Branyan v. Southwest Airlines Co.

Filing 38

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: "For the foregoing reasons, 1) the second motion of plaintiff Corian Branyan to remand (Docket No. 32) is denied; 2) the motion of defendant Southwest Airlines Co. to dismiss Counts 1, II, and III (Docket No. 44) is allowed; and accordingly 3) the case is dismissed. So ordered."(Patch, Christine)

United States District Court
District of Massachusetts
CORIAN BRANYAN,
Plaintiff,
v.
SOUTHWEST AIRLINES CO.,
Defendant.

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Civil Action No.
15-10076-NMG

MEMORANDUM & ORDER
GORTON, J.
This case involves allegations of tortious conduct by
defendant Southwest Airlines Co. (“Southwest”).

At the time of

that purported conduct, plaintiff Corian Branyan (“Branyan”),
who was employed by Southwest as a flight attendant, was out on
paid leave.

Pending before the Court is Branyan’s second motion

to remand and Southwest’s motion to dismiss the remaining counts
of the complaint.

For the reasons that follow, the second

motion to remand will be denied and the motion to dismiss will
be allowed.
I.

Background
In July, 2013, Branyan suffered a wrist injury while

assisting a Southwest passenger and was placed on paid leave.
Southwest continued to provide Branyan with paid benefits until

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its insurer denied her workers’ compensation claim in September,
2013.
Southwest then allegedly began harassing plaintiff and
demanding reimbursement of more than $4,500 in benefits that it
had provided to her while she was on leave.

Southwest, inter

alia, purportedly took money out of Branyan’s “sick bank”
account to satisfy the debt and made repeated calls to Branyan
in the months after her claim was denied.

The calls suggested

Branyan’s continued employment with Southwest was contingent on
the expedient resolution of the debt.

Plaintiff directed those

inquiries to her attorney before disconnecting the calls.
In early December, 2013, Southwest once again contacted
Branyan and told her that she would need to report for work
forthwith.

Branyan advised Southwest that she was scheduled to

have surgery that day and would be unable to report as
requested.
After an apparent interlude in communications between the
parties, Southwest made in excess of 25 calls to Branyan during
February and March, 2014.

The complaint fails, however, to

allege whether Branyan answered any of those calls or otherwise
made contact with Southwest.
On April 11, 2014, in light of its continued inability to
contact Branyan, Southwest contacted the Halifax, Massachusetts
police department and asked them to go to her home address 1) to
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conduct a “wellness check” out of concern for her well-being and
2) to let her know that her employer had been unsuccessfully
trying to contact her.

Halifax police made contact with Branyan

at her residence and advised her to call her employer.
Three days later, Branyan received written notice that her
employment with Southwest had been terminated.

She maintains

that Southwest’s actions negatively affected her health and
well-being by causing her severe stress, debilitating anxiety,
panic attacks, depression, loss of sleep and suicidal thoughts.
In December, 2014, plaintiff filed a four-count complaint
in the Massachusetts Superior Court for Plymouth County,
asserting claims against Southwest for: 1) intentional
infliction of emotional distress, 2) negligent infliction of
emotional distress, 3) invasion of the right of privacy, in
violation of M.G.L. c. 223, § 1, and 4) bullying, abuse and
harassment, in violation of M.G.L. c. 151G, § 1(a).1
Southwest timely removed the case to this Court in January,
2015.

In March, 2015, the Court denied Branyan’s initial motion

to remand which was predicated on a lack of diversity of
citizenship.

In April, 2015, Branyan moved to remand for the

second time, this time contesting the amount in controversy.

The parties stipulated to the dismissal of Count IV in
February, 2015.
1

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II.

Plaintiff’s Second Motion to Remand
Pursuant to 28 U.S.C. § 1332(a), federal courts have

diversity jurisdiction over cases so long as 1) the parties are
citizens of different states and 2) the amount in controversy
exceeds $75,000.

Having unsuccessfully argued that diversity of

citizenship was deficient in her first motion to remand,
plaintiff now attempts to evade federal jurisdiction by
contesting the amount in controversy.

Branyan argues that

recent settlement negotiations between the parties now value her
claims at far below the $75,000 jurisdictional requirement and,
as such, the case must be remanded.2

This argument amounts to

gamesmanship and is without merit.
It is well-settled that federal courts retain jurisdiction
of removed cases even if subsequent circumstances reduce the
amount in controversy below the $75,000 threshold. See St. Paul
Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 293 (1938).
The First Circuit Court of Appeals is clear on this point,
stating that the value of a case for amount in controversy
purposes is determined at the time of removal. Spielman v.
Genzyme Corp., 251 F.3d 1, 5 (1st Cir. 2001).

