COMMONWEALTH OF MASSACHUSETTS TRIAL COURT HAMPDEN, SS. CASE NO. 2011 MISC.

LAND COURT DEPARTMENT 448605 (Long, J.) ____________________________________________________________________ RUSSELL BIOMASS, LLC, Plaintiff vs. TOWN OF RUSSELL PLANNING BOARD consisting of the following named individuals who are sued herein solely in their official capacity as members of the Planning Board and not personally: James Oleksak, Scott Loomis, and Deanna Coffin Ridgeway, and TOWN OF RUSSELL Defendants ____________________________________________________________________

PLAINTIFF RUSSELL BIOMASS, LLCS OPPOSITION TO DEFENDANTS MOTION TO DISMISS

Table of Contents (1) (2) Plaintiff Russell Biomass, LLC has filed an Amended Complaint. The defendants motion to dismiss is moot because an amended complaint supersedes and replaces the original complaint. (3) In a de novo zoning appeal, facts recited in the decision being appealed carry no weight. (4) Denial of this motion to dismiss is without prejudice to defendants right to challenge the sufficiency of plaintiffs Amended Complaint. (4) Conclusion: Defendants motion to dismiss should be denied. _______________________________________________ 5 7 4 2 2

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(1)

Plaintiff Russell Biomass, LLC has filed an Amended Complaint. In response to the municipal defendants motion to dismiss, plaintiff Russell

Biomass, LLC has filed an Amended Complaint, which is incorporated herein by reference. As discussed below in this Opposition, an Amended complaint renders moot a motion to dismiss, although (as discussed below in section 3 of this opposition) the defendants may challenge the sufficiency of an amended complaint. The Amended Complaint is filed as a matter of right under Mass.R.Civ.P. 15(a) (A party may amend his pleading once as a matter of course at any time before a responsive pleading is served and prior to entry of an order of dismiss .). (2) The defendants motion to dismiss is moot because an amended complaint supersedes and replaces the original complaint. Plaintiff Russell Biomass, LLCs amended complaint renders moot defendants motion for judgment on the pleadings, unless the court decides the motion to dismiss on the basis of the amended complaint: Contrary to ASI's position, there is no recognized rule under which a pending motion to dismiss renders premature any motion for leave to amend under Rule 15(a). Such a rule would appear to contravene the principle that leave to amend should be freely given. See Foman, 371 U.S. at 182, 83 S.Ct. 227. When a plaintiff amends its complaint while a motion to dismiss is pending, which happens frequently, the court then has a variety of ways in which it may deal with the pending motion [to dismiss], from denying the motion as moot to considering the merits of the motion in light of the amended complaint. In re Colonial Ltd. P'ship Litig., 854 F.Supp. 64, 79-80 (D.Conn.1994). Because a motion to dismiss is not considered a responsive pleading for Rule 15 purposes, an amended complaint filed as a matter of course pursuant to Rule 15(a) renders moot a motion to dismiss directed at the original complaint. Chodos v. F.B.I., 559 F.Supp. 69, 70 n. 2 (S.D.N.Y.1982), aff'd, 697 F.2d 289 (2d Cir.1982). Where the proposed amendment requires leave of court, the preferred course is to grant leave to amend even if doing so renders moot the motion to dismiss, rather than granting the motion to dismiss and rendering moot the motion for leave. See, e.g., Pure Country, Inc. v. Sigma Chi Fraternity, 312 F.3d Page 2

952, 956 (8th Cir.2002) (reversing district court's denial of plaintiff's motion for leave to amend complaint, holding that the motion for leave rendered moot the pending motion to dismiss rather than vice versa). Roller Bearing Co. of America v. American Software, Inc., 570 F.Supp. 376, 384 (D.Conn. 2008).1 See also Onyiah v. St. Cloud State University, 655 F.Supp2d 948, 958 (D.Minn., 2009), where the court stated the rule this way: [A]s a general proposition, if a defendant files a Motion to Dismiss, and the plaintiff later files an Amended Complaint, the amended pleading renders the defendant's Motion to Dismiss moot. See, Pure Country, Inc. v. SigmaChi Fraternity, supra [312 F.3d 952] at 956 [(8th Cir. 2002)] (If anything, [the plaintiff's] motion to amend the complaint rendered moot [the Defendant's] motion to dismiss the original complaint.), citing Standard Chlorine of Delaware, Inc. v. Sinibaldi, 821 F.Supp. 232, 239-40 (D.Del.1992) (finding that the plaintiff's filing of an Amended Complaint rendered the defendant's Motion to Dismiss moot); see also, Ideal Instruments, Inc. v. Rivard Instruments, Inc., 434 F.Supp.2d 640, 646 (N.D.Iowa 2006). Under Fed.R.Civ.P. 15 and Mass.R.Civ.P. 15, "An amended pleading supersedes the original, relegating it to a state of non-existence. Once amended, the original no longer performs any function as a pleading." James W. Smith & Hiller B. Zobel, 6 Massachusetts Practice: Rules Practice, 15.10 Effect of amendment-Generally (2d ed. & Supp. 2010); Lowden v. William M. Mercer, Inc. 903 F.Supp. 212, 216 (D.Mass.1995) (It is well settled that an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.1967) (amended

