United States Court of Appeals 

For the First Circuit 

No. 15-1320 

NAJAS REALTY, LLC; PETRA BUILDING CORPORATION, 

Plaintiffs, Appellants, 

v. 

SEEKONK WATER DISTRICT; ROBERT BERNARDO, individually and in his 

capacity as the Superintendent of the Seekonk Water District, 

Defendants, Appellees, 

CHRISTOPHER HALKYARD, in his capacity as member of the 

Seekonk Water Board; CHRISTINE ALLEN, in her capacity 

as member of the Seekonk Water Board; PHILLIP CAMPBELL, 

in his capacity as member of the Seekonk Water Board; 

JOHN DOES 1-10; JANE ROES 1-10; XYZ CORPORATIONS 1-10, 

Defendants. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Judith G. Dein, U.S. Magistrate Judge] 

Before 

Torruella, Lynch, and Thompson, 

Circuit Judges. 

Eric S. Brainsky, with whom Michael E. Levinson was on brief, 

for appellants. 

John Joseph Davis, with whom Seth Brandon Barnett was on 

brief, for appellees. 
May 2, 2016 
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THOMPSON, Circuit Judge. This action stems from the 

plaintiffs' purchase of a piece of land and the opposition the 

defendants mounted to the plaintiffs' plan to develop that 

property. Plaintiffs responded by filing suit, claiming the 

defendants' conduct violated various constitutional and state law 

provisos but the suit never made it past the pleadings stage. The 

district court granted judgment on the pleadings in favor of the 

defendants and, after taking a fresh look, we affirm. 

I. FACTUAL BACKGROUND 

Since this appeal follows a judgment on the pleadings, we 

take the facts from the pertinent pleadings and, here, that means 

the amended complaint,1 the answer, the defendants' motion for 

judgment on the pleadings, and the plaintiffs' opposition thereto 

(with attached meeting minutes). Grajales v. Puerto Rico Ports 

Auth., 682 F.3d 40, 43 (1st Cir. 2012). 

 Plaintiff Najas Realty, LLC ("Najas") is a real estate 

development and property holding company and plaintiff Petra 

Building Corporation ("Petra") is a home building company. Both 

are based in Rhode Island and both have the same principal owner. 

Defendant Seekonk Water District (the "Water District") is an 

independent governmental entity charged with ensuring and 

 1 For the most part, and for ease of reference, we will refer 

to this as the complaint. The exception will be when we need 

to distinguish between different versions of the complaint. 
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maintaining safe drinking water in Seekonk, Massachusetts (the 

"Town"). Defendant Robert Bernardo is the Water District's 

Superintendent. 

In early 2012, Najas purchased a ten-acre parcel of land in 

Seekonk (the "Property"). It filed a preliminary subdivision plan 

application with the Seekonk Planning Board seeking to construct 

a ten-lot subdivision on the Property, to be called Pine Hill 

Estates (the "Pine Hill project"). 

The Seekonk Board of Health met to discuss the proposal and 

Bernardo spoke at the meeting. He expressed concern, which the 

plaintiffs call bogus, that the proposed subdivision could impact 

the Town's public water supply given its proximity to one of the 

Town's wells, known as GP-4. Bernardo contended that the soil in 

the vicinity of GP-4 had elevated nitrate levels due to a 

malfunctioning septic system that serviced a nearby middle school, 

and he asked the Board to consider this fact when contemplating 

whether and how the Property should be developed.2 After some 

debate, the Board of Health decided to require Najas to perform a 

nitrate loading analysis as part of its definitive plan submission, 

which, according to plaintiffs, was a costly endeavor. 

 2 According to Bernardo (said at a later meeting), nitrates 

are "organic compounds and when found in drinking water it is 

typically from sewage disposal systems or fertilizers; they are 

colorless, tasteless, and odorless and can't be boiled away." 
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Later on in the meeting, after the plaintiffs' representative 

had left, Bernardo and the board members spoke more about how to 

deal with the potential impact of the Pine Hill project, at which 

point Bernardo said (among other things) that he wanted Najas "to 

go away" and that it should be made to "jump every hurdle." 

