Sequin, LLC v. Kimberly Renk

• Court: District Court, D. Rhode Island
• Decided: January 13, 2021
• Docket: 1:20-cv-00062
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND SEQUIN,LLC, : Plaintiff, : : v. : C.A.No.20-62WES : KIMBERLY RENK,GREGORY C.DRYER, : andUNLIMITED, LLC, d/b/aSEQUIN, : Defendants. : REPORT AND RECOMMENDATION PATRICIA A. SULLIVAN, United States Magistrate Judge. “Happy families are all alike; every unhappy family is unhappy in its own way.” Leo Tolstoy, Anna Karenina (1877).1 Now pending before the Court is themotion ofDefendant Kimberly Renk (“Kim”)2 to dismiss two Counts –Count V (defamation per se) and Count VI(tortious interference with business relations)–asserted against her by Plaintiff Sequin, LLC (“Sequin”),for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). ECF No. 30. In Count V, Sequin alleges that Kim defamed it per seby sending an email to some of its customers that exposed the details of a dysfunctional family squabble between Kim and certain members of the Renk family3 who own and manageSequin. ECF No. 17 at 24-26. In Count VI, Sequin claims that the email interfered with its business relationships, as well as its reputation and standing with these customers. Id.at 26-27. The motion has been referred to me pursuant to 28 U.S.C.§ 636(b)(1)(B). Finding that the verified First Amended Complaint (“FAC”) fails plausibly to allege either that the email is

1This version of the opening sentence of Anna Kareninais taken from the translation by Joel Carmichael. Leo Tolstoy, Anna Karenina1 (Bantam Classic ed. 1981). 2CountsV and VI are asserted only against Kim. The other Defendants –Gregory C. Dryer, Kim’s husband,and Bunnies Unlimited, LLC, Kim’s business –have not joined the motionto dismiss. 3TheseRenk family members include Kim’s sister, Linda Renk (“Linda”), Kim’s brother, Richard John Renk, Jr. (“RJ”), and Kim’s father, Richard Renk, Sr. (“Richard”). defamatory per se(or defamatory at all) as to Sequin or that its allegedly defamatory statements interfered (causing harm resulting in damages) with Sequin’s relationships with any of its customers, Irecommend that the motion be granted. I. SETTING THE STAGE Kim’smotion todismissarises inacasethat is not newtothis Court; therefore, before

focusing ontheinstant motion, Ipausetosketchinthesomewhat complicatedbackground. The Court became familiar with the matter in the course of addressing Sequin’s motion for preliminary injunction and Defendants’ motion to stay Counts I-IV based on the abstention doctrine pursuant to Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976) (“Colorado River”). This workculminatedinSequin, LLC v. Renk, C.A. No. 20- 62WES, 2020 WL 5995205 (D.R.I. Oct. 2, 2020) (“Sequin I”).4 In brief, these proceedings have revealedtheunpleasant details of an ugly family fight overownership andcontrol ofSequin, a successful NewYork-basedsellerofcostumejewelry. Sequin I, at *2-5. Since2018, thefamily warhas been publicly wagedinNewYorkstatecourt. Seegenerally Renk v.Renk,Index No.

652439/2018 (N.Y.Sup. Ct.) (“Renk v.Renk I”), and Renk v.Renk, Index No.153019/2020 (N.Y.Sup. Ct.) (“Renk v.Renk II”). Theinternecine strifespilledinto theDistrict ofRhode Island, whenSequin initiated this casein February 2020. IntheNew York cases, Kim claims that, with hersister, Linda, sheco-founded Sequin in 1999 and that 50%of Sequin is rightfully hersbut herinterest has been held inher father’s name,andthat,more recently, hersiblings,

4 Sequin’s preliminary injunctionmotion was abandoned after the Court questioned Sequin’s counsel regarding its bona fides, including the troubling discrepancies between the facts reflected in the pleadings and the discovery developed in Renk v. Renk, Index No. 652439/2018 (N.Y. Sup. Ct.)and Linda’s averments under oathin this case. Sequin I,at*3 n.8, *12. Defendants’ Colorado Rivermotion to stay Sequin’s infringement claims was granted. Sequin I,at *13. LindaandRJ,havewrongly forcedherout ofSequin. As describedbythe NewYork Supreme CourtinRenk v.Renk I: [A]lthough [Kim]has served inawell-compensated managerial position at Sequin [sinceleaving herprior employment,Kim’s]fathernever formally transferred the 50%interest toherorplaced it inhername.... Linda...claims thesecond 50% interest was inthename oftheirfatherRichard and that anypromiseRichard may havemadetotransfer his interest to[Kim]is unenforceable. [Kim] commenced this suit afterabreak downinherrelationshipwith Linda...aspartof an internal family powerstruggle relatedtotherunningofthe company. Renk v.Renk I,No.652439/2018, 2020WL2572384, at *1(N.Y.Sup. Ct. May21, 2020) (motion todismiss denied inpart,grantedinpart),aff’d,___ N.Y.S.3d ____,188 A.D.3d502 (N.Y.App.Div.Nov.12, 2020). WhileLinda,RJ and Richardhaveconcededthat Kim was laudedas aSequin co-founder on Sequin’s websiteand LindaandRichard haveadmittedthat Kim maybeentitled toan interest inSequin beyondherstatus as an employeeholding a“well- compensatedmanagerial position,”theycontendthat Kim has engagedinsignificant misconduct that has adversely affected Sequin resulting intheirdecision tosuspendher andbring legal claims against her; theyvigorously disputethat Kim is entitled toownershipof50%ofSequin. Sequin I, at *2,5. As apublicairing ofthe Renk family troubles, the sorryspectaclebeganin May2018, whenKim filedRenk v. Renk IinNewYorkstatecourt,claiming that she is entitled toa50% interest inSequin. Sequin I, at *2. Afterthefiling (whichdrewanarray ofcounterclaims), for a time,thebattleseemedcontained inthat Kim continued toserveinatop managerial capacity at Sequin andwas paid “generous compensation.” FAC ¶52. That changed onFebruary 7,2020, with Sequin’s filing ofthis case,inwhichit sued Kim intheDistrict ofRhode Island for infringement basedonher operation of aSequin-branded pop-up storein Newport. Sequin I, at *4-5. Soon after,onMarch 6,2020,Sequin suspendedKim’semployment,sending aterse lawyer’sletteradvising that “duetoherongoing and unremedied misconduct inSequin’s workplace, [Kim’s] employment is suspendedeffective immediately.” ECF No.29-18at 84; see also FAC ¶49. At thesame time,LindaandRJ sent areassuring communication5 toKohl’s and otherSequin customersregarding Kim’sdeparture,advising that Kim “will beon aleaveof absence effectivetoday,” but allaying concerns: “[w]ehavethesamestrong, talented and

dedicated executiveteam, whoare committedtocontinuity anduninterruptedexecution ofour business sotherewill be no changetoourorganization’s functionality.” ECFNo. 29-18at 86. Sequin describes this communication inits briefinopposition tothemotion todismiss:“[t]hese Sequin ownersandofficers merely sent aninnocuous noticetotheircustomersof [Kim’s]leave ofabsencetoensuretheir customers could maintain contacts with thecompany during her leave.” ECFNo.33at 19. OnMarch23,2020, Kim filedRenk v.Renk IIin NewYorkstatecourt,suing Sequin andhersiblings foremployment discrimination, wrongful dischargeandinjuryto reputation. Sequin I, at *5. Thefilings inRenk v.Renk IIdescribeincendiaryandunsavorybehavior by,

andbilious exchanges among,thesiblings andtheirattorneys,with each sideaccusing theother ofoffensive workplace misconduct. Seegenerally Renk v.Renk II, Index No.153019/2020

