Shay v. Walters

United States Court of Appeals
For the First Circuit

No. 12-1494

NANCY SHAY,

Plaintiff, Appellant,

v.

BARBARA WALTERS,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Torruella, Selya and Howard,
Circuit Judges.

Mark Ellis O'Brien on brief for appellant.
Orin Snyder, Gibson, Dunn & Crutcher LLP, William F. Benson,
and Sugarman, Rogers, Barshak & Cohen, P.C. on brief for appellee.

December 18, 2012
 SELYA, Circuit Judge. This is a tort case that pits a

Massachusetts woman who claims to have been wronged against a

nationally known celebrity. Although the allegations of the

plaintiff's complaint paint a poignant picture, we conclude — as

did the district court — that the defendant is entitled to judgment

on the pleadings. Accordingly, we affirm.

I. BACKGROUND

Inasmuch as the district court decided this case by

entering judgment on the pleadings, see Fed. R. Civ. P. 12(c), we

rehearse the complaint's well-pleaded facts as if they were true,

view those facts in the light most hospitable to the party opposing

the motion (here, the plaintiff), and draw all reasonable

inferences in that party's favor. R.G. Fin. Corp. v. Vergara-

Nuñez, 446 F.3d 178, 182 (1st Cir. 2006).

In the early 1980s, plaintiff-appellant Nancy Shay

attended Wykeham Rise, a boarding school located in Washington,

Connecticut. At the time (and presently), defendant-appellee

Barbara Walters was a world-famous television personality and

journalist. Her daughter Jackie attended Wykeham Rise. Jackie and

the plaintiff cultivated a friendship. In 1983, the two young

women engaged in conduct that resulted in the school suspending

both of them. The plaintiff alleges that the reason for this

disciplinary action was that the two women were found arm-in-arm in

the plaintiff's bed.

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 In the aftermath of her suspension, the plaintiff alleges

that she and the defendant spoke by telephone. As she recounts it,

the defendant told her, "Don't say anything about this to anybody.

You'll ruin your name. Never mind, you'll ruin my name and my

daughter's name."

The school expelled the plaintiff, but not Jackie, later

that year. Following her expulsion, the plaintiff went into a

"deep depression," which led to substance abuse and emotional

instability. She professes to have "generally lost her way" as her

"life became a revolving door of rehabilitation centers, jails, and

unhappiness."

We fast-forward to the year 2008. At that time, the

defendant published a memoir entitled Audition, which chronicled

her life and career. Chapter 38 deals with the defendant's

relationship with her daughter and focuses specifically on

difficulties encountered during the latter's childhood. In this

chapter, the defendant writes about her daughter's scholastic

problems. Her manuscript includes a reference to a friend of her

daughter's at Wykeham Rise named "Nancy" "whom the school kicked

out midterm for bad behavior." It explains that "[Nancy] and

Jackie had been found in the nearby town, high on God-knows-what."

The defendant adds that, in the wake of the suspensions, she "told

the school that Jackie was never to be allowed to visit [Nancy]

again."

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 When the plaintiff learned of these statements, she was

living in Massachusetts. She filed suit for money damages against

the defendant in a Massachusetts state court. The defendant, a

citizen of New York, removed the case to the United States District

Court for the District of Massachusetts based on diversity of

citizenship and the existence of a controversy in the requisite

amount. See 28 U.S.C. §§ 1332, 1441.

The plaintiff's complaint contains three statements of

claim. Count 1 alleges that the defendant tortiously interfered

with the plaintiff's contract with Wykeham Rise by inducing the

school to expel her. Count 2 alleges that the statements in

Audition about her are defamatory. Count 3 asserts a claim for

negligent infliction of emotional distress premised on the same

statements.

The defendant answered the complaint. She then moved for

judgment on the pleadings, see Fed. R. Civ. P. 12(c), contending

that Count 1 was time-barred and that the remaining counts failed

as a matter of law. The district court granted the motion. This

timely appeal ensued.