Bernardo also explained that Najas had outbid the Water District, 

which, at some point, had tried to purchase the Property in an 

effort to "protect" it.3 

The Town's Board of Selectman also convened to discuss the 

Pine Hill project.4 Bernardo appeared at that hearing and repeated 

his concerns about increased nitrate levels in the area of the 

Property. He suggested that increased nitrates from the Pine Hill 

project's proposed septic systems could lead to health issues for 

 3 In their motion for judgment on the pleadings, defendants 

claim that it was actually the Seekonk Community Preservation 

Committee, and not the Water District, that sought to purchase the 

Property but that the Water District supported this proposed 

purchase out of concern that any development of the site would 

threaten the Town's public water supply. However, in the minutes 

of one of the meetings where Pine Hill was discussed, Bernardo 

indicated that the Water District had tried to purchase the 

property. 

4 Around this same time, Najas had another residential 

development in the works, Orchard Estates. Najas and the Water 

District butted heads over that project too. With Bernardo 

claiming water quality concerns, the Water District voted to 

require Najas to "loop" the Orchard Estates water line, as opposed 

to allowing a less costly "dead ended" line. In the complaint, 

Najas suggests that this costly requirement came at the eleventh 

hour, causing substantial construction delays and further damages, 

and was simply another attempt to harass and hinder Najas. 
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the residents of Seekonk, including the risk of pregnant or nursing 

mothers having their infants contract "Blue Baby Syndrome," a 

severe medical condition that causes infants to asphyxiate. 

Bernardo reiterated similar concerns at a joint meeting between 

the Board of Health, the Board of Selectmen, and the Water 

District, which was convened given the concerns that had been 

raised about the Pine Hill project. Again, according to 

plaintiffs, the unease Bernardo voiced was unfounded. 

A couple of months later, following Najas's completion of the 

special nitrate loading analysis and submission of its definitive 

subdivision plan, the Board of Health met to discuss the plan. 

There plaintiffs presented evidence that purported to show that 

the Pine Hill project satisfied the regulatory requirements for 

septic systems and that the nitrate levels in the area of the GP4 well were within regulatory limits. The Board of Health voted 

to approve the nitrate loading analysis and the Pine Hill project. 

The Planning Board held a public hearing a month later. 

Although the Planning Board's peer review engineer had not raised 

any concerns regarding the nitrate level in the area or potential 

groundwater contamination, Bernardo appeared at the meeting to 

again voice worry about the Pine Hill project's impact on the 

public water supply, including the potential health consequence of 
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Blue Baby Syndrome.5 He suggested that the project could cause 

the Town to spend hundreds of thousands of dollars dealing with 

the increased nitrates and that the data Najas engineers had 

submitted to the Board of Health was false. After convening to 

review the data, the Planning Board denied the Pine Hill project. 

Najas appealed to the Massachusetts Land Court and ultimately 

settled that matter by agreeing to reduce the number of lots from 

ten to nine and to shorten the road length. The Planning Board 

took up the revised plan at another public meeting; again Bernardo 

was there sounding the alarm on the water contamination issues. 

This time the Planning Board approved the Pine Hill project. 

Undeterred, the Water District filed a petition with the Planning 

Board to rescind and/or modify the approved plan. 

Prior to the hearing on the petition, according to the 

plaintiffs, Bernardo embarked on a campaign of defamation, 

spreading the same supposed falsehoods about the Pine Hill project 

leading to public water contamination and Blue Baby Syndrome. At 

the Planning Board hearing, Bernardo raised the same health 

concerns, again cautioned the board about the potential cost to 

the Town, and suggested that potential buyers of the future homes 

could be opening themselves up to legal action. The Planning 

Board was not convinced and it denied the Water District's 

 5 Prior to the meeting, a Planning Board member raised 

concerns similar to Bernardo's in a local newspaper article. 
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petition. The Pine Hill project went ahead as planned, though the 

plaintiffs claim one more transgression, which is the Water 

District unreasonably delaying acting on Najas's application to 

connect the Pine Hill project to the public water supply 

infrastructure. 

