2013 | Cited 0 times | D. Maine | September 23, 2013



JOHN DOE 1 through 10 and JANE DOE 1 through 10, Defendants.

Docket no. 1:12-cv-00160-NT

OPINION AND ORDER ON MOTION TO DISMISS This case comes before the Court on Defendants and Ira Shapiro, M.D. Defendants motion

to dismiss the First Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state claims for which relief may be granted (ECF No. 30). For the reasons discussed below, the Defendants motion is GRANTED in part and DENIED in part.

BACKGROUND Plaintiff James Murtagh, M.D. brought this complaint against the Defendants following a brief stint of employment as a locum tenens physician at St. Hospital . According to the First Amended Complaint, Murtagh, through Vista Staffing Solutions, Inc. Vista , obtained a temporary placement as a pulmonary physician at the Hospital for a term that began on April 22, 2010, and that was supposed to extend at least through July 31, 2010, and possibly blossom into a permanent position. Murtagh claims that, with

the reasonable expectation of an offer of permanent employment, he worked overtime and that he garnered positive and encouraging feedback from management personnel about the quality of his patient care and his relationships with Hospital personnel. But Murtagh was terminated from his position on May 12, 2010, after less than three weeks on the job.

Murtagh alleges that while working for the Hospital unethical and possibly illegal activities taking place in the Hospital including

unnecessary medical procedures and services, First Am. Compl. ¶ 12, and that the ted to Pulmonary Medicine and Critical Care Medicine that placed the health and safety of patients at risk. First Am. Compl. ¶ 63. He claims that he both reported these potential abuses Management Offices to provide an opportunity to take corrective action First Am.

Compl. ¶ 63. Murtagh claims that Shapiro retaliation Murtagh also claims that after

his employment began, Shapiro learned that Murtagh had been a whistleblower in a previous engagement at Emory University Medical School and that Shapiro preemptively terminat activities would be disclosed by Murtagh.

Following his termination, Murtagh attempted to meet with Shapiro to discuss the reasons for his termination but was rebuffed. According to

Murtagh, Shapiro finally responded several days later, termination was not a corrective action, but that he was let go on a strictly contractual basis. First Am. Compl. ¶ 20. Murtagh alleges that Shapiro then falsely informed and/or medical staffing agencies that Murtagh had been dismissed from the Hospital for unsatisfactory performance. As a result of these false representations, Murtagh claims, Vista discontinued its contractual relationship with Murtagh and he was also denied several positions for which he had applied and for which he was well qualified by training and experience. First Am. Compl. ¶ 27.

The First Amended Complaint alleges six counts against the Defendants: Count I (breach of contract), Count II (tortious interference with prospective economic advantage), Count III, (defamation and false light), Count IV (enforcement of rights of a third-party beneficiary), Count V (violation of 26 M.R.S.A. § 630) and Count VI (wrongful discharge and retaliation against a whistleblower). The Defendants move to dismiss all counts of the First Amended Complaint.

LEGAL STANDARD Rule 8 of the Federal Rules of Civil Procedure requires that a complaint

[e] Fed. R. Civ. P. 8(a)(2) and 8(d)(1). The First Circuit has set forth, consistent with

Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 of

Step one: isolate and ignore statements in the complaint that simply offer legal labels and conclusions or merely rehash cause-of-action -pled (i.e. non-conclusory, non-speculative) facts as true, drawing all reasonable inferences in the ef. Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1 st

Cir. 2012) context-

that requires the Id. (quoting Iqbal, 129 S.Ct. at 1950).

complaint, or not expressly incorporated therein, unless the motion is converted into Alternative Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001) (citing Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)). There is, however, a narrow exception for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to plaintiffs claim; or for documents sufficiently referred to in the complaint. Id. (quoting Watterson, 987 F.2d at 3). When the complaint relies upon a document, whose authenticity is not challenged, such a document and the court may properly consider it under a Rule 12(b)(6) motion to

dismiss. Alternative Energy, 267 F.3d at 33 (quoting Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 17 (1st Cir. 1998)).

