United States District Court, D. Massachusetts
ROBERT J. GALLAGHER, Plaintiff,
AMEDISYS, INC., et al., Defendants.
MEMORANDUM AND ORDER ON MOTIONS TO DISMISS
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.
Plaintiff Robert J. Gallagher, a chaplain formerly employed
by Defendant Amedisys, Inc. (“Amedisys”), was
assigned to visit the nursing home operated by Defendant
Sentry Commons, LLC d/b/a Durgin Pines (“Durgin
Pines”) in May 2017. Plaintiff observed and reported to
Amedisys what he believed to be unsafe living conditions at
Durgin Pines. Shortly thereafter, Plaintiff resigned from his
employment and filed this lawsuit against Amedisys and Durgin
Pines, as well their employees, asserting claims under
federal and state law for discrimination and retaliation
based on his purported whistleblowing activity and a physical
December 29, 2017, Durgin Pines and its former employee,
Defendant Nicholas Bridges, moved to dismiss the operative
complaint [ECF No. 23] (“Amended Complaint”) for
lack of personal jurisdiction, improper venue, and
insufficient service of process. [ECF No. 26]. On February
20, 2018, Amedisys and its employee, Defendant Brian Putnam,
moved to dismiss for failure to state a claim. [ECF No. 35].
For the reasons set forth below, the Court GRANTS
the motion to dismiss filed by Durgin Pines and Bridges for
lack of personal jurisdiction and GRANTS in part and
DENIES in part the motion to dismiss filed by
Amedisys and Putnam.
following facts are derived from the Amended Complaint, the
allegations of which are taken as true for the purposes of
evaluating the pending motions to dismiss. Ruivo v. Wells
Fargo Bank, N.A., 766 F.3d 87, 90 (1st Cir. 2014).
2017, Amedisys, a provider of home health and hospice care,
assigned Plaintiff to provide his services as a chaplain to
residents at the Durgin Pines nursing home in Kittery, Maine.
Am. Compl. ¶ 2. Plaintiff observed that one of the
common areas at Durgin Pines was overcrowded with
wheelchairs, visiting children and teachers, and Durgin Pines
employees. Id. ¶ 3. Plaintiff tripped over one
of the wheelchairs but was not injured. Id. ¶
4. He asked a Durgin Pines staff member about the congested
common area and why only some of the wheelchairs were in a
locked position. Id. The staff member agreed to
report the condition of the common area to Durgin Pines'
2, 2017, Plaintiffs immediate supervisor verbally
“chided” him for the incident at Durgin Pines,
informed Plaintiff that Durgin Pines wanted to
“ban” him from its nursing home, and that
Amedisys affirmed Durgin Pines' request. Id.
¶ 5. Plaintiff then contacted Putnam, an Amedisys
Director of Operations, to discuss his reprimand.
Id. ¶ 6. Plaintiff also continued to visit
Durgin Pines, believing that Putnam had removed the ban,
because he continued to electronically receive instructions
to visit Durgin Pines. Id. ¶¶ 7-8.
Although Plaintiff had recently garnered a positive
performance review from Putnam during an on-site evaluation,
Putnam “chided” him for disobeying the order not
to visit Durgin Pines. Id. ¶¶ 8, 10.
Additionally, Putnam informed Plaintiff that a written
warning had been placed in his file, which Plaintiff explains
is often the beginning of the termination process.
Id. ¶ 10. Putnam then asked Plaintiff to
participate in certain meetings via telephone rather than
in-person, although other meeting participants attended
in-person. Id. ¶ 11.
this time period, from April 2017 through June 12, 2017,
Plaintiff also took a partial leave of absence and reduced
his work week by 40% due to a urinary tract infection, which
Putnam allegedly resented. Id. ¶¶ 13-14.
The infection caused a variety of symptoms, including a
“viral syndrome, ” fever, malaise, fatigue,
exhaustion, dehydration, elevated white blood cell count, and
myalgia. Id. at 6. Plaintiff then had an emergency
surgical procedure performed on or around June 13, 2017 after
his prescription medication was deemed insufficient.
Id. ¶¶ 8, 16. According to Plaintiff, his
relationship with Putnam worsened after he received certain
accommodations due to his infection. Id.
¶¶ 16-17. Ultimately, Plaintiff resigned from
Amedisys because Defendants effected a corporate policy that
“would set him up for further written warnings,
continuing retaliation, and ultimate firing.”
Id. ¶ 14.
the claims are not clearly articulated, the Amended Complaint
appears to assert the following causes of action against
Defendants: (1) whistleblower retaliation under M.G.L. c.
149, § 185; (2) whistleblower retaliation under
Maine's Whistleblower Protection Act
(“MWPA”); (3) mandated reporter retaliation under
M.G.L. c. 119, § 51A and M.G.L. c. 19C, § 10; (4)
disability discrimination and retaliation under Title I of
the Americans with Disabilities Act (“ADA”), the
Maine Human Rights Act (“MHRA”), and Title VII of
the Civil Rights Act of 1964 (“Title VII”); (5)
violations under Massachusetts and federal consumer
protection statutes; and (6) constructive discharge and
hostile work environment under Title VII. Although the
allegations are not clearly delineated amongst the claims,
Plaintiff essentially contends that Defendants created a work
environment that forced him to resign as an Amedisys
employee, either in retaliation for reporting the events at
Durgin Pines or as a form of discrimination based on his
MOTION TO DISMISS: DURGIN PINES AND BRIDGES
Durgin Pines and Bridges move to dismiss the Amended Complaint
for lack of personal jurisdiction, improper venue, and
insufficient service of process. [ECF No. 26]. Plaintiff
opposed this motion only with respect to the sufficiency of
service of process. [ECF No. 29]. Because the Court dismisses
Durgin Pines and Bridges from this case for lack of personal
jurisdiction, it need not reach the remaining arguments.
bears the burden of establishing that jurisdiction over
Durgin Pines and Bridges lies in Massachusetts.
