Fitzgerald v. Brady

7ermont Superior Court
Filed 12/23/25
Chittenden UUnit

VERMONT SUPERIOR COURT CIVIL DIVISION
Chittenden Unit Case No. 25-CV-2920
175 Main Street
Burlington VT 05402
802-863-3467
.vermontjudiciary.org

LIAM FITZGERALD,
Plaintiff

DECISION ON MOTION

DANIEL BRADY,
Defendant

RULING ON DEFENDANT'S MOTION TO DISMISS

Plaintiff Liam FitzGerald brings this action against Defendant Daniel Brady, alleging that
he stalked him over a 12-month period. FitzGerald claims that Brady violated a Relief from
Abuse ("RFA") Order, engaged in civil stalking, committed intentional infliction of emotional
distress, and invaded his privacy, and also seeks punitive damages. Pursuant to Rule 12(b)(6) of
the Vermont Rules of Civil Procedure, Brady now moves to dismiss the Complaint. Brady is
represented by Attorney Brooks McArthur, Esq. and FitzGerald is representing himself. For the
reasons discussed below, the motion is GRANTED IN PART and DENIED IN PART.

Factual Background

For purposes of deciding the instant motion, the Court accepts the following facts alleged
in Plaintiff's Complaint and the attached documents as true. The Court makes no finding as to
their accuracy. !

Plaintiff Liam FitzGerald lives in Charleston, South Carolina and Defendant Daniel
Brady lives in Essex Junction, Vermont. On December 28, 2023, the Vermont Superior Court
issued a final RFA Order in Docket No. 23-FA-3419, prohibiting Brady from contacting or
surveilling FitzGerald in any form, including via third parties. Since the issuance of that Order,
Brady has repeatedly and deliberately violated it on at least 16 occasions. These violations
include direct digital messages via "Grindr," use of burner numbers, contact with third parties,
dissemination of private medical and transgender-related information, and the hiring of a private
investigator to surveil FitzGerald online.

FitzGerald attached a 67-page document to his Complaint. That document contains what
appear to be numerous phone screenshots of messages sent on dating or other messaging

See Montague v. Hundred Acre Homestead, LLC, 2019 VT 16, § 10, 209 Vt. 514 ("Ona
'

motion to dismiss, the court must assume that the facts pleaded in the complaint are true and
make all reasonable inferences in the plaintiff's favor.").
applications, as well as charts that purport to categorize and/or describe the contents of the
screenshots. Some of the messages appear to be sexually explicit. FitzGerald also attached an
Affidavit to his Complaint.

In October 2024, Brady filed a motion to dismiss or modify the RFA Order issued by the
family court. In that motion, he asserted that he had never violated the order. The family court
denied that motion.

In his Complaint, FitzGerald asserts claims for violations of the RFA Order, civil
stalking, intentional infliction of emotional distress (“IIED”), and invasion of privacy (intrusion
upon seclusion). He also seeks punitive damages.

Discussion

In deciding a motion to dismiss pursuant to Rule 12(b)(6), the court considers whether “it
appears beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to
relief.” Davis v. Am. Legion, Dep’t of Vt., 2014 VT 134, ¶ 12, 198 Vt. 204 (quoting Alger v.
Dep’t of Labor & Indus., 2006 VT 115, ¶ 12, 181 Vt. 309). The court must “assume as true the
nonmoving party’s factual allegations and accept all reasonable inferences that may be drawn
from those facts.” Wool v. Off. of Prof’l Regulation, 2020 VT 44, ¶ 8, 212 Vt. 305 (quotation
omitted). The burden on plaintiffs under Vermont law is “exceedingly low” at the pleading
stage. Prive v. Vt. Asbestos Grp., 2010 VT 2, ¶ 14, 187 Vt. 280. Motions to dismiss for failure
to state a claim are “disfavored and should be rarely granted.” Bock v. Gold, 2008 VT 81, ¶ 4,
184 Vt. 575. Complaints are intended to give enough notice to the defendant to allow a
response, but need not lay out every detail of the facts supporting the claim. See Colby v.
Umbrella, Inc., 2008 VT 20, ¶ 13, 184 Vt. 1 (“The complaint is a bare bones statement that
merely provides the defendant with notice of the claims against it.”). The goal is to “strike a fair
balance, at the early stages of litigation, between encouraging valid, but as yet underdeveloped
causes of action and discouraging baseless or legally insufficient ones.” Id.

