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Attorney-Bradford Louison

Writ of Certiorari

No. 15-686
================================================================
In The
Supreme Court of the United States
-- GEORGE W. GILLIS,
Petitioner,
v.
BRIAN CLARK AND ROBERT KIMBALL,
Respondents.
--
On Petition For Writ Of Certiorari To The United States Court Of Appeals For The First Circuit
--
BRIEF IN OPPOSITION
--
BRADFORD N. LOUISON, ESQ.
Counsel of Record
ALEXANDRA R. HASSELL, ESQ. LOUISON, COSTELLO, CONDON
& PFAFF, LLP
101 Summer Street Boston, MA 02110
(617) 439-0305 blouison@lccplaw.com Attorneys for Respondents
================================================================ COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM
RESTATEMENT OF QUESTION PRESENTED
Should this Court grant certiorari, where:
The First Circuit Court of Appeals held that the District Court had subject matter juris- diction over the instant case where the Plaintiff, in both the Original Complaint and the Amended Complaint, alleged violations of his United States Constitutional rights, though he did not specifically reference 42 U.S.C. § 1983, sought punitive damages and also never objected to Defendants' removal to the United States District Court, and then engaged in two years of litigation?
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TABLE OF CONTENTS
Page RESTATEMENT OF QUESTION PRESENTED .... i TABLE OF AUTHORITIES ................................. iii STATEMENT OF THE CASE.............................. 1 REASONS FOR DENYING THE PETITION ..... 2
The First Circuit Court of Appeals Did Not Err
In Holding That The District Court Had Sub-
ject Matter Jurisdiction Over The Matter ......... 2
CONCLUSION..................................................... 8
CASES
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TABLE OF AUTHORITIES
Franchise Tax Bd. v. Constr. Laborers Vacation
Trust, 463 U.S. 1, 103 S.Ct. 2841, 77
L. Ed. 2d 420 (1983)..............................................4, 5
Gardner v. Governor Apartments Assocs., 396
Mass. 661, 488 N.E.2d 3 (1986)................................6
Hood v. City of Boston, 891 F. Supp. 51 (D.
Mass. 1995) .......................................................5, 6, 7
Merrell Dow Pharm., Inc. v. Thompson, 478
U.S. 804, 106 S. Ct. 3229, 92 L. Ed. 2d 650 (1986) .........................................................................4
R.I. Fishermen's Alliance, Inc. v. R.I. Dep't of Envtl. Mgmt., 585 F.3d 42 (1st Cir. 2009) ................4
Sotos v. Flores, 103 F.3d 1056 (1st Cir. 1997) ..............6 Taylor v. Anderson, 234 U.S. 74, 24 S. Ct. 724,
58 L. Ed. 1218 (1914) ................................................5
Therrien v. Hamilton, 881 F.Supp. 76 (D.
Mass. 1995) ...........................................................5, 7
CONSTITUTION
First and Fourteenth Amendments to the Constitution of the United States ........................1, 2
Articles I, IV, and XIX of the Massachusetts Declaration of Rights ................................................2
Page
iv
TABLE OF AUTHORITIES – Continued
Page
STATUTES
28 U.S.C. § 1441 ...........................................................2 42 U.S.C. § 1983 ...........................................1, 4, 5, 6, 7 42 U.S.C. § 1985 ...........................................................5 M.G.L. c. 12, § 11H-I.....................................1, 3, 4, 6, 7
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STATEMENT OF THE CASE
On or about September 12, 2012, the Petitioner George Gillis (“Gillis”) brought an action in the Mas- sachusetts Superior Court against Defendants/ Respondents Brian Clark (“Clark”) the Chief of Police of the Town of Norton, Mass. and Robert Kimball (“Kimball”) a member of the Town of Norton Board of Selectmen alleging violations of the Massachusetts Civil Rights Act and the First and Fourteenth Amendments of the United States Constitution. Neither the Original Complaint nor the Amended Complaint specifically referenced 42 U.S.C. § 1983. On or about November 1, 2012, Clark and Kimball removed the case to the United States District Court for Massachusetts. Gillis did not object to the removal to the District Court.
Clark and Kimball moved for summary judgment on the matter. It was in his opposition to the motion for summary judgment, where Gillis for the first and only time raised the issue of subject matter jurisdic- tion. On August 25, 2014 the District Court entered an order in favor of Clark and Kimball, dismissing the case after adopting the report and recommenda- tion of the Magistrate Judge. Gillis appealed and on June 26, 2015, the First Circuit Court of Appeals affirmed the order of the District Court.
