Clopper v. Harvard University (1:20-cv-11363)

MOTION to Appoint Special Process Server by Eric Clopper. (Attachments: # 1 Text of Proposed Order Proposed Order 4C Motion)(Vigorito, Michael) (Entered: 07/20/2020)

MOTION for Leave to Appear Pro Hac Vice for admission of Andrew J. Delaney Filing fee: $ 100, receipt number 0101-8335765 by Eric Clopper. (Attachments: # 1 Affidavit Affidavit of Andrew Delaney, Esq., # 2 Text of Proposed Order Proposed Order)(Vigorito, Michael) (Entered: 07/20/2020)

Summons Issued as to All Defendants. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Vieira, Leonardo) (Entered: 07/20/2020)

Judge Richard G. Stearns: ELECTRONIC ORDER entered granting 4 Motion for Leave to Appear Pro Hac Vice. Added Andrew DeLaney. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Pacho, Arnold) (Entered: 07/21/2020)

WAIVER OF SERVICE Returned Executed by President and Fellows of Harvard College, Harvard University. President and Fellows of Harvard College waiver sent on 7/23/2020, answer due 9/21/2020; Harvard University waiver sent on 7/23/2020, answer due 9/21/2020. (Fick, William) (Entered: 07/23/2020)

NOTICE of Appearance by Robert A. Bertsche on behalf of The Harvard Crimson (Bertsche, Robert) (Entered: 08/17/2020)

Assented to MOTION for Extension of Time to August 31, 2020 to File Answer or Otherwise Respond to Plaintiff's Complaint by The Harvard Crimson.(Lambert, Michael) (Entered: 08/17/2020)

Judge Richard G. Stearns: ELECTRONIC ORDER entered granting 16 Assented to MOTION for Extension of Time to September 14, 2020 to File Answer or Otherwise Respond to Plaintiff's 1 Complaint. (Pacho, Arnold) (Entered: 09/01/2020)

Assented to MOTION for Extension of Time to September 28, 2020 to File Answer or Rule 12 Response by The Harvard Crimson.(Bertsche, Robert) (Entered: 09/14/2020)

Assented to MOTION for Extension of Time to September 28, 2020 to File Answer re 1 Complaint (or other responsive pleading) by Harvard University, President and Fellows of Harvard College.(Fick, William) (Entered: 09/15/2020)

Judge Richard G. Stearns: ELECTRONIC ORDER entered granting 20 Motion for Extension of Time to respond to the Complaint. Harvard and President and Fellows of Harvard College's response is due by 9/28/2020. (Zierk, Marsha) (Entered: 09/16/2020)

Assented to MOTION for Extension of Time to October 5, 2020 to File Answer or Otherwise Respond to Plaintiff's Complaint by The Harvard Crimson.(Lambert, Michael) (Entered: 09/28/2020)

Assented to MOTION for Leave to File Excess Pages by Harvard University, President and Fellows of Harvard College. (Attachments: # 1 Proposed Memorandum of Law, # 2 Exhibit D, # 3 Exhibit E, # 4 Exhibit F)(Fick, William) (Entered: 09/28/2020)

Judge Richard G. Stearns: ELECTRONIC ORDER entered granting 22 Assented to MOTION for Extension of Time to October 5, 2020 to File Answer or Otherwise Respond to 1 Plaintiff's Complaint. (Pacho, Arnold) (Entered: 09/29/2020)

Judge Richard G. Stearns: ELECTRONIC ORDER entered granting 25 MOTION to Seal Documents (Exhibits A, B, & C in support of Motion to Dismiss). (Pacho, Arnold) (Entered: 09/29/2020)

MEMORANDUM in Support re 23 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Harvard University, President and Fellows of Harvard College. (Attachments: # 1 Exhibit D, # 2 Exhibit E, # 3 Exhibit F)(Fick, William) (Entered: 09/29/2020)

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by The Harvard Crimson.(Bertsche, Robert) (Entered: 10/05/2020)

MEMORANDUM in Support re 34 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by The Harvard Crimson. (Bertsche, Robert) (Entered: 10/05/2020)

Assented to MOTION for Extension of Time to 10/26/2020 to File Opposition to Harvard Crimson's Motion to Dismiss by Eric Clopper.(Vigorito, Michael) (Entered: 10/15/2020)

Copy re [dkt # 37] Order on Motion to Dismiss for Failure to State a Claim and docket sheet mailed to Andrew DeLaney on 10/15/20. (Pacho, Arnold) (Entered: 10/15/2020)

SUMMONS Returned Executed (Vigorito, Michael) (Entered: 10/16/2020)

MOTION to Set Aside Order of Dismissal and to Submit Opposition to Motion to Dismiss by Eric Clopper.(Vigorito, Michael) (Entered: 10/16/2020)