Courts are “particularly wary of dismissing novel claims because ‘the legal theory of a
case should be explored in the light of facts as developed by the evidence, and, generally, not
dismissed before trial because of the mere novelty of the allegations.” Montague, 2019 VT 16,
¶ 11 (quotation omitted). “Nonetheless, where the plaintiff does not allege a legally cognizable
claim, dismissal is appropriate.” Id.

I. Claim for Violation of RFA Order.

In Count I, FitzGerald alleges that Brady knowingly and repeatedly violated a court-
issued protective order, and that he has “suffered emotional distress, loss of safety, and fear for
his well-being” as a result. Compl. ¶ 12-13. He cites 15 V.S.A. § 1108(d), which merely
outlines the procedure for enforcing a foreign abuse prevention order in Vermont. This claim
fails because there is no private right of action for violation of an RFA order. Section 1108 does
not establish any such private cause of action; instead, it outlines the ways in which law
enforcement officers can enforce such orders and provides that violations of such orders can be
prosecuted as criminal contempt. Indeed, FitzGerald appears to concede as much. See Pl.’s

2
Opp’n at 3 (clarifying that he “is not seeking damages under § 1108,” that “Count I is not pled as
a standalone statutory damages claim,” and that “he relies on the RFA as background and
evidence of Defendant’s ongoing course of conduct”). To the extent Count I purports to be an
independent claim, it is dismissed under Rule 12(b)(6). To the extent FitzGerald wishes to
enforce the existing RFA Order, he should contact the police. See 15 V.S.A. § 1108(a) (“Law
enforcement officers are authorized to enforce orders issued under this chapter.”).

II. Claim for Civil Stalking.

Next, in asserting a claim for “civil stalking” under 12 V.S.A. §§ 5131-38, FitzGerald
alleges that Brady “engaged in a course of conduct that would cause a reasonable person to fear
for their safety or suffer substantial emotional distress,” and that his “conduct meets the
definition of stalking under Vermont law, including digital surveillance, impersonation, and
pursuit.” Compl. ¶ 15-16. FitzGerald claims that, as a result of Brady’s conduct, he has
“suffered ongoing emotional harm, anxiety, trauma, and social isolation.” Id. ¶ 17.

The “civil stalking” claim fails because, as with violations of RFA orders, stalking is not
a common law tort. Nor has FitzGerald identified any authority that recognizes a private right of
action for damages for stalking in Vermont. See Haupt v. Langlois, 2024 VT 3, ¶ 20, 218 Vt.
605 (“the civil stalking statute has no common-law antecedent”); A. Shimizu, Domestic Violence
in the Digital Age: Towards the Creation of a Comprehensive Cyberstalking Statute, 28 Berkeley
J. Gender L. & Just. 116, 128 (2013) (“Stalking as a tort has been an exclusively statutory
creation as courts have been reluctant to extend common law to create a separate civil action for
stalking.”), cited in Haupt, 2024 VT 3, ¶ 20. While there is a statutory procedure to obtain an
order against stalking or sexual assault, see 12 V.S.A. § 5133, FitzGerald has not stated that he
seeks such an order. The “civil stalking” claim is dismissed under Rule 12(b)(6).

