Barrigas v. United States
Decision Date | 09 March 2018 |
Docket Number | Civil Action No. 17-cv-10232-ADB |
Parties | JUDITH BARRIGAS, Plaintiff, v. UNITED STATES OF AMERICA; THE HOWARD STERN PRODUCTION COMPANY; and HOWARD STERN, Defendants. |
Court | U.S. District Court — District of Massachusetts |
BURROUGHS, D.J.
A telephone conversation between Plaintiff and an agent of the Internal Revenue Service ("IRS") concerning her tax liability and repayment plan partially aired during a segment of The Howard Stern Show on Sirius XM satellite radio. Plaintiff asserts various causes of action against the Howard Stern Production Company and Howard Stern (collectively, the "Stern Defendants") and the United States relating to this alleged invasion of privacy. Currently pending before the Court are the Stern Defendants' motion to dismiss for failure to state a claim [ECF No. 30] and the United States' partial motion to dismiss for lack of subject matter jurisdiction or improper venue. [ECF No. 34]. For the reasons that follow, the Stern Defendants' motion is GRANTED, and the United States' motion is GRANTED as to Count I. Plaintiff's case may proceed with respect to Count II against the United States.
The following summary of facts is drawn from the operative complaint [ECF No. 5] ("Amended Complaint"), the well-pleaded allegations of which are taken as true for purposes of evaluating the motions to dismiss. See Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993). Ordinarily, the Court does not consider documents that were not attached to the complaint or expressly incorporated therein. Id. Courts have, however, "made narrow exceptions for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to [plaintiff's] claim; or for documents sufficiently referred to in the complaint." Id.; see Miss. Pub. Employees' Ret. Sys. v. Bos. Sci. Corp., 523 F.3d 75, 86 (1st Cir. 2008).
The Stern Defendants filed an audio recording of The Howard Stern Show segment at issue, and the Stern Defendants and the United States each filed separate transcripts of that segment. [ECF Nos. 32, 33, 37]. Counsel for the Stern Defendants avers that on May 16, 2017, he informed Plaintiff's counsel that the Stern Defendants intended to submit the recording without a motion to seal, and that Plaintiff's counsel did not respond prior to the filing of the motion to dismiss. [ECF No. 32 at ¶ 3]. Plaintiff did not object in her opposition briefing to the Court's consideration of the recording or the transcripts, and she has not otherwise disputed their accuracy or authenticity. Because the content of this segment of The Howard Stern Show is central to the dispute and is referenced throughout the Amended Complaint, the Court will consider the recording and transcripts in reviewing whether Plaintiff has plausibly stated her claims. See Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103-04 (10th Cir. 2017) ( ); Speaker v. U.S. Dep't. of Health & Human Servs. Ctrs. For Disease Control & Prevention, 623 F.3d 1371, 1379-80 (11th Cir. 2010) ( ); Eggleston v. Daniels, No. 15-11893, 2016 WL 4363013, at *4 n.4 (E.D. Mich. Aug. 16, 2016) ( ); Jackson v. Gatto, No. 13-02516, 2014 WL 2743130, at *3 (D. Colo. June 17, 2014) ( ).
On May 19, 2015, Plaintiff called an IRS customer service center to discuss whether her tax refund for the 2014 tax year had been incorrectly applied toward her 2011 and 2012 tax liabilities, which were already subject to a repayment agreement. Am. Compl. ¶¶ 15-16. Plaintiff's telephone call was routed to an IRS customer service agent, Jimmy Forsythe ("Agent Forsythe"), who, unbeknownst to Plaintiff, had been on hold with the Sirius XM satellite radio program, The Howard Stern Show, using a different telephone line. Id. ¶¶ 18-23. At some point during Agent Forsythe's conversation with Plaintiff, The Howard Stern Show took Agent Forsythe off hold. Id. ¶¶ 24-25. Apparently unaware that he was on the air, Agent Forsythe continued to speak to Plaintiff regarding her tax liability and repayment plan, and, toward the end of the conversation, mentioned Plaintiff's telephone number. Id. ¶¶ 25-26. The Howard Stern Show segment, however, only captured Agent Forsythe's side of his conversation with Plaintiff. Neither Plaintiff's voice nor her statements were audible during the broadcast. [ECF Nos. 32, 37]. Although Plaintiff's telephone call to Agent Forsythe lasted approximately 45 minutes, only about three minutes of their conversation aired. Am. Compl. ¶ 18. The followingare Agent Forsythe's statements to Plaintiff that were broadcasted:1
At this point, Agent Forsythe began directly addressing the hosts of The Howard Stern Show. He acknowledged that he was a collector "for the government" before the conversation between the hosts and Agent Forsythe turned to an unrelated topic. [ECF No. 32 at 9:7-9]. While Agent Forsythe's statements above were airing, the hosts of The Howard Stern Show provided commentary. They attempted to get Agent Forsythe's attention, i.e.:
They speculated as to the topic of his conversation with Plaintiff, i.e.:
They noted the complexity of the subject matter, i.e.:
The hosts also expressed disinterest in Agent Forsythe's work, i.e.:
They did not comment specifically on the person with whom Agent Forsythe was conversing, other than to say to Agent Forsythe once he realized he was on the air:
Plaintiff was unaware that Agent Forsythe had called The Howard Stern Show until she began receiving text messages and telephone calls from unknown individuals that were "harassing in nature" in the days following the broadcast. Am. Compl. ¶¶ 20, 33. She reported the incident to the IRS and to The Howard Stern Show, but the IRS only took action after she reported the incident to a local news station. Id. ¶¶ 34-37. The Howard Stern Show did notrespond to her communications about the incident and a...
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