The opinion
STATE OF MAINE FILED SUPERIOR COURT
ANDROSCOGGIN, SS,RECEIVED & CIVIL ACTION
SEP 2 S 20\6 DOCKET NO. AUBSC-CV-16-06J
A/VD - 4 (J lj -q -2$- I&
CHRISTOPHER KING ANOROSCOG¥\~T
SUP ERIOR CO}J •
Plaintiff, ) ORDER ON DEFENDANT'S
) MOTION TO DISMISS COUNT II
v. ) OF PLAINTIFF'S AMENDED
) COMPLAINT & PLAINTIFF'S
CENTRAL MAINE MEDICAL ) MOTION FOR LEAVE TO FILE
CENTER, ) A SUPPLEMENTAL PLEADING
)
Defendant. )
Presently before the Court are the following motions: (1) Defendant Central
Maine Medical Center's ("CMMC") motion to dismiss Count II of Plaintiff Christopher
King's amended complaint pursuant Maine Rule of Civil Procedure 12(b)(6) for failure
to state a claim upon which relief can be granted; and (2) Plaintiff's "motion for leave to
file an amended or supplemental pleading." For the reasons discussed below, CMMC's
motion to dismiss is denied. Plaintiff's motion for leave to file a supplemental pleading
is granted.
I. BACKGROUND
Plaintiff's amended complaint alleges the following facts. Plaintiff is a registered
nurse licensed by the Maine State Board of Nursing (the "Board"). (Am. Compl. 'JI 1.)
Plaintiff was employed at CMMC from March 2010 until he was fired on May 22, 2014.
(Id. 'lI'lI 3 20.) Plaintiff alleges that he repeatedly reported to CMMC administrators that
1
the nurse staffing levels in the emergency department were inadequate and posed a
substantial risk to patients. (Id. 'lI'lI 7-19.) King alleges that he was fired in retaliation for
his reports. (Id. 'JI 21.)
By letter dated July 91 2014, the Board notified Plaintiff that it had opened an
) investigation of him for violations of the Nursing Practice Act. (Id. 'JI 28.) The Board's
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investigation was prompted by a report from CMMC, conveying CMMC's "suspicion
that Plaintiff had committed certain misconduct. (Id. <[ 30.) Plaintiff asserts that the
alleged misconduct that was the basis of the investigation was conduct within the scope
of his employment at CMMC. (Id. <[ 29.) Plaintiff asserts that the Board concluded on
October 8, 2015, that the evidence did not support CMMC's "suspicion" as described in
the report. (Id. <[ 31.) Plaintiff conceded that, at the time his complaint was filed, the
Board's investigation remained open and he remained subject to potential discipline by
the Board. (Id. <[ 32.)
Plaintiff filed a two-count complaint against CMMC on May 11, 2016. Plaintiff's
complaint asserts claims for violations of the Maine Whistleblower's Protection Act (the
"MWPA") (Count I) and for indemnity under§ 714 of the Maine Nonprofit Corporation
Act (the "MNCA") (Count II). CMMC moved to dismiss both counts on June 61 2016.
Plaintiff filed an amended complaint on June 22, 2016. The amended complaint
resolved the issues raised in CMMC's motion to dismiss regarding Count I.
CMMC filed a motion to dismiss the amended complaint on July 5, 2016.
CMMC's motion to dismiss the amended complaint sought to dismiss only Count II for
indemnity under §714 of the MNCA. CMMC argued that Plaintiff's claim for
indemnity pursuant to§ 714 failed to state a claim for two reasons: (1) Plaintiff was not
entitled to indemnification under § 714 because there had been no final disposition by
the Board;1 and (2) CMMC is immune from liability for making reports to the Board
1
CMMC incorrectly labels its first argument as an argument regarding the doctrine of ripeness.
The doctrine of ripeness "concerns the fitness of the issue for judicial decision." Waterville
Indus., Inc. v. Fin. Auth. of Me., 2000 ME 138, CJI 22, 758 A.2d 986 (internal citation and quotation
marks omitted). "A case is ripe for judicial decision when there exists a genuine controversy
between the parties that presents a concrete, certain, and immediate legal problem." Id.
(internal citation and quotation marks omitted). Here, there is a concrete, certain, and
immediate legal problem between the parties: whether Plaintiff is entitled to indemnity under
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under §2511 of the Maine Health Security Act (the "MHSA"). (Def. Mot. Dismiss 1-2.)
Alternatively, Defendant requested the court stay this action pending resolution of the
appeal in Lalonde v. Central Maine Medical Center, AUBSC-CV-15-078. (Id. at 2.) Oral
argument on Defendant's motion to dismiss was held on August 30, 2016.