Baskin-Robbins Franchising LLC v. Alpenrose Dairy,
Inc., 825 F.3d 28, 34 (1st Cir. 2016). “Faced with
a motion to dismiss for lack of personal jurisdiction, a
district court ‘may choose from among several methods
for determining whether the plaintiff has met [its]
burden.'” Adelson v. Hananel, 510 F.3d 43,
48 (1st Cir. 2007) (quoting Daynard v. Ness, Motley,
Loadholt, Richardson & Poole, P.A., 290 F.3d 42,
50-51 (1st Cir. 2002)). The prima facie standard applies
where, as here, “a district court rules on a motion to
dismiss for lack of personal jurisdiction without holding an
evidentiary hearing.” United States v. Swiss Am.
Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001). The prima
facie standard does not involve differential fact finding;
rather, it requires “only that a plaintiff proffer
evidence which, taken at face value, suffices to show all
facts essential to personal jurisdiction.”
Baskin-Robbins, 825 F.3d at 34. The Court accepts
plaintiff's properly documented evidentiary proffers as
true “and construe[s] them in the light most congenial
to the plaintiff's jurisdictional claim.”
Daynard, 290 F.3d at 51 (citations omitted).
“If the plaintiff makes a prima facie showing
of jurisdiction supported by specific facts alleged in the
pleadings, affidavits, and exhibits, its burden is
met.” Ealing Corp. v. Harrods Ltd., 790 F.2d
978, 979 (1st Cir. 1986).
Plaintiffs potentially viable claims arise under federal law
(the ADA and Title VII) and Maine state law. “When a
district court's subject matter jurisdiction is founded
upon a federal question, the constitutional limits of the
court's personal jurisdiction are fixed, in the first
instance, not by the Fourteenth Amendment but by the Due
Process Clause of the Fifth Amendment.” United
Elec. Radio & Mach. Workers of Am. v. 163 Pleasant St.
Corp., 960 F.2d 1080, 1085 (1st Cir. 1992). “In
such circumstances, the Constitution requires only that the
defendant have the requisite ‘minimum contacts'
with the United States, rather than with the particular forum
state (as would be required in a diversity case).”
Id “Nevertheless, while courts in federal
question cases have found ‘that sufficient contacts [to
justify the assertion of personal jurisdiction] exist
whenever the defendant is served within the sovereign
territory of the United States, ' . . . the basis for
service of process returnable to a particular court must be
grounded within a federal statute or Civil Rule.”
Id (citation omitted). Fed.R.Civ.P. 4
“constitutes the principal mechanism for service of
process in the federal courts, ” and Rule 4(f)
typically limits service of process “to the territorial
limits of the state in which the court is held, ”
although a number of federal laws provide for either
nationwide or worldwide service. Id at 1085-86
(quoting Johnson Creative Arts, Inc. v. Wool Masters,
Inc., 743 F.2d 947, 950 (1st Cir. 1984)). Neither Title
VII nor the ADA provides for nationwide service. See
Malave-Torres v. Cusido, 839 F.Supp.2d 501, 508 (D.P.R.
2012); McCarthy v Waxy's Keene, LLC, No.
16-cv-122-JD, 2016 WL 4250290, at *2 n.1 (D.N.H. Aug. 10,
2016). Therefore, under Rule 4, service of process is proper
if it would be permitted under Massachusetts law.
Malave-Torres, 839 F.Supp.2d at 508.
Massachusetts, a court may exercise personal jurisdiction
over a foreign defendant if such jurisdiction is authorized
by state statute and its exercise does not offend the Due
Process Clause of the Fourteenth Amendment.”
Bohnenberger v. MCBC Hydra Boats, LLC, No.
16-cv-11368-LTS, 2017 WL 3976566, at *4 (D. Mass. Sept. 7,
2017) (quoting Pike v. Clinton Fishpacking, Inc.,
143 F.Supp.2d 162, 166 (D. Mass. 2001)). Because the First
Circuit has generally treated “the limits of
Massachusetts' long-arm statute as coextensive with those
of the Due Process Clause, ” Copia Commc'ns,
LLC v. AMResorts, L.P., 812 F.3d 1, 4 (1st Cir. 2016),
the Court may “sidestep the statutory inquiry and
proceed directly to the constitutional analysis.”
Evans Cabinet Corp. v. Kitchen Int'l, Inc., 593
F.3d 135, 146 (1st Cir. 2010). The outcome is that the personal
jurisdiction analysis is the same regardless of whether the
Court construes this case as arising out of federal question
or diversity jurisdiction. See generally
Bohnenberger, 2017 WL 3976566, at *4 (“no
practical difference” in how district court determines
personal jurisdiction in a diversity case compared to a
federal question case brought under a statute without
nationwide service) (quoting Zeus Projects Ltd., et al.
v. Perez y Cia. de PR., Inc., 187 F.R.D. 23, 28 (DPR.
are two types of personal jurisdiction: general and specific.
Harlow v. Children's Hosp., 432 F.3d 50, 57 (1st
Cir. 2005). General jurisdiction exists “when the
litigation is not directly founded on the defendant's
forum-based contacts, but the defendant has nevertheless
engaged in continuous and systematic activity, unrelated to
the suit, in the forum state.” United Elec.
Workers, 960 F.2d at 1088. In contrast, specific
jurisdiction exists when “the cause of action arises
directly out of, or relates to, the defendant's
forum-based contacts.” Pritzker v. Yari, 42
F.3d 53, 60 (1st Cir. 1994) (quoting United Elec.
Workers, 960 F.2d at 1088-89).