日志
PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION
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COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
______________________________
Yong Li, )
Plaintiff, )
v. ) CIVIL ACTION NO. 1881CV03670
Yanling (Rebecca) Zeng, )
____________________Defendant. )
PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE
AMENDED COMPLAINT
Defendant’s opposition did not focus on the undue delay issue or to being prejudiced by the proposed amended complaint. Defendant mainly argued that the added Count II Slander (Defamation), and the Count III Negligence would be futile. In reply, Plaintiff states as follows:
Statement on Facts
It is an undisputed fact that Defendant published the words, “Those kinds of pink-news (erotic story or sex gossip in Chinese terms) about you [Plaintiff] …” to 437 people through WeChat on December 11, 2018. This false statement about sex gossip alone represents a strong claim for Defamation. The Original Complaint does not clarify libel or slander. The proposed Amended Complaint (“Amended Complaint”) alleges Count I Libel, Count II Slander, and Count III Negligence.
Regarding Count II Slander, Defendant argued that the complaint “... does not mention any verbal statement with specificity.” However, it is undisputed that Defendant posted:
“Those kinds of pink-news about you …” (§12, the Amended Complaint);
“It seems that the whole village [Town of Sudbury] has a very consistent opinion about the rumor regarding you, …” (§13, the Amended Complaint) ;
“There were rumors spreading among the villagers …” (§15, the Amended Complaint);
and Defendant’s posts suggest that there were pervasive rumors spread in the Town of Sudbury, where Defendant lives. The rumors cannot always be text statements, and must involve some verbal statements. That would need to be established through pretrial discovery. This is the basis for the Count II claim of Slander.
As a result of Defendant’s defamatory statements, Plaintiff was removed from the WeChat group named “SFFS v. Harvard University Discrimination against Asian Students” (§17, the Amended Complaint);
With respect to Count III, Negligence, the undisputed fact is: The Plaintiff and Defendant met each other on a single occasion, when Defendant visited the Plaintiff’s house in 2016. Defendant took advantage of her job as a real estate agent when visiting Plaintiff, and came to know who Plaintiff was, and what the Plaintiff’s WeChat ID was. It is an agent’s duty to respect her clients or potential clients. However, Defendant fabricated sex gossip about Plaintiff and published the rumors on WeChat to 437 people, an action that was both reckless and negligent. Defendant’s bad faith might have been caused by the fact that Plaintiff did not hire her to sell her house.
Plaintiff is an activist committed to civil rights; “she joined the NAACP and ACLU, set up her own civil rights team, and provided a web service named “Call me please if you were mistreated by your boss” [the Chinese word is ‘老板整你请找我’]”. Since 2010, Plaintiff and her team have helped new immigrants who encountered difficulties in the U.S. Plaintiff set up a nonprofit organization, Green Bees Multicultural Inc., and she is the CEO (chief executive officer) of the organization.” (§4, the Amended Complaint) It is readily foreseeable that the Defendant’s defamatory statements could affect Plaintiff’s services and activities.
Argument
Rule 15 (a) of the Massachusetts Rules of Civil Procedure provides that "leave [to amend] shall be freely given when justice so requires." The expressed tendency is in favor of allowing amendments, and a motion to amend should be allowed unless some good reason appears for denying it. The Supreme Court explained that “if the underlying facts or circumstances relied upon by a plaintiff may be a proper source of relief, he ought to be afforded an opportunity to test his claim on the merits.” Foman, 371 U.S. at 182.
Plaintiff is entitled to amend her complaint because there has not been undue delay. The proposed Amended Complaint attached with Motion for Leave to File Amended Complaint was sent to Defendant within forty (40) days of the original complaint. There is thus no undue delay, and Plaintiff should be allowed to file her amended complaint.
Plaintiff is entitled to amend her complaint because doing so will not be prejudicial to the Defendant. The Amended Complaint listed almost the same facts as the original complaint, the main difference being that Plaintiff added Count II and Count III. (“Where ‘the amendment substantially changes the theory on which the case has been proceeding and is proposed late enough so that the opponent would be required to engage in significant new preparation, the court may deem it prejudicial’”) (quoting Zenit Radio Corp v. Hazeltine Research Inc., 401 U.S. 321 (1971)). Therefore, Defendant will not be required to engage in significant new preparation in responding to Plaintiff’s new claims.
Plaintiff is entitled to amend her complaint because the amendment would not be futile. The added Count II and Count III will survive motion to dismiss based on the listed facts. Mancuso v. Kinchla, 60 Mass. App. Ct. 558, 572 (2004) (if amendment to add claim could not survive motion to dismiss, allowing amendment would be exercise in futility).
Count II: Slander, Defamation under Common Law against Defendant
Under Massachusetts law, a defamation claim has five (5) elements: “(1) that the defendant published a written statement; (2) of and concerning the plaintiff; that was both (3) defamatory, and (4) false; and (5) either caused economic loss, or is actionable without proof of economic loss.” Noonan v. Staples, Inc., 566 F.3d 20, 25 (1st Cir. 2009); see also Phelan v. May Dep’t Store Co., 819 N.E. 2d 550, 553 (Mass. 2004). The statement may be published in writing or some other equivalent medium (in which case it is designated as libel), or, as in this case, orally (in which case it is designated as slander). See Draghetti v. Chmielewski, 416 Mass. 808 , 812 n.4 (1994); Restatement (Second) of Torts § 568 (1977).
