Landino v. Massachussetts Teachers Ass'n

JOHN LANDINO, Plaintiff, v. MASSACHUSSETTS TEACHERS ASSOCIATION, JOHN DOES 1-10, Defendants.

Case No. 20-cv-11392 -DJC

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

May 27, 2021

MEMORANDUM AND ORDER

CASPER, J.

I. Introduction

Plaintiff John Landino ("Landino") has filed this lawsuit against Defendants Massachusetts Teachers Association ("MTA") and John Does 1-10 (collectively, "Defendants") alleging defamation (Count I), conspiracy in violation of 18 U.S.C. § 241 (Count II), conspiracy in violation of 42 U.S.C. § 1985 (Count III), deprivation of civil rights in violation of 42 U.S.C. § 1983 (Count IV), a claim for violation of 42 U.S.C. § 1986 (Count V), civil conspiracy (Count VI), fraud (Count VII), negligence (Count VIII) and harassment (Count IX). D. 7. Defendants have moved to dismiss. D. 13. For the reasons stated below, the Court ALLOWS the motion as to Counts II-IX and DENIES it as to Count I.

II. Standard of Review

On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6), the Court must determine if the facts alleged "plausibly narrate a claim for relief." Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (citation omitted). Reading the complaint "as a whole," the Court must conduct a two-step, context-specific inquiry. García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013). First, the Court must perform a close reading of the claim to distinguish the factual allegations from the conclusory legal allegations contained therein. Id. Factual allegations must be accepted as true, while conclusory legal conclusions are not entitled credit. Id. Second, the Court must determine whether the factual allegations present a "reasonable inference that the defendant is liable for the conduct alleged." Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (citation omitted). In sum, the complaint must provide sufficient factual allegations for the Court to find the claim "plausible on its face." García-Catalán, 734 F.3d at 103 (citation omitted).

III. Factual Background

The following summary is based upon the factual allegations in the amended complaint, which the Court must, for the purposes of considering MTA's motion to dismiss, accept as true. Landino worked as Chief Operating Officer for Project Veritas ("PV") from January 2014 until end of March of 2014. D. 7 at ¶ 4.

The MTA is a union with 110,000 members and approximately 400 local associations throughout Massachusetts. Id. at ¶ 9. The National Education Association ("NEA") and the MTA have a combined membership of approximately 2,400,000 union members nationwide. Id. at ¶ 10. The MTA and NEA are also affiliated and partially merged with the American Federation of Teachers ("AFT"), another union with approximately 1,700,000 members. Id. at ¶ 11. As alleged by Landino, the MTA, both singularly and as a collective enterprise of unions, have expressly aimed their political fund raising, lobbying, advocacy of progressive liberal causes and the "vilification" of those with conservative political views. Id. at ¶ 13.

As alleged, PV is a conservative media entity with long standing reports on and disputes with teachers' unions across the country. Id. at ¶ 18. During Landino's brief tenure at PV, however, there were no stories or investigations involving any teachers' unions. Id. at ¶ 19. On March 7, 2014, Gawker published a libelous and erroneous article smearing Landino which was shortly followed by Gawker's filing for bankruptcy as a result of losing a defamation case. Id. at ¶ 20. Gawker reported Landino was a convicted felon, owed taxes and child support—portraying him as a "repugnant individual." Id. Also on March 7, 2014, Landino was awarded full custody of his teenage daughters after a decade of proceedings in family court. Id. at ¶ 21. He owed no child support. Id. He received a full pardon for his 1993 felony conviction in May 2016. Id. at ¶ 25. During this same time, he petitioned the Gawker authors to remove the defamatory content. Id. at ¶ 26. The authors, in turn, hired an attorney who refused to cooperate with his requests citing that the company was still in bankruptcy court. Id. In late 2018, Landino paid all owed tax arrears stemming from the family court post-divorce litigation from 2005-2018. Id. at ¶ 31. Landino's last day of work at PV was March 31, 2014. Id. at ¶ 22. Since then, he has had no contact, connection, association, or affiliation with PV or any of its employees. Id.

On June 21, 2019, the MTA published a 15-page dossier about PV on their website. Id. at ¶ 38. The dossier contained allegedly libelous and erroneous information about Landino, his picture as well as hyperlinks to his Facebook profile and the Gawker article. Id. at ¶ 39. The dossier made allegedly untrue statements regarding Landino: (1) that he "often uses disguises and misrepresents" himself; (2) he is the Chief Operating Officer ("COO") of PV; (3) he is involved in "right-wing undercover operations and organizations." Id. at ¶¶ 41-43. The Gawker article was removed from the internet by the new owner on March 30, 2020 after Landino threatened legal action. Id. at ¶ 47. On April 29, 2020, Landino filed a civil case against the MTA and others instate court in New Jersey. Id. at ¶ 48. On July 17, 2020, that court dismissed the MTA from the suit and advised Landino to file against the MTA in Massachusetts. Id. at ¶ 49.