DISCUSSION A. Count I: Breach of Contract

The Defendants claim that the Plaintiff has not adequately alleged the existence of any contract between the Plaintiff and the Hospital that can serve as a basis for his breach of contract claim. The Plaintiff responds: 1) that his placement ; and 2) that ing his terBylaws. 9 (ECF No. 35).

1. The Agreements As alleged in the First Amended C claim is based on an agreement for locum tenens coverage dated March 17, 2008 and

Coverage Agreement -2). 1 The Plaintiff claims he is a party to this contract, and seeks to enforce both its notice and t. Paragraph 9 of the Coverage Agreement states:

If Client [defined as the Hospital] reasonably finds the performance of any Professional providing Locum Tenens coverage under this Agreement to be unacceptable for reasons of professional competence or personal conduct, it shall give notice to VISTA and may then remove the Professional from the placement. The Plaintiff is not a party to the Coverage Agreement. Under Utah law, which governs this agreement (see

1 The Coverage Agreement was attached as an exhibit to the First Amended Complaint and incorporated therein.

minds on the integral features of an agreement is essential to the formation of a s Gym, 78 P.3d 600, 602 (Utah 2003) (quoting Richard Barton Enters. v. Tsern, 928 P.2d 368, 373 (Utah 1996)). The Plaintiff had nothing to do with the creation or terms of this contract, and he was not a signatory to it. Indeed, it was executed by the Hospital and Vista over two years prior to the .

The Plaintiff claims, however, that the Coverage Agreement is part of a larger agreement including a professional services placement agreement executed by the Plaintiff and Vista dated March 11, 2010, Placement Agreement (ECF No. 40-1). 2

Plaintiff -

party contract. This claim is also unavailing.

The Placement Agreement is an agreement signed by Vista and a medical professional who is looking for a temporary assignment. It sets forth certain general terms of the relationship between Vista and the professional that govern all potential assignments going forward. Neither the Coverage Agreement nor the Placement Agreement incorporates the other by reference. By contrast, Paragraph 5 of the Coverage Agreement incorporates by reference certain terms in the p 3

This incorporation of the Placement Letter

2 This agreement was subsequently added to See

3 The Coverage Agreement provides: Client agrees . . . to provide or pay for the lodging, demonstrates that, where the parties to the Coverage Agreement intended to incorporate the terms of other agreements, they did so explicitly.

Moreover, the Coverage Agreement contains a merger clause that states: Complete Agreement, Amendment. This Agreement contains the complete understanding between the parties, and shall bind and inure representatives. Amendments or variations of the terms of this Agreement shall not be valid unless in writing and signed by all parties. effect of including a merger clause is to preclude the subsequent introduction of

evidence of preliminary negotiations or of side agreements in a proceeding in which a court Tangren Family Trust v. Tangren, 182 P.3d 326, 330 (Utah 2008). Where a contract contains an explicit merger clause, evidence extrinsic to the contract can be forgery, a joke, a sham, lacking in consideration, or where a contract is voidable for

fraud, duress, Id. at 330-31. The Plaintiff makes no such claims in this case. Accordingly, absent an explicit incorporation of the Placement Agreement into the Coverage Agreement, the former cannot supplement the terms of the latter, or draw the Hospital into a tri-party contract. The Plaintiff argues that because Vista is both his agent agent, Vista acts for him in the Coverage Agreement and for the Hospital in the

hospitals or affiliates for credentials verification of Professionals as set forth in each Placement L Coverage Agreement ¶ 5.

The Placement Letter sets forth the specific terms of an assignment, including the term of the engagement, wages, and reimbursable expenses. See ECF No. 38-1 at 8 (sample Placement Letter).

