NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-634
ROBERT S. LEO
vs.
PETER BROCK & others. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, a former New England Patriots player, filed
this pro se appeal from an order dismissing his complaint
pursuant to Mass. R. Civ. P. 12 (b), 365 Mass. 754 (1974), and
from the denial of a motion for reconsideration. The plaintiff
brought the complaint alleging intentional or negligent
infliction of emotional distress, elder abuse, and defamation
after the New England Patriots Alumni Club (NEPAC) revoked his
membership and banned him from future membership. 2
1Kraft Sports and Entertainment LLC; New England Patriots Alumni Club, Inc.; New England Patriots LLC; and Julie Redwine.
2The defendants argue that the plaintiff resigned from the club and that he was not banned. However, we accept as true all well-pleaded facts alleged in the complaint and draw all reasonable inferences therefrom in the plaintiff's favor. See On March 24, 2023, after a hearing, a judge of the Superior
Court granted the defendants' joint motion to dismiss the
complaint and on April 4, 2023, denied the plaintiff's motion
for reconsideration. Plaintiff argues that the dismissal of
claims against defendants Peter Brock, Julie Redwine, and NEPAC
for insufficient service of process was error because service
was improperly rejected by the respective defendants. He also
argues that the dismissal of claims against the other defendants
was error because a lifetime ban from membership in NEPAC and
being prevented from attending Patriots and NEPAC events amounts
to either negligent or intentional infliction of emotional
distress. Because we agree that there was insufficient service
of process against some defendants, and because the complaint
fails to state a claim upon which relief can be granted, we
affirm.
Discussion. 1. Standard of review. "We review the grant
of a motion to dismiss de novo, accepting as true all well-
pleaded facts alleged in the complaint, drawing all reasonable
inferences therefrom in the plaintiff's favor, and determining
whether the allegations plausibly suggest that the plaintiff is
Lanier v. President & Fellows of Harvard College, 490 Mass. 37, 43 (2022).
2 entitled to relief." Lanier v. President & Fellows of Harvard
College, 490 Mass. 37, 43 (2022).
2. Service of process. A complaint can be dismissed
pursuant to Mass. R. Civ. P. 12 (b) (5) for insufficient service
of process. The sufficiency of process is governed by Mass. R.
Civ. P. 4, as amended, 402 Mass. 1401 (1988). For individual
defendants, service can be made by personal delivery, by leaving
copies at their last and usual place of abode, or by making
delivery to an agent authorized by appointment or by statute to
receive service of process, provided that any further notice
required by such statute be given. See Mass. R. Civ. P. 4
(d) (1), as amended, 370 Mass. 918 (1976). For a domestic
corporation, service can be made
"by delivering a copy of the summons and of the complaint to an officer, to a managing or general agent, or to the person in charge of the business at the principal place of business thereof within the Commonwealth, if any; or by delivering such copies to any other agent authorized by appointment or by law to receive service of process, provided that any further notice required by law be given." Mass. R. Civ. P. 4 (d) (2). In either instance, this service is
required to be made within ninety days of filing the complaint.
Mass. R. Civ. P. 4 (j), as appearing in 402 Mass. 1401 (1988).
Here, on two separate occasions, the plaintiff attempted to
serve Peter Brock, Julie Redwine, and NEPAC. First, he
attempted to serve them at Two Patriot Place, Foxborough,
3 Massachusetts, which was not the correct address. 3 The Norfolk
County Sheriff's Office returned the service to the defendant
because the service address was incorrect, rendering the service
insufficient. The plaintiff then attempted to serve the
defendants at the correct address through registered agents for
Kraft Sports and Entertainment LLC and New England Patriots LLC.
At the hearing in the Superior Court, the plaintiff conceded
that his service was ineffective, but he now argues otherwise on
appeal. The plaintiff now claims that his service was not
defective because it was addressed to the defendants' usual
place of business. This argument, which was not raised below,
is deemed waived. See Scheffler v. Board of Appeal on Motor
Vehicle Liab. Policies & Bonds, 84 Mass. App. Ct. 904, 905
(2013).
Even if it were not waived, as a matter of law, the
plaintiff's two attempts at service both fail. The first
attempt at service was ineffective because the plaintiff did not
use the correct address. The second attempt to serve Peter
Brock and Julie Redwine fails because service was not attempted
to the defendants personally, there was no evidence that this
address was either of these defendants' last and usual place of
3 The correct address for these three defendants was One Patriot Place, Foxborough, Massachusetts.
4 abode, and there was no evidence that anyone at One Patriot
Place, Foxborough, Massachusetts was authorized to accept
service on their behalf. Mass. R. Civ. P. 4 (d) (1). See Foley
v. Walsh, 33 Mass. App. Ct. 937, 937 (1992). As to NEPAC, which
is a domestic corporation, the second attempted service also
fails because there is no evidence that service was ever made to
a "managing or general agent, or to the person in charge of the
business at the principal place of business," see Mass. R. Civ.