II. ANALYSIS

The grant or denial of a motion for judgment on the

pleadings engenders de novo review. Grajales v. P.R. Ports Auth.,

682 F.3d 40, 44 (1st Cir. 2012). "In conducting this review, we

accept the truth of all well-pleaded facts and draw all reasonable

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inferences therefrom in the pleader's favor." Id. Using this

yardstick, we take the measure of the plaintiff's three claims.

Before proceeding further, we consider choice of law. As

a federal court sitting in diversity jurisdiction, we are

constrained to apply state substantive law. Erie R.R. Co. v.

Tompkins, 304 U.S. 64, 78 (1938). Here, however, events relevant

to the plaintiff's claims occurred in Connecticut, Massachusetts,

and perhaps elsewhere (e.g., where Audition was published).

Ordinarily, these variations would create some doubt as to which

state's law applies. But the parties' briefs assume, albeit sub

silentio, that Massachusetts law controls. "Where[] the parties

have agreed about what law governs, a federal court sitting in

diversity is free, if it chooses, to forgo independent [choice of

law] analysis and accept the parties' agreement." Borden v. Paul

Revere Life Ins. Co., 935 F.2d 370, 375 (1st Cir. 1991); accord

Jones v. Secord, 684 F.3d 1, 7 (1st Cir. 2012). We follow that

praxis here and proceed on the basis that the governing state law

is the law of Massachusetts.

With this preface in place, we examine the three causes

of action asserted by the plaintiff.

A. Tortious Interference.

In Massachusetts, there is a general three-year statute

of limitations for tort actions. Mass. Gen. Laws ch. 260, § 2A.

"[T]he statute of limitations starts to run when an event or events

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have occurred that were reasonably likely to put the plaintiff on

notice that someone may have caused her injury." Bowen v. Eli

Lilly & Co., 557 N.E.2d 739, 741 (Mass. 1990). The doctrine of

equitable tolling may postpone this date "if a plaintiff exercising

reasonable diligence could not have discovered information

essential to the suit." Bernier v. Upjohn Co., 144 F.3d 178, 180

(1st Cir. 1998) (citing Protective Life Ins. Co. v. Sullivan, 682

N.E.2d 624, 635 (Mass. 1997)).

Wykeham Rise expelled the plaintiff in 1983. She did not

file this suit until April of 2011 (more than twenty-seven years

later). It is, therefore, obvious that, absent tolling, the suit

is time-barred.

To bridge this temporal gap, the plaintiff labors to

invoke equitable tolling. She argues that she had no notice of her

injury until the 2008 publication of Audition, which she says made

clear for the first time the defendant's motivations and potential

involvement in her expulsion. The plaintiff insists that she was

prevented from learning the truth earlier because of her alcoholism

and the defendant's importuning to remain silent about what

happened at Wykeham Rise.

This argument is unpersuasive. The plaintiff's complaint

acknowledges that shortly after her expulsion from Wykeham Rise, a

faculty member told her that her rights had been violated and

offered her the services of an attorney who specialized in civil

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rights. The plaintiff knew of her injury (that is, her expulsion),

and the faculty member's offer put the plaintiff squarely "on

notice that someone may have caused her injury." Bowen, 557 N.E.2d

at 741. A reasonably diligent investigation would, at that point,

have led to the discovery of information (to the extent that it

exists) regarding the defendant's involvement in the expulsion.

The mitigating circumstances lamented by the plaintiff,

while regrettable, do not relieve her from the burden of conducting

a reasonable investigation. The weight of authority teaches that

alcoholism is generally not a basis for equitable tolling. See 51

Am. Jur. 2d Limitations of Actions §§ 195, 209 (2011) (collecting

cases); see also Andrews v. Arkwright Mut. Ins. Co., 673 N.E.2d 40,

41 (Mass. 1996) (holding that equitable tolling is available only

when plaintiff is "excusably ignorant" or when defendant

"affirmatively misled" plaintiff). Indeed, the plaintiff offers no

authority for the proposition that alcoholism, without more,

justifies tolling — and she does not embellish this claim in any

meaningful way. By the same token, the defendant's plea for

silence, if made, was simply that: a plea. It had no legal force

and, in all events, it cannot be said to have prevented the

plaintiff from discovering information "essential to the suit."

