390 F. Supp. 3d 299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sever-v-city-of-salem-dcd-2019.