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Appeals Court of Massachusetts.

Stephen J. SHEA v. CITY OF LYNN & others.1


Decided: March 22, 2021

By the Court (Milkey, Kinder & Sacks, JJ.2)


The plaintiff, Stephen J. Shea, appeals from a Superior Court judgment dismissing his complaint, on the defendants' motion under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), on statute of limitations grounds. Although it may turn out that many or all of Shea's claims are time-barred or fail for other reasons, we conclude that dismissal at this early stage was error, requiring that we vacate the judgment and remand for further proceedings.

Background. In reviewing the dismissal of a complaint under rule 12 (b) (6), we must treat all of the complaint's factual allegations as true and must draw all reasonable inferences in Shea's favor. See Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). We also consider documents attached to the complaint. See Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 45 n.4 (2004).

We recite only the most pertinent allegations of the complaint, viewed through that lens. Shea was the owner of certain rental property in Lynn. Beginning in January of 2014, defendant Roger Ennis, the city's building inspector, began issuing notices of building code violations at the property. The notices were not based upon any legitimate finding or condition at the property, but instead were based upon an improper motivation and sought to unfairly punish and burden Shea. The building inspector, along with other city officials, intentionally sent the notices to an outdated address for Shea, or left the notices at the property (where Shea did not reside), in order to prevent him from receiving or learning of the notices in time to appeal their validity. Shea was issued approximately 150 notices totaling approximately $55,000 in penalties.

Shea asked the building inspector what he (Shea) needed to do to remedy the violations and stop issuance of further notices. The building inspector replied in a manner that made Shea believe the building inspector was seeking an improper payment in order to stop the notices. The building inspector continued to issue notices. In January of 2015, Shea and the city reached a resolution of certain of the alleged violations, under which Shea paid the city $1,500, but the city demanded that Shea pay an additional amount. Ultimately, Shea was wrongfully forced to pay the city more than $30,000 in order to release a tax lien on the property so that Shea could convey the property to a third party in May of 2019.

On July 15, 2019, Shea filed this action, alleging that the defendants had singled him out and treated him unfairly compared to other landlords in the city. He asserted claims for damages, under 42 U.S.C. § 1983 and the Massachusetts Civil Rights Act (MCRA), G. L. c. 12, §§ 11H, 11I, for violations of his due process and equal protection rights.

The defendants moved under rule 12 (b) (6) to dismiss the complaint as barred by the applicable statutes of limitations, and Shea filed an opposition. A judge allowed the motion, and Shea appealed.

Discussion. Three-year statutes of limitations apply both to the § 1983 claims, see Pagliuca v. Boston, 35 Mass. App. Ct. 820, 822 (1994), and to the MCRA claims. See G. L. c. 260, § 5B. See also Pagliuca, supra at 821-822. Thus any claims accruing more than three years before the complaint's filing date of July 15, 2019, would be time-barred. The judge concluded that Shea's claims began accruing on the date each violation notice was issued. See Day v. Kerkorian, 72 Mass. App. Ct. 1, 6 (2008) (“Ordinarily, a statute of limitations begins to run when the plaintiff is harmed by the defendant's actions”). The judge further concluded that the most recent violation notice was issued to Shea on November 17, 2015, and thus that all of the claims were barred. At the motion to dismiss stage, however, these conclusions about when each claim accrued and when the last violation notice issued were erroneous. We consider separately the claims based directly on the violation notices and the claims based on the tax lien.

1. Claims based on violation notices. The principal problem with dismissal under rule 12 (b) (6) here is that the complaint does not state or allow a determination of the dates on which the notices were issued. Attached to the complaint is a list of “40 U [a]ssessments on [t]ax [b]ills” for the property, and another attachment permits an inference that the entries on the list refer to the violation notices.3 The most recent entry on the list includes two dates -- November 17, 2015, and January 20, 2016 -- but does not identify either of these as the date on which the corresponding violation notice was issued. Nor is it clear whether this list includes all of the violation notices at issue; the complaint alleges that Shea was issued approximately 150 notices, but the list contains far fewer than 150 entries. Drawing all reasonable inferences in Shea's favor, as we must at this stage, we cannot read the complaint as stating that the most recent notice was issued on either of the dates just mentioned, or, more importantly, that the most recent notice was issued more than three years before the complaint's filing date of July 15, 2019.

