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Evans v. Sox

United States District Court, D. Massachusetts

September 30, 2014

BRIAN EVANS, Plaintiff,
v.
BOSTON RED SOX, FENWAY SPORTS MANAGEMENT, LARRY LUCCHINO, DAVID FRIEDMAN, DR. CHARLES STEINBEERG, TOM WERNER, JOHN HENRY, SAM KENNEDY, RASKY BAERLEIN STRATEGIC COMMUNICATIONS, INC., DOES 1-10, Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION

GEORGE A. O'TOOLE, Jr., District Judge.

The magistrate judge to whom this matter was referred has filed a Report and Recommendation ("R&R") (dkt. no. 188) with respect to the defendants' motions to dismiss (dkt. nos. 177 and 179). After carefully reviewing the pleadings, the parties' submissions, the R&R, and the plaintiff's objections, I agree with the magistrate judge's analysis and conclusions.

Accordingly, I approve and ADOPT the magistrate judge's recommendation in its entirety. The defendants' Motions to Dismiss (dkt. nos. 177 and 179) are GRANTED. Judgment shall enter for the defendants.

It is SO ORDERED.

REPORT AND RECOMMENDATION ON MOTIONS TO DISMISS

February 14, 2014.

Rasky Baerlein Strategic Communications (Rasky) moves to dismiss the Complaint for failure to state a claim. Doc. No. 179. The "Red Sox Defendants" (the remaining defendants other than the Doe defendants) have filed their own motion to dismiss for failure to state a claim. Doc. No. 177. Plaintiff opposes both motions. Doc. No. 182. No party has requested a hearing, and Plaintiff specifically suggested the Court decide the motions on the papers, id. at 1. For the reasons set forth below, I recommend that the Court ALLOW both Motions.

The facts set forth herein are drawn from Plaintiff's Complaint. I have drawn all reasonable inferences from these allegations in Plaintiff's favor.

Plaintiff communicated with various officials or employees of the Red Sox regarding a song he recorded entitled "At Fenway." Doc. No. 1 at 2. These communications culminated in Plaintiff filming a music video at Fenway Park for the song. Id. at 3. The music video is available on YouTube, www.youtube.com, as well as www.brianevans.com. Id. at 4, 9. Plaintiff paid the Red Sox forty thousand dollars for permission to film the video at Fenway. Id. at 3. Shortly thereafter, Plaintiff suffered a terrible and devastating loss. His mother died unexpectedly after routine knee surgery performed at Holy Family Hospital in Methuen, Massachusetts, which is a part of the Steward Health Care System. Id . Since, Plaintiff has been seeking "justice" for his mother's death - he created a website to bring to light the alleged culpability of Holy Family Hospital, id.; he dedicated the music video to his mother, id. at 9; and he filed a lawsuit in District of Hawaii against the hospital, Steward, and numerous related parties, Evans v. Cerberus Capital Mgmt., No. 13-cv-13271 (D. Mass. transferred Dec. 26, 2013).

In his Complaint in this action, Plaintiff contends that, in retaliation for his efforts to seek justice for his mother, the Defendants have "torpedo[ed]" and destroy[ed]" his music video and the relationships he was developing to capitalize on the video. Doc. No. 1 at 5. Plaintiff alleges a nexus between Steward and the Red Sox in Rasky, which is the public relations firm for both entities, id. at 3, and that Plaintiff's allegations against Steward's member hospital precipitated the actions of Rasky and the Red Sox Defendants, id. at 3-4. Although the Complaint contains no separately identified counts, fairly and liberally read, it alleges claims for breach of contract, fraud, intentional inflection of emotional distress, and intentional interference with economic advantage. The legal issues raised by the Complaint are discussed below.

I. DISCUSSION

A. Legal Standard Governing Motions to Dismiss

To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court "must take the allegations in the complaint as true and must make all reasonable inferences in favor of the plaintiff[]." Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993). "[F]actual allegations" must be separated from "conclusory statements in order to analyze whether the former, if taken as true, set forth a plausible, not merely a conceivable, case for relief." Juarez v. Select Portfolio Servicing. Inc., 708 F.3d 269, 276 (1st Cir. 2013) (internal quotations omitted). This highly deferential standard of review "does not mean, however, that a court must (or should) accept every allegation made by the complainant, no matter how conclusory or generalized." United States v. AVX Corp., 962 F.2d 108, 115 (1st Cir. 1992). Dismissal for failure to state a claim is appropriate when the pleadings fail to set forth "factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory." Berner v. Delahanty, 129 F.3d 20, 25 (1st Cir. 1997) (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988)) (internal quotation marks omitted).

"[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. A court's assessment of the pleadings is "context-specific" requiring "the reviewing court to draw on its judicial experience and common sense." Id. at 679; accord Maldonado v. Fontanes, 568 F.3d 263, 268 (1st Cir. 2009). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of ...


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