Opinion
No. 16–P–152.
11-08-2016
SHAOGUANG LI v. OFFICE OF TRANSCRIPTION SERVICES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, who represents himself, filed this civil action against the Office of Transcription Services (OTS) claiming that he suffered damages as a result of a falsified hearing transcript. He appeals from a Superior Court judgment entered after a judge allowed OTS's motion to dismiss the complaint for failure to state a claim upon which relief may be granted. We affirm.
Our review of a dismissal pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), is de novo. Curtis v. Herb Chambers of I–95, Inc., 458 Mass. 674, 676 (2011). Taking the allegations of the complaint as true and drawing every reasonable inference in the plaintiff's favor, we look beyond conclusory allegations and focus on whether the facts alleged plausibly suggest an entitlement to relief. See ibid., citing to Iannacchino v. Ford Motor Co., 451 Mass. 623, 635–636 (2008).
The underlying facts alleged in the plaintiff's complaint may be summarized as follows. On January 24, 2013, the plaintiff was a party to a hearing in the Superior Court, after which he requested a transcript from OTS and paid the requisite fee. OTS's assigned transcriber “deliberately altered the content” of the transcript “to help cover up a lie by the defense attorney” in that case. The plaintiff made repeated requests for an investigation, but OTS “intentionally protect[ed] the falsification” of the transcript and failed to act. Based upon those facts, the plaintiff in his complaint asserts the following theories of recovery: negligent infliction of emotional distress, intentional infliction of emotional distress, “Breach of Consumer Protection Laws,” breach of confidence, forgery, fraud, and conspiracy.
As matter of law, none of the plaintiff's claims states a valid cause of action. The negligent infliction of emotional distress claim fails if only because the plaintiff has neither alleged nor demonstrated that he made proper presentment as required by the Massachusetts Tort Claims Act, G.L. c.258(act). See G.L. c.258, § 4. The claims for intentional infliction of emotional distress, forgery, fraud, and conspiracy are intentional torts, for which OTS, as a public employer, retains immunity under the act. See G.L. c.258, § 10(c ). The plaintiff's reliance upon the Federal Consumer Product Safety Act, 15 U.S.C. §§ 2051 –2089 (2012), is misplaced, as the facts alleged do not raise any product safety-related issue. Any claim under G.L. c.93A, fails because the plaintiff has not alleged or shown that the statute's demand letter requirement, pursuant to § 9(3), was met; in addition, OTS is not engaged in trade or commerce, as required by § 2, and, hence, is not covered by the statute. The plaintiff's claim for “Breach of Confidence,” alleges only that OTS “breached the confidence [he] had placed in it” for producing an accurate transcript. There is no allegation of a confidential relationship between the plaintiff and OTS, or that OTS improperly disclosed information that it knew was confidential. See Berkla v. Corel Corp., 302 F.3d 909, 917 (9th Cir.2002).
For those and other reasons stated by the motion judge in his memorandum of decision, OTS's motion to dismiss was properly allowed.