Gianfrancesco v. Town of Wrentham , 712 F.3d 634 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-1677
THOMAS GIANFRANCESCO,
d/b/a Tom's Tavern and Oyster Bar,
and as Trustee of Shears Street Realty Trust,
Plaintiffs, Appellants,
LINDY'S INC.,
Plaintiff,
v.
TOWN OF WRENTHAM ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Howard, Stahl, and Thompson,
Circuit Judges.
Edward J. McCormick, III for appellants.
Judy A. Levenson, with whom Deidre Brennan Regan and Brody,
Hardoon, Perkins & Kesten, LLP were on brief, for appellees.
April 5, 2013
STAHL, Circuit Judge. Thomas Gianfrancesco, the former
proprietor of a now-defunct bar and restaurant in Wrentham,
Massachusetts, sued the Town of Wrentham and a number of town
officials, claiming federal civil rights violations and unfair
trade practices.1 He alleges that the defendants maliciously
imposed excessive regulatory requirements on his restaurant in
retaliation for his opposition to certain town policies. The
district court dismissed his complaint for failure to state a
claim. After careful consideration, we affirm.
I. Facts & Background
We draw the following facts from Gianfrancesco's amended
complaint. See Katz v. Pershing, LLC, 672 F.3d 64, 69 (1st Cir.
2012). From 1998 to 2009, Gianfrancesco owned and operated Tom's
Tavern, a restaurant and bar in Wrentham. At various times,
Gianfrancesco appeared before local governmental bodies (including
the Board of Health, the Planning Board, the Zoning Board of
Appeals, and the Board of Selectmen) to voice his opinion -- most
often critical -- of "the town's regulations and enforcement of
various rules and code provisions concerning local businesses." In
2003, he "openly and publicly defied" the Town's smoking
ordinances, which resulted in state court litigation (the outcome
of which is not described in the complaint).
1
The other named defendants are John McFeeley, Robert
Bogardus, Glen Brown, Ravi Nadvani (whose name, we are told, is
properly spelled "Nadkarni"), and "certain town officials."
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Gianfrancesco alleges that, during and after the state
court proceedings, the defendants subjected Tom's Tavern to a
pattern of deliberate and selective application and enforcement of
town regulations. This pattern included: repeated inspections
aimed at ferreting out violations; repeated requests for
information; and a series of unjustified orders requiring
"improvements, additions, and renovations," including septic and
sprinkler system upgrades. Gianfrancesco alleges that all of these
actions were deliberately directed at Tom's Tavern and not at
"other similarly situated establishments," and that they were
undertaken "in direct retaliation against Mr. Gianfrancesco for the
exercise of his First Amendments Rights of expression and speech in
criticizing town government and defying the smoking by-law." He
also alleges that during a 2009 meeting regarding the sprinkler
system requirements, the Town Administrator "made remarks to the
effect that 'Tom's Tavern' should be shut down." Indeed, in early
2009, Tom's Tavern "was forced out of business," allegedly "due to
the deliberate and intentional misconduct of the defendants."
Gianfrancesco (on his own behalf and as Trustee of the
Shears Street Realty Trust, which apparently owned the land where
Tom's Tavern was located), along with "Lindy's Inc." (a
Massachusetts corporation whose role here is not clear), brought a
welter of claims against the defendants in Norfolk Superior Court.
The defendants removed the case to the district court. After much
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procedural skirmishing, two sets of claims remained. The first set
alleged violations of Gianfrancesco's free speech, due process, and
equal protection rights under 42 U.S.C. § 1983. The second set
alleged violations of Mass. Gen. Laws ch. 93A, the state unfair-
trade-practices law. The district court dismissed the § 1983
claims on the grounds that they were vague, failed to connect any
of the alleged harms to any particular defendant, and did not
establish a basis for municipal liability. Gianfrancesco v. Town
of Wrentham, No. 09-12222-RWZ, 2012 WL 1164967, at *2 (D. Mass.
Apr. 9, 2012). The court jettisoned the state law claims on the
basis that chapter 93A does not apply beyond the "business
context," and "the amended complaint does not even suggest any
business context nor does it allege any unfair act or deceptive
practice." Id. at *3. This appeal followed.
II. Analysis
A. Standing
Although the defendants wholeheartedly endorse the
district court's dismissal of Gianfrancesco's amended complaint for
failure to state a claim, they also offer another basis for
affirmance: that Gianfrancesco lacks standing to bring his claims.
The gist of the defendants' argument is that Gianfrancesco (who is
the sole remaining plaintiff in the case2) lacks standing to sue
2
The parties agreed to voluntarily dismiss the claims by
Lindy's Inc. and Gianfrancesco-as-Trustee, thus removing those
plaintiffs from the case. Gianfrancesco, 2012 WL 1164967, at *1.
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them for harms inflicted on his business, Tom's Tavern. This
argument invokes the shareholder-standing rule, under which a
corporate shareholder (even a sole shareholder) may not sue in his
own name to redress injuries suffered solely by the corporation.
