Norton v. McOsker

United States Court of Appeals
For the First Circuit

No. 03-2281

GAIL M. NORTON,

Plaintiff, Appellant,

v.

DAVID J. MCOSKER,
Executor of the Estate of Russell J. Hoyt,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]

Before

Boudin, Chief Judge,
Torruella, Circuit Judge,
and Saris,* District Judge.

J. Ronald Fishbein, with whom Edward John Mulligan, were on
brief, for appellant.
Gerald C. DeMaria, with whom Higgins, Cavanagh & Cooney, LLP,
was on brief, for appellee.

May 19, 2005

*
Of the District of Massachusetts, sitting by designation.
 TORRUELLA, Circuit Judge. Plaintiff-appellant, Gail M.

Norton, engaged in an adulterous relationship with decedent,

Russell L. Hoyt, for twenty-three years.1 During the course of the

relationship, Hoyt allegedly maintained that he would divorce his

wife, marry Norton, and support Norton for the rest of her life.

Following the end of the relationship, when it became apparent to

Norton that Hoyt would not continue to support her and that the

relationship could not be reconciled, Norton sued Hoyt, claiming

(1) promissory estoppel; (2) intentional infliction of emotional

distress; (3) the tort of outrage; (4) fraud; and (5) breach of

promise to marry. The third, fourth and fifth claims were

dismissed and the district court granted Hoyt's motion for summary

judgment on the remaining claims.

Norton now seeks our review of the district court's

assertion of jurisdiction over the case and the grant of summary

judgment on the promissory estoppel and intentional infliction of

emotional distress claims. We affirm the judgment below,

essentially for the reasons articulated in the district court's

opinion.

1
Hoyt was the defendant in the district court case. He passed
away before the appeal was argued, and as a result, David J.
McOsker, the executor of Hoyt's estate, replaces him as defendant
on appeal.

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 I.

Norton, a Rhode Island resident, met Hoyt, a Connecticut

resident, in July 1974. When they met, Hoyt led Norton to believe

that he was divorced. However, shortly after their adulterous

relationship began, Norton discovered that Hoyt was actually

married. At that time, Hoyt told Norton he was getting a divorce.

Later, on or about January 5, 1975, Hoyt told Norton that he had

moved out of the marital residence in order to effectuate the

divorce process. Because of these statements, and similar alleged

representations over the years, Norton remained in a relationship

with Hoyt for twenty-three years. Hoyt remained married throughout

their twenty-three year relationship.

At the outset of the relationship, Norton was employed as

an elementary school teacher in the Bristol, Rhode Island public

school system, a position she had held for some years. Norton

resigned her teaching position in 1980, allegedly in response to

Hoyt's urging that she leave her position so that she could be free

to spend more time with him and travel around the world with him,

and in reliance upon Hoyt's promises to provide for her and

eventually marry her.2

Norton enjoyed an extravagant lifestyle as a result of

her relationship with Hoyt. She traveled around the world with

2
Norton offered a different reason in her resignation letter,
where she stated that she was resigning in order to better pursue
creative endeavors.

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him, and he provided her with sundry material benefits and

comforts. He paid the rent on homes they shared in Vermont and

Rhode Island, purchased and maintained her automobiles, allowed her

the use of his luxury yachts and presented her with lavish gifts.

Hoyt ensured Norton's financial security throughout the

relationship, and she became accustomed to this manner of living

over the years.

Norton states that she trusted Hoyt and believed that he

would get a divorce. Occasionally, she and Hoyt discussed plans

for their wedding. She asserts that she would not have remained in

the relationship with Hoyt if it were not for his frequent promises

to divorce his wife, marry Norton, and support her for the rest of

her life.

Norton also avers that, in reliance upon his inducements

and promises, she became pregnant by Hoyt. However, no child was

born of the relationship because Norton suffered a spontaneous

miscarriage.

In March 1998, Hoyt formally ended the relationship with

Norton. Norton was distraught by this turn of events and sought

counseling and medical attention to deal with the depression and

anxiety she was experiencing. She allegedly suffered from

headaches and stomachaches, as well as vomiting and weight loss.

Norton reported that she was not able to resume work and that she

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possibly would not ever be able to commit to another relationship.

