Moss v . Camp Pemigewasset, et a l . CV-01-220-M 10/10/01 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Stephen M. Moss, Plaintiff
v. Civil N o . 01-220-M Opinion N o . 2001 DNH 185 Camp Pemigewassett, Inc., Robert L. Grabill, Alfred N . Fauver, Bertha H. Fauver, Fred Fauver, Jonathan Fauver, Thomas L. Reed, Betsy M. Reed, Thomas L. Reed, Jr., Defendants
O R D E R
Stephen Moss, formerly the Head of Archery at Camp
Pemigewassett (“Pemi” or “the camp”), a summer camp for boys, has
brought this diversity action against: (1) the camp; (2) its
director, Robert Grabill; and (3) its board of directors. In his
complaint, Moss alleges: (1) defamation, against Grabill (Count
I ) ; (2) intentional infliction of emotional distress, against
Grabill (Count I I ) ; (3) tortious interference with prospective
contractual rights, against Grabill (Count I I I ) ; and (4) civil
conspiracy, against all defendants (Count I V ) . Before the court is defendants’ motion to dismiss (document n o . 4 ) . 1 Plaintiff
objects. For the reasons stated below, the motion to dismiss is
granted.
Standard of Review
A motion to dismiss for “failure to state a claim upon which
relief can be granted,” F E D . R . CIV. P . 12(b)(6), requires the
court to conduct a limited inquiry, focusing not on “whether a
plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims.” Scheuer v .
Rhodes, 416 U . S . 232, 236 (1974). When considering a motion to
dismiss under F E D . R . C I V . P . 12(b)(6), the court must “accept as
true all well-pleaded allegations and give plaintiffs the benefit
of all reasonable inferences.” Cooperman v . Individual, Inc.,
171 F.3d 4 3 , 46 (1st Cir. 1999) (citing Gross v . Summa Four,
Inc., 93 F.3d 987, 991 (1st Cir. 1996)). Furthermore,
1 Although defendants’ pleading is captioned as a motion to dismiss, it includes an affidavit and a number of exhibits. Because the pleading is captioned as a motion to dismiss, the court will treat it as such and disregard the material appended to i t .
2 “[d]ismissal under F E D . R . C I V . P . 12(b)(6) is only appropriate if
the complaint, so viewed, presents no set of facts justifying
recovery.” Cooperman, 171 F.3d at 46 (citing Dartmouth Review v .
Dartmouth College, 889 F.2d 1 3 , 16 (1st Cir. 1989)).
Factual Background
Taken from Moss’s complaint, and viewed in the light most
favorable to him, the facts of this case are as follows. In
1999, Pemi invited Moss to serve as its Head of Archery. Under
the terms of his agreement with Pemi, Moss was to work at the
camp during his summer vacations, and, in exchange, was to
receive out-of-pocket expenses, room and board, and camp
uniforms, but no salary. In October 2000, after Moss had served
as Pemi’s Head of Archery for two seasons, he received a letter
from the camp’s director, Grabill, informing him that he was not
invited back for the summer of 2001. No reason was given.
Subsequently, Moss met with Grabill, who told him that he was not
invited back because Grabill had received three complaints
3 against him for inappropriate contact with campers. According to
Grabill, two of these complaints were from parents of campers,
while the third had come “through the State of New Hampshire”
(Compl. ¶ 1 9 ) .
Later o n , Grabill also told Charles Donovan, Pemi’s
Assistant Head of Nature and Bunk Counselor, that Moss had not
been invited back because of complaints from parents and one
complaint that had come “through ‘the State of New Hampshire’”
(Compl. ¶ 2 0 ) . By letter dated April 4 , 2001, Thomas L. Reed,
Sr., a member of the Pemi board, told Moss that the State of New
Hampshire had never made a complaint against him and that no
person involved with the camp had ever reported Moss to the
State. In his conversation with Donovan, Grabill also said that
the existence of three actual allegations against Moss implied
the existence of numerous other unreported incidents. At some
point after Grabill informed Moss that he was not invited back to
Pemi for the summer of 2001, Moss petitioned Pemi’s board of
directors for reinstatement. Despite having knowledge that the
4 State had made no complaint against Moss, and that Moss believed
Grabill had misrepresented that fact, the board declined to
invite Moss back to work at the camp.
