Abdallah v. Bain Capital, LLC

Filing 40

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered granting 10 Motion to Dismiss for Failure to State a Claim; the clerk is directed to enter a judgment of dismissal for the defendant expressly stating that it is with prejudice. (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MURIELLE ABDALLAH, Individually
and on Behalf of All Other
Persons Similarly Situated,
Plaintiff,
v.
BAIN CAPITAL LLC,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO.
12-12027-DPW

MEMORANDUM AND ORDER
July 9, 2013
This is Plaintiff’s fourth attempt to hold Defendant Bain
Capital liable for labor violations committed in France.
the previous attempts has proved successful.

None of

This one is no

different.
Most recently, in dealing with plaintiff’s third attempt to
mount an attack on plaintiff’s purported violations, Judge Tauro
dismissed a substantively identical complaint on statute of
limitations grounds approximately one year ago.

See Abdallah v.

Bain, 880 F. Supp. 2d 190, 199 (D. Mass. 2012).

Judge Tauro held

that Plaintiff failed to file her claims within the statutorily
authorized period and neither the discovery rule nor the
fraudulent concealment doctrine nor the doctrine of equitable
tolling applied to excuse Plaintiff’s delay.

Id.

In her new complaint (erroneously assigned to this session
because Plaintiff failed to identify this case as related to the

case she unsuccessfully litigated before Judge Tauro)1 and her
opposition to Defendant’s motion to dismiss, Plaintiff does not
contend that she has learned any new information since Judge
Tauro dismissed her case.

Rather, she urges reconsideration of

Judge Tauro’s prior dismissal based on an argument that was both
available to and known by her but that she elected not to raise
at the time she opposed the previous dismissal.

Her newly

alleged facts and newly asserted arguments do not alter the
outcome: her claim remains untimely and I grant Defendant’s
motion to dismiss on that ground.
I
This case arises out of a mass layoff that occurred when a
Samsonite luggage factory in France went bankrupt and was shut
down in a February 2008 judicial liquidation under the
supervision of the Tribunal de Commerce of Paris.
40-41.)

(See Compl. ¶¶

Plaintiff Abdallah was one of the factory workers who

lost her job.

(Id.)

She filed lawsuits in two other French

courts against Samsonite alleging that Samsonite had engaged in a

1

Under Local Rule 40.1(G), when a case, such as this, involving
the same claims and defenses as a case not closed two or more
years earlier is filed the plaintiff must alert the Clerk so that
the case can be assigned to the judge in the earlier filed case.
Plaintiff did not provide such notice to the clerk here.
Nevertheless, rather than further delay resolution of this case
by arranging reassignment to Judge Tauro, I have determined to
act in this matter without the additional procedural steps
designed by Local Rule 40.1 to avoid the potential for judge
shopping by litigants dissatisfied with one judge who file a
related case in the hope of drawing a different one.
2

fraudulent scheme to transfer ownership of the factory to HB
Group for the purpose of avoiding its obligations to the fired
employees under French employment law.
63.)

(See Compl. ¶¶ 49-59, 60-

Plaintiff also named Bain as a defendant because Bain was

Samsonite’s primary shareholder.

(See Compl. ¶¶ 6, 46, 49, 60.)

In 2008, both courts found in favor of the Plaintiff as to
Samsonite but dismissed the claims against Bain.

(See Compl. ¶¶

59, 61, 63.)
Abdallah filed her first United States complaint against
Bain in the District of Massachusetts in November 2011, three
years after losing her cases against Bain in the French courts
and more than four years after her actual termination.

The

statutory period for bringing each of Plaintiff’s claims had
already lapsed.
199.

See Abdallah, 880 F. Supp. 2d at 195, 195 n.26,

Judge Tauro specifically rejected Plaintiff’s argument that

certain new information Plaintiff learned in September 2011 from
Jean-Jacques Aurel, the owner-operator of HB Group, might toll
the statutes of limitations based on the discovery rule, or
provide grounds for invoking the doctrines of fraudulent
concealment or equitable tolling.

See generally id.

However,

Judge Tauro also held out the possibility that “[i]f additional
facts regarding the information that came to light in September
2011 would justify invoking any of the doctrines discussed above,

3

Abdallah may refile a complaint that includes specifics regarding
the doctrine she wishes to invoke.”

Id. at 199.

II
Plaintiff filed the instant new complaint in this court on
October 30, 2012, at that point four years after losing her cases
against Bain in the French courts and more than five years after
her actual termination.

She does not contend that she learned

any new information after opposing the motion to dismiss her
previous complaint before Judge Tauro.

She does not dispute that

her claim accrued on February 15, 2007, the date that the Paris
Tribunal de Commerce ordered the judicial liquidation of the
factory and the date Abdallah learned that she would lose her
job.

She also does not challenge Judge Tauro’s denial of her

discovery-rule argument, relying here only on the doctrines of
fraudulent concealment and equitable tolling.