-party to . to Dismiss 10. by the Placement provision that: McCarthy v. Azure, 22 F.3d 351 (1 st

Cir. 1994) is similarly unhelpful. In McCarthy, the First Circuit determined that an individual who signed a purchase agreement for claims asserted against him in his individual capacity. The Court fails to see how the McCarthy case, which is provided without pinpoint citation, helps the Plaintiff in any way. The Plaintiff also claims that he was bound by the Coverage Agreement to provide notice to the Hospital in the event he wished to end his relationship with the Hospital, and that he cannot be bound by these terms unless the Hospital is also bound to provide notice to him under this agreement. Murtagh misreads the Coverage Agreement, which does not require him to give notice to the Hospital. 4

4 The Coverage Agreement ¶ 7 states:

A Professional identified by a signed Placement Letter may terminate a Placement Letter and cancel a placement if the Professional becomes unable, due to emergency or medical condition, to perform services called for by that Placement Letter. Such Placement Letter may be terminated by Professional or VISTA by giving written notice of termination to Client, identifying the reasons justifying termination. Termination shall be effective on receipt of said notice, and VISTA shall thereafter return any unearned payments received under such Placement Letter. Professional, and not VISTA, is responsible for damages incurred by Client should Professional fail to fulfill or improperly terminate a scheduled placement.

only obligation is under the Placement Agreement, and that obligation is to provide notice to Vista. 5 Finally, even if the Coverage Agreement and the Placement Agreement were somehow integrated, the Placement Agreement contains essentially the same provision as the Coverage Agreement regarding removal of the Plaintiff from a placement:

If Client reasonably finds the performance of Professional to be unacceptable for reasons of professional competence or personal conduct, it shall give notice to VISTA and may then remove Professional from the Placement. Placement Agreement ¶ 4; see also Coverage Agreement ¶ 9. Together, these terms unambiguously indicate that any notice rights belong solely to Vista.

2. The Hospital Bylaws The Plaintiff also makes two breach of contract claims Bylaws. 6

The Plaintiff asserted in the First Amended Complaint that as a result of his contractual status as a locum tenens physician, he was 5

The Placement Agreement ¶ 4 states:

The terms of each Placement . . . shall allow Professional to cancel any scheduled placement by giving written notice to VISTA identifying the reasons justifying termination if Professional becomes unable by reason of emergency or medical condition to fulfill an agreed placement. Professional shall pay to VISTA its unrecoverable expenses for any placement canceled by Professional. . . . Except as perform a placement as agreed may result in liability for breach of contract. 6 In Maine, Bartley v. E. Maine Med. Ctr., 617 A.2d 1020, 1021 (Me. 1992) (citing Bhatnagar v. Mid-Maine Medical Ctr., 510 A.2d 233, 234 (Me. 1986)); see also Whalen v. Down E. Cmty. Hosp., 980 A.2d 1252, 1254-55 (Me. 2009). Murtagh was not a staff physician, but, on the theory that bylaws may generally depending on their terms create enforceable contracts between hospitals and individuals who work there, the Court addresses the substance of

had a right to a hearing under the Hospital Bylaws regarding discipline and termination of permanent employees. First Am. Compl. ¶ 33. 7

The Plaintiff abandoned this claim, which was prudent since the Bylaws explicitly state that such rights are not available to locum tenens physicians. 8

The Plaintiff falls back on a provision of the Bylaws relating to termination of temporary Hospital privileges:

The Chief Executive Officer may at any time upon reasonable notice under the circumstances and for any reason after consultation with the Chief Medical Officer of the Medical Staff and the Department Chair terminate any or all temporary privileges granted. Bylaws Art. 7.5.3. The Plaintiff of due process review regarding his termination. 9.

First, the Plaintiff asserts that agreement

this consultation and agreement s Mot. to Dismiss 8. But the First Amended Complaint does not allege that the medical staff failed to I terminated Mur termination was attributable to the Hospital and was not the result of some rogue

7 referenced in and attached to the first amended complaint (ECF 22- Bylaws 8 his/her inability to obtain temporary privileges or because of any termination or suspension of

action by one member of the Hospital staff. See First Am. Compl. ¶ 15. There is no positive allegation anywhere in the First Amended Complaint The Plaintiff has failed to allege any breach of this provision of the Bylaws.

The Plaintiff also alleges that, after he was notified of the termination of his privileges, he was denied an audience with Shapiro to discuss the reasons why his privileges were terminated and that he was escorted from the premises in a fashion. First Am. Compl. ¶ 17. While a locum tenens physician may be entitled to , the allegations do not support a claim that the notice given to the Plaintiff was unreasonable. The Bylaws do not require the Hospital to provide the Plaintiff with its reasons for termination, nor do they provide contractual protection for any particular manner of escort from the Hospital premises.

