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11/16/77 FRANCIS G. WHITE & ANOTHER *FN1 v. LEWIS

November 16, 1977

FRANCIS G. WHITE & ANOTHER *FN1
v.
LEWIS H. SPENCE & OTHERS *FN2



Middlesex. Civil action commenced in the Superior Court on October 8, 1975. A motion to dismiss was heard by Connolly, J.

Keville, Grant, & Brown, JJ.

SYLLABUS BY THE COURT

Pleading Civil, Complaint. Practice, Civil, Motion to dismiss, Order for more definite statement. Libel. Slander. Emotional Distress.

The opinion of the court was delivered by: Grant

A Judge erred in dismissing a defamation action for the plaintiff's failure to comply with an order for a more definite statement under Rule 12(e) of the Massachusetts Rules of Civil Procedure, where the plaintiff reasonably complied with the order. [682-683]

An action by a wife seeking damages allegedly sustained by her as a result of defamatory statements concerning her husband was properly dismissed under Rule 12(b)(6) of the Massachusetts Rules of Civil Procedure. [683-684]

Allegations in a complaint that the defendants made and published defamatory statements concerning the plaintiff pursuant to a conspiracy to "harm the plaintiff, to interfere with his ability to pursue his trade and profession, to drive him from his job and to damage his reputation both in his business and profession and personally" were sufficient to state a claim under Rule 12(b)(6) of the Massachusetts Rules of Civil Procedure. [684-685]

A plaintiff was not required under Rule 12(b)(6) of the Massachusetts Rules of Civil Procedure to set out the precise words used by the particular defendants in defaming the plaintiff. [685-686]

This is an action by which Francis G. White (plaintiff) and his wife seek to recover the damages allegedly sustained by both of them as the result of defamatory statements which the defendants are said to have made concerning the plaintiff.

The original complaint typically charged each defendant with having "made and published statements both oral and written, in which he falsely accused the plaintiff Francis G. White of theft, fraud, malfeasance, misfeasance and other illegal and wrongful acts. The defendants . . . knew that the accusations were false and made them with malice and with intent to harm the plaintiff Mr. White." The defendant Spence was charged with having made and published his statements "n or about March 24, 1975, . . . and on several other occasions." The defendants DiRusso and Scurini were charged with having made and published their statements "n or about October 24, 1974, October 30, 1974, December 30, 1974 and on several other occasions." The complaint afforded no hint as to the contents of any of the "statements" referred to. The defendants moved jointly (a) under Mass.R.Civ.P. 12(e), 365 Mass. 756 (1974), that "a more definite statement be furnished setting forth the precise words used by the efendants in any libelous or slanderous statements or writings allegedly made by them" and (b) under Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), to dismiss the claims asserted in various paragraphs of the complaint. *fn3 A Judge of the Superior Court ordered the "laintiffs to supply defendants with a new complaint containing the words alleged to be libelous or slanderous" and that "he motion to dismiss may then be heard or waived." *fn4

The plaintiff and his wife thereupon filed an amended complaint from which it appears that the plaintiff is a maintenance supervisor for the Cambridge Housing Authority (Authority) and that DiRusso and Scurini are maintenance employees of the Authority working under the direction and supervision of the plaintiff. The amended complaint attributed a specific oral statement to Spence (whose relationship to the plaintiff is not disclosed) on March 24, 1975 ("Frank White was buying and selling houses. Frank White would bring Authority personnel on Authority time to his houses and use Authority materials on them and then sell them himself for personal profit"); it also attributed to DiRusso and Scurini oral statements (none of them quoted verbatim) on October 24, 1974, to the effect that the plaintiff had stolen from the Authority by misappropriating building and other materials owned by it and by the misuse of Authority equipment and personnel in connection with the renovation of houses owned by the plaintiff. *fn5 The amended complaint reiterated all the allegations of the original complaint which have been quoted above.

The defendants then filed an amended motion to dismiss on the grounds (1) that the named plaintiffs had failed to comply with the aforementioned order under rule 12(e) because they had "not set forth all the alleged slanderous and libelous statements" and (2) that the allegations set out in certain paragraphs *fn6 of the amended complaint failed to state claims upon which relief could be granted. A second Judge of the Superior Court allowed the "motion," without any statement of grounds or reasons. Judgment was entered dismissing the action as to Spence, DiRusso and Scurini; the plaintiff and his wife have appealed.

1. We consider first the part of the defendants' motion addressed to the alleged failure to comply with the order entered under rule 12(e). We think, in light of all the circumstances, that the plaintiff has demonstrated reasonable compliance (see CMAX, Inc. v. Hall, 290 F. 2d 736, 739 [9th Cir. 1961]) with that order. He has disclosed the precise words alleged to have been spoken by Spence on March 24, 1975. He has also disclosed, apparently to the best of his present ability, the tenor and substance of the defamatory words alleged to have been spoken by DiRusso and Scurini on October 24, 1974; *fn7 it does not appear that the plaintiff will be in a position to sharpen or expand on those words until after he has had an opportunity to engage in discovery.

It is true, as the defendants argue, that the plaintiff has not disclosed any oral or written statements which may have been made by DiRusso or Scurini on October 30 or December 30, 1974, or which may have been made by any of the defendants on any of the unspecified "other occasions" still referred to in the amended complaint. However, we are not convinced that the perpetuation of those allegations resulted from a calculated disregard of the court's order as ...


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