De Barros v. From You Flower, LLC

ELSON M. DE BARROS, Plaintiff, v. FROM YOU FLOWER, LLC; ROBYIN FONTAINE & DELIVERY COMPANY CAMBRIDGE, MASSACHUSETTS, Defendants.

C. A. No. 18-503WES

United States District Court, D. Rhode Island

September 13, 2021

REPORT AND RECOMMENDATION

PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE.

On September 11, 2018, Plaintiff Elson M. De Barros filed a pro se complaint against Defendants From You Flower LLC, (“FYF”) and Robyin Fontaine, an FYF employee alleged to be a “supervisor.”^[1] ECF No. 5 at 3. As amended, the operative pleading alleges negligence defamation and intentional infliction of harm due to the release of private information. ECF No. 5 (“Complaint” or “Compl.”). In substance, Mr. De Barros claims that FYF failed to adhere to his floral delivery instruction that no one was to receive his ordered bouquet of flowers and the accompanying card message, except for the intended recipient, a physician named Dr. Susan Redmond. He directed that the delivery was to be made on July 5, 2016, to Dr. Redmond, at her place of employment, the Arlington Family Medical Practice, P.C., in Arlington, Massachusetts (“Family Medical Practice”). Because Dr. Redmond was not at work that day, the bouquet was left with a fellow employee. The flowers were not welcome - the office manager of Dr. Redmond's office called the police, which resulted in Mr. De Barros being charged, wrongfully as he claims, with the misdemeanor of accosting and annoying a person of the opposite sex. At his criminal trial, Dr. Redmond was the principal witness against him. In the instant case, Mr. De Barros claims that the Family Medical Practice office manager's action in calling the police was triggered by the flower delivery and was encouraged by Ms. Fontaine, who offered to supply the office manager with any information that she needed to file a charge against Mr. De Barros.

Mr. De Barros alleges that these events have caused him catastrophic damages. In this case, he seeks to hold FYF and Ms. Fontaine legally responsible for these injuries. In a second case filed in this Court ten months after this one, Mr. De Barros sued Dr. Redmond, Family Medical Practice and its office manager (Jennifer Hillery), alleging that they are legally responsible for the same injuries. De Barros v. Family Practice Group, P.C., No. 19-cv-367-WES, ECF No. 1 (“FMG Complaint” or “FMG Compl.”). In a third case, filed a few months before this one, Mr. De Barros sued - unsuccessfully - the Massachusetts Supreme Judicial Court seeking an order of mandamus to compel it to declare that the evidence against him in the criminal case was insufficient to warrant his criminal prosecution; in the pleading in that case, Mr. De Barros alleged that his efforts to “advocate for better medical treatment . . . resulted in . . . [De Barros] . . . being being criminally charged for alleged inappropriate conduct within a medical office.” Debarrros v. Supreme Jud. Ct. of Massachusetts, No. 18-CV-11119-ADB, 2018 WL 2744980, at *1 (D. Mass. June 7, 2018), aff'd, No. 18-1565 (1st Cir. Sept. 13, 2019).

After substantial delays due to seven unsuccessful interlocutory appeals, Defendants each filed a motion for summary judgment, both of which have been referred to me for report and recommendation. 28 U.S.C. § 636(b)(1)(B). Ms. Fontaine's motion (ECF No. 85) is based on her discharge in bankruptcy of all debts, including Mr. De Barros' contingent claim against her in this case; it will be addressed in a separate report and recommendation. FYF's motion for summary judgment (ECF No. 86) is based on Mr. De Barros' version of the material facts, as well as on additional facts that Mr. De Barros has not disputed; assuming them to be true, FYF contends that it is entitled to judgment as a matter of law. ECF No. 86. After these two summary judgment motions were filed, Mr. De Barros requested and, in light of his pro se status, was afforded an unusually long extension of time to prepare and file his opposition - at his request, the due date was reset for August 30, 2021, with the caution that any further extensions or alterations to the schedule would not be lightly granted.^[2] Text Order of July 1, 2021. August 30 has come and gone; Mr. De Barros has filed nothing. Therefore, both motions are unopposed.

For the reasons that follow, I recommend that the FYF motion for summary judgment be granted and that judgment enter against Mr. De Barros and in favor of both FYF and Ms. Fontaine on the merits of all claims against them.^[3]

I. Background^[4]

Mr. De Barros was a patient of Dr. Susan Redmond, a physician who practices with Family Medical Practice in Arlington Massachusetts, beginning in March 2016 until July 2016. FMG Compl. ¶¶ 6-7. Mr. De Barros asked Dr. Redmond for a hug and other favors and sent her emails that proclaimed his love for her. Id. ¶ 7. Mr. De Barros has stated that he had misunderstood Dr. Redmond's “politeness and friendliness, as an invitation to pursue her further outside of their ‘Patient to Doctor' relationship.” Id. ¶ 19.