5The complete text of this communication is: Dear Kohl’s Team We want to inform you that Kim Renk will be on a leave of absence effective today. We have the same strong, talented and dedicated executive team, who are committed to continuity and uninterrupted execution of our business so there will be no change to our organization’s functionality. On behalf of everyone at Sequin, please know we appreciate and value your partnership. Should you have any questions or concerns, please do not hesitate to reach out to me directly. Thank you, Linda Renk & RJ Renk ECF No. 29-18 at 86. At the hearing, the Court confirmedthat Sequin does not dispute the authenticity of this iteration of Linda’s and RJ’s communication to Kohl’s. (N.Y. Sup. Ct.).° Kim’s pleading includes the charge that Linda’s and RJ’s communication to Kohl’s (and others) was sent with the “specific intent of destroying whatever standing [Kim] had with customers . . . developed over the past 20 years.” Sequin I, at *5 (internal quotation marks omitted). Next, on April 6, 2020, Kim sent an email to an individual (“E.E.”) at Kohl’s; Kim claims that this email was in response to the Kohl’s communication written by Linda and RJ.’ ECF No. 30-1 at 8. This email contains the nine accused statements that Sequin alleges are defamatory per se. FAC § 51. The complete text of the email to E.E. (with the accused defamatory statements underscored by the Court) is as follows: Sent: Monday, April 6, 2020, 03:55:48 PM EDT Subject: Kim Renk & Sequin Dear [E.E.], I hope this finds you and your family well and staying safe during this very scary corona virus world we now find ourselves in. It is not my intent to intrude or disturb your focus on staying safe. As such I’ve avoided sending this to you until now. I write because many of Sequin’s clients have reached out to me after receiving an embarrassing and awkward communication recently sent to you by my sister, Linda Renk, and brother, RJ Renk, concerning my relationship with Sequin and falsely suggesting that I had reason to take a “leave of absence”. In response to your kind and heartfelt concerns about my health, which I deeply appreciate, I feel I must correct the record at this time: e Tam not on a leave of absence; e | do not have the Corona virus or any other condition; e I’m perfectly healthy as well; e Contrary to Linda’s assertions, it is not the same strong team at Sequin.

6 Since the events pertinent to this motion, Renk v. Renk II was dismissed by the New York Supreme Court; an appeal from the dismissal is pending. Renk v. Renk, Index No. 153019/2020, 2020 N.Y. Misc. LEXIS 10284 (N.Y. Sup. Ct. Nov. 25, 2020), appeal filed, Index No. 153019/2020, NYSCEF No. 49 (N.Y. Sup. Ct. Dec. 28, 2020). 7 Just as Linda and RJ also sent their communication to other Sequin customers, ECF No. 33 at 19, Kim also sent her responsive email not just to E.E. and other individuals at Kohl’s but also to individuals associated with other Sequin customers. FAC {f 53-54.

Thankyoufortaking the timetoreachout tomeafterreceiving that communication. Quite simply, LindaandRJ arepushing meout ofmycompany inretaliation formy taking legal action toreclaim myownershipin, Sequin. This has beenanongoing family issuethat Ihavemade everyeffort toavoid making publicinordertoamicably anddiscreetly resolve thematter. However,in 2018I was forced tofilealawsuit with theSupremeCourt ofNewYorkwhichis publicly availableunder Index #625439/2018regarding my50%ownership in Sequin, theCompany Iconceived,founded and built. Inresponse, Linda has orchestrated acampaign ofdisinformation and retaliation against meseeking to publicly undermineand diminish myroleinSequin andimpugning mycharacter andreputation as aco-founderandprincipal contributor toSequin’s success. The retaliation andhostile atmospherehas become so toxicthat Ihad tofilealawsuit forconstructivetermination whichis publicly available under Index #153019/2020 and Ihave beenforced out ofthe companyafter20yearsof giving it myall tobuildit tothesuccess that it is today. As manyofyouknow, priortoco-founding Sequin with mysisterin1999, Ihad workedfor20years infashion jewelryfirst at NapierJewelry andthenfor 17 years Ihad theunique opportunity ofbeing theVicePresident andCo-Head of Product Development in Swank, Inc.’swomen’sdivision. During that time, I launchedGuess Jewelry with Paul Marciano,Kenneth ColeJewelrywith Kenneth ColeandDKNYJewelry with DonnaKaran among manyothermajornational brands. What youmaynot know was at thetimeofSequin’s formation, Iwas transitioning overfrom Swank whichwas intheprocess ofselling itswomen’s jewelrydivision. Meanwhile, Lindawhohadbeen aswimwear andsweater buyer at Target, was terminated byTarget. WhileLinda neverhad anyjewelryor accessories experience of anysort,shewas my best friendandsisterand Iwanted hertobemyequal partnertohelplaunchmyplan andvision. It seemedagood ideatocometogether as sisters whereourplanwas toeachpursuebusiness lines basedonourrespective careers,Lindawouldrun ashawl andbeaded bag business and Iwould start acostumejewelrybusiness. As afinancial backer withdrew,andwhile Iwas charting thecoursefor oursoon tolaunchcompany, myFather was given the Business Planthat my husbandand Icreated forstarting ajewelry company. Toavoid potential complications forSequin andformeat Swank, hetold mehewould hold my50%ownership inSequin intrust forme until Icameover from Swank. Trusting myFatherwhois also alawyer, I went along with his direction. Icameoverfrom Swank afewmonths afterSequin’s launch. Iimmediatelyfocused onbuilding thebusiness andbringing mywhole rangeof contacts to Sequin whichincludedemployees, customers andmajor Asiansuppliers. With somemoneyfrom myFatherandalot ofsweat equity, Lindaand Iwent forward ondeveloping ourbusiness lines. WhenLinda’s beadedbag business quickly flopped, Iinvited her tohelp meinthejewelry business. Without belaboring theissue, Itrustedmyfamily and relied ontheirassurances that mymembership interests held bymyfather would betransferred tome when requested. However, he has failed todosoas he has donesince2010when Ifirst involved lawyersto peacefully resolvethematter. With eachpassing year it seemedlikethematter would beresolvedpeacefully andquietly. Tenyears later, hestill refuses even after Icommenced thelegal action referred to abovein 2018. MyFather andLindaare instead trying tosteal my50%ownershipinSequin. I’m veryproudofSequin, thecompany Ifounded andbuilt into anincredibly successful fashion jewelry business. Nowyouunderstand why Iam reaching out to youinthis difficult timeto respond tothefalse communication sent byLindaandRJ. Icannot control their effortstodemean meand smearmyreputation intheindustry. However, Iwill not idly sit byinthe face ofsuchefforts todamage myreputation andmy relationship with you. Thoserelationships arethe prideofmybusiness career. But formyFather’s refusal totransfertome what is rightfully mine, Iwould neverhavetobring anyofthis un-tawdryin-family fighting toyourattention. However,it is necessary giventhat LindaandRJ haveset out tointentionally deceiveyou as towhat is really going onandthecircumstances ofmy coerced departure. As I, forthetimebeing, am not working with Sequin, areality that sadly damages mycompany, Inonetheless wantedtothankyou forall that wewere ableto build togetherovertheyears. Itrust that youwill fondlyreflect uponthemanyyears of ourpersonal and business relationship. Bewell and Ipray each ofyouandyourfamilies remainhealthy andsafe. All theBest, Kim ECF30-3; see also FAC ¶51. Appendedtothe email, Kim includedcopiesofthe complaints in both Renk v.Renk Iand Renk v.Renk II. ECF30-3at 4-58. Also attached tothe email is aone- pageimage characterized by Kim as a“publicity release from 2014,”ECF No.30-1at 10,which appearstobeacopyofpage26from apublication entitled“ModernLuxuryPalm Beach” availableat “mlpalmbeach.com”; its brieftext (attributed to“CarolinaBuia”)describes Kim and Lindaas “the co-owners and co-founders ofSequin.” ECFNo.30-3 at 59. Aweek aftertheaccused email was sent, onApril 13,2020,Kim filedher RhodeIsland motion todismiss basedon Colorado River. ECF No.15. Twoweeks later,onApril 27,2020, Sequin firedback with the FAC,mooting theColorado Rivermotion todismiss. ECFNo.17; May5,2020Text Order. Targeting theaccused email, theFAC addedthe twonew claims that arethesubject oftheinstant motion, Counts V(defamation per se) andVI(tortious interference

