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Where a defendant has moved to dismiss defamation counts brought by her ex-husband and his new wife, the motion should be denied because application of the litigation privilege would be premature.
“Plaintiff Lucas Noble (‘Lucas’) and defendant Jessica Crovetti (‘Crovetti’) were previously married and have two minor daughters. They were divorced in 2018 and are presently the parties in post-divorce judgment proceedings pending in the Essex Probate and Family Court (Docket No. ES16D0052DR) (‘PFC’ and ‘PFC Action’).
“In the Complaint, Lucas and his current spouse, plaintiff Amanda Noble (‘Amanda’), allege that Crovetti slandered and libeled them to, inter alia, staff at the daughters’ school, residents of their town, the children’s therapist, and the guardian-ad-litem (‘GAL’) appointed by the PFC in the PFC Action.
“Lucas and Amanda further allege that Crovetti’s conduct in making the alleged defamatory statements breached two agreements between them (i.e., a Separation Agreement and a document titled ‘Release of All Claims’). The Complaint sets forth the following causes of action: breach of contract (Count I), defamation per se (Count II), defamation (Count III), intentional and negligent infliction of emotional distress (Count IV), and abuse of process (Count V). …
“In sum, the Court rules that, as a matter of law, the Merger Clause in the SA bars Lucas from bringing any claims for violations of the provisions in the SA ‘relating to the children,’ i.e., the alleged violations of the SA described in the Complaint at ¶¶68(c), 68(d), 68(e), 68(f), 68(g), 68(h), 68(i), and 68(j); thus, those claims must be dismissed. However, the Court further rules that the alleged violations of the SA described in the Complaint at ¶¶68(a)-(b) do not ‘relate to the children’ and, thus, they are actionable breaches of the SA.
“Accordingly, the Motion To Dismiss is allowed as to so much of Count I of the Complaint that alleges that Crovetti violated provisions in the SA ‘relating to the children,’ including the violations alleged in the Complaint at ¶¶68(c), 68(d), 68(e), 68(f), 68(g), 68(h), 68(i), and 68(j). The Motion To Dismiss is denied as to the claims for breach of the SA alleged in ¶¶68(a) and 68(b) of Count I. …
“The Court will next address the sufficiency of Count II of the Complaint, alleging that Crovetti committed defamation ‘per se,’ and Count III, alleging that Crovetti committed defamation. …
“… Here, the plaintiffs allege in Count II that Crovetti committed defamation per se by ‘publicizing false statements meant to prejudice the plaintiffs[’] personal and professional reputations,’ … and by falsely stating that Lucas committed a crime. …
“In Counts II and III of the Complaint, the plaintiffs claim that Crovetti allegedly made (the same) twenty specific false statements, which are enumerated at ¶¶83(a)-83(t) (Count II) and at ¶¶-99(a)-99(t) (Count III). …
“… Crovetti cites the case of Sullivan v. Birmingham, 11 Mass. App. Ct. 359 (1981), and others, for the proposition that she ‘has absolute immunity’ for statements made ‘while a judicial proceeding [was] active.’ …
“Nevertheless, Crovetti’s argument that the litigation privilege requires the dismissal of Counts II and III is overstated and misplaced. …
“Here, in deciding the Motion To Dismiss, as stated, the Court must accept the factual allegations asserted in the Complaint as true, ‘even if doubtful in fact.’ … Thus, at this stage of the proceedings, the Court is precluded from conducting the required ‘fact-specific analysis,’ which must be decided on summary judgment or at trial.
“At bottom, Counts II and III of the Complaint ‘‘plausibly suggest[]’ … an entitlement to relief.’ … Therefore, the Motion To Dismiss as to Counts II and III of the Complaint is denied.”
Other counts
“The Court will next address the sufficiency of Count IV of the Complaint, which alleges that Crovetti committed intentional and negligent infliction of emotional distress. …
“Other than the ‘legal conclusions cast in the form of factual allegations’ at ¶¶106 – 112, the Complaint fails to even mention that the plaintiffs suffered any emotional distress, never mind severe emotional distress (as needed for a claim of intentional infliction of emotional distress) or physical harm (as needed for a claim of negligent infliction of emotional distress).
“Therefore, the Motion To Dismiss as to Count IV of the Complaint is allowed. …
“Count V of the Complaint alleges that Crovetti committed abuse of process. …
“Here, notwithstanding the failure to specifically identify the ‘process’ at issue in the Complaint, the allegations in the Complaint about the Emergency Motion and the content of the Emergency Affidavit … are sufficient, although just barely, for the Court to rule that Count V plausibly suggests an entitlement to relief.
“Therefore, the Motion To Dismiss as to Count V of the Complaint is denied.”
Noble, et al. v. Crovetti (Lawyers Weekly No. 12-030-24) (23 pages) (Karp, J.) (Essex Superior Court) (Civil Action No. 2477CV00476) (Aug. 14, 2024).
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