
USCA1 Opinion

	




          October 20, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1230                                   JOHN F. DESMOND,                                Plaintiff, Appellant,                                          v.                                  NYNEX CORPORATION,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ____________________            John F. Desmond on brief pro se.            _______________            Richard P. Owens, on brief for appellee.            ________________                                 ____________________                                 ____________________                      Per   Curiam.    Pro  se  plaintiff-appellant  John                      ____________            Desmond filed suit on March 2, 1992 in the District Court for            the Southern District of New York against  defendant-appellee            NYNEX Corporation.  Desmond's complaint alleged that Desmond,            a  Massachusetts resident,  receives telephone  services from            New England Telephone ("NET"), a NYNEX subsidiary.  According            to the complaint, in 1991 and 1992 the Bush Administration or            "some unknown government entity" was jamming and intercepting            Desmond's phone  calls  and generally  interfering  with  his            phone  services.    On  June  10,   1991,  for  example,  "an            electronic  bullet" was  sent through Desmond's  phone lines,            presumably directed at Desmond.   On February 24, 1992, after            Desmond's  attempts  to  dial   two  telephone  numbers  were            unsuccessful, Desmond spoke to  a repair operator to complain            about these  problems.   The operator allegedly  "stated that            she would not register my complaint  and that I should see  a            `Psychiatrist.'"                      Based  on  these  factual   allegations,  Desmond's            complaint  set forth five causes  of action:   (1) that NYNEX            had  engaged in a conspiracy with a federal government entity            to  violate  Desmond's  constitutional right  of  privacy  by            intercepting his phone calls;  (2) that the interference with            Desmond's phone services constituted intentional interference            with  his business  and  other relationships,  including  his            attempts  to litigate  other matters  before the  courts; (3)                                         -3-            that  the  operator's statement  that  Desmond  should see  a            psychiatrist constituted intentional infliction  of emotional            distress, for  which NYNEX was legally  responsible under the            doctrine  of  respondeat superior;  (4)  that the  operator's            statement constituted slander of Desmond, for which NYNEX was            legally   responsible  under   the  doctrine   of  respondeat            superior; and (5) that  NYNEX had violated the Communications            Act   of  1934,  47  U.S.C.      151  et  seq.,  and  certain            unspecified federal tariff regulations.                      On  April 21,  1992, the  New York  district court,            noting that a substantial  part of the events alleged  in the            complaint  occurred in  Massachusetts,  transferred the  case            pursuant  to 28  U.S.C.    1391(a),  1406(a) to  the District            Court for the District of Massachusetts.  After NYNEX filed a            motion  to  dismiss  the  complaint  under  Fed.  R. Civ.  P.            12(b)(6),  and  Desmond  responded,  the  district  court  on            February  28,  1994  granted  NYNEX's  motion  and  dismissed            Desmond's  complaint  "for  the  reasons  stated  in  NYNEX's            Memorandum  of  Law  in  Support  of Motion  to  Dismiss  the            Complaint."  Desmond appealed.  We affirm.                                  The Merits                                  __________                      Desmond's  complaint   does  not  name   NET  as  a            defendant.   Indeed,  since Desmond resides  in Massachusetts                                         -4-            and  there is no dispute that  NET has its principal place of            business in  Massachusetts, to  do so would  destroy complete            diversity  of  citizenship  in  this  case.    The  complaint            implicitly acknowledges, however --  as NYNEX insists -- that            it is NET that provides telephone services to Desmond, and it            was an NET operator who made the alleged statement to Desmond            (although in an affidavit  accompanying the complaint Desmond            did  state   that  the  operator  identified   herself  as  a            "spokesperson of  NYNEX").  Desmond has alleged no facts that            could  justify  piercing the  corporate  veil  to make  NYNEX            liable  for   the  alleged  acts  of   its  subsidiary,  NET.            Accordingly, NYNEX cannot be  liable on any of the  causes of            action alleged in the  complaint.  For this reason  alone, we            would affirm the district court's dismissal.                      In  any event, even if Desmond  had sued the proper            party-defendant, we  would  still affirm  the district  court            because none of Desmond's claims state a cause of action.  He            has not stated a claim under 42 U.S.C.   1983 for invasion of            his constitutional right of privacy because  he has failed to            allege  facts sufficient to show that NYNEX acted under color            of state  law.   Desmond's vague and  conclusory allegations,            utterly  lacking  supporting   factual  detail,  that   NYNEX            conspired  with "some unknown  government entity"  to disrupt            his  telephone  services are  not  adequate  to allege  state            action.   