--
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REASONS FOR DENYING THE PETITION
The First Circuit Court of Appeals Did Not Err In Holding That The District Court Had Sub- ject Matter Jurisdiction Over The Matter.
Gillis contends that the First Circuit Court of Appeals incorrectly upheld the findings of the District Court, thereby overlooking well-established authority and effectively expanding the subject matter jurisdic- tion of the District Court. Generally, “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441. Here, Gillis would have been able to commence the action in district court because his claim arises under both federal and state law. Thus, the removal was proper and the district court had subject matter jurisdiction. The original complaint made no mention of a state statute which allows for civil actions based on U.S. Constitutional rights. The original complaint sought the recovery of punitive damages. Paragraph 4 of the Amended Complaint stated that Gillis, “brings the instant cause of action for intentional infliction of emotional distress and for interference with [plaintiff 's] rights to free speech as guaranteed by the First and Four- teenth Amendments to the Constitution of the United States and Articles I, IV, and XIX of the Massachu- setts Declaration of Rights and brings this action
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pursuant to the Massachusetts Civil Rights Act, M.G.L. c. 12, Section 11(H) and (I) (“MCRA”) (empha- sis added). Clearly, the claims in the Amended Com- plaint were not brought pursuant to the MCRA alone. He was not citing the U.S. Constitution only as a predicate for his Massachusetts civil rights claim.
In Clark and Kimball's Notice of Removal, they asserted, in relevant part, that the action, “is a civil action of which this Court has original jurisdiction under the provisions of 42 U.S.C. § 1983, and is one which may be removed to this Court by the defendant pursuant to the provisions of 28 U.S.C. Section 1441.” Clark and Kimball stated that this was an action alleging claims including those arising out of the Constitution of the United States. Gillis never object- ed to Clark and Kimball's characterization of the case or to the removal. Gillis never moved for remand.
After the removal and as further evidence of Gillis' acceptance of jurisdiction, Gillis filed an Amended Complaint. The Amended Complaint added the following at paragraph 4, “Gillis brings the in- stant cause of action for intentional infliction of emotional distress, and for interference with his right to free speech as guaranteed by the First and Four- teenth Amendments to the Constitution of the United States and Articles I, IV, and XIX of the Massachu- setts Declaration of Rights, and brings this action pursuant to M.G.L. c. 12, Section 11H-I.” Gillis con- tinued to assert claims against Clark and Kimball for violations of his civil rights based on their alleged interference with his right to free speech. In the
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Amended Complaint Gillis also continued to seek the recovery of punitive damages as a result of the al- leged civil rights violations. Gillis claims that the Amended Complaint asserted only a claim under the MCRA, and that the U.S. Constitution is cited only as a basis of his MCRA claim. He claims that the Dis- trict Court lacked subject matter jurisdiction and that the case should have been remanded. However, the District Court was correct in concluding that Gillis alleged violations of his federal constitutional rights, that the removal was proper and that the Court's summary judgment for dismissal was within its power. Removal of a civil action from state to federal court is proper only if the action initially could have been brought in the federal court. R.I. Fishermen's Alliance, Inc. v. R.I. Dep't of Envtl. Mgmt., 585 F.3d 42, 47 (1st Cir. 2009). “If it appears before final judgment that a case was not properly removed, because it was not within the original jurisdiction of the United States district courts, the district court must remand it to the state court from which it was removed.” Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 8, 103 S. Ct. 2841, 2845, 77 L. Ed. 2d 420 (1983).
