Kimball et al v. Town of Provincetown et al

Filing 35

Judge William G. Young: ORDER entered. MEMORANDUM AND ORDER "For the aforementioned reasons, except as to Kimballs claim under Section 1983 based on an unreasonable seizure, this Court GRANTS the Defendants motion to dismiss for failure to state a claim upon which relief can be granted, ECF No. 25 ."(Sonnenberg, Elizabeth) (Main Document 35 replaced on 1/26/2016) (Paine, Matthew).

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

NEAL F.X. KIMBALL,
DIETER M. GROLL,
Plaintiffs,
v.
TOWN OF PROVINCETOWN,
SCOTT D. CHOVANEC, OFFICER, and
JEFF D. JARAN, CHIEF OF POLICE,
Defendants.

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YOUNG, D.J.

CIVIL ACTION
NO. 14-14391-WGY

January 26,2016
MEMORANDUM & ORDER

I.

INTRODUCTION
Neal Kimball (“Kimball”) and Dieter Groll (“Groll”)

(collectively, the “Plaintiffs”) brought this action pro se
under 42 U.S.C. §§ 1983 and 1988 and related Massachusetts state
laws to recover damages for alleged violations that took place
during the events surrounding their eviction from their office
space.

The Town of Provincetown (the “Town”), Officer Scott

Chovanec (“Officer Chovanec”), and Chief of Police Jeff Jaran
(“Chief Jaran”) (collectively, the “Defendants”), moved to
dismiss this case on statute of limitations grounds and for the
Plaintiffs’ failure to state a claim upon which relief may be
granted.

A.

Procedural History

On December 11, 2014, Kimball and Groll filed a complaint
against the Defendants in this Court.

Compl., ECF No. 1.

Defendants filed a motion to dismiss.

Defs.’ Mot. Dismiss Pl.’s

Compl., ECF No. 11.

The

On April 16, 2015, the Plaintiffs filed an

amended complaint and an opposition to the Defendants’ motion.
Pls.’ Am. Compl. (“Am. Compl.”), ECF No. 19; Pls.’ Opp’n Defs.’
Mot. Dismiss Compl. Under Fed. R. Civ. P. 12(b)(6), ECF No. 18.
The Defendants moved to dismiss the Plaintiffs’ amended
complaint, Defs.’ Mot. Dismiss Pl.’s Am. Compl., ECF No. 25, and
filed a supporting memorandum, Defs.’ Mem. Supp. Mot. Dismiss
Pls.’ Am. Compl. (“Defs.’ Mem.”), ECF No. 26.

The Plaintiffs

filed an opposition to the Defendants’ new motion.

Pls.’ Mem.

Opp’n Defs.’ Mot. Dismiss Pl.’s Am. Compl. Under Fed. R. Civ. P.
12(b)(6) (“Pls.’ Opp’n”), ECF No. 31.

On June 17, 2015, the

Court heard the parties’ oral arguments and took the Defendants’
motion under advisement.
B.

Elec. Clerk’s Notes, ECF No. 34.

Facts Alleged

The Plaintiffs, residents of Provincetown, each operated a
business 1 out of a space owned by Richard Campbell (“the
Landlord”), with Kimball as a tenant and Groll as an informal
subtenant.

Am. Compl. ¶¶ 8, 13, 14.

1

In October 2011, the

Kimball runs a design firm, Am. Compl. ¶ 9; Groll operates
a computer consulting and repair company, id. ¶ 14.
[2]

Landlord served Kimball with a 14-Day Notice to Quit for nonpayment of rent, followed by a Summary Process Eviction Summons.
Id. ¶ 15.

The Plaintiffs did not contest the eviction and a

default judgment was entered against Kimball on November 14,
2011.

Id. ¶ 16.

Relying on the ten-day period after the entry

of judgment before the judgment could be executed, 2 the
Plaintiffs planned to vacate the space by November 23, 2011.
Id. ¶¶ 17-18.
On November 18, 2011, the Landlord, Officer Chovanec, and
an employee of Outer Cape Locksmiths entered the office.
¶ 19.

Id.