For the foregoing reasons, claim for breach of contract fails to state a claim for which relief may be granted.

B. Count IV: Enforcement of Rights of a Third-Party Beneficiary

The Plaintiff also claims that he is entitled to enforce the terms of the Coverage Agreement as a third-party beneficiary of this agreement. The Court continues to apply Utah law to this contract-related claim. See Coverage Agreement ¶13(f). Utah follows the Restatement (Second) of Contracts § 302 on the question of third-party beneficiaries. Ron Case Roofing and Asphalt Paving, Inc. v. Blomquist, 773 P.2d 1382, 1386 (Utah 1989). The Restatement provides:

(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either (a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or (b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance. (2) An incidental beneficiary is a beneficiary who is not an intended beneficiary. RESTATEMENT (SECOND) OF CONTRACTS § 302. The Coverage Agreement evinces no intent to confer rights on the Plaintiff, and in particular, the contract plainly confers the notice right to Vista alone. But the Plaintiff claims that because he worked for the Hospital, and thereby placed his professional reputation in the him some protection should be read into the notice provision. This equitable argument cannot override the actual intentions of the parties, as evidenced by the terms of the Coverage Agreement. Thus, claim for enforcement of third-party beneficiary rights fails to state a claim for which relief may be granted.

C. Count II: Tortious Interference with Prospective Economic Advantage

The Defendants claim that the First Amended Complaint fails to state a claim for tortious interference with prospective economic advantage because it fails to adequately allege either fraud or intimidation. Under Maine law: 9

[t]ortious interference with a prospective economic advantage requires a plaintiff to prove: (1) that a valid contract or prospective economic 9 icable Maine statutory and common law.

advantage existed;

(2) that the defendant interfered with that contract or advantage through fraud or intimidation; and (3) that such interference proximately caused damages. Rutland v. Mullen, 798 A.2d 1104, 1110 (Me. 2002) (footnotes omitted) (citing James v. MacDonald, 712 A.2d 1054, 1057 (Me. 1998)).

1. Interference through Fraud The elements of interference by fraud are: (1) mak[ing] a false representation (2) of a material fact (3) with knowledge of its falsity or in reckless disregard of whether it is true or false (4) for the purpose of inducing another to act or refrain from acting in reliance on it, and (5) the other person justifiably relies on the representation as true and acts upon it to the damage of the plaintiff. Rutland, 798 A.2d at 1111. (quoting Grover v. Minette-Mills, Inc., 638 A.2d 712, 716 (Me.1994) (alteration in original) (also citing RESTATEMENT (SECOND) OF TORTS §§ 525-26 (1977)).

To the extent the Plaintiff Federal Rule of Civil

Procedure 9(b). See Goodman v. President and Trs. of Bowdoin Coll., 135 F. Supp. 2d 40, 59 (D. Me. 2001); cf. Hayduk v. Lanna, 775 F.2d 441, 443 (1 st

Cir. 1985) pleading fraud in federal courts in all diversity suits is governed by the special

the Plaintiff representation, but not the circumstances or evidence from which fraudulent intent

Hayduk, 775 F.2d at 444.

The First Amended Complaint alleges that: Upon information and belief . . . Shapiro took it upon himself. . . to agencies engaged to assist Murtagh in acquiring other temporary and permanent employment opportunities, that Murtagh had been the fact that no reasonable findings had ever been made or notice issued. First Am. Compl. ¶ 22. The Plaintiff caused Vista to discontinue its contractual relationship with the Plaintiff. Together,

these statements get the Plaintiff only partway toward a sufficient claim for tortious interference through fraud. The First Amended Complaint sufficiently alleges what Shapiro said (that the Plaintiff was dismissed for unsatisfactory performance) and to whom Shapiro made the representation (Vista) but it fails to specify when or where Shapiro communicated this to Vista. The First Amended Complaint is also completely deficient in its allegations that Shapiro was responsible for the loss of any additional employment opportunities. 10

Strictly considering the facts alleged in the First Amended Complaint and documents