See Pagán v. Calderón, 448 F.3d 16, 28-30 (1st Cir. 2006); 13A
Charles Alan Wright et al., Federal Practice & Procedure
§ 3531.9.2, at 704 (3d ed. 2008).
Standing doctrine has two elements: an "irreducible
constitutional minimum," Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992), and a prudential component, see Allen v. Wright,
468 U.S. 737, 751 (1984). The former requires that a plaintiff
allege a concrete injury that is fairly traceable to the
defendant's conduct and likely to be redressed by the requested
relief. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006);
Lujan, 504 U.S. at 560-61. The latter has various aspects,
including a requirement that a party "assert his own legal rights
and interests," not those of third parties. Warth v. Seldin, 422
U.S. 490, 499 (1975). The shareholder-standing rule is a species
of prudential limitation, not a component of the core
constitutional standing requirement. See Franchise Tax Bd. of Cal.
v. Alcan Aluminium Ltd., 493 U.S. 331, 336-37 (1990).
Here, the ownership structure of Tom's Tavern is actually
unclear. The amended complaint lists Gianfrancesco as "d/b/a Tom's
Tavern" in the caption, but elsewhere alleges that he is "the owner
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and operator of Tom’s Tavern." The complaint also says that
Lindy's Inc. is "d/b/a Tom's Tavern" and "is a Massachusetts
corporation." It is unclear from these descriptions whether "Tom's
Tavern" is some separate corporate entity or is simply a business
name for Lindy's, Inc. (or is something else entirely). Of course,
if Tom's Tavern (whatever its formal designation) is not a
corporation in which Gianfrancesco has an interest, the
shareholder-standing rule likely does not apply to him. But, in
light of this confusion, we think it prudent to bypass the
shareholder-standing issue in favor of a more straightforward
resolution on the merits. We are able to do so because, although
we may never bypass a question of constitutional standing to reach
the merits of a case, see Steel Co. v. Citizens for a Better Env't,
523 U.S. 83, 93-102 (1998), the same is not true of prudential
standing limitations like the shareholder-standing rule, see Grubbs
v. Bailes, 445 F.3d 1275, 1281 (10th Cir. 2006) (collecting cases).
For example, in Franchise Tax Board, a pair of foreign
parent companies challenged the constitutionality of taxes imposed
on their subsidiaries; the defendants disputed their standing to do
so. 493 U.S. 334-35. The Supreme Court found that the parent
companies had Article III standing, but assumed without deciding
that they could duck the shareholder-standing rule (and thus show
prudential standing) because a statute barred their claim anyway.
See 493 U.S. at 336-38. Following the Court's example, we need not
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decide whether the shareholder-standing rule bars Gianfrancesco's
claims because we conclude that, under any construction of the
allegations in his complaint, see Allen, 468 U.S. at 752, he does
have Article III standing and, as explained below, his claims fail
on the merits.
If Tom's Tavern is simply the name under which
Gianfrancesco personally does business, then he has Article III
standing because he suffered direct financial harm as a result of
the defendants' alleged conduct. See Danvers Motor Co. v. Ford
Motor Co., 432 F.3d 286, 291 (3d Cir. 2005) (noting that economic
harm is a "paradigmatic" injury-in-fact for standing purposes).
And if Tom's Tavern is a separate corporate entity of some sort, he
has Article III standing for the same reason the parent companies
had it in Franchise Tax Board: the defendants' actions, although
taken against his business rather than against Gianfrancesco
himself, caused him "actual financial injury" by driving Tom's
Tavern out of business. See 493 U.S. at 336; see also SBT
Holdings, LLC v. Town of Westminster, 547 F.3d 28, 37-38 (1st Cir.
2008) (plaintiffs suffered Article III injury-in-fact by virtue of
actions taken against their business, which caused them "direct and
consequential financial harm"). At the pleading stage, when
"general factual allegations . . . may suffice" to show standing,
Lujan, 504 U.S. at 561, no more is required, see Franchise Tax Bd.,
493 U.S. at 336.
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B. Failure to State a Claim
To survive a motion to dismiss for failure to state a
claim, a complaint need not present "detailed factual allegations,"
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), but it "must
contain sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face,'" Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The
precise parameters of the plausibility standard are "still a work
in progress," Menard v. CSX Transp., Inc., 698 F.3d 40, 45 (1st
Cir. 2012), but, at bottom, a complaint's non-conclusory factual
content must "allow[] the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged," Iqbal,
556 U.S. at 663. An "unadorned, the-defendant-unlawfully-harmed-me
accusation" will not do. Id. at 678. We review the district
court's dismissal de novo, construing the complaint and drawing any
reasonable inferences in Gianfrancesco's favor. Harron v. Town of
Franklin, 660 F.3d 531, 535 (1st Cir. 2011).
