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Samuel J. Bourne v. John R. Arruda

April 2, 2012

SAMUEL J. BOURNE
v.
JOHN R. ARRUDA, JR., ET AL.



The opinion of the court was delivered by: Landya McCafferty United States Magistrate Judge

ORDER

Currently before the court in this case are the following:

(1) a motion for partial judgment on the pleadings (doc. no. 81) filed by defendants, John R. Arruda, Jr., Michael Brooks, and the Town of Madison ("Town"); and (2) defendants' motion to compel answers to interrogatories (doc. no. 89).*fn1 Each motion has been fully briefed. See Pl.'s Obj. Mot. J. on Pldgs. (doc. no. 83); Defs.' Reply (doc. no. 85); Pl.'s Surreply (doc. no. 91); Pl.'s Obj. Mot. to Compel (doc. no. 92).

For reasons set forth below, the motion for judgment on the pleadings (doc. no. 81) is denied, and defendants' motion to compel (doc. no. 89) is granted, subject to conditions set forth herein.

Discussion

I. Motion for Judgment on the Pleadings

A. Standard

For the court to grant a motion for judgment on the pleadings seeking dismissal of a claim on the basis of an affirmative defense, "the facts establishing that defense must:

(1) be 'definitively ascertainable from the complaint and other allowable sources of information,' and (2) 'suffice to establish the affirmative defense with certitude.'" Gray v. Evercore Restructuring LLC, 544 F.3d 320, 324 (1st Cir. 2008) (quoting Nisselson v. Lernout, 469 F.3d 143, 150 (1st Cir. 2006)). Allowable sources of information for evaluating the defense include the complaint, the documents annexed to it, materials fairly incorporated within it, and matters susceptible of judicial notice. See Rodi v. S. New England Sch. of Law, 389 F.3d 5, 12 (1st Cir. 2004). All well-pleaded facts in the complaint are viewed in the light most favorable to the plaintiff, and all inferences are drawn in plaintiff's favor. See Gray, 544 F.3d at 324.

In this case, this standard of review must be applied with due regard for plaintiff's pro se status. Pro se pleadings are construed liberally, to avoid inappropriately stringent rules and unnecessary dismissals. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976), to construe pleadings liberally in favor of pro se party); Castro v. United States, 540 U.S. 375, 381 (2003) (courts may construe pro se pleadings to avoid inappropriately stringent rules and unnecessary dismissals).

B. Claim and Affirmative Defense at Issue

As construed by this court in its order denying defendants' motion to dismiss, see Order (doc. no. 55), the claim at issue in the motion is Bourne's claim that Arruda defamed him by implying that Bourne himself engaged in underhanded conduct in "alter[ing]" a town road waiver agreement, despite knowing that Bourne's attorney revised the agreement and sent it to the Town for signature. Defendants seek dismissal of that claim because, they contend, the facts alleged in the complaint and other allowable sources of information establish the affirmative defense of "substantial truth" with the requisite degree of certitude, insofar as Bourne has pleaded facts establishing that his attorney was acting as his agent in revising the agreement.

A statement alleged to be defamatory is not actionable if it is substantially true. See Thomas v. Tel. Publ'g Co., 155 N.H. 314, 335, 929 A.2d 993, 1013 (2007); see also Collins v. Univ. of N.H., 664 F.3d 8, 19 (1st Cir. 2011). The "literal truth of a statement is not required so long as the imputation is substantially true so as to justify the gist or sting of the remark." Faigin v. Kelly, 978 F. Supp. 420, 425 (D.N.H. 1997) (internal quotation marks and citations omitted). "[A] false and defamatory inference may be derived from a factually accurate news report." Id. (internal quotation marks and citation omitted); accord Thomas, 155 N.H. at 335, 929 A.2d at 1013.

Arruda's statement that Bourne "altered a town document" appears in Arruda's description of his first encounter with Bourne. In ruling on defendants' motion to dismiss, this court previously concluded that Arruda's statement could be construed, in context, to imply that Bourne took unfair advantage of the Town. See Order (doc. no. 55). The sole basis upon which defendants assert substantial truth in seeking dismissal of the claim is the agency relationship between Bourne and his counsel. The sting or gist of Arruda's statement and its alleged falsity do not turn on the consequences of that agency relationship or on the true identity of the revised document's scrivener. Rather, the gist or sting lies in the implication that it was deceptive or underhanded to revise the town ...


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