10 As part of his opposition to the motion to dismiss, the Plaintiff attached several documents including a copy of a letter dated December 14, 2010 from Shapiro to Community Mercy Health Partners stating that the P - 2), and a 29-paragraph statement, (ECF No. 35- statement alleges that a phone call from Shapiro resulted in his termination from a permanent position at the Cleveland University Hospitals in September of 2010, that the Jewish Hospital in Cincinnati terminated him in March of 2011 after receivin Company, refusing to do business with him and also for the inability of a third recruiting company,

Alliance, to place him in any positions. These additional details cannot be considered on a motion to dismiss. Unlike the contracts and the Hospital Bylaws for considering materials outside of the complaint

See Alternative Energy, Inc., 267 F.3d at 33.

fails to state a claim for tortious interference through fraud.

2. Interference through Intimidation The Plaintiff asserts that he has stated a claim for interference through intimidation. See Currie v. Indus. Sec., Inc., 915 A.2d 400, 408 (Me. 2007). In Currie,

imidation is not restricted to frightening a person for coercive purposes, breach of plaintiff had contracted that the only manner in which that party could avail itself of a particular benefit of working with defendant would be to breach its contract with plaintiff. Currie, 915 A.2d at 408 (quoting Pombriant v. Blue Cross/Blue Shield of Maine, 562 A.2d 656, 659 (Me. 1989)). The First Amended Complaint does not allege that Shapiro made it clear to Vista that Vista could only continue its relationship with the Hospital if Vista discontinued its relationship with the Plaintiff. It alleges only that Shapiro falsely informed Vista of unsatisfactory performance and that, based on this report, Vista dropped the Plaintiff. Accordingly, the First Amended Complaint fails to state a claim for tortious interference with prospective economic advantage through intimidation.

D. Count III: Defamation

The Defendants contend that the First Amended Complaint fails to state a s that the Plaintiff was terminated for unsatisfactory performance were not false or defamatory. Common law defamation consists of:

(a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher;

and (d) either actionability of the statement irrespective of special harm or

the existence of special harm caused by the publication. Lester v. Powers, 596 A.2d 65, 69 (Me. 1991) (quoting RESTATEMENT (SECOND) OF TORTS § 558 (1977)). Under Maine law:

The plaintiff in a defamation case must prove that the published statements made were defamatory, meaning that the statements harmed his reputation so as to lower him in the estimation of the community. Schoff v. York Cnty, 761 A.2d 869, 871 n. 3 (Me. 2000) Moreover, the plaintiff must prove that the defamatory statements are false. . . . A false statement must be an assertion of fact, either explicit or implied, and not merely an opinion, provided the opinion does not imply the existence of undisclosed defamatory facts. Lester v. Powers, 596 A.2d 65, 69 (Me. 1991). If the publication is truly an opinion . . . it is not actionable. . . .

The determination whether an allegedly defamatory statement is a statement of fact or opinion is a question of law . . . [but if] the average reader could reasonably understand the statement as either fact or opinion, the question of which it is will be submitted to the [fact-finder] Co., 470 A.2d 782, 784 (Me. 1984). Ballard v. Wagner, 877 A.2d 1083, 1087 (Me. 2005) (alterations in original) (some citations omitted).

Taking all reasonable inferences in statement that the Plaintiff was terminated due to unsatisfactory performance

implies the existence of undisclosed defamatory facts. A fact finder could reasonably find that someone receiving this statement from Shapiro would understand it to mean that the Hospital found that the Plaintiff failed to meet certain objective professional standards when he worked there. A fact finder could reasonably find

that this statement harmed professional reputation and lowered him in the estimation of the community. See Stanton v. Metro Corp., 438 F.3d 119, 124- 25 (1 st

Cir. 2006) (under Massachusetts law, on a motion to dismiss court determines not the ultimate issue of whether the statement is defamatory, but the threshold question of whether the statement is reasonably susceptible of a defamatory meaning.) The Plaintiff also adequately alleged that his performance while at the Hospital was not deficient in any respect, and thus, that this statement was false. The First Amended Complaint states a claim for defamation.