with business relations). FAC at 24-27. Kim responded totheFAC byseeking to staythe infringement claims (Counts I-IV)based onColorado River,whilemoving todismiss thenew defamation andtortious interference Counts forfailing tostateaclaim. ECFNos. 29& 30. The Courtresolvedtheformer motion inSequin I; the lattermotion is nowthesubject ofthis report andrecommendation. II. STANDARD OF REVIEW Toavoid foundering inthefaceof amotion to dismiss underFed.R.Civ. P. 12(b)(6),a pleading must allegeaplausible entitlement torelief. Ashcroft v. Iqbal,556 U.S. 662,678 (2009);Bell Atl. Corp.v.Twombly,550 U.S. 544,555 (2007). Theplausibility inquiry requires

thecourttodistinguish “the complaint’s factual allegations (whichmust be accepted as true) from its conclusorylegal allegations (whichneed not becredited).” Morales-Cruzv.Univ.of P.R.,676F.3d220,224(1st Cir.2012). Plausibility “means something morethan merely possible,andgauging ...plausibility is acontextspecificjob that compels [theCourt]todraw on[its]judicial experienceand common sense.” Zenon v.Guzman,924 F.3d 611, 616(1st Cir. 2019)(internal quotation marksomitted). TheCourt must determinewhetherthe well-pled facts, takenas true, aresufficient tosupport“thereasonable inferencethat thedefendant is liablefor themisconduct alleged.” Haley v.City ofBoston,657 F.3d39,46(1st Cir.2011)(quoting Iqbal,556 U.S. at 678); seeMcKeev.Cosby,874 F.3d 54,59(1st Cir.2017)(onmotion to dismiss defamation suit,court draws all reasonableinferences infavorofnon-moving party). In makingthis assessment,the Court should ignoreconclusory statements that donot rest on pleadedfacts; thus, ifan allegation is madeon“information andbelief,”but thepleader fails to supply facts tosupport it,the allegation maybedisregarded. Menardv.CSXTransp., Inc.,698 F.3d40,44-45& n.5(1st Cir. 2012). “This is sonot only oflegal boilerplate(e.g.,“conspiracy,”

“willfully”)but also ofassertions nominally cast infactual terms but sogeneral and conclusory as toamount merely toan assertion that unspecified facts exist toconform tothelegal blueprint.” Id. at 45. Generally, amotion to dismiss under Fed. R. Civ. P. 12(b)(6) restricts the courtto consideration only ofthe facts and authenticatedversions of documents that are referenced in or attached to thechallenged pleading. Giragosian v. Bettencourt, 614 F.3d 25, 27-28 (1st Cir. 2010). In addition, the Court may consider the entirety of any undisputedly authentic document that is integral to the complaint, even though not referenced in or attached to the pleading. Clorox Co. P.R. v. Proctor & Gamble Commercial Co., 228 F.3d 24, 32 (1st Cir. 2000); see

Beddall v. State Street Bank & Trust Co., 137 F.3d 12, 17 (1st Cir. 1998) (when complaint’s factual allegations are expressly linked to and dependent upon document whose authenticity is not challenged,it merges into pleading and court can review it). However, if adocument containing allegedly libelous content is considered because it is authentic and integral to the claim, its substance is not to be taken as true for purposes of the Fed. R. Civ. P. 12(b)(6) analysis. Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 167 (4th Cir. 2016). Otherwise, “a libel plaintiff would plead himself out of court simply by attaching the libelous writing to his complaint.” Id.; seeGant v. Wallingford Bd. of Educ., 69 F.3d 669, 674 (2d Cir. 1995) (libel plaintiff may attach accused writing without fear court will deem it true). At theFed.R.Civ. P.12(b)(6)phase, theCourt mayalso considermatters ofwhich it maytakejudicial notice, as well as concessions intheplaintiff’sresponseto themotion to dismiss. Arturet-Velezv.R.J. Reynolds Tobacco Co., 429F.3d10,13n.2(1st Cir. 2005). However,whiledocuments from priorproceedings and theprocedural historyinthe instant case maybethesubject ofjudicial notice,suchmaterial maybeconsidered only “toestablish thefact

ofsuchlitigation andrelated filings”and“not forthetruth ofthematters asserted.” Kramerv. TimeWarner Inc.,937F.2d 767,774(2dCir.1991); Little Kids, Inc.v.18th AvenueToys,Ltd., C.A.No.18-533WES, 2020 WL7264267,at *13 (D.R.I. Dec. 10,2020)(taking judicial notice ofprocedural travel ofcase). Similarly,theCourt’s priordecision inthis case(Sequin I)has not yet ripenedinto thelawofthecase; therefore, the findings onwhichit is basedmay not betaken as settledandshould not beconsidered inconnection with aFed.R.Civ. P.12(b)(6)motion. SeeP.R. Tel. Co. v. San Juan CableCo. LLC,196F.Supp. 3d207,231-32 (D.P.R. 2016),aff’d sub nom.,P.R. Tel. Co. v. San JuanCableLLC,874F.3d 767(1st Cir.2017). Otherwise, if matters outsidethe complaint are considered, the motion must be converted

to one for summary judgment. Riverav.Centro MedicodeTurabo, Inc., 575 F.3d 10, 15 (1st Cir. 2009). III. FAC ALLEGATIONS IN COUNTS V AND VI For this factual summary, the Court has put on its Fed. R. Civ. P. 12(b)(6) blinders. That is, what follows is strictlylimited to theFAC,with its well-plead factual allegations stated as true as the Rule requires. Sequin is a New York City-based jewelry studio founded in 1999 “by the Renk family and owned by Richard Renk, Sr.,and his daughter, Linda Renk,and his son, Richard Renk, Jr.” FAC ¶ 15; see also ¶ 52 (“Sequin was founded by the Renk family as a whole.”). Kim is a Renk family member who is a “disgruntled employee . . . not satisfied with the generous salary she received” and “who believes she is entitled to more than she is.” Id. ¶¶ 1,29. “Adding insult to injury,” Kim “initiated an action in New York Supreme Court against her father, sister and brother, the owners of Sequin, falsely claiming she is entitled to an unjustified ownership interest in Sequin.” Id. ¶ 1. On February 7, 2020, Sequin filed its Rhode Island infringement complaint