On August 29, 2016, the day prior to oral argument, Plaintiff filed a "motion for
leave to file an amended or supplemental pleading." In his motion, Plaintiff avers that
the Board held an adjudicatory hearing on August 25, 2016, which resulted in Plaintiff's
complete exoneration of any misconduct. (Pl. Mot. for Leave to Supplement 2.)
Plaintiff asserts that the Board's August 25, 2016 decision completely resolves CMMC's
first basis for dismissing Count II. (Id.) Plaintiff acknowledges that the Board's August
25, 2016 decision does not affect Defendant's claim of immunity. (Id. at 2 n.2.)
CMMC did not file an opposition to Plaintiff's "motion for leave to file an
amended or supplemental pleading." Plaintiff's motion was discussed at the August
30, 2016 oral argument on CMMC's motion to dismiss. CMMC did not oppose
Plaintiff's motion, but reiterated its argument that Count II did not state a claim for
indemnity under§ 714 because there had been no final disposition by the Board when
the amended complaint was filed. CMMC asserted that it was still necessary for the
court to determine whether Plaintiff's amended complaint stated a claim for indemnity
prior to the Board's August 25, 2016 decision, because otherwise, CMMC could be liable
for interest on any judgment in Plaintiff's favor dating back to the date of the original
complaint under the relation back provision of Maine Rule of Procedure lS(c).
_) §714 of the MNCA. CMMC's first argument does not involve ripeness and is simply an
argument that Plaintiff's complaint fails to state a claim for indemnity under§ 714.
Page 3 of 11
IL PLAINTIFF'S MOTION FOR LEAVE TO FILE A SUPPLEMENTAL
PLEADING
The court first addresses Plaintiff's "motion for leave to file an amended or
supplemental pleading." Maine Rule of Civil Procedure 15(d) provides:
Upon motion of a party the court may, upon reasonable notice and upon
such terms as are just, permit the party to serve a supplemental pleading
setting forth transactions or occurrences or events which have happened
since the date of the pleading sought to be supplemented. Permission may
be granted even though the original pleading is defective in its statement
of a claim for relief or defense. If the court deems it advisable that the
adverse party pleads to the supplemental pleading, it shall so order,
specifying the time therefor.
M.R. Civ. P. 15(d) (emphasis supplied). Because the new allegations in Plaintiff's
motion occurred after the filing of his initial and amended complaints, Plaintiff's
motion is one for leave to supplement a pleading, not to amend.
The court will ordinarily grant a motion to file supplemental pleading unless the
opposing party can show that their position will be prejudiced or that the litigation will
be unreasonably delayeJ. Rancourt v. City of Dangor, 400 A.2d 354, 356 (Me. 1979).
Because CMMC has not expressed any opposition to the motion and there is no
evidence that CMMC will be prejudiced or the litigation will be delayed, Plaintiff's
motion for leave to file a supplemental pleading shall be granted.
III. CMMC'S MOTION TO DISMISS
As previously discussed, CMMC argues that Plaintiff's amended complaint fails
to state a claim for indemnity pursuant to § 714 for two reasons: (1) Plaintiff was not
entitled to indemnification under§ 714 because there had been no final disposition by
the Board; and (2) CMMC is immune from liability for making reports to the Board
under§ 2511 of the MHSA. (Def. Mot. Dismiss 1-2.)
Page 4 of 11
) A Standard of Review
The court shall dismiss a civil action when the complaint fails "to state a claim
upon which relief can be granted." M.R. Civ. P. 12(b)(6). A motion to dismiss for
failure to state a claim tests the legal sufficiency of a complaint. State v. Weinschenk, 2005
ME 28, <JI 10, 868 A.2d 200. The sufficiency of a complaint is a question of law. Bean v.
Cummings, 2008 ME 18, <JI 7, 939 A.2d 676. On a motion to dismiss for failure to state a
claim, the facts are not adjudicated. Marshall v. Town of Dexter, 2015 ME 135, <JI 2, 125
A.3d 1141. The court reviews the material allegations in the complaint in the light most
favorable to the plaintiff to determine whether it sets forth elements of a cause of action
or alleges facts that, if proven, would entitle the plaintiff to relief pursuant to some legal
theory. Bean, 2008 ME 18, <JI 7, 939 A.2d 676. Dismissal is warranted when it appears
beyond a doubt that the plaintiff is not entitled to relief under any set of facts that the
plaintiff might prove in support of his or her claim. Id.