Other circuits

have reached the same conclusion. See, e.g., The Burt Co. v.

As the Court noted in its previous Memorandum & Order,
Branyan’s first motion to remand did not challenge the amount in
controversy requirement.
2

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Clarendon Nat’l Ins. Co., 385 F. App’x 892, 894 (11th Cir. 2010)
(“We measure the amount in controversy on the date on which the
court’s diversity jurisdiction is first invoked, in this case on
the date of removal.”).
There are good reasons for such a rule.

Once a case has

been properly removed it ought not be remanded on a whim.
Allowing a plaintiff to avoid federal court by retrospectively
reducing her settlement demand below the threshold amount would
encourage gamesmanship. Purple Passion, Inc. v. RCN Telecom
Servs., Inc., 406 F. Supp. 2d 245, 247 (S.D.N.Y. 2005) (denying
motion to remand where plaintiff amended their complaint to
reduce damages sought to $74,000).

Moreover, regardless of

Branyan’s suddenly conservative settlement demand, a jury could,
after determining liability, award damages in excess of the
jurisdictional amount. Hogan v. Wal-Mart Stores East, L.P., No.
13-603S, 2014 WL 66658, at *4-5 (D.R.I. Jan. 8, 2014).
Furthermore, even if Branyan were permitted to seek remand
because of an unforeseen reduction of potential damages, the
time to pursue that remedy has come and gone.

Plaintiff should

have raised that argument when she filed her first motion to
remand.

She could have stipulated that she would not seek a

recovery in excess of $75,000. See Neville v. Value City Dep’t
Stores, LLC, No. 07-cv-53-DRH, 2008 WL 2796661, at *5 (S.D. Ill.
July 18, 2008).

She failed to do so and does not now get a
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second bite at the apple after her disappointment with the
Court’s first ruling.
Here, Branyan is clearly dissatisfied with Southwest’s
decision to remove her complaint and invoke federal
jurisdiction.

Mere dissatisfaction with the federal forum,

absent a justifiable basis for remand, is insufficient.
Accordingly, plaintiff’s second motion to remand will be denied.
Southwest’s request for its attorneys’ fees and costs associated
with defending the motion will, however, be denied and each
party will bear its own costs.
III. Defendant’s Motion to Dismiss
A.

Legal Standard

To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).

The Court must accept all

factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiff’s favor. Langadinos v.
Am. Airlines, Inc., 199 F.3d 68, 69 (1st Cir. 2000).

The Court,

however, need not accept legal conclusions as true. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).

Threadbare recitals of the

legal elements, supported by mere conclusory statements, do not
suffice to state a cause of action. Id.

Accordingly, a

complaint does not state a claim for relief where the well-pled
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facts fail to warrant an inference of any more than the mere
possibility of misconduct. Id. at 679.
B.

Analysis
1.

Infliction of Emotional Distress (Counts I and
II)

In its motion to dismiss, Southwest argues that Branyan’s
claims for intentional and negligent infliction of emotional
distress (Counts I and II) are, inter alia, preempted by the
Massachusetts Workers’ Compensation Act (“MWCA”) and are
therefore beyond the jurisdiction of this Court. See M.G.L. c.
152, § 24.
The MWCA contains an exclusivity provision that bars claims
brought by employees against their employers for any personal
injuries which “aris[e] out of or in the course of employment.”
Acciavatti v. Prof’l Servs. Grp., Inc., 982 F. Supp. 69, 77 (D.
Mass. 1997).

The statute thus effectively abrogates subject

matter jurisdiction in applicable cases. Fusaro v. Blakely, 661
N.E.2d 1339, 1341 (Mass. App. Ct. 1996).

Courts have held that

the exclusivity provision extends to claims alleging intentional
and negligent infliction of emotional distress. Id.; see also
McArdle v. Town of Dracut/Dracut Pub. Sch., 732 F.3d 29, 37 (1st
Cir. 2013) (claim for intentional infliction of emotional
distress “fails even to get to first base because [the MWCA]
bars the use of that tort by an employee (or former employee)

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against coworkers or employers acting within the scope of their
employment”).
Branyan contends that her claim is not barred by the MWCA
because the purported emotional injuries she sustained were
inflicted on her while she was on administrative leave and,
therefore, do not arise out of her employment relationship with
Southwest.

Her argument is unavailing.

