USCA1 Opinion
October 20, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1230
JOHN F. DESMOND,
Plaintiff, Appellant,
v.
NYNEX CORPORATION,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Selya and Cyr, Circuit Judges.
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John F. Desmond on brief pro se.
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Richard P. Owens, on brief for appellee.
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Per Curiam. Pro se plaintiff-appellant John
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Desmond filed suit on March 2, 1992 in the District Court for
the Southern District of New York against defendant-appellee
NYNEX Corporation. Desmond's complaint alleged that Desmond,
a Massachusetts resident, receives telephone services from
New England Telephone ("NET"), a NYNEX subsidiary. According
to the complaint, in 1991 and 1992 the Bush Administration or
"some unknown government entity" was jamming and intercepting
Desmond's phone calls and generally interfering with his
phone services. On June 10, 1991, for example, "an
electronic bullet" was sent through Desmond's phone lines,
presumably directed at Desmond. On February 24, 1992, after
Desmond's attempts to dial two telephone numbers were
unsuccessful, Desmond spoke to a repair operator to complain
about these problems. The operator allegedly "stated that
she would not register my complaint and that I should see a
`Psychiatrist.'"
Based on these factual allegations, Desmond's
complaint set forth five causes of action: (1) that NYNEX
had engaged in a conspiracy with a federal government entity
to violate Desmond's constitutional right of privacy by
intercepting his phone calls; (2) that the interference with
Desmond's phone services constituted intentional interference
with his business and other relationships, including his
attempts to litigate other matters before the courts; (3)
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that the operator's statement that Desmond should see a
psychiatrist constituted intentional infliction of emotional
distress, for which NYNEX was legally responsible under the
doctrine of respondeat superior; (4) that the operator's
statement constituted slander of Desmond, for which NYNEX was
legally responsible under the doctrine of respondeat
superior; and (5) that NYNEX had violated the Communications
Act of 1934, 47 U.S.C. 151 et seq., and certain
unspecified federal tariff regulations.
On April 21, 1992, the New York district court,
noting that a substantial part of the events alleged in the
complaint occurred in Massachusetts, transferred the case
pursuant to 28 U.S.C. 1391(a), 1406(a) to the District
Court for the District of Massachusetts. After NYNEX filed a
motion to dismiss the complaint under Fed. R. Civ. P.
12(b)(6), and Desmond responded, the district court on
February 28, 1994 granted NYNEX's motion and dismissed
Desmond's complaint "for the reasons stated in NYNEX's
Memorandum of Law in Support of Motion to Dismiss the
Complaint." Desmond appealed. We affirm.
The Merits
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Desmond's complaint does not name NET as a
defendant. Indeed, since Desmond resides in Massachusetts
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and there is no dispute that NET has its principal place of
business in Massachusetts, to do so would destroy complete
diversity of citizenship in this case. The complaint
implicitly acknowledges, however -- as NYNEX insists -- that
it is NET that provides telephone services to Desmond, and it
was an NET operator who made the alleged statement to Desmond
(although in an affidavit accompanying the complaint Desmond
did state that the operator identified herself as a
"spokesperson of NYNEX"). Desmond has alleged no facts that
could justify piercing the corporate veil to make NYNEX
liable for the alleged acts of its subsidiary, NET.
Accordingly, NYNEX cannot be liable on any of the causes of
action alleged in the complaint. For this reason alone, we
would affirm the district court's dismissal.
In any event, even if Desmond had sued the proper
party-defendant, we would still affirm the district court
because none of Desmond's claims state a cause of action. He
has not stated a claim under 42 U.S.C. 1983 for invasion of
his constitutional right of privacy because he has failed to
allege facts sufficient to show that NYNEX acted under color
of state law. Desmond's vague and conclusory allegations,
utterly lacking supporting factual detail, that NYNEX
conspired with "some unknown government entity" to disrupt
his telephone services are not adequate to allege state
action. See McGillicuddy v. Clements, 746 F.2d 76, 77-78
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(1st Cir. 1984). Apart from these insufficient
allegations of conspiracy, Desmond does not adequately allege
that NYNEX did anything to violate his right of privacy under
either federal or state law (e.g., Mass. Gen. Laws c. 214,
1B). All that he alleges is that NYNEX refused to
investigate his claims that some government entity was
invading his privacy.
To establish a claim for intentional interference
with economic or business relations under Massachusetts law,
a plaintiff must show that the defendant knowingly interfered
with an advantageous relationship or knowingly induced a
breach of contract. See United Truck Leasing Corp. v.
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Geltman, 406 Mass. 811, 551 N.E.2d 20 (1990). Desmond did
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not allege that NYNEX knew of any advantageous or business
relationship between Desmond and anyone else, or that NYNEX
knew of Desmond's other litigation. Consequently, dismissal
of this claim was proper.
It is plain on the face of the complaint that the
telephone operator's statement that Desmond needed to see a
psychiatrist did not constitute either intentional infliction
of emotional distress or slander under Massachusetts law. To
state a claim for intentional infliction of emotional
distress, plaintiff must allege conduct that was "extreme and
outrageous," "beyond all possible bounds of decency," and
"utterly intolerable in a civilized community." Agis v.
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Howard Johnson Co., 371 Mass. 140, 145, 355 N.E.2d 315, 319
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(1976). The operator's alleged statement obviously did not
meet this standard. A plaintiff must allege more than "mere
hurt feelings or bad manners" to state a claim. Santana v.
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Registrars of Voters, 398 Mass. 862, 867, 502 N.E.2d 132, 135
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(1986).
The operator's alleged statement could not support
an action for slander because it was a mere expression of
opinion, see Fleming v. Benzaquin, 390 Mass. 175, 180-86, 454
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N.E.2d 95, 100-03 (1983), and because there was no allegation
that it was published to any other person, see Economopoulos
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v. A.G. Pollard Co., 218 Mass. 294, 105 N.E. 896 (1914).
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Desmond's argument on appeal that he did allege the remark
was published because he alleged that his phone calls were
being intercepted is frivolous.
Since Desmond did not state a cause of action for
either slander or intentional infliction of emotional
distress, NYNEX could not be liable in respondeat superior
for the telephone operator's statement.
Desmond's complaint did not specify in what way
NYNEX's alleged conduct, shorn of the insufficient
allegations of conspiracy, should be thought to have violated
the Communications Act or applicable federal tariff
regulations. No such violation is readily apparent.
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Desmond also argues that the New York district
court's transfer of this action to the District of
Massachusetts was improper and ex parte. The transfer was
well within the transferring court's discretion, however,
given that Desmond resides in Massachusetts and all or most
of the conduct alleged in the complaint occurred in
Massachusetts. Since Desmond acknowledges that the case was
transferred "over [his] objections," his allegations that the
transfer was ex parte are frivolous. It is well settled that
a court may transfer a case sua sponte pursuant to 28 U.S.C.
1404(a) and 1406(a). See, e.g., Caldwell v. Palmetto
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State Savings Bank, 811 F.2d 916, 919 (5th Cir. 1987).
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Finally, Desmond argues that the district judge
should have recused himself because of his alleged hostility
toward Desmond personally. However, Desmond has given no
reason, beyond the district judge's adverse ruling, to think
that the district judge bears him any ill will. Desmond
therefore has stated no reasonable basis for recusal.
We have considered all of Desmond's other arguments
and find them meritless.
The judgment of the district court is affirmed.
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