Bruno v. Corrado

STATE OF MAINE SUPERIOR COURT

CUMBERLAND, ss CIVIL ACTION

Docket No. CV-14-429

JOSEPH BRUNO, et al.,

Plaintiffs

v. ORDER ON SPECIAL

MOTION TO DISMISS

PAUL CORRADO, et al., STATE

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Defendants

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Before the court is the defendants' special motion to dismiss counts II and

1

III of plaintiffs' complaint under 14 M.R.S. § 556 (2014), Maine's anti-SLAPP

statute. For the following reasons, the motion is denied.

Background

The facts alleged in the complaint are more fully set forth in the court's

order on defendants' motion to dismiss. (1/5/15 Order.) This motion concerns

counts II and III of the complaint, which allege defamation per se and false light

invasion of privacy. These counts concern defendant Paul Corrado's statements

initially made in a letter in the form of a petition written by Corrado and

2

addressed to the governor. The letter reads as follows:

The Honorable Governor of the State of Maine

Office of the Governor

#1 State House Station

Augusta, ME 04333-0001

Phone

1 SLAPP stands for Strategic Lawsuit Against Public Participation. Schelling v. Lindell,

2008 ME 59, <JI 1 n.1, 942 A.2d 1226.

2 The letter is reproduced here word for word without any corrections.

207-287-3531

Fax

207-287-1034

Governor LePage:

PLEASE SAVE PHARMACIST PAUL CORRADO AND

CORRADO'S PHARMACY OF CORINTH, MAINE!

Mr. Corrado carne to Corinth specifically to build a stagnant

business. He was immediately adopted by the Town of Corinth and

the surrounding communities and remains the most trusted

medical professional in the area. He received many accolades from

his former employer. Mr. Corrado was encouraged to open his own

pharmacy in the same town. His former employer, Mr. Bruno has

done everything in his power to put Mr. Corrado out of business.

Mr. Bruno is also the President of the Board of Pharmacy and has

used his influence against Mr. Corrado. Mr. Corrado is

professional, caring, compassionate, and honest and has opened his

pharmacy after hours and on weekends to fill emergency

prescriptions for many of us in town. Mr. Corrado expected trouble

with Mr. Bruno the moment he left his employment. He was

extremely diligent and careful to dot his 'I's and cross his 't's in

expectation of Mr. Bruno's onslaught. I believe Mr. Bruno

interfered with Mr. Corrado's application for a Federal DEA license

causing him to wait 18-months to become a fully functional

pharmacy.

I believe Mr. Corrado is being excessively punished for something

a former disgruntled technician who a may have caused the error

intentionally and who has violated the HIPP A regulations by

telling a patient he received a generic medication in place of a

brand even though the generic is in fact, the unchanged brand drug

re-distributed by 4 other manufacturers.

Mr. Corrado has hurdled every obstacle in opening and starting a

business. He deserves to stay in business without the excessive

penalties imposed on him personally and on his Pharmacy.

I ask that you get involved and reduce these penalties so that the

financial burden does not put Mr. Corrado and his fledgling

Pharmacy out of business.

Governor, I am asking you not ignore my request. Please

investigate, remove Mr. Bruno from the Board and have the Board

dismiss this complaint against Mr. Corrado. Mr. Corrado was very

surprised to learn that the tablets are the same and does not need to

be punished this harshly.

2

Sincerely,

Name:----------

Address:---------

City, ST., Z i p : - - - - - -

(Compl. Ex. A.) Corrado advertised the letter on Facebook, telling his friends and

customers to come sign it at his pharmacy. (Corrado Aff. 91:91: 1-2.) According to

Corrado, many of his customers and friends signed the letter and he mailed the

signed letters to the governor. (Corrado Aff. 9['1[ 3-4.) After receiving the letters,

someone from the governor's office contacted Corrado's attorney to inform him

that the governor would not get involved in any matter before the Board of

Pharmacy. (Corrado Aff. '1[ 5.)

