Barden v. HarperCollins Publishers, Inc., Civ. A. No. 94-30056-FHF.

• Decision Date: 24 August 1994
• Docket Number: Civ. A. No. 94-30056-FHF.
• Citation: 863 F. Supp. 41
• Parties: Jacki BARDEN, Plaintiff, v. HARPERCOLLINS PUBLISHERS, INC., Defendant.
• Court: U.S. District Court — District of Massachusetts

863 F. Supp. 41

Jacki BARDEN, Plaintiff, v. HARPERCOLLINS PUBLISHERS, INC., Defendant.

Civ. A. No. 94-30056-FHF.

United States District Court, D. Massachusetts.

August 24, 1994.

Dianne M. Dillon, Dusel, Murphy, Fennell, Liquori & Powers, Springfield, MA, for plaintiff.

Robert Aronson, Law Offices of Robert Aronson, Springfield, MA, Slade R. Metcalf, New York City, for defendant.

MEMORANDUM AND ORDER

FREEDMAN, Senior District Judge.

I. INTRODUCTION

Before the Court is defendant HarperCollins Publishers Inc.'s motion for summary judgment as to both counts of plaintiff Jacki Barden's complaint. Plaintiff has filed her opposition to defendant's motion; defendant has filed a reply to plaintiff's opposition. The Court moves to an analysis of defendant's motion, below.

II. BACKGROUND

Both parties have thoroughly detailed the circumstances underlying this dispute. Therefore, the following synopsis of the case history will be brief: In 1988 defendant's predecessor-in-interest, Harper & Row Publishers, Inc. published and distributed a book titled The Courage to Heal: A Guide For Women Survivors of Child Sexual Abuse. Within the initial publication of the book was a list of attorneys who could be consulted to assist women survivors of child abuse.

Plaintiff, who is an adult victim of child abuse, purchased and read defendant's book for the purposes of helping her recover from the trauma of her childhood abuse. In addition, plaintiff contacted one of the attorneys listed in the book, Lewis Youmans, apparently in order to pursue a lawsuit. Thereafter, plaintiff asserts that Youmans accepted a retainer from her, yet failed to perform legal services. Moreover, plaintiff contends that Youmans' qualifications — detailed in defendant's book — were false, and that defendant's book contained unverified facts.

This action was commenced by plaintiff in the Massachusetts Superior Court on March 17, 1994. Later, defendant removed the case to this Court. Plaintiff's complaint contains two claims for relief: the first for misrepresentation, and the second for a violation of chapter 93A of the Massachusetts Consumer Protection Act.

III. STANDARD OF REVIEW

Summary judgment is proper under Fed. R.Civ.P. 56(c) ("Rule 56(c)") when "the pleadings and the affidavits raise no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law." Mendes v. Medtronic, Inc., 18 F.3d 13, 15 (1st Cir.1994). "The nonmoving party bears the burden of placing at least one material fact into dispute after the moving party shows the absence of material fact." Id., discussing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). In this setting, a "`genuine' issue is one `that properly can be resolved only by a finder of fact because it may reasonably be resolved in favor of either party' ... and a material issue is one that `affects the outcome of the suit....'" Collins v. Martella, 17 F.3d 1, 3 n. 3 (1st Cir.1994), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250, 106 S.Ct. 2505, 2510, 2511, 91 L.Ed.2d 202 (1986); see also Hayes v. Douglas Dynamic, Inc., 8 F.3d 88, 90 (1st Cir. 1993). "Mere allegations, or conjecture unsupported in the record, are insufficient to raise a genuine issue of material fact." Horta v. Sullivan, 4 F.3d 2, 11 (1st Cir.1993). Finally, questions of law are appropriate for resolution on summary judgment, barring a genuine dispute of material fact. Jimenez v. Peninsular & Oriental Steam Navigation Co., 974 F.2d 221, 223 (1st Cir.1992).

IV. DISCUSSION

As stated above, defendant has moved for summary judgment as to both counts of plaintiff's complaint. Wherefore, the Court will analyze defendant's motion and plaintiff's response as to each count, in turn.

A. Count One — Negligent Misrepresentation

Under Massachusetts law, a plaintiff may establish liability by proving an intentional, negligent or innocent misrepresentation. See Logan Equipment Corp. v. Simon Aerials, Inc., 736 F.Supp. 1188, 1199 (D.Mass.1990). A few rules are common to the above three theories of misrepresentation. Id. First, the alleged misrepresentation must be identified with specificity. See Spencer Cos. v. Chase Manhattan Bank, N.A., 81 B.R. 194, 202 (D.Mass.1987). Second, mere nondisclosure will generally not support any cause of action for misrepresentation. See Nei v. Burley, 388 Mass. 307, 310-11, 446 N.E.2d 674 (1983). Third, statements of opinion or judgment relating to future events are generally not actionable. Logan, 736 F.Supp. at 1200. Exceptions to the third rule — and statements that may be actionable — include "where the defendant misrepresents his actual present intent to perform a future act" or "where the parties have unequal knowledge of the subject matter in question and where the future event is fully within the declarant's control." Id., discussing Barrett Associates Inc. v. Aronson, 346 Mass. 150, 190 N.E.2d 867 (1963); Cellucci v. Sun Oil Co., 2 Mass.App.Ct. 722, 730, 320 N.E.2d 919 (1974).

