United States v. Town of Hingham

683 F.Supp.3d 81

UNITED STATES of America and Commonwealth of Massachusetts,ex rel. Frederic P. Zotos, Plaintiffs, v. TOWN OF HINGHAM et al., Defendants.

Civil Action No. 19-12002-NMG

United States District Court, D. Massachusetts

Signed July 21, 2023

Charles B. Weinograd, United States Attorney's Office, Boston, MA, for Plaintiff United States of America.

Mary-Ellen Kennedy, Massachusetts Office of the Attorney Genera, Boston, MA, for Plaintiff Commonwealth of Massachusetts.

Frederick P. Zotos, Pathogenics, Inc., Cohasset, MA, for Plaintiff Frederic P. Zotos.

Kerry T. Ryan, Bogle, DeAscentis & Coughlin, P.C., Quincy, MA, for Defendants Town of Hingham, Tom Mayo, Susan Nickerson.

Joseph A. Padolsky, Louison, Costello, Condon & Pfaff, LLP, Boston, MA, for Defendants Roger Fernandes, Ted C. Alexiades, Kevin Paicos.

MEMORANDUM AND ORDER

Gorton, United States District Judge

Frederic P. Zotos ("Zotos" or "Relator"), an attorney representing himself, brings this qui tam action on behalf of the United States of America and the Commonwealth of Massachusetts under the federal False Claims Act, 31 U.S.C. §§ 3729(a)(1)(A)-(C) ("the FCA"), and the Massachusetts False Claims Act, M.G.L. ch. 12, §§ 5B(a)(1)-(3) ("the MFCA").

Zotos alleges that the Town of Hingham ("the Town") and several of its administrators and officers (collectively, "the defendants") violated the FCA and MFCA by: 1) posting speed limit signs ultra vires; 2) knowingly submitting, or causing to be submitted, claims for payment which falsely represented that defendants had complied with all applicable laws and regulations; and thereby 3) fraudulently inducing the United States and the Commonwealth to pay millions of dollars for highway and transportation projects.

Defendants have filed a joint motion to dismiss (Docket No. 21) which is currently pending before the Court. For the following reasons, the motion will be allowed.

I. Background

A. Prior Litigation

Zotos has been the plaintiff in two previous actions brought in this Court against the Town and related defendants. See Zotos v. Town of Hingham, No. 12-11126-JGD, 2013 WL 5328478, 2013 U.S. Dist. LEXIS 134123 (D. Mass. Sep. 19, 2013) ("Zotos I"); Zotos v. Town of Hingham, et al., No. 13-CV-13065-DJC, 2016 U.S. Dist. LEXIS 195835 (D. Mass. March 25, 2016) ("Zotos II"). In both of those cases, Zotos challenged the legitimacy of certain speed limit signs posted in the Town of Hingham.

In Zotos I, the district court published a lengthy decision dismissing the action and the First Circuit Court of Appeals ("the First Circuit") affirmed the dismissal. Zotos I, 2013 WL 5328478, 2013 U.S. Dist. LEXIS 134123, aff'd, No. 13-2308 (1st Cir. 2015). Zotos filed Zotos II prior to the First Circuit's decision in Zotos I and the district court issued a carefully crafted opinion dismissing that action as well. Zotos II, 2016 U.S. Dist. LEXIS 195835, at *14.

In addition to the lawsuits Zotos filed as a plaintiff, he has also served as an attorney in two other civil actions in which the plaintiff, Nicholas Belezos, alleged statutory and constitutional violations with respect to a speeding ticket issued by the Town.

In Belezos v. Board of Selectmen of the Town of Hingham, the Massachusetts Superior Court for Plymouth County allowed the defendants' motion for judgment on the pleadings which was then upheld on appeal by the Massachusetts Appeals Court on the grounds that plaintiff had waived his right to contest the infraction "at the heart of [the] dispute". Belezos v. Board of Selectmen of Hingham, 2017 WL 5339855, at *2, 2017 Mass. App. Unpub. LEXIS 1005, at *3-4, 92 Mass. App. Ct. 1114 (Mass. App. Ct. 2017). The Massachusetts Supreme Judicial Court denied plaintiff's application for further appellate review.

The same plaintiff, again represented by Zotos, brought substantially similar claims in federal court which, after the filing of a motion to dismiss and multiple motions for reconsideration, were dismissed by another session of this Court because they were barred by the doctrine of claim preclusion. See Belezos v. Board of Selectmen of Hingham, No. 17-12570-MBB, 2019 WL 6340990, 2019 U.S. Dist. LEXIS 205938 (D. Mass. Nov. 27, 2019) ("Belozos II").