P. 4 (d) (2), but rather only to registered agents for Kraft
Sports and Entertainment LLC and New England Patriots LLC. This
is not sufficient, and dismissal was appropriate as to these
three defendants.
3. Failure to state a claim. Next, the plaintiff appeals
the dismissal of his claim of intentional or negligent
infliction of emotional distress for failing to state a claim
for which relief can be granted. In his complaint, the
plaintiff seems to make two separate claims; one for the tort of
intentional infliction of emotional distress and one for
negligent infliction of emotional distress. 4 See Lamoureux v.
Superintendent, Mass. Correctional Inst., Walpole, 390 Mass.
409, 410 n.4 (1983) (pro se filings interpreted liberally, but
4 The plaintiff's filings at the trial level and here on appeal also describe his claims as intentional and negligent infliction of emotional distress.
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-634
ROBERT S. LEO
vs.
PETER BROCK & others. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, a former New England Patriots player, filed
this pro se appeal from an order dismissing his complaint
pursuant to Mass. R. Civ. P. 12 (b), 365 Mass. 754 (1974), and
from the denial of a motion for reconsideration. The plaintiff
brought the complaint alleging intentional or negligent
infliction of emotional distress, elder abuse, and defamation
after the New England Patriots Alumni Club (NEPAC) revoked his
membership and banned him from future membership. 2
1Kraft Sports and Entertainment LLC; New England Patriots Alumni Club, Inc.; New England Patriots LLC; and Julie Redwine.
2The defendants argue that the plaintiff resigned from the club and that he was not banned. However, we accept as true all well-pleaded facts alleged in the complaint and draw all reasonable inferences therefrom in the plaintiff's favor. See On March 24, 2023, after a hearing, a judge of the Superior
Court granted the defendants' joint motion to dismiss the
complaint and on April 4, 2023, denied the plaintiff's motion
for reconsideration. Plaintiff argues that the dismissal of
claims against defendants Peter Brock, Julie Redwine, and NEPAC
for insufficient service of process was error because service
was improperly rejected by the respective defendants. He also
argues that the dismissal of claims against the other defendants
was error because a lifetime ban from membership in NEPAC and
being prevented from attending Patriots and NEPAC events amounts
to either negligent or intentional infliction of emotional
distress. Because we agree that there was insufficient service
of process against some defendants, and because the complaint
fails to state a claim upon which relief can be granted, we
affirm.
Discussion. 1. Standard of review. "We review the grant
of a motion to dismiss de novo, accepting as true all well-
pleaded facts alleged in the complaint, drawing all reasonable
inferences therefrom in the plaintiff's favor, and determining
whether the allegations plausibly suggest that the plaintiff is
Lanier v. President & Fellows of Harvard College, 490 Mass. 37, 43 (2022).
2 entitled to relief." Lanier v. President & Fellows of Harvard
College, 490 Mass. 37, 43 (2022).
2. Service of process. A complaint can be dismissed
pursuant to Mass. R. Civ. P. 12 (b) (5) for insufficient service
of process. The sufficiency of process is governed by Mass. R.
Civ. P. 4, as amended, 402 Mass. 1401 (1988). For individual
defendants, service can be made by personal delivery, by leaving
copies at their last and usual place of abode, or by making
delivery to an agent authorized by appointment or by statute to
receive service of process, provided that any further notice
required by such statute be given. See Mass. R. Civ. P. 4
(d) (1), as amended, 370 Mass. 918 (1976). For a domestic
corporation, service can be made
"by delivering a copy of the summons and of the complaint to an officer, to a managing or general agent, or to the person in charge of the business at the principal place of business thereof within the Commonwealth, if any; or by delivering such copies to any other agent authorized by appointment or by law to receive service of process, provided that any further notice required by law be given." Mass. R. Civ. P. 4 (d) (2). In either instance, this service is
required to be made within ninety days of filing the complaint.
Mass. R. Civ. P. 4 (j), as appearing in 402 Mass. 1401 (1988).
Here, on two separate occasions, the plaintiff attempted to
serve Peter Brock, Julie Redwine, and NEPAC. First, he
attempted to serve them at Two Patriot Place, Foxborough,
3 Massachusetts, which was not the correct address. 3 The Norfolk
County Sheriff's Office returned the service to the defendant
because the service address was incorrect, rendering the service
insufficient. The plaintiff then attempted to serve the
defendants at the correct address through registered agents for
Kraft Sports and Entertainment LLC and New England Patriots LLC.
At the hearing in the Superior Court, the plaintiff conceded
that his service was ineffective, but he now argues otherwise on
appeal. The plaintiff now claims that his service was not
defective because it was addressed to the defendants' usual
place of business. This argument, which was not raised below,
is deemed waived. See Scheffler v. Board of Appeal on Motor
Vehicle Liab. Policies & Bonds, 84 Mass. App. Ct. 904, 905
(2013).
