Loomis v. Tulip, Inc., C.A. 97-10334-JLT.

• Decision Date: 27 January 1998
• Docket Number: No. C.A. 97-10334-JLT.,C.A. 97-10334-JLT.
• Citation: 9 F.Supp.2d 22
• Parties: Rodney LOOMIS, d/b/a Loomco International and Loomco Auctioneers, Inc., Plaintiffs, v. TULIP, INC., Polymerics, Inc., Duncan Enterprises, Inc., Creative People, Inc., Barry D. Hochberg, and Mark S. Greenfield, Defendants, and Fleet Bank, N.A., Trustee Defendant.
• Court: U.S. District Court — District of Massachusetts

9 F.Supp.2d 22

Rodney LOOMIS, d/b/a Loomco International and Loomco Auctioneers, Inc., Plaintiffs, v. TULIP, INC., Polymerics, Inc., Duncan Enterprises, Inc., Creative People, Inc., Barry D. Hochberg, and Mark S. Greenfield, Defendants and Fleet Bank, N.A., Trustee Defendant.

No. C.A. 97-10334-JLT.

United States District Court, D. Massachusetts.

January 27, 1998.

Kevin F. Moloney, Barron & Stadfeld, Boston, MA, Louis S. Ederer, Cowan, Liebowitz & Latman, New York, NY, for Rodney Loomis, Loomco Auctioneers, Inc.

Stephanie M. Williams, Mark D. Cahill, Kurt Wm. Hemr, David A. Attisani, Choate, Hall & Stewart, Boston, MA, for Duncan Enterprises.

Paul S. Hughes, Newton, MA, for Creative People, Inc., Barry D. Hochberg.

Mark D. Cahill, David A. Attisani, Choate, Hall & Stewart, Boston, MA, for Mark S. Greenfield.

MEMORANDUM

TAURO, Chief Judge.

This matter arises from the botched negotiation of a storage facility lease between the plaintiffs, Rodney Loomis, Loomco International, and Loomco Auctioneers (collectively, "Loomco"), and Berkeley Investments ("Berkeley"), a nonparty to the supervening action. In Count Ten of the Amended Verified Complaint, Loomis asserts a claim of tortious interference with contractual relations against Defendant Mark S. Greenfield in connection with the lease.¹ Greenfield is an attorney who has represented Defendant Duncan, Inc. ("Duncan") at all times relevant to this case. Presently before the court is Defendant Greenfield's motion to dismiss.

I. GOVERNING LEGAL PRINCIPLES

A. Dismissal Standard

A motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), must be granted if the court determines, after viewing the well-pleaded facts in the light most favorable to the plaintiffs, that they can prove no set of facts that would entitle them to relief. Lessler v. Little, 857 F.2d 866, 867 (1st Cir.1988), cert. denied, 489 U.S. 1016, 109 S.Ct. 1130, 103 L.Ed.2d 192 (1989). Under Massachusetts law, Loomco would be required to establish the following in order to avoid dismissal of its claim against Greenfield for tortious interference with prospective contractual relations: (1) a contractual or business relationship between Loomco and Berkeley contemplating economic benefit; (2) Greenfield's knowledge of that business relationship; (3) Greenfield's intentional interference with that relationship for an improper purpose or by improper means; and (4) damages. Swanset Development Corp. v. Taunton, 423 Mass. 390, 397, 668 N.E.2d 333, 338 (1996). Moreover, even if Loomco demonstrates each of these elements, it will prevail only if Greenfield's offending action is "an unprivileged interference." Laurendeau v. Kewaunee Scientific Equipment, 17 Mass.App.Ct. 113, 122, 456 N.E.2d 767, 773 (Mass.App.Ct.1983)

B. The Massachusetts Litigation Privilege

1. The Parties' Positions

Although Greenfield denies all of Loomco's allegations against him, he states that, even if Loomco's claims are true, their action against him for tortious interference with prospective contractual relations is barred by the Massachusetts litigation privilege. More particularly, Greenfield asserts that Loomco's claim derives solely from certain negotiations indisputably undertaken by him on behalf of his client, Defendant Duncan, and his alleged misstatements before this court.² Anchoring Greenfield's analysis is the assertion that, because he represented Defendant Duncan's interests in the supervening litigation during any discussions he may have had with Berkeley, his statements are pertinent to the litigation and are, therefore, protected by the Massachusetts' litigation privilege.

Loomco, for its part, argues that, in order to be covered by the privilege, Greenfield's alleged tortious acts must have been directed toward a participant in the litigation, not an unconnected third party. Plaintiff further argues that Berkeley is just such an unrelated party and, as a result, even if Greenfield's alleged tortious acts were pertinent to the supervening litigation, Berkeley's nonparty status renders such acts unprivileged.

