Hayes v. Mirick

• Decision Date: 13 May 2019
• Docket Number: CIVIL ACTION NO. 18-12238-TSH
• Citation: 378 F.Supp.3d 109
• Parties: Gordon H. HAYES, Jr., Plaintiff, v. John O. MIRICK and Mirick, O'Connell, DeMallie & Lougee, LLP, Defendants.
• Court: U.S. District Court — District of Massachusetts

378 F.Supp.3d 109

Gordon H. HAYES, Jr., Plaintiff,

v.John O. MIRICK and Mirick, O'Connell, DeMallie & Lougee, LLP, Defendants.

CIVIL ACTION NO. 18-12238-TSH

United States District Court, D. Massachusetts.

Filed May 13, 2019

John S. Day, Day Law Firm, P.C., Duxbury, MA, for Plaintiff.

Catherine G. Curley, Mirick, O'Connell, DeMallie & Lougee, LLP, Westborough, MA, for Defendants.

John O. Mirick, Worcester, MA, pro se.

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS (Docket No. 14)

TIMOTHY S. HILLMAN, DISTRICT JUDGE

Gordon H. Hayes, Jr. ("Plaintiff") filed this suit bringing several claims against John O. Mirick ("Defendant Mirick") and Mirick, O'Connell, DeMaillie & Lougee, LLP ("Mirick O'Connell") (collectively "Defendants"). Plaintiff brings eight claims against Defendant Mirick: breach of fiduciary duty (Count I), negligence (Count II), deceit and misrepresentation (Count III), civil conspiracy (Count IV), defamation (Count V), invasion of privacy (Count VI), intentional infliction of emotional distress (Count VII), and unjust enrichment (Count VIII). Plaintiff also brings a claim for vicarious liability against Mirick O'Connell (Count IX), premised on Defendant Mirick's alleged liability, who is of counsel at Mirick O'Connell.

Defendants subsequently filed a motion to dismiss for failure to state a claim. (Docket No. 14). For the reasons stated below, Defendants' motion is granted in part and denied in part.

Background

The following facts are taken from Plaintiff's Complaint (Docket No. 2) and assumed to be true for the purposes of this motion. The court also may consider "matters fairly incorporated within [the Complaint] and matters susceptible to judicial notice." In re Colonial Mortgage Bankers Corp. , 324 F.3d 12, 15 (1st Cir. 2003).

On November 18, 2008, the Plymouth County Probate and Family Court appointed Attorney Tracy A. Craig to serve as Plaintiff's permanent conservator. On October 21, 2015, Plaintiff filed a complaint in Worcester Superior Court against Attorney Craig. (Docket No. 15-1, at 2). Subsequently, Attorney Craig, represented by Defendant Mirick, petitioned to resign as Plaintiff's conservator. Id. at 7.¹ On July 1, 2016, Plaintiff then filed a petition to terminate the conservatorship. On August 17, 2017, the Plymouth County Probate & Family Court terminated the conservatorship.

From August 2015 until the termination of the conservatorship, Plaintiff was unable to reach Ms. Craig and was instead forced to direct his inquiries to Defendant Mirick. Plaintiff contends that Defendant Mirick, while acting as Plaintiff's "de facto conservator," breached his fiduciary duty to Plaintiff, disclosed Plaintiff's personal information to third parties, engaged in deceit and misrepresentation regarding Plaintiff's assets, conspired with Ms. Craig to convert Plaintiff's assets, and improperly withdrew money from Plaintiff's assets for compensation.

Legal Standard

A defendant may move to dismiss, based solely on the complaint, for the plaintiff's "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege "a plausible entitlement to relief." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 559, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Although detailed factual allegations are not necessary to survive a motion to dismiss, the standard "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555, 127 S.Ct. 1955. "The relevant inquiry focuses on the reasonableness of the inference of liability that the plaintiff is asking the court to draw from the facts alleged in the complaint." Ocasio-Hernandez v. Fortuno-Burset , 640 F.3d 1, 13 (1st Cir. 2011).

In evaluating a motion to dismiss, the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Langadinos v. American Airlines, Inc. , 199 F.3d 68, 68 (1st Cir. 2000). It is a "context-specific task" to determine "whether a complaint states a plausible claim for relief," one that "requires the reviewing court to draw on its judicial experience and common sense." Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citations omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—that the pleader is entitled to relief." Id. (quoting Fed. R. Civ. P. 8(a)(2) ). On the other hand, a court may not disregard properly pled factual allegations, "even if it strikes a savvy judge that actual proof of those facts is improbable." Twombly , 550 U.S. at 556, 127 S.Ct. 1955.

