Grafton & Upton Railroad Company v. Burt

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25-P-28 Appeals Court

GRAFTON & UPTON RAILROAD COMPANY vs. EDWARD BURT & others.1

No. 25-P-28.

Worcester. October 9, 2025. – February 12, 2026.

Present: Vuono, Desmond, & Toone, JJ.

Immunity from Suit. Unlawful Interference. Massachusetts Civil
Rights Act. Malice. Railroad. Municipal Corporations,
Water supply. Practice, Civil, Motion to dismiss.

Civil action commenced in the Superior Court Department on
April 16, 2024.

A motion to dismiss was heard by J. Gavin Reardon, Jr., J.

Andrew P. DiCenzo for the plaintiff.
David S. Mackey (Sean M. Grammel also present) for the
defendants.

DESMOND, J. Every day, municipal officials throughout the

Commonwealth make discretionary decisions to further and promote

1 Timothy Watson, John Doe, and Jane Doe. The defendants
are sued solely in their individual capacities. John and Jane
Doe are alleged to be employees or public officials of the town
of Hopedale.
2

the interests of their towns and cities. Our courts have long

protected the rights of public employees acting within the scope

of their employment to do their work without fear of liability.

In fact, under the common law, municipal officials performing

acts ostensibly for the good of the public welfare are presumed

to be acting honestly and in good faith. See South Boston

Betterment Trust Corp. v. Boston Redev. Auth., 438 Mass. 57, 69

(2002).

Between the summer of 2022 and the spring of 2023, the

defendant, Edward Burt, the chair of the water and sewer

commission of the town of Hopedale (town or Hopedale), called

and sent a series of e-mail messages primarily to the United

States Environmental Protection Agency (EPA), which was then

overseeing a major "Superfund" remediation and cleanup project

with ties to Hopedale.2 See 42 U.S.C. §§ 9601-9675, the

Comprehensive Environmental Response, Compensation, and

Liability Act; G. L. c. 21E. In those communications, Burt

expressed his concerns about the potential impact on Hopedale's

water supply from the role of Grafton & Upton Railroad Company

(Grafton & Upton) in the cleanup project -- specifically the

transfer of contaminated soils from trucks to trains in

2 Hopedale is a small town in Worcester County that had a
population of 6,017 as of the 2020 Massachusetts census.
3

Hopedale. After Grafton & Upton lost its subcontract on the

project, it commenced this action against Burt as well as

Timothy Watson, the manager of the town's water and sewer

department, seeking to hold them personally liable under

intentional tort and other theories for millions of dollars in

lost anticipated revenue.3 After a hearing, a judge of the

Superior Court concluded that Grafton & Upton's allegations

failed to state a plausible claim that Burt and Watson acted in

bad faith, with malice, or with corruption so as to lose their

common-law immunity. The judge further concluded that Grafton &

Upton's allegations were insufficient to plausibly suggest that

any interference with Grafton & Upton's constitutional rights

was accomplished by "threats, intimidation or coercion," a

required element of its Massachusetts Civil Rights Act (MCRA)

claims. See G. L. c. 12, §§ 11H, 11I. Consequently, the judge

dismissed the complaint. We affirm.

3 In its first amended complaint, Grafton & Upton raised
parallel claims against Burt and Watson of intentional
interference with contractual relations, intentional
interference with advantageous business relations, and violation
of the Massachusetts Civil Rights Act. It also asserted a
single count of conspiracy against Burt, Watson, John Doe, and
Jane Doe. The town is not a named defendant in the first
amended complaint, and Grafton & Upton make no arguments
regarding the Doe defendants on appeal. All claims against the
town, John Doe, and Jane Doe, therefore, have been waived. See
Nelson v. Salem State College, 446 Mass. 525, 527 n.2 (2006).
4

Background. We recite the well-pleaded allegations from

the first amended complaint and the documents relied upon by

Grafton & Upton in drafting it, which in this case consists of a

substantial number of e-mail messages. See Porter v. Board of

Appeal of Boston, 99 Mass. App. Ct. 240, 243-244 (2021). We

reserve some allegations for the discussion.

Concord is home to the Nuclear Metals, Inc. (NMI),

Superfund site (site). For decades, NMI produced depleted

uranium and ultimately contaminated the site. Administered by

the EPA's Superfund program, the long-term remediation of the

NMI site (project) began around 2001 and includes the expected

removal of over 100,000 tons of contaminated soils and

materials.

