JAQUELINE LINNANE v. CITY OF CAMBRIDGE (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This is an appeal from a portion of an order denying the defendants’ motion for summary judgment in a civil action filed in the Superior Court. The plaintiffs are a group of former and current holders of alcoholic beverage licenses in the city of Cambridge (city). The defendants are the city, current or former employees of the city (defendant employees), and the license commission of Cambridge (commission).³ The plaintiffs allege that the defendant employees acted negligently and outside the scope of their authority in drafting, promulgating and enforcing “illegal” licensing regulations and practices. The defendant employees argue that they are immune from suit under the Massachusetts Tort Claims Act, G. L. c. 258, § 2. A judge of the Superior Court denied the defendants’ motion for summary judgment. We remand for further findings.

Background. Pursuant to a 1922 special act of the Legislature, the authority which was previously “vested by law in cities or towns, or in the [city] or any official thereof, to grant, suspend or revoke any ․ licenses ․ shall ․ be exercised in [the] city by [a board of license commissioners] exclusively ․ under the authority of chapter one hundred and thirty-eight of the General Laws.” St. 1922, c. 95, § 1. The commission has the exclusive authority to issue liquor licenses in the city, all of which are also subject to the approval of the Alcoholic Beverages Control Commission (ABCC). See id.; G. L. c. 10, §§ 70, 71.

The Legislature amended G. L. c. 138 in 1978 by creating Section 17A, which authorized license-granting authorities the ability to opt out of the quota system that limited the number of liquor licenses that could be issued, pursuant to G. L. c. 138, § 17. See St. 1978, c. 377, § 2 (effective July 12, 1978). On or about May 18, 1981, the city council of Cambridge (city council) voted to accept G. L. c. 138, § 17A, which meant that the city lifted the quota for liquor licenses. Following the city council vote, the commission adopted regulations to cap the number of liquor licenses that could be issued in certain areas of the city. The commission purported to act pursuant to its authority in G. L. c. 138, § 12, to set limits in certain geographic areas, and its authority in G. L. c. 138, § 23, to adopt regulations and reasonable conditions related to licenses issued. G. L. c. 138, §§ 12, 23.⁴ On or about July 7, 2016, the commission voted to lift that cap on the number of liquor licenses that could be issued in certain geographic areas within the city.

Most of the defendant employees worked directly for the commission or were in the license commission department, the city department that supports the commission. Richard Rossi and Louie DePasquale were city managers and Lisa Peterson was a deputy city manager.

The plaintiffs are former alcohol license holders and one current alcohol license holder, who contend that they were harmed by the allegedly negligent acts or omissions of the defendant employees. The plaintiffs allege that the defendant employees were acting outside of the scope of their employment when they adopted regulations promulgated by the board concerning alcohol licenses. The plaintiffs also allege that the defendant employees negligently created the Cambridge Licensee Advisory Board (CLAB) and negligently gave members of CLAB preferential treatment. CLAB was established in 1997, as a nonprofit organization run by establishments that held alcohol licenses in the city and other stakeholders. Its purpose was to reduce underage drinking and promote programs that educated and supported license holders with their efforts to prohibit sales to minors and promote respect for all alcohol license laws. CLAB provided training and education to its members.

The only defendant employees who were involved in the operation of CLAB are Scali and Lint, as previous members of its board of directors. Scali and Lint would at times consider whether an applicant or license holder was a member of CLAB when determining its order of placement on the board's agenda. When Scali served as chair of the board and a license holder appeared before the board on a disciplinary matter, he would consider the license holder's membership in CLAB because he “understood it to mean the [license holder] had undertaken additional training, had worked with other [license holders] to promote safe service [of alcohol], [and] prevent underage drinking,” and had worked with other community stakeholders.

The plaintiffs also allege that the defendant employees negligently created the 21 Proof program and negligently required alcohol license holders and applicants to attend the program. The 21 Proof program is an alcohol service training program originally created by the Cambridge Prevention Coalition and now run by the Cambridge Health Alliance. The only defendant employees who participated in the creation of the 21 Proof program were Scali and Boyer. Scali, Gardner, Spears Jackson, Murati Ferrer, Reardon, Haas, and Lint occasionally asked alcohol license applicants if they had participated in the 21 Proof program, or required applicants or alcohol license holders to participate in that program.