Judge Richard G. Stearns: ELECTRONIC ORDER entered denying 44 Motion to Set Aside and finding as moot 42 Motion to Seal Document and 43 Motion to Set Aside.Plaintiff moves to set aside the Order of Dismissal issued by this court on October 14, 2020. Having reviewed plaintiff's explanation for his failure to comply with the court's deadline and the contents of his proposed opposition to Harvard's motion to dismiss, the court DENIES his motion. Specifically, the court determines that, because plaintiff has failed to raise any meritorious argument against dismissal, it would not be in the interests of justice to set aside its prior Order.Plaintiff's opposition fails to address the key pleading deficiencies cited by the court in its Order. The opposition does not, for example, explain how Count I can survive in the absence of any allegation of state action or how Count II can survive in the absence of any allegation of direct interference with plaintiff's exercise of a constitutional right by means of threats/coercion (actions occurring after the performance in retaliation for its contents cannot establish direct interference by means of threats/coercion with respect to the performance itself). Nor does it point to any factual allegations within the Complaint which might render plaintiff's conclusory assertions of actual malice, a common scheme or plan to commit a tort, etc., plausible.Plaintiff attempts to avoid the dismissal of certain claims by invoking the applicability of exceptions to the general rule. For example, he argues that his contract claims should survive because Harvard waived enforcement of any prohibition on nudity and/or because the restriction in the license issued by the City of Cambridge to Sanders Theatre is unconstitutional. But neither argument has merit. Plaintiff does not allege that any official with sufficient authority to bind the university made an oral promise not to enforce the prohibition on nudity (to the extent he cites statements made by Hammond and Bronski, the Complaint does not allege that Hammond or Bronski had actual or apparent authority to bind the university, and the court cannot reasonably infer that they did from other allegations in the Complaint). And the court cannot address the constitutionality of the ordinance where the City itself is not party to this litigation. The court accordingly denies the motion to set aside its Order. (RGS, law3) (Entered: 10/19/2020)

Judge Richard G. Stearns: ELECTRONIC ORDER entered granting 46 Motion for Extension of Time. Response due by 11/3/2020. The court is not inclined to any further extension. (RGS, law3) (Entered: 10/26/2020)

First MOTION to Seal by Eric Clopper.(DeLaney, Andrew) (Entered: 11/02/2020)

Judge Richard G. Stearns: ELECTRONIC ORDER entered granting 34 Motion to Dismiss for Failure to State a Claim.For the reasons stated in defendant The Harvard Crimson's memorandum, as well as those discussed in more detail below, the court will ALLOW its motion and will dismiss all claims against the Crimson with prejudice.Plaintiff's defamation claim (Count VII) relies on three alleged defamatory statements made by the Crimson: (1) that Clopper "improperly worked on the play during work hours," (2) that he "is anti-Semitic"; and (3) that he "engaged in a 'nude, anti-Semitic rant' in Harvard's Sanders Theatre." Pl.'s Opp'n at 4, citing Compl. paras. 101(c), 105. The court determines that none of these statements is actionable. The first statement, for example, is not reasonably capable of a defamatory meaning because it is demonstrably true. The Complaint directly acknowledges that plaintiff worked on his play during work hours, see Compl. para. 12, and while plaintiff appears to suggest that the Crimson falsely characterized this work as "improper," review of the article itself reveals no mention of the propriety of any work he did on his play during work hours.Portions of the third statement are also demonstrably true. Plaintiff did include nudity in his performance. See id. para. 20. And even assuming, as plaintiff suggests, that he did not specifically perform a "nude... rant" because he did not speak during the nude aspect of his performance, the court disagrees that the "nude, anti-Semitic rant" headline is reasonably capable of the defamatory meaning proposed by plaintiff. Statements must be read in their context, see Foley v. Lowell Sun Pub. Co., 404 Mass. 9, 11 (1989), and here, the context of the referenced headline indisputably dispels any defamatory interpretation. The first line of the article, after all, explicitly clarifies that "Harvard is 'reviewing' reports that University employee Eric Clopper made anti-Semitic comments and stripped to the nude during a public performance he gave in Sanders Theatre." Ex. 1 to Aff. of Robert A. Bertsche (emphasis added). The article also includes several quotations from plaintiff describing his nude performance as the conclusion or "about the last 20 seconds" of his play. Id.As to the remaining statements -- the second statement and the portions of the third statement characterizing plaintiff's performance as a rant or anti-Semitic -- the court determines that they are not actionable because they constitute opinions based on disclosed, non-defamatory facts (i.e., direct quotations from the performance). See Dulgarian v. Stone, 420 Mass. 843, 849-850 (1995). The court accordingly dismisses Count VII in its entirety.The court also dismisses the remaining claims against the Crimson. The civil rights claim (Count II) fails because the Complaint does not plausibly allege that the Crimson interfered with any of plaintiff's constitutional rights by means of threats, intimidation, or coercion, as required by the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, secs. 11H, 11I. See Bally v. Northeastern Univ., 403 Mass. 713, 718 (1989). And finally, the tortious interference (Count IX) and conspiracy (Count X) claims fail because they depend on the viability of the nonactionable defamation claim. (RGS, law3) (Entered: 11/05/2020)

Judge Richard G. Stearns: ELECTRONIC ORDER entered granting 54 Motion for Extension of Time to File. Any notice of appeal against defendant Harvard University is due on December 7, 2020. (RGS, law3) (Entered: 11/10/2020)