That Gillis did not make a specific reference to 42 U.S.C. § 1983 is not the determinative factor. The Supreme Court has long held that, “the question whether a claim ‘arises under' federal law must be determined by reference to the ‘well-pleaded com- plaint.' ” Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 808, 106 S. Ct. 3229, 3232, 92 L. Ed. 2d 650
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(1986). Accordingly, “[whether] a case is one arising under the Constitution or a law or treaty of the United States, in the sense of the jurisdictional statute, . . . must be determined from what necessari- ly appears in the plaintiff's statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose.” Franchise Tax Bd., 463 U.S. at 10, 103 S. Ct. at 2846 (quoting Taylor v. Anderson, 234 U.S. 74, 75-76, 24 S. Ct. 724, 724, 58 L. Ed. 1218 (1914)). A court must “look be- yond the statutory citations in the pleadings to the nature of the claims as they appear on the face of the complaint at the time the petition for removal was filed.” Hood v. City of Boston, 891 F. Supp. 51, 54 (D. Mass. 1995). If Gillis' allegations of violations of federal constitutional rights, such as are made in the original complaint, are sufficient to state a claim that arises under 42 U.S.C. § 1983, “the matter will fall within this court's subject matter jurisdiction not- withstanding the lack of any specific reference to the federal statute.” Gillis' allegations are sufficient to state a claim under 42 U.S.C. § 1983 which are with- in the “original jurisdiction” of the Federal Court. Hood, at 52. See also Therrien v. Hamilton, 881 F. Supp. 76, 79-80 (D. Mass. 1995) (finding that a federal question arose from the face of the complaint, which expressly referred “to protected conduct under the First Amendment to the United States Constitu- tion,” even though plaintiff had removed all refer- ences to 42 U.S.C. §§ 1983 and 1985 and purported to proceed only under the MCRA). As Gillis seeks
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punitive damages, and since punitive damages are not recoverable under the MCRA, but are recoverable in § 1983 cases, the only logical interpretation of Gillis' claims in his original and Amended Complaint is that he was proceeding under both the federal and state law. See Hood, 891 F. Supp. at 52-53 (explaining that the MCRA “does not allow for punitive damages” for violations of Mass. Gen. Laws ch. 12, § 11I); see also Gardner v. Governor Apartments Assocs., 396 Mass. 661, 663 n.2, 488 N.E.2d 3, 5 n.2 (1986).
The allegations of Gillis' Complaint and Amended Complaint satisfy the pleading requirements of a § 1983 action, as they allege that the challenged conduct was attributable to a person acting under color of state law and second, that the conduct “worked a denial of rights secured by the Constitution or by federal law.” Sotos v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997). Specifically, Gillis, in both his Original and Amended Complaints, has asserted claims against municipal officials (Clark is specifical- ly alleged in paragraph 9 of the Complaint as the Chief of Police. Kimball is a member of the Board of Selectmen) for interference with his right to free speech as guaranteed by the First Amendment “to the Constitution of the United States[.]” As it is evidence that federal law or the United States Constitution creates the cause of action on the face of the com- plaint[,]” and “Gillis's right to relief necessarily depends on the resolution of a substantial question of federal law” (i.e., a violation of plaintiff's First Amendment rights), the Complaint should be deemed
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to assert a federal question, even absent an express citation to federal law. Therrien, 881 F. Supp. at 82. Finally, the fact that the MCRA has different ele- ments does not preclude the conclusion that Gillis has asserted a claim under §1983. Thus, under the MCRA, Gillis must prove that his “constitutional rights were interfered with through threats, intimi- dation or coercion” while no such proof is required in a § 1983 claim. See Hood, 891 F. Supp. at 54.
Although violations of the United States Consti- tution may serve as predicates to a finding of liability for the MCRA, Gillis sought punitive damages which are not available in the MCRA.
Gillis litigated in the District Court for over a year and never objected to the removal. Contrary to his claims, he never repeatedly or clearly stated that he did not and never intended to bring a claim under § 1983.
Gillis claims that the action was brought against Clark and Kimball in their private capacity. He claims that this is further evidence that he did not intend to bring a § 1983 action, as such an action may be brought only against persons acting under color of law while actions pursuant to the MCRA may be brought against private persons. This flies in the face of the facts and Gillis' express claims. Clark is the Police Chief and Kimball is a member of the Board of Selectmen. His signs proclaimed that both Defen- dants are corrupt (something usually claimed against governmental officials). He alleged in the Amended
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Complaint that the “hostile relationship arose from actions taken by the Defendant Clark while acting as police chief of the Town of Norton.” (Complaint and Amended Complaint para. 8.).
The First Circuit Court of Appeals did not err in upholding the District Court's determination that the Complaint and the Amended Complaint raises a question of federal law over which the District Court had jurisdiction and therefore the summary judgment for dismissal was within the District Court's power.
-- CONCLUSION
For the foregoing reasons, Respondents respect- fully request that this Honorable Court deny Gillis' Petition for Writ of Certiorari.
Respectfully submitted,
BRADFORD N. LOUISON, ESQ.
Counsel of Record
ALEXANDRA R. HASSELL, ESQ. LOUISON, COSTELLO, CONDON
& PFAFF, LLP
101 Summer Street Boston, MA 02110
(617) 439-0305 blouison@lccplaw.com Attorneys for Respondents

 

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