III. Claim for Intentional Infliction of Emotional Distress (“IIED”).

In Count III, FitzGerald claims intentional infliction of emotional distress. A prima facie
claim for IIED must demonstrate “outrageous conduct, done intentionally or with reckless
disregard of the probability of causing emotional distress, resulting in the suffering of extreme
emotional distress, actually or proximately caused by the outrageous conduct.” Davis, 2014 VT
134, ¶ 19 (citing Fromson v. State, 2004 VT 29, ¶ 14, 176 Vt. 395). Plaintiffs alleging IIED
“carry a heavy burden.” Id. ¶ 20. A defendant’s actions must be “so outrageous in character and
so extreme in degree as to go beyond all possible bounds of decent and tolerable conduct in a
civilized community and be regarded as atrocious and utterly intolerable.” Id. (citing Cate v.
City of Burlington, 2013 VT 64, ¶ 28, 194 Vt. 265). Such outrageous conduct must cause the
plaintiff to suffer “distress so severe that no reasonable person could be expected to endure it.”
Id. (citation omitted); see also Restatement (Second) of Torts § 46, cmt. d (1965).

FitzGerald claims that Brady’s conduct was “extreme and outrageous,” that Brady
intended to cause him severe emotional distress or acted with reckless disregard, and that he has
suffered “psychological damage requiring medical and therapeutic care.” Compl. ¶ 18-20. More
specifically, he points to his allegations that Brady repeatedly violated a court order by
contacting him directly or through third parties, contacted him via burner phone numbers,

3
surveilled him online, and disseminated private transgender-related information. Pl.’s Opp’n at
5-6. FitzGerald further argues that, because he lives in the “Deep South,” the disclosure of
transgender status “exposes individuals to heightened risk of harassment, discrimination, and
violence.” Id. at 6. Brady argues in a conclusory manner that none of the alleged conduct is
extreme or outrageous. Def.’s Mot. to Dismiss at 9.

The Court observes that several of the messages that FitzGerald alleges were sent by
Brady were sexually explicit. “When sexual harassment does not involve a touching, it may take
the form of demands for sexual favors, sexual exposure by the defendant, or the like.” Dobbs’
Law of Torts § 387 (2d ed.). “Sexual harassment may count as intentional infliction of emotional
distress although it involves no touching that would qualify as a battery.” Id. § 48. Indeed, “[a]
number of courts have recognized that sexual harassment can establish extreme or outrageous
behavior that warrants recovery for intentional infliction of emotional distress.” Id. § 387. A
defendant “who knows his attentions are unwelcome, but who telephones and calls on the
plaintiff persistently for months to request sexual contact, is rightly held liable for infliction of
emotional distress.” Id.; see also id. § 387 nn.23-24 (collecting cases). While a “single proposal
for sexual contact, unaccompanied by pressure or repetition, has been held insufficient,” see id.
§ 387 n.24, FitzGerald here has pled a pattern of repeated harassment under the backdrop of a
restraining order whereby Brady knew such contact was unwelcome. “Repeated harassment may
compound the outrageousness of incidents which, taken individually, might not be sufficiently
extreme to warrant liability for infliction of emotional distress.” Sindi v. El-Moslimany, 896 F.3d
1, 21 (1st Cir. 2018) (quotation omitted). Accordingly, FitzGerald has sufficiently pled a claim
for IIED, and the ultimate determination must be left for summary judgment or a jury trial after
further factual development.

IV. Claim for Invasion of Privacy.

Finally, in Count IV, FitzGerald claims invasion of privacy, through “intrusion upon
seclusion.” He alleges that Brady “intruded upon” his “private life via unauthorized
surveillance, social media infiltration, and communication with third parties,” and that these
intrusions were “highly offensive and caused significant emotional distress.” Compl. ¶ 21-22.
“The right of privacy is the right to be left alone.” Pion v. Bean, 2003 VT 79, ¶ 35, 176 Vt. 1
(quoting Denton v. Chittenden Bank, 163 Vt. 62, 68-69, 655 A.2d 703, 707 (1994)). To establish
an invasion of privacy, FitzGerald must show that Brady “intentionally interfered with [his]
interest in solitude or seclusion in a way that would be highly offensive to a reasonable person”
and the intrusion must be “substantial.” Id. (citing Denton, 163 Vt. at 69). Thus,

there is no liability for knocking at the plaintiff’s door, or calling him to the
telephone on one occasion or even two or three, to demand payment of a debt. It
is only when the telephone calls are repeated with such persistence and frequency
as to amount to a course of hounding the plaintiff, that becomes a substantial
burden to his existence, that his privacy is invaded.

