Mullane v. Breaking Media, Inc. et.al.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

___________________________________

)

Jonathan Mullane, )

)

Plaintiff, )

) Civil Action

v. ) No. 18-12618-PBS

)

Breaking Media, Inc., and )

Elie Mystal, )

)

Defendants. )

___________________________________)

MEMORANDUM AND ORDER

January 6, 2020

Saris, D.J.

Plaintiff, Jonathan Mullane, a former student of the

University of Miami Law School, brings this action against1

Breaking Media, Inc., and journalist Elie Mystal alleging that

an article on the legal website “Above the Law” was defamatory.

Mullane asserts claims against Mystal and Breaking Media

for libel per se, tortious interference with contractual

relations, tortious interference with advantageous business

relations, tortious interference with prospective economic

advantages, intentional infliction of emotional distress, unfair

and deceptive practices in violation of Mass. Gen. Laws ch. 93A

1 This action initially included other defendants who have since

been dismissed. Docket No. 134.

§ 9, joint and several liability for the republication of libel

per se, and civil conspiracy.

Defendants’ motion to dismiss (Docket No. 80) is ALLOWED

and Plaintiff’s remaining motions (Docket Nos. 103, 140, 141,

142, 143, 144, 145, 157, 162)2 are DENIED as MOOT. The motions of

Plaintiff’s father, E. Peter Mullane, related to intervention in

this case (Docket Nos. 138, 158, 161) are DENIED as MOOT.

BACKGROUND

I. Factual Background

The facts are primarily drawn from the Plaintiff’s Second

Amended Complaint and the documents referenced therein,

including the attached transcript of the Court hearing. Docket

No. 57; Docket No. 57-1.

A. Mullane’s Hearing with Judge Moreno

Mullane was a student at the University of Miami School of

Law beginning in the fall of 2017. See Docket No. 57-1 at 11;

2 The Plaintiff’s pending motions include a Motion for Leave to

Conduct Discovery Limited to the Issue of Personal Jurisdiction

(Docket No. 103), a Motion for Reconsideration of the Order on

Report and Recommendations (Docket No. 140), a Motion to Strike

Defendants’ Motion to Dismiss (Docket No. 141), a Motion for

Spoliation Sanctions and for an Entry of Default (Docket No.

142), a Third Motion for Judicial Notice (Docket No. 143), a

Motion for Leave to Submit Supplemental Authorities (Docket No.

144), a Motion for a Final Appealable Order Pursuant to Fed. R.

Civ. P. 54(b) (Docket No. 145), a Motion for Leave to File

Supplemental Authorities (Docket No. 157), and a Motion for

Leave to File Supplement to Motion for Reconsideration (Docket

No. 162).

Docket No. 138-1 at 10-12. During the spring of 2018, Mullane

served as a legal intern with the United States Attorney’s

Office (“USAO”) in the Southern District of Florida. Docket No.

57 ¶¶ 7, 10.

While employed with the USAO, Mullane was party to a pro se

civil lawsuit involving a credit card dispute pending before

Judge Federico Moreno in the United States District Court for

the Southern District of Florida. Docket No. 22 at 2. In April

2018, Mullane entered Judge Moreno’s chambers, allegedly to

request that the clerk make an entry of default in connection

with this personal civil dispute. See Docket No. 57 ¶ 83-84.

Judge Moreno subsequently summoned Mullane to a hearing on

April 10, 2018. Docket No. 57 ¶ 52. During the hearing, Mullane

appeared to acknowledge that he had sought to file a writ of

mandamus in his pending case. See Docket No. 57-1 at 13:14-18

(“THE COURT: Did you mention the word petition for mandamus? .

. . MR. MULLANE: I did.”); id. at 25:17-19 (“THE COURT: What was

the question? MR. MULLANE: I can’t remember exactly. It was

about how to file the mandamus request or something.”). But see

id. at 7:19-20 (“MR. MULLANE: I said that I had a specific

question about the entry of default.”). Judge Moreno reprimanded

Mullane for his actions. See generally Docket No. 57-1 at 4-30.

Mullane was terminated from his internship at the USAO soon

after the hearing. Docket No. 57 ¶ 21.