Since at least 2020, the EPA and the Massachusetts

Department of Environmental Protection (DEP) have overseen the

project, including the removal of contaminated soil from the

site. The general contractor on the project, de Maximis, Inc.

(de Maximis), retained US Ecology, Inc. (US Ecology), as the

transportation and disposal subcontractor. US Ecology in turn

entered into an exclusive, three-year contract with Grafton &

Upton to provide transloading services at its facility in

Hopedale (facility or railyard) as well as rail transportation.4

4 Grafton & Upton, a short-line rail carrier with rail lines
that run through several Massachusetts towns, owns and operates
5

In October 2021, de Maximis and US Ecology finalized a

transportation and offsite disposal plan (transportation and

disposal plan) that called for Grafton & Upton to provide the

first leg of rail transportation from Hopedale to North Grafton;

and from there, the contaminated soil would be carried to its

final destination at a Michigan landfill. The EPA and the DEP

approved the plan.

The complaint alleged that since around 2014, Burt and

Watson have harbored "personal animosity" and "ill-will" toward

Grafton & Upton and its principal, Jon Delli Priscoli. For

example, during his presentation to an unknown group in 2019,

Burt asked,

"What can Hopedale do to gain environmental justice against
the Federal Transportation Act that exempts interstate
railroads from any restrictions by the towns they occupy?
First of all, this is not interstate railroad. [Grafton &
Upton] is [a] local, 16-1/2 mile railroad that serves
Grafton, Upton, and Hopedale. . . . What can we do to
oppose the railroad's hegemony?"

Burt historically opposed projects and developments proposed by

Grafton & Upton in the town, writing with regard to one project,

"Before that, the railroad planned development behind our
factory that would have resulted in population of working
couples, singles and small families. The selectmen were
working with the railroad to map out one- and two-bedroom

transloading facilities in Upton, North Grafton, and Hopedale.
A significant part of Grafton & Upton's business is
transloading, which, for purposes of this case, is the transfer
of materials between trucks and rail cars for transportation out
of the area.
6

condos. The additional population would place strain on
our services. Townspeople voted it down, but the selectmen
are still advocating for it. For so many reasons, we need
the railroad to back off" (emphasis added).

In August 2022, after Burt first reached out to the EPA

requesting more information about the plan to transport the

contaminated soil from Concord to Hopedale, Christopher Smith,

the EPA official managing the NMI site, suggested a meeting by

telephone between the "Town" and the EPA, the DEP, and a de

Maximis representative. After the meeting was held on August

22, 2022, Burt sent e-mail messages "on behalf of the Hopedale

community" thanking all the officials who had attended and

expressing his appreciation for their "attention to our

concerns."5 Smith responded by e-mail, thanked Burt and the

group for meeting with the EPA, stated that they would be in

touch moving forward, and noted that the transportation and

disposal plan was "subject to be updated if circumstances

changed." In a follow-up e-mail message to Smith, Burt

commented on the transportation and disposal plan and asked

5 According to Burt's notes from the meeting, which he
attached to one of the e-mail messages, "[m]ost of the concerns
related to this transport [were focused] on the 'what if's, the
accidents' and the associated contingencies." The notes
reflected that "[p]er [Grafton & Upton's] past practice," the
town expected that Grafton & Upton would "not allow any
oversight, or establish systematic emergency procedures unless
directed to by a federal level agency." Burt asked Smith to
"[p]lease edit, correct, add to" his notes "if anything is
misstated or missed."
7

questions about it, including whether the EPA would consider a

more direct shipping route for the NMI materials that would

exclude Hopedale altogether, stating, "Sorry -- had to ask."