In the case in hand, the undisputed fact is that Defendant posted:
“Those kinds of pink-news about you …” (§12, the Amended Complaint);
“It seems that the whole village [Town of Sudbury] has a very consistent opinion about the rumor regarding you, …” (§13, the Amended Complaint) ;
“There were rumors spreading among the villagers …” (§15, the Amended Complaint);
“It is easy to guess that you have delusional symptoms.” (§13, the Amended Complaint);
As a result of Defendant’s defamatory statements, Plaintiff was removed from the WeChat group named “SFFS v. Harvard University Discrimination against Asian Students.” (§17, the Amended Complaint).
Defendant’s posts suggest that there were pervasive rumors spreading in the Town of Sudbury and that these rumors were always text statements but must involve some oral statements as well. This needs to be established through pretrial discovery. This is the grounds for Count II claim of Slander against Defendant.
It is foreseeable that damage could be caused by Defendant’s defamatory actions, whether with or without proof of economic loss. Plaintiff was removed from the WeChat group named “SFFS v. Harvard University Discrimination against Asian Students” due to the Defamation. In addition, Plaintiff’s reputation is vital to her success with a web service she has operated for many years called “Call me please if you were mistreated by your boss,” and to her work as CEO of the nonprofit organization, Green Bees Multicultural Inc.
The statement could damage the plaintiff's reputation in the community. [Note 3] See Eyal v. Helen Broadcasting Corp., supra at 429; Stone v. Essex County Newspapers, Inc., 367 Mass. 849 , 853 (1975); Poland v. Post Publ. Co., 330 Mass. 701 , 704 (1953), and cases cited. See also Restatement (Second) of Torts, supra at § 559 ("A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him”).
Thus, Plaintiff satisfied each element of the Slander Defamation charge, and the added Count II Slander Defamation against Defendant is not futile.
Therefore, the Amended Complaint should be granted.
Count III Negligence under Common Tort Law against Defendant
There are four (4) elements to a negligence claim: (1) a legal duty owed to the plaintiff by the defendant; (2) a breach of that duty by the defendant; (3) causation; and (4) actual loss by the plaintiff. See Glidden v. Maglio, 430 Mass. 694, 696 (2000); Nelson v. Massachusetts Port Authy., 55 Mass. App. Ct. 433, 435 (2002). Delaney v. Reynolds, 63 Mass. App. Ct. 239 (2005).
In the case in hand, the undisputed fact is: When, on the single occasion that Plaintiff and Defendant met each other when Defendant visited the Plaintiff’s house in 2016 for an estimation of the house’s sales value, Defendant took advantage of her role as a real estate agent in visiting Plaintiff’s house to come to know who Plaintiff was, and what the Plaintiff’s WeChat ID. It is Defendant’s obligation as a real estate agent to respect her clients and potential clients, but Defendant breached this obligation based on the Code of Massachusetts Regulations Title 254 (“254 CMR 2”). Defendant fabricated sex gossip and posted it on WeChat to 437 people, which represents bad faith, and is both reckless and negligent.
Defendant’s bad faith shows not only because she unveiled Plaintiff’s WeChat ID, but also because she was angry that Plaintiff did not hire her to sale the house.
Foreseeable damage was caused by Defendant’s defamatory words. Plaintiff was removed from the WeChat group named “SFFS v. Harvard University Discrimination against Asian Students” due to Defendant’s Defamatory statements. This removal jeopardizes the Plaintiff’s reputation, which is vital to her work in providing civil rights services, and also as the CEO of the nonprofit organization, Green Bees Multicultural Inc.
The "negligent conduct is the proximate cause of an injury . . . [if] the injury to the plaintiff was a foreseeable result of the defendant's negligent conduct." Kent v. Commonwealth, 437 Mass. 312, 320 (2002). See Lane v. Atlantic Works, 111 Mass. 136, 139-140 (1872); Heng Or v. Edwards, 62 Mass. App. Ct. 475, 484-485 (2004). A result is foreseeable if it was not highly extraordinary. See Rae v. Air-Speed, Inc., 386 Mass. 187, 193 (1982); Heng Or v. Edwards, 62 Mass. App. Ct. at 485-486. See also Restatement (Second) of Torts § 435 & comment b (1965).
Thus, Plaintiff satisfied each element of Negligence. Adding Count III, Negligence, against Defendant is not futile.
Therefore, the Amended Complaint should be granted.
The Instant Case Is A Strong Case and The Best Way for
Defendant Is to Settle as Early as Possible
The case in hand is a merit case, a strong case, and the best way for the Defendant is to settle as early as possible. However, Defendant, by her attorney, constantly accused this litigation as “frivolous,” and she attached a harf-inch thickness of copies of Plaintiff’s historic litigant into the Opposition document. In fact, Plaintiff’s historic litigant had ended many years ago and that had nothing to do with the case in hand. Defendant’s attorney designs to let the case go on and on in order to incur attorney’s fees for the attorney’s interest.
Conclusion
For the foregoing reasons, Plaintiff respectfully requests that this honorable Court grant her leave to file the attached Amended Complaint.
Respectfully submitted,
Yong Li
/s/_
Name: Yong Li (pro se)
...
Date: February 12, 2019
CERTIFICATE OF SERVICE
I hereby certify the a true copy of the above document was served upon each party appearing defendant (or her attorney) on by first class mail, or by email on February 12, 2019.
/s/ Yong Li (Pro Se)
