Berenson v. Administrators of the Tulane University Educational Fund

Filing 24

ORDER granting #9 Motion to Dismiss. Plaintiff's claims for age discrimination are DISMISSED WITH PREJUDICE. Plaintiff's claim for tortious interference with his contract with LSU is also DISMISSED WITH PREJUDICE. Plaintiff's claim for tortious interference with his contract with Tulane is DISMISSED WITHOUT PREJUDICE. Plaintiff has 21 days to amend his complaint with regard to tortious interference with his contract with Tulane. Signed by Judge Sarah S. Vance on 7/11/2017. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DR. GERALD S. BERENSON
VERSUS

CIVIL ACTION
NO. 17-329

THE ADMINISTRATORS OF THE
TULANE UNIVERSITY
EDUCATIONAL FUND

SECTION “R” (2)

ORDER AND REASONS
Defendant, the Administrators of the Tulane Educational Fund, 1
(“Tulane”) moves to dismiss in part plaintiff’s complaint. 2 For the following
reasons, the Court grants the motion.

I.

BACKGROUND
A.

Factual Background

Plaintiff Dr. Gerald Berenson is a 94 year-old medical doctor, scientist
and professor. 3 Berenson joined the faculty of Louisiana State University
(LSU) in or about 1954. 4 Berenson began working at Tulane University in

Defendant was incorrectly designated as “The Administrators of the
Tulane University Educational Fund.” See R. Doc. 1.
2
R. Doc. 9.
3
R. Doc. 13 at 2 ¶ 4.
4
Id. at 2 ¶ 6.
1

1991. 5 According to his complaint, Berenson founded, led and directed the
Bogalusa Heart Study while a faculty member at LSU and Tulane. 6
Berenson alleges that in 2014, Tulane substantially cut his salary
without notice or justification and discontinued benefits provided by Tulane
to him and his wife. 7 Berenson also alleges that Tulane removed him from
his role as an investigator on several grants without legitimate basis. 8 On or
about June 30, 2016, Tulane terminated Berenson’s employment as a
Research Professor in the Department of Epidemiology of Tulane’s School of
Public Health and Tropical Medicine.9
Berenson alleges that Tulane, through Department of Epidemiology
Dean Pierre Buekens and Chairman of Epidemiology Dr. Jiang He, acted
unilaterally to diminish Berenson’s involvement and role in the Bogalusa
Heart Study. 10

Tulane formed a “Steering Committee” chaired and

controlled by Dr. Lydia Bazanno. 11 According to the complaint, Tulane used
the Steering Committee to control virtually all aspects of the Bogalusa Heart
Study, including Berenson’s access to research data, materials, and

5
6
7
8
9
10
11

Id. at 3 ¶ 7.
Id. at 3 ¶ 9.
Id. at 5 ¶ 15.
Id. at 4-5 ¶ 14-15.
R. Doc. 13 at 6 ¶ 18.
Id. at 5 ¶ 16.
Id.
2

specimens.12 Berenson contends that Tulane’s use of the Steering Committee
to control the Bogalusa Heart Study violated applicable law, grant
conditions, NIH requirements and regulations, and Berenson’s agreements
with Tulane. 13
Tulane also allegedly distributed letters to Berenson’s colleagues and
collaborators notifying them of the Steering Committee’s formation and of
its control of the Bogalusa Heart Study. 14 Berenson contends that these
letters implied that he had done something wrong and caused damage to his
reputation and standing. 15
According to the complaint, Tulane has denied Berenson access to
grant funds, the Bogalusa Heart Study and other research data, materials and
specimens needed to carry out his work.16 Berenson alleges that younger
employees of Tulane in similar positions have not been denied such access. 17
Berenson further alleges that Tulane has improperly asserted control over
data, specimens, and materials generated through grants originated and
carried out by LSU.18

12
13
14
15
16
17
18

Id.
Id. at 5 ¶ 16.
Id. at 5-6 ¶ 17.
R. Doc. 13 at 6 ¶ 17.
Id. at 6 ¶ 18.
Id.
Id. at 7 ¶ 22.
3

B. Procedural Background
Berenson initially filed a petition in state court in September 2016,
asserting claims for breach of contract, age discrimination in violation of the
Louisiana law, interference with employment, and damage to reputation.19
Berenson also requested a declaratory judgment that Tulane has no legal
right to control Bogalusa Heart Study data, materials, or specimens; or
alternatively, that Tulane has no legal right to control Bogalusa Heart Study
data generated or collected during Berenson’s time at LSU.20 Finally,
Berenson sought a judgment declaring that he is entitled to access all
Bogalusa Heart Study related data in connection with his employment with
LSU and Tulane. 21
Tulane filed peremptory exceptions of no right of action to dismiss
Berenson’s state law claims for age discrimination, interference with
employment, damage to reputation, and declaratory relief.22 The state court
dismissed Berenson’s state law age discrimination claim with prejudice on
the basis that Tulane is not an “employer” under the Louisiana Employment
Discrimination Law, La. R.S. 23:301, et seq. 23 The state court also dismissed

