Barrigas v. United States of America et al
Judge Allison D. Burroughs: MEMORANDUM AND ORDER entered. For the foregoing reasons, the Stern Defendants motion to dismiss ECF No. 30 isGRANTED, and the United States motion to dismiss ECF No. 34 is GRANTED as to Count I. Plaintiffs case may proceed with respect to Count II against the United States. SO ORDERED.(McDonagh, Christina)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
UNITED STATES OF AMERICA; THE
HOWARD STERN PRODUCTION
COMPANY; and HOWARD STERN,
Civil Action No. 17-cv-10232-ADB
MEMORANDUM AND ORDER ON MOTIONS TO DISMISS
A telephone conversation between Plaintiff and an agent of the Internal Revenue Service
(“IRS”) concerning her tax liability and repayment plan partially aired during a segment of The
Howard Stern Show on Sirius XM satellite radio. Plaintiff asserts various causes of action
against the Howard Stern Production Company and Howard Stern (collectively, the “Stern
Defendants”) and the United States relating to this alleged invasion of privacy. Currently
pending before the Court are the Stern Defendants’ motion to dismiss for failure to state a claim
[ECF No. 30] and the United States’ partial motion to dismiss for lack of subject matter
jurisdiction or improper venue. [ECF No. 34]. For the reasons that follow, the Stern Defendants’
motion is GRANTED, and the United States’ motion is GRANTED as to Count I. Plaintiff’s
case may proceed with respect to Count II against the United States.
Amended Complaint and Other Sources
The following summary of facts is drawn from the operative complaint [ECF No. 5]
(“Amended Complaint”), the well-pleaded allegations of which are taken as true for purposes of
evaluating the motions to dismiss. See Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993).
Ordinarily, the Court does not consider documents that were not attached to the complaint or
expressly incorporated therein. Id. Courts have, however, “made narrow exceptions for
documents the authenticity of which are not disputed by the parties; for official public records;
for documents central to [plaintiff’s] claim; or for documents sufficiently referred to in the
complaint.” Id.; see Miss. Pub. Employees’ Ret. Sys. v. Bos. Sci. Corp., 523 F.3d 75, 86 (1st Cir.
The Stern Defendants filed an audio recording of The Howard Stern Show segment at
issue, and the Stern Defendants and the United States each filed separate transcripts of that
segment. [ECF Nos. 32, 33, 37]. Counsel for the Stern Defendants avers that on May 16, 2017,
he informed Plaintiff’s counsel that the Stern Defendants intended to submit the recording
without a motion to seal, and that Plaintiff’s counsel did not respond prior to the filing of the
motion to dismiss. [ECF No. 32 at ¶ 3]. Plaintiff did not object in her opposition briefing to the
Court’s consideration of the recording or the transcripts, and she has not otherwise disputed their
accuracy or authenticity. Because the content of this segment of The Howard Stern Show is
central to the dispute and is referenced throughout the Amended Complaint, the Court will
consider the recording and transcripts in reviewing whether Plaintiff has plausibly stated her
claims. See Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103 04 (10th
Cir. 2017) (district court properly considered a recording attached to defendant’s motion under
Rule 12(b)(6) where the recording was referenced in the complaint, was central to the claims,
and there was no dispute as to its accuracy or authenticity); Speaker v. U.S. Dep’t. of Health &
Human Servs. Ctrs. For Disease Control & Prevention, 623 F.3d 1371, 1379 80 (11th Cir. 2010)
(because videos attached to motion to dismiss were not disputed and were central to plaintiff’s
claim, court could properly rely on them at the motion to dismiss stage); Eggleston v. Daniels,
No. 15 11893, 2016 WL 4363013, at *4 n.4 (E.D. Mich. Aug. 16, 2016) (considered video
recording of television show that was “referred to in the complaint and [was] central to
Plaintiff’s claims” at the motion to dismiss stage); Jackson v. Gatto, No. 13 02516, 2014 WL
2743130, at *3 (D. Colo. June 17, 2014) (audio/video recording and transcript attached to motion
to dismiss, where neither side challenged its authenticity, was within scope of Rule 12(b)(6)).
Summary of Facts
On May 19, 2015, Plaintiff called an IRS customer service center to discuss whether her
tax refund for the 2014 tax year had been incorrectly applied toward her 2011 and 2012 tax
liabilities, which were already subject to a repayment agreement. Am. Compl. ¶¶ 15 16.
Plaintiff’s telephone call was routed to an IRS customer service agent, Jimmy Forsythe (“Agent
Forsythe”), who, unbeknownst to Plaintiff, had been on hold with the Sirius XM satellite radio
program, The Howard Stern Show, using a different telephone line. Id. ¶¶ 18 23. At some point
during Agent Forsythe’s conversation with Plaintiff, The Howard Stern Show took Agent
Forsythe off hold. Id. ¶¶ 24 25. Apparently unaware that he was on the air, Agent Forsythe
continued to speak to Plaintiff regarding her tax liability and repayment plan, and, toward the
end of the conversation, mentioned Plaintiff’s telephone number. Id. ¶¶ 25 26. The Howard
Stern Show segment, however, only captured Agent Forsythe’s side of his conversation with
Plaintiff. Neither Plaintiff’s voice nor her statements were audible during the broadcast. [ECF
Nos. 32, 37]. Although Plaintiff’s telephone call to Agent Forsythe lasted approximately 45
minutes, only about three minutes of their conversation aired. Am. Compl. ¶ 18. The following
are Agent Forsythe’s statements to Plaintiff that were broadcasted:1
AGENT FORSYTHE: $71 due on the 20th.2 [ECF No. 37 at 2:8]
AGENT FORSYTHE: Let’s see. [ECF No. 32 at 4:12].
