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Boudreau v. Lussier

United States District Court, D. Rhode Island

July 30, 2018

JASON BOUDREAU, Plaintiff,
v.
STEVE LUSSIER; JOHN LUSSIER; STEVE SOREL; DOUGLAS GIRON; JESSICA PAPAZIAN-ROSS; AND SHECTMAN HALPERIN SAVAGE, LLP, Defendants.

          MEMORANDUM AND ORDER

          WILLIAM E. SMITH, CHIEF JUDGE

         Magistrate Judge Lincoln D. Almond filed a Report and Recommendation (“R&R”) (ECF No. 83), in which he recommends that the Court grant both Motions for Summary Judgment (ECF Nos. 35, 41) filed by Defendants. Plaintiff Jason Boudreau (“Plaintiff” or “Boudreau”) filed a timely Objection[1] to the R&R (“Objection”) (ECF No. 86). After careful consideration, the Court ACCEPTS the R&R and GRANTS Defendants' Motions for Summary Judgment.

         I. The ATC Defendants

         Defendants Steve Lussier, John Lussier, and Steve Sorel (collectively “ATC Defendants”) filed a Motion for Summary Judgment (ECF No. 35), arguing that res judicata bars Boudreau's claim. In his Objection, Boudreau claims “[t]he Magistrate erred . . . on the issue of res judicata applying to the instant case.” (Obj. 21.) Boudreau avers that every use of the intercepted communications after the start of the 2013 litigation “can be separate causes of action under the [Rhode Island Wiretap Act (“RIWA”)] and the Federal Wiretap Act.” (Id. at 13.) He further contends that, because res judicata does not bar his claim, and no exception to the RIWA applies, Defendants maintain liability. (See id. at 21.) Moreover, he argues that Magistrate Judge Almond “erred in finding the use and disclosure was permitted under the RIWA” and in “fail[ing] to acknowledge the plaintiff's privacy concerns.” (Id. at 28, 31.)

         Plaintiff's arguments - each of which he set forth in his original Response to the Motion for Summary Judgment (ECF No. 54) - are no more persuasive at this stage. Nevertheless, the Court undertakes a de novo review.

         The doctrine of res judicata requires three elements: “(1) a final judgment on the merits in an earlier action; (2) an identity of parties or privies in the two suits; and (3) an identity of the cause of action in both the earlier and later suits.” Aunyx Corp. v. Canon U.S.A., Inc., 978 F.2d 3, 6 (1st Cir. 1992). Here, there is both a final judgment on the merits and an identity of parties. See Boudreau v. Lussier, No. 13-388 S, 2015 WL 7720503, at *1, *7 (D.R.I. Nov. 30, 2015). Judge Almond correctly noted that the addition of new defendants does not vitiate res judicata. See Manego v. Orleans Bd. of Trade, 598 F.Supp. 231, 235 (D. Mass. 1984), aff'd, 773 F.2d 1 (1st Cir. 1985), cert. denied, 475 U.S. 1084 (1986).

         Finally, the transactional test governs the third prong, which Judge Almond properly applied. See Manego, 773 F.2d at 5. The First Circuit has noted that “it necessarily follows that a particular legal theory not pressed in the original suit will nonetheless be precluded in the subsequent one if it prescinds from the same set of operative facts.” Kale v. Combined Ins., 924 F.2d 1161, 1166 (1st Cir. 1991). Indeed, the case at hand turns on the same set of facts as its previous iteration: the alleged interception which occurred in 2011. For all the other reasons Judge Almond noted, these two suits are sufficiently related that the former precludes the latter. Therefore, the Court adopts Judge Almond's reasoning and grants the Motion for Summary Judgment (ECF No. 35) as to the ATC Defendants. II. The SHS Defendants.

         Defendants Douglas Giron, Jessica Papazian-Ross, and Shectman Halperin Savage, LLP (collectively “SHS Defendants”) filed a Motion for Summary Judgment (ECF No. 41), arguing that the litigation privilege bars Boudreau's claim. Boudreau faults Magistrate Judge Almond for “holding that a ‘litigation privilege' provides blanket immunity to the Defendants [sic] use and disclosure of intercepted communications during judicial proceedings.” (Obj. 1-2.) Specifically, he contends that Magistrate Judge Almond “did not cite any Rhode Island case law that held that a ‘litigation privilege' trumps the . . . RIWA . . . nor . . . any case law from any jurisdiction that held that a ‘litigation privilege' trumped either a [s]tate wiretap [a]ct or the Federal Wiretap Act.” (Id. at 2.)

         Although Plaintiff is correct that Magistrate Judge Almond did not cite any Rhode Island case that held that the litigation privilege trumps the RIWA, that's because there is no such case. As a matter of first impression in Rhode Island, the Court looks to other jurisdictions to inform its holding.