II. TRAVEL OF THE CASE 

The plaintiffs filed suit, the operative complaint for our 

purposes being the amended complaint. In essence, it alleged that 

the concerns Bernardo raised about the Pine Hill project's impact 

on the Town's water supply were baseless, inflammatory, and 

defamatory, and part of a retaliatory campaign by Bernardo and the 

Water District meant to "interfere with and ultimately destroy" 

the plaintiffs' businesses and reputations. The plaintiffs' 

theory was that the defendants were seeking to punish the 

plaintiffs for outbidding the Water District on the Property, to 

penalize them for seeking to develop it, and to coerce them into 

abandoning the project. Plaintiffs alleged that they suffered 

hundreds of thousands of dollars in damages, some stemming from 

home buyers walking away from lots they had reserved. 

As for the legal nuts and bolts, the plaintiffs claimed that 

Najas deprived them of their constitutional rights, pursuant to 42 

U.S.C. § 1983, and state law rights, citing the state-law analogue 

to § 1983, the Massachusetts Civil Rights Act ("MCRA"), Mass. Gen. 

Laws Ann. ch. 12, § 11I. Counts I and III contained First 
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Amendment retaliation claims that, respectively, concerned Najas's 

right to petition and freedom of speech, with Counts II and IV 

presenting the corresponding Massachusetts claims.6 Count XI was 

a Fourteenth Amendment equal protection claim; Count X was its 

state law equivalent. And rounding out the constitutional claims 

was Najas's Fourteenth Amendment substantive due process claim, 

again both federal and state (Counts XII and XIII). Finally, 

there was Count XV, this one on behalf of both Najas and Petra, 

for tortious interference with advantageous business relations. 

A few months after answering the amended complaint, the 

defendants, pursuant to Federal Rule of Civil Procedure 12(c), 

moved for partial judgment on the pleadings seeking dismissal of 

the above-chronicled counts. Defendants maintained that the 

plaintiffs had failed to mount a single viable cause of action. 

Plaintiffs opposed the motion, claiming that they had met 

their pleading burden and, for support, attached the meeting 

minutes from various pertinent board meetings. The plaintiffs 

also sought leave to file a second amended complaint. The proposed 

augmentations had to do with the plaintiffs' equal protection 

claim; specifically, plaintiffs sought to identify similarly 

 6 We chart only the relevant counts. There were others (e.g., 

declaratory judgment and defamation counts) that the plaintiffs 

voluntarily dismissed and, therefore, are not relevant to this 

appeal. 
- 10 - 

situated comparators and the disparate treatment they were subject 

to.7 

The district court was unconvinced on all fronts. It ruled 

for the defendants, granting judgment in their favor on all of the 

disputed counts due to the plaintiffs' failure to state any viable 

claims. The court also denied plaintiffs' motion to amend the 

amended complaint. It concluded that the motion was futile 

because, even with the new additions, the proposed second amended 

complaint failed to state an equal protection claim. After the 

court granted the plaintiffs' motion to voluntarily dismiss the 

remaining counts, final judgment was entered. 

Plaintiffs timely appealed. To this court, they maintain 

that the district court required too much at the pleading stage 

and that the allegations plaintiffs put forth were more than 

sufficient to warrant a denial of the motion for judgment on the 

pleadings.