B. “Above the Law” Publishes Article on the Hearing

On April 30, 2018, the legal news publication “Above the

Law” published an article, titled “Judge Detonates Pro Se Law

Student So Hard I Now Must Defend a Dumb Kid” (the “Article”).

Docket No. 57 ¶ 68; Docket No. 57-1 at 32-36. The Article was

authored by Mystal, the Executive Editor of “Above the Law.”

Docket No. 57 ¶ 68, 77. “Above the Law” is owned and published

by Breaking Media. Docket No. 23 ¶ 4.

The Article describes the April 10, 2018 hearing. It

states, inter alia:

• “[Mullane] was trying to file a petition of mandamus -—

which basically asks an appellate court to order Judge

Moreno to work on his case faster. That’s pretty rude. He

didn’t know where to file the petition, and ended up asking

the judge’s career clerk, in the judge’s chambers, ex-

parte, what to do about it. That’s pretty dumb. Initially,

the clerk wasn’t even going to let him in, but Mullane said

he worked for the U.S. Attorney’s office (he’s an intern),

which gained him access to the chambers to discuss his own

personal case. That’s pretty unethical.”

• “Basically Mullane was an idiot . . . .”

• “[T]o gain entry into those chambers, he dropped his USAO

cred, even though he was just an intern, and even though he

was there for reasons that had nothing to do with his

internship.”

• “It also appears that Mullane is a little entitled ponce .

. . .”

• “Turns out the kid’s father is also an attorney . . .

wonder if that helped him get his sweet internship.”

• “Okay, so Jon Mullane is a little brat who [sic] with a

USAO internship who had an ex-parte conversation in judge’s

chambers while trying to file a motion arguing that the

judge was lazily ignoring his pro se complaint.”

• “If Mullane is a dauphin . . . .”

• “The kid wasn’t trying to upend the wheels of justice, he

made a series of dumb mistakes.”

Docket No. 57-1 at 32-36.

Following the publication of the Article, the Securities

Exchange Commission (“SEC”) rescinded Mullane’s invitation to

serve as a “Student Honors Volunteer.” Docket No. 57-1 at 43.

Mullane later withdrew from the University of Miami School of

Law. Docket No. 57 ¶ 125. He claims that the Defendants’ actions

caused him economic, professional and emotional harm. Id. ¶ 110-

126.

II. Procedural Background

Mullane filed suit against Judge Moreno and Breaking Media

in Suffolk County Superior Court on November 27, 2018. Docket

No. 1-1. The United States then removed the case to federal

court. Docket No. 1. After Mullane added additional parties via

a First Amended Complaint, Docket No. 14, and defendants filed

motions to dismiss, Docket No. 7, Docket No. 21, the case was

referred to Magistrate Judge Dein, Docket No. 37.

On August 13, 2019, Magistrate Judge Dein issued a Report

and Recommendation on twelve pending motions in this case.

Docket No. 120. This Court adopted the Report and Recommendation

as pertaining to the defendants United States of America,

Federal District Court Judge Federico A. Moreno, and Assistant

U.S. Attorney (“AUSA”) Alison W. Lehr. Docket No. 134. During a

hearing on October 1, 2019, Defendants Breaking Media and Elie

Mystal waived their motion to dismiss based on lack of personal

jurisdiction. All parties assented to the Court’s ruling,

without further hearing, on Defendants’ motion to dismiss for

failure to state a claim.

STANDARD OF REVIEW

A Rule 12(b)(6) motion is used to dismiss complaints that

do not “state a claim upon which relief can be granted.” See

Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion to

dismiss, the factual allegations in a complaint must “possess

enough heft” to state a claim to relief that is plausible on its

face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–57 (2007).

In evaluating the motion, the Court must accept the factual

allegations in the plaintiff’s complaint as true, construe

reasonable inferences in his favor, and “determine whether the

factual allegations in the plaintiff’s complaint set forth a

plausible claim upon which relief may be granted.” Foley v.

Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014).

