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| BARBARA CURLEY, et al., Plaintiffs v. NORTH AMERICAN MAN BOY | BARBARA CURLEY, et al., Plaintiffs v. NORTH AMERICAN MAN BOY | ||
| LOVE ASSOCIATION, et.al., Defendants | LOVE ASSOCIATION, et.al., Defendants | ||
Revision as of 05:57, 18 April 2005
BARBARA CURLEY, et al., Plaintiffs v. NORTH AMERICAN MAN BOY
LOVE ASSOCIATION, et.al., Defendants
CIVIL ACTION NO. 00-10956-GAO
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS
2003 U.S. Dist. LEXIS 12488
March 31, 2003, Decided
PRIOR HISTORY: Curley v. N. Am. Man Boy Love Ass'n, 2003 U.S. Dist. LEXIS 12482 (D. Mass., Mar. 31, 2003)
DISPOSITION: Motions to dismiss claim under 42 U.S.C. § 1985(3) granted. Motions to dismiss for want of personal jurisdiction made on behalf of defendants Braverman, Hunter and Tampico granted. Motion to dismiss action as against unincorporated association NAMBLA granted. Defendants Corazza and Dodson dismissed from case.
LexisNexis(R) Headnotes
COUNSEL: For Barbara Curley, Robert Curley, PLAINTIFFS: Lawrence W Frisoli,
Frisoli & Frisoli, Cambridge, MA USA.
For Barbara Curley, Robert Curley, PLAINTIFFS: Patrick T Gillen, Patrick T Gillen, Ann Arbor, MI USA.
For North American Man Boy Love Association, Joe Powers, David Thorstad, David Miller, Peter Herman, Max Hunter, Arnold Schoen, DEFENDANTS: John Reinstein, Civil Liberties Union of Massachusetts, Boston, MA USA.
For North American Man Boy Love Association, Roy Radow, Joe Powers, David Thorstad, David Miller, Peter Herman, Max Hunter, Arnold Schoen, William Andriette, Peter Melzer, DEFENDANTS: Sarah Wunsch, Mass Civil Liberties Union FDN, Boston, MA USA.
For Bruce Braverman, Tecumseh Brown, DEFENDANTS: Robert C Plotkin, Concord, MA USA.
Christopher Farrell, DEFENDANT, Pro se, New York, NY USA.
Dennis Bejin, DEFENDANT, Pro se, Seattle, WA USA.
Timothy Bloomquist, DEFENDANT, Pro se, Brooklyn, NY USA.
Gary Hann, DEFENDANT, Pro se, Ann Arbor, MI USA.
Peter Reed, DEFENDANT, Pro se, Phoenix, AZ USA.
Thomas Reeves, DEFENDANT, Boston, MA USA.
For Robert Schwartz, DEFENDANT: Elizabeth A Lunt, Zalkind, Rodriguez, Lunt & Duncan, Boston, MA USA.
Rennato Corazza, DEFENDANT, Pro se, New York, NY USA.
Leyland Stevenson, DEFENDANT, Pro se, New York, NY USA.
JUDGES: George A. O'Toole, Jr., DISTRICT JUDGE.
OPINIONBY: George A. O'Toole, Jr.
OPINION:
MEMORANDUM AND ORDER ON MOTIONS TO DISMISS
March 31, 2003
O'TOOLE, D.J.
There are pending motions by various defendants to dismiss the second amended
complaint in this action for a variety of reasons. Generally, the moving defendants assert the same or substantially similar grounds for dismissal, making it possible to address the grounds topically.
Some procedural history is appropriate. On or about October 1, 1997, Charles
Jaynes, allegedly a member of the defendant North American Man Boy Love Association ("NAMBLA"), abducted and ultimately murdered ten-year old Jeffrey Curley of Cambridge, Massachusetts. On May 16, 2000, the plaintiffs Barbara Curley and Robert Curley ("the Curleys"), as administrators of the estate of their deceased son, commenced this action to recover for his conscious suffering and wrongful death under Mass. Gen. Laws. ch. 229, §§ 2 and 6, naming NAMBLA, Best Internet Communications, Inc., Verio, Inc., Roy Radow, Joe Power, David Thorstad, David Miller, Peter Herman, Max Hunter, and Arnold Schoen as defendants. The plaintiffs also asserted a federal claim under 42 U.S.C. § 1985(3). Two days later, the plaintiffs amended their complaint by dropping the defendants Best Internet Communications, Inc. and Verio, Inc. and adding as a defendant "John Doe Inc.," said to be an internet service provider whose actual identity was then unknown to the plaintiffs. The substantive claims remained the same.
The defendants attacked the first amended complaint by filing motions to
dismiss for lack of personal jurisdiction, improper venue, and failure to state a claim upon which relief can be granted. In addition, Power moved to dismiss on the ground of insufficiency of service of process. By orders dated September 27, 2001 and February 22, 2002, this Court denied these motions. n1
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n1 The Court concluded that service on Power had been insufficient, but
permitted the plaintiffs a limited time to make good service, which they did.
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While the motions to dismiss the first amended complaint were pending, the
plaintiffs moved for leave to file another amended complaint. Their proffered complaint added as defendants Denny Mintum, Bill Andriette, and "John Does 1-100." It also added a civil RICO claim against all defendants. In addition, while the motions to dismiss the first amended complaint were pending, the plaintiffs commenced a separate civil action in this Court, Curley, et al. v. Andriette, 01-11643-GAO (the "Andriette case"). The substantive claims asserted in that case are identical to those asserted in the plaintiffs' proposed amended complaint. In addition, in the Andriette case, the plaintiffs named as additional defendants (additional, that is, to those already included in the first amended complaint in this case) William Andriette, Dennis Mintum, Jonathan Michael Tampico, Christopher Farrell, Dennis Bejin, Timothy Bloomquist, Tecumseh Brown, Bruce Braverman, Gary Hann, Peter Reed, Thomas Reeves, Robert Rhodes, Peter Melzer, Robert Schwartz, Walter Bieder, Rennato Corazza, Charles Lee Dodson, and Leyland Stevenson.
In its September 27, 2001 Order, this Court denied the plaintiffs' motion to
file their proffered amended complaint, ruling that because damages for wrongful death or personal injury are not available in a civil RICO claim under 18 U.S.C. § 1964(c), amendment to add such a claim was futile. However, the Court invited the plaintiffs to file a revised second amended complaint that omitted the RICO claim. Accepting the invitation, on November 1, 2001, the plaintiffs filed a second amended complaint. That complaint named the defendants that had already been included in the first amended complaint filed in May 2000, and also added the new individual defendants who had been included both in the proposed, but rejected, amended complaint and in the Andriette case. The substantive claims in the second amended complaint are claims under Massachusetts law for wrongful death and conscious suffering (Counts I and II) and a claim for damages under 42 U.S.C. § 1985(3) (Count III).
1. The Claim under 42 U.S.C. § 1985(3)
In its Order dated February 22, 2002, the Court ruled that the cause of
action asserted under 42 U.S.C. § 1985(3) in the first amended complaint failed to state a claim for which relief can be granted. That Order did not address the second amended complaint, although it had been filed by the time the Order was issued. The defendants have formally moved to dismiss the claim from the second amended complaint as well. Adhering to the views expressed in the February 2002 Order, the Court grants the motion in this regard as to the second amended complaint. The § 1985(3) claim is dismissed.
2. Continuing Jurisdiction
The dismissal of the § 1985(3) claim leaves only state law claims in the
case, as to which the Court may only exercise supplemental jurisdiction. See 28 U.S.C. § 1367. Although the option exists to dismiss the action in favor of one to be commenced in the state courts, all parties have urged the Court to retain jurisdiction of the case. It is in the interest of justice and judicial economy to do so.
3. Propriety of the Amendment to the Complaint
The defendants also complain that the plaintiffs failed to comply with Local
Rule 15.1, which requires a party moving to amend by adding new parties to serve the new parties with a copy of the motion and proposed amended complaint. Because of some ambiguity surrounding the leave to amend, the objection is not well taken. In the first place, it is not clear that Local Rule 15.1 applies in this context. As noted above, the Court invited the plaintiffs to file an amended complaint. Though they had moved with respect to a different proposed amended complaint, they had not moved with respect to the one actually filed under the leave granted by the Court in the September 2001 Order. In any event, the Court's Order authorized the filing, and it was not unreasonable for the plaintiffs to have believed that the Order excused compliance with Local Rule 15.1.
It is true that the addition of several new defendants went beyond what had
been proposed in the amended complaint proffered by the plaintiffs but rejected by the Court because of the inclusion of the RICO claim. It is possible to read the Court's September 2001 Order as limiting the permission to file a second amended complaint in a way that would preclude additional defendants. The plaintiffs had included the new defendants in the Andriette case, however, and if the issue had surfaced and been specifically addressed, the Court would have permitted the addition of these defendants in the second amended complaint. The newly added defendants' motion to dismiss the second amended complaint on this ground is denied.
4. Relation Back of the Second Amended Complaint
The second amended complaint was filed November 1, 2001. If an original suit
had been filed on that day naming the newly added defendants, there is a substantial likelihood that they could have prevailed on an objection that the three-year statute of limitations applicable to the state law wrongful death and conscious suffering claims, Mass. Gen. Laws ch. 229, § 2, barred the action. However, an amended complaint relates back to the date of the filing of the original complaint when relation back "is permitted by the law that provides the statute of limitations applicable to the action." Fed. R. Civ. P. 15(c)(1). Here, if the second amended complaint relates back to the time of filing of the original complaint, the action against the newly joined defendants is clearly timely.
Massachusetts employs a liberal relation back rule that permits new parties
to be added to an ongoing case even after the expiration of the limitations period. See Wadsworth v. Boston Gas Co., 352 Mass. 86, 223 N.E.2d 807, 809 (Mass. 1967). In Wadsworth, the Supreme Judicial Court ("SJC") noted that "the law in this Commonwealth with respect to amendments is more liberal than elsewhere" and that "ample" Massachusetts case law supports "the proposition that where an action has been commenced before the statute of limitations has run, a plaintiff may be allowed to substitute one defendant for another after the statute of limitations has run against the proposed substitute defendant," with the amendment relating back to the commencement of the original action. Id. at 809-10. The SJC concluded that there was no substantial difference between a new defendant joined in an ongoing case as a substitute for an existing party and a new defendant joined in addition to existing defendants. Id. at 810. That rule governs this case. Under Massachusetts law, the second amended complaint relates back to the original complaint, and the claims against the newly joined defendants are not barred by the statute of limitations. The motion to dismiss on this ground is denied.
