UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

John Cameron

v. Civil No. 16-cv-343-LM Opinion No.

X-Ray Professional Association, et al.

O R D E R

This dispute arises from an employment relationship gone

awry. Plaintiff John Cameron, M.D., alleges that he lost his

job as a radiologist after coworkers unlawfully accessed and

circulated his private instant messaging history, which

apparently contained disparaging remarks about their business.

Cameron brought this action in federal court against his former

employer and six former coworkers. Defendants move to dismiss,

arguing that a forum selection clause in Cameron’s employment

contract requires him to bring these claims in New Hampshire

state court. Cameron objects. On February 6, 2017, the court

heard oral argument on defendants’ motion.

Standard of Review

In the First Circuit, a motion to dismiss based on a forum

selection clause is treated as a motion to dismiss for failure

to state a claim under Federal Rule of Civil Procedure 12(b)(6).

Claudio-de León v. Sistema Universitario Ana G. Méndez,

(1st Cir. 2014). Under Rule 12(b)(6), the court must

accept the factual allegations in the complaint as true,

construe reasonable inferences in the plaintiff’s favor, and

“determine whether the factual allegations in the plaintiff’s

complaint set forth a plausible claim upon which relief may be

granted.” Foley v. Wells Fargo Bank, N.A.,

(1st

Cir. 2014) (citations and internal quotation marks omitted). In

ruling on the motion, the court may consider “documents the

authenticity of which are not disputed by the parties, documents

central to plaintiffs’ claim, and documents sufficiently

referred to in the complaint.” Claudio-de León,

(internal quotation marks omitted).

Background

Defendant X-Ray Professional Association (“X-Ray”) is a

medical imaging corporation comprised of approximately 15

radiologists. In 2005, X-Ray hired Cameron, a board-certified

radiologist, as a partnership-track employee. Cameron was

induced to join X-Ray, in part, “by promises that he would

become a shareholder after 3 years of employment and would be

eligible to buy into the membership of [Concord Imaging Center,

LLC] (“CIC”) after serving 1 year as an X-Ray PA shareholder.”

Doc. no. 1 at ¶ 14. CIC is the company that owns the medical

imaging equipment used by X-Ray, and X-Ray shareholders own 50

2 percent of CIC. Cameron eventually became a shareholder of X-

Ray and later became a member of CIC. He entered into a buy-in

agreement with other X-Ray shareholders regarding his CIC

membership interest (“CIC Agreement”).

On January 1, 2010, Cameron entered into an Amended and

Restated Shareholder Physician Employment Agreement with X-Ray

(“Employment Agreement”), which replaced any previously signed

employment contracts. See doc. no. 11-2. The Employment

Agreement is “the entire and complete Agreement concerning the

employment arrangement” between Cameron and X-Ray. Id. at ¶ 21.

The Employment Agreement is broad in scope and generally sets

forth the conditions of Cameron’s employment, including terms on

employment duties, confidential information, and termination.

The agreement contains a forum selection clause that states the

following:

Any and all disputes between the parties hereto arising from, caused by or in any way related to this Agreement, which have not been resolved by the parties through negotiation, with or without mediation, shall be resolved by litigation venued in the New Hampshire state courts.

Id. at ¶ 27(a) (emphasis added).

In 2013, Cameron began using Google’s instant messaging

service, Gchat, to discuss personal and business matters with

several of his colleagues at X-Ray. Cameron occasionally

3 discussed his frustrations with X-Ray’s business operations.

Cameron accessed Gchat through his personal Gmail account.

On August 8, 2014, two X-Ray shareholders, Douglas K.

Ewing, M.D., and Joseph G. Venus, M.D., told Cameron that they

had seen his chats and informed him that his employment would

need to be terminated. In October 2014, a different X-Ray

shareholder, Daniel Tyler Zapton, M.D., told Cameron that he

accessed Cameron’s personal account and obtained his chat

history. Cameron alleges that Zapton accessed his chat history,

without authorization, from either his work-issued laptop or his

computer station at X-Ray. Cameron further alleges that Zapton

printed and distributed more than a year’s worth of his private

Gchat history to the other X-Ray shareholders. In December

2014, X-Ray terminated Cameron’s employment, effective February

6, 2015. On February 3, 2015, the shareholders held a meeting,

without Cameron present, and provided a third-party consultant

with a copy of Cameron’s chat history.