Discussion
Given the court’s decision to treat the pleading before it
as a motion to dismiss – despite both parties’ inclusion of
affidavits along with their pleadings – the sole question before
the court is whether Moss has stated any claims on which relief
can be granted. The court considers each cause of action in
turn.
I. Defamation
In Count I , Moss claims that Grabill defamed him by
misrepresenting to Donovan that: (1) a complaint about Moss
having inappropriate contact with campers had come to the camp
through the State of New Hampshire; and (2) a total of three
reported allegations must indicate that more inappropriate
conduct actually took place. According to defendants, Moss’s
5 defamation claim should be dismissed because: (1) a conditional
privilege applies to all of the allegedly defamatory statements
made by Grabill; (2) Grabill’s statements about Moss to Donovan
did not harm Moss’s reputation with Donovan; and (3) Grabill’s
statements about Moss were, if not completely true, substantially
true, and thus not actionable. Because each of defendants’ three
arguments rely upon facts outside the complaint, the court does
not consider them as they have been framed in defendants’ motion
to dismiss, but instead, undertakes an independent analysis of
whether Moss has stated an actionable defamation claim. In the
court’s view, neither of the two allegedly defamatory statements
is actionable because: (1) the first statement i s : (a) not
defamatory, and (b) substantially true; and (2) the second
statement is a statement of opinion.
In New Hampshire, “[t]o establish defamation, there must be
evidence that a defendant failed to exercise reasonable care in
publishing, without a valid privilege, a false and defamatory
statement of fact about the plaintiff to a third party.”
6 Independent Mech. Contractors, Inc. v . Gordon T . Burke & Sons
Inc., 138 N . H . 110, 118 (1993) (citing RESTATEMENT (SECOND) OF TORTS §
558 (1977); R . MCNAMARA, 8 NEW HAMPSHIRE PRACTICE, PERSONAL INJURY, TORT
AND INSURANCE PRACTICE § 2 (1988)). A statement is defamatory if it
“tends to lower the plaintiff in the esteem of any substantial
and respectable group of people,” Nash v . Keene Publ’g Corp. 127
N . H . 214, 219 (1985) (citing Duchesnaye v . Munro Enters., Inc.,
125 N . H . 2 4 4 , 252 (1984)), and this determination is a question
of law for the court, Duchesnaye, 125 N . H . at 252-53 (citing
Thomson v . Cash, 119 N . H . 371, 373 (1979); RESTATEMENT (SECOND) OF
TORTS § 614 (1977); W . PROSSER, TORTS § 1 1 1 , at 747-48 (4th ed.
1971)). However, neither a statement of fact that is
substantially true, see Simpkins v . Snow, 139 N . H . 735, 740
(1995) (citation omitted), nor a statement of opinion, see Nash,
127 N . H . at 219 (citations omitted), is actionable as defamation.
The first allegedly defamatory statement that Moss
identifies, Grabill’s claim that he had received a complaint
about Moss “through ‘the State of New Hampshire’” (Compl. ¶ 2 0 ) ,
7 is not actionable because: (1) it is not defamatory; and (2) it
is substantially true. “It is axiomatic that ‘[w]ords alleged to
be defamatory must be read in the context of the publication
taken as a whole.’” Duchesnaye, 125 N.H. at 249 (quoting
Morrissette v . Cowette, 122 N.H. 731, 733 (1982)). Here, Grabill
is alleged to have made a statement that he had received two
complaints from parents of campers and one “through the State of
New Hampshire.” Significantly, Moss does not challenge Grabill’s
statement that he had received two complaints from parents. He
only challenges the statement that a complaint had come “through
the State.”
Grabill’s statement about a complaint that had come through
the State of New Hampshire could not reasonably be read to defame
Moss, by lowering him in the esteem of others, see Nash, 127 N.H.
at 219, for at least two reasons. First, the statement is not a
statement about Moss; it is a statement about the source of a
complaint. In other words, Moss does not accuse Grabill of
telling Donovan: (1) that Moss had had inappropriate contact with
8 campers; or (2) that the State had either investigated Moss or
accused him of having inappropriate contact with campers.
