Lyons et al v. Gillette,et.al.

Filing 22

Judge William G. Young: ORDER entered. MEMORANDUM AND ORDER "The Associations motion to dismiss, ECF No. 8 , Counts I,38 II, III, V, VIII, XII, and for lack of personal jurisdiction is DENIED, and ALLOWED as to Counts IV, VI, VII, IX, X, and X IV. The Colleges motion to dismiss, ECF No. 10 , Counts VI and XII is DENIED, and ALLOWED as to Counts VII, IX, X, XIV. Accordingly, the motions to dismiss, ECF Nos. 8 , 10 , are ALLOWED in part and DENIED in part in accordance with this opinion.SO ORDERED."(Sonnenberg, Elizabeth)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

)
)
)
)
)
Plaintiffs, )
)
v.
)
)
ROBERT GILLETTE, LINDA BLYTHE, )
HILARY CLAYTON, JAMES COOK,
)
CHRISTINE ZINK, JOSEPH WAKSHLAG )
ANDRIS KANEPS, WAYNE McILWRAITH )
KEVIN HAUSSLER, THE BOARD OF
)
DIRECTORS OF THE AMERICAN
)
COLLEGE OF VETERINARY SPORTS
)
MEDICINE AND REHABILITATION,
)
INC., and AMERICAN
)
VETERINARY MEDICAL ASSOCIATION, )
INC.
)
)
Defendants. )
)
SHEILA LYONS, and HOMECOMING
FARM, INC.

CIVIL ACTION
NO. 11-12192-WGY

MEMORANDUM AND ORDER
YOUNG, D.J.

I.

July 31, 2012

INTRODUCTION
The plaintiffs Sheila Lyons (“Lyons”) and Homecoming Farm,

Inc. (“Homecoming Farm”) claim infringement of their trademark
and copyrighted work.

Lyons and Homecoming Farm also have

brought additional claims, including Chapter 93A violations,

misappropriation of “intellectual property,” loss of business
opportunity, and tortious interference.
Lyons and the defendant Robert Gillette (“Gillette”) served
as members of an organization committee of veterinarians (the
“Committee”) who sought to incorporate The American College of
Veterinary Sports Medicine and Rehabilitation (the “College”).
The purpose of the College was to teach a new veterinary
specialty recognized by The American Veterinary Medical
Association, Inc. (the “Association”), an organization based in
Illinois that certifies veterinary specialties.

The relationship

between Lyons and the Committee went sour in 2004.

Lyons was

asked to recuse herself from the Committee, after allegations of
Lyons improperly collecting moneys and failing to present her
credentials.

Lyons maintains that these accusations are

defamatory.
In reaction to these events, on May 24, 2005, Lyons filed a
trademark application as owner of the marks “American College of
Veterinary Sports Medicine and Rehabilitation” and “ACVSMR.”

The

complaint alleges that in the accreditation process before the
Association, the College used the material authored by Lyons
without her permission, thus infringing her copyrights.
A.

Procedural Posture

Lyons and Homecoming Farm filed a fourteen count complaint
on December 12, 2011.

Civil Compl. Damages Equitable Relief

2

Demand Trial Jury (“Compl.”), ECF No. 1.

The Association filed a

motion to dismiss all counts of the complaint on February 9,
2012, Def. Am. Veterinary Med. Ass’n’s Mot. Dismiss, ECF No. 8,
supported by a memorandum, Mem. Reasons Supp. Am. Veterinary Med.
Ass’n’s Mot. Dismiss (“Association’s Mem.”), ECF No. 9.

On

February 10, 2012, the College and its individual directors filed
a partial motion to dismiss along with corresponding memorandum.
Specifically, they allege this is a trademark claim and they seek
dismissal of Counts VI, VII, IX, X, XI, XII, XIII, and XIV as to
all defendants and dismissal of all claims as to the individual
directors.

Partial Mot. Dismiss Am. Coll. Veterinary Sports Med.

Rehab. Individual Dirs. (College’s Mot.”), ECF No. 10; Mem. Supp.
Partial Mot. Dismiss

Am. Coll. Veterinary Sports Med. Rehab.

Individual Dirs. (“College’s Mem.”), ECF No. 11.
Lyons and Homecoming Farm opposed both motions.

On February

23, 2012, Lyons and Homecoming Farm opposed the Association’s
Motion.

Mem Opp’n Def. Am. Veterinary Med. Ass’n’s Mot. Dismiss

(“Lyons’ Opp’n to Association”), ECF No. 12.

On February 24,

2012, Lyons and Homecoming Farm opposed to the College’s Motion.
Mem. Opp’n Partial Mot. Dismiss Def. Am. Coll. Veterinary Sports
Med. Rehab. & Individual Defs. (“Lyons’ Opp’n to College”), ECF
No. 13.

The replies from both the College and the Association

followed on March 1 and 2, 2012.

Reply Br. Supp. Am. Veterinary

Med. Ass’n’s Mot. Dismiss (“Association’s Reply”), ECF No. 15;

3

Reply Mem. Supp. Partial Mot. Dismiss Am. Coll. Veterinary Sports
Med. Rehab. & Individual Dirs. (“College’s Reply”), ECF No. 16.
On March 19, 2012, Lyons and Homecoming Farm filed a motion
to amend the complaint.

Mot. Amend Compl. Assert Add’l Claims

Relief Breach Contract Abuse Process Based Facts Already Pled
Compl., ECF No. 17.

The Court denied the motion to amend as

futile on March 26, 2012.

Elec. Order, Mar. 26, 2012.

During a

motion hearing held on April 10, 2012, this Court ruled from the
bench dismissing Counts XI, XIII, and all Counts against the
individual Directors.
B.

Clerk’s Notes, Apr. 10, 2012.

Factual Allegations

Lyons is a veterinarian and founder of Homecoming Farms,
Inc., a New Hampshire corporation with its principal place of
business in Brockton, Massachusetts.

Compl. ¶¶ 2-3, 18.

Lyons

sought the creation of a new post-doctoral institution for
veterinarians under the name of “The American College of
Veterinary Sports Medicine and Rehabilitation.”
63-66.

Id. ¶¶ 42-46,

The College would create a new veterinary specialty

pertaining to the treatment of horses and dogs involved in racing
and other sports.

Id. ¶ 26.

To teach this specialty, the

College first needed to obtain recognition by the Association, a
not-for-profit association of veterinarians incorporated in
Illinois.

Id. ¶¶ 5, 48.

Lyons first contacted the Association

in 1997 to discuss the process of approval.

4

Id. ¶ 42.

Lyons

alleges that she authored and copyrighted a detailed plan and
educational materials for the post-doctoral specialty in order to
meet the Association’s eligibility requirements.

Id. ¶ 46.

