Gattineri v. Town of Lynnfield, Massachusetts ( 2023 )

United States Court of Appeals
For the First Circuit
No. 21-1729
ANTHONY GATTINERI; BOSTON CLEAR WATER COMPANY, LLC,
Plaintiffs, Appellants,
v.
TOWN OF LYNNFIELD, MASSACHUSETTS; PHILIP B. CRAWFORD; JAMES M.
BOUDREAU; ROBERT J. DOLAN; ROBERT CURTIN; DAVID J. BREEN; PAUL
MARTINDALE; ELIZABETH ADELSON; KRISTIN MCRAE; JOSEPH
O’CALLAGHAN; WINNIE BARRASSO; PATRICK MCDONALD; JENNIFER WELTER;
EMILIE CADEMARTORI,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
Before
Gelpí, Howard, and Thompson,
Circuit Judges.
Julie K. Connolly, with whom Julie Connolly Law PLLC, Kelley
A. Jordan-Price, Tara A. Singh, and Hinckley Allen & Snyder LLP
were on brief, for appellants.
Adam Simms, with whom John J. Davis, Justin L. Amos, and
Pierce Davis & Perritano LLP were on brief, for appellees.
January 23, 2023
THOMPSON, Circuit Judge. Appellants Anthony Gattineri
(Gattineri) and Boston Clearwater Company LLC (BCW, and with
Gattineri, Appellants) appeal from the dismissal of their sweeping
complaint brought against the Town of Lynnfield, Massachusetts and
a slew of the town's agencies and employees (Lynnfield, to keep it
simple) after animosity between the parties over Appellants'
spring water business boiled over. Because we write primarily for
the parties -- all of whom are familiar with the facts in the
operative complaint and how the case got here -- we offer only a
brief summary of the relevant background before cutting to the
chase: We affirm the dismissal below.
Since 2014, Appellants have owned and operated the
Pocahontas Spring (the Spring) in Lynnfield, Massachusetts, where
they sought to revive a once-thriving spring water business and
maintain the Spring as a source of healing water for Native
Americans. Appellants' ambitions on both fronts clashed with
Lynnfield's authority to regulate any work done to alter the
Spring's property, as it sits on protected wetlands subject to
certain state and local regulations. See, e.g., Mass. Gen. Laws
ch. 131, § 40 (2014) (Wetlands Protection Act); 310 Mass. Code
Regs. §§ 10.02(2), 10.04, 10.05(4) (Wetlands Regulations). The
gist of Appellants' complaint is that Lynnfield wanted to drive
BCW and Gattineri out of town: Lynnfield wanted BCW gone so they
could use the Spring to supplement the town's own water supply,
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garner additional tax revenue, and aid a nearby real estate
development; and regarding Gattineri, Lynnfield despised his
association with Native Americans and suspected that his Italian
heritage meant he had mob ties. So, Appellants charge, Lynnfield
hatched a vast conspiracy between the town's agencies (the
Lynnfield Conservation Commission, Board of Selectmen, Building
Department and Police Department), employees, and several
neighbors (some named, others not) where the neighbors would lodge
false complaints about allegedly unlawful activities at the Spring
and Lynnfield would respond, using their regulatory authority,
under the guise of legitimate enforcement, to intimidate
Appellants and interfere with their business and Gattineri's
constitutional rights.1
Certain that Lynnfield's actions were unlawful,
Appellants claimed violations of their First and Fourteenth
Amendment rights, see 42 U.S.C. § 1983, and that Lynnfield
conspired to violate those rights, see 42 U.S.C. § 1985, and failed
to prevent violations of those rights, see 42 U.S.C. § 1986, among
other claims not relevant here (ten in all). The district court
1 For the curious reader wanting more of the backstory, we
point to the district court's recap of the facts, which aptly took
on the formidable task of stitching together a coherent narrative
based upon Appellants' seventy-page complaint, which we note
overflowed with conclusory allegations yet omitted critical
context. See Gattineri v. Town of Lynnfield, No. 1:20-CV-11404-
IT, 2021 WL 3634148, at *1-7 (D. Mass. Aug. 17, 2021).
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granted Lynnfield's motion to dismiss, and Appellants brought
their case to us.2
2 Our de novo review of a complaint owes no deference to the
district court's review of the same. See Dagi v. Delta Airlines,
Inc., 961 F.3d 22, 27 (1st Cir. 2020). Yet as a threshold argument
Appellants spill considerable ink attacking the scope of the
district court's review on two fronts: (1) that it erroneously
considered facts from related state court decisions, and (2) that
it miscalculated the statute of limitations start date on their
§ 1983 claims. Given our standard of review and the reasons behind
our affirmance, we need not resolve these arguments, let alone
address them, but we offer a brief note on the first.