against Kim, as well as its motion for preliminary injunction, and on March 6, 2020, Sequin suspended Kim’s employment “as a result of ‘her ongoing and unremedied misconduct in Sequin’s workplace,’” while continuing “her generous compensation” (including an apartment and a driver); Kim subsequently resigned. Id.¶¶ 3,8, 49. In response to Sequin’s filing of the Rhode Island action and her suspension, on April 6, 2020, Kim contacted Kohl’s and other Sequin’s customersby email,“falsely” claiming: that she “conceived, founded and built Sequin and is the reason for its success”; that the atmosphere at Sequin was “‘hostile’ and ‘toxic’”; that she was pushed out of Sequin in retaliation for the filing of the New York Supreme Court action; that Sequin and its owners are “intentionally deceiv[ing]”their clients; that “it is not the same

strong team at Sequin”; and thatthe company is “damaged” without her. Id.¶¶ 4, 50-54. In support of Counts V and VI, Sequin relies on nine specific accused statements drawn from Kim’sApril 6, 2020, email, which was published “to the merchandising department at Kohl’s, Sequin’s biggest customer”and to the merchandising departments of two other “major customers” of Sequin (Express, Inc. and Lilly Pulitzer, Inc.). Id.¶¶51, 54. Thenine statements are as follows: 1. “[I]t is not the same strong team at Sequin[.]” 2. “Linda and RJ are pushing me out of my company in retaliation for my taking legal action to reclaim my ownership in, Sequin[.]” 3. “Sequin, the Company I conceived, founded and built[.]” 4. “Linda has orchestrated a campaign of disinformation and retaliation against me seeking to publicly undermine and diminish my role in Sequin and impugning my character and reputation as a co-founder and principal contributor to Sequin’s success[.]” 5. “The retaliation and hostile atmosphere has become so toxic” at Sequin. 6. “Sequin, the company I founded and built into an incredibly successful fashion jewelry business[.]” 7. “I cannot control [Linda’s and RJ’s] efforts to demean me and smear my reputation in the industry[.]” 8. “[I]t is necessary given that Linda and RJ have set out to intentionally deceive you as to what is really going on and the circumstances of my coerced departure[.]” 9. I, for the time being, am not working with Sequin, a reality that sadly damages my company[.]” Id. ¶ 51. To support the claim that these statements are defamatoryper se, the FAC posits that Kim was “not the sole founder of Sequin nor the reason for its success. . . . [Kim] is not even an owner of Sequin.” Id.¶ 52. The FAC charges that the email falsely “accuses Sequin and its owners of serious violations of their professional duties in a manner that is obviously incompatible with the proper conduct of their business, trade or office and thus is defamatory per se,” and “expose[s]Sequin to contempt or aversion or induce[s] an unsavory opinion of Sequin in the minds of its customers,” damaging Sequin’s relationships with its customers and resulting in the “reasonable expectation of loss of current and/or future clients.” Id. ¶¶ 53-54, 57, 87, 91- 97. As a result of the statements, Sequin claims to have suffered unspecified “substantial damages.” Id.¶ 97. In addition to defamation per se,Sequin alleges that Kim tortiously interfered with its business relationships. FAC ¶¶98-106. Basedon the same ninestatements, the FAC alleges thatSequin’s customer “relationships have been damaged by the doubt that [Kim’s] interference has sewn [sic]. . . about the professional and ethical conduct of Sequin’s business.” FAC ¶ 100. In conclusory fashion, Sequin claims that the accused statements have caused “non-economic damages, such as damage to its business reputation and standing with its customers”and, therefore,it has suffered damages. Id. ¶¶ 105-06. IV. LAW AND ANALYSIS

A. Count V– Defamation Per Se 1. Rhode Island Law of Defamation Per Se Pursuant to theRhode Island common law,8 adefamation plaintiff must prove: “(a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) damages, unless the statement is actionable irrespective of special harm.” Healey v. New England Newspapers, Inc., 555 A.2d 321, 324(R.I. 1989)(internal quotation marks omitted). Such a plaintiff must show that the statement is false and malicious, imputing “conduct which injuriously affects a man[’s] reputation, or which tends to degrade him in society or bring him

into public hatred and contempt.” Burke v. Gregg, 55 A.3d 212, 218 (R.I. 2012). The “of and concerning” element of defamation is satisfied if the statement leads “the listener to conclude that the speaker is referring to the plaintiff by description, even if the plaintiff is never named or is misnamed.” Budget Termite & Pest Control, Inc. v. Bousquet, 811 A.2d 1169, 1172 (R.I. 2002)(internal quotation marks omitted); seealso Sztulman M.D. v. Donabedian, No. PB 09- 6897, 2015 WL 4590840, at *5 n.2 (R.I. Super. Ct. July 24, 2015) (of and concerning element of defamation “is satisfied when [an] ordinary [individual] would have reasonably understood [the]

8The parties agree that Rhode Island common law applies. ECF Nos. 30-1 at 7-11, 19-22; 33 at 9-20 (applying Rhode Island common law to defamation and tortious interference claims). In such circumstance, the Court is free to “forgo independent analysis and accept the parties’agreement.” Borden v. Paul Revere Life Ins. Co., 935 F.2d 370, 375 (1st Cir. 1991). statement [to be] about the particular plaintiff even if never referenced by name”). Whether a communication is defamatory is a question of law for the court. Burke, 55 A.3d 218. Truth is an absolute defense. Lundgren v. Pawtucket Firefighters Ass’n Local 1261, 595 A.2d 808 (R.I. 1991). The Rhode Island Supreme Court has emphasized that defamation, with its limitation on

speech, requires the claimant to carry a substantial burden. Burke, 55 A.3d at 219-20. As a result, “cases holding that a particular comment is defamatory are few and far between.” Id.at 220. To illustrate, Burkecites with approval cases from around the country,id.,where the speech was found to be offensive and egregious, yet not defamatory. E.g., Fram v. Yellow Cab Co., 380 F. Supp. 1314, 1329 (W.D. Pa. 1974) (words “paranoid” and “schizophrenic” not defamatory); Blomberg v. Cox Enters., Inc., 491 S.E.2d 430, 433 (Ga. Ct. App. 1997) (statement that plaintiff is “a silver-tongued devil” not defamatory); Pace v. Rebore, 485 N.Y.S.2d 291, 293 (N.Y. App. Div. 1985) (statement that plaintiffs used “political clout” to obtain tax exemption not defamatory).