19
20
21
22
23

R. Doc. 1-4 at 1-8.
Id. at 11-12.
Id. at 12.
Id. at 18.
R. Doc. 1-18 at 86.
4

Berenson’s defamation claim, with leave to amend the claim within forty five
days.24
The state court denied Tulane’s peremptory exception to dismiss
Berenson’s claims of tortious interference with an employment contract,
tortious interference with business relations, and tortious interference with
an economic advantage. 25 The court also denied Tulane’s peremptory
exception to dismiss Berenson’s claim for declaratory relief. 26
On November 21, 2016, Berenson received a “right to sue” letter from
the U.S. Equal Employment Opportunity Commission authorizing him to file
claims against Tulane pursuant to the federal Age Discrimination in
Employment Act of 1967 (ADEA), 29 U.S.C. § 621, et. seq.27 On December
14, 2016, Berenson filed a First Amended Petition in state court adding
ADEA age discrimination claims against Tulane. 28
On January 12, 2017, Tulane removed the case to this Court. 29 On
February 9, 2017, Tulane filed a motion to dismiss in part Berenson’s First
Amended Petition under Federal Rule of Civil Procedure 12(b)(6).30 On the

24
25
26
27
28
29
30

Id. at 87.
Id. at 87.
Id. at 87.
R. Doc. 1-1 at 20.
R. Doc. 1-1.
R. Doc. 1 at 1-4.
R. Doc. 9.
5

same day, Berenson filed an unopposed motion for leave to file a Second
Amended Complaint. 31 The Court granted the motion. 32 In his Second
Amended Complaint, Berenson asserts claims against Tulane for breach of
contract, age discrimination in violation of both Louisiana law and the
ADEA, interference with employment, and defamation. 33 Berenson also
seeks declaratory relief. 34

II.

LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead

“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)). A claim is facially
plausible when the plaintiff pleads facts that allow the court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Id. at 678. A court must accept all well-pleaded facts as true and must draw
all reasonable inferences in favor of the plaintiff. See Lormand v. US
Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).

31
32
33
34

R. Doc. 10.
R. Doc. 12.
R. Doc. 13.
Id.
6

A legally sufficient complaint must establish more than a “sheer
possibility” that the plaintiff’s claim is true. Iqbal, 556 U.S. at 678. It need
not contain detailed factual allegations, but it must go beyond labels, legal
conclusions, or formulaic recitations of the elements of a cause of action. Id.
In other words, the face of the complaint must contain enough factual matter
to raise a reasonable expectation that discovery will reveal relevant evidence
of each element of the plaintiff’s claim. Lormand, 565 F.3d at 257. The claim
must be dismissed if there are insufficient factual allegations to raise a right
to relief above the speculative level, Twombly, 550 U.S. at 555, or if it is
apparent from the face of the complaint that there is an insuperable bar to
relief, Jones v. Bock, 549 U.S. 199, 215 (2007).

III. DISCUSSION
Tulane moves to dismiss Berenson’s state law claims of age
discrimination, defamation, and tortious interference with employment
contract. 35 Tulane also contends that Berenson is not entitled to punitive
damages on his state law claims and is not entitled to either punitive or
general damages under the ADEA.36

35
36

R. Doc. 9-1.
R. Doc. 9-1.
7

Tulane’s motion to dismiss is directed at Berenson’s First Amended
Petition. 37 Berenson has since filed, with Tulane’s consent and leave of the
Court, a Second Amended Complaint. 38 The Second Amended Complaint
includes few substantive changes to the majority of the claims challenged by
Tulane in this motion. The Court will therefore consider Tulane’s motion to
dismiss in relation to Berenson’s most recent amended complaint. See
Nguyen v. Hung Do, No. 13-2537, 2013 WL 6665722, at *1-2 (E.D. La. Dec.
16, 2013) (motion to dismiss is not made moot by filing of amended
complaint); 6 Wright & Miller, Federal Practice and Procedure § 1476 (3d.
ed. 2017) (“[D]efendants should not be required to file a new motion to
dismiss simply because an amended pleading was introduced while their
motion was pending. . . . [T]he court simply may consider the motion as being
addressed to the amended pleading.”). The Court considers the arguments
in Tulane’s motion to dismiss in turn.
A. Age Discrimination Under Louisiana Law
The state court dismissed Berenson’s state law age discrimination
claim with prejudice on the grounds that Tulane is not an employer under
the Louisiana Employment Discrimination Law, La. R.S. 23:301, et seq. 39

