Hogan v. Eastern Enterprises/Boston Gas

• Decision Date: 27 September 2001
• Docket Number: No. CIV. A. 200011729RBC<SMALL><SUP>1</SUP></SMALL>.,CIV. A. 200011729RBC<SMALL><SUP>1</SUP></SMALL>.
• Citation: 165 F.Supp.2d 55
• Parties: Wayne HOGAN, Plaintiff, v. EASTERN ENTERPRISES/BOSTON GAS, Defendant.
• Court: U.S. District Court — District of Massachusetts

165 F.Supp.2d 55

Wayne HOGAN, Plaintiff, v. EASTERN ENTERPRISES/BOSTON GAS, Defendant.

No. CIV. A. 200011729RBC¹.

United States District Court, D. Massachusetts.

September 27, 2001.

COPYRIGHT MATERIAL OMITTED

Scott F. Gleason, Gleason Law Offices, P.C., Haverhill, MA, for Plaintiff.

David J. Santeusanio, Bradford J. Smith, Goodwin Procter LLP, Boston, MA, for Defendant.

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS (# 5)

COLLINGS, Chief United States Magistrate Judge.

I. INTRODUCTION

In late August of 2000, plaintiff Wayne Hogan ("Hogan" or "plaintiff") instituted the instant action against defendant Eastern Enterprises/Boston Gas ("Boston Gas" or "defendant"). The claims alleged in the four count complaint, violations of ERISA (Count I), common law misrepresentations (Count II), equitable estoppel (Count III) and breach of the implied covenant of good faith and fair dealing (Count IV) respectively, all relate to or arise out of Hogan's participation in a Voluntary Retirement Enhancement Plan offered by his employer.

In lieu of answering the complaint, Boston Gas filed a motion to dismiss pursuant to Rule 12(b)(6), Fed.R.Civ.P., for failure to state a claim upon which relief can be granted (# 5) together with a memorandum in support (# 6). In turn, the plaintiff has filed a memorandum in opposition to the dispositive motion. (# 7) Following the submission of the defendant's reply brief (# 9), oral argument was set for and heard on August 16, 2001. At this juncture, the motion to dismiss is in a posture for resolution.

II. THE STANDARD

The Rule 12(b)(6) standard is quite familiar. In deciding the defendant's motion to dismiss, the Court must "accept the complaint's allegations as true, indulging all reasonable inferences in favor of [the plaintiff]." Kiely v. Raytheon Co., 105 F.3d 734, 735 (1 Cir., 1997). Indeed, when the sufficiency of a complaint is tested, it has long been the law that such "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim that would entitle [it] to relief." Conley v. Gibson, 355 U.S. 41, 45-6, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)(footnote omitted). At the same time, "bald assertions,...subjective characterizations, optimistic predictions, or problematic suppositions" need not be credited. United States v. AVX Corp., 962 F.2d 108, 115 (1 Cir., 1992)(internal quotations omitted).²

The defendant has appended two documents to its memorandum of law (# 6), the Essex County Gas Company Voluntary Retirement Enhancement Plan July 1998 (Exh. A) ("the Plan") and the Essex County Gas Company Section I Election Form and Release of Claims (Exh. B)("the Release"), for review by the Court in ruling on the dispositive motion. Although neither of these documents is attached as an exhibit to the complaint, both are specifically referenced in its text and are integral to the plaintiff's claims. When deciding a motion to dismiss,

Ordinarily, of course, any consideration of documents not attached to the complaint, or not expressly incorporated therein, is forbidden, unless the proceeding is properly converted into one for summary judgment under Rule 56. See Fed.R.Civ.P. 12(b)(6). However, courts have made narrow exceptions for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to plaintiffs' claim; or for documents sufficiently referred to in the complaint. See, e.g., Romani v. Shearson Lehman Hutton, 929 F.2d 875, 879 n. 3 (1st Cir. 1991) (considering offering documents submitted by defendants with motion to dismiss claim of securities fraud); Fudge v. Penthouse Int'l, Ltd., 840 F.2d 1012, 1014-15 (1st Cir.) (considering allegedly libelous article submitted by defendants with motion to dismiss), cert. denied, 488 U.S. 821, 109 S.Ct. 65, 102 L.Ed.2d 42 (1988); Mack v. South Bay Beer Distrib., Inc., 798 F.2d 1279, 1282 (9th Cir.1986) ("[O]n a motion to dismiss a court may properly look beyond the complaint to matters of public record and doing so does not convert a Rule 12(b)(6) motion to one for summary judgment."); see also In re Wade, 969 F.2d 241, 249 & n. 12 (7th Cir.1992).

Watterson v. Page, 987 F.2d 1, 3-4 (1 Cir., 1993).

The Plan and the Release fall within the narrow exception to the general rule and thus may properly be considered in the context of this pending Rule 12(b)(6) motion.