AGENT FORSYTHE: I know. I mean, it’s like—right now, as of the 1st of June, it’s
$1,228.26 minus the—that $100. I mean, that could take a year to pay off. Id. at 4:19 22.
AGENT FORSYTHE: It should remain the same. So the interest rate will remain the
same but when you make the payment it’s going to go towards the tax first. Id. at 5:4 7.
AGENT FORSYTHE: So basically the way it works is when you’re paying us, it’s
always going towards the tax until the tax is reduced down to zero. Id. at 5:9 12.
AGENT FORSYTHE: —and then it will go towards the penalty. And when the penalty’s
reduced down to zero, then it will bring—then it—the payments will go towards the
interest and that goes down to zero. Id. at 5:14 18.
AGENT FORSYTHE: If you pay the pay penalty it’s half. Id. at 5:23 24.
AGENT FORSYTHE: It’s one-half of one percent of the total amount due—of the total
tax due and the interest is three percent yearly. Id. at 6:2 4.
AGENT FORSYTHE: —compounded daily. Id. at 6:6.
AGENT FORSYTHE: 71. Id. at 6:10.
AGENT FORSYTHE: Yeah. It won’t take effect until next month. Id. at 6:12 13.
AGENT FORSYTHE: But, you know, we can send a referral over to your direct
deposit—direct debit liaison and they’ll change it. Id. at 6:16 18.
AGENT FORSYTHE: No. We can do it over the phone. Id. at 6:21 22.
AGENT FORSYTHE: So are you going to increase it to 100?3 Still on the same date? Id.
at 6:24 25.
The citations reflect the page number and line number of the transcript provided by the Stern
Defendants at ECF No. 32 or by the United States at ECF No. 37.
The Stern Defendants’ transcript states that Agent Forsythe said, “$71,200 on the 20th.” [ECF
No. 32 at 4:6]. Based on the Court’s review of the recording, and in the context of the segment as
a whole, “$71 due on the 20th” appears to be accurate.
The United States’ transcript states that Agent Forsythe said, “So you’re going to first do a
hundred.” [ECF No. 37 at 5:7].
AGENT FORSYTHE: Okay. Let’s get this. Id. at 7:4.
AGENT FORSYTHE: I believe it’s direct deposit, direct debit. Id. at 7:11 12.
AGENT FORSYTHE: —statements. Id. at 7:15.
AGENT FORSYTHE: Again, with your bills, when it is paid off it will let you know. Id.
at 7:19 20.
AGENT FORSYTHE: Yeah. Id. at 7:23.
AGENT FORSYTHE: Yeah. I was going to send that as well. Id. at 8:3 4.
AGENT FORSYTHE: Is your phone number still [omitted]4? Id. at 8:8 9.
AGENT FORSYTHE: You’re welcome. Id. at 8:16.
At this point, Agent Forsythe began directly addressing the hosts of The Howard Stern
Show. He acknowledged that he was a collector “for the government” before the conversation
between the hosts and Agent Forsythe turned to an unrelated topic. [ECF No. 32 at 9:7 9]. While
Agent Forsythe’s statements above were airing, the hosts of The Howard Stern Show provided
commentary. They attempted to get Agent Forsythe’s attention, i.e.:
ROBIN QUIVERS: Jimmy? [ECF No. 32 at 4:4].
HOWARD STERN: Jimmy? Id. at 4:5.
ROBIN QUIVERS: Hello? Id. at 4:14.
They speculated as to the topic of his conversation with Plaintiff, i.e.:
ROBIN QUIVERS: What is he doing? Making a transaction? Id. at 4:9 10.
HOWARD STERN: High finance. Id. at 4:23.
HOWARD STERN: I see. He’s at work. Id. at 5:8.
HOWARD STERN: He’s doing collections. Id. at 5:13.
Given that there is no dispute over the telephone number that Agent Forsythe recited, and that
the number may still be associated with Plaintiff, the Court need not repeat it again.
They noted the complexity of the subject matter, i.e.:
HOWARD STERN: Boy, [I’ve] got no head for numbers. Id. at 5:19 20.
ROBIN QUIVERS: No. I don’t know what he’s talking about at all. Id. at 5:21 22.
HOWARD STERN: I’m not sure what he’s saying but it sounds like a raw deal. Id. at
HOWARD STERN: I think I’m in math. I’m in math class and I’m flunking because I
don’t know one thing he’s saying. Id. at 7:1 3.
The hosts also expressed disinterest in Agent Forsythe’s work, i.e.:
HOWARD STERN: [B]y the way, this is the most boring job ever. Id. at 7:13 14.
HOWARD STERN: I’d rather live in my parents’ basement if I had to do this. Id. at
HOWARD STERN: [You’ve] got the most boring job, dude. Id. at 9:1 2.
They did not comment specifically on the person with whom Agent Forsythe was conversing,
other than to say to Agent Forsythe once he realized he was on the air:
ROBIN QUIVERS: What are you doing with that person? What are you paying off? Id.
at 9:3 4.
HOWARD STERN: All I know is that was the most confusing phone call and I still don’t
know what the guy owes. Id. at 9:13 15.
ROBIN QUIVERS: I don’t know why they need to ask all those questions. They need to
pay the bill. Id. at 9:16 18.
HOWARD STERN: Right. Just give him the bottom line, Jimmy. Stop going through all
the math. Id. at 9:19 21.