On July 4, 2016, Mr. De Barros ordered a flower bouquet with a teddy bear and a card message to be delivered by FYF to Dr. Redmond at her office at Family Medical Practice. DSUF ¶ 3; ECF No. 86-2 at 2. The delivery was to be made on July 5, 2016. Id. As “special instructions, ” Mr. De Barros requested that, “you call recipient before delivery to see if ok to leave with front desk if recipient is unavailable.” DSUF ¶¶ 4, 9. Mr. De Barros' attachments to his original complaint, as well as the FYF Order Management System, ^[5] reveal that, over the course of July 4 and into July 5, Mr. De Barros repeatedly emailed various versions of the card message to be included with the flowers to various persons at FYF. See DSUF ¶¶ 6-8; ECF No. 1-1 at 1-8; ECF No. 86-2 at 2-3. As reflected in the FYF Order Management System, FYF employees explained to Mr. De Barros that the message that he wanted was too long to be included as the card message (because it exceeded 175 characters); a truncated version was included as the card message instead.^[6] DSUF ¶¶ 6-8; ECF No. 86-2 at 2.

On July 5, 2016, the day Mr. De Barros wanted the flowers to be delivered, the FYF Order Management System reflects that Mr. De Barros repeatedly emailed and called about the order. ECF No. 86-2 at 2-3. At 11:46 and 11:56 a.m. on July 5, 2016, the FYF Order Management System has entries indicating that Mr. De Barros wanted to edit his card message again, but that it was too late in that the order was “already out” and “on the truck” for delivery. Id. at 3. According to FYF's records, at 12:42 p.m., in compliance with Mr. De Barros' “special instructions” to FYF, an FYF representative told Mr. De Barros that the intended recipient (Dr. Redmond) was not at work that day. Id. at 4. He responded at 12:45 p.m., that “[h]e now doesn't want the card message dlvrd because she's not in the office and he doesn't want anyone to read it.” Id. This is consistent with Mr. De Barros' Amended Complaint, in which he alleges that he “expressly requested that no one else was to receive the order except the intended recipient.” Compl. ¶ 3. However, FYF's Order Management System reflects that, by the time this instruction was received, it was too late: “[w]e cannot stop the dlvry nor can we change the card message.” ECF No. 86-2 at 4. Next, at 1:28 p.m., FYF's Order Management System reflects that Mr. De Barros changed course; “OK so now this customer is wanting the dlcl again”; by 2:31 p.m., “he's called again and he's threatening this better be dlvrd or he will find a way to sue us.” Id. at 4. Meanwhile, FYF received confirmation that delivery had been made at 1:50 p.m. DSUF ¶ 10; ECF No. 86-2 at 5. When he was told that the flowers had been delivered, Mr. De Barros claimed that he did not believe this was true and threatened to sue FYF for “non-delivery of same day.” Id.

One of the several FYF employees who dealt with Mr. De Barros on July 5, 2016, was Defendant, Robyin Fontaine; she became involved shortly after noon on July 5, 2016. ECF No. 86-2 at 3-5. The FYF Order Management System indicates that several of the FYF's employees who dealt with Mr. De Barros perceived him to be berating and threatening. DSUF ¶ 12; ECF No. 86-2 at 3-4 (e.g., “very angry, ” “I went to Robyin due to the threats, ” “yelling, ” “swearing and upset, ” “now threatening me saying he knows I'm in [location] and he can drive up here! . . . said I am Macho and you are a woman”). These entries indicate that Ms. Fontaine was brought in to deal with the situation. Id. at 3; see DSUF ¶ 12. Ms. Fontaine's first action after she became involved was to instruct another employee “to refund him in full and do a comp because this [FYF's inability to send the full-length card message]^[7] is our fault.” Id. As evidenced by an attachment Mr. De Barros appended to his Amended Complaint, Ms. Fontaine emailed Mr. De Barros the next day (July 6, 2016) to advise him that his money for the order had been refunded in full. ECF No. 5-3 at 1-2; see DSUF ¶ 11.

Mr. De Barros continued to call FYF on July 6, 2016. By this time, all but one of his communications were with Ms. Fontaine. ECF No. 86 at 5-6. He continued to question the signature of the person who accepted the flower delivery and Ms. Fontaine agreed to call the Family Medical Practice office to ask who had signed for the flowers. Id. at 6. Ms. Fontaine's entry in the Order Management System regarding her communication with Family Medical Practice is as follows:

Calling the office Katie signed for the flowers they fear this cm and will no longer be accepting flowers from him. She said if the police need to be called they will cooperate fully.

Id. at 6; see DSUF ¶ 10. Mr. De Barros' Amended Complaint confirms that Ms....