Bourne v. Arruda

                       UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF NEW HAMPSHIRE


Samuel J. Bourne

     v.                                         Civil N o . 10-cv-393-LM
                                                Opinion N o . 

John R. Arruda, Jr., et a l .



                                    O R D E R


      Currently before the court is the motion for summary

judgment (doc. n o . 1 5 4 ) , filed by defendants, John R. Arruda,

Jr., Michael Brooks, and the Town of Madison, New Hampshire

(“Town”), seeking summary judgment on all claims remaining in

this defamation case. Plaintiff, Samuel J. Bourne, opposes the

motion, see Pl.’s O b j . (doc. n o . 1 6 5 ) , and has filed a surreply

in response to defendants’ reply to his objection.              See Reply

(doc. n o . 1 6 7 ) ; Surreply (doc. n o . 1 7 0 ) .   Also pending are the

parties’ pretrial statements, proposed jury instructions,

proposed voir dire, and motions in limine and objections.              See

Doc. Nos. 171-89. For reasons set forth below, the motion for

summary judgment is granted, the pretrial matters (doc. nos.

171-89) are moot, and the clerk is directed to close the case.


                         Summary Judgment Standard

      Summary judgment shall be granted “if the movant shows that

there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”    Fed. R.

Civ. P. 56(a).   “The object of summary judgment is to ‘pierce

the boilerplate of the pleadings and assay the parties’ proof in

order to determine whether trial is actually required.’”    Dávila

v . Corporación de P.R. para la Diffusión Pública, 

(1st Cir. 2007) (quoting Acosta v . Ames Dep’t Stores, Inc., 

 , 7 (1st Cir. 2004)).   “[T]he court’s task is not to weigh

the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.”     Noonan

v . Staples, Inc., 

 0 , 25 (1st Cir. 2009) (citations and

internal quotation marks omitted).

     “Once the moving party avers an absence of evidence to

support the non-moving party’s case, the non-moving party must

offer definite, competent evidence to rebut the motion,” and

“cannot rest on conclusory allegations, improbable inferences,

[or] unsupported speculation.”   Meuser v . Fed. Express Corp.,

 0 7 , 515 (1st Cir. 2009) (internal quotation marks and

citation omitted).   When ruling on a party’s motion for summary

judgment, a trial court “constru[es] the record in the light

most favorable to the nonmovant and resolv[es] all reasonable

inferences in [that] party’s favor.”    Id.




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                             Discussion

     Two claims remain in this case: (1) the claim that Arruda

defamed Bourne at a June 2010 Town selectmen’s meeting by

implying that Bourne had engaged in deceit by altering a town

roadway agreement; and (2) the claim that Brooks defamed Bourne

at a February 2011 Town selectmen’s meeting by saying that

Brooks was worried about a “Drega situation,” in reference to

Bourne.   The court considers each statement separately with

respect to issues raised in the motion for summary judgment.


I.   Arruda’s Statement

     Arruda is charged with defamation for the following

statement: “We met in the court of law, after [Bourne] had

altered a town document. A Class VI (roadway) was – altered.

Board of Selectmen didn’t pick it u p , because we never figure

our documents would ever be altered.”     Town Board of Selectmen

Mtg., June 9, 2010. Ex. 3 to Arruda Dep. (Ex. D to Pl.’s O b j .

(doc. n o . 165-5, at 59-60)).

     Bourne contends that the statement is false in that his

lawyer, Attorney Judith Reardon, drafted the agreement, making

the agreement at issue her work, not an altered “town document.”

Bourne further contends that the statement is capable of a

defamatory construction, in that it implies he engaged in fraud

or deceit by “alter[ing] a town document.”

