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Gallagher v. Amedisys, Inc.

United States District Court, D. Massachusetts

May 15, 2018

ROBERT J. GALLAGHER, Plaintiff,
v.
AMEDISYS, INC., et al., Defendants.

          MEMORANDUM AND ORDER ON MOTIONS TO DISMISS

          ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.

         Pro se 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 disability.

         On 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.

         I. BACKGROUND

         The 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).

         In May 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' CEO. Id.

         On June 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.

         During 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.

         Although 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 disability.

         II. MOTION TO DISMISS: DURGIN PINES AND BRIDGES

         Defendants Durgin Pines and Bridges[1] 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.

         Plaintiff 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).

         Here, 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.

         “In 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).[2] 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. 1999))).

         There 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).

         A. ...


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