Opinion
CIVIL ACTION NO. 06-12245-GAO.
April 20, 2007
ORDER
The defendants moved to dismiss the complaint in this action, and I referred the motion to a Magistrate Judge for consideration. The Magistrate Judge recommended that the motion to dismiss be granted. I agree, but I do not rely on the reason cited by the Magistrate Judge. Instead, I conclude that none of the several counts of the complaint states a claim upon which relief can be granted, as a matter of law.
I agree with the defendants that counts I, II and III, variously alleging slander and libel, fail to state a claim. The statements alleged to be actionable are all privileged because they were made either in the course of litigation, see Sriberg v. Raymond, 345 N.E.2d 882, 883 (Mass. 1976) ("We have hitherto held that statements by a party, counsel or witness in the institution of, or during the course of, a judicial proceeding are absolutely privileged provided such statements relate to that proceeding."), or were statements of a quasi-judicial officer made in the exercise of his duties, see Cok v. Cosentino, 876 F.2d 1, 2-3 (1st Cir. 1989) (finding guardian ad litem and conservator entitled to quasi-judicial immunity).
Count IV fails adequately to allege a claim for either intentional or negligent infliction of emotional distress. As to the former, the allegations, taken as true, do not make out the strong showing required. In particular, the allegations do not paint a picture of "extreme and outrageous" conduct that is "beyond all possible bounds of decency and utterly intolerable in a civilized community," leading to emotional distress "that no reasonable person could be expected to endure." See Tetrault v. Mahoney, Hawkes Goldings, 681 N.E.2d 1189, 1197 (Mass. 1997). As to a claim based on negligence, while emotional distress damages can, in certain circumstances, be recoverable in a negligence action, it is fundamentally necessary that the defendants have failed without excuse to fulfill a duty of care that was owed. The plaintiffs have not alleged that the defendants negligently violated a tort-based duty of care.
Count V alleges abuse of process, a very limited tort under Massachusetts law. For the reasons set forth at pages 14 and 15 of the defendants' brief, the plaintiffs have not adequately alleged that cause of action.
The motion to dismiss is GRANTED. The action is DISMISSED.
It is SO ORDERED.