2. The Scope of the Privilege

Under Massachusetts law, an attorney's communications are absolutely privileged "[w]here 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, 884 (1976). In construing this tenet, the First Circuit, with then Judge Breyer writing, concluded that, although a statement must be "`pertinent to the proceedings' to come within the privilege, ... this requirement is to be broadly construed."³ Blanchette v. Cataldo, 734 F.2d 869 (1st Cir.1984)(quoting Sullivan v. Birmingham, 11 Mass.App.Ct. 359, 416 N.E.2d 528, 531 (Mass.App.Ct.1981)).

The Supreme Judicial Court set forth the justification for such broad construction of the privilege in Sriberg, explaining,

The public policy of permitting attorneys complete freedom of expression and candor in communication in their efforts to secure justice for their clients commends itself to us. The basic elements of such a policy were recognized early in this Commonwealth by Chief Justice Shaw in the following terms: "[I]t is, on the whole, for the public interest, and best calculated to subserve the purposes of justice, to allow counsel full freedom of speech, in conducting the causes, and advocating and sustaining the rights, of their constituents; and this freedom of discussion ought not to be impaired by numerous and refined distinctions."

Sriberg, 370 Mass. at 108-09, 345 N.E.2d at 884 (quoting Hoar v. Wood, 3 Metc. 193, 197-98, 44 Mass. 193 (1841)). Although the privilege and this underlying policy are most often asserted against complaints of libel or slander, see, e.g., Sriberg v. Raymond, 370 Mass. 105, 345 N.E.2d 882, it remains well-established that the privilege applies, "not only in defamation cases, but as a general bar to civil liability based on [an] attorneys's statements." Blanchette, 734 F.2d at 877; see also Rockland Trust, 860 F.Supp. at 903. Moreover, as the Blanchette court observed, "[t]he Massachusetts district court has ... recognized the [specific] applicability of the privilege to suits for interference with advantageous relations." Blanchette, 734 F.2d at 877.

II. ANALYSIS

With these considerations in mind, the court must determine the following: (1) whether there exists, as Loomco asserts, a bar to application of the privilege in all cases where the offending communication is made to a nonparty, thereby requiring abrogation of Greenfield's privilege based on Berkeley's nonparty status; (2) if no such bar exists, whether the offending communication was pertinent to the corresponding litigation and, therefore, deserving of the privilege; and (3) if the offending communication was pertinent, whether the privilege was lost by unwarranted publication of the communication to unrelated third parties.

A. The Effect of the Communicatee's Nonparty Status

The fact that Berkeley is not a party to the litigation does not necessarily render all communications made to it unprivileged. Rather, the relevant inquiry of whether the communication is pertinent to the supervening litigation governs. In Leavitt v. Bickerton, 855 F.Supp. 455 (D.Mass.1994), for example, the allegedly offending communication transpired between an agent of the defense attorney and certain nonparty employers of the plaintiff. Despite the communicatee employers' nonparty status, the court focused its inquiry on whether the communication was pertinent to the litigation.⁴ In fact, the court explicitly rejected the contention that the "privilege ... should be narrowly drawn because the parties contacted were ... not parties involved in the suit."

This court, therefore, deems Loomco's contention that Berkeley's nonparty status acts as an absolute bar to application of the privilege erroneous.

B. The Pertinence of Defendant Greenfield's Communication

In determining whether the Greenfield/Berkeley communication was pertinent to the litigation between Loomco and the named defendants, both Leavitt and Blanchette provide guidance. In particular, the Leavitt court elucidated the pertinence standard by referencing and applying the Restatement (Second) of Torts, Section 586, as directed by the Supreme Judicial Court in Sriberg, 370 Mass. at 108, 345 N.E.2d 882. Comment c to Section 586 states that, to be pertinent, "defamatory matter [must have] some reference to the subject matter of the proposed or pending litigations, although it need not be strictly relevant to any issue involved in it."⁵ Moreover, as the Leavitt court further noted, "`the words "pertinent to the proceedings" are not to be construed narrowly, nor according to evidentiary rules as to admissibility.'" Id. At 457 (quoting Sullivan, 11 Mass.App.Ct. at 362, 416 N.E.2d 528).

In Leavitt, the plaintiff brought a malpractice action, alleging that the defendant doctor had caused brain damage to her son. The statements at issue, made to the plaintiff's former employers, focused on the plaintiff's use of alcohol during her pregnancy and implied that her son's brain damage had resulted from Fetal Alcohol Syndrome rather than malpractice. Given that the statements made by the defense attorney's agent to the former employers thereby informed a theory of alternative causation, the court determined that they were pertinent to the litigation and, therefore, protected by the privilege.

The Blanchette court employed a similarly broad definition of pertinence in a case involving alleged tortious interference with contractual relations. There, the court ruled that the communication between Penn Central's attorney and the Santa Fe was pertinent to the settlement discussions between the freight claims agent and the Santa Fe because those discussions involved shipments carried over both Santa Fe and...