Andresen v. Diorio

United States Court of Appeals
For the First Circuit

No. 02-1758
No. 02-2279
No. 02-2280

BRIAN ANDRESEN and DIANE ANDRESEN,
Plaintiffs, Appellants,

v.

DR. JOHN DIORIO, SHAW'S SUPERMARKETS, INC.,
and J SAINSBURY, PLC,
Defendants, Appellees.
__________

BROCKTON HOSPITAL,
Defendant.
____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]

Before
Boudin, Chief Judge,
Selya, Circuit Judge,
and Siler,* Senior Circuit Judge.

Malcolm J. Barach for appellants.
Josiah M. Black with whom Kenneth M. Bello and Mintz, Levin,
Cohn, Ferris, Glovsky and Popeo, P.C. were on brief for appellees
Shaw's Supermarkets, Inc. and J Sainsbury, PLC.
James S. Hamrock, Jr. with whom Hamrock, Tocci & Cass was on
brief for appellee Dr. John Diorio.

November 12, 2003

*
Of the Sixth Circuit, sitting by designation.
 BOUDIN, Chief Judge. Brian Andresen, joined by his wife,

appeals from the district court's dismissal of his lawsuit against

his former employer (Shaw's Supermarkets, Inc.), its British parent

company (J Sainsbury PLC) and a physician (Dr. John Diorio).

Because the case was disposed of on motions to dismiss, we accept

for purposes of judicial review the factual allegations of the

complaint, Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999), cert.

denied, 528 U.S. 1062 (1999), which are briefly as follows.

Prior to the termination of his employment Andresen

worked at Shaw's at its store in East Bridgewater, Massachusetts.

Shaw's was aware that Andresen suffered from depression. During his

night shift on January 20-21, 2000, Andresen had a conversation with

a co-worker "about guns, revenge, life and politics"; Andresen so

describes the subject in his complaint without disclosing its

substance beyond saying that the co-worker "distorted" the

conversation in describing it to Shaw's management.

Shaw's immediately suspended Andresen for three days,

consulted with Dr. Diorio, and contacted the Brockton,

Massachusetts, police. Summoned on January 24, 2000, to meet with

Shaw's officials and union representatives, Andresen was told that

Shaw's was terminating him pursuant to its "zero-tolerance" policy

as to workplace violence. When Andresen left the building with his

final paycheck, two Brockton police officers alerted by Shaw's were

waiting for him.

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 The officers told Andresen that he had to go to the

hospital in Brockton for an evaluation, adding (falsely, according

to Andresen) that they had a "pink slip," apparently an order or

certificate for involuntary commitment. Andresen was held in

isolation in the hospital for three days and then released after

the hospital concluded that he was not delusional or a danger to

himself or others. According to Andresen, Dr. Diorio furnished to

Shaw's confidential and inaccurate medical information about

Andresen before he was terminated. Further, Andresen alleged that

Shaw's personnel later described Andresen as unstable or insane.

Andresen, together with his wife who claimed loss of

consortium, brought suit in federal court against Shaw's, J

Sainsbury and Dr. Diorio; the hospital was also sued but is not a

party to these appeals. The complaint included a section 1983

claim, 42 U.S.C. § 1983 (2000), premised on an alleged Fourth

Amendment violation, and state claims under Massachusetts law for

violation of civil rights, invasion of privacy, intentional and

negligent infliction of emotional distress, negligence, and

defamation.

In due course, the district court dismissed all claims

against J Sainsbury for lack of personal jurisdiction. Fed. R.

Civ. P. 12(b)(2). It dismissed the claims against Shaw's for

failure to state a claim, id. 12(b)(6), and entered judgment on the

pleadings for Dr. Diorio. Id. 12(c). The district court's

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reasoning, set out in several orders, is summarized below where

relevant to the issues that Andresen now raises on appeal. Our

review is de novo. Rogan, 175 F.3d at 77; Int'l Paper Co. v. Town

of Jay, 928 F.2d 480, 482 (1st Cir. 1991).

