Mullane v. Breaking Media, Inc.

• Decision Date: 06 January 2020
• Docket Number: Civil Action No. 18-12618-PBS
• Parties: Jonathan MULLANE, Plaintiff, v. BREAKING MEDIA, INC., and Elie Mystal, Defendants.
• Court: U.S. District Court — District of Massachusetts

433 F.Supp.3d 102

Jonathan MULLANE, Plaintiff,

v.BREAKING MEDIA, INC., and Elie Mystal, Defendants.

Civil Action No. 18-12618-PBS

United States District Court, D. Massachusetts.

Filed January 6, 2020

Jonathan Mullane, Somerville, MA, pro se.

John Mark Dickison, Brendan P. Slean, Joshua M.D. Segal, Lawson & Weitzen, LLP, Boston, MA, for Defendant.

MEMORANDUM AND ORDER

Saris, D.J.

Plaintiff, Jonathan Mullane, a former student of the University of Miami Law School, brings this action against¹ Breaking Media, Inc., and journalist Elie Mystal alleging that an article on the legal website "Above the Law" was defamatory.

Mullane asserts claims against Mystal and Breaking Media for libel per se, tortious interference with contractual relations, tortious interference with advantageous business relations, tortious interference with prospective economic advantages, intentional infliction of emotional distress, unfair and deceptive practices in violation of Mass. Gen. Laws ch. 93A § 9, joint and several liability for the republication of libel per se, and civil conspiracy.

Defendants' motion to dismiss (Docket No. 80) is ALLOWED and Plaintiff's remaining motions (Docket Nos. 103, 140, 141, 142, 143, 144, 145, 157, 162)² are DENIED as MOOT. The motions of Plaintiff's father, E. Peter Mullane, related to intervention in this case (Docket Nos. 138, 158, 161) are DENIED as MOOT.

BACKGROUND

I. Factual Background

The facts are primarily drawn from the Plaintiff's Second Amended Complaint and the documents referenced therein, including the attached transcript of the Court hearing. Docket No. 57; Docket No. 57-1.

A. Mullane's Hearing with Judge Moreno

Mullane was a student at the University of Miami School of Law beginning in the fall of 2017. See Docket No. 57-1 at 11; Docket No. 138-1 at 10-12. During the spring of 2018, Mullane served as a legal intern with the United States Attorney's Office ("USAO") in the Southern District of Florida. Docket No. 57 ¶¶ 7, 10.

While employed with the USAO, Mullane was party to a pro se civil lawsuit involving a credit card dispute pending before Judge Federico Moreno in the United States District Court for the Southern District of Florida. Docket No. 22 at 2. In April 2018, Mullane entered Judge Moreno's chambers, allegedly to request that the clerk make an entry of default in connection with this personal civil dispute. See Docket No. 57 ¶ 83-84.

Judge Moreno subsequently summoned Mullane to a hearing on April 10, 2018. Docket No. 57 ¶ 52. During the hearing, Mullane appeared to acknowledge that he had sought to file a writ of mandamus in his pending case. See Docket No. 57-1 at 13:14-18 ("THE COURT: Did you mention the word petition for mandamus? ... MR. MULLANE: I did."); id. at 25:17-19 ("THE COURT: What was the question? MR. MULLANE: I can't remember exactly. It was about how to file the mandamus request or something."). But see id. at 7:19-20 ("MR. MULLANE: I said that I had a specific question about the entry of default."). Judge Moreno reprimanded Mullane for his actions. See generally Docket No. 57-1 at 4-30. Mullane was terminated from his internship at the USAO soon after the hearing. Docket No. 57 ¶ 21.

B. "Above the Law" Publishes Article on the Hearing

On April 30, 2018, the legal news publication "Above the Law" published an article, titled "Judge Detonates Pro Se Law Student So Hard I Now Must Defend a Dumb Kid" (the "Article"). Docket No. 57 ¶ 68; Docket No. 57-1 at 32-36. The Article was authored by Mystal, the Executive Editor of "Above the Law." Docket No. 57 ¶ 68, 77. "Above the Law" is owned and published by Breaking Media. Docket No. 23 ¶ 4.

The Article describes the April 10, 2018 hearing. It states, inter alia:

• "[Mullane] was trying to file a petition of mandamus -- which basically asks an appellate court to order Judge Moreno to work on his case faster. That's pretty rude. He didn't know where to file the petition, and ended up asking the judge's career clerk, in the judge's chambers, ex-parte, what to do about it. That's pretty dumb. Initially, the clerk wasn't even going to let him in, but Mullane said he worked for the U.S. Attorney's office (he's an intern), which gained him access to the chambers to discuss his own personal case. That's pretty unethical."

• "Basically Mullane was an idiot ...."

• "[T]o gain entry into those chambers, he dropped his USAO cred, even though he was just an intern, and even though he was there for reasons that had nothing to do with his internship."

• "It also appears that Mullane is a little entitled ponce...."