As

required by the Association, Lyons invited five veterinarians to
be part of a Committee in order to submit the application for the
College’s approval.

Id. ¶¶ 48-49.

In 1999, Lyons and Gillette had first discussed the
specialty while at a conference in Oregon.

Id. ¶¶ 63-64, 66-67.

Lyons alleges that she described the copyrighted materials and
informed Gillette that his participation on the Committee was
conditioned upon his acceptance of her plan for the specialty.
Id. ¶¶ 68-69.

On September 9, 1999, Lyons provided Gillette with

her copyrighted work.

Id. ¶ 74.

On July 2001, Lyons registered

the domain names ACVSMR.org and ACVSMR.com, which are the
property of Homecoming Farm.

Id. ¶¶ 38, 126.

In 2000, Lyons invited Gillette to be part of the Committee.
Id. ¶ 76.

Then, on January 19, 2003, the Committee wrote a

formal request to the Association for the approval of the
specialty.

Id. ¶ 81.

The request to the Association was based
Id. ¶ 82.

on Lyons’ copyrighted materials.

On May 18, 2004, the

Committee met in Chicago, where Lyons provided the College’s
proposed articles of incorporation, by-laws, and copies of other
copyrighted materials.

Id. ¶¶ 83-84, 91.

5

On July 26, 2004, the members of the Committee, including
Lyons and Gillette, attended an Association meeting in
Philadelphia, where the formation of the College and the
specialty was to be discussed.

Id. ¶ 92.

Prior to the meeting,

Gillette had been informed of complaints against Lyons,
apparently by former clients of hers.

Id. ¶¶ 93-98.

Gillette

confronted Lyons about two things: first, her lack of
credentials, allegedly Lyons held herself out as having a Ph.D.
when in fact she did not have one; and second, “allegations
involving improper conduct” made by former clients of Lyons.

Id.

Gillette refused to reveal the nature of the second allegation,
including the names of the former clients.
asked to recuse herself from the Committee.

Id. ¶ 96.

Lyons was

Id. ¶ 100.

Lyons

protested that the accusations were defamatory, that she had
founded the Committee and could not be recused without first
being heard, and finally that the Committee was in possession of
her intellectual property.

Id. ¶¶ 100-02.

Lyons alleges that as

of the meeting on July 26, 2004, the Committee was not authorized
to use the “ACVSMR” mark or her work product without her express
permission.

Id. ¶ 102.

A representative of the Association, Jon Frederick Dee
(“Dee”), was present during the July 26, 2004 meeting when Lyons
warned the Committee about the unauthorized use of her work.
¶ 104.

Id.

Prior to the July 26, 2004 meeting, Dee had copies and

6

was aware of the content of the copyrighted work authored by
Lyons.

Id. ¶¶ 88-91.

The Committee, however, continued using

Lyons’ trademark and work product to apply for the approval of
the specialty without her authorization.

Id. ¶ 128.

On

September 1, 2004, and on November 25, 2005, Gillette sent two
letters to the Association explaining the relationship between
the College and Lyons, and the reasons for her recusal.
129-30.

Id. ¶¶

Lyons alleges that it was only on November 30, 2011 that

she learned about Gillette’s letters.1

Id. ¶ 129.

The letters

state that Lyons was receiving donations in the name of the
College, for which she did not account to the Committee.

Id. ¶

130.
On May 24, 2005, Lyons filed a trademark application for the
marks “The American College of Veterinary Sports Medicine and
Rehabilitation” and “ACVSMR,” which were registered on May 2,
2006.

Id. ¶ 16.

Lyons alleges that she registered the

copyrights over her research, education materials, and work
associated with the ACVSMR mark.

Id. ¶ 19.

In 2009, the Committee created a website and a Facebook page
using the ACVSMR mark and Lyons’ work product without her

1

The date of the trademark cancellation action and Lyons’
first knowledge of the letters is quite contradictory. See
Compl. ¶ 116 (learning on August 2011 the content of the
letters); id. ¶ 129 (learning on November 30, 2011 the content of
the letters); Lyons’ Opp’n to College 11 (“Lyons did not learn of
Gillette’s defamatory correspondence until on or after September
of 2010” in the context of a trademark cancellation action).
7

authorization or knowledge.

Id. ¶¶ 121-23.

In May 2010, the

Association provisionally approved the new specialty under the
name “The American College of Veterinary Sports Medicine and
Rehabilitation” relying on Lyons’ work product and announced it
on the Association’s website.

Id. ¶ 131.

The College was

incorporated as a Colorado non-profit organization on June 2,
2011, with a principal place of business in Auburn, Alabama.

Id.

¶ 5.
C.

Federal Jurisdiction

This Court’s subject matter jurisdiction arises under the
trademark laws of the United States, 15 U.S.C. §§ 1051 et seq.
(the “Lanham Act”), jurisdiction being conferred by 15 U.S.C. §
1121 and 28 U.S.C. §§ 1331 and 1338.

Supplemental jurisdiction

arises under 28 U.S.C. § 1367(a) as to the state law claims.
D.

Personal Jurisdiction

The Association has moved to dismiss the case for lack of
personal jurisdiction.

Association’s Mem. 17-20

“To hear a case, a court must have personal jurisdiction
over the parties, that is, the power to require the parties to
obey its decrees.”

Daynard v. Ness, Motley, Loadholt, Richardson

& Poole, P.A., 290 F.3d 42, 50 (1st Cir. 2002) (quoting United
States v. Swiss Am. Bank, Ltd., 191 F.3d 30, 35 (1st Cir. 1999))
(internal quotation marks omitted).

“The plaintiff bears the

burden of proving the court’s personal jurisdiction over a
8

defendant.”

Id.

Due process requires the Court to determine

whether the defendant has maintained “certain minimum contacts”
with the forum state “such that the maintenance of the suit does
not offend ‘traditional notions of fair play and substantial
justice.’”
316 (1945).

International Shoe Co. v. Washington, 326 U.S. 310,
Under the minimum contacts test “[a] district court

may exercise authority over a defendant by virtue of either
general or specific [personal] jurisdiction.”

Massachusetts Sch.

of Law at Andover, Inc. v. American Bar Ass’n, 142 F.3d 26, 34
(1st Cir. 1998).
The prima facie standard is the “most conventional”
procedure to resolve question of personal jurisdiction.

Foster-

Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 145 (1st
Cir. 1995).

Under the prima facie standard the “plaintiff must

go beyond the pleadings and make affirmative proof” to establish
the existence of personal jurisdiction over the defendant.

Boit

v. Gar-Tec Pros., Inc., 967 F.2d 671, 675 (1st Cir. 1992).
General jurisdiction exists when the defendant has engaged
in “continuous and systematic activity” in the forum, even if the
activity is unrelated to the suit.

United Elec., Radio & Mach.