We begin with the dismissal of the claims against J

Sainsbury. In moving to dismiss, the parent company filed an

affidavit averring that it is based in London; has no office or

place of business in Massachusetts; owns no property there; has no

bank account, telephone listing or mailing address there; does not

sell goods or provide services in Massachusetts; is not registered

with the Massachusetts Secretary of State and has no agent to

receive process there. Its only connection with Massachusetts,

said the affidavit, is that it owns Shaw's.

Once J Sainsbury contested personal jurisdiction, the

burden fell upon Andresen to proffer evidence showing that the

court did have jurisdiction. United Elec. Radio & Mach. Workers v.

163 Pleasant St. Corp., 987 F.2d 39, 44-45 (1st Cir. 1993)("United

Elec. II"). This would require Andresen to show that J Sainsbury

was present in Massachusetts (the traditional basis for

jurisdiction) or had such connections with the state or with the

events within the state pertinent to the claim as to permit the

constitutional exercise of jurisdiction under a state long arm

statute. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286,

291-92 (1980).

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 An out-of-state parent's controlling stock interest in a

Massachusetts corporation does not alone create jurisdiction over

the parent. United Elec., Radio & Mach. Workers v. 163 Pleasant St.

Corp., 960 F.2d 1080, 1087 (1st Cir. 1992)("United Elec. I").

Similarly, Andresen's claim that the parent has "overall financial

and policy control" over its subsidiary is not enough. Such control

is inherent in ownership and, if overall control were sufficient,

every parent would be present wherever a wholly owned subsidiary was

present in a state. For this purpose, a separately managed company

is a separate entity.

Andresen might have offered to show that the parent's

control in this instance was so pervasive and detailed as to invoke

the sham or alter ego labels. United Elec. I, 960 F.2d at 1091.

Instead, in response to J Sainsbury's motion and affidavit, Andresen

offered only a few news articles. If considered at all, the

articles show only that Shaw's had employed an interim president who

formerly worked for J Sainsbury and that the parent was generally

aware of its subsidiary's business plans. Thus, the district

court's dismissal of the claims against J Sainsbury was correct and

the balance of our discussion concerns the claims against Shaw's and

Dr. Diorio.

Starting with the only federal claim asserted in the

complaint (there are two pertinent counts but effectively one

claim), Andresen charged that the defendants violated his Fourth

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Amendment right against unlawful seizure and so are liable under

section 1983. 42 U.S.C. § 1983 (2000). The Fourth Amendment,

through the Fourteenth Amendment, does protect individuals against

unlawful seizure by the state, and the section 1983 remedy is

available against state actors or others acting under color of state

law. United States v. Price, 383 U.S. 787, 794 n.7 (1966); Yeo v.

Town of Lexington, 131 F.3d 241, 249 n.3 (1st Cir. 1997) (en banc),

cert. denied, 524 U.S. 904 (1998).

The district court dismissed the Fourth Amendment claim

because neither of the defendants fell into either category. On

appeal, Andresen's main brief asserts that the seizure of Andresen

"involved state actors, namely, the police officers . . . ." When

the answering briefs rejoined that the defendants were not the

police officers, Andresen's reply brief said that "the totality of

the circumstances" reveals an "intertwining" and a "conspiratorial

scheme" involving the private defendants and the state actors. This

argument, even if adequate, would be forfeit because it is presented

for the first time in the reply brief. Rivera-Muriente v.

Agosto-Alicea, 959 F.2d 349, 354 (1st Cir. 1992).