The Landlord demanded that the Plaintiffs leave

immediately or else be “physically removed from the property,”
id. ¶ 20, while the Plaintiffs argued this demand was premature,
see id. ¶ 24.

The dispute continued later that day, and the

Plaintiffs ultimately spent the night in the office to avoid
relinquishing physical possession.

Id. ¶ 31.

When the Landlord

and Officer Chovanec returned on November 19, 2011, the parties
again argued, and Officer Chovanec proceeded to tell the
Plaintiffs that they had fifteen minutes to gather their
belongings and vacate the property, or else they would be
2

Under Mass. Gen. Laws, ch. 239, § 5, “[a]n execution upon
a judgment rendered pursuant to section 3 [which provides for
transfer of property to the plaintiff where warranted] shall not
issue until the expiration of 10 days after the entry of the
judgment.” See also Mass. Uniform Summ. Process R. 13
(“Execution shall issue upon application, but not prior to the
termination of the time limits imposed by applicable law[.]”
[3]

arrested.

Id. ¶ 32-33.

At 12:30 PM, the Plaintiffs were

escorted off the property.

Id. ¶ 37.

suffered a severe panic attack.

Later that day, Kimball

Id. ¶ 38. 3

On December 8, 2011, the Deputy Sheriff delivered a Notice
of Scheduled Eviction to the Plaintiffs, with the eviction
scheduled for 10:00 AM on December 12, 2011.

Id. ¶ 42.

The

Plaintiffs began to remove their remaining 4 belongings from the
office on December 8, 2011.

Id. ¶ 43.

On December 11, 2011,

Officer Chovanec appeared at the office and informed the
Plaintiffs that he had received a “complaint” from one of
Kimball’s clients, who was attempting to “retrieve his file
folder.”

Id. ¶ 47. 5

Officer Chovanec threatened to arrest

Kimball if he did not turn in the client folder to the police

3

Kimball discovered that he had left behind, in the unit,
both his blood pressure and anti-anxiety medications. Am.
Compl. ¶ 38. After several hours of attempts to contact the
Landlord by telephone and at his home, the Plaintiffs went to
the police station for assistance. Id. ¶ 39. Escorted by the
police and the Landlord, the Plaintiffs eventually retrieved
Kimball’s medications at approximately 7:30 PM. Id.
4

Between November 19 and December 8, 2011, the Plaintiffs,
escorted by the Landlord, had made three or four supervised
visits into the office to retrieve some of their most urgentlyneeded items. Am. Compl. ¶ 43.
5

Groll explained that the Plaintiffs’ last contact with the
client was on November 18, 2011, minutes before Officer Chovanec
and the Landlord’s arrival. Am. Compl. ¶ 48. Groll told the
client that Kimball would be in touch to return his folder
within the next day or so but Kimball did not do so. Id. The
client turned to the police for assistance. Id. ¶ 49.

[4]

station later that evening.

Id. ¶ 51.

When the Plaintiffs

protested, Officer Chovanec responded, “[w]ell, I don’t know
what to tell you - perhaps if you fulfilled your business
obligations more often, none of this would have happened.”

Id.

¶¶ 55-56.
Later on December 11, 2011, Chief Jaran arrived and asked
Kimball to identify himself.

Id. ¶ 57.

Chief Jaran then

proceeded to tell Kimball: “[O]fficer Chovanec told me before he
went off duty that if you didn’t get that folder to us tonight,
we should go ahead and hook you up.”

Id.

The Plaintiffs

stopped packing their remaining belongings and instead focused
exclusively on finding the client’s folder by searching each box
they had already packed.

Id. ¶ 58.

Because many of the packed

boxes had already been moved from the office to the driveway
outside the Plaintiffs’ home, much of this searching was done
outdoors “in the cold of mid-December” using flashlights.

Id.

The Plaintiffs never found the client’s folder, but were not
arrested.

Id. ¶¶ 60-61. 6

The Plaintiffs suffered mental distress after these
incidents, including: “severe anxiety, acute stress, and
insomnia during the spring and summer of 2012.”

Id. ¶ 80.

Kimball was later diagnosed with “a stress-induced spasm of the

6

The client recovered $1,200 in damages from Kimball for
the folder. Id. ¶ 61.
[5]

interstitial muscle,” and he suffered heart attacks in the
spring of 2013 and fall of 2013.

