Moss v. Camp Pemigewassett, Inc.

United States Court of Appeals
For the First Circuit
_________________
No. 02-1023
STEPHEN M. MOSS,
Plaintiff, Appellant,

v.

CAMP PEMIGEWASSETT, INC.; ROBERT L. GRABILL;
ALFRED N. FAUVER; BERTHA H. FAUVER;
JONATHAN G. FAUVER; THOMAS L. REED;
BETSY M. REED; THOMAS L. REED, JR.,
Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

___________________

Before

Torruella and Lipez, Circuit Judges,
and Schwarzer,* Senior District Judge.

__________________

Robert R. Lucic on brief for appellant.
Russell F. Hilliard, with whom Lauren S. Irwin appears on
brief, for appellees.
__________________

November 26, 2002
__________________

*
The Honorable William W Schwarzer, Senior United States
District Judge for the Northern District of California, sitting by
designation.
 SCHWARZER, Senior District Judge. Stephen Moss, a former

archery counselor at Camp Pemigewasset, a summer camp for boys

(“the Camp”), claims that he was defamed by the Camp’s director,

Robert Grabill. The gravamen of the complaint is that Grabill

stated to an assistant counselor that he had received a complaint

regarding Moss through the State of New Hampshire concerning

inappropriate contact with boys at the Camp–an admittedly false

statement–as well as two complaints from Camp parents. Moss brings

this claim for defamation, along with claims for intentional

infliction of emotional distress, tortious interference with

prospective contractual rights, and civil conspiracy, against

Grabill and the Camp’s board of directors. The district court

dismissed the complaint pursuant to Federal Rule of Civil Procedure

12(b)(6).1 The question before us is whether Moss sufficiently

alleged a claim upon which relief can be granted.

FACTUAL BACKGROUND

In ruling on a motion to dismiss, a court must “accept

all well-pleaded facts of the complaint as true and draw all

reasonable inferences in favor of the plaintiff.” Aybar v.

Crispin-Reyes, 118 F.3d 10, 13 (1st Cir. 1997). Moss served as the

Camp’s Head of Archery during the summers of 1999 and 2000. In

October 2000, Moss received a letter from Grabill informing him

1
Moss did not seek leave to amend the complaint. See Fed. R.
Civ. P. 15(a).

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that his employment would not be renewed for the summer of 2001.

No reason for the decision was given, and Moss had no prior

indication of dissatisfaction with his efforts. Grabill later told

Moss that he had received three complaints against him alleging

inappropriate contact with boys at the Camp. Two of the complaints

were made by parents directly to the Camp (“the Camp complaints”);

a third complaint came “through the State of New Hampshire” (“the

State complaint”). Grabill refused to provide any detail regarding

the identity of the complainants and only disclosed some “purported

partial details” of one complaint.

Grabill later told Charles Donovan, the Camp’s Assistant

Head of Nature and Bunk Counselor, of the complaints against Moss,

stating that one came “through ‘the State of New Hampshire.’”

Grabill also told Donovan that “he was concerned something like

this would happen again and that the existence of three known

allegations automatically implied the existence of numerous other

unreported ones.” Despite Moss’s requests for specific details,

none were provided. Moss also requested his personnel file from

the Camp pursuant to New Hampshire Revised Statutes Annotated

§ 275:56I, but did not receive it or any documentation of any

complaint against him.

On April 4, 2001, Thomas L. Reed, Sr., a member of the

Camp’s board of directors, wrote to Moss that “Grabill’s statement

that he had received a complaint about Moss from ‘the State of New

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Hampshire’ was false.” Reed informed Moss that “your name has

never been mentioned to the State by Rob [Grabill], nor do we know

of any parent, camper, or anyone else involved with [Camp] Pemi who

has contacted the State in any way involving you.” Despite the

acknowledged falsity of Grabill’s statement about the state

complaint, the board of directors ratified Grabill’s decision and

refused Moss’s request for reinstatement for 2001.

This action followed. The district court had jurisdiction

under 28 U.S.C. § 1332, and we have jurisdiction under 28 U.S.C.

§ 1291.

STANDARD OF REVIEW

We review the district court’s judgment of dismissal de

novo. Wagner v. Devine, 122 F.3d 53, 55 (1st Cir. 1997). “We may

affirm a dismissal for failure to state a claim only if it clearly

appears that, on the facts alleged, the plaintiff cannot recover on

any viable theory.” Id. The district court’s determination of

whether a statement is capable of defamatory meaning is a question

of law reviewed de novo. Gray v. St. Martin’s Press, 221 F.3d 243,

250 (1st Cir. 2000), cert. denied, 531 U.S. 1075 (2001).