Rather, she

asserts that her new complaint contains five new facts that she
knew but did not raise before:
(1) Bain itself designed the fraudulent scheme to transfer
the factory to HB Group, (see Compl. ¶ 74),
(2) Bain had intended to illegally shift the costs of
shutting down the factory when it proposed the plan to
Samsonite, (see Compl. ¶¶ 19, 25),2

2

Although Plaintiff includes this allegation of intent in her
list of additional facts, I note that the paragraphs of the
Complaint she cites in support are mere “‘[n]aked assertion[s]’
4

(3) A Bain officer recruited a PR consultant who found the
party to purchase the factory, (see Compl. ¶ 75),
(4) During a 2012 criminal trial in France, another member
of HB Group corroborated Aurel’s September 2011 affidavit,
(see Compl. ¶ 77), and
(5) Bain lied in the French courts when it said that it was
a “stranger” to the acts that constituted the fraud, (see
Compl. ¶¶ 47, 73).
The first four newly asserted ‘facts’ are simply further
allegations in support of the underlying substantive claim that
Bain, in fact, participated in the fraudulent scheme.

They do

not show that Bain actively concealed any cause of action from
Plaintiff.

They do not qualify as the kind of “additional facts

. . . justify[ing] invoking any of the [three tolling] doctrines”
Judge Tauro referred to in his decision, nor do they support
Plaintiff’s attempt to surmount the statute of limitations in
this case.

Only the last newly asserted fact - that Bain lied

about its role - even arguably supports Plaintiff’s fraudulent
concealment and equitable tolling arguments.

But, on closer

examination, the assertion that Bain lied in representing that it
was a “stranger” to the underlying fraud does not support

devoid of ‘further factual enhancement’” and are therefore
conclusory allegations not entitled to the assumptions of truth
normally attendant on allegations at the pleading stage.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 557 (2007)).
5

Plaintiff’s effort to avoid application of the statute of
limitations.
A.

Fraudulent Concealment
Massachusetts law allows for tolling of the statute of

limitations where “a person liable to a personal action
fraudulently conceals the cause of action from the knowledge of
the person entitled to bring it.”
added).

M.G.L. 260 § 12 (emphasis

Where, as here, there is no fiduciary duty between

plaintiff and defendant, Massachusetts law will only toll the
statute of limitations for “some affirmative act done with intent
to deceive.”

White v. Peabody Constr. Co., 434 N.E.2d 1015, 1022

(Mass. 1982); accord Salvas v. Wal-Mart Stores, Inc., 893 N.E.2d
1187, 1217 (Mass. 2008)(“Absent a fiduciary or other special
duty, which the plaintiffs do not here assert, active fraud is
ordinarily required to prove fraudulent concealment.”).
Plaintiff’s reliance on Bain’s statement before the French
Court is misguided.

A defendant’s denial of responsibility for

acts and conditions of which the plaintiff is fully aware does
not toll the statute of limitations on fraudulent concealment
grounds.

See White, 434 N.E.2d at 1023.

Plaintiff’s knowledge

of the circumstances surrounding Bain’s involvement is clear from
her pleadings in the French-court litigations.

Her March 25,

2008 pleading before the Tribunal d’Instance stated,
the documents in the file show that the shareholders of
Samsonite, especially through the active brokerage of
6

Bain Capital, intervened directly in the organization
of the disputed operation, which they wanted and partly
orchestrated.
(Kudish Affidavit, Ex. B. at 47.)

Plaintiff represented to the

French court that Bain Capital was actively involved in the
fraudulent transaction and that she had documentary evidence in
her file to support that position.

She stated that Bain could

and should “be called to answer for the damaging consequences of
the fraudulent operation; it is appropriate to enforce against
[Bain] the judgment to be rendered.”

(Id.)

In her March 11, 2008 pleading before the French labor
court, the Conseil de Prud’Hommes, she affirmatively sought money
damages against Bain.

(See Underwood Affidavit, Ex. B at 84.)

She therefore knew at that point, or at least represented to two
French courts that she had reason to know, of Bain’s involvement
in the scheme.

Bain’s denial of responsibility for or

involvement in circumstances of which Abdallah was fully aware
does not constitute fraudulent concealment.

See White, 434

N.E.2d at 1023.
Plaintiff’s counter-argument - that she was obligated under
French law to take Bain at its word until some other party proved
to her that Bain was lying - is frivolous.

Her only authority

for this proposition is French Civ. Code Art. 2268, which states
“[g]ood faith is always presumed, and it is on the person who
alleges bad faith to prove it.”

First, this provision, quoted

7

entirely out of context, governs the good faith requirement of
French adverse possession law, see French Civ. Code Art. 22652270, not the impact of good faith statements to a court in other
litigation.

Second, even if this article did, somehow, govern

in-court statements, which does not appear to be the case, the
plain meaning of the language would not require a party to accept
an opposing party’s representations.

To the contrary, the plain

language would place the onus on Plaintiff to show that
Defendant’s statements were made in bad faith.

If every

defendants’ denial of a factual allegation triggered fraudulent
concealment, statutes of limitation would become practically
limitless.