Procedural History

Plaintiffs filed their complaint on October 14, 2014. Defendants filed a

motion to dismiss counts I, N, and V of the complaint, which was granted in part

and denied in part on January 5, 2015. The court dismissed count V and

dismissed Bruno as a plaintiff from count I. Defendants moved to enlarge the

3

time to file a special motion to dismiss to January 30, 2015, which was granted.

Defendants filed their special motion to dismiss on January 23, 2015.

Discussion

Special Motion to Dismiss Standard

The special motion to dismiss is allowed under 14 M.R.S. § 556, which

states:

3 Unless the court extends the time to file, a special motion to dismiss must be filed

within 60 days of the service of the complaint. 14 M.R.S. § 556.

3

When a moving party asserts that the civil claims, counterclaims or

cross claims against the moving party are based on the moving

party's exercise of the moving party's right of petition under the

Constitution of the United States or the Constitution of Maine, the

moving party may bring a special motion to dismiss .... The court

shall grant the special motion, unless the party against whom the

special motion is made shows that the moving party's exercise of its

right of petition was devoid of any reasonable factual support or

any arguable basis in law and that the moving party's acts

caused actual injury to the responding party. In making its

determination, the court shall consider the pleading and

supporting and opposing affidavits stating the facts upon which

the liability or defense is based.

14 M.R.S. § 556 (2014). This section "targets plaintiffs who 'do not intend to win

their suits; rather they are filed solely for delay and distraction, and to punish

activists by imposing litigation costs on them for exercising their constitutional

right to speak and petition the government for redress of grievances."' Maietta

Constr., Inc. v. Wainwright, 2004 ME 53, 'I[ 6, 847 A.2d 1169 (quoting Morse Bros,

Inc. v. Webster, 2001 ME 70, 'I[ 10, 772 A.2d 842). "The typical mischief that the

[anti-SLAPP] legislation intended to remedy was lawsuits directed at individual

citizens of modest means for speaking publicly against development projects."

Morse Bros., Inc., 2001 ME 70, 'I[ 10, 772 A.2d 842.

In applying the statute, the court employs a two-step, burden-shifting

analysis. Nader v. Me. Democratic Party, 2012 ME 57, 'I[ 15, 41 A.3d 551 (Nader I).

The first step is to determine "whether the anti-SLAPP statute applies." Id. "At

this step, the moving party (i.e., the defendant) 'carries the initial burden to show

that the suit was based on some activity that would qualify as an exercise of the

defendant's First Amendment right to petition the government.'" Id. (quoting

Schelling v. Lindell, 2008 ME 59, 'I[ 7, 942 A.2d 1226). To meet this burden, "the

moving party must show that the claims at issue are 'based on the petitioning

activities alone and have no substantial basis other than or in addition to the

4

petitioning activities."' Town of Madawaska v. Cayer, 2014 ME 121, <JI 12, 103 A.3d

547 (quoting Nader I, 2012 ME 57, <JI 22 n.9, 41 A.3d 551).

If the moving party demonstrates that the statute applies, "the burden

shifts to the nonmoving party to establish, through pleadings and affidavits, that

the moving party's exercise of its right of petition (1) was 'devoid of any

reasonable factual support or any arguable basis in law,' and (2) 'caused actual

injury' to the nonmoving party." Nader I, 2012 ME 57, <JI 16, 41 A.3d 551 (quoting

14 M.R.S. § 556). At this step, the nonmoving party must present '"some

evidence' that the defendant's petitioning activity was devoid of factual or legal

support and caused actual injury. Even when faced with conflicting evidence

from a defendant, a plaintiff able to meet this 'low standard' could avoid

dismissal of his or her claim."' Nader I, 2012 ME 57, <JI 35, 41 A.3d 551.

The court must apply this framework to defendants' motion.

Defendants' Burden

At the outset, the court notes that Bruno's claims are not the typical claims

that the anti-SLAPP statute was enacted to prevent. Maietta Constr., Inc., 2004 ME

53, <JI 6, 847 A.2d 1169. The court also notes there are competing constitutional

rights involved in anti-SLAPP cases. Nader I, 2012 ME 57, <JI<JI 23-25, 41 A.3d 551;

see also id. <JI 48 (SILVER, J., concurring) (noting that plaintiff had constitutional

interest in access to courts). Nevertheless, the statute as written applies to a

broad swath of activity. Schelling, 2008 ME 59, <JI<JI 11-12, 942 A.2d 1226.