E. Count III: False Light

The Defendants claim that the Plaintiff fails to plead that the Defendants gave publicity to any matter that placed him in a false light. The tort of false light, the plaintiff in a false light in Cole v. Chandler, 752 A.2d 1189, 1197

(Me. 2004). Under the Restatement (Second) of Torts, which Maine follows, liability for false light is described as follows:

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. RESTATEMENT (SECOND) OF TORTS § 652E (1977), see Chandler, 752 A.2d at 1197. The Restatement also explains the following regarding publicity:

that term is used in § 577 in connection with liability for defamation. communication by the defendant to a third other hand, means that the matter is made public, by communicating

it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. RESTATEMENT (SECOND) OF TORTS § 652D cmt. a (1977).

The First Amended Complaint makes no claim that Shapiro gave publicity to the matter of termination from the Hospital. It claims only that Shapiro took it upon himself to inform prospective employers and/or medical staffing agencies that the Plaintiff had been dismissed from the Hospital for unsatisfactory performance. The Additional Statement gets closer to a central database to which all Mercy hospitals have access, and that as a result of the letter, the Plaintiff could not be hired in a Catholic hospital anywhere in the nation. But again, the Court will not consider this information because it was not presented within the operative pleading. See Alternative Energy, Inc., 267 F.3d at 33. The claim for false light, as alleged in the First Amended Complaint, must be dismissed.

F. Count V: Violation of 26 M.R.S.A. § 630

The employment. Under

of the affected employee, give that employee the written reasons for the termination

statutes as employer in consideration of direct or indirect gain or profit, to engage in any

26 M.R.S.A. § 591. 11

The Defendants assert that the Plaintiff cannot make out a claim under § 630 because he was an independent contractor, both under the terms of the Placement Agreement and by his own admission in the First Amended Complaint. See Placement Agreement ¶ 11, First Am. Comp. ¶¶ 31, 39, 53, and 57. The Plaintiff argues that the question of whether he was an employee or an independent contractor is a factual matter not appropriate for determination on a motion to dismiss. The Court agrees with the Plaintiff. The multi-part test for determining the status of an individual as an independent contract is fact-intensive. 12

Regarding the Placement Agreement terms, Maine has long held that these contractor. See, e.g., Timberlake v. Frigon & Frigon, 438 A.2d 1294, 1298 (Me. 1982)

intend to enter into an independent contractual relationship and still the terms of the employment be such that the law would determine his status as

11 Under a recently- See 2012 Me. Legis. Serv. Ch. 643 (H.P. 960) (L.D. 1314) (West). The Plaintiff does not claim that

this law, which went into effect on December 31, 2012, is inapplicable to his case. Even before the law went into effect, the was largely considered to be in contradistinction to See North East Ins. Co. v. Soucy, 693 A.2d 1141, 1144 (Me. 1997).

12 See 26 M.R.S.A. § 1043(11)(E). The 2012 amendment to 26 M.R.S.A. § 591 incorporates this .

that of an employee (quoting Kirk v. Yarmouth Lime Co., 15 A.2d 184, 187 (Me. 1940)).

contractor status in the First Amended Complaint, Federal Rule of Civil Procedure 8(d) allows a plaintiff to make inconsistent claims as it has, regardless of consistency. This is essentially what the Plaintiff has done

in paragraph 57 of the First Amended C Although the Plaintiff apparently did

not understand that are mutually exclusive under Maine law, his assertion of independent contractor status may not be borne out by the evidence, and his assertion that he was an employee of the Hospital may yet prove viable. The First Amended Complaint raises sufficient that, been made.

G. Count VI: Retaliation Against a Whistleblower and Wrongful Discharge

The Defendants move, finally, to dismiss Count VI of the First Amended Complaint, which alleges a claim for retaliation and wrongful discharge in violation Whistleblower Protection Act, 26 M.R.S.A. § 833 WPA . In Count VI, the Plaintiff alleges that he was wrongfully terminated from his position at the Hospital either because: (1) Shapiro perceived him as a whistleblower based on the

histleblowing activities; or (2) Shapiro actually discovered the .

