Scholz vs. Herald Case Judge Ruling

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COMMONWEALTH OF MASSACHUSETTS


SUFFOLK, ss.

SUPERIOR COURT

CIVIL ACTION

NO.10-1010-D


DONALD THOMAS SCHOLZ

vs.

BOSTON HERALD, INC. & others1




MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION TO DISMISS

Plaintiff, Donald Thomas Scholz ("Scholz") has sued the Boston Herald ("Herald") and two of its reporters, Gayle Fee ("Fee") and Laura Raposa ("Raposa") for defamation/libel and intentional infliction of emotional distress. Scholz alleges that Fee and Raposa falsely reported in their Inside Track column that Brad Delp ("Delp") committed suicide because of turmoil in his professional life caused by Scholz. Before this Court is the defendants' Motion to Dismiss for failure to state a claim upon which relief can be granted. After reviewing the parties' submissions and the relevant law, the defendants' Motion to Dismiss is DENIED in Part and ALLOWED in Part.

BACKGROUND

The following background information is taken from Scholz's First Amended Complaint and the exhibits attached thereto.

Scholz is the co-founder and leader of the band BOSTON, which released its first album in August 1976. Barry Goudreau ("Goudreau") resigned from BOSTON in 1981 to record a solo album. Goudreau's solo album featured Delp and Sib Hashian ("Hashian"). Hashian resigned from BOSTON in the mid-to-Iate 1980's. As a result of personality differences, Scholz no longer maintains a relationship with Goudreau and Hashian. Scholz and Delp continued as members of BOSTON with the exception of a four-year period between 1990 and 1994 when Delp took a leave from the band.2 Goudreau and Hashian are members of a band, whose publicist is Peggy Rose ("Rose").3 Rose also represented Delp's family, including Micki Delp (Micki"), Delp's ex-wife. Micki's sister, Connie Goudreau ("Connie"), is married to Goudreau.

On March 9, 2007, Delp committed suicide in his Atkinson, New Hampshire house. Delp was found by his fiancée, Pamela Sullivan ("Sullivan"), lying on the bathroom floor with a suicide note attached to his shirt.4 The suicide note stated "Mr. Brad Delp. Je suis une ame solitaire [I am a lonely soul]." First Am. Compl. par. 20. Another of Delp's suicide notes stated "I take complete and sole responsibility for my present situation." First Am. Compl. par. 20. Shortly after Delp's death, Rose composed and released a statement on behalf of Delp and Sullivan indicating that Delp died as a result of a heart attack. On March 14, 2007, the Atkinson Police Department indicated that Delp's true cause of death-suicide-would be disclosed to the public the following day. Micki and Sullivan, then issued a second press release without Rose's assistance disclosing that Delp committed suicide.

On March 14, Gail Parenteau ("Parenteau")-who served as Scholz, Delp and BOSTON's publicist for many years-called Rose inquiring about the second press release. This conversation ended with Rose expressing her anger towards Parenteau. At approximately 9:00 p.m. Micki contacted Parenteau and screamed at Parenteau for contacting Rose and engaging in such a heated discussion with Rose. Sometime after talking to Parenteau, Rose "upset over the phone call ... and thoroughly familiar with Mr. Scholz's former bandmates' animosity towards Mr. Scholz" decided to utilize her close relationship with Fee and Raposa to "initiate a smear campaign against Mr. Scholz." First Am. Compl. par. 24.

On March 15,2007, the Herald, in its Inside Track column published an article entitled: "Suicide confirmed in Delp's death." First Am. CompI. Ex. B. The article states, in relevant parts:

Friends said it was Delp's constant need to help and please people that may have driven him to despair. He was literally the man in the middle of the bitter break-up of Boston pulled from both sides by divided loyalties.

Delp remained on good terms with both Tom Scholz, the MIT grad who founded the band, and Barry Goudreau, Fran Sheehan and Sib Hashian, former members of Boston who had a fierce falling out with Scholz in the early '80s.