The statute protects the following activity:

As used in this section, "a party's exercise of its right of petition"

means any written or oral statement made before or submitted to a

legislative, executive or judicial body, or any other governmental

proceeding; any written or oral statement made in connection with

an issue under consideration or review by a legislative, executive or

5

judicial body, or any other governmental proceeding; any

statement reasonably likely to encourage consideration or review of

an issue by a legislative, executive or judicial body, or any other

governmental proceeding; any statement reasonably likely to enlist

public participation in an effort to effect such consideration; or any

other statement falling within constitutional protection of the right

to petition government.

14 M.R.S. § 556.

The Law Court has not articulated any clear guidance at step one of the

analysis. In previous cases, it has interpreted the statute broadly. See Maietta

Constr., Inc., 2004 ME 53, <JI<JI 3, 7, 847 A.2d 1169 (letters to the City Council, the

Mayor, and statements to newspapers alleging that a developer was violating his

contract with the city "clearly amount to petitioning activity"); Schelling, 2008 ME

59, <J[ 13, 942 A.2d 1226 (petitioning activity "includes a letter, written to a

newspaper, that is designed to expand the public consideration of a controversial

issue recently considered by the Legislature"). Under the unique facts of this

case, however, the court concludes that defendants have failed to meet their

burden at step one of the analysis for two reasons. First, defendants have failed

to show that Corrado's letter constitutes petitioning activity protected under the

statute. Second, defendants have failed to show that plaintiffs' claims are based

solely on the letter, even if it is petitioning activity. These two reasons are

discussed below.

Not Petitioning Activity

Corrado has failed to show that his letter to the governor constitutes the

type of petitioning activity protected by the statute. The statements in the letter

were not "made in connection" with any issue under review by the governor.

Defendant had the opportunity, and did in fact, bring his concerns to the Board

of Pharmacy. (Pl.'s Ex. D.) Given the wording of the letter and the fact that it was

6

addressed to the governor, the letter was not "reasonably likely to encourage

consideration or review" of the allegations in the letter. Finally, although the

letter was circulated to Corrado's customers and Corrado's Facebook friends, the

petition was not reasonably likely to enlist public engagement. The letter was not

sent to a newspaper, it does not ask the public to submit comments or letters to

the Board of Pharmacy, and it only asks the governor, the chief executive of the

state, to investigate a Board of Pharmacy complaint. Although the statute may be

read in a way that it would apply to Corrado's letter, the court will not do so

because it would not serve the purpose behind the statute. See Duracraft Corp. v.

Holmes Prods. Corp., 691 N.E.2d 935, 943 (Mass. 1998) ("A matter may be within

the letter of a statute and not come within its spirit, if the matter is beyond the

mischief intended to be reached or if to include it would require a radical change

in established public policy or in the existing law and the act does not manifest

any intent that such a change should be effected.").

Claims Not Based on Petitioning

Even if the letter in this case is considered protected petitioning activity,

the Law Court has adopted a requirement that the statute only applies if

plaintiffs' claims are solely "based on" the exercise of Corrado's right to petition.

Nader I, 2012 ME 57, <JI 22 n.9, 41 A.3d 551; Town of Madawaska, 2014 ME 121, <JI 12,

103 A.3d 547. Corrado has failed to meet his burden to show that Bruno's claims

are "based on" the exercise of Corrado's right to petition alone. First, the claims

are not based on Corrado sending a letter to the governor. Rather, they are based

on him sharing the letter, which includes the alleged defamatory statements

regarding Bruno, with his customers and on the internet. Second, the issues in

this lawsuit are between two private individuals and their companies. Corrado's

7

Plaintiffs-Ilse Teeters-Trumpy Esq/Adam Taylor

Esq

Defendants-Christopher Taintor Esq/David

Goldman Esq

letter to the governor does not raise an issue of public concern. Cf Schelling, 2008

