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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[NOT FOR PUBLICATION]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
NYNEX Corporation.

defendant-appellee

Desmond's complaint alleged that Desmond,

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
phone

calls

services.

electronic

On

bullet" was

and generally
June

10,

attempts

to

problems.

for

with

his

example,

"an

phone lines,

On February 24, 1992, after

dial

two

unsuccessful, Desmond spoke to


about these

1991,

sent through Desmond's

presumably directed at Desmond.


Desmond's

interfering

telephone

numbers

were

a repair operator to complain

The operator allegedly

she would not register my complaint

"stated that

and that I should see

`Psychiatrist.'"
Based
complaint
had
to

on

these

factual

set forth five causes

allegations,

of action:

Desmond's

(1) that NYNEX

engaged in a conspiracy with a federal government entity


violate

Desmond's

constitutional right

intercepting his phone calls;

of

privacy

by

(2) that the interference with

Desmond's phone services constituted intentional interference


with

his business

attempts

and

to litigate

other relationships,
other matters

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including

before the

his

courts; (3)

that

the

operator's statement

that

Desmond

should see

psychiatrist constituted intentional infliction


distress, for
doctrine

which NYNEX was legally

of

respondeat superior;

of emotional

responsible under the

(4)

that the

operator's

statement constituted slander of Desmond, for which NYNEX was


legally

responsible

under

superior; and (5) that


Act

of

1934,

47

the

doctrine

of

respondeat

NYNEX had violated the Communications

U.S.C.

151

et

seq.,

and

certain

unspecified federal tariff regulations.


On

April 21,

1992, the

noting that a substantial


complaint
pursuant

occurred in
to 28

New York

part of the events alleged

Massachusetts,

U.S.C.

1391(a),

to

dismiss

12(b)(6),
February

and
28,

Desmond's

Desmond
1994

complaint

Memorandum

of

Complaint."

the

Law

complaint
responded,

granted
"for
in

NYNEX's
the

Support

Desmond appealed.

in the

transferred the

1406(a) to

Court for the District of Massachusetts.


motion

district court,

Fed.

R. Civ.

P.

court

on

district

motion

reasons

the District

After NYNEX filed a

under
the

case

and

stated

of Motion

dismissed
in

NYNEX's

to

Dismiss

name

NET

the

We affirm.

The Merits
__________

Desmond's

complaint

does

not

as

defendant.

Indeed,

since Desmond resides

in Massachusetts

-4-

and

there is no dispute that

business in
diversity

NET has its principal place of

Massachusetts, to
of

citizenship

do so would

in

this

implicitly acknowledges, however --

destroy complete

case.

The

complaint

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
did

state

that

"spokesperson of
could
liable

justify
for

the

accompanying the complaint Desmond

operator

NYNEX").
piercing the

the

alleged

Accordingly, NYNEX cannot be


action alleged in the

identified

herself

as

Desmond has alleged no facts that


corporate
acts

of

veil
its

to make

subsidiary,

liable on any of the

complaint.

NYNEX

For this reason

NET.

causes of
alone, we

would affirm the district court's dismissal.


In

any event, even if Desmond

party-defendant, we

would

still affirm

had sued the proper


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


allege

facts sufficient to show that NYNEX acted under color

of state

law.

utterly

lacking

conspired
his

Desmond's vague and


supporting

detail,

government entity"

services are

See McGillicuddy
________________

conclusory allegations,

factual

with "some unknown

telephone

action.

he has failed to

not

adequate

v. Clements,
________

that

NYNEX

to disrupt

to allege

state

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.
1B).

All

investigate

that
his

he

alleges

is

claims

that

some

that

NYNEX

government

214,

refused

to

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

breach

advantageous relationship
of

Geltman,
_______

contract.

or

knowingly induced

See United Truck Leasing Corp.


________________________________

a
v.

406 Mass. 811, 551

N.E.2d 20 (1990).

Desmond did

that NYNEX knew

of any advantageous

or business

not allege

relationship between

Desmond and anyone else,

knew of Desmond's other litigation.

or that NYNEX

Consequently, dismissal

of this claim was proper.


It is plain on
telephone operator's

the face of the complaint

that the

statement that Desmond needed

to see a

psychiatrist did not constitute either intentional infliction


of emotional distress or slander under Massachusetts law.
state

claim

for

intentional

infliction

of

To

emotional

distress, plaintiff must allege conduct that was "extreme and


outrageous,"
"utterly

"beyond all

intolerable in

possible
a

bounds of

decency," and

civilized community."

Agis
____

v.

-6-

Howard Johnson Co., 371

Mass. 140, 145, 355 N.E.2d

315, 319

__________________
(1976).
meet

The operator's alleged statement

this standard.

hurt feelings

obviously did not

A plaintiff must allege more than "mere

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
v.

it was published to any other person, see Economopoulos


___ _____________
A.G. Pollard Co., 218
_________________

Desmond's argument on
was published

Mass. 294,

105 N.E.

appeal that he

because he alleged

896 (1914).

did allege the

that his phone

remark

calls were

being intercepted is frivolous.


Since
either

slander

distress, NYNEX

Desmond did not state


or

intentional

could not

a cause of action for

infliction

be liable in

of

emotional

respondeat superior

for the telephone operator's statement.


Desmond's
NYNEX's

alleged

complaint did
conduct,

shorn

not specify
of

the

in what

way

insufficient

allegations of conspiracy, should be thought to have violated


the

Communications

regulations.

Act

or

applicable

federal

No such violation is readily apparent.

tariff

-7-

court's

Desmond

also

transfer

of

Massachusetts was
well

within

the

this

the transferring

conduct

Massachusetts.

the

New

to

the

action

improper and ex

given that Desmond


of

argues that

parte.

court's

York district
District

The

transfer was

discretion, however,

resides in Massachusetts and


alleged

in

the

Since Desmond

of

complaint

all or most
occurred

in

acknowledges that the case was

transferred "over [his] objections," his allegations that the


transfer was ex parte are frivolous.
a

It is well settled that

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

should have recused himself


toward

Desmond personally.

reason, beyond the district


that

the district

argues that

the

district judge

because of his alleged hostility


However,

Desmond has

given no

judge's adverse ruling, to think

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.
________

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