Moss v. Camp Pemigewassett, Inc.

• Decision Date: 26 November 2002
• Docket Number: No. 02-1023.,02-1023.
• Citation: 312 F.3d 503
• Parties: Stephen M. MOSS, Plaintiff, Appellant, v. CAMP PEMIGEWASSETT, INC.; Robert L. Grabill; Alfred N. Fauver; Bertha H. Fauver; Jonathan G. Fauver; Thomas L. Reed; Betsy M. Reed; Thomas L. Reed, Jr., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

312 F.3d 503

Stephen M. MOSS, Plaintiff, Appellant, v. CAMP PEMIGEWASSETT, INC.; Robert L. Grabill; Alfred N. Fauver; Bertha H. Fauver; Jonathan G. Fauver; Thomas L. Reed; Betsy M. Reed; Thomas L. Reed, Jr., Defendants, Appellees.

No. 02-1023.

United States Court of Appeals, First Circuit.

Heard June 10, 2002.

Decided November 26, 2002.

COPYRIGHT MATERIAL OMITTED

Robert R. Lucic on brief for appellant.

Russell F. Hilliard, with whom Lauren S. Irwin appears on brief, for appellees.

Before TORRUELLA and LIPEZ, Circuit Judges, and SCHWARZER,^* Senior District Judge.

SCHWARZER, Senior District Judge.

Stephen Moss, a former archery counselor at Camp Pemigewasset, a summer camp for boys ("the Camp"), claims that he was defamed by the Camp's director, Robert Grabill. The gravamen of the complaint is that Grabill stated to an assistant counselor that he had received a complaint regarding Moss through the State of New Hampshire concerning inappropriate contact with boys at the Camp-an admittedly false statement-as well as two complaints from Camp parents. Moss brings this claim for defamation, along with claims for intentional infliction of emotional distress, tortious interference with prospective contractual rights, and civil conspiracy, against Grabill and the Camp's board of directors. The district court dismissed the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).¹ The question before us is whether Moss sufficiently alleged a claim upon which relief can be granted.

FACTUAL BACKGROUND

In ruling on a motion to dismiss, a court must "accept all well-pleaded facts of the complaint as true and draw all reasonable inferences in favor of the plaintiff." Aybar v. Crispin-Reyes, 118 F.3d 10, 13 (1st Cir.1997). Moss served as the Camp's Head of Archery during the summers of 1999 and 2000. In October 2000, Moss received a letter from Grabill informing him that his employment would not be renewed for the summer of 2001. No reason for the decision was given, and Moss had no prior indication of dissatisfaction with his efforts. Grabill later told Moss that he had received three complaints against him alleging inappropriate contact with boys at the Camp. Two of the complaints were made by parents directly to the Camp ("the Camp complaints"); a third complaint came "through the State of New Hampshire" ("the State complaint"). Grabill refused to provide any detail regarding the identity of the complainants and only disclosed some "purported partial details" of one complaint.

Grabill later told Charles Donovan, the Camp's Assistant Head of Nature and Bunk Counselor, of the complaints against Moss, stating that one came "through `the State of New Hampshire.'" Grabill also told Donovan that "he was concerned something like this would happen again and that the existence of three known allegations automatically implied the existence of numerous other unreported ones." Despite Moss's requests for specific details, none were provided. Moss also requested his personnel file from the Camp pursuant to New Hampshire Revised Statutes Annotated § 275:56I, but did not receive it or any documentation of any complaint against him.

On April 4, 2001, Thomas L. Reed, Sr., a member of the Camp's board of directors, wrote to Moss that "Grabill's statement that he had received a complaint about Moss from `the State of New Hampshire' was false." Reed informed Moss that "your name has never been mentioned to the State by Rob [Grabill], nor do we know of any parent, camper, or anyone else involved with [Camp] Pemi who has contacted the State in any way involving you." Despite the acknowledged falsity of Grabill's statement about the state complaint, the board of directors ratified Grabill's decision and refused Moss's request for reinstatement for 2001.

This action followed. The district court had jurisdiction under 28 U.S.C. § 1332 and we have jurisdiction under 28 U.S.C. § 1291.

STANDARD OF REVIEW

We review the district court's judgment of dismissal de novo. Wagner v. Devine, 122 F.3d 53, 55 (1st Cir.1997). "We may affirm a dismissal for failure to state a claim only if it clearly appears that, on the facts alleged, the plaintiff cannot recover on any viable theory." Id. The district court's determination of whether a statement is capable of defamatory meaning is a question of law reviewed de novo. Gray v. St. Martin's Press, 221 F.3d 243, 250 (1st Cir.2000), cert. denied, 531 U.S. 1075, 121 S.Ct. 770, 148 L.Ed.2d 669 (2001).