See id. ¶ 81.

After presenting a demand letter to the Town, id. ¶ 78, the
Plaintiffs filed suit in this Court.
II.

ANALYSIS
The Plaintiffs have brought claims under the federal Civil

Rights Act, 42 U.S.C. §§ 1983, alleging violations of the Fourth
and Fourteenth Amendments to the United States Constitution, as
well as under the cognate Massachusetts Civil Rights Statute,
Mass. Gen. Laws, ch. 12, § 11I (counts I and II).
¶¶ 83-101.

Am. Compl.

They also seek redress for reckless or intentional

infliction of emotional distress (count V), id. ¶¶ 115-120, and
defamation (counts VI and VII), id. ¶¶ 121-130.

Finally, the

Plaintiffs claim that they are entitled to damages from the Town
for municipal and supervisory liability (count III), id. ¶¶ 96101, and negligence (count IV), id. ¶¶ 102-114.
The Defendants, in their motion to dismiss, make two
arguments.

First, they assert that “[t]he majority of the

Amended Complaint’s allegations arise from events that fall
outside the statute of limitations.”

Defs.’ Mem. 4.

Second, as

to the remaining claims, the Defendants argue that they fail to
state claims upon which relief may be granted.
A.

Jurisdiction

[6]

See id. at 5.

This Court has original jurisdiction pursuant to 28 U.S.C.
§§ 1331 and 1343(a)(3) over complaints for alleged violations of
constitutional rights brought under the federal Civil Rights
Act, 42 U.S.C. § 1983.

This Court also has supplemental

jurisdiction over the Plaintiffs’ state-law claims arising under
the Massachusetts Tort Claims Act, the Declaration of Rights of
the Massachusetts Constitution, the Massachusetts Civil Rights
Act, and Massachusetts common law.
B.

See 28 U.S.C. § 1367.

Whether the Plaintiffs’ Claims are Time-Barred

The Defendants posit that several of the events alleged in
the Plaintiffs’ amended complaint fall outside the statute of
limitations.

See Defs.’ Mem. 4.

The Plaintiffs offer two

responses: that, more generally, the Defendants were engaged in
an ongoing conspiracy that had begun by November 29, 2011, but
which was still ongoing until December 12, 2011, thus none of
their federal claims are time-barred, see Pls.’ Opp’n 13; or,
alternatively, that, at the very least, their claims based on
the events of December 11, 2011, are timely, see id. at 3.
Their conspiracy-based argument misses the mark. 7

7

The

The Plaintiffs argue that, because all of the events
constituted an ongoing conspiracy amoung the officers against
the Plaintiffs, the statute of limitations runs from the date of
the last event, i.e., the threats of arrest on December 11,
2011. See Pls.’ Opp’n 13. Even if the Court construed their
amended complaint to contain a conspiracy allegation -conspiracy is not listed among the seven causes of action in
their complaint -- the statute of limitations analysis would
[7]

Plaintiffs’ second argument, however, has some merit: the events
of December 11, 2011, survive the statute of limitations.
1.

Statute of Limitations

The Plaintiffs filed their original complaint on December
11, 2014.

Compl. 1.

Because the alleged misconduct occurred in

Massachusetts, that state’s three-year statute of limitations
for tort actions, Mass. Gen. Laws, ch. 260, § 2A, applies to
both the Plaintiffs’ state law claims and their federal claims.
See Nieves v. McSweeney, 241 F.3d 46, 51 (1st Cir. 2001)
(applying Massachusetts’ statute of limitations to a tort-based
section 1983 claim).

For the federal claims, federal law

determines when the clock began to tick.

See Vistamar, Inc. v.

Fagundo-Fagundo, 430 F.3d 66, 70 (1st Cir. 2005) (“[A]lthough
the limitations period is determined by state law, the date of
accrual is a federal law question.”) (internal citation
omitted).

The rule is the same under both federal law and

Massachuestts law, however: the statute of limitations begins to
run on the date of the injury.

