Belezos v. Bd. of Selectmen of Hingham

NICHOLAS G. BELEZOS, on behalf of himself andall others similarly situated, Plaintiff, v. BOARD OF SELECTMEN of Hingham, Massachusetts, in their official capacity,on behalf of themselves and all others similarly situated, Defendants.

CIVIL ACTION NO. 17-12570-MBB

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

November 27, 2019

MEMORANDUM AND ORDER RE: PLAINTIFF'S MOTION FOR PLAINTIFF CLASS CERTIFICATION

(DOCKET ENTRY # 16)

BOWLER, U.S.M.J.

Pending before this court is a motion filed by plaintiff Nicholas G. Belezos ("plaintiff") to certify a proposed class, designate himself as class representative, and designate plaintiff's current counsel, Frederic P. Zotos, Esq. ("Zotos"), as class counsel pursuant to Fed. R. Civ. P. 23(c) and (g) ("Rule 23"). (Docket Entry # 16). Plaintiff contends that defendants Board of Selectmen of Hingham, Massachusetts ("defendants") erected, maintained, and enforced speed limit signs without regulatory authority. According to plaintiff, "[t]he claims can be proven on a classwide basis" and "382 potential plaintiff class members have already been identified." (Docket Entry # 16, p. 1). Defendants maintain that the proposed class does not satisfy the requirements for class certification. (Docket Entry # 25).

PROCEDURAL BACKGROUND

A first amended complaint sets out eight causes of action against defendants arising out of a speeding ticket plaintiff received for traveling in excess of a 30-mile-per-hour ("m.p.h.") speed limit reflected in a posted speed limit sign on Gardner Street in Hingham, Massachusetts in violation of Massachusetts General Laws chapter 90 ("chapter 90"), section 18 ("section 18"). (Docket Entry # 11, pp. 12, 40-51). Counts IV through VIII allege federal constitutional claims, while counts I through III are pendent ultra vires claims under state law. (Docket Entry # 11, pp. 40-51). A prior opinion recites the causes of action, which need not be repeated. (Docket Entry # 22, pp. 2-3).

Before filing suit in this court, Zotos, plaintiff's counsel, challenged a ticket he received for exceeding the 30 m.p.h. posted speed limit on Gardner Street in both state and federal court. In federal court, Zotos challenged the legitimacy of the speed limit sign on Gardner Street in Zotos v. Town of Hingham, et al., Civil Action No. 12-11126-JGD, 2013 WL5328478 (D. Mass. Sept. 19, 2013) ("Zotos I"), and again in Zotos v. Town of Hingham, et al., Civil Action No. 13-13065-DJC (D. Mass. Mar. 25, 2016) ("Zotos II"). (Docket Entry ## 8-3, 8-6). In a lengthy opinion on the merits, the court in Zotos I rejected Zotos' federal constitutional and state law claims and dismissed the action.¹ (Docket Entry # 8-3). The First Circuit upheld the dismissal. (Docket Entry # 8-4). Zotos filed Zotos II prior to the First Circuit's decision in Zotos I. (Docket Entry ## 8-4, 8-5). On March 25, 2016, the court in Zotos II issued a comprehensive opinion on the 42 U.S.C. § 1983 ("section 1983") claims as well as the newly-added ultra vires state law claims and dismissed the action. (Docket Entry # 8-6).

In the state court proceeding, Zotos exercised his right to appeal a finding of "'responsible'" made by a clerk-magistrate in Hingham District Court for exceeding the posted 30 m.p.h. speed limit sign on Gardner Street purportedly erected and enforced in violation of section 18. (Docket Entry ## 25-2, 25-3). After the Appellate Division of the District Court Department ("the appellate division") upheld the decision, Zotos appealed the matter to the Massachusetts appeals court ("appeals court"). (Docket Entry ## 25-1, 25-3). In an amended brief tothe appeals court, Zotos argued that the erection and enforcement of the 30 m.p.h. speed limit sign was ultra vires and therefore unenforceable given the absence of an engineering study and a special speed regulation under section 18 to support the sign. (Docket Entry # 25-1). He also asserted violations of substantive due process, namely, that the enforcement of the illegally posted sign "shocks the conscience," as well as violations of procedural due process. (Docket Entry # 25-1). The appeals court affirmed the decision of the appellate division. (Docket Entry # 25-3); Hingham Police Dep't v. Zotos, No. 11-P-1716, 2012 WL 1689189 (Mass. App. Ct. May 16, 2012) (unpublished). The Massachusetts Supreme Judicial Court ("SJC") denied Zotos' request for leave to obtain further appellate court review. Police Dep't of Hingham v. Zotos, 973 N.E.2d 1269 (Mass. 2012) (table).

