UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Deborah Beaulac and Nicholas Beattie

v. Civil No. 17-cv-162-JD Opinion No.

All Systems Satellite Distributors, Inc., Richard Logiudice, and Gene's Electronics, Inc.

O R D E R

Deborah Beaulac and Nicholas Beattie brought suit against

their previous employers: All Systems Satellite Distributors,

Inc.1; Richard Logiudice, an owner and officer of All Systems;

and Gene’s Electronics, Inc. Beaulac and Beattie allege claims

against All Systems, Logiudice, and Gene’s that arose from

events that occurred after Beaulac left All Systems and Gene’s

hired and then fired Beaulac and Beattie. All Systems and

Logiudice move to dismiss the claims brought against them.

Standard of Review

In considering a motion to dismiss, the court accepts all

well-pleaded facts as true, disregarding mere legal conclusions,

and resolves reasonable inferences in the plaintiff’s favor.

1 All Systems identifies itself both as “All Systems” and “All System’s.” It appears that All Systems is the correct spelling. Galvin v. U.S. Bank, N.A.,

(1st Cir. 2017).

Taken in that light, the complaint must state sufficient facts

to support a plausible claim for relief. In re Curran,

(1st Cir. 2017). The plausibility standard is satisfied

if the factual allegations in the complaint “are sufficient to

support the reasonable inference that the defendant is liable.”

In re Fidelity ERISA Float Litig.,

(1st Cir.

2016) (internal quotation marks omitted). The complaint need

not include “a high degree of factual specificity” but “must

contain more than a rote recital of the elements of a cause of

action.” Carcia-Catalan v. United States,

(1st Cir. 2013) (internal quotation marks omitted).

In their objection to the motion to dismiss, Beaulac and

Beattie argue that the motion should not be considered because

discovery is needed to develop facts to support their claims.

They are mistaken.2 A motion to dismiss under Rule 12(b)(6) is

an appropriate means to test the sufficiency of the pleadings

and does not pertain to what facts may be learned through

discovery. See Charles Alan Wright & Arthur Miller, 5 Federal

Practice and Procedure, § 1203 (3d ed. 2017); see also, e.g.,

Filler v. Kellett,

(1st Cir. 2017); Pitroff v.

United States,

, at *3 (D.N.H. Aug. 22, 2017);

2 Beaulac and Beattie are represented by counsel.

2 Metro. Prop. & Casualty Ins. Co. v. Savin Hill Family

Chiropractic, Inc., --- F. Supp. 3d ---,

, at *7

(D. Mass. July 21, 2017); Adams v. Town of Montague,

, at *1 (D. Mass. Mar. 23, 2015) (explaining difference

between a motion to dismiss and a motion for summary judgment).

Background

Beaulac worked at Satellite Systems beginning in 2006 and

was promoted to the position of director of sales in New York

and New England in 2008. Her job involved selling satellite

television services. Logiudice was the principal owner and

chief executive officer of All Systems.

Although Logiudice had had difficult relationships with

some of his employees, Beaulac’s relationship with Logiudice was

good until 2012. Logiudice then imposed new conditions on

Beaulac that included increased travel requirements so that she

had to be away from home half of each month and demands that she

have her car serviced in Connecticut although she lived in New

Hampshire. Beaulac believed that the new conditions were

intended to force her to leave All Systems. Beaulac resigned,

which was effective October 14, 2016.

Soon after her resignation, Beaulac received job offers

from Gene’s Electronics and Perfect 10, another satellite

distribution company. Beaulac negotiated with Gene’s,

3 explaining that she needed a guarantee of employment for at

least six months and wanted a job offer for her fiancé, Beattie.

Gene’s offered Beaulac and Beattie jobs in a letter dated

October 26, 2016, and they accepted.

In late November of 2016, the principals of Gene’s,

Stephanie and Darnell Oliver, told Beaulac and Beattie that

Logiudice had threatened to stop doing business with Gene’s

unless they terminated Beaulac’s employment. The Olivers

proposed that they would change the employment relationship to

an independent contractor relationship. The next day, however,

the Olivers said that they could not offer the independent

contractor positions because of a conflict with All Systems.

Gene’s then terminated Beaulac and Beattie.

Beaulac learned that Dan Reno of Hughes Communications had

sent her an email, to her All Systems email address, offering

her a job there. Logiudice found the email and called Hughes

Communications, asserting that Hughes was trying to steal his

employee. Logiudice’s response to the email ended the offer

from Hughes.

Beaulac and Beattie brought suit against All Systems,

Logiudice, and Gene’s. The defendants all moved to dismiss the

claims brought against them. In response, Beaulac and Beattie

filed objections and also filed an amended complaint.