Delp tried to please both side by continuing to contribute vocals to Scholz' Boston projects while also remaining close to his former bandmates. The situation was complicated by the fact that Delp's ex-wife, Micki, is the sister of Goudreau's wife, Connie. 'Tom made him do the Boston stuff and the other guys were mad that they weren't a part of it,' said another insider. 'He was always under a lot of pressure. '

[ ... ]

Scholz' penchant for perfection and his well-chronicled control issues led to long delays between albums. As a result, Goudreau, Delp and Hashian released an album without him, which led to an irretrievable breakdown.

Scholz claimed that the other band members-with the exception of Delp-attempted to steal the name Boston. While the bitter battle raged, Delp tried to keep peace with both sides. He continued to perform with Scholz and the reconstituted Boston but also did projects with Goudreau and remained friends with the other original members.

But the never-ending bitterness may have been too much for the sensitive singer to endure. Just last fall the ugliness flared again when Scholz heard some of his ex-bandmates were planning to perform at a tribute concert at Symphony Hall for football legend Doug Flutie - and then had his people call and substitute himself and Delp for the gig, sources say.

In fact, the wounds remained so raw that Schulz wasn't invited to the private funeral service for Delp that the family held earlier this week.

'What does that tell you?' asked another insider. 'Brad and Tom were the best of friends and he's been told nothing about anything.'5

On the evening of March 15,2007, Fee contacted Connie by cellular phone and requested a comment in connection with a story the Herald intended to publish the following morning concerning Delp's suicide notes. Connie refused to comment and ended the conversation. Connie then informed Micki of the phone call she had just received from Fee. Micki called Fee and was interviewed by Fee regarding Delp's suicide notes. Fee tried to coerce Micki into blaming Delp's suicide on "friction Mr. Scholz allegedly caused between some former Boston band members and himself several decades ago." First Am. CompI. par. 33. Micki, however, refused to attribute Delp's suicide to Scholz and gave Fee no indication that she knew why Delp committed suicide.

On March 16,2007, the Inside Track's headline read: "Pal's snub made Delp do it: Boston rocker's ex-wife speaks; Delp's ex say 'No one can possibly understand. '" First Am. Compl. Ex. C. The article states in relevant parts:

Boston lead singer Brad Delp was driven to despair after his longtime friend Fran Cosmo was dropped from a summer tour, the last straw in a dysfunctional professional life that ultimately led to the sensitive frontman's suicide, Delp's ex-wife said.

[ ... ]

But according to Tom Scholz, the MIT-educated engineer who founded the band back in 1976, the decision to drop Cosmo was not final and Delp was not upset about the matter. (Cosmo's son Anthony, however, was scratched from the tour.).

'The decision to rehearse without the Cosmos was a group decision,' Scholz said in a statement through his publicist. 'Brad never expressed unhappiness with that decision ... and took an active part in arranging the vocals for five people, not seven.'

[ ... ]

According to Micki Delp, Brad was upset over the lingering bad feelings from the ugly breakup of the band Boston over 20 years ago. Delp continued to work with Scholz and Boston but also gigged with Barry Goudreau, Fran Sheehan and Sib Hashian, former members of the band who had a fierce falling out with Scholz in the early '80s.

As a result, he was constantly caught in the middle of the warring factions. The situation was complicated by the fact that Delp's ex-wife, Micki, is the sister of Goudreau's wife, Connie.

'Barry and Sib are family and the things that were said against them hurt,' Micki said. 'Boston to Brad was ajob, and he did what he was told to do. But it got to the point where he just couldn't do it anymore.'

Micki understood the March 16 article as blaming Scholz for Delp's death. First Am. Compl. pars. 44-47. Micki was furious after reading the March 16,2007 Inside Track column because she believed at least two of the statements attributed to her in the column were statements she never made. Micki never expressly or implicitly made any statements to Fee consistent with the lead paragraph of the March 16, 2007 Inside Track article in which it was stated that Delp was driven to despair because Cosmo was dropped from the summer tour. Additionally, Micki never expressly or implicitly told Fee that Delp was "'upset over the lingering bad feelings from the ugly breakup of the band Boston over 20 years ago. '" First Am. CompI. par. 39.6 Later that morning, Micki called Fee to inform her that the statements attributed to her in the March 16 article were distortions/fabrications. After her conversation with Micki, Fee discarded her notes from her interview with Micki in a "deliberate effort to conceal" known "inaccuracies in her reporting." First Am. CompI. par. 46. It is Scholz's position that the Herald was aware of possible inaccuracies with portions of the March 16 article; however, it permitted if not encouraged Fee to destroy her interview notes. The Herald never retracted any of the statements.