Second, § 1983 claims accrue “when a plaintiff knows or has reason to know of his injury.” Poy v. Boutselis, 352 F.3d 479, 483 (1st Cir. 2003). A similar rule may govern the MCRA claims in this case.4 And the complaint alleges that the defendants mailed or delivered the notices in a manner intended to delay Shea's receipt of them. Nothing in the complaint indicates the dates on which Shea knew or had reason to know of the issuance of the various notices. For all that appears from the complaint, some of those dates may fall within the limitations period.

The defendants argue that the record nevertheless proves that, no later than March 17, 2016, Shea knew of all the violation notices. Specifically, the defendants rely on an affidavit signed by Shea, on that date, referring to the building inspector's having issued approximately 150 notices totaling approximately $30,000 in penalties. The purpose for which Shea executed the affidavit, long before he filed the present action, is unclear, but the defendants attached the affidavit as an exhibit to their motion to dismiss, and they relied upon it to show that the complaint is time-barred.

Because the judge's memorandum of decision gives no indication that he considered the affidavit, there was no apparent disregard of the provisions of rule 12 (b) (6) regarding consideration of matters outside the pleadings. On appeal, however, the defendants again rely on the affidavit. But if we were inclined to consider it notwithstanding rule 12 (b) (6), we would also have to consider that Shea opposed the motion to dismiss by filing a verified opposition -- the equivalent of an affidavit -- stating that “the defendants continued to issue violation notices after July 15, 2016,” the date “three years before the complaint was filed.” Thus, resort to the record outside of the complaint, even if permissible here, would leave an issue of fact whether all of Shea's claims accrued by March 17, 2016, and would thus require that the judgment of dismissal be vacated.

It remains to consider Shea's argument that the continuing violation doctrine makes all of his notice-based claims timely, regardless of when the various notices were issued or of when he knew or should have known of their issuance. As the judge correctly ruled, under both Federal and Massachusetts law, the continuing violation doctrine has largely been confined to the context of employment and similar discrimination claims and does not apply here. See, e.g., Quality Cleaning Prods. R.C., Inc. v. SCA Tissue N. Am., LLC, 794 F.3d 200, 205–206 (1st Cir. 2015); Crocker v. Townsend Oil Co., 464 Mass. 1, 10–12 (2012). Where the doctrine applies, “[a]s long as a related act falls within the limitations period, the doctrine allows a lawsuit to be delayed in cases ․ in which a course of repeated conduct is necessary before a series of wrongful acts blossoms into an injury on which suit can be brought” (quotations and citation omitted). Quality Cleaning Prods. R.C., Inc., supra at 205. See Crocker, supra at 10-11. The doctrine does not apply to “a series of discrete, individual wrongs rather than a single and indivisible course of wrongful action” (citation omitted). Crocker, supra at 11.

Here, the violation notices issued to Shea, if wrongful (as Shea alleges), were a series of discrete, individual wrongs, each giving rise to its own claim. Thus, that one or more of the notices may have been issued to Shea (or become known or reasonably knowable to him) within the limitations period would not allow Shea to assert claims based on notices that were issued (or become known or reasonably knowable) to him outside of the limitations period.

2. Claims based on tax lien. The complaint also alleges that based on the violation notices, Shea was wrongfully forced to pay the city more than $30,000 in order to release a tax lien on the property so that Shea could convey it to a third party in May of 2019.5 The city allegedly refused to permit the sale in the absence of payment even after being informed of the allegations that the violation notices had been wrongfully issued and the fines wrongfully imposed. Construing the complaint in the light most favorable to Shea, these events occurred within the limitations period, and thus, to the extent that they gave rise to any of the claims asserted in the complaint, such claims were timely asserted.6