Plaintiff was unaware that Agent Forsythe had called The Howard Stern Show until she
began receiving text messages and telephone calls from unknown individuals that were
“harassing in nature” in the days following the broadcast. Am. Compl. ¶¶ 20, 33. She reported
the incident to the IRS and to The Howard Stern Show, but the IRS only took action after she
reported the incident to a local news station. Id. ¶¶ 34 37. The Howard Stern Show did not
respond to her communications about the incident and a recording of the broadcast was allegedly
available on The Howard Stern Show website “for many weeks after the incident.” Id. ¶ 39.
Plaintiff has suffered “tremendous anxiety,” difficulty sleeping and eating, and has sought
treatment as a result of the incident. Id. ¶¶ 42 43, 47. She also asserts that the broadcast has
detrimentally affected her ability to find employment in her field of “business and consulting.”
Id. ¶¶ 44 46, 48.
UNITED STATES’ MOTION TO DISMISS
Plaintiff asserts claims for negligence and invasion of privacy under the Federal Tort
Claims Act (“FTCA”) (Count I) and disclosure of tax return information in violation of 26
U.S.C. § 7431 (Count II) against the United States. The United States moves to dismiss Count I
for lack of subject matter jurisdiction and for improper venue. The motion only challenges Count
II on the ground of improper venue.
Lack of Subject Matter Jurisdiction
Given that “courts should ordinarily satisfy jurisdictional concerns before addressing the
merits of a civil action,” the first question is whether the Court has subject matter jurisdiction
over Plaintiff’s FTCA claims. Feinstein v. Resolution Trust Corp., 942 F.2d 34, 40 (1st Cir.
1991). The United States’ challenge to this Court’s jurisdiction “accepts the plaintiff’s version of
jurisdictionally-significant facts as true and addresses their sufficiency, requiring the court to
assess whether the plaintiff has propounded an adequate basis for subject-matter jurisdiction.”
Valentin v. Hosp. Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001). “In performing this task, the
court must credit the plaintiff’s well-pleaded factual allegations (usually taken from the
complaint, but sometimes augmented by an explanatory affidavit or other repository of
uncontested facts), draw all reasonable inferences from them in her favor, and dispose of the
challenge accordingly.” Id. Plaintiff, as “the party invoking the jurisdiction of a federal court[,]
carries the burden of proving its existence.” Skwira v. United States, 344 F.3d 64, 71 (1st Cir.
2003) (citation and quotation marks omitted).
Under the FTCA, the United States has consented to a limited waiver of its sovereign
immunity, allowing claims to be filed against the United States for damages “caused by the
negligent or wrongful act or omission” of a federal government employee while acting within the
scope of his or her office or employment, “under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with the law of the place where the
act or omission occurred.” 28 U.S.C. § 1346(b). “‘As with all waivers of sovereign immunity,’
the FTCA must be strictly construed in favor of the government.” Gordo-Gonzalez v. United
States, 873 F.3d 32, 35 (1st Cir. 2017) (quoting Bolduc v. United States, 402 F.3d 50, 56 (1st
Cir. 2005)). This particular waiver is also subject to several statutory exceptions. Id. (citing 28
U.S.C. § 2680(a) (n)). “[B]ecause 28 U.S.C. § 1346(b) provides that federal courts shall have
jurisdiction over FTCA claims ‘subject to,’” the exceptions found in section 2680, those
exceptions “define the limits of federal subject matter jurisdiction in this area.” Hydrogen Tech.
Corp. v. United States, 831 F.2d 1155, 1161 (1st Cir. 1987).
Section 2680(c), sometimes referred to as the “tax exception,” exempts from the FTCA’s
waiver of sovereign immunity “[a]ny claim arising in respect of the assessment or collection of
any tax or customs duty . . . .” 28 U.S.C. § 2680(c). The tax exception has been “interpreted
broadly,” Tempelman v. Beasley, 43 F.3d 1456, 1994 WL 708145, at *1 (1st Cir. Dec. 21, 1994),
recognizing that a “wide range of activity by the IRS ‘arises in respect of’ its collection or
assessment of taxes.” Clark v. United States, 326 F.3d 911, 913 (7th Cir. 2003); see, e.g.,
Tempelman, 1994 WL 708145, at *1 (barring plaintiffs’ claim that IRS agent conducting audit
maliciously imposed tax liabilities in retaliation for their dissident political views); Jones v.
United States, 16 F.3d 979, 980 (8th Cir. 1994) (covering IRS’s “rough and tumble, no-holdsbarred inquiry into the [plaintiffs’] tax practices,” including wire taps, personal interviews with
acquaintances and business contacts, and searches home and business locations); Perkins v.
United States, 55 F.3d 910, 913 14 (4th Cir. 1995) (barring wrongful death action where IRS
agent contracted plaintiff’s husband to retrieve mining equipment pursuant to an IRS seizure
order and plaintiff’s husband died due to asphyxiation in the mine); Feinschreiber v. United
States, No. 01 3628, 2002 WL 1396432, at *1 2 (S.D. Fla. May 24, 2002) (applying tax
exception where IRS audit agent retaliated against plaintiffs by eliminating their expense
deductions, referring their audit to the IRS’s criminal division, and causing IRS to send them
humiliating letters). Courts have likewise described the scope of the tax exception as reaching
activities of an IRS agent with a “realistic nexus” to assessing or collecting taxes. Johnson v.
