White v. Ransmeier & Spellman CV-95-626-JD 10/10/96 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robin K. White

v. Civil No. 95-626-JD

Ransmeier & Spellman

O R D E R

The plaintiff, Robin White, brought this action seeking

damages related to her termination from her position as a legal

secretary with the defendant law firm, Ransmeier & Spellman. The

defendant filed a five-count counterclaim against the plaintiff,

seeking damages from the events that precipitated the plaintiff's

termination. Before the court is the plaintiff's consolidated

motion to dismiss the defendant's counterclaims and motion to

strike certain portions of the defendant's prayer for relief

(document n o . 9).

Background1

The plaintiff was employed by the defendant as a legal

secretary from August 1989 until her termination on November 1,

1994. It is not disputed that she performed her job duties

adeguately throughout the duration of her employment.

1The facts relevant to the instant motion either are not in dispute or have been alleged by the defendant. In March 1994, the plaintiff informed one of the lawyers at

the firm that she wanted to leave her job because she had had an

affair with Richard Meaney, the firm's legal administrator. The

matter was brought to the attention of at least one member of the

firm's executive committee, and the situation apparently was

diffused when Meaney submitted his resignation on or about June

1, 1994.

However, in the weeks that followed Meaney's resignation,

the plaintiff began to feel that other employees of the firm were

blaming her for Meaney's departure. The plaintiff harassed one

employee who had been friendly with Meaney by making phone calls

to the employee's home late at night and then hanging up, by

sneaking up behind the employee, and by staring at her without

saying anything. The plaintiff also stared threateningly at

other female employees, and on one occasion, bumped an employee

as she was walking down a flight of stairs.

Meanwhile, in August 1994, Meaney secured a position as a

legal administrator with Greeley, Walker & Kowan, a Honolulu,

Hawaii law firm. On September 2, 1994, an unidentified female

caller, believed to be the plaintiff, placed a telephone call to

inform the lawyers at Greeley, Walker that a bomb had been

planted at their offices. In the next several weeks, a caller

also believed to be the plaintiff made phone calls threatening

2 employees at Greeley, Walker; placed "hang-up" phone calls to

Heaney's wife, who had not yet left for Hawaii; made harassing

calls to Meaney in Hawaii; and called Heaney's daughters'

schools, informing school administrators that "Dick Meaney is

going to have his house burned down with his kids inside it," and

that one of Meaney's daughters was about to be murdered because

of a grudge against her father. Ransmeier & Spellman was

informed of these actions.

The plaintiff's conduct continued into October 1994, during

which the plaintiff made death threats to two Ransmeier &

Spellman employees and continued to harass and threaten Greeley,

Walker and its employees. After consulting with the police, the

New Hampshire Attorney General, the Greeley, Walker firm, and an

unspecified number of workplace violence experts, the firm

decided to terminate the plaintiff.

On December 29, 1995, the plaintiff commenced the instant

action against Ransmeier & Spellman, alleging that she had been

terminated in violation of the Americans with Disabilities Act,

Title VII of the Civil Rights Act of 1964, N.H. Rev. Stat. Ann.

("RSA") § 354-A, and, in addition, asserting a variety of common-

law theories. On March 20, 1996, the defendants filed an answer

and five-count counterclaim, seeking, inter alia, damages,

enhanced compensatory damages, and attorney's fees, and alleging

3 (1) interference with business relations; (2) prima facie tort;

(3) intentional tort to cause harm; (4) breach of the implied

covenant of good faith and fair dealing; and (5) breach of the

duty of loyalty.

Discussion

I. Motion to Dismiss

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) is one of

limited inguiry, focusing not on "whether a [claimant] will

ultimately prevail but whether the claimant is entitled to offer

evidence to support the claims." Scheuer v. Rhodes,

(1974). Accordingly, the court must take the factual

averments contained in the defendant's counterclaim as true,

"indulging every reasonable inference helpful to the

[defendant's] cause." Garita Hotel Ltd. Partnership v. Ponce

Fed. Bank,

(1st Cir. 1992); see also Dartmouth

Review v. Dartmouth College,

(1st Cir. 1989) . In

the end, the court may grant a motion to dismiss under Rule

12(b)(6) "'only if it clearly appears, according to the facts

alleged, that the [defendant] cannot recover on any viable

theory.1" Garita,

(guoting Correa-Martinez v.