She also reported having thoughts of suicide.

A registered nurse and licensed social worker who treated

Norton recorded that the "presenting problem [was] her twenty-three

year relationship in turmoil." The nurse also noted that Norton

was "very shocked, . . . and [experiencing] loss of concentration."

A psychiatrist, Dr. Henry Altman, also worked with

Norton, and Hoyt joined Norton in several sessions with Dr. Altman.

In one session, Hoyt allegedly told Norton and the doctor that he

would continue to support Norton financially and suggested that she

would probably be able to live on about $70,000 to $80,000 per

year.

Hoyt supported Norton financially for two years following

the break-up, providing her with more than $80,000 in total.

Norton asserts that when Hoyt broke off the relationship he

promised he would place $100,000 in her bank account and establish

a trust to support her for life. Norton also alleges that Hoyt

told her he had given a letter to his attorney, David McOsker --

who is now the executor of Hoyt's estate -- that would ensure

Norton would be provided for in the event anything happened to

Hoyt. However, when she contacted McOsker to request a copy of the

letter, Norton discovered that no such letter existed.

On March 3, 2001, Norton sued Hoyt in Rhode Island

Superior Court, claiming (1) promissory estoppel; (2) intentional

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infliction of emotional distress; (3) the tort of outrage; (4)

fraud; and (5) breach of promise to marry. Defendant, Hoyt,

invoked the federal courts' diversity jurisdiction to remove the

case to the United States District Court for the District of Rhode

Island. See 28 U.S.C. §§ 1332(a), 1441.

II.

Before proceeding to the merits of this case, we will

address Norton's argument that the district court should have

abstained from hearing this case and remanded it to the state court

pursuant to the domestic relations exception to federal diversity

jurisdiction that has been recognized by the Supreme Court. See

Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992). We find that

the district court did not err in exercising jurisdiction over

these claims.

The domestic relations exception "divests the federal

courts of power to issue divorce, alimony, and child custody

decrees." Ankenbrandt, 504 U.S. at 703. As we have stated in the

past:

[t]he aim of the exception is to keep federal
courts from meddling in a realm that is
peculiarly delicate, that is governed by state
law and institutions (e.g., family courts),
and in which inter-court conflicts in policy
or decrees should be kept to an absolute
minimum.

Despite the breadth of the phrase "domestic
relations exception" and the potential reach
of the exception's aim, Ankenbrandt made clear
that the exception is narrowly limited. In

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 general, lawsuits affecting domestic
relations, however substantially, are not
within the exception unless the claim at issue
is one to obtain, alter or end a divorce,
alimony or child custody decree.

Dunn v. Cometa, 238 F.3d 38, 41 (1st Cir. 2001).

Notwithstanding the fact that this case has grown out of

the dissolution of an intimate relationship, Norton's claims do not

sound in family law, let alone the specific areas of divorce,

alimony, and child custody. Instead, Norton brought tort and

contract claims.

Plaintiff cites the fact that the Rhode Island Superior

Court has concurrent jurisdiction over any issue the Family Court

may hear, e.g. Rubano v. DiCenzo, 759 A.2d 959, 972 (R.I. 2000),

and incorrectly correlates this with the notion that she could

therefore have brought the suit originally in Family Court.

However, the fact that the Superior Court's jurisdiction includes

any claim which might be brought before the Family Court does not

mean that the Family Court has jurisdiction coextensive with the

Superior Court. As the district court noted, "[t]he Rhode Island

Family Court would have no jurisdiction in this case." Norton v.

Hoyt, 278 F. Supp. 2d 214, 228 (D.R.I. 2003) (citing R.I. Gen. Laws

§ 8-10-3 (1956)). Even if the Rhode Island Family Court did have

jurisdiction, the domestic relations exception, as interpreted in

Dunn, would not apply, because Norton did not bring any claim

related to a divorce, alimony, or a child custody decree.

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 Thus, Norton's claims are not encompassed by the domestic

relations exception to federal jurisdiction and the district court

properly asserted jurisdiction over the case.

III.

