United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.
se Plaintiff Barbara McNeill brings this action against
Defendants Steward Health Care, LLC, Holy Family Hospital,
Massachusetts Nurses Association (“MNA”), Joseph
Ambash (“Ambash”), James Lamond
(“Lamond”), and Richard Boulanger
“Defendants”) following her termination and
related arbitration proceedings. [ECF No. 1-1
(“Complaint” or “Compl.”)].
Defendants moved to dismiss the Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6). [ECF Nos. 12, 17]. For the
reasons set forth below, Defendants' motions to dismiss
[ECF Nos. 12, 17] are GRANTED without prejudice.
following facts are drawn from the Complaint, the
well-pleaded allegations of which are taken as true for the
purposes of evaluating the motion to dismiss. See Ruivo
v. Wells Fargo Bank, N.A., 766 F.3d 87, 90 (1st Cir.
2014). As here, where the Plaintiff is proceeding pro
se, the Court “hold[s] pro se pleadings
to less demanding standards than those drafted by lawyers and
endeavors, within reasonable limits, to guard against the
loss of pro se claims due to technical
defects.” Santiago v. Action for Bos. Cmty. Dev.,
Inc., No. 17-cv-12249, 2018 WL 5635014, at *2 (D. Mass.
Oct. 31, 2018) (quoting Dutil v. Murphy, 550 F.3d
154, 158 (1st Cir. 2008)). Accordingly, the Court liberally
construes the Complaint. Foley v. Wells Fargo Bank,
N.A., 772 F.3d 63, 75-76 (1st Cir. 2014) (citing
Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
is a registered nurse and former employee of Holy Family
Hospital in Haverhill, Massachusetts. [Compl. at 3, 6].
Plaintiff's employment with Holy Family Hospital was
terminated on October 13, 2016, and she was thereafter
involved in an arbitration proceeding related to the
termination. [Id. at 3-4]. Boulanger was the
arbitrator. [Id. at 6]. Ambash is the attorney who
represented Defendant Steward Health Care, LLC at the
arbitration. [Id.]. Lamond is the attorney who
represented MNA at the arbitration. [Id.]. The
arbitration lasted six days between August 2017 and February
2018, and the arbitrator issued a decision on October 16,
2018. [ECF No. 14 at 165-66 (exhibits to state court
complaint)]. Plaintiff alleges that the arbitration
proceedings were fraudulent because: contradictory testimony
was presented; film evidence was tampered with;
Plaintiff's supervisor and a security guard were not
allowed to testify; “inappropriate privileges”
were invoked that resulted in another defendant to the
arbitration being allowed to not attend most of the
proceedings; retaliation letters from 2011 were read; and,
the arbitrator was negligent. [Compl. at 4, 7]. Plaintiff
requests that this Court review the arbitration evidence.
[Id. at 7].
also alleges that all Defendants are guilty of defamation and
employment discrimination, that she was not terminated for a
just cause, and that she was subjected to a hostile work
environment during her tenure at the hospital. [Id.
at 4, 7]. The Complaint claims damages of approximately $400,
000 in lost wages and other compensation. [Id. at
March 12, 2019, Plaintiff filed this action in Essex County
Superior Court (“Superior Court”). [Id.
at 8]. On April 11, 2019, MNA and Lamond removed the action
to this Court, and the remaining defendants consented to
removal. [ECF Nos. 1, 4]. On April 24, 2019, Defendants
Boulanger, Lamond, and MNA moved to dismiss the Complaint
pursuant to Rule 12(b)(6), arguing that the Complaint fails
to comply with pleading requirements, that certain Defendants
are immune from suit, that Plaintiff's claims are
time-barred or preempted, and that the allegations otherwise
fail to state a claim. [ECF No. 12; ECF No. 12-1 at 1-2]. On
May 8, 2019, Plaintiff opposed the motion to dismiss. [ECF
Nos. 15, 16]. On May 9, 2019, Defendants Steward Health Care,
LLC, Holy Family Hospital, and Ambash moved to dismiss the
Complaint and adopted the arguments made by Boulanger,
Lamond, and MNA. [ECF No. 17]. Plaintiff opposed this motion
as well on May 22, 2019. [ECF Nos. 18, 19].
evaluate a Rule 12(b)(6) motion to dismiss for failure to
state a claim, the Court must accept as true all well-pleaded
facts, analyze those facts in the light most hospitable to
the plaintiff's theory, and draw all reasonable
inferences from those facts in favor of the plaintiff.