B. Whether there has been a Final Disposition
Section 714 of the MNCA generally provides nonprofit corporations with the
power to indemnify its employees in "any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative," brought
against the employee by reason of the their employment by the corporation, provided
the employee meets the applicable standard of conduct set forth in the subsection. 13-B
M.R.S. § 714(1). Subsection 714(2) further provides, in relevant part:
[T]o the extent that [an] ... employee ... of a corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in subsection 1, or in defense of any claim, issue or
matter therein, [the employee] shall be indemnified against expenses,
including attorneys' fees, actually and reasonably incurred by him in
connection therewith.
) Id. § 714(2) (emphasis supplied).
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Subsection 714(4) provides, in relevant part:
Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the cotporntion in advance of the final
disposition. of such action, suit or proceeding as authorized by the board
of directors in the manner provided in subsection 3 upon receipt of an
undertaking by or on behalf of the ... employee ... to repay such
amount, ...
Id. § 714(4) (emphasis supplied).
In its motion to dismiss, CMMC argued that Plaintiff's amended complaint
explicitly alleged that the Board's investigation "remains open" and that Plaintiff
"remains subject to potential discipline." (Def. Mot. Dismiss 1); see (Am. Compl <JI 32.)
Thus, according to CMMC, prior to August 25, 2016, there had been no final disposition
by the Board, and therefore, Plaintiff had not been successful on the merits before the
Board in order to obtain indemnity under§ 714. (Id. at 1-2.) CMMC asserted that, prior
to a final disposition by the Board, any advanced payment of Plaintiff's expenses for
defending himself was within the discretion of CMMC' s board of directors. (Id. at 2.)
Therefore, according to CMMC, Plaintiff's complaint failed to state a claim for
indemnification under§ 714 at the time it was filed. (Id.)
As discussed above, Plaintiff's motion for leave to supplement his pleading avers
that the Board issued a final disposition in his favor on August 25, 2016. (Pl. Mot. for
Leave to Supplement 2.) The court has granted Plaintiff's motion for leave to file a
supplemental pleading to allege that new fact. Therefore, CMMC's argument that
Plaintiff has failed to state a claim for indemnity under§ 714 because there has been no
final disposition by the Board is now moot.
At oral argument, however, CMMC asserted that, though there has been a final
disposition by the Board, the court must still decide whether the amended complaint
stated a claim at the time it was filed, because otherwise, CMMC could be liable for
Page 6 of 11
interest on a judgment in Plaintiff's favor dating back to the date of the original
complaint under the relation back provision of Maine Rule of Procedure lS(c).
Rule lS(c) provides:
An amendment of a pleading relates back to the date of the original
pleading when
(1) relation back is permitted by the law that provides the statute of
limitations applicable to the action, or
(2) the claim or defense asserted in the amended pleading arose out of
the conduct, transaction, or occurrence set forth or attempted to be set
forth in the original pleading, or
(3) the amendment changes the party or the naming of the party
against whom a claim is asserted if the condition of paragraph (2) of this
subdivision is satisfied and, within the period provided by Rule 3 for
service of the summons and complaint, the party to be brought in by
amendment (A) has received such notice of the institution of the action
that the party will not be prejudiced in maintaining a defense on the
merits, and (B) knew or should have known that, but for a mistake
concerning the identity of the proper party, the action would have been
brought against the party.
M.R. Civ. P. 15(c). Although Rule 15(c) speaks only of amendments to a pleading, its
relation back provisions are applicable to supplemental pleadings under Rule lS(d) as
well. 2 Harvey, Maine Civil Practice§ 15:7 at 490-91 (3d ed. 2011).
Here, Plaintiff's supplemental pleading does not relate to statutes of limitation,
does not seek to change the party or the name of a party against whom a claim is
asserted, and does not assert a new claim arising out of the same transaction or
occurrence. Plaintiff's supplemental pleading merely asserts a new factual allegation
that occurred after the Plaintiff's amended complaint was filed that now moots one of
CMMC's arguments in support of its motion to dismiss for failure to state a claim.
Thus, the relation back doctrine under Rule 15(c) does not appear to apply to this
circumstance.
Moreover, as previously discussed, a motion to dismiss for failure to state a claim
) tests the legal sufficiency of a complaint. Weinschenk, 2005 ME 28, <JI 10, 868 A.2d 200.
Page 7 (!f 11
On a motion to dismiss for failure to state a claim, the facts are not adjudicated.
Marshall, 2015 ME 135, <JI 2, 125 A.3d 1141. The court reviews the material allegations in
the light most favorable to the plaintiff to determine whether the plaintiff has alleged
sufficient facts that, if proven, would entitle the plaintiff to relief pursuant to some legal
theory. Bean, 2008 ME 18, <JI 7, 939 A.2d 676.
