206 F. Supp.2d 120 (2002) | Cited 0 times | D. Massachusetts | June 7, 2002


(Docket No. 16)


Plaintiff Paul Campagna ("plaintiff"), an employee of theMassachusetts Department of Environmental Protection ("DEP"),has brought suit under 42 U.S.C. § 1983, the Massachusetts CivilRights Act, and under Massachusetts common law against the DEPand five of plaintiffs co-employees, David Howland ("Howland"),Deirdre Doherty Cabral ("Cabral"), Mary Holland ("Holland"),Edward Kunce ("Kunce"), Alan Weinberg ("Weinberg"), and DavidStruh ("Struh") (together "defendants"). Plaintiff contends thatas a result of a lawsuit he brought against DEP in 1992, he hasbeen harassed in violation of his right to petition theGovernment for redress under the First Amendment, has suffereddisparate treatment in violation of his right to EqualProtection under the Fourteenth Amendment, and has been defamed.Defendants have moved to dismiss for failure to state a claimand lack of subject-matter jurisdiction. For the reasonsdiscussed below, the motion to dismiss will be allowed.


When reviewing a motion to dismiss for failure to state aclaim under Fed.R.Civ.P. 12(b)(6), the court must "accept astrue the well-pleaded factual allegations of the complaint, drawall reasonable inferences therefrom in the plaintiffs favor anddetermine whether the complaint, so read, sets forth factssufficient to justify recovery on any cognizable theory."Martin v. Applied Cellular Technology, Inc., 284 F.3d 1, 6(1st Cir. 2002). Similarly, review of a motion to dismiss forlack of subject-matter jurisdiction under Fed.R.Civ.P. 12(b)(1)requires the court to "construe the complaint liberally,treating all well-pleaded facts as true and drawing allreasonable inferences in favor of the plaintiffs." Viqueira v.First Bank, 140 F.3d 12, 16 (1st Cir. 1998). However,"[b]ecause federal courts are courts of limited jurisdiction,federal jurisdiction is never presumed. Instead, the proponent —here, the plaintiff[] — must carry the burden of demonstratingthe existence of federal jurisdiction." Id. On no issue willthe court "credit conclusory assertions, subjectivecharacterizations, or `outright vituperation.'" Barrington CoveLtd. P'ship v. Rhode Island Hous. & Mortgage Fin. Corp.,246 F.3d 1, 5 (1st Cir. 2001), quoting Coyne v. City ofSomerville, 972 F.2d 440, 444 (1st Cir. 1992).


According to the amended complaint, plaintiff was employed byDEP as an Environmental Engineer in the Bureau of Waste SiteManagement in 1985, and was soon promoted to the position of "EEIII." (Docket 3 at 4). Plaintiff hoped for an additionalpromotion to "EE IV," but was passed over while "less qualified,but more politically connected candidates were promoted." Id.

In 1992, plaintiff quit DEP for a position with the federalgovernment, but immediately re-applied when a position for whichhe was qualified was announced. Id. However, Howland, adefendant and DEP employee in charge of filling the position,refused to hire plaintiff. Howland said that plaintiff "was lessqualified than the candidate Howland supported." Id.

Plaintiff sued, "claiming that, as a Veteran of the VietnamWar, he was entitled to preferential hiring." Id. According totheplaintiff, "the court agreed with plaintiff Campagna and orderedthe DEP to place him in the position unless there was another,better qualified candidate who was also a veteran." Id. at4-5. DEP appealed, and the parties eventually settled in June1995, with plaintiff "accept[ing] a different, less desirableposition." Id. at 5.1

No adverse action is alleged from the time of settlement inJune, 1995, until October, 1997. During this twenty-eight monthperiod plaintiff ran an after-hours business from his home"designing and monitoring septic systems in WesternMassachusetts." Id. In April, 1997, plaintiff was hired by acustomer in Westfield, Massachusetts whose septic system hadfailed a "Title V" inspection performed by another inspector,one "Mr. Lally" ("Lally"). Id. Lally had determined that thecustomer's septic system was installed too close to ground waterand had an unsealed "weep hole" in the septic tank. Id. at5-6.