Appellants argue that the district court should not have
pulled in facts from judicial opinions in BCW's related state court
litigation to discredit allegations in their complaint because
these judgments did not warrant preclusive effect -- that is, they
were not final, and the facts within them were contested. In
response, Lynnfield simply asserts, without explanation, that
Appellants are wrong on the law, and the district court was right,
because a court may judicially notice another court's opinion on
a motion to dismiss, full stop. These arguments miss all the
nuance to our inquiry -- as we have explained, the extent to which
a court may consider a public record (here, facts from another
opinion) outside the four corners of the complaint depends upon
whether that record, or the facts within it, are susceptible to
judicial notice under Federal Rule of Evidence 201. See Freeman
v. Town of Hudson, 714 F.3d 29, 36–37 (1st Cir. 2013); Rodi v. S.
New England Sch. Of L., 389 F.3d 5, 18–19 (1st Cir. 2004). Though
our court has not addressed a scenario like this one, where the
district court assumed the truth of facts from another judicial
opinion to kick out contrasting allegations in a complaint, our
sister circuits agree that Rule 201 does not support such a move.
See, e.g., Est. of Lockett by & through Lockett v. Fallin, 841
F.3d 1098, 1111 (10th Cir. 2016); Winget v. JP Morgan Chase Bank,
N.A., 537 F.3d 565, 576 (6th Cir. 2008); Lee v. City of L.A., 250
F.3d 668, 689-90 (9th Cir. 2001); S. Cross Overseas Agencies, Inc.
v. Wah Kwong Shipping Grp. Ltd., 181 F.3d 410, 426 (3d Cir. 1999);
Int'l Star Class Yacht Racing Ass'n v. Tommy Hilfiger U.S.A., Inc.,
146 F.3d 66, 70 (2d Cir. 1998). We say no more today; not only
does this issue have no bearing on our reasons for affirming the
dismissal, but the parties have also not properly briefed us on
the issue.
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On appeal, we consider whether Appellants' arguments
compel us to revive their First Amendment claims.3 In short, they
do not.
To state a First Amendment retaliation claim,
Appellants' complaint "must allege that '(1) [Gattineri] engaged
in constitutionally protected conduct, (2) [he was] subjected to
an adverse action by [Lynnfield], and (3) the protected conduct
was a substantial or motivating factor in the adverse action.'"
Falmouth Sch. Dep't v. Doe on behalf of Doe, 44 F.4th 23, 47 (1st
Cir. 2022) (quoting D.B. ex rel. Elizabeth B. v. Esposito, 675
F.3d 26, 43 (1st Cir. 2012)). The third prong of this test asks
whether Appellants have alleged that Lynnfield had "retaliatory
animus." Id. (quoting Maloy v. Ballori-Lage, 744 F.3d 250, 253
(1st Cir. 2014)). And to succeed, Appellants must show that
Lynnfield's "retaliatory animus" was the "but-for" cause of
Gattineri's injuries, "meaning that the adverse action against
3 In their complaint, Appellants roughly described their First
Amendment counts as a "Deprivation" of Gattineri's rights, one
"Freedom of Assembly" and one "Free Exercise" claim (counts 1 and
2, respectively). The district court analyzed the claims as such,
concluding that Appellants failed to plausibly state substantive
violations of either clause of the First Amendment. But Appellants
have made no argument before us, and likewise did not argue below,
that they have stated freedom to associate or free exercise claims.
Instead, they argue only that they have stated First Amendment
retaliation claims, so we follow their lead in assessing counts 1
and 2. See Rosaura Bldg. Corp. v. Mun. of Mayagüez, 778 F.3d 55,
65 (1st Cir. 2015) (following Appellants' framing of their First
Amendment claims as retaliation claims rather than substantive
violations of the First Amendment).
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[him] would not have been taken absent the retaliatory motive."
Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019) (citing Hartman
v. Moore, 547 U.S. 250, 259-60 (2006)).
Unfortunately, both sides' briefs provide little
guidance on these claims. Lynnfield failed to pick up on the basic
fact that Appellants argued First Amendment retaliation claims, so
we don't have the benefit of their opposing arguments at all. And
Appellants' argument, as briefed for us, boils down to a bare-
naked statement that their complaint "sets forth specific factual
allegations of multiple adverse acts" against Gattineri "based on
his exercise of First Amendment rights," and that "the protected
conduct was a substantial or motivating factor" behind those
actions. They then simply cite some twenty allegations in their
complaint with a "see, e.g." -- containing, we gather, the
"multiple adverse acts" supposedly taken against Gattineri because
he exercised his First Amendment rights. That's it.
Appellants' failure to adequately brief the two claims
that could revive their lawsuit proves fatal. Appellants have not
fleshed out or explained any of the allegations they cite to at
all, so we would be left to our own devices trying to guess the
basics from the complaint's turgid paragraphs, some spanning close
to a page. For example, we have no idea from the briefing what
the adverse act in each complaint paragraph even is, since some
contain several events packed into one. After telling us about
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each adverse act, Appellants should have then explained its
connection to Gattineri's exercise of his rights. But they didn't.