Sawyer, 980 F.2d 1490, 1503 (5th Cir. 1992), opinion vacated on other grounds, 47 F.3d 716
(5th Cir. 1995) (en banc); see Hydrogen Tech. Corp. v. United States, 656 F. Supp. 1126, 1128
(D. Mass. 1987), aff’d, 831 F.2d 1155 (1st Cir. 1987) (citing Formula One Motors, Ltd. v.
United States, 777 F.2d 822, 825 (2d Cir. 1985) (Oakes, J. concurring)) (section 2680(c) would
not apply “if there were no nexus” between the activity complained of and collection activity).
Where “a specific tax debt of a specific taxpayer is at issue,” Perkins, 55 F.3d at 915, it is
well-established that the tax exception encompasses activities of an IRS agent that are “even
remotely related” to assessing or collecting taxes, including “unlawful or unauthorized actions.”
Hanley v. United States, No. 14 1315, 1994 WL 723678, at *3 (1st Cir. Oct. 5, 1994) (citing
Capozzoli v. Tracey, 663 F.2d 654, 657 (5th Cir. 1981)) (tax exception barred tort claim based
on IRS’s failure to process a partnership schedule attached to their tax return); see Perkins, 55
F.3d at 914 (“[R]egulatory violations and torts committed by agents are within the scope of the
[tax exception] if they were committed during the course of a tax assessment or collection
effort”); Capozzoli, 663 F.2d at 658 (argument that “any tortious or wrongful conduct by an
agent cannot, by definition, be in respect of his official duties of assessing or collecting taxes”
has been “consistently rejected”); Feinschreiber, 2002 WL 1396432 at *4 (tax exception “even
includes an IRS agent’s unauthorized tortious acts designed to intentionally and illegally
intimidate and harass the taxpayer, so long as they arise out of tax collecting efforts”).
Plaintiff argues that Agent Forsythe’s telephone call to The Howard Stern Show was
plainly outside of his official duties to assess or collect taxes and that the United States fails to
cite any cases in which the IRS’s conduct was comparable to Agent Forsythe’s disclosure of
their conversation. The tax exception has, however, barred claims based on privacy violations. In
Capozzoli, 663 F.2d at 656, an IRS agent, who was investigating a casualty loss claimed by the
plaintiffs on an undeveloped tract of land, photographed the plaintiffs’ nearby residence even
though it was not the subject of the claim. One of the plaintiffs alleged that she was alone in the
residence wearing only her nightclothes when the IRS agent took the photographs. Id. The court
rejected plaintiffs’ argument that photographing plaintiffs’ home, even though it was not the
subject of the casualty loss claim, constituted a “tortious invasion of privacy unrelated to his
official duties of assessing or collecting taxes.” Id. at 657 58; see Perkins, 55 F.3d at 915
(Capozzoli held that the “photography was remotely but sufficiently related to the agent’s
assessment of [plaintiff’s] taxes . . . even though the casualty loss claim did not involve the
residence and even if the photography constituted an unauthorized tortious invasion of privacy”).
The court recognized that the tax exception has been “interpreted broadly by the courts to
preclude suits for damages arising out of the allegedly tortious activities of IRS agents when
those activities were in any way related to the agents’ official duties.” Capozzoli, 663 F.2d at 658
The tax exception has also been applied to the disclosure of information to third parties.
The IRS agents in Morris v. United States conducted an audit of plaintiffs’ books and then
disclosed to plaintiffs’ creditors that plaintiffs had an outstanding tax liability. 521 F.2d 872, 874
(9th Cir. 1975). They also harassed and intimidated plaintiffs throughout their collection attempts
and unlawfully seized and levied upon their property. Id. Not only did the disclosure of
plaintiffs’ alleged tax liability lead to their loss of credit and the failure of their business, but
after years of investigation and collection activity, the IRS determined that plaintiffs owed no
taxes. Id. Although the court acknowledged that the IRS agents’ alleged conduct was
“deplorable,” it held that even assuming, arguendo, that the IRS agents’ collection activity “was
beyond the normal scope of authority and amounted to tortious conduct, . . . the claim falls
squarely within the exempted group of tort claims arising out of tax collection efforts.” Id.
The Court agrees with Plaintiff that Agent Forsythe’s personal telephone call to The
Howard Stern Show, and the partial disclosure of his conversation with Plaintiff regarding her
taxes, went beyond the scope of his duties as an IRS employee. The tax exception is
“meaningless,” however, if it does not cover activities that fall outside the scope of an IRS
agent’s employment. Capozzoli, 663 F.2d at 658; accord Perkins, 55 F.3d at 913. The pertinent
question is whether the complained of conduct is remotely related, or bears a nexus, to the
assessment or collection of taxes. See Capozzoli, 663 F.2d at 658 59 (“[A]n IRS agent could
engage in tortious conduct sufficiently removed from the agent’s official duties of assessing or
collecting taxes as to be beyond the scope of Section 2680(c), and at the same time sufficiently
within the scope of his employment as to give rise to an action against the United States.”). Here,
Agent Forsythe called The Howard Stern Show from an IRS service center while he was on duty.