Workers of Am. v. 163 Pleasant St. Corp., 960 F.2d 1080, 1088
(1st Cir. 1992).

There is no specific test to show the defendant

engaged in continuous and systematic activity in the forum, but
the court may consider certain factors such as (1) whether the

9

corporation solicits business in the state through a local office
or agents; (2) whether the corporation sends agents into the
state on a regular basis to solicit business; (3) the extent to
which the corporation holds itself out as doing business in the
forum state, through advertisements, listings, or bank accounts;
and (4) the volume of business conducted in the state by the
corporation.

See Massachusetts Inst. of Tech. v. Micron Tech.,

Inc., 508 F. Supp. 2d 112, 120-21 (D. Mass. 2007) (Woodlock, J.).
Here, Lyons and Homecoming Farm argue that although the
Association does not have an office in Massachusetts, this Court
still ought conclude that there is general personal jurisdiction
over the defendant because the Association has a significant
volume of business conducted in the Commonwealth.
to Association 19 & n.13.

Lyons’ Opp’n

Out of more than 81,000 members

nationwide, the Association has 1,876 regular dues paying members
in Massachusetts.

Id. at 18.

The Association also regularly

solicits business in Massachusetts in the form of memberships
from both students and veterinarians, conducts conferences and
seminars in Massachusetts, and solicits grants and donations from
Massachusetts residents.

Id.

For this purpose, the Association

keeps a separate IRS EIN for Massachusetts to declare the income
from its organizational activities.

Id. at 18-19.

The

Association also funds scholarships and research for
Massachusetts veterinary students and academics as well as job

10

placement and other career related services.

Id. at 18.

Further, the Association promulgates the standards for veterinary
school accreditation and derives revenue from such accreditation.
Id.

Massachusetts requires graduation from an Association

accredited school for licensure - including at least one
accredited school in Massachusetts.

Id.

Based on these allegations, this Court is satisfied that it
has personal jurisdiction over the Association.
II.

ANALYSIS
A.

Legal Standard

To survive a motion to dismiss for failure to state a claim
upon which relief may be granted, a plaintiff must present facts
that make his claim plausible on its face.
Twombly, 550 U.S. 544, 570 (2007).

Bell Atl. Corp. v.

A viable complaint must be

well-pled and the facts must support logical conclusions,
specifically the complaint must contain “[m]ore than labels and
conclusions, and a formulaic recitation of the elements of the
cause of action.”

Id. at 555.

When evaluating a motion to

dismiss, this Court must take “all the factual allegations in the
complaint as true.”

Maldonado v. Fontanes, 568 F.3d 263, 266

(1st. Cir 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)).

11

B.

Lyons and Homecoming Farm’s Trademark Claims Against
the Association (Counts I, II, III, and VIII)2

The Association has moved to dismiss the trademark claims.
Association’s Mem. 9-12.

The issue presented is whether Lyons

and Homecoming Farm have sufficiently alleged that the
Association as an accreditation service organization has
infringed Lyons’ trademark by announcing the approval of and
endorsing the College’s mark, when the Association knew of the
marks’ disputed ownership.

The heart of the dispute is whether

the Association’s approval of the College’s specialty under the
marks “The American College of Veterinary Sports Medicine and
Rehabilitation” and “ACVSMR” creates actual confusion in the
public mind.
“The purpose of a trademark is to identify and distinguish
the goods of one party from those of another.”

Colt Def. LLC v.

Bushmaster Firearms, Inc., 486 F.3d 701, 705 (1st Cir. 2007)
(citing 17 U.S.C. § 1127).

To establish trademark infringement

under the Lanham Act, a plaintiff must prove that: (1) the
plaintiff owns and uses the disputed marks; (2) the defendant
used similar or identical marks without permission; and (3)
unauthorized use likely confused consumers, harming the plaintiff

2

The claims based on trademark are Federal trademark
infringement (Count I), unfair competition (Count II), common-law
trademark infringement (Count III), and common-law unfair
competition (Count VIII). The College has not moved to dismiss
these claims.
12

(e.g., lost sales).

Venture Tape Corp. v. McGills Glass

Warehouse, 540 F.3d 56, 60 (1st Cir. 2008).
The first two prongs are not seriously disputed.

Lyons

alleges that she uses the marks “The American College of
Veterinary Sports Medicine and Rehabilitation” and “ACVSMR,”
which were registered by her on May 24, 2005.

Compl. ¶ 16.

Five

years later, in May 2010, the College sought approval of the new
specialty before the Association under the same name and marks
without Lyons’ authorization.

Id. ¶ 131.

As to the third prong, the “likelihood of confusion” among
consumers, the Court is required to assess the eight criteria:
“the similarity of the marks; the similarity of the goods; the
relationship between the parties’ channels of trade; the
relationship between the parties’ advertising; the classes of
prospective purchasers; evidence of actual confusion; defendant’s
intent in adopting its mark; and the strength of the plaintiff’s
mark.”

Boston Duck Tours, LP v. Super Duck Tours, LLC, 531 F.3d

1, 10 n.6 (1st Cir. 2008) (quoting Pignons S.A. de Mecanique de
Precision v. Polaroid Corp., 657 F.2d 482, 487 (1st Cir. 1981)).3

3

Lyons’ claimed violations of 15 U.S.C. § 1114 (Federal
trademark infringement - Count I), violation of 15 U.S.C. § 1125
(Unfair competition - Count II), and common law trademark
infringement (Count III) are subject to the same legal standard,
namely, “likelihood of confusion.” See Boston Duck Tours, 531
F.3d at 12 (holding that confusion is an element of a Section
1114 claim); Three Blind Mice Designs Co. Inc. v. Cyrk, Inc., 892
F. Supp. 303, 310 (D. Mass. 1995) (Saris, J.) (determining that
confusion is an element of a Section 1125 claim); Diálogo, LLC v.
13

Here, Lyons and Homecoming Farm sufficiently allege that the
College created a veterinary specialty with the same name, using
an identical mark, and targeting the same market, namely
veterinarians.

Compl. ¶¶ 125-28.

Lyons also alleges that the

Association uses the same channels of advertisement as Lyons,
including publications, seminars, and dissemination of
information over the internet.

Id. ¶ 131.

While Lyons and

Homecoming Farm have not alleged actual confusion, they allege
that consumers are likely to be confused about the origin of the
veterinarian specialty and mistakenly believe that Lyons is
affiliated with the Association.

Id. ¶ 128.

With respect to the Association’s intent, Lyons and
Homecoming Farm allege that the Association knew of the dispute
over the ownership of the mark.

Id. ¶¶ 88-91, 104, 129-30.

Further, Lyons and Homecoming Farm allege that the Association
provisionally approved the College’s proposed specialty knowing
that the application relied on Lyons’ trademark and work product.
Id. ¶¶ 124-25.

