Arbogast v. Pfizer
| Decision Date | 09 February 2023 |
| Docket Number | 22-cv-10156-DJC |
| Court | U.S. District Court — District of Massachusetts |
| Parties | BRENT ANDREW BRACKETT ARBOGAST, Plaintiff, v. PFIZER; SHEEHAN, PHINNEY, BASS & GREEN, P.A.; JOHN BRACK; KERRI LEWANDOWSKI; LEIGH COWDRICK; MICHAEL J. LAMBERT; THOMAS M. CLOSSON, Defendants. |
Plaintiff Brent Arbogast (“Arbogast”) has filed this lawsuit pro se against Defendants Pfizer, John Brack, Kerri Lewandowski and Leigh Cowdrick (collectively “Wyeth Defendants”), Thomas Closson (“Closson”), Michael Lambert (“Lambert”) and the law firm Sheehan, Phinney Bass & Green, P.A. (“Sheehan P.A.”) alleging various claims under the Racketeer Influenced and Corrupt Organizations Act (“RICO”) (Counts I-VI), a claim under 42 U.S.C. § 1983 against Closson, Lambert and Sheehan (Count VII), fraudulent inducement against Pfizer, Brack and Cowdrick (Count VIII), fraudulent misrepresentation against Closson, Lambert and Sheehan (Count IX) and against Pfizer and Lewandowski (Count X), a claim under the Massachusetts Civil Rights Act, Mass. Gen. L. c. 12, § 11I, against Pfizer, Closson, Lambert and Sheehan (Count XI) and intentional infliction of emotional distress against all Defendants (Count XII). D. 43. Wyeth Defendants, D. 44, Closson, D. 46, and Lambert and Sheehan P.A., D. 50, have moved to dismiss for failure to state a claim upon which relief can be granted. For the reasons stated below, the Court ALLOWS Wyeth Defendants' motion to dismiss, D. 44, ALLOWS Closson's motion to dismiss, D. 46, and ALLOWS Lambert and Sheehan P.A.'s motion to dismiss, D. 50.
On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6), the Court must determine if the facts alleged “plausibly narrate a claim for relief.” Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (citation omitted). Reading the complaint “as a whole,” the Court must conduct a two-step, context-specific inquiry. Garda-Catalan v. United States, 734 F.3d 100, 103 (1st Cir. 2013). First, the Court must perform a close reading of the claim to distinguish the factual allegations from the conclusory legal allegations contained therein. Id. Factual allegations must be accepted as true, while conclusory legal conclusions are not entitled credit. Id. Second, the Court must determine whether the factual allegations present a “reasonable inference that the defendant is liable for the misconduct alleged.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (citation omitted). In sum, the complaint must provide sufficient factual allegations for the Court to find the claim “plausible on its face.” Garda-Catalan, 734 F.3d at 103 (citation omitted). The Court remains mindful that a pro se plaintiff is entitled to a liberal reading of his allegations, no matter how unartfully pled. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Rodi v. New Eng. Sch. of Law, 389 F.3d 5, 13 (1st Cir. 2004).
The Court draws the following factual allegations from Arbogast's second amended complaint, D. 43, and accepts them as true for purposes of resolving the motions to dismiss.
Arbogast began working at Wyeth Pharmaceuticals (“Wyeth”) in Massachusetts in March 2004. See id. ¶¶ 1, 48, 180. Pfizer is the successor company to Wyeth, while John Brack, Kerri Lewandowski and Leigh Cowdrick worked for Wyeth's human resources department during the relevant period. See id. ¶¶ 5-8. While employed at Wyeth, Arbogast complained that his position was misclassified as being exempt from the overtime compensation requirements of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 213. See id. ¶¶ 12-14, 30-32, 35-38. Wyeth terminated Arbogast from his position on June 30, 2004. Id. ¶¶ 39, 61.
Following his termination, in late 2004, Arbogast sought to bring legal claims against Wyeth and asked Closson to represent him. See id. ¶ 100. Closson initially declined because he was not licensed to practice law in Massachusetts but later agreed to represent Arbogast and “stated that a friend was going to sponsor him so he could practice law in Massachusetts.” Id. As alleged, Closson “persuaded [Arbogast] to assign him control of his legal claims against Wyeth” in March 2005 and “directed [Arbogast] not to communicate with anyone except him regarding the Wyeth issue and to forward him all inquiries regarding the matter.” Id. ¶ 120.