Federal law is valid authority for the Massachusetts Rules of Civil Procedure under the rule of Rollins v. Environmental Services, Inc., 368 Mass. 174, 179-180, 330 N.E.2d 814, 818 (1975) (This court having adopted comprehensive rules of civil procedure in substantially the same form as the earlier Federal Rules of Civil Procedure, the adjudged construction theretofore given to the Federal rules is to be given to our rules, absent compelling reasons to the contrary or significant differences in content.). Copies of federal cases cited herein will be provided to the court and opposing counsel upon request. Page 3

complaint supersedes original which is thereafter treated as nonexistent); Miesowicz v. Essex Group, Inc., 1994 WL 260645 at *2 (D.N.H. Apr. 12, 1994).). (3) In a de novo zoning appeal, facts recited in the decision being appealed carry no weight. Defendants motion to dismiss correctly refers (at page 2) to The factual allegations in the complaint, which are assumed to be true but then goes on to misapply a general rule that facts in complaint exhibits carry weight. The motion to dismiss states (at page 4) [T]he conclusory allegations of the complaint (i.e., no factual findings, arbitrary and capricious conduct) are flatly contradicted by the Decision itself, which is attached to the complaint. In its conclusion (at page 5), the motion to dismiss refers to Speculative or conclusory allegations, unsupported by facts, or contradicted by the attachments themselves . A zoning appeal under G.L. c. 40A, 17 from a municipal board decision is a de novo appeal. In the frequently cited case of Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 295, 285 N.E.2d 436, 439 (1972), the court made it clear that In making his findings, the judge is not allowed to give the board's findings or decision evidentiary weight ( Devine v. Zoning Bd. of Appeals of Lynn, 332 Mass. 319, 321-322, 125 N.E. 2d 131), . The complete paragraph from which the quoted sentence is taken states as follows: On appeal to the Superior Court, the judge is required to hear the matter de novo and determine the legal validity of the decision of the board upon the facts found by him. G.L. c. 40A, s 21. Lawrence v. Board of Appeals of Lynn, 336 Mass. 87, 89, 142 N.E.2d 378, and cases cited. In making his findings, the judge is not allowed to give the board's findings or decision evidentiary weight (Devine v. Zoning Bd. of Appeals of Lynn, 332 Mass. 319, 321-322, 125 N.E. 2d 131), nor may he make findings which, in substance, constitute a mere repetition of the

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statutory words. Brackett v. Board of Appeal of the Bldg. Dept. of Boston, 311 Mass. 52, 54, 39 N.E.2d 956, 958; Wolfson v. Sun Oil Co., 357 Mass. 87, 89, 256 N.E.2d 308, and cases cited. With the above principles in mind, we examine the findings of both the board and the judge concerning the four special permits involved herein. Id. More recently, the Appeals Court stated As a general rule the concept of a hearing de novo precludes giving evidentiary weight to the findings of the tribunal from whose decision an appeal was claimed. Dolphino Corp. v. Alcoholic Beverages Control Com'n, 29 Mass. App. Ct. 954, 955, 559 N.E.2d 1261, 1263 (1990), citing Devine v. Zoning Bd. of Appeals of Lynn, 332 Mass. 319, 321, 125 N.E. 2d 131 ( 1955) and Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 295, 285 N.E.2d 436 (1972). In this case, as stated in the Amended Complaint, all three members of the defendant Russell Planning Board have admitted they are committed opponents of the Russell Biomass Project. This decision which is the subject of this appeal contains inaccurate statements and omits significant facts. (4) Denial of this motion to dismiss is without prejudice to defendants right to challenge the sufficiency of plaintiffs Amended Complaint. Defendants may if they wish file a motion to dismiss the Amended Complaint. Arkema Inc. v. Anderson Roofing Co., Inc., 719 F.Supp.2d 1318, 1325 (D.Or. 2010) ([P]laintiffs filed their Second Amended Complaint as instructed in the recommended stay order. This court accordingly denied the pending motions to dismiss as moot in light of the amended complaint but allowed the defendants to renew their earlier motions or to file new Rule 12(b)(6) motions.).