5. Failure to Schedule this Claim in the Plaintiffs' Bankruptcy
In August 2000, after the commencement of this action, the plaintiffs filed a
voluntary petition under Chapter 7 of the Bankruptcy Code (11 U.S.C. Chapter 7) in this District. The defendants argue that the plaintiffs failed adequately to disclose the claims presented in this case in the bankruptcy proceedings, especially as they are asserted against the defendants added by the second amended complaint. The defendants contend that, on this basis, the plaintiffs should be barred from pursuing the claims.
The plaintiffs disclosed the existence of this action in their bankruptcy
filings both in their schedule of personal property and in their statement of financial affairs, copies of which were submitted as part of the defendants' papers on the present motions. In the former, Schedule B to the Chapter 7 petition, the plaintiffs listed as a "contingent and unliquidated claim" a "Civil Claim against N. American Man Bay Assn." In the latter, in the section calling for identification of lawsuits, the plaintiffs more specifically identified this action by its docket number, adding that it was pending in the "US District Court, Boston, MA."
The gist of the defendants' objection is that the information included in the
bankruptcy papers was too general and did not specifically identify each individual defendant. As to those defendants who were parties of record in this case as of the time of the bankruptcy filings, the objection is wholly insubstantial. The bankruptcy forms do not require a detailed description of the claims identified. Sufficient information was presented to point the trustee, or any other interested person, to the public records from which detailed information about the claim could be obtained.
Those same public records -- the docket and papers on file in this case --
would have indicated to the interested inspector that the plaintiffs intended to press claims not only against those defendants specifically identified, but also against others -- the John Doe defendants -- whose identity was not then known to the plaintiffs. The case file also would have demonstrated that the claims asserted against the John Does were the same as those disclosed in the existing pleadings.
Even if, as the defendants assert, the plaintiffs had ascertained the
identities of the defendants newly added in the second amended complaint before the close of the bankruptcy case and had a duty to disclose that information in the bankruptcy case, there is no reason to think that such information would have materially affected any decision by the bankruptcy trustee. That is to say, even if the plaintiffs "concealed" from the trustee the names of the new defendants, nothing presented suggests that the concealment had any harmful effect on the estate or gained the plaintiffs any benefit.
There is no reason to quarrel with the principles illustrated by the cases
cited by the defendants. It is just that the facts do not warrant invocation of those principles here. The motions to dismiss on this ground are denied.
6. Suing NAMBLA as an Unincorporated Association
NAMBLA is an unincorporated association. Under Fed. R. Civ. P. 17(b), the
capacity of an unincorporated association to be sued as an entity is determined by the law of the forum State. Northbrook Excess and Surplus Ins. Co. v. Med. Malpractice Joint Underwriting Ass'n of Mass., 900 F.2d 476, 477 (1st Cir. 1990).
It is a settled principle of Massachusetts law that an unincorporated
association "is not a separate entity and cannot be a party to litigation." Maria Konopnicka Soc'y of Holy Trinity Polish Roman Catholic Church v. Maria Konopnicka Soc'y, 331 Mass. 565, 120 N.E.2d 769, 771 (Mass. 1954). Rather, the older practice was to sue "certain named persons as fairly representative of all the members." Id. That practice is now further authorized by the Massachusetts Rules of Civil Procedure. See Mass. R. Civ. P. 23.2 (permitting action to be brought against members of an unincorporated association as a class by naming certain members as representative parties if it appears that the representative parties will fairly and adequately protect the interests of the association and its members).
The plaintiffs do not seek to invoke Massachusetts Rule 23.2 or the common
law principle which it codifies. They do not assert, either in their second amended complaint or in their argument in response to the pending motions to dismiss, that one or more of the individual defendants is sued in a representative capacity on behalf of the membership of NAMBLA. Rather, they urge this Court to extend to NAMBLA a limited exception recognized in the Massachusetts cases that permits labor unions, and perhaps other organizations having similar well-developed and regular structures, to be sued directly as entities. See DiLuzio v. United Elec. Radio and Mach. Workers of Am., Local 274, 386 Mass. 314, 435 N.E.2d 1027, 1031 & n.6 (Mass. 1982). To the extent they are asking this Court to extend the exception as a legal matter, the invitation must be rejected. That is a question for the state courts to entertain. To the extent that the plaintiffs contend that as a factual matter the structure and operations of NAMBLA are sufficiently similar to those of a labor union to be entitled to the benefit of the existing Massachusetts rule, the suggestion is also rejected. The documents submitted by the plaintiffs show that NAMBLA's organization and operations are considerably more irregular than those of a labor union.
The plaintiffs have not given a sufficient reason why the prevailing
Massachusetts rule prohibiting a suit against an unincorporated association as a separate entity should not be applied. Accordingly, NAMBLA as an entity must be dismissed from the suit.
7. Personal Jurisdiction
Under Massachusetts law, the Court may exercise personal jurisdiction over a
nonresident who acts:
directly or by an agent, as to a cause of action in law or equity
arising from the person's (a) transacting any business in this
commonwealth; (b) contracting to supply services or things in this
commonwealth; (c) causing tortious injury by an act or omission in
this commonwealth; (d) causing a tortious injury in this commonwealth
by an act or omission outside this commonwealth if he regularly does
or solicits business, or engages in any other persistent course of
conduct, or derives substantial revenue from goods used or consumed or
services rendered, in this commonwealth.
Mass. Gen. Laws ch. 223A, § 3.
A claim "arise from" activity in this Commonwealth if a defendant's
contacts with Massachusetts "constitute 'the first step in a train of events that resulted in'" the injury complained of. Lyle Richards Int'l v. Ashworth, Inc., 132 F.3d 111, 114 (1st Cir. 1997) (quoting Tatro v. Manor Care, Inc., 416 Mass. 763, 625 N.E.2d 549, 553 (Mass. 1994)). The First Circuit has noted that, as interpreted by the Massachusetts Supreme Judicial Court, the "transacting any business" provision "is not limited to commercial activity by the defendant, but rather is general and applies to purposeful acts by an individual, whether personal, private, or commercial." Nova Biomedical Corp. v. Moller, 629 F.2d 190, 193 (1st Cir. 1980). Moreover, "the dissemination, on a persistent basis, of advertising, print and electronic, aimed at cultivating a market area in Massachusetts, without any other contact in Massachusetts" constitutes "transacting business" for purposes of the long-arm statute. Gunner v. Elmwood Dodge, Inc., 24 Mass. App. Ct. 96, 506 N.E.2d 175, 175 (Mass. App. Ct. 1987). To determine whether the plaintiff has made a sufficient showing to establish that the Court has personal jurisdiction over the defendants, the Court should "take specific facts affirmatively alleged by the plaintiff as true (whether or not disputed) and construe them in the light most congenial to the plaintiff's jurisdictional claim." Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 34 (1st Cir. 1998).
The Court's exercise of personal jurisdiction under Massachusetts' long-arm
statute also must be consistent with the constitutional requirement of due process. Foster-Miller Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 145 (1st Cir. 1995). The Supreme Judicial Court of Massachusetts has interpreted the state's long-arm statute "as an assertion of jurisdiction over the person to the limits allowed by the Constitution." Automatic Sprinkler Corp. of Am. v. Seneca Foods Corp., 361 Mass. 441, 280 N.E.2d 423, 424 (Mass. 1972). "The Due Process Clause protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful 'contacts, ties, or relations.'" Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 319, 90 L. Ed. 95, 66 S. Ct. 154 (1945)). "Due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" International Shoe, 326 U.S. at 316 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 85 L. Ed. 278, 61 S. Ct. 339 (1940)); see also Daynard v. Ness, Motley, Loadholt, Richarson & Poole, P.A., 290 F.3d 42, 52 (1st Cir. 2002). This "minimum contacts" requirement is met if the defendant "purposefully avails of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 78 S. Ct. 1228 (1958).
To establish personal jurisdiction over a nonresident defendant in a tort
claim, under the due process clause, the plaintiffs must show a sufficient causal nexus between defendant's contacts with the forum state and plaintiff's causes of action. Jet Wine & Spirits, Inc. v. Bacardi & Co. Ltd., 298 F.3d 1, 7 (1st Cir. 2002). The contacts need not be undertaken directly by the individual, nonresident defendants. Id. Rather, plaintiffs may rely in whole or in part on actions imputed to the defendants by their agents. Id.
Three of the individual defendants named in this case -- William Andriette,
Thomas Reeves, and Robert Rhodes -- are residents of Massachusetts. As to them, there is no question of personal jurisdiction.
The other defendants claim that this Court may not exercise personal
jurisdiction over them because of their nonresident status and because their individual participation in NAMBLA and its activities were not directed specifically at persons in Massachusetts. The defendants fail to acknowledge, however, that virtually all them -- both those living in Massachusetts and those living elsewhere -- served as members of NAMBLA's national Steering Committee ( "Steering Committee"), a group which purposefully directed NAMBLA's outreach activities generally and, in particular, purposefully directed those activities into Massachusetts.