                                 3
     A.    Public Figure Status

     Defendants contend that, with respect to Arruda’s

statement, Bourne is a “limited purpose” public figure required

to prove that Arruda spoke with “actual malice,” in accordance

with N.Y. Times C o . v . Sullivan, 

 (1964).    That case

stands for the proposition that, to recover for reputational

harm, a plaintiff who is a public figure must make a showing

that is more onerous than merely proving negligence; plaintiffs

in such cases, to prove a defamation claim, must show that the

defendant acted with “‘actual malice.’”       Lluberes v . Uncommon

Prods., LLC, 

 (1st Cir. 2011) (quoting N.Y. Times

Co., 

 7 9 ) .   “Actual malice” requires a showing that

the statement was made with “‘knowledge that it was false or

with reckless disregard of whether it was false or not.’”

Lluberes, 

 & n.2 (quoting N.Y. Times Co., 

).

     A private citizen may be deemed a “limited purpose public

figure” if he “‘voluntarily injects himself or is drawn into a

particular public controversy and . . . becomes a public figure

for a limited range of issues.’”        Lluberes, 

(quoting Gertz v . Robert Welch, Inc., 

 (1974)).

The “‘limited range of issues’” is identified ‘by looking to the


                                    4
nature and extent of an individual’s participation in the

particular controversy giving rise to the defamation.’”

Lluberes, 

 (quoting Gertz, 

 5 2 ) .

      There is no dispute regarding the context in which Arruda

spoke the words that Bourne alleges were defamatory.       Arruda was

discussing court cases and matters at issue in Bourne’s letter

to a newspaper editor, which Arruda deemed libelous. In the

letter at issue, Bourne had charged that Town selectmen,

including Arruda, had “produce[d] a forged cover letter to a

Class VI road liability agreement,” that Arruda had deceived the

public, and that town officials had engaged in discovery abuse

and the spoliation of evidence. See Letter to Editor, Conway

Daily Sun (June 4 , 2010) (Ex. to Defs.’ Mot. for Summ. J t . (doc.

n o . 154-13, at 4 ) ) .   Bourne, by sending that letter to a local

newspaper for publication, plainly thrust himself into the

public arena with respect to the issues raised in the letter.

The court finds no genuine issue of material fact regarding

Bourne’s “limited purpose public figure” status, with respect to

Arruda’s comments responding to Bourne’s letter to the editor.

Accordingly, to prove the claim against Arruda, Bourne must show

that Arruda’s comments were made with “actual malice,” N.Y.

Times Co., 

, i.e. with knowledge that the




                                      5
statements were false, or with reckless disregard to their truth

or falsity.


     B.    Actual Malice

     Bourne offers an affidavit of his former counsel, Attorney

Reardon, as well as documents marked as exhibits at Arruda’s

deposition, to support his claim that Arruda defamed him by

stating that “Bourne” had altered a “town” document.            Attorney

Reardon’s affidavit states that (1) she was acting as Bourne’s

lawyer in preparing an agreement on Bourne’s behalf, and (2) she

“used language from the Town’s version” of the roadway

agreement, given to her by Bourne, in creating a new agreement

for his use. Aff. of Reardon (Ex. A to Pl.’s O b j . (doc. n o .

165-2)).   That Bourne obtained an original document from the

Town and gave it to Attorney Reardon, who modified it for him

before Bourne sent his counsel’s draft back to the Town, is

undisputed here; and orders issued in cases involving Bourne

recount essentially those facts. See, e.g., Bourne v . Town of

Madison, N o . 05-CV-365-JD (doc. n o . 1 0 4 ) , 

 4 , slip o p .

at 4 (D.N.H. June 2 9 , 2009) (Bourne “mailed the ‘revised waiver’

back to the selectmen”); Bedrock Realty Trust v . Town of

Madison, N o . 08-E-0027, slip o p . at 2 (N.H. Super. Ct., Carroll

Cnty. Dec. 7 , 2008) (“Bourne, or someone acting on his behalf,

altered the [Class VI roadway] agreement to preclude members of

                                     6
the public from passing over the road.”).    Arruda’s statement

that Bourne altered a town document, under the undisputed

circumstances here, provides no basis upon which the court could

find proof of actual malice on Arruda’s part. C f . Gray v . S t .

Martin's Press, Inc., 

 (1st Cir. 2000)

(“Recklessness . . . can be shown by proving that the defendant

actually had a ‘high degree of awareness of . . . probably

falsity, but mere negligence in conducting an investigation or

weighing the evidence is not enough.” (citations omitted)).