Bernier, 144 F.3d at 180. If anything, the plea might have given

the plaintiff reason to suspect that the defendant was involved in

her expulsion from Wykeham Rise.

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 Statutes of limitations are critically important in the

due administration of justice. They should not lightly be

discarded. In this case, we discern no error in the district

court's determination that the statute of limitations must be

honored and that, perforce, the plaintiff's tortious interference

claim is time-barred.

B. Defamation.

We turn next to the plaintiff's defamation claim, which

the district court rejected because the complaint did not allege

the essential elements of such a claim.

To establish a defamation claim under Massachusetts law,

four elements are required: (1) that "[t]he defendant made a

statement, concerning the plaintiff, to a third party"; (2) that

the statement was defamatory such that it "could damage the

plaintiff's reputation in the community"; (3) that "[t]he defendant

was at fault in making the statement"; and (4) that "[t]he

statement either caused the plaintiff economic loss . . . or is

actionable without proof of economic loss." Ravnikar v.

Bogojavlensky, 782 N.E.2d 508, 510-11 (Mass. 2003). In the case at

hand, the district court found the second and third elements

wanting.

The question of whether a statement is reasonably

susceptible of a defamatory meaning is a threshold question for the

court. See Amrak Prods., Inc. v. Morton, 410 F.3d 69, 72 (1st Cir.

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2005). "A communication is susceptible to defamatory meaning if it

'would tend to hold the plaintiff up to scorn, hatred, ridicule or

contempt, in the minds of any considerable and respectable segment

in the community.'" Id. (quoting Phelan v. May Dep't Stores Co.,

819 N.E.2d 550, 553 (Mass. 2004)). When making such a

determination, the court must analyze the statement in light of the

totality of the circumstances, including the "entire context of the

publication." Id. at 73.

The district court concluded, as a matter of law, that

the challenged statements were not defamatory. It reached this

conclusion on the basis that the tiny group of people who might

recognize the plaintiff as the "Nancy" in Audition would also know

the "truth" of the events that took place.

The plaintiff's complaint lends credence to this

assessment. In it, the plaintiff acknowledges that the only

individuals who could have associated her with the oblique

reference in the book — her surname was never mentioned — were

"former Wykeham Rise students" who happened to be there at the

time. Relatedly, the plaintiff acknowledges that these individuals

know the truth surrounding her expulsion. Accordingly, the

statements in Audition could not have held the plaintiff up to

opprobrium in the minds of this limited group because, as she

asserts, these same individuals were "well aware of the injustice

of her expulsion."

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 The plaintiff tries to blunt the force of this reasoning

by positing that a more expansive segment of the population may

have learned her identity thanks to investigative journalists who,

after she sued the defendant, republished more detailed versions of

the story in newspapers, tabloids, and blogs. But there is a rub:

the filing of the suit was the plaintiff's doing and, in all

events, the republished statements were not made by the defendant.

The republished statements, therefore, fail to satisfy the first

element of the plaintiff's defamation claim. See Meeropol v.

Nizer, 560 F.2d 1061, 1068 (2d Cir. 1977).

As the district court noted, the defamation claim is

equally vulnerable on another ground. Where, as here, a motion for

judgment on the pleadings "is employed as a vehicle to test the

plausibility of a complaint, it must be evaluated as if it were a

motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)."

Grajales, 682 F.3d at 44. Although it is not necessary for the

complaint to plead "detailed factual allegations," Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007), it "must contain sufficient

factual matter, accepted as true, to state a claim to relief that

is plausible on its face," Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal quotation marks omitted). "A plaintiff is not

entitled to 'proceed perforce' by virtue of allegations that merely

parrot the elements of the cause of action." Ocasio-Hernández v.

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Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011) (quoting Iqbal, 556

U.S. at 680).

Plausibility determinations require a court to engage in

a two-step pavane. See Grajales, 682 F.3d at 45. To begin, the

court must strip away and discard the complaint's conclusory legal

allegations. Id. Next, the court must determine whether the

remaining factual content permits "the reasonable inference that

the defendant is liable for the misconduct alleged." Id. (internal

quotation marks omitted).