DISCUSSION

I. THE DEFAMATION CLAIM

Well-settled principles govern our disposition of this

appeal. The issue on a motion to dismiss is not whether the

plaintiff will ultimately prevail, but whether the plaintiff is

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entitled to offer evidence in support of his claims. Scheuer v.

Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis

v. Scherer, 468 U.S. 183 (1984). Dismissal is proper only if “it

appears beyond doubt that the plaintiff can prove no set of facts

in support of his claim which would entitle him to relief.” Conley

v. Gibson, 355 U.S. 41, 45-46 (1957); accord Cooperman v.

Individual, Inc., 171 F.3d 43, 46 (1st Cir. 1999).

Because this case arises under our diversity jurisdiction,

we look to New Hampshire's substantive law of defamation in applying

these principles. Under that law, “[t]o establish defamation, there

must be evidence that a defendant . . . publish[ed] . . . a false

and defamatory statement of fact about the plaintiff to a third

party.” Independent Mech. Contractors, Inc. v. Gordon T. Burke &

Sons, Inc., 635 A.2d 487, 492 (N.H. 1993) (citing Restatement

(Second) of Torts § 558 (1977)). Moss’s complaint alleges two

statements published by Grabill to Donovan are defamatory: (1) that

Grabill “had received three complaints regarding Moss concerning

inappropriate contact with boys at the Camp, including two from

parents and one through ‘the State of New Hampshire,’” and (2) that

Grabill “was concerned that something like this would happen again

and a total of three known allegations automatically implied the

existence of numerous other unreported ones.” We take up the two

statements separately in the following sections.

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 A. Grabill's Statement That Three
Complaints Had Been Made Against Moss

1. Defamatory meaning

A statement is defamatory if it “tends to lower the

plaintiff in the esteem of any substantial and respectable group of

people.” Nash v. Keene Publ’g Corp., 498 A.2d 348, 351 (N.H. 1985).

The district court held that the statement about a complaint having

come through the State of New Hampshire could not reasonably be read

to defame Moss by lowering him in the esteem of others. It reasoned

that the statement is not about Moss but about the source of the

complaint, i.e., that Moss does not charge either that Grabill said

that Moss had inappropriate contact with campers or that the State

had investigated Moss for having inappropriate contact. The court

concluded that because Grabill told Donovan of no “action or

conclusion or statement of fact by the State, other than purely

ministerial function of transmitting a complaint[,] . . . Grabill’s

reference to the ‘the State’ . . . is immaterial, and could not

reasonably be read as lowering Moss’s esteem in the eyes of others.”

This deconstruction of the complaint misses the nub of the

complaint, to wit, that Grabill falsely told Donovan he had received

complaints about Moss having inappropriate contact with boys at the

Camp. The district court was right when it found the reference to

the State to be immaterial, but its finding led it to the wrong

conclusion. Had Grabill simply--and falsely--told Donovan that he

had received a complaint through an unidentified source about Moss

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having inappropriate contact with boys at the Camp at which he

served as a counselor, there could be no doubt that such a statement

would lower him in the esteem of others.

In context, the phrase “inappropriate contact with boys

at the Camp” can be reasonably understood to mean either sexual or

physical misconduct. Because “inappropriate contact” is a common

euphemism for child abuse, the statement is capable of defamatory

meaning. It implies that Moss is accused of criminal conduct

involving moral turpitude, which some jurisdictions treat as slander

per se without need of proof of special damages. See, e.g., Calvert

v. Corthell, 599 A.2d 69, 72 (Me. 1991) (explaining that, if proven,

false statements imputing accusations of physical and sexual child

abuse are defamatory per se); Huxen v. Villasenor, 798 So. 2d 209,

214 (La. App. 2001) (finding defamation per se where a parent

falsely accused a teacher of physically abusing a student); see also

Restatement (Second) of Torts § 571 (1977).

Moreover, the statement tends to disparage Moss in a way

that is peculiarly harmful to his professional reputation. Moss

alleges that he has worked for thirty years building his reputation

as an archery coach and took great pride in treating his pupils

professionally. He argues that the stigma of a child molestation

accusation would severely impact his ability to work as an archery

coach. It is axiomatic that an allegation of child abuse is

peculiarly harmful to a professional working with children.

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Statements that harm one’s professional reputation also constitute

slander per se. Ramirez v. Rogers, 540 A.2d 475, 478 (Me. 1988)

(finding statements actionable per se where gymnastics school owner

sued competitor for making false statements that plaintiff was under

investigation for child abuse incidents at her school because the

utterances adversely reflected on her business reputation); see

also Restatement (Second) of Torts § 573 (1977); Disend v.

