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Piccone v. Bartels

United States District Court, D. Massachusetts

August 25, 2014

JOHN W. BARTELS, JR., Defendant

Page 199

For Colleen C Piccone, Peter V. Quaglia, Plaintiffs: Daniel K. Gelb, Richard M. Gelb, Gelb & Gelb LLP, Boston, MA.

For John W. Bartels, Jr., Defendant: Nancy Frankel Pelletier, LEAD ATTORNEY, David S. Lawless, Robinson Donovan, PC, Springfield, MA.

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Plaintiffs Coleen Piccone and Peter Quaglia are employees of Customs and Border Patrol (" CBP" ), a component of the Department of Homeland Security (" DHS" ). Piccone's brother, Louis, lived in Dalton, Massachusetts with his wife,

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Elena, and their three children.[1] In 2008, Louis was investigated for child abuse. Louis and Elena left the state with their children. Warrants were issued for their arrest.

On February 1, 2008, plaintiffs encountered defendant John Bartels, Chief of the Dalton Police Department, at Louis and Elena's home. The encounter was confrontational. Soon thereafter, Bartels telephoned the Office of the Inspector General at DHS to complain about plaintiffs' behavior on that occasion. Bartels also indicated that he believed that Piccone knew where Louis and Elena were.

Plaintiffs brought the instant suit, asserting various claims against Bartels and other defendants. The only defendant remaining in plaintiffs' Amended Complaint (the " Complaint" ) is Bartels, and the only claims remaining against Bartels are slander and interference with advantageous business relations (" IABR" ). Bartels moves for summary judgment, arguing, among other things, that his statements to the DHS about plaintiffs were non-actionable expressions of opinion.

For the reasons explained in this Memorandum, the court is allowing the motion for summary judgment. The essence of these reasons is as follows.

First, as a matter of Massachusetts common law, neither true statements nor " pure" expressions of opinion, meaning those that do not imply the existence of undisclosed facts, are actionable. This rule is also mandated by the First Amendment, at least in cases involving public officials, public figures, or matters of public concern. The transcript of Bartels's conversation with the DHS establishes beyond genuine dispute that Bartels's statements were " pure" expressions of opinion based on disclosed, true facts. Accordingly, Bartels's statements are not actionable under Massachusetts common law.

A Massachusetts statute, Mass. Gen. Laws ch. 231, § 92 (the " Actual Malice Statute" ), permits a plaintiff to recover for damaging statements that would not ordinarily be actionable if the statements were made with " actual malice," in the sense of ill will or malevolent intent. The evidence in the record creates a genuine dispute as to whether Bartels acted with actual malice. However, some authority indicates that the Actual Malice Statute applies only to claims of libel, not to claims of slander. More significantly, the Actual Malice Statute cannot constitutionally be applied to " public officials." The undisputed facts demonstrate that Piccone and Bartels are both public officials in the relevant sense, primarily because their respective positions involve substantial responsibility for important governmental affairs. Therefore, the Actual Malice Statute does not save plaintiffs' defamation claim.

Summary judgment is appropriate on plaintiffs' IABR claim for related reasons. The Supreme Court has held that the constitutional limitations on the types of speech subject to liability for defamation also apply to claims for intentional infliction of emotional distress. Lower courts have extended this rule to additional torts, including IABR. First Circuit decisions indicate that the First Circuit would take the same approach. Because Bartels's statements are pure expressions of opinion, recovery for defamation for these statements is constitutionally impermissible because plaintiffs are public officials. Accordingly, plaintiffs cannot recover for the same

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statements on a theory of interference with advantageous business relations.

The court recognizes that this case is, for two reasons, not a prototypical suit for defamation by public officials. First, the statements made about plaintiffs concerned their private affairs, not their actions in their official capacities. Second, the statements about plaintiffs were not made publicly, for example through the media, but rather only to a limited audience -- specifically, a member of an Inspector General's office. The constitutional limits on defamation suits by public officials apply nevertheless. The Supreme Court has stated that:

The public-official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants. To this end, anything which might touch on an official's fitness for office is relevant. Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official's private character.

