Hickey v. Bon Secours Richmond Health Sys., Civil Action No. 3:12cv691

• Decision Date: 19 December 2012
• Docket Number: Civil Action No. 3:12cv691
• Court: U.S. District Court — Eastern District of Virginia
• Parties: MICHAEL HICKEY, Plaintiff, v. BON SECOURS RICHMOND HEALTH SYSTEM, Defendant.

MICHAEL HICKEY, Plaintiff,

v.BON SECOURS RICHMOND HEALTH SYSTEM, Defendant.

Civil Action No. 3:12cv691

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

Dated: December 19, 2012

MEMORANDUM OPINION

This matter is before the Court on DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT (Docket No. 3) pursuant to Fed. R. Civ. P. 12(b) (6). For the reasons set forth herein, the motion will be denied.

BACKGROUND

For some time before December 2010, plaintiff Michael Hickey ("Hickey") was employed by defendant Bon Secours Richmond Health System ("Bon Secours") as a Physician Assistant. Before December 2010, Hickey typically worked three, twenty-four hour shifts per week, on Tuesday, Wednesday, and Thursday of each week. Hickey concurrently served as a Physician Assistant in the Virginia Army National Guard ("National Guard"). During most of this period, Hickey's position with the National Guard required him to spend at least one weekend per month performinginactive duty for training ("IDT"), during which time he would be unavailable for work at Bon Secours.

Late in 2010, the National Guard increased the IDT training requirement to at least two weekends per month in response to an increase in operational tempo associated with preparations to send two National Guard battalions to Iraq. In early December 2010, Bon Secours also changed Hickey's schedule, announcing a schedule that would require him to work every third weekend.¹ The Complaint alleges that this new work schedule created a conflict with Hickey's National Guard IDT schedule, but does not state the first weekend when such conflict would occur.

On December 8, 2010, in response to the release of the new schedule, Hickey informed Bon Secours that he would not be able to work the weekend schedule because of the conflict with his IDT schedule. Hickey additionally notified Bon Secours that "he would seek other employment, and that he would provide Bon Secours with at least one month's prior notice of his actual resignation." (Compl. ¶ 10.)

On December 20, 2010, Hickey's employment with Bon Secours ended. Whether the ending of Hickey's employment was a termination or the acceptance of a resignation is hotly contested by the parties. Hickey claims that he was terminatedbecause of the scheduling conflict with his National Guard IDT schedule, in violation of the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. §§ 4301 et seq. Bon Secours, however, claims that it merely accepted Hickey's resignation, and that therefore this action should be dismissed for failure to state a claim.

DISCUSSION

I. Standard Of Review

Fed. R. Civ. P. 12(b)(6) permits a party to move for dismissal of a claim if the complaint fails "to state a claim upon which relief can be granted." Fed. R. Civ. P. 8(a)(2) requires "a short and plain statement of the claim" showing that the pleader is entitled to relief. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Courts should assume the veracity of all well-pleaded allegations in a Complaint, and should deny a motion to dismiss where those well-pleaded allegations state a plausible claim for relief. Id. at 679. A claim is "plausible" when the plaintiff pleads facts sufficient to allow the court to draw the reasonable inference that the defendant is liable for thealleged misconduct. Twombly, 550 U.S. at 556. A court should grant a motion to dismiss, however, where the allegations are nothing more than legal conclusions, or where they permit a court to infer no more than a possibility of misconduct. See Iqbal, 556 U.S. at 678-79.

II. Consideration Of Documents Extraneous To The Complaint

Before deciding the motion to dismiss, the Court must first determine whether it can review the documents that the parties have attached to their respective memoranda. (See Def.'s Mem. Exs. A-B, Docket Nos. 4-2 to -3; Pl.'s Opp. Ex. A., Docket No. 6-1) Courts generally may not consider materials outside of the complaint in ruling on a motion to dismiss without converting the motion to one for summary judgment. Fed. R. Civ. P. 12(d). This general rule notwithstanding, the Fourth Circuit has recognized several exceptions, noting that courts may consider "official public records, documents central to plaintiff's claim, and documents sufficiently referred to in the complaint so long as the authenticity of these documents is not disputed." Witthohn v. Fed. Ins. Co., 164 Fed. App'x 395, 396-97 (4th Cir. 2006) (citing Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001)).

