
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-2266                            ANN S. ADAMS & JOSEPH F. ADAMS,                               Plaintiffs, Appellants,                                          v.                              LARRY W. STEPHENSON, M.D.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                              Cyr, Senior Circuit Judge,                                   ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Ann S. Adams and Joseph F. Adams on brief pro se.            ____________     _______________            Nancy B. Schlacter, Howard M. Cooper and Todd & Weld on brief for            __________________  ________________     ___________        appellee.                                 ____________________                                                                      June 23, 1997                                                                                           ____________________                 Per  Curiam.     In  this  pro   se,  diversity  action,                 ___________            plaintiffs Ann and Joseph Adams advance a trio of tort claims            against defendant  Dr. Larry  Stephenson.  Plaintiffs  are in            the  business of  preparing, editing  and  publishing medical            texts  and  periodicals,  often   under  the  auspices  of  a            Massachusetts corporation (Adams  Publishing Group, Ltd.)  of            which   plaintiff   Ann  Adams   is  the   sole  shareholder.            Defendant,   having  worked   with   plaintiffs  on   earlier            occasions, was engaged  to edit a  textbook published by  the            corporation in  1994.   The instant action  ensued when  that            relationship  soured.    After affording  plaintiffs  various            opportunities  to  supplement their  pleadings,  the district            court dismissed all claims under Fed. R. Civ. P. 12(b)(6) for            failure to state a claim.  We affirm.                 It  is   true,  as  plaintiffs  observe,   that  pro  se            complaints  are accorded  "an  extra degree  of  solicitude."            Rodi v. Ventetuolo,  941 F.2d 22, 23 (1st Cir.  1991).  It is            ____    __________            also  true  that,  at  least in  complex  litigation,  courts            "normally hesitate"  to dismiss under Rule  12(b)(6) prior to            discovery,  when  "a  party  may not  have  all  the  facts."            Resolution Trust Corp. v. Driscoll, 985 F.2d 44, 48 (1st Cir.            ______________________    ________            1993).  Yet even a pro se plaintiff is required "to set forth            factual allegations, either direct or inferential, respecting            each material  element necessary  to  sustain recovery  under                                         -2-            some actionable legal  theory."  Gooley  v. Mobil Oil  Corp.,                                             ______     ________________            851 F.2d 513,  515 (1st  Cir. 1988); accord,  e.g., Dewey  v.                                                 ______   ____  _____            University  of New Hampshire, 694  F.2d 1, 3  (1st Cir. 1982)            ____________________________            (it is "not enough  to allege a general scenario  which could            be dominated by unpleaded facts"; instead, the claim must "at            least    set   forth    minimal    facts,   not    subjective            characterizations, as to who did what to whom and why").  The            demands  on  the  pleader   are  not  onerous:  dismissal  is            appropriate at this stage only if "a lenient construction [of            the complaint]  demonstrates beyond doubt  that the plaintiff            can prove no set of facts to support [the] claim for relief."            Rockwell v. Cape Cod Hosp., 26 F.3d 254, 260 (1st Cir. 1994).            ________    ______________            Yet "minimal  requirements are not tantamount  to nonexistent            requirements"; "[t]he threshold [for  stating a claim] may be            low, but  it is  real."   Gooley, 851 F.2d  at 514;  see also                                      ______                     ________            Glassman v. Computervision  Corp., 90 F.3d 617, 628 (1st Cir.            ________    _____________________            1996).   Having exercised de  novo review, we  agree with the                                      ________            district  court  that, even  with  all reasonable  inferences            drawn  in their  favor, plaintiffs'  amended  complaint fails            under these standards.                 The  claim  of   interference  with  contractual  rights            requires   little   comment.     See,   e.g.,   Draghetti  v.                                             ___    ____    _________            Chmielewski, 416  Mass. 808, 816 (1994)  (listing elements of            ___________            claim).   Defendant  is  alleged to  have induced  his former            attorney  to disclose  proprietary information  pertaining to                                         -3-            plaintiffs'   business   affairs,    in   violation   of    a            confidentiality  agreement reached  in an  earlier, unrelated            lawsuit between  plaintiffs and an  individual represented by            that  same attorney.    Plaintiffs were  directed to  submit,            under seal,  a description of the  information that allegedly            had been disclosed.   They claim  to have  done so; they  did            not.  Their submission  recited the confidentiality provision            in  the   agreement  but   failed  to  identify   any  actual            information that  was divulged.   