      The court thus fails to find even a scintilla of evidence

to support the claim that Arruda acted with actual malice in

making the statement at issue. Accordingly, the court concludes

that Arruda is entitled to judgment as a matter of law on the

issue of actual malice, and grants defendants’ motion on that

issue.1


II.   Brooks’s Statement

      A.   Background

      Bourne claims that Brooks defamed him in a Town selectmen’s

meeting on February 2 2 , 2011, by stating, in an open exchange

with Town Meeting Moderator George Epstein, that Brooks was

worried about Bourne presenting a “Drega situation,” if he were
      1
      In light of the court’s finding on actual malice, it need
not consider defendants’ argument that a privilege provides a
further ground for granting summary judgment in Arruda’s favor.

                                 7
to appear at the March 2011 Town Meeting.   Brooks’s allegedly

defamatory February 22 statement, in context, is as follows:

    [Brooks:] In a general statement, word of caution – I
    speak for myself, not the Board necessarily – u h , some
    adverse rulings have come down in the, um, several
    Bourne litigations – not the ones that we’re involved
    with, but he had filed actions in Federal Court
    against his mortgage company, et cetera, et cetera.
    U h , the judge dismissed everything so that foreclosure
    can commence –
    . . . .
    [Brooks:] . . . There’s one charge against the title
    company, but the bank is cleared to foreclose, and I
    just bring that to your attention in the event that .


    [Brooks:] I’m trying to be prepared for . . .
    . . . .
    [Brooks:] Well, I just – I worry about a Drega
    situation is what I’m talking about, as far as –

    [Epstein:] Gotcha.

    [Brooks:] -- having your head, you know, on your
    shoulders if you see some angry dude walking through
    the door.

    [Epstein:] Thank you. N o , I appreciate that.

    [Brooks:] And I’m going to have the stage about four
    feet away from the wall so if we do need to jump down
    behind it we can.

    [Epstein:] Right. I’m looking for you big guy.

    [Brooks:] So we –

    [Epstein:] U h , but understood, thank you.

    [Brooks:] -- we’ll have a space to cover ourselves to
    reload.

         (raps [Arruda] on arm with fist)


                                8
     [Arruda: (laughter)]

     [Brooks:] Probably nothing will happen, but . . . . 2

Town Board of Selectmen Mtg., Feb. 2 2 , 2011. Ex. 4 to Arruda

Dep. (Ex. D to Pl.’s O b j . (doc. n o . 165-5, at 70-71)).

Undisputed is that the “Drega” comment was a reference to Carl

Drega, a man with a history of conflict with government

officials concerning his property, who gunned down a judge, a

newspaperman, and two state troopers and also wounded three

others in a northern New Hampshire community in 1997, before

police shot and killed him.3

     Brooks has asserted in an affidavit that at the time he

expressed his views at the February 2011 selectmen’s meeting, he

was aware of the following facts, the truth of which is not in

dispute: (1) Bourne had been involved for more than seven years

in state and federal litigation against Town officials and

     2
      Omitted from the court’s excerpt of the transcript are
statements of Madison Town Meeting Moderator George Epstein,
which are not at issue.
     3
       Defendants’ brief sets forth the following additional facts
about Drega, which Bourne has not disputed: (1) Drega was
embroiled in litigation for more than a decade over local
efforts to exert control over his property; (2) when state and
local officials took legal action against Drega, he responded by
filing suits against local officials, naming them personally;
(3) Drega contacted local newspapers to publish his plight; (4)
Drega risked losing his property altogether; and (5) Drega had
displayed a weapon to those he considered to be encroachers.
See Defs.’ B r . in support of Mot. for Summ. J. (doc. n o . 154-1),
at 1 9 .