III. THE FACTS

The place to begin is with an examination of the allegations of the complaint. Hogan is an individual who for more than forty years was employed by Essex County Gas Company. (Complaint # 1 ¶ 4) In late 1997³ defendant Boston Gas made an offer to purchase Essex County Gas Company and, upon consummation of the deal in 1998, became that company's successor in interest. (# 1 ¶¶ 5, 6) When announced, the offer to purchase engendered concern among the employees of Essex County Gas Company, including the plaintiff, who were apprehensive about their job security. (# 1 ¶ 7)

At some point after the announcement of the sale was made to the Essex County Gas Company employees, it is alleged that Hogan was specifically informed at a luncheon with James Keating, Vice President and Treasurer of Essex County Gas Co. and William Beaton of Human Resources and Customer Service at Essex County Gas Company that an Early Retirement Plan and Severance Package would be introduced to key long term managerial/exempt employees such as plaintiff... [and] that under the proposed plan, not yet finalized, he would be offered an additional five years added to both his age and service time and that the company would also pay his existing medical and dental coverage. In addition, his life insurance would drop from twice his annual salary to a flat $20,000.00 and his annual pension would be $20,300.00.

Complaint # 1 ¶¶ 10-11.

According to the plaintiff, he inquired of Messrs. Hastings and Beaton whether the Essex County Gas Company office in Haverhill where he worked would remain open after the sale. (# 1 ¶ 12) Their response was "that it was doubtful that the Haverhill Office would remain open and that the defendant did not have the financial resources to retain much (sic) of the Essex County Gas Co. workers." (# 1 ¶ 13) Hogan also asked whether there was going to be a Social Security supplement offered to cover the working years lost consequence an early retirement. (# 1 ¶ 14) Mr. Hastings reportedly replied "that there would not be a Social Security Supplement because there was a possibility that Boston Gas would have to contribute to the Essex County Pension Fund to cover ten additional early retirees." (# 1 ¶ 15) Hogan was advised at that luncheon that the proposal "was not an official offer." (# 1 ¶ 16)

In July of 1998 the official voluntary early retirement offer which incorporated substantially the same terms as had been previously discussed was made to the plaintiff. (# 1 ¶ 17⁴) By its terms, in order to be eligible to participate in the Plan Hogan had to be "a management/non-Union employee and not an executive officer of the Company, and have attained age 55 or older and have at least 10 years of service and be actively employed as of July 1, 1998." (# 6, Exh. A at 1) The benefit enhancements provided in the Plan were the addition of five years to each of the employee's age and years of service. (# 6, Exh. A at 1) Health insurance coverage was to remain the same as what was then offered to Essex County Gas Company retirees, while the life insurance benefit would decrease from two times an employee's salary to $20,000.00 upon retirement.⁵ (# 6, Exh. A at 3)

The Plan provided that eligible employees had until August 24, 1998 to elect to participate. (# 6, Exh. A at 5) If an employee chose to participate, he or she would then have seven days within which to revoke that election. (# 6, Exh. A at 5) Hogan contends that:

Relying on the representations that a Social Security Supplement was not being considered, that Boston Gas did not have the financial resources to provide same, that the Haverhill Essex County Gas office was to be closed, therefore leading to the conclusion that termination of his employment was likely, the plaintiff accepted the offer of an early retirement and signed a document entitled "Essex County Gas Company Voluntary Retirement Enhancement Plan" on August 28, 1998⁶.

Complaint # 1 ¶ 18.

By signing the Release, Hogan acknowledged that he had had at least forty-five days to consider the Plan and would thereafter have seven days within which to renege his acceptance. (# 6, Exh. B ¶¶ 1,2) Moreover, in executing the Release the plaintiff

affirm[ed] that I had been given adequate time to consider its terms and the terms of the [Plan] and that I had been given an opportunity to have any and all questions with respect to them answered. I affirm further that I have carefully read and I fully understand the meaning and intent of this Election Form and Release of Claims and the [Plan] and that I freely and voluntarily assent to all of the terms and conditions contained in them and that no one has forced, pressured, coerced or threatened me in any way in my decision to enter into and be bound by them, nor has anyone made any promises to me which are not set forth herein to cause or induce me to sign this Election Form and Release of claims and I affirm that my doing so is my own free and voluntary act.

Defendant's Memorandum # 6, Exh. B ¶ 3.

The terms of the Release recited that Essex County Gas Company had counseled Hogan to seek legal advice before agreeing to participate in the Plan and that he had either done so, or had purposely chosen not to do so, before he accepted the Plan and executed the Release. (# 6, Exh. B ¶ 6) The plaintiff affirmed that the Plan and the Release represented the entire agreement between himself and Essex County Gas Company, superceding prior written or oral understandings or...