Garrison v. State of La., 379 U.S. 64, 77, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). In essence, the instant case concerns the provision of information potentially germane to public officials' fitness for office to a government inspector. The provision of such information to appropriate bodies is part of the " free flow of information" that is of " paramount" importance to the public. Id. As in other situations to which the " public-official rule" applies, " occasional injury to the reputations of individuals must yield to the public welfare." New York Times v. Sullivan, 376 U.S. 254, 281, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (quoting Coleman v. MacLennan, 78 Kan. 711, 98 P. 281, 286 (Kan. 1908)).


Federal Rule of Civil Procedure 56(a) provides that the court " shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." A factual dispute, therefore, precludes summary judgment if it is " material" and " genuine." See Anderson v. Liberty Lobby, 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A fact is " material" if, in light of the relevant substantive law, " it has the potential of determining the outcome of the litigation." Maymi v. Puerto Rico Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008) ; Martinez-Rodriguez v. Guevara, 597 F.3d 414, 419 (1st Cir. 2010). " Only disputes over facts that might affect the outcome of the suit under the governing law properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.

To determine if a factual dispute is " genuine," the court must assess whether " the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Chadwick v. WellPoint, Inc., 561 F.3d 38, 43 (1st Cir. 2009) (quoting Anderson, 477 U.S. at 248); Taylor v. Am. Chemistry Council, 576 F.3d 16, 24 (1st Cir. 2009). In making this determination, the court must " constru[e] the record in the light most favorable to the non-moving party" and " tak[e] all reasonable inferences in [the non-moving party's] favor." Douglas v. York Cnty., 433 F.3d 143, 145, 149 (1st Cir. 2005); Montalvo v. Gonzalez-Amparo, 587 F.3d 43, 46 (1st Cir. 2009). The record must not be scrutinized piecemeal. Rather, it must be " taken as a whole." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Kelly v. Cort Furniture, 717 F.Supp.2d 120, 122

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(D. Mass. 2010). Evidence submitted in inadmissible form may be considered only if it could be presented in a form that would be admissible at trial. See Federal Rule of Civil Procedure 56(c)(2); Gorski v. New Hampshire Dep't of Corr., 290 F.3d 466, 475-76 (1st Cir. 2002); Vazquez v. Lopez-Rosario, 134 F.3d 28, 33 (1st Cir. 1998).

The party moving for summary judgment " bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, the moving party's burden " may be discharged by 'showing' . . . that there is an absence of evidence to support the nonmoving party's case." Id. at 325. Summary judgment is, therefore, mandated " after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322; Gorski, 290 F.3d at 475-76; Smith v. Stratus Computer, Inc., 40 F.3d 11, 12 (1st Cir. 1994).


A. Facts

The following facts are not generally disputed. Certain factual disputes are discussed below.

Piccone is the Deputy Associate Chief Counsel to Customs and Border Protection in New York. See Piccone Dep. at 113. Quaglia, who was Piccone's boyfriend at the time of the events relevant to this case, is the Special Agent in Charge for the CBP's Office of Internal Affairs in New York. See Quaglia Dep. at 8, 9.

In 2008, Piccone's brother, Louis, was accused of child abuse. These allegations were investigated by the Dalton Police Department and by the Massachusetts Department of Children and Families (the " DCF" ). While the investigation was being conducted, Louis and his wife, Elena, left the state with their children. Arrest warrants were issued for Louis and Elena on charges of kidnapping a minor by a relative. See Am. Compl. Exs. B, C. In addition, the local Family Court issued an order granting the DCF temporary custody of Louis and Elena's children.

