| NORFOLK, ss. | CIVIL ACTION NO. 94-2369 |
This is a defamation case, in which plaintiff Beverly Plante, also known by her religious name of "Sister Michaelinda Plante" ("Sr. Plante"), sues the Samaritans of Fall River-New Bedford, Inc., and various individuals who were, at times relevant to the complaint, officers or members of the Board of Directors of the Samaritans. (I refer to the defendants collectively as "the Samaritans.") Sr. Plante alleges that she lost her job because of false statements the Samaritans made to her employer.
Defendants have moved for summary judgment on all count of the complaint, arguing that if in fact the Samaritans made any negative comments about Sr. Plante, these comments were not actionable. In addition, defendants ask the court to strike portions of the affidavit submitted by Sr. Plante in opposition to their motion for summary judgment, because it contains hearsay.
I find that certain of the Samaritans' alleged comments were nonactionable statements of opinion, and I find--with no respect to certain other alleged comments--that Sr. Plante has not met her burden of putting forth admissible evidence about those comments in opposition to the defendants' motion. Summary judgment is therefore GRANTED for defendants. In addition, I strike so much of plaintiff's affidavit as contains inadmissible hearsay, or is otherwise not based on Sr. Plante's personal knowledge. Defendants' motion to strike is therefore GRANTED3.
BACKGROUND
The facts leading up to this lawsuit are convoluted and confusing, and the motivations of many of those involved remain mysterious.
In 1989, an individual whom the parties refer to as "Michael Ross" began calling the Samaritans' suicide hotline. He appears to have continued calling for several years.
In or around May of 1993, former co-plaintiff Yvonne George ("George") became involved in a "praise campaign" to raise money and solicit accolades for the Samaritans. According to George, her involvement was instigated by "Michael Ross"'s mother, a woman obsessed with anonymity, who called herself by the pseudonym "Elaine Ross."4 The Samaritans refused to accept money donated by "Elaine Ross," apparently concerned that they could not trace the origin of the money to a real person or corporation, and that accepting donations made in gratitude for the Samaritans' work with a specific individual ("Michael Ross") would contravene the Samaritans' strict confidentiality policies.
At some point, George asked plaintiff Sr. Plante, then Assistant Superintendent of Elementary Schools for the Diocese of Fall River, to become involved. In the hope that the Samaritans would accept a donation from Sr. Plante, who lived in the area and with whom the Samaritans might be familiar, George asked Sr. Plante to take $600.00 and donate it to the Samaritans in Sr. Plante's own name. Once again, the Samaritans, apparently concerned about the origin of this money, refused to accept it.
Relations between those involved in the "praise campaign" and the Samaritans became increasingly acrimonious, leading to the alleged conduct on which Sr. Plante bases her complaint. For purposes of deciding defendants' motion for summary judgment, I view the facts, as set forth in the summary judgment record, in the light most favorable to Sr. Plante.
A. Letter of September 20, 1993
At some point, perhaps in 1994, Sr. Plante discovered a letter, dated September 20, 1993, purportedly from defendant Peter L. Paull, Jr. ("Paull"), an attorney for the Samaritans, and addressed to Sr. Plante, which Sr. Plante had never herself received. Instead, the letter had found its way to Sr. Plante's superior, Sister Rosemary LaLiberte ("LaLiberte"). The letter stated that the writer was not certain whether Sr. Plante herself was involved in the "praise campaign," but that if "praise campaign" activities continued (including any contact of the Samaritans by Sr. Plante), the Samaritans would pursue legal action, possibly including filing criminal complaints for mail fraud and illegal fundraising.
B. Derogatory comments beginning in April, 1994
In Sr. Plante's affidavit, filed in support of her opposition to defendants' motion for summary judgment, she alleges that:
On or about April 1994, representative(s) of the Samaritans began making comments about me and a group(.) (T)hey insisted I was a conduit for the group, calling both the group and (me) "criminals"...and accused me of being involved with the active participation and solicitation of money concerning a "praise campaign" for the Samaritans. These allegations and statements were not true, nor based on any...facts (known) to me.There is nothing else in the summary judgment record about these comments, with the exception of the specific comments discussed below.
