United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANTS’ MOTIONS TO
DISMISS AND PLAINTIFF’S MOTIONS TO AMEND
Dennis Saylor IV United States District Judge.
an action alleging retaliation and wrongful constructive
termination of employment. In substance, plaintiff Rachel
Egan alleges that defendant Tenet Health Care d/b/a MetroWest
Homecare and Hospice (“Tenet”) and defendant Lori
Puccetti, her immediate supervisor at Tenet, wrongfully
reduced her working hours after her return from leave taken
pursuant to the Family and Medical Leave Act, and then
retaliated against her for reporting unsafe conditions.
in separate motions, has moved to dismiss the complaint for
insufficient service of process and lack of personal
jurisdiction. Puccetti has also moved to dismiss the claims
against her under Fed.R.Civ.P. 12(c). Plaintiff has filed two
motions for leave to amend the complaint. For the following
reasons, Tenet’s motion to dismiss the complaint for
insufficient service of process will be granted;
Puccetti’s motion for judgment on the pleadings will be
granted; and plaintiffs motion for leave to add new corporate
entities as defendants will be granted. The remaining motions
will be denied.
Egan is a registered nurse. (Compl. ¶ 1). Egan alleges
that Tenet Health Care does business in Massachusetts as
“MetroWest HomeCare and Hospice, ” a healthcare
provider with a principal place of business in Marlborough,
Massachusetts. (Id. ¶ 2). Lori Puccetti was
plaintiffs immediate supervisor at MetroWest. (Id.
2014, after working at MetroWest for ten years, Egan took
medical leave pursuant to the Family Medical Leave Act of
1993, 29 U.S.C. § 2601 et seq. (Id. ¶ 7).
Before taking leave, Egan was working “not less than 40
hours per week.” (Id. ¶ 9). She returned
from leave in September 2014. (Id. ¶ 10). The
complaint alleges that Egan was informed on her return that
“there was uncertainty regarding the position she would
be working in and uncertainty regarding the number of
hours” she would be allowed to work. (Id.).
The complaint is unclear as to whether her hours were reduced
at that time, but does allege that MetroWest “made some
adjustments” to her shift duties and pay. (Id.
complaint also describes a series of incidents that appear to
be unrelated to Egan’s FMLA leave. On January 11, 2015,
Egan received a request to remove a “PIC” line
from a patient. (Id. ¶ 18). When she attempted
to review the relevant policies and procedures, she
discovered that MetroWest did not have any such policies in
place or available to the staff. (Id. ¶ 19).
Other nurses “communicated directly to Ms. Egan that
they were not comfortable taking this step to remove the PIC
line, as it would be unsafe for the patient and there
appeared to be no policy in place for doing so.”
(Id. ¶ 20). Egan notified her supervisor, Lori
Puccetti, of her concerns. (Id. ¶ 21). When
Puccetti did not respond, Egan contacted Puccetti’s
boss, Wayne Reagan. (Id. ¶ 22).
also prepared a “nursing note” regarding the
incident. (Id. ¶ 23). “Thereafter, Ms.
Puccetti . . . opened the computer system for nursing notes
and changed Ms. Egan’s nursing note, and [Puccetti]
removed her own last name” from the note. (Id.
filed an incident report with MetroWest concerning the PIC
line incident. (Id. ¶ 25). The complaint
alleges that MetroWest retaliated against Egan by cutting her
hours and reducing staff at the clinic, “creating
unsafe conditions and practices for patients and
staff.” (Id. ¶ 26).
then filed a pro se complaint of discrimination
against MetroWest with the Massachusetts Commission Against
Discrimination on July 22, 2015. (Id. ¶ 32).
The complaint does not specify what allegations she made in
her MCAD complaint.
August 17, 2015, Puccetti advised Egan that “the clinic
would only be staffed over the coming weekend without
sufficient staff, leaving Ms. Egan to work with a reduction
of staff by two full-time persons.” (Id.
¶ 28). Egan “immediately sought further
information/clarification.” (Id. ¶ 29).
Neither MetroWest nor Puccetti responded, however, and both
“failed to communicate in any kind of timely manner
(contrary to prior history and practices regarding
communication between and among Ms. Egan and her
supervisors.” (Id.). Acting through counsel,
Egan advised MetroWest that “she could not work at an
understaffed facility, as the same would place patients at
risk in exigent circumstances, ” and would place her
own nursing license at risk. (Id. ¶ 33).
MetroWest “refused to communicate with Ms. Egan . . .
regarding any kinds of remediation in staffing” to
address Egan’s concern. (Id. ¶ 34). Egan
asserts that defendants’ choice “not to
communicate whatsoever at that time . . . forced her to be
constructively terminated.” (Id. ¶ 35).
complaint alleges that Egan was forced to file a second
incident report in September 2015, after Puccetti again
changed one of her nursing notes. (Id. ¶ 39).
The complaint does not contain any specific details or
further description of either the note or the changes
allegedly made by Puccetti.