Finally, plaintiffs allege that the defendant employees negligently granted some restaurant type alcohol licenses without requiring that the establishment had or used a commercial kitchen.

Plaintiffs filed a civil action in the Superior Court.⁵ After a judge (first motion judge) dismissed all counts except a portion of count one and count nine,⁶ the defendants filed a motion for summary judgment as to those two counts. A different judge (second motion judge) heard oral argument on that motion and then entered the following order:

“Other action taken[.] [T]he court has spent many hours attempting to understand the nature of the many disputes identified in the statement of facts, and concludes that the task is unnecessarily complicated by the lack of specificity in [plaintiffs’] responses. The court is disinclined to grant summary judgment because there may be legitimate issues of fact for a jury to resolve. [T]herefore, [plaintiffs] are hereby ordered to provide specific citation to the record with concise explanation of how the cited materials create valid issues of fact․”

Two years later, the second motion judge denied the defendants’ motion for summary judgment in an endorsement decision entered on the docket in full: “The motion is DENIED after review. [T]here are genuine issues of material fact in dispute.” The defendants appealed the denial of their motion for summary judgment as to count one, the negligence claim against the defendant employees in their individual capacity.⁷

Discussion. 1. Standard of review. “We review the denial of a motion for summary judgment de novo,” Cruz v. Commonwealth, 494 Mass. 800, 803 (2024), to determine “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law,” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). The defendants, as the moving party, must affirmatively demonstrate “the absence of a genuine issue of material fact on every relevant issue, regardless of who would have the burden on that issue at trial.” Arcidi v. National Assn. of Govt. Employees, Inc., 447 Mass. 616, 619 (2006). Once it meets that burden, the plaintiffs must show, with admissible evidence, a dispute as to a material fact. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). To the extent that the plaintiffs failed to controvert the defendants’ statement of undisputed facts in compliance with Superior Court Rule 9A(b)(5)(iii)(A), those facts are deemed admitted. See Dziamba v. Warner & Stackpole LLP, 56 Mass. App. Ct. 397, 400-401 (2002).

2. Doctrine of present execution. Generally, an aggrieved litigant cannot as a matter of right pursue an immediate appeal from an interlocutory order unless a statute or rule authorizes it. Maddocks v. Ricker, 403 Mass. 592, 597 (1988). The doctrine of present execution is an exception to this principle. See id. It applies where the interlocutory ruling “will interfere with rights in a way that cannot be remedied on appeal” from the final judgment, and where the matter is “collateral” to the merits of the controversy. Id. at 597, 599.

In civil cases, one of the limited circumstances in which the doctrine of present execution applies is “where protection from the burden of litigation and trial is precisely the right to which [a party] asserts an entitlement.” Estate of Moulton v. Puopolo, 467 Mass. 478, 485 (2014). Where a party claims immunity from suit but does not prevail on a motion to dismiss or for summary judgment, the party cannot completely vindicate his or her rights on appeal from a final judgment because a party would already then have defended the case at trial – precisely what immunity from suit was “designed to prevent.” Patel v. Martin, 481 Mass. 29, 33 (2018). “[E]ven if the erroneous order were ultimately reversed after trial, the right to immunity from suit would still have been ‘lost forever.’ ” Id., quoting Brum v. Dartmouth, 428 Mass. 684, 688 (1999).

Here, the defendant employees claim that they are immune from liability pursuant to G. L. c. 258, § 2, as public employees acting within the scope of their employment. See Berry v. Commerce Ins. Co., 488 Mass. 633, 636 (2021).⁸ The second motion judge denied their motion for summary judgment on the grounds that the plaintiffs’ allegations presented a genuine issue of material fact. The doctrine of present execution permits interlocutory review of this ruling. See Doyle v. Quincy, 104 Mass. App. Ct. 761, 763 (2024) (reviewing, under present execution doctrine, Superior Court judge's denial of defendants’ motion to dismiss for failure to state a claim based on conclusion that plaintiffs’ complaint raised jury question whether defendants were acting within scope of their employment as police officers).

