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How do I decide what claims to bring in a civil action?

How do I decide what claims to bring in a civil action?

30 January 2020

Answer: With careful analysis.

It is very common for plaintiffs to bring a law suit that is in essence and in all legal reality only one type of claim, such as defamation, and raise other claims, sometimes many, that do not lie.  It appears they may be under the belief that the complaint is better with these additional, apparently less thought through claims.  Whatever the reason, it is this author’s humble opinion, and the case law seems to support this opinion, that this everything-but-the-kitchen-sink type of approach does not benefit the plaintiff in the long run.  The decision issued in Mullane v. Breaking Media, Inc. just recently by the United States District Court, District of Massachusetts, is in this author’s humble opinion a good example of an occurrence where the plaintiff would have been better off to have just raised his defamation claim.  Civil Action No. 18-12618-PBS (decided Jan. 6, 2020), 2020 U.S. Dist. Lexis 1339, 2020 WL 58455.

In Mullane v. Breaking Media, Inc., the plaintiff raised a defamation claim alleging that a certain article published about him was defamatory.  The basic story was that a newspaper reporter published a story about the plaintiff’s acts related to a different lawsuit in a derogatory fashion.  Instead of simply suing for defamation, a claim that arguably, if the publication was indeed defamatory, could be met, the plaintiff raised what appears to be every conceivable claim one could rattle off, that superficially would seem to apply, along with his defamation claim.  To wit: 1) tortious interference with contractual relations; 2) tortious interference with advantageous business relations; 3) tortious interference with prospective economic advantages; 4) intentional infliction of emotional distress; 5) and (finally) unfair and deceptive practices under Mass. Gen. Laws c. 93A.  As with many situations like this, the district court decided the defamation claim, and then shifted gears and made short shrift of the rest displaying how the facts could not satisfy the elements of each tort.  It appeared from the decision, that the additional claims were more than a stretch and based on some of the language used, a burden to decide from the court’s perspective.  In general, anyone familiar with the elements of these various torts, it would be quite odd facts that could support any of the above claims against a news reporter simply publishing a story.  (Defamation from an article yes, but unfair business practices?).  In addition, it is this author’s humble opinion that taking this type of approach may distract a court from the core, and proper, claim a plaintiff is asserting.   It also adds fodder to any future argument for sanctions that a complaint or parts of it were frivolous.

As stated, the case law seems to suggest bringing too many unsupported claims pended to a main, more supportable claim, happens often.  The Mullane v. Breaking Media, Inc. court cited a number of cases that suggest this.  See e.g., Shay v. Walters, 702 F. 3d 76, 83 (1st Cir. 2012); Piccone v. Bartels, 40 F. Supp. 3d 198, 201-02 (D. Mass. 2015).

To be sure, there are situations when there are enough facts to support making the long list of claims raised in Mullane together, however, they are rare.  If you find yourself with a long list of claims, it is this author’s opinion it is a signal that you may be raising claims without adequate support and to review them again.

There are similar concerns when an appellant is considering an argument on appeal.  But there, an appellant may be considering whether to raise multiple reasons why the same decision should be vacated or reversed.  Some may argue in favor of streamlining in that situation as well, but it may be difficult to know what arguments would work at the appellate stage, at least more difficult than at the pleading stage on the trial level.

In conclusion, the author recommends analyzing each and every considered claim carefully to see if the elements are supported, and if not, to not raise it.  And when faced with a situation where you believe you have one type of claim and others have less merit, to consider sticking with just the main claim.