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Barthelmes v. Kimberly-Clark Corporation

United States District Court, D. Massachusetts

March 27, 2015



MARK G. MASTROIANNI, District Judge.


James Barthelmes ("James") was employed with Kimberly-Clark Corporation and Kimerbly-Clark Global Sales, LLC. ("Defendants"), [1] between 1980 and early 2012, when he was terminated. James and Virginia ("Virginia") Barthelemes ("Plaintiffs") filed a complaint alleging Defendants terminated James with the wrongful purpose of "depriv[ing] [him] of [b]onus compensation, reduc[ing] [his] [l]ife insurance policy... depriving [him] from vesting 100% of his pension, and further depriv[ing] [him] from [other] benefits."[2] (Dkt. No. 1, Compl. ¶ 31.) Defendants have moved to dismiss the complaint in part.

This case was originally assigned to Judge Ponsor, who referred the motion to Magistrate Judge Neiman for a Report and Recommendation ("R&R") pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b)(1). The case was later assigned to this court. After Judge Neiman issued his R&R, Defendants and Plaintiffs filed timely objections. After having reviewed the complaint, the original motion and opposition, the R&R, and the parties' objections, the court adopts Judge Neiman's recommendation in full for the reasons set forth below.


On September 30, 2013, Plaintiffs filed a complaint against Defendants, stating claims for breach of contract (Count I), breach of the covenant of good faith and fair dealing (Count II), wrongful termination (Count III), violation of ERISA (Count IV), fraud and deceit (Count V), negligent misrepresentation (Count VI), promissory estoppel (Count VII), unjust enrichment (Count VIII), slander and libel (Count IX), interference with a contractual relationship (Count X), interference with an advantageous relationship (Count XI), Conspiracy (Count XII), and intentional and negligent infliction of emotional distress (Count XIII), and, on behalf of Virginia, for loss of consortium (XIV). (Dkt. No. 1, Compl.)

Defendants filed a partial motion to dismiss (Dkt. No. 7; Dkt. No. 8, Memorandum in Support of Defendants' Motion to Dismiss ("Deft. Mem.")), as well as an answer (Dkt. No. 9), on December 16, 2013, [3] in which they sought dismissal of all claims except for the promissory estoppel and unjust enrichment claims (Counts VII and VIII). On January 6, 2014, Judge Ponsor allowed the motion because it was not opposed. (Dkt. No. 10.) Then, on January 21, 2014, Plaintiffs filed a motion to vacate the partial dismissal with respect to counts I-VI, IX, and XII, and for leave to file an opposition to the motion to dismiss. (Dkt. No. 13.) Finding excusable neglect, Judge Ponsor allowed this motion. (Dkt. No. 17.) Plaintiffs filed a memorandum opposing the motion to dismiss on January 21, 2014. (Dkt. No. 14, Plaintiffs' opposition memorandum ("Pltf. Opp. Mem.").)

Plaintiffs did not move to vacate Defendants' motion to the extent it requests dismissal of Counts X, XI, XIII, or XIV, the court considers those claims effectively dismissed and will not discuss them further. The court also notes that Defendants have not sought dismissal of Counts VII and VIII; as a result, these counts will not be discussed further in this opinion.

On August 11, 2014, Judge Neiman recommended that Defendants' partial motion to dismiss be allowed with regard to Counts III (Wrongful Termination), IV as to Virginia (ERISA violation), VI (Negligent Misrepresentation), IX (Slander and Libel), and XII (Conspiracy). He also recommended the motion be granted to the extent it requests dismissal of the portion of Count I (Breach of Contract) which concerns James's severance package, but otherwise denied as to Count I. He further recommended the motion be denied to the extent it requests dismissal of Counts II (Breach of Covenant of Good Faith and Fair Dealing), IV with regard to James (ERISA Violation) and V (Fraud and Deceit).

On August 25, 2014, Defendants filed a memorandum objecting to Judge Neiman's findings as to Counts I, II, IV, and V. (Dkt. No. 28, Defendants' objection memorandum ("Deft. Obj. Mem.") 9.) On August 25, 2014, Plaintiffs also filed a memorandum objecting to the R&R (Dkt. No. 27, Plaintiffs' Objection Memorandum ("Pltf. Obj. Mem.")), which they amended that same day. (Dkt. No. 29.) Plaintiffs objected to Judge Neiman's recommendation of dismissal on:: "breach of contract, Count I (as to [James's] severance package only); wrongful termination, Count III; negligent representation, Count VI; and slander and libel, Count IX."[4] (Dkt. No. 27, Pltf. Obj. Mem. 1.) On September 8, 2014, Defendants filed a reply to Plaintiffs' objection memorandum. (Dkt. No. 30.) Plaintiffs did not reply to Defendants' objection memorandum.


A. Report and Recommendation

A District Court may refer pending motions to a Magistrate Judge for a Report and Recommendation. See 28 U.S.C. §636(b)(1)(B); Fed.R.Civ.P. 72(b). Any party adversely affected by the recommendation issued may file written objections within ten days of being served with the Report and Recommendation. See 28 U.S.C. §636(b)(1). Arguments or available evidence not raised before the Magistrate Judge are deemed waived. See Guzman-Ruiz v. Hernandez-Colon, 406 F.3d 31, 36 (1st Cir. 2005).

A party that files a timely objection is entitled to a de novo determination of those portions of the report, specified proposed findings, or recommendations, to which a specific objection is made. See U.S. v. Raddatz, 447 U.S. 667, 673 (1980); but see Borden v. Sec'y of Health & Human Servs., 836 F.2d 4, 6 (1st Cir. 1987) (a party objecting to a report and recommendation is "not entitled to a de novo review of an argument never raised" before the magistrate). In conducting its review, the court is free to "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. §636 (a)(b)(1); see Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir. 1985).

B. Motion to Dismiss

To survive a 12(b)(6) motion to dismiss, a complaint must allege facts that "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual allegations in the complaint must "nudge[] [the] claims across the line from conceivable to plausible." Id. at 570. A claim has facial plausibility when the plaintiff pleads factual content from which the court can reasonably infer the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). "Determining whether a complaint states a plausible claim for relief" is a context-specific task that requires "the reviewing court to draw on its judicial experience and common sense." Id. at 679.

Courts are not required to accept as true those allegations in a complaint which are legal conclusions. Id. at 678. However, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 679. Therefore, in assessing a claim's plausibility, the court must construe the complaint in the plaintiff's favor, accept all non-conclusory allegations as true, and draw any reasonable ...

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