Municipal – Selective and excessive regulatory enforcement

Listen to this article

Where the plaintiff former proprietor of a now-defunct bar and restaurant sued the defendant town of Wrentham and a number of codefendant town officials, claiming that the defendants maliciously imposed excessive regulatory requirements on his restaurant in retaliation for his opposition to certain town policies, an order dismissing the complaint must be affirmed because of the plaintiff’s failure to plead sufficient theories of violations of his rights to due process and equal protection.

Faulty pleadings

“Although the defendants wholeheartedly endorse the district court’s dismissal of [plaintiff Thomas] 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 case) lacks standing to sue 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. …

“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. … 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 [of Cal. v. Alcan Aluminum Ltd., 493 U.S. 331, 336 (1990)]: 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. …

“Gianfrancesco’s due process claim is of the substantive sort, and alleges executive (rather than legislative) misconduct. 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. … 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. … 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,’ or ‘truly outrageous, uncivilized, and intolerable.’ … 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. …

“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.’ … 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. … 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 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.’ … And there is no suggestion that Gianfrancesco lacks the information needed to identify similarly situated businesses. … In light of these shortcomings, Gianfrancesco has not pled a plausible class-of-one claim. …”

Gianfrancesco, et al. v. Town of Wrentham, et al. (Lawyers Weekly No. 01-084-13) (12 pages) (Stahl, J.) (1st Circuit) Appealed from a decision by Zobel, J., in the U.S. District Court for the District of Massachusetts. Edward J. McCormick III for the plaintiffs-appellants; Judy A. Levenson, with whom Deidre Brennan Regan and Brody, Hardoon, Perkins & Kesten were on brief, for the defendants-appellees (Docket No. 12-1677) (April 5, 2013).

 Click here for the full-text opinion.