Plaintiff reevaluated the system and determined that Lally hadbeen wrong on both counts. Id. at 6. Accordingly, plaintiffcontacted the Westfield authorities and advised them toreevaluate the system. Id. Daniel Reardon ("Reardon"), amember of the Westfield Board of Health, notified DEP ofplaintiffs communication. Id. at 6.

Sometime later, in October 1997, plaintiff "actively supportedTimothy Maginnis in his appeal of an enforcement action broughtagainst Mr. Maginnis in October 1997." Id. at 5. Like the 1992lawsuit, this "active support" of Timothy Maginnis ("Maginnis")allegedly gave defendants cause to harbor a grudge againstplaintiff and eventually to retaliate against him.

Meanwhile, on October 11, 1997, defendant Cabral, a DEPemployee, reinspected the Westfield site, along with Reardon andanother Title V inspector, David Recoulee ("Recoulee"). Id. at6. Cabral agreed with Lally, the first inspector, and found thatthe septic system was built too close to groundwater. Id. Sheconcluded that plaintiffs opinion was invalid, and instructedRecoulee "to fail the system." Id. at 67.

According to the complaint, plaintiffs supposed error inreviewing Lally's work at the Westfield site gave defendants thechance to act on the grudge that they had been nursing againstplaintiff. Cabral instituted an "enforcement action" againstplaintiff, an administrative proceeding under state regulationsby which the DEP could sanction incompetent or negligentinspectors. According to the complaint:

Cabral, under the direction of the other defendants, and without first sending the plaintiff a Letter of Non-Compliance, charged plaintiff Campagna with two willful violations of DEP regulations and statutes pertaining to Title V, resulting from inaccurately estimating the depth of groundwater and neglecting to complete the requisite form.

Id. at 7. On August 28, 1998, this process apparently resultedin a finding that plaintiff had, in fact, (1) inaccuratelyestimatedthe groundwater depth; and (2) neglected to complete a requiredform. As a result of these findings, "defendants fined plaintiff$1,500 for two willful violations of Title V violations [sic]."Id. at 8.

Plaintiff contends that the two findings that purported tojustify the fine against him were either incorrect or unfair.First, he alleges that his groundwater depth reading wasaccurate, and that Lally's and Cabral's calculations were wrong.Allegedly, "[d]efendant Cabral, under the direction of the otherdefendants, ignored evidence . . . validating plaintiffCampagna's estimate of the average ground water level." Id. at8. Moreover, Cabral, according to the complaint, wasinexperienced and performed her inspection incompetently. Id.

Second, according to the complaint, even if plaintiff failedto complete "the requisite form" properly, Title V's rulerequiring an inspector to do this was arbitrarily enforced.Allegedly, both Lally and Recoulee also failed to complete theform properly in conjunction with their inspections of theWestfield property, but neither was charged with violating therule. Id. at 7. Allegedly, only three other inspectors havebeen the subjects of enforcement actions by DEP's WesternRegional Office, and one of those did not receive a fine. 9-10.2

Next, the complaint alleges that defendants further injuredplaintiff by publicizing the false charges.

The defendants issued a press release detailing their charges against plaintiff Campagna. In the press release, defendant Commissioner David B. Struh falsely claimed plaintiff Campagna had "cheated a customer and left the environment unprotected." The defendants sent a copy of this press release to the Boards of Health in the towns in which plaintiff Campagna had worked. Further, the defendants reported plaintiff Campagna to the Board of Registration for Sanitarians. An article detailing the Department's disciplinary actions against plaintiff Campagna for Title V violations was placed on the Department's web site in August 1998. It remained on the web page until September August [sic] 2000.

Id. at 8. As a result of this negative publicity, plaintiffwas allegedly forced to close his after-hours inspectionbusiness. Id.

Plaintiff appealed the DEP enforcement action and the fine.Id. This appeal allegedly provided a third reason fordefendants' retaliation. To punish plaintiff for appealing,

Cabral instructed staff at the DEP's Western Regional Office not to talk to the plaintiff about the case. Defendant Weinberg advised plaintiff Campagna not to talk to other DEP staff members at the Springfield regional office about his case and even forbade him to visit other areas of the building without permission to prevent him from discussing his case with fellow DEP employees.

Id. at 9.