The judge ruled that “the tax lien cannot be viewed as a separate and distinct wrongful act. Instead, it was merely a consequence of the violation notices and related fines.” The judge relied on Pagliuca, which held that § 1983 and MCRA claims accrued no later than when a plaintiff knew of the latest wrongful act alleged in the complaint, rather than the subsequent date on which the plaintiff suffered a particular harm as a result of that wrongful act. See Pagliuca, 35 Mass. App. Ct. at 822-824. In Pagliuca, however, the complaint did not allege any wrongful act by the defendants occurring within the limitations period. Id. Here, in contrast, the complaint alleges wrongful action by the defendants, to collect the fines through a tax lien, within the limitations period. Pagliuca is thus inapposite.

That said, we express no view on whether the complaint states a claim that the defendants' actions with respect to the tax lien were wrongful. We must “look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief.” Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011), citing Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008). Here, however, the parties have not briefed whether and under what circumstances the imposition or enforcement of a tax lien, in order to collect amounts wrongfully assessed against a property owner, could itself be a wrongful act. Nor have the parties briefed the extent to which, once a municipality has imposed fines on a property owner and the time for administratively challenging the validity of those fines has passed, the owner may nevertheless challenge their validity at the time the municipality seeks to collect, through the tax lien mechanism, the amounts claimed to be due.7 Thus we are not in a position to rule on whether the defendants' actions here with respect to the tax lien could support a claim for relief, or on whether the complaint sufficiently alleges facts to support such a claim. The issue may be pursued on remand.8

Conclusion. The judgment is vacated, and the case is remanded for further proceedings consistent with this memorandum and order.9

So ordered.

vacated and remanded


3.   General Laws c. 40U governs the imposition and collection of municipal fines.

4.   Shea argues that the discovery rule applies to his MCRA claims. But the sole authority Shea cites for this proposition is Sampson v. Salisbury, 441 F. Supp. 2d 271 (D. Mass. 2006), which recognizes that the applicability of the discovery rule to MCRA claims depends on whether the wrong at issue is inherently unknowable. Id. at 275-276. Shea has not established that the wrongs underlying his MCRA claims were inherently unknowable, nor have the defendants established the contrary. The motion judge did not address the point. Because in any event we are vacating the judgment of dismissal as to the closely related § 1983 claims, it seems most appropriate to do the same as to the MCRA claims so that Shea may, if he wishes, develop his discovery rule argument in the trial court.

5.   At oral argument the defendants informed us that, by statute, unpaid fines and associated penalties and interest “shall become an additional assessment on the property owner's tax bill.” G. L. c. 40U, § 12. That statute further provides, “Such amount and cost relative thereto may also be a lien upon such real estate as provided in section 42B of chapter 40.” G. L. c. 40U, § 12.

6.   At oral argument the defendants represented that the lien was first recorded in December of 2016, which would place the recording within the limitations period.

7.   Shea erroneously argues that he should be permitted to do so in this action by virtue of G. L. c. 260, § 36, which provides in pertinent part that “a counterclaim arising out of the same transaction or occurrence that is the subject matter of the plaintiff's claim, to the extent of the plaintiff's claim, may be asserted without regard to the provisions of law relative to limitations of actions.” Shea likens his claims in this action to a counterclaim under § 36; he suggests that even if his claims are otherwise time-barred, he may assert them in response to the defendants' effort to enforce the tax lien. This argument fails, because the defendants did not initiate this action and have not asserted any “claim” within the meaning of § 36, nor has Shea asserted any counterclaim.

8.   Nor have the parties addressed the viability of the claims in light of the principles that (1) a municipality is liable under § 1983 only where a municipal policy or custom causes the plaintiff's harm, see Smith v. Boston, 413 Mass. 607, 610-611 (1992), cert. denied, 507 U.S. 1006 (1993), citing Monell v. Department of Social Servs. of the City of N.Y., 436 U.S. 658 (1978); and (2) a municipality is not a “person” that may be sued under the MCRA. See Howcroft v. Peabody, 51 Mass. App. Ct. 573, 591–593 (2001).

9.   Shea's motion to expand the record on appeal is denied.

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