In any event, the very limited elaboration of the argument

in the reply brief offers only these pertinent factual claims: that

Dr. Diorio provided confidential medical information to Shaw's; that

Shaw's advised the police of what it thought Andresen had said to

his co-worker and what Dr. Diorio had told Shaw's; and that the

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police took Andresen to the hospital, perhaps claiming inaccurately

that they had commitment papers. Yet it is settled that the fact

that private parties give the police information on which official

action is then taken does not by itself convert the private parties

into state actors. Roche v. John Hancock Mut. Life Ins. Co., 81

F.3d 249, 254 & n.2 (1st Cir. 1996).

If the information given to the police were culpably false

or in breach of obligations under state law, state claims might

exist against the private parties, subject always to the common

privilege of reporting to the authorities.1 But if the causal

connection to a seizure were enough, every party who reported a

crime that prompted an arrest would be a state actor. The limited

case law on "intertwining" requires a relationship far closer than

merely furnishing the information--accurate or not--on which the

police base their own judgment and action.

Possibly Andresen believes that Dr. Diorio himself

authorized the involuntary, emergency admission of Andresen to the

hospital, a role permitted to private physicians under Massachusetts

law. Mass. Gen. Laws. ch. 123, § 12 (2000). This is not clearly

alleged in the complaint, but even if it were the outcome would be

the same. This court has already held that a doctor in such a

1
The privilege under state law covers reports that are made to
the police without actual malice or recklessness. Hutchinson v.
New England Tel. & Tel. Co., 214 N.E.2d 57, 59 (Mass. 1966).

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situation is not thereby a state actor. Rockwell v. Cape Cod Hosp.,

26 F.3d 254, 257-60 (1st Cir. 1994); accord Harvey v. Harvey, 949

F.2d 1127, 1130-32 (11th Cir. 1992); Spencer v. Lee, 864 F.2d 1376-

77 (7th Cir. 1989), cert. denied, 494 U.S. 1016 (1990).

Having rejected on the papers the federal claim that

initially created federal jurisdiction over the case, the district

court might well have refused to proceed with the state claims,

allowing Andresen to pursue them in state court. 28 U.S.C. §

1367(c)(3)(2000). Nonetheless, the district court did have

authority and discretion to address the pendent state claims, even

after dismissal of the federal claim, 28 U.S.C. § 1367(a)(2000);

Roche, 81 F.3d at 256-57, although it turns out that some of the

state-law issues are difficult and one of the claims cannot be

resolved on the pleadings at least at this stage.

The first state-law claim in the complaint--asserted

against Shaw's but not Dr. Diorio--is under the Massachusetts Civil

Rights Act, Mass. Gen. Laws. ch. 12, § 11I (2000). This statute

creates inter alia a civil claim against anyone "whether or not

acting under color of law" who interferes

by threats, intimidation or coercion . . . with
the exercise or enjoyment by any other person
. . . of rights secured by the constitution or
laws of the United States, or of rights secured
by the constitution or laws of the
commonwealth.

Mass. Gen. Laws. ch. 12, § 11H (2000). Apparently the "right"

Andresen is asserting is freedom from unlawful search and seizure.

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 The district court held that the complaint does not allege

that Shaw's coerced or threatened anyone. Of course, the police

arguably coerced Andresen incident to the arrest--the "coercion"

phrase is read broadly under state precedents, Batchelder v. Allied

Stores Corp., 473 N.E.2d 1128, 1131 (Mass. 1985); and arguably

Shaw's was a but-for cause of the arrest even if the police

exercised their discretion, Sarvis v. Boston Safe Deposit & Trust

Co., 711 N.E.2d 911, 918-919 (Mass. App. Ct. 1999). But it is far

from clear whether the statute extends to official coercion incident

to a lawful seizure which this appears to have been, given the

information available to the police.

Still, we will assume without deciding that one whose

report to the police instigated a lawful arrest might on some facts

be liable for the resulting deprivation of freedom if the

instigation was itself wrongful. Whether the state civil rights

statute extends this far may be debated, see Longval v. Comm'r of

Corr., 535 N.E.2d 588, 593 (Mass. 1989), but it certainly does not

extend further to a case of reasonable reporting. Absent serious

fault, state law privileges a bystander to supply information to the

police, see note 1, above, and the civil rights statute must be read

conformably.

