Redgrave v. Boston Symphony Orchestra, Inc.

• Decision Date: 01 February 1983
• Docket Number: Civ. A. No. 82-3193-K.
• Citation: Redgrave v. Boston Symphony Orchestra, Inc., 557 F.Supp. 230 (D. Mass. 1983)
• Court: U.S. District Court — District of Massachusetts
• Parties: Vanessa REDGRAVE and Vanessa Redgrave Enterprises, Ltd., Plaintiffs, v. BOSTON SYMPHONY ORCHESTRA, INC., "John Doe," and "Richard Roe," Defendants.

557 F. Supp. 230

Vanessa REDGRAVE and Vanessa Redgrave Enterprises, Ltd., Plaintiffs, v.BOSTON SYMPHONY ORCHESTRA, INC., "John Doe," and "Richard Roe,"Defendants.

Civ. A. No. 82-3193-K.

United States District Court, D. Massachusetts.

February 1, 1983.

COPYRIGHT MATERIAL OMITTED

Daniel J. Kornstein, Kornstein Meister & Veisz, New York City, for plaintiffs.

Keith Long, Robert E. Sullivan, Herrick & Smith, Boston, Mass., for defendants.

Memorandum

KEETON, District Judge.

I.

Following cancellation by the Boston Symphony Orchestra ("BSO") of a series of concerts that she was to narrate, Vanessa Redgrave and Vanessa Redgrave Enterprises, Ltd. filed this suit.Plaintiffs allege that the concerts were cancelled because of opposition to Ms. Redgrave's publicly stated political views, in particular her views on Israel and the Palestine Liberation Organization.The complaint contains ten claims, six against the BSO and four against defendants whose identity is not yet known and who are alleged to have put pressure on the BSO to cancel the concerts.The claims against the BSO are the following: breach of contract claim requesting monetary damages (first claim); breach of contract claim requesting specific performance (second claim); tortious repudiation of contract claim requesting monetary damages (third claim); tortious repudiation of contract claim requesting specific performance (fourth claim); claim under 42 U.S.C. § 1986(seventh claim); and claim under the Massachusetts Civil Rights Act(eighth claim).

Defendant BSO now moves to dismiss all claims against it under Rule 12(b)(6), Fed.R.Civ.P.In reviewing this motion for dismissal for failure to state a claim upon which relief may be granted, the court may consider only those facts and allegations set forth in the complaint and must view them in the light most favorable to the plaintiffs.A claim will be dismissed only if plaintiffs are not entitled to relief under any set of facts they could prove, within the scope of the complaint.SeeHarper v. Cserr,544 F.2d 1121, 1122(1st Cir.1976).The facts as stated in the complaint are essentially as follows.Ms. Redgrave entered into a contract with the BSO on March 22, 1982 to narrate six performances of Stravinsky's "Oedipus Rex" scheduled in April, 1982.In late March and early April, unidentified defendants Doe and Roe threatened the BSO with "severe adverse consequences" if it did not repudiate and break that contract.Complaint, ¶ 32.Doe and Roe "made these threats ... because they disagree with Ms. Redgrave's public statements on public issues involving Israel and the Palestine Liberation Organization."Id.,¶ 33.As a result of those threats, BSO did in fact cancel the contract, id.,¶ 34, and that cancellation and the wrongful conduct of Roe and Doe have caused others subsequently to refrain from hiring Ms. Redgrave.Id.,¶ 55.

Plaintiffs' claims against the BSO will be reviewed separately below.

II.Breach of Contract Claim Requesting Monetary Damages

This claim states that the parties entered into a contract under which plaintiffVanessa Redgrave Enterprises, Ltd.("Enterprises") was to be paid $31,000 in exchange for Ms. Redgrave's services, that plaintiff Enterprises remained at all times ready and able to perform its obligations under the contract, but that BSO repudiated the contract.BSO's repudiation is alleged to have caused others to refrain from hiring Ms. Redgrave.Monetary damages, including incidental and consequential damages, are requested.

Defendant BSO concedes that the complaint states a breach of contract claim, but argues that, as a matter of law, plaintiffs may "recover nothing more than the alleged $31,000 contractual fee."Defendant's Memorandumat 4.Because the BSO has offered to pay plaintiffs' $31,000 contractual fee, BSO argues that the claim must be dismissed.