ME 59, 'li 13, 942 A.2d 1226 (applying statute to letter to newspaper that sought to

expand public consideration of a controversial issue). Third, the claims in this

case, when taken as a whole, allege that Paul Corrado and Carrado' s Pharmacy

engaged in a campaign to tarnish Bruno's reputation and steal Community

Pharmacy's customers. While counts II and III specifically mention the

statements in the letter, the other allegations in the complaint are relevant to the

court's analysis in deciding whether the claims are "based on" Corrado's exercise

of the right to petition. See Burley v. Comets Cmty. Youth Ctr., Inc., 917 N.E.2d 250,

254-56 (Mass. App. Ct. 2009) (refusing to dismiss claim when allegations in

complaint not based solely on protected petitioning activity); see also Duracraft

Corp., 691 N.E.2d at 943 ("[W]e adopt a construction of 'based on' that would

exclude motions brought against meritorious claims with a substantial basis

other than or in addition to the petitioning activities implicated."). Taking these

other allegations into consideration, the court concludes that Bruno's claims are

not based on Corrado's petitioning activity alone.

Conclusion

Because defendants have not met their burden at step one of the analysis

under Maine's anti-SLAPP statute, the special motion to dismiss must be denied.

The entry is:

Defendants' special motion to dismiss is DENIED.

o ce A. Wheeler

ustice, Superior Court

8

ENTERED JAN 1 4 2015

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STATE OF MAINE SUPERIOR COURT

CUMBERLAND, ss CIVIL ACTION

Docket No. CV-14-429

JOSEPH BRUNO, et al.,

c~.~~~

JAN 05 2015

Plaintiffs

v.

RECEIVED

ORDER ON MOTION

TO DISMISS

PAUL CORRADO, et al.,

Defendants.

Before the court is the defendant's motion to dismiss counts I, IV, and

V of plaintiffs' complaint. For the following reasons, the motion is granted in

part and denied in part.

FACTS

The following facts are taken from plaintiffs' complaint. Plaintiff

Joseph Bruno is the owner and CEO of Community Pharmacy, a Maine

limited partnership that operates multiple pharmacies in Maine. (Compl. ~~

1-3.) Bruno is a licensed Maine pharmacist and the president of the Maine

Board of Pharmacy. (Com pl. ~ 9.) Bruno is also a former representative in the

Maine House of Representatives, and he currently serves as a Selectman for

the Town of Raymond. (Compl. ~~ 10-11.) Defendant Paul Corrado is the

owner and president of Corrado's, Inc., a Maine corporation that operates a

single pharmacy in Corinth, Maine. (Compl. ~~ 4-6.)

1

Corrado was an employee of Community Pharmacy until he was

terminated on September 6, 2011. (Compl. ~ 7 .) Mter he was terminated,

Corrado opened Corrado's Pharmacy, which competes with Community

Pharmacy's Corinth location. (Compl. ~ 8.) Since 2012, the Maine Board of

Pharmacy has received multiple complaints about Corrado's Pharmacy, and

at least some of these complaints resulted in disciplinary action, including

fines, license suspension, and probation. (Compl. ~~ 12-13.) Because of

Bruno's prior relationship with Corrado, he recuses himself when the Board

considers complaints against Corrado's. (Compl. ~ 15.)

Corrado wrote a letter addressed to Governor Paul LePage, claiming

that Bruno "has done everything in his power to put Mr. Corrado out of

business" and that he "has used his influence against Mr. Corrado." (Compl.

~~ 19-21.) The letter asks the Governor to investigate Bruno and remove him

from the Board of Pharmacy. (Compl. ~ 22.) Corrado disseminated the letter

in the Town of Corinth and published it on the internet, including on

Facebook. (Compl. ~ 17.)

Corrado's Pharmacy's agents or employees have accessed confidential

and proprietary customer information from Community Pharmacy. (Compl. ~

24.) Corrado's made calls to Community Pharmacy's customers telling them

that Community Pharmacy of Corinth was closing and telling them that they

should switch their prescriptions to Corrado's. (Compl. ~~ 24-25.) At least one

of Community Pharmacy's customers switched their prescriptions to

2

( (

Corrado's temporarily, and many others were confused and inquired as to

whether Community Pharmacy was closing. (Compl. ~~ 26-27.) Corrado

himself has come into Community Pharmacy's Corinth Location and told a

customer, "I have a pharmacy up the road, you should come check it out."

