Opinion
MICV201202457.
05-03-2013
Randy BRITTON et al.[1] v. ATHENAHEALTH, INC. et al.[2]
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION TO DISMISS
DENNIS J. CURRAN, Associate Justice.
The plaintiff Carolyn Britton brings this action for wrongful termination (Count I), intentional infliction of emotional distress (Count II), breach of contract (Count III) and civil conspiracy (Count IV) relating to her employment with TAS-CCPN, Inc., TA-CC, Inc., and TAS-CSEMCB, Inc. (collectively " CCPN") and her relationship with CCPN employees and other related individuals. Defendants Steward Health Care System, LLC, Steward Physician Network, Inc., and Steward St. Elizabeth's Medical Center of Boston, Inc. (collectively, " Steward") purchased certain assets of CCPN in November 2010. CCPN worked with defendant Athenahealth (" Athena") during Ms. Britton's CCPN tenure.
Ms. Britton also brings Counts I-IV against Cindy J. Moran, Gregory J. Mertz, Michael G. Callum, M.D., and Thomas F. Cady, individuals who either worked for or with CCPN and Ms. Britton during her employment with CCPN. Navigant Consulting, Inc. is a consulting company hired by CCPN and employed Mr. Mertz.
Randy Britton, Ms. Britton's husband, brings an action for loss of support and society arising out of his wife's claims (Count V).
All twelve defendants filed motions to dismiss under Mass.R.Civ.P. 12(b)(6). The Brittons did not file an opposition, but filed cross motions to strike defendants' motions and to dismiss for entry of default judgment. For the reasons set forth below, the defendants' motions are ALLOWED and the Brittons' cross motions are DENIED.
Defendants CCPN, Steward, Navigant, Dr. Callum, Mr. Mertz, and Ms. Moran filed a joint motion to dismiss. Defendants Athena and Mr. Cady filed a separate motion to dismiss.
BACKGROUND
In this case, the Brittons relate the long and tumultuous story of Ms. Britton's rise and fall as a health-care practice executive for CCPN, a physician network. Although the complaint, in its 186 paragraphs, includes anything but short and plain statements of the Brittons' claims, and fails to assert the Brittons' claims in a " simple, concise, and direct" fashion, the court has done its best to piece together the relevant facts. Mass.R.Civ.P. 8(a)(e). Therefore, accepting as true the factual allegations in the complaint, and the inferences therefrom, the material facts are as follows. The Harvard Crimson, Inc. v. President & Fellows of Harvard Coll., 445 Mass. 745, 749, 840 N.E.2d 518 (2006).
In addition to their motions to dismiss under Mass.R.Civ.P. 12(b)(6), the defendants argue that the complaint should be dismissed pursuant to Mass.R.Civ.P. 8 because it does not contain short and plain statements of the Brittons' claims showing that the Brittons are entitled to relief. Although a challenge to read, the complaint is not " so verbose and confusing" that it did not give the defendants notice of the Brittons' claims. See Driscoll v. Board of Trs. of Milton Acad., 70 Mass.App.Ct. 285, 299, 873 N.E.2d 1177 (2007) (citations and internal quotation marks omitted). Therefore, this court will only analyze the defendants' motions under Mass.R.Civ.P. 12(b)(6).
In April 2008, Tim Crowley, M.D., the then-president of CCPN, created a " Practice Management Division" of CCPN and hired Ms. Britton as the Director of Practice Management. Ms. Britton discovered problems with CCPN's billing operations, and as a result of this discovery and other favorable work at CCPN, was promoted to Vice President of Practice Management and again to Executive Director in November 2008 and December 2008, respectively.
In September 2008, Dr. Crowley hired Cindy Moran as Director of CCPN's Revenue Cycle. Although Ms. Britton and Ms. Moran were peers, they frequently butted heads. Ms. Moran was not supportive of Ms. Britton's promotions and Ms. Moran bullied Ms. Britton by undermining Ms. Britton's authority as Executive Director of Practice Management.
In April 2009, CCPN underwent internal changes. Michael Callum, M.D., became President of CCPN and Dr. Crowley stepped down. Around the same time, CCPN began what it labeled the " Athena Implementation" with an original " go-live" date of September 1, 2009. To effectuate this transition, in May 2009, CCPN hired Greg Mertz from Navigant to provide coaching to Dr. Callum in his new role as President of CCPN. On July 2, 2009, Dr. Callum named Mr. Mertz the interim Chief Operating Officer of CCPN.