In February 2006, Closson drafted a complaint and contacted the law firm Sheehan PA to serve as local counsel in representing Arbogast in his claims against Wyeth. Id. ¶ 90. Attorney Lambert and Sheehan P.A. filed the complaint in this district on Arbogast's behalf despite Arbogast's allegation that he had not authorized it. Id. ¶¶ 89, 126. That complaint alleged that Wyeth failed to pay Arbogast overtime compensation and retaliated against him by terminating his employment because he complained “about his misclassification as an exempt employee and the corresponding requirement that he continue to work overtime without receiving the additional compensation required by the Fair Labor Standards Act.” Arbogast v. Wyeth, No. 06-cv-10333-PBS, D. 1 ¶¶ 21, 28 (D. Mass. Feb. 23, 2006). Closson provided Arbogast with a copy of the complaint in Closson's office on or around March 21, 2006. D. 43 ¶ 129. Closson also presented Arbogast with a contingent fee agreement, which Arbogast signed. See id. ¶¶ 91, 129.
On or around June 8, 2006, Closson called Arbogast and told him that the Court required him to present a settlement offer to Wyeth. Id. ¶ 136; see Arbogast v. Wyeth, No. 06-cv-10333-PBS, D. 8 (D. Mass. Apr. 19, 2006) (); D. Mass. L.R. 16.1(c) ().[1] Lambert filed a statement in that action certifying that he and Arbogast had conferred about establishing a budget for the full course of litigation and “the resolution of the litigation through the use of alternative dispute resolution programs” and, as alleged by Arborgast, such statement “contained a forgery of [Arbogast]'s signature.” D. 43 ¶¶ 103, 139; see Arbogast v. Wyeth, No. 06-cv-10333-PBS, D. 12 (D. Mass. June 16, 2006). After a scheduling conference, Lambert called Arbogast “urging him to settle his claims because both he and the judge believed they lacked merit and the judge wanted the case settled quickly.” D. 43 ¶ 104. Closson participated in negotiations with Wyeth, including a “court annexed mediation” in Massachusetts that Arbogast also attended. See id. ¶¶ 101, 146; Arbogast v. Wyeth, No. 06-cv-10333-PBS, D. 9/22/06 entry (D. Mass. Sept. 22, 2006) ( “[m]ediation with principals present set for 10/11/2006”); Arbogast v. Wyeth, No. 06-cv-10333-PBS, D. 15 (D. Mass. Oct. 17, 2006) ().
On November 2, 2006, Wyeth served Closson an offer of judgment, which Arbogast alleges was improperly not sent to Lambert, and which Closson withheld from Arbogast. D. 43 ¶ 149. Arbogast met with Closson in his office to discuss settlement in December 2006. Id. ¶ 152.
“Closson informed [Arbogast] that he was fortunate to receive a settlement for his overtime claim because it did not have much merit.” Id. ¶ 208; see id. ¶ 149 (). On January 22, 2007, Lambert filed a stipulation of dismissal that Arbogast alleges that he did not authorize and materially differed from a stipulation to which Arbogast had agreed, namely by stating that both sides paid their own legal fees, which Arbogast alleges was false. Id. ¶¶ 18, 106, 153; see Arbogast v. Wyeth, No. 06-cv-10333-PBS, D. 16 (D. Mass. Jan. 22, 2007). Further, “Closson deceived [Arbogast] into believing [that the stipulation of dismissal] ‘with prejudice' meant prejudice against Wyeth.” D. 43 ¶ 115.
As alleged, in December 2018, Arbogast obtained several documents that he suggests were previously withheld from him, including his Wyeth personnel file, Wyeth's answer to the complaint in the prior action, Wyeth's offer of judgment, initial disclosures filed by Closson on Arbogast's behalf, and a confidential mediation statement prepared by Closson. See, e.g., Id. ¶¶ 33, 61, 112-14, 149. Arbogast, further, alleges that Closson and Lambert previously failed to inform him that the Wage and Hour Division of the United States Department of Labor had investigated Wyeth and determined that Wyeth owed back wages to him as well as one hundred fifty similarly situated individuals. See id. ¶¶ 27, 109, 124. According to Arbogast, such documents and information revealed to him that Wyeth Defendants, Closson, Sheehan PA and Lambert had acted in furtherance of a conspiracy to defraud Arbogast by “unlawfully procuring control of his legal claims against Wyeth” through Closson “with the intention of preventing [Arbogast] from retaining competent legal representation” or “benefitting from cooperating with law enforcement in relation to their investigation and adjudication of Wyeth's illegal labor practices in 2005.” See id. ¶ 87.
Arbogast commenced this action on February 1, 2022, D. 1, and later filed an amended complaint, D. 22. The Court thereafter allowed Defendants' motion for a more definite statement D. 9, and ordered Arbogast to file a complaint in compliance with the Federal Rules of Civil Procedure. D. 34; see D. 37. Arbogast subsequently filed a second amended complaint (“SAC”). D. 43. Wyeth Defen...
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