The materials submitted by the plaintiffs support the following facts. The
Steering Committee served as NAMBLA's executive body, directing and supervising the organization's functions. NAMBLA was established as an unincorporated association in 1978 to encourage public acceptance of consensual sexual relationships between men and boys. Its principal place of business is New York, and its primary mechanisms of public outreach include its "Bulletin," a quarterly publication sent to dues-paying members, including Jaynes; Gayme Magazine, a NAMBLA publication mailed periodically to dues-paying members and sold at some bookstores; a NAMBLA website, allegedly accessed by Jaynes from the Boston Public Library immediately before he abducted Jeffrey Curley; TOPICS, a series of booklets providing more focused consideration of issues related to "man-boy love"; a prison newsletter; Ariel's Pages, a NAMBLA project through which literature concerning "man-boy love" was sold; and membership conferences. The Steering Committee, through several of its members, also formed "Zymurgy, Inc.," a Delaware corporation, which was operated as a profit-making arm of NAMBLA. Although the defendants describe the Bulletin, Gayme Magazine, Ariel's Pages, and Zymurgy, Inc. as separate and distinct from NAMBLA, it appears from the materials submitted, including minutes of Steering Committee meetings, that the Steering Committee controlled all of these entities, providing monies to initiate and support various projects and freely transferring funds among them. n2
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n2 For example, the Steering Committee used funds from NAMBLA to support
Zymurgy, Inc. and vice versa. William Andriette, a Steering Committee member residing in Massachusetts and the editor of NAMBLA's membership publication, the "Bulletin," served as an officer of Zymurgy. Steering Committee members Andriette, Robert Rhodes, Peter Melzer, and Gary Hann were authorized to write checks on behalf of NAMBLA and Zymurgy. NAMBLA and Zymurgy checks bear an identical New York post office box address. Some checks drawn on NAMBLA's bank account carried the notation "NAMBLA d/b/a Zymurgy." Steering Committee members Andriette, Dennis Bejin, and Hann applied to the Massachusetts Secretary of State for a "Foreign Corporation Certificate" on behalf of Zymurgy, Inc. In their application, they listed "325 Huntington Avenue, Boston," as their address, which was also the mailing address for NAMBLA's Bulletin and Gayme Magazine, publications produced by Andriette. They also indicated that if the exact name "Zymurgy" was not available for use in Massachusetts, they were prepared to transact business in Massachusetts under the name "Gayme." Zymurgy, Inc., the Bulletin, and Gayme Magazine apparently maintained one or more accounts at the Shawmut Bank in Massachusetts to further their activities. Generally, to protect the anonymity of individual members and protect NAMBLA from unwanted public controversy, arrangements for Steering Committee meetings and general membership conferences were made under the obscure name "Zymurgy," rather than the more notorious "NAMBLA."
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Thus, although the Steering Committee may have attempted to keep NAMBLA
legally separate from the Bulletin, Gayme Magazine, Ariel's Pages, and Zymurgy, Inc., the distinctions were purely formal and did not reflect the reality that the Steering Committee routinely disregarded the separate legal forms when it seemed convenient to do so. The evidence indicates that the monies generated by the association's profit centers (the Bulletin, Gayme Magazine, and book sales through "Ariel's Pages") were used to pay for all NAMBLA-related expenses, including creating and distributing publications, organizing conferences, hiring legal counsel, and paying for office space, equipment, and telephone services. NAMBLA's treasurer regularly tracked the income and expenses of each of these activities and gave detailed reports to the Steering Committee.
In addition to managing NAMBLA's financial matters, the Steering Committee
also directed the association's policy, political, legal, and public relations efforts. Steering Committee members held frequent meetings and retreats during which they discussed NAMBLA's public image, formulated the association's outreach efforts, and nominated spokespersons. Members of the Steering Committee in close coordination with each other, created and maintained NAMBLA's website, and wrote, marketed, sold, and otherwise disseminated a variety of publications. n3 Working in Massachusetts, Andriette served as the editor of the Bulletin and Gayme Magazine. He did not act alone but rather under the supervision of the Steering Committee in producing these publications and in holding himself out as a NAMBLA spokesman. In addition to the financial support and supervision provided by the full Steering Committee, the content of the Bulletin was guided by the "Bulletin Collective," an editorial board comprised of NAMBLA members from across the country who contributed and edited articles, screened photos and pictures, and participated in coordinating the production and distribution of the publication.
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n3 The plaintiffs allege that Charles Jaynes accessed NAMBLA's website from
the Boston Public Library shortly before he abducted Jeffrey Curley.
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The extent to which the Steering Committee exercised control over
NAMBLA's image and its members' public outreach efforts is illustrated by the Committee's removal of Leyland Stevenson from its ranks. A long-time member of the Steering Committee and one of the organization's spokespersons, Stevenson on several occasions spoke directly to the media about "man-boy love" in a way that brought unwanted controversy to the organization. According to the minutes of a Steering Committee meeting held on February 2, 1995, members voted him off the Committee because he had a different agenda and was not "prepared to subsume his will to the group's will." In sum, there is ample support in the record for the conclusion that the financial, political, legal, and public outreach activities of NAMBLA, Zymurgy, Inc., the Bulletin, Ariel's Pages, and Gayme Magazine were managed by NAMBLA's Steering Committee to further the organization's purposes.
The records submitted belie the defendants' protestations that their
activities were not directed into Massachusetts. The materials show that the Steering Committee controlled or substantially influenced the Massachusetts activities of Andriette and the other two Massachusetts residents, Reeves and Rhodes. Consequently, consistent with the long-arm and constitutional standards, the Court may exercise jurisdiction not only over those members of NAMBLA's Steering Committee who resided in Massachusetts but also many of those who resided in other States. The Court briefly examines the existence of personal jurisdiction over each of the nonresident defendants as follows: n4
Dennis Bejin has been a resident of the State of Washington since 1973. He
served as a member of NAMBLA's Steering Committee. In 1995, Bejin joined in applying to the Massachusetts Secretary of State for a "Foreign Corporation Certificate" on behalf of Zymurgy, Inc., through which NAMBLA conducted some of its business affairs and paid its bills. In the application, Bejin is listed as the "President/Vice President" of Zymurgy. Bejin was also a member of the Bulletin Collective, the editorial board for the publication. He attended numerous Steering Committee meetings. Bejin directly availed himself of the benefits of transacting business in Massachusetts by applying for a Foreign Corporation Certificate from the Commonwealth's Secretary of State. In addition, as a member of NAMBLA's Steering Committee, he participated in controlling and directing the actions of Andriette, Reeves, Rhodes, and others as they purposefully engaged in public outreach activities conducted in or directed into Massachusetts on behalf of NAMBLA. Personal jurisdiction exists over Dennis Bejin.
Joe Power asserts that he has been a resident of California for years, but he
is listed in NAMBLA's Steering Committee directory as having a Florida mailing address. Power was a member of the Steering Committee. He assisted with NAMBLA's website by training members to run the website's various programs. For three months in 1997, Power used his own credit card to pay a Massachusetts-based internet service provider that hosted NAMBLA's webpage. Records reflect his participation at Steering Committee meetings between November 1994 and January 1996. In 1995, Power was designated an official spokesman for NAMBLA. Power directly availed himself of the benefits of transacting business in Massachusetts by paying for NAMBLA's website with his own credit card. In addition, as a member of NAMBLA's Steering Committee, he participated in controlling and directing the actions of Andriette, Reeves, Rhodes and others as they purposefully engaged in public outreach activities conducted in or directed into Massachusetts on behalf of NAMBLA. Personal jurisdiction exists over Joe Power.
David Thorstad has been a resident of St. Paul, Minnesota since approximately
1992. Thorstad has been a member of NAMBLA since 1978, and served as a member of the Steering Committee from some undetermined time until September 1996. He is listed as a member of the Bulletin Collective, though he claims he "had no role in producing" the publication. He did contribute letters and articles to the Bulletin, and one of his articles was also posted on NAMBLA's webpage. In 1995, he was nominated to be an official NAMBLA spokesman. As a member of NAMBLA's Steering Committee, he participated in controlling and directing the actions of Andriette, Reeves, Rhodes, and others as they purposefully engaged in public outreach activities conducted in or directed into Massachusetts on behalf of NAMBLA. Personal jurisdiction exists over David Thorstad.
David Miller (also known as David Menasco) is a resident of San Francisco,
California. He has served as a member of NAMBLA's Steering Committee since 1992. Miller has helped maintain NAMBLA's webpage and has served as an editor of NAMBLA publications from as early as 1995. As a member of NAMBLA's Steering Committee, he participated in controlling and directing the actions of Andriette, Reeves, Rhodes, and others as they purposefully engaged in public outreach activities conducted in or directed into Massachusetts on behalf of NAMBLA. Personal jurisdiction exists over David Miller.
Peter Melzer (also known as Peter Herman) is a resident of New York. He
served as a member of NAMBLA's Steering Committee. Herman helped to write text for NAMBLA's website and for its publications. He was responsible for checking the organization's mailbox in New York, sending out membership information to those who requested it, and preparing fundraising correspondence. In one of the documents submitted by the plaintiffs, Melzer, explaining the rationale for registering Zymurgy, Inc. in New York, described the interrelationship of the various NAMBLA ventures: "We obtain the powerful DBA (doing business as) tool. We are already doing business as Gayme, Wallace Hamilton Press, NAMBLA publications, as well as NAMBLA itself." As a member of NAMBLA's Steering Committee, Melzer participated in controlling and directing the actions of Andriette, Reeves, Rhodes, and others as they purposefully engaged in public outreach activities conducted in or directed into Massachusetts on behalf of NAMBLA. Personal jurisdiction exists over Peter Melzer
Max Hunter (also known as Frank Rhuland) has resided in Florida since 1994.
Before 1994, he lived in New Hampshire and in other places. Although his name is listed on the Bulletin masthead as a member of the Bulletin Collective, he asserts that he was never a member of the group that produced the Bulletin and never did anything to help produce the Bulletin. (It does appear that he contributed short stories and an excerpt from one of his books to the Bulletin.) He also asserts that he was never a member of the Steering Committee. He is not listed in any of the Steering Committee directories or other records submitted by the plaintiffs. The plaintiffs have not established that Hunter was a member of NAMBLA's Steering Committee, and there is no other evidence that he helped to control and direct the actions of Andriette, Reeves, Rhodes, and others in their public outreach activities in Massachusetts on behalf of NAMBLA. Personal jurisdiction of Hunter is thus lacking, and Hunter's motion to dismiss is granted.