Rather, Moss accuses Grabill of telling Donovan that the State
had told him (Grabill) that somebody had told the State that Moss
had had inappropriate contact with campers. But a person’s
decision to go to the State, rather than the camp, with a
complaint that was substantially similar to complaints that
others brought directly to the camp neither says nor implies
anything about Moss. Because Moss does not allege that Grabill
told Donovan about any action or conclusion or statement of fact
by the State, other than the purely ministerial function of
transmitting a complaint ostensibly similar to those made by
parents directly to the camp, Grabill’s reference to “the State,”
as alleged in Moss’s complaint, is immaterial, and could not
reasonably be read as lowering Moss’s esteem in the eyes of
others (according to Moss’s complaint, Grabill simply said that a
complaint had come “through the State,” not that the complaint
had been made by the state).
9 Grabill’s statement about the State of New Hampshire is also
not defamatory because in addition to being highly attenuated
from the person allegedly defamed by i t , the most negative
inference that may reasonably be drawn from the statement is that
somebody reported Moss to the State for inappropriate contact
with campers. However, in the context of the unchallenged part
of Grabill’s statement to Donovan – that two similar complaints
about the same sort of conduct had been made directly to the camp
– the implication that a third complaint had been made to the
State may not reasonably be read as further lowering the esteem
in which Moss would be held by others.
And, because Moss does not challenge the truth of Grabill’s
statement about the two complaints made directly to the camp, the
contested statement about the State of New Hampshire is not
actionable – because it is not defamatory and because it is
substantially true, when viewed in the context established by the
facts alleged in the complaint. “A statement is not actionable
if it is substantially true.” Simpkins, 139 N.H. at 740 (citing
10 Chagnon v . Union-Leader Corp., 103 N.H. 426, 437 (1961)).
According to Chagnon, “it is not necessary for the defendant to
prove the literal truth of a defamatory statement in every detail
but only that it is substantially true . . .” 103 N.H. at 437.
Here, the facts in Moss’s complaint are that two parents made
complaints against him directly to the camp.2 Grabill stated
that a third came “through the State of New Hampshire.” Because
Grabill’s statement mentioned no determination or accusation by
the State, his reference to the State is an insignificant detail
and, for the reasons given above, the statement may reasonably be
understood as nothing more than a statement that a third similar
complaint had been made against Moss. Moreover, given that Moss
does not challenge the truth of Grabill’s statement about the two
direct complaints, the number of complaints against Moss – two
versus three – is also an insubstantial detail. Even under the
facts as alleged by Moss, multiple complaints of inappropriate
2 While Moss does not allege this fact directly, he does not claim that he was defamed by Moss’s statement to Donovan about the two parental complaints, and the only reasonable inference that may be drawn from Moss’s failure to challenge this statement is that these two complaints were, in fact, made.
11 contact had been made against him. Thus, Grabill’s statement,
which does little more than imply a third similar complaint, was
substantially true – in the sense that complaints about
inappropriate contact had indeed been made against Moss.
Because the first statement alleged by Moss to be defamatory
is not defamatory, and is also substantially true, it is not
actionable.
The second allegedly defamatory statement that Moss
identifies, Grabill’s claim that “the existence of three known
allegations automatically implied the existence of other
unreported ones” (Compl. ¶ 2 0 ) , is not actionable because it is
not a statement of fact; it is a statement of Grabill’s opinion
as to the existence of other incidents.
[ A ] statement of opinion is not actionable, Gertz v . Robert Welsh, Inc., 418 U . S . 323, 339-40 (1974); Pease v . Telegraph Pub. Co., Inc., 121 N . H . 6 2 , 65 (1981), unless it may reasonably be understood to imply the existence of defamatory fact as the basis for the opinion. Duchesnaye . . . [125 N . H . ] at 249; RESTATEMENT (SECOND) OF TORTS § 566 (1977). Whether a given statement can be read as being or implying an actionable
12 statement of fact is itself a question of law to be determined by the trial court in the first instance, Pease v . Telegraph Pub. Co., Inc., supra at 6 5 , considering the context of the publication as a whole. See Morrissette v . Cowette, 122 N.H. 731, 733 (1982). If an average reader could reasonably understand a statement as actionably factual, then there is an issue for a jury’s determination . . . . See Pease v . Telegraph Pub. Co., Inc., supra.