3. Issues of material fact in dispute. As noted above, the only count that is at issue in this appeal is count one, an allegation that the defendant employees acted negligently in their individual capacity. “That the plaintiffs sued [the defendants] in their individual capacity does not resolve the scope of the ․ employment issue․ [C]onclusory allegations and labels are inadequate to plausibly suggest a plaintiff's entitlement to relief” (footnote omitted). Doyle, supra at 764-765. “Rather, to proceed with their claims ․, the plaintiffs’ allegations must plausibly suggest that each defendant's conduct occurred outside the scope of his office or employment ․” (quotation and citation omitted). Id. at 765.

“The scope of an employee's employment is not construed restrictively” (citation omitted). Clickner v. Lowell, 422 Mass. 539, 542 (1996). In determining whether public employees acted within the scope of their employment, courts “apply the common-law test, which is based on principles of vicarious liability, respondeat superior, and agency, and which considers whether the act was in furtherance of the employer's work” (quotation, footnote, and citation omitted). Berry, 488 Mass. at 636-637. Courts consider

“three factors, each of which must be met to sustain the conclusion that the employee's conduct fell within the scope of the employment: (1) whether the conduct in question is of the kind the employee is hired to perform; (2) whether it occurs within authorized time and space limits; and (3) whether it is motivated, at least in part, by a purpose to serve the employer” (quotations and citation omitted).

Id. at 638.

The defendants asserted in their motion for summary judgment that there was no material factual dispute whether any of the defendant employees acted negligently or that any of their alleged actions fell outside the scope of their duties as public employees. In response, the second motion judge initially noted “the lack of specificity in [plaintiffs’] responses.”⁹ For example, in response to the defendants’ specific factual assertions in support of their motion for summary judgment, the plaintiffs did not directly dispute any of the factual assertions. Instead, the plaintiffs repeatedly made general blanket statements, such as the “paragraph is disputed,” or simply cited exhibits, without offering any explanation how those exhibits established a material factual dispute regarding whether any of the defendant employees’ alleged acts were negligent or outside the scope of their employment. “[M]erely responding ‘disputed’ to a proposed statement of fact does not establish a genuine dispute over a material fact. Rather, the party opposing summary judgment must adduce competent evidence sufficient to show a genuine issue for trial.” Jenkins v. Bakst, 95 Mass. App. Ct. 654, 660 n.9 (2019). See Rule 9A(b)(5)(iii)(A) of the Rules of the Superior Court (2018) (party opposing summary judgment must respond by “stating whether a given fact is disputed and, if so, cite to the specific evidence ․ that demonstrates the dispute”). Moreover, the plaintiffs’ citation to exhibits without explanation “made it unnecessarily and unreasonably difficult to identify which facts were genuinely in dispute.” Dziamba, 56 Mass. App. Ct. at 401. Presumably for these reasons, the second motion judge ordered the plaintiffs “to provide specific citation to the record with concise explanation of how the cited materials create valid issues of fact.”

In response, according to the Superior Court docket, the plaintiffs filed a “Memorandum in support of opposition to defendants’ motion for summary judgment (supplemental).”¹⁰ Roughly twenty months later, the second motion judge issued an endorsement decision ruling that “[t]he [defendants’] motion [for summary judgment] is DENIED after review. [T]here are genuine issues of material fact in dispute.” The second motion judge did not identify any particular material facts in dispute.

Again, it is our obligation to review the denial of a motion for summary judgment de novo, Cruz, 494 Mass. at 803, to determine “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law,” Augat, Inc., 410 Mass. at 120. In order to affirm the second motion judge's decision, we must be satisfied that admissible evidence establishes a dispute as to a material fact. See Kourouvacilis, 410 Mass. at 716.

It is not readily apparent how the plaintiffs’ allegations plausibly suggest that any of the defendant employees acted negligently or outside the scope of their office. The complaint makes several allegations against the defendant employees, as follows: (1) that they adopted regulations promulgated by the board concerning alcohol licenses; (2) that they created CLAB and gave members of CLAB preferential treatment; (3) that they created the 21 Proof program and required alcohol license holders and applicants to attend the program; and (4) that they granted restaurant-type alcohol licenses without requiring that the establishments had or used a commercial kitchen. The defendant employees are not alleged to have done work they were not hired to perform by the city, acted outside the authorized limits of their roles on the commission, or been motivated entirely by a purpose other than serving the city.

