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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