Restatement (Second) of Torts § 652B, cmt. d (1977).

4
Brady argues that FitzGerald has no reasonable expectation of privacy in the information
allegedly shared with third parties. However, the crux of the claim is the repeated contacts and
the nature of those contacts, and the Restatement makes clear that repeatedly contacting someone
can amount to invasion of privacy. See id., cmt. d & illustr. 5. Brady also contends that his
alleged actions cannot amount to “hounding” as a matter of law. The Court is not persuaded.
FitzGerald references 16 instances of intrusion over a 12-month period, including hiring a private
investigator to research him, disseminating medical information about his transgender status to
third parties, asking third parties for information about his whereabouts, and directly contacting
him with sexually explicit messages. See Pl.’s Opp’n at 6-7; Ex. A to Compl.; Ex. A to
FitzGerald Aff. (filed July 12, 2025). Obviously, a mere one or two instances of intrusion is not
enough. See Weinstein v. Leonard, 2015 VT 136, ¶¶ 29-31, 200 Vt. 615. And, similarly, “a
handful of minor offenses are insufficient to constitute a tortious intrusion upon seclusion.” Id.
¶ 32. But there is no precise number of attempted contacts or similar incidents that is required to
state a claim for invasion of privacy. “[T]he threshold of when the number of calls becomes so
persistent and frequent as to constitute “hounding” is not clearly delineated.” 1 Rights of
Publicity and Privacy § 5:99 n.19 (2d ed) (quoting Charvat v. NMP, LLC, 656 F.3d 440, 454 (6th
Cir. 2011)) (collecting cases).

Moreover, the exact number of alleged intrusions alone is not always dispositive.
“Although persistent intrusions are illustrative of the cause of action in the Second Restatement,
it is clear that the important point is not that the intrusions be persistent but that the intrusions
should by one means or another rise to the level of what a reasonable person would find highly
offensive.” Bohnenkamp v. Whisterbarth, No. 1:19-CV-00115-RAL, 2021 WL 1947248, at *6
(W.D. Pa. May 14, 2021) (quotation omitted); see also 1 Rights of Publicity and Privacy § 5:99
n.4 (discussing a hybrid test established by Maryland courts whereby “a plaintiff can make out
an intrusion claim by either showing that the frequency of the communications indicates a
pattern of harassment or, alternatively, by showing that the communications were of a ‘vicious
quality’” (citing Household Fin. Corp. v. Bridge, 252 Md. 531, 541, 250 A.2d 878, 884 (1969))).
Here, the alleged 16 instances of intrusion over a year include sexually explicit messages where
FitzGerald already had a restraining order against Brady. These actions, if proven, could
constitute persistent conduct that would be highly offensive to a reasonable person. See Dobbs’
Law of Torts § 580 (noting that “harassment – repeated and unwanted attentions – may be
characterized as an intrusive invasion of privacy”); see, e.g., Kramer v. Downey, 680 S.W.2d
524, 525 (Tex. App. 1984) (holding that plaintiff was properly awarded damages for invasion of
privacy against woman who persisted for years in following him, waiting outside his residence
attired in unusual fashion and occasionally making sexual remarks to him, and delivering to
plaintiff numerous unwanted letters, cards and gifts). Without further factual development, the
Court cannot conclude at this early stage of the proceedings that 16 alleged instances of intrusion
over a one-year period is insufficient as a matter of law. 2

2
Defendant does not directly address Plaintiff’s punitive damages claim (Count V) in his
motion to dismiss. Thus, the Court leaves that claim for another day.
5
V. Plaintiff’s Erroneous Citations of the Law.