He was assisting Plaintiff with her tax related questions at the time of the disclosure, which
Plaintiff acknowledges was inadvertent. [ECF No. 49 at 6]. Compare Wilkerson v. United States,
839 F. Supp. 440, 441, 446 (E.D. Tex. 1993) (denying motion to dismiss where there was
question of fact as to whether IRS agent’s disclosures “were made solely to harass [plaintiff] or
ruin [plaintiff’s] business”). Although there may be some circumstances under which a
disclosure of an individual’s tax related information may fall outside of the broad reach of the tax
exception, Agent Forsythe’s inadvertent disclosure made while he was simultaneously answering
Plaintiff’s questions about her tax liability and repayment plan is, at the very least, remotely
related to tax assessment and collection. Thus, the alleged tortious activities of Agent Forsythe
fall within the scope of the tax exception and are not actionable under the FTCA. Plaintiff’s
FTCA claims against the United States are therefore dismissed.5
With respect to the remaining claim against the United States under 26 U.S.C. § 7431, the
United States challenges whether Plaintiff can establish that venue is proper in this district,
seemingly on the sole basis that the Amended Complaint states that Plaintiff is an individual
“now or formerly” residing in Massachusetts. See 28 U.S.C. § 1391(e) (civil action against
United States may be brought in any judicial district in which a defendant resides, a substantial
part of the events or omissions giving rise to the claim occurred, or plaintiff resides, if no real
Because the Court lacks subject matter jurisdiction over the FTCA claims, it does not reach the
United States’ preemption argument or undertake a choice-of-law analysis to determine whether
New York or Massachusetts law governs Plaintiff’s FTCA claims. Assuming that Massachusetts
law applied, the merits discussion below concerning the claims against the Stern Defendants
would likely apply in a substantially similar manner to the merits of the claims against the United
property is involved). “Once a defendant has raised the issue of venue through a motion to
dismiss, the burden falls on the plaintiff to demonstrate that venue is proper.” Berklee Coll. of
Music, Inc. v. Music Indus. Educators, Inc., 733 F. Supp. 2d 204, 211 n.49 (D. Mass. 2010). “In
evaluating a motion to dismiss for improper venue under [Fed. R. Civ. P. 12(b)(3)], allegations in
the complaint are accepted as true and the record includes affidavits and documentation.” Gill v.
Nakamura, No. 14 13621, 2015 WL 5074475, at *2 (D. Mass. July 24, 2015); see Universal
Trading & Inv. Co. v. Bureau of Representing Ukrainian Interests in Int’l & Foreign Cts., 898 F.
Supp. 2d 301, 317 (D. Mass. 2012) (“A district court may examine facts outside the complaint to
determine whether its venue is proper.”).
In opposing the United States’ motion, Plaintiff stated in an affidavit that she resided in
Massachusetts at the time that the initial complaint was filed, has been a Massachusetts resident
for many years, and is currently a Massachusetts resident. [ECF No. 50 at ¶¶ 2 3]. The United
States did not press any argument with respect to venue in its reply to Plaintiff’s opposition.
Based on the allegations in the Amended Complaint and Plaintiff’s affidavit, the United States’
motion to dismiss for improper venue is DENIED. Plaintiff’s case against the United States may
proceed with respect to Count II.
STERN DEFENDANTS’ MOTION TO DISMISS
Plaintiff asserts claims for negligence (Count IV), invasion of privacy (Count V), and
intentional infliction of emotional distress (Count VI) against the Stern Defendants. She also
brought a claim for unlawful disclosure of tax return information (Count III), but conceded in her
opposition brief that Count III cannot proceed against the Stern Defendants. [ECF No. 46 at 2
n.1]. Accordingly, Count III is dismissed. The Stern Defendants seek dismissal of the remaining
counts for failure to state a claim.
To evaluate a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court must “accept as
true all well-pleaded facts alleged in the complaint and draw all reasonable inferences therefrom
in the pleader’s favor.” A.G. ex rel. Maddox v. v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013)
(quoting Santiago v. Puerto Rico, 655 F.3d 61, 72 (1st Cir. 2011)). The complaint must set forth
“a short and plain statement of the claim showing that the pleader is entitled to relief,” and
should “contain ‘enough facts to state a claim to relief that is plausible on its face.’” Id. (quoting
Fed. R. Civ. P. 8(a)(2) and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “To cross the
plausibility threshold a claim does not need to be probable, but it must give rise to more than a
mere possibility of liability.” Grajales v. P.R. Ports Auth., 682 F.3d 40, 44–45 (1st Cir. 2012)
(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A determination of plausibility is ‘a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.’” Id. at 44 (quoting Iqbal, 556 U.S. at 679). “[T]he complaint should be read as a
whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible.”
Hernandez-Cuevas v. Taylor, 723 F.3d 91, 103 (1st Cir. 2013) (quoting Ocasio-Hernandez v.
Fortuno-Burset, 640 F.3d 1, 14 (1st Cir. 2011)).
“The plausibility standard invites a two-step pavane.” Maddox, 732 F.3d at 80. First, the
Court “must separate the complaint’s factual allegations (which must be accepted as true) from
its conclusory legal allegations (which need not be credited).” Id. (quoting Morales-Cruz v.
Univ. of Puerto Rico, 676 F.3d 220, 224 (1st Cir. 2012)). Secondly, the Court “must determine
whether the remaining factual content allows a ‘reasonable inference that the defendant is liable
for the misconduct alleged.’” Id. (quoting Morales-Cruz, 676 F.3d at 224).
Invasion of Privacy (Count V)
Plaintiff claims that the broadcast of Agent Forsythe’s statements concerning her tax
information and her phone number violated her right to privacy under the Massachusetts Privacy
Act, which provides that “[a] person shall have a right against unreasonable, substantial or
serious interference with [his or her] privacy.” Mass. Gen. Laws ch. 214, § 1B. As an initial
matter, the Massachusetts Privacy Act appears to protect against “intentionally tortious”
invasions of privacy. Nelson v. Salem State Coll., 845 N.E. 2d 338, 348 (Mass. 2006) (“public
employees may be personally liable for their intentionally tortious conduct under [Mass. Gen.