III. STANDARD OF REVIEW 

We review de novo a trial court's order entering judgment on 

the pleadings under Federal Rule of Civil Procedure 12(c) and 

dismissing the complaint. Elena v. Municipality of San Juan, 677 

F.3d 1, 5 (1st Cir. 2012). We take all well-pleaded facts in the 

 7 More to be said later but this information could have been 

relevant since plaintiffs were advancing a class of one equal 

protection theory. 
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light most favorable to the non-moving party and draw all 

reasonable inferences in that party's favor. Gray v. Evercore 

Restructuring L.L.C., 544 F.3d 320, 324 (1st Cir. 2008). If, 

after we separate these accepted-as-true factual allegations from 

any conclusory legal ones (these need not be credited), Grajales, 

682 F.3d at 45, we find that "the complaint fails to state facts 

sufficient to establish a claim to relief that is plausible on its 

face," we must affirm the trial court's judgment on the pleadings. 

Gray, 544 F.3d at 324 (citation omitted). 

IV. DISCUSSION 

Before getting underway with our analysis, we deal with a 

couple of preliminary issues. With respect to the § 1983 claims, 

plaintiffs must plausibly plead two essential elements, "(i) that 

the conduct complained of has been committed under color of state 

law, and (ii) that this conduct worked a denial of rights secured 

by the Constitution or laws of the United States." RodríguezReyes v. Molina-Rodríguez, 711 F.3d 49, 55 (1st Cir. 2013). There 

is no dispute that Bernardo was acting under the color of state 

law and, therefore, we focus on whether his conduct encroached on 

the plaintiffs' constitutional rights. 

Further narrowing things is the fact that the parties agree 

that the MCRA and § 1983 operate co-extensively and so we will not 
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conduct any separate state law analysis.8 Lyons v. Nat'l Car 

Rental Sys., Inc., 30 F.3d 240, 245-46 (1st Cir. 1994) (citing 

Batchelder v. Allied Stores Corp., 473 N.E.2d 1128, 1131 (Mass. 

1985)). 

With that said, we proceed to plaintiffs' claims. 

A. First Amendment Claim 

When a government actor retaliates against someone for 

exercising constitutionally protected First Amendment rights, that 

individual has a cognizable retaliation claim pursuant to § 1983.9 

Powell v. Alexander, 391 F.3d 1, 16 (1st Cir. 2004). To make out 

a valid claim, a plaintiff must first show that his conduct was 

constitutionally protected and, second, he must show proof of a 

causal connection between the allegedly protected conduct and the 

supposedly retaliatory response. Goldstein v. Galvin, 719 F.3d 

16, 30 (1st Cir. 2013). 

 8 There are a couple differences between the MCRA and § 1983, 

the only pertinent one for our purposes being that "the MCRA is 

narrower than § 1983 in that it limits its remedy to conduct that 

interferes with a secured right 'by threats, intimidation or 

coercion.'" Nolan v. CN8, 656 F.3d 71, 76 (1st Cir. 2011) (citing 

Mass. Gen. Laws Ann. ch. 12, § 11H). Because we find that the 

facts alleged do not amount to viable § 1983 claims, they would 

necessarily fail to pass this narrower test. 

9 This is the general rule for how to state a cognizable 

retaliation claim but, as we will explain, things are a little 

different when the alleged retaliatory act is itself government 

speech. 
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On the first point, the First Amendment protects (among other 

things) the right to free speech and the right to petition all 

branches of the government. Powell, 391 F.3d at 16. The 

plaintiffs here claim to have exercised both such rights, the 

protected petitioning conduct being Najas's submission of the Pine 

Hill project applications, and the free speech being Najas speaking 

in favor of the Pine Hill project, a matter of public concern 

according to plaintiffs. 

However, we are not sure we can get on board with plaintiffs' 

contention that they engaged in protected petitioning conduct and 

free speech. It is not clear that Najas's submission of a 

development application would be constitutionally protected 

petitioning conduct. Compare EJS Props., LLC v. City of Toledo, 

698 F.3d 845, 863 (6th Cir. 2012) (finding that a zoning request, 

because it is akin to generally seeking redress from a government 

official, constitutes protected petitioning conduct), with WMX 

Tech., Inc. v. Miller, 197 F.3d 367, 372 (9th Cir. 1999) 

(concluding that an application for a major use permit was not 

equivalent to a constitutionally protected petition for redress to 

the government). And it is questionable whether Najas's 

advocating as a developer for one of its projects would comprise 

commentary on a matter of public concern, such that it is 

constitutionally protected speech. See Levinsky's, Inc. v. WalMart Stores, Inc., 127 F.3d 122, 132 (1st Cir. 1997) (providing 
- 14 - 

that issues of public concern are those "fairly considered as 

relating to any matter of political, social, or other concern to 

the community"). 