Over time, a sexual relationship developed between Ms. Moran and Mr. Mertz, yielding an uncomfortable work environment at CCPN. Ms. Britton found Ms. Moran and Mr. Mertz's work-place behavior inappropriate because, for example, Ms. Moran and Mr. Mertz socialized during work hours and Ms. Moran sent Mr. Mertz flowers and left a note on his white board welcoming him to CCPN when he became Chief Operating Officer. This affair resulted in Ms. Moran effectively " control[ling] the operational decision making with CCPN" by virtue of her relationship with Mr. Mertz. Meanwhile, Ms. Moran's daily job duties suffered.
On July 31, 2009, Ms. Britton reported to Dr. Callum that Ms. Moran and Mr. Mertz's behavior created a hostile work environment. Ms. Britton stated that Ms. Moran was disrespectful to Ms. Britton and other CCPN employees. Ms. Britton notified Dr. Callum that she did not want her portion of the Athena Implementation shared with Ms. Moran because Ms. Moran was untrustworthy.
On August 5, 2009, CCPN set up a meeting between Ms. Britton and an independent human resources consultant to investigate Ms. Britton's complaint. Ms. Britton told the consultant that she felt like she was " under siege" from Ms. Moran and Mr. Mertz and that Mr. Mertz was uninterested in the work Ms. Britton was doing. She also stated that she had received hostile and negative emails from Mr. Mertz and gave the consultant examples of such emails.
On August 5, 2009, Thomas Cady, who was part of the Athena Implementation, stated that Ms. Britton " had to be fired or else the [A]thena [I]mplementation would be a disaster." On August 6, 2009, Mr. Cady sent an email including the same statement. On August 11, 2009, CCPN terminated Ms. Britton's employment. During the termination meeting, Dr. Callum represented to Ms. Britton that Mr. Cady said that Dr. Callum " had to make a change to who was leading the front end or the [Athena Implementation] would be a disaster." Ms. Britton was offered three months' severance pay, however, a male employee terminated around the same time as Ms. Britton received between six to nine months of severance pay.
The Brittons did not attach this email to their complaint, nor did they indicate to whom Mr. Cady sent the email.
On March 19, 2010, CCPN entered into an Asset Purchase Agreement with Steward to sell some of its assets. The Agreement provided that CCPN remained " fully and solely responsible for ... all liabilities arising from any violation of Law by CCPN." The Agreement also provided that CCPN would retain assets to cover their potential exposure for any excluded liabilities, such as violations of law.
In deciding a Rule 12(b)(6) motion, the court generally may only consider the allegations of the complaint and any exhibits attached to it, and it may also consider matters of public record, orders and items appearing in the record of the case. Schaer v. Brandeis Univ., 432 Mass. 474, 477, 735 N.E.2d 373 (2000). The Brittons did not attach the Asset and Purchase Agreement to the complaint, but the defendants submitted it in connection with their motion to dismiss. Where the defendant attaches a written instrument to its motion to dismiss, consideration of that document does not convert the motion to one for summary judgment as long as the plaintiff had notice of the document and relied on it in framing the complaint. Marram Kobrick Offshore Fund, Ltd., 442 Mass. 43, 45 n. 4, 809 N.E.2d 1017 (2004). Because the Brittons rely upon the Asset and Purchase Agreement in their complaint, this court may consider it.
On May 14, 2012, Ms. Britton filed a complaint with the Massachusetts Commission Against Discrimination (the " MCAD") and these claims are still pending before it. The present action ensued.
Ms. Britton amended her MCAD complaint on February 18, 2013.
DISCUSSION
I. Standard of Review
A party moving to dismiss pursuant to Mass.R.Civ.P. 12(b)(6) contends that a complaint fails to state a claim upon which relief can be granted. " While a complaint attacked by a ... motion to dismiss does not need detailed factual allegations ... a plaintiffs obligation to provide the ‘ grounds' of his ‘ entitle[ment] to relief’ requires more than labels and conclusions ... Factual allegations must be enough to raise a right to relief above the speculative level ... [based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact) ..." Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-36, 888 N.E.2d 879 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (alteration in original).
II. Wrongful Termination
In Massachusetts, it is unlawful for an employer to discharge an employee because of the employee's race, color, religious creed, national origin, sex, gender identity or sexual orientation. G.L.c. 151B, § 4; 42 U.S.C.2000e et seq. A plaintiff alleging wrongful termination must follow the procedures set forth in G.L.c. 151B unless she is alleging that the putative employer violated an established public policy not covered in G.L.c. 151B. Meeley v. The Gillette Corp., 19 Mass.App.Ct. 511, 512, 475 N.E.2d 1227 (1985), analysis and conclusion adopted by, 397 Mass. 1004, 491 N.E.2d 252. A claimant must file a complaint with the MCAD as a prerequisite to filing a civil suit, and this requirement may not be waived. Everett v. The 357 Corp., 453 Mass. 585, 600, 904 N.E.2d 733 (2009). Ninety days after filing a complaint with the MCAD, a plaintiff may remove the case to the Superior Court even if the MCAD has not yet made a final determination regarding the plaintiff's claims. G.L.c. 151B, § 9.