We review the district court's grant of summary judgment

de novo, construing the evidence in the light most favorable to the

appellant. Fenton v. John Hancock Mut. Life Ins. Co., 400 F.3d 83,

87 (1st Cir. 2005). We will uphold the grant of summary judgment

if there is no genuine issue of material fact and appellees are

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

"An issue is 'genuine' for purposes of summary judgment if 'the

evidence is such that a reasonable jury could return a verdict for

the nonmoving party,' and a 'material fact' is one which 'might

affect the outcome of the suit under the governing law.'" Poulis-

Minott v. Smith, 388 F.3d 354, 363 (1st Cir. 2004) (quoting Hayes

v. Douglas Dynamics, Inc., 8 F.3d 88, 90 (1st Cir. 1993)).

Because our jurisdiction over this case is diversity-

based, Rhode Island state law governs. See Erie R.R. Co. v.

Tompkins, 304 U.S. 64 (1938); Univ. Emergency Med. Found. v.

Rapier Invs., Ltd., 197 F.3d 18, 19 n.1 (1st Cir. 1999). As a

federal court sitting in diversity, our task is to "interpret and

apply as best we can the state rules of decision." Catex Vitol

Gas, Inc. v. Wolfe, 178 F.3d 572, 576 (1st Cir. 1999). "Relying on

pronouncements of the state supreme court and, if these are not

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conclusive, on other instructive sources, ultimately 'our task is

to ascertain the rule the state court would most likely follow

under the circumstances, even if our independent judgment on the

question might differ.'" Id. at 576-77 (quoting Blinzler v.

Marriott Int'l, Inc., 81 F.3d 1148, 1151 (1st Cir. 1996)).

A. Promissory Estoppel

Norton has attempted to make out a claim of promissory

estoppel based on promises that Hoyt allegedly made to her during

and immediately following the end of their extramarital

relationship. She claims that Hoyt led her to believe that he

would divorce his wife and marry her. She also claims that Hoyt

promised to take care of her for the rest of her life. Norton

avers that she relied on those promises, to her detriment, when she

remained in the relationship with Hoyt and left her position as a

teacher to be with Hoyt. She also claims that she gave up the

opportunity to marry and have children at a younger age by

remaining with Hoyt.

Historically, any promise by Hoyt to divorce his wife and

marry Norton, however, would be void as against public policy. See

15 Arthur Linton Corbin, Corbin on Contracts, § 1475 at 545 (1962)

("[I]t is contrary to public policy and illegal for one who has a

living spouse to make an engagement to marry another, [regardless

of the fact] that the parties to the first marriage are separated

and that the new agreement is expressly made conditional on

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procuring a divorce . . . ."). "'[T]he doctrine of estoppel . . .

has no application to a contract . . . which is void because it

violates . . . the dictates of public policy.'" Doherty

v. Bartlett, 81 F.2d 920, 925 (1st Cir. 1936) (quoting approvingly

Colby v. Title Ins. & Trust Co., 117 P. 903, 918 (Cal. 1911)). Our

analysis of Norton's promissory estoppel claim therefore focuses on

the alleged promise of lifetime support.

Rhode Island law recognizes a claim for promissory

estoppel. See East Providence Credit Union v. Geremia, 239 A.2d

725 (R.I. 1968). This doctrine is defined in the Restatement

(Second) of Contracts, as "[a] promise which the promisor should

reasonably expect to induce action or forbearance on the part of

the promisee or a third person and which does induce such action or

forbearance is binding if injustice can be avoided only by

enforcement of the promise." Restatement (Second) of Contracts

§ 90 at 242 (1981). "Traditionally, the doctrine of promissory

estoppel has been invoked as a substitute for a consideration,

rendering a gratuitous promise enforceable as a contract." East

Providence Credit Union, 239 A.2d at 727. Rhode Island law also

embraces extends the doctrine beyond the traditional cases to apply

it to "situations in which the promisee's reliance on the promise

was induced, and injustice may only be avoided by enforcement of

the promise." Alix v. Alix, 497 A.2d 18, 21 (R.I. 1985) (citing

East Providence Credit Union, 239 A.2d at 727-28; Calamari &

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Perillo, The Law of Contracts § 6-8 at 211 (2d ed. 1977); 1

Williston, Contracts § 140 at 611-14.).

Norton's promissory estoppel claim fails for two

principal reasons: (1) her claim does not satisfy the conditions

required to make out a claim of promissory estoppel, and (2) her

claim sounds in palimony, which is a cause of action that has not

been recognized in Rhode Island.