November 10, 2015, Egan filed a seven-count complaint against
defendants Tenet Health Care and Lori Puccetti in
Massachusetts Superior Court. The complaint asserts claims
for breach of the Massachusetts Wage Payment Act, Mass. Gen.
Laws ch. 149, §§ 148, 150 (Count One); retaliation
for asserting rights under the Wage Payment Act (Count Two);
“Family Medical Leave Act Violation and
Retaliation” (Count Three); violation of the
Massachusetts Healthcare Whistleblower Statute, Mass. Gen.
Laws ch. 149, § 187 (Count Four); breach of contract
(Count Five); promissory estoppel (Count Six); and
intentional interference with advantageous business relations
removed the case to federal court on December 17, 2015. On
February 22, 2016, Tenet moved to dismiss for insufficient
service of process under Fed.R.Civ.P. 12(b)(5). On March 1,
2016, Puccetti moved to dismiss for failure to state a claim
upon which relief can be granted pursuant to Fed.R.Civ.P.
12(b)(6). On March 16, 2016, Tenet filed a second motion to
dismiss for lack of personal jurisdiction under Fed.R.Civ.P.
has moved to amend to amend the complaint or, alternatively,
for jurisdictional discovery “[i]f the Court is
inclined to grant any of the defendants’ motions to
dismiss.” (D. 30). In a separate motion to amend,
plaintiff seeks leave to amend the complaint to add various
related corporate entities as defendants.
Standard of Review
motion to dismiss, the Court “must assume the truth of
all well-plead[ed] facts and give . . . plaintiff the benefit
of all reasonable inferences therefrom.” Ruiz v.
Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st
Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77
(1st Cir. 1999)). To survive a motion to dismiss, the
complaint must state a claim that is plausible on its face.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). That is, “[f]actual allegations must be enough
to raise a right to relief above the speculative level, . . .
on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).” Id. at
555 (citations omitted). “The plausibility standard is
not akin to a ‘probability requirement, ’ but it
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 556).
Dismissal is appropriate if the complaint fails to set forth
“factual allegations, either direct or inferential,
respecting each material element necessary to sustain
recovery under some actionable legal theory.”
Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir.
2008) (quoting Centro Medico del Turabo, Inc. v.
Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir. 2005)).
Tenet’s Motions to Dismiss
Motion to Dismiss for Insufficient Service of
a federal court may exercise personal jurisdiction over a
defendant, proper service of process must be effected.
Omni Capital Int'l Ltd. v. Rudolf Wolff &
Co., 484 U.S. 97, 104 (1987). When the sufficiency of
process is challenged under Rule 12(b)(5), the burden is on
the plaintiff to prove proper service. See Vazquez-Robles
v. CommoLoCo, Inc., 757 F.3d 1, 4 (1st Cir. 2014). The
sufficiency of service made after removal of an
action from state court is governed by the Federal Rules of
Civil Procedure. See Feliz v. MacNeill, 493
Fed.Appx. 128, 131 (1st Cir. 2012) (citing 28 U.S.C. §
1448; Fed.R.Civ.P. 81(c)).
Federal Rules of Civil Procedure set forth various acceptable
methods by which service of process can be effected. Under
Rule 4(h), there are two ways in which a corporation,
partnership, or association (as opposed to an individual
defendant) can be served within a judicial district of the
United States: (1) by following state law for serving a
summons in an action brought in courts of general
jurisdiction in the state where the district court is located
or where service is made (here, Massachusetts); or (2) by
delivering a copy of the summons and of the complaint to an
officer, a managing or general agent, or any other agent
authorized by appointment or by law to receive service of
process. Fed.R.Civ.P. 4(h)(1)(A), (B).
the Massachusetts rules, service can be made on a corporation
in two ways: “by delivering a copy of the summons and
of the complaint to an officer, to a managing or general
agent, or to the person in charge of the business at the
principal place of business thereof within the Commonwealth,
if any; or by delivering such copies to any other agent
authorized by appointment or by law to receive service of
process.” Mass. R. Civ. P. 4(d)(2).
complaint in this action was filed on November 10, 2015, and
was removed on December 17, 2015. The 90-day period for
service under Rule 4(m) expired on March 16, 2016. See
Wallace v. Microsoft Corp., 596 F.3d 703, 707 (10th Cir.
2010) (period for service of process is measured from time of
removal).Thus, in order to properly serve
Tenet, plaintiff was required to deliver a copy of the
summons and of the complaint to an authorized agent of Tenet
by that time. Fed.R.Civ.P. 4(h)(1)(B).
basic facts of plaintiff’s purported service do not
appear to be in dispute. On February 1, 2016, process server
Robert Francisco delivered a copy of the summons and
complaint to Sheila M. Zarella, a “Business and
Reimbursement Manager” for MetroWest HomeCare and
Hospice, LLC. (Francisco Aff. ¶ 3; Zarella Aff. ¶
3). The parties do not appear to dispute ...