DISCUSSION

I. Massachusetts Libel Law and the Fair Report Privilege3

A. Parties’ Arguments

The Defendants claim the Article is subject to immunity

under the Fair Report Privilege. Docket No. 22 at 1. They

contend that any factual statements in the Article are accurate

reports of the April 2018 hearing based on the official court

reporter’s transcript. Id. at 22. Defendants further argue that

Massachusetts’ “actual malice” exception does not apply in this

case, because the Article dealt with a matter of public concern

and Plaintiff cannot show “actual malice” under Mass. Gen. Laws

ch. 231 § 92. Docket No. 26 at 8.

3 As noted above, the Defendants have waived their motion to

dismiss for lack of personal jurisdiction. Both parties have

presented arguments based on Massachusetts law. See, e.g.,

Docket No. 22; Docket No. 26. The Court applies Massachusetts

law in this case.

Mullane responds that the Fair Report Privilege does not

apply because the Article contains “homophobic, pejorative

language and personal slights” that render it unfair. Docket No.

26 at 15. Mullane also claims that the Article was inaccurate in

two respects. First, Mullane claims the Article inaccurately

reported that Mullane attempted to request a writ of mandamus in

his Florida lawsuit. Mullane alleges that he instead sought an

entry of default or to obtain copies of the record. Docket No.

57 ¶¶ 83, 90. Second, Mullane argues that the Article contains

the “factually false” statement that “Plaintiff had committed a

criminal offense.” Docket No. 26 at 5.

Finally, Mullane argues that Defendants cannot assert the

Fair Report Privilege in this case because it regards a matter

of private concern and Defendants acted with “actual malice.”

Id. at 3, 6.

B. Legal Standard

To establish libel under Massachusetts law, a plaintiff

must establish “(1) that the defendant published a written

statement; (2) of and concerning the plaintiff; that was both

(3) defamatory and (4) false; and (5) either caused the

plaintiff economic loss, or is actionable without proof of

economic loss.” Noonan v. Staples, 556 F.3d 20, 25 (1st Cir.

2009).

Massachusetts recognizes “a privilege for fair and accurate

reports of official actions and statements.” Howell v. Enter.

Publ’g Co., LLC, 920 N.E.2d 1, 13 (Mass. 2010). The privilege

provides immunity “from liability for claims arising out of such

reports.” Yohe v. Nugent, 321 F.3d 35, 42 (1st Cir. 2003). To

qualify as “fair and accurate” reporting, an article need only

give a “rough-and-ready summary” that was “substantially

correct.” Id. at 43. Importantly, “accuracy” refers to “the

factual correctness of the events reported and not to the truth

of the events that actually transpired.” Id. at 44. The Fair

Report Privilege encompasses reports on judicial proceedings,

even if the reports are not “in technically precise language.”

Ricci v. Venture Magazine, Inc., 574 F. Supp. 1563, 1567 (D.

Mass. 1983); see also Sibley v. Holyoke Transcript-Telegram

Publ’g Co., 461 N.E.2d 823, 826 (Mass. 1984). Massachusetts

requires “that the privilege be construed liberally and with an

eye toward disposing of cases at an early stage of litigation.”

Howell, 920 N.E.2d at 15.

Notwithstanding the Fair Report Privilege, a Massachusetts

statute “permits a plaintiff to recover for a truthful

defamatory statement published in writing (or its equivalent)

with actual malice . . . except as confined by” the First

Amendment. Phelan v. May Dep’t Stores Co., 819 N.E.2d 550, 553

n.4 (Mass. 2004) (citing Mass. Gen. Laws ch. 231 § 92). Under

the state statute, “actual malice” is defined as “ill will” or

“malevolent intent.” Noonan, 556 F.3d at 29 (distinguishing

“actual malice” under the Massachusetts statute from the First

Amendment standard for “actual malice” as defined in New York

Times v. Sullivan, 376 U.S. 254, 280 (1964)). The Massachusetts

Supreme Judicial Court has declared § 92 unconstitutional as

applied to matters of public concern. Shaari v. Harvard Student

Agencies, Inc., 691 N.E.2d 925, 929 (Mass. 1998).

The U.S. Supreme Court has defined matters of public

concern as those that can be “fairly considered as relating to

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

community.” Connick v. Myers, 461 U.S. 138, 146 (1983). Courts

look to the “content, form, and context” to determine whether

speech addresses matters of public or private concern. Dun &

Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761

(1985). “[I]t is sufficient that the speech concern matters in

which even a relatively small segment of the general public

might be interested.” Levinsky’s, Inc. v. Wal-Mart Stores, Inc.,

127 F.3d 122, 132 (1st Cir. 1997) (quoting Roe v. City of San

Francisco, 109 F.3d 578, 585 (9th Cir. 1997)).