Cf. Olsen v. Bell Tele. Labs., Inc., 455 N.E.2d 609,

612 (Mass. 1983)(“If we were to take cognizance of that kind of
fact in determining the date of accrual of a cause of action
there would be little left to the statutes of limitations.”).3
Even if Plaintiff took Bain’s statement at face value, it
could only serve to conceal Bain’s involvement; it could not have
concealed the facts establishing Plaintiff’s injury and her cause
of action.

This is not the stuff of fraudulent concealment.

The

doctrine of fraudulent concealment “concerns plaintiffs’ ability

3

I note that Plaintiff’s pleadings before the Tribunal
d’Instance responded to Bain’s argument that it was not
responsible for the fraudulent transfer. It is apparent, then,
that Plaintiff did not believe (or respond as if she believed),
that she was under an obligation to accept such statements at
face value.
8

to know of the ‘cause of action’ itself, not the particular
identity of the tortfeasor.”

Gauthier v. United States, No. 10-

40116, 2011 WL 3902770, *5 (D. Mass. Sept. 2, 2011)(citing White
v. Peabody Const. Co., Inc., 434 N.E.2d 1015 (Mass. 1982)).

As

in Gauthier, Abdallah
do[es] not allege that defendants deceived [her] as to
whether [she] had a legal right to sue someone. At
most, [she] allege[s] that defendant[] denied
responsibility and may have misled plaitiff[] with
regard to the corporation’s relationship to [those]
alleged to have committ[ed] the [harm]. Such a
misrepresentation would not conceal from plaintiff[]
the existence of [her] cause of action. [M.G.L. 260 §
12] thus does not apply.
Id.

The only new fact Plaintiff raises in support of her renewed

argument for fraudulent concealment goes to the identity of the
tortfeasor, not the existence of a cause of action.

Plaintiff

does not contend that she was unaware of her injury or her cause
of action.

She only contends - implausibly and counter-factually

- that she was unaware of Bain’s involvement.4

4

Plaintiff’s citation to Massachusetts Eye & Ear Infirmary v.
QLT Phototherapeutics, Inc., 412 F.3d 215 (1st Cir. 2005) does
not help her. In Massachusetts Eye & Ear, the plaintiff claimed
fraudulent concealment because “it did not know that it had been
harmed at all” not because it knew of the harm but not the
identity of the tortfeasor. Id. at 241. Likewise, the doctrine
that “mere suspicion of fraud is insufficient to end the tolling
period,” does not refer to the identity of the alleged
tortfeasor, but to the existence of the fraud itself. See id.
(quoting Compagnie de Reassurance d’Ile de France v. New. Eng.
Reins. Corp., 944 F. Supp. 986, 995 (D. Mass. 1996)). Plaintiff
admits she knew of the fraud itself. She cannot invoke
fraudulent concealment by claiming she only suspected Bain’s
involvement.
9

B.

Equitable Tolling
Plaintiff’s equitable tolling argument fails for largely the

same reasons as are applicable to her fraudulent concealment
argument.

Massachusetts law will toll the statute of limitations

“if a plaintiff exercising reasonable diligence could not have
discovered information essential to bringing the suit.”
v. Upjohn Co., 144 F.3d 178, 180 (1st Cir. 1998).

Bernier

The First

Circuit has cautioned that in order “[t]o preserve the usefulness
of statutes of limitations as rules of law, equitable tolling
should be invoked only ‘sparingly.’”

Neverson v. Farquaharson,

366 F.3d 32, 42 (1st Cir. 2004) (quoting Irwin v. Dep’t of
Veterans Affairs, 498 U.S. 89, 95 (1990)).

This is not the kind

of extraordinary case that justifies equitable tolling.
Plaintiff’s equitable tolling argument is derivative of her
fraudulent concealment argument.

She argues that because Bain

denied its involvement in the fraud during the French court
actions, it fraudulently concealed its part in the factory
closing, and this act of fraudulent concealment is what prevented
Plaintiff from discovering, even with reasonable diligence, the
information essential to bringing this case.
First, as discussed above, Defendant’s actions do not
constitute fraudulent concealment, and therefore cannot form the
only predicate for equitable tolling that Plaintiff invokes.
Second, Plaintiff admits she knew of the fraud and represented to
10

the French Court that she knew of Bain’s involvement.

She

therefore had what she needed if she undertook diligently to
gather the information essential to file her action.

Third, if

equitable tolling applied in every case where a defendant denied
the factual allegations of a complaint, the word “sparingly”
would need to take on an entirely new and contradictorily
expansive meaning before courts could faithfully heed the
admonitions of the Supreme Court and the First Circuit.

It would

be impossible to apply equitable tolling sparingly if it applied
in every contested case where the defendant denied factual
allegations.
CONCLUSION
For the foregoing reasons, I GRANT Defendant’s Motion to
Dismiss (Dkt. 10).

Plaintiff has now had two separate

opportunities to argue for tolling of the statute of limitations
before two different judges of this court based on the same
information.

It is clear that she cannot allege the factual

predicates necessary to invoke any tolling doctrine.

I direct

the Clerk to enter a defendant’s judgment of dismissal expressly
stating that it is with prejudice.

/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE
11