See id. (federal law); Pagliuca

v. City of Boston, 35 Mass. App. Ct. 820, 822-23 (1994)
(Massachusetts law).

still proceed act-by-act. See Nieves v. McSweeney, 241 F.3d 46,
51 (1st Cir. 2001) (stating that when a plaintiff alleges “a
continuing conspiracy to violate civil rights, the statute of
limitations runs separately from the occurrence of each civil
rights violation that causes actual damage to the plaintiff”).

[8]

Here, the Plaintiffs’ claims arise out of two separate
injuries.

One of these falls outside the statute of

limitations, but the other does not.
2.

November Injury

The Plaintiffs’ alleged due process violation, as well as
certain state law claims, stem from the Defendants’ conduct in
entering the office and commanding the Plaintiffs to vacate
immediately.

See Am. Compl. ¶¶ 84-87.

In effect, the

Plaintiffs allege that the timing and manner of their eviction
was wrongful.

See id.

The events giving rise to this

contention took place over the course of two days, on November
18 and 19, 2011, see id. ¶¶ 86-87, both of which occured more
than three years before the December 11, 2014 filing of the
Plaintiff’s complaint.

Thus, all of the Plaintiffs’ claims that

rely of these events as the source of the “actual injury” are
time-barred.

This means that parts of Count I and V, and all of

Counts II-IV and VI, are untimely and must be dismissed.
3.

December Injury

The second “actual injury” of which the Plaintiffs complain
occurred on December 11, 2011, when the Defendants threatened to
arrest Kimball if he did not locate and hand over a client file.
See id. ¶ 88.

These threats of arrest, the Plaintiffs argue,

constitute unreasonable seizures in violation of the Fourth
Amendment.

See Pls.’ Opp’n 6-7.

The events of December 11,

[9]

2011, survive the statute of limitations challenge, 8 and the
Court thus proceeds to analyze whether the Plaintiffs’ claims
based on these events are sufficient to withstand a motion to
dismiss.
C.

Whether the Plaintiffs State a Claim to Relief

Under Federal Rule of Civil Procedure 12(b)(6), the Court
will dismiss a complaint if it fail[s] to state “a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. 544, 570 (2007). 9

Bell Atl. Corp. v.

This Court must “accept as

true all well-pleaded facts alleged in the complaint and draw
all reasonable inferences in the pleader’s favor.”

A.G. ex rel

Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013)
(internal citation omitted).
liberal construction.

Pro se pleadings are entitled to a

63, 75 (1st Cir. 2014).

Foley v. Wells Fargo Bank, N.A., 772 F.3d
Still, “[i]f the factual allegations in

8

The filing of the complaint on the third anniversary of
December 11, 2011 captures the events of that evening. Pierce
v. Tiernan, 280 Mass. 180, 181-182 (1932) (last day of statute
of limitations period is anniversary of date cause of action
accrued). Indeed, had December 11, 2014 fallen on a Saturday
(it did not), a complaint filed the following Monday would
likewise have captured those events. Mahoney v. DematteoFlatiron L.L.P., 66 Mass. App. Ct. 903, 904 (2006).
9

Despite all the ink spilled on the Twombly - Iqbal
“revolution,” Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), this Court has
found that Conley v. Gibson, 355 U.S. 41 (1957) still provides a
sure guide. That is, in this Court’s experience, a complaint
failing to pass the Conley test appears surely headed for
dismissal, while a complaint passing Conley is rarely, if ever,
dismissed under Twombly or Iqbal.
[10]

the complaint are too meager, vague, or conclusory to remove the
possibility of relief from the realm of mere conjuncture, the
complaint is open to dismissal.”

Securities & Exch. Comm’n v.

Tambone, 597 F.3d 436, 442 (1st Cir. 2010) (en banc).
Three Counts of the Plaintiffs’ amended complaint remain at
this point in the Court’s analysis:

count I, insofar as it

relies on the December 11, 2011 events constituting an
unreasonable seizure; count V, insofar as it relies on conduct
made on December 11, 2011; and Count VII, insofar as it relies
on statements made on December 11, 2011.

The Defendants argue

that none of these allegations state a cognizable claim for
relief.

See Defs.’ Mem. 5.