A. CCPN
Ms. Britton represents in her complaint that she filed an amended MCAD complaint alleging violations of Massachusetts and federal law and these claims are still pending before the MCAD. Ms. Britton has not indicated that she is removing the claim to the Superior Court under G.L.c. 151B, § 9, instead, she states that " the MCAD is still addressing [her wrongful termination] claims so this complaint should not be read, at this time, as including [the MCAD] claims because [Ms. Britton] is still exhausting her administrative remedies." Since Ms. Britton explicitly directs the court not to consider her wrongful termination claims, these claims are dismissed. See Thomas v. EDI Specialists, Inc., 437 Mass. 536, 540, 773 N.E.2d 415 (2002) (explaining that the legislature has a preference for resolving c. 151B proceedings at the administrative level).
To the extent Ms. Britton argues that the defendants' termination of her employment with CCPN violated an established public policy, this argument fails. The Brittons' complaint alleges generally that the defendants terminated Ms. Britton and failed to give her adequate severance pay because of her gender and/or race. These classes are explicitly protected under G.L.c. 151B, § 4, and therefore, Ms. Britton is foreclosed from bringing such an action under the common law. Meeley, 19 Mass.App.Ct. at 313, 473 N.E.2d 1160 (" We think that where, as here, there is a comprehensive remedial statute, the creation of a new common law action based on the public policy expressed in that statute would interfere with that remedial scheme").
B. Athena, Dr. Callum, Mr. Cady, Mr. Mertz, Ms. Moran and Navigant
Ms. Britton's wrongful termination claim must be dismissed as to these parties because none of these parties employed Ms. Britton. A prerequisite to bringing a wrongful termination claim is that the defendant actually employed the plaintiff. See DiLuca v. Communications & Power Indus., 2003 LEXIS 224 at *22-23 (Mass.Super.2003) (" To succeed on a wrongful termination claim on any basis, one must be terminated by his or her employer, or suffer a constructive discharge"), citing Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 149, 533 N.E.2d 1368 (1989).
III. Intentional Infliction of Emotional Distress
To prevail on a claim for intentional infliction of emotional distress, " a plaintiff must show (1) that the defendant intended to cause, or should have known that his conduct would cause, emotional distress; (2) that the defendant's conduct was extreme and outrageous; (3) that the defendant's conduct caused the plaintiff's distress; and (4) that the plaintiff suffered severe distress." Sena v. Commonwealth, 417 Mass. 250, 263-64, 629 N.E.2d 986 (1994), citing Agis v. Howard Johnson Co., 371 Mass. 140, 144-45, 355 N.E.2d 315 (1976). It is well settled in the Commonwealth that " extreme and outrageous" conduct is conduct that is " beyond all bounds of decency and ... utterly intolerable in a civilized community." Sena, 417 Mass. at 264, 629 N.E.2d 986 (citations and internal quotation marks omitted).
A. CCPN, Dr. Callum, Mr. Mertz and Ms. Moran
As an initial matter, the Workers' Compensation Act (the " Act") bars Ms. Britton's claims against CCPN, Dr. Callum, Mr. Mertz and Ms. Moran. The Act provides a " uniform, statutory remedy" for workers injured during the course of employment. Green v. Wyman-Gordon Co., 422 Mass. 551, 559-60, 664 N.E.2d 808 (1996), see Saab v. Massachusetts CVS Pharmacy, LLC, 452 Mass. 564, 566-67, 896 N.E.2d 615 (2008) (explaining that one of the purposes of the Act is to enable employees injured during the course of their employment to receive predictable compensation for their injuries). Pursuant to these goals, the Act bars common-law actions where (1) the plaintiff was an employee; (2) her personal injury is one that falls within the meaning of the Act; and (3) the injury arose out of and in the course of the plaintiff's employment. Green, 422 Mass. at 558, 664 N.E.2d 808, citing G.L.c. 152, § 26 and Foley v. Polaroid Corp., 381 Mass. 545, 548-49, 413 N.E.2d 711 (1980).