When a defamation plaintiff does not allegespecial or actual pecuniary damages, its claim must meet the higher bar of per sedefamation to beviable. Nassa v. Hook-SupeRx, Inc., 790 A.2d 368, 374(R.I. 2002); cf.F.A.A. v. Cooper, 566 U.S. 284, 296 (2012) (“victims of libel per quodor slander, are barred from any recovery unless they can first show actual –that is, pecuniary or material –harm”). For defamation per se, damages are presumed because the “statements are so egregious and reputation shattering that there can be no question that the defamed party’s reputation suffered as a result.” Ira Green, Inc. v. Military Sales & Serv. Co., C.A. No.10-207-M, 2014 WL 12782199, at *6 (D.R.I. Jan. 15, 2014), aff’d,775 F.3d 12 (1st Cir. 2014). To be actionable as defamation per se,the false statement must impute to the claimant: “(1) a ‘criminal offense,’ (2) a ‘loathsome disease,’(3) a ‘matter incompatible with his business, trade, profession, or office,’or (4) a ‘serious sexual misconduct.’” Marcil v. Kells, 936 A.2d 208, 212 (R.I. 2007)(quoting Restatement (Second) Torts § 570 at 186 (1977)). For defamation per seaffecting a business, the general rule is that where the publication “imputes insolvency,

financial embarrassment, unworthiness of credit, or failure in business to a plaintiff, it is libelous per se.” Andoscia v. Coady,99 R.I. 731, 736, 210 A.2d 581, 584 (1965); accordSwerdlick v. Koch, 721 A.2d 849, 861 (R.I. 1998) (for statements to qualify as libel per se,publication must impute insolvency, financial embarrassment, unworthiness of credit, or failure in business). That is, “it is essential that such imputation relate to or affect the plaintiff in his business,”Swerdlick, 721 A.2d at 861 (quoting Adoscia, 99 R.I. at 736, 210 A.2d at 584),in some way that is peculiarly harmful to one engaged in thattrade or profession; disparagement of a general characterthat is equally discreditable to all persons is not enough. Marcil, 936 A.2d at 213; see Nassa, 790 A.2d at 374 (statements disparaging business person’s “reputation for honesty in his

business dealings,” iffalse, “would be slander per se”). A business entity is not defamed by communications that may bedefamatorytoits officers and agents unlessthecommunication also reflects discredit onthe method bywhichtheentity itself conducts business. Restatement (Second)ofTorts §561(a) & cmt. (b)(1977); see Jankovicv. Int’l Crisis Grp.,494 F.3d1080, 1089(D.D.C. 2007)(generally,statement that refers to individual memberoforganization does not implicateorganization); N.ShorePharm.Servs., Inc. v.Breslin Assocs. Consulting LLC, 491F.Supp. 2d111,128(D. Mass. 2007)(becauseentity was“oneman operation”and criticism ofbusiness competenceand ethics ofits only officerand principal employeediscredited both him andentity, evidence sufficient toallowjuryto determinewhetherstatements were defamatoryto entity); VECC, Inc.v.Bank ofN.S.,296 F.Supp. 2d617,623& n.4 (D.V.I. 2003) (defamation claim byentity basedonstatement regarding its officermay proceed because pleading established that statement implicatedcreditworthiness ofentity, was published tobank at whichentity was seeking toopenaccount andresulted intheclosureofentity’s account). “Wordsalleged tobedefamatory must beread inthecontext ofthepublication inwhich

theyappear,taken as awhole.” Lyonsv.R.I. Pub.Emps.Council 94,516A.2d1339, 1343(R.I. 1986). Theaccused publication must beconsidered in its totality, with theverbiage construed in its plainandordinarysense from thepoint ofview ofan ordinary reader. SeeBurke,55A.3d at 219(wheregist ofarticle with erroneous statement permits“animpression ofanevent that is mean-spirited,” andhas “inescapably critical tone,”comments arestill notdefamatory because theycould not “reasonably beinterpretedtohave injuriously affected [plaintiff’s] reputation, degradedhim insociety, orbrought him into publichatred andcontempt”). Thecourt’s analysis should begin with themessageas a whole,looking at the “gist”or“sting”ofthecommunication, McKee,874 F.3dat 59,62, andmust focus onall thewords used, “not merely aparticularphrase

orsentence.” Froess v. Bulman, 610F.Supp. 332,340 (D.R.I. 1984)(internal quotation marks omitted),aff’d,767 F.2d 905 (1st Cir.1985). The allegedly defamatory wordsshould not be readinisolation. Burke, 55 A.3dat 218-19(citing Marcil,936A.2dat 213). Adefamatorypublication that consists ofastatement intheform ofopinion is “actionableif andonly if it implies theallegation ofundisclosed defamatory facts as thebasis for theopinion.” Alves v.Hometown Newspapers, Inc.,857 A.2d743,751(R.I. 2004) (quoting Healey,555A.2d at 324). Ifthefacts underlying anexpressed derogatory opinion arepublicly knownordisclosed,the opinion is privileged as amatteroflaw. Id. That is, if“readers will understandtheyaregetting theauthor’s interpretation ofthefacts presented; they aretherefore unlikely toconstruethestatement as insinuating theexistenceofadditional, undisclosed [defamatory]facts.” Beattie v.Fleet Nat. Bank,746 A.2d717,721(R.I. 2000)(internal quotation marks omitted); seeMcKee,874F.3d at 61 (applying Michiganlaw, “when the speakeroutlinesthe facts available tohim,thus making it clearthat the challenged statements represent his owninterpretation ofthosefacts and leaving thereader freetodraw his own

conclusion, thosestatements aregenerally protected by theFirstAmendment”)(internal quotation marks omitted). Acourtmaydetermine, as amatteroflaw, whetherastatement is apureopinion ora verifiablefact byexamining “the totality of the circumstances in which the specific challenged statements were made, including the general tenor and context of the conversation.” Picconev. Bartels,785F.3d766,772 (1st Cir.2015). When astatement is anopinion based ondisclosed non-defamatoryfacts, howeverdishonest thestatement maybe,Rhode Island lawrequires that it must beafforded thehighest form ofprotection underthe First Amendment. Cullen v. Auclair, 809A.2d1107,1110-11 (R.I. 2002)(quoting John Stuart Mill, OnLiberty 33(Gryphon eds.

1992): “Ifall mankindminus one,wereofoneopinion, andonly oneperson wereofcontrary opinion, mankindwouldbenomorejustified insilencing that oneperson,than he, ifhehad the power,wouldbejustified in silencing mankind.”). Thus, thestatement ofanopinion regarding themerit oftheparties’positions inalawsuit is not actionable as defamatory. Alzheimer’s Found.ofAm., Inc. v.Alzheimer’s Disease& Related Disorders Ass’n, Inc.,796 F.Supp. 2d 458,471(S.D.N.Y.2011). Statements about lawsuits mayalso implicate the privilege that the Rhode Island Supreme Court has recognized for certain communications in connection with judicial proceedings. Vieira v. Meredith,84 R.I. 299, 301, 123 A.2d 743, 744 (1956) (“libelous matter in pleadings filed in judicial proceedings are absolutely privileged where the statements are material, pertinent or relevant to the issues therein”); see Francis v. Gallo, 59 A.3d 69, 71 (R.I. 2013) (“statements made in judicial proceedings are privileged”) (internal quotation marks omitted); Ims v. Town of Portsmouth,32 A.3d 914, 927 (R.I. 2011)(statements made “in the

context of [or in connection with] a judicial proceeding” are immune). Relatedly, the Rhode Island Supreme Court has adoptedthe“common-law privilege of fair report [that] protects the publication of fair and accurate reports of . . . judicial proceedings, even when an individual is defamed during the proceeding.” Trainor v. Standard Times, 924 A.2d 766, 771 (R.I. 2007) (internal quotation marks omitted). In light of the interplay among these privileges and the principle that the statement of an opinion is not defamatory, as applied for example pursuant to New Yorklaw,a letter that advised donors of the existence of a lawsuit involving two non-profit entities, as well as that statedtheauthor’s opinion of the merits of the parties’ positions, was found not to beactionable; the libel claim was dismissed. Alzheimer’s Found. of Am., Inc.,796 F. Supp. 2d at 471 (letter advising donors about lawsuit is both “mere opinion and is not

