Desmond v. NYNEX Corporation

October 20, 1994
[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1230

JOHN F. DESMOND,

Plaintiff, Appellant,

v.

NYNEX CORPORATION,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Torruella, Chief Judge,

Selya and Cyr, Circuit Judges.

John F. Desmond on brief pro se.

Richard P. Owens, on brief for appellee.

Per Curiam. Pro se plaintiff-appellant John

Desmond filed suit on March 2, 1992 in the District Court for

the Southern District of New York against defendant-appellee

NYNEX Corporation. Desmond's complaint alleged that Desmond,

a Massachusetts resident, receives telephone services from

New England Telephone ("NET"), a NYNEX subsidiary. According

to the complaint, in 1991 and 1992 the Bush Administration or

"some unknown government entity" was jamming and intercepting

Desmond's phone calls and generally interfering with his

phone services. On June 10, 1991, for example, "an

electronic bullet" was sent through Desmond's phone lines,

presumably directed at Desmond. On February 24, 1992, after

Desmond's attempts to dial two telephone numbers were

unsuccessful, Desmond spoke to a repair operator to complain

about these problems. The operator allegedly "stated that

she would not register my complaint and that I should see a

`Psychiatrist.'"

Based on these factual allegations, Desmond's

complaint set forth five causes of action: (1) that NYNEX

had engaged in a conspiracy with a federal government entity

to violate Desmond's constitutional right of privacy by

intercepting his phone calls; (2) that the interference with

Desmond's phone services constituted intentional interference

with his business and other relationships, including his

attempts to litigate other matters before the courts; (3)

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that the operator's statement that Desmond should see a

psychiatrist constituted intentional infliction of emotional

distress, for which NYNEX was legally responsible under the

doctrine of respondeat superior; (4) that the operator's

statement constituted slander of Desmond, for which NYNEX was

legally responsible under the doctrine of respondeat

superior; and (5) that NYNEX had violated the Communications

Act of 1934, 47 U.S.C. 151 et seq., and certain

unspecified federal tariff regulations.

On April 21, 1992, the New York district court,

noting that a substantial part of the events alleged in the

complaint occurred in Massachusetts, transferred the case

pursuant to 28 U.S.C. 1391(a), 1406(a) to the District

Court for the District of Massachusetts. After NYNEX filed a

motion to dismiss the complaint under Fed. R. Civ. P.

12(b)(6), and Desmond responded, the district court on

February 28, 1994 granted NYNEX's motion and dismissed

Desmond's complaint "for the reasons stated in NYNEX's

Memorandum of Law in Support of Motion to Dismiss the

Complaint." Desmond appealed. We affirm.

The Merits

Desmond's complaint does not name NET as a

defendant. Indeed, since Desmond resides in Massachusetts

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and there is no dispute that NET has its principal place of

business in Massachusetts, to do so would destroy complete

diversity of citizenship in this case. The complaint

implicitly acknowledges, however -- as NYNEX insists -- that

it is NET that provides telephone services to Desmond, and it

was an NET operator who made the alleged statement to Desmond

(although in an affidavit accompanying the complaint Desmond

did state that the operator identified herself as a

"spokesperson of NYNEX"). Desmond has alleged no facts that

could justify piercing the corporate veil to make NYNEX

liable for the alleged acts of its subsidiary, NET.

Accordingly, NYNEX cannot be liable on any of the causes of

action alleged in the complaint. For this reason alone, we

would affirm the district court's dismissal.

In any event, even if Desmond had sued the proper

party-defendant, we would still affirm the district court

because none of Desmond's claims state a cause of action. He

has not stated a claim under 42 U.S.C. 1983 for invasion of

his constitutional right of privacy because he has failed to

allege facts sufficient to show that NYNEX acted under color

of state law. Desmond's vague and conclusory allegations,

utterly lacking supporting factual detail, that NYNEX

conspired with "some unknown government entity" to disrupt

his telephone services are not adequate to allege state

action. See McGillicuddy v. Clements, 746 F.2d 76, 77-78

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(1st Cir. 1984). Apart from these insufficient

allegations of conspiracy, Desmond does not adequately allege

that NYNEX did anything to violate his right of privacy under

either federal or state law (e.g., Mass. Gen. Laws c. 214,

1B). All that he alleges is that NYNEX refused to

investigate his claims that some government entity was

invading his privacy.

To establish a claim for intentional interference

with economic or business relations under Massachusetts law,

a plaintiff must show that the defendant knowingly interfered

with an advantageous relationship or knowingly induced a

breach of contract. See United Truck Leasing Corp. v.

Geltman, 406 Mass. 811, 551 N.E.2d 20 (1990). Desmond did

not allege that NYNEX knew of any advantageous or business

relationship between Desmond and anyone else, or that NYNEX

knew of Desmond's other litigation. Consequently, dismissal

of this claim was proper.

It is plain on the face of the complaint that the

telephone operator's statement that Desmond needed to see a

psychiatrist did not constitute either intentional infliction

of emotional distress or slander under Massachusetts law. To

state a claim for intentional infliction of emotional

distress, plaintiff must allege conduct that was "extreme and

outrageous," "beyond all possible bounds of decency," and

"utterly intolerable in a civilized community." Agis v.

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Howard Johnson Co., 371 Mass. 140, 145, 355 N.E.2d 315, 319

(1976). The operator's alleged statement obviously did not

meet this standard. A plaintiff must allege more than "mere

hurt feelings or bad manners" to state a claim. Santana v.

Registrars of Voters, 398 Mass. 862, 867, 502 N.E.2d 132, 135

(1986).

The operator's alleged statement could not support

an action for slander because it was a mere expression of

opinion, see Fleming v. Benzaquin, 390 Mass. 175, 180-86, 454

N.E.2d 95, 100-03 (1983), and because there was no allegation

that it was published to any other person, see Economopoulos

v. A.G. Pollard Co., 218 Mass. 294, 105 N.E. 896 (1914).

Desmond's argument on appeal that he did allege the remark

was published because he alleged that his phone calls were

being intercepted is frivolous.

Since Desmond did not state a cause of action for

either slander or intentional infliction of emotional

distress, NYNEX could not be liable in respondeat superior

for the telephone operator's statement.

Desmond's complaint did not specify in what way

NYNEX's alleged conduct, shorn of the insufficient

allegations of conspiracy, should be thought to have violated

the Communications Act or applicable federal tariff

regulations. No such violation is readily apparent.

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Desmond also argues that the New York district

court's transfer of this action to the District of

Massachusetts was improper and ex parte. The transfer was

well within the transferring court's discretion, however,

given that Desmond resides in Massachusetts and all or most

of the conduct alleged in the complaint occurred in

Massachusetts. Since Desmond acknowledges that the case was

transferred "over [his] objections," his allegations that the

transfer was ex parte are frivolous. It is well settled that

a court may transfer a case sua sponte pursuant to 28 U.S.C.

1404(a) and 1406(a). See, e.g., Caldwell v. Palmetto

State Savings Bank, 811 F.2d 916, 919 (5th Cir. 1987).

Finally, Desmond argues that the district judge

should have recused himself because of his alleged hostility

toward Desmond personally. However, Desmond has given no

reason, beyond the district judge's adverse ruling, to think

that the district judge bears him any ill will. Desmond

therefore has stated no reasonable basis for recusal.

We have considered all of Desmond's other arguments

and find them meritless.

The judgment of the district court is affirmed.

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