See McGillicuddy  v. Clements,  746 F.2d 76,  77-78                      ________________     ________                                         -5-            (1st Cir. 1984).         Apart   from   these    insufficient            allegations of conspiracy, Desmond does not adequately allege            that NYNEX did anything to violate his right of privacy under            either federal or state law (e.g., Mass. Gen. Laws c.  214,              1B).     All  that  he  alleges  is  that  NYNEX  refused  to            investigate  his  claims  that  some  government  entity  was            invading his privacy.                      To  establish a claim  for intentional interference            with economic or business relations under  Massachusetts law,            a plaintiff must show that the defendant knowingly interfered            with  an  advantageous relationship  or  knowingly induced  a            breach  of  contract.   See United  Truck  Leasing Corp.   v.                                    ________________________________            Geltman,  406 Mass. 811, 551  N.E.2d 20 (1990).   Desmond did            _______            not allege  that NYNEX knew  of any advantageous  or business            relationship between  Desmond and anyone else,  or that NYNEX            knew of Desmond's other litigation.   Consequently, dismissal            of this claim was proper.                      It is plain on  the face of the complaint  that the            telephone operator's  statement that Desmond needed  to see a            psychiatrist did not constitute either intentional infliction            of emotional distress or slander under Massachusetts law.  To            state  a  claim  for  intentional   infliction  of  emotional            distress, plaintiff must allege conduct that was "extreme and            outrageous,"  "beyond all  possible  bounds of  decency," and            "utterly  intolerable in  a  civilized community."   Agis  v.                                                                 ____                                         -6-            Howard Johnson Co., 371  Mass. 140, 145, 355 N.E.2d  315, 319            __________________            (1976).   The operator's alleged statement  obviously did not            meet  this standard.  A plaintiff must allege more than "mere            hurt feelings  or bad manners" to state  a claim.  Santana v.                                                               _______            Registrars of Voters, 398 Mass. 862, 867, 502 N.E.2d 132, 135            ____________________            (1986).                      The  operator's alleged statement could not support            an action for  slander because  it was a  mere expression  of            opinion, see Fleming v. Benzaquin, 390 Mass. 175, 180-86, 454                     ___ _______    _________            N.E.2d 95, 100-03 (1983), and because there was no allegation            that  it was published to any other person, see Economopoulos                                                        ___ _____________            v.  A.G. Pollard  Co., 218  Mass. 294,  105 N.E.  896 (1914).                _________________            Desmond's argument on  appeal that he  did allege the  remark            was published  because he alleged  that his phone  calls were            being intercepted is frivolous.                      Since  Desmond did not state  a cause of action for            either   slander  or  intentional   infliction  of  emotional            distress, NYNEX  could not  be liable in  respondeat superior            for the telephone operator's statement.                      Desmond's  complaint did  not specify  in what  way            NYNEX's   alleged   conduct,   shorn  of   the   insufficient            allegations of conspiracy, should be thought to have violated            the  Communications   Act   or  applicable   federal   tariff            regulations.  No such violation is readily apparent.                                         -7-                      Desmond  also  argues that  the  New  York district            court's  transfer   of  this   action  to  the   District  of            Massachusetts was  improper and ex  parte.  The  transfer was            well  within  the transferring  court's  discretion, however,            given that Desmond  resides in Massachusetts and  all or most            of  the   conduct  alleged  in  the   complaint  occurred  in            Massachusetts.  Since Desmond  acknowledges that the case was            transferred "over [his] objections," his allegations that the            transfer was ex parte are frivolous.  It is well settled that            a  court may transfer a case sua sponte pursuant to 28 U.S.C.                1404(a) and  1406(a).   See,  e.g., Caldwell  v. Palmetto                                        ____________________     ________            State Savings Bank, 811 F.2d 916, 919 (5th Cir. 1987).              __________________                      Finally,  Desmond  argues that  the  district judge            should have recused himself  because of his alleged hostility            toward  Desmond personally.   However,  Desmond has  given no            reason, beyond the district  judge's adverse ruling, to think            that  the district  judge bears  him any  ill will.   Desmond            therefore has stated no reasonable basis for recusal.                      We have considered all of Desmond's other arguments            and find them meritless.                      The judgment of the district court is affirmed.                                                            ________                                         -8-