defamatory” and is privileged from liability as the “fair and accurate report of a judicial proceeding”). 2. Analysis of Viability of Sequin’s Claim of Defamation Per Se The Court’s first task is to address Sequin’s attempt (in its brief in opposition to the motion, ECF No. 33 at 24)to back-pedal from the text of its pleading, which clearly alleges only defamation per se. Doubtless alerted by Kim’smotion to the reality that Rhode Island has set a high bar for defamation per se, Sequin now contends that the Court should treat its conclusory and speculative allegation in paragraph 97 in the FAC as an adequate factual assertion of actual economic harm that establishes special damages. The text of paragraph 97, however,belies the argument; it states only that “Sequin has suffered, and continues to suffer substantial damages, including without limitation, the reasonable expectation loss of current and/or future clients.” FAC ¶ 97. This paragraph is devoid of any facts permitting the inference that Sequin has actually lost business because of the accused statements. It is preciselythe quality of pleading – aboilerplate allusion to unspecified facts in conformity to alegal blueprint –that Twombly/Iqbal

instructs is not enough for plausibility. SeeMenard, 698 F.3d at 44-45; cf. Ims, 32 A.3d at 927 (under Rhode Island law, “damage to one’s reputation does not qualify as the special injury to support a claim for malicious prosecution”). Sequin has sued Kim for defamation per se. The Court declines to analyze the pleading as if actual “special or pecuniarydamages”had been plausibly plead. Seegenerally Nassa, 790 A.2d at 374. The second threshold matter that the Court must address is what the Court may consider in connection with Sequin’s Fed. R. Civ. P. 12(b)(6) motion, beyond what is in the FAC. First,it is clear that the Court can and should consider the entirety of the accused email (with its three attachments); it is unambiguously referenced in the FAC; it is integral to the claim; and the

parties agree that the version proffered by Kim (ECF No. 30-3)is authentic and should be considered. SeeClorox Co. P.R., 228 F.3d at 32. The Court also may take judicial notice of the fact of the filing ofRenk v. Renk I and Renk v. Renk II, the content (but not the truth) of the filings in those cases, as well as the procedural history in this case. SeeKramer, 937 F.2d at 774; Little Kids, 2020 WL 7264267, at *13. The other document with whichthe Court has struggled is the communicationto Kohl’s (n.5supra)written byLinda and RJ purportedly as an “innocuous notice to their customers of [Kim’s] leave of absence.” ECF No. 33 at 19. In thebriefing of this motion to dismiss,Kim alleged, andSequin admitted, that Kim wrote theaccused email “[i]n response”to Linda’s and RJ’s Kohl’s communication, making it integral to Sequin’s defamation claim. ECF No. 30-1 at 8; ECF No. 33 at 19. Consistently, the accused email states that it was written because [M]any of Sequin’s clients have reached out to me after receiving an embarrassing andawkward communication recently sent to you by my sister, Linda Renk, and brother, RJ Renk, concerning my relationship with Sequin and falsely suggesting that I had reason to take a “leave of absence”. ECF No. 30-3 at 2. At the hearing, Sequin confirmed that the copy of this communication which Kim placed in the record is authentic. The problem is that the FAC tells a story that is different from the factual sequence that Sequin acknowledged in its brief. The pleading specifically alleges that Kim wrote the accused email “in response to [the District of Rhode Island complaint and the motion for preliminary injunction] and the suspension of her employment [with Sequin].” FAC ¶ 4. Contrary to Sequin’s representations to this Court, the FAC (which was verified by Linda under oath)9 omits that it was Sequin itself that initiated communication with its customers to explain Kim’s departure after she was suspended as an employee. Because the Court must treat the FAC’s version of events as true, thecommunication sent by Linda and RJ to Kohl’s and other Sequin customers will not be considered in connection with this Fed. R. Civ. P. 12(b)(6) motion.10 Turning to the merits, the Court’s analysis begins by focusing on what is the message of the accused email “as a whole, before considering individual statements [Sequin] has challenged.” McKee, 874 F.3d at 62. The gist or sting of the email may be briefly summarized:

9This troubling truth gap between Sequin’s representations to the Court and Linda’s verification echoes the Court’s finding in Sequin Ithat the FAC verified by Linda is “replete with omission of material facts and misleading representations.” Id.at *12. Nevertheless,this priorfinding may not be considered in connection with the current Fed. R. Civ. P. 12(b)(6) motion. P.R.Tel. Co., 196 F. Supp. 3d at231-32. Instead, for purposes of the pending motion, the well-pled facts in FAC are accepted as true. 10With the Kohl’s communication falling outside of the scope of a Fed. R. Civ. P. 12(b)(6) review, the Court has not considered Kim’s argumentbased on Ponticelli v. Mine Safety Appliance Co.,104 R.I. 549, 551-52, 247 A.2d 303, 305-06 (1968),and progeny, that the accused email is herprivileged responsetothe Kohl’s communication made for the purpose of protecting her own interestarising fromher relationship with the recipient. Kim is communicating with a person (E.E.), with whom shepurports to have a “personal and business relationship” of many years’ duration, to explain that, contrary to an “embarrassing and awkward”communication E.E.had been sent by Linda and RJ, Kim did not take a health-based leave of absence but rather hadbeen forced out of Sequin by her sister and brother. ECF No. 30- 3 at 2-3. The email states that it was written to correct the record “[i]n response to [E.E.’s]kind

and heartfelt concernsabout [Kim’s] health.” Id. at 2. The balance of the text of the email exposes E.E.tothe Renks’ “tawdry in-family fighting,” including asummaryofKim’s disagreements with Linda, RJ and her father over their respective contributions to Sequin. Id.at 2-3. Kim describes herself as aSequin “co-founder” with her sister but also states that she is not an owner because her father failed to transfer her interest to her despite assurances that he would do so. Id. In addition to stating her own beliefs about what happened, Kim summarizes the contrary positions taken by Linda and RJ, attachesthepertinent complaints and supplies the Case Index numbers permitting E.E.to follow-up, including to read any material in either electronic case file that Linda, RJ or Sequin may have filedin opposition to Kim’s allegations. In the

email,Kim expresses her belief thatshe gave her “all to build [Sequin into] the success that it is today,”and that, without her, “it is not the same strong team at Sequin.” Id. at 2. And she hyperbolically characterizes howshabbily she believes her siblings and fatherhave treated her.11 Thesederogatory statements are all targeted at Kim’s family members –a classic case of “airing [the Renks’] dirty laundry.” Seegenerally Guilfoile v. Shields, 913 F.3d 178, 184 (1st Cir. 2019) (“airing . . . dirty laundry” may be basis fordefamation and tortious interference claims brought by persons targeted).