• "Turns out the kid's father is also an attorney ... wonder if that helped him get his sweet internship."

• "Okay, so Jon Mullane is a little brat who [sic] with a USAO internship who had an ex-parte conversation in judge's chambers while trying to file a motion arguing that the judge was lazily ignoring his pro se complaint."

• "If Mullane is a dauphin ...."

• "The kid wasn't trying to upend the wheels of justice, he made a series of dumb mistakes."

Docket No. 57-1 at 32-36.

Following the publication of the Article, the Securities Exchange Commission ("SEC") rescinded Mullane's invitation to serve as a "Student Honors Volunteer." Docket No. 57-1 at 43. Mullane later withdrew from the University of Miami School of Law. Docket No. 57 ¶ 125. He claims that the Defendants' actions caused him economic, professional and emotional harm. Id. ¶ 110-126.

II. Procedural Background

Mullane filed suit against Judge Moreno and Breaking Media in Suffolk County Superior Court on November 27, 2018. Docket No. 1-1. The United States then removed the case to federal court. Docket No. 1. After Mullane added additional parties via a First Amended Complaint, Docket No. 14, and defendants filed motions to dismiss, Docket No. 7, Docket No. 21, the case was referred to Magistrate Judge Dein, Docket No. 37.

On August 13, 2019, Magistrate Judge Dein issued a Report and Recommendation on twelve pending motions in this case. Docket No. 120. This Court adopted the Report and Recommendation as pertaining to the defendants United States of America, Federal District Court Judge Federico A. Moreno, and Assistant U.S. Attorney ("AUSA") Alison W. Lehr. Docket No. 134. During a hearing on October 1, 2019, Defendants Breaking Media and Elie Mystal waived their motion to dismiss based on lack of personal jurisdiction. All parties assented to the Court's ruling, without further hearing, on Defendants' motion to dismiss for failure to state a claim.

STANDARD OF REVIEW

A Rule 12(b)(6) motion is used to dismiss complaints that do not "state a claim upon which relief can be granted." See Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, the factual allegations in a complaint must "possess enough heft" to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–57, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In evaluating the motion, the Court must accept the factual allegations in the plaintiff's complaint as true, construe reasonable inferences in his favor, and "determine whether the factual allegations in the plaintiff's complaint set forth a plausible claim upon which relief may be granted." Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014).

DISCUSSION

I. Massachusetts Libel Law and the Fair Report Privilege ³

A. Parties' Arguments

The Defendants claim the Article is subject to immunity under the Fair Report Privilege. Docket No. 22 at 1. They contend that any factual statements in the Article are accurate reports of the April 2018 hearing based on the official court reporter's transcript. Id. at 22. Defendants further argue that Massachusetts' "actual malice" exception does not apply in this case, because the Article dealt with a matter of public concern and Plaintiff cannot show "actual malice" under Mass. Gen. Laws ch. 231 § 92. Docket No. 26 at 8.

Mullane responds that the Fair Report Privilege does not apply because the Article contains "homophobic, pejorative language and personal slights" that render it unfair. Docket No. 26 at 15. Mullane also claims that the Article was inaccurate in two respects. First, Mullane claims the Article inaccurately reported that Mullane attempted to request a writ of mandamus in his Florida lawsuit. Mullane alleges that he instead sought an entry of default or to obtain copies of the record. Docket No. 57 ¶¶ 83, 90. Second, Mullane argues that the Article contains the "factually false" statement that "Plaintiff had committed a criminal offense." Docket No. 26 at 5.

Finally, Mullane argues that Defendants cannot assert the Fair Report Privilege in this case because it regards a matter of private concern and Defendants acted with "actual malice." Id. at 3, 6.

B. Legal Standard

To establish libel under Massachusetts law, a plaintiff must establish "(1) that the defendant published a written statement; (2) of and concerning the plaintiff; that was both (3) defamatory and (4) false; and (5) either caused the plaintiff economic loss, or is actionable without proof of economic loss." Noonan v. Staples, 556 F.3d 20, 25 (1st Cir. 2009).

Massachusetts recognizes "a privilege for fair and accurate reports of official actions and statements." Howell v. Enter. Publ'g Co., LLC, 455 Mass. 641, 920 N.E.2d 1, 13 (2010). The privilege provides immunity "from liability for claims arising out of such reports." Yohe v. Nugent, 321 F.3d 35, 42 (1st Cir. 2003). To qualify as "fair and accurate" reporting, an article need only give a "rough-and-ready summary" that was "substantially correct." Id. at 43. Importantly, "accuracy" refers to "the factual correctness of the events reported and not to the truth of the events that actually transpired." Id. at 44. The Fair Report Privilege encompasses reports on judicial proceedings, even if the reports are not "in technically precise language." Ricci v. Venture Magazine, Inc., 574 F. Supp. 1563, 1567 (D. Mass. 1983) ; see also Sibley v. Holyoke...