Moreover, the Association announced on its

website that it acknowledges the College’s new veterinary

Bauzá, 467 F. Supp. 2d 115, 125 n.9 (D. Mass. 2006) (Ponsor, J.)
(noting that the common law claim is substantially similar to
Federal trademark infringement claim); see also Astra Pharm.
Prods., Inc. v. Beckman Instruments, Inc., 718 F.2d 1201, 1209
(1st Cir. 1983) (“[P]laintiff must support a charge of unfair
competition with a showing of likelihood of confusion.”).
14

specialty, providing the College’s contact information and using
the “ACVSMR” mark.

Id. ¶ 131.4

The Association argues that reporting on an event or
creation of an organization is not a “trademark use” of the
“ACVSMR” mark and, in any event, it is a fair use of the mark
because it “describe[s] rather than identif[ies] the user’s
goods, services or business.”

Association’s Mem. 10-11 (citing

WCVB-TV v. Boston Athletic Ass’n, 926 F.2d 42, 46 (1st Cir. 1991)
(holding that a broadcast channel use of the words “Boston
Marathon” would not confuse the typical viewer, and the use of
the trademark to describe and announce the event was fair use)).
The First Circuit in WCVB-TV distinguished between the use
of a mark to announce an event (which does not create a
likelihood of confusion), and the use of a mark to create an
illusion of sponsorship (which does create a likelihood of
confusion).

926 F.2d at 45.

In the first situation, where the

mark is used in a non-infringing manner, the court held that
“television viewers (unlike sports fans who might want to buy an
official t-shirt with the name of a favorite event, team or
player) wish to see the event and do not particularly care about
the relation of station to event-promoter.”

Id. at 46.

This is

not the factual scenario alleged here because potential students

4

It can be inferred that the Association has the power to
preclude Lyons from making a similar application with the same
marks, now that it has endorsed the College’s use of the marks.
15

interested in the veterinary specialty do care whether the
College’s specialty is accredited by the Association.
The use of a trademark causes a likelihood of confusion
since “when a [defendant] intentionally uses another’s mark as a
means of establishing a link in consumers’ minds with the other’s
enterprise, and directly profits from that link, there is an
unmistakable aura of deception.”

Id. at 45 (citing Boston

Athletic Ass’n v. Sullivan, 867 F.2d 22, 35 (1st Cir. 1989))
(deciding that likelihood of confusion exists when the defendant,
without authorization, used the mark, “Boston Marathon,” on his
t-shirts, and sold them during the event, permitting the customer
to wrongly or confusedly think that his t-shirts were somehow
“official”).
Here, Lyons and Homecoming Farm allege that the Association
has been taking advantage of its endorsement of the College’s
veterinary specialty, Compl. ¶ 131, specially as the Association
is aware of the disputed ownership of the “ACVSMR” mark.
87-91.

Id. ¶¶

The Association’s representative witnessed the

altercation between Lyons and Gillette in July 2004.

Id. ¶ 104.

In fact, the relationship between Lyons and the College was a
matter of concern, that the College sought to clarify with its
two letters sent to the Association.

Id. ¶¶ 129-30.

The

Association’s subsequent approval of the College using the same
mark created a likelihood of confusion as to the ownership of the

16

“ACVSMR” mark, since the College and Lyons and Homecoming Farm
both claimed such ownership.

Colt Def. LLC, 486 F.3d at 705

(“The purpose of a trademark is to identify and distinguish the
goods of one party from those of another.” ).

Now the

Association is endorsing one organization over the other,
providing the contact information of the College over Lyons’
institution.

Compl. ¶ 131 (noting that the Association’s website

uses the “ACVSMR” mark to endorse the College’s provisional
approval as a veterinary specialty organization and providing the
College’s contact information).
Lyons and Homecoming Farm’s complaint therefore alleges
sufficient facts to establish the “likelihood of confusion.”

The

claims for Federal trademark infringement, unfair competition,
common-law trademark infringement, and common-law unfair
competition all turn on the same legal standard of “likelihood of
confusion.”

As this is the only issue raised by the Association

as to these claims, they all survive the motion to dismiss.
C.

Trademark Dilution Claim (Count IV)

To establish trademark dilution, a plaintiff must prove that
someone caused the “blurring or dilution by tarnishment of [a]
famous mark.”

15 U.S.C. § 1125(c).

Unlike the other trademark

claims in this case, trademark dilution does not require proof of
the likelihood of confusion.

Id.

The only contention the

Association raises against this claim is that Lyons and

17

Homecoming Farm failed to allege that the “ACVSMR” mark is
“famous.”

Association’s Mem. 12.

Lyons and Homecoming Farm allege that Lyons has owned her
mark for almost two decades and it is nationally and
internationally renowned in the veterinary community.
18, 167.

Compl. ¶¶

The Association’s assertion that the complaint fails

because it does not use the word “famous” is inconsequential.
The complaint here, however, still remain insufficient.
I.P. Lund Trading ApS v. Kohler Co., 163 F.3d 27, 45 (1st Cir.
1998) (holding that “‘famous’ and ‘dilution’ are terms of art
given specific rigorous meanings by the [Federal Trademark
Dilution Act]”).

The fact that the “ACVSMR” mark has acquired a

strong secondary meaning and an inherently distinctive
designation “is nowhere near sufficient to achieve the status of
‘famous mark.’”

Id. at 47 (establishing that a mark nationally

renowned in “the world of interior design and high-end bathroom
fixtures” is not sufficiently famous under Section 1125(c)).

See

15 U.S.C. § 1125(c) (clarifying that “a mark is famous if it is
widely recognized by the general consuming public of the United
States”); TCPIP Holding Co., Inc. V. Haar Commc’n’s, Inc., 244
F.3d 88, 99 (2nd Cir. 2001) (“[E]xamples of eligible, famous
mark’s . . . are marks that for the major part of the century
have been household words throughout the United States.”).

18

Here, although the “ACVSMR” mark might be renowned in the
veterinary community, the “ACVSMR” mark is not famous under
Section 1125(c).

Therefore, the Court concludes as matter of law

the “ACVSMR” mark has not achieved the status of a “famous” mark
and Lyons and Homecoming Farm’s federal trademark dilution claim
fails.
D.

Dilution of the Uniqueness of the ACVSMR Mark (Count V)

The Massachusetts anti-dilution statute is less stringent
than the federal statute.

The Commonwealth requires the

plaintiff to “show (1) that its mark is distinctive, and (2) that
the defendant’s use of a similar mark has created a likelihood of
dilution.”

Santander Consumer USA Inc. v. Walsh, 762 F. Supp. 2d

217, 231-32 (D. Mass. 2010) (Bowler, M.J.) (quoting Astra Pharm.
Prods., Inc. v. Beckman Instruments, Inc., 718 F.2d 1201, 1209
(1st Cir. 1983).