The Act " is the exclusive remedy against ... coemployees who commit tortious acts within the course of their employment and in furtherance of the employer's interest." Fredette v. Simpson, 440 Mass. 263, 266, 797 N.E.2d 899 (2003). An action happens within the " course of employment" if " at the time of the injury, the coemployee acted in some way related to his or her employment." Id. at 267, 797 N.E.2d 899. So long as one significant purpose of the co-employee's action is related to the employment, an employee's action falls within the course of employment for purposes of the Act. Id. at 266-67, 797 N.E.2d 899.
Here, CCPN employed Ms. Britton, and her alleged emotional distress qualifies as an " injury" under the Act. Anzalone v. Massachusetts Bay Transp. Auth., 403 Mass. 119, 124, 526 N.E.2d 246 (1988) (" [A] suit for an intentional tort in the course of the employment relationship is barred by the exclusivity portion of the [Act]"); see G.L.c. 152, § 1(7A) (" Personal injuries shall include ... emotional disabilities ... where the predominant contributing cause of such disability is an event or series of events occurring within any employment"). Ms. Britton's alleged injuries occurred as a result of her working relationship with CCPN and its employees involving work-related matters, such as Ms. Britton's work as the Executive Director of Practice Management. Therefore, Ms. Britton's alleged injuries occurred within the course of her employment at CCPN. Fredette, 440 Mass. at 266-67, 797 N.E.2d 899.
Likewise, Dr. Callum, Mr. Mertz and Ms. Moran's alleged actions occurred within Ms. Britton's course of employment barring Ms. Britton's emotional distress claim. To be sure, although the Brittons allege that Dr. Callum, Mr. Mertz and Ms. Moran acted to undermine Ms. Britton's work performance and promote Ms. Moran's stature within the organization, the complaint also establishes that these defendants and Ms. Britton were performing the functions of their respective positions at CCPN.
Assuming, arguendo, that the Act does not bar Ms. Britton's emotional distress claim against these defendants, Ms. Britton has still failed to plead a prima facie case of emotional distress against these defendants. Although Ms. Britton alleges that Ms. Moran " bullied" Ms. Britton in the work place, such bullying does not rise to the level of " extreme and outrageous" behavior. Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 466, 681 N.E.2d 1189 (1997) (explaining that it is insufficient to establish liability under emotional distress on " petty oppressions"). Likewise, Ms. Britton alleges that Mr. Mertz sent her hostile and negative emails and that he enabled Ms. Moran's undermining behavior. This conduct, while at most could, in the light most favorable to Ms. Britton constitute harassment, does not constitute " extreme and outrageous behavior." Mello v. Stop & Shop Cos., 402 Mass. 555, 563, 524 N.E.2d 105 (1988) (finding that the plaintiff failed to make an argument supporting evidence that the defendant engaged in any conduct warranting liability for emotional distress); Mackenzie v. AIDS Support Grp. of Cape Cod, 2006 LEXIS 347 (Mass.Super.2006) (dismissing an emotional distress claim because, although the plaintiffs alleged a pattern of conduct that could possibly amount to harassment, they failed to allege how this conduct was extreme and outrageous or beyond all possible bounds of decency). Ms. Moran and Mr. Mertz's sexual relationship also falls short of establishing an emotional distress claim because Ms. Britton has not argued that Ms. Moran or Mr. Mertz intended to cause, or should have known that their relationship would cause, Ms. Britton to experience emotional distress. Sena, 417 Mass. at 263-64, 629 N.E.2d 986. The emotional distress claim is even more attenuated against Dr. Callum because Ms. Britton has not alleged any specific facts establishing how his actions constitute extreme and outrageous behavior.
B. Athena and Mr. Cady
Ms. Britton does not sufficiently allege that Athena or Mr. Cady's conduct was extreme and outrageous. Indeed, most of her emotional distress allegations are conclusory; Ms. Britton simply alleges that the defendants' " actions were extreme and outrageous" and the defendants " intended to inflict severe emotional distress upon [Ms. Britton], and she continues to suffer severe emotional distress." The particularized facts Ms. Britton does allege, i.e . that Mr. Cady said that Ms. Britton " had to be fired or else the Athena [I]mplementation would be a disaster, " falls woefully short of what a prima facie emotional distress case requires. Compare Agis, 371 Mass. at 145, 355 N.E.2d 315 (holding motion to dismiss not proper where the emotional distress claim involved a manager firing employees in alphabetical order in effort to ascertain an employee's confession); Vittands v. Sudduth, 49 Mass.App.Ct. 401, 411, 730 N.E.2d 325 (2000) (noting that behavior " persisting over many years" did not warrant summary judgment for the defendant on an emotional distress claim). At best, Mr. Cady's statements could be construed as insults bearing upon Ms. Britton's work performance, which do not support a prima facie emotional distress claim. Roman v. Trustees of Tufts Coll., 461 Mass. 707, 718, 964 N.E.2d 331 (2012) (explaining that liability for extreme and outrageous conduct " cannot be predicated upon mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities"), quoting Foley, 400 Mass. at 99, 508 N.E.2d 72 and Restatement (Second ) of Torts § 46 cmt. d (1965).