On October 5, 2022, Burt sent an e-mail message to Smith

asking why "EPA/DEP are allowing [prohibited] contaminated soils

within Hopedale's Zone II[6]" (Zone II protected area). As he

prepared for an upcoming water and sewer commission meeting,

Burt requested that Smith confirm that certain safety and

emergency procedures for the transport would be implemented

before shipments began. In response, Smith explained that the

revised transportation and disposal plan -- updated at Burt's

request -- now reflected that Grafton & Upton's Hopedale

transloading facility was located in the town's Zone II

protected area; however, Smith continued, the EPA was unaware of

any EPA or DEP regulations prohibiting the shipment of

contaminated soils through such areas, and although the soils

were contaminated, they did not constitute "hazardous waste" for

6 A release of hazardous materials on a site located in a
"Zone II" protected area (a term further defined in the
Massachusetts Contingency Plan regulations) poses a risk to a
public water supply and is subject to special cleanup
requirements. See generally Peterborough Oil Co. v. Department
of Envtl. Protection, 474 Mass. 443, 446-447 & n.7 (2016).
8

purposes of Massachusetts statutory and regulatory law that

would prohibit Grafton & Upton's activities.7

On October 24, 2022, Burt contacted Kara Kelly Nierenberg,

Smith's successor, to explain that "progress ha[d] been made"

regarding the town's issues, but "there were still concerns to

be addressed."8 Burt acknowledged the clarification from the EPA

and the DEP that the contaminated soils were not considered

hazardous waste and that transloading was not a prohibited

activity. Burt stated that because Grafton & Upton "does not

provide Hopedale with any information regarding the activities

within the railyard . . . we are dependent upon the EPA to

ensure the overall safety of this Zone II water protected area."

Some of Burt's concerns were realized when, in the course

of the first delivery, three "zipper shut" bags opened during

the transloading process, spilling a "minor" amount of

contaminated soil in the town's Zone II protected area. Indeed,

Nierenberg later indicated that forty percent of the bags were

7 A DEP official also reported to Burt that the contaminated
soils being transported to Grafton & Upton's railyard were not
considered hazardous waste and explained that the materials
would arrive in Hopedale in "fully sealed containers" and would
not be stored at Grafton & Upton's facility.

8 For example, Burt pointed out that there were still "no
site precautions, such as ground area protective barriers, nor
any systematic emergency procedures reflecting the importance of
[the] Zone II water protected area." Burt stated that the
presence of the soil at the railyard remained "a major concern."
9

tearing during rail to truck transfers. In his ensuing e-mail

messages to Nierenberg on November 21 and November 23, 2022,

Burt continued to reiterate the concerns of the town, including

those about the lack of "Zone II specific measures," the "lack

of local oversight," and local officials' "inability to perform

their public safety responsibilities." He also continued to ask

many questions, including some from the Hopedale conservation

commission, about topics such as the spill, the trucking route,

the malfunctioning packaging, and emergency procedures. As he

had done previously and would continue to do, Burt copied a

number of town officials on his e-mail messages. Burt asserted

that a number of local officials would like to view Grafton &

Upton's operations. Nierenberg subsequently explained that the

EPA did not have the authority to bring town officials on to

Grafton & Upton's property "for oversight."

On December 5, 2022, as he prepared for the next water and

sewer commission meeting, Burt contacted Nierenberg with another

list of questions about Grafton & Upton's operations, raising

many of the same concerns. He apologized "for the long list"

but stated he was "obligated to continue to request this

information," because "[the water and sewer commission],

responsible for the Hopedale public water supply, and the

community, remain concerned." See G. L. c. 40N, §§ 1, 4, 8. At

this point, a DEP official sent an e-mail message to Nierenberg
10

stating, "Sorry this won't end. I would suggest not answering

these questions directly. I think it's time to somehow end the

back and forth."

Nierenberg did respond, however, reiterating to Burt that

under the Federal law that governed the project, permits were

not required, the EPA and the DEP would continue to oversee all

work, and together they would verify that all work under the

transportation and disposal plan met all State and Federal

standards. She assured Burt that the "issues" with the bags

were "a priority for the site team" and revealed that the EPA,

the DEP, and de Maximis were investigating why forty percent of

the bags were tearing during the transfer process (emphasis

added). She pointed out that only a small portion of the tears

had resulted in spills, that "poly sheeting" placed on the

ground each morning was "working to limit new releases of soil

. . . that require an emergency response," and that "more

permanent measures were being considered."

On December 16, 2022, Burt asked Nierenberg to provide a

"quick status" about the potential impact of the recent heavy

rain on the NMI materials at the railyard. A de Maximis

employee explained to Burt that the rain would be a nonissue for

the materials.

On January 19, 2023, Burt sent another list of questions

and concerns to Nierenberg, most of which had been asked and
11

answered previously. He requested answers before the next water

and sewer commission meeting and advised her to possibly expect

more questions from the town administrator, who "coordinates

with the Select Board and other town boards, which we can

address as a follow-up."