The Court will address them in

turn.
1.

Seizure of the Plaintiffs

Whether the officers’ threat of arrest on December 11,
2011, constitutes a seizure presents a close question, one the
Court wrestled with nine years ago.

See Brown v. Sweeney, 526

F. Supp. 2d 126, 132-33 (D. Mass. 2007).
they were unreasonably seized.

The Plaintiffs allege

Since the Defendants do not

argue that, if there were a seizure, it was reasonable, the
Court focuses its inquiry on whether, taking the Plaintiffs’
allegations as true, a seizure took place.
The Defendants assert that the December 11 conduct, even
taking all the factual allegations in the Plaintiffs’ amended

[11]

complaint as true, “does not amount to a violation of the
federal civil rights statute.”

Defs.’ Mem. 6.

Because

“[s]ection 1983 is not, by itself, a source of any substantive
rights,” the relevant inquiry is whether the complaint states a
violation of the Fourth Amendment.

Brown, 526 F. Supp. 2d at

132 (internal citation omitted).
Under federal law, a seizure has occurred when “‘police
conduct would have communicated to a reasonable person that he
was not at liberty to ignore the police presence and go about
his business.’”

Id. (quoting Florida v. Bostick, 501 U.S. 429,

437 (1991)) (additional internal citation omitted).

In Brown,

the plaintiff alleged that a police officer came to his business
and threatened to impound a vehicle (suspected stolen) stored
there.

Id. at 128.

The officer “threatened to arrest [the

plaintiff] if [the plaintiff] would not allow [the officer] to
remove the vehicle.”

Id.

The plaintiff refused, and convinced

the officer instead to walk with him to his house, where he had
documents showing ownership of the vehicle.

Id.

The officer

“returned to the police station without removing the vehicle[,]”
telling the plaintiff that the officer “might return to arrest
him later.”

Id.

The question in Brown, like the question here, was how to
draw a line “between a mere threat of arrest,” which, the Court
noted, “absent any other factual allegations does not constitute

[12]

. . . a seizure[,]” and “a threat to compel compliance,” which
does.

Id. at 132-33 (internal citations omitted).

The Court

here reiterates that “in most circumstances” the difference is
“a factual one, thus making such a determination usually
inappropriate on a motion to dismiss.”

Id. at 133.

A jury,

after all, is best equipped for line-drawing, especially when
what would be communicated to a “reasonable person” is at
issue. 10
Brown was an exception to this usual rule.

There, the

Court emphasized two specific facts as relevant to the Fourth
Amendment inquiry: the plaintiff refused to yield to the
officer’s show of authority, and the officer left the plaintiff
after the plaintiff made a showing to the officer (the
documents) relating to the initial threat to arrest.

See id.

Here, in contrast, Kimball did yield to the show of authority.
See Am. Compl. ¶ 58.

When Chief Jaran threatened to arrest

Kimball if he did not retrieve a particular folder that night,
Kimball and Groll “completely abandon[ed] their office move” and
spent hours “unpacking, sifting through, and re-packing” boxes.
Id. ¶¶ 57-58.

This is a material difference in the seizure

10

This is not to say that the Plaintiffs’ claim will
necessarily get to a jury -- if the Defendants file a motion for
summary judgment at the end of discovery, the matter will reach
a jury only if there exists a genuine issue of material fact,
see Fed. R. Civ. P. 56(a).

[13]

analysis.

See Britton v. Maloney, 196 F.3d 24, 30 (1st Cir.

1999) (“In order for a seizure to occur, the subject must
‘yield’ to the assertion of authority over him and thereby have
his liberty restrained.”) (quoting California v. Hodari D., 499
U.S. 621, 626 (1991)); Brown, 526 F. Supp. 2d at 133
(characterizing the plaintiff’s failure to yield to the
officer’s show of authority as “[i]mportant[]”) (internal
citation omitted).

Although perhaps it ought not be. 11

The show of authority here was also more substantial than
in Brown.

After Officer Chovanec threatened to arrest Kimball

if he failed to find the folder, Am. Compl. ¶ 51, Chief Jaran
reiterated the threat hours later, id. ¶ 57.