C. Navigant
The complaint lacks any allegation that Navigant intentionally inflicted emotional distress upon Ms. Britton. To the extent the Brittons seek to hold Navigant liable because of Mr. Mertz's purported actions, this argument fails because as described above, Ms. Britton's emotional distress claim against Mr. Mertz is barred by the exclusivity portion of the Act.
IV. Breach of Contract
To survive a motion to dismiss on a breach of contract claim, the plaintiff must establish (1) an oral or written agreement, express or implied; (2) for valid consideration; (3) performance or its equivalent by the plaintiff; (4) breach by the defendant; and (5) damage to the plaintiff. See Singarella v. Boston, 342 Mass. 385, 387, 173 N.E.2d 290 (1961).
A. CCPN
Ms. Britton bases her breach of contract theory against CCPN upon its employment handbook, arguing it created a contract. Massachusetts courts have held that an employee handbook or manual may be binding on the issuing employer as an express or implied contract under certain circumstances. See O'Brien v. New England Tel. & Tel. Co., 422 Mass. 686, 691, 664 N.E.2d 843 (1996). An implied contract does not exist when: (1) the employer retains the right to unilaterally modify the manual's terms; (2) the manual provides that it is merely for " guidance" as to the employer's policies; (3) there is no negotiation between the employer and the employee regarding the terms of the manual; (4) the manual states no term of employment; (5) the employer calls no special attention to the manual; and (6) the employee does not sign or manifest his or her assent to the manual or acknowledge that he or she understood its terms. Jackson v. Action for Boston Cmty. Dev., Inc., 403 Mass. 8, 14-15, 525 N.E.2d 411 (1988); see also Terravecchia v. Fleet Bank, 22 Mass. L. Rptr. 314, 316 (Mass.Super.2007) (interpreting Jackson ).
Here, Ms. Britton has not argued that she and CCPN had an express employment contract, nor has Ms. Britton presented facts refuting any of the above-listed factors. The Brittons also failed to attach the employment manual to their complaint, leaving the court to refer to the defendants' attachment to its motion to dismiss for a copy of the employment manual. Given the lack of facts supporting the proposition that the employment manual constituted a contract between Ms. Britton and CCPN, Count III must be dismissed. Schaer, 432 Mass. at 477, 735 N.E.2d 373 (" [W]e do not accept legal conclusions cast in the form of factual allegations" when evaluating motions to dismiss).
B. Athena, Dr. Callum, Mr. Cady, Mr. Mertz, Ms. Moran and Navigant
Ms. Britton does not allege that these defendants entered into an agreement with Ms. Britton and, therefore, the breach of contract claim against them fails. Mietka v. C & S Distribs. Corp., 1999 Mass.App.Div. 173, 173-74 (Mass.App.Div.1999) (" Based upon the evidence before the court it appears that Appellant was not a party to the contract and, as such, cannot be held liable for breach of contract").
V. Civil Conspiracy
Civil conspiracy " derives from ‘ concerted action, ’ whereby liability is imposed on one individual for the tort of another." Kurker v. Hill, 44 Mass.App.Ct. 184, 188, 689 N.E.2d 833 (1998), quoting Aetna Cas. Sur. Co. v. P & B Autobody, 43 F.3d 1546, 1564 (1st Cir.1994). To present a prima facie case for " concerted action" conspiracy, the plaintiff must prove: (1) a common plan of the defendants; (2) to commit a tortious act; (3) where the participants know of the plan and its purpose; and (4) the participants take affirmative steps to encourage the achievement of the result. Id. at 189, quoting Stock v. Fife, 13 Mass.App.Ct. 75, 82, 430 N.E.2d 845 n .10 (1982). This type of civil conspiracy is " akin to a theory of common law joint liability in tort." Aetna Cas. Sur. Co., 43 F.3d at 1564.