On February 16, 2023, Burt notified an EPA official that he

continued to receive comments from residents about the town's

"railyard situation" in light of a recent train derailment in

Ohio that had caused an environmental disaster. He stated that

the town had expected "ground barriers, emergency procedures and

oversight" would follow after the Zone II issue was revealed to

the EPA, but "[t]hat didn't happen." He concluded, "At this

point, I don't think the community will accept anything less

than stopping the soils . . . from being brought into the

Zone II."

On March 13, 2023, Burt contacted Nierenberg again as well

as her contact at the Federal Surface Transportation Board

complaining again about the lack of local oversight and

requesting direct trucking of the contaminated soil from Concord

to Michigan or the use of a "more appropriate (non-Zone II)"

transloading facility. A week later, having been notified about

more shipments of contaminated soil headed to Hopedale, Burt

made the same "direct trucking" request to Nierenberg.
12

Despite Grafton & Upton's provision of "exceptional"

transloading services, in April 2023, US Ecology terminated its

contract with Grafton & Upton without explanation, and Grafton &

Upton was removed from the transportation and disposal plan.

Discussion. 1. Standard of review. "We review a motion

to dismiss de novo, accepting all well-pleaded facts in the

complaint as true, drawing all reasonable inferences in the

plaintiff's favor, and determining whether the allegations

plausibly suggest an entitlement to relief." Cannata v.

Mashpee, 496 Mass. 188, 191 (2025). Conclusory assertions cast

as well-pleaded facts, however, are not regarded as true. See

Edwards v. Commonwealth, 477 Mass. 254, 260 (2017), S.C., 488

Mass. 555 (2021). To withstand a motion to dismiss, "[t]he

factual allegations must 'raise a right to relief above the

speculative level . . . .'" Cannata, supra, quoting Iannacchino

v. Ford Motor Co., 451 Mass. 623, 636 (2008).

2. Claims against Watson. We start by testing the legal

adequacy of the claims against Watson, the manager of the town's

water and sewer department. The theory of Grafton & Upton's

case against Watson is that commencing in 2022, Watson and Burt

"worked in concert" and conspired together to pressure and

harass the EPA, the DEP, and de Maximis with the ultimate goals

of securing (1) the termination of Grafton & Upton's contract

with US Ecology and (2) Grafton & Upton's removal from the
13

transportation and disposal plan. The first amended complaint

paints Watson as a "behind the scenes" member of the conspiracy,

providing encouragement and support to Burt. Beyond conclusory

accusations made "[u]pon information and belief," however, we

are hard pressed to find any allegations at all about what

Watson did or said to support or advance any such conspiracy.9

It may be inferred (although not expressly alleged) that Watson

was present at the August 22, 2022 meeting with Smith of the

EPA, and he was copied on several of Burt's e-mail

communications that followed. But there is no allegation that

Watson contacted any government officials, US Ecology, or de

Maximis on his own or took any other action designed to

interfere with Grafton & Upton's contractual and business

relations or its constitutional rights.10 Removing from

consideration, as we must, the labels and legal conclusions, the

sparse allegations against Watson, individually, do not

plausibly suggest an entitlement to relief on any legal basis.

See Cannata, 496 Mass. at 191; Edwards, 477 Mass. at 260. See

also Anzalone v. Administrative Office of the Trial Court, 457

9 The first amended complaint contains repeating allegations
made "[u]pon information and belief" that Burt conferred and
consulted with Watson before he sent each of the e-mail messages
mentioned in the complaint and detailed in this opinion.

10Indeed, at the oral argument before this court, Grafton &
Upton candidly admitted that it does "not have specific
allegations with respect to [what Watson] did."
14

Mass. 647, 660-661 (2010) (plaintiff cannot withstand motion to

dismiss by "talismanic invocation" of labels like

"unconscionable" and "wrongful interference"); Schaer v.