To succeed with a claim for intentional misrepresentation, a plaintiff must show that

the defendant made a false misrepresentation of a material fact with knowledge of its falsity for the purpose of inducing the plaintiff to act thereon, and that the plaintiff relied upon the representation as true and acted upon it to his damage.

Metropolitan Life Insurance Co. v. Ditmore, 729 F.2d 1, 4 (1st Cir.1984), citing Barrett Associates, Inc. v. Aronson, 346 Mass. at 152, 190 N.E.2d at 868; see Logan, 736 F.Supp. at 1199, citing Danca v. Taunton Savings Bank, 385 Mass. 1, 8, 429 N.E.2d 1129 (1982). A plaintiff does not have to prove an actual intent to deceive, and "`nothing is clearer than the fact that under Massachusetts law plaintiffs need not prove that defendant knew his statements to be false.'" Logan, 736 F.Supp. at 1199, citing Nickerson v. Matco Tools Corp., 813 F.2d 529, 530 (1st Cir. 1987); see Ditmore, 729 F.2d at 5 (the element of fraudulent intent may be proved by showing that a defendant made a statement as of his own knowledge that was false); Snyder v. Sperry & Hutchinson Co., 368 Mass. 433, 333 N.E.2d 421, 428 (1975) (an intentional misrepresentation is not a prerequisite to recovery for deceit); see also Adams v. Hyannis Harborview, 838 F.Supp. 676, 694 (D.Mass.1993) ("Under Massachusetts law, partial disclosures and half-truths may, under some circumstances, be considered tantamount to misrepresentations of fact."). In the instant case, plaintiff has not alleged, and the record does not reveal, circumstances that would support a claim for intentional misrepresentation. Plaintiff, however, has properly set forth a claim for negligent representation. See Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Plaintiff's Memorandum") at 2 ("Count I of the complaint alleges that the defendant negligently misrepresented a fact which was easily ascertainable. It sounds in negligence.").

In establishing a claim for negligent misrepresentation, a party must show that "the defendant acted unfairly or unreasonably." Adams, 838 F.Supp. at 694, discussing Quincy Co-Op. Bank v. A.G. Edwards & Sons, Inc., 655 F.Supp. 78, 87 (D.Mass.1986), citing Danca, 385 Mass. at 8, 429 N.E.2d at 1129 (recovery against a bank for creating the impression that all was in order when, in fact, it was not); see also Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 536 N.E.2d 344 (1989). Moreover, "although mere non-disclosure by itself generally will not support a cause of action for negligent misrepresentation (see Nei v. Burley, 388 Mass. 307 at 310-11, 446 N.E.2d at 674 it is well settled under Massachusetts law that `a party who discloses partial information that may be misleading has a duty to reveal all the material facts he knows to avoid deceiving the other party.'" Adams, 838 F.Supp. at 694, discussing V.S.H. Realty, Inc. v. Texaco, Inc., 757 F.2d 411 (1st Cir.1985). Finally, to prevail on a negligent misrepresentation claim under Massachusetts law, a plaintiff must prove privity between the parties. Rand v. Cullinet Software, 847 F.Supp. 200, 214 (D.Mass.1994); see In re Bank of Boston Corp. Sec. Litigation, 762 F.Supp. 1525, 1536 (D.Mass.1991); Hurley v. Federal Deposit Ins. Corp., 719 F.Supp. 27, 34 (D.Mass.1989). Absent such privity, plaintiff must prove that defendant had knowledge of its actual reliance. Rand, 847 F.Supp. at 214.

Here, defendant contends that the Court should grant summary judgment because defendant owes no duty to plaintiff for any negligent misrepresentations in the book. Alternatively, plaintiff argues that defendant does have a duty of care because "social policy dictates that a publisher who undertakes to publish a book, for profit, assumes the obligation to do so carefully." Plaintiff's Memorandum at 5. Upon review, it is plain that no Massachusetts state appellate court has directly addressed the present issue. Therefore, the Court will analyze the law of other jurisdictions, alongside the requirements of a negligent misrepresentation claim, discussed above.

In Winter v. G.P. Putnam's Sons, 938 F.2d 1033 (9th Cir.1991), a group of mushroom enthusiasts became severely ill after picking and eating mushrooms, on reliance of information in a book. The plaintiffs-mushroom enthusiasts brought suit against the defendant book publisher asserting theories of products liability, breach of warranty, negligence, negligent misrepresentation and false representation. Thereafter, defendant moved for summary judgment which was granted by the district court.

On appeal, addressing plaintiffs' claims of copyright infringement, libel, misrepresentation, negligent misrepresentation, negligence and mistake, the Ninth Circuit Court of Appeals stated: "Unless it is assumed that the publisher is a guarantor of the accuracy of an author's statement of fact, plaintiffs have made no case under any of these...