Arnold Schoen (also known as Floyd Conaway) is a resident of California and
has been a member of NAMBLA's Steering Committee. Schoen has also served as part of the Bulletin Collective. He has been involved in choosing the content for and running NAMBLA's webpage. From the documents submitted, it appears that Schoen served in some kind of a financial decision-making capacity for NAMBLA during 1995 and 1996. As an active member of NAMBLA's Steering Committee, Schoen participated in controlling and directing the actions of Andriette, Reeves, Rhodes, and others as they purposefully engaged in public outreach activities conducted in or directed into Massachusetts on behalf of NAMBLA. Personal jurisdiction exists over Arnold Schoen.
Dennis Mintun is a resident of San Lorenzo, California. Mintun was authorized
by the Steering Committee to collect Gayme Magazine's receivables. He is mentioned as a NAMBLA spokesman. He attended Steering Committee meetings. It appears that he participated in the formation and execution of NAMBLA's activities purposefully directed into Massachusetts. Personal jurisdiction exists over Dennis Mintun.
Jonathan M. Tampico answered the plaintiffs' complaint informing the Court he
is incarcerated in Pennsylvania. His pro se answer includes the affirmative defense of lack of personal jurisdiction. Because his pleading was filed pro se, the Court will liberally construe it as also presenting a motion to dismiss for lack of personal jurisdiction. Tampico asserts that he was never a member of NAMBLA and never served on its Steering Committee. Tampico is not listed in any of the Steering Committee directories submitted by the plaintiffs, and his name does not appear in any of the other NAMBLA records submitted. In a stipulation filed January 11, 2002, NAMBLA stated it had no record or knowledge of Tampico's address. The plaintiffs have failed to offer facts sufficient to establish personal jurisdiction over Tampico, and the complaint is dismissed as to him.
Chris Farrell has resided in New York since 1983. As a member of NAMBLA,
Farrell oversees "Ariel's Pages," pursuant to a "d/b/a certificate" filed in New York. By selling books, pamphlets, and other literature for profit, Ariel's Pages was intended to fill in a gap in NAMBLA's publications program. In addition to Gayme Magazine, Ariel's Pages was considered one of NAMBLA's "major physical assets." Although Farrell was supposed to be paid from profits from sales, NAMBLA supported his efforts directly. For example, NAMBLA paid for books, office equipment, and advertising for Ariel's Pages. Farrell was not listed in any of the Steering Committee directories submitted by the plaintiffs. However, his trusted role within the association indicates that he was a member of the NAMBLA's leadership group. As such, he participated in NAMBLA's activities that were directed into Massachusetts. Personal jurisdiction exists over Chris Farrell.
Tim Bloomquist resides in New York. As a member of NAMBLA's Steering
Committee, Bloomquist served as the chair of the membership committee. He signed fundraising letters sent to members, attended steering committee meetings, and signed NAMBLA checks to pay for teleconferencing bills and advertising for NAMBLA publications. As a member of NAMBLA's Steering Committee, Bloomquist participated in controlling and directing the actions of Andriette, Reeves, Rhodes, and others as they purposefully engaged in public outreach activities conducted in or directed into Massachusetts on behalf of NAMBLA. Personal jurisdiction exists over Tim Bloomquist.
Tecumseh Brown has resided in Rhode Island since 1994. Brown served on the
NAMBLA Steering Committee. He was a member of the Bulletin Collective and wrote and edited articles in the Bulletin. In 1996 and 1997, Brown stayed in Massachusetts for several-day periods while working for a Boston-based production company as a script writer, but it is not clear that this employment was related to NAMBLA's activities. Nevertheless, as a member of NAMBLA's Steering Committee, Brown participated in controlling and directing the actions of Andriette, Reeves, Rhodes, and others as they purposefully engaged in public outreach activities conducted in or directed into Massachusetts on behalf of NAMBLA. Personal jurisdiction exists over Tecumseh Brown.
Bruce Braverman has resided in New York State for many years. Braverman
joined NAMBLA as a general member in 1982 or 1983. He asserts that he did not serve on NAMBLA's Steering Committee, although records indicate his attendance at at least one meeting in May 1995. He is not listed in the Steering Committee directories included in the materials submitted by the plaintiffs. The evidence is insufficient to establish that Braverman participated directly or through cooperation with others in NAMBLA's activities conducted in or directed into Massachusetts. The plaintiffs have not established that personal jurisdiction exists over Bruce Braverman, and his motion to dismiss on that ground is granted.
Gary Hann is a resident of Michigan. He joined NAMBLA in 1994, and became a
member of the organization's Steering Committee in 1995, serving as the group's treasurer. In this capacity, he tracked NAMBLA's income and expenses, paid its bills, and generally maintained all of the association's financial and other business records. Hann organized the Steering Committee's meetings and produced minutes of their meetings. As a member of the Steering Committee, he participated in controlling and directing the actions of Andriette, Reeves, Rhodes, and others as they purposefully engaged in public outreach activities conducted in or directed into Massachusetts on behalf of NAMBLA. Personal jurisdiction exists over Gary Hann.
Peter Reed (also known as Rock Thatcher) has resided in Arizona since 1960,
except for a three and one-half year period from 1986 through 1990, when he lived in Florida. He served on NAMBLA's Steering Committee and was involved in making NAMBLA's publications available to men incarcerated in prisons around the country. There is evidence that some of these publications were directed to inmates in Massachusetts penal institutions. Accordingly, it appears that Reed participated in activities purposefully directed into Massachusetts sufficient to provide a basis for personal jurisdiction over him.
Robert Schwartz is a resident of Georgia. A member of NAMBLA since 1980,
Schwartz served on the Steering Committee for three years, beginning in June 1994. As a member of the Steering Committee, he participated in controlling and directing the actions of Andriette, Reeves, Rhodes, and others as they purposefully engaged in public outreach activities conducted in or directed into Massachusetts on behalf of NAMBLA. Personal jurisdiction exists over Robert Schwartz.
Walter Bieder is a resident of San Diego, California. Bieder was a member of
NAMBLA's Steering Committee. As such, he participated in controlling and directing the actions of Andriette, Reeves, Rhodes, and others as they purposefully engaged in public outreach activities conducted in or directed into Massachusetts on behalf of NAMBLA. Personal jurisdiction exists over Walter Bieder.
Leyland Stevenson is a resident New York State. He served on the NAMBLA
Steering Committee as membership secretary and as an official NAMBLA spokesman. He was removed from the Steering Committee by majority vote in February 1995 because, while acting as a representative of NAMBLA, he failed to follow the Committee's direction, and consequently brought unwanted controversy to the organization. Stevenson's active participation in the Steering Committee until his removal helped to control and direct the actions of Andriette, Reeves, Rhodes, and others as they purposefully engaged in public outreach activities on behalf of NAMBLA conducted in or directed into Massachusetts. Personal jurisdiction exists over Leyland Stevenson.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n4 Defendant Roy Radow's request that the Court reconsider its prior ruling
that he had waived any objection to personal jurisdiction by failing to present it in his first motion or responsive pleading is denied.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
8. Failure to State a Claim upon Which Relief Can Be Granted
The defendants renew their attack on the plaintiffs' theory of liability. In
its September 2001 ruling, the Court rejected the argument and now adheres to that ruling, recalling that, on a motion under Fed. R. Civ. P. 12(b)(6) a claim should be dismissed "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations" of the complaint. Gorski v. N.H. Dep't of Corr., 290 F.3d 466, 473 (1st Cir. 2002) (citing Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984)).
9. Short and Plain Statement
Finally, the defendants object that the second amended complaint violates the
requirement of Fed. R. Civ. P. 8(a) that such a pleading set forth a "short and plain statement of the claim." It is certainly true that the second amended complaint, like the prior versions of the complaint, is long and detailed. But the Court of Appeals has cautioned that dismissal of a complaint for violation of the "short and plain statement" requirement is a severe sanction that should not be lightly applied, the policy of the law strongly preferring that cases be addressed on their merits. See Kuehl v. Fed. Deposit Ins. Corp., 8 F.3d 905, 908 (1st Cir. 1993). This complaint is not so offensive as to justify dismissal because it is not "short and plain."
10. Other Defendants
A suggestion of death was filed indicating that the defendant Rennato Corazza
died on or about July 9, 2002. In addition, NAMBLA says it has no record or knowledge of the defendant Charles Lee Dodson. There is no record of Dodson being served with process. It is likely that the name is a pseudonym. Corazza and Dodson are dismissed as defendants.
11. Conclusion
For the reasons set forth above, all pending motions to dismiss are DENIED,
except: (1) the motions to dismiss the claim under 42 U.S.C. § 1985(3) is GRANTED; (2) the motions to dismiss for want of personal jurisdiction made on behalf of defendants Braverman, Hunter, and Tampico are GRANTED; and (3) the motion to dismiss the action as against the unincorporated association NAMBLA is GRANTED. For administrative reasons, the defendants Corazza and Dodson are dismissed from the case.
It is SO ORDERED.
March 31, 2003 DATE
George A. O'Toole, Jr.
DISTRICT JUDGE
11 of 23 DOCUMENTS
BARBARA CURLEY, et al., Plaintiffs v. NORTH AMERICAN MAN BOY
LOVE ASSOCIATION, et.al., Defendants
CIVIL ACTION NO. 00-10956-GAO
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS
2003 U.S. Dist. LEXIS 12482
March 31, 2003, Decided
SUBSEQUENT HISTORY: Claim dismissed by, Dismissed by, in part Curley v. N. Am. Man Boy Love Ass'n, 2003 U.S. Dist. LEXIS 12488 (D. Mass., Mar. 31, 2003)
PRIOR HISTORY: Curley v. N. Am. Man Boy Love Ass'n, 2002 U.S. Dist. LEXIS 3090 (D. Mass., Feb. 22, 2002)
DISPOSITION: Motion of several defendants to strike materials submitted by plaintiffs denied.
LexisNexis(R) Headnotes
COUNSEL: For Barbara Curley, Robert Curley, PLAINTIFFS: Lawrence W Frisoli,
Frisoli & Frisoli, Cambridge, MA USA.
For Barbara Curley, Robert Curley, PLAINTIFFS: Patrick T Gillen, Patrick T Gillen, Ann Arbor, MI USA.