Brandeis Univ., 432 Mass. 474, 478 (2000) (plaintiff may not

"rest on subjective characterizations or conclusory descriptions

of a general scenario which could be dominated by unpleaded

facts" [quotations and citations omitted]). For this reason, if

no other (see the common-law immunity analysis, infra), Watson

was entitled to dismissal of the claims against him.11

3. Claims against Burt. a. Common-law immunity. Under

the Massachusetts Tort Claims Act (MTCA), "public employees who

commit negligent or wrongful acts or omissions 'while acting

within the scope of [their] office or employment' are immune

from liability," Berry v. Commerce Ins. Co., 488 Mass. 633, 636

(2021), quoting G. L. c. 258, § 2, regardless of the capacity in

which they are sued, Doyle v. Quincy, 104 Mass. App. Ct. 761,

765 n.7 (2024). Public employees sued in their individual

capacity for intentional torts, like the defendants here,

however, are not shielded by the MTCA, but they are protected by

the doctrine of common-law immunity. See Bresler v. Muster, 496

11Given our conclusion as to the claims against Watson and
the waiver of claims against the Doe defendants, we need not
separately address the conspiracy claim against Burt as a person
cannot conspire with himself. See Wodinsky v. Kettenbach, 86
Mass. App. Ct. 825, 837 (2015) (element of civil conspiracy is
two or more defendants acting in concert).
15

Mass. 111, 122 (2025), citing Nelson v. Salem State College, 446

Mass. 525, 537 (2006). See also South Boston Betterment Trust

Corp., 438 Mass. at 69 (claim against mayor, individually, for

intentional tort covered by common-law immunity doctrine).

"Under the doctrine of common-law immunity, a public

official exercising judgment and discretion is not liable for

negligence or other errors during official decision-making,

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

free of corruption." Bresler, 496 Mass. at 122. The "bad

faith" that would trigger the loss of immunity is "more than bad

judgment or negligence, but rather suggest[s] a dishonest

purpose or some moral obliquity, a conscious doing of wrong, or

a breach of a known duty through some motive of interest or ill

will" (quotations and citation omitted), id., while the

"'[m]alice' [that would trigger the loss of immunity]

constitutes a wrongful act, done intentionally, without just

cause or excuse" (quotations and citations omitted). Id. See

Spiegel v. Beacon Participations, Inc., 297 Mass. 398, 416

(1937) (bad faith "partakes of the nature of fraud").

Importantly here, as we noted earlier, "[t]here is every

presumption in favor of the honesty and sufficiency of the

motives actuating public officers in actions ostensibly taken
16

for the general welfare" (citation omitted).12 South Boston

Betterment Trust Corp., 438 Mass. at 69. "To overcome this

presumption, the plaintiff bears the burden of showing that the

officials acted in bad faith or with malice." Bresler, supra.

From a pleading perspective, "isolated allegation[s] . . . [that

are] vague, unsupported, and conclusory" are inadequate to meet

the plaintiff's burden. Id. at 121 n.8. Mere poor judgment or

negligence will not suffice to establish a lack of good faith.

Id. at 123. Applying these principles, we conclude that the

allegations in the amended complaint are insufficient to

overcome the presumption that Burt was acting in good faith and

without the requisite malice.

Grafton & Upton's transloading facility is located in

Hopedale's Zone II protected area -- a fact that was apparently

brought to the EPA's attention by Burt. The contaminants headed

Hopedale's way in 2022 under the transportation and disposal

plan and Grafton & Upton's contract were from a Superfund site

and included depleted uranium -- reasonably raising concerns for

a public servant charged with oversight of the public water

supply. And more than trains passing through Hopedale en route

to other destinations was involved: over 100,000 tons of

12Moreover, there is no merit to Grafton & Upton's claim
that the presumption does not apply at the pleading stage. See
Bresler, 496 Mass. at 112-113.
17

contaminated soil in bags that had experienced frequent tearing

were expected to be shipped by tractor trailers to the railyard

in Hopedale's Zone II protected area and transferred from the

trucks via gondolas to the railcars.

So far as the record reveals, as the chair of the water and

sewer commission -- the public body charged with ensuring the

environmental condition of the town's public water supply, see

G. L. c. 40N, § 1 -- Burt had every right and the responsibility

as part of his official duties to question the possible impact

of the shipments, the safety precautions in place, and the

oversight of the transloading. Indeed, it would have been a

dereliction of duty not to have asked questions about activities

of this magnitude in the town's Zone II protected area and not

to have monitored and questioned the operations closely, as Burt

did.