DISCUSSION

I. THE DEFAMATION CLAIM

Well-settled principles govern our disposition of this appeal. The issue on a motion to dismiss is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to offer evidence in support of his claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). Dismissal is proper only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); accord Cooperman v. Individual, Inc., 171 F.3d 43, 46 (1st Cir. 1999).

Because this case arises under our diversity jurisdiction, we look to New Hampshire's substantive law of defamation in applying these principles. Under that law, "[t]o establish defamation, there must be evidence that a defendant ... publish[ed]... a false and defamatory statement of fact about the plaintiff to a third party." Independent Mech. Contractors, Inc. v. Gordon T. Burke & Sons, Inc., 138 N.H. 110, 635 A.2d 487, 492 (N.H.1993) (citing Restatement (Second) of Torts § 558 (1977)). Moss's complaint alleges two statements published by Grabill to Donovan are defamatory: (1) that Grabill "had received three complaints regarding Moss concerning inappropriate contact with boys at the Camp, including two from parents and one through `the State of New Hampshire,'" and (2) that Grabill "was concerned that something like this would happen again and a total of three known allegations automatically implied the existence of numerous other unreported ones." We take up the two statements separately in the following sections.

A. Grabill's Statement That Three Complaints Had Been Made Against Moss

1. Defamatory meaning

A statement is defamatory if it "tends to lower the plaintiff in the esteem of any substantial and respectable group of people." Nash v. Keene Publ'g Corp., 127 N.H. 214, 498 A.2d 348, 351 (1985). The district court held that the statement about a complaint having come through the State of New Hampshire could not reasonably be read to defame Moss by lowering him in the esteem of others. It reasoned that the statement is not about Moss but about the source of the complaint, i.e., that Moss does not charge either that Grabill said that Moss had inappropriate contact with campers or that the State had investigated Moss for having inappropriate contact. The court concluded that because Grabill told Donovan of no "action or conclusion or statement of fact by the State, other than purely ministerial function of transmitting a complaint[,] Grabill's reference to the `the State' ... is immaterial, and could not reasonably be read as lowering Moss's esteem in the eyes of others."

This deconstruction of the complaint misses the nub of the complaint, to wit, that Grabill falsely told Donovan he had received complaints about Moss having inappropriate contact with boys at the Camp. The district court was right when it found the reference to the State to be immaterial, but its finding led it to the wrong conclusion. Had Grabill simply — and falsely — told Donovan that he had received a complaint through an unidentified source about Moss having inappropriate contact with boys at the Camp at which he served as a counselor, there could be no doubt that such a statement would lower him in the esteem of others.

In context, the phrase "inappropriate contact with boys at the Camp" can be reasonably understood to mean either sexual or physical misconduct. Because "inappropriate contact" is a common euphemism for child abuse, the statement is capable of defamatory meaning. It implies that Moss is accused of criminal conduct involving moral turpitude, which some jurisdictions treat as slander per se without need of proof of special damages. See, e.g., Calvert v. Corthell, 599 A.2d 69, 72 (Me.1991) (explaining that, if proven, false statements imputing accusations of physical and sexual child abuse are defamatory per se); Huxen v. Villasenor, 798 So.2d 209, 214 (La.App.2001) (finding defamation per se where a parent falsely accused a teacher of physically abusing a student); see also Restatement (Second) of Torts § 571 (1977).

Moreover, the statement tends to disparage Moss in a way that is peculiarly harmful to his professional reputation. Moss alleges that he has worked for thirty years building his reputation as an archery coach and took great pride in treating his pupils professionally. He argues that the stigma of a child molestation accusation would severely impact his ability to work as an archery coach. It is axiomatic that an allegation of child abuse is peculiarly harmful to a professional working with children. Statements that harm one's professional reputation also constitute slander per se. Ramirez v. Rogers, 540 A.2d 475, 478 (Me.1988) (finding statements actionable per se where gymnastics school owner sued competitor for making false statements that plaintiff was under investigation for child abuse incidents at her school because the utterances adversely reflected on her business reputation); see also Restatement (Second) of Torts § 573 (1977); Disend v. Meadowbrook Sch., 33 Mass. App.Ct. 674, 604 N.E.2d 54, 55 (1992) (reversing dismissal of a teacher's defamation action where the plaintiff claimed that an accusation of professional misconduct harmed her ability...