U.S. ex rel. Hutcheson v. Blackstone Med., Inc., 647
F.3d 377, 383 (1st Cir. 2011). To avoid dismissal, a
complaint must 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) (internal quotations and citation
omitted). The plaintiff's obligation to articulate the
basis of her claims “requires more than labels and
conclusions.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007). The facts alleged, when taken
together, must be sufficient to “state a claim to
relief that is plausible on its face.” A.G. ex rel.
Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir.
2013) (quoting Twombly, 550 U.S. at 570). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citation omitted).
complaint does not need to provide an exhaustive factual
account, only “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Further, “[e]ach allegation must be simple, concise and
direct.” Fed.R.Civ.P. 8(d)(1). “The purpose of a
clear and distinct pleading is to give defendants fair notice
of the claims and their basis as well as to provide an
opportunity for a cogent answer and defense.” See
Belanger v. BNY Mellon Asset Mgmt., No. 15-cv-10198,
2015 WL 3407827, at *1 (D. Mass. May 27, 2015). In addition,
Federal Rule of Civil Procedure 9(b), which provides for a
heightened pleading standard in fraud cases, requires that a
party alleging fraud “must state with particularity the
circumstances constituting fraud or mistake.”
Fed.R.Civ.P. 9(b). “This standard means that a
complaint must specify the time, place, and content of an
alleged false representation.” U.S. ex rel. Gagne
v. City of Worcester, 565 F.3d 40, 45 (1st Cir. 2009)
(internal quotation marks and citation omitted). Pro
se plaintiffs are obliged to comply with the Federal
Rules of Civil Procedure, including the requirements of Rule
8 and 9. See Kruskall v. Sallie Mae Serv., Inc., No.
15-cv-11780, 2016 WL 1056973, at *1, *5-6 (D. Mass. Mar. 14,
2016) (dismissing pro se claims of fraud and
negligent misrepresentation for failing to comply with Rule
9); Koplow v. Watson, 751 F.Supp.2d 317, 320-21 (D.
Mass. 2010) (dismissing pro se complaint for failing
to comply with Rule 8).
the Complaint consists of a form complaint to which the
Plaintiff has attached a typed narrative in the form of a
letter (together “the Complaint”). See
[Compl. at 3-4, 6-7]. Even liberally construing the
Complaint, the Court cannot find that Plaintiff has met the
pleading requirements of Rules 8 or 9. Taken together, the
facts included on the form and the attached narrative portion
do not contain “simple, concise and direct”
allegations, sufficient to allow the defendants to understand
and respond to the charges levied against them. See
[Compl. at 3-4, 7]. Both the form complaint and the attached
narrative are meandering, and at times incoherent,
discussions of Plaintiff's concerns and views about her
termination and the related arbitration. See
[id.]. Further, the fraud allegations, which are
subject to a heightened pleading standard, do not
“specify the time, place, and content” of the
alleged fraud. See Gagne, 565 F.3d at 45 (internal
quotation marks omitted).
“Facts” section on the form states that Plaintiff
was wrongfully terminated, that she is bringing claims for
employment discrimination and defamation, and that she
believes that her arbitration was fraudulent. [Compl. at
3-4]. It then lists instances of alleged “fraud”
at the arbitration without discussion of who engaged in the
frauds and without specific details as to what was fraudulent
about the conduct. [Id. at 4]. For example, one of
the stated instances of fraud is the “reading of 2011
retaliation letters.” [Id.]. It is not clear
from the form or the attached narrative who read the letters,
what the letters are, or how a person reading the letters
rendered the arbitration proceedings fraudulent. See
[id.]. Beyond the lack of detail related to alleged
fraud, the “Facts” section also does not describe
the circumstances of the allegedly wrongful termination,
identify the alleged defamatory statement(s), or explain how
Plaintiff was discriminated against. See
[id. at 3-4].
attached narrative letter is a longer form version of similar
grievances with somewhat more detail, but even taken together
with the information on the form is not enough to meet the
pleading requirements of the Federal Rules or to fill in the
gaps described above. See [id. at 6-7]. The
narrative references a “hostile work environment”
over several years but does not detail what made the work
environment hostile during that time period. See
[id. at 7]. It makes oblique references to
Plaintiff's age, but is unclear as to whether Plaintiff
is alleging age or another type of discrimination.
See [id.]. Plaintiff states in the
narrative that evidence from the arbitration ...