969 F. Supp. 2d 46
D. Mass.2013Background
- In 2007 the Porros sued Kimmel; their suit settled in May 2009 under a Settlement Agreement that barred disclosure of underlying facts and bound the parties "and their counsel." Angueira signed the agreement under a line reading "Approved as to Form."
- In 2010–2012 Krista Lohr sued Kimmel asserting similar allegations; Angueira and Swartz & Swartz (S & S) represented Lohr and attached documents Kimmel alleges came from the Porro case.
- Kimmel sued Angueira and S & S for breach of the Settlement Agreement and related torts: breach of contract, tortious interference, breach of covenant of good faith and fair dealing, and fraud.
- The defendants previously moved to dismiss; the district court denied dismissal, concluding (inter alia) Angueira and S & S could be bound by the confidentiality clause and that application of the litigation privilege required discovery.
- Defendants then answered, disclosed that the Lohr case settled, and moved for judgment on the pleadings under Fed. R. Civ. P. 12(c), essentially re-raising the same arguments rejected on the motion to dismiss.
- The magistrate judge recommended denial of the Rule 12(c) motion because no new facts or controlling law justified reconsideration; discovery is needed on privilege and inducement issues and the Lohr settlement does not moot claims for past conduct or injunctive relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Angueira and S & S are bound by the Porro Settlement Agreement confidentiality clause | Kimmel: the Agreement binds "the Parties and their counsel" and Angueira signed, so counsel are bound | Angueira/S & S: they were not parties; signature was "approved as to form" only | Court: Denied reconsideration; prior ruling stands that counsel may be bound; issue not resolved against plaintiff at pleading stage |
| Whether litigation privilege bars tortious-interference and related claims | Kimmel: privilege may not apply if defendants caused a contractual breach or induced disclosure outside protected advocacy; discovery required | Defs: statements in litigation are absolutely privileged and immunize them from liability | Court: Privilege disputed; applicability must be resolved after discovery; dismissal premature |
| Whether ethical obligations (RPC) justified using confidential Porro information | Kimmel: counsel could have used discovery rather than breaching agreement; ethics do not excuse contract breach | Defs: Rules of Professional Conduct required use of information to represent Lohr | Court: Rejected defendants' RPC defense at pleading stage; no basis to reconsider without discovery |
| Whether settlement/dismissal of the Lohr case renders Kimmel's claims moot | Kimmel: suit seeks relief for past disclosures and injunctive relief, so not moot | Defs: Lohr settlement removes live controversy and moots claims | Court: Settlement of Lohr does not moot claims as to past conduct or prospective injunctive relief; dismissal inappropriate |
Key Cases Cited
- Blanchette v. Cataldo, 734 F.2d 869 (1st Cir. 1984) (recognizing absolute privilege for certain attorney statements in litigation)
- Sriberg v. Raymond, 345 N.E.2d 882 (Mass. 1976) (Massachusetts decision discussing litigation privilege and its scope)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standard requires plausible entitlement to relief)
- Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92 (1st Cir. 2007) (discussing plausibility standard on pleadings)
- Aponte-Torres v. Univ. of P.R., 445 F.3d 50 (1st Cir. 2006) (Rule 12(c) standard parallels Rule 12(b)(6))
- Curran v. Cousins, 509 F.3d 36 (1st Cir. 2007) (pleadings viewed in light most favorable to nonmoving party)
- United States v. Allen, 573 F.3d 42 (1st Cir. 2009) (standards for reconsideration motions)