[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-2266
ANN S. ADAMS & JOSEPH F. ADAMS,
Plaintiffs, Appellants,
v.
LARRY W. STEPHENSON, M.D.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.
Ann S. Adams and Joseph F. Adams on brief pro se.
Nancy B. Schlacter, Howard M. Cooper and Todd & Weld on brief for
appellee.
June 23, 1997
Per Curiam. In this pro se, diversity action,
plaintiffs Ann and Joseph Adams advance a trio of tort claims
against defendant Dr. Larry Stephenson. Plaintiffs are in
the business of preparing, editing and publishing medical
texts and periodicals, often under the auspices of a
Massachusetts corporation (Adams Publishing Group, Ltd.) of
which plaintiff Ann Adams is the sole shareholder.
Defendant, having worked with plaintiffs on earlier
occasions, was engaged to edit a textbook published by the
corporation in 1994. The instant action ensued when that
relationship soured. After affording plaintiffs various
opportunities to supplement their pleadings, the district
court dismissed all claims under Fed. R. Civ. P. 12(b)(6) for
failure to state a claim. We affirm.
It is true, as plaintiffs observe, that pro se
complaints are accorded "an extra degree of solicitude."
Rodi v. Ventetuolo, 941 F.2d 22, 23 (1st Cir. 1991). It is
also true that, at least in complex litigation, courts
"normally hesitate" to dismiss under Rule 12(b)(6) prior to
discovery, when "a party may not have all the facts."
Resolution Trust Corp. v. Driscoll, 985 F.2d 44, 48 (1st Cir.
1993). Yet even a pro se plaintiff is required "to set forth
factual allegations, either direct or inferential, respecting
each material element necessary to sustain recovery under
-2-
some actionable legal theory." Gooley v. Mobil Oil Corp.,
851 F.2d 513, 515 (1st Cir. 1988); accord, e.g., Dewey v.
University of New Hampshire, 694 F.2d 1, 3 (1st Cir. 1982)
(it is "not enough to allege a general scenario which could
be dominated by unpleaded facts"; instead, the claim must "at
least set forth minimal facts, not subjective
characterizations, as to who did what to whom and why"). The
demands on the pleader are not onerous: dismissal is
appropriate at this stage only if "a lenient construction [of
the complaint] demonstrates beyond doubt that the plaintiff
can prove no set of facts to support [the] claim for relief."
Rockwell v. Cape Cod Hosp., 26 F.3d 254, 260 (1st Cir. 1994).
Yet "minimal requirements are not tantamount to nonexistent
requirements"; "[t]he threshold [for stating a claim] may be
low, but it is real." Gooley, 851 F.2d at 514; see also
Glassman v. Computervision Corp., 90 F.3d 617, 628 (1st Cir.
1996). Having exercised de novo review, we agree with the
district court that, even with all reasonable inferences
drawn in their favor, plaintiffs' amended complaint fails
under these standards.
The claim of interference with contractual rights
requires little comment. See, e.g., Draghetti v.
Chmielewski, 416 Mass. 808, 816 (1994) (listing elements of
claim). Defendant is alleged to have induced his former
attorney to disclose proprietary information pertaining to
-3-
plaintiffs' business affairs, in violation of a
confidentiality agreement reached in an earlier, unrelated
lawsuit between plaintiffs and an individual represented by
that same attorney. Plaintiffs were directed to submit,
under seal, a description of the information that allegedly
had been disclosed. They claim to have done so; they did
not. Their submission recited the confidentiality provision
in the agreement but failed to identify any actual
information that was divulged. The resulting dismissal of
this claim was therefore fully justified.
Plaintiffs' "defamation" claim is subject to several
alternative constructions. To the extent they are
complaining of having been personally libeled, we agree with
the district court that defendant's March 19, 1996 letter
"was not reasonably susceptible of a defamatory connotation."
Dulgarian v. Stone, 420 Mass. 843, 848 (1995) (internal
quotation omitted). Indeed, that letter (which cited a
"controversy" over the rights to the textbook) made no
mention of plaintiffs at all; it referred only to the Adams
corporation, which owned the rights to the publication. We
note in addition that, to the extent plaintiffs are advancing
a claim of business defamation, they lack individual
standing. Such a claim would belong to the Adams
corporation, notwithstanding Ms. Adams' status as sole
shareholder. See, e.g., Willis v. Lipton, 947 F.2d 998,
-4-
1001-02 (1st Cir. 1991); Alford v. Frontier Enterprises,
Inc., 599 F.2d 483, 484 (1st Cir. 1979). A corporation, of
course, may be represented in court only by counsel. See,
e.g., American Metals Service Export Co. v. Ahrens Aircraft,
Inc., 666 F.2d 718, 719 n.2 (1st Cir. 1981). We fail to see,
in any event, how defendant's reference to a "controversy"
could be deemed defamatory--to either the plaintiffs or the
corporation.
The defamation claim might also be construed as one for
"injurious falsehood," see, e.g., Dulgarian, 420 Mass. at 852
(quoting Restatement (Second) of Torts 623A (1977)), or,
more particularly, a category thereof known as "slander of
title," see, e.g., 37 Joseph Nolan & Laurie Sartorio,
Massachusetts Practice--Tort Law 132-33 (1989) (citing
Restatement (Second) of Torts, supra, 624); Fischer v. Bar
Harbor Banking and Trust Co., 857 F.2d 4, 7-8 (1st Cir.
1988); Erikson v. O'Brien, 362 Mass. 876 (1972). Again,
however, because the copyright to the textbook is held by the
Adams corporation (rather than by plaintiffs personally), any
such claim would belong to the corporation. Moreover,
plaintiffs have made no allegation that special damages were
sustained--a necessary element of the offense. See, e.g.,
Sharratt v. Housing Innovations, Inc., 365 Mass. 141, 148
(1974); Gott v. Pulsifer, 122 Mass. 235, 238 (1877); 37 Nolan
& Sartorio, supra, 132, at 223-24.
-5-
Plaintiffs' remaining claim--for interference with
advantageous business relationships--falters for much the
same reasoning. See, e.g., Swanset Dev. Corp. v. City of
Taunton, 423 Mass. 390, 397 (1996) (listing elements of
claim). To the extent they are complaining of business
opportunities lost by the Adams corporation, they again lack
standing. The amended complaint is devoid of any description
of plaintiffs' personal business pursuits, much less of how
such pursuits may have been affected by defendant's actions.
Nor have plaintiffs made any reference to actual damages--
i.e., the "loss of advantage directly resulting from the
defendant's conduct," Elm Medical Lab., Inc. v. RKO General,
Inc., 403 Mass. 779, 787 (1989)--which is a necessary element
of such a claim, see, e.g., Sharratt, 365 Mass. at 148; 37
Nolan & Sartorio, supra, 98, at 133.
For these reasons, we conclude that the amended
complaint fails to state a claim upon which relief can be
granted. Plaintiffs' motion to strike transcripts comes too
late and is therefore denied. Defendant's motion to strike
appendix is denied as moot.
Affirmed.
-6-