Laws ch. 214, § 1B]”); see Mass. Gen. Laws ch. 258, § 10 (statute excluding intentional torts
from Massachusetts Tort Claims Act, including “invasion of privacy”); see also Invasion of
Privacy, in CIVIL CAUSES OF ACTION IN MASSACHUSETTS (MCLE, Inc., 2d ed. 2012) (“Invasion
of privacy is usually thought of as an intentional tort, although Massachusetts courts do not
explicitly state that proposition.”). Here, it is not clear that the Stern Defendants disseminated her
allegedly private information intentionally. Although they might have become aware during the
broadcast that Agent Forsythe was discussing taxes or collections generally, a specific individual
was never named in relation to such information, and the telephone number was not disclosed
until the final seconds of Agent Forsythe’s conversation with Plaintiff. It is unclear how
broadcasting the statements of a caller to a radio show, who vaguely discusses tax amounts and
repayment terms of an unspecified third party, constitutes an intentional invasion of the third
As the Stern Defendants point out, the disclosure of a telephone number might not have
sufficiently identified Plaintiff to be actionable under the Massachusetts Privacy Act. At this
stage, however, the allegations that Plaintiff’s “identity (her phone number)” was disclosed
during The Howard Stern Show and that listeners were able to contact her using that number,
plausibly alleges that she was identified with the disclosure of tax information.
Even assuming that the Stern Defendants acted intentionally, for instance, by maintaining
a publicly accessible recording of the show segment for a few weeks, Plaintiff has not plausibly
alleged an unreasonable, substantial, or serious intrusion into highly personal information. To
state a claim for invasion of privacy, Plaintiff must prove that there was “ a gathering and
dissemination of facts of a private nature that  resulted in an unreasonable, substantial or
serious interference with [her] privacy.” Branyan v. Southwest Airlines Co., 105 F. Supp. 3d
120, 126 (D. Mass. 2015) (citing Nelson v. Salem State Coll., 845 N.E.2d 338, 348 (Mass.
2006)). Under the first prong, the facts disseminated must be “highly personal or intimate nature
when there exists no legitimate, countervailing interest” for the disclosure. Bratt v. Int’l Bus.
Machines Corp., 467 N.E.2d 126, 134 (Mass. 1984). Under the second prong, Plaintiff must
show that the disclosure of her information was “both unreasonable and either substantial or
serious.” Ayash v. Dana-Farber Cancer Inst., 822 N.E.2d 667, 681 82 (Mass. 2005). An
interference with an individual’s right to privacy that is unreasonable but “only trivial or
insubstantial” is not actionable. Schlesinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 567
N.E.2d 912, 914 (Mass. 1991).
In a case applying a standard for invasion of privacy that provided “broader protection
against disclosure” than does the Massachusetts Privacy Act, Cape Cod Times v. Sheriff of
Barnstable Cnty., 823 N.E.2d 375, 382 (Mass. 2005), the Massachusetts Supreme Judicial Court
(“SJC”) found that disclosing a list of property owners who were delinquent in the payment of
their real estate taxes, including their names, addresses, and amounts of delinquencies, did not
arise to the level of publicizing “intimate details” of a “highly personal” nature. Atty. Gen. v.
Collector of Lynn, 385 N.E.2d 505, 508 (Mass. 1979); see Pottle v. Sch. Comm. of Braintree,
482 N.E.2d 813, 866 n.6 (Mass. 1985) (invasion of privacy standard under the public records
exemption at issue in Collector of Lynn is “a standard more favorable to nondisclosure than [the
Massachusetts Privacy Act]”). With regard to the seriousness of the privacy invasion in that case,
the SJC recognized that the public disclosure of a list of tax delinquents “does involve some
invasion of personal privacy” and that the publication of an individual’s name on such a list
“would certainly result in personal embarrassment to an individual of normal sensibilities.”
Collector of Lynn, 385 N.E.2d at 508. The SJC ultimately held, though, that:
the records of tax delinquents . . . do not disclose such private information as a
person’s income or his financial relationship with other private persons. The
records disclose only whether an owner is meeting his public responsibilities. While
an owner of property may have some expectation of privacy in real estate tax
records, he does not have the same expectation of privacy concerning his legal
obligation as he has in his private financial affairs.
Id. at 508 09. Here, the disclosed tax information was imprecise and only roughly identifiable
with a particular individual. Taken in the light most favorable to Plaintiff, the broadcast disclosed
that the person with whom Agent Forsythe was speaking had some tax liability and a repayment
plan (the details of which included payment by direct deposit, certain due dates, and the
allocation of payments between the tax, interest, and penalty portions of the amount due), and
had the telephone number mentioned during the segment. Plaintiff’s name, social security
number, address, or other identifying information were not disclosed. Neither the sound of her
voice nor her communications to Agent Forsythe could be heard. The only link between Plaintiff
and the disclosure was the telephone number, which she admits was publicly listed and would
have required an internet search to identify her. As in Collector of Lynn, 385 N.E.2d at 509, the
subject matter of the disclosure was an individual’s tax delinquency, as opposed to “private
information [such] as a person’s income or [his or her] financial relationship with other private
persons.” There may be circumstances in which the publication of tax related information does
constitute an invasion of privacy under Massachusetts law, but for the reasons stated above, the
level of the intrusion was significantly diminished here. Count V is therefore dismissed.