Costain v. Sunbury Primary Care, P.A., 954 A.2d 1051 (Me. 2008) sets forth the basic test:

There are three elements to a claim of unlawful retaliation: (1) the employee engaged in activity protected by the statute; (2) the employee was the subject of an adverse employment action; and (3) there was a causal link between the protected activity and the adverse employment action. Costain, 954 A.2d at 1053 (citing Blake v. State, 868 A.2d 234, 237 (Me. 2005)). The either that the Plaintiff engaged in protected activity or that there was a causal link between the protected activity and the adverse employment action taken against him.

1. Engagement in a Protected Activity

a. Perceived Whistleblower that his employment was illegally terminated because he was perceived as a whistleblower from prior whistleblower activity at a previous employer cannot be sustained under the text of WPA or the case law interpreting it. The statute protects only employees who have actually taken some action in regard to their current employer, whether reporting potentially illegal or injurious activities, participating in an investigation or hearing, or refusing to carry ctive to engage in illegal or injurious activities. See 26 M.R.S.A. § 833(1), cf. Chandler v. Dowell Schlumberger Inc., 572 N.W.2d 210, 212 or is about to report . . . a suspected vi

(2) who report to an employer (3) about a violation (4) committed or practiced by

Costain, 954 A.2d at 1054. In Costain, the state had asked the

worked at a medical practice where she was a patient. Id. at 1052. A few years later, the plaintiff began working for the practice as a rehabilitation aide, but, several weeks into her new job, her employment was terminated after the practice learned that she had, years prior, participated in the investigation of the doctor. Id. 833(1)(C), the Law Court found that she was not protected under the WPA because

she was not an employee of the defendant at the time of the investigation. Id. at 1054. Similarly here, the Plaintiff is not protected by the WPA for blowing the whistle on another employer prior to his engagement by the Hospital. Neither the Plaintif Plaintiff might blow the whistle, is enough to confer protected status on the Plaintiff.

b. Actual Whistleblower The Plaintiff also claims that he was actually engaged in whistleblowing against the Hospital at the time his employment was terminated. Paragraph 63 of the First Amended Complaint states:

Murtagh reported possible illegal or fraudulent activity taking place at

Defendants. Specifically, the conduct involved patient care and was a condition or practice related to Pulmonary Medicine and Critical Care Medicine that placed the health and safety of patients at risk. The anagement Offices to provide an opportunity to take corrective action and then to VISTA and other agencies. There are no further details regard the Plaint Amended Complaint. This paragraph is insufficient under Iqbal and Twombly and

their progeny to state a plausible claim that the Plaintiff was actually engaged in whistleblowing. It is almost entirely an empty recitation of statutory criteria without underlying factual content. The only part of the paragraph that provides within the Hospital to which the Plaintiff made reports. The Court can plausibly

infer from th

The content of the alleged disclosures and when they were made, however, remain shrouded in mystery. That the cond

onary Medicine and Critical

would put at risk the health or safety of that employee or any o Case 2:12-cv-00160-NT Document 42 Filed 09/23/13 Page 23 of 25 PageID #: 729 legal standard those areas of practice in which the Plaintiff was engaged without providing any content about the alleged violations. The Plaintiff introduces additional facts in the the Court cannot consider this exhibit on the motion to dismiss. For these reasons, the First Amended Complaint fails to adequately allege that the Plaintiff was engaged in the protected activity required to state a claim for unlawful termination and retaliation under the WPA.

2. Causation Since the Plaintiff has not articulated a plausible claim that he engaged in protected conduct, it follows by force of logic that he has not articulated a plausible claim that his employment was terminated because he engaged in protected conduct. The Court causation.

CONCLUSION For the reasons stated, the Defendant motion to dismiss is DENIED as to Counts III and V for defamation and violation of 26 M.R.S.A. § 630, and GRANTED as to Counts I, II, III, IV, and VI for breach of contract, tortious interference with prospective economic advantage, false light, and enforcement of rights of third-party

beneficiary, and wrongful discharge and retaliation against a whistleblower. Count III survives as to defamation but not false light. Counts I, II, IV, and VI are hereby DISMISSED. SO ORDERED.

/s/ Nancy Torresen United States District Judge Dated this 23 rd

day of September, 2013.

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