Later that day, Micki called Sullivan to discuss the March 16 article. Sullivan informed Micki that she understood the March 16 article as falsely blaming Scholz for Delp's death. On March 17,2007, Sullivan left Scholz a voicemail in which she asked Scholz to contact her about '''the pack of lies printed in the Herald.'" First Am. CompI. par. 49. On March 23, 2007, Sullivan issued a statement to the press, which the Boston Globe published stating in relevant part:

'In our grief, we look for answers, for reasons, and perhaps for blame. In the days that have passed since his death there has been a great deal of speculation and rumors put forward by the media and the Boston (band) fan base as to why he chose to end his life.7 Words have been taken out of context, statements have been misconstrued, and people have been hurt. People are looking for answers, and there are none to be had. Bradley blamed no one, held no one accountable, for what was in his own heart. His music, his business, his relationships, these were the things that brought him joy. His sadness came from within; it was his own. He wanted no one to carry his burdens in life or death.'

Local, national and international news outlets republished the Inside Track's articles addressing Delp's suicide. First Am. CompI. par. 52. On March 19,2007, Launch Radio Networks reported:

The ex-wife of BOSTON singer Brad Delp blames long-standing issues within the band for Delp's suicide. Micki Delp told The Boston Herald that Brad was always stuck in the middle of fights between Bandleader Tom Scholz and former members of the group, and that the past 30 years' worth of tensions finally go [sic] the better of him .... Micki said the last straw was the recent firing of fellow Boston singer Fran Cosmo and his son, guitarist Anthony Cosmo.

On July 2,2007, the Inside Track published an article headlined: "Delp tribute on." First Am. CompI. Ex. E. In relevant part, the article states:

Credit music manager and ex-Extreme drummer Paul Geary for bringing all the warring factions together. The Concert will include one number the encore - during which the original members of the band Boston will reunite. The parties - founder Tom Scholz and original members Barry Goodreau [sic], Sib Hashian and Fran Sheenhan with Fran Cosmo on vocals have been at odds for decades and the lingering bad feelings from the breakup of the original band more than 20 years ago reportedly drove singer Delp to take his own life in March.

Beginning on May 25,2010 and continuing through May 27,2010, the Herald published six articles which had the effect of republishing the allegedly defamatory statements attributed to Micki and directed the readers attention back to the 2007 allegedly defamatory articles. The articles printed in the May 25,2010 Herald were entitled "Dispute in Delp death: Herald asks judge to toss out Boston band member's lawsuit"8 and "Statements highlight Scholz-Delp relationship."9 First Am. CompI. Ex. F. On May 26,2010, the Herald published articles entitled "Scholz's many lawsuits: Court records show prior defamation cases and ... " and " ... Ex-Boston members, Scholz sparred in court." First Am. Compl. Ex. G. On May 27,2010, the Herald published two additional articles entitled "Boston's rocky relations: Court records show tension between Scholz, Delp's ex-wife"10 and "What she says she told the newspaper." First Am. Compl. Ex. H.


DISCUSSION

I.             Standard of Review

The Supreme Judicial Court recently refined the standard for evaluating the sufficiency of a complaint pursuant to Mass. R. Civ. P. 12(b)(6), holding that, to survive a motion to dismiss, a complaint must set forth the basis of the plaintiffs entitlement to relief with '''more than labels and conclusions. '" Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Trombly, 540 U.S. 544, 555 (2007). While factual allegations need not be detailed, they '''must be enough to raise a right to relief above the speculative level ... [based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact) .... '" Id., quoting Bell Atl. Corp., 550 U.S. at 555. At the pleading stage, the complaint must set forth "factual 'allegations plausibly suggesting (not merely consistent with)' an entitlement to relief. ... " Id., quoting Bell Atl. Corp., 550 U.S. at 557.