For North American Man Boy Love Association, Joe Powers, David Thorstad, David Miller, Peter Herman, Max Hunter, Arnold Schoen, DEFENDANTS: John Reinstein, Civil Liberties Union of Massachusetts, Boston, MA USA.
For North American Man Boy Love Association, Roy Radow, Joe Powers, David Thorstad, David Miller, Peter Herman, Max Hunter, Arnold Schoen, William Andriette, Peter Melzer, DEFENDANTS: Sarah Wunsch, Mass Civil Liberties Union FDN, Boston, MA USA.
For Bruce Braverman, Tecumseh Brown, DEFENDANTS: Robert C Plotkin, Concord, MA USA.
Christopher Farrell, DEFENDANT, Pro se, New York, NY USA.
Dennis Bejin, DEFENDANT, Pro se, Seattle, WA USA.
Timothy Bloomquist, DEFENDANT, Pro se, Brooklyn, NY USA.
Gary Hann, DEFENDANT, Pro se, Ann Arbor, MI USA.
Peter Reed, DEFENDANT, Pro se, Phoenix, AZ USA.
Thomas Reeves, DEFENDANT, Pro se, Boston, MA USA.
For Robert Schwartz, DEFENDANT: Elizabeth A Lunt, Zalkind, Rodriquez, Lunt & Duncan, Boston, MA USA.
Rennato Corazza, DEFENDANT, Pro se, New York, NY USA.
Leyland Stevenson, DEFENDANT, Pro se, New York, NY USA.
JUDGES: George A. O'Toole, Jr., DISTRICT COURT.
OPINIONBY: George A. O'Toole, Jr.
OPINION:
MEMORANDUM AND ORDER ON MOTION TO STRIKE
March 31, 2003
O'TOOLE, D.J.
The defendants North American Man Boy Love Association ("NAMBLA"), Radow,
Power, Thorstad, Miller, Herman, Hunter, Schoen (Conaway), Melzer, Andriette, Braverman, Brown, and Schwartz have jointly moved to strike all or significant portions of the plaintiffs' response to the defendants' motions to dismiss, previously filed. What they seek to strike are materials (and argument based on them) that the plaintiffs obtained from Gary Hann, a former member of NAMBLA's steering committee. Three grounds are asserted in support of the motion to strike. First, the movants say that the plaintiffs' lawyers conducted ex parte interviews of Hann in violation of Massachusetts Rules of Professional Conduct, Rule 4.2 ("Rule 4.2"). Second, they say that the plaintiffs violated other ethical, and perhaps even criminal, proscriptions in obtaining information about NAMBLA and its activities from Hann. And finally, they assert that the plaintiffs' inclusion of Hann as a defendant in the second amended complaint filed in November 2001 after they had given him a general release was done to mislead the defendants and amounted to a fraud on the Court.
After consideration of the parties' written submissions and their oral
arguments, the motion to strike is DENIED for the reasons set forth herein.
I. Pertinent Facts
The following facts appear from the several affidavits submitted by the
parties with respect to the issues raised by the motion to strike:
Gary Hann, a resident of Ann Arbor, Michigan, joined NAMBLA in about June
1994. He became a member of the national steering committee of NAMBLA and was appointed treasurer of NAMBLA in August 1995. As a result of his service in these positions, Hann obtained, and thereafter retained, a varied collection of documents pertaining to NAMBLA's affairs, including minutes of meetings, correspondence among members of the steering committee, some financial records, such as statements of assets and copies of negotiated checks, and other miscellaneous materials. Hann resigned from NAMBLA in August 1996, after serving about a year as its treasurer.
In about October 2000, Hann apparently learned of this suit from a television
program. "Appalled to hear about the death" of Jeffrey Curley, he contacted Lawrence Frisoli, one of the plaintiffs' counsel, who had appeared on the program, and offered to "help with his case." Frisoli arranged for Hann to speak with Patrick Gillen, another of the plaintiffs' counsel, who coincidentally and conveniently had an office near where Hann lived. According to one of Hann's affidavits:
I met several times with Patrick Gillen who interviewed me for three
to four hours. I gave him several boxes of documents, many of which I
had obtained or maintained in my capacity as Treasurer of NAMBLA. In
January 2001, in exchange for my providing information about NAMBLA
and giving him the materials, Gillen, on behalf of Lawrence Frisoli,
signed a release of all claims against me relating to NAMBLA and the
death of Jeffrey Curley.
According to an affidavit by Mr. Frisoli:
Hann also asked if he could be compensated for the time it would
take for him to collect materials and meet with us. Ultimately I
agreed to pay Hann five hundred dollars for the time he spent
collecting the materials and meeting with Mr. Gillen to tell us what
he knew about NAMBLA, his activities in NAMBLA, and the activities of
the group.
Notwithstanding the release given Hann in January 2001, the plaintiffs named
him as a defendant in a related case, Curley v. Andriette, Docket No. 01-11643-GAO, filed September 25, 2001, as well as in the second amended complaint filed in this case November 1, 2001. The affidavits conflict as to why the plaintiffs sued Hann after releasing him. Hann says that Gillen told him that it was necessary to name him along with all the other members of the steering committee because omitting his name would lead the other defendants to conclude that he had cooperated with the plaintiffs, but that Hann need not worry because Gillen would not file any proof of service, making the claims against Hann subject to dismissal. On the other hand, Frisoli says that after giving the release, he discovered that Hann had not been truthful in all the information provided. He concluded that Hann had thus "secured the release by fraud," and consequently he had decided that Hann ought to be sued along with the other members of the NAMBLA steering committee, notwithstanding the release, which the plaintiffs argue is voidable.
II. Rule 4.2
At the time of the communications between the plaintiffs' lawyers and Hann,
Rule 4.2 provided:
In representing a client, a lawyer shall not communicate about the
subject of the representation with a person the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the
consent of the other lawyer or is authorized by law to do so.
The defendants' argument is that Hann fell within the scope of representation
provided by counsel representing NAMBLA in this case so as to make Rule 4.2 applicable and thus to prohibit the communications between Frisoli or Gillen and Hann without the consent of NAMBLA's counsel. The argument lacks merit.
At the most basic level, it is clear that Hann was not formally represented
either by counsel for NAMBLA or by any other lawyer, when he talked to Frisoli and Gillen. Nor was he at the time of the contact a member of NAMBLA, so that even if the lawyers representing NAMBLA as an organization necessarily represented every current member, Hann was not included within the scope of that representation.
The defendants' argument that Hann was "represented" by NAMBLA's lawyers
relies on an implication to be drawn from an interpretive comment to Rule 4.2. At the time of the communications between the plaintiffs' lawyers and Hann, comment 4 to Rule 4.2 read as follows:
In the case of an organization, this Rule prohibits communications
by a lawyer for another person or entity concerning the matter in
representation with a person having managerial responsibility on
behalf of the organization with regard to the subject matter of the
representation, and with any other person whose act or omission in
connection with that matter may be imputed to the organization for
purposes of civil or criminal liability, or whose statement may
constitute an admission on the part of the organization.
At the time of the communications in issue, Hann had no ongoing relationship
with the organization. He was at that time neither a person then "having managerial responsibility on behalf of the organization" nor one "whose statement may constitute an admission on the part of the organization." The latter category of persons has been construed by the Massachusetts Supreme Judicial Court ("SJC") to refer not to persons who might make statements admissible under rules of evidence similar to Fed. R. Evid. 801(d)(2)(D), but rather more limitedly to persons who can "commit the organization to a position regarding the subject matter of the representation." Messing, Rudavsky & Weliky v. President and Fellows of Harvard Coll., 436 Mass. 347, 764 N.E.2d 825, 833 (Mass. 2002) (citations and internal quotation marks omitted). That is, the "employees with whom contact is prohibited are those with 'speaking authority' for the who 'have managing authority sufficient to give them the right to speak for, and bind, the ." Id. Thus, according to the SJC, Rule 4.2 prohibits "ex parte contact only with those employees who exercise managerial responsibility in the matter, who are alleged to have committed the wrongful acts at issue in the litigation, or who have authority on behalf of the to make decisions about the course of the litigation." Id.
Hann might, however, be considered a person "whose act or omission in
connection with subject matter of the representation] may be imputed to the organization for purposes of civil or criminal liability" if the plaintiffs were to seek to use any acts done by Hann during the time of his membership, and particularly his participation in the steering committee, to establish liability against NAMBLA in this case. Rule 4.2 cmt. 4. It is not clear that they do not, especially since they have joined him as a defendant, and so it may be assumed for present purposes that they would wish to impute Hann's actions as a member of the steering committee to NAMBLA in this litigation.
To what extent Rule 4.2 extends its prohibition to former members of an
organization like Hann is unsettled. See Patriarca v. Ctr. for Living & Working, Inc., 438 Mass. 132, 778 N.E.2d 877, 883 (Mass. 2002) (declining to address the "general applicability of rule 4.2 to former employees"). While there may be former members or employees of an organization who continue to have some relationship with the organization with respect to the subject matter of the representation so that the rule should apply, there will probably be relatively few former members or employees who satisfy any of the three tests described in Messing. 436 Mass. 347, 764 N.E.2d 825. One example might be where there is actual formal representation of the former employee by counsel for the organization, as under a joint defense or other indemnification arrangement. Or a special ad hoc agency relationship might arise in the context of particular litigation.
However, neither the text of Rule 4.2 or of comment 4 to it, nor the purpose
sought to be served by the rule, argues for its application to a former member of an organization solely because the person's own acts done, when the person was a member, might later be a basis for holding the organization liable. It must be remembered that the purpose of Rule 4.2 is not to "protect a corporate party from the revelation of prejudicial facts," Messing, 764 N.E.2d at 833 (citations and internal quotation marks omitted), but rather to "protect the attorney-client relationship and prevent clients from making ill-advised statements without the counsel of their attorney." Id. at 833-34. A former member of an organization like NAMBLA does not become a present "client" of NAMBLA's attorneys just because the member did something in the past that can be imputed to the organization. The construction argued for by the defendants would permit organizations to maintain a broad ability to monitor information that might be communicated to potential adversaries by former employees or members. It would, for example, require the presence of a corporation's lawyers before a formerly employed wrongdoer-turned-whistleblower could be interviewed by persons outside the corporation. The SJC has clearly indicated in Messing that that is not a direction in which the interpretation of Rule 4.2 should be pushed.
