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Egan v. Tenet Health Care

United States District Court, D. Massachusetts

June 27, 2016

RACHEL EGAN, Plaintiff,


          F. Dennis Saylor IV United States District Judge.

         This is 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.

         Tenet, 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.

         I. Background

         A. Factual Background

         Rachel 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).[1] Lori Puccetti was plaintiffs immediate supervisor at MetroWest. (Id. ¶ 21).

         In May 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. ¶ 13).

         The 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).

         Egan 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. ¶ 24).

         Egan 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).

         Egan 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.

         On 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).

         The 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.

         B. Procedural Background

         On 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 (Count Seven).

         Defendants 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. 12(b)(2).

         Plaintiff 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.

         II. Standard of Review

         On a 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)).

         III. Tenet’s Motions to Dismiss

         A. Motion to Dismiss for Insufficient Service of Process

         1. Legal Standard

         Before 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)).[2]

         The 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).

         Under 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).[3]


         The 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).[4]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).

         The 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 ...

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