C. Meeting of June 15, 1994
On June 15, 1994, the Samaritans and those involved in the "praise campaign" met at the office of defendant Paull, in the hope that they might resolve their differences. There is some dispute about what occurred at that meeting. Viewing the facts in the light most favorable to Sr. Plante, defendant Ellie Leite ("Leite") called Sr. Plante a "disgrace as a nun"; said that Sr. Plante should be ashamed to be involved in the praise campaign; said that Sr. Plante was involved with criminals; and told Sr. Plante that she intended to tell Bishop Sean O'Malley, Sr. Plante's superior, what Sr. Plante was involved in. In addition, one or more representatives of the Samaritans stated that the group with which Sr. Plante was involved (and which included Plante) had committed mail fraud.
D. Samaritans' meetings with Father Richard Beaulieu and Sister Rosemary LaLiberte
In her deposition, Sr. Plante testified that she found out that Samaritans had met with her superior, Father Richard Beaulieu, three times, and with LaLiberte at least once. Deposition of Beverly Plante, November 10, 1995, p. 166, lines 7-12. There is little else in the summary judgment record about these meetings.
Finally, and most importantly, Sr. Plante contends that on July 19, 1994, certain of the defendants met with Bishop Sean O'Malley.5 Sr. Plante alleges that at this meeting, various Samaritans told the Bishop that Sr. Plante was "involved in criminal activities," had "committed mail fraud," and was "associating with criminal elements," and threatened the Archdiocese with a lawsuit. On August 15, 1994, Sr. Plante met with her superiors, Fr. Beaulieu and Sr. LaLiberte, at their request. Fr. Beaulieu and Sr. LaLiberte asked Sr. Plante to take a leave of absence, informing her that they were acting at the direction of the Bishop, who had been visited by the Samaritans and was concerned about what they had told him. They told Sr. Plante that in addition to making allegations about the "praise campaign," the Samaritans had also made allegations "regarding [Sr. Plante's] production of a poetry book of a satanic nature," Deposition of Beverly Plante, November 10, 1995, p. 54, lines 9-11.
Sr. Plante files her complaint against the Samaritans on November 4, 1994. Each count of the complaint is for defamation; Count I against Ellie Leite ("Leite"), Count II against Michael Moran ("Moran"), Count III against Peter Paull ("Paull"), and Count IV against the Samaritans. Defendants have now moved for summary judgment.
DISCUSSION
I. Defendants' motion for summary judgment is granted.
A. Standard for granting summary judgment
This court grants summary judgment where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. Cassasso v. Commissioner of Correction, 190 Mass. 419, 422 (1993); Community Nat'l Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass. R. Civ. p. 56(c), 365 Mass. 824 (1984). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue, and that the summary judgment record entitles the moving party to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). A party moving for summary judgment who does not bear the burden of proof at trial demonstrates the absence of a triable issue either by submitting affirmative evidence negating an essential element of the nonmoving party's case or by showing that the nonmoving party is unlikely to submit proof of that element at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). The nonmoving party cannot defeat the motion for summary judgment by resting on its pleadings and mere assertions of disputed facts. LaLonde v. Eissner, 405 Mass. 207, 209 (1989). Establishing the absence of a triable issue requires the nonmoving party to respond by alleging specific facts demonstrating the existence of a genuine issue of material fact. Pederson v. Time, Inc., supra at 17.
Although Sr. Plante's opposition to defendants' motion for summary judgment narrows the factual basis for her complaint to statements made by defendants at the meetings of June 15 and July 19, 1994, I discuss Sr. Plante's other factual allegations as well, concluding that none is sufficient to defeat defendants' motion.
B. Letter of September 20, 1993
First, I conclude that Sr. Plante cannot prevail on a defamation claim based on statements made in Paull's letter to her of September 20, 1993.
The SJC has defined defamation as:
The publication of material by one without a privilege to do so which ridicules or treats the plaintiff with contempt. Correllas v. Vivieros, 410 Mass. 314, 319 (1991).Further elaborating, the SJC has said that a writing is libelous (contains defamatory material) if it:
'discredits the plaintiff in the minds of any considerable and respectable segment of the community...' Correllas, 410 Mass. at 718, quoting Smith v. Suburban Restaurants, Inc., 332 Mass. 304, 305-306 (1955).A defamatory statement usually consists of or implies untrue, derogatory statements of fact. I find that as a matter of law, there is no such material in Paull's letter, which makes no assertions of fact about Sr. Plante's involvement in the controversial "praise campaign," but which rather acknowledges Paull's uncertainty about her own involvement.6 Furthermore, even if the letter did contain language directly accusing Sr. Plante of wrongdoing, I find that it would be privileged (nonactionable), because it occurs in the context of Paull's assertion that the Samaritans intended to take legal action. See, e.g., Correllas, 410 Mass. at 322:
In the Sriberg [v. Raymond, 370 Mass. 105 (1976)] case, for example, an attorney mailed a letter to the plaintiff in which the attorney accused the plaintiff of misconduct and threatened an action against the plaintiff. A copy of the letter was sent to the plaintiff's bank. The plaintiff sued, claiming that the letter was defamatory. We held that the statements in the attorney's letter were absolutely privileged because the attorney's letter was written in the context of the institution of judicial proceedings. 'We have hitherto held that statements by a party, counsel, or witness in the institution of, or during the course of, a judicial proceeding are absolutely privileged provided such statements relate to that proceeding' [emphasis inserted by the Correllas court removed]. [Sriberg] at 108.Thus, as a matter of law, I hold that Attorney Paull's letter does not constitute actionable defamation.