1. The elements of promissory estoppel

Norton's promissory estoppel claim fails as a matter of

law because she has failed to satisfy at least two of the three

conditions that must be met to establish promissory estoppel.3

Under Rhode Island law, these conditions are: "1) A clear and

unambiguous promise; 2) Reasonable and justifiable reliance upon

the promise; and 3) Detriment to the promisee, caused by his or her

reliance on the promise." Filippi v. Filippi, 818 A.2d 608, 626

(R.I. 2003).

To meet the first element of promissory estoppel, Norton

must establish that Hoyt made a clear, unambiguous and

unconditional promise, the terms of which are certain. See B.M.L.

Corp. v. Greater Providence Deposit Corp., 495 A.2d 675, 677 (R.I.

3
We are also skeptical of whether Norton's actions of leaving her
position as a schoolteacher and becoming pregnant by Hoyt were done
in reliance upon Hoyt's promises of support such that they would
satisfy the final element of promissory estoppel -- detrimental
reliance upon the promise. However, because we find that Norton
has failed to satisfy the first two element of promissory estoppel,
it is unnecessary for us to consider the final element.

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1985). Norton claims that Hoyt promised to divorce his wife, marry

Norton and take care of her for the rest of her life. She has also

argued that Hoyt promised to provide lifetime support whether he

divorced his wife or not. See Norton, 278 F. Supp. 2d at 224.

In either case, under Rhode Island law, the alleged

promise is probably too vague to be legally enforceable.4 At least

one court has held that a promise to "take care of" an individual

is insufficiently specific to support a claim of promissory

estoppel. See Morone v. Morone, 413 N.E. 2d 1154, 1157 n.3 (N.Y.

1980) (citing Dombrowski v. Somers, 362 N.E. 2d 257, 258 (N.Y.

1977)). The Rhode Island Supreme Court has shown itself, in a

slightly different context, to be particularly sensitive to the

vagueness of alleged promises underlying such claims.5 See, e.g.,

Filippi, 818 A.2d at 626. Hoyt's promise would thus be unlikely to

qualify as sufficiently clear and unambiguous under Rhode Island

law.

4
While the promises of support that Norton alleges Hoyt made upon
the breakup of their relationship, some of which were made in the
presence of others, were more specific, there is no evidence that
she relied on those promises to her detriment.
5
In Filippi, decedent's daughter brought a breach of contract
action against the decedent's estate alleging that decedent
promised that the family restaurant "will be yours and you will
take care of the family," if she returned to manage the business.
Id. at 612. The Rhode Island Supreme Court held that the promise
was unenforceable because it was unclear and ambiguous. The court
reasoned that decedent "failed to indicate whether he meant [the
restaurant] as the business including the good will or simply the
stock of [the holding company], which owned the physical assets of
the [restaurant]." Id. at 626.

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 We also find Norton's alleged reliance on the promise to

be unreasonable. Norton discovered very early in her relationship

with Hoyt that he had not been honest with her about his marital

status. Then, for twenty-three long years he continually failed to

make good on his promise to divorce his wife and marry her.

Throughout that time, he repeatedly broke his promises. The record

shows that Hoyt continued to engage in family events and, at least

at times, to live in his marital home with his wife and children.

Therefore, to the extent that Norton did rely on Hoyt's promises to

marry her and take care of her for life, this reliance was

unreasonable. Norton's promissory estoppel claim thus fails the

second element as well. See Filippi, 818 A.2d at 626.

2. Palimony Contract

Rhode Island has never recognized a cause of action for

palimony. The term "palimony" originated out of the media coverage

of the California case Marvin v. Marvin, 557 P.2d 106, 112 (Cal.

1976), in which the Supreme Court of California awarded future

support to a nonmarital partner in the absence of an express

contract. Palimony is "[a] court's award of post-relationship

support or compensation for services, money, and goods contributed

during a long-term nonmarital relationship, esp[ecially] where a

common-law marriage cannot be established." Black's Law Dictionary

1142 (8th ed. 2004). Although Rhode Island recognizes common-law

marriage, it has not recognized palimony claims.