On November 1, 2000, an administrative judge reducedplaintiffs fine to $100, and, according to plaintiff, found thatdefendants' accusations were largely unfounded. Id. at 9. Theadministrative judge also allegedly found that plaintiff hadbeen held to a separate standard than other inspectors, notingthat Lally and Recoulee had failed to properly complete theirinspection forms but were not accused of violating Title V.Id.

Plaintiff brought suit in this court on May 4, 2001, and filedan amended complaint on June 4, 2001. The amended complaintcontains four counts, and names as defendants DEP and six DEPemployees.3 (Docket 3). In Count I, plaintiff chargesHowland, Cabral, Holland, Kunce, and Weinberg with violating42 U.S.C. § 1983, by retaliating against him in violation of hisright to petition the government for redress under the FirstAmendment and with subjecting him to "discriminatory punishment"in violation of his right to equal protection under theFourteenth Amendment. Id. at 11-12. In Count II, plaintiffcharges Howland, Cabral, Holland, Kunce, and Weinberg withinterfering with the exercise of his federal and stateconstitutional rights by "threats, intimidation, or coercion" inviolation of Mass. Gen. Laws. ch. 12, § 11H-I. Id. at 12-13.In Count III, plaintiff charges Howland, Cabral, Holland, Kunce,and Struh with defamation. Id. at 13-14. In Count IV (whichwill be dismissed by agreement, Docket 19), plaintiff chargesDEP with violating 42 U.S.C. § 1983 through the conduct of itsemployees. Id. at 14-15.


A. 42 U.S.C. § 1983

Plaintiff contends that two constitutional injuries supporthis § 1983 claim in Count 1. First, plaintiff alleges that heengaged in activity protected by the First Amendment to theUnited States Constitution, and defendants unlawfully retaliatedagainst him for doing so. Second, plaintiff argues thatdefendants' pursuit of the enforcement action against him wasdiscriminatory and violated his right to equal protection underthe law guaranteed by the Fourteenth Amendment to the UnitedStates Constitution. Defendants argue that plaintiff has failedto state a claim under either provision of the Constitution.

1. First Amendment

It is now well-established that the First Amendment guaranteesthe fundamental right to file a lawsuit, as well as to engage inconstitutionally protected speech. See, e.g., Bill Johnson'sRestaurants, Inc. v. N.L.R.B., 461 U.S. 731, 741, 103 S.Ct.2161, 76 L.Ed.2d 277 (1983) ("the right of access to the courtsis an aspect of the First Amendment right to petition thegovernment for redress of grievances."). In particular, theright to subject government action to constitutional scrutiny"implicate[s] central First Amendment concerns." Legal ServicesCorp. v. Velazquez, 531 U.S. 533, 547, 121 S.Ct. 1043, 149L.Ed.2d 63 (2001). Accordingly, retaliation by the governmentthat is motivated, at least in part, by a lawsuit orconstitutionally protected speech may violate the FirstAmendment and support an action under 42 U.S.C. § 1983.Nethersole v. Bulger, 287 F.3d 15, 19 (1st Cir. 2002); Boylev. Burke, 925 F.2d 497, 505 (1st Cir. 1991).

A government employee, like plaintiff, who desires to sue hisemployer under 42 U.S.C. § 1983 for retaliation in violation ofthe First Amendment, "does not lose this right because [he] isemployed by the government." Id. However, in light of the"common sense realization that government offices could notfunction if every employment decision became a constitutionalmatter," Connick v. Myers, 461 U.S. 138, 143, 103 S.Ct. 1684,75 L.Ed.2d 708 (1983), "absolute First Amendment protection isnot accorded to any grievance a public employee files against anemployer,without regard to content." Boyle, 925 F.2d at 505. Indeed,the Supreme Court has declared that,

when a public employee speaks not as a citizen upon matters of public concern, but instead upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.

Connick, 461 U.S. at 147, 103 S.Ct. 1684.