Gianfrancesco's amended complaint asserts claims under 42
U.S.C. § 1983 for violations of his rights to "free-speech, freedom
of enterprise, due process of law and equal protection." See West
v. Atkins, 487 U.S. 42, 48 (1988) (to state a § 1983 claim, a
plaintiff must allege that a person acting under color of state law
violated his federally secured rights). On appeal, however,
Gianfrancesco has offered no developed argument regarding his First
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Amendment or freedom-of-enterprise claims; thus, we do not consider
them. See Wilson v. Moulison N. Corp., 639 F.3d 1, 6 (1st Cir.
2011); United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
Gianfrancesco's due process claim is of the substantive
sort, and alleges executive (rather than legislative) misconduct.3
Thus, he must plausibly allege that the actions taken against him
were so egregious as to shock the conscience and that they deprived
him of a protected interest in life, liberty, or property. Harron,
660 F.3d at 536. He has not done so. Construed in Gianfrancesco's
favor, the amended complaint describes a pattern of selective and
excessive enforcement of municipal regulations. But it is
remarkably vague. The complaint says that Tom's Tavern was subject
to "inapplicable" septic and sprinkler system requirements, but it
does not say how or when it was subjected to these requirements, or
by whom; it also does not say what makes the requirements
excessive. None of these missing facts should be beyond
Gianfrancesco's reach. Cf. Menard, 698 F.3d at 45-46 (allowing
"modest discovery" to seek the "missing link" where necessary
information was in the defendants' control). In any event, even if
Gianfrancesco has established that Tom's Tavern was subjected to
unlawful regulation, he has not plausibly alleged that this
overreaching was "a brutal and inhumane abuse of official power,"
3
Insofar as Gianfrancesco's brief hints at a procedural
due process argument, that argument is too undeveloped (and too
tardy) for us to consider. See Zannino, 895 F.2d at 17.
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or "truly outrageous, uncivilized, and intolerable." Harron, 660
F.3d at 536 (citation and internal quotation marks omitted)
(affirming dismissal of substantive due process claim by bar owner
who alleged that town forced him out of business). The complaint
is devoid of allegations actually describing the defendants'
conduct, and accusatory adverbs like "wrongfully," "deliberately,"
and "selectively" cannot carry a factually inadequate complaint
across the pleading threshold. Cf. Iqbal, 556 U.S. at 686-87.
Gianfrancesco's equal protection claim is similarly
deficient. Under the class-of-one rubric, an equal protection
plaintiff may press a claim "that [he] has been intentionally
treated differently from others similarly situated and that there
is no rational basis for the difference in treatment," even where
he does "not [show] membership in a class or group." Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam). But,
as we recently explained, a class-of-one plaintiff bears the burden
of showing that his comparators are similarly situated in all
respects relevant to the challenged government action.
Middleborough Veterans' Outreach Ctr., Inc. v. Provencher, No.
12-1347, 2013 WL 135719, at *3 (1st Cir. Jan. 11, 2013); see
Rectrix Aerodrome Ctrs., Inc. v. Barnstable Mun. Airport Comm'n,
610 F.3d 8, 16 (1st Cir. 2010). Gianfrancesco says that he has
carried this burden by identifying one similarly situated business
(the Anvil Pub), but we do not agree. The complaint makes no
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effort to establish how or why the Anvil Pub is similarly situated
to Tom's Tavern in any relevant way, and does not mention any other
putative comparator. It simply says that the regulatory and
enforcement measures taken against Tom's Tavern were not also taken
against "similarly situated establishments." These are "assertions
nominally cast in factual terms but so general and conclusory as to
amount merely to an assertion that unspecified facts exist to
conform to the legal blueprint." Menard, 698 F.3d at 45. And
there is no suggestion that Gianfrancesco lacks the information
needed to identify similarly situated businesses. Cf. Barrington
Cove Ltd. P'ship v. R.I. Hous. & Mortg. Fin. Corp., 246 F.3d 1, 9
(1st Cir. 2001) (plaintiff had access to necessary information and
"readily could have alleged sufficient facts in its amended
complaint to demonstrate that [other parties] were similarly
situated"). In light of these shortcomings, Gianfrancesco has not
pled a plausible class-of-one claim. See id. at 8-10.4
That leaves only Gianfrancesco's chapter 93A claim. But,
because he has not challenged the district court's dismissal of
that claim, we need not address it. See Wilson, 639 F.3d at 6.
4
Because we find that Gianfrancesco has failed to
plausibly allege due process or equal protection violations, we
need not consider whether he has pled a basis for municipal
liability under Monell v. New York City Department of Social
Services, 436 U.S. 658 (1978). "[P]olicy or practice aside, a
municipality cannot be liable for the actions of its officials
under Monell if those actions 'inflicted no constitutional harm.'"
Robinson v. Cook, 706 F.3d 25, 38 (1st Cir. 2013) (quoting City of
Los Angeles v. Heller, 475 U.S. 796, 799 (1986)).
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III. Conclusion
For the foregoing reasons, we affirm the judgment of the
district court.
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