Kilnapp Enterprises, Inc. v. Massachusetts State Automobile Dealers Association, et al. (Lawyers Weekly No. 11-030-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   15-P-101                                        Appeals Court   KILNAPP ENTERPRISES, INC.[1]  vs.  MASSACHUSETTS STATE AUTOMOBILE DEALERS ASSOCIATION & others.[2] No. 15-P-101. Suffolk.     December 7, 2015. – March 17, 2016.   Present:  Rubin, Maldonado, & Massing, JJ.     Libel and Slander.  Actionable Tort.  Practice, Civil, Motion to dismiss.       Civil action commenced in the Superior Court Department on March 10, 2014.   A motion to dismiss was heard by Judith Fabricant, J.     Travis J. Jacobs for the plaintiff. Alan D. Rose, Sr., for Fisher & Phillips LLP & another. James F. Radke for Massachusetts State Automobile Dealers Association.     RUBIN, J.  This is an action for defamation brought by Kilnapp Enterprises, Inc., doing business as Real Clean (Real Clean), which describes itself as “a broker for automobile detailing and reconditioning between service providers and automobile dealerships.”[3]  Real Clean brought this action against the Massachusetts State Automobile Dealers Association (MSADA) for its published statements concerning an investigation by the United States Department of Labor (DOL) into the practices of automobile detailing “brokers” including Real Clean.  The complaint asserts not only a claim for defamation, but includes several other related counts that will be described more fully below.  It names as a defendant not only MSADA but the author of the published statements, Attorney Joseph Ambash, and his law firm, Fisher & Phillips LLP.  The defendants brought a motion to dismiss under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), which was allowed.  Real Clean appeals. Because the materials properly considered by the judge in the Superior Court demonstrate that Real Clean will be unable to prove that the defendants’ statements were materially false under the applicable standard, which requires demonstration that actionable statements have been made with knowledge of their falsity or in reckless disregard of their truth or falsity, we affirm the judgment dismissing all of Real Clean’s claims. Background.  Our review of the allowance of a motion to dismiss is de novo.  Glovsky v. Roche Bros. Supermkts., Inc., 469 Mass. 752, 754 (2014).  For purposes of reviewing the allowance of a motion to dismiss we must, of course, take all the allegations in the plaintiff’s operative complaint, here the amended and verified complaint filed on May 7, 2014, as true.  Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). […]

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