37
38
39

R. Doc. 9.
R. Doc. 13.
R. Doc. 1-18 at 86.
8

The Louisiana Employment Discrimination Law does not apply to private
educational or religious institutions or nonprofit corporations. La. R.S.
23:302(2)(b). Berenson concedes that his state law age discrimination claim
was dismissed without leave to amend, but he states that he wishes to reserve
his right to appeal.40
It is a “well-established principle that ‘when a case is removed the
federal court takes it as though everything done in the state court had in fact
been done in the federal court.’” Murray v. Ford Motor Co., 770 F.2d 461,
464 (5th Cir. 1985) (citing Savell v. Southern Ry., 93 F.2d 377, 379 (5th Cir.
1937). A plaintiff does “not waive his right to appeal the order dismissing his
claim . . . by filing an amended complaint which fail[s] to make reference to
that alleged cause of action.” Wilson v. First Houston Inv. Corp., 566 F.2d
1235, 1237 (5th Cir. 1978), judgment vacated on other grounds, 444 U.S. 959
(1979). Berenson did not have leave to amend his complaint to re-plead a
state law age discrimination claim, and the Court dismisses this claim.
B. Defamation
Tulane also moves to dismiss Berenson’s claim for defamation. 41 The
state court dismissed Berenson’s defamation claim with leave to amend.42

40
41
42

R. Doc. 17 at 9-10.
R. Doc. 9 at 6-7.
R. Doc. 1-18 at 87.
9

Berenson contends that his complaint has since been amended to state a
cause of action for defamation. 43
While Berenson’s Second Amended Complaint is somewhat more
specific than his original petition, the amended complaint still fails to state a
claim for defamation. Under Louisiana law, “[i]n order to prevail in a
defamation action, a plaintiff must necessarily prove four elements: (1) a
false and defamatory statement concerning another; (2) an unprivileged
publication to a third party; (3) fault (negligence or greater) on the part of
the publisher; and (4) resulting injury.” Fitzgerald v. Tucker, 737 So.2d 706,
715 (La. 1999). “In other words, a plaintiff must prove ‘that the defendant,
with actual malice or other fault, published a false statement with
defamatory words which caused plaintiff damages.’” Id. (quoting
Trentecosta v. Beck, 703 So.2d 552, 559 (La. 1997).
In both his original petition and his Second Amended Complaint,
Berenson alleges that Tulane injured his reputation by sending out letters to
colleagues and collaborators notifying them that the Steering Committee had
taken over control of the Bogalusa Heart Study.44 Berenson contends that

43
44

R. Doc. 17 at 10.
R. Doc. 1-4 at 4 ¶ 17; R. Doc. 13 at 5-6 ¶ 17.
10

these letters implied that he had done something wrong and damaged his
reputation and standing.45
Berenson’s Second Amended Complaint adds some additional details
to his original petition. The amended complaint states that Tulane’s letters
contained language “advising or implying that Berenson would no longer
head, control, develop, grow or be the contact for collaborations with the
Study.”46 Specifically, the letters allegedly stated that “another generation of
Tulane investigators is now moving the study to the next level” and that
collaborators should work through the Steering Committee rather than
Berenson.47 Berenson asserts that Tulane has continued to represent to
colleagues that Berenson does not have access to the Bogalusa Heart Study. 48
Berenson does not state a claim for defamation because he has not
adequately pleaded that Tulane’s statements were false. Although Berenson
asserts that Tulane’s letters implied he had done something wrong, he does
not specify why the letters would have that implication. Nor does he explicitly
allege that the implication was false. Berenson also fails to adequately allege
that Tulane’s other statements were false. The information in Tulane’s

45
46
47
48

Id.
R. Doc. 13 at 13 ¶ 43.
Id.
Id. at 14 ¶ 44.
11

letters is consistent with Berenson’s own factual allegations that Tulane
replaced him as head of the Bogalusa Heart Study and prevented him from
accessing study data.49 While Berenson argues that Tulane acted wrongfully
in curbing his involvement in the study, he has not indicated that Tulane’s
description of the current status of the study’s management is inaccurate.
Berenson’s Second Amended Complaint does assert that these
“intentional and malicious, or alternatively negligent, statements were
untrue and defamatory and/or carry or have carried false and defamatory
implications about Dr. Berenson.” 50 Yet these are legal conclusions without
factual support, and the Court is not required to accept them as true. See
Iqbal, 556 U.S. at 678. Berenson has therefore failed to state a cause of action
for defamation, and the Court dismisses this claim.
C. Tortious Interference with Employment Contract
Tulane moves to dismiss Berenson’s claim for tortious interference
with employment contract. 51 Berenson argues that his tortious interference
claim should not be dismissed because the state court’s denial of Tulane’s