C. Derogatory comments beginning in April, 1994
In response to defendants' summary judgment motion, Sr. Plante has alleged no specific facts to support her broad assertion that various of the defendants began making derogatory remarks about her beginning in April of 1994 (with the exception of the specific comments I address below). Thus, she cannot defeat the motion for summary judgment based on that claim.
D. Meeting of June 15, 1994
For two reasons, the derogatory comments Sr. Plante alleges were made at the meeting of June 15, 1994, are not actionable as defamation.
First, I find as a matter of law that the majority of these comments were unambiguously matters of opinion, not fact, and as such are not actionable as defamation. See, e.g., Lyons v. Globe Newspaper Co., 415 Mass. 258, 262 (1993) ("If 'the statement unambiguously constitutes either fact or opinion,' this issue is a question of law for the court to decide," quoting Myers v. Boston Magazine Co., 380 Mass. 336, 339 (1980), quoting Good Gov't Group of Seal Beach, Inc. v. Superior Court, 22 Cal.3d 672, 682, 586 P.2d 572 (1978), cert. den., 441 U.S. 961 (1979)). Comments that I deem to be expressions of opinion are the following:
In addition to the three statements listed above, Sr. Plante alleges that one or more representatives of the Samaritans stated that the group with which Sr. Plante was involved (and which included Sr. Plante) had committed mail fraud. Again, I find that this statement, in the context of the heated, ongoing, debate, cannot reasonably be construed as a statement of fact. See King v. Globe Newspaper Co., 400 Mass. 705, 709 (1987), cert. den., 485 U.S. 940, 485 U.S. 962 (discussing standard for determination by judge that statement constitutes an expression of opinion); Cole v. Westinghouse Broadcasting Corp., Inc., 386 Mass. 303, 310 (1982), cert. den., 459 U.S. 1037 ("'Thus, where potentially defamatory statements are published in a public debate, a heated labor dispute, or in another meeting in which the audience may anticipate efforts by the parties to persuade others to their position by use of epithets, fiery rhetoric or hyperbole, language which might generally be considered as statements of fact may well assume the character of statements of opinion.'" quoting Gregory v. McDonnell Douglas Corp., 17 Cal.3d 596, 601, 552 P.2d 425 (1976)). See also Lyons, 415 Mass. at 266-267 (discussing proper treatment of statements made on the basis of revealed factual premises; finding that the principle espoused by a recent United States Supreme Court case "unquestionably excludes from defamation liability not only statements of rhetorical hyperbole...but also statements clearly recognizable as pure opinion because their factual premises are revealed...Both types of assertion have an identical impact on readers--neither reasonably appearing factual--and hence are protected equally under the principles espoused in Malkovich v. Lorain Journal Co., 497 U.S. 1 (1990)]" (emphasis supplied)).
Alternatively, however, even if the mail-fraud statements were to be interpreted as a statement of fact, I find that it would be protected by the conditional privilege of a speaker to make an accusation of criminal activity, as part of an effort to uncover the wrongdoing for his own protection. Galvin v. New York, New Haven and Hartford Railroad, 341 Mass. 293, 296 (1960) ("It is undoubtedly the law that if the defendant, having reasonable cause to believe that someone had been stealing property from [his business], sought to discover the guilty party for its own protection, and, without malice and in the belief that it was true, charged the plaintiff with theft, the words would be privileged. It is the typical case of a privileged occasion" (citations omitted).). See also Mendez v. M.S. Walker, Inc., 26 Mass. App. Ct. 431, 433 (1988) ("The conditional privilege to disseminate a serious charge may be lost, not only by knowledge of its falsity, but also by reckless disregard [of] whether it is true or not" (citation omitted)). There is no allegation that the Samaritans abused this conditional privilege by making the mail-fraud accusation recklessly:7 therefore, I find that even if the accusation should be considered a statement of fact, it would be protected by a conditional privilege.