But, because it is clear that plaintiffs cannot satisfy the 

second prong of the test -- establish a causal connection between 

the protected conduct and the alleged retaliatory response -- we 

will go ahead and assume that the plaintiffs' petitioning and 

speech were constitutionally protected. That takes us to the 

retaliation piece and, like we said, plaintiffs don't get far. 

The claim that Bernardo and the Water District's opposition to the 

Pine Hill project was a retaliatory response to the plaintiffs 

submitting for approval, and advocating on behalf of, the Pine 

Hill project is not plausible on its face.10 

Plaintiffs point to Bernardo's "fabricated, false, 

inflammatory, and baseless statements" that the Pine Hill project 

would contaminate the Town's water supply potentially leading to 

 10 To this court, plaintiffs focus on the Pine Hill project 

but make one quick reference to the Orchard Estates project. They 

cite, as an example of retaliatory behavior, the "financially 

onerous design and construction requirements" that were imposed in 

connection with that project, presumably referring to the looping 

of the water line and the attendant delay. To the extent this 

argument is developed enough to be preserved, plaintiffs have not 

plausibly alleged that the looping requirement was not justified 

and was imposed as pay back. The fact that Bernardo's initial 

focus, in suggesting the line be looped, was related to water 

pressure, and that he later cited "water quality" as a concern, 

does not nudge this claim from possible to plausible. And for 

reasons we will get into, Bernardo had his own First Amendment 

rights. 
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increased nitrate levels and causing infants to develop Blue Baby 

Syndrome. However, there is no indication in the record, other 

than plaintiffs' say-so, that Bernardo's concerns about the 

project's impact on water were not genuinely held.11 

Bernardo continually voiced the same worry about the 

project's impact on the water supply, both before various boards 

and in the motion to rescind or modify the Pine Hill project. It 

was a concern that, according to the Board of Health meeting 

minutes plaintiffs provided, members of the board shared even 

 11 Plaintiffs suggest that newly discovered evidence, which 

they submitted to the district court via a supplemental memorandum 

of law in support of the motion to amend the amended complaint, 

shows that Bernardo's concerns about nitrate levels were fiction. 

We are not persuaded. The Seekonk Water District's 2014 Consumer 

Confidence Report, which showed that the nitrate level in the 

Town's water was within normal limits, came out at least a year 

and a half or so after Bernardo initially raised concerns and, 

even so, does not mean that his concern about the Pine Hill project 

potentially increasing this number was frivolous. The June 2004 

Massachusetts Department of Environmental Protection ("MADEP") 

report, which plaintiffs cite to show that MADEP was concerned 

that all Town wells were susceptible to contamination, is even 

less helpful. It was penned eight years before Bernardo raised 

his concerns, and we fail to see why, as plaintiffs suggest, this 

means that the defendants' specific concerns about the nitrate 

level around GP-4 were false. The random couple of emails 

plaintiffs produced are similarly not supportive. Bernardo asked 

in one email what ways the Water District might be able to stop 

the Pine Hill project. This is fully consistent with his oft 

repeated goal of preventing the project from going forward. As 

for the second email, we can hardly make the leap that plaintiffs 

would have us make, which is that the email, in which Bernardo 

agreed that for political reasons Town residents did not need to 

know how old the drinking water was, means that he "had no actual 

concern for public health related to the quality of the water 

supply." These supplemental filings do not edge the plaintiffs' 

claims out of the realm of possible into plausible. 
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before Bernardo made his pitch. The minutes also reflect that the 

septic system at the nearby middle school had been monitored since 

1995 and Bernardo arrived with graphs in hand showing variable and 

sometimes excessive nitrate levels in the area. 