Thus, whether Defendant would liable for interest dating back to the filing of the
complaint or the filing of the supplemental pleading is a question of fact that the court
need not decide on a motion to dismiss. That issue may be more appropriately
addressed on summary judgment or at trial. The sole issue before the court on this
motion to dismiss is whether Plaintiff has set forth sufficient facts entitling him to relief
under some legal theory. Here, Plaintiff has alleged sufficient facts in his amended
complaint and his forthcoming supplemental pleading establishing a claim for
indemnity under§ 714 of the MNCA.
C. Immunity
CMMC also asserts that it is absolutely immune from liability for making a
report to the Board under§ 2511 of the MHSA. (Def. Mot. Dismiss 2.) Section 2511 of
the MHSA provides:
Any person acting without malice, any physician, podiatrist, health care
provider, health care entity or professional society, any member of a
professional competence committee or professional review committee,
any board or appropriate authority and any entity required to report
under this chapter are immune from civil liability:
... For making any report or other information available to any board,
appropriate authority, professional competence committee or professional
review committee pursuant to law;
24 M.R.S. § 2511(1) (emphasis supplied).
This court has previously held that §2511 of the MHSA confers absolute
immunity on persons or entities listed in the statute for making a report or providing
Page 8 of 11
information to any board, authority, profession competence committee or professional
review committee pursuant to law. Strong v. Bausman, 2015 Me. Super. LEXIS 110, at *6
(May 5, 2015), aff'd, Strong v. Brakeley, 2016 ME 60, 137 A.3d 1007.
The MHSA defines a "health care provider" as "any hospital, ... in which skilled
nursing care or medical services are prescribed by or performed under the general
direction of persons licensed to practice medicine ... in this State and that is licensed or
otherwise authorized by the laws of this State." 24 M.R.S. § 2502(2).
Section 2506 of the MHSA provides:
A health care provider or health care entity shall, within 60 days, report in
writing to the disciplined practitioner's board or authority the name of
any licensed, certified or registered employee or ... whose employment ...
have been revoked, suspended, limited or terminated . . . for reasons
related to clinical competence or unprofessional conduct,
24 M.R.S. § 2506 (emphasis supplied).
Thus, under the § 2511 of the MHSA, CMMC is absolutely immune from civil
liability for reporting the termination of a registered nurse for reasons of unprofessional
conduct to the Maine State Board of Nursing pursuant to § 2506 of the MHSA.
However, viewing the amended complaint in the light most favorable to
Plaintiff, Count II of the amended complaint does not seek to hold CMMC liable for the
actual act of reporting its "suspicion" to the Board. Rather, Plaintiff's amended
complaint seeks to enforce his statutory right to be indemnified for successfully
defending himself in an action before the Board allegedly brought by reason of his
employment with CMMC. The fact that it was CMMC's report to the Board that
prompted the investigation is not .an essential fact of Plaintiff's claim for indemnity
under§ 714 of the MNCA. Therefore, because Plaintiff's claims against CMMC are not
"for making any report or other information available" to the Board, but for indemnity,
Plaintiff's claims are not barred by§ 2511 of the MHSA.
Page 9 of 11
D. Stay pending the appeal of Lalonde v. Center Maine Medical Center
This court recently reached a similar conclusion on a motion to dismiss in Lalonde
v. Cen ter Maine Medical Center, AUBSC-CV-15-078. In that case, this court concluded
that a doctor's complaint for indemnification for successfully defending himself before
the Maine Board of Licensure in Medicine was not barred by immunity under§ 2511.
Like this case, the court concluded the fact that the licensing board's action against the
doctor was prompted by a report by CMMC to the board was not an essential fact to the
doctor's claim. Like this case, the doctor was not seeking to hold CMMC liable for the
actual act of reporting the doctor to the licensing board. Like this case, the doctor's
complaint was seeking to enforce his right to indemnification.
According to CMMC, the court's denial of the motion to dismiss in Lalonde is
presently on appeal to the Law Court. (Def. Mot. Dismiss 2.) Because of the similarities
between these cases, CMMC asks that the court stay this case pending a decision by the
Law Court in Lalonde on the issue of immunity. (Id.) CMMC cites no authority in
support of its request for a stay pending the resolution of an appeal in an unrelated
case. (Id.)