The likelihood of dilution may result from the

diminution in the uniqueness and individuality of the plaintiff’s
mark.

Id. at 232 (quoting Hasbro, Inc. v. Clue Computing, Inc.,

66 F. Supp. 2d, 117, 137 (D. Mass. 1999) (Woodlock, J.).

Unlike

the other trademark claims in this case, trademark dilution does
not require proof of the likelihood of confusion or that the
Association is Lyons’ competitor.

Mass. Gen. Laws ch. 110H, §

13.
Here, even though Lyons and Homecoming Farm failed to allege
that the “ACVSMR” mark was “famous” under the federal act, the
19

less stringent requirements of “distinctiveness” under
Massachusetts law are met.

Lyons used the mark for more than

fifteen years at conferences and research meetings at national
and international level.

Santander Consumer USA Inc., 762 F.

Supp. 2d at 231 (holding that plaintiffs’ long and extensive use
of the marks together with their advertising and promotional
efforts and reputation provide sufficient support to classify the
marks as distinctive).
Additionally, the Association knew about the disputed
ownership of the “ACVSMR” mark because its representative
witnessed the altercation between Lyons and Gillette in 2004,
Compl. ¶¶ 88-91, 104, and because it received subsequent letters
from the College explaining the relationship between Lyons and
the College, id. ¶¶ 129-30.

The Association’s subsequent

approval of the College’s use of the same mark created a
“diminution in the uniqueness and individuality” of the “ACVSMR”
mark since two parties have been claiming ownership of the mark.
Now the Association is endorsing one institution over the other,
providing the contact information of the College over Lyons’
institution, and as a result of the Association’s endorsement,
Lyons will not be able to register another veterinary specialty
under the same name.

Id. ¶ 131.

Therefore, Lyons and Homecoming Farm sufficiently have
alleged that the Association has caused the diminution in the

20

uniqueness and individuality of the “ACVSMR” mark under the
Massachusetts anti-dilution statute.

Mass. Gen. Laws ch. 110H, §

13.
E.

Lyons and Homecoming Farm’s Copyright Claims (Counts
VI)

To sustain a copyright infringement action, the plaintiff
must allege: 1) ownership of a valid copyright, and 2) that the
defendant copied constituent elements of the work that are
original.

Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499

U.S. 340, 361 (1991).
1.

Lyons and Homecoming Farm’s Complied With
Registration Requirement Prior to Filing Her
Copyright Infringement Claim

The College argues that the complaint fails because it does
not allege the copyright “registration numbers.”
7.

No such a requirement is imposed by law.

College’s Mem.

The Copyright Act

only requires the registration of the copyright prior to filing
an action for infringement.

17 U.S.C. § 411(a).

Court has declined to address this issue.

The Supreme

Reed Elsevier, Inc. v.

Muchnick, 130 S.Ct. 1237, 1249 (2010) (“We also decline to
address whether § 411(a)’s registration requirement is a
mandatory precondition to suit.”); id. at 1246 (“§ 411(a)
expressly allows courts to adjudicate infringement claims
involving unregistered works . . . where the holder attempted to
register the work and registration was refused.”); see Feldman v.

21

Twentieth Century Fox Film Corp., 723 F. Supp. 2d 357, 364 (D.
Mass. 2010) (Woodlock, J.) (“It appears that no court in this
circuit has addressed the narrow issue of whether a work whose
effective date of registration (but not actual date of
registration) pre-dates the filing of the complaint is
‘registered’ within the meaning of Section 411(a).”) .
Here, Lyons and Homecoming Farm’s complaint states that
Lyons has a registered copyright.

Compl. ¶ 19-20.

Lyons and

Homecoming Farm filed a copy of the registration of the
copyright, issued on December 6, 2011, together with the
oppositions to the motion to dismiss.

Lyons’ Opp’n to

Association, Ex. D, U.S. Copyright Office Catalog Entry, ECF No.
12-5; Lyons’ Opp’n to College, Ex. D, U.S. Copyright Office
Catalog Entry, ECF No. 13-8.

Apparently, Lyons registered the

copyright prior to filing the lawsuit on December 12, 2011.
The College avers that this is not enough because citing the
registration numbers is required by law.

College’s Reply 2

(citing Local Rules, Appendix C and 17 U.S.C. § 508).

This

contention misstates the law.
Section 508 of the Copyright Act requires the Court, not the
plaintiff, to notify the Register of Copyrights “as far as shown
by the papers filed in court . . . of the registration number of
each work involved” in a copyright claim.

22

17 U.S.C. § 508.

It is true that a plaintiff must allege plausible facts
demonstrating a valid copyright, Feldman, 723 F. Supp. 2d. at
363, but Section 508 does not requires that the complaint include
a registration number, see 17 U.S.C. § 508 (stating that
additional information about the copyrighted work in dispute that
arrived through “amendment, answer, or other pleading” may be
sent to the Register of Copyrights at a “later” date).

Failure

to file the registration numbers does not require dismissal of
the complaint, especially where the plaintiff includes copies of
the registration in other filings to the court.

See Lotus Dev.

Corp. v. Borland Int’l, Inc., 49 F.3d 807, 813 (1st Cir. 1995)
aff’d, 516 U.S. 233 (1996) (“In judicial proceedings, a
certificate of copyright registration constitutes prima facie
evidence of copyrightability and shifts the burden to the
defendant to demonstrate why the copyright is not valid.”).
The cases cited by the College and the Association here are
not on point.

They relate to the failure to register the work,

rather than the failure to include the “registration numbers” in
the complaint.

See, e.g., Inkadinkado, Inc. v. Meyer, No. Civ.A.

03-10332-GAO, 2003 WL 22282177, at *3-4 (D. Mass. Sept. 16, 2003)
(O’Toole, J.) (“It appears uncontroverted that the infringement
claim was brought before registration, and therefore
Inkadinkado’s motion [to dismiss] is well grounded.”); Kusek v.
The Family Circle, Inc., 894 F. Supp. 522, 528-29 (D. Mass. 1995)

23

(Neiman, M.J.) (“The Plaintiff fails to allege that she
registered her work in the United States Copyright Office.”).
Here, Lyons subsequently notified the Court of her
registration numbers and thus demonstrated plausible ownership of
a valid copyright.

E.g., Lyons’ Opp’n to Association, Ex. D.

U.S. Copyright Office Catalog Entry, ECF No. 12-5.
Lyons’ lack of citation to the registration numbers does not
warrant dismissal of the complaint.
2.

Lyons and Homecoming Farm Sufficiently Alleges
That the College Copied Constituent Elements of
the Work

The College claims that Lyons and Homecoming Farm failed to
allege the second element of a copyright infringement action,
College’s Reply 2-3, which relates to copying “constituent
elements of the work that are original.”
U.S. at 361.