Meadowbrook Sch., 604 N.E.2d 54, 55 (Mass. App. Ct. 1992) (reversing

dismissal of a teacher’s defamation action where the plaintiff

claimed that an accusation of professional misconduct harmed her

ability to work as a teacher). As it involves a similar factual and

procedural context, the Disend court’s analysis is instructive:

As to the letter of the headmaster
complained of, it does not require a fevered
imagination to think that an “incident” brought
to the attention of the school trustees, the
“specifics” of which warranted a teacher’s
immediate dismissal . . . must have involved
misconduct of an egregious sort. . . . Adding
to the impression of grievous professional--or
worse--misconduct is the sentence in the same
letter that “Mrs. Disend was inappropriate in
the way she dealt with the children.” As
contextual facts are developed, it may turn out
that the suggestive words and phrases are
innocent, but at the pleading stage the
allegations of the plaintiff are to be read
indulgently in the sense that the complaint may
stand unless, on the face of the complaint, it
is unmistakable that the plaintiff can prove no
facts in support of a tenable legal claim.

Id. Likewise, at this point, we must draw all reasonable inferences

in favor of Moss in considering Grabill’s statement of

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“inappropriate contact.”

We must read words alleged to be defamatory in the context

of the entire publication. Duchesnaye v. Munro Enters., Inc., 480

A.2d 123, 125 (N.H. 1984). The severity of Grabill's statement to

Donovan was underlined by Grabill’s further statement that “he was

concerned something like this would happen again and that the

existence of three known allegations automatically implied the

existence of numerous other unreported ones.”

Accordingly, we think that “[persons] of ordinary

intelligence and common understanding could reasonably have

understood the words as implying . . . wrongdoing” by Moss, and are

thus capable of defamatory meaning. Thomson v. Cash, 402 A.2d 651,

653 (N.H. 1979). Moss is entitled to prove “his allegation that the

defamatory meaning was in fact the one ‘intended and understood.’”

Id.

2. Substantial truth

The district court went on to hold that the statement

about the complaint through the State was also substantially true.

“A statement is not actionable [defamation] if it is substantially

true.” Simpkins v. Snow, 661 A.2d 772, 776 (N.H. 1995). The

district court interpreted the complaint as not disputing that two

other complaints had been made against Moss. On that premise, it

held the statement about the State complaint was not actionable:

[G]iven that Moss does not challenge the truth
of Grabill’s statement about the two direct

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 complaints, the number of complaints against
Moss--two versus three--is also an
insubstantial detail. Even under the facts as
alleged by Moss, multiple complaints of
inappropriate contact have been made against
him. Thus, Grabill’s statement, which does
little more than imply a third similar
complaint, was substantially true--in the sense
that complaints about inappropriate contact had
indeed been made against Moss.

This is the same premise that led the court to conclude that with

Moss having acknowledged that two similar complaints had been made

to the Camp, “the implication that a third complaint had been made

to the State may not reasonably be read as further lowering the

esteem in which Moss would be held.”

We find the court’s reasoning that a defamatory statement

is an “insubstantial detail” if made in the context of other

similar, unchallenged statements to be unpersuasive. In any event,

the court’s premise that “Moss does not challenge the truth of

Grabill’s statement” about the Camp complaints impermissibly draws

an inference adverse to the pleader. That Grabill’s statement about

the State complaint was false is established on the face of the

pleadings. In context, that Moss did not specifically allege that

the statement about the Camp complaints was also false does not

compel the inference that he failed to challenge it. To the

contrary, Moss alleges that because he lacked the underlying

information about the Camp complaints, he pressed Grabill about the

specific details of the complaints and unsuccessfully requested his

personnel file pursuant to New Hampshire law. Grabill refused to

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provide details “except some purported partial details of one of

them,” and as of the filing of the complaint, Moss had not received

any documentation of any complaint against him. Thus, Grabill

denied Moss access to the evidentiary support that would have

enabled him to determine whether the Camp complaints had been made.

Cf. Fed. R. Civ. P. 11((b)(3). Given that Grabill’s statement about

the State complaint was false, the allegation that he withheld

information about the Camp complaints raises a reasonable inference

that Grabill’s statement about the Camp complaints also was false.

Moss’s complaint, moreover, is directed at Grabill’s entire

“statement” to Donovan that he had received three complaints, not

only the State complaint, alleging that it caused him physical and

emotional injury. Thus, the district court’s conclusion that “the

only reasonable inference [is] that . . . these two complaints were

in fact made” is unsupportable. Because the complaint presents a

set of facts that, if proven true, would justify recovery, the

judgment of dismissal must be reversed. Cooperman, 171 F.3d at 46.

B. Grabill's Statement Regarding the
Existence of Other Unreported
Allegations

The district court held that the second allegedly

defamatory statement, that Grabill told Donovan that “the existence

of three known allegations automatically implies the existence of

other unreported ones,” is not actionable because it is a

nonactionable statement of opinion. We agree.