4 Because the amended complaint became the operative

complaint in the case, the motions to dismiss were denied

without prejudice. In the amended complaint, Beaulac and

Beattie allege claims against All Systems and Logiudice for

tortious interference with a business relationship, Counts I and

IV, and violation of the New Hampshire Consumer Protection Act,

RSA Chapter 358-A, Count V.

Discussion

Logiudice and All Systems, who will be referred to as the

defendants for purposes of this order, move to dismiss the

claims against them. They contend that Beaulac and Beattie, who

will be referred to as the plaintiffs, have not alleged

sufficient facts to support their claims and that their actions,

as alleged, do not constitute tortious interference with

economic relationships or violation of Chapter 358-A. The

plaintiffs object, contending that they have stated viable

claims against the defendants.

A. Tortious Interference with Business Relationships

In Count I, the plaintiffs allege that the defendants

tortiously interfered with their employment relationship with

Gene’s. In Count IV, the plaintiffs allege that the defendants

tortiously interfered with their agreement with Hughes

5 Communications. The defendants contend that both claims must be

dismissed.

Under New Hampshire law, a claim for tortious interference

with an economic relationship requires proof that “(1) the

plaintiff had an economic relationship with a third party; (2)

the defendant knew of this relationship; (3) the defendant

intentionally and improperly interfered with this relationship;

and (4) the plaintiff was damaged by such interference.” Singer

Asset Fin. Co., LLC v. Wyner,

(2007). To be

improper, the interference must be motivated by an improper

purpose. City of Keene v. Cleaveland,

(2015);

Nat’l Emp’t Serv. Corp. v. Olsten Staffing Serv., Inc.,

(2000); Roberts v. Gen. Motors Corp.,

,

540–41 (1994) (providing factors to consider in determining

whether interference was improper). Economic relationships may

include contractual relationships, business relationships,

prospective contractual or business relationships, and other

economic relationships or economic advantages, including

employment. See, e.g., Moulton v. Bane,

, at *12

(D.N.H. Nov. 16, 2015); Sarah’s Hat Boxes, L.L.C. v. Patch Me

Up, L.L.C.,

, at *13 (D.N.H. Apr. 12, 2013); M &

D Cycles, Inc. v. Am. Honda Motor Co., Inc.,

(D.N.H. 2002); Demetracopoulos v. Wilson,

(1994).

1. Interference with Employment at Gene’s – Count I

The defendants argue that the plaintiffs were at-will

employees at Gene’s and for that reason cannot show tortious

interference with a contractual relationship. They also argue

that the plaintiffs cannot show intentional interference or that

any interference was improper. The plaintiffs contend that

their allegations support the claim.

a. Relationship

The defendants contend that the plaintiffs’ at-will

employment relationship with Gene’s narrows the scope of

tortious conduct that is actionable, which undermines the claim.

They argue that the plaintiffs had no reasonable expectation of

an ongoing economic advantage through employment at Gene’s,

relying on Wilcox Indus. Corp. v. Hansen,

(D.N.H. 2012), and comment g to the Restatement (Second) of

Torts § 766. The plaintiffs assert that they did expect an

ongoing relationship based on their agreement with Gene’s and

the implied covenant of good faith fair dealing.

Whether the plaintiffs were at-will employees or were hired

for a term, their employment at Gene’s was an advantageous

7 business relationship. Their reasonable expectation as to the

length of the relationship may affect their damages but does not

preclude the claim. See § 766, cmt. g. Therefore, the

defendants’ argument based on the plaintiffs’ status as at-will

employees does not support dismissing the claim.

b. Intentional and Improper Actions

The defendants also argue that the plaintiffs have not

alleged facts to show that their alleged interference was

intentional or improper.3 In support, they contend that a mere

refusal to deal with an entity does not constitute tortious

interference, citing Lento v. RBS Citizens, N.A.,

, at *10 (D. Mass. Mar. 27, 2015).4 Even if New Hampshire

would follow the Massachusetts rule, the plaintiffs’ claim is

3 In their reply, the defendants contend that the plaintiffs improperly rely on the implied covenant of good faith and fair dealing to support their tortious interference claim. The covenant of good faith and fair dealing is raised to support the claim of an economic relationship with Gene’s – not to suggest that All Systems and Logiudice had a duty of good faith and fair dealing to the plaintiffs.

4 The defendants also cite the Restatement (Second) of Torts § 762. Section 762, pertaining to the privilege of selecting persons for business relations, was in the Restatement (First) of Torts but was omitted from the Restatement (Second) of Torts because it was deemed to pertain to trade regulation rather than torts. Watson’s Carpet & Floor Coverings, Inc. v. McCormick,

(Tenn. Ct. App. 2007). Therefore, the cited section does not exist. In addition, the circumstances in this case are different from the situation addressed by § 762.

