Barrigas v. United States, Civil Action No. 17-cv-10232-ADB

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Writing for the CourtBURROUGHS, D.J.
Docket NumberCivil Action No. 17-cv-10232-ADB
Decision Date09 March 2018

and HOWARD STERN, Defendants.

Civil Action No. 17-cv-10232-ADB


March 9, 2018



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.


A. Amended Complaint and Other Sources

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

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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) (district court properly considered a recording attached to defendant's motion under Rule 12(b)(6) where the recording was referenced in the complaint, was central to the claims, and there was no dispute as to its accuracy or authenticity); Speaker v. U.S. Dep't. of Health & Human Servs. Ctrs. For Disease Control & Prevention, 623 F.3d 1371, 1379-80 (11th Cir. 2010) (because videos attached to motion to dismiss were not disputed and were central to plaintiff's

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claim, court could properly rely on them at the motion to dismiss stage); Eggleston v. Daniels, No. 15-11893, 2016 WL 4363013, at *4 n.4 (E.D. Mich. Aug. 16, 2016) (considered video recording of television show that was "referred to in the complaint and [was] central to Plaintiff's claims" at the motion to dismiss stage); Jackson v. Gatto, No. 13-02516, 2014 WL 2743130, at *3 (D. Colo. June 17, 2014) (audio/video recording and transcript attached to motion to dismiss, where neither side challenged its authenticity, was within scope of Rule 12(b)(6)).

B. Summary of Facts

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 following

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are Agent Forsythe's statements to Plaintiff that were broadcasted:1

AGENT FORSYTHE: $71 due on the 20th.2 [ECF No. 37 at 2:8]

AGENT FORSYTHE: Let's see. [ECF No. 32 at 4:12].

AGENT FORSYTHE: I know. I mean, it's like—right now, as of the 1st of June, it's $1,228.26 minus the—that $100. I mean, that could take a year to pay off. Id. at 4:19-22.

AGENT FORSYTHE: It should remain the same. So the interest rate will remain the same but when you make the payment it's going to go towards the tax first. Id. at 5:4-7.

AGENT FORSYTHE: So basically the way it works is when you're paying us, it's always going towards the tax until the tax is reduced down to zero. Id. at 5:9-12.

AGENT FORSYTHE: —and then it will go towards the penalty. And when the penalty's reduced down to zero, then it will bring—then it—the payments will go towards the interest and that goes down to zero. Id. at 5:14-18.

AGENT FORSYTHE: If you pay the pay penalty it's half. Id. at 5:23-24.

AGENT FORSYTHE: It's one-half of one percent of the total amount due—of the total tax due and the interest is three percent yearly. Id. at 6:2-4.

AGENT FORSYTHE: —compounded daily. Id. at 6:6.

AGENT FORSYTHE: 71. Id. at 6:10.

AGENT FORSYTHE: Yeah. It won't take effect until next month. Id. at 6:12-13.

AGENT FORSYTHE: But, you know, we can send a referral over to your direct deposit—direct debit liaison and they'll change it. Id. at 6:16-18.

AGENT FORSYTHE: No. We can do it over the phone. Id. at 6:21-22.

AGENT FORSYTHE: So are you going to increase it to 100?3 Still on the same date? Id. at 6:24-25.

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AGENT FORSYTHE: Okay. Let's get this. Id. at 7:4.

AGENT FORSYTHE: I believe it's direct deposit, direct debit. Id. at 7:11-12.

AGENT FORSYTHE: —statements. Id. at 7:15.

AGENT FORSYTHE: Again, with your bills, when it is paid off it will let you know. Id. at 7:19-20.

AGENT FORSYTHE: Yeah. Id. at 7:23.

AGENT FORSYTHE: Yeah. I was going to send that as well. Id. at 8:3-4.

AGENT FORSYTHE: Is your phone number still [omitted]4? Id. at 8:8-9.

AGENT FORSYTHE: You're welcome. Id. at 8:16.

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.:

ROBIN QUIVERS: Jimmy? [ECF No. 32 at 4:4].

HOWARD STERN: Jimmy? Id. at 4:5.

ROBIN QUIVERS: Hello? Id. at 4:14.

They speculated as to the topic of his conversation with Plaintiff, i.e.:

ROBIN QUIVERS: What is he doing? Making a transaction? Id. at 4:9-10.

HOWARD STERN: High finance. Id. at 4:23.

HOWARD STERN: I see. He's at work. Id. at 5:8.

HOWARD STERN: He's doing collections. Id. at 5:13.

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They noted the complexity of the subject matter, i.e.:

HOWARD STERN: Boy, [I've] got no head for numbers. Id. at 5:19-20.

ROBIN QUIVERS: No. I don't know what he's talking about at all. Id. at 5:21-22.

HOWARD STERN: I'm not sure what he's saying but it sounds like a raw deal. Id. at 5:25-6:1.

HOWARD STERN: I think I'm in math. I'm in math class and I'm flunking because I don't know one thing he's saying. Id. at 7:1-3.

The hosts also expressed disinterest in Agent Forsythe's work, i.e.:

HOWARD STERN: [B]y the way, this is the most boring job ever. Id. at 7:13-14.

HOWARD STERN: I'd rather live in my parents' basement if I had to do this. Id. at 7:16-17.

HOWARD STERN: [You've] got the most boring job, dude. Id. at 9:1-2.

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:

ROBIN QUIVERS: What are you doing with that person? What are you paying off? Id. at 9:3-4.

HOWARD STERN: All I know is that was the most confusing phone call and I still don't know what the guy owes. Id. at 9:13-15.

ROBIN QUIVERS: I don't know why they need to ask all those questions. They need to pay the bill. Id. at 9:16-18.

HOWARD STERN: Right. Just give him the bottom line, Jimmy. Stop going through all the math. Id. at 9:19-21.

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 not

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