Young v. Conductron CV-94-629-JD 06/06/95 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Marlaine Young, et al.

v. Civil No. 94-629-JD

Conductron Corp., et al.

O R D E R

The plaintiffs initiated this action to recover damages

related to the termination of their employment with defendant

Conductron Corp. By order of March 8, 1995, the magistrate judge

denied the plaintiffs' motion to amend their complaint to include

state law claims for intentional infliction of emotional distress

and for negligent infliction of emotional distress. Young v.

Conductron Corp., 94-629-JD, pretrial order at 3-5 (D.N.H. March

8, 1995). Before the court is the plaintiffs' motion to

reconsider that order with respect to the claims of intentional

infliction of emotional distress against defendants Howanski and

Eagle (document no. 11).

Discussion

The court's consideration of an objection to a magistrate

judge's denial of a motion to amend is governed by Rule 72(a).

E.g., Morin v. Combustion Eng. Inc., No. 87-367-L, slip op. at 6-

7 (D.N.H. May 3, 1989). The rule provides that [a] magistrate judge to whom a pretrial matter not dispositive of a claim or defense of a party is referred shall . . . enter into the record a written order setting forth the disposition of the matter . . . . The district judge to whom the case is assigned shall consider [timely] objections and shall modify or set aside that portion of the magistrate judge's order found to be clearly erroneous or contrary to law.

Fed. R. Civ. P. 72(a) (emphasis supplied); see

(b)(1) (West 1993); Quaker State Oil Ref, v. GarritvOil,

(1st Cir. 1989); Blinzler v. Marriott Int'l,

Inc.,

(D.R.I. 1994).

A magistrate judge's factual finding is considered clearly

erroneous when it is contrary to the "clear weight of the

evidence or when the court has a 'definite and firm conviction

that a mistake has been committed.1" Blinzler,

(guoting Holmes v. Bateson,

(1st Cir. 1978)).

However, where a dissatisfied litigant objects to a magistrate

judge's legal ruling the court considers whether the ruling was

contrary to law. E.g., Bryant v. Hilst,

(D.

Kan. 1991). The court is empowered to modify or set aside any

factual or legal ruling of a magistrate judge which does not

survive application of the clearly erroneous or contrary to law

standard of Rule 72(a). E.g., Blinzler,

.

The magistrate judge ruled that the complaint could not be

amended to include claims for the intentional infliction of

2 emotional distress because the exclusivity provision of the state

workers' compensation statute, N.H. Rev. Stat. Ann. ("RSA") §

281-A:8 et .seep, bars the plaintiffs from asserting such a claim.

Young v. Conductron, pretrial order at 2-4 (D.N.H. March 8,

1995) .

The plaintiffs have filed a timely objection to certain

rulings contained in the pretrial order and the court reviews the

rulings to determine whether they are contrary to law.1

I. Claims Against Defendant Howanski

Under the workers' compensation act,

I. An employee of an employer subject to this chapter . . . [has] waived all rights of action whether at common law or by statute or provided under the laws of any other state or otherwise: (b) Except for intentional torts, against any officer, director, agent, servant or employee acting on behalf of the employer.

RSA § 281-A:8 (Supp. 1994). Thus, employees are precluded from

asserting negligence claims, but still may assert intentional

1The defendants argue that the instant motion is untimely as it was not filed within ten days of the date of the pretrial order in accordance with the court's local rules. Defendants' Objection to Motion to Reconsider at 5 4. However, to avoid conflict with Rule 7 2 (a), which permits the filing of an objection within ten days after the objecting party is served with the pretrial order, it has been the practice of the court to allow parties to file within thirteen business days of the date of the pretrial order. Accordingly, the plaintiffs' objection was filed timely on March 22, 1995.

3 tort claims, against co-employees. Thompson v. Forest,

,

(1992). The court finds

that, contrary to the ruling of the magistrate judge, the

workers' compensation statute does not bar the plaintiffs from

asserting an intentional tort claim against defendant Howanski, a

co-employee.

The defendants respond that New Hampshire law does not

permit plaintiffs to maintain concurrently an action for

defamation and an action for intentional infliction of emotional

distress. Defendants' Objection to Motion for Reconsideration at

55 16, 17 (citing DeMeo v. Goodall,

(D.N.H. 1986)).

The defendant is correct that the DeMeo court barred a

plaintiff from asserting both a defamation claim and an

infliction of emotional distress claim where the "factual

predicate" for each claim sounded in defamation.