                                  9
others, relating to Bourne’s property in Madison; (2) the New

Hampshire Supreme Court had recently affirmed the dismissal of

Bourne’s claims in one such consolidated action; (3) Bourne had

written letters to the editor, published in a local paper; (4)

Bourne had suffered adverse rulings in late 2010 and early 2011;

and (5) Bourne owned a handgun, which he had displayed in a

holster on one occasion in 2003, when he turned away

snowmobilers seeking to cross his land.      See Aff. of Brooks, Ex.

to Defs.’ Mot. for Summ. J t . (doc. n o . 154-18, at 1 - 2 ) . It is

also undisputed that Bourne’s letters to the editor and lawsuits

have named Town officials and others by name, that the letters

and lawsuits have included allegations of forgery and claims

that, in particular, Madison resident Robert King has attempted

to conceal or destroy evidence, and defendant John Arruda has

deceived the public.


     B.    Opinion

     In general, a statement of opinion, no matter how

defamatory, is not actionable, unless the statement implies the

existence of facts that can be proven true or false.        See

Gray, 

 (citing Milkovich v . Lorain Journal Co.,

 , 18-20 (1990)).    “[T]he cases are likely to protect a

statement as ‘opinion’ where it involves expressions of personal

judgment, especially as the judgments become more vague and

                                  10
subjective in character. . . .        ‘[I]f it is plain that the

speaker is expressing a subjective view, an interpretation, a

theory, conjecture, or surmise, rather than claiming to be in

possession of objectively verifiable facts, the statement is not

actionable.’”         Gray, 

 (citations omitted).

“Whether a given statement can be read as being or implying an

actionable statement of fact is itself a question of law to be

determined by the trial court in the first instance, considering

the context of the publication as a whole.”        Nash v . Keene

Publ’g Corp., 

 1 4 , 219, 

 4 8 , 351 (1985).    If

an average reader could reasonably understand the statement to

imply a defamatory fact, summary judgment must be denied.           

127 N.H. at 219, 

.

      The precise language used by Brooks, together with the

context in which he spoke, expresses Brooks’s opinion that

Bourne could present a threat to public safety, an opinion

which, Brooks made clear at the outset, was not necessarily

shared by others (“I speak for myself, not the Board

necessarily”).        The court previously ruled that it was plausible

that Brooks’s statement could constitute defamation.        See Order

(doc. n o . 5 5 ) .   Based upon the undisputed record now before the

court, the court revisits that ruling.




                                      11
       In its previous order, the court gave a broad reading to

the rule that permits a defamation action where a defamatory

opinion could imply the existence of defamatory facts. C f .

Milkovich, 

 (opinions that imply objectively

verifiable defamatory facts are actionable).    A defamatory

opinion is actionable “‘only if it implies the allegation of

undisclosed defamatory facts as the basis for the opinion.’”

Levinsky’s Inc. v . Wal-Mart Stores, Inc., 

 2 2 , 127 (1st

Cir. 1997) (quoting Restatement (Second) of Torts § 566 (1977)).

“Thus, a statement is normally not actionable unless it contains

an objectively verifiable assertion.”    Levinsky’s, 

.   Where the statement is one of conjecture or surmise, it is

not actionable. Gray, 

.

       Here, while Brooks’s statement may be construed as

conveying Brooks’s view that Bourne could be angry, dangerous,

or capable of violence, that view is an opinion, and is not an

objective fact capable of being proven true or false.     The

nature and context of Brooks’s statement illustrates that he was

worried about a possibility (which he admits was not likely)

that a citizen whom he described as the subject of a potential

foreclosure could act violently in the future. This is

conjecture on top of surmise. Moreover, Brooks made no other

statement that could reasonably be understood to imply that


                                 12
there were any undisclosed, objective, defamatory facts

underlying his opinion. C f . Moss v . Camp Pemigewassett, Inc.,

 (1st Cir. 2002) (defendant’s “statement is

merely his own speculation[;] [n]o person could reasonably

understand that statement to imply that [defendant] had actual

knowledge of additional incidents or complaints [of child

abuse]”).   Had Brooks, for example, included a statement

implying he had knowledge of additional objective facts, other

than the adverse rulings and potential foreclosure, to support

his opinion, or that he was uniquely situated to know the facts

about Bourne, the case might properly be decided by a jury, but

that case is not this one. C f . Riley v . Harr, 

 8 2 , 290

(1st Cir. 2002) (in Milkovich, author informed his readers he

was in “‘a unique position’ to know that the coach had lied

because he had personally observed the relevant events” (quoting

Milkovich, 

 n.2)).