The Court concludes that plaintiffs' counsel did not violate Rule 4.2 in
communicating with Hann.
III. Other Ethical Transgressions
The defendants also argue that the plaintiffs' counsel acted unethically in
threatening Hann with criminal prosecution solely to obtain a benefit in a civil case and in paying him $ 500 for his information.
In the release given to Hann, the plaintiffs agreed that they would "not file
a criminal complaint against Hann in connection with the molestation and death of Jeffrey J. Curley." Rule 3.4(h) of the Massachusetts Rules of Professional Conduct forbids a lawyer to "threaten to present criminal . . . charges solely to obtain an advantage in a private civil matter." The important word is "solely." There is no direct evidence that the agreement not to "file" a criminal complaint was solely given because of the coercive value of the reference to possible criminal proceedings, nor is there any reason in the circumstances to draw an inference to that effect. Indications are rather to the contrary. In the course of this litigation it has become evident that the plaintiffs' desire to establish either civil or criminal liability on the part of persons responsible for Jeffrey Curley's death is intense. If it were in their power to initiate criminal proceedings against those they regard as responsible, it seems certain they would do so. In this light, it is not a fair inference that the reference to criminal proceedings in the release was intended only as a threat to obtain cooperation in the civil case. The defendants provide no authority suggesting that Rule 3.4(h) covers the situation where criminal proceedings would be intended but are foregone, as are civil remedies, as part of a complete release. In the absence of any such authority, in the present circumstances this Court concludes there was no violation of Rule 3.4(h).
The defendants also say that the plaintiffs' payment of $ 500 to Hann can be
considered a bribe paid to him for his information. They contend that the payment may have been criminal under Michigan law because it induced Hann to violate his fiduciary duty to NAMBLA with respect to the information delivered to the plaintiffs.
In the first place, there is no reason to conclude on the facts available
that Hann had, at the time of his communications with the plaintiffs' lawyers, any fiduciary obligation to NAMBLA. He had terminated his relationship with NAMBLA -- including his office as treasurer -- four years earlier and, so far as appears, had no existing relationship with the organization, even assuming (but not deciding) that when a member he would have had a fiduciary duty to NAMBLA as an organization or to other members. The fact that he had retained papers from the time he participated in the screening committee does not, without more, establish any duty with respect to the papers, such as maintaining their confidentiality. There is no information in the record concerning what policies may have existed about maintaining documents, the circumstances under which they were put in Hann's possession, what the understandings were between NAMBLA and its members about such matters, and so on. See generally, Jet Spray Cooler, Inc. v. Crampton, 361 Mass. 835, 282 N.E.2d 921, 924 (Mass. 1972) (stating that under Massachusetts law "whether the information sought to be protected is, in fact and in law, confidential . . . . depends on the conduct of the parties and the nature of the information," and identifying the factors listed in Restatement (First) of Torts § 757 cmt. b as guides to the determination).
Reimbursement given to a person for reasonable expenses incurred in
connection with an interview or making copies of documents is not necessarily improper. On the other hand, the payment of money to a potential witness raises the possibility of the "sale" of information, and any lawyer's participation in such a barter deserves a close look. Rule 3.4(b) of the Massachusetts Rules of Professional Conduct declares it to be unethical for a lawyer to "offer an inducement to a witness that is prohibited by law." The defendants do not invoke Rule 3.4(b) in support of their argument that the $ 500 payment was unethical, perhaps because they doubt their ability to establish that the "inducement" was "prohibited by law." Comment 3 to Rule 3.4(b) states, in part, that "it is not improper to pay a witness's expenses." Although there does not appear to be any Massachusetts judicial authority interpreting or applying Rule 3.4(b) or comment 3, an ABA ethical opinion issued with respect to the model rule concludes: "A lawyer, acting on her client's behalf, may compensate a non-expert witness for time spent in attending a deposition or trial or in meeting with the lawyer preparatory to such testimony, provided that the payment is not conditioned on the content of the testimony and provided further that the payment does not violate the law of the jurisdiction." ABA Formal Opinion 96-402. In this case, there is no indication that the payment to Hann was conditioned on the content of his "testimony," either in the sense of what he would tell Gillen or what he would agree to say in formal testimony sometime in the future. One of the important factors to be evaluated in determining whether a payment for time and effort was reasonable is the proportionality of the amount paid to the time spent and inconvenience incurred. According to Frisoli's affidavit, Hann was paid $ 500 "for the time it would take to collect materials and meet with us." Hann did assemble "several boxes of documents" and met with Gillen for "three to four hours," according to his own affidavit, or "on a number of occasions," according to Frisoli's affidavit. On the facts available, which are limited and not very detailed, it does not appear that the $ 500 was disproportionate to the time and inconvenience Hann experienced in assembling the information and meeting with Gillen. In short, the defendants have not persuaded this Court that the payment of $ 500 to Hann was improper or unethical.
The perfunctory argument that the defendants "may have" violated Michigan law
by their actions is too undeveloped to merit serious consideration beyond what has been said above.
IV. Inclusion of Hann as a Defendant
Whether the inclusion of Hann as a defendant in the Andriette case and in the
second amended complaint in this case was a "fraud on the court" as the defendants assert or not, it is not a reason to strike otherwise relevant information from consideration. There is obviously an issue to be determined separately whether the release is to be enforced and the claims against Hann dismissed. But the defendants do not proffer facts that would permit the conclusion that the information sought to be stricken had been obtained by fraud. There is no indication in the accounts of what happened that would support a conclusion that the defendants purposely misled Hann by pretending to offer him a release, intending later to repudiate it. Notably, the defendants do not contend there was that kind of "fraud." Rather, their charge is that the plaintiffs intended to make Hann a kind of "mole" defendant. That is not a reason for granting the present motion to strike.
V. Conclusion
For all the foregoing reasons, the motion of the several defendants
identified above to strike the materials submitted by the plaintiffs in support of their opposition to the various motions to dismiss and for other relief is DENIED.
March 31, 2003 DATE
George A. O'Toole, Jr.
DISTRICT COURT
15 of 23 DOCUMENTS
BARBARA CURLEY and ROBERT CURLEY, Administrators of the
Estate of JEFFREY J. CURLEY, Plaintiffs v. NORTH AMERICAN
MAN BOY LOVE ASSOCIATION, JOHN DOES, INC., ROY RADOW, JOSEPH
POWER, DAVID THORSTAD, DAVID MILLER, PETER HERMAN, MAX
HUNTER, and ARNOLD SCHOEN, Defendants
CIVIL ACTION NO. 00-CV-10956-GAO
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS
2002 U.S. Dist. LEXIS 3090
February 22, 2002, Decided
SUBSEQUENT HISTORY: Motion to strike denied by Curley v. N. Am. Man Boy Love Ass 'n, 2003 U.S. Dist. LEXIS 12482 (D. Mass., Mar. 31, 2003)
PRIOR HISTORY: Curley v. N. Am. Man Boy Love Ass'n, 2001 U.S. Dist. LEXIS 18305 (D. Mass. Sept. 27, 2001) Curley v. N. Am. Man Boy Love Ass'n, 2001 U.S. Dist. LEXIS 18305 (D. Mass., Sept. 27, 2001)
DISPOSITION: Defendants' motion to dismiss GRANTED as to the plaintiffs' § 1985(3) claim. In all other respects, the motion for reconsideration DENIED.
LexisNexis(R) Headnotes
COUNSEL: For BARBARA CURLEY, ROBERT CURLEY, Plaintiffs: Lawrence W. Frisoli,
Frisoli & Frisoli, Cambridge, MA.
For BARBARA CURLEY, ROBERT CURLEY, Plaintiffs: Patrick T. Gillen, Ann Arbor, MI.
For NORTH AMERICAN MAN BOY LOVE ASSOCIATION, JOE POWERS, DAVID THORSTAD, DAVID MILLER, PETER HERMAN, MAX HUNTER, ARNOLD SCHOEN, Defendants: Sarah Wunsch, Mass. Civil Liberties Union Fdn., John Reinstein, Civil Liberties Union of Massachusetts, Boston, MA.
JUDGES: George A. O'Toole Jr., DISTRICT JUDGE.
OPINIONBY: George A. O'Toole Jr.
OPINION:
MEMORANDUM and ORDER
February 22, 2002
O'TOOLE, D.J.
The defendants have moved for reconsideration of certain aspects of the Court
's Order entered September 27, 2001, ruling on the defendants' motion to dismiss. In the first place, the defendants correctly noted that the Court omitted to address the defendants' argument that the plaintiffs' claim under 42 U.S.C. § 1985(3) must be dismissed. For the reasons stated below, the defendants ' motion to dismiss is GRANTED as to the plaintiffs' § 1985(3) claim.
In addition, after reconsideration, the Court concludes that the defendant
Joseph Power was not bound by an agreement for the acceptance of service and that he has not yet properly been served with process.
In all other respects, the motion for reconsideration is DENIED.
A. The Claim under 42 U.S.C. § 1985(3)
A claim brought under 42 U.S.C. § 1985(3) n1 requires a plaintiff to "allege
the existence of (1) a conspiracy, (2) a conspiratorial purpose to deprive a person or class of persons, directly or indirectly, of the equal protection of the laws or of equal privileges and immunities under the laws, (3) an overt act in furtherance of the conspiracy, and (4) either (a) an injury to person or property, or (b) a deprivation of a constitutionally protected right or privilege." Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996) (citing Griffin v. Breckenridge, 403 U.S. 88, 102, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971)). The Court of Appeals has understood Griffin to place "a gloss on these four elements, effectively adding a fifth requirement, the statute's references to 'equal protection' and 'equal privileges and immunities under the laws' to signify that a plaintiff may recover thereunder only when the conspiratorial conduct of which he complains is propelled by 'some racial, or perhaps otherwise class-based, invidiously discriminatory animus.'" Aulson, 83 F.3d at 3 (quoting Griffin, 403 U.S. at 102); see also Bray v. Alexandria Women 's Health Clinic, 506 U.S. 263, 268, 122 L. Ed. 2d 34, 113 S. Ct. 753 (1993). This fifth element requires plaintiffs to "allege facts showing that (1) the defendants conspired against them because of their membership in a class, and (2) the criteria defining the class are invidious." n2 Aulson, 83 F.3d at 4.