On July 27, 2016, Cameron filed a complaint in this court

against X-Ray and six individual shareholders: Zapton, Venus,

Ewing, Timothy J. McCormack, M.D., Mark A. Hadley, M.D., and

Richard J. Waite, M.D. (collectively, the “Physician

Shareholders”). Cameron asserts seven claims: (1) Violation of

the Stored Communications Act,

; (2) Violation

of RSA 570-A; (3) Invasion of Privacy, Intrusion on Seclusion;

4 (4) Invasion of Privacy, Public Disclosure of Private Facts; (5)

Wrongful Termination; (6) Breach of Fiduciary Duty; and (7)

Breach of Contract. On October 7, 2016, defendants filed the

instant motion to dismiss. Doc. no. 11.

Discussion

Defendants contend that this action must be dismissed

because Cameron’s claims are controlled by the forum selection

clause contained in the Employment Agreement and consequently

must be filed in New Hampshire state court. Defendants have

“the burden of demonstrating that: (1) the parties entered into

a valid contract of which the forum selection clause was an

agreed-to provision, (2) the clause is mandatory and (3) the

clause governs the claims asserted in the lawsuit.” Expedition

Leather LLC v. FC Organizational Prods. LLC, No. 11-cv-588-JL,

, at *3 (D.N.H. Jan. 15, 2013) (citations and

internal quotation marks omitted). Cameron does not dispute

that the Employment Agreement is valid or that the forum

selection clause is mandatory and enforceable. Rather, he

argues that the forum selection clause does not govern his

claims against defendants because those claims are not “related

to” the Employment Agreement. Thus, the parties’ dispute

5 centers on whether the forum selection clause governs Cameron’s

claims in this lawsuit.1

“[I]t is the language of the forum selection clause itself

that determines which claims fall within its scope.” Rivera v.

Centro Medico de Turabo, Inc.,

(1st Cir. 2009).

Here, the forum selection clause covers disputes that are “in

any way related to” Cameron’s Employment Agreement. The First

Circuit has interpreted the phrase “related to” in forum

selection clauses to be very broad in scope. See Huffington v.

T.C. Group, LLC,

(1st Cir. 2011). The phrase

“related to” is synonymous with other embracing language, such

as “with respect to,” “in connection with,” and “associated

with.” See

. The First Circuit has explained that

these phrases are broader in scope than the term “arising out

of” and broader than the concept of a causal connection.

Claims are “related to” an agreement if they are “connected by

reason of an established or discoverable relation.” See

(citations omitted). Thus, claims may be “related to” a

1 At oral argument, the parties agreed that their dispute should be decided under federal common law. See Lambert v. Kysar,

(1st Cir. 1993). In any event, the parties acknowledged that the New Hampshire Supreme Court and the First Circuit have adopted the same standard for analyzing the applicability and scope of forum selection clauses. See Hansa Consult of N. Am. v. Hansaconsult Ingenieurgesellschaft,

(2011) (applying First Circuit approach to whether non-contractual claims “arise under” the contract).

6 particular agreement although they seek to enforce rights that

do not arise directly out of the agreement. See id. at 22-23.

Cameron asserts seven claims against defendants. The seven

claims fall into two categories of conduct: (1) claims

concerning Cameron’s termination (Counts V–VII); and (2) claims

concerning the unauthorized access of Cameron’s private instant

messaging history (Counts I–IV). The court must determine

whether these claims fall under the broad scope of the forum

selection clause.

I. Claims Concerning Employment Termination (Counts V-VII)

Cameron alleges three claims concerning his employment

termination: wrongful termination against X-Ray (Count V);

breach of fiduciary duty against X-Ray and the Physician

Shareholders (Count VI); and breach of the CIC Agreement against

the Physician Shareholders (Count VII).

Count V alleges that X-Ray terminated Cameron’s employment

out of bad faith, malice, or retaliation as a result of

Cameron’s private communications concerning the business

operations of X-Ray. Count VI alleges that X-Ray and the

Physician Shareholders breached fiduciary duties they owed

Cameron by terminating his employment without a legitimate

business reason. Count VII alleges that the Physician

Shareholders failed to pay Cameron dividends and monies owed

7 pursuant to the CIC Agreement, presumably because he was

wrongfully terminated.

Cameron argues that his claims are not subject to the forum

selection clause because they exist independent of the

Employment Agreement and do not require reading or interpreting

any language in the agreement to determine defendants’

liability. Cameron’s argument might be persuasive if the forum

selection clause used a narrower phrase, such as “enforce rights

under,” “arise under,” or “derive from” this agreement, rather

than the broad phrase “in any way related to” this agreement.