Burt's numerous and frequent communications to the EPA, the

DEP, and de Maximis officials do not show bad faith or actual

malice but reflect the record of a local official trying to do a

thorough job on behalf of his town and to minimize the chance of

any possible disaster. From the start, Burt expressed concern

about possible accidents in the Zone II protected area. See

note 5, supra. Despite the representations by the DEP that the

contaminated soils would arrive in Hopedale in "fully sealed"

containers, a spill occurred during the very first shipment, and
18

the bags used to hold the soils thereafter were often failing

during the process. In this context, Burt acted well within his

authority in repeatedly expressing concern about, among other

things, the risk posed by the spills, questioning the future

containment efforts, and requesting ongoing soil testing and

safety precautions. No town wants depleted uranium-contaminated

soil anywhere near its water supply. No inference of bad faith

or actual malice arises from Burt's repeated requests that EPA

officials amend the transportation and disposal plan to ship the

contaminated soil directly to Michigan or to use another

transloading site that was not located in a Zone II protected

area. Compare Najas Realty, LLC v. Seekonk Water Dist., 821

F.3d 134, 146 (1st Cir. 2016) (Najas Realty II) (concluding

"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 [water district superintendent's]

behavior").

As evidence of Burt's bad faith, Grafton & Upton relies on

his failure to post public notice of the August 22, 2022 meeting

called by Smith of the EPA -- as well as his failure to post

public notice of his August 23, 2022, and December 5, 2022

e-mail messages to Smith and Nierenberg -- allegedly in

violation of the Massachusetts open meeting law. See G. L.

c. 30A, §§ 18, 20. Grafton & Upton has failed to bring to our
19

attention, and we are unaware of any, cases requiring a public

official to post public notice in these circumstances. In any

event, the fact that this meeting and these communications took

place outside of a regular public meeting of the town's water

and sewer commission does not suggest bad faith or actual malice

on Burt's part. See Bresler, 496 Mass. at 122 (defining "[b]ad

faith" and "[m]alice for purposes of common-law immunity).

Nor do the few comments Grafton & Upton has pointed to as

demonstrating Burt's alleged animosity and ill will towards it

evince the type of bad faith or malice sufficient to cause the

loss of immunity. Compare Najas Realty II, 821 F.3d at 137-139,

145-146 (no bad faith or malice shown by "conclusory"

allegations that water district superintendent raised "bogus"

health concerns in opposition to project and stated he wanted

developer "to go away" and be forced to "jump every hurdle").

Businesses subjected to local regulation often perceive local

officials to be acting with ill will or personal animosity

against them. See, e.g., id. at 138 n.4 (plaintiff alleged

water district imposed costly and unnecessary requirement at

"eleventh hour" on its second development project "to harass and

hinder" plaintiff). The alleged demonstration of ill will and

personal animosity in the past regarding "other matters,"

without further supporting allegations, is insufficient to meet

the bad faith and malice standards required to overcome "the
20

presumption that public officials act honestly and in the public

interest."13 Bresler, 496 Mass. at 122. Cf. Massachusetts Auto.

Rating & Acc. Prevention Bur. v. Commissioner of Ins., 401 Mass.

282, 298 (1987) (adverse rulings of commissioner insufficient to

show bias); Clark v. Clark, 47 Mass. App. Ct. 737, 739 ("mere

fact that party suffers adverse rulings during litigation does

not establish lack of judicial impartiality").

Similarly, the February 2021 warning from a former town

administrator to Burt to "stop conflating" his personal opinions

with his official responsibilities was not related to the e-mail

messages at issue as the "warning" preceded by some eighteen

months the first e-mail message at issue here. Given the

presumption of honesty enjoyed by public employees, the

allegations about the warning, without more, do not plausibly

suggest that Burt acted with malice or in bad faith, as those

terms are defined by our case law, toward Grafton & Upton in

2022 and 2023. See Bresler, 496 Mass. at 122. See also South

Boston Betterment Trust Corp., 438 Mass. at 69 (courts must

indulge "every presumption in favor of the honesty and

13Even if Burt had made these comments contemporaneously
with his statements to the EPA and the DEP, on their face the
comments concerned actions by Grafton & Upton that could
reasonably cause concern to local officials, and thus, they were
an insufficient basis to defeat his common-law immunity.
21

sufficiency of the motives actuating public officers in actions

ostensibly taken for the general welfare" [citation omitted]).