Overall, summary disposition of defamation claims is

“especially favored” in Massachusetts because meritless cases

put “an unjustified and serious damper on freedom of expression”

and “the costs of litigation may induce an unnecessary and

undesirable self-censorship.” King v. Globe Newspaper Co., 512

N.E.2d 241, 243 (Mass. 1987).

C. Analysis

The Fair Report Privilege protects many of the statements

challenged by Mullane, including the portions of the Article

that directly quote the court reporter’s transcript of the April

10, 2018 hearing and the portions that summarize the topics

discussed in that hearing. See Butcher v. Univ. of Mass., No.

SJC-12698, 2019 WL 7372261, at *5 n.13 (Mass. Dec. 31, 2019)

(explaining that the privilege “clearly would apply ‘to a public

hearing before a judge’”) (quoting Howell, 920 N.E.2d at 18).

Compare Docket No. 57-1 at 33 (“[Mullane] was trying to file a

petition of mandamus -- which basically asks an appellate court

to order Judge Moreno to work on his case faster”) with id. at

10, 12-14, 26, 29 (transcript); id. at 33 (“He didn’t know where

to file the petition, and ended up asking the judge’s career

clerk, in the judge’s chambers, ex-parte, what to do about it”)

with id. at 5-7, 13-14 (transcript); id. at 33 (“Initially, the

clerk wasn’t even going to let him in, but Mullane said he

worked for the U.S. Attorney’s office (he’s an intern), which

gained him access to the chambers to discuss his own personal

case”) with id. at 6-7, 12, 16-17 (transcript); id. at 33 (“[T]o

gain entry into those chambers, he dropped his USAO cred, even

though he was just an intern, and even though he was there for

reasons that had nothing to do with his internship”) with id. at

6-7, 12, 16-17 (transcript); id. at 34 (“Turns out the kid’s

father is also an attorney”) with id. at 15 (transcript); id. at

34 (“[Mullane] had an ex-parte conversation in judge’s chambers

while trying to file a motion arguing that the judge was lazily

ignoring his pro se complaint”) with id. at 5-7, 10, 12-14, 26,

29 (transcript). These statements provide a “rough-and-ready

summary” of the hearing that was “substantially correct.” See

Yohe, 321 F.3d at 42; see also Butcher, 2019 WL 7372261, at *9

(applying the privilege where challenged statements in news

article were “substantively identical” to statements made by

official actors).

Mullane’s arguments regarding the Article’s accuracy fail

because “‘accuracy’ for fair report purposes refers only to the

factual correctness of the events reported and not to the truth

about the events that actually transpired.” Yohe, 321 F.3d at

44. As to the question of what Mullane sought to file in his

Florida case, Mullane stated during the April 2018 hearing that

he was seeking a petition for mandamus. Docket No. 57-1 at 13,

26. As to potential accusations of “criminal conduct,” the

Article only summarized statements made by Judge Moreno. See id.

at 6-7, 12, 16-17. The reporting sections of the Article are

therefore protected by the Fair Report Privilege.

Plaintiff argues that Massachusetts’ “actual malice”

exception applies in this case because of the pejorative

language in the Article. Mass. Gen. Laws ch. 231 § 92 is

inapplicable here because the Article reported on a matter of

public concern -- a court proceeding. A contentious interaction

between a federal judge and a law student can be “fairly

considered” as a matter of “concern to the community.” Connick,

461 U.S. at 146.

II. First Amendment

A. Arguments

Mullane also challenges Defendants’ statements referring to

Mullane as “rude,” “dumb,” “unethical,” a “little entitled

ponce,” and a “dauphin.” See Docket No. 57 ¶¶ 73, 110. The

Article also contains the following potentially defamatory

statement: “Turns out [Mullane’s] father is an attorney --

wonder if that helped him get his sweet internship.” Docket No.

57-1 at 34. Defendants argue that these statements are protected

by the First Amendment because they represent the author’s

opinions.