Moreover, in their appellate briefing and oral argument, the plaintiffs have not brought to our attention any material facts in dispute that bear on their negligence claim. Specifically, the plaintiffs have not identified any allegedly negligent acts committed by any of the defendant employees outside the scope of their employment, much less a material dispute about such alleged acts.¹¹ Instead, the plaintiffs allege a series of apparently intentional acts that appear to be within the scope of employment. This includes allegations that the commission “deliberate[ly] assum[ed] ․ legislative power” and that “the [defendants] created and/or promoted, and/or managed the [CLAB].” In the absence of evidence establishing a genuine issue of material fact, summary judgment would be appropriate. See Community Nat'l Bank v. Dawes, 369 Mass. 550, 556 (1976) (summary judgment proper where moving party's pleadings and affidavit establish absence of genuine issue of material fact, and nonmoving party fails to present “countervailing details”).

Still, given the sprawling nature of the record,¹² and the lack of specificity in the second motion judge's decision denying the defendants’ motion for summary judgment, we are hesitant to conclude that the judge erred and that there are no material facts in dispute that bear on the plaintiffs’ negligence claim. Accordingly, we conclude that the most prudent course is to remand the case and instruct the second motion judge to identify any “genuine issues of material fact in dispute” as to count one with specificity and citation to admissible evidence in the record. At that point, if any party decides to appeal the second motion judge's decision, we will be able to discharge our duty to provide meaningful de novo review.

So much of the order denying the defendants’ motion for summary judgment as relates to count one is vacated, and the matter is remanded for further proceedings consistent with this decision.

FOOTNOTES

3.   The plaintiffs’ first amended complaint named the “Cambridge License Commission aka Cambridge Board of License Commissioners” as a defendant. Despite the defendants’ contention that the board of license commissioners of Cambridge (board) should have been named, the parties refer to the commission and the board interchangeably throughout the record, and we do the same here.

4.   The plaintiffs claim that under the city charter, “the power to impose quotas or conditions on licensing rests exclusively with the city council.”

5.   The complaint, styled as a proposed class action, alleged negligence (count one); interference with contract or business relationships (count two); fraud (count three); civil conspiracy (count four); conspiracy in violation of G. L. c. 93, § 5 (count five); unfair or deceptive acts or practices in violation of G. L. c. 93A (count six); restraint on trade, in violation of G. L. c. 93A, § 4 (count seven); Racketeer Influenced and Corrupt Organizations Act (RICO) violations (18 U.S.C. §§ 1961-1968), mail fraud (18 U.S.C. § 1341), wire fraud (18 U.S.C. § 1343), financial institution fraud (18 U.S.C. § 1344), honest services fraud (18 U.S.C. § 1346), bank fraud (18 U.S.C. §§ 1, 2, 9(4)), interference with commerce (18 U.S.C. § 1951), or bankruptcy fraud (18 U.S.C. § 157) (count eight); and a request for declaratory relief and preliminary and permanent injunctions pursuant to G. L. c. 231A, § 1 (count nine).

6.   The first motion judge dismissed count one against the city, the board, and the defendant employees in their official capacities. The first motion judge also dismissed counts two through eight. The plaintiffs do not challenge that ruling in this appeal.

7.   The defendants did not appeal the denial of their motion for summary judgment as to count nine, a request for declaratory and injunctive relief.

8.   The plaintiffs claim that G. L. c. 258, § 2 “grants immunity solely to the public employer –- not to individual employees.” To the extent that public employees are acting within the scope of their employment, we disagree. See Doyle v. Quincy, 104 Mass. App. Ct. 761, 764 (2024) (“Under the [Massachusetts Tort Claims Act], public employees who commit negligent or wrongful acts or omissions while acting within the scope of [their] office or employment are immune from liability” [quotations and citation omitted]). “The immunity afforded to public employees by G. L. c. 258, § 2, encompasses claims for negligence, gross negligence, and reckless conduct.” Id.

9.   Superior Court Rule 9A(b)(5)(iii)(A), provides that the party opposing summary judgment must state whether and which of the given facts in the moving party's statement are disputed. See Rule 9A(b)(5)(iii)(A) of the Rules of Superior Court (2018).

10.   As far as we can determine, the parties did not include that document in the record on appeal.

11.   The sum total of the plaintiffs’ briefing on the issue was approximately two and one-half pages.

12.   The defendants submitted a record appendix of 4,457 pages.