The mere fact that

Branyan was on leave at the time of the alleged injuries is
irrelevant. See Sigma Sys., Inc. v. Rasamsetti, No. 011435A,
2004 WL 2915453, at *2 (Mass. Super. Ct. Nov. 15, 2004)
(exclusivity provision of MWCA applies “so long as the conduct
arises out of and in relationship to the continuing employment
relationship”, even if employee is not actively working at the
time).
Here, Branyan was placed on paid leave by her employer
after suffering a physical injury.

She subsequently received

leave benefits from Southwest for a period of time before
reimbursement for those benefits was requested upon the denial
of her workers’ compensation claim.

Southwest then initiated a

number of communications with Branyan regarding the repayment of
benefits, her scheduled return to work, her continued absence
and its inability to reach her and, ultimately, her termination.
All of the subject communications of Southwest representatives
appear to have been conducted in a manner that was consistent
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with the scope of their job duties at the time, i.e.,
communicating with Branyan about her employment with the
company. See Doe v. Purity Supreme, Inc., 664 N.E.2d 815, 819
(Mass. 1996) (employee’s action is within scope of employment
when it is motivated, at least partially, by a desire to serve
the employer).

Moreover, she was, at all relevant times, still

an employee of Southwest.

Thus, her alleged injuries were

sustained in the context of an employment relationship with
Southwest and are therefore barred by the exclusivity provision
of the MWCA. See Acciavatti, 982 F. Supp. at 77.
Accordingly, Counts I and II of plaintiff’s complaint will
be dismissed.
2.

Invasion of Privacy (Count III)

Branyan’s invasion of privacy claim is predicated on the
wellness check at her home made by the local police at the
behest of Southwest officials.

She contends that Southwest’s

decision to contact the police and ask them to check on an
employee resulted in an egregious violation of her privacy that
caused her severe emotional harm.

Southwest responds, however,

that plaintiff fails to allege adequately that 1) any private
facts were disseminated or 2) that the alleged intrusion of her
privacy was unreasonable or substantial.

Southwest also avers

that its legitimate business interest in attempting to reach
Branyan outweighs any de minimis intrusion of her privacy.
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In Massachusetts, a person has a statutory right to
privacy. M.G.L. c. 214, § 1B.

In order to prevail on a claim

alleging an invasion of privacy, a plaintiff must prove that
there was 1) a gathering and dissemination of facts of a private
nature that 2) resulted in an unreasonable, substantial or
serious interference with his privacy. Nelson v. Salem State
Coll., 845 N.E.2d 338, 348 (Mass. 2006).

In order to qualify

for protection under the statute, the disclosed facts must be
“of a highly personal or intimate nature.” Taylor v. Swartwout,
445 F. Supp. 2d 98, 103 (D. Mass. 2006) (citing Bratt v. Int’l
Bus. Machs. Corp., 467 N.E.2d 126, 133-34 (Mass. 1984)).
Moreover, legitimate business reasons for the reasonable
collection or dissemination of private employee information are
not actionable under the statute. Bratt, 467 N.E.2d at 135.

In

an employment relationship, courts will balance the legitimacy
of an employer’s need to obtain personal information against the
seriousness of the intrusion into the employee’s privacy.
French v. United Parcel Serv., Inc., 2 F. Supp. 2d 128, 131 (D.
Mass. 1998).
Branyan appears to assert that the invasion of privacy
occurred when her employer contacted local police and disclosed
her name, home address and employment status.

Such private

information, she argues, led to the police coming to her
residence in what she characterizes as an “unfair intrusion” but
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those allegations are insufficient to constitute a cognizable
invasion of privacy claim.

A person’s name, home address, and

employer are hardly facts of a highly personal or intimate
nature.

Nor can a brief home visit from a police officer

properly be characterized as an unreasonable, substantial or
serious interference with plaintiff’s privacy.
Furthermore, Southwest had a legitimate business interest
in contacting local police.

Southwest had tried,

unsuccessfully, to contact Branyan more than 25 times during the
previous two months.

While police involvement may not have been

the only, or even the most appropriate, way to reach her,
Southwest’s conduct did not impermissibly interfere with
plaintiff’s privacy and its actions cannot support a claim for
invasion of privacy.
Accordingly, Count III of plaintiff’s complaint will be
dismissed.

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ORDER
For the foregoing reasons,
1)

the second motion of plaintiff Corian Branyan to
remand (Docket No. 32) is DENIED;

2)

the motion of defendant Southwest Airlines Co. to
dismiss Counts I, II and III (Docket No. 14) is
ALLOWED; and accordingly

3)

the case is DISMISSED.

So ordered.
_/s/ Nathaniel M. Gorton____
Nathaniel M. Gorton
United States District Judge
Dated May 20, 2015

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