II. Defamation/Libel

A. Inside Track Articles

In support of their motion to dismiss Scholz's libel claim, the defendants contend that (1) the statements contained in the Inside Track articles referring to Scholz are not defamatory; (2) the Inside Track articles do not concern Scholz; (3) the statements in the Inside Track articles are opinions and the reason Delp committed suicide is incapable of being proven; and (4) Scholz cannot prove that the articles were published with actual malice.

In a libel action, the plaintiff must demonstrate that the defendant (1) published a false statement of and concerning the plaintiff to a third party; (2) that the statement was defamatory, in other words, the statement could damage the plaintiff's reputation within the community; (3) that the defendant was at fault for making the statement; 11 and (4) that the statement caused the plaintiff economic loss or is actionable without proof of economic loss. Ravnikar v. Bogojavlensky, 438 Mass. 627,629-630 (2003); Reilly v. Associated Press, 59 Mass. App. Ct. 764, 769 (2003).


1. Defamatory Connotation

This Court begins with the threshold inquiry into whether the Inside Track articles are "'reasonably susceptible of a defamatory connotation,' so as to warrant their submission to a jury to determine if in fact the defamatory connotation was conveyed." Jones v. Taibbi, 400 Mass. 786,791 (1987), quoting Cianci v. New York Times Publ'g Co., 639 F.2d 54, 60 (2d Cir. 1980). "A statement is defamatory in the circumstances if it discredits a person in the minds of any considerable and respectable class of the community." Howell v. The Enter. Publ'g Co., LLC, 455 Mass. 641, 670 (2010), quoting Milgroom v. News Group Boston, Inc., 412 Mass. 9,12 (1992). Where statements are "susceptible of both a defamatory and nondefamatory meaning, a question of fact exists for the jury." Jones, 400 Mass. at 792.

While the Inside Track articles do not explicitly state Delp committed suicide because of Scholz's behavior, I find that they are reasonably susceptible of a defamatory connotation because the articles insinuate, if not suggest, that Delp's stressful career, caused in part or in whole by Scholz, played a role in Delp's suicide.

For instance, the March 15 article uses the phrase "never ending bitterness" to describe Scholz's relationship with former members of BOSTON and states that Delp was stuck "in the middle" of this conflict. The article further states that "Delp' s constant need to help and please people may have driven him to despair" and quotes another insider as saying '''Tom made him [Delp] do the Boston stuff and the other guys [former BOSTON members] were mad that they weren't a part of it. '" The article further states that Scholz was not invited to the funeral, and then quotes an insider as saying "'[w]hat does that tell you?'"

The March 16 article entitled "Pal's snub made Delp do it: Boston rocker's ex-wife speaks," when read with the understanding that Scholz was BOSTON's leader and therefore had the power to exclude members from BOSTON's tour implies that Delp committed suicide because Scholz "disinvited" Cosmo from the summer tour. The article also discusses Delp's mental state, reporting that he was upset "over the lingering bad feelings from" BOSTON's breakup and that he was stuck in the middle of the "warring factions." The article also quotes Micki as saying that "Boston to Brad was a job, and he did what he was told to do. But it got to the point where he just couldn't do it anymore." The July 2 article repeats that Delp committed suicide due to the lingering bad feelings from BOSTON's breakup over twenty years ago. Taken in context with the Inside Track articles of March 15 and 16, one could reasonably understand Scholz to be the source of the longstanding bitterness between BOSTON members.

Because the Inside Track's articles are reasonably susceptible to a defamatory interpretation at this motion to dismiss stage of the proceedings, this Court finds sufficient allegations of defamatory articles to rise above the speculative level.


2. Statements "Of and Concerning" Scholz

Scholz can establish that the Inside Track articles concerned him by showing either (1) that the defendants intended their "words to refer to [him] and that they were so understood" or that the defendants' "words reasonably could be interpreted to refer to [him] and the [defendants were] negligent in publishing them in such a way that they could be so understood." New England Tractor-Trailer Training of Connecticut, Inc. v. Globe Newspaper Co., 395 Mass. 471,483 (1985) (emphasis in original). According to Scholz's complaint, the Herald intended to refer to him throughout the articles as the source of the bitterness between the members of BOSTON. Scholz alleges that Rose was upset over a telephone called she received from Parenteau regarding Delp's death and decided to contact Fee and Raposa to initiate a "smear campaign" against him. First Am. Compl. par. 24. The Inside Track articles published on March 15 and 16 and July 2, 2007, all discuss Scholz's role in BOSTON's breakup, the lingering bad feelings between Scholz and former BOSTON members, and the impact these events had on Delp's emotional state. Delp also alleges in his complaint that Micki and Sullivan understood the Inside Track articles as blaming Scholz for Delp's death. First Am. CompI. pars. 43-44, 48-50.