Nash, 127 N.H. at 219 (parallel citations omitted).
With respect to his statement about the likelihood of
additional incidents of inappropriate contact with campers
involving Moss, Grabill did not express an opinion that implied
his knowledge of additional facts, but merely offered a general
theory – his belief – that in any case such as this, the number
of known allegations will invariably represent some larger number
of actual incidents. No person in Donovan’s position could
reasonably understand Grabill’s statement, as alleged by Moss, to
imply Grabill’s actual knowledge of additional incidents, or even
additional complaints. Thus, the facts alleged by Moss make this
case distinguishable from both Nash and Duchesnaye, cases in
13 which the court found the statements at issue to b e , or to imply,
actionable statements of fact.
In Nash, statements defendant labeled as opinions were
published in a letter to the editor of The Keene Sentinel that
was headed “Specific facts,” 127 N.H. at 217, and which included
items such a s : (1) “Because of one cop’s stupidity Keene just
lost another cruiser . . . .” id. at 218; (2) “This is his sixth
cruiser he zeroed . . . .” id.; and (3) “Assistant City Attorney
David Park has numerous complaints on the matter of Nash,” id.
The New Hampshire Supreme Court held that the trial court erred
“in finding that no average reader could have understood the
[defendant’s] letter to be stating or implying fact rather than
opinion,” id. at 219. Unlike defendant in Nash, Grabill is not
alleged to have implied any personal knowledge of additional
incidents or complaints involving Moss.
In Duchesnaye, plaintiff had been convicted of making
annoying – but wordless – telephone calls, 125 N.H. at 248. The
14 statements defendant labeled as opinions appeared in an editorial
in The Berlin Reporter on “the subject of ‘obscene and harassing
phone calls.’” Id. The author of the editorial
wrote that such calls were often from children, but he went on to observe that “others who make these calls are unstable persons who need help. In fact, some are in their thirties, forties and even fifties. A few days ago a 56-year-old Berlin man was arrested and convicted in District Court of making these calls.”
Id. Affirming a verdict for plaintiff in a bench trial, the
Supreme Court explained that “a series of factual statements in
the editorial could have been read as indicating that the
plaintiff had made obscene calls.” Id. at 250. Unlike plaintiff
in Duchesnaye, Moss does not allege in this case that Grabill
made a series of factual statements from which Donovan could
reasonably have drawn an erroneous conclusion; the only basis on
which Donovan could have concluded that there were other
incidents or complaints was by accepting Grabill’s general thesis
that in matters such as this, reported incidents are always
outnumbered by actual incidents. But that thesis does not
constitute a factual statement about Moss; it merely expresses
Grabill’s general belief about how the world works.
15 Because Moss’s complaint fails to allege any statement by
Grabill that is actionable as defamation, the defendants’ motion
to dismiss is granted as to Count I .
II. Intentional Infliction of Emotional Distress
In Count I I , Moss claims that Grabill intentionally
inflicted emotional distress upon him by falsely reporting, to
him, that the camp had received a complaint against him through
the State of New Hampshire. Grabill argues that Count II should
be dismissed because: (1) Moss has offered no factual basis for
his assertion that Grabill’s alleged statements constituted
conduct sufficiently outrageous to support a claim for
intentional infliction of emotional distress; and (2) the claim
is barred by the rule against maintaining concurrent causes of
action for defamation and intentional infliction of emotional
distress when the factual basis for each claim is an allegedly
defamatory statement. Moss counters that: (1) Grabill’s false
report of a complaint made through the State of New Hampshire was
outrageous because it was entirely gratuitous, given his status
16 as an at-will employee; and (2) the factual predicate for his
claim does not sound in defamation, because the act on which it
is based is not Grabill’s conversation with Donovan about Moss,
but rather, Grabill’s conversation with Moss himself.
“One who by extreme and outrageous conduct intentionally
causes severe emotional distress to another is subject to
liability for that emotional distress.” Konefal v .