(Compl. ~ 28.)

DISCUSSION

1. Standard of Review

On review of a motion to dismiss for failure to state a claim, the court

accepts the facts alleged in plaintiffs complaint as admitted. Saunders v.

Tisher, 2006 ME 94, ~ 8, 902 A.2d 830. The court then "examine[s] the

complaint in the light most favorable to plaintiff to determine whether it sets

forth elements of a cause of action or alleges facts that would entitle the

plaintiff to reliefpursuant to some legal theory." Doe v. Graham, 2009 ME 88,

~ 2, 977 A.2d 391 (quoting Saunders, 2006 ME 94, ~ 8, 902 A.2d 830). "For a

court to properly dismiss a claim for failure to state a cause of action, it must

appear 'beyond doubt that [the] plaintiff is entitled to no relief under any set

of facts that might be proven in support of the claim."' Dragomir v. Spring

Harbor Hosp., 2009 ME 51, ~ 15, 970 A.2d 310 (quoting Plimpton v. Gerrard,

668 A.2d 882, 885 (Me. 1995)).

2. Count I: Tortious Interference (Bruno and Community Pharmacy v.

Paul Corrado and Corrado's, Inc.)

Plaintiffs assert that Corrado and Corrado's Pharmacy are liable for

tortious interference with a prospective economic advantage for improperly

3

driving Community Pharmacy's customers to Corrado's Pharmacy. "Tortious

interference with a prospective economic advantage requires a plaintiff to

prove: (1) that a valid contract or prospective economic advantage existed; (2)

that the defendant interfered with that contract or advantage through fraud

or intimidation; and (3) that such interference proximately caused damages."

Rutland v. Mullen, 2002 ME 98, ~ 13, 798 A.2d 1104. Defendants argue that

the complaint fails to plead interference by fraud or intimidation.

a. Interference by Fraud

The elements of fraud for the purposes of a tortious interference claim

are:

(1) making a false representation (2) of a material fact (3) with

knowledge of its falsity or in reckless disregard of whether it is

true or false (4) for the purpose of inducing another to act or

refrain from acting in reliance on it, and (5) the other person

justifiably relies on the representation as true and acts upon it

to the damage of the plaintiff.

Id. ~ 14 (quoting Petit v. Key Bank of Maine, 688 A.2d 427, 430 (Me. 1996)).

The circumstances surrounding the alleged fraud must be "stated with

particularity." Barnes v. McGough, 623 A.2d 144, 146 (Me. 1993). Unlike a

fraud claim, however, plaintiffs need only prove a tortious interference claim

by a preponderance of the evidence. Petit, 688 A.2d at 433.

Plaintiffs' tortious interference claim is based on allegations that

Corrado told Community Pharmacy's customers that Community Pharmacy

was closing. The false statement is that the pharmacy was closing, which is a

material fact, and Corrado's knowledge of the statement's falsity can be

4

(

inferred. Corrado allegedly intended to lure Community Pharmacy's

customers to his store, and his misrepresentations allegedly succeeded in

causing at least one customer to switch her prescriptions to Corrado's

temporarily. Contrary to defendants' assertions, these allegations are

sufficient to satisfy the elements of fraud for purposes of the tort.

b. Interference by Intimidation

Plaintiffs argue that count I is based on intimidation as well as fraud.

Intimidation, for purposes of the tort, "involves unlawful coercion or

extortion." Rutland, 2002 ME 98, ~ 16, 798 A.2d 1104. The case Pombriant v.

Blue Cross/ Blue Shield of Maine illustrates the type of intimidation required.

562 A.2d 656 (Me. 1989). In that case,

Blue Cross procured the breach of contract between Pombriant

and Bennett by the intimidating means of making it clear to

Bennett that the only manner in which it could avail itself of

Blue Cross's lower rates for the desired insurance would be by

using the brokerage services of Johnson ....