Again at this motion to dismiss stage of the proceedings, Scholz has sufficiently pled that Fee, Raposa and the Herald intended the Inside Track articles to refer to him and that individuals who read the articles so understood the articles referred to him. See Eyal v. Helen Broad. Corp., 411 Mass. 426, 431 (1991). Scholz has therefore sufficiently satisfied the "of and concerning" test to survive this Motion to Dismiss.


3. Fact or Opinion Nature of Statements

This Court now considers whether the articles are ones of fact, or opinion, or a combination of the two. "The determination whether a statement is a factual assertion or an opinion is a question of law if the statement unambiguously constitutes either fact or opinion." Aldoupolis v. Globe Newspaper Co., 398 Mass. 731, 733 (1986). The Restatement (Second) of Torts § 566 cmt. b, at 172 (1977) provides that opinions "apparently based on facts regarding the plaintiff or his conduct that have not been stated by the defendants or assumed to exist by the parties to the communication" are "mixed" opinions. A "mixed" opinion is actionable "if the comment is reasonably understood as implying the assertion of the existence of undisclosed facts about the plaintiff that must be defamatory in character in order to justify the opinion." Id. cmt. c, at 173.

The test to determine whether a statement is an opinion requires the court to "'examine the statement in its totality in the context in which it was uttered or published.'" Cole v. Westinghouse Broad. Co., Inc., 386 Mass. 303, 309 (1982), quoting Information Control Corp. v. Genesis One Computer Corp., 611 F.2d 781, 784 (9th Cir. 1980). In doing so, "'[t]he court must consider all the words used, not merely a particular phrase or sentence. In addition, the court must give weight to the cautionary terms used by the person publishing the statement. Finally, the court must consider all of the circumstances surrounding the statement, including the medium by which the statement is disseminated and the audience to which it is published. '" Id. If the average reader could understand the allegedly libelous statement as either fact or opinion, the determination is for the jury. Myers v. Boston Magazine Co., Inc., 380 Mass. 336, 339-340 (1980).

Even assuming that the articles are an expression of opinion, I find that they are based on undisclosed defamatory facts and therefore are actionable as "mixed" opinions. The column's very name, Inside Track, indicates that it conveys inside information, that is information not available to the general public. Furthermore, the articles attribute statements to multiple unknown "insiders," as well as Delp's ex-wife Micki. An average reader could presume that because the sources cited in the articles were "insiders," they had close relationships with Delp and would therefore have first-hand knowledge regarding Delp's suicide. Presumably, these sources would also have insightful information about Delp's relationship with Scholz and the other BOSTON members.

Viewing the articles in their entirety, it is apparent to me that the opinions expressed in them were based on additional nondisclosed defamatory facts. As recited in the plaintiffs first amended complaint the articles convey that individuals close to Delp believed that he was under a lot of stress because Scholz "made him do the Boston stuff" and that he was still upset over the manner in which BOSTON disbanded. I find, and thus deny this Motion to Dismiss, because the opinions expressed in the Inside Track articles, as found in the pleadings, can be reasonably understood as implying the existence of additional undisclosed facts concerning Delp and Scholz's relationship as well as BOSTON's breakup.12


4. Fault/Actual Malice

As a public figure, Scholz must prove by clear and convincing evidence that the defendants acted with malice in publishing the articles. Milgroom, 4 12 Mass. at 10-11, citing New York Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964). One acts with malice by publishing a statement with knowledge that it was false or with reckless disregard of whether it was false or not. Id. at 11. "To have acted with reckless disregard as to the truth of a statement, one must have entertained serious doubts as to the truth of that statement." Id. Although the "serious doubts" test is subjective, it can be shown that a defendant acted with reckless disregard based on inferences drawn from objective evidence. Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 867-868 (1975) ("The jury may, of course, reach this conclusion on the basis of an inference drawn from objective evidence, since it would perhaps be rare for a defendant in such a circumstance to admit to having had serious, unresolved doubts.").