While Cameron’s claims do not directly invoke any rights or

provisions in the Employment Agreement, the broad forum

selection clause in this case encompasses claims that are

factually connected to Cameron’s employment relationship

evidenced by the Employment Agreement. See Slater v. Energy

Servs. Grp. Int’l, Inc.,

(11th Cir. 2011)

(claims “relating to” employment contract include all claims

arising “directly or indirectly” from the employment

relationship evidenced by the contract); Cf. Chebotnikov v.

LimoLink, Inc.,

(D. Mass. 2015) (“As a

general matter, disputes ‘arising under,’ ‘arising out of,’ or

‘arising from’ the terms of an agreement must have their

inception in the agreement itself, instead of merely being

related to the agreement or the relationship of the parties.”).

8 Counts V-VII are all based on the allegedly wrongful

termination of Cameron’s employment. The Employment Agreement

defines the scope of Cameron’s employment relationship with X-

Ray and includes specific provisions governing Cameron’s

termination. Although Cameron does not allege a breach of the

Employment Agreement, his claims are premised on the termination

of a relationship governed by the Employment Agreement.

Therefore, these claims are clearly “related to” the Employment

Agreement and thus subject to the forum selection clause.2

II. Claims Concerning Invasion of Privacy (Counts I–IV)

Cameron alleges four claims against X-Ray, Zapton, and

Venus concerning the unauthorized access of his private instant

messaging history. He asserts two statutory claims—violations

of the Stored Communications Act (Count I) and RSA 570-A (Count

II)—and two invasion of privacy tort claims (Counts III and IV).

“[C]ourts have held that tort and statutory claims may ‘relate

to’ a contract and fall within the scope of a forum selection

2Although Count VII does not specifically reference Cameron’s termination, this claim appears to allege breach of the CIC Agreement for failure to pay dividends and monies owed to Cameron based on his termination. Even if unrelated to Cameron’s termination, this claim is factually premised and equally dependent on Cameron’s relationship with X-Ray. Cameron was only eligible to become a member of CIC and sign the CIC Agreement because of his employment relationship with X-Ray, which the Employment Agreement governs. Thus, this claim is factually connected to the Employment Agreement and falls under the broad “in any way related to” language.

9 clause, even if the complaint contains no explicit contract

claims.” Bagg v. HighBeam Research, Inc.,

(D. Mass. 2012) (citing Huffington,

)

(further citations omitted). “In the setting of an employment

contract, a forum selection clause governs tort claims that

arise out of the existence of the contract.” Optasite, Inc. v.

Robinson, Civ. No. 07-40023-FDS,

, at *2 (D.

Mass. July 31, 2007) (citations omitted); see also Huffington,

(“[A] suit is ‘with respect to’ the agreement if

the suit is related to that agreement—at least if the

relationship seems pertinent in the particular context.”).

Counts I-IV are premised on the same factual allegations:

Zapton and Venus accessed Cameron’s private instant messaging

history, without authorization, and distributed the content of

those messages to other X-Ray shareholders and a third-party

consultant. Zapton allegedly accessed Cameron’s instant

messaging history from either Cameron’s work-issued laptop or

his computer station at X-Ray. Thus, the conduct underlying

these claims resulted directly from Cameron’s employment

relationship with X-Ray.3 And, again, the Employment Agreement

3 In fact, Cameron’s complaint asserts that “the actions giving rise to the claims at issue arose out of employment and business relationships based in New Hampshire . . . .” Doc. no. 1 at ¶ 12.

10 covers the entire employment relationship between Cameron and X-

Ray.

Although these statutory and tort claims may not invoke

specific contractual rights, they result from Cameron’s

employment relationship with X-Ray and are thereby “in any way

related to” his Employment Agreement. Compare Slater,

(employee’s discrimination and retaliation claims

related to employment contract that governed “the entirety of

the employment relationship” between the parties) with Yevak v.

Nilfisk-Advance, Inc., No. 5:15-cv-05709,

, at *3

(E.D. Pa. Feb. 11, 2016) (employee’s discrimination and

retaliation claims not related to employment agreement that was

“designed to protect the Company’s Confidential Information,

business relationships, and competitive advantage”).

Cameron cites Yevak to support his argument that his claims

are not related to the Employment Agreement.

.

In Yevak, the plaintiff signed an agreement “designed to protect

the Company’s Confidential Information, business relationships,

and competitive advantage.” Id. at *1. Thus, the agreement in

Yevak was narrow in scope. However, the forum selection clause

within the agreement was broadly worded: “The parties agree that

any litigation in any way relating to this Agreement shall be

venued in either federal or state court in Minnesota . . . .”