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 Prior to cases like Marvin v. Marvin, all contracts

between parties to an illicit cohabitation arrangement were

considered to be made in consideration of their sexual

relationship, and therefore courts found the contracts void as

against public policy and refused to enforce them. However, as

society has grown more accepting of nonmarital cohabitation

relationships, courts in some states have grown more willing to

enforce contracts made between parties to such relationships. In

Marvin, the Supreme Court of California wrote that "[t]he mores of

the society have indeed changed so radically in regard to

cohabitation that we cannot impose a standard based on alleged

moral considerations that have apparently been so widely abandoned

by so many." 557 P.2d at 122. However, not every state has jumped

on the palimony bandwagon, and Rhode Island has not.

Norton argues that "times are changing" and attempts to

show that Rhode Island law is moving "in lock-step" with the

changes that the nearby states of Connecticut, Massachusetts and

New Jersey recently made when they began enforcing contracts and

agreements between unmarried cohabitants.6 Norton incorrectly

6
For example, in New Jersey -- which unlike Rhode Island, does
enforce palimony claims -- the state Supreme Court "recognized that
unmarried adult partners, even those who may be married to others,
have the right to choose to cohabit together in a marital-like
relationship, and that if one of those partners is induced to do so
by a promise of support given her by the other, that promise will
be enforced by the court." In re Estate of Roccamonte, 808 A.2d
838, 842 (N.J. 2002) (citing Kozlowski v. Kozlowski, 403 A.2d 902
(N.J. 1979)). The New Jersey court held that a palimony contract

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cites Doe v. Burkland, 808 A.2d 1090 (R.I. 2002), for the

proposition that the Rhode Island Supreme Court has recognized a

cause of action for palimony. The Rhode Island court did no such

thing. In Burkland, the Rhode Island court simply held that "[t]he

mere existence of a sexual relationship between two parties does

not impair their right to contract with each other for

consideration independent of the relationship." Id. at 1094

(citing Marvin, 557 P.2d at 112). In Burkland, following the end

of a relationship in which two men had lived together as domestic

partners for nine years, one of the former partners sued the other

for harassment. The defendant then counterclaimed that the

plaintiff had breached an oral agreement to share any property that

either party had acquired individually during their relationship.

"[T]he counterclaimant alleged that he agreed to 'devote his

skills, effort, labors and earnings' to assist plaintiff in his

career, and that he provided homemaking services, business

consulting, and counseling to plaintiff in consideration for the

alleged property-sharing agreement." Burkland, 808 A.2d at 1093.

The Rhode Island Supreme Court held that if the plaintiff had

actually acquired property with the help of the legitimate services

may be express or implied and "concluded that a general promise of
support for life, broadly expressed, made by one party to the other
with some form of consideration given by the other will suffice to
form a contract." Id. at 843.

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of the defendant under their alleged property-sharing arrangement,

then the defendant might be entitled to relief. Id. at 1095.

We agree with the district court that Burkland is clearly

inapposite in this case. Norton did not have a property sharing

agreement with Hoyt. Norton seeks enforcement of a promise for

future support payments, which is palimony and not a valid cause of

action in Rhode Island.

Unfortunately for Norton, who waited twenty-three years

for an adulterer to finally leave his wife for good so that they

could get married and live happily ever after, her happy ending

never came to pass. Hoyt instead decided to end the relationship

with Norton, having never left his wife. While society does not

favor the actions taken by Hoyt in his relationships, Rhode Island

law does not provide Norton with a cause of action for palimony

arising out of her nonmarital relationship with Hoyt, nor is she

able to succeed in a promissory estoppel claim because she has

failed to meet the first two, if not all three of the elements of

said claim.

B. Intentional Infliction of Emotional Distress

We find that Norton has failed to prove intentional

infliction of emotional harm. At the threshold of the analysis of

a claim of intentional infliction of emotional distress, we must

determine whether "the . . . relationship comprises the kind of

soil in which the seeds of a [Restatement (Second) of Torts] § 46

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claim for emotional harm may sprout." Russell v. Salve Regina

College, 649 F. Supp. 391, 400 (D.R.I. 1986), aff'd, 890 F.2d 484

(1st Cir. 1989), rev'd on other grounds, 499 U.S. 225 (1991).