Before bringing this action in federal court, plaintiff brought a number of similar claims against the same defendants in Massachusetts Superior Court ("trial court") in Belezos v. Board of Selectmen of the Town of Hingham, No. PLCV2014-01018B ("Belezos"). (Docket Entry # 15-1). In allowing defendants' Mass. R. Civ. P. 12(c) motion, the trial court addressed and rejected the merits of the state law ultra vires claims regarding erecting and enforcing the 30 m.p.h. speed limit sign on Gardner Street without a special speed regulation undersection 18. The trial court also dismissed the substantive and procedural section 1983 claims largely based on the decisions in Zotos I and Zotos II. (Docket Entry # 8-7). The appeals court upheld the trial court's dismissal on the basis that plaintiff did not exhaust the statutory remedies provided in Massachusetts General Laws chapter 90C ("chapter 90C"), section three. More specifically, the appeals court considered it "unnecessary to reach the merits of Belezos's claims because he waived his right to contest the" speeding ticket "by failing to pursue the remedy expressly provided for by the Legislature" in chapter 90C, section three. (Docket Entry # 8-8) (citing chapter 90C, section three). Plaintiff filed an application for leave to obtain further appellate court review ("ALOFAR") with the SJC and, during the pendency of the ALOFAR before the SJC, plaintiff filed this action on December 28, 2017. The SJC denied the ALOFAR in February 2018.² (Docket Entry # 8-9); Belezos v. Board of Selectman of Hingham, 102 N.E.3d 424 (Mass. 2018) (table).

The ultra vires state law claims and the federal due process claims under section 1983 in plaintiff's state courtaction and in Zotos II are similar to the ultra vires state law claims and the federal section 1983 due process claims brought in this action based on the 30 m.p.h. speed limit sign on Gardner Street. (Docket Entry # 11, pp. 40-43) (Docket Entry # 15-1, pp. 29-32); (Docket Entry # 8-7, p. 4) ("core issue raised by Zotos, now on behalf of Belezos, is: Did Hingham have the right to install that sign, and did the Hingham police have the authority to enforce a speed limit on Gardner St? . . . 'Yes, they did.'") (emphasis added).

On March 29, 2019 in this proceeding, this court allowed a motion to dismiss the individual federal law claims (counts IV to VIII) on the basis of claim preclusion and, in the alternative, on the merits.³ This court also determined that claim preclusion barred the individual state law claims but held the motion to dismiss these state law claims in abeyance pending a determination of the class certification motion.⁴ (Docket Entry # 22, p. 40). On July 3, 2019, this court allowed plaintiff's motion for reconsideration as to claim preclusiononly on the state law claims in counts I through III. (Docket Entry # 30). These individual claims, together with the remaining putative class claims, therefore constitute the claims in this proceeding at this juncture. On August 1, 2019, defendants filed a motion to reconsider the July 2019 decision as to claim preclusion on the state law claims, which remains pending. (Docket Entry # 31).

STANDARD OF REVIEW

A class action may be certified if:

(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a). Courts "must undertake a 'rigorous analysis' to determine whether plaintiffs me[e]t the four threshold requirements of Rule 23(a) . . .." In re Nexium Antitrust Litig., 777 F.3d 9, 17 (1st Cir. 2015) (internal citations omitted). Nonetheless, the First Circuit recognizes in Nexium that "[t]here cannot be a more stringent burden of proof in class actions than in individual actions." Id. at 20. As such, a "'[r]igorous analysis'" "does not require raising the bar for plaintiffs higher than they would have to meet in individual suits." Id. at 20 (quoting Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 161 (1982)) (emphasis in original).

Where, as here, certification is sought pursuant to Rule 23(b)(2), the court must determine whether defendants have "acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2). When a plaintiff seeks to certify a proposed class under Rule 23(b)(3)—also at issue in the case at bar—it must be shown that "questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3). As with Rule 23(a), "'"rigorous analysis"'" is typically applied to determinations of whether Rule 23(b) requirements are satisfied. Schonton v. MPA Granada Highlands LLC, Civil Action No. 16-12151-DJC, 2019 WL 1455197, at *1 (D. Mass. Apr. 2, 2019) (quoting In re Nexium Antitrust Litig., 777 F.3d at 17). Whereas this court considers the pleadings, see Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. at 160 ("[s]ometimes the issues are plain enough from the pleadings to determine whether the interests of the absent parties are...