Arrillaga-Belendez,

(1st Cir. 1990)).

4 A. Interference with Contractual Relations

Although the defendant has styled count I of its

counterclaim as interference with business relations, its own

citations to Demetracopolous v. Wilson,

,

(1994), and Jav Edwards, Inc. v. Barker,

,

(1987) indicate that the claim is properly brought under

the rubric of intentional interference with contractual

relations. To succeed on such a theory, Ransmeier & Spellman

must show that the plaintiff improperly and intentionally

interfered with an existing contractual relationship between

Ransmeier & Spellman and a third party. See Demetracopolous,

,

; Montrone v. Maxfield,

,

(1982); Restatement (Second) of

Torts § 766 (1979).

Ransmeier & Spellman's claims hinge on its assertions that

the plaintiff improperly interfered with the firm's relationships

with its clients and its employees by engaging in conduct that

she knew was substantially certain to cause a loss of billable

hours and to hinder the firm's employees from performing their

duties. See Memorandum in Support of Objection to Motion to

Dismiss and to Strike ("Defendant's Memorandum") at 9-10.

However, it has failed to allege any facts demonstrating that the

plaintiff's conduct caused Ransmeier & Spellman's clients or

5 employees not to perform their contractual obligations to the

firm, or that the plaintiff's conduct caused Ransmeier & Spellman

not to perform its contractual obligations to third parties.2 As

such, Ransmeier & Spellman has failed to state a claim for

interference with contractual relations.

The motion to dismiss count I of the defendant's

counterclaim is granted.

B. Prima Facie Tort & Intentional Tort to Cause Harm

Counts II and III of the defendant's counterclaim seek

relief for conduct that was "outrageous[,] intentional, . . . and

caused harm to the firm." Defendant's Memorandum at 11.

Although some jurisdictions have recognized various versions of

2The court notes that the New Hampshire Supreme Court has not adopted § 766A of the Restatement (Second) of Torts, which creates a cause of action for a party whose performance of a contract with a third party is made more burdensome by the improper and intentional acts of a defendant, and appears not to have extended the tort of interference with contractual relations to cover such circumstances. In the absence of guidance from the New Hampshire Supreme Court, the court declines to recognize such a cause of action. Accord Gemini Physical Therapy & Rehab., Inc. v. State Farm Mut. Auto. Ins. Co.,

(3d Cir. 1994) (declining to recognize cause of action based on § 766A under Pennsylvania law); see also Price v. Sorrell,

(Wyo. 1989) (causing contract to be more costly to perform "too speculative and subject to abuse to provide a meaningful basis for a cause of action"). See generally Windsor Sec., Inc. v. Hartford Life Ins. Co.,

(3d Cir. 1993) (distinguishing between inducing third party not to perform contract with plaintiff and hindering plaintiff from performing contract with third party).

6 "umbrella" liability for intentional torts, see, e.g.. Gray v.

Bicknell,

(8th Cir. 1996) (elements of prima

facia tort under Missouri law); Twin Lab., Inc. v. Welder Health

& Fitness,

(2d Cir. 1990) (elements of prima

facie tort under New York law); see Restatement (Second) of Torts

§ 870 (1979), New Hampshire has not recognized such a cause of

action. In light of the New Hampshire Supreme Court's silence on

this issue and the potential breadth of the theories the

defendant has presented, the court declines to recognize these

causes of action.

The plaintiff's motion to dismiss counts II and III of the

counterclaim is granted.

