United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON MOTIONS TO DISMISS
ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE
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
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 [plaintiffs] 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. 2008).
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 Plaintiffs
counsel that the Stern Defendants intended to submit the
recording without a motion to seal, and that Plaintiffs
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 plaintiffs 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 Plaintiffs 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
Summary of Facts
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. Plaintiffs 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 Plaintiffs telephone number.
Id ¶¶ 25-26. The Howard Stern Show
segment, however, only captured Agent Forsythe's side of
his conversation with Plaintiff. Neither Plaintiffs voice nor
her statements were audible during the broadcast. [ECF Nos.
32, 37]. Although Plaintiffs 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
AGENT FORSYTHE: $71 due on the 20th. [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
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
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
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
AGENT FORSYTHE: So are you going to increase it to
Still on the same date? Id. at 6:24-25.
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