Hollis/Brookline Coop. Sch. Dist., 143 N . H . 256, 260 (1998)
(citing Morancy v . Morancy, 134 N . H . 493, 495 (1991)). In
Morancy, the New Hampshire Supreme Court recognized the tort of
intentional infliction of emotional distress, 134 N . H . at 495,
and in the process, adopted the approach of the RESTATEMENT (SECOND)
OF TORTS § 4 6 , id. at 495-96; see also Godfrey v . Perkin-Elmer
Corp., 794 F . Supp. 1179, 1188-89 (D.N.H. 1992) (citing Jarvis v .
Prudential Ins. C o . of America, 122 N . H . 648, 652 (1982)).
Comment d [of the RESTATEMENT (SECOND) OF TORTS § 46] offers the following guidance:
Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all
17 possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”
“This standard plainly anticipates outrages far beyond the indignities and insensitivity that too often taint our daily lives.” Clay v . Advanced Computer Applications, Inc., 370 Pa.Super. 497, 536 A.2d 1375, 1385 (Pa. 1988), rev’d in part on other grounds, 522 Pa. 8 6 , 559 A.2d 917 (Pa. 1989). In determining whether conduct is extreme and outrageous, it should not be considered in a “sterile setting detached from the surroundings in which it occurred,” and such behavior should be found to exist “only if the average member of the community must regard the defendant’s conduct as being a complete denial of plaintiff’s dignity as a person.” Wethersby v . Kentucky Chicken Co., 86 Md.App. 533, 587 A.2d 569, 578, cert. granted, 324 Md. 9 0 , 595 A.2d 1077 (1991).
Godfrey, 794 F. Supp. at 1189.
In Godfrey, the trial court denied a motion to dismiss a
claim of intentional infliction of emotional distress brought by
a female secretary against two male supervisors because “[a]s
alleged, defendants’ conduct represents ongoing, unadorned
[sexual] discrimination of an inherently offensive nature, of a
18 kind one should not be expected to encounter as a part of daily
life,” 794 F. Supp. at 1189. The court continued, “[a]rguably,
defendants seized every opportunity to upset plaintiff with
sexually abusive language and conduct,” id. In Konefal, by
contrast, the New Hampshire Supreme Court affirmed the superior
court’s dismissal of a claim for intentional infliction of
emotional distress based upon a termination of employment that
may have been actionable as a wrongful termination, 143 N.H. at
260, reasoning that while discharging an employee “may be illegal
and reprehensible, a great deal more is required to approach
outrageous conduct. Such conduct is bad conduct, but it is not
outrageous and intolerable conduct,” id. (quoting Lococo v .
Barger, 958 F. Supp. 2 9 0 , 298 (E.D. Ky. 1997)).
Here, because Grabill’s alleged defamation cannot serve as
the basis for a claim of intentional infliction of emotional
distress, see Provencher v . CVS Pharmacy, 145 F.3d 5 , 12 (1st
Cir. 1998) (quoting DeMeo v . Goodall, 640 F. Supp. 1115, 1116
(D.N.H. 1986) (“New Hampshire law does not recognize a cause of
19 action for wrongful infliction of emotional distress where the
factual predicate sounds in defamation.”)), Moss’s emotional
distress claim is necessarily based upon a single act by Grabill,
his allegedly false statement to Moss that a complaint of
inappropriate contact had been made against him through the State
of New Hampshire. Assuming the statement to be untrue,
nevertheless, in context, it has far more in common with the
wrongful termination alleged in Konefal than with the ongoing
pattern of sexual discrimination alleged in Godfrey.
Furthermore, the allegedly false statement that Moss attributes
to Grabill was made in a conversation initiated by Moss. Grabill
initially informed Moss that he would not be invited back to Pemi
but gave no reason. Grabill mentioned the complaints against
Moss only when Moss asked for an explanation. Finally, during
the conversation in which Grabill is alleged to have told Moss
about a complaint made through the State of New Hampshire,
Grabill also told Moss about two other complaints made by parents
of campers, the existence of which Moss does not dispute. In
light of the setting in which Grabill’s statement to Moss is
20 alleged to have occurred, see Godfrey, 794 F. Supp. at 1189, a
false report of an additional complaint made through the State of
New Hampshire would hardly exceed the bounds of decency so as to
be considered sufficiently “atrocious” or “outrageous” – as those
terms have been used by the New Hampshire Supreme Court – to
support an emotional distress claim.