Negligence (Count IV)
Under Massachusetts law, “[t]o prevail on a negligence claim, a plaintiff must prove that
the defendant owed the plaintiff a duty of reasonable care, that the defendant breached this duty,
that damage resulted, and that there was a causal relation between the breach of the duty and the
damage.” Jupin v. Kask, 849 N.E.2d 829, 834 35 (Mass. 2006). “The existence of a legal duty is
a question of law determined ‘by reference to existing social values and customs and appropriate
social policy.’” Adams v. Cong. Auto Ins. Agency, Inc., 65 N.E.3d 1229, 1234 (Mass. App. Ct.
2016) (quoting Jupin, 849 N.E.2d at 832). “The other three elements ordinarily are questions of
fact for the jury.” Id. Plaintiff asserts that the Stern Defendants have a duty of reasonable care to
avoid disseminating “private information about private individuals,” Am. Compl. ¶ 74, but does
not provide any authority to support the existence of this duty, particularly in the context of a
radio show receiving a call from a listener who loosely discusses information about an unnamed
third person. “Massachusetts has never recognized” a common-law invasion of privacy claim,
and, as the First Circuit has explained, “it is not [the federal court’s] place to create new causes
of action under state law.” Spencer v. Roche, 659 F.3d 142, 150 n.6 (1st Cir. 2011); see
Hernandez v. Securus Techs., Inc., No. 16 12402, 2017 WL 826915, at *3 (D. Mass. Mar. 2,
2017) (question of “whether a negligent invasion of privacy is a viable cause of action under
Massachusetts law” is unresolved); Cloutier v. City of Lowell, No. 15 12780, 2015 WL
8751334, at *9 (D. Mass. Dec. 14, 2015) (dismissing common-law invasion of privacy claim
because “Massachusetts does not recognize a common-law cause of action for invasion of
privacy”). Even if the Court were to consider a negligence claim based on an invasion of
privacy, such a claim would nevertheless be construed under the Massachusetts Privacy Act. See
Federico v. Town of Rowley, No. 15 12360, 2016 WL 7155984, at *8 n.11 (D. Mass. Dec. 7,
2016) (construing common-law invasion of privacy claim as brought under the Massachusetts
Privacy Act); see also Koltin v. City of Fall River, No. 14 13749, 2015 WL 6504337, at *12 n.6
(D. Mass. Sept. 1, 2015), report and recommendation adopted in part, 2015 WL 5749455 (D.
Mass. Sept. 30, 2015) (although plaintiff did not cite the Massachusetts Privacy Statute, court
construed cause of action as a statutory invasion of privacy claim). As discussed above, Plaintiff
has failed to state a claim under the Massachusetts Privacy Act because, among other things, the
disclosed information was not sufficiently personal or intimate in nature. Her negligence claim
would therefore fail for the same deficiencies. Accordingly, Count IV is dismissed.
Intentional Infliction of Emotional Distress (Count VI)
To state a claim of intentional infliction of emotional distress (“IIED”), Plaintiff must
show “(1) that [defendant] intended, knew, or should have known that his conduct would cause
emotional distress; (2) that the conduct was extreme and outrageous; (3) that the conduct caused
emotional distress; and (4) that the emotional distress was severe.” Polay v. McMahon, 10
N.E.3d 1122, 1128 (Mass. 2014) (citing Howell v. Enterprise Publ. Co., 920 N.E.2d 1, 28 (Mass.
2010)). This is a “very high” standard even at the motion to dismiss stage, Santiago v. Keyes,
890 F. Supp. 2d 149, 159 (D. Mass. 2012) (quoting Doyle v. Hasbro, Inc., 103 F.3d 186, 195 (1st
Cir. 1996)), and requires “‘targeted and malicious’ conduct directed towards the plaintiff
advancing the claim.” Diaz v. Devlin, 229 F. Supp. 3d 101, 113 (D. Mass. 2017); see Nancy P. v.
D’Amato, 517 N.E.2d 824, 827 (Mass. 1988) (Massachusetts case law focuses “on the emotional
distress of a person against whom the extreme and outrageous conduct was directed.”).
The pleadings do not suggest that the Stern Defendants intended to inflict emotional
distress onto Plaintiff or knew or should have known that her alleged emotional distress would
likely result from their actions. As discussed above, Agent Forsythe’s tax-related statements
could not be tied to Plaintiff until perhaps the final few seconds of the conversation when Agent
Forsythe mentioned the telephone number. The Stern Defendants’ commentary before and after
Agent Forsythe realized that he was on the air focused almost entirely on Agent Forsythe, not
Plaintiff. See, e.g., [ECF No. 32 at 7:13 14] (“[B]y the way, this is the most boring job ever.”);
id. at 7:16 17 (“I’d rather live in my parents’ basement if I had to do [Agent Forsythe’s job].”);
id. at 9:1 2 (“[You’ve] got the most boring job, dude.”). The few comments about the person
with whom Agent Forsythe was speaking were nondescript, general, and plainly not malicious.
See, e.g., id. at 9:3 4 (“What are you doing with that person? What are you paying off?”); id. at
9:13 15 (“All I know is that was the most confusing phone call and I still don’t know what the
guy owes.”); id. at 9:16 18 (“I don’t know why they need to ask all those questions. They need
to pay the bill.”); id. at 9:19 21 (“Right. Just give him the bottom line, Jimmy. Stop going
through all the math.”). Thus, Plaintiff has not plausibly stated that the Stern Defendants targeted
the alleged extreme and outrageous conduct toward her.