      Bourne offers the affidavits of witnesses Michael and Donna

Veilleux, who assert that they found offensive and/or

frightening Brooks’s “claim[]” that Bourne “would conduct a

‘Carl Drega’ episode,” and that they believed that the claim

about Drega damaged Bourne’s reputation.     Affs. of Michael and

Donna Veilleux, Exs. B-C to Pl.’s O b j . (doc. nos. 165-3 and 165-

4).   The Veilleux affidavits focus on Brooks’s opinion about


                                  13
Bourne in assessing the impact on Bourne’s reputation; they do

not show that there is a triable issue as to whether any facts,

stated or implied by Brooks, were defamatory.   Bourne has

provided no proof that any witnesses were privy to gestures or

other aspects of Brooks’s demeanor or tone, not otherwise

recorded in the transcript, that could have communicated a false

statement of defamatory fact about Bourne. Having reviewed the

entire record and revisited the question of whether the

statement constitutes actionable defamation, the court concludes

that defendants are entitled to judgment as a matter of law on

this claim.

    To be clear, there is no dispute that Brooks’s stated

opinion was inflammatory, and witnesses have asserted that it

was both defamatory and offensive. The First Amendment,

however, protects the utterance of even the ugliest opinions, if

they cannot reasonably be understood to imply defamatory facts,

see Gray, 

. Such opinions are simply not

actionable, see Nash, 127 N.H. at 219, 

. In

light of the fuller record generated through discovery and filed

in connection with the summary judgment motion, the court

concludes that the Drega reference is an opinion, which cannot

reasonably be understood in context to state or imply any

undisclosed, provably false fact about Bourne. The court thus


                               14
finds no basis upon which a jury could reasonably conclude that

any false factual statement by Brooks defamed Bourne. For that

reason, the court grants the motion for summary judgment on the

claim against Brooks.4


III. Town Liability

      Bourne has alleged that the Town is liable for Arruda’s and

Brooks’s conduct. Finding that Bourne has offered no evidence

of a triable issue as to the Town’s direct liability, and

concluding that summary judgment is proper as to the claims

against Arruda and Brooks, the court grants the motion for

summary judgment as to the Town.


IV.   Libel Claim in Plaintiff’s Brief

      Bourne has asserted in his objection to the motion for

summary judgment that statements in defendants’ brief comparing

Bourne and Drega are defamatory, and he has asserted that he

should be granted leave to add those claims to this action.    No

pending motion seeking to add such claims is before the court;

      4
      Because the court finds the Drega statement to be an
opinion protected by the First Amendment, the court need not
rule on whether Bourne must prove actual malice with respect to
his claim against Brooks, or whether Brooks’s comments were
privileged, see Collins v . Univ. of N.H., 

 , 19-20 (1st
Cir. 2011) (conditional privilege applied to claim against
university for publishing press release implying plaintiff was
dangerous, where university proceeded with reasonable grounds
for believing statement’s truth, and with good faith intent to
alert community members to possible danger).

                                15
nor would such a motion be successful.     See McGranahan v. Dahar,

, 

 (1979) (statements made in

litigation deemed pertinent to its subject matter are not

actionable).   A new action grounded in such claims would likely

be deemed frivolous.


                            Conclusion

      Defendants’ motion for summary judgment (doc. no. 154) is

granted, all of the parties’ pretrial filings (doc. nos. 171-89)

are deemed moot, and the motions in limine are denied (doc. nos.

177-79 and 187-89) for that reason.     The clerk is directed to

enter judgment consistent with this order and close the case.

      SO ORDERED.




                                 Landya %ccjfferty
                                 United States Magistrate Judge

January 8, 2013

cc:   Samuel J. Bourne, pro se
      Brian J.S. Cullen, Esq.

LBM:nmd




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