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Whether such a motion has any likelihood of success is another matter. In drafting the Amended Complaint, the undersigned tried to follow the following Standard of Review formulated by this court in Butt v. Emerald Development Group, Inc., 2004 Misc. 297527, 2009 WL[WestLaw] 976811 at page *2 & n. 7, (not found in Land Ct. Rptr.) (2009) (Long, J.), subject to the exception for attached documents on de novo review discussed above in section 3 of this memorandum: Emerald's motion was brought as a motion to dismiss, presumably for failure to state a claim. Mass. R. Civ. P. 12(b)(6). Such a motion tests the sufficiency of the complaint, the factual allegations of which, stripped of labels and conclusions, are assumed to be true even if doubtful in fact. Iannacchino v. Ford Motor Company, 451 Mass. 623, 636, 888 N.E.2d 879 (2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1966, 167 L.Ed.2d 929 (1977)). A complaint is sufficient, however, only if those factual allegations plausibly suggest[ ] (not merely consistent with) an entitlement to relief, in order to reflect[ ] the threshold requirement of [Mass. R. Civ. P. 8(a)(1) ] that the plain statement possess enough heft to sho[w] that the pleader is entitled to relief. Id. (internal quotations omitted); see also Flomenbaum v. Commonwealth, 451 Mass. 740, 751, n. 12, 889 N.E.2d 423 (2008) (to survive a motion to dismiss, a complaint must contain factual allegations enough to raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true. ). A Rule 12(b)(6) review, however, is not confined to the factual allegations in the complaint. The rule also permits the court to take into consideration matters of public record, orders, items appearing in the record of the case, exhibits attached to the complaint, and court records in related actions. Schaer v. Brandeis University, 432 Mass. 474, 477-78, 735 N.E.2d 373 (2000), Jarosz v. Palmer, 436 Mass. 526, 529-30, 766 N.E.2d 482 (2002); Jackson v. Longcope, 394 Mass. 577, 580 n. 2, 476 N.E.2d 617 (1985). Moreover, a 12(b)(6) evaluation properly can include the entirety of documents integral to, referenced in, or explicitly relied upon in the complaint, even if they were not attached. See, e.g. Johnston v. Box, Massachusetts Supreme Judicial Court, Case No.SJC-10231, slip opinion at n. 19 (Apr. 13, 2009) (The court may consider documents referenced in the plaintiff's complaint without converting the motion to dismiss into a motion for summary judgment) (internal quotations and citations omitted); Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 45 n. 4, 809 N.E.2d 1017 (2004) ( Where, as here, the plaintiff had notice of these documents and relied on them in framing the complaint, the attachment of such documents to a motion to dismiss does not convert the motion to one for summary judgment.); Shaw v. Digital Equipment Corp., 82 F.3d 1194, 1220 (1st Cir.1996); Romani v. Shearson Lehman Hutton, 929 F.2d 875, 879 n. 3 (1st Cir.1991). If those documents differ from the allegations, the documents

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control.FN7 FN7. A party's characterization of documents cannot contradict the documents themselves. See Ng Bros. Constr. Inc. v. Cranney, 436 Mass. 638, 647-48, 766 N.E.2d 864 (2002). (5) Conclusion: Defendants motion to dismiss should be denied. For all of the reasons set forth above, plaintiffs respectfully submit that defendants motion to dismiss under Mass.R.Civ.P. 12(b)(6) should be denied, without prejudice to defendants right to challenge the sufficiency of plaintiffs amended complaint.

Plaintiff Russell Biomass LLC by its attorney, __________________________ Michael Pill, Esq., BBO# 399880 Green, Miles, Lipton & Fitz-Gibbon, LLC 77 Pleasant Street, P.O. Box 210 Northampton, MA 01061-0210 Phone (413) 586-8218 FAX (413) 584-6278 email mpill@verizon.net

Dated September 12, 2011

CERTIFICATE OF SERVICE I hereby certify that a true copy of the above document was served as follows: Date, Manner of Service, and person(s) served: September 12, 2011, via email attachment and via first class U.S. mail with postage prepaid, addressed to: Michael Callan, Esq. Doherty Wallace Pillsbury & Murphy P.C. 1414 Main Street, Suite 1900 Direct phone (413) 233-9514 Firm phone (413) 733-3111 Firm FAX (413) 734-3910 mcallan@dwpm.com & pmaleck@dwpm.com _________________________ Page 7

Michael Pill, Esq.

MP/csh/L1.855.34.RussellBiomass

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