WHITEHOUSE et al v. PRUDENTIAL INSURANCE COMPANY OF AMERICA

Filing 41

ORDER ON MOTION FOR RECONSIDERATION OF DECISION AND ORDER ON MOTION TO DISMISS - denying 36 Motion for Reconsideration. By JUDGE D. BROCK HORNBY. (mnw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
NANCY WHITEHOUSE,

ET AL.,

PLAINTIFFS
v.
PRUDENTIAL INSURANCE
COMPANY OF AMERICA,
DEFENDANT

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NO. 2:12-CV-214-DBH

ORDER ON MOTION FOR RECONSIDERATION OF
DECISION AND ORDER ON MOTION TO DISMISS
The plaintiffs’ motion for reconsideration is DENIED.
In my Order of January 2, 2013, I denied Prudential’s motion to dismiss
the plaintiffs’ retaliation claims in their Amended Complaint so far as the Fair
Labor Standards Act (FLSA) is concerned. I granted the motion to dismiss all
their state law retaliation claims, however, because the plaintiffs failed to
oppose that part of the motion. Decision and Order on Motion to Dismiss (ECF
No.

33).

The

plaintiffs

now

say

that

in

doing

so,

I

got

it

wrong

(“misapprehended”). Mot. for Reconsideration (ECF No. 36). The plaintiffs are
incorrect.
The Amended Complaint had four counts: “Violation of State and Federal
Wage and Hour Law”; “Discrimination (Retaliation) Against Plaintiffs”; “Breach
of Contract”; and “Final Wage Claims.” Amended Complaint (ECF No. 26).

In its motion to dismiss for failure to state a claim, Prudential focused on
Count II and argued that “Plaintiffs’ purported retaliation claims, however, fail
to sufficiently allege a plausible claim for relief and seek damages not available
as a matter of law. These purported retaliation[] claims should therefore be
dismissed at this time.” Mot. to Dismiss at 2 (ECF No. 27)(emphasis added).
Likewise, “all of Plaintiffs’ individual retaliation claims, under the FLSA and
state law, should be dismissed.” Id. at 8 (emphasis added). Although the text
of Prudential’s memorandum focused on the federal statute, in a footnote it
stated: “Plaintiff Whitehouse also asserts a retaliation claim under the Maine
law, specifically referencing 26 M.R.S. § 671 (Compl. ¶ 34). . . . Plaintiff
Whitehouse has not alleged that she made any such complaint to a government
official, and as such, the retaliation claims under state law should be
dismissed.” Id. at 3 n.1 (emphasis added).
In their response to the motion, the plaintiffs argued only federal law and
did not bother to respond at all to Prudential’s request to dismiss state law
retaliation claims. Pls.’ Mem. In Opp’n to Def’s. Mot. to Dismiss passim (ECF
No. 28).
Prudential pointed out the plaintiffs’ lack of opposition to dismissal of
their state law retaliation claims in its Reply: “Defendant moved to dismiss
Whitehouse’s purported Maine law retaliation claim, since that law requires
that a complaint be made to a governmental official, and Whitehouse alleges no
such complaint. . . . Whitehouse has not argued in opposition, and as a result,
any retaliation claims under state law should be dismissed.” Reply in Support to
Mot. to Dismiss at 2 n.2 (emphasis added).
2

When the briefing on the motion to dismiss was completed, I canvassed
the parties’ arguments on the federal claims and denied Prudential’s motion to
dismiss the FLSA claims.

But, seeing no argument from the plaintiffs that

their state law retaliation claims should proceed, I granted the motion to
dismiss those claims. See Local Rule 7(b).
In their motion for reconsideration, the plaintiffs now say that the
plaintiff Whitehouse has a Maine Whistleblower Protection Act claim as part of
her state retaliation claims and that I should not have dismissed that
particular state claim. Mot. for Reconsideration at 1.

Putting aside the

question whether the Amended Complaint properly alerted Prudential and the
court that Whitehouse was making such a claim,1 nowhere in their opposition
to the motion to dismiss did the plaintiffs support any state law claim, despite
Prudential’s request to dismiss “all” state law retaliation claims. The plaintiffs’
explanation for how this was not a waiver is: “Plaintiffs’ opposing memorandum
Paragraph 1, a general introductory paragraph, states that “Prudential wrongfully terminated
their employment as part of its illegal practice of forcing from employment or firing all workers
who assert their rights under this state and country’s wage and hour laws.” Amended
Complaint ¶ 1. Generally thereafter, the Amended Complaint refers to “the FLSA and the Maine
Wage-and-Hour Law” and the employment contract.
Count II is the plaintiffs’
discrimination/retaliation claim. Paragraph 26 states: “Prudential retaliated and discriminated
against Plaintiffs for asserting their rights and making claims under the FLSA and, in Ms.
Whitehouse’s case, the Maine Wage and Hour Laws, which discrimination violated those
statutes and other state laws prohibiting discrimination against so-called whistleblowers.” Id.
¶ 26. Thereafter, Count II refers to state and federal “wage and hour laws.” Id. ¶¶ 27©, 27(h),
27(j) and 27(k). The final numbered paragraph of Count II states: “Nancy Whitehouse also
asserts a claim under Maine common and statutory law, including 26 M.R.S. § 671 for all of
the damages and other relief referenced in the preceding paragraph.” Id. ¶ 34. Nowhere are
Maine’s Whistleblower statute, 26 M.R.S.A. § 831 et seq., and the Maine Human Rights Act, 5
M.R.S.A. § 4551 et seq. (the basis for any private cause of action for a whistleblower violation)
even mentioned. Tripp v. Cole, 425 F.3d 5, 8 n.2 (1st Cir. 2005)(“The MWPA prohibits
discrimination against employees because of whistleblowing activities, but the MHRA provides
the individual cause of action for an MWPA violation.”). Section 671, which the Amended
Complaint does mention, is actually a penalty provision providing for fines and Attorney
General proceedings for violation of the subchapter on minimum wages. So the only notice of a
private cause of action for a whistleblower violation as such is the passing reference in ¶ 26.
1

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did not include separate discussion of the MWPA because defendant simply
never brought it into question.” Id. at 6. In other words, I was correct to infer
that the plaintiffs’ total failure to mention state law retaliation claims was a
waiver of objection to dismissal, but I should have figured out that the waiver
was only as to some, not all, state law retaliation claims.
That is insufficient.

Prudential asked to dismiss “all” state law

retaliation claims. If the plaintiffs had a basis for some, but not all, of such
state law claims to survive, they should have told me (and the defendant) then,
when the court’s time and attention were engaged on the retaliation
arguments, not belatedly now.
The motion for reconsideration is DENIED.
SO ORDERED.
DATED THIS 26TH DAY OF FEBRUARY, 2013

/S/ D. BROCK HORNBY_____________
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

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