ROBERT S. LEO v. PETER BROCK & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-634

ROBERT S. LEO

vs.

PETER BROCK & others. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, a former New England Patriots player, filed

this pro se appeal from an order dismissing his complaint

pursuant to Mass. R. Civ. P. 12 (b), 365 Mass. 754 (1974), and

from the denial of a motion for reconsideration. The plaintiff

brought the complaint alleging intentional or negligent

infliction of emotional distress, elder abuse, and defamation

after the New England Patriots Alumni Club (NEPAC) revoked his

membership and banned him from future membership. 2

1Kraft Sports and Entertainment LLC; New England Patriots
Alumni Club, Inc.; New England Patriots LLC; and Julie Redwine.

2The defendants argue that the plaintiff resigned from the
club and that he was not banned. However, we accept as true
all well-pleaded facts alleged in the complaint and draw all
reasonable inferences therefrom in the plaintiff's favor. See
On March 24, 2023, after a hearing, a judge of the Superior

Court granted the defendants' joint motion to dismiss the

complaint and on April 4, 2023, denied the plaintiff's motion

for reconsideration. Plaintiff argues that the dismissal of

claims against defendants Peter Brock, Julie Redwine, and NEPAC

for insufficient service of process was error because service

was improperly rejected by the respective defendants. He also

argues that the dismissal of claims against the other defendants

was error because a lifetime ban from membership in NEPAC and

being prevented from attending Patriots and NEPAC events amounts

to either negligent or intentional infliction of emotional

distress. Because we agree that there was insufficient service

of process against some defendants, and because the complaint

fails to state a claim upon which relief can be granted, we

affirm.

Discussion. 1. Standard of review. "We review the grant

of a motion to dismiss de novo, accepting as true all well-

pleaded facts alleged in the complaint, drawing all reasonable

inferences therefrom in the plaintiff's favor, and determining

whether the allegations plausibly suggest that the plaintiff is

Lanier v. President & Fellows of Harvard College, 490 Mass. 37,
43 (2022).

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entitled to relief." Lanier v. President & Fellows of Harvard

College, 490 Mass. 37, 43 (2022).

2. Service of process. A complaint can be dismissed

pursuant to Mass. R. Civ. P. 12 (b) (5) for insufficient service

of process. The sufficiency of process is governed by Mass. R.

Civ. P. 4, as amended, 402 Mass. 1401 (1988). For individual

defendants, service can be made by personal delivery, by leaving

copies at their last and usual place of abode, or by making

delivery to an agent authorized by appointment or by statute to

receive service of process, provided that any further notice

required by such statute be given. See Mass. R. Civ. P. 4

(d) (1), as amended, 370 Mass. 918 (1976). For a domestic

corporation, service can be made

"by delivering a copy of the summons and of the complaint
to an officer, to a managing or general agent, or to the
person in charge of the business at the principal place of
business thereof within the Commonwealth, if any; or by
delivering such copies to any other agent authorized by
appointment or by law to receive service of process,
provided that any further notice required by law be given."
Mass. R. Civ. P. 4 (d) (2). In either instance, this service is

required to be made within ninety days of filing the complaint.

Mass. R. Civ. P. 4 (j), as appearing in 402 Mass. 1401 (1988).

Here, on two separate occasions, the plaintiff attempted to

serve Peter Brock, Julie Redwine, and NEPAC. First, he

attempted to serve them at Two Patriot Place, Foxborough,

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Massachusetts, which was not the correct address. 3 The Norfolk

County Sheriff's Office returned the service to the defendant

because the service address was incorrect, rendering the service

insufficient. The plaintiff then attempted to serve the

defendants at the correct address through registered agents for

Kraft Sports and Entertainment LLC and New England Patriots LLC.

At the hearing in the Superior Court, the plaintiff conceded

that his service was ineffective, but he now argues otherwise on

appeal. The plaintiff now claims that his service was not

defective because it was addressed to the defendants' usual

place of business. This argument, which was not raised below,

is deemed waived. See Scheffler v. Board of Appeal on Motor

Vehicle Liab. Policies & Bonds, 84 Mass. App. Ct. 904, 905

(2013).

Even if it were not waived, as a matter of law, the

plaintiff's two attempts at service both fail. The first

attempt at service was ineffective because the plaintiff did not

use the correct address. The second attempt to serve Peter

Brock and Julie Redwine fails because service was not attempted

to the defendants personally, there was no evidence that this

address was either of these defendants' last and usual place of

3 The correct address for these three defendants was One
Patriot Place, Foxborough, Massachusetts.

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abode, and there was no evidence that anyone at One Patriot

Place, Foxborough, Massachusetts was authorized to accept

service on their behalf. Mass. R. Civ. P. 4 (d) (1). See Foley

v. Walsh, 33 Mass. App. Ct. 937, 937 (1992). As to NEPAC, which

is a domestic corporation, the second attempted service also

fails because there is no evidence that service was ever made to

a "managing or general agent, or to the person in charge of the

business at the principal place of business," see Mass. R. Civ.