Additional conclusory allegations against Burt in the first

amended complaint made "[u]pon information and belief" -- that

he "interfere[d] with" Grafton & Upton's "contractual relations"

and its "business relations" "in retaliation" for its

acquisition of a separate property in Hopedale and its

successful opposition to the town's attempt to take that

property by eminent domain -- are unavailing. See Najas Realty,

LLC v. Seekonk Water Dist., 68 F. Supp. 3d 246, 250, 259-260

(D. Mass. 2014), aff'd, Najas Realty II, 821 F.3d 134 (finding

similar allegations -- that water district superintendent

retaliated against developer and interfered with his business

and contractual interests to punish him for having outbid water

district for certain property in town -- inadequate to overcome

common-law immunity). See also Bresler, 496 Mass. at 101 n.8.

As further evidence of Burt's bad faith and malice, Grafton

& Upton relies on a communication from Scott Binder, a US

Ecology vice-president, sent after Grafton & Upton's termination

stating, "I don't see any way that de [M]aximis and EPA Region

II are coming back to [Grafton & Upton] for this project . . .

they don't need the bad publicity and the threats and all that

stuff." However, there are no allegations or evidence in the

record as to the source of the "threats," what other "stuff" was
22

allegedly said or done, the context of the communications, who

was present, or when the "threats" were made. Although Grafton

& Upton is entitled to all reasonable inferences in its favor,

no plausible inference of bad faith or malice by Burt can be

drawn from the vague and generalized statement.14 See Bresler,

496 Mass. at 101 n.8 (absent specifics, vague and unsupported

allegations "fail[ed] to raise more than a speculative right to

relief"); Caverno v. Fellows, 286 Mass. 440, 442-443 (1934),

S.C., 300 Mass. 331 (1938) (affirming dismissal of teacher's

tort claims where general allegations that defendant public

employees made "false and fraudulent" charges against plaintiff

to members of school committee were not "set forth according to

their tenor or . . . their substance and effect" and where

general allegations that "the defendants did hamper, obstruct

and impede the plaintiff in her work" were "of the most general

nature and [did] not particularize in any degree").

Grafton & Upton also rely on an internal US Ecology

communication dated March 3, 2023, that was attached to Grafton

14We note that the tone of Burt's e-mail messages to the
EPA, the DEP, and de Maximis was unwaveringly polite and
professional, and that the contaminated soil from the Superfund
site was transported by truck and rail through a number of towns
in addition to Hopedale, one or more of which could have been
opposed to the presence of contaminated soil passing through
their communities and thus could have been the source of the
alleged threats.
23

& Upton's opposition to the defendants' motion to dismiss.15

That message suffers from the same infirmities as the statement

by Binder that we set forth above: the actual source of the

pressure exerted on the EPA and de Maximis to move the

transloading activities is not named, and no further details are

provided. Again, notwithstanding the favorable standard, the

inference that Burt (and Watson) were "the Town" referenced in

the e-mail message is speculative. Many residents of Hopedale

would have been very interested in ensuring that these materials

were not transported there. More than a speculative right to

relief is required to state a claim for relief seeking to hold a

public official individually liable for money damages. See

Bresler, 496 Mass. at 121 n.8.

At bottom, the allegations of the complaint do not

plausibly suggest that Burt acted outside the scope of his

authority or with personal animus against Grafton & Upton. As

Grafton & Upton concedes, Burt held himself out as an official

of the town and signed most of his e-mail messages with his

title. Part of his duties was to communicate with other

15In the March 3, 2023 e-mail message, Joe Weismann, a US
Ecology director, reported to Wayne Hinton, a manager, that
"Bruce Thompson [of de Maximis] called me earlier this week and
shared that the Town of Hopedale is providing more pressure on
EPA and de Maximis about the [Grafton & Upton] Railroad.
Pressure is being applied to the point where Bruce is strongly
considering having us move [the] transload[ing] to another
location."
24

government officials. It was neither surprising nor beyond the

scope of his duties for Burt, the chair of the town water and

sewer commission, to direct most of his concerns about

activities in the Zone II protected area to the EPA and the DEP

-- the project overseers charged with ensuring that all Federal

and State standards were being met. Upton & Grafton has

provided no authority by way of the local bylaw or other

regulation of the chair of the water and sewer commission's role

to suggest otherwise. The content of Burt's e-mail messages

demonstrates that he sought information from these government

entities for upcoming water and sewer commission meetings. His

failure to include Grafton & Upton in his communications does

not bespeak bad faith. And where Burt consistently identified

himself as a water and sewer commissioner, the fact that Burt

may have used his personal e-mail account to communicate does

not show that he was acting outside the scope of his official

duties.

