Frederick v. Carlson

1

MARCIA FREDERICK, Plaintiff, v. RICHARD CARLSON, Defendant.

Civil Action No. 1:18-cv-11299-IT

United States District Court, D. Massachusetts

March 2, 2023

MEMORANDUM & ORDER

INDIRA TALWANI, UNITED STATES DISTRICT JUDGE

Pending before the court is Plaintiff Marcia Frederick's Motion for Leave to File Second Amended Complaint (“Mot. for Leave”) [Doc. No. 91]. For the reasons set forth below, Frederick's motion is DENIED.

I. Procedural History and Background

In 2018, Frederick, a former Olympic gymnast, filed a Complaint [Doc. No. 1] and Amended Complaint [Doc. No. 22] against her former gymnastics coach, Defendant Richard Carlson, alleging, inter alia, that he had repeatedly molested, sexually abused and assaulted her. Frederick asserted two causes of action against Carlson related to this alleged abuse: (i) negligence (Count Two) and (ii) negligent infliction of emotion distress (Count Four). Am. Compl. ¶¶ 99, 110 161-70, 186-92 [Doc. No. 22].^[1] Carlson filed a Motion to Dismiss [Doc. No. 48], which the court granted based on lack of personal jurisdiction, see Mem. & Order [Doc. No. 89].^[2] With respect to general jurisdiction, the court found that Frederick's allegations of abuse did not show that Carlson had “substantial, continuous, or systematic business activities” in Massachusetts that would render him “at home” in the forum state where Carlson provided unrebutted testimony that his residence and business activities were not in Massachusetts. Mem. & Order 6 [Doc. No. 89].

As for specific jurisdiction, the court found neither the first prong-relatedness-nor the second prong-purposeful availment-of the analysis were met as to Carlson. Id. at 7-10.^[3]Specifically, the court found that Frederick did not allege that Carlson's abuse giving rise to her claims occurred in Massachusetts or that Carlson purposefully availed himself of the privileges of conducting activities in Massachusetts where Frederick only alleged that Carlson traveled to Massachusetts on two occasions unrelated to Frederick's allegations. Id. at 9. The court also declined Frederick's invitation to find purposeful availment based on “the in-forum ‘effects' theory,” as the First Circuit has found this theory, which generally requires defendant's (i) intent to cause injury in the forum and (ii) knowledge that the injury would be felt there, was inaugurated by the United States Supreme Court in Calder v. Jones, 465 U.S. 783 (1984) specifically for use in defamation claims, and has noted that courts that have read Calder more broadly have limited its analysis to intentional torts, which Frederick did not allege. Id. at 9 (citing United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 624 (1st Cir. 2001)).

The court further held that personal jurisdiction as to Carlson did not exist under subsections (c) and (d) of the Massachusetts long-arm statute, Mass. Gen. Laws ch. 223A, § 3. Id. at 10-13. With respect to § 3(c), the court found Murphy v. Erwin-Wasey, Inc., 460 F.2d 661, 664 (1st Cir. 1972), inapplicable where the First Circuit has interpreted Murphy to hold that “an allegedly tortious act committed outside the borders of Massachusetts, purposefully directed at the state and intended to cause injury there, could constitute an in-forum act within the meaning of section 3(c), but has expressed ‘profound reservations about extending the Murphy rationale' to contexts outside of fraudulent misrepresentation.” Id. at 11 (quoting Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 205 (1st Cir. 1994)). The court found personal jurisdiction under § 3(d) did not exist for two reasons: (1) “[s]ection 3(d) is the Massachusetts long-arm statute's general personal jurisdiction provision and is applicable only if the defendant is subject to general personal jurisdiction in Massachusetts”; and (2) while Frederick may have experienced post-trauma related injuries upon return to Massachusetts, the alleged conduct giving rise to the emotional distress was the out-of-state abuse. Id. at 12 (quoting Doe # 1 v. JetBlue Airways Corp., 2021 WL 3375107, at *6 (D. Mass. Aug. 3, 2021)).

The court denied Frederick's request for jurisdictional discovery, reasoning that additional facts regarding Carlson's attendance at gymnastics events in Massachusetts or training of minors who resided in Massachusetts (neither of which were in dispute) or knowledge that his actions would likely cause Frederick emotional distress in Massachusetts would not alter the personal jurisdiction analysis where Frederick had alleged that Carlson committed non-intentional torts. Id. at 13-14. The court provided, however, that Frederick could seek leave to amend her complaint within twenty-one days of the order. Id. at 14, 14 n.7.

Frederick now seeks leave to file a second amended complaint, which Carlson opposes.