         Plaintiff advances several cases to support his argument, none of which proves persuasive. He relies primarily on Babb v. Eagleton, 616 F.Supp.2d 1195 (N.D. Okla. 2007), and Pyankovska v. Abid, No. 2:16-CV-2942 JCM (PAL), 2017 WL 5505037 (D. Nev. Nov. 16, 2017). These cases involved violations of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, otherwise known as the Federal Wiretap Act, and both courts held that the litigation privilege did not trump the Act. The courts in both cases, however, went to great lengths to emphasize that the litigation privilege has no bearing on federal claims. See Pyankovska, 2017 WL 5505037, at *4; Babb, 616 F.Supp.2d at 1207. Those courts, in fact, distinguished Title III liability from state wiretap law liability. Pyankovska, 2017 WL 5505037, at *4 (“The court [in Babb] based its holding [in part] on . . . cases applying the litigation privilege applied it to state law claims, not federal claims . . . .”); Babb, 616 F.Supp.2d at 1207 (“[C]ourts applied the litigation privilege as a defense to claims arising solely under state law.” (emphasis added)). Because the instant case involves a violation of the RIWA, these cases are inapposite.

         Additionally, Plaintiff's reliance on Nix v. O'Malley, 160 F.3d 343 (6th Cir. 1998), is misplaced. While Nix deals with violations of Title III and the relevant Ohio wiretap statute, that court was partially persuaded because the attorney disclosed information unrelated to his or her client's defense. See id. at 352-53. Here, and in the 2013 litigation, the action hinged on the ATC Defendants' alleged unlawful interception and disclosure of the screenshots. Therefore, the screenshots themselves certainly related to the proceedings, and Nix is not on point.

         Other jurisdictions also inform this Court's analysis. In Rich v. Rich, the Superior Court of Massachusetts held that “the absolute privilege applies to . . . the Wiretap Act.” No. BRCV200701538, 2011 WL 3672059, at *8 (Mass. Super. Ct. July 8, 2011). That court described the Massachusetts litigation privilege as follows: “written or oral communications made by a party, witness, or attorney prior to, in the institution of, or during and as part of a judicial proceeding involving said party, witness, or attorney are absolutely privileged even if uttered maliciously or in bad faith.” Id. Rhode Island's litigation privilege is similarly sweeping. See Kissell v. Dunn, 793 F.Supp. 389, 392 (D.R.I. 1992) (“[L]ibelous matter in pleadings filed in judicial proceedings are absolutely privileged where the statements are material, pertinent or relevant to the issues thereon.” (quoting Vieira v. Meredith, 123 A.2d 743, 744 (R.I. 1956))); Francis v. Gallo, 59 A.3d 69, 71 (R.I. 2013) (“[S]tatements made in judicial proceedings are privileged, and thus cannot form the basis for a defamation claim.” (quoting W. Mass. Blasting Corp. v. Metro. Prop. & Cas. Ins., 783 A.2d 398, 403 n.3 (R.I. 2001))).

         Moreover, the policy reasons that underscore the Superior Court of Massachusetts' reasoning also persuade this Court. See Rich, 2011 WL 3672059, at *8 (“A privilege which protected an individual from liability for defamation would be of little value if the individual were subject to liability under a different theory of tort.” (quoting Correllas v. Viveiros, 572 N.E.2d 7, 13 (Mass. 1991))). Indeed, an attorney must be allowed “complete freedom of expression and candor in communications in their efforts to secure justice for their clients.” Mack v. Wells Fargo Bank, N.A., 41 N.E.3d 323, 327 (Mass. App. Ct. 2015) (quoting Sriberg v. Raymond, 345 N.E.2d 882, 883 (Mass. 1976) (quotation marks omitted). According to the Restatement of Torts, Second, the absolute privilege applicable in defamation cases applies “to the publication of any matter that is an invasion of privacy.” Restatement (Second) Torts § 652F (1977). Therefore, the Court is satisfied that the litigation privilege also applies in the context of the RIWA.

         For the above reasons, and because Magistrate Judge Almond correctly applied the litigation privilege, [2] this Court ACCEPTS the R&R (ECF No. 83) and adopts its reasoning and recommendations. Defendants' Motions for Summary Judgment (ECF Nos. 35, 41) are GRANTED. IT IS SO ORDERED.

         REPORT AND RECOMMENDATION

          Lincoln D. Almond, United States Magistrate Judge

         Pending before the Court are Defendants' Motions for Summary Judgment filed pursuant to Fed.R.Civ.P. 56. (ECF Doc. Nos. 35 and 41). Plaintiff Jason Boudreau filed Objections. (ECF Doc. Nos. 54 and 62). This matter has been referred to me for preliminary review, findings and recommended disposition. 28 U.S.C. § 636(b)(1)(B); LR Cv 72(a). After reviewing the Memoranda submitted and ...


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