Nothing in Andresen's complaint alleges that Shaw's was

at fault in providing information to the police. The complaint

suggests that the co-worker with whom Andresen spoke "about guns,

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revenge, life and politics" had "distorted" the conversation but the

complaint does not say that Shaw's did anything more than repeat to

the police what it was told by the co-worker and by Dr. Diorio.

Given the privilege for reporting to authorities, this is not by

itself wrongful conduct in violation of the civil rights statute

even if the information turns out to be mistaken.

The next state-law count in the complaint charged Shaw's

and Dr. Diorio with violating Andresen's right of privacy

"especially as it relates to medical-related information." This we

understand to be a claim that Dr. Diorio released private medical

information about Andresen in violation of a state-law duty to keep

such information confidential. Statutory and common-law privacy

claims exist under Massachusetts law, and some case law pertains

directly to an employer's right to release medical information that

it obtained in the course of the subject's employment.2

The Massachusetts case law appears more liberal than one

might expect in allowing disclosure where this is reasonably in the

employer's interest; the cases say that a balancing test is to be

employed, Webster v. Motorola, Inc., 637 N.E.2d 203, 207 (Mass.

1994); Bratt v. Int'l Bus. Machs. Corp., 467 N.E.2d 126, 136-37

2
Mass. Gen. Laws ch. 214, §1B (2000); Byrne v. Mass. Bay
Transp. Auth., 196 F. Supp. 2d 77, 84-85 (D. Mass. 2002); Webster
v. Motorola, Inc., 637 N.E.2d 203, 207 (Mass. 1994); Mulgrew v.
City of Taunton, 574 N.E.2d 389, 393 (Mass. 1991); Alberts v.
Devine, 479 N.E.2d 113, 119 n.4 (Mass. 1985); Bratt v. Int'l Bus.
Machines Corp., 467 N.E.2d 126, 136 & nn.21-22, 137 (Mass. 1984).

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(Mass. 1984), and the district court ruled that the balance in this

case justified disclosure. But key precedents on balancing (e.g.,

Byrne v. Mass. Bay Transp. Auth., 196 F. Supp. 2d 77, 84-85 (D.

Mass. 2002); Bratt, 467 N.E.2d at 137) involve company doctors or

ones examining the employee at the company's behest. Here, it is

unclear whether Dr. Diorio was employed by or owed his primary duty

to Shaw's.

If Dr. Diorio owed Andresen the ordinary duty of doctor-

patient confidentiality, then it appears to us that Dr. Diorio's

actions were likely governed by the rule that "all physicians owe

their patients a duty . . . not to disclose without the patient's

consent medical information about the patient, except to meet a

serious danger to the patient or to others." Alberts v. Devine, 479

N.E.2d 113, 119 n.4 (Mass. 1985). We are concerned now only with

Dr. Diorio's liability because Andresen has not appealed from the

dismissal of the privacy claim against Shaw's.

Even assuming he lacked any special relationship with

Shaw's, Dr. Diorio may well have been entitled under this "serious

danger" test to reveal information about his patient. Andresen

concedes that he was depressed-–in context the implication is

clinical depression-–and he concedes talking with his co-worker

"about guns, revenge, life and politics." If the police thought the

information worth acting upon, this is probably a fortiori support

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for Dr. Diorio's on-the-spot judgment to reveal the information,

even if ultimately the hospital examination proved negative.

But at this stage we have no information about Shaw's

relationship with Dr. Diorio; what Shaw's told Dr. Diorio; what Dr.

Diorio's records showed about Andresen's condition; what led Dr.

Diorio to conclude that information should be released to Shaw's or

to the police; or what information he actually released. We are

hard put to see how the serious-danger requirement can be tested

without some or all of this information, so this claim must be

remanded.