Thus, as a threshold matter, plaintiffs complaint must allegethat he engaged in litigation or speech implicating "matters ofpublic concern" to survive the motion to dismiss. See O'Connorv. Steeves, 994 F.2d 905, 913 (1st Cir. 1993); Rendish v. Cityof Tacoma 123 F.3d 1216, 1223 (9th Cir. 1997) ("a publicemployee cannot present a cognizable section 1983 claimchallenging a retaliatory employment decision made by hergovernment-employer unless her litigation involves a matter ofpublic concern."); Zorzi v. County of Putnam, 30 F.3d 885, 896(7th Cir. 1994) ("If a public employee is retaliated against forfiling a lawsuit, the public employee has no First Amendmentclaim unless the lawsuit involves a matter of public concern.").See also Dartmouth Review v. Dartmouth College, 889 F.2d 13,16 (1st Cir. 1989) ("Rule 12(b)(6) is not entirely a toothlesstiger.").

An analysis of the amended complaint reveals only threepossible matters of "public concern": (1) the 1992 lawsuit; (2)plaintiffs support of Maginnis in his legal proceedings; and (3)plaintiffs appeal of the DEP enforcement action. As will beseen, none of these activities touched upon a matter of publicconcern.

Scrutinizing first the 1992 lawsuit, it is clear that thislitigation did not address a matter of public concern. TheSupreme Court has noted that "[G]overnment officials shouldenjoy wide latitude in managing their offices, without intrusiveoversight by the judiciary in the name of the First Amendment."Connick, 461 U.S. at 146, 103 S.Ct. 1684. The amendedcomplaint alleges only that after Howland rejected plaintiffsapplication because Howland believed another person was morequalified for the job, plaintiff "filed a law suit claimingthat, as a Veteran of the Vietnam War, he was entitled topreferential hiring." Docket 3 at 4.

Regardless of its merits, plaintiff's 1992 lawsuit was rootedin a garden-variety employment dispute: plaintiff was turneddown for a job despite the fact that he believed he was entitledto special treatment. This routine grievance was not a matter of"inherent concern to the electorate," and it has not beenalleged that "the community ha[d] in fact manifested alegitimate concern" in plaintiff's circumstances. O'Connor,994 F.2d at 915 (emphasis in original). On even the mostcharitable reading of the amended complaint, the 1992 lawsuitmerely addressed DEP's failure to properly review a particularveteran's job application. The amended complaint did not allege,for example, that the 1992 lawsuit addressed a systematicdiscrimination against veterans, or even that plaintiff suffereda wrong because he was a veteran. "[A]n employee's speech canform the basis of a civil rights suit only `when the employeespoke as a citizen upon matters of public concern rather thanas an employee upon matters only of personal interest.'"Vickowski v. Hukowicz, 201 F. Supp.2d 195, 201-02 (Mass. 2002),quoting United States v. Treasury Employees, 513 U.S. 454,466, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995) (emphasis inoriginal). The 1992 lawsuit was fundamentally about "advanc[ing][plaintiff's] career, not promot[ing] a cause."Yatvin v. Madison Metropolitan School Dist., 840 F.2d 412, 419(7th Cir. 1988).

As the Court has noted, "every criticism directed at a publicofficial . . . [does not] plant the seed of a constitutionalcase." Connick, 461 U.S. at 149, 103 S.Ct. 1684. Certainly,every lawsuit arising out of an adverse hiring decision does notplant the seed of a constitutional case. Therefore, the amendedcomplaint insufficiently alleges that the 1992 lawsuitimplicated a matter of public concern.

Next, plaintiffs "active[] support[] [of] Timothy Maginnis inhis appeal of an enforcement action brought against Mr. Maginnisin October 1997," docket 3 at 5, did not raise a matter ofpublic concern. As the Supreme Court has observed, "the FirstAmendment does not require a public office to be run as aroundtable for employee complaints over internal officeaffairs." Connick, 461 U.S. at 149, 103 S.Ct. 1684; Tang v.State of R.I., Dept. of Elderly Affairs, 163 F.3d 7, 12 (1998)."Active support" of a co-worker, alone, obviously does notimplicate a matter of public concern.4

Finally, again, plaintiffs appeal of the DEP enforcementaction did not implicate a matter of public concern. Like the1992 lawsuit, plaintiffs appeal of the enforcement action aroseout of plaintiffs personal differences with DEP. Plaintiffsimply claimed that he should not have been sanctioned inconnection with the Westfield inspection. The amended complaintnowhere contains facts suggesting that the decision to impose afine was a matter of public concern, or that the dispute wasabout anything more than plaintiffs individual unhappiness withDEP's decision.