E. Samaritans' meetings with Fr. Beaulieu, Sr. LaLiberte, and Bishop O'Malley
Finally, Sr. Plante has not submitted sufficient evidence to survive defendants' motion for summary judgment on the issue of whether the Samaritans made defamatory comments about her at a meeting with Bishop O'Malley on July 19, 1994, and at other meetings with her superiors, Fr. Beaulieu and Sr. LaLiberte.
In evaluating defendants' motion for summary judgment, I have, in accordance with Mass. R. Civ. P. 56(c), examined all of the pleadings, depositions, and affidavits on file. I find no evidence such as would be admissible at trial of defamatory comments made by the Samaritans at meetings with Sr. Plante's superiors. Sr. Plante's affidavit and deposition concededly make statements about what she believes to have gone on at these meetings: however, such statements cannot go to support her opposition to summary judgment, as they consist of inadmissible hearsay. See, e.g., Symmons v. O'Keeffe, 419 Mass. 288, 295 (1995) ("The judge should not have considered the affidavits submitted by the plaintiffs because the statements...contained inadmissible hearsay...and did not satisfy the plaintiffs' burden on the summary judgment motion"); Flesner v. Technical Communications Corp., 410 Mass. 805, 817 (1991) ("testimony was hearsay and insufficient to survive a motion for summary judgment"); Madsen v. Erwin, 395 Mass. 715, 721 (1985) ("[h]earsay in an affidavit is unacceptable to defeat summary judgment"); Mass. R. Civ. P. 56(e) (affidavits submitted in opposition to summary judgment must be made "on personal knowledge").8
II. Defendants' motion to strike is granted.
For the reasons set out in the previous paragraph, I strike those portions of Sr. Plante's affidavit that constitute inadmissible hearsay or are otherwise not based on Sr. Plante's personal knowledge.
ORDER
For the above reasons, defendants' motion for summary judgment is GRANTED as to all counts in the complaint. Defendants' motion to strike is also GRANTED as to those portions of plaintiff Sr. Plante's affidavit that contain inadmissible hearsay or that are otherwise not based on Sr. Plante's personal knowledge.
| DATE: August 27, 1996 | (signed) Vieri Volterra Justice of the Superior Court |
NOTES:
1Beverly Plante is also known by her religious name, Sister Michaelinda Plante, R.S.M., Sisters of Mercy.
On October 10, 1995, the parties signed a stipulation of dismissal, in which then-co-plaintiff Yvonne George voluntarily dismissed her claims against the defendants.
2Michael D. Moran, Ellie Leite, Peter L. Paull, Jr., each individually and as members of the Board of Directors for the Samaritans of Fall River-New Bedford, Inc.
3Although I grant defendants' motion to strike as to portions of the affidavit that contain hearsay or that are otherwise not based on Sr. Plante's personal knowledge (and therefore, I do not consider those statements to weigh in favor of Sr. Plante's opposition to the motion for summary judgment), I do discuss Sr. Plante's statements in the course of this memorandum, for purposes of giving a clear explanation of Sr. Plante's allegations and defendants' response.
4Sr. Plante acknowledges that "Michael Ross" and "Elaine Ross" are pseudonyms, but contends that these names refer to actual people. Defendants, in contrast, question their existence.
5Defendants' memoranda are somewhat ambiguous as to whether they deny that this meeting ever occurred, or merely deny that defamatory statements were made at the meeting.
6"You may or may not be involved with these communications [from the "praise campaigners" to the Samaritans]." Letter of Peter L. Paull, Jr., submitted as exhibit to Sr. Plante's Affidavit, p. 2.
7At one point in her deposition testimony, Plante does state that she thinks the Samaritans bore her, personally, ill-will: she bases this on a threatening telephone call she says she received from a non-defendant. This is not enough to give rise to a factual dispute about whether the Samaritans made the mail-fraud accusation recklessly so as to defeat their conditional privilege.
8I note that in attempting to defeat summary judgment, Sr. Plante did have a number of strategies available to her: most obviously, she could have obtained deposition testimony from her superiors or from defendants. Furthermore, if affidavits were unavailable or if there was a problem obtaining deposition testimony, Sr. Plante had the option of moving, under Mass. R. Civ. P. 56(f), for a continuance or for denial of the motion for summary judgment.