Massachusetts recognizes two types of civil conspiracy. Kurker, 44 Mass.App.Ct. at 188, 689 N.E.2d 833. One type of civil conspiracy requires the plaintiff to " allege that defendants, acting in unison, had some peculiar power of coercion over plaintiff that they would not have had if they had been acting independently." Aetna Cas. Sur. Co., 43 F.3d at 1564, quoting Jurgens v. Abraham, 616 F.Supp. 1381, 1386 (D.Mass.1985). Although Ms. Britton failed to specify which type of civil conspiracy took place, viewing the allegations as a whole, the harm suffered by Ms. Britton cannot reasonably be said to derive from the particular number or combination of defendants; rather, the harm is caused by the underlying tortious conduct allegedly amounting to defamation or intentional interference with advantageous contractual relations. Thus, the Brittons' complaint fails to state a claim for this type of civil conspiracy.
Ms. Britton alleges two distinct claims for civil conspiracy: one for defamation and one for intentional interference with contractual relations. Here, Ms. Button cannot successfully allege either underlying tort, as discussed below, and therefore, her civil conspiracy claim fails to state a claim upon which relief can be granted.
A. Defamation
A defamation action affords a remedy for damage to the reputation of the injured party. HipSaver, Inc. v. Kiel, 464 Mass. 517, 522, 984 N.E.2d 755 (2013). A plaintiff alleging defamation must establish: (1) the defendant made a statement, concerning the plaintiff, to a third party; (2) the statement could damage the plaintiff's reputation in the community; (3) the defendant was at fault in making the statement; and (4) the statement either caused the plaintiff economic loss or is actionable without proof of economic loss, such as a statement that may prejudice the plaintiff's profession. Ravnikar v. Bogojavlensky, 438 Mass. 627, 629-30 and n. 3, 782 N.E.2d 508 (2003).
The statement may be published in writing (in which case it is designated as libel), or orally (in which case it is designated as slander).
Statements of opinion based upon disclosed or non-defamatory facts cannot form the basis of a defamation claim, even if the opinion is unreasonable or derogatory. Cole v. Westinghouse Broad. Co., Inc., 386 Mass. 303, 308-09, 435 N.E.2d 1021 (1982). In deciding whether statements can be reasonably understood as fact or opinion, " the test to be applied ... requires that the court examine the statement in its totality in the context in which it was uttered or published. The court must consider all the words used, not merely a particular phrase or sentence. In addition, the court must give weight to cautionary terms used by the person publishing the statement. Finally, the court must consider all of the circumstances surrounding the statement, including the medium by which the statement is disseminated and the audience to which it is published." Id. at 309, 435 N.E.2d 1021, quoting Information Control Corp. v. Genesis One Computer Corp., 611 F.2d 781, 784 (9th Cir.1980). The determination as to whether a statement is fact or opinion is a question of law. Cole, 386 Mass. at 309, 435 N.E.2d 1021.
1. Athena and Mr. Cady
Ms. Britton alleges that Mr. Cady made the following defamatory statements: (1) he told Dr. Callum on August 4, 2009 that Ms. Britton had to be fired " or else the [A]thena [I]mplementation would be a disaster"; (2) he sent an email with the same quotation on August 6, 2009; and (3) Dr. Callum informed Ms. Britton on the date of her termination that Mr. Cady " implored" him to make a change to who was leading the front end of the Athena Implementation or the project would be a disaster.
These allegations do not establish a prima facie case for defamation because they are merely Mr. Cady's opinion that Ms. Britton was not capable of running the Athena Implementation project. Mr. Cady limited the number of people to whom he expressed his concern about Ms. Britton's involvement with the Athena Implementation and Ms. Britton does not allege that Mr. Cady widely disseminated such concerns. Cole, 386 Mass. at 308-09, 435 N.E.2d 1021 (explaining that the court must consider the statement in its totality, the context in which the statement was uttered and consider the audience in which the statement was published); Dietz v. Bytex Corp., 2 Mass. L. Rptr. 41, 43 (Mass.Super.1994) (" Subjective assessments of an employee's job performance made by managers do not give rise to any actionable defamation claim").
2. Mr. Mertz and Ms. Moran
The complaint does not contain any allegations of false, precise statements made by Mr. Mertz or Ms. Moran, but only asserts generalized and conclusory allegations that Ms. Britton " received accusatory and inaccurate emails from [Mr. Mertz], " that Ms. Britton " spent considerable time refuting false allegations from [Mr. Mertz] that clearly came from [Ms. Moran]" and that they made " comments that shed false light upon [Ms. Britton's] stellar performance."