Grafton & Upton's reliance on Burt's January 19, 2023

e-mail message as evidence that Burt was acting outside his

office is similarly misplaced.16 The fact that none of the town

16In questioning why "the transport is being done without a
special permit," Burt wrote, by way of background in that e-mail
message, "As a Zone II Water protected district[], the Town (via
the Board of Health, Conservation Committee, Zoning Board and
Water & Sewer Commission) has an oversight responsibility to
ensure water quality. Operating without a special permit, the
25

boards and commissions listed in the e-mail message had

expressly "voted to authorize" him to ask these questions and

make these statements, even if true, does not change that the

boards and commissions in fact have oversight responsibility to

ensure water quality, which is all that Burt asserted, and is

not evidence that he acted beyond the scope of his authority as

chair of the town body charged with overseeing the public water

supply potentially impacted by activities in the Zone II

protected area.17 In short, the allegations do not plausibly

suggest that Burt acted outside the scope of his authority.

To be sure, Burt repeatedly asked the same questions and

made the same complaints to the EPA and others about Grafton &

Upton's transloading activities. He also continued to seek

ability to perform this oversight is being denied." To the
extent that Grafton & Upton alleges that this statement was
"false" and the complaint alleged, in conclusory fashion, that
Burt made a number of false statements and misrepresentations to
the EPA, nothing Burt said in any of the e-mail messages of
record was untrue. Cf. Brighams Cafe, Inc. v. Price Bros. Co.,
334 Mass. 708, 708 (1956) (affirming judgment of dismissal
where, in lieu of substantive facts, complaint alleged, "in
general terms and by way of conclusions, that the defendant took
action or made statements which the [complaint characterized] as
'false and fraudulent'").

17Burt expressly acknowledged that the town understood that
the materials were not classified as "hazardous" and were thus
allowed to be transported through the Zone II protected area.
Burt suggested, however, that if the materials were so bad as to
require disposal in a special landfill, the materials should be
given "special handling" in the Zone II protected area.
26

local oversight of the transloading operations to which the town

was not entitled. He may even have overstated the risk posed by

the activities. Burt's motives and concerns for the town's

water supply and the welfare of town residents, however, are

presumed to have been honest and sufficient. It was Grafton &

Upton's burden to allege facts showing he was acting in bad

faith, with malice, or with corruption. This it has not done.

Based on his immunity, which Grafton & Upton failed to defeat,

the common-law claims against Burt were properly dismissed.

b. MCRA claim. Grafton & Upton alleges that Burt

"interfered with [its] constitutional rights to use and improve

its property in Hopedale" and that Burt accomplished the

interference by "threats and coercion," terms of art for

purposes of a MCRA claim. See Gibson v. Department of

Correction, 106 Mass. App. Ct. 201, 210 (2025). Specifically,

Grafton & Upton alleges that Burt threatened or exerted pressure

on de Maximis and the EPA, "caus[ing] [them] to direct US

Ecology to terminate [Grafton & Upton]'s transloading contract

under the EPA-approved [transportation and disposal plan]." We

conclude that no plausible inference can be drawn from these

conclusory allegations that Burt engaged in threats or coercion

within the meaning of the MCRA. See Glovsky v. Roche Bros.

Supermkts., Inc., 469 Mass. 752, 753, 762-763 (2014) (affirming

dismissal of MCRA claim where allegations were insufficient to
27

show violation of constitutional right was "by threats,

intimidation or coercion"). Burt's communications contained no

express statement or so much as a hint suggesting any adverse

actions he would take if Grafton & Upton continued with its

transloading activities. Accordingly, this claim was properly

dismissed as well. Cf. Freeman v. Planning Bd. of West

Boylston, 419 Mass. 548, 566, cert. denied, 516 U.S. 931 (1995)

(even where board erroneously sought concession from developer

to improve intersection, claim under MCRA rejected where

function of intersection was legitimately related to purpose of

subdivision control law).

Conclusion. The judgment dismissing the first amended

complaint is affirmed.

So ordered.