B. Legal Standard

The First Amendment, made applicable to the states through

the Fourteenth Amendment, limits “the type of speech which may

be the subject of state defamation actions.” Piccone v. Bartels,

785 F.3d 766, 771 (1st Cir. 2015) (quoting Milkovich v. Lorain

Journal Co., 497 U.S. 1, 16 (1990)). In cases involving a

private figure-plaintiff4 and a media defendant, the First

Amendment requires that statements on matters of public concern

“be provable as false before there can be liability under state

defamation law.” Milkovich, 497 U.S. at 19-20 (citing Phila.

Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986)).

Statements of pure opinion are constitutionally protected

because “they are not susceptible of being proved true or

false.” Piccone, 785 F.3d at 771. A statement “couched as an

opinion” may be actionable if it “presents or implies the

existence of facts which are capable of being proven true or

false.” Levinsky’s, 127 F.3d at 127. Thus, “the relevant

question is not whether challenged language may be described as

an opinion, but whether it reasonably would be understood to

declare or imply provable assertions of [defamatory] fact.”

Phantom Touring, Inc. v. Affiliated Publ’ns, 953 F.2d 724, 727

(1st Cir. 1992). The court may determine as a matter of law

whether a statement is a pure opinion or a verifiable fact. See

Piccone, 785 F.3d at 772. This requires examining “the totality

of the circumstances in which the specific challenged statements

were made, including the general tenor and context of the

conversation.” Id.

4 For the purposes of this opinion, the Court assumes without

deciding that Mullane is a private figure.

Even if an opinion implies a provably false assertion of

fact, that statement will not be actionable if “it is plain that

the speaker is expressing a subjective view, an interpretation,

a theory, conjecture, or surmise, rather than claiming to be in

possession of objectively verifiable facts.” Riley v. Harr, 292

F.3d 282, 289 (1st Cir. 2002) (quoting Gray v. St. Martin’s

Press, Inc., 221 F.3d 243, 248 (1st Cir. 2000)). A speaker is

thus protected from defamation liability if he “communicates the

non-defamatory facts that undergird his opinion.” Piccone, 785

F.2d at 771; see also Riley, 292 F.3d at 289 (“[W]hen an author

outlines the facts available to him, thus making it clear that

the challenged statements represent his own interpretation of

those facts and leaving the reader free to draw his own

conclusions, those statements are generally protected by the

First Amendment.”). The “crucial distinction” is whether the

speaker’s statements can reasonably be interpreted to suggest

that the speaker had access to information not accessible to

others. Phantom Touring, 953 F.2d at 730-31. Compare Milkovich,

497 U.S. at 5 n.2, 21-22 (allowing suit where author claimed to

be in a “unique position” to verify defamatory allegations) with

Phantom Touring, 953 F.2d at 731 (barring suit where nothing in

challenged articles indicated that author “had more information”

about the defamatory allegations “than was reported in the

articles”).

C. Analysis

“[R]idicule and simple verbal abuse” do not give rise to

liability for defamation. See Fleming v. Benzaquin, 454 N.E.2d

95, 100 (Mass. 1983). Many of the challenged statements -– such

as those referring to Mullane as “rude,” “dumb,” “unethical,” a

“little entitled ponce,” or a “dauphin” -- are mere “epithets”

that are “insufficiently fact-based” to ground a defamation

claim. See Levinsky’s, 127 F.3d at 130 (holding that defendant’s

description of competitor’s store as “trashy” was not

actionable); see also Letter Carriers v. Austin, 418 U.S. 264,

284-86 (1974) (“traitor”); Greenbelt Coop. Publ’g Ass’n v.

Bresler, 398 U.S. 6, 13-14 (1970) (“blackmail”); Phantom

Touring, 953 F.2d at 728 (“a rip-off, a fraud, a scandal, a

snake-oil job”); McCabe v. Rattiner, 814 F.2d 839, 842-43 (1st

Cir. 1987) (“scam”).

Mullane argues that the Defendants’ use of the word “ponce”

is actionable because it is a “homophobic and derogatory” manner

of “referring to [Mullane] as an ‘effeminate man.’” Docket No.