11For example, Kim accuses her sister and brother of “orchestrating a campaign of disinformation and retaliation against [her]”; of creating a “hostile atmosphere [thatbecame]so toxic that [she] had to file [Renk v. Renk II]”; of making “efforts to demean and smear [her] reputation”; and of setting “out to intentionally deceive[E.E.] as to what is really going on and the circumstances of [her] coerced departure.” ECF No. 30-3 at 2, 3. As to Sequin, the gist of the email is benign,if not positive. For example, Kim describes Sequin as having a “strong team,” albeit one that is not the “same”with Kim’s departure. ECF No. 30-3 at 2. The email refers to Sequin as an “incredibly successful fashion jewelry business,” repeatedly adverting to “Sequin’s success,” albeit attributing that success significantly to her own contribution for reasons summarized in the email and detailed in the attached pleadings. Id.

at 2, 3. The email closes with thanks to E.E. for what she and Kim were “able to build together over the years,” and with Kim’s belief that her “not working with Sequin,” “for the time being,” is a “reality that sadly damages my company.” Id. at 3. The email does not say or imply that Sequin will fail or be less successful without Kim; it simply set out Kim’s beliefs (with a detailed explanation of the foundation for the beliefs) that the “team” will not be the same, expressly addressing E.E.as someone Kim hopes will “fondly reflect upon the many years of [their] personal and business relationship.” Id. Viewed from this holistic perspective, the email’s gist is not defamatory per se(indeed, not defamatory at all) as to Sequin. For the FAC’s detailed allegations,Sequin claims that it was defamed per seby this

email because theemail falsely states or implies:“Sequin is engaged in matters incompatible with the proper conduct of its business, trade,or office; Sequin has misrepresented its business structure and ownership; Sequin is deceiving its customers; and Sequin is no longer the same company and will not be successful without [Kim].” FAC ¶ 87. In support of these conclusory allegations, the FAC lays out counter facts ostensibly to establish that the email is false and defamatory. FAC ¶ 52. Regarding Sequin’s business conduct and the accusation of deceit,12 the FAC asserts that Kim was suspended due to misconduct and that it is false to say that she was pushed out by her

12Regarding Sequin’s business conduct and the accusation of deceit, the specific accused statements are: family for taking legal action. FAC 42, 52. The problem is that the email does not try to hide that the stated reason for Kim’s suspension was misconduct — to the contrary, the relevant portion of the actual text of the suspension letter is quoted in one of the attachments to the email.!? Relatedly, the FAC alleges that “Sequin’s owners are consummate professionals and treat their customers, in addition to their employees, with the utmost care” and that Sequin has not and does not “intentionally deceive” its customers.” FAC 952. The email is not inconsistent. While it is scathingly critical of Linda, RJ and their father in their familial treatment of their sister/daughter, Kim, accusing them of demeaning her, smearing her reputation, retaliating against her and creating a hostile atmosphere so toxic to her that she filed Renk v. Renk I, it does not critique Sequin’s owners’ business ethics generally nor does it say that Sequin deceives its customers or mistreats its employees nor does it otherwise reflect discredit on the manner in which Sequin conducts its business. See generally Restatement (Second) of Torts § 561(a) & cmt. (b). Rather, the email charges that Linda and RJ (not Sequin) deceived E.E. solely “as to what is really going on and the circumstances of [Kim’s] coerced departure.” ECF No. 30-3 at 3. That is, in accusing her sister and brother of deceit, Kim is clear in telling E.E. that she (Kim) ts upset that Linda and RJ told E.E. that Kim was taking a leave, when the reality was that Kim had been involuntarily suspended by a letter charging her with

° “The retaliation and hostile atmosphere has become so toxic” at Sequin. ° “T cannot control [Linda’s and RJ’s] efforts to demean me and smear my reputation in the industry[.]” ° “[I]t is necessary given that Linda and RJ have set out to intentionally deceive you as to what is really going on and the circumstances of my coerced departure[.]” FAC 451. '3 The suspension letter is quoted in the Renk v. Renk II complaint, which was attached to the email. ECF No. 30-3 at 51 73-74. 23

misconduct. The email neither says nor permits the inference that Sequin is engaged in deceiving its customers. Therefore, these statements are not actionable as to Sequin. Regarding Sequin’s structure and ownership,‘ the FAC alleges that Kim is not the “sole founder of Sequin” and that it was founded by “the Renk family as a whole.” FAC 4 52. However, the email is not inconsistent in that it states that Kim was a “co-founder,” explaining that Sequin was “co-found[ed] with my sister in 1999.” ECF No. 30-3 at 2,3. The email also describes Kim’s father as having a role in Sequin’s founding, while the attached pleadings describe the involvement of RJ. Similarly, the FAC alleges that “[Kim] is not even an owner of Sequin.” FAC § 52. Again, the email is not inconsistent — Kim acknowledges that she is not an owner and describes in detail her reasons for believing that she is entitled to be an owner, including a copy of the pleading and a citation to the electronic docket of Renk v. Renk I, where that issue is actively being litigated. Thus, the FAC’s allegation that the email falsely states that Sequin misrepresented its business structure and ownership fails because it is simply inaccurate. Regarding Sequin’s success,’ the FAC alleges that Kim is “certainly not... the reason for [Sequin’s] success” and that it is “attributed to the drive, hard work, and passion of [Linda]

'4 Regarding whether Sequin misrepresented its ownership and structure, the specific accused statements are: ° “Linda and RJ are pushing me out of my company in retaliation for my taking legal action to reclaim my ownership in, Sequin[.]” ° “Sequin, the Company I conceived, founded and built[.]” FAC 451. '> Regarding whether Sequin is successful, the specific accused statements are: ° “Linda has orchestrated a campaign of disinformation and retaliation against me seeking to publicly undermine and diminish my role in Sequin and impugning my character and reputation as a co-founder and principal contributor to Sequin’s success[.]” ° “Sequin, the company I founded and built into an incredibly successful fashion jewelry business[.]” FAC 451. 24

and her father and brother and the number of employees under their management.” FAC § 52. The email similarly touts Sequin’s success and sets out (supported by detailed facts) the basis for Kim’s belief that she is a “principal contributor to Sequin’s success.” ECF No. 30-3 at 2. At worst, the FAC alleges that Sequin is a success despite Kim’s “misconduct,” FAC § 52, while the email accuses Linda of orchestrating a campaign to diminish Kim’s role at Sequin and exposes E.E. to the Renk family disagreement with Kim claiming she is more important to Sequin’s success than Linda and Linda claiming she is more important to Sequin’s success than Kim. What is significant for Sequin’s defamation claim is what Linda and Kim agree on — whoever was responsible, Sequin was and is a success. These statements are not defamatory as to Sequin. Regarding whether Sequin is the “same company,”!® the FAC alleges that Kim was an employee receiving “generous compensation,” who was “treat[ed] . . . with care and respect in the office, industry and public at large.” FAC § 52. Then on March 6, 2020, Kim was suspended due to misconduct; after she was suspended, she resigned from Sequin. FAC § 49. The FAC further alleges that Sequin is a success, which is attributable to Linda, RJ, their father, and “the number of employees under their management.” FAC 4 52. Boiled down to its essence, the FAC alleges that Kim had been an employee and part of the “strong” Sequin “team,” and then she was not; therefore, the FAC effectively concedes the truth of the email’s claim that the “team” is not the same in that Kim 1s no longer a part of it. Nevertheless, Sequin argues, and the Court agrees, that Kim’s stated belief that “it is not the same strong team at Sequin” permits the reader to understand that Kim believes that the Sequin team is not as strong without her.