Compounding the utter lack of factual explanation, Appellants also
fail to cite or analyze any on-point authority to convince us that
their allegations state a claim as a legal matter -- we have
decades of First Amendment retaliation case law to pull from.
When, like here, briefing comes up this short, we find the issues
waived. See Rodriguez v. Mun. of San Juan, 659 F.3d 168, 175 (1st
Cir. 2011) (finding waiver and noting that "[j]udges are not mind-
readers, so parties must spell out their issues clearly,
highlighting the relevant facts and analyzing on-point
authority").
Separate and apart from the First Amendment retaliation
claim we just discussed, Appellants say they've stated a
retaliation claim based upon, what they call, their "fundamental
right to earn a living." But this flavor of a retaliation claim
is doomed from the start because they have not shown that the
"right to earn a living" is constitutionally protected conduct
(element one of a retaliation claim).
The district court tossed this claim, citing our
decision in Medeiros v. Vincent, 431 F.3d 25, 32 (1st Cir. 2005),
where we explained that "[t]he right to 'make a living' is not a
'fundamental right,' for either equal protection or substantive
due process purposes." Attempting to skirt around Medeiros,
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Appellants say they have not alleged an equal protection or
substantive due process violation; rather, that their "right to
earn a living" is constitutionally protected by the Constitution's
Privileges and Immunities Clause.
Appellants' arguments about the Privileges and
Immunities Clause come up short. Appellants attempt to argue that
our precedents have recognized that the Privileges and Immunities
Clause protects a fundamental right to earn a living. See Piper
v. Supreme Ct. of New Hampshire, 723 F.2d 110, 118 (1st Cir. 1983),
aff'd 470 U.S. 274 (1985). We first note that there are two
versions of the Clause, the first in Article IV § 2 (Privileges
and Immunities Clause) and the second in the Fourteenth Amendment
(Privileges or Immunities Clause), with distinct applications.
See Baldwin v. Fish & Game Comm'n of Montana, 436 U.S. 371, 382
(1978) (Article IV § 2 "prevents a State from discriminating
against citizens of other States in favor of its own.") (citations
omitted); Saenz v. Roe, 526 U.S. 489, 503 (1999) (quoting
Slaughter–House Cases, 16 Wall. 36, 80 (1872), and explaining that
the Fourteenth Amendment's Privileges or Immunities Clause
provides a citizen of one State "with the same rights as other
citizens of that State"). Appellants appear to have pled and
argued the latter, but they rely upon Piper, which addressed
Article IV § 2 and, if anything, would protect the right to pursue
work in a state where that individual is a nonresident. See Piper,
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470 U.S. at 280-81, 281 n.10. Here, even if Appellants claimed
the Article IV § 2 version, all parties are Massachusetts
residents, so they get nowhere. As to the Fourteenth Amendment
version of the Clause, Appellants have pointed to no authority,
nor have we found any, holding that it provides for a fundamental
right to earn a living. Cf. Head v. New Mexico Bd. of Examiners
in Optometry, 374 U.S. 424, 432 n.12 (1963) ("[T]he Privileges
[or] Immunities Clause of the Fourteenth Amendment does not create
a naked right to conduct a business free of otherwise valid state
regulation.") (citing Madden v. Kentucky, 309 U.S. 83, 92—93
(1940)).4
We make quick work of the rest of Appellants' claims.
Without any viable § 1983 claims to anchor Appellants' § 1985(3)
conspiracy to violate their civil rights claim, we, like the
district court, see no need to delve into it. See United Bhd. of
Carpenters & Joiners of Am., Loc. 610, AFL-CIO v. Scott, 463 U.S.
825, 833 (1983) (explaining that because "[t]he rights,
privileges, and immunities that § 1985(3) vindicates must be found
elsewhere, and here the right claimed to have been infringed has
its source in the First Amendment," claimant must be able to state
infringement of that right); accord Thornton v. City of St. Helens,
Without any new life to Appellants' § 1983 claims, we need
4
not address Lynnfield's argument that the officials enjoy
qualified immunity. See Falmouth Sch. Dep't, 44 F.4th at 47.
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425 F.3d 1158, 1168 (9th Cir. 2005) (noting that a plaintiff cannot
state a § 1985(3) claim where they are unable to state a § 1983
claim based upon the same facts). That conclusion extinguishes
the § 1986 claim (failure to prevent the conspiracy), too, because
violations of § 1986 necessarily depend upon a preexisting
violation of § 1985. See 42 U.S.C. § 1986; accord Hahn v. Sargent,
523 F.2d 461, 470 (1st Cir. 1975). And with no viable federal
claims, we decline to exercise our supplemental jurisdiction over
the state-law claims, which covers the rest. See Cruz-Arce v.
Mgmt. Admin. Servs. Corp., 19 F.4th 538, 546 n.5 (1st Cir. 2021).
With that, we affirm the district court's dismissal.
Each side shall bear its own costs.
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