Feist Publ’n’s, 499

Proof of wrongful copying is a two-step process.

The plaintiff must show: 1) “that copying actually occurred,” and
2) “that the copying of the copyrighted material was so extensive
that it rendered the infringing and copyrighted works
substantially similar.”

Johnson v. Gordon, 409 F.3d 12, 18 (1st

Cir. 2005) (citations and internal quotation marks omitted).
When plaintiff does “not offer[] any direct evidence of actual
copying, her factual allegations must plausibly allege both
access and probative similarity.”

Feldman, 723 F. Supp. 2d at

365 (citing Coquico, Inc. v. Rodriguez-Miranda, 562 F.3d 62, 67
24

(1st Cir. 2009)).
Here, Lyons and Homecoming Farm allege that Lyons gave the
materials to Gillette on September 9, 1999 to apply to the
Association.

Compl. ¶ 74.

Subsequently, Lyons gave the same

copies of her work to the Committee.

Id. ¶ 91.

Therefore, Lyons

and Homecoming Farm sufficiently allege facts to sustain the
conclusion that the Committee had access to her work.

Grubb v.

KMS Patriots, L.P., 88 F.3d 1, 3 (1st Cir. 1996) (holding that
plaintiff must show that the defendant had “reasonable
opportunity to copy”).
Lyons and Homecoming Farm have also established that the
works are similar so that the “court may infer that there was
factual copying.”

Lotus Dev. Corp., 49 F.3d at 813.

Lyons and

Homecoming Farm filed the alleged original work and the
infringing copies as attachments to their complaint.5
Exs. A-E, ECF No. 1-1; Exs. F-K, ECF Nos. 1-2 – 1-3.

Compl.,
When Lyons

was ousted from the Committee, she warned the Committee that they
required her authorization to use the copyrighted work.
102.

Id. ¶

The College, however, used Lyons’ work to promote the

College on its website and to apply to the Association without
Lyons’ authorization.

Id. ¶¶ 123, 178.

5

Lyons and Homecoming Farm also filed a side-to-side
comparison of some passages of the allegedly copied Articles of
Incorporation. Lyons’ Opp’n to College, Ex. M, Copyright
Infringement Gillette, ECF No. 13-14.
25

Accordingly, Lyons and Homecoming Farm have adequately pled
a cause of action for copyright infringement against the College.
3.

Lyons and Homecoming Farm Failed to Allege That
the Association Copied Constituent Elements of the
Work

As to the Association, however, Lyons and Homecoming Farm
cannot satisfy the second element of infringement because they
failed to allege that the Association actually copied or used any
of their materials.

Feist Publ’n’s, 499 U.S. at 361 (requiring

the plaintiff to prove copying of “constituent elements of the
work that are original”).

Lyons and Homecoming Farm allege that

the Association approved the College’s application, which “relies
on the copyrighted content of [Lyons’] work product.”
125, 178.

Compl. ¶¶

The Association allegedly copied the name “American

College of Veterinary Sports Medicine and Rehabilitation” and its
acronym “ACVSMR,” both of which the Association referenced on its
website and on membership applications.

Id. ¶ 124.

These

allegations are insufficient to sustain a cause of action for
copyright infringement against the Association.

37 C.F.R. §

202.1(a) (stating that copyright protection is not available to
“[w]ords and short phrases such as names, titles, and slogans”);
see, e.g., Arica Inst., Inc. v. Palmer, 970 F.2d 1067, 1072-73
(2nd Cir. 1992) (noting that single words and short phrases in
copyrighted text are not copyrightable); Alberto-Culver Co. v.
Andrea Dumon, Inc., 466 F.2d 705, 711 (7th Cir. 1972) (holding
26

that “most personal sort of deodorant” is a short phrase or
expression, not an “appreciable amount of text,” and thus not
subject to copyright protection); Lewinson v. Holt, 659 F. Supp.
2d 547, 568 (S.D.N.Y. 2009) (“It is axiomatic that words, short
phrases, titles, and slogans are not subject to copyright, even
if they can be trademarked.”) (internal quotation marks omitted).
Therefore, Lyons and Homecoming Farm failed to allege that
the Association copied constituent elements of the work.
F.

Lyons and Homecoming Farm’s State Copyright Claims Are
Preempted (Count VII)

The Copyright Act “explicitly controls vesting of copyright
in authors; sets out the ownership status of authors and coauthors of joint works; and establishes copyright ownership by
employers who commission works made for hire.”

Cambridge

Literary Props., Ltd. v. W. Goebel Porzellanfabrik G.m.b.H. & Co.
KG., 510 F.3d 77, 86 (1st Cir. 2007) (citing 17 U.S.C. § 201).
The Copyright Act also expressly preempts common-law copyright
claims.

17 U.S.C. § 301(a) (“[N]o person is entitled to any such

right or equivalent right in any such work under the common law
or statutes of any State.”); John G. Danielson, Inc. v.
Winchester-Conant Props., Inc., 322 F.3d 26, 44 (1st Cir. 2003)
(“Federal copyright law preempts rights under state law when they
are the equivalent of those granted under the Copyright Act.”).
However, “[i]f a state cause of action requires an extra element,
beyond mere copying, preparation of derivative works,
27

performance, distribution or display, then the state cause of
action is qualitatively different from, and not subsumed within,
a copyright infringement claim and federal law will not preempt
the state action.”

Data Gen. Corp. v. Grumman Sys. Supp. Corp.,

36 F.3d 1147, 1164 (1st Cir. 1994) (internal quotation marks
omitted); see Tingley Sys., Inc. v. CSC Consulting, Inc., 152 F.
Supp. 2d 95, 105 (D. Mass. 2001) (Lindsay, J.).
Under Massachusetts law, to prove “common law copyright
infringement, the plaintiff must prove substantial similarity and
access” to an original work.

O’Neill v. Dell Pub’g Co., Inc.,

630 F.2d 685, 686 (1st Cir. 1980) (citation and footnote omitted)
(alleging infringement of common law copyright in unpublished
manuscript novel); see, generally, Edgar H. Wood Assocs., Inc. v.
Skene, 347 Mass. 351, 356 (1964).

Common law copyright

protection only extends to unpublished works prior to January 1,
1978 when the Copyright Act of 1976 came into effect.

17 U.S.C.

§ 301 (1978); accord Forward v. Thorogood, 985 F.2d 604, 605 &
n.1 (1st Cir. 1993).
Here, Lyons and Homecoming Farm allege that Lyons registered
the copyrights of her work on the Commonwealth of Massachusetts,
Compl. ¶ 20, and their “common law copyright” cause of action is
not preempted because it is qualitatively different from the
federal claim.
College 5-6.