'6 Regarding whether Sequin is the “same,” the specific accused statements are: e “TT]t is not the same strong team at Sequin[.]” ° “T, for the time being, am not working with Sequin, a reality that sadly damages my company|.]” FAC 451. 25

Importantly, the email contains exhaustive detail not only regarding what Kim believes was her contribution to Sequin, but also stating the contrary positions taken by her siblings and father. Indeed, boththe email’stext and its attachments are explicit that other Renk family members disagree that Kim made a positive contribution, believing instead that Kim engaged in “ongoing and unremedied misconduct” while at Sequin. ECF No. 30-3 at 51 ¶¶ 73-74. Therefore, the

email clearly contains the material to allow E.E.to examine for herself Kim’s belief about the significance of her departure from Sequin,in context and mindful oftheRenk family crossfire. SeeMcKee, 874 F.3d at 64 (potentially derogatory statements published with detailed backup as to foundation for belief not actionable). As such, these statements are opinions that are not actionable. At bottom, the dominant theme of the accused email is the statements by Kim of her opinions regarding thenon-defamatory facts that Sequin was founded by the Renk family and that thefamily is now being ripped apart by toxic litigation among family members, who are attacking each other through privileged filings in judicial proceedings. See Alzheimer’s Found.

of Am., Inc., 796 F. Supp. 2d at 471 (statement that opponent’s legal claim inlawsuit is “baseless” is “mere opinion and is not defamatory”); Viera, 84 R.I. at 301, 123 A.2d at 744 (libelous matter in pleadings absolutely privileged). Otherwise, Sequin’s contention that the email suggests to the reader that Sequin itself generally mistreats its employees and lies to its customers is overly broad and does not accurately reflect either the language or the context of the contested statements. See Burke v. Gregg, 55 A.3d at 219 (reviewing context of communication in totality of circumstances). Rather, read holistically as the Rhode Island Supreme Court requires,the accused email fails to state an actionable claim of defamation on behalf of Sequin in that its allegedly false and derogatory statements of fact (as opposed to statements of belief or opinion with the foundational facts disclosed) are not reasonably capable of being understood as “of andconcerning” Sequin. SeeBudget, 811 A.2d at 1172. Nor does the email contain any statements of fact orpermit factual inferences that –as to Sequin–areso “egregious and reputation shattering” as to amount to defamation per se,nordoes the email accuse Sequin of engagingin “improper conduct . . . in [its] profession or business.” Ira Green, Inc.,2014 WL

12782199, at *6(internal quotation marks omitted). Becausethe FAC fails plausibly to plead defamation, never mind defamation per se, I recommend that Count V be dismissed for failure to state a claim; further, I do not recommend that the Court permit an amendment to the FAC in an attempt to recast Count V as aclaim for mere defamation (as opposed to defamationper se). B. Count VI – Tortious Interference with Sequin’s Business Relations 1. Rhode Island Law of Tortious Interference Tostate a claim of tortious interference with business relations basedonRhode Island common law,17 Sequin must plausibly allege:

(1)theexistenceof abusiness relationship orexpectancy, (2)knowledgeby theinterferorofthe relationship orexpectancy, (3) anintentional act of interference, (4)proof that theinterferencecaused theharmsustained,and (5) damages totheplaintiff. Mesolellav.City ofProvidence,508A.2d661,669-70 (R.I. 1986). “Malice, inthe senseof spiteorill will, is not required; ratherlegal malice –an intent todoharmwithout justification – will suffice.” Id. Sequin must showanintentional and improperact ofinterference. La Gondola, Inc.v.City of Providence,210A.3d1205,1221 (R.I.2019). For a tortious interference claim to survive a motion to dismiss, the pleading must plausibly allege facts to support the fourth and fifth elements –that the interference caused actual

17Seen.8supra. harm resulting in concrete damages. SeeEmrit v. Universal Music Grp., Inc., C.A. No.13-181- ML, 2013 WL 3730423, at *2 (D.R.I. July 12, 2013) (interference claim fails,inter alia,because plaintiff didnot plausibly allege that interference by defendant caused the harm sustained); Ira Green, Inc. v. Military Sales & Serv. Co., C.A. No. 10-207-M, 2012 WL 2178984, at *3 (D.R.I. June 13, 2012)(because counterclaim citedspecific vendor relationships impacted by

interference and allegedthat two vendors were lost,resulting in actual damages, motion to dismiss denied). For example, in Burke, the Rhode Island Supreme Court considered a claim for interference with prospective contractual relations, based on the allegation that the defamatory statements interfered with “prospective business clients” by damaging the business’s image in the public eye, which resulted in a loss of business. Burke,55 A.3dat 222. Despiteapplying Rhode Island’s more plaintiff-friendly Rule12(b)(6) standard, the court, among other things, held that without any allegation of a specific causal link between the statements and even one specificlost business relationship, the pleading was purely speculative and must be dismissed. Id.; see Ims, 32 A.3d at 926 (despite proof of employment relationship, plaintiff failed to

demonstrate existence of employment contract; therefore, claim for tortious interference with contractual relations failed); Fed. Auto Body Works, Inc. v. Aetna Cas. & Sur. Co., 447 A.2d 377, 380 (R.I. 1982) (vague reference to unnamed customers who failed to come to autobody repair business due to defendant’s actions insufficient to prove harm caused by interference). Consistent with Burke, courts in Rhode Island and elsewhere are generally skeptical when a plaintiff tries to recycle a failed defamation claim into a claim under a different label. See, e.g., Mullane v. Breaking Media, Inc., 433 F. Supp. 3d 102, 113 (D. Mass. 2020) (“tortious interference claims are simply recycled versions of his defamation claim and cannot succeed”), appeals docketed, Nos. 20-1061, 20-1062, 20-1080 (1st Cir. Jan. 16,2020); Trainor, 924 A.2d at 769 n.1 ( “many cases from other jurisdictions have held that one may not breathe life into an otherwise doomed defamation claim by re-baptizing it as a different cause of action”); Henry v. Media Gen.Operations, Inc., No. PC-2014-2837, 2018 WL 1732327, at *5, 13(R.I. Super. Ct. Apr. 4, 2018) (citing Trainor and dismissing false light, intentional and negligent infliction of emotional distress claims as “rebaptized” failed defamation claims).

2. Analysis of Viability of Sequin’s Claim of Tortious Interference Sequin’s tortious interference claim fails because of the insufficiency of its conclusory pleading of the fourth and fifth elements required by Rhode Island law. The FAC vaguely alleges that Sequin’s customer “relationships have been damaged by the doubt that [Kim’s] interference has sewn [sic]. . . about the professional and ethical conduct of Sequin’s business.” FAC ¶ 100. Pleading on information and belief with no reference to specific facts, Sequin claims that Kim used improper means “with respect to customers of Sequin, and has thereby caused Sequin to lose accounts, contracts, business, businesses relationships and/or revenue” as well as that, but for Kim’s interference, companies would have continued to do business with Sequin.

FAC ¶¶ 103-04. In conclusory fashion, Sequin asserts that this conduct has caused “non- economic damages, such as damage to its business reputation and standing with its customers” and,therefore,it has suffered “substantial damages.” Id.¶¶ 105-06. This is unadulterated speculation. Burke, 55 A.3d at 222. With no allegation of any specific business relationship actually harmed as a result of the accused email and no allegation of actual damages, Sequin’s claim falls well short of the specificity required to nudge the claim “across the line from conceivable to plausible.” Cardigan Mountain Sch. v. N.H. Ins. Co., 787 F.3d 82, 88 (1st Cir. 2015) (citing Twombly,550 U.S. at 556). I recommend that Court VI be dismissed for failure to state a claim. V. CONCLUSION Forthereasons set forth above, Irecommend that theCourt grant Defendant Kimberly Renk’smotion todismissCounts V-VI. ECFNo. 30. Any objection to this report and recommendation must be specific and must be served and filed with the Clerk of the Court within fourteen (14) days of its receipt. See Fed. R. Civ. P. 72(b)(2); DRI LR Cv 72(d). Failure

to file specific objections in a timely manner constitutes waiver of the right to review by the district judge and the right to appeal the Court’s decision. SeeUnited States v. Lugo Guerrero, 524 F.3d 5, 14 (1st Cir. 2008); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980).

/s/ Patricia A. Sullivan PATRICIA A. SULLIVAN United States Magistrate Judge January 13, 2021