26 at 8; see also Docket No. 57 ¶ 111. But the First Amendment

“shield[s]” such “figurative language.” See Levinsky’s, 127 F.3d

at 128 (explaining that “our society has long since passed the

stage at which the use of the word ‘bastard’ would occasion an

investigation into the target’s lineage or the cry ‘you pig’

would prompt a probe for a porcine pedigree”); see also Sindi v.

El-Moslimany, 896 F.3d 1, 14 (1st Cir. 2018) (explaining that

statements of “imaginative expression” or “rhetorical hyperbole”

are not actionable).

The Article also contains this statement: “Turns out

[Mullane’s] father is an attorney -- wonder if that helped him

get his sweet internship.” Docket No. 57-1 at 34. This statement

might imply a defamatory fact. But here, “although the

allegation of [nepotism] might be provable as true or false, the

sum effect of the format, tone, and entire content of the

[Article] is to make it unmistakably clear that the author was

expressing a point of view only, rather than stating actual

facts” about how Mullane obtained his internship. See Riley, 292

F.3d at 290 (citation omitted) (internal quotations omitted);

see also Phantom Touring, 953 F.2d at 729 (explaining that the

author’s “snide, exasperated language indicated that his

comments represented his personal appraisal of the factual

information contained in the article”). The statement is an

opinion protected by the First Amendment.

Defendants are also protected from defamation liability

because they do not suggest that the statement was “arrived at

on the basis of undisclosed facts. On the contrary, the

[Article] set forth the facts on which the conclusion[]

purported to be based.” See Friedman v. Bos. Broads., Inc., 522

N.E.2d 959, 962 (Mass. 1998). Because the Article provided the

“full factual basis” for the statement -- namely, that

Plaintiff’s father is an attorney -- the Article “cannot

reasonably be interpreted to suggest that the author had access

to information about plaintiff’s claim that was not accessible

to others.” See Ayyadurai v. Floor64, Inc., 270 F. Supp. 3d 343,

360 (D. Mass. 2017). The Article “simply posed [a] question[]

and suggested [an] answer[], as a matter of opinion.” King, 512

N.E.2d at 246. The Defendants’ statement is “speculative” and at

most amounts to a “personal conclusion[] about the information

presented.” Piccone, 785 F.3d at 774; see also Lyons v. Globe

Newspaper Co., 612 N.E.2d 1158, 1163 (Mass. 1993) (precluding

liability where speaker “clearly indicated to the reasonable

reader that the proponent of the expressed opinion engaged in

speculation and deduction based on the disclosed facts”).

The Article is protected by Massachusetts’ Fair Report

Privilege and the First Amendment. Accordingly, Mullane’s claims

for libel per se (Count I) and “joint and several liability for

the republication of libel per se” (Count IX) must be dismissed.

III. Remaining Claims

Mullane’s remaining claims also fail. The Fair Report

Privilege and the First Amendment “cannot be evaded simply by

relabeling a deficient claim.” Butcher, 2019 WL 7372261, at *11;

see also Yohe, 321 F.3d at 44 (“A plaintiff cannot evade the

protections of the fair report privilege merely by re-labeling

his claim.”); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46,

56-57 (1988) (holding that a plaintiff cannot sidestep the First

Amendment by suing for emotional distress rather than

defamation).

A. Tortious interference with contractual relations (Count

III), tortious interference with advantageous business

relations (Count IV), and tortious interference with

prospective economic advantages (Count V)

Under Massachusetts law, a plaintiff claiming tortious

interference with contractual relations must establish that he

(1) “had a contract with a third party,” (2) “which the

defendant knowingly induced the third party to break,” (3) that

the interference “was improper in motive or means,” and (4) that

the interference caused the plaintiff harm. Sindi, 896 F.3d at

23 (quoting Abramian v. Pres. & Fellows of Harvard Coll., 731

N.E.2d 1075, 1088 (Mass. 2000)). Plaintiffs claiming tortious

interference with business relations or prospective economic

advantages must similarly allege that defendants knowingly

induced the breaking of a business or economic relationship,

with improper motive or means. Id. at 26. “Improper means” can

include the commission of defamation. Id. at 24.