Piccone submitted an application to the Family Court requesting that Louis and Elena's children be placed temporarily in her custody at Louis and Elena's home. On February 1, 2008, plaintiffs travelled to Dalton to attend a hearing on Piccone's custody application. In Dalton, they were informed by a probation officer, William Gail, that a carbon monoxide detector would need to be installed in Louis and Elena's home in order for it to be considered a suitable site for the children. Plaintiffs purchased a carbon monoxide detector and drove to Louis and Elena's home to install it.

When plaintiffs arrived at Louis and Elena's home, they encountered Bartels and Dalton Police Department Officer Jeffrey Coe. Bartels and Coe were at Louis and Elena's home seeking information concerning Louis and Elena's location. Plaintiffs then had an unpleasant interaction with Bartels. Bartels demanded that plaintiffs identify themselves. Plaintiffs similarly sought explanations concerning the police officers' identities and activities. Bartels prevented plaintiffs, at first, from entering Louis and Elena's home. After speaking to Mr. Gail, who confirmed that plaintiffs had been told to install a carbon monoxide detector in the home, Bartels

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permitted Quaglia to enter. Bartels then sought to enter the home as well, but Quaglia insisted that Bartels remain outside.

Later that day, Bartels spoke by telephone with Matthew Carbone, of the Office of the Inspector General at DHS, to complain about defendants' conduct.[2] Bartels's remarks included essentially two themes. First, Bartels told Carbone that, in his view, plaintiffs had acted unprofessionally. His discussions with Carbone on this topic are characterized by the following statements:

BARTELS: . . . [T]here were a lot of questions as for what authority we had. . . . [I]t seemed like they didn't feel that we had the authority to tell them no you're not going into the house . . . I mean it was just kind of more of a hassle than we needed to go through. . . . [Q]uite frankly they [could have] said well you know we were just at juvenile court and [Probation Officer] Bill Gail had come up here and -- and dadadadada and we were told to go -- to go into the house to do this. . . . You know things like that to make things a little bit easier on us.
(Conversation Tr. at 18-19.)
BARTELS: . . . [W]e finally had [a] conversation with uh juvenile probation confirming the fact that they were trying to petition for foster parent or at least Colleen was. To be a foster parent. And uh that they could be -- and they were uh could be at the house to install the CO detector. . . .
CARBONE: OK. So their story did pan out.
BARTELS: It did.
CARBONE: It's just that they really weren't too social about it.
BARTELS: No. They weren't.
(Id. at 15-18.)
BARTELS: . . . [I]t was . . . I think a little bit more than what we needed to go through. Um.
CARBONE: Uh clearly unprofessional conduct on their -- on their part uh.
BARTELS: On that level yes. Now to uh um Mr. Quaglia's credit, he apologized at the end of all this.
BARTELS: Uh and he said you know . . . we're at a high stress level. Uh and uh you know he said he's been up all night. He drove all night to get here. . . . I can understand that. And I uh told him that. . . .
BARTELS: Uh so um all in all they left in an amicable fashion. . . .

Bartels also complained that, for the same reasons, he felt that plaintiffs had not extended him " professional courtesy." See Conversation Tr. at 29, 33.

The second theme in Bartels's remarks was his belief that Piccone might have known where Louis and Elena, and/or their children, were. Bartels and Carbone had the following exchanges about this matter:

CARBONE: [D]id you guys believe that um Quaglia or Colleen knew where the parents were?
BARTELS: We didn't ask them specifically.

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CARBONE: But you guys know the parents are wanted so I mean --
BARTELS: Well, we even -- we even told them while we were there that there were two warrants, arrest warrants for them. . . . I can't believe -- they've been involved in this thing since the get-go. And I believe it was Colleen's house . . . which was searched by NYPD . . . So not to know that there are warrants, I don't know. You know? . . .
CARBONE: Is it fair to presume that she probably knows where they are, she's trying to get the uh foster or adoption paperwork done so that she can amicably take custody of the kids and then the parents would turn themselves in? Or --
CARBONE: I mean is that like all implied?
BARTELS: I think that's their motive. Uh I think they want to uh get the kids situated. And then let uh the parents uh you know deal ...

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