Pombriant, 562 A.2d ·at 659. Although plaintiffs argue that many of

Community Pharmacy's customers are elderly and vulnerable, the complaint

does not allege that any of its customers were in any way intimidated by

Corrado's. The false statement that Community Pharmacy was closing does

not amount to "unlawful coercion or extortion." According to the complaint,

the only reason Community Pharmacy's customers might have switched their

prescriptions to Corrado's is because they thought Community Pharmacy was

closing, not because they were pressured into switching.

5

c. Justifiable Reliance

Defendants argue that plaintiff has failed to sufficiently allege that

Community Pharmacy's customers justifiably relied on the alleged

misrepresentation that Community Pharmacy was closing. Plaintiff does

allege, however, that many customers were confused and at least one

customer switched her prescriptions to Corrado's. These allegations are

sufficient to establish justifiable reliance.

d. Bruno as Plaintiff

Defendant argues that Bruno lacks standing to assert a tortious

interference claim individually. Defendants are correct that there are no

allegations in the complaint that defendants interfered with Bruno's personal

prospective economic advantage. Bruno can therefore be dismissed as a

plaintiff on count I.

3. Count IV: Defamation (Community Pharmacy v. Corrado's, Inc.)

a. Defamatory Statement

To prevail on a defamation claim, a plaintiff must demonstrate the

following elements:

(a) a false and defamatory statement concerning another;

(b) an unprivileged publication to a third party;

(c) fault amounting at least to negligence on the part of the

publisher; and

(d) either actionability of the statement irrespective of special

harm of the existence of special harm caused by the

publication.

6

(

Morgan v. Kooistra, 2008 ME 26, ~ 26, 941 A.2d 447. "Whether a false

statement conveys a defamatory message is a question of law." Id.

Plaintiffs' complaint alleges that Corrado told Community Pharmacy

customers that the Community Pharmacy store in Corinth was closing.

(Compl. ~ 25.) Defendant argues that this statement was not defamatory.

The Law Court has previously cited the Restatement for guidance on

defamation claims. See Rippett v. Bemis, 672 A.2d 82, 86 (Me. 1996). The

Restatement (Second) of Torts provides that a partnership may be treated

like a corporation for the purposes of a defamation claim. Restatement

(Second) of Torts § 562 (1977). "One who publishes defamatory matter

concerning a corporation is subject to liability to it:

(a) if the corporation is one for profit, and the matter tends to prejudice

it in the conduct of its business or to deter others from dealing with

it .... "

Restatement (Second) of Torts § 561 (1977). The alleged statement that the

Corinth store was closing prejudiced Community Pharmacy in the conduct of

its business because it confused Community Pharmacy's customers and

caused at least a temporary loss of business. Because the alleged statement

relates to the ability to conduct a trade or business, it is actionable per se. 1

See Restatement (Second) of Torts § 573 (1977). Cases from other

jurisdictions confirm this result. See Bay Tobacco, LLC v. Bell Quality

Tobacco Prods., LLC, 261 F. Supp. 2d 483, 501-502 (E.D. Va. 2003) (denying

1

Plaintiff also alleges special damages. (Compl. ~ 50.)

7

(

motion to dismiss when complaint alleged defendant published a false

statement that plaintiff was "going out of business"); GN Danavox, Inc. v.

Starkey Labs., Inc., 476 N.W.2d 172, 176 (Ct. App. Minn. 1991) (upholding

punitive damages award for statements in flyer that suggested, among other

things, that plaintiff was going out ofbusiness).

The cases defendants rely on are distinguishable. In Picard v.

Brennan, the Law Court held that a false statement that an employee had

been discharged was not defamation per se. 307 A.2d 833, 835 (Me. 1973).

The court reasoned that "[a]n employee may be discharged for any one of a

multitude of reasons unrelated to his honesty, integrity or occupational skill,

or indeed for no reason at all." Id. Thus, a statement that an employee was

discharged without stating a reason for the discharge is insufficient to

support a claim of defamation. Id.

Picard is distinguishable because a former employee's professional or

business interests are much different than an operating business's interests.

