424 F.Supp.3d 158
D. Mass.2019Background
- In October 2006 Foss (designer) created graphic-design work for Marvic (doing business as Brady-Built Sunrooms); there was no written contract and Foss did not notify Marvic that she retained all rights or that permission was required to modify the work.
- Marvic printed and reused the work in subsequent years and modified it in 2011 without Foss’s knowledge; Foss became aware of the modification in August 2016.
- Foss sent a demand letter asserting rights on November 29, 2017, and filed suit (originally Jan. 22, 2018; amended Aug. 9, 2018). The court previously dismissed the copyright claim (Mar. 19, 2019).
- Marvic served Requests for Admission on May 2, 2019; Foss failed to respond and the court deemed the requests admitted, including concessions that she lacked evidence on key points (e.g., that Marvic knew of her ownership or that she suffered business harm).
- Marvic moved for summary judgment on the remaining claims (tortious interference, conversion, Chapter 93A, breach of contract, fraud/breach of fiduciary duty); Foss moved for summary judgment on the copyright claim (moot).
- The court granted Marvic summary judgment on Counts II–VI and denied Foss’s summary-judgment motion as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Tortious interference with advantageous business relations | Foss: Marvic’s use/changes caused loss of business opportunities | Marvic: No identifiable advantageous relation; no knowledge or intentional interference; admissions show no evidence of harm | Judgment for Marvic; Foss cannot make prima facie showing |
| Conversion | Foss: Marvic wrongfully exercised dominion over her property (artwork) | Marvic: Foss never told Marvic she owned all rights; no intent to deprive; admissions concede lack of evidence on intent | Judgment for Marvic; no wrongful intent/possession shown |
| Unfair and deceptive business practices (M.G.L. c. 93A) | Foss: Marvic knowingly used work without permission, constituting unfair practice | Marvic: No knowledge of wrongful use before Foss’s 2017 demand; any contract did not require consent to use/modify | Judgment for Marvic; no unfair practice shown pre-2017 and no contractual bar to modification |
| Breach of contract | Foss: Marvic breached by using/modifying the work | Marvic: If any contract existed, it did not require obtaining Foss’s consent before use/modification | Judgment for Marvic; no breach shown even assuming a contract existed |
| Fraud (and withdrawn fiduciary-duty claim) | Foss: Marvic’s letter saying it owed $2,000 for 11 years was false and induced reliance | Marvic: No evidence it knew the statement was false; Foss could not have relied on a statement made in 2017 when she delivered the work in 2006 | Judgment for Marvic; no knowledge of falsity and no plausible detrimental reliance |
Key Cases Cited
- Morris v. Gov’t Dev. Bank of Puerto Rico, 27 F.3d 746 (1st Cir. 1994) (summary-judgment genuineness/materiality standard discussion)
- Scanlon v. Dep’t of Army, 277 F.3d 598 (1st Cir. 2002) (summary-judgment and drawing inferences for nonmoving party)
- Blackstone v. Cashman, 448 Mass. 255 (Mass. 2007) (elements of tortious interference with advantageous business relations)
- Evergreen Marine Corp. v. Six Consignments of Frozen Scallops, 4 F.3d 90 (1st Cir. 1993) (conversion elements)
- Magaw v. Beals, 272 Mass. 334 (Mass. 1930) (conversion principles)
- Auto Flat Car Crushers, Inc. v. Hanover Ins. Co., 469 Mass. 813 (Mass. 2014) (scope of private action under M.G.L. c. 93A)
- Danca v. Taunton Sav. Bank, 385 Mass. 1 (Mass. 1982) (elements of fraud and reliance)
- Barrett Assocs. v. Aronson, 346 Mass. 150 (Mass. 1963) (fraud standard)