The resulting  dismissal of            this claim was therefore fully justified.                  Plaintiffs' "defamation"  claim  is subject  to  several            alternative   constructions.     To  the   extent   they  are            complaining of having been  personally libeled, we agree with            the  district court  that defendant's  March 19,  1996 letter            "was not reasonably susceptible of a defamatory connotation."            Dulgarian  v.  Stone, 420  Mass.  843,  848 (1995)  (internal            _________      _____            quotation  omitted).   Indeed,  that  letter  (which cited  a            "controversy"  over  the  rights  to the  textbook)  made  no            mention of plaintiffs at  all; it referred only to  the Adams            corporation, which owned  the rights to the publication.   We            note in addition that, to the extent plaintiffs are advancing            a  claim  of   business  defamation,  they  lack   individual            standing.     Such  a  claim   would  belong  to   the  Adams            corporation,  notwithstanding  Ms.   Adams'  status  as  sole            shareholder.   See,  e.g., Willis  v. Lipton,  947  F.2d 998,                           ___   ____  ______     ______                                         -4-            1001-02  (1st  Cir. 1991);  Alford  v.  Frontier Enterprises,                                        ______      _____________________            Inc., 599 F.2d 483, 484  (1st Cir. 1979).  A  corporation, of            ____            course,  may be represented in  court only by  counsel.  See,                                                                     ___            e.g., American Metals Service  Export Co. v. Ahrens Aircraft,            ____  ___________________________________    ________________            Inc., 666 F.2d 718, 719 n.2 (1st Cir. 1981).  We fail to see,            ____            in any  event, how  defendant's reference to  a "controversy"            could be  deemed defamatory--to either the  plaintiffs or the            corporation.                 The defamation  claim might also be construed as one for            "injurious falsehood," see, e.g., Dulgarian, 420 Mass. at 852                                   ___  ____  _________            (quoting Restatement  (Second) of  Torts   623A  (1977)), or,            more particularly,  a category  thereof known as  "slander of            title,"  see,  e.g.,  37  Joseph  Nolan  &  Laurie  Sartorio,                     ___   ____            Massachusetts Practice--Tort  Law     132-33  (1989)  (citing            _________________________________            Restatement (Second) of Torts, supra,   624); Fischer  v. Bar                                           _____          _______     ___            Harbor  Banking  and Trust  Co., 857  F.2d  4, 7-8  (1st Cir.            _______________________________            1988); Erikson  v.  O'Brien, 362  Mass. 876  (1972).   Again,                   _______      _______            however, because the copyright to the textbook is held by the            Adams corporation (rather than by plaintiffs personally), any            such  claim  would  belong  to the  corporation.    Moreover,            plaintiffs have made no  allegation that special damages were            sustained--a necessary  element of  the offense.   See, e.g.,                                                               ___  ____            Sharratt  v. Housing  Innovations, Inc.,  365 Mass.  141, 148            ________     __________________________            (1974); Gott v. Pulsifer, 122 Mass. 235, 238 (1877); 37 Nolan                    ____    ________            & Sartorio, supra,   132, at 223-24.                        _____                                         -5-                 Plaintiffs'   remaining  claim--for   interference  with            advantageous  business  relationships--falters  for much  the            same reasoning.   See, e.g.,  Swanset Dev. Corp.  v. City  of                              ___  ____   __________________     ________            Taunton,  423  Mass. 390,  397  (1996)  (listing elements  of            _______            claim).   To  the  extent they  are  complaining of  business            opportunities lost by the  Adams corporation, they again lack            standing.  The amended complaint is devoid of any description            of plaintiffs'  personal business pursuits, much  less of how            such pursuits may have  been affected by defendant's actions.            Nor have  plaintiffs made  any reference to  actual damages--            i.e.,  the "loss  of  advantage directly  resulting from  the            defendant's conduct," Elm Medical  Lab., Inc. v. RKO General,                                  _______________________    ____________            Inc., 403 Mass. 779, 787 (1989)--which is a necessary element            ____            of such  a claim, see, e.g.,  Sharratt, 365 Mass. at  148; 37                              ___  ____   ________            Nolan & Sartorio, supra,   98, at 133.                              _____                 For   these  reasons,  we   conclude  that  the  amended            complaint fails to  state a  claim upon which  relief can  be            granted.  Plaintiffs' motion  to strike transcripts comes too            late and is therefore  denied.  Defendant's motion  to strike                                   ______            appendix is denied as moot.                        ______                 Affirmed.                                                 ________                                         -6-