At the Planning Board meeting, Bernardo repeated more of the 

same but took things a step further, noting the correlation between 

increased nitrate levels and Blue Baby Syndrome. Though 

plaintiffs call such a claim baseless and inflammatory, as the 

district court found -- properly taking judicial notice of this 

fact12 -- the United States Environmental Protection Agency has 

explained: "Infants who drink water too high in nitrates can become 

seriously ill and even die. Symptoms include shortness of breath 

and blue-tinted skin, a condition known as blue baby syndrome." 

https://www.epa.gov/nutrientpollution/effects-human-health (last 

visited on Apr. 27, 2016). And the additional supposedly 

groundless concern raised by Bernardo, that the potential cleanup costs of any contamination would be high, was supported by the 

Water District's treasurer (he was a certified public accountant 

too) who spoke at the meeting. 

 12 See R.G. Fin. Corp. v. Vergara-Nuñez, 446 F.3d 178, 182 

(1st Cir. 2006) (explaining that in connection with a motion for 

judgment on the pleadings, "[t]he court may supplement the facts 

contained in the pleadings by considering . . . facts susceptible 

to judicial notice"). 

 
- 17 - 

Indeed, though the Planning Board ultimately allowed the Pine 

Hill project to go forward, bucking Bernardo's clear preference 

otherwise, there evidently was some level of agreement with 

Bernardo that there was cause for concern. Plaintiffs were 

required to both reduce the number of lots and to install five 

specially designed septic systems in the future residential lots 

closest to the GP-4 well. 

All of this is to say that Bernardo had a duty, as the Water 

District's superintendent, to raise objections he deemed valid and 

it is hard to find any allegations in the complaint that Bernardo 

was doing anything more than fulfilling this duty. No doubt the 

parties disagreed on the potential impact the Pine Hill project 

would have on the Town's water, but the plaintiffs' allegation 

that Bernardo's concerns were imagined and raised simply to get 

even with plaintiffs is "too meager, vague, or conclusory to remove 

the possibility of relief from the realm of mere conjecture." 

S.E.C. v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010) (en banc).13

There is another wrinkle. Like we said, in the First 

Amendment free speech context, issues of public concern are those 

 13 Plaintiffs also allege in the complaint that the defendants 

"intentionally and unreasonably delayed" acting on Najas's 

application to connect Pine Hill to the Town's public water supply 

infrastructure. They say no more than this. When an allegation 

is so threadbare that it omits any meaningful content, we treat it 

as a naked conclusion. A.G. ex rel. Maddox v. Elsevier, Inc., 732 

F.3d 77, 81 (1st Cir. 2013). That is the case here. 
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"fairly considered as relating to any matter of political, social, 

or other concern to the community." Levinsky's, Inc., 127 F.3d 

at 132. There is little doubt that speech regarding a 

development's impact on the public water supply and, by extension, 

its impact on resident health, touches on matters of public 

concern. And, as superintendent of the Water District, Bernardo 

was charged with maintaining safe drinking water for the Town's 

residents. As this court has explained, "[n]ot only do public 

officials have free speech rights, but they also have an obligation 

to speak out about matters of public concern." Goldstein, 719 

F.3d at 30. For this reason, courts are not typically receptive 

to retaliation claims arising out of government speech. Id. This 

case certainly does not persuade us to deviate from this trend. 

Plaintiffs have failed to plead a plausible unconstitutional 

retaliation claim. We move on to their equal protection offering. 

B. Equal Protection Claim 

Citing the same facts that support the retaliation claim, 

plaintiffs charge the defendants with violating their equal 

protection rights. They advance a class of one theory, which 

means that the aggrieved parties were singled out for reasons 

unique to them, not because of their membership in a particular 

group. Snyder v. Gaudet, 756 F.3d 30, 34 (1st Cir. 2014). To 

prevail, plaintiffs would need to show that Bernardo and the Water 

District intentionally treated them differently from others 
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similarly situated and there was no rational basis for this 

disparate treatment. Id. Based on how the plaintiffs have pled 

the claim, they would also need to show that the differential 

treatment "was motivated by 'bad faith or malicious intent to 

injure.'" Id. (citing Rubinovitz v. Rogato, 60 F.3d 906, 911 (1st 

Cir. 1995)). 

