03/02/2020 AYYADURAI v. FLOOR64, INC | 270 F.Supp.3d 343... | 20170907d75| Leagle.com Applying those principles here, it is clear that Beadon was neither the "creator" nor "developer" of the statements at issue. 12 Beadon simply selected a user-submitted comment and re-posted it, without modifying the content of the comment. Republishing an already-existing user-submitted comment, without altering the content of that comment, does not materially contribute to its allegedly defamatory nature. While Beadon arguably adopted or rati ed the comments by selecting them for re-publication, "[a]n adoption or rati cation theory ... is not only inconsistent with the material contribution standard of `development' but also abuses the concept of responsibility. A website operator cannot be responsible for what makes another party's statement actionable by commenting on that statement post hoc" Jones, 755 F.3d at 415. Accordingly, the defamation claim based on Beadon's article is barred by the CDA. D.  Intentional Interference with Prospective Economic Advantage (Count Two) The complaint also asserts claims for intentional interference with a prospective economic advantage. The IIPEA claim fails for First Amendment reasons as well as on its own terms. The Supreme Court has made it clear that "a failed defamation claim cannot be recycled as a tort claim for negligent or intentional in iction of emotional [270 F.Supp.3d 369] distress." Shay v. Walters, 702 F.3d 76, 83 (1st Cir. 2012) (citing Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56-57, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988)). A court in this district has extended that bar to include claims for IIPEA. See Piccone v. Bartels, 40 F.Supp.3d 198, 201-02 (D. Mass. 2014) (" [P]lainti s cannot recover for the same statements on a theory of interference with advantageous business relations."). Accordingly, the IIPEA claim, which simply recasts the defamation claim, cannot proceed. Furthermore, even absent the First Amendment's bar, the complaint fails to state a claim for IIPEA. To state a claim for intentional interference with advantageous relations, a plainti must allege that "(1) he had an advantageous relationship with a third party (e.g., a present or prospective contract or employment relationship); (2) the defendant knowingly induced a breaking of the relationship; (3) the defendant's interference with the relationship, in addition to being intentional, was improper in motive or means; and (4) the plainti was harmed by the defendant's actions." Blackstone v. Cashman, 448 Mass. 255, 260, 860 N.E.2d 7 (2007). Here, at a minimum, the complaint fails at the third prong. An improper motive can be established by showing "retaliation or ill will toward the plainti ." Cavicchi v. Koski, 67 Mass.App.Ct. 654, 658, 855 N.E.2d 1137 (2006) (citing Draghetti v. Chmielewski, 416 Mass. 808, 817, 626 N.E.2d 862 (1994)). "Improper means include violation of a statute or common-law precept, e.g., by means of threats, misrepresentation, or defamation." Id. (citing United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 817, 551 N.E.2d 20 (1990)). The complaint does not allege an improper motive beyond the bare, conclusory allegation that defendants "acted solely out of malice" and that they "intended to harm Plainti by intentionally and unjusti ably interfering with his actual and prospective business relationships." (Compl. ¶¶ 64-65). Such conclusory allegations that "merely parrot the elements of the cause of action" are insu cient to state a plausible claim under Rule 12(b)(6). See Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). As to improper means, the complaint alleges that defendants "used dishonest, unfair or improper means to interfere with Plainti 's actual and prospective business relationships." (Compl. ¶ 64). However, as discussed above, plainti cannot establish that the statements at issue are false. Under the circumstances, "[t]here is no indication that the [statements were made] for any reason other than the reporting on an issue of public concern," and, accordingly, there is "no indication that the [statements] w[ere] improper or carried on for any purpose other than journalism." Dulgarian v. Stone, 420 Mass. 843, 852, 652 N.E.2d 603 (1995). D.  Intentional Infliction of Emotional Distress (Count Three) Finally, the complaint asserts claims against each of the defendants for intentional in iction of emotional distress. As noted above, "[t]he Supreme Court has made it pellucid that a failed defamation claim cannot be recycled as a tort claim for negligent or intentional in iction of emotional distress." Shay, 702 F.3d at 83 (citing Hustler Magazine, Inc, 485 U.S. at 56-57, 108 S.Ct. 876). See also Soto-Lebron v. Federal Express Corp., 538 F.3d 45, 58 (1st Cir. 2008) (stating that libel claim "cannot be brought in the guise of an IIED claim, which would divorce it from the well developed law of defamation with its attendant privileges and defenses"). "[P]ublic gures and public o cials may not recover for the tort of intentional in iction [270 F.Supp.3d 370] of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with `actual malice,' i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true." Falwell, 485 U.S. at 56, 108 S.Ct. 876. Again, plainti is a public gure for purposes of First Amendment law, and the complaint fails to plausibly allege either falsity or malice. Furthermore, and in any event, the complaint fails to plausibly state an IIED claim by its own terms. To state a claim for IIED under Massachusetts law, a plainti must allege "(1) that the actor intended to in ict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct ...; (2) that the conduct was extreme and outrageous, was beyond all possible bounds of decency and was utterly intolerable in a civilized community,' and `(3) that the actions of the defendant were the cause of the plainti 's distress.'" Kennedy v. Town of Billerica, 617 F.3d 520, 530 n.9 (1st Cir. 2010) (quoting Howell v. Enterprise Publ'g Co., 455 Mass. 641, 672, 920 N.E.2d 1 (2010)) (alteration in original). "[L]iability cannot be predicated upon `mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." Foley v. Polaroid Corp., 400 Mass. 82, 99, 508 N.E.2d 72 (1987) (quoting Restatement (Second) of Torts § 46, cmt. d (1965)). For that reason, "defamatory statements ... cannot, as a matter of law, satisfy the `extreme and outrageous conduct' requirement of the IIED claim." Soto-Lebron, 538 F.3d at 59. E.  Plaintiff's Request to Amend the Complaint Plainti has requested that as an alternative to dismissal, he be granted leave to amend the complaint. In his opposition, he cites to the "liberal amendment policy of Rule 15(a)" and requests that "[i]f this Court believes that Dr. Ayyadurai has not [pleaded] any of his claims, it should grant him leave to amend." (Pl. Opp. at 23). However, "except perhaps in `exceptional circumstances,' a bare request in an opposition to a motion to dismiss does not constitute a motion to amend for purposes of Rule 15(a)." United States ex rel Ge v. Takeda Pharm. Co., 737 F.3d 116, 128 (1st Cir. 2013) (quoting Gray v. Evercore Restructuring LLC, 544 F.3d 320, 327 (1st Cir. 2008)). "[W]here, as here, a request to le an amended complaint consists of nothing more than `boilerplate sentences stating the well-settled "freely given" standard under which a request for leave to amend is generally analyzed,' a district court `act[s] well within its discretion when completely disregarding the request.'" Id. (quoting Silverstrand Investments v. AMAG Pharms., Inc., 707 F.3d 95, 107-08 (1st Cir. 2013)). A request for leave to amend requires a plainti to "set forth the factual and legal predicate for the remedy sought." Silverstrand Investments, 707 F.3d at 107. Here, however, plainti 's opposition fails to set forth a single additional fact that would be included in the amended complaint. Accordingly, plainti has failed to "do[] the necessary leg work," id., and the request to amend will be denied. https://www.leagle.com/decision/infdco20170907d75 10/15