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N1 42 U.S.C. § 1985(3) reads in part as follows: "If two or more persons in
any State or Territory conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of the equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws . . . in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators."
n2 In Aulson, the court did not reach the question whether the proposed class
would properly fall within the ambit of § 1985(3) because the court concluded that the proposed class was "defined solely on the basis of harm inflicted" and was not cognizable as a class for that reason. Aulson, 83 F.3d at 5.
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The plaintiffs allege that the defendants conspired against boys -- that is,
persons who are both males and minors -- to deprive them of their rights to be free from illegal sexual contact and to enjoy the equal protection of laws prohibiting sexual assault. The plaintiffs argue that males may constitute a cognizable class for equal protection purposes and that minors are frequently protected as a class by the law, so that males who are minors must also constitute a class subject to protection under § 1985(3).
The Supreme Court has not formally decided whether § 1985(3) may be applied
to classes not defined by race, but the Court has clearly said that the statute is not "intended to apply to all tortious, conspiratorial interferences with the rights of others." Griffin, 403 U.S. at 101. "The nature of the 'invidiously discriminatory animus' Griffin had in mind is suggested both by the language used in that phrase ('invidious . . . tending to excite odium, ill will, or envy; likely to give offense; esp., unjustly and irritatingly discriminating,' Webster's Second International Dictionary 1306 (1954)) and by the company in which the phrase is found ('there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus,' Griffin, 403 U.S. at 102 (emphasis added))." Bray, 506 U.S. at 274.
Distinctions based upon a person's status as a minor are not necessarily
invidious. Indeed, legal distinctions between the rights and privileges of minors, on the one hand, and adults, on the other, are traditionally and consistently recognized. The juvenile court system, child-labor laws, and age limitations on the right to marry, to vote, and to drive a car are examples of the non-invidious class-based treatment of minors.
The claim that the defendants are motivated by "invidiously discriminatory
animus" against minor males is belied by the substance of the allegations the plaintiffs make against the defendants. The plaintiffs allege, with support from NAMBLA publications and pronouncements, that the defendants seek to promote the opportunities for men to have sexual relations with boys under the age of consent, despite the existence of laws that prohibit such conduct. Rather than alleging that the defendants seek to discriminate against boys invidiously, the plaintiffs in effect allege that the defendants inappropriately seek to ignore legitimate bases for discriminating between adults and minors. Perhaps it is fair to say the defendants are accused of invidious non-discrimination. At any rate, the claims against them cannot be forced into the template of a cause of action under § 1985(3). The plaintiffs' claim under § 1985(3) must be dismissed.
B. Service of Process
The Court ruled in the September 27, 2001 Order that defendant Power had
agreed that counsel could accept service on his behalf. He has correctly pointed out that he did not join in the agreement made by other defendants. In the absence of an agreement for the acceptance of service on his behalf, the plaintiffs were required to serve him in accordance with Fed. R. Civ. P. 4(e).
Rule 4(e) provides that service "may be effected in any judicial
district of the United States:
(1) pursuant to the law of the state in which the district court is
located, or in which service is effected, for the service of a summons
upon the defendant in an action brought in the courts of general
jurisdiction of the State. . . ."
Defendant Power was not properly served under the Massachusetts Rules of Civil Procedure, and the plaintiffs do not allege that he was properly served under the California Rules of Civil Procedure. Massachusetts Rule of Civil Procedure 4(e) applies to service outside the Commonwealth, and allows service "in any appropriate manner prescribed in subdivision (d) of this Rule." Mass. R. Civ. P. 4(e)(1). Rule 4(d)(1) allows service by leaving copies of the summons and complaint at an individual's "last and usual place of abode." Mass. R. Civ. P. 4(d)(1).
The plaintiffs delivered copies of the summons and complaint to 111 N.
Rengstorff Avenue # 1, Mountain View, California, on September 15, 2000, and mailed the same to that address without a return receipt requested on September 18, 2000. n3 The plaintiffs obtained that address from one of Power's credit card bills dated July 2000. Pls. ' Resp. to Defs.' Mot. for Recons. Ex. A. In an affidavit, Power stated that he has never received a copy of the summons and complaint, that he does not reside at 111 N. Rengstorff Ave, # 1, and that the Rengstorff address has not been his usual mailing address since July 2000. Power Aff. P 2. The plaintiffs have offered no further evidence to show that the Rengstorff address was Power's usual place of abode in September 2000. The party on whose behalf service was required bears the burden of showing sufficient service. Mass. R. Civ. P. 4(j). The plaintiffs have not met this burden.
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n3 Rule 4(e)(3), which allows service "by any form of mail addressed to the
person to be served," does not apply because it requires "a signed receipt," which the plaintiffs did not obtain. Mass. R. Civ. P. 4(e)(3).
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However, dismissal of the complaint is inappropriate when there exists a
reasonable prospect that service may yet be obtained. The Court will permit another attempt at valid service upon Power. Power's motion to dismiss for insufficient service of process will be granted unless valid service is accomplished not later than 60 days after the date of this Order.
C. Other Issues
As to the other issues raised, the defendants' motion for reconsideration is
denied.
It is SO ORDERED.
DATE February 22, 2002
George A. O'Toole Jr.
DISTRICT JUDGE
16 of 23 DOCUMENTS
BARBARA CURLEY and ROBERT CURLEY, Administrators of the
Estate of JEFFREY J. CURLEY, Plaintiffs v. NORTH AMERICAN
MAN BOY LOVE ASSOCIATION, JOHN DOE, INC., ROY RADOW, JOSEPH
POWERS, DAVID THORSTAD, DAVID MILLER, PETER HERMAN, MAX
HUNTER, and ARNOLD SCHOEN, Defendants
CIVIL ACTION NO. 00-CV-10956-GAO
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS
2001 U.S. Dist. LEXIS 18305
September 27, 2001, Decided
DISPOSITION: Motion to dismiss was denied.
LexisNexis(R) Headnotes
COUNSEL: For BARBARA CURLEY, ROBERT CURLEY, Plaintiffs: Lawrence W. Frisoli,
Frisoli & Frisoli, Cambridge, MA.
For BARBARA CURLEY, ROBERT CURLEY, Plaintiffs: Patrick T. Gillen, Ann Arbor, MI.
For NORTH AMERICAN MAN BOY LOVE ASSOCIATION, DAVID THORSTAD, DAVID MILLER, PETER HERMAN, MAX HUNTER, ARNOLD SCHOEN, Defendants: Sarah Wunsch, Mass. Civil Liberties Union Fdn., Civil Liberties Union of Massachusetts, Boston, MA.
JUDGES: George A. O'Toole, Jr., DISTRICT JUDGE.
OPINIONBY: George A. O'Toole, Jr.
OPINION:
MEMORANDUM AND ORDER
September 27, 2001
O'TOOLE, D.J.
In 1997, Jeffrey Curley was abducted from his home in Cambridge,
Massachusetts, and murdered. Charles Jaynes and Salvatore Sicari were later convicted of Curley's murder. Curley's parents bring this action for damages under the Massachusetts wrongful death statute, Mass.Gen. Laws ch. 229, §§ 2 and 6, as well as under the Ku Klux Klan Act, 42 U.S.C. § 1985, against the North American Man Boy Love Association ("NAMBLA"), John Doe, Inc., Roy Radow, Joseph Powers, David Thorstad, David Miller, Peter Herman, Max Hunter, and Arnold Schoen.
The defendants have moved to dismiss the amended complaint for failure to
state a claim on which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6), lack of personal jurisdiction under Fed. R. Civ. P. 12(b)(2), and improper venue. One defendant has moved to dismiss for insufficiency of service of process. For the reasons that follow, the Rule 12(b)(6) motion is denied, the Rule 12(b)(2) motion is denied as to NAMBLA and Radow and denied without prejudice as to the remaining individual defendants. The motions to dismiss for improper venue and for insufficiency of service are denied.
I. Failure to State a Claim
In evaluating a motion to dismiss for failure to state a claim upon which
relief can be granted, the Court must take as true all well-pleaded facts and draw all reasonable inferences favorable to the complainant. See Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir.1990). "A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)).
The defendants argue that the plaintiffs fail to state a claim on which
relief can be granted because the amended complaint premises liability on the contents of the NAMBLA's website and newsletter, which the defendants urge is speech protected by the First Amendment to the United States Constitution. n1
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n1 Ordinarily, consideration of documents not attached to the complaint or
expressly incorporated in it is not appropriate on a motion to dismiss under Rule 12(b)(6), unless the motion is treated as one for summary judgment under Rule 56. However, it is proper in evaluating whether the complaint states a claim to consider documents central to a plaintiff's claim that are specifically referred to in the complaint. See, e.g., Fudge v. Penthouse Int'l, Ltd., 840 F.2d 1012, 1014-15 (1st Cir.) (considering allegedly libelous article submitted by defendants with motion to dismiss), cert. denied, 488 U.S. 821, 102 L. Ed. 2d 42, 109 S. Ct. 65 (1988). See also Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993); Romani v. Shearson Lehman Hutton, 929 F.2d 875, 879 n. 3 (1st Cir.1991). Because the Amended Complaint alleges that "by its publications, meetings and website NAMBLA encourages its members to rape male children," and that "upon information and belief immediately prior to said acts Charles Jaynes accessed NAMBLA's website at the Boston Public Library," Am. Comp. PP 18, 31, in evaluating the defendants' motion to dismiss the Court has considered copies of the NAMBLA Bulletin, as well as excerpts from the NAMBLA website.
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The First Amendment's guarantee of freedom of expression is sweeping, but not
absolute. There are categories of speech that do not receive constitutional protection, including obscenity, n2 defamation, n3 fighting words, n4 and words likely to incite imminent lawless action. n5 The plaintiffs seek to prove that the defendants' publications fall within the last category.