Mullane has failed to explain how Defendants could have

interfered with his internship with the U.S. Attorney’s Office,

given that his internship concluded before the Article was

published. Docket No. 22 at 10-11. Mullane also fails to provide

more than conclusory allegations that the Defendants knew of

Mullane’s relationship with the SEC at the time the Article was

published. Mullane’s tortious interference claims are simply

recycled versions of his defamation claim and cannot succeed.

See Piccone v. Bartels, 40 F. Supp. 3d 198, 201-02 (D. Mass.

2015), aff’d, 785 F.3d 766 (1st Cir. 2015).

B. Intentional infliction of emotional distress (Count VI)

A plaintiff claiming intentional infliction of emotional

distress (IIED) under Massachusetts law must show that (1) the

defendants “intended to inflict emotional distress” or “knew or

should have known that emotional distress was the likely result

of [their] conduct,” (2) the defendants’ “conduct was extreme

and dangerous, such that it transgressed all possible bounds of

decency and was utterly intolerable in a civilized community,”

and (3) “the conduct caused the plaintiff to suffer emotional

distress, and that this distress was severe and of a nature that

no reasonable person could be expected to endure it.” Sindi, 896

F.3d at 21 (internal quotations omitted).

“[A] failed defamation claim cannot be recycled as a tort

claim for negligent or intentional infliction of emotional

distress.” Shay v. Walters, 702 F.3d 76, 83 (1st Cir. 2012)

(citing Hustler, 485 U.S. at 56-57); see also Scholz v. Delp, 41

N.E.3d 38, 48 (Mass. 2015). In addition, “Massachusetts law sets

a high bar of proof for severity.” Sindi, 896 F.3d at 22; see

also Kennedy v. Town of Billerica, 617 F.3d 520, 530 (1st Cir.

2010) (explaining that “mere emotional responses including

anger, sadness, anxiety, and distress . . . are not often

legally compensable”). A motion to dismiss is appropriate when

the alleged conduct is not sufficiently severe. See Beecy v.

Pucciarelli, 441 N.E.2d 1035, 1040 (Mass. 1982).

Defendants’ speech, while unkind and insulting, was not

“extreme [or] outrageous.” “[M]ere insults” do not give rise to

liability for intentional infliction of emotional distress. See

Roman v. Trustees of Tufts Coll., 964 N.E.2d 331, 341 (Mass.

2012) (citation omitted).

C. Violation of Mass. Gen. Laws ch. 93A §§ 2, 9 (Count VII)

Mullane also alleges a violation of the Massachusetts

Consumer Protection Act (MCPA), which “provides a private cause

of action for a consumer who ‘has been injured,’ Mass Gen. Laws

ch. 93A § 9(1), by ‘unfair or deceptive acts or practices in the

conduct of any trade or commerce,’ id. § 2(a).” Shaulis v.

Nordstrom, Inc., 865 F.3d 1, 6 (1st Cir. 2017). Mullane points

to “all of Defendant Breaking Media’s acts and omissions” in

support of this claim. See Docket No. 57 ¶ 197 He specifically

alleges that Breaking Media perpetrated “unlawful discrimination

based on sexual orientation,” ostensibly referring to the

Article’s use of the word “ponce.” See id ¶ 198.

Mullane’s Chapter 93A claim must be dismissed, because

“where allegedly defamatory statements do not support a cause of

action for defamation, they also do not support a cause of

action under G.L. c. 93A.” Albright v. Morton, 321 F. Supp. 2d

130, 142 (D. Mass. 2004) (quoting Dulgarian v. Stone, 652 N.E.2d

603, 609 (Mass. 1995)). The Defendants’ statements were

protected by the First Amendment and the Fair Report Privilege,

and therefore cannot form the basis for liability under Chapter

93A. Cf. A.F.M. Corp. v. Corp. Aircraft Mgmt., 626 F. Supp.

1533, 1551-52 (D. Mass. 1985) (finding defendant did not engage

in unfair or deceptive trade practices, where defendants’

allegedly defamatory statements were protected by qualified

privilege); see also Albright, 321 F. Supp. 2d at 141-42

(dismissing Chapter 93A claim, because statements that allegedly

implied that plaintiff was homosexual could not be construed as

defamatory).