P. 4 (d) (2), but rather only to registered agents for Kraft

Sports and Entertainment LLC and New England Patriots LLC. This

is not sufficient, and dismissal was appropriate as to these

three defendants.

3. Failure to state a claim. Next, the plaintiff appeals

the dismissal of his claim of intentional or negligent

infliction of emotional distress for failing to state a claim

for which relief can be granted. In his complaint, the

plaintiff seems to make two separate claims; one for the tort of

intentional infliction of emotional distress and one for

negligent infliction of emotional distress. 4 See Lamoureux v.

Superintendent, Mass. Correctional Inst., Walpole, 390 Mass.

409, 410 n.4 (1983) (pro se filings interpreted liberally, but

4 The plaintiff's filings at the trial level and here on
appeal also describe his claims as intentional and negligent
infliction of emotional distress.

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court will not advance legal theories that plaintiff neglected

to present). In concluding that dismissal was warranted, the

judge determined that the plaintiff failed to allege sufficient

facts to support recovery under either intentional or negligent

infliction of emotional distress. Again, we review the grant of

a motion to dismiss de novo, "accepting as true all well-pleaded

facts alleged in the complaint, drawing all reasonable

inferences therefrom in the plaintiff's favor, and determining

whether the allegations plausibly suggest that the plaintiff is

entitled to relief." Lanier, 490 Mass. at 43.

To recover for negligent infliction of emotional distress,

a plaintiff must prove "(1) negligence; (2) emotional distress;

(3) causation; (4) physical harm manifested by objective

symptomatology; and (5) that a reasonable person would have

suffered emotional distress under the circumstances of the

case." Lanier, 490 Mass. at 44. On the other hand, "[t]o

sustain a claim of intentional infliction of emotional distress,

a plaintiff must show (1) that the defendant intended to cause,

or should have known that his conduct would cause, emotional

distress; (2) that the defendant's conduct was extreme and

outrageous; (3) that the defendant's conduct caused the

plaintiff's distress; and (4) that the plaintiff suffered severe

distress." Sena v. Commonwealth, 417 Mass. 250, 263-264 (1994).

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The complaint alleged that the defendants' actions caused

the plaintiff to suffer three harms: the harm associated with

no longer being a member of NEPAC, the harm of being prevented

from attending certain alumni events, and reputational harm.

The facts alleged by the plaintiff do not establish that the

plaintiff suffered the degree of harm or distress required to

support a claim of negligent infliction of emotional distress.

See Rodriguez v. Cambridge Hous. Auth., 443 Mass. 697, 702

(2005), quoting Sullivan v. Boston Gas Co., 414 Mass. 129, 137

(1993) (a "successful negligent infliction of emotional distress

claim . . . must do more than allege 'mere upset, dismay,

humiliation, grief and anger'").

Similarly, the facts alleged by the plaintiff do not rise

to the level of extreme and outrageous conduct by the defendants

that is required to support a claim of intentional infliction of

emotional distress.

"Liability for 'extreme and outrageous' conduct cannot be
predicated upon mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities, nor
even is it enough that the defendant . . . has intended to
inflict emotional distress, or even that his conduct has
been characterized by malice, or a degree of aggravation
which would entitle the plaintiff to punitive damages for
another tort; rather, [l]iability [may be] found only where
the conduct has been so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community [quotations omitted]."
Roman v. Trustees of Tufts College, 461 Mass. 707, 718 (2012).

In support of his claim for intentional infliction of emotional

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distress, the plaintiff references e-mails sent by the

defendants describing potential violations of codes of conduct

by the plaintiff and membership implications. He also

references the defendants' actions of inviting him to an event

only to later rescind that invitation, and finally the

defendants' failure to respond to e-mails that he had sent. Put

plainly, these communications and actions may have offended the

plaintiff, but they do not demonstrate extreme and outrageous

behavior by the defendants.

We do not address the plaintiff's challenge to the

dismissal of the counts alleging elder abuse or defamation as

these issues were not argued in the plaintiff's brief. See

Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628

(2019) ("appellate court need not pass upon questions or issues

not argued in the brief"). Finally, although the plaintiff has

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filed an appeal of the denial of his motion for reconsideration,

he has failed to provide any appellate argument. Id.

Judgment affirmed.

Order denying motion for
reconsideration affirmed.

By the Court (Vuono, Rubin &
Walsh, JJ. 5),

Clerk

Entered: August 21, 2024.

5 The panelists are listed in order of seniority.

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