BSO's argument, in effect, is that there is no set of facts plaintiffs could prove that would entitle them to incidental or consequential damages.The argument relies heavily on Quinn v. Straus Broadcasting Group, Inc.,309 F.Supp. 1208, 1209(S.D. N.Y.1970), where the court stated that "the New York rule is that damages for breach of an employment contract are limited to the unpaid salary to which the employee would be entitled under the contract less the amount by which he should have mitigated his damages ...."Even assuming that the instant case is properly characterized as a breach of employment case, a point which plaintiffs apparently concede, and assuming further that the case would not be taken outside the "New York rule" by the specific allegation that the employment termination caused others to refrain from employing plaintiff, defendant has not demonstrated that the "New York rule" relied on by Quinn is also the Massachusetts rule.¹The general Massachusetts rule of contract damages was stated in the often-quoted case of John Hetherington & Sons, Ltd. v. William Firth Co.,210 Mass. 8, 21, 95 N.E. 961, 964(1911):

The fundamental principle of law ... for breach of contract ... is that the injured party shall be placed in the same position he would have been in, if the contract had been performed, so far as loss can be ascertained to have followed as a natural consequence and to have been within the contemplation of the parties as reasonable men as a probable result of the breach, and so far as compensation therefor in money can be computed by rational methods upon a firm basis of facts.

In light of the fact that defendant has not demonstrated that the New York rule as stated in Quinn, supra, controls the case, I cannot say that, in terms of the Hetherington formulation, there is no state of facts plaintiffs could prove that would entitle them to consequential or incidental damages.For instance, if plaintiffs proved other employers refused to hire Redgrave after termination of the BSO contract because of that termination (that loss of the other employment "followed as a natural consequence" from the termination of the contract), that this loss of other employment would reasonably have been foreseen by the parties at the time of contracting and at the time of termination, and that damages are rationally calculable, then plaintiffs may be entitled to damages that include monies for loss of the other employment.Although plaintiffs certainly have a heavy burden to carry here, it cannot be said with certainty at this time that they will not be able to meet this burden.²

III.Breach of Contract and Tortious Interference with Employment Claims Requesting Specific Performance

In their first claim, discussed directly above, plaintiffs allege breach of contract; in their third claim, they allege that the BSO committed a tort when it broke the contract "solely because of Ms. Redgrave's exercise of her fundamental statutory and constitutional rights of freedom of expression ...."Complaint, ¶ 22.In claims two and four, plaintiffs allege that they have no adequate remedy at law for the breach of contract and "tortious repudiation of ... contract" respectively, and request an order directing the BSO to reschedule the performances called for under for under the contract.³

Defendant argues that the specific performance prayed for here is barred by the United States Constitution and by common law.Because I agree that this court may not, under the common law, order specific performance in this case, it is unnecessary to reach the constitutional issue.

As the court noted in Loeb v. Textron, Inc.,600 F.2d 1003, 1023 n. 34(1st Cir.1979), "under traditional principles of contract law, courts normally do not enforce employment contracts with orders for specific performance."The policy is reflected in 34 M.G.L. ch. 214 § 1A, which excludes contracts for personal services from those that may be specifically enforced:

The fact that the plaintiff has a remedy in damages shall not bar an action for specific performance of a contract, other than one for purely personal services, if the court finds that no other existing remedy, or the damages recoverable thereby is in fact the equivalent of the performance promised by the contract relied on by the plaintiff, and the court may order specific performance if it finds such remedy to be practicable.

(Emphasis added.)

Plaintiffs argue correctly that the cases do not establish that specific performance is never to be granted in an employment contract case.⁴However, it is clearly true that specific performance in personal service cases is the exception, and plaintiffs offer no facts or argument, beyond the flat and unsupported assertion in their complaint that "plaintiffs have no adequate remedy at law," as to why specific performance is necessary or appropriate in this case.Cf.Dewey v. University of New Hampshire,694 F.2d 1 at 5(1st Cir.1982)(on specificity required in pleadings).Nor do plaintiffs cite any cases in which specific performance has been ordered in a situation even remotely similar to the situation here,⁵ where an artistic organization would be forced to schedule a series of concerts in two cities involving literally hundreds of performing personnel, not to mention support personnel, in addition to Ms. Redgrave.Such a result would inevitably constitute the kind of "undue hardship upon one party" that itself may be reason to deny specific performance.SeeFreedman v. Walsh,331 Mass. 401, 119 N.E.2d 419(1954).Although it may be argued that it is premature to decide the question of specific performance, seeValcourt v. Hyland,503 F.Supp. 630, 643(D.Mass.1980)(decision is to be made "in the exercise of sound discretion in light of the facts and circumstances of the particular case"), I conclude that there is no set of facts within the scope of the complaint that, if proved, would entitle plaintiffs to specific performance, and therefore claims two and four must be dismissed.

IV.Tortious Repudiation of Contract Claim

Plaintiffs' third...