In my view, Scholz's complaint alleges sufficient facts from which a finding could be made that the defendants published the articles either with knowledge that statements in the articles were false or with reckless disregard for whether those statements were false. Scholz alleges that Fee and Raposa relied upon sources they knew were biased against Scholz. Fee and Raposa knew Rose was biased because they were aware of Scholz's turbulent relationship with Rose's clients, former BOSTON members. Further, Fee and Raposa's reliance on Micki as a source of information was reckless because her sister was married to Goudreau. As a result of these biases, Scholz alleges there was sufficient reason to doubt the accuracy of the information they provided. Murphy v. Boston Herald, Inc., 449 Mass. 42, 49 (2007), quoting St. Amant v. Thompson, 390 U.S. 727, 732 (1968) ("'[R]ecklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his report. "').

Next, Scholz alleges that Micki testified in another proceeding that at least two of the statements attributed to her in the March 16 article were either taken out of context or made-up by Fee and Raposa.13 In deposition testimony, Micki stated that she never told the Inside Track that Delp committed suicide as a result of Cosmo being dropped from BOSTON's summer tour nor did she inform Fee that Delp was upset over lingering bad feelings stemming from BOSTON's breakup. Fee took notes during her March 15,2007, interview with Micki; however, she discarded her notes after Micki contacted her on March 16, 2007, regarding what Micki perceived as distortions/fabrications in that morning's Inside Track column. See Murphy, 449 Mass. at 61, citing Chang v. Michiana Tel. Corp., 900 F.2d 1085, 1090 (7th Cir. 1990) (reporter's destruction of notes "provides a strong basis for a finding of actual malice").

Scholz, therefore, has pled sufficient facts at this motion to dismiss stage to make a claim that the defendants published the articles with actual malice.


B. May 2010 Articles

The defendants contend that the Herald's May 2010 articles14 do not contain any false statements and therefore cannot be defamatory. Alternatively, the defendants claim that even if the articles contain false statements the articles are protected by the fair report privilege.

On May 26,2010, the Herald published "Scholz's many lawsuits: Court records show prior defamation cases and .... " This article merely summarized Scholz's lawsuit against Micki and Connie, as well as another lawsuit Scholz filed against George Gouldsmith. This article does not contain any false statements. Therefore, I find that this article is not capable of a defamatory connotation. On May 26,2010, the Herald also published an article entitled " ... Ex-Boston members, Scholz sparred in court." This article discusses five lawsuits Scholz was a party to involving ex-BOSTON members, two lawsuits involving former managers, as well as one lawsuit involving BOSTON's former record label. This article does not contain any false statements. Therefore, I find that this article is not capable of a defamatory connotation. The Herald's May 27,2010 article entitled "What she says she told the newspaper" contains excerpts of Micki 's deposition testimony in which she describes her reaction to and concerns with the Inside Track's March 16, 2007 article. This article contains no false statements and therefore I find that it is incapable of a defamatory connotation.

The Herald's May 25 and 27, 2010 articles, entitled "Dispute in Delp death: Herald asks judge to toss out Boston band member's lawsuit[,]" "Statements highlight Scholz-Delp relationship[,]" and "Boston's rocky relations: Court records show tension between Scholz, Delp's ex-wife", each contain a statement to the effect that the Inside Track articles only reported that sources/observers believed that Delp's was stuck in the middle of Scholz's long running feud with ex-BOSTON members. At the motion to dismiss stage, I find that this statement could be a false statement and therefore is capable of a defamatory meaning. During her conversation with Fee on March 15, 2007, Micki neither expressly nor implicitly alluded to the fact that Delp was upset over BOSTON's breakup and the subsequent bad blood between Scholz and former BOSTON members. First Am. Compl. par. 39.