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n2 Sable Communications of California, Inc. v. F.C.C., 492 U.S. 115, 106 L.
Ed. 2d 93, 109 S. Ct. 2829 (1989).
n3 Beauharnais v. Illinois, 343 U.S. 250, 96 L. Ed. 919, 72 S. Ct. 725
(1952).
n4 Chaplinsky v. New Hampshire, 315 U.S. 568, 86 L. Ed. 1031, 62 S. Ct. 766
(1942).
n5 Brandenburg v. Ohio, 395 U.S. 444, 23 L. Ed. 2d 430, 89 S. Ct. 1827
(1969).
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The seminal case on incitement is Brandenburg v. Ohio, 395 U.S. 444, 23 L.
Ed. 2d 430, 89 S. Ct. 1827 (1969). In that case, the Supreme Court overturned the Ohio Criminal Syndicalism Act because it punished "mere advocacy" as "distinguished from incitement to imminent lawless action." Brandenburg, 395 U.S. at 449. "The mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action." Id. (quoting Noto v. United States, 367 U.S. 290, 6 L. Ed. 2d 836, 81 S. Ct. 1517 (1961)). See also Hess v. Indiana, 414 U.S. 105, 109, 38 L. Ed. 2d 303, 94 S. Ct. 326 (1973) (speech protected unless "words were intended to produce, and likely to produce, imminent disorder") (emphasis in original).
In various contexts, Courts of Appeals have held particular exercises of
"speech" not to be protected by the First Amendment guarantee because they qualified as "incitement" to unlawful activity. Thus, speech which counsels and procures criminal conduct will support liability for "aiding and abetting" in both the criminal, see United States v. Barnett, 667 F.2d 835 (9th Cir. 1982), and civil contexts, see Rice v. Paladin Enterprises, Inc., 128 F.3d 233 (4th Cir. 1997). In Barnett , the defendant had produced and sold detailed instructions for the manufacture of phenylcyclidine (PCP) to a person who manufactured the illegal drug by following the instructions. The court said, "To the extent, however, that Barnett appears to contend that he is immune from search or prosecution because he uses the printed word in encouraging and counseling others in the commission of a crime, we hold expressly that the first amendment does not provide a defense as a matter of law to such conduct." 667 F.2d at 843 (emphasis in original). In Rice, relatives of a murder victim brought a wrongful death action against the publisher of Hit Man: A Technical Manual for Independent Contractors, which gave "detailed factual instructions on how to murder and to become a professional killer" and which allegedly incited the actual murder. 128 F.3d at 239. The court of appeals reversed the district court's grant of summary judgment in favor of the publisher. The court specifically rejected the claim that the publication was protected under the Brandenburg doctrine, saying, "As this case reveals, and as the Court itself has always seemed to recognize, one obviously can prepare, and even steel, another to violent action not only through the dissident 'call to violence,' but also through speech, such as instruction in the methods of terror or other crime, that does not even remotely resemble advocacy, in either form or purpose." Rice, 128 F.3d at 265. See also United States v. Knapp, 25 F.3d 451, 457 (7th Cir. 1994); United States v. Rowlee, 899 F.2d 1275 (2d Cir. 1990); United States v. Buttorff, 572 F.2d 619 (8th Cir. 1978), all holding that persons who counsel and assist others to file false or fraudulent tax returns act outside the zone of "mere advocacy" protected under the Brandenburg doctrine.
Virtually all the cases cited by the parties on this issue involve fully
developed factual records after trial or upon a motion for summary judgment. In contrast, the present motion addresses only the allegations of the amended complaint. As noted above, a motion to dismiss for failure to state a claim should be granted only where it is clear that there is no set of facts that is consistent with the allegations that could support liability on any of the theories advanced by the plaintiffs. See Hishon, 467 U.S. at 73. What the plaintiffs can ultimately prove will be seen, but for the time being, it is not clear that the Brandenburg doctrine would foreclose liability on any set of facts that might be shown. Accordingly, the motion to dismiss under Rule 12(b)(6) is denied.
II. Personal Jurisdiction
NAMBLA and the individual defendants have also moved to dismiss on the ground
that the Court lacks personal jurisdiction over them, and that venue is improper in this District. Defendant Joseph Powers has moved to dismiss based on insufficient service of process.
Prior to filing their motion to dismiss, the defendants NAMBLA and Radow
moved for a more definite statement pursuant to Fed. R. Civ. P. 12(e). That motion did not raise nor mention the defenses of lack of personal jurisdiction, improper venue, or insufficient service of process. Failure to include these Rule 12 defenses in the Rule 12(e) motion works a waiver of them. Fed. R. Civ. P. 12(g) and (h)(1). The First Circuit has said that "it is clear under this rule that defendants wishing to raise any of these four defenses must do so in their first defensive move, be it a Rule 12 motion or a responsive pleading." Manchester Knitted Fashions, Inc. v. Amalgamated Cotton Garment and Allied Indus. Fund, 967 F.2d 688, 692 (1st Cir. 1992) (quoting Glater v. Eli Lilly & Co., 712 F.2d 735, 738 (1st Cir. 1983)); see also Clark v. Associates Commercial Corp. v. Howard, 149 F.R.D. 629, 632 (D. Kan. 1993) ("The cases and commentators are overwhelmingly of the opinion that a party who makes a Rule 12(e) motion for a more definite statement may not thereafter assert by motion a Rule 12(b) defense that was available at the time of the initial motion."); Martin v. Delaware Law School of Widener Univ., 625 F. Supp. 1288, 1296 (D. Del. 1985) (by not raising defenses of lack of personal jurisdiction, improper venue, and insufficient service of process at time motion for more definite statement was filed, defendant waived its right to assert those defenses in motion to dismiss). Because such motions are easily raised, courts in this Circuit "strictly apply the waiver rule established in Fed. R. Civ. P. 12(h)(1)." Manchester, 967 F.2d at 692. By failing to raise the defenses of personal jurisdiction and improper venue in their motion for a more definite statement, the defendants NAMBLA and Radow have waived the right to assert those defenses by a subsequent motion to dismiss, and their motion is, accordingly, denied.
As to the other individual defendants named in the amended complaint, Powers,
Thorstad, Miller, Herman, Hunter, and Schoen, the plaintiffs do not offer a specific factual basis to justify a conclusion that this Court has personal jurisdiction over those persons under the Massachusetts long-arm statute. The burden is the plaintiffs' to establish personal jurisdiction. See Boit v. Gar-Tec Prods., Inc., 967 F.2d 671 (1st Cir. 1990). It is not sufficient to allege, without differentiating among defendants, that "defendants" generally performed certain acts that brought them within the scope of the long-arm jurisdiction of the Court. Each defendant is entitled to an individual evaluation of his claim that the Court lacks jurisdiction over his person. It is not enough to show that the organization to which the individual defendant belonged had sufficient contacts with the forum to support personal jurisdiction. Rather, the facts "personal" to each defendant must support jurisdiction. The record in this case lacks such specific facts on which a finding of personal jurisdiction could be made as to the individual defendants. The single exception is Radow, who, as explained above, has waived the defense of lack of personal jurisdiction.
However, because the Court will allow an additional amendment to the
complaint, see Part V below, the plaintiffs will have an opportunity to make a better case for personal jurisdiction as to these defendants, if one can be made. Their motion is, accordingly, denied without prejudice to its renewal after the complaint has been further amended.
III. Venue
An action not founded solely on diversity jurisdiction may be brought in a
district where "a substantial part of events . . . giving rise to the claim occurred." 28 U.S.C. § 1391(b)(2). The amended complaint alleges that Jaynes's contacts with NAMBLA as well as the abduction of Jeffrey Curley occurred within this District. Venue is proper.
IV. Service of Process
Defendant Joseph Power has moved to dismiss for insufficient service of
process, arguing that the method of service employed by the plaintiffs, mailing a copy of the complaint to his former address, did not comply with Fed. R. Civ. P. 4(e). However, on January 18, 2001, this Court granted the defendants ' motion for an order allowing parties that were yet unserved leave to proceed without disclosing their true names or addresses (Dkt. No. 16). Powers, whether or not previously served properly, agreed that counsel could accept service on his behalf for the sake of keeping his identity and address undisclosed to the plaintiffs. See Defendants' Motion for an Order Allowing Certain Unserved Parties Leave to Proceed at P 7 ("Subject to the allowance of this motion, the moving parties have authorized counsel to accept service and enter our appearance on their behalf.") Therefore, he has waived any objection on the ground of improper service of process.
V. Further Amendment of the Complaint
The plaintiffs have moved to file a second amended complaint. One of the
purposes of the amendment is to add a RICO claim under 18 U.S.C. § 1961 et seq. However, as the defendants correctly point out, only persons who have been injured in their "business or property" may pursue a civil RICO claim for damages. See 18 U.S.C. § 1964(c); Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 87 L. Ed. 2d 346, 105 S. Ct. 3275 (1985). Damages for wrongful death or personal injury are not available under § 1964(c). See Grogan v. Platt, 835 F.2d 844 (11th Cir. 1988). The dictum in Libertad v. Welch, 53 F.3d 428, 437 (1st Cir. 1995) is not a basis for finding a RICO cause of action for the harm claimed by the plaintiffs.
In addition, the proposed second amended complaint seeks to add at least one
newly named defendant and some unnamed "John Doe" members of NAMBLA and also refocuses the other claims in the case. There is no reason not to allow those amendments.
The solution is to deny the motion to file the proffered second amended
complaint, but to permit the plaintiffs, within 35 days of the date of this order, to file a second amended complaint that omits the RICO claim, but otherwise makes the changes reflected in the current proposed version.
VI. Conclusion
The defendants' motion to dismiss for failure to state a claim on which
relief can be granted is denied. The motion to dismiss for lack of personal jurisdiction is denied as to NAMBLA and Radow and denied without prejudice as to the other individual defendants. The motion to dismiss for improper venue and defendant Power's motion to dismiss for improper service of process are also denied.
It is SO ORDERED.
September 27, 2001 DATE
George A. O'Toole, Jr.
DISTRICT JUDGE