Lubin & Meyer, P.C. v. Manning

• Decision Date: 22 December 2017
• Docket Number: SUCV201702352BLS2
• Parties: LUBIN & MEYER, P.C. v. John J. MANNING
• Court: Massachusetts Superior Court

LUBIN & MEYER, P.C. v. John J. MANNING

No. SUCV201702352BLS2

Superior Court of Massachusetts, Suffolk, Business Litigation Session

December 22, 2017

Caption Date: December 20, 2017

MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION TO DISMISS FIVE (5) COUNTS OF DEFENDANT’S COUNTERCLAIM

Janet L. Sanders, Justice

This action arises from disputes between a law firm, plaintiff Lubin & Meyer, P.C., and a former associate, defendant John Manning. Plaintiff alleges that Manning breached his fiduciary duties to the firm and also made false representations. It alleges that as a result of these actions, Manning forfeited his rights under a referral fee agreement entered into at the time of his departure. Manning has counterclaimed. The case is now before the Court on the plaintiff’s Motion to dismiss certain counts of that counterclaim, specifically: Count II (for defamation), Count III (for invasion of privacy), Count V (for intentional infliction of emotional distress); Count VI (for abuse of process) and Count VII (alleging a violation of 93A claim). This Court concludes that the Motion must be Allowed as to all counts except for Count VI, which will remain in the case.

BACKGROUND

Manning was employed as an associate at Lubin & Meyer from 2012 through February 23, 2016, when he was terminated. At the time of his departure, the firm provided Manning with a letter confirming that he was entitled to payment on two cases that he claims to have generated while at the firm (the Referral Fee Agreement). According to the Complaint, the firm later discovered that Manning had engaged in certain conduct which breached his fiduciary duties to the firm: in particular, he failed to inform certain clients that the firm had rejected their claims and misled them as to the status of their cases. Lubin & Meyer also alleges that Manning represented to it that he had caused one of the clients covered by the Referral Fee Agreement to retain Lubin & Meyer when in fact that was not the reason for the client’s decision. Lubin & Meyer subsequently lodged a complaint about Manning with the Board of Bar Overseers (BBO) and then filed this lawsuit against Manning- a fact reported by the Boston Business Journal.

In his counterclaim, Manning alleges that Lubin & Meyer made false and defamatory statements about him. These statements are contained in the Complaint that Lubin & Meyer filed and that were later repeated in the Boston Business Journal article which was based on information " garnered directly" from the Complaint. ¶¶ 7 and 23-24 of Counterclaim. These same allegations form the basis for Manning’s claims that Lubin & Meyer invaded his privacy and intentionally inflicted emotional distress. As to the abuse of process count, Manning alleges that the firm instituted this action for an ulterior purpose- namely, to obtain leverage against him so as to induce him into giving up his rights under the Referral Fee Agreement. Finally, Manning alleges that the firm has violated Chapter 93A by its wrongful repudiation and attempted rescission of that Agreement.

DISCUSSION

It is well established that statements by a party or counsel in the institution of or during a judicial proceeding are absolutely privileged, provided that such statements relate to that proceeding. Sriberg v. Raymond, 370 Mass. 105 108-09 (1976). That privilege extends to statements that are made preliminary to a proposed or contemplated legal action. Visnick v. Caulfield, 73 Mass.App.Ct. 809, 813 (2009) (ordering dismissal of defamation and other tort claims based on employee’s statements in EEOC filings and in letter stating her intent to initiate that action). It also applies to statements made to the BBO. See Bar Counsel v Farber, 464 Mass. 784, 794 (2013).

As the Counterclaim makes clear, the defamation count is based on statements contained in Lubin & Meyer’s Complaint and the fact that the Boston Business Journal repeated these statements in an article ten days after the Complaint was filed. There are no allegations that Lubin & Meyer made any other statements or provided information to the Journal beyond that information that was included in the Complaint itself. The claims for intentional infliction of emotional distress and invasion of privacy fare no better, since...