Even if the Court accepts that Plaintiff adequately pleaded that the Stern Defendants
knowingly or recklessly caused her severe emotional distress, she has not plausibly alleged that
their conduct was “extreme and outrageous.” The alleged conduct consists of broadcasting
limited tax-related information about an unidentified individual (with the exception of a
telephone number) on The Howard Stern Show and failing to respond to Plaintiff’s request to
remove a recording of that segment from the show’s website for a few weeks.7 [ECF No. 46 at
10]. “Liability cannot be predicated on mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities, nor even is it enough that the defendant has acted with an intent
which is tortious or even criminal, or that he has intended to inflict emotional distress, or even
that his conduct has been characterized by malice, or a degree of aggravation which would entitle
the plaintiff to punitive damages for another tort.” Polay, 10 N.E.3d at 1128 (quoting Tetrault v.
Mahoney, Hawkes & Goldings, 681 N.E.2d 1189, 1197 (Mass. 1997) (internal quotation marks
omitted)). “Conduct qualifies as extreme and outrageous only if it ‘go[es] beyond all possible
bounds of decency, and [is] regarded as atrocious, and utterly intolerable in a civilized
community.’” Id. (quoting Roman v. Trs. of Tufts Coll., 964 N.E.2d 331, 341 (Mass. 2012)).
None of the cases that Plaintiff offers in support of her argument present facts analogous
to this case. See Simon v. Solomon, 431 N.E.2d 556, 563 (Mass. 1982) (landlord’s failure to act
to fix and prevent damage after plaintiff’s apartment was flooded approximately 30 times);
George v. Jordan Marsh Co., 268 N.E.2d 915, 916, 921 (Mass. 1971) (debt collection attempts
included badgering and harassing plaintiff through late evening telephone calls and repeated
letters and mailings); Vittands v. Sudduth, 730 N.E.2d 325, 335 (Mass. App. Ct. 2000)
(employing meritless litigation to stop a neighbor’s property development); Lingis v. Waisbren,
Plaintiff also contends in her opposition brief that the Court should consider her “underlying
anxiety condition” and “other medical conditions” that made her particularly susceptible to
stress. [ECF No. 46 at 13]. She does not allege in the Amended Complaint that she already had
anxiety or other medical conditions that increased her susceptibility to distress, apart from the
anxiety and stress allegedly caused by this incident. She also does not allege that the Stern
Defendants would have had any reason to be aware of the asserted underlying anxiety or other
conditions at the time of incident. See Boyle v. Wenk, 392 N.E.2d 1053, 1056 (Mass. 1979)
(“Conduct otherwise reasonable may become tortious when directed at an individual known to
be particularly susceptible to infliction of emotional distress.” (emphasis added)). Thus, Plaintiff
has not adequately alleged any particular susceptibility to emotional distress.
No. 01 2747, 2006 WL 452942, at *6 7 (Mass. Super. Ct. Dec. 17, 2006), judgment vacated,
914 N.E.2d 976 (Mass. App. Ct. 2009) (chapter 93A claim for legal malpractice). Moreover,
cases in which a privacy violation was pleaded as the basis for IIED do not support finding a
plausible claim here. See Morrell v. Forbes, Inc., 603 F. Supp. 1305 (D. Mass. 1985) (publication
of plaintiff’s photograph without consent did not amount to extreme and outrageous conduct);
French v. United Parcel Service, Inc., 2 F. Supp. 2d 128, 132 (D. Mass. 1998) (dismissing IIED
claim where plaintiff failed to adequately plead an intentional invasion of privacy); see also
Sorenson v. H & R Block, Inc., No. 99 10268, 2002 WL 31194868, at *18 (D. Mass. Aug. 27,
2002), aff’d, 107 F. App’x 227 (1st Cir. 2004) (independent tax preparer purposely disclosing
customer’s tax information to IRS for suspected tax fraud did not bear “the slightest
resemblance” to extreme and outrageous conduct); compare Coughlin v. Town of Arlington, No.
10 10203, 2011 WL 6370932, at *16 (D. Mass. Dec. 19, 2011) (extreme and outrageous conduct
was adequately pleaded where defendants accessed plaintiff’s personal email account and
disseminated highly personal messages as part of a retaliatory campaign).
For the reasons stated above, even if the Stern Defendants maintained a recording of the
segment at issue on The Howard Stern Show website for a few weeks, the tax-related
information contained in that recording was not highly personal or intimate. Thus, failing to
respond to Plaintiff’s demand and allowing the show segment to remain publicly available for a
few weeks is not atrocious or utterly intolerable, as opposed to frustrating and perhaps
embarrassing. See, e.g., Asfour v. Citizens Bank, N.A., No. 16 11732, 2016 WL 7428224, at *6
(D. Mass. Dec. 23, 2016), appeal filed, No. 17 1135 (1st Cir. Feb. 6, 2017) (defendant’s lack of
response to plaintiff’s “many communications” regarding her loan modification did not
constitute extreme or outrageous conduct). Although Plaintiff’s receipt of harassing telephone
calls from unknown individuals is troubling, the sum of the Stern Defendants’ conduct amounts
to airing a three-minute radio show segment including some tax-related statements taken out of
context, commenting on Agent Forsythe’s job as opposed to Plaintiff’s tax delinquency, and
disclosing a publicly available telephone number. Under these circumstances, broadcasting the
show and maintaining a recording thereof for a few weeks does not rise to the level of extreme
and outrageous conduct necessary to support an IIED claim. Accordingly, the Court dismisses
For the foregoing reasons, the Stern Defendants’ motion to dismiss [ECF No. 30] is
GRANTED, and the United States’ motion to dismiss [ECF No. 34] is GRANTED as to Count I.
Plaintiff’s case may proceed with respect to Count II against the United States.
March 9, 2018
/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE
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