This Court must next discuss whether some portions of these three articles are protected by the fair report privilege. The fair report privilege allows publishers who "fairly and accurately [report] the subject matter of judicial proceedings" to be immune from liability for claims arising out of those reports. Sibley v. Holyoke Transcript-Tel. Publ'g Co., Inc., 391 Mass. 468,470 (1984). The rationale supporting the fair report privilege is to "ensure that publications may perform the important function of informing the public of actions taken by the courts." Id. at 472. Simply filing a document with the court does not invoke the privilege; rather the privilege only extends "to matters which really have been made the subject of judicial action." Lundin v. Post Publ' g Co., 217 Mass. 213,216 (1914). "'The privilege is not limited to proceedings before a judge, but applies in cases in which judicial powers are exercised.'" Sibley, 391 Mass. at 471, quoting Thompson v. Boston Publ'g Co., 285 Mass. 344, 347 (1934).

The defendants' Motion to Dismiss Scholz's lawsuit was filed with this Court on June 18,2010. On May 25,2010, the Herald published "Dispute in Delp death: Herald asks judge to toss out Boston band member's lawsuit" which discussed the defendants' attempt to dismiss Scholz's lawsuit. This article is not protected by the fair report privilege because the defendants' motion had not yet been filed with this Court. On May 25, 2010, the Herald also published an article entitled "Statements highlight Scholz-Delp relationship" which featured highlighted excerpts from Scholz's lawsuit. Despite the fact that Scholz's complaint was on file with this Court, this article is not within the scope of the fair report privilege because this Court had not taken any action with respect to the complaint. Howell v. Enterprise Publ' g Co., LLC, 455 Mass. 641, 655 n.11 (2010) ("Our cases require something more than the mere filing of a defamatory complaint by a private citizen with a governmental body to qualify a report thereon for the protection of the privilege.").

On May 27,2010, the Herald published an article entitled "Boston's rocky relations: Court records show tension between Scholz, Delp's ex-wife" which contained excerpts of Micki's deposition testimony from Scholz's lawsuit against her. The excerpts focused on Scholz not being invited to Delp's funeral as well as a conversation Micki had with Scholz's ex-wife at the funeral. While Micki 's deposition testimony had been filed with the court in that lawsuit (Scholz's lawsuit against Micki), it had not yet been filed in conjunction with this lawsuit. Therefore, these excerpts were not part of the public record and are not with the scope of the fair report privilege.


III. Intentional Infliction of Emotional Distress

With respect to Scholz's intentional infliction of emotional distress claim, the defendants argue it must be dismissed because Scholz fails to demonstrate the requisite "extreme and outrageous" conduct.

To establish his intentional infliction of emotional distress claim, Scholz must show: "(1) that the defendant[s] intended to inflict emotional distress, or knew or should have known that emotional distress was the likely result of [their] conduct, but also (2) that the defendant[s'] conduct was extreme and outrageous, beyond all bounds of decency and utterly intolerable in a civilized community, (3) the actions of the defendant[s] were the cause of the plaintiffs distress, and (4) the emotional distress suffered by plaintiff was severe and of such a nature that no reasonable person could be expected to endure it." Payton v. Abbott Labs, 386 Mass. 540,555 (1982).

The complaint alleges that Fee and Raposa wrote these articles as part of Rose's "smear campaign" against Scholz. By talking to and quoting various people with "knowledge" of the situation, the articles create the impression that Delp' s suicide was the result of professional and/or personal pressure caused by Scholz. This Court finds that Scholz's complaint and the inferences, not speculation, from its contents support his claim that the defendants' alleged conduct is "extreme and outrageous." Therefore the defendants' Motion to Dismiss this count is denied.


ORDER

For the above-mentioned reasons, it is hereby ORDERED that the Boston Herald, Inc., Gayle Fee and Laura Raposa's Motion to Dismiss is DENIED in Part and ALLOWED in Part. The defendants' Motion to Dismiss is ALLOWED to the extent Scholz's defamation claim relies upon the following Boston Herald articles: "Scholz's many lawsuits: Court Records show prior defamation cases and ... " dated May 26,2010; " ... Ex-Boston members, Scholz sparred in court" dated May 26,2010; and "What she says she told the newspaper" dated May 27,2010.