Lyons’ Opp’n to Association 4-5; Lyons’ Opp’n to

This argument is unavailing.

28

Lyons and Homecoming

Farm allege that Lyons created the copyrighted work some time
between 1996 and 1997, see Compl. ¶¶ 39, 42, 46, thus they fail
to allege that it was an unpublished work created prior to
January 1, 1978 when the Copyright Act of 1976 came into effect,
Forward, 985 F.2d at 605.

Lyons and Homecoming Farm’s common-law

claim for copyright infringement rests in the same set of facts
as their federal claim, namely that the defendants copied,
distributed, and displayed the copyrighted work.

Compare Compl.

¶ 183 (Common Law Infringement claim) with id. ¶ 178 (Federal
Copyright Infringement claim).

Since Lyons and Homecoming Farm’s

common-law copyright claim has an extra element, it is not
qualitatively different from their federal copyright claim, and
therefore their claim is preempted.

See Feldman, 723 F. Supp. 2d

at 367 (“A state law claim is preempted if ‘it does not require
an element beyond mere copying, preparation of derivative works,
performance, distribution or display.’”) (quoting Santa-Rosa v.
Combo Records, 471 F.3d 224, 226 (1st Cir. 2006)).
G.

The Misappropriation of “Intellectual Property” Claim
Is Time-Barred (Count IX)

The Court is not aware of the existence of a cause of action
for misappropriation of “intellectual property” in the First
Circuit.6

Lyons and Homecoming Farm fail to cite any case that

6

The Court finds only two cases in this Circuit that refer
to a cause of action for misappropriation of intellectual
property, and neither of them provides a guide to the contours of
this supposed cause of action. Fin Brand Positioning, LLC v.
29

supports the existence of a “misappropriation of intellectual
property” theory, instead she alleges that this claim arises from
the generic definition of “misappropriation.”

Lyons’ Opp’n to

College 7.
To the extent that some courts in other circuits have
recognized the existence of a cause of action for
“misappropriation of intellectual property,” courts treat it as a
tort.

See, e.g., Mention v. Gessell, 714 F.2d 87, 89 (9th Cir.

1983) (citing 3 Nimmer on Copyright, § 12.05 n.1 (1982)).

The

Massachusetts statute of limitations for tort is three years.
Mass. Gen. Laws ch. 260, § 2A.

In a claim for misappropriation,

the statute of limitations starts to run from “an event or events
. . . that are reasonably likely to have put the plaintiff on
notice that he has been harmed.”

Massachusetts Eye and Ear

Infirmary v. QLT Phototherapeutics, Inc., 412 F.3d 215, 241 (1st
Cir. 2005) (quoting Stark v. Advanced Magnetics, Inc., 50 Mass.
App. Ct. 226, 233 (2000)).
Here, the grounds for Lyons and Homecoming Farm
misappropriation claim accrued in 2004, but they did not file
their complaint until seven years later in 2011.

Lyons and

Take 2 Dough Prods., Inc., 758 F. Supp. 2d 37, 43 (D.N.H. 2010)
(holding that “plaintiffs’ multifaceted claim for
misappropriation of intellectual property and services” was not
barred by pending patent application); Picker Int’l, Inc. v.
Leavitt, 865 F. Supp. 951, 956 (D. Mass. 1994) (Wolf, J.)
(allowing motion to “amend complaint to add claims based on the
alleged misappropriation of intellectual property”).
30

Homecoming Farm allege that their claims are not time-barred
because they did not learn about the misappropriation until
September 2010, when the Committee disclosed the extent of the
wrong-doing during a trademark cancellation proceeding.
138.

Compl. ¶

This argument is unavailing.
Lyons and Homecoming Farm allege that Lyons first learned

about the College’s letters,7 during the trademark cancellation
action.

Id. ¶¶ 111-17, 129.

The knowledge of these letters,

however, is irrelevant to Lyons misappropriation claim.

Id. ¶¶

129-30 (alleging that Gillette sent two letters to the
Association explaining the relationship between the College and
Lyons, and the reasons for her recusal).
There is no justification to toll the statute of limitations
because this is not a case where the cause of action was
“inherently unknowable.”

Quigley v. Unum Life Ins. Co., 688 F.

Supp. 80, 83 (D. Mass. 1988) (Caffrey, J.) (citing Mass. Gen.
Laws ch. 260, § 12).

There is no allegation that the Committee

took any affirmative action to deceive Lyons and conceal the fact
that the College had used or was using Lyons’ materials to apply
7

Lyons contradicts herself regarding the purported date she
first learned about the content of Gillette’s letters. Compare
Compl. ¶ 116 (learning on August 2011 of false statements
contained in the letters during discovery before the USPTO) and
id. ¶ 129 (learning on November 30, 2011 of false statements
contained in the letters) with Lyons’ Opp’n to College 11 (“Lyons
did not learn of Gillette’s defamatory correspondence until on or
after September of 2010” in the context of a trademark
cancellation action).
31

to the Association.

See id. at 83-84.

contributed to drafting the application.

In fact, Lyons
Compl. ¶¶ 81, 87-88.

Moreover, Lyons was on reasonable notice of the
misappropriation as early as the year 2004.

Lyons does not

dispute that she gave her copyright materials to Gillette on
September 9, 1999, id. ¶ 74, and on January 19, 2003, the
Committee drafted a letter of intent using Lyons’ intellectual
property to request approval from the Association, id.

¶¶ 81-82.

On May 18, 2004, Lyons gave the Committee and the Association
additional documents, including proposed by-laws and articles of
incorporation.

Id. ¶¶ 83-84, 91, 108.

Therefore, Lyons knew

that Gillette and the Committee were in possession of her alleged
intellectual property and they were using those documents to
apply to the Association well before she was asked to recuse
herself from the Committee.

Id. ¶ 82.

Lyons also knew that the

Committee never returned the documents to her after her recusal.
Id. ¶ 107.

Therefore, taking Lyons and Homecoming Farm’s claims

as true, from the moment Lyons walked away from the Committee,
the College was not authorized to use her work.

Id. ¶ 102.

Lyons explicitly alleged such unauthorized use when she claims:
“The [Association] participated in the misappropriation when it
granted provisional recognition to Gillette and his group in May
of 2010 based upon an application it knew was based upon the

32

misappropriated work product of Doctor Lyons.”

Lyons’ Opp’n to

Association 11 (emphasis added).
The events that took place in 2004 were “reasonably likely”
to have put Lyons on notice that the Committee was using her
documents to continue its application to the Association since
the Committee never returned her documents.

Id. ¶ 107; see

Massachusetts Eye and Ear Infirmary, 412 F.3d at 241.
Thus, even were this Court to recognize a claim for
misappropriation of intellectual property, the claim would be
time barred.
H.