Even if it were not waived, as a matter of law, the
plaintiff's two attempts at service both fail. The first
attempt at service was ineffective because the plaintiff did not
use the correct address. The second attempt to serve Peter
Brock and Julie Redwine fails because service was not attempted
to the defendants personally, there was no evidence that this
address was either of these defendants' last and usual place of
3 The correct address for these three defendants was One Patriot Place, Foxborough, Massachusetts.
4 abode, and there was no evidence that anyone at One Patriot
Place, Foxborough, Massachusetts was authorized to accept
service on their behalf. Mass. R. Civ. P. 4 (d) (1). See Foley
v. Walsh, 33 Mass. App. Ct. 937, 937 (1992). As to NEPAC, which
is a domestic corporation, the second attempted service also
fails because there is no evidence that service was ever made to
a "managing or general agent, or to the person in charge of the
business at the principal place of business," see Mass. R. Civ.
P. 4 (d) (2), but rather only to registered agents for Kraft
Sports and Entertainment LLC and New England Patriots LLC. This
is not sufficient, and dismissal was appropriate as to these
three defendants.
3. Failure to state a claim. Next, the plaintiff appeals
the dismissal of his claim of intentional or negligent
infliction of emotional distress for failing to state a claim
for which relief can be granted. In his complaint, the
plaintiff seems to make two separate claims; one for the tort of
intentional infliction of emotional distress and one for
negligent infliction of emotional distress. 4 See Lamoureux v.
Superintendent, Mass. Correctional Inst., Walpole, 390 Mass.
409, 410 n.4 (1983) (pro se filings interpreted liberally, but
4 The plaintiff's filings at the trial level and here on appeal also describe his claims as intentional and negligent infliction of emotional distress.
5 court will not advance legal theories that plaintiff neglected
to present). In concluding that dismissal was warranted, the
judge determined that the plaintiff failed to allege sufficient
facts to support recovery under either intentional or negligent
infliction of emotional distress. Again, we review the grant of
a motion to dismiss de novo, "accepting as true all well-pleaded
facts alleged in the complaint, drawing all reasonable
inferences therefrom in the plaintiff's favor, and determining
whether the allegations plausibly suggest that the plaintiff is
entitled to relief." Lanier, 490 Mass. at 43.
To recover for negligent infliction of emotional distress,
a plaintiff must prove "(1) negligence; (2) emotional distress;
(3) causation; (4) physical harm manifested by objective
symptomatology; and (5) that a reasonable person would have
suffered emotional distress under the circumstances of the
case." Lanier, 490 Mass. at 44. On the other hand, "[t]o
sustain a claim of intentional infliction of emotional distress,
a plaintiff must show (1) that the defendant intended to cause,
or should have known that his conduct would cause, emotional
distress; (2) that the defendant's conduct was extreme and
outrageous; (3) that the defendant's conduct caused the
plaintiff's distress; and (4) that the plaintiff suffered severe
distress." Sena v. Commonwealth, 417 Mass. 250, 263-264 (1994).
6 The complaint alleged that the defendants' actions caused
the plaintiff to suffer three harms: the harm associated with
no longer being a member of NEPAC, the harm of being prevented
from attending certain alumni events, and reputational harm.
The facts alleged by the plaintiff do not establish that the
plaintiff suffered the degree of harm or distress required to
support a claim of negligent infliction of emotional distress.
See Rodriguez v. Cambridge Hous. Auth., 443 Mass. 697, 702
(2005), quoting Sullivan v. Boston Gas Co., 414 Mass. 129, 137
(1993) (a "successful negligent infliction of emotional distress
claim . . . must do more than allege 'mere upset, dismay,
humiliation, grief and anger'").
Similarly, the facts alleged by the plaintiff do not rise
to the level of extreme and outrageous conduct by the defendants
that is required to support a claim of intentional infliction of
emotional distress.
"Liability for 'extreme and outrageous' conduct cannot be predicated upon mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities, nor even is it enough that the defendant . . . has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort; rather, [l]iability [may be] found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community [quotations omitted]." Roman v. Trustees of Tufts College, 461 Mass. 707, 718 (2012).
In support of his claim for intentional infliction of emotional
7 distress, the plaintiff references e-mails sent by the
defendants describing potential violations of codes of conduct
by the plaintiff and membership implications. He also
references the defendants' actions of inviting him to an event
only to later rescind that invitation, and finally the
defendants' failure to respond to e-mails that he had sent. Put
plainly, these communications and actions may have offended the
plaintiff, but they do not demonstrate extreme and outrageous
behavior by the defendants.
We do not address the plaintiff's challenge to the
dismissal of the counts alleging elder abuse or defamation as
these issues were not argued in the plaintiff's brief. See
Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628
(2019) ("appellate court need not pass upon questions or issues
not argued in the brief"). Finally, although the plaintiff has
8 filed an appeal of the denial of his motion for reconsideration,
he has failed to provide any appellate argument. Id.
Judgment affirmed.
Order denying motion for reconsideration affirmed.
By the Court (Vuono, Rubin & Walsh, JJ. 5),
Clerk
Entered: August 21, 2024.
5 The panelists are listed in order of seniority.