. However, the proposed amendments to the complaint in

this case appear to allege extreme and outrageous conduct beyond

defamatory statements, such as the allegations concerning the

sexually hostile work environment. E.g., Amended Complaint at 5

23 ("During Ms. Young's employment with Conductron, an officer of

Conductron repeatedly solicited Ms. Young to provide prostitution

services for customers of Conductron."). The court finds that

4 the plaintiffs' proposed intentional infliction of emotional

distress claim against Howanski would not necessarily be futile

under New Hampshire law.2 Consistent with the policy that

amendments are to be liberally granted, Tiernan v. Blvth,

Eastman, Dillon & Co.,

(1st Cir. 1983), the court

grants the plaintiffs' motion to amend their complaint to assert

a claim for the intentional infliction of emotional distress

against defendant Howanski.

II. Claims Against Defendant Eagle

The plaintiffs next object to the magistrate judge's refusal

to allow them to amend the complaint to assert a claim for

intentional infliction of emotional distress against defendant

Eagle. Plaintiffs' Motion for Reconsideration at 5 5.3 The

plaintiffs have alleged that Eagle is the corporate parent of

defendant Conductron. Amended Complaint at 5 5.

2The court may consider in the context of the appropriate dispositive motion whether the plaintiffs have demonstrated that one or more defendants engaged in conduct so extreme or outrageous as to permit recovery as a matter of law. See Brewer v. K.W. Thompson Tool Co.,

(D.N.H. 1986) (granting summary judgment for defendant, court noted "[i]t is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery").

3The plaintiffs do not dispute that the exclusivity provisions bar an intentional infliction of emotional distress claim against Conductron.

5 _____ The magistrate judge correctly concluded that claims of

intentional infliction of emotional distress against an employer

are generally barred by the workers' compensation statute. Young

v. Conductron Corp., pretrial order at 3-4 (D.N.H. March 8, 1995)

(citing Censullo v. Brenka Video, Inc.,

(1st Cir.

1993)). However, the corporate parent of the employer is only

entitled to invoke employer immunity where it "can demonstrate

that it is the alter ego of its subsidiary." Leeman v. Bovlon,

,

(1991) (emphasis in

original). The defendant Eagle has neither alleged nor adduced

facts indicating that it is entitled to employer immunity under

an alter ego theory. See Defendants' Objection to Motion for

Reconsideration. The court finds that, contrary to the ruling of

the magistrate judge, the workers' compensation statute does not

bar the plaintiffs from asserting an intentional tort claim

against defendant Eagle.

In its objection. Eagle argues that any claim asserted

against it for intentional infliction of emotional distress is

futile because the plaintiffs have failed to allege conduct

sufficiently egregious to warrant recovery under New Hampshire

law. Defendants' Objection to Motion for Reconsideration at 55

10, 11, 12. The court disagrees. First, the plaintiffs appear

to allege conduct, such as that involving a continuing pattern of

6 sexual discrimination, which could be construed as extreme and

outrageous. E.g., Amended Complaint at 5 35. Second, the court

need not determine at this time whether the claim is sufficiently

viable to be submitted to a jury as that question properly is

addressed in the context of a dispositive motion. See supra note

2. The court finds that the proposed intentional infliction of

emotional distress claim against Eagle would not necessarily be

futile and, thus, grants the plaintiffs' motion to amend.

Conclusion

The plaintiffs' motion for reconsideration (document no. 11)

is granted and the March 8, 1995, order is modified as follows.

The complaint may be amended to include a claim by each

plaintiff for the intentional infliction of emotional distress

against defendant Howanski and defendant Eagle. However, the

court cannot determine from the pleadings whether plaintiff

Clarke seeks to assert such a claim against defendant Eagle.

Compare Amended Complaint at 55 116-119 (no claim stated

against Eagle) with Plaintiffs' Motion to Amend at intro, and 5 1

(claim stated by each plaintiff against each defendant). The

plaintiffs shall file within ten (10) days a second amended

complaint

7 clearly crafted to place the defendants on notice of which claims

are asserted against which defendants. See Fed. R. Civ. P. 8.

SO ORDERED.

Joseph A. DiClerico, Jr, Chief Judge June 6, 1995

cc: Maureen K. Bogue, Esguire James E. Higgins, Esguire Joel H. Kaplan, Esguire

8