Four more related state claims against Shaw's were

properly dismissed. Two were for infliction of emotional distress-

–reckless or negligent under one count and deliberate under another-

–one was for negligent harm by a landowner to one on the landowner's

property, and the last was a loss of consortium claim based on the

same wrongs. The first and third of these seem hopeless on the

merits but, in any event, all four were dismissed as to Shaw's on

the single ground that they were precluded by the Massachusetts

Worker's Compensation Act, Mass. Gen. Laws ch. 152, § 24 (2000).3

The Worker's Compensation Act applies when a worker

"receives a personal injury arising out of and in the course of his

3
The emotional distress claims were also directed against Dr.
Diorio but in his brief on appeal Andresen does not address their
dismissal as to Dr. Diorio and so they are abandoned as to him.
Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26,
43 (1st Cir. 1998)

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employment." Mass. Gen. Laws ch. 152, § 26 (2000). Under it, "[a]n

employee shall be held to have waived his right of action at common

law or under the law of any other jurisdiction in respect to an

injury that is compensable under this chapter." Id. Massachusetts

courts construe this provision broadly, and the waiver covers

intentional and negligent infliction of emotional distress, Hinchey

v. NYNEX Corp., 144 F.3d 134, 146 n.7 (1st Cir. 1998), simple

negligence, Doe v. Purity Supreme, Inc., 664 N.E.2d 815, 818 (Mass.

1996), and loss of consortium, Sarocco v. Gen. Elec. Co., 879 F.

Supp. 156, 164 (D. Mass. 1995).

Andresen argues that the injuries occurred after his

termination and thus are not covered by the worker's compensation

regime. However, under Massachusetts case law, the statute covers

broadly any injury that arises out of the employment relationship

regardless of whether it occurs during the precise period of

employment. See Grant v. John Hancock Mut., Life Ins. Co., 183 F.

Supp. 2d 344, 366 (D. Mass. 2002); Chan v. Immunetics, Inc., No.

CIV.A. 98-0388D, 1999 WL 218490, at *4 (Mass. Super. Apr. 7, 1999).

Here, the main harm Andresen attributed to Shaw's was its

role in his seizure and hospitalization. The acts that led to this

event-–the provision of information by Shaw's to the police–-arose

from remarks Andresen made while on the job, reported by a co-

worker, and relayed to the police while Andresen was still an

employee. The seizure not only grew out of the employment but was

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closely tied to it in time and place. We agree with the district

court that waiver barred the four counts in question so far as they

rested upon the seizure and hospitalization.

Andresen also blames Shaw's for derogatory falsehoods

independent of its report to the police, but these events cannot

support the four counts in question. The original complaint

identified only one such set of alleged falsehoods--Shaw's

communications incident to Andresen's claim for unemployment

insurance benefits. The district court held such reports absolutely

privileged under the state statute, Mass. Gen. Laws ch. 151A, §46(a)

(2000), and Andresen has not appealed on this issue.

Andresen later amended the complaint to add four more

incidents of alleged defamation. These involved several incidents

of intra-plant gossip about Andresen (why Shaw's would be liable is

unclear) and one alleged negative report "by Shaw's" to a

prospective employer of Andresen after his discharge. However, the

amendment was not allowed as to the four counts in question (nor has

Andresen appealed this denial) but only as to the remaining count--

for defamation--to which we now turn.

Unlike ordinary negligence or infliction of emotional

distress, the waiver provision in the Massachusetts workmen's

compensation statute does not operate to bar defamation claims even

if they are related to employment. Foley v. Polaroid Corp., 413

N.E.2d 711, 715 (Mass. 1980). The district court dismissed the

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amended defamation claim on the ground that the allegations as to

the incidents did not meet the heightened pleading standard imposed

by Massachusetts law; these require that the complaint include "the

precise wording of at least one sentence of the alleged defamatory

statement[s] [and] the means and approximate dates of publication."