To the extent Ms. Britton claims that Mr. Mertz or Ms. Moran made statements impugning her record as an employee, " [s]tatements as to whether a co-worker is incompetent, uncooperative, and unproductive are expressions of opinion" and therefore, cannot support a claim for defamation. See Battenfield v. Harvard Univ., 1 Mass. L. Rptr. 75, 79 (Mass.Super.1993). The complaint is devoid of any description of the means or approximate dates of publication of such statements or who received the statements purportedly made by Mr. Mertz or Ms. Moran. The Brittons have also failed to identify the individuals who heard the alleged statements made by Mr. Mertz or Ms. Moran and thus, the defamation claim must be dismissed. Ravnikar, 438 Mass. at 629-30 & n. 3, 782 N.E.2d 508 (explaining that one of the elements of defamation is that the defendant made a statement, concerning the plaintiff, to a third party).
3. Dr. Callum
Ms. Britton does not allege Dr. Callum made any defamatory statements concerning her to a third party. Ms. Britton solely alleges that Dr. Callum repeated Mr. Cady's statements, which as discussed above, were merely opinion and not actionable on a defamation claim.
4. CCPN and Navigant
To the extent that Ms. Britton argues CCPN and Navigant are liable for defamation as a result of their employees' statements, this argument fails because, as explained above, Ms. Britton has not sufficiently pled a prima facie case for defamation against Dr. Callum, Mr. Mertz or Ms. Moran.
B. Intentional Interference with Advantageous Contractual Relations
The tort of intentional interference with advantageous relations " protects a plaintiff's present and future economic interests from wrongful interference." Blackstone v. Cashman, 448 Mass. 255, 259, 860 N.E.2d 7 (2007). To state a claim for intentional interference with advantageous contractual relations, " a plaintiff must prove that (1) he had an advantageous relationship with a third party ( e.g., a present or prospective contract or employment relationship); (2) the defendant knowingly induced a breaking of the relationship; (3) the defendant's interference with the relationship, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant's actions." Id. at 260, 860 N.E.2d 7. " Where the defendant is a corporate official acting in the scope of his corporate responsibilities, a plaintiff has a heightened burden of showing the improper motive or means constituted ‘ actual malice, ’ that is, ‘ a spiteful, malignant purpose, unrelated to the legitimate corporate interest.’ " Psy-Ed Corp. v. Klein, 459 Mass. 697, 716, 947 N.E.2d 520 (2011), quoting Blackstone, 448 Mass. at 260-61, 860 N.E.2d 7.
1. Athena & Mr. Cady
Here, Ms. Britton does not assert any facts establishing that Athena or Mr. Cady " knowingly induced" CCPN to break the employment relationship between Ms. Britton and CCPN. She only argues that Mr. Cady was " brought on board" by the other defendants to participate in their alleged scheme to terminate Ms. Britton, and that Mr. Cady agreed to subsequently make false statements regarding Ms. Britton's performance. These allegations are legally insufficient to support a claim for intentional interference with advantageous contractual relations and therefore must be dismissed. See Harvard Crimson, Inc., 445 Mass. at 748, 840 N.E.2d 518 (noting that the purpose of a motion to dismiss is to " permit [the] prompt resolution of a case where the allegations in the complaint clearly demonstrate that the plaintiff's claim is legally insufficient").
2. Dr. Callum, Mr. Mertz and Ms. Moran
Ms. Britton has not sufficiently alleged that Dr. Callum, Mr. Mertz or Ms. Moran's actions arose out of actual malice and were " entirely malevolent and unrelated to any legitimate corporate interest." Brewster Wallcovering Co. v. Blue Mountain Wallcoverings, Inc., 68 Mass.App.Ct. 582, 609, 864 N.E.2d 518 (2007). Indeed, she merely alleges that the defendants " interfered by improper means, i .e. lies" to effect the termination of her employment. Such labels and conclusions, without more, is insufficient to survive a motion to dismiss. See Harvard Crimson, Inc., 445 Mass. at 748, 840 N.E.2d 518.
3. CCPN and Navigant
To the extent that Ms. Britton argues CCPN and Navigant are liable for intentional interference with advantageous contractual relations as a result of their employees' statements, this argument fails because, as explained above, Ms. Britton has not sufficiently pled a prima facie case for intentional interference with advantageous contractual relations against Dr. Callum, Mr. Mertz or Ms. Moran.