Lyons and Homecoming Farm’s Chapter 93A Claim (Count X)

First, to bring an action under Chapter 93A, the unfair or
deceptive act must occur substantially within the Commonwealth.
Mass. Gen. Laws ch. 93A, § 11.

Here, the only link with the

Commonwealth is that Lyons’ company, Homecoming Farms is a New
Hampshire corporation with its principal place of business in
Brockton, Massachusetts.

Compl. ¶ 3.

All the alleged wrongful

acts were committed from 2004 to 2011 during the process of
creating the College and preparing its application to the
Association.

It is undisputed that none of the meetings,

incorporation of the College or application to the Association
took place in Massachusetts.

Lyons and Homecoming Farm’s

allegations thus are not sufficient to support a Chapter 93A
claim.

33

Second, a Chapter 93A claim has a four-year statute of
limitations.

Mass. Gen. Laws, ch. 260, § 5A.

Lyons and

Homecoming Farm’s Chapter 93A claim is premised on the
infringement of trademark, copyright, and misappropriation of
“intellectual property.”

Lyons’ Opp’n to Association 13.

Therefore, the cause of action accrued in 2004 and the statute of
limitations ran in 2008.

Massachusetts Eye and Ear Infirmary,

412 F.3d at 241 (holding that although it is not a general rule,
“where trade secrets of varying importance are alleged to have
been divulged over a period of years — that notice of one
misappropriation can constitute sufficient notice to begin
tolling the statute for all misappropriations”).

Lyons and

Homecoming Farm’s Chapter 93A claim must be dismissed.
I.

Lyons and Homecoming Farm’s Loss of Business
Opportunity (Count XII)

This is an issue of first impression.

Lyons and Homecoming

Farm request this Court to apply the doctrine of loss of chance.
In Matsuyama v. Birnbaum, 452 Mass. 1 (2008), the Supreme
Judicial Court adopted for the first time the doctrine of loss of
chance in the context of “medical malpractice wrongful death
action, where a jury found that the defendant physician’s
negligence deprived the plaintiff’s decedent of a less than even
chance of surviving cancer.”

Id. at 3.

The Court in Matsuyama

noted that “[p]ermitting recovery for loss of chance is
particularly appropriate in the area of medical negligence.”
34

Id.

Lyons relies on Matsuyama and argues that this decision extends
beyond the area of medical malpractice.

Lyons’ Opp’n to College

12 n.11.
At least one court has recognized that the doctrine of loss
of chance may apply to other professional malpractice claims.
Cold Spring Harbor Lab. v. Ropes & Gray LLP, No. 11–10128–RGS,
2012 WL 112642, at *7 n.10 (D. Mass. Jan. 13, 2012) (Stearns, J.)
(stating that the doctrine of loss of chance may apply to
attorney’s malpractice insofar as a patent application “would
have had a better chance of earlier approval before the PTO” had
the attorney “properly disclosed [the] invention rather than
repeatedly relying on copied text”).

This Court, however, is

unaware of any case where the loss of chance doctrine has been
applied outside malpractice claims.
Although this is not a malpractice case, Lyons and
Homecoming Farm sufficiently allege that Lyons would have had a
better chance of raising funds and certifying her veterinary
specialty had the College produced its own name, marks, and
application materials instead of copying Lyons and Homecoming
Farm’s work.

Although premised on another tort, Lyons’ reasoning

is similar to what my colleague held sufficient in Cold Spring
Harbor Lab., 2012 WL 112642, at *7.

Therefore, dismissal is not

warranted although a more complete record could well put paid to
this theory.

35

J.

Lyons and Homecoming Farm Have Not Alleged Sufficient
Facts to Sustain a Tortious Interference Claim (Count
XIV)

In order to assert a claim for intentional interference, a
plaintiff must allege (1) “the existence of a contract or a
business relationship which contemplated economic benefit” for
the claimant; (2) “the defendants’ knowledge of the contract or
business relationship”; (3) “the defendants’ intentional
interference with the contract or business relationship for an
improper purpose or by improper means”; and (4) damages.
Dev. Corp. v. City of Taunton, 423 Mass. 390, 397 (1996).
limitations period on this claim is three years.

Swanset
The

Mass. Gen. Laws

ch. 260, § 2A.
Here, Lyons and Homecoming Farm allege that the College and
the Association intended to deprive Lyons from creating a new
veterinary specialty and to divert those donors, academicians, or
clients that would otherwise use Lyons’ services.
to College 15.

Lyons’ Opp’n

This tort is predicated on Lyons’ severance from

the College in 2004 and the College’s application to the
Association.

Lyons’ Opp’n to Association 15-16; Lyons’ Opp’n to

College 14-15.
First, since the alleged interference occurred in 2004, this
claim is time-barred.
Second, to the extent that Lyons and Homecoming Farm allege
that the defendants collectively and intentionally interfered

36

with Lyons’ relationship with potential donors, academicians, or
clients that would otherwise use Lyons’ services, Compl. ¶¶ 22023, this claim fails to allege the existence of any particular
relationship that existed in 2004 other than that among the
members of the Committee and Lyons to create a new veterinary
specialty.

The Association representative had a passive role in

the 2004 Committee meetings.

Lyons and Homecoming Farm’s

complaint lacks any factual allegation to support that the
Association did anything improper to interfere with a contract or
a business relationship between Lyons and the College during the
2004 meetings.

Quincy Cablesystems, Inc. v. Sully’s Bar, Inc.,

650 F. Supp. 838, 847 (D. Mass. 1986) (“The interference must be
intentional to be tortious.”).
Third, to the extent that Lyons and Homecoming Farm allege
that the College interfered with itself, the claim is barred
because a party cannot be sued for interference with its own
contract or relationship.

Blackstone v. Cashman, 448 Mass. 255,

260 n.8 (2007) (“A party to a contract cannot be held liable for
intentional interference with that contract.”) (citing Harrison
v. NetCentric Corp., 433 Mass. 465, 477–78 (2001)).
Therefore, Lyons and Homecoming Farm’s tortious interference
claim must be dismissed.
III. CONCLUSION
The Association’s motion to dismiss, ECF No. 8, Counts I,

37

II, III, V, VIII, XII, and for lack of personal jurisdiction is
DENIED, and ALLOWED as to Counts IV, VI, VII, IX, X, and XIV.
The College’s motion to dismiss, ECF No. 10, Counts VI and
XII is DENIED, and ALLOWED as to Counts VII, IX, X, XIV.
Accordingly, the motions to dismiss, ECF Nos. 8, 10, are
ALLOWED in part and DENIED in part in accordance with this
opinion.
SO ORDERED.
/s/ William G. Young
WILLIAM G. YOUNG
DISTRICT JUDGE

38