Alexander v. FUJITSU BUSINESS COM. SYSTEMS

• Decision Date: 24 March 1993
• Docket Number: Civ. No. 92-303-JD.
• Parties: Gary L. ALEXANDER and Yvonne Alexander, v. FUJITSU BUSINESS COMMUNICATION SYSTEMS, INC., Fujitsu America, Inc. and William R. Miller.
• Court: U.S. District Court — District of New Hampshire

818 F. Supp. 462

Gary L. ALEXANDER and Yvonne Alexander, v. FUJITSU BUSINESS COMMUNICATION SYSTEMS, INC., Fujitsu America, Inc. and William R. Miller.

Civ. No. 92-303-JD.

United States District Court, D. New Hampshire.

March 24, 1993.

COPYRIGHT MATERIAL OMITTED

Francis G. Murphy, Jr., Manchester, NH, for plaintiffs.

James P. Bassett, Concord, NH, Warren M. Davison, Baltimore, MD, for defendants.

ORDER

DiCLERICO, Acting Chief Judge.

Plaintiffs Gary L. Alexander ("Mr. Alexander") and Yvonne Alexander ("Ms. Alexander") have filed this action against defendants Fujitsu Business Communications Systems, Inc. ("Fujitsu"), Fujitsu America, Inc. (collectively, the "corporate defendants") and William R. Miller ("Mr. Miller"). Plaintiffs' complaint is in four counts: misrepresentation, intentional interference with Mr. Alexander's employment, violations of the Employee Retirement Income Security Act ("ERISA") and loss of consortium. Plaintiffs have alleged jurisdiction over the corporate defendants in this action pursuant to ERISA, 29 U.S.C.A. §§ 1001 et seq. (West 1985 & Supp.1992) and 28 U.S.C.A. § 1331 (West Supp.1992). Additionally, plaintiffs have alleged jurisdiction over Mr. Miller based on diversity of citizenship. 28 U.S.C.A. § 1332 (West Supp.1992).

The following motions are currently pending before the court: plaintiffs' motion to amend their complaint and defendants' motions to dismiss the action for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). After summarizing the facts of this action, the court considers each motion in turn.

Background

The following allegations are set forth in the complaint. Between June 1967 and April 1989, Mr. Alexander was an employee of GTE. In April 1989, Fujitsu took over control of GTE and transferred Mr. Alexander to its payroll as an employee. Under the terms of its agreement with GTE, Fujitsu gave GTE employees credit for years of service rendered to GTE prior to Fujitsu's takeover. Between November 1989 and August 1990, Mr. Alexander was Fujitsu's service supervisor, construction manager and acting project manager for Fujitsu's Northeast region. In August 1990, Mr. Alexander was named Fujitsu's project manager for the Dartmouth Medical Center project in Lebanon, New Hampshire. Defendant Mr. Miller, Fujitsu's Northeast Region Director, was Mr. Alexander's direct supervisor between November 1989 and December 1990.

In May 1990, Mr. Miller ordered Mr. Alexander to submit enhanced expense statements for claims he had not actually incurred. Mr. Alexander refused to comply with this order at first but ultimately did so after Mr. Miller threatened his job security and his ability to travel frequently to North Carolina to visit his ailing wife. He did not know until after his termination that Mr. Miller had personally profited from his travel expense money. Rather, Mr. Alexander believed that Mr. Miller was authorized to purchase office equipment with the money and was actually purchasing office equipment with it.

On February 8, 1991, Joseph Gartman, Fujitsu's manager of project managers, informed Mr. Alexander that his employment would be terminated because he had submitted erroneous expense statements. Mr. Alexander told Mr. Gartman that he had only reported expenses and trips that Mr. Miller had directed him to report, that Mr. Miller had told him to take the trips, and that Mr. Miller had reviewed, approved and signed the expense statements. Mr. Gartman told Mr. Alexander if he were to write a request that he be given until February 11, 1991 to resign, Mr. Gartman would pursue termination options with the Human Resources Department ("Human Resources"). Mr. Alexander wrote on a memo Mr. Gartman presented to him that he was requesting until February 11 to be given the option of resigning or being terminated but Mr. Gartman did not give him a copy of this memo.

On February 11, Mr. Gartman telephoned Mr. Alexander to inform him that Human Resources was reviewing his situation and that he was still considered to be on the Fujitsu payroll. On February 12, Mr. Gartman informed Mr. Alexander by telephone that his only option was to resign and he would not be laid off nor given any kind of severance package. Mr. Gartman also directed Mr. Alexander to go to Fujitsu's Woburn, Massachusetts office the next morning to fax his resignation letter to company headquarters in Phoenix, Arizona. On the morning of February 13, Mr. Alexander fell on the ice and reinjured his back. His doctor ordered him not to work until at least March 7 because of his injury.