In this case, the plausibility standard operates in

conjunction with the substantive law of defamation. As a matter of

constitutional bedrock, a plaintiff must show fault in order to

impose liability upon a defendant for defamation. Gertz v. Robert

Welch, Inc., 418 U.S. 323, 346-47 (1974). Short of imposing

liability without fault, states may define appropriate standards

regarding defamation of private individuals (such as the

plaintiff). See id. at 347. Massachusetts has established such a

framework. If a statement is true, the plaintiff must prove that

the defendant acted with "actual malice" to recover. Mass. Gen.

Laws ch. 231, § 92; White v. Blue Cross & Blue Shield of Mass.,

Inc., 809 N.E.2d 1034, 1036 n.4 (Mass. 2004). If, however, a

statement is false, the plaintiff still must show that the

defendant acted negligently. Stone v. Essex Cnty. Newspapers,

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Inc., 330 N.E.2d 161, 168 (Mass. 1975). Either way, some showing

of fault is essential.

Against this backdrop, we examine the statements at issue

here. We need not parse those statements to determine which may be

true and which may be false.1 The common denominator is that the

statements are not actionable unless the plaintiff's complaint sets

out some plausible showing of fault (i.e., either malice or

negligence).

While the plaintiff's complaint contains conclusory

allegations about "ill-will" and "actual malice," it contains no

factual assertions that in any way lend plausibility to these

conclusions. Similarly, the complaint does not contain any facts

suggesting that the defendant acted negligently in publishing the

challenged statements.2 In determining whether allegations cross

the plausibility threshold, an inquiring court need not give weight

1
At first blush, it appears that some of the challenged
statements are arguably true (e.g., that "Nancy" was "kicked out"
of Wykeham Rise for "bad behavior"). Others may very well be false
(e.g., that the plaintiff and Jackie were "found in a nearby town,
high on God-knows-what").
2
In her appellate brief — which in any event is not to be
considered as a source of new facts for the purpose of judging the
propriety of a grant of judgment on the pleadings, see NEPSK, Inc.
v. Town of Houlton, 283 F.3d 1, 8 (1st Cir. 2002); Int'l Paper Co.
v. Town of Jay, 928 F.2d 480, 482 (1st Cir. 1991) — the plaintiff
does state globally that the defendant owed a duty of care to her
readers and was negligent in publishing the statements. Here, too,
she fails to identify any supporting facts.

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to bare conclusions, unembellished by pertinent facts. See

Grajales, 682 F.3d at 45. So it is here.

To sum up, the plaintiff's defamation claim succumbs on

two grounds. First, the challenged statements are, as a matter of

law, not defamatory. Second, the complaint contains no plausible

allegations of fault. Consequently, the district court did not err

in granting the defendant's motion for judgment on the pleadings on

the defamation count.

C. Emotional Distress.

The plaintiff's final claim is for negligent infliction

of emotional distress. The district court jettisoned this claim as

derivative of the failed defamation claim.

The Supreme Court has made it pellucid that a failed

defamation claim cannot be recycled as a tort claim for negligent

or intentional infliction of emotional distress. See Hustler

Magazine, Inc. v. Falwell, 485 U.S. 46, 56-57 (1988). Such an

outcome is required by the Constitution. See id. at 56. In

previous cases, we have acted upon this principle. See, e.g.,

Amrak Prods., 410 F.3d at 73-74.

These authorities are dispositive here. The plaintiff's

claim for negligent infliction of emotional distress grows out of

the same nucleus of operative facts that spawn her defamation

claim. The two claims are premised upon the same conduct and harm.

They seek the same relief. It follows inexorably that the failure

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of the plaintiff's defamation claim pretermits continued

prosecution of her claim for negligent infliction of emotional

distress. See Hustler Magazine, 485 U.S. at 56-57; Amrak Prods.,

410 F.3d at 73-74. The district court's entry of judgment on the

pleadings was, therefore, unimpugnable.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we uphold the judgment of the district court.

Affirmed.

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