As alleged, the MTA conspired with other organizations and individuals to harm Landino. Id. at ¶ 57. Landino's children attended high school in Massachusetts from 2017 to 2020 and were subjected to harm from the collective offenses intentionally committed to permanently destroy their father's reputation. Id. at ¶ 58. Internet search engines placed the MTA dossier in top selections when searching Landino's name, creating irreparable harm to him, his family and business. Id. at ¶ 59.

IV. Procedural History

Landino instituted this action on July 24, 2020, D. 1, and amended the complaint on October 16, 2020. D. 7. Defendants now have moved to dismiss. D. 13. The Court heard the parties on the pending motion on May 5, 2021 and took the matter under advisement. D. 23.

V. Discussion

A. Defamation (Count I)

"To prevail on a defamation claim, a plaintiff must 'establish that the defendants published a false statement about him to a third party that either caused him economic loss or was the type that is actionable without proof of economic loss.'" Driscoll v. Bd. of Trs. of Milton Acad., 70 Mass. App. Ct. 285, 295-96 (2007) (quoting Phelan v. May Dept. Stores Co., 443 Mass. 52, 55-56 (2004)). Landino alleges that because the MTA knew he was not the current COO of PV, was not using disguises or misrepresenting himself and was not a convicted felon yet "published on their website and possible with the NEA at conferences that [he] was all of the above," D. 7 ¶ 62, he has sustained economic and emotional injuries. Id. ¶ 63. At the crux of this claim lies the question of whether the alleged defamatory statements rise to the level of being actionable.

Landino alleges five statements published in the dossier were defamatory. First, he cites three statements referencing that he is the COO of PV. D. 7 ¶¶ 42, 44-45. Landino, did in fact work as COO for PV, but only from January 2014 until end of March of 2014, D. 7 ¶ 4, so not at the time of MTA's publication of the dossier. Although Landino was no longer employed as the COO of PV by the time of publication, "inaccuracy by itself does not make a statement defamatory," Yohe v. Nugent, 321 F.3d 35, 41 (1st Cir. 2003), instead there must be a showing that the alleged statement could subject plaintiff to contempt, hatred, scorn or tend to harm his standing in the community. Id. Moreover, part of plaintiff's showing for a defamation claim is that Defendants were at fault in making the statement (ranging from negligence for statements and private persons and actual malice for public figures). Ravnikar v. Bogojavlensky, 438 Mass. 627, 630 (2008). Although, as MTA notes, the dossier warns readers of such potential inaccuracies stating that "some people may no longer be acting as or facilitating operatives," D. 14 at 7, D. 7-6 at 12, whether Landino has shown that Defendants are at fault for making such statement (i.e., at least negligent in doing so) and whether these statements 2, 4 or 5, D. 7 ¶¶ 42, 44-45, rise to the level of defamation, particularly in conjunction with the other alleged statements, is a matter of factual dispute that cannot be resolved on Defendants' motion to dismiss.

Next, Landino challenges the statement that he "often uses disguises and misrepresents" himself. D.7 ¶ 41, D.7-6 at 2. The first page of the PV dossier states that "[p]eople involved with Project Veritas often use disguises and misrepresent themselves." D.7-6 at 2. MTA responds that this statement was not specifically made with reference to Landino, and that PV's "own website confirms that it was established so that its founder could 'continue his undercover reporting work.'" D. 14 at 8. Landino contends that the statement concerning "people involved with" PV using disguises and misrepresenting themselves constitutes a published false or untrue statementfor the purposes of his defamation claim. "A statement is defamatory if it tends to harm the reputation of another either by lowering the esteem in which he is held or by discouraging others from associating with him." Pan Am Systems, Inc. v. Atlantic Northeast Rails and Ports, Inc., 804 F.3d 59, 64 (1st Cir. 2015). Landino at least plausibly alleges, his only burden at this stage, that such statement, D. 7 ¶¶ 39, 59, is defamatory in that it insinuating that he disguises or misrepresents his identity, both have potential to lower the esteem in which he is held and discourage others from associating with him. Further, "[i]n defamation actions, [this Court] looks to how the 'reasonable...