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 “[A] statement of opinion is not actionable unless it may

reasonably be understood to imply the existence of defamatory fact

as the basis for the opinion.” Nash, 498 A.2d at 351 (internal

citations omitted). See Gray v. St. Martin's Press, Inc., 221 F.3d

243, 248 (1st Cir. 2000) (stating that a statement is not 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). As

the district court explained, Grabill did not express an opinion

that implied his knowledge of additional facts but merely offered

a general theory–his belief–that in a case such as this, the number

of known allegations automatically implied the existence of some

larger number of actual incidents. Grabill’s statement is merely

his own speculation. No person could reasonably understand that

statement to imply that Grabill had actual knowledge of additional

incidents or complaints. Viewing the allegation in the light most

favorable to Moss, we agree with the district court that the

statement is an opinion and not actionable.

II. THE CLAIM FOR INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS

Moss also alleges a claim for intentional infliction of

emotional distress. Emotional distress resulting from harm to

reputation and good name caused by the publication of defamatory

statements cannot give rise to a separate action for intentional

infliction of emotional distress. Provencher v. CVS Pharmacy, 145

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F.3d 5, 12 (1st Cir. 1998) (“New Hampshire law does not recognize

a cause of action for wrongful infliction of emotional distress

where the factual predicate sounds in defamation.”). Instead, mental

and emotional harm resulting from damage to reputation may be

compensated in the form of damages for emotional distress in the

defamation action. De Meo v. Goodall, 640 F. Supp. 1115, 1116

(D. N.H. 1986). Therefore, the intentional infliction of emotional

distress claim can only encompass emotional distress caused by

Grabill's statement to Moss that is distinct from the emotional

distress caused by the damage to Moss's reputation.

New Hampshire law looks to section 46 of the Restatement

(Second) of Torts to define the tort of intentional infliction of

emotional distress. Morancy v. Morancy, 593 A.2d 1158, 1159 (N.H.

1991). As explicated in the Restatement:

Liability has been found only where the conduct
has been so outrageous in character, and so
extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a
civilized community. Generally, the case is
one in which the recitation of the facts to an
average member of the community would arouse
his resentment against the actor, and lead him
to exclaim, “Outrageous!”

Restatement (Second) of Torts § 46, cmt. d (1977); accord Konefal

v. Hollis/Brookline Coop. Sch. Dist., 723 A.2d 30, 33 (N.H.

1998)(“One who by extreme and outrageous conduct intentionally

causes severe emotional distress to another is subject to liability

for that emotional distress.”); Godfrey v. Perkin-Elmer Corp., 794

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F. Supp. 1179, 1189 (D. N.H. 1992) (“This standard plainly

anticipates outrages far beyond the indignities and insensitivity

that too often taint our daily lives.”(internal quotations

omitted)).

False allegations of the nature of those allegedly made

by Grabill may well be outrageous in light of the social stigma

attached to such allegations, and the effect the allegations would

have on the career of someone who works with children. However,

these sources of emotional distress relate to harm caused to Moss's

professional and social reputation due to public broadcast of the

allegations, and are, therefore, linked to the action in defamation

rather than intentional infliction of emotional distress. Moreover,

as Judge McAuliffe noted, Grabill's statements to Moss were made in

a conversation initiated by Moss and in response to Moss's demand

for justification for the Camp's decision not to renew his

employment contract. Furthermore, Moss does not allege that Grabill

was acting in an aggressive or threatening manner. The standard for

making a claim of intentional infliction of emotional distress is

very high. “Recovery on such a claim requires more than that the

defendant has acted with an intent which is tortious or even

criminal, or that he has intended to inflict emotional distress, or

even that his conduct has been characterized by malice or a degree

of aggravation which would entitle the plaintiff to punitive damages

for another tort.” Restatement (Second) of Torts § 46, cmt. d.

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Accord Doyle v. Hasbro, Inc., 103 F.3d 186, 195 (1st Cir. 1996).

While Grabill’s statement can certainly be considered offensive, it

is not “so outrageous in character, and so extreme in degree, as to

go beyond all possible bounds of decency, and to be regarded as

atrocious and utterly intolerable in a civilized community.”

Restatement (Second) of Torts § 46, cmt. d (1977).

Accordingly, we conclude that the district court properly

dismissed this claim.

III. THE CLAIM FOR TORTIOUS INTERFERENCE WITH
PROSPECTIVE CONTRACTUAL RIGHTS

The district court held that Moss failed to state a claim

for tortious interference with prospective contractual rights. To

successfully state a claim for tortious interference with

prospective contractual rights, a plaintiff must allege that the

defendant “