That Kimball,

despite not finding the folder before Officer Chovanec’s
deadline (“later that . . . evening.”), id. ¶ 51, was not in
fact arrested, does not demonstrate as matter of law that he was
11

This rule, requiring that, for there to be a Fourth
Amendment seizure upon an officer’s show of authority, there
must be submission to that authority, has been criticized as
insufficiently protective of the Fourth Amendment’s core privacy
value. See, e.g., Randolph Alexander Piedrahita, A Conservative
Court Says "Goodbye to All That" and Forges A New Order in the
Law of Seizure-California v. Hodari D., 52 La. L. Rev. 1321,
1333 (1992) (“A court's ignorance of hotly aggressive police
actions (such as screeching halts, foot pursuits, and gunfire)
and subsequent concentration on a suspect's actions as the
trigger for the Fourth Amendment is manifestly unjust.”). The
rule exalts ex-post evidence (after the show of authority, was
there submission?) in what should be an ex-ante inquiry focused
on, at the time of the officer’s conduct, whether a reasonable
person would have felt “free to disregard the police and go
about his business[.]” Hodari D., 499 U.S. at 628.

[14]

not unconstitutionally seized.

See, e.g., Britton, 196 F.3d at

29 (“The use of force is certainly not required to effect a
seizure.”). 12

Were it otherwise, police officers could exert

control over people’s physical actions -- “seiz[ing]” their
“persons,” U.S. Const. amend. IV -- free of constitutional
restrictions, so long as they stopped short of arrest. 13

Kimball

has thus adequately stated a claim for an unreasonable seizure.
Groll has not, however.

According to the amended

complaint, both Officer Chovanec and Chief Jaran’s commands were
directed at Kimball specifically, and it was Kimball who faced
the apparent threat of arrest.

See Am. Compl. ¶¶ 51, 57.

Thus,

12

For more cases supporting this proposition, see, for
example, Cassady v. Tackett, 938 F.2d 693, 696 (6th Cir. 1991)
(reversing district court’s ruling that “because [the defendant
jailer’s] conduct consisted only of threats, and there was no
infliction of any physical wrong, the allegations and evidence
even in the light most favorable to [the plaintiff] did not
constitute a seizure.”); Vickroy v. City of Springfield, 706
F.2d 853, 854 (8th Cir. 1983) (“[The police officer’s] threat to
arrest [the plaintiff] if [the plaintiff] did not identify
himself constituted a seizure subject to the requirements of the
Fourth Amendment.”) (internal citations omitted); Bennett v.
Town of Riverhead, 940 F. Supp. 481, 487 (E.D.N.Y. 1996) (“[A]
threat to arrest, in the circumstances alleged here, would
constitute a ‘seizure’ subject to the protections of the Fourth
Amendment.”).
13

It is of course true that not every interaction “between
policemen and citizens involves ‘seizures' of persons.” Terry
v. Ohio, 392 U.S. 1, 19 n.16 (1968). But it is also true that
“when [an] officer, by means of physical force or show of
authority, has in some way restrained the liberty of a citizen
[the Court] may . . . conclude that a ‘seizure’ has occurred.”
Id.
[15]

even taking all of the Plaintiffs’ allegations as true, this
Court concludes that no seizure occurred as to Groll.
2.

Intentional Infliction of Emotional Distress

The Plaintiffs, in count V, claim that the Defendants’
conduct on December 11, 2011, constituted intentional infliction
of emotional distress.

See Am. Compl. ¶¶ 115-120.

The

Defendants argue that the Plaintiffs’ factual allegations are
insufficient to state a claim for intentional infliction of
emotional distress under Massachusetts law.
10.

See Defs.’ Mem. 8-

The Court agrees with the Defendants.
To survive a motion to dismiss its claim of intentional

infliction of emotional distress, the amended complaint must
plead facts sufficient for a jury to find: “(1) that the
defendant intended to cause, or should have known that his
conduct would cause, emotional distress; (2) that the
defendant's conduct was extreme and outrageous; (3) that the
defendant's conduct caused the plaintiff's distress; and (4)
that the plaintiff suffered severe distress.”