For the reasons discussed above, plaintiff has failed to statea claim under 42 U.S.C. § 1983 for retaliation in violation ofplaintiffs First Amendment rights. The amended complaint doesnot allege facts that could support a claim that plaintiffengaged in First Amendment activity that implicated a matter of"public concern." Because the "public concern" requirement is athreshold issue, the court need not entertain defendants' otherformidable arguments about the inadequacy of plaintiffs FirstAmendment claims as to each of the six individual defendants.The motion to dismiss the First Amendment component of Count Iwill be allowed.

2. Equal Protection

Plaintiffs equal protection claim is equally vulnerable.Plaintiff does not contend that he is a member of any protectedclass. Instead, relying on Village of Willowbrook v. Olech,528 U.S. at 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000),plaintiff attempts to argue that he is "a class of one" and "hasbeen intentionally treated differently from others similarlysituated and that there is no rational basis for the differencein treatment." Id. at 564, 120 S.Ct. 1073.

While this theory may have some viability in certain contexts,if supported by adequate allegations, the applicability of the"class of one" theory to an employment-based equal protectionclaim seemsdubious. Olech itself was a discriminatory zoning case, andJustice Breyer in his separate concurrence expressed concernabout transforming "run-of-the-mill zoning cases into cases ofconstitutional right." 528 U.S. at 566, 120 S.Ct. 1073. In thiscase, if plaintiff is correct on the law, any public employeeconvinced that someone similarly situated is being treated morefavorably could sue his or her employer under the FourteenthAmendment for a violation of equal protection. Since practicallyevery employee, public or private, is bound to be convinced atsome point that he or she is getting the short end of the stick,it is not hard to imagine the bee hive of constitutionallitigation that would be generated by this variant of the "classof one" doctrine. It seems unlikely that the Supreme Courtintended such a dramatic result in its per curiam opinion inOlech.

In this case, however, it is not necessary to grapple withthis cumbersome doctrinal issue, since the complaint has notadequately alleged that plaintiff was "treated differently fromothers similarly situated." Id. (emphasis added). Thisallegation is essential to a viable equal protection claim.Barrington Cove, 246 F.3d at 8; Lakeside Builders, Inc. v.Planning Bd. of Franklin, No. 00-12170, 2001 WL 1822681, *3(Mass. March 21, 2001) (dismissing purported "class of one" wheninsufficient specifics were alleged to support conclusoryallegation that plaintiff was "similarly situated" to others whowere treated differently).

Plaintiff contends that he was similarly situated to Lally andRecoulee, who were not fined despite the fact that they alsofailed properly to complete the form in conjunction with theirinspections of the Westfield property. However, Lally andRecoulee were not similarly situated to plaintiff in at leasttwo significant respects. First, DEP (rightly or wrongly) agreedwith Lally and Recoulee's groundwater opinions and disagreedwith plaintiffs opinion. In its view, Lally and Recoulee didtheir work competently, while plaintiff did not. Second,plaintiff rendered his opinion in the course of running hisprivate after-hours business, while Lally and Recoulee inspectedthe property on behalf of DEP and Westfield. (Docket 3 at 5-7).These two differences, DEP could reasonably have concluded,warranted stricter treatment for plaintiff. Therefore, plaintiffwas not a "fair congener" with Lally and Recoulee. BarringtonCove, 246 F.3d at 8.

It is not enough to allege that the plaintiff was held "to adifferent standard than . . . other Title V inspectors. . . ."(Docket 3 at 9), if these other inspectors were not similarlysituated. Accepting the allegations of the complaint, plaintiffwas treated differently from Lally and Recoulee, and was treatedinappropriately and unfairly. However, while inappropriate andunfair treatment may give rise to a common law or statutorycause of action in some circumstances, it does not, by itselfconstitute a violation of the Fourteenth Amendment. SeeDartmouth Review, 889 F.2d at 19 (noting that to survive motionto dismiss, "appellants' obligation was to identify and relatespecific instances where persons similarly situated `in allrelevant respects' were treated differently."). To survive athreshold motion to dismiss on his equal protection claim,plaintiff must allege facts that would support a finding that hewas "similarly situated" to Lally and Recoulee for purposes ofthe Fourteenth Amendment. He has not done, and cannot do, this.

