United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
court has received: the Magistrate Judge's January 23,
2017 Report and Recommendation that defendants Shire Human
Genetic Therapies, Inc. and Shire Pharmaceuticals LLC's
motion to dismiss be allowed; plaintiff Leland Butler's
objections to the Report and Recommendation; and
defendant's response to plaintiff's objection. The
court has considered the issues properly raised by
plaintiff's objections de novo. See Fed. R. Civ.
P. 72(b) (3) . It has exercised its discretion and not
reviewed de novo the issues not presented to the
Magistrate Judge. See Borden v. Sec'y of Health and
Human Servs., 836 F.2d 4, 6 (1st Cir. 1997). In any
event, those new arguments appear to be unmeritorious.
court finds the Report and Recommendation to be thorough and
persuasive. Therefore, the motion to dismiss is being
allowed. At the conclusion of his objections, plaintiff
requests that any dismissal be without prejudice to the
filing of an amended complaint, but provides no justification
for this request. Plaintiff previously amended his complaint.
Therefore, he has had two opportunities to attempt to state a
valid claim. There is no good reason to allow a third. In any
event, it appears that any effort to amend the complaint
again would be futile.
it is hereby ORDERED that:
attached Report and Recommendation (Docket No. 21) is
INCORPORATED in this Memorandum and ADOPTED.
Defendant's Motion to Dismiss the Amended Complaint in
its Entirety (Docket No. 8) is ALLOWED.
case is DISMISSED.
AND RECOMMENDATION ON DEFENDANTS' MOTION TO
JENNIFER C.BOAL, United States Magistrate Judge
Leland Butler brings this action against defendants Shire
Human Genetic Therapies, Inc. and Shire Pharmaceuticals LLC
(collectively, "Shire") alleging breach of the
covenant of good faith and fair dealing, wrongful
termination, and negligent and intentional infliction of
emotional distress. The defendants have moved to dismiss
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Dkt. No. 8. For the following reasons, the
Court recommends that the District Judge assigned to this
case grant the motion to dismiss.
FACTUAL & PROCEDURAL BACKGROUND
Butler was employed as a Regional Business Manager, Shire
Rare Disease Business Unit, from January 30,2014 through
January 23,2015. Compl. ¶¶ 4-5. Shire often held
"speaker meetings," in which a doctor would meet
with patients or potential patients to discuss illnesses and
Shire products. Id¶ 12. According to Butler, the
meetings, held at least annually, largely contained the same
information and often the audience consisted of the same
patients. Id. ¶ 14. There are standard slides
that are provided to physicians with respect to these
meetings. Id. ¶ 18.
October 18,2014, an annual meeting was held in Phoenix,
Arizona. Id. ¶ 17. During the meeting, Dr. Kirk
Aleck spoke with patients and families affected by Hunter
Disease. Id. ¶ 19. Only two families attended
the meeting and both families said they did not want to see
the slides, which they had seen multiple times before.
Id. Dr. Aleck did not want to present the same
slides again and did not show them during the meeting.
Id. ¶¶ 19-20. After the meeting, Butler
submitted a report indicating that the slides were not shown.
Id. ¶ 21.
January 2015, Butler received an email from a Shire Global
Compliance attorney. Id. ¶ 22. The attorney
requested a conference call to discuss the October 18,2014
meeting. Id. Butler participated in the call on
January 12,2015. Id. Soon after, Butler received an
email from his supervisor, Jason Amar, requesting a follow-up
discussion. Id. ¶ 24. During the January 23,
2015 follow-up call, in which Butler, Dan Gauthier, and Jason
Amar participated, Butler was informed that he would be
"terminated with cause" due to an alleged
compliance violation. Id. ¶ 24. Specifically,
Butler failed to comply with the "mandatory"
requirement that the slides be shown at the October 18, 2014
meeting. Id. ¶ 25. Butler challenged his
termination and argued that, at the time of the meeting, he
had no reason to believe that the slides were a mandatory
part of the presentation. Id, ¶ 26. Butler states that
he spoke with trainer Kevin Bille one month before the
meeting, and "there was no mention about slides being
mandatory or what to do if the audience and/or speaker did
not want to see the slides." Id. ¶ 27.
Butler further claims that none of the correspondence,
training materials, or instruction regarding the meetings
indicated that an individual would be subject to termination
(or any form of discipline) for failure to show the slides
during a meeting. Id. ¶¶ 29-31. Rather
than state that the slides were mandatory, a preprinted
meeting form only contained a box to check if the slides had
been shown. Id. ¶ 28. Butler also alleges that
on or about November 2014, Shire revised its training
materials to state that slides must be shown at meetings.
Id. ¶ 32.
was 58 years old when he was terminated from Shire and has
been unable to find work since his termination. Id.
¶¶ 9, 33. Butler claims that as a result of the
defendants' actions, he has suffered a loss of income,
damage to his reputation, embarrassment, humiliation,
emotional distress, and various expenses related to the
treatment of his emotional distress. Id. ¶ 34.
To compensate for these losses, Butler seeks, inter
alia, lost wages and benefits from the date of his
termination, an award of front pay from the date of judgment
through January 2024, treble and/or liquidated damages,
attorneys' fees, and prejudgment interest. Compl. at
filed the instant suit in Massachusetts Superior Court on
July 12,2016. Dkt. No. 7 at 10. He amended his complaint on
August 3,2016. Dkt. No. 1-1. Shire removed the action on the
basis of diversity jurisdiction on August
19,2016. Dkt. No. 1. On August 26,2016, the
defendants moved to dismiss the Amended Complaint on the
following grounds: (1) Butler has failed to state a claim
with respect to breach of the covenant of good faith and fair
dealing and wrongful termination; and (2) Butler's
emotional distress tort claims are barred by the exclusivity
provision of the Massachusetts Workers' Compensation Act.
Dkt. No. 9 at 2. Butler opposed Shire's motion to dismiss