II. The Proposed Second Amended Complaint

Frederick seeks to assert the same two causes of action against Carlson in the proposed second amended complaint: (1) negligence and (2) negligent infliction of emotional distress. Proposed Second Am. Compl. (“Prop. Sec. Am. Compl.”) ¶¶ 68-81 [Doc. No. 91-1]. The proposed second amended complaint adds the following allegations.

In 2018, Frederick filed a complaint with United States of America Gymnastics (“USAG”) regarding Carlson's prior abuse of her. Id. at ¶ 49. The USAG complaint stated that Frederick currently lived in Massachusetts. Id. Under the normal USAG process, Carlson would have been provided with a copy of Frederick's complaint, and thus he was aware that Frederick was a Massachusetts resident. Id. at ¶ 50. Carlson prepared false statements denying Frederick's allegations of abuse and questioned Frederick's truthfulness in his written response submitted to USAG and to Frederick, through her attorney. Id. at ¶ 51.

Carlson also denied the abuse in interviews with USAG, which were shared with Frederick through her counsel. Id. at ¶ 53. Carlson was aware that Frederick's attorney was obligated to relay the information he provided in the course of the USAG investigation. Id. As a result of Carlson's denial of the allegations, USAG conducted a telephonic hearing in which Carlson and Frederick participated. Id. at ¶ 52.

During the telephonic hearing, Carlson's legal team questioned Frederick in an “inappropriate and abusive” manner. Id. at ¶ 54. Frederick was physically in Massachusetts during the telephonic hearing and the questioning caused Frederick intense emotional distress which left her “sobbing, vomiting, and experiencing a panic attack.” Id.

III. Standard for Leave to Amend

Fed. R. Civ. P. 15(a)(2), “permits amendments with leave of court, which the court ‘should freely give . . . when justice so requires.'” Amyndas Pharms., S.A. v. Zealand Pharma A/S, 48 F.4th 18, 36 (1st Cir. 2022). “In the absence of any apparent or declared reason - such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. - the leave sought should, as the rules require, be ‘freely given.'” Id. (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

When “a party seeks leave to amend before any discovery has occurred, a reviewing court assays futility with reference to the Rule 12(b)(6) pleading criteria.” In re Curran, 855 F.3d 19, 28 (1st Cir. 2017). “An attempt to amend is regarded as futile if the proposed amended complaint fails to state a plausible claim for relief.” Id. “Futility includes the failure of a proposed amended complaint to cure jurisdictional deficiencies.” Adams v. Gissell, 2021 WL 8316261, at *5 (D. Mass. Dec. 8, 2021) (citing Diomed, Inc. v. Total Vein Sols., 578 F.Supp.2d 214, 215 (D. Mass. 2008)).

IV. Discussion

Frederick contends that her motion for leave to amend is timely, will not cause undue prejudice, and is not futile where the supplemental factual allegations will cure the jurisdictional deficiencies identified in the Memorandum and Order [Doc. No. 89]. Mot. for Leave 4-6 [Doc. No. 91]. Carlson does not dispute that Frederick's motion for leave to amend is timely or object on grounds of undue prejudice but argues that amendment is futile where Frederick has still failed to allege facts to show that this court has personal jurisdiction over him under the Due Process Clause and the Massachusetts long-arm statute. Mem. in Opp'n (“Opp'n”) 3 [Doc. No. 94].

The exercise of personal jurisdiction over a defendant must be authorized by statute and consistent with the due process requirements of the United States Constitution. Nowak v. Tak How Invs., Ltd., 94 F.3d 708, 712 (1st Cir. 1996); see also Barrett v. Lombardi, 239 F.3d 23, 26 (1st Cir. 2001). The requirements of both the Massachusetts long-arm statute and the Constitution must be satisfied to establish jurisdiction in Massachusetts over a defendant. See Cossart v. United Excel Corp., 804 F.3d 13, 18 (1st Cir. 2015).

A. Due Process Requirements

The due process inquiry requires that there be “minimum contacts” between the defendant and the forum state. Sawtelle v. Farrell, 70 F.3d 1381, 1388 (1st Cir. 1995) (quoting Int'l Shoe Co. v. State of Wash., 326 U.S. 310, 316 (1945)). Thus, a court may exercise general jurisdiction over “a defendant who has maintained a continuous and systematic linkage with the forum state,” and may exercise specific jurisdiction based on a cause of action that “relates sufficiently to, or arises from, a significant subset of contacts between the defendant and the forum.” Phillips Exeter Acad. v Howard Phillips Fund, 196 F.3d 284, 288 (1st Cir. 1999). Frederick asserts that the court may exercise specific jurisdiction based on the causes of...