81 F.3d 249 (1st Cir. 1996), 95-1804, Roche v. John Hancock Mut. Life Ins. Co.

Docket Nº:95-1804.
Citation:81 F.3d 249
Party Name:Daniel J. ROCHE et ux. Valerie Roche, Plaintiffs, Appellants, v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, Defendant, Appellee.
Case Date:April 16, 1996
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 249

81 F.3d 249 (1st Cir. 1996)

Daniel J. ROCHE et ux. Valerie Roche, Plaintiffs, Appellants,

v.

JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, Defendant, Appellee.

No. 95-1804.

United States Court of Appeals, First Circuit

April 16, 1996

Heard Feb. 6, 1996.

Page 250

[Copyrighted Material Omitted]

Page 251

Appeal from the United States District Court for the District of Massachusetts, Hon. William G. Young, U.S. District Judge.

Robert E. Kelley, Ft. Lauderdale, FL, with whom Robert W. Kelley was on brief, for appellants.

Neil Jacobs, Boston, MA, with whom Michael J. Moody and Hale and Dorr were on brief, for appellee.

Before SELYA, BOUDIN and LYNCH, Circuit Judges.

SELYA, Circuit Judge.

This appeal requires us to consider whether a private party should be held liable under 42 U.S.C. § 1983 for an arrest and unsuccessful prosecution that followed on the heels of its detailed report of suspected wrongdoing to the authorities. The district court found no competent evidence that the defendant violated § 1983, discerned no merit in the plaintiffs' other claims, and granted brevis disposition. See Fed.R.Civ.P. 56. Descrying no error, we affirm.

I.

Background

We limn the facts in the light most hospitable to the summary judgment loser, consistent with record support. See, e.g., Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). In so doing, we ignore "conclusory allegations, improbable inferences, and unsupported speculation." Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990).

On March 18, 1991, as part of a sizeable reduction in force, defendant-appellee John Hancock Mutual Life Insurance Company (Hancock) laid off approximately 450 workers including plaintiff-appellant Daniel J. Roche. The next day the principal architect of Hancock's downsizing (a senior executive vice-president who, for the sake of anonymity, we shall call "Green") received three electronically recorded telephone messages on his office voice mail system. The speaker threatened Green's life and forecast the imminent kidnapping and mutilation of his children. Later that day Green's secretary received and recorded an equally ominous call.

Richard Louis, a Hancock employee responsible for internal investigations, prepared recordings of the menacing messages. It was readily apparent that these anonymous calls were made by a man endeavoring to disguise his voice. Louis tentatively concluded that the mystery man was a casualty of the recent reduction in force, reported the matter to the Boston police, and took steps to ensure the safety of Green and his family. When the police investigation fizzled, Hancock retained a firm of private detectives (McCain & Fitzpatrick). Robert Fitzpatrick spearheaded the probe. After a preliminary review, Fitzpatrick agreed that a disgruntled ex-employee most likely had made the calls and predicted that the miscreant would strike again around the anniversary of the March 18 layoffs.

All was quiet until the day before Christmas when Green received another anonymous call. This call was sarcastic but not threatening. He received a second such call eight days later. Louis played recordings of these two calls for his supervisor, David Cullington, who thought that the voice belonged to Jack Budrow (an employee who had lost his job in the March layoffs). Fitzpatrick's attempts to correlate these calls with the four original calls proved inconclusive, and Hancock discounted Budrow as a suspect vis-a-vis the threats.

In February of 1992, Hancock rehired Roche. On March 13, Green received another anonymous voice mail message. This time the caller promised to kill him on the layoff anniversary date. Louis recorded the communique and notified the authorities. Cullington, understandably alarmed, played the recording for Neil Smith (a manager acquainted with many of the employees who had been cashiered in March 1991). Smith had known Roche for twenty-two years and thought that he recognized Roche's voice. Cullington next played the four March 1991

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messages for Smith's listening pleasure, but Smith could not positively identify the caller.

Without mentioning Smith's views, Cullington aired the same five messages for Paul Heaslip, Hancock's director of labor relations, who had worked with Roche for four years. Heaslip said that he recognized Roche's voice on the anniversary message, but that he could not identify the disguised voice featured in the four earlier recordings. Without mentioning Roche's name, Cullington consulted Barry Rubenstein, Hancock's in-house counsel. Rubenstein had worked with Roche off and on from 1985 to 1989. When he heard the same quintet of messages he volunteered that the voice on the latest recording belonged to Roche.