This deficiency, along with the disposition of plaintiffsFirst Amendment claim, ends the analysis of Count I. Becauseplaintiff did not adequately allege that his Constitutionalrights were infringed bydefendants, his claim under 42 U.S.C. § 1983 must be dismissed.

B. State Law Claims

Given this finding, and plaintiffs assent to the dismissal ofCount IV (Docket 19), Counts II and III will be dismissed,without prejudice, on the authority of United Mine Workers v.Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).These counts are purely state law claims, and when "the federalclaims are dismissed before trial, even though not insubstantialin a jurisdictional sense, the state law claims should bedismissed as well." Id. at 726, 86 S.Ct. 1130. See alsoMarcus v. AT&T Corp., 138 F.3d 46, 57 (2d Cir. 1998) ("In general,where the federal claims are dismissed before trial, the stateclaims should be dismissed as well."); Groce v. Eli Lilly &Co., 193 F.3d 496, 501 (7th Cir. 1999) (noting that "the usualpractice is to dismiss without prejudice state supplementalclaims whenever all federal claims have been dismissed prior totrial."). Thus, without expressing an opinion as to theirmerits, the court will dismiss, without prejudice, Counts II andIII.


Accepting the allegations of the complaint as true, plaintiffwas treated unfairly. He may be entitled to present his claims(which defendants vigorously deny) in state court under somecommon law or state statutory theory. But the allegations of thecomplaint do not make out a cause of action for any federalconstitutional injury. A contrary holding in this case wouldcreate a precedent that would, in effect, "constitutionalize" afairly recurrent class of painful public employment disputes.

For the reasons set forth above, defendants' Motion to Dismissis hereby ALLOWED. Count I is dismissed because it fails tostate a claim upon which relief can be granted, Count IV isdismissed by assent, and Counts II and III are dismissed becausethe court declines to exercise supplemental jurisdiction overthem. The dismissal of Counts II and III is without prejudice totheir re-assertion in state court.

A separate Order will issue.


For the reasons stated in the accompanying Memorandum,defendants' Motion to Dismiss the amended complaint (Docket No.16) is hereby ALLOWED. Count I is dismissed because plaintiffhas failed to state a claim upon which relief may be granted;Count IV is dismissed by agreement, and the purely state lawclaims in Counts II and III are dismissed because the courtdeclines to exercise supplemental jurisdiction over them,dismissing them without prejudice to plaintiffs assertion ofthese claims in state court. The clerk will enter judgment fordefendants.

It is So Ordered.

1. Plaintiff alleges "[o]n information and belief" thatduring the course of the litigation over plaintiff's employmentapplication, between 1992 and 1995 Howland and Kunce "secretlyagreed that if the court forced them to place plaintiff Campagnain the position for which he had applied, they would fire himduring the six-month mandatory period." (Docket 3 at 5).However, it is not clear how this unsupported fact is relevantother than as general support for plaintiff's claim ofdiscriminatory animus. The complaint does not allege: (1) thatany final order ever compelled defendants to place plaintiff inthe position for which he had applied; (2) that defendants everfired plaintiff from the position he eventually agreed toaccept; or (3) that the "secret" agreement was somehow relatedto the retaliation that allegedly occurred in 19971998, whichis, the subject of this lawsuit.

2. One of the inspectors who was fined was Maginnis, whoplaintiff "actively supported" in October, 1997, and who is alsoinvolved in a separate litigation with defendants. Id. at 10and n. 7.

3. As the discussion below will show, it is not necessary toexplain each defendant's (sometimes tenuous) connection to thecharges in the amended complaint.

4. The court has not considered plaintiff's assertions in hissupplemental memorandum that he supported Maginnis because ofMaginnis' union activities, or that his "support" of Maginnisinvolved accusing DEP supervisors of unspecified "officialmalfeasance." The court declines plaintiffs apparent invitationto treat these contentions as, in some respect, evidence and soto convert the motion to dismiss into a motion for summaryjudgment. See Cooperativa de Ahorro y Credito Aguada v. Kidder,Peabody & Co., 993 F.2d 269, 272-273 (1st Cir. 1993) (notingthat, in addressing a motion to dismiss, the court is limited topleadings unless the motion to dismiss has been converted into asummary judgment motion).

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