United States District Court, D. Massachusetts
GORDON H. HAYES, JR., Plaintiff,
JOHN O. MIRICK and MIRICK, O'CONNELL, DEMALLIE & LOUGEE, LLP Defendants.
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO
DISMISS (DOCKET NO. 14)
TIMOTHY S. HILLMAN DISTRICT JUDGE.
H. Hayes, Jr. (“Plaintiff”) filed this suit
bringing several claims against John O. Mirick
(“Defendant Mirick”) and Mirick, O'Connell,
DeMaillie & Lougee, LLP (“Mirick
“Defendants”). Plaintiff brings eight claims
against Defendant Mirick: breach of fiduciary duty (Count I),
negligence (Count II), deceit and misrepresentation (Count
III), civil conspiracy (Count IV), defamation (Count V),
invasion of privacy (Count VI), intentional infliction of
emotional distress (Count VII), and unjust enrichment (Count
VIII). Plaintiff also brings a claim for vicarious liability
against Mirick O'Connell (Count IX), premised on
Defendant Mirick's alleged liability, who is of counsel
at Mirick O'Connell.
subsequently filed a motion to dismiss for failure to state a
claim. (Docket No. 14). For the reasons stated below,
Defendants' motion is granted
in part and denied in part.
following facts are taken from Plaintiff's Complaint
(Docket No. 2) and assumed to be true for the purposes of
this motion. The court also may consider “matters
fairly incorporated within [the Complaint] and matters
susceptible to judicial notice.” In re Colonial
Mortgage Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003).
November 18, 2008, the Plymouth County Probate and Family
Court appointed Attorney Tracy A. Craig to serve as
Plaintiff's permanent conservator. On October 21, 2015,
Plaintiff filed a complaint in Worcester Superior Court
against Attorney Craig. (Docket No. 15-1, at 2).
Subsequently, Attorney Craig, represented by Defendant
Mirick, petitioned to resign as Plaintiff's conservator.
Id. at 7. On July 1, 2016, Plaintiff then filed a
petition to terminate the conservatorship. On August 17,
2017, the Plymouth County Probate & Family Court
terminated the conservatorship.
August 2015 until the termination of the conservatorship,
Plaintiff was unable to reach Ms. Craig and was instead
forced to direct his inquiries to Defendant Mirick. Plaintiff
contends that Defendant Mirick, while acting as
Plaintiff's “de facto conservator, ”
breached his fiduciary duty to Plaintiff, disclosed
Plaintiff's personal information to third parties,
engaged in deceit and misrepresentation regarding
Plaintiff's assets, conspired with Ms. Craig to convert
Plaintiff's assets, and improperly withdrew money from
Plaintiff's assets for compensation.
defendant may move to dismiss, based solely on the complaint,
for the plaintiff's “failure to state a claim upon
which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To
survive a Rule 12(b)(6) motion to dismiss, a complaint must
allege “a plausible entitlement to relief.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559, 127
S.Ct. 1955 (2007). Although detailed factual allegations are
not necessary to survive a motion to dismiss, the standard
“requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Id. at 555, 127 S.Ct. 1955.
“The relevant inquiry focuses on the reasonableness of
the inference of liability that the plaintiff is asking the
court to draw from the facts alleged in the complaint.”
Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 13
(1st Cir. 2011).
evaluating a motion to dismiss, the court must accept all
factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiff's favor.
Langadinos v. American Airlines, Inc., 199 F.3d 68,
68 (1st Cir. 2000). It is a “context-specific
task” to determine “whether a complaint states a
plausible claim for relief, ” one that “requires
the reviewing court to draw on its judicial experience and
common sense.” Ashcroft v. Iqbal, 556 U.S.
662, 679, 129 S.Ct. 1937 (2009) (internal citations omitted).
“[W]here the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not ‘show[n]'-that
the pleader is entitled to relief.” Id.
(quoting Fed.R.Civ.P. 8(a)(2)). On the other hand, a court
may not disregard properly pled factual allegations,
“even if it strikes a savvy judge that actual proof of
those facts is improbable.” Twombly, 550 U.S.
at 556, 127 S.Ct. 1955.
Litigation Privilege (All Counts)
argue that all of Plaintiff's claims improperly rely on
communications protected by the litigation privilege.
Defendants have the burden of demonstrating the privilege
applies. Meltzer v. Grant, 193 F.Supp.2d 373, 381
(D. Mass. 2002). The litigation privilege “shields an
attorney from civil liability to nonclients for statements
made in the course of litigation.” Bartle v.
Berry, 80 Mass.App.Ct. 372, 378 (2011). Further,
statements are privileged “where such statements are
made by an attorney engaged in his function as an attorney
whether in the institution or conduct of litigation or in
conferences and other communications preliminary to
litigation.” Striber v. Raymond, 370 Mass.
105, 109 (1976).
privilege does not, however, “extend to claims that
allege conduct, not speech, as the basis for liability. To
the contrary, such an extension would unmoor the privilege
from its original purpose-to shield individuals from
defamation claims based on testimony given during a judicial
proceeding.” The Gillette Company v. Provost,
91 Mass.App.Ct. 133, 1442 (2017); see also 58 Swansea
Mall Drive, LLC v. Gator Swansea Property, LLC, No. CV
15-13538-RGS, 2016 WL 5946872, at *1 (D. Mass. Oct. 12, 2016)
(“The law draws a distinction between ...