At that juncture, Rubenstein assumed an active role in the proceedings. He researched the law, informed Cullington that the threatening calls probably violated federal and state criminal prohibitions, and stated that it would be appropriate to report Hancock's suspicions to the authorities. Rubenstein also counselled Cullington that, under the terms of the applicable collective bargaining agreement, Roche's employment could be terminated. Out of an abundance of caution, Rubenstein suggested that the company obtain yet another opinion. Following this advice, Cullington auditioned the recordings for Brooks Tingle--an employee who was in regular contact with Roche but not privy to the investigation. Tingle stated without prompting that both the March 1991 and March 1992 recordings contained Roche's voice.

In the same time frame Fitzpatrick, acting for Hancock, recruited Sensimetric, a voice analysis firm, to compare the March 1991 and March 1992 messages in order to determine whether the calls had been made by the same person. Fitzpatrick reported to Hancock that Sensimetric's analysis "strongly indicate[d] that the same individual may have made both recordings." Fitzpatrick also asked Sensimetric to compare the non-threatening messages attributed to Budrow with the threat made in March of 1992. Sensimetric's analysis failed to establish a likely tie. On March 23, 1992, Hancock lawfully but surreptitiously obtained a recorded specimen of Roche's normal speaking voice. Fitzpatrick subsequently reported to Hancock that, based on Sensimetric's examination of the sample, Roche's voiceprint matched that of the minacious caller.

Armed with this information, Louis recontacted the authorities. A law enforcement official requested that he secure sworn affidavits from the individuals who claimed to be able to identify Roche's voice. Louis followed instructions and, on March 25, he met with representatives of the Boston Police Department and the Suffolk County District Attorney's Office. Louis played the five threatening messages and presented sworn affidavits from Smith, Heaslip, Rubenstein, and Tingle confirming that each had identified Roche as the perpetrator. Relying on Fitzpatrick's reports, Louis also told the authorities that Sensimetric had analyzed the recordings and had concluded that the caller's speech matched Roche's normal speaking voice.

The police decided to pursue the case. Without the participation of any Hancock representative, the officers applied for a criminal complaint and procured an arrest warrant. The next morning four police officers arrived by prearrangement at the company's Braintree office. Louis joined them and summoned Roche. After Louis handed Roche a termination letter, the gendarmes arrested him and, in short order, the district attorney charged him with threatening to murder Green, threatening harm to Green's family, and making harassing telephone calls.

Hancock kept close track of the criminal case: it acceded to various prosecution requests for information, paid Sensimetric's expert witness fees, and in addition, several of its employees (including Louis, Heaslip, and Tingle) testified at the trial. Notwithstanding Hancock's cheerleading, the jury voted to acquit.

II.

Travel of the Case

Roche sued Hancock in a Massachusetts state court. 1 He asserted claims for abridgement

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of his civil rights pursuant to 42 U.S.C. § 1983 and counterpart state statutes. He also pleaded claims for false arrest, false imprisonment, abuse of process, malicious prosecution, and wrongful discharge. Hancock removed the suit to the federal district court citing federal question jurisdiction. See 28 U.S.C. §§ 1331, 1441.

After the close of discovery, Hancock sought summary judgment. The district court, ruling ore tenus, found that Hancock, as a matter of law, had probable cause to believe that the appellant had committed or would commit a crime, and thus had legal justification to report the information in its possession to the police. On this basis, the court rejected the appellant's civil rights, abuse of process, and malicious prosecution claims. Finding his other claims to be equally lacking in merit, albeit for different reasons, the court granted judgment in Hancock's favor across the board. This appeal followed.

III.

Analysis

A.

The Summary Judgment Standard

We afford plenary review to the entry of summary judgment on the civil rights claim. See Smith v. F.W. Morse & Co., 76 F.3d 413, 428 (1st Cir.1996). The criteria are familiar: a court may grant summary judgment if the nisi prius roll discloses no genuine issue of material fact and if, viewing the entire record in the light most flattering to the nonmovant, the proponent demonstrates its entitlement to judgment as a matter of law. See McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995) (collecting cases); see also Fed.R.Civ.P. 56(c).

In applying these criteria, we recognize that "genuineness and materiality are not...

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