49
50
51

R. Doc. 13 at 4-7.
Id. at 14 ¶ 45.
R. Doc. 9-1 at 10.
12

peremptory exception regarding the same claim should be considered the
“law of the case” on this issue.52
The Court is not bound by the state court’s denial of a peremptory
exception. “[W]henever a case is removed, interlocutory state court orders
are transformed by operation of 28 U.S.C. § 1450 into orders of the federal
district court to which the action is removed.” Nissho-Iwai American Corp.
v. Kline, 845 F.2d 1300, 1304 (5th Cir. 1988). The “district court is not
precluded by the law-of-the-case doctrine from reconsidering previous
rulings on interlocutory orders,” including a state court’s denial of a
defendant’s peremptory exception. Louisiana v. Guidry, 489 F.3d 692, 698
(5th Cir. 2007) (internal citation omitted); see also Marshall v. Hunter, 670
F. App’x 221, 222 (5th Cir. 2016) (“[T]he district court is free to reconsider
an interlocutory decision upon removal.”).
Berenson has not stated a claim for tortious interference with contract.
In 9 to 5 Fashions, Inc. v. Spurney, the Louisiana Supreme Court recognized
a narrow cause of action for tortious interference with contract. 538 So. 2d
228, 229 (La. 1989). This claim requires five separate elements: “(1) the
existence of a contract or a legally protected interest between the plaintiff
and the corporation; (2) the corporate officer’s knowledge of the contract; (3)

52

R. Doc. 17 at 12.
13

the officer’s intentional inducement or causation of the corporation to breach
the contract or his intentional rendition of its performance impossible or
more burdensome; (4) absence of justification on the part of the officer; (5)
causation of damages to the plaintiff by the breach of contract or difficulty of
its performance brought about by the officer.” Id at 234. A plaintiff must
prove all five elements to prevail on his claim. Oliver v. Orleans Parish
School Bd., 133 So. 3d 38, 47 (La. App. 4 Cir. 2014).
Berenson primarily alleges that Tulane interfered with his employment
contract with LSU, a third-party employer. 53
maintained under current Louisiana law.

This claim cannot be

In Spurney, the Louisiana

Supreme Court recognized “only a corporate officer’s duty to refrain from
intentional and unjustified interference with the contractual relation
between his employer and a third person.” Spurney, 538 So. 2d at 234
(emphasis added). Berenson brings this suit against Tulane, and does not
allege that any officer of LSU interfered with Berenson’s contractual
relationship with LSU.
Louisiana appellate courts have narrowly construed this cause of
action and have declined to recognize tortious interference with contract
claims outside the specific context of a corporate officer and a contract

53

R. Doc. 13 at 12 ¶ 42.
14

involving that officer’s own employer. See Petrohawk Properties, L.P. v.
Chesapeake Louisiana, L.P., 689 F.3d 380, 395-96 (5th Cir. 2012)
(recognizing limited nature of Louisiana’s tortious interference with contract
claim); Gulf Engineering Co., LLC v. Kuhn, 209 So. 3d 1029, 1033 (La. App.
5 Cir. 2016) (no cause of action because defendant was not a corporate
officer); Tolliver v. Broussard, 155 So. 3d 137, 146 (La. App. 3 Cir. 2014)
(affirming dismissal of claim because defendant was “not a corporate official
whose employer has a contract” with intervenor); Favrot v. Favrot, 68 So.
3d 1099, 1111 (La. App. 4 Cir. 2011) (the Louisiana “Supreme Court
recognized only a corporate officer’s duty to refrain from intentional and
unjustified interference with the contractual relation between his employer
and a third person.”) (internal citation omitted); Durand v. McGaw, 635 So.
2d 409, 410, 412 (La. App. 4 Cir. 1994) (where plaintiff and defendant
employed by different firms, defendant had no duty to refrain from
complaining about plaintiff to plaintiff’s employer).
Berenson does not cite any Louisiana case, except for the state court’s
decision in this matter, recognizing a claim for tortious interference with
contract based on a corporation’s interference with an employment contract
involving two third parties. Berenson has therefore not stated a claim for
tortious interference with his contract with LSU.
15