Lastly, the Court observes that FitzGerald’s Opposition appears to contain citations of
non-existent cases and fake quotations, possibly generated by artificial intelligence. For
example, FitzGerald cites to “Russin v. Shepard, 2014 VT 22, 12,” Pl.’s Opp’n at 4, a case that
does not exist. He misquotes Colby v. Umbrella, Inc., 2008 VT 20, ¶ 5, 184 Vt. 1. See Pl.’s
Opp’n at 3. The quote he attributes to Colby actually appears in Bock v. Gold, 2008 VT 81, ¶ 4,
184 Vt. 575. FitzGerald also misquotes Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 162, 624
A.2d 1122, 1129 (1992). The quote he attributes to Hodgdon does not appear in that case. See
Pl.’s Opp’n at 6.

The Court reminds FitzGerald that, by presenting a document to the Court, he is
certifying that:

to the best of [his] knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances: . . . (2) the claims, defenses, and other legal
contentions therein are warranted by existing law or by a nonfrivolous argument
for the extension, modification, or reversal of existing law or the establishment of
new law.

V.R.C.P. 11(b)(2). “A fake opinion is not ‘existing law’ and citation to a fake opinion does not
provide a non-frivolous ground for extending, modifying, or reversing existing law, or for
establishing new law.” Mata v. Avianca, Inc., 678 F. Supp. 3d 443, 461 (S.D.N.Y. 2023).
Moreover, “[a]n attempt to persuade a court or oppose an adversary by relying on fake opinions
is an abuse of the adversary system.” Id. A “citation to fake, AI-generated sources . . . shatters
[] credibility with [the] Court” and “imposes many harms, including wasting the opposing
party’s time and money, the Court’s time and resources, and reputational harms to the legal
system (to name a few).” Kohls v. Ellison, No. 24-CV-3754 (LMP/DLM), 2025 WL 66514, at
*4-5 (D. Minn. Jan. 10, 2025) (quotation omitted). As such, courts “do not, and should not,
make allowances for a party who cites to fake, nonexistent, misleading authorities,” and the
consequences for doing so may be “steep.” Id. at *5 (quotation omitted).

“Self-represented litigants ‘receive some leeway from the courts’ but are nonetheless
bound by the ordinary rules of procedure, ‘includ[ing] the obligations of Rule 11 and sanctions
for noncompliance.’” Rivard v. Windham State Att’y, Case No. 25-AP-305, 2025 WL 3498177,
at *2 (Vt. Dec. 2025) (unpub. mem.) (quoting Zorn v. Smith, 2011 VT 10, ¶ 22, 189 Vt. 219). 3
Accordingly, FitzGerald “is warned that future conduct of this nature may result in
sanctions.” Id.; see also V.R.C.P. 11(c) (“If, after notice and a reasonable opportunity to
respond, the court determines that subdivision (b) has been violated, the court may . . . impose an

3
Trial courts are free to “consider three-justice decisions from [the Vermont Supreme] Court
for their persuasive value, even though such decisions are not controlling precedent.” Washburn
v. Fowlkes, Case No. 2015-089, 2015 WL 4771613, at *3 (Vt. Aug. 2015) (unpub. mem.) (citing
V.R.A.P. 33.1(d), providing that an “unpublished decision by a three-justice panel may be cited
as persuasive authority but is not controlling precedent,” except under limited circumstances).
6
appropriate sanction upon the . . . parties that have violated subdivision (b) or are responsible for
the violation.”).

Order

For the foregoing reasons, Defendant’s Motion to Dismiss (Mot. # 3) is GRANTED as to
Counts I and II and DENIED as to Counts III, IV, and V.

Additionally, the Court warns Plaintiff that any future citation of nonexistent legal
authorities or fake quotations, whether generated by artificial intelligence or otherwise, is a
violation of Rule 11 of the Vermont Rules of Civil Procedure and may result in sanctions.

Defendant shall file an Answer within 14 days and the parties shall filed a proposed
discovery schedule within 14 days thereafter.

Electronically signed on December 22, 2025 at 3:23 PM pursuant to V.R.E.F. 9(d).

________________________________
Megan J. Shafritz
Superior Court Judge

7