In summary, Moss has failed to state a claim for intentional
infliction of emotional distress on which relief can be granted,
and, as a result, defendants’ motion to dismiss is granted as to
Count I I .
III. Tortious Interference With Prospective Contractual Rights
In Count III, Moss claims that Grabill tortiously interfered
with his prospective contractual relationship with Pemi by
publishing false and defamatory statements about him, an act that
was outside the scope of his authority as an agent of the camp.
Defendants argue that Count III should be dismissed because: (1)
Moss had no ongoing contractual relationship with the camp; (2)
21 he suffered no monetary loss because he drew no salary from the
camp; (3) Grabill’s conduct was privileged; and (4) Grabill was
not a third party to any contractual relationship that may have
existed between Moss and Pemi. Moss responds that he has stated
a viable claim because: (1) monetary damages are not necessary to
sustain a cause of action for interference with a contractual
relationship; and (2) Grabill’s actions were not privileged
because he was acting outside the scope of his authority.
Moss has framed Count III as a claim for “tortious
interference with prospective contractual rights” (Compl. at 6 ) ,
which appears to conflate two separate torts: (1) “intentional
interference with a prospective contractual relationship,” Baker
v . Dennis Brown Realty, 121 N.H. 640, 644 (1981) (emphasis in the
original omitted) (citing Daley v . Blood, 121 N.H. 256, 257
(1981)); and (2) “tortious interference with contractual
relations,” National Employment Serv. Corp. v . Olsten Staffing
Serv. Inc., 145 N.H. 158, ___, 761 A.2d. 401, 405 (2000). The
first of these torts is fairly described as follows: “One who,
22 without a privilege to do s o , induces or otherwise purposely
causes a third person not to . . . enter into or continue a
business relation with another is liable to the other for the
harm caused thereby,” Baker, 121 N . H . at 644 (quoting Bricker v .
Crane, 118 N . H . 249, 252 (1978); citing RESTATEMENT (SECOND) OF TORTS
§ 766B (1979)). Interestingly, while Moss framed Count I I I (in
his complaint) as a claim for tortious interference with
prospective contractual rights, he seems to derive the elements
of his cause of action (in his objection to defendant’s motion to
dismiss) from Roberts v . General Motors Corp., 138 N . H . 532
(1994), which is a case about tortious interference with
contractual relations. “In order [for Moss] to prove tortious
interference with contractual relations, [he] must prove that
[he] had a contractual relationship with [Pemi], that [Grabill]
knew of that relationship, and that [Grabill] wrongfully induced
[Pemi] to breach that contract.” National Employment Serv.
Corp., 145 N . H . at ___, 761 A.2d at 405 (2000) (citing Montrone
v . Maxfield, 122 N . H . 7 2 4 , 726 (1982)). Moss must prove, as
well, “that the damages claimed were proximately caused by
23 [Grabill’s] interference,” Roberts, 138 N.H. at 539 (citing
Montrone, 122 N.H. at 7 2 6 ) . Moss has failed to state an
actionable claim under either theory.
Moss has failed to state a claim for intentional
interference with prospective contractual relations because he
has alleged no wrongful act on the part of Grabill that
constituted interference with his prospective contractual
relationship with the camp. While Moss argues that Grabill’s
publication of a false and defamatory statement about him cost
him his prospective contract with Pemi for the summer of 2001,
the only publication alleged in the complaint is Grabill’s
publication to Donovan, who is not alleged to have had any
control over Moss’s employment with Pemi. Thus, even if the
facts he alleges are true, Moss cannot prove that Grabill’s
publication of a false and defamatory statement caused him to
lose his position with the camp. Not only does Moss fail to
allege publication to anyone other than Donovan, but, on the
facts alleged, any publication of a false and defamatory
24 statement took place after Moss’s relationship with Pemi was
terminated by Grabill’s letter of October 2000. Finally, while
Moss alleges that Grabill was acting outside the scope of his
authority when he committed the defamation at issue here, the
question of Grabill’s authority is not material because, under
the facts alleged, there was no defamation until after Moss was
terminated. To restate, Moss has failed to state a claim for
intentional interference with prospective contractual relations
because he has alleged no wrongful act by Grabill that caused
Pemi to decline to invite him to work at the camp during the
summer of 2001.