On February 17, Mr. Gartman came to Mr. Alexander's apartment and gave him a letter. The letter had been typed on February 13 but backdated to February 8. The letter stated that Mr. Alexander was being terminated because he had not submitted a letter of resignation. The letter also indicated Mr. Alexander's employment was being terminated because of his misconduct and his abuse of company policy regarding expense statements. Mr. Alexander told Mr. Gartman he considered the termination wrongful and, furthermore, he could not be terminated at the time because he was disabled. Mr. Gartman told him to resolve the issue with officials from Human Resources.

Mr. Alexander spoke with Mike Santora from Human Resources on February 18. Mr. Alexander informed Mr. Santora of his disability and asked that a representative be sent to his residence to meet with him and verify the seriousness of his condition. No one from Human Resources complied with this request. Furthermore, Human Resources, contrary to its established procedure, did not forward paperwork for him to fill out in connection with his entitlement to health and disability benefits. On or about June 26, 1991, after denying Mr. Alexander's last request for reconsideration of his termination, Fujitsu officials told Mr. Alexander he was fired because he was aware another employee — Mr. Miller — was misappropriating funds from Mr. Alexander's travel allowance payments but had failed to report this to Fujitsu management.

Discussion

A. Plaintiffs' Motion to Amend Complaint

Fed.R.Civ.P. 15(a) provides, in relevant part, "a party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served...." Because defendants have filed no responsive pleading, plaintiffs' motion to amend their complaint must be granted as of right.

The term "a responsive pleading" as used in Rule 15(a) must be defined by reference to Rule 7(a), which defines "pleadings" as including only the complaint, the answer, the reply, the answer to a cross-claim, the third-party complaint and answer, and, if ordered by the court, a reply to an answer or a third-party answer. Thus a motion to dismiss is not a "responsive pleading" within the meaning of Rule 15, and pleadings may be amended thereafter, as a matter of course.

3 James W. Moore and Richard D. Freer, Moore's Federal Practice ¶ 15.072 (2d ed. 1992) (footnotes omitted); see also McDonald v. Hall, 579 F.2d 120, 121 (1st Cir. 1978) (citations omitted) ("Neither a motion to dismiss nor one for summary judgment is a responsive pleading for purposes of Rule 15(a)."); cf. Royal Business Group, Inc. v. Realist, Inc., 933 F.2d 1056, 1066 (1st Cir. 1991) (citing Fed.R.Civ.P. 15(a), the court noted "the plaintiffs had the option of filing an amended complaint at any time during the eleven-month period that the motion to dismiss was pending...."). In light of this analysis, the court grants plaintiffs' motion to amend their complaint.

B. Defendants' Motion to Dismiss Plaintiffs' Complaint for Failure to State a Cause of Action

A motion to dismiss under Fed.R.Civ.P. 12(b)(6) is one of limited inquiry, focusing not on "whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Accordingly, the court must take the factual averments contained in the complaint as true, "indulging every reasonable inference helpful to the plaintiff's cause." Garita Hotel Ltd. Partnership v. Ponce Fed. Bank, 958 F.2d 15, 17 (1st Cir.1992); see also Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989). Great specificity is not required to survive a Rule 12(b)(6) motion. "It is enough for a plaintiff to sketch an actionable claim by means of `a generalized statement of facts from which the defendant will be able to frame a responsive pleading.'" Garita, 958 F.2d at 17 (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (1990)). In so doing, however, plaintiff cannot rely on "bald assertions, unsupportable conclusions, and `opprobrious epithets.'" Chongris v. Board of Appeals, 811 F.2d 36, 37 (1st Cir.) (quoting Snowden v. Hughes, 321 U.S. 1, 10, 64 S.Ct. 397, 402, 88 L.Ed. 497 (1944)), cert. denied, 483 U.S. 1021, 107 S.Ct. 3266, 97 L.Ed.2d 765 (1987). 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 plaintiff cannot recover on any viable theory.'" Garita, 958 F.2d at 17 (quoting Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir.1990)).

1. Count 1: Misrepresentation

In count one of the amended complaint plaintiffs charge Mr. Miller with misrepresentation and Fujitsu with vicarious liability for Mr. Miller's alleged misrepresentation. Plaintiffs allege Mr. Miller intentionally represented to Mr. Alexander that Mr. Miller was using travel expense money to buy office equipment and that he had the authority to do so. Plaintiffs further allege Mr. Miller knew or should have known that his representations were false, that Mr. Alexander relied on the accuracy of Mr. Miller's representations, and that as a direct result of Mr. Miller's actions, Mr. Alexander suffered losses. Plaintiffs allege Fujitsu is...