8 not based on a mere refusal of the defendants to deal with the

plaintiffs, as was the claim in Lento. Instead, the plaintiffs

allege that the defendants threatened to stop doing business

with Gene’s unless Gene’s fired the plaintiffs. Those

allegations are sufficient to support a claim of intentional and

improper interference.

2. Hughes Communications – Count II

The defendants contend that they did not intentionally or

improperly interfere with the plaintiffs’ prospective

relationship with Hughes. The allegations to support the

intentional interference claim relating to the offer of

employment from Hughes are meager. Nevertheless, the plaintiffs

allege that Logiudice’s response to Hughes’s email to Beaulac

put an end to that opportunity. That is enough to state the

claim.

B. Consumer Protection Act – RSA Chapter 358-A

The defendants contend that the plaintiffs do not state a

viable claim under RSA Chapter 358-A because the Act does not

apply to claims arising from an employment relationship. In

support, the defendants cite Donovan v. Digital Equip. Corp.,

(D.N.H. 1994), and an article in the

Massachusetts Law Review, which addresses the Massachusetts

9 Consumer Protection Act, M.G.L.A. Chapter 93A. The plaintiffs

object, arguing that the defendants’ interference with their

employment after Beaulac left All Systems is not an employment

dispute.

In Donovan, the plaintiff claimed a violation of Chapter

358-A by his former employer when the former employer enforced a

non-compete agreement with the plaintiff, which caused the

plaintiff’s new employer to terminate him.

The court

concluded that the plaintiff’s claim was based on a dispute with

his former employer about enforcing the non-compete agreement, a

dispute arising out of his employment, rather than a claim based

on an unfair act or practice that is actionable under Chapter

358-A.

.

In this case, the plaintiffs allege that “[t]he conduct of

All Systems and its principal Logiudice during the course of

conducting commerce in this state with respect to [Beaulac and

Beattie] both during the last years of Ms. Beaulac’s employment

with All Systems and thereafter was unfair and deceptive.” To

the extent the plaintiffs’ claim is based on Beaulac’s

employment at All Systems, it is not actionable as held in

Donovan. See also Gately v. Mortara Instrument, Inc.,

, at *7 (D.N.H. Aug. 9, 2017).

10 To the extent the claim is based on the defendants’ actions

after Beaulac left her job at All Systems, the claim is not

based on an employment dispute between Beaulac and the

defendants. Instead, as alleged in the complaint, the

defendants called Gene’s after Beaulac left All Systems for the

sole purpose of getting the plaintiffs fired, without any

suggestion of an underlying dispute with Beaulac as

justification for their conduct. Similarly, Logiudice’s

response to Hughes to undermine her employment there occurred

after Beaulac left and without grounds arising from an

employment dispute. Therefore, the defendants have not shown

that the limitation applied in Donovan is applicable to that

part of the plaintiffs’ claim that arises from the defendants’

conduct after Beaulac left All Systems.

Although the interpretation of Chapter 93A by Massachusetts

courts may be persuasive in interpreting Chapter 358-A, see

Remsburg v. Docusearch, Inc.,

(2003), the

Massachusetts Law Review article cited by the defendants does

not serve that purpose here. The article does not show that

Massachusetts courts would find that the circumstances alleged

in this case fall within the exception from Chapter 93A for

employment disputes. In addition, the plaintiffs cite a

decision from the Massachusetts Superior Court, Prof’l Staffing

11 Gr., Inc. v. Champigny,

, at *2-*4 (Suffolk

Super. Ct. Nov. 18, 2004), in which the court did not apply the

exception for employment disputes under the circumstances in

that case.5 See also TalentBurst, Inc. v. Collabera, Inc.,

(D. Mass. 2008) (explaining Prof’l

Staffing).

Conclusion

For the foregoing reasons, the motion to dismiss filed by

Logiudice and All Systems (document no. 23) is denied, except

that any claim in Count V based on Beaulac’s employment

relationship with Logiudice and All Systems is dismissed.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

September 21, 2017

cc: Brian L. Champion, Esq. Talesha L. Saint-Marc, Esq. David P. Slawsky, Esq. Tyler Smith, Esq.

5 Oddly, the defendants fault the plaintiffs for relying on a case from Massachusetts, when the defendants also rely on Massachusetts law. Prof’l Staffing merely shows that Massachusetts courts take differing views of the exception from Chapter 93A for employment disputes.

12