Dobelle v. Flynn

• Decision Date: 09 April 2014
• Docket Number: Civil Action No. 13–30177–KPN.
• Court: U.S. District Court — District of Massachusetts
• Parties: Dr. Evan S. DOBELLE, Plaintiff v. John (“Jack”) FLYNN III, Individually, Kevin R. Queenin, Individually, Richard Freeland, Individually, Rubin & Rudman LLP, James B. Cox, Elizabeth D. Scheibel, Individually, and O'Connor & Drew, P.C., Defendants.

12 F.Supp.3d 274

Dr. Evan S. DOBELLE, Plaintiff

v.John (“Jack”) FLYNN III, Individually, Kevin R. Queenin, Individually, Richard Freeland, Individually, Rubin & Rudman LLP, James B. Cox, Elizabeth D. Scheibel, Individually, and O'Connor & Drew, P.C., Defendants.

Civil Action No. 13–30177–KPN.

United States District Court, D. Massachusetts.

Signed April 9, 2014.

Daniel A. Schwartz, Jared S. Baumgart, Katherine Romel, Ross H. Garber, Sara J. Goldfarb, Shipman & Goodwin LLP, Hartford, CT, Darrell Mook, Donovan Hatem, LLP, Boston, MA, for Plaintiff.

Doris H. White, Attorney General's Office, Helene Kazanjian, Massachusetts Attorney General's Office, Jeffrey T. Collins, Office of the Attorney General, Michael J. Stone, Timothy M. Pomarole, Peabody & Arnold LLP, Jacqueline L. Allen, Michael J. Mascis, Law Offices of Jacqueline L. Allen, Boston, MA, for Defendants.

MEMORANDUM AND ORDER REGARDING DEFENDANTS' MOTIONS TO DISMISS (Document Nos. 31, 33, and 34)

KENNETH P. NEIMAN, United States Magistrate Judge.

Dr. Evan S. Dobelle (“Plaintiff”) brings this action against the following individuals and entities connected directly or indirectly with Westfield State University (“WSU” or “University”): John (“Jack”) Flynn III, Kevin R. Queenin, Richard Freeland, Rubin & Rudman LLP, James B. Cox, Elizabeth Scheibel, and O'Connor & Drew, P.C. (together, “Defendants”). The specific roles these defendants play in this action are described in detail below. In essence, Plaintiff alleges that he was constructively discharged from his position as President of WSU following an unwarranted and improper secret investigation into his use of University credit cards as well as undue outside pressure. More specifically, Plaintiff asserts the following claims in his amended complaint: tortious interference with a contract against all Defendants (Count I); violations of his First Amendment and Due Process rights pursuant to 42 U.S.C. § 1983 against Flynn, Freeland, Scheibel and Queenin (Count II); negligent misrepresentation against O'Connor & Drew, P.C. (Count III); defamation against Cox and Rubin & Rudman LLP (Count IV); and civil conspiracy against all Defendants (Count V). Among them, Defendants have filed three separate motions to dismiss.¹

The parties have consented to this court's jurisdiction. See 28 U.S.C. § 636(c) ; Fed.R.Civ.P. 73. For the reasons which follow, the court will grant Defendants' motions in part and deny them in part. As a result of this ruling, Defendants Rubin & Rudman LLP, James B. Cox, and O'Connor & Drew, P.C., will be dismissed from the case and the remaining defendants—Flynn, Queenin, Freeland, and Scheibel (“State Defendants”)—will answer to all counts against them except part of Count II. In effect, the case that will go forward against the State Defendants will center on Plaintiff's claim against them for tortious interference with his contractual relations, together with some constitutional overtones.

I. Standard of Review

When faced with a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must accept the allegations of the complaint as true, drawing all reasonable inferences in favor of the plaintiff. See Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) ; Coyne v. City of Somerville, 972 F.2d 440, 443 (1st Cir.1992). Recently, the Supreme Court made clear that, under Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), a complaint that states a plausible claim for relief, on its face, will a survive a motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The Court explained that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

II. Background

The following facts come from Plaintiff's amended complaint and are stated in a light most favorable to him. See Young v. Lepone, 305 F.3d 1, 8 (1st Cir.2002). In December of 2007, WSU hired Plaintiff, who had extensive experience as a president of various colleges and universities, as President of the University and a Professor of Political Science. (Plaintiff's Amended Complaint (“Compl.” ¶¶ 39–44, 49–50.)) Plaintiff and WSU entered into an employment agreement on December 21, 2007, which provided, in part, that the University “will bear any costs reasonably incurred by the President in connection with activities that pertain to the business” of the University, including “[a]ctivities undertaken for the purpose of ... promoting support” for the University. (Id. ¶ 50–51; Exhibit A (attached to Compl.).) The contract did not authorize WSU to suspend Plaintiff, either with or without pay. (Id. ¶ 52.)