Id. at *2. The court held that plaintiff’s disability and age

11 discrimination claims were not subject to the broadly worded

forum selection clause because they were in no way related to

the narrow scope of the agreement. See id. at *3.

Here, by contrast, the scope of Cameron’s Employment

Agreement is broad and covers the entirety of his employment

relationship with X-Ray. Thus, in this case, unlike Yevak, a

broadly worded forum selection clause is located within an

agreement that is extremely broad in scope. The specific facts

underlying Cameron’s invasion of privacy claims—that certain

shareholders obtained Cameron’s instant messages through his

work-issued laptop or X-Ray computer station—occurred explicitly

in the context of Cameron’s employment relationship with X-Ray.

These allegations are so closely linked to Cameron’s employment

relationship with X-Ray, which is evidenced by Cameron’s broad

Employment Agreement, that the relationship between the

Employment Agreement and Cameron’s invasion of privacy claims is

“pertinent in the particular context” of this dispute.

Huffington,

. For these reasons, Counts I-IV

relate to the Employment Agreement and are governed by the forum

selection clause.

III. Claims Against Shareholders

Cameron asserts that even if the forum selection clause

encompasses his claims against X-Ray, it does not capture his

12 claims against the Physician Shareholders because the

shareholders are not parties to the Employment Agreement.4

However, a non-party may be bound by a forum-selection clause

where that party is so “closely related to the dispute such that

it becomes foreseeable that it will be bound.” Hugel v. Corp.

of Lloyd’s,

(7th Cir. 1993) (citations and

internal quotation marks omitted); see also Holland Am. Line,

Inc. v. Wartsila N. Am., Inc.,

, 456 (9th Cir. 2007)

(“[W]here the alleged conduct of the nonparties is closely

related to the contractual relationship, a range of transaction

participants, parties and non-parties, should benefit from and

be subject to forum selection clauses.” (internal quotation

marks omitted)). “While it may be true that third-party

beneficiaries of a contract would, by definition, satisfy the

‘closely related’ and ‘foreseeability’ requirements, a third-

party beneficiary status is not required.” Hugel,

n.7 (internal citations omitted).

Here, although the Physician Shareholders did not sign

Cameron’s Employment Agreement, they are closely related to his

contractual relationship with X-Ray and the factual allegations

underlying this dispute. The Physician Shareholders shared a

common interest in X-Ray and signed identical employment

4 Every claim other than wrongful termination (Count V) is alleged against one or more of the Physician Shareholders.

13 agreements containing the same forum selection clause. See doc.

no. 16-1. In fact, Cameron’s Employment Agreement referenced

the “agreements inter se among [Cameron] and the other

Shareholder Physicians of [X-Ray] to execute and enter into this

[Employment Agreement] . . . .” Doc. no. 11-2 at 2 of 19. The

Physician Shareholders and X-Ray are so closely related—and the

individual employment agreements are so interconnected—that it

was reasonably foreseeable the Physician Shareholders would

benefit from the forum selection clause to the same extent as X-

Ray. Moreover, the individual shareholders were allegedly

responsible for Cameron’s termination and the other conduct

alleged in his complaint.5 Thus, the Physician Shareholders are

so “closely related” to the dispute at hand that they are

equally subject to the forum selection clause in the Employment

Agreement. Finally, it would be impractical to bifurcate

identical claims against X-Ray and the individual Physician

Shareholders. The interests of justice and judicial economy are

Specifically, Ewing and Venus allegedly told Cameron “we 5

saw your chats,” and “informed him that the shareholders were going to need to plan an exit strategy for his departure from X- Ray PA.” Doc. no. 1 at ¶ 24. Further, Zapton allegedly informed Cameron that “he accessed Cameron’s personal account and obtained his chat history.” Id. at ¶ 25. Finally, Cameron alleges that his chats “were obtained through the coordinated effort of Zapton and Venus and were printed by Zapton when he accessed Cameron’s computer.” Id.

14 best served if these claims proceed against all defendants in a

single forum.

In sum, every count alleges claims that are “in any way

related to” Cameron’s Employment Agreement, and thus subject to

the forum selection clause. Based on the forum selection

clause, Cameron was required to bring these claims in New

Hampshire state court. Accordingly, the court must dismiss the

entire complaint.

Conclusion

For the foregoing reasons, defendants’ motion to dismiss

(doc. no. 11) is granted, without prejudice to plaintiff’s right

to refile in state court. The clerk of court shall enter

judgment accordingly and close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

February 21, 2017

cc: Zachary W. Berk, Esq. George M. Boucher, Esq. Michael S. Lewis, Esq. Robert Terry Parker, Esq.

15