To the extent that Berenson alleges that Tulane interfered with his
employment contract with Tulane, he also fails to state a claim. Berenson
brings this suit against Tulane as an entity and does not name any individual
corporate officers as defendants. Louisiana state courts and federal courts
applying Louisiana law have made clear that claims for tortious interference
with contract cannot be maintained against corporate entity defendants. See
Petrohawk Properties, L. 689 F.3d 380 at 395 (noting cause of action has
not been extended to corporate entity defendants); Technical Control
Systems, Inc. v. Green, 809 So. 2d 1204, 1209 (La. App. 3 Cir. 2002) (holding
that tortious interference with contract “should not be expanded to include
corporate entity defendants.”); see also Hi-Tech Elec., Inc. v. T&B Constr.
and Elec. Serv., Inc., No. 15-3034, 2017 WL 615414, at *3 (E.D. La. Feb. 15,
2017); Magnolia Fin. Grp. v. Antos, No. 15-7144, 2016 WL 7407174, at *3
(E.D. La. Dec. 22, 2016); Boudreaux v. OS Restaurant Services, 58
F.Supp.3d 634, 638 (E.D. La. Sept. 30, 2014).
Berenson asserts that he stated claims for tortious interference with
business relations and tortious interference with an economic advantage.54
Tulane’s motion to dismiss is directed only to Berenson’s tortious
interference with contract claim, which is the claim the Court rules on here.

54

R. Doc. 17 at 12-15.
16

D. Damages
Finally, Tulane moves to dismiss Berenson’s claims for punitive
damages as well as his claims for general and compensatory damages under
the ADEA relating to pain and suffering, emotional distress, or anguish.
Berenson acknowledges that he cannot recover general damages under the
ADEA. 55 See Vaughan v. Anderson Reg’l Med. Ctr., 849 F.3d 588, 591, 594
(5th Cir. 2017).
Berenson also concedes that he cannot recover punitive damages on
any of his claims. 56 See Vaughan, 849 F.3d at 594 (punitive damages not
available under the ADEA); Ross v. Conoco, Inc., 828 So. 2d 546, 555 (La.
2002) (“In Louisiana, there is a general public policy against punitive
damages” and punitive damages “are not allowable unless expressly
authorized by statute.”). Accordingly, the Court finds that Berenson is not
entitled to general damages under the ADEA and is not entitled to punitive
damages on any of his current claims. Berenson argues that he is entitled to
liquidated damages and statutory penalties under the ADEA. 57 Tulane’s
motion to dismiss does not address statutory penalties or liquidated
damages under the ADEA and that issue is not properly before the Court.

55
56
57

Id. at 11.
Id.
Id.
17

E. Leave to Amend
Berenson has requested the opportunity to amend his complaint if
Tulane’s motion is granted.58 The Court will “freely give leave [to amend]
when justice so requires.” Fed. R. Civ. P. 15(a). The Supreme Court has held
that “[i]f the underlying facts or circumstances relied upon by a plaintiff may
be a proper subject of relief, he ought to be afforded an opportunity to test
his claim on the merits.” Foman v. Davis, 371 U.S. 178, 182 (1962).
Leave to amend, however, “is by no means automatic.” Halbert v. City
of Sherman, 33 F.3d 526, 529 (5th Cir. 1994). The Court considers multiple
factors, including “undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, [and] futility of amendment.” Foman, 371 U.S. at 182.
After consideration of these factors, the Court denies leave to amend
the state law age discrimination claim because that claim has already been
dismissed with prejudice. The Court further denies leave to amend the
defamation claim because Berenson has previously had the opportunity to
amend and failed to cure deficiencies. The Court also denies leave to amend
with regard to punitive and general damages because those claims are

58

Id. at 15.
18

foreclosed by current law. The Court denies leave to amend the tortious
interference with contract claim as it relates to Berenson’s contract with LSU.
The Court grants leave to amend the tortious interference with contract claim
as it relates to Berenson’s contract with Tulane.

IV.

CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss is

GRANTED. Plaintiff’s claims for age discrimination in violation of Louisiana
law, defamation, general compensatory damages under the ADEA, and
punitive damages are DISMISSED WITH PREJUDICE. Plaintiff’s claim for
tortious interference with his contract with LSU is also DISMISSED WITH
PREJUDICE. Plaintiff’s claim for tortious interference with his contract with
Tulane is DISMISSED WITHOUT PREJUDICE. Plaintiff has 21 days to
amend his complaint with regard to tortious interference with his contract
with Tulane.
11th
New Orleans, Louisiana, this _____ day of July, 2017

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

19