WSU immediately benefitted across a number fronts from Plaintiff's performance as President. (Id. ¶¶ 54–69.) In particular, Plaintiff helped expand WSU's international focus and “organized several trips designed to create opportunities for international travel for students, implement international programs and exchanges, and attract foreign students.” (Id. ¶¶ 57–59.) One of these trips was to Asia, which Plaintiff attended along with other individuals affiliated with WSU. (Id. ¶ 58.) The Westfield State Foundation (“Foundation”), a separate “tax-exempt 501(c)(3) organization that raises funds and manages charitable gifts in support of WSU activities” (id. ¶¶ 70–71), collaborated with Plaintiff in many of his efforts to strengthen the University, including the trip to Asia. (Id. ¶¶ 4, 58.)

In 2010, the Foundation's independent auditor determined that it was “at risk of facing a ‘going concern’ problem because (1) the Foundation used funds from donor-restricted accounts for purposes outside the scope of the donor restrictions and (2) because an understanding between the Foundation and the City of Westfield regarding the abatement of taxes for a Foundation property was invalid.” (Id. ¶ 73.) The accounting issue was resolved, however, when WSU transferred funds to it. (Id. ¶ 74.) The decision to do so “was evaluated and sanctioned by a team of internal and external officials, including then-University Vice President of Administration and Finance Gerald W. Hays, then-Board Chair Queenin, the University's independent auditor, PriceWaterhouseCoopers, [Plaintiff], and University counsel Rubin & Rudman.” (Id. )

Also in 2010, Plaintiff realized that his “practice of charging personal expenses incurred in connection with University travel to University credit cards, and subsequently reimbursing the University for those charges, was not proper procedure under then-applicable University policies.”

(Id. ¶ 76.) Accordingly, in October of 2010, Plaintiff returned both his Foundation and University credit cards and reported his improper reimbursement practices to then-Chair of the WSU Board of Trustees, Kevin Queenin, and University legal counsel, Mark Peters, an attorney at Rubin & Rudman. (Id. ¶ 78.) Plaintiff asked Peters “whether he ‘should lose sleep over this,’ ” and Peters responded that he should not. (Id. ¶ 79.)

Plaintiff and Queenin then “commissioned University counsel Rubin & Rudman to conduct a comprehensive review of ‘credit card use, expense reimbursements and like transactions in connection with certain international travel.’ ” (Id. ¶ 80.) Rubin & Rudman found, in a November of 2011 report:

(a) that there was “no evidence that any of the documented travel was for other than University purposes,” (b) that “[Plaintiff's] reimbursement of the University for personal expenses appears generally to be made promptly after the [credit card] charge in question is identified,” (c) that although University policy prohibits the use of a University-issued credit card for personal expenses, “I am informed that the University's policy ... is not enforced with strict literalness,” and (d) with respect to whether “any matter pertaining to the international travel ... might be thought to constitute a violation” of [the State Ethics Statute], “I think there is none.”

(Id. ¶ 82.) On November 28, 2011, counsel provided a copy of the report to Plaintiff and Queenin, who shared the information with John (“Jack”) Flynn III, another member of the WSU Board of Trustees. (Id. ¶ 83.) Queenin “did not consider, let alone implement, disciplinary action against [Plaintiff].” (Id. ¶ 86.)

On June 14, 2012, Flynn was named Chair of the WSU Board of Trustees. (Id. ¶ 93.) In early August of 2012, Flynn received a package of financial documents related to Plaintiff's travel and reimbursements from the then-Acting Vice President of Administration & Finance, who had received it from an unknown internal source. (Id. ¶¶ 95–96.) Rather than referring the matter to the Board—which Plaintiff alleges he was required to do by WSU by-laws—or even informing the Board, Flynn instead began his own investigation. (Id. ¶¶ 98–99, 101.) In September of 2012, Flynn called what Plaintiff describes as an “unauthorized” meeting of the Executive Committee of the WSU Board of Trustees, attended by Queenin, Elizabeth Scheibel (another member of the Board) and Peters, but not Plaintiff. (Id. ¶ 103.) At the meeting, it was decided that O'Connor & Drew P.C. (“O & D”), the University's auditors, “should be engaged to review the documents provided to Flynn to determine whether they would affect their findings as expressed in the annual audit of the University's finances.” (Id. ¶ 103.) Neither Flynn nor Rubin & Rudman informed O & D of the prior review of similar issues in November of 2011. (Id. ¶ 105.) Moreover, Plaintiff alleges, O & D's review was undertaken even though “there was no evidence of fraud, or even suspicious behavior, identified in the annual audits conducted during [Plaintiff's] tenure, at least two of which were conducted by O & D.” (Id. ¶ 106.)²

On October 22, 2012, an engagement letter with O & D was executed, which estimated that its review should be completed within...