Roman v. Trustees

of Tufts Coll., 461 Mass. 707, 717-18 (2012) (internal citations
omitted).

Fatal to the Plaintiffs is the second element, which

is exceedingly stringent:
Liability for extreme and outrageous conduct cannot be
predicated upon mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities,
nor even is it enough that the defendant has intended
to inflict emotional distress, or even that his

[16]

conduct has been characterized by malice, or a degree
of aggravation which would entitle the plaintiff to
punitive damages for another tort; rather, liability
may be found only where the conduct has been so
outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a
civilized community.
Id. at 718 (internal citations and quotation marks omitted).
Here, alleging that the Defendants threatened arrest if the
Plaintiffs did not produce Kimball’s client’s documents makes
out a case of harassing, inappropriate conduct, but does not
suffice to state an intentional infliction of emotional distress
claim.

Cf. id. at 718 (threatening that the plaintiff would be

arrested if she did not leave a building was not extreme
conduct).
3.

Defamation

The Plaintiffs assert, in count VII, a claim of defamation
for the statements made to them on December 11, 2011.
Compl. ¶¶ 126-130.

See Am.

The Defendants argue that this count must be

dismissed because the statements at issue do not, as matter of
law, constitute defamation.

See Defs.’ Mem. 10-11.

The

Defendants are correct.
“To prevail on a claim of defamation, a plaintiff must
establish that the defendant was at fault for the publication of

[17]

a false statement regarding the plaintiff, 14 capable of damaging
the plaintiff's reputation in the community, which either caused
economic loss or is actionable without proof of economic loss.”
White v. Blue Cross & Blue Shield of Massachusetts, Inc., 442
Mass. 64, 66, (2004) (internal footnote omitted).

Here,

discussing the element of falsity will suffice.
Officer Chovanec told the Plaintiffs that he received a
complaint from one of Kimball’s clients about that client’s file
folder being missing.

Am. Compl. ¶ 47.

The Plaintiffs do not

claim that that statement is false, i.e., the Plaintiffs do not
claim that Kimball’s client was not missing a folder, or that
Kimball’s client did not in fact contact the police about it.
See id. ¶ 49.

This statement therefore cannot serve as the

basis for a defamation claim.
Chovanec responded to the Plaintiffs’ claim that they would
not be able to locate the client’s folder that night by stating
“Well, I don't know what to tell you -- perhaps if you fulfilled
your business obligations more often, none of this would have
happened."

Id. ¶ 56.

This statement is an opinion that implies

a fact: that Kimball, at least some of the time, fails to
14

Because the alleged statements by the officers were
spoken, and not written, the statements are actionable only if
false. See Ravnikar v. Bogojavlensky, 438 Mass. 627, 629 n.3
(2003) (stating that, unless the statement was “published in
writing (or its equivalent)” libel actions only apply to false
statements).

[18]

fulfill his business obligations.

See HipSaver, Inc. v. Kiel,

464 Mass. 517, 526 (2013) (“[A] statement cast in the form of an
opinion may imply the existence of undisclosed defamatory facts
on which the opinion purports to be based, and thus may be
actionable.”) (internal citations and quotation marks omitted).
The Plaintiffs, however, fail to allege that this implied fact
is false -- they admit that, with respect to this particular
client, Kimball did fail to return his records (although they
blame the officers for that failure) -- and thus the resulting
opinion cannot establish a claim for defamation.
Finally, there is Chief Jaran’s statement that “[O]fficer
Chovanec told me before he went off duty that if you didn't get
that folder to us tonight, we should go ahead and hook you up.”
Am. Compl. ¶ 57.

Again, the Plaintiffs do not allege that this

statement was false, thus it cannot be defamation in
Massachusetts.
None of the statements made by the Defendants on December
11, 2011, constitute defamation under Massachusetts law.
III. CONCLUSION
For the aforementioned reasons, except as to Kimball’s
claim under Section 1983 based on an unreasonable seizure, this
Court GRANTS the Defendants’ motion to dismiss for failure to
state a claim upon which relief can be granted, ECF No. 25.

[19]

SO ORDERED.

_/s/ William G. Young_
WILLIAM G. YOUNG
DISTRICT JUDGE

[20]