D. Civil conspiracy (Count XV)

Finally, the Second Amended Complaint presents a “Civil

Conspiracy” claim, alleging that the Defendants entered into an

agreement with Judge Moreno to defame Mullane; deprive Mullane

of his right to privacy; tortiously interfere with Mullane’s

economic, business, and contractual relations; and engage in

other, unspecified unlawful conduct. Docket No. 57 at 31.

Mullane claims that, in furtherance of this alleged conspiracy,

Judge Moreno improperly provided the Defendants with a

transcript of the April 10, 2018 hearing before the transcript

became public. Docket No. 26 at 13. Mullane also claims the

Defendants published defamatory statements as part of the

conspiracy. Docket No. 57 at 31.

The complaint fails to specify whether the civil conspiracy

claim is based upon common law or a statue. The Court assumes

that the claim is based upon Massachusetts common law.5 In

Massachusetts, a civil conspiracy typically6 exists if there is

(1) “a common design or agreement . . . between two or more

persons to do a wrongful act” and (2) “proof of some tortious

act in furtherance of the agreement.” Aetna Cas. Sur. Co. v. P &

B Autobody, 43 F.3d 1546, 1564 (1st Cir. 1994).

The complaint contains no plausible allegation of a “common

design or agreement” between the Defendants and Judge Moreno.

5 Plaintiff attempted to file a Third Amended Complaint that

included a separate civil RICO claim against Judge Moreno and

AUSA Lehr, but that motion was denied. See Docket No. 104 at 36;

Docket No. 134.

6 Massachusetts common law also recognizes a civil conspiracy if

“defendants, acting in unison, had some particular power of

coercion over plaintiff that they would not have had if they had

been acting independently.” Aetna Cas. Sur. Co. v. P & B

Autobody, 43 F.3d 1546, 1563 (1st Cir. 1994). The complaint does

not allege that this type of civil conspiracy occurred. This

type of conspiracy is “very limited,” id., and applies to “rare

instances in which it is the act of agreeing that constitutes

the wrong” such as “[c]ollusive behavior among market

competitors.” Snyder v. Collura, 812 F.3d 46, 52 (1st Cir.

2016).

Mullane argues that a common agreement must have existed because

only he, Judge Moreno, and counsel for Barclays Bank Delaware

allegedly had access to the April 2018 hearing transcript when

Defendants published the Article on April 30, 2018. Docket No.

26 at 12; Docket No. 54 at 2. But as noted in the docket entry

quoted by Plaintiff himself, the transcript could immediately

“be viewed at the court public terminal or purchased by

contacting the Court Reporter.” Docket No. 54 at 2. The

transcript was thus available publicly when the Article was

published on April 17, 2018.

The complaint also fails to allege any tortious act.

Mullane’s argument that Judge Moreno violated his privacy by

sending Defendants the hearing transcript is implausible, as

explained above. See Britton v. Athenahealth, Inc., No.

MICV201202457, 2013 WL 2181654, at *7-8 (Mass. Sup. Ct. May 3,

2013) (dismissing civil conspiracy claim where plaintiff failed

to plausibly allege underlying torts). Mullane’s arguments

regarding the Article also fail, as the Article was protected by

the Fair Report Privilege and the First Amendment. The

Defendants’ publication of the Article did not constitute

defamation or tortious interference with Mullane’s economic,

business, or contractual relations. See Poh v. Mass. Corr.

Officers Federated Union, No. 03-11987-RWZ, 2006 WL 1877089, at

*7 (D. Mass. July 7, 2006) (rejecting civil conspiracy claim

where plaintiff’s allegations of “underlying tortious activity”

were unsuccessful). Mullane’s civil conspiracy claim must

therefore be dismissed.

ORDER

For the reasons stated above, Defendants’ motion to dismiss

(Docket No. 80) is ALLOWED and Plaintiff’s remaining motions

(Docket Nos. 103, 140, 141, 142, 143, 144, 145, 157, 162) are

rendered MOOT. The motions of Plaintiff’s father, E. Peter

Mullane, related to intervention in this case (Docket Nos. 138,

158, 161) are also rendered MOOT.

/s/ Patti B. Saris .

Honorable Patti B. Saris

United States District Judge