We have no trouble concluding that the complaint fails to 

allege a plausible equal protection claim. The two equal 

protection counts (state and federal) simply rehash the 

plaintiffs' retaliation claims, relying on the same operative 

facts with a couple of buzzwords like "disparate" and 

"unprecedented" thrown in to describe the defendants' conduct. 

Nothing more is given. This is not sufficient. See Rosaura Bldg. 

Corp. v. Municipality of Mayaguez, 778 F.3d 55, 68 (1st Cir. 2015) 

(finding that simply rehashing a First Amendment retaliation claim 

is not sufficient to make out a valid equal protection claim). 

Plaintiffs do not even attempt to allege the existence of any 

similarly situated comparators, and as our analysis in the previous 

section likely makes clear, they fail to state a plausible claim 

that bad faith or malice were the driving factors behind Bernardo 

and the Water District's opposition to the Pine Hill project. 

"[O]nly in extreme circumstances will a land-use dispute give rise 

to an equal protection claim." Torromeo v. Town of Fremont, 438 
- 20 - 

F.3d 113, 118 (1st Cir. 2006) (citation omitted). This is not one 

of those circumstances. 

The plaintiffs make a last ditch effort to get around these 

deficiencies by arguing that even assuming they needed to identify 

comparators at the pleadings stage, the proposed second amended 

complaint did just that and, as a result, the district court should 

have granted their motion to amend. Employing the abuse of 

discretion standard the denial of a motion to amend warrants, and 

deferring to the district court's hands-on judgment as we must, we 

conclude that the court had sufficient reason to deny the request. 

Aponte-Torres v. Univ. of Puerto Rico, 445 F.3d 50, 58 (1st Cir. 

2006). 

Though the proposed second amended complaint identified ten 

subdivisions or land use projects that had been built in the Town, 

which the Water District and/or Bernardo had reviewed the plans 

for, it in no way explained how the projects were similarly 

situated, for example, where they were located, when they were 

built, whether they were built on environmentally sensitive sites, 

or their proximity to GP-4 or other Town water sources. This does 

not cut it, even at the pleading stage.14 See, e.g., Freeman v. 

 14 Because plaintiffs fail to set forth a believable bad faith 

or malice claim, their argument that the degree of similarity 

between comparators should be relaxed, relying on Cordi-Allen v. 

Conlon, 494 F.3d 245, 251 n.4 (1st Cir. 2007), is unavailing. 

Even so, their claim would fail the more relaxed standard. 
- 21 - 

Town of Hudson, 714 F.3d 29, 39-40 (1st Cir. 2013) (concluding 

that the complaint's "failure to do more than conclusorily state 

that the [plaintiffs] were both similarly situated to and treated 

differently from unspecified 'other contractors' is insufficient 

to survive the defendants' motion to dismiss"). On top of this, 

the proffered additions to the complaint did not address the 

complaint's other infirmity, the absence of a believable bad faith 

or malice claim. Given these shortcomings, allowing the 

plaintiffs to amend the complaint would have been, as the district 

court found, pointless. If a proffered amendment would be an 

exercise in futility, the district court does not need to allow 

it. Aponte-Torres, 445 F.3d at 58. We find no abuse of 

discretion. 

In sum, plaintiffs' equal protection claim fails as pled, and 

the district court correctly precluded plaintiffs from augmenting 

it. The next claim fares no better. 