As an initial matter, it is clear that the Court cannot consider the Affidavit of Hickey that is attached as Exhibit Ato Hickey's Memorandum in Opposition to Plaintiff's Motion to Dismiss, It requires no citation to authority to determine that this affidavit is clearly not a part of the pleadings and fits none of the recognized exceptions, and that, therefore, Fed. R. Civ. P. 12(d) prohibits its consideration.

A closer question arises in assessing whether the Court can consider the documents attached by Bon Secours to its Memorandum in Support of its Motion to Dismiss. Bon Secours offers two emails authored by Hickey that are purportedly contemporaneous summaries of two meetings that Hickey had with Bon Secours employees. It is clear that these emails are neither official public records nor documents referenced in the Complaint. Thus, the documents may only be considered if they are central to Hickey's claims. Instructive on this matter is the Second Circuit's discussion of what constitutes a document "central to plaintiff's claim" in Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42 (2nd Cir. 1991).

Cortec involved the purchase of "old Cortec Industries," ("old Cortec") which was held by the defendants, by "new Cortec Industries," the plaintiffs. Id. at 44. In their complaint, the plaintiffs contended that the defendants had made "repeated fraudulent or negligent misrepresentations and omissions concerning old Cortec's financial condition, operations and prospectus." Id. at 45 (internal quotation mark omitted).While these claims relied upon several documents, including a Stock Purchase Agreement that contained certain representations and warranties concerning old Cortec's financial status that the plaintiff contended to have been false, the plaintiffs "neglected to attach these papers to, or incorporate them by reference in, the complaint." Id. at 44. When the defendants used those documents in support of their motion to dismiss, the plaintiffs argued that the court could not consider them, but must instead look solely within the four corners of the complaint. Id.

In discussing whether these documents could be considered without converting the motion into one for summary judgment, the Second Circuit noted that

[T]he problem that arises when a court reviews statements extraneous to a complaint generally is the lack of notice to the plaintiff that they may be so considered; it is for that reason—requiring notice so that the party against whom the motion to dismiss is made may respond—that Rule 12(b)(6) motions are ordinarily converted into summary judgment motions. Where plaintiff has actual notice of all the information in the movant's papers and has relied upon these documents in framing the complaint the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated.

Id. at 48 (emphasis added). The court went on to find that the district court, though it had chosen not to, could have considered the documents attached to the defendant's motion todismiss "because there was undisputed notice to plaintiffs of their contents and they were integral to plaintiffs' claim." Id. (emphasis added).

Turning to the emails presented by Bon Secours in this case, it simply cannot be said they are integral to Hickey's claims. While Hickey was undoubtedly aware of the emails' contents, there is no indication that he relied upon them in framing his Complaint, nor would he have had notice that the emails would be considered in deciding this motion. This case is unlike Cortec, where it was clear from the text of the complaint that the plaintiffs necessarily had relied on information in the Stock Purchase Agreement to support their claims that they had been deceived. The only cases cited by Bon Secours supporting the opposite conclusion are not applicable here because none of those cases involved a situation where the defendants relied on documents that were supposedly "integral to" a complaint but that could not reasonably be identified in the complaint as a document on which the plaintiff had relied in framing the complaint.² The Court therefore finds that it cannotconsider these emails without converting the motion into one for summary judgment.

III. Conversion Of The Motion To Dismiss Into A Motion For Summary Judgment

Having determined that the Court cannot review the additional materials attached by the parties without converting the motion to dismiss into a motion for summary judgment, the Court must next determine whether it will so convert the motion. The Court will decline to do so, and will instead exclude the extrinsic evidence from its consideration of Bon Secours's motion to dismiss.

While Hickey argues that "[t]he defendants have converted their motion to dismiss into a motion for summary judgment," (Pl.'s Opp. 21, Docket No. 6) (emphasis added), the Fourth Circuit, as well as other circuit courts, has made clear that "conversion takes place at the discretion of the court, and at the time the court affirmatively decides not to exclude extraneous matters." Finley Lines Joint Protective Bd. Unit 200, Bhd. Ry. Carmen v. Norfolk S. Corp., 109 F.3d 993, 996 (4th Cir. 1997) (internal...