Moss has also failed to state a claim for tortious
interference with contractual relations because he has alleged no
facts supporting a claim that Pemi breached its contract with
him, a necessary element of that tort, see National Employment
Serv. Corp., 145 A.2d at ___, 761 A.2d at 405. As a preliminary
matter, as between the two torts Moss seems to have combined in
Count III, tortious interference with contractual relations would
25 be appear to be the more appropriate.3 The facts alleged tend to
support the existence of an at-will employment agreement between
Moss and Pemi – Moss refers to himself as “an at-will employee at
Camp Pemigewassett” (Obj. to Mot. to Dismiss at 9 ) . Because Moss
was an at-will employee, Pemi was free to discharge him with or
without cause, Cloutier v . Great Atl. & Pac. Tea Co., 121 N.H.
915, 920 (1981) (quoting Pierce v . Ortho Pharm. Corp., 84 N.J.
5 8 , 7 2 , 417 A.2d 505, 512 (1980)), subject only to the
prohibition against wrongful termination. See id. Because Moss
has alleged no facts supporting a claim that he was wrongfully
terminated by the camp, he has not alleged that Pemi breached its
3 Compare, for example, Baker, 121 N.H. 640, a case of intentional interference with prospective contractual relations, with Birkmaier v . Rockingham Ventures, Inc., N o . 94-429-SD, 1995 WL 653119 (D.N.H. Sept. 7 , 1995), a case of tortious interference with contractual relations. In Baker, a real estate agent representing one potential buyer intentionally interfered with a potential contractual relationship between the seller and another potential buyer, represented by another real estate agent, in order to collect a full sales commission rather than having to split a commission with the agent representing the other buyer. In contrast, in Birkmaier, plaintiff was a seasonal worker at Rockingham Park who was not invited back for the 1994 racing season, due to the malicious interference of his direct supervisor with upper level management.
26 at-will employment contract with him. And, absent a breach of
contract, Moss has no claim for tortious interference with
contractual relations. See National Employment Serv. Corp., 145
N.H. at ___, 761 A.2d at 405.
Because Moss has failed to state a claim for either
intentional interference with prospective contractual relations
or tortious interference with contractual relations, defendants’
motion to dismiss is granted as to Count III.
IV. Civil Conspiracy
In Count IV, Moss claims that the members of the Pemi board
conspired with Grabill by ratifying, after the fact, Grabill’s
decision to terminate him. Defendants argue this claim should be
dismissed because: (1) the board acted lawfully and within its
rights when it decided not to invite Moss to work at the camp in
2001; and (2) did not carry out its decision not to invite Moss
back to Pemi by any unlawful means. Moss contends that even if
it was lawful for the Pemi board to terminate its relationship
27 with him, “the means employed by Defendant Grabill and adopted by
the remaining Defendants was tortious” (Obj. to Mot. to Dismiss
at 1 1 ) . The court does not agree.
“A civil conspiracy is a combination of two or more persons
by concerted action to accomplish an unlawful purpose, or to
accomplish some purpose not in itself unlawful by unlawful
means.” Jay Edwards, Inc. v . Baker, 130 N.H. 4 1 , 47 (1987)
(quoting 15A C.J.S. Conspiracy § 1 ( 1 ) , at 596 (1967)). The
elements of a cause of action for civil conspiracy are:
(1) two or more persons (including corporations); (2) an object to be accomplished (i.e., an unlawful object to be achieved by lawful or unlawful means or a lawful object to be achieved by unlawful means); (3) an agreement on the object or course of action; (4) one or more unlawful overt acts; and (5) damages as the proximate result thereof. Bonds v . Landers, 279 Or. 169, 174, 566 P.2d 513, 516 (1977); Dickey v . Johnson, 532 S.W.2d 4 8 7 , 502 (Mo.Ct.App. 1975).
Jay Edwards, Inc., 130 N.H. at 47 (emphasis in the original).