VI. Loss of Support and Loss of Society
Loss of consortium is the loss of support and society of a spouse, including love, affection, companionship, society, comfort, services and sexual intercourse. See Agis, 371 Mass. at 146, 355 N.E.2d 315. As a general rule, a claim for loss of consortium requires proof of a tortious act that caused the claimant's spouse personal injury. See id. at 146-47, 355 N.E.2d 315. Although a claim for loss of consortium is independent of the injured spouse's cause of action, the injured spouse must have a viable claim for the loss of consortium claim to survive a motion to dismiss. See Sena, 417 Mass. at 264-65, 629 N.E.2d 986 (" Although we have determined that a claim for loss of consortium is independent of the spouse's cause of action ... we have not repudiated the implicit prerequisite that the injured spouse have a viable claim"); Feltch v. General Rental Co., 383 Mass. 603, 607-08, 421 N.E.2d 67 (1981) (recognizing a loss of consortium claim as an independent cause of action).
Since Ms. Britton's claims are dismissed as a matter of law, Mr. Britton's loss of consortium claim must also be dismissed. See Short v. Burlington, 11 Mass.App.Ct. 909, 910, 414 N.E.2d 1035 (1981) (holding that a wife's claim for loss of consortium must fail " because it is entirely derivative and has no existence apart from a viable claim of the other spouse founded on personal injury").
VII. Steward
All of the Brittons' claims against Steward must also be dismissed. Generally, " when one company purchases the assets of another, the purchaser does not thereby acquire the debts and liabilities of the seller" unless the purchaser explicitly or impliedly agrees to assume the liabilities of the seller, the transaction amounts to a de facto merger, or the purchasing corporation is " a mere continuation" of the selling corporation. McCarthy v. Litton Indus., Inc., 410 Mass. 15, 21, 570 N.E.2d 1008 (1997), quoting Guzman v. Mrm/Elgin, 409 Mass. 563, 566, 567 N.E.2d 929 (1991).
The Brittons do not sufficiently explain why the general rule of nonliability of a successor corporation does not apply in these circumstances. The Brittons simply state that the Asset and Purchase Agreement between CCPN and Steward is a " de facto merger or a mere continuation of [CCPN] ... which will make the Steward entities liable for our damages under Massachusetts Law." But here, CCPN and Steward contracted to exclude certain liabilities, such as " all liabilities arising from any violation of Law by [CCPN]." This is not a case where CCPN carried on under the guise of Steward; to the contrary, CCPN and its affiliates continued to exist after the transaction as their own separate entities. McCarthy, 410 Mass. at 22, 570 N.E.2d 1008 (" The purchaser of corporate assets, therefore, would not be considered to be the alter ego of the seller where the seller continues to exist after the transfer of its assets"); Rivera v. Club Caravan, Inc., 77 Mass.App.Ct. 17, 24, 928 N.E.2d 348 (2010) (holding successor liability did not exist where there was no proof that the successor expressly or impliedly assumed the other company's liabilities).
VIII. The Brittons' Cross Motions
The Brittons filed cross motions to strike the defendants' motions to dismiss and for an entry of default judgment, arguing that the motions to dismiss were untimely. Generally, a party shall serve a responsive pleading within twenty days after service, unless otherwise directed by order of the court. Mass.R.Civ.P. 12(a). Although parties may not " with impunity, ignore, flout, or circumvent the Rule 12(a)(1) twenty-day deadline for filing an answer" the trial court has the discretion to determine whether default judgment is the appropriate sanction for untimely filing. Floyd v. Owens, 2009 Mass.App.Div. 219 (Mass.App.Div.2009), citing Evangelidis v. Cuevas, 2008 Mass.App.Div. 88, 90 (2008); cf. Croteau v. Swansea Lounge, Inc., 402 Mass. 419, 422-23, 522 N.E.2d 967 (1988) (recognizing the discretion of trial court in timely filing matters).
Here, there was legitimate confusion among the parties as to the date the Brittons effectuated service. This court has also allowed numerous emergency motions for extensions of time in favor of the Brittons. The Brittons allege that the defendants were untimely by one day; this court sees no reason to enter default judgment against the defendants or to strike the defendants' motions to dismiss based upon a one-day violation of Rule 12(a)(1). Cicchese v. Tape Time Corp., 28 Mass.App.Ct. 72, 74, 546 N.E.2d 384 (Mass.App.Ct.1989) (explaining that default is an " extreme sanction, ‘ reluctantly imposed’ "), quoting Kenney v. Rust, 17 Mass.App.Ct. 699, 703, 462 N.E.2d 333 (1984).
ORDER
For these reasons, the defendants' motions to dismiss Counts I, II, III, IV and V are ALLOWED and the plaintiffs' cross motions to strike defendants' untimely motions to dismiss and for entry of default judgment are DENIED.
The complaint is hereby DISMISSED; judgment shall enter for the defendants forthwith.