Discussion

1. Litigation Privilege (All Counts)

Defendants argue that all of Plaintiff's claims improperly rely on communications protected by the litigation privilege. Defendants have the burden of demonstrating the privilege applies. Meltzer v. Grant , 193 F.Supp.2d 373, 381 (D. Mass. 2002). The litigation privilege "shields an attorney from civil liability to nonclients for statements made in the course of litigation." Bartle v. Berry , 80 Mass.App.Ct. 372, 378, 953 N.E.2d 243 (2011). Further, statements are privileged "where such statements are made by an attorney engaged in his function as an attorney whether in the institution or conduct of litigation or in conferences and other communications preliminary to litigation." Sriberg v. Raymond , 370 Mass. 105, 109, 345 N.E.2d 882 (1976).

The privilege does not, however, "extend to claims that allege conduct, not speech, as the basis for liability. To the contrary, such an extension would unmoor the privilege from its original purpose—to shield individuals from defamation claims based on testimony given during a judicial proceeding." The Gillette Company v. Provost , 91 Mass.App.Ct. 133, 142, 74 N.E.3d 275 (2017) ; see also 58 Swansea Mall Drive, LLC v. Gator Swansea Property, LLC , No. CV 15-13538-RGS, 2016 WL 5946872, at *1 (D. Mass. Oct. 12, 2016) ("The law draws a distinction between holding a speaker liable for the content of her speech, on the one hand, and using that speech as evidence of her misconduct, on the other.").

"Whether [the litigation] privilege applies is determined on a case-by-case basis, after a fact-specific analysis, with a proper consideration of the balance between a plaintiff's right to seek legal redress for injuries suffered and the public policy supporting the application of such a strong protection from the burdens of the litigation." Fisher v. Lint , 69 Mass.App.Ct. 360, 365-66, 868 N.E.2d 161 (2007).

Here, it is not clear from Plaintiff's pleadings whether the privilege applies. See Shirokov v. Dunlap, Grubb & Weaver, PLLC , 2012 WL 1065578, at *23 (D. Mass. Mar. 27, 2012) ("[A] motion to dismiss on the basis of the litigation privilege only succeeds when the entitlement to the privilege is demonstrated by the complaint itself."). It is true that "the most common application of the [litigation] privilege is to bar defamation actions brought against a speaker based on her statements in the course of a lawsuit for fear of undermining the truth-seeking function of the judicial process." 58 Swansea Mall Drive , No. CV 15-13538-RGS, 2016 WL 5946872, at *1. It is also true, however, that "the unreasonable and unnecessary publication of information outside of the litigation may negate the privilege." Encompass Ins. Co. of MA v. Giampa , 522 F.Supp.2d 300, 309 (D. Mass. 2007) ; see also Robert L. Sullivan, D.D.S., P.C. v. Birmingham , 11 Mass.App.Ct. 359, 362, 416 N.E.2d 528 (1981) ("The privilege, however, cannot be exploited as an opportunity to defame with immunity, because it is available only when the challenged remarks are relevant or pertinent to the judicial proceedings. Moreover, the privilege may be lost by unnecessary or unreasonable publication to one for whom the occasion is not privileged." (citations omitted)). While the Court has taken judicial notice of the proceedings in which Defendant Mirick represented Ms. Craig, it is still not clear from the pleadings whether Defendant Mirick's statements fall within the scope of the litigation privilege. Therefore, it is inappropriate for the Court to decide whether it applies at this stage in the litigation. See Meltzer , 193 F.Supp.2d at 381 (declining to decide whether the litigation applied on motion to dismiss because the motion was not "based on a contention the complaint ‘on its face’ supports the application of the privilege." (quoting Kipp v. Kueker , 7 Mass.App.Ct. 206, 210, 386 N.E.2d 1282 (1979) ).

2. Fiduciary Duty & Negligence (Counts I & II)

Defendants next argue that Plaintiff fails to state a claim for breach of fiduciary duty and negligence because Defendant Mirick owed no duty to Plaintiff. "To satisfy the elements of a claim for breach of fiduciary duty, the plaintiff must allege four elements: (1) existence of a fiduciary duty arising from a relationship between the parties, (2) breach of that duty, (3) damages, and (4) a causal relationship between the breach and the damages." Szulik v. State St. Bank & Tr. Co. , 935 F.Supp.2d 240, 275 (D. Mass. 2013). In addition, "[t]o state a claim for negligence under Massachusetts law, a plaintiff must allege: (1) a legal duty owed by defendant to plaintiff; (2) a breach of that duty; (3) proximate or legal cause; and (4) actual damage or injury." MacKenzie v. Flagstar Bank, FSB , 738 F.3d 486, 495 (1st Cir. 2013).

Plaintiff contends that a duty arose for both claims because Defendant Mirick "assum[ed] the role of the Plaintiff's conservator." (Docket No. 1 ¶¶ 43, 47). In Massachusetts, a conservator may only be appointed by a court after notice and hearing. See Mass. Gen. L. c. 190B § 5-401(a) ("Upon petition and after notice and hearing in accordance with the provisions of this part, the court may appoint a limited or...