B. The Pending Case

1. The Parties

Relator Frederic Zotos is a licensed attorney residing in Cohasset, Massachusetts. The Town of Hingham is a municipality located in Massachusetts. The remaining defendants were all administrators and/or officers of the Town at times relevant to the complaint: Roger Fernandes was a Town Engineer, Thomas Mayo was a Town Administrator, Ted Alexiades was a Town Accountant/Finance Director and Town Administrator, Kevin Paicos was a Town Administrator and Susan Nickerson was a Town Accountant.

2. Speed Limit Signs

The complaint includes a lengthy recitation of various federal and state laws and regulations pertaining to the establishment of speed limit signs. In particular, the federal highway administrator has approved a 2009 Manual on Uniform Traffic Control Devices ("MUTCD") which sets standards for the establishment of speed limit signs and advisory speed plaques. According to other federal regulations, any permanent or temporary traffic control devices installed as part of a federal-aid project "shall conform to the MUTCD". The federal highway administrator can withhold or withdraw funds for highway projects from states if they "violate[ ] or fail[ ] to comply with the Federal laws or the regulations . . . with respect to a project".

Massachusetts has also enacted several statutes and regulations with respect to the establishment and maintenance of traffic signs. For instance, M.G.L. ch. 90, § 18 authorizes the special regulation of speed limits and the posting of such speed limit signs on roadways in Massachusetts. Pursuant to M.G.L. ch. 85, § 2, the Massachusetts Department of Transportation ("MassDOT") promulgates various regulatory standards about speed limits and signs. Those regulations require, inter alia, posted signage to comply with the MUTDC (as well as the Commonwealth's 2012 amendments to those standards), explain the kinds of statutory and special speed limits authorized under M.G.L. ch. 90, §§ 17 and 18, and set out procedures for posting new speed limit signs and advisory speed plaques.

Zotos avers that, as of March, 2012, the Town posted at least 26 speed limit signs without following applicable federal and state regulations for the establishment of those limits. Furthermore, Zotos alleges that, as of March, 2012, the Town posted multiple advisory speed plaques in violation of applicable regulations. He asserts that the Town has enforced such signs without authority and has ignored traffic studies and reports which indicate that the selected speed limits are improper.

3. Chapter 90 Reimbursements

The complaint seeks to connect the Town's purportedly ultra vires posting of speed limit signs with certain funds provided by the federal government and/or the Commonwealth as part of highway and transportation aid programs. The Commonwealth of Massachusetts ("the Commonwealth") provides funding for local transportation projects pursuant to M.G.L. ch. 90, § 34 ("Chapter 90"). Under Chapter 90, the Commonwealth reimburses municipalities and other qualifying entities for up to 100% of the cost of approved projects.

Zotos contends that the Town, in connection with a variety of Chapter 90 projects, entered into two contracts with the Commonwealth, submitted 24 separate Chapter 90 Reimbursement Forms to the District Office of the MassDOT's Highway Division and submitted several Chapter 90 Final Reports. The complaint identifies certifications included in those contracts and reimbursement forms which defendants signed despite their alleged failure to comply with regulations pertaining to speed limit signs.

For instance, in 2007, the Town entered into a ten-year contract with the Massachusetts Highway Department related to its work on Chapter 90 projects in which it certified its current and continuing compliance with "all legal requirements governing performance of this Contract" whether or not such laws or requirements were specifically cited. In 2017, the Town executed a replacement contract in which it again certified that it would "comply with all applicable state laws and regulations".

Throughout the time period covered by those contracts, defendants submitted two dozen Chapter 90 Reimbursement Forms to the District Office of the MassDOT Highway Division. Those reimbursement requests documented the Town's qualifying expenditures on previously approved Chapter 90 projects. The requests also contained several certifications, namely: 1) a Municipal Highway Officer's Certification stating that costs were incurred "in conformance with the Massachusetts Highway Department Policies", 2) an Accounting Officer's Certification that the forms submitted by the Town conformed with "all applicable statutes and regulations" and 3) a Duly Authorized Municipal Official's Certification certifying the same.

Finally, the Town submitted multiple Chapter 90 Final Reports that each included a joint certification by the Municipal Highway Officer, Accounting Officer and Duly Authorized Municipal Official "that the Municipality has complied with all applicable statutes and regulations" while incurring the project costs for which it sought reimbursement.

In July, 2012, Zotos sent a letter to Richard Davey, the Secretary of Transportation and Chief Executive Officer of the MassDOT. Zotos requested that, inter alia, the MassDOT withhold or withdraw funds provided to the Town under Chapter 90 because it had posted unauthorized speed limit signs. He also asked that the MassDOT dispatch personnel to Hingham to take down those signs. After the MassDOT rejected his request through its General Counsel, Zotos wrote a second letter to the MassDOT stating that he thought its response was inadequate.

According to the complaint, defendants have fraudulently induced the...