C. Substantive Due Process Claim 

Plaintiffs, again pointing to the defendants' opposition to 

Pine Hill and the requirements imposed on their development 

projects, allege that their substantive due process rights were 

violated. In order to assert a viable substantive due process 

claim, a plaintiff has "to prove that they suffered the deprivation 

of an established life, liberty, or property interest, and that 

such deprivation occurred through governmental action that shocks 
- 22 - 

the conscience." Clark v. Boscher, 514 F.3d 107, 112 (1st Cir. 

2008) (emphasis in original). We conclude, without serious 

question, that plaintiffs fall short. 

For starters, we are unclear as to what deprivation plaintiffs 

contend they have suffered. Oddly they claim to have been deprived 

of life and liberty in their brief. Property appears a better fit 

but even that does not seem quite right. Plaintiffs did not lose 

out on any land and were not precluded from developing. Both Pine 

Hill and Orchard Estates went forward as planned, albeit with some 

requirements plaintiffs are not happy with. In any event, even 

assuming they have alleged a valid deprivation, plaintiffs have 

not plausibly alleged conscience-shocking government behavior. 

In the context of land use disputes, "[s]ubstantive due 

process is a constitutional cause of action that leaves the door 

'slightly ajar for federal relief in truly horrendous 

situations.'" Id. (quoting Néstor Colón–Medina & Sucesores, Inc. 

v. Custodio, 964 F.2d 32, 45 (1st Cir. 1992)). It is not a 

doctrine to be invoked to challenge discretionary determinations 

of local decision makers. Id. Despite all of plaintiffs' 

protestations otherwise, this matter is far more akin to a runof-the-mill land use case than an abhorrent scenario. At most, 

plaintiffs have plausibly alleged that Bernardo and the Water 

District were doggedly persistent in their belief that the Pine 

Hill project would harm that Town's water, a concern that does not 
- 23 - 

(according to the record) appear baseless, and is one that Bernardo 

was obligated to explore. This is hardly the "brutal, demeaning, 

and harmful" stuff that makes a substantive due process claim. 

Elena, 677 F.3d at 7. 

No more need be said. Plaintiffs have not alleged a 

plausible-on-its-face substantive due process claim.15

D. Tortious Business Interference Claim 

The plaintiffs included a claim against Bernardo individually 

for intentional interference with business expectation, 

opportunity, and advantage. In it they called Bernardo's 

"actions, statements, and publications" regarding the Pine Hill 

project a direct attempt to interfere with their business 

relations, alleging the actions were malicious and in retaliation 

for the plaintiffs outbidding the Water District for the Property 

and seeking to develop it. 

But, according to Massachusetts common law, "a public 

official, exercising judgment and discretion, is not liable for 

negligence or other error in the making of an official decision if 

the official acted in good faith, without malice, and without 

corruption." Nelson v. Salem State Coll., 845 N.E.2d 338, 348 

(Mass. 2006). The rule is "that [t]here is every presumption in 

 15 Since we have found no merit to any of plaintiffs' 

constitutional claims, we do not need to address Bernardo's 

contention that he is entitled to qualified immunity from suits 

filed pursuant to § 1983 and the MCRA. 
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favor of the honesty and sufficiency of the motives actuating 

public officers in actions ostensibly taken for the general 

welfare." S. Boston Betterment Trust Corp. v. Boston 

Redevelopment Auth., 777 N.E.2d 812, 820 (Mass. 2002) (alteration 

in original). 

Defendants argue that Bernardo is entitled to this immunity. 

We agree. For the reasons set forth above, which we see no reason 

to rehash, the complaint failed to state a plausible claim that 

bad faith or malice, as opposed to a concern for the Town's 

residents' general welfare, motivated Bernardo's behavior. 

Plaintiffs' conclusory allegations otherwise are not enough. With 

Bernardo entitled to immunity on this state law claim, the court 

properly dismissed it. 

V. CONCLUSION 

What the plaintiffs needed to give were sufficient facts to 

state plausible-on-their-face claims, ones that gave "rise to more 

than a mere possibility of liability." Grajales, 682 F.3d at 44-

45. That is not what we got. The district court's dismissal of 

each of the subject claims was warranted. 

Affirmed.