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Briefings: Speech Claim Dispute Slows Next Phase of Moss Suit against Sarno…

Darryl Moss

The court can’t answer Moss’s prayer for relief until the city answers his complaint. (WMP&I)

Former Springfield mayoral aide Darryl Moss’s lawsuit against Mayor Domenic Sarno appears just about ready to inch out of the pleading phase. After a Hampden Superior Court judge dismissed some of Moss’s suit in December, he repleaded to revive his First Amendment claims. The city is challenging them again. Due to all this pleading and repleading, the city has yet to substantively answer the discrimination and negligence claims.

Moss lost his job in 2020 amid the national tension and unrest after George Floyd’s murder. Sarno fired him for violating the city’s social media policy. Moss had posted “grab the rifles” on Facebook in reaction to a defense of Kyle Rittenhouse from Donald Trump. However, the statement is a direct reference to an HBO series. Moss filed suit in July, alleging that other employees had not been terminated for similar social media posts.

Moss originally filed a seven-count complaint against the city and the mayor. Sarno and the city never contested whether his discrimination complaint were sufficiently pleaded. However, they did move to knock out Moss’s breach of contract, freedom of speech, defamation and negligence claims.

Judge Jane Mulqueen let the negligence claim—regarding the city’s investigation into Moss’s post—stand. However, she dismissed the breach of contract and defamation claims with prejudice, which means Moss cannot easily refile them. However, she dismissed the freedom of speech claim on technical grounds, allowing Moss to replead it properly.

On February 3, he did just that. Later that month, lawyers for Sarno and the city again sought to dismiss Moss’s First Amendment claim.

Because of the back and forth on pleading, a substantive response has yet to counter Moss’s complaint. The city and mayor will almost certainly deny his claims. Yet, their answer could offer hints about how they will counter Moss in court. It is not clear whether the motions on the pleadings have slowed down discovery on the claims the city is not challenging.

Domenic Sarno

Moss’s suit could get deeper into Sarno’s inner circle than other city litigation, once discovery begins in earnest. (WMP&I)

Moss’s attorney did not respond to a request for comment. Outside counsel representing the city and Sarno declined to comment citing city policy to not discuss pending litigation. A spokesperson for the mayor did not respond to an inquiry on whether the mayor’s office had urged dismissal of the First Amendment claim once more.

Moss’s First Amendment claim had been dismissed because his original complaint did not cite the Massachusetts Civil Rights Act. Constitutional rights are not causes of action on their own. The Act provides the grounds to sue.

The city and Sarno’s motion to dismiss is again rather technical. The motion states the city does not fall under the law. As for Sarno, city lawyers claim Moss did not adequately plead how the mayor interfered with Moss’s constitutional rights.

“It is rare for an MCRA claim to involve no threat of physical harm, and it is a very high bar for Plaintiff to reach,” the motion says.

In his opposition, Moss alleged that the city and Sarno’s actions did amount to threats. The brief does not say much to dispute the city’s ineligibility for the civil rights claims. However, as to Sarno, Moss argues that he “acquiesced to the intimidating and coercive actions” that violated Moss’s rights.

It further characterizes the focus on physical threats as misplaced.

“Moss was required to produce his body at [investigatory] meetings and a jury certainly could infer and he certainly would testify that he was intimidated and coerced by being required to attend because of his speech,” the brief reads.

The opposition goes on to insist Moss’s actions were off-duty, covered by the First Amendment and speaking about matters of public concern.

As a practical matter, the parties appear to be speaking past each other, leaving a lot for the motion judge to sort out. Attorneys are to appear in court on May 9 to argue the motion after which the case will mostly carry on amid depositions and exchange of discovery.

The court set a conclusion to discovery in July. However, the parties can seek to extend it. However, that also means the meat of discovery will occur in the middle of Sarno’s reelection bid.