Given the elements of civil conspiracy and the facts alleged
in Moss’s complaint, Moss appears to be claiming that by failing
28 to overrule Grabill’s decision to fire him, the Pemi board
ratified a decision that was: (1) based upon a false statement;
(2) implemented in a manner intended to inflict emotional
distress; and (3) constituted a tortious interference with
contractual relations. Therefore, Moss argues, the board agreed
to perpetuate Grabill’s tortious conduct and thus took part in a
conspiracy to defame him, to intentionally inflict emotional
distress upon him, and to tortiously interfere with his
contractual relations with the camp. Because the court has
already dismissed Moss’s claims for emotional distress and
interference with contractual relations, those claims cannot
serve as the basis for a conspiracy claim. See Cunningham v . PFL
Life Ins. Co., 42 F. Supp. 2d 872, 884 (N.D. Iowa 1999)
(“conspiracy claim is valid only to the extent that another claim
is valid and an agreement was made to commit the wrong which
forms the basis of the other claim”) (emphasis in the original)
(citation omitted); Brock v . Baxter Healthcare Corp., 96 F. Supp.
2d 1352, 1359 (S.D. Ala. 2000) (“Without a viable cause of action
based on fraud, plaintiff cannot maintain a cause of action
29 alleging conspiracy to commit fraud.”) (citations omitted).
Accordingly, the only part of Count IV that requires analysis is
Moss’s claim that the Pemi board conspired with Grabill to
accomplish Grabill’s alleged defamation.
Moss does not have a valid claim against the members of the
Pemi board for conspiracy to commit defamation because he does
not allege that any member of the board ever knew of the alleged
defamation at any point before Grabill published the allegedly
false and defamatory statement to Donovan. A civil conspiracy
requires “an object to be accomplished.” Jay Edwards, Inc., 130
N.H. at 47 (emphasis added). But, according to Moss’s own
statement of facts: (1) Grabill defamed Moss to Donovan; (2) one
member of the Pemi board not only verified that no complaint
against Moss had come to the camp through the State, but also
knew that Moss believed Grabill had misrepresented that a
complaint had been made through the State; and (3) the board
ratified Moss’s termination. In other words, at whatever point
the Pemi board learned of Grabill’s alleged defamation, the
30 defamation was not an object “to be” accomplished; it was an
object that had already been accomplished. Furthermore, Moss
does not allege that the board in any way ratified the
defamation, but rather, that it ratified Grabill’s decision to
terminate him, and beyond that, according to Moss’s own
complaint, the board affirmed Moss’s termination even though it
well knew that no complaint had been made against Moss “through
the State.” As a factual matter, the Pemi board could not have
“adopted” Grabill’s defamation i f , as Moss alleges, the board
knew that there had been no complaint made through the State of
New Hampshire before it ratified Grabill’s decision to terminate
him. Because the members of the board were aware that no
complaint had been made through the State, their ratification of
Grabill’s decision to terminate Moss had to have been based upon
factors other than Grabill’s alleged defamation, which vitiates
Moss’s claim that the board’s decision to uphold his termination
was based upon – or perpetuated – Grabill’s allegedly tortious
acts. Finally, while it is theoretically possible that the law
of agency could impute liability for Grabill’s tortious conduct
31 to the board, ex post facto, Moss has cited no authority, and the
court is aware of none, for the proposition that a conspiracy can
be entered into after the commission of the unlawful act that is
the putative object of the conspiracy.4 Therefore, Moss has
failed to allege a set of facts that could give rise to a claim
of a civil conspiracy to defame him.
Because Moss has failed to state a civil conspiracy claim on
which relief can be granted, defendants’ motion to dismiss is
granted as to Count IV.
4 Having invoked the law of agency, the court notes in passing the following inconsistency in Moss’s position. In Count I I , Moss appears to rely upon a claim that Grabill was acting outside the scope of his authority, in order to establish that he was a third party vis á vis the Pemi board, for the purpose of establishing the elements of a claim for interference with contractual relations. However, in his civil conspiracy claim, Moss relies upon the concept of ratification, which would have the legal effect of bringing Grabill’s allegedly tortious acts within the scope of the authority granted by the board. Because these two counts founder on other grounds, the court need not resolve this conundrum.
32 Conclusion
For the reasons given, defendants’ motion to dismiss
(document n o . 4 ) is granted. The Clerk of the Court shall enter
judgment in accordance with this order and close the case.
SO ORDERED.
Steven J. McAuliffe United States District Judge
October 9, 2001
cc: Robert R. Lucic, Esq. Marie M . McPartlin, Esq. Russell F. Hilliard, Esq.