________________________

John C. Cratsley

Justice of the Superior Court


DATED: September 10, 2010





1 Gayle Fee and Laura Raposa

2 Scholz hired Fran Cosmo ("Cosmo") to provide studio vocals during Delp's absence from BOSTON.

3 In August 2006, Boston Magazine published an article entitled "Gals Gone Wild" in which Rose described the "Inside Track" as a "'favor bank'" and stated that "'[tJhey'1I [Fee and Raposa] help you if you're on their good side .... [i]f not, they can hurt you.'" First Am. Compl. Ex. A, pg. 2. The article further details the close working relationship Rose maintains with Fee and Raposa. First Am. Compl. Ex. A.

4 Delp left additional suicide notes.

5 Scholz alleges that despite referencing various "insiders" throughout the March 15 article Fee and Raposa did not communicate with any sources and in fact invented "insiders" to whom they attribute fictional quotes. Scholz alleges that most of the information contained in the March 15th article was provided to Fee and Raposa by Micki and/or Rose. Scholz further claims Fee and Raposa had reason to doubt the truthfulness of the statements provided to them by Rose and Micki because they were aware of the close connections both women had to former members of BOSTON who disliked Scholz.

6 Scholz alleges that the Herald, Fee and Raposa's knowing, intentional and/or reckless reporting of these statements, together with their innuendo, created the impression that Micki-someone exceptionally familiar with Delp's thinking- held Scholz responsible for Delp's suicide. First Am. Compl. par. 38.

7 This statement presumably was referring to the Inside Track's March 15 and 16 articles.

8 This article includes the statement that "in articles published shortly after Delp's 2007 suicide, Fee and Raposa cited several sources as saying the musician felt stuck in the middle of a long-running feud between Scholz and ex-Boston members such as Goudreau." First Am. Compl. Ex. F.

9 This article states that the Herald believed the Inside Track "stories merely reported that observers thought Delp had been caught in the middle of long-running feuds between Scholz and some of Boston's former members." First Am. Compl. Ex. F.

10 This article includes the statement that the Herald's "pieces merely reported that observers had said that Delp had been caught in the middle of long-running feuds between Scholz and some of Boston's ex-members." First Am. Compl. Ex. H.

11 Scholz concedes that he is a public figure. Because Scholz is a public figure he must prove that the defendants made the statements with actual malice. Supra section II.A.4.

12 This court is not persuaded by the defendants' contention that what was in Delp's mind when he committed suicide is "unknowable, incapable of being proven one way or the other and, as a matter of well established law, non actionable." The articles leave the impression, sufficient to defeat a motion to dismiss, that Scholz's behavior played a significant role in Delp's suicide.

13 The defendants vaguely assert without actually arguing that judicial estoppel precludes Scholz from claiming that Micki did not make these statements, because Scholz alleges in another pending lawsuit that Micki in fact made those comments. Judicial estoppel is an "equitable doctrine that precludes a party from asserting a position in one legal proceeding that is contrary to a position it had asserted in another proceeding." Blanchette v. School Comm. of Westwood, 427 Mass. 176, 184 (1998). Judicial estoppel may be invoked when a party asserts a position in a later proceeding that is "directly inconsistent" to its position in a prior proceeding and "the court has found in favor of that party's position in the prior proceeding." Otis v. Arbella Mut. Ins. Co., 443 Mass. 634, 641 (2005). Judicial estoppel is inapplicable here because Scholz has yet to prevail in the first proceeding (lawsuit against Micki) and because Scholz's position changed because of evidence-Micki 's deposition testimony-discovered subsequent to his initiating the first proceeding.

14 On May 25, 20 10, the I-Jerald published articles entitled "Dispute in Delp death: Herald asks judge to toss out Boston band member's lawsuit" and "Statements highlight Scholz-Delp relationship," On May 26, the Herald published two articles entitled "Scholz's many lawsuits: Court records show prior defamation cases and. . ." and ". . .Ex-Boston members, Scholz sparred in court." On May 27, the Herald published articles entitled "Boston's rocky relations: Court records show tension between Scholz, Delp's ex-wife" and "What she says she told the newspaper."

 
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