Dorn v. Astra USA, 975 F. Supp. 388, 396 (D. Mass. 1997); see also

Eyal v. Helen Broad. Corp., 583 N.E.2d 228, 231 n.7 (Mass. 1991)

(defamation a "disfavored" claim).

On appeal, Andresen does not argue that he met the

Massachusetts heightened pleading standard for defamation; instead,

he says that he was never subject to the state's pleading standard,

citing Leatherman v. Tarrant County Narcotics Intelligence &

Coordination Unit, 507 U.S. 163 (1993). That case could be

distinguished-–the claim in Leatherman was a federal claim in

federal court. See Swierkiewicz v. Sorema N. A., 534 U.S. 506, 513

(2002). But Leatherman lends general support to Andresen's position

by emphasizing the general primacy in federal court of Rules 8

(notice pleading) and 9 (heightened pleading only for fraud and

mistake), Fed. R. Civ. P. 8(a)(2), 9(b); Leatherman, 507 U.S. at

169.

In any event, under standard Erie doctrine, state pleading

requirements, so far as they are concerned with the degree of detail

to be alleged, are irrelevant in federal court even as to claims

arising under state law. Hanna v. Plumer, 380 U.S. 460, 466-74

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(1965); see also Garcia v. Hilton Hotels Int'l, Inc. 97 F. Supp.

5, 7-9 (D.P.R. 1951); 5 Wright & Miller, Federal Practice and

Procedure, § 1245 (2d ed. 1990). Other circuits have reached the

same conclusion. Muzikowski v. Paramount Pictures Corp., 322 F.3d

918, 926 (7th Cir. 2003); Croixland Props. Ltd. P'ship v. Corcoran,

174 F.3d 213, 215 n.2 (D.C. Cir. 1999), cert. denied, 528 U.S. 1021

(1999). But see 5 Wright & Miller, supra § 1245 (citing some

contrary authority).

Nevertheless, the defamation count fails because, as

already noted, no facts suggesting negligence or deliberate

falsehood by Shaw's are alleged. At common law defamation was a

rare, no-fault tort but the Supreme Court now rigidly confines

state-law defamation claims within a First Amendment framework and

may have established negligence as a minimum fault requirement even

in defamation claims by private figures brought against non-media

defendants.4

We need not decide the federal issue for ourselves because

Massachusetts, apparently assuming that such a constitutional

4
The Supreme Court imposed this negligence requirement as to
media defendants in Gertz v. Robert Welch, Inc., 418 U.S. 323, 347
(U.S. 1974). Whether the same rule applies to non-media defendants
as to statements against non-public figures in matters of private
concern is still formally unsettled, see, e.g., 2 Tribe, American
Constitutional Law § 12-3 (2d ed. 1988), although some have read
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749
(1985), as rejecting the distinction between media and non-media
defendants. E.g., Sullivan & Gunther, Constitutional Law 1038
(14th ed. 2001).

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requirement exists, has already reshaped its own defamation law to

require negligence even as in a case such as this one. Ravnikar v.

Bogojavlensky, 782 N.E.2d 508, 510-11 (Mass. 2003). Here, as

already noted, Andresen has not alleged negligence or worse on

Shaw's part in its report to the police. Nor do the facts he

alleged in the complaint support an inference of fault.

On appeal, Andresen also complains that his defamation

claim against Dr. Diorio was wrongly dismissed. He has no such

claim. Dr. Diorio was not named as a defendant in the defamation

count in the original complaint; and although Andresen sought leave

to add him to this count when Andresen amended the complaint to

allege further incidents of defamation, the district court declined

to allow Dr. Diorio to be added, and Andresen did not appeal from

this disallowance.

Accordingly, the judgment of the district court is

affirmed except as to the privacy claim in count III against Dr.

Diorio. As to this claim, the judgment of dismissal is vacated and

the claim is remanded for further proceedings, which the district

court may conclude should be conducted in state court.

It is so ordered.

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