CMMC' s appeal of the denial of their motion to dismiss in Lalonde is an
interlocutory appeal. See Efstathiou v. Aspinquid, Inc., 2008 ME 145, <II 23, 956 A.2d 110
("The denial of a motion to dismiss is not a final judgment, and ordinarily we would
dismiss the appeal from the denial as an interlocutory appeal."). Unless an issue raised
by an interlocutory appeal meets one of the Law Court's limited exceptions to the final
judgment rule, the Court will ordinarily dismiss the appeal. Irving Oil, Ltd. v. ACE INA
Ins., 2014 ME 62, <I[<I[ 8-10, 91 A.3d 594.
Because CMMC's appeal in Lalonde is interlocutory and may be denied, the Law
Court's decision in Lalonde may not actually resolve the question of whether § 2511 of
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the MHSA bars Plaintiff's claim for indemnity. Moreover Plaintiff's amended
complaint is not limited to his claim for indemnity. Count I of Plaintiff's complaint
alleges violations of the MWP A. (Am. Compl. qp]I 22-26.) It would be unfairly
prejudicial to Plaintiff to require that he await a decision by the Law Court in an
unrelated case, which may not even resolve the relevant issue, before proceeding with
his claims for violations of MWP A and indemnity. Therefore, the court declines to stay
this action pending resolution of the appeal in Lalonde.
IV. CONCLUSION
Plaintiff Christopher King's motion for leave to file a supplemental pleading is
granted. Defendant Central Maine Medical Center shall be permitted to file a
supplemental answer within twenty (20) days after service of the supplemental
pleading upon Defendant.
Defendant Central Maine Medical Center's motion to dismiss Count II of Plaintiff
Christopher King's amended complaint is denied. Defendant Central Maine Medical
Center's request for a stay is also denied.
The Clerk is directed to enter this Order on the civil docket by reference pursuant
to Rule 79(a) of the Maine Rules of Civil Procedure.
Date:
Page 11 of 11
CHRISTOPHER KING - PLAINTIFF SUPERIOR COURT
ANDROSCOGGIN, ss.
Attorney for: CHRISTOPHER KING Docket No AUBSC-CV-2016-00061
- ''f_ISTOPHER TAINTOR - RETAINED
JMAN HANSON & DETROY LLC
TWO CANAL PLAZA DOCKET RECORD
PO BOX 4600
PORTLAND ME 04112-4600
VS
CENTRAL MAINE MEDICAL CENTER - DEFENDANT
Attorney for: CENTRAL MAINE MEDICAL CENTER
MICHAEL POULIN - RETAINED 06/06/2016
SKELTON TAINTOR & ABBOTT
9 5 MAIN STREET
AUBURN ME 04210
Filing Document: COMPLAINT Minor Case Type: OTHER STATUTORY ACTIONS
Filing Date: 05/11/2016
Docket Events:
05/11/2016 FILING DOCUMENT - COMPLAINT FILED ON 05/11/2016
05/11/2016 Party(s): CHRISTOPHER KING
ATTORNEY - RETAINED ENTERED ON 05/11/2016
Plaintiff's Attorney: CHRISTOPHER TAINTOR
;
vo/03/2016 Party(s): CENTRAL MAINE MEDICAL CENTER
SUMMONS/SERVICE - ACCEPTANCE OF SERVICE SERVED ON 05/17/2016
THROUGH MICHAEL POULIN, ESQ.
06/03/2016 Party(s): CENTRAL MAINE MEDICAL CENTER
SUMMONS/SERVICE - ACCEPTANCE OF SERVICE FILED ON 05/31/2016
06/08/2016 Party(s): CENTRAL MAINE MEDICAL CENTER
MOTION - MOTION TO DISMISS FILED ON 06/06/2016
DEFENDANT WITH PROPOSED ORDER
06/08/2016 Party(s): CENTRAL MAINE MEDICAL CENTER
MOTION - MOTION TO IMPOUND FILED ON 06/06/2016
TO IMPOUND EXHIBIT TO MOTION TO DISMISS
06/17/2016 Party(s): CENTRAL MAINE MEDICAL CENTER
MOTION - MOTION TO IMPOUND GRANTED ON 06/16/2016
MARYGAY KENNEDY, JUSTICE
THE COURT HEREBY ORDERS THAT EXHIBIT A APPENDED TO THE DEFENDANT'S MOTION TO DISMISS SHALL
BE SEALED AND TREATED AS CONFIDENTIAL BY THE COURT AND THE PARTIES UNTIL FURTHER ORDER.
COPIES TO PARTIES
06/17/2016 Party(s): CENTRAL MAINE MEDICAL CENTER
ATTORNEY - RETAINED ENTERED ON 06/06/2016
Defendant's Attorney: MICHAEL POULIN
I
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Page 1 of 2 Printed on: 09/28/2016