C. Breach of the Implied Covenant of Good Faith and Fair Dealing

In count IV of its counterclaim, the defendant alleges that

the plaintiff violated the implied covenant of good faith and

fair dealing in her at-will employment contract by engaging in

behavior that was "inconsistent with common standards of decency,

fairness, and reasonableness and with the parties' agreed-upon

common purposes and justified expectations." Defendant's

Memorandum at 12 (guoting Centronics Corp. v. Genicom Corp.,

,

(1989)). However, the theory

upon which the defendant relies does not convert every

7 potentially tortious act between parties to a contract into a

breach of the implied covenant. Rather, it only permits recovery

"under an agreement that appears by word or silence to invest one

party with a degree of discretion in performance sufficient to

deprive another party of a substantial proportion of the

agreement's value."

,

; see, e.g.,

Griswold v. Heat Corp.,

,

(1967) (contract under which party was to provide "such services,

as he, in his sole discretion, may render" obligated party to

provide a level of services consistent with good faith); Howtek

v. Relisvs, 94-297-JD, slip op. at 6-7 (D.N.H. Feb. 1, 1996)

(express agreement between designer and manufacturer to negotiate

in good faith for manufacture of additional products reguires

designer to inform manufacturer of its intention to market new

items in related field and to possess genuine willingness to

entertain reasonable offers to manufacture such products).

Unlike Griswold or Howtek, the at-will employment contract

between the plaintiff and the defendant neither expressly nor

impliedly granted the plaintiff the discretion to engage in

conduct that could have frustrated the defendant's purpose in

contracting. Indeed, the conduct in which the plaintiff is

alleged to have engaged was wholly independent of her obligations

under her employment contract. Thus, regardless of whether on balance the plaintiff's conduct outweighed her contributions to

the firm, her conduct could not have deprived the defendant of

the benefit of the bargain of its employment contract with the

plaintiff. Although the alleged conduct is, by all accounts,

inconsistent with common standards of decency and may give rise

to some form of tort or criminal liability, the plaintiff's

allegations are insufficient to justify a damage award for breach

of the implied covenant of good faith and fair dealing.

The plaintiff's motion to dismiss count IV of the

counterclaim is granted.

D. Breach of Loyalty

In count V the defendant seeks relief for the plaintiff's

breach of her duty of loyalty. This court has recognized that

under New Hampshire law

an employee holding a position of trust and confidence, such as a supervisor, manager, director, or officer, owes a fiduciary duty of loyalty to her employer. The duty demands that the employee act solely for the bene­ fit of the employer, never to the employer's detriment. Detrimental behavior could include misappropriating a business opportunity of the employer, use of confiden­ tial information, or soliciting clients of the company for the employee's competing business.

Liberty Mutual Ins. Co. v. Ward, 93-610-L, slip op. at 9 (D.N.H.

July 11, 1994). The defendant's claim, which seeks recovery for acts of an at-will, nonmanagerial employee, falls outside the

scope of Ward's conception of a breach of the duty of loyalty,

and beyond the scope of any cause of action for breach of the

duty of loyalty recognized by the New Hampshire Supreme Court.

The plaintiff's motion to dismiss count V of the

counterclaim is granted.

II. Motion to Strike

The plaintiff has moved to strike paragraph C of the

defendant's prayer for relief, which seeks an award of "damages,

enhanced compensatory damages, and attorney's fees on Ransmeier &

Spellman's counterclaims." As the court has already dismissed

the counterclaims, the motion to strike paragraph C is moot.

The plaintiff also has moved to strike paragraph E of the

defendant's prayer for relief, which asks the court to "order

[the plaintiff's] attorney's to pay the legal costs and expenses

of this action due to their lack of a thorough investigation

before bringing this action." The defendant has withdrawn its

reguest, acknowledging its failure to comply with Fed. R. Civ. P.

11(c)(1)(A). Accordingly, the motion to strike paragraph E is

moot.

10 Conclusion

The plaintiff's motion to dismiss the defendant's

counterclaims (document no. 9) is granted. The plaintiff's

motion to strike portions of the defendant's prayer for relief

(document no. 9) is moot.

SO ORDERED.

Joseph A. DiClerico, Jr, Chief Judge October 10, 1996

cc: Andrea P. Thorn, Esguire Robert J. Gilbert, Esguire Garry R. Lane, Esguire

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