Generally, courts consider whether the relationship created

sufficient vulnerability to create a duty on the part of the

defendant to avoid inflicting emotional distress. Id. at 401. The

Rhode Island Supreme Court has considered this question and

determined that this cause of action can arise out of relationships

such as debtor/creditor, Champlin, 478 A.2d at 989, and

employee/supervisor, Elias v. Youngken, 493 A.2d 158 (R.I. 1985).

The court has not, however, made a definitive judgment as

to whether romantic relationships, such as the one in the case at

bar, qualify as a basis for an intentional infliction of emotional

distress cause of action. The Rhode Island Supreme Court did

consider a husband's claim of intentional infliction of emotional

distress made against his former wife in Wright v. Zielinski. 824

A.2d 494 (R.I. 2003). However, the court's opinion in Zielinski

did not specifically address the question of whether the

relationship was such that a duty to avoid emotional harm existed.

In Zielinksi, the court held that the husband's claim failed

because he failed to adduce expert medical evidence establishing a

causal connection between his wife's alleged misconduct and his

psychological and physical complaints. Id. at 499.

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 Since the Rhode Island Supreme Court has shown no signs

of limiting this cause of action to a select few relationships, and

observing that long-term, romantic relationships frequently involve

strong emotions and allow the parties to come to know each other

well enough to know the other's vulnerabilities and how to exploit

them, we will assume the availability of the claim in this case.

Rhode Island has adopted the standard for an intentional

infliction of emotional distress claim set forth in section 46 of

the Restatement (Second) of Torts. Swerdlick v. Koch, 721 A.2d

849, 862-63 (R.I. 1998) (citing Champlin v. Washington Trust Co. of

Westerly, 478 A.2d 985, 988-89 (R.I. 1984)). Under this standard,

liability is only imposed after four factors have been proven:

(1) the conduct must be intentional or in
reckless disregard of the probability of
causing emotional distress, (2) the conduct
must be extreme and outrageous, (3) there must
be a causal connection between the wrongful
conduct and the emotional distress, and (4)
the emotional distress in question must be
severe.

Id. (quoting Champlin, 478 A.2d at 989); see also Marques v.

Fitzgerald, 99 F.3d 1, 7 (1st Cir. 1996) (reciting Rhode Island's

factors). In addition, unlike many states that have adopted the

Restatement, Rhode Island also requires that there be some medical

proof establishing physical symptoms of distress. Clift v.

Narragansett Television L.P., 688 A.2d 805, 813 (R.I. 1996) (citing

Reilly v. United States, 547 A.2d 894, 899 n.3 (R.I. 1988) ("[T]he

law in Rhode Island still requires physical symptomatology as an

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element of a claim when a defendant's intentional conduct has

allegedly inflicted emotional distress. In so doing, we have

applied a stricter standard of proof for this cause of action than

that applied by the Restatement and many other states.")).

The Rhode Island Supreme Court uses a combined standard

for the analysis of whether the claim meets the first two elements

of an intentional infliction of emotional distress cause of action.

See, e.g., Swerdlick, 721 A.2d at 863. This standard is put forth

in the oft-cited comment (d) to section 46 of the Restatement as

follows:

It has not been enough 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. 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 at 73 (1965).

In her affidavit in opposition to defendant's motion for

summary judgment, Norton states that "[t]he actions of the

defendant in breaking his promises and his abandonment of your

affiant have caused affiant to become nervous, anxious, crying,

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depressed and extremely vulnerable." Norton Aff. ¶ 9. However,

merely breaking-up an extramarital affair does not constitute

outrageous conduct. Although Norton was understandably devastated

and depressed by Hoyt's termination of their affair, Hoyt was

entitled to break up with his girlfriend. "'The actor is never

liable . . . where [he] has done no more than to insist upon his

. . . legal rights in a permissible way, even though he . . . is

well aware that such insistence is certain to cause emotional

distress.'" Clift, 688 A.2d at 813 (quoting Restatement (Second)

of Torts § 46, comment g).

Having found that Norton failed to establish the first

two elements of intentional infliction of emotional distress, we

need go no further. The claim cannot prevail.

IV.

For the above reasons, we affirm the district court's

grant of summary judgment.

Affirmed.

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