United States District Court, D. Maine
ORDER ON PLAINTIFF'S MOTION FOR LEAVE TO FILE
LEVY U.S. DISTRICT JUDGE.
Papi and his limited liability company, John J. Papi, LLC,
(collectively “Papi”) filed a seven-count
Complaint against the Town of Gorham (“the Town”)
and several of its officials relating to the Town's
enforcement of its solid waste removal licensing ordinance.
See ECF No. 1. Papi now moves to amend the
Complaint. ECF No. 19. For the following reasons, that motion
April 20, 2017, I entered an order granting the
Defendants' Partial Motion to Dismiss (ECF No. 5). ECF
No. 14. That order dismissed Counts I through VI of the
Complaint, as well as Count VII against Defendants Town of
Gorham Town Council, Ronald Shepard, and Daniel Jones.
Id. at 10. Papi's claim in Count VII against the
Town, the Town of Gorham Town Clerk, and David Cole was left
as the only remaining claim. Id.
dispute with the Town over the solid waste licensing
ordinance was the subject of a previous case in the
Cumberland County Superior Court (Wheeler, J.), which arose
from a citation issued to Papi for hauling waste without a
license in violation of the ordinance. Town of Gorham v.
Papi, No. VI-14-001, 2015 WL 1757015 (Me. Super. Mar.
27, 2015). Papi contested the citation, claiming that the
Town violated his Constitutional rights by selectively
enforcing the ordinance against him even though it was not
enforced against other waste haulers operating in the town.
Because the Superior Court determined that Papi failed to
prove that he was selectively prosecuted for violating the
ordinance, I concluded that Papi was barred by the principle
of collateral estoppel from asserting Counts I through VI in
federal court and ordered the dismissal of those counts.
See ECF No. 14 at 6-9. Count VII, the only remaining
count in the Complaint, alleged a violation of Maine Rule of
Civil Procedure 80B stemming from the alleged failure of the
Town Clerk to issue a solid waste removal license to Papi,
despite Papi's payment of the licensing fee. See
ECF No. 1 at 16.
subsequently met with counsel to address whether the Court
should exercise supplemental federal jurisdiction over Count
VII, given that it arose under state law, and in view of the
order dismissing all of Papi's federal claims.
See 28 U.S.C.A. § 1367 (2017). At the
conference, Papi's counsel expressed Papi's desire to
file an amended complaint in order to assert federal claims
arising from the Town's alleged failure to issue the
solid waste removal license that is the basis of Count VII. I
requested Papi's counsel to file a motion for leave to
amend in order to assert the new federal claims. Papi
subsequently moved for leave to amend, ECF No. 19, and the
Defendants objected, ECF No. 24.
the time for amendments as a matter of course has passed, a
party may amend its pleading with leave of the court, which
should be freely given “when justice so
requires.” Fed.R.Civ.P. 15(a)(2). Accordingly, leave to
amend should be granted where there is no “undue delay,
bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, [or] futility.”
Foman v. Davis, 371 U.S. 178, 182 (1962); see
also Chiang v. Skeirik, 582 F.3d 238, 244 (1st Cir.
2009). If leave to amend is sought before discovery is
complete and neither party has moved for summary judgment, a
proposed amendment will be denied if the amendment fails to
state a claim and is, therefore, futile. See Hatch v.
Dept. for Children, Youth and Their Families, 274 F.3d
12, 19 (1st Cir. 2001). “Futility” is gauged by
the criteria of Federal Rule of Civil Procedure 12(b)(6)
governing motions to dismiss for failure to state a claim.
Id. A proposed amended complaint therefore
“must contain sufficient factual matter to state a
claim to relief that is plausible on its face.”
Saldivar v. Racine, 818 F.3d 14, 18 (1st Cir. 2016)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)) (internal quotation marks and alterations omitted).
The Proposed Amendment
Proposed Amended Complaint seeks to re-assert all seven
counts in the original complaint by alleging
“additional facts to clarify that the complained of
actions by the Defendants occurred prior to and subsequent to
the state court's decision in Town of Gorham v. John
Papi.” ECF No. 19 at 4. Papi claims that the
amendments makes “clear, that [the] state court neither
had before it, nor decided all of the allegations raised in
the amended Complaint.” Id. at 5. Papi further
argues that the amended Complaint asserts a claim for
selective licensing of solid waste haulers, which should be
understood as distinct from the selective enforcement of the
first argument misapprehends the basis for the Court's
order of dismissal. The doctrine of collateral estoppel,
otherwise known as issue preclusion, does not require that
all of the claims raised by a later suit were determined by
the prior judgment. 13C Charles Alan Wright & Arthur R.
Miller,, Federal Practice and Procedure § 4416
(3d ed. 2017 Update); see also Southern Pac. R. Co. v.
United States, 168 U.S. 1, 48-49 (1897) (“[E]ven
if the second suit is for a different cause of action, the
right, question, or fact once so determined must . . . be
taken as conclusively established.”). Collateral
estoppel instead deals with the preclusive determination of
factual matters. “Issue preclusion reflects the
fundamental principle that courts should not revisit factual
matters that a party previously litigated and another court
actually decided.” Miller v. Nichols, 586 F.3d
53, 60 (1st Cir. 2009). Because the Superior Court's
judgment determined that the Town did not engage in selective
enforcement and had a rational basis for enforcing the
licensing ordinance against Papi, Papi is estopped from
asserting any claim that requires him to prove that the Town
acted without a rational basis, regardless of whether that
specific claim was before the Superior Court. See
ECF No. 14 at 7-9. Papi had his day in court, and thus had an
opportunity to prove that the ordinance had been selectively
enforced against him. Because he failed to prove selective
enforcement in state court, collateral estoppel prevents
trying the case a second time in federal court.
the fact that some of the allegations set forth in the
Proposed Amended Complaint relate to events that took place
after the date of the Superior Court judgment does not save
Papi's Proposed Amended Complaint. There is no allegation
that the Defendants have changed their conduct in any way;
Papi asserts that they continue to require him to have a
license while not requiring other haulers to have a license,
just as he claimed they did before the state case was brought
against him. The allegation of continuing conduct does not
give rise to a new claim. The Superior Court determined that
the Defendants' actions were constitutional. The fact
that the Defendants continued to act in the same way after
the Superior Court's decision therefore cannot give rise
to a claim for a constitutional violation.
further argues that the Superior Court did not address the
argument he seeks to make in support of his Amended
Complaint, namely that the Town is engaging in selective
administration of the licensing scheme at the level of the
town clerk's office, rather than selective enforcement of
the licensing ordinance. Papi asserts that selective
administration is different from the selective enforcement
that was at issue in the state case because enforcement
requires the exercise of discretion, while administration of
the ordinance by the town clerk's office does not allow
for the exercise of any discretion. Specifically, Papi