In Picard, the reason for discharge was critical-the plaintiff would only

suffer harm if defendant had said the employee was discharged for

misconduct, incompetence, or some other negative reason. By contrast, a false

statement that a business is closing is harmful to that business's interests,

regardless of the reason it is closing. The necessary consequence of the

statement, if believed by customers, is that the business will no longer be

able to supply the customers' needs. Customers will become confused and

8

they might switch to competitors, which 1s precisely what Community

Pharmacy alleges has occurred.

Defendant also relies on K[orce, Inc. v. Alden Personnel, Inc., a New

York case that involved a defendant who wrote an email to its own business

contacts that stated: "Better news is that we have lost lots of competition in

the local market with Robert Half and Kforce basically closing their IT

divisions in the area." 288 F. Supp. 2d 513, 515 (S.D.N.Y. 2003). The court

dismissed the defamation claim, stating "[t]he statement is at most an

allegation of unprofitability in a particular geographic area." Id. at 518. The

case is distinguishable for several reasons. First, the email was to the

defendant's own business contacts, it was not directly made to the

competitor's customers, and the email did not tell prospective customers to

shop at defendant's business as an alternative. Id. at 515. Second, the court

found that it must consider the statement in context and noted that a "less

well-established corporation would be more susceptible to harm from a

competitor's remarks." Id. at 518. Because Kforce "employ[ed] over 1,000

recruiting specialists operating in more than 40 markets nationwide", the

court found that "damages to Kforce cannot be assumed." Id. Needless to say,

Community Pharmacy does not have the type of national presence described

in the Kforce case. (Compl. ~~ 2-3.) Finally, the court must consider the

nature of the business. Community Pharmacy provides prescriptions to

people in rural communities. If Community Pharmacy were closing, its

9

customers would need to quickly make arrangements to find another

pharmacy to ensure they are able to get their medications. The impact of the

false statement on Community Pharmacy's customers is far more immediate

than the impact described in Kforce.

b. Identity of the Customers

Defendants argue that plaintiffs have failed to sufficiently identify to

whom the alleged defamatory statements were made. Plaintiff alleges that

Corrado's employees accessed Community Pharmacy's confidential customer

information and contacted its customers to tell them Community Pharmacy

was closing. The complaint further alleges that at least one customer

switched her prescriptions to Corrado's after being contacted. These

allegations are sufficient to survive a motion to dismiss. As acknowledged by

defendants' own case, dismissing the claim "would be an unduly harsh

sanction for failure to plead specific information not yet clearly required by

Maine law." Monahan v. Chapman & Drake, 1999 WL 33117089, at *4 n.3 (D.

Me. 1999). Plaintiff will need to identify specific customers to prevail on its

defamation claim at trial.

4. Count V: False Light Invasion of Privacy (Community Pharmacy v.

Corrado's, Inc.)

Defendants argue that a business entity lacks standing to bring a false

light claim. Although there does not appear to be any Maine case on point,

the majority of jurisdictions that have addressed the issue appear to limit the

cause of action to individuals. See Holomaxx Technologies v. Microsoft Corp.,

10

(

783 F. Supp. 2d 1097, 1107 (N.D. Ca. 2011); Seaton v. TripAdvisor, LLC, 728

F.3d 592, 601 (6th Cir. 2013); see also Pan Am Sys., Inc. v. Hardenbergh, 871

F. Supp. 2d 6, 18 (D. Me. 2012) ("Plaintiffs concede that a corporation may

not bring a false light cause of action .... ").Because businesses typically lack

privacy rights, the court agrees with these cases that hold that a business

entity cannot bring a false light invasion of privacy claim. See Restatement

(Second) of Torts § 6521 cmt. c (1977) ("A corporation, partnership or

unincorporated association has no personal right of privacy."). Count V is

dismissed.

The entry is:

Joseph Bruno is dismissed as a plaintiff from Count I of

the complaint;

Count V of the complaint is dismissed; and

Defendants' motion to dismiss is denied as to all other

counts of the complaint.

Date: January 5, 2015

Justice, Superior Court

Plaintiffs-Adam Taylor

Esq/Ilse Teeters-

Defendants-David Trumpy Esq

Goldman Esq/Christopher

Taintor, Esq.

11