Cameron v. X-Ray Professional Association et al

Filing 32

///ORDER granting without prejudice 11 Motion to Dismiss. Granting, without prejudice to plaintiff's right to refile in state court. Clerk shall enter judgment and close the case. So Ordered by Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
John Cameron
v.

Civil No. 16-cv-343-LM
Opinion No. 2017 DNH 032

X-Ray Professional Association, et al.

O R D E R
This dispute arises from an employment relationship gone
awry.

Plaintiff John Cameron, M.D., alleges that he lost his

job as a radiologist after coworkers unlawfully accessed and
circulated his private instant messaging history, which
apparently contained disparaging remarks about their business.
Cameron brought this action in federal court against his former
employer and six former coworkers.

Defendants move to dismiss,

arguing that a forum selection clause in Cameron’s employment
contract requires him to bring these claims in New Hampshire
state court.

Cameron objects.

On February 6, 2017, the court

heard oral argument on defendants’ motion.
Standard of Review
In the First Circuit, a motion to dismiss based on a forum
selection clause is treated as a motion to dismiss for failure
to state a claim under Federal Rule of Civil Procedure 12(b)(6).
Claudio-de León v. Sistema Universitario Ana G. Méndez, 775 F.3d

41, 46 (1st Cir. 2014).

Under Rule 12(b)(6), the court must

accept the factual allegations in the complaint as true,
construe reasonable inferences in the plaintiff’s favor, and
“determine whether the factual allegations in the plaintiff’s
complaint set forth a plausible claim upon which relief may be
granted.”

Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st

Cir. 2014) (citations and internal quotation marks omitted).

In

ruling on the motion, the court may consider “documents the
authenticity of which are not disputed by the parties, documents
central to plaintiffs’ claim, and documents sufficiently
referred to in the complaint.”

Claudio-de León, 775 F.3d at 46

(internal quotation marks omitted).
Background
Defendant X-Ray Professional Association (“X-Ray”) is a
medical imaging corporation comprised of approximately 15
radiologists.

In 2005, X-Ray hired Cameron, a board-certified

radiologist, as a partnership-track employee.

Cameron was

induced to join X-Ray, in part, “by promises that he would
become a shareholder after 3 years of employment and would be
eligible to buy into the membership of [Concord Imaging Center,
LLC] (“CIC”) after serving 1 year as an X-Ray PA shareholder.”
Doc. no. 1 at ¶ 14.

CIC is the company that owns the medical

imaging equipment used by X-Ray, and X-Ray shareholders own 50

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percent of CIC.

Cameron eventually became a shareholder of X-

Ray and later became a member of CIC.

He entered into a buy-in

agreement with other X-Ray shareholders regarding his CIC
membership interest (“CIC Agreement”).
On January 1, 2010, Cameron entered into an Amended and
Restated Shareholder Physician Employment Agreement with X-Ray
(“Employment Agreement”), which replaced any previously signed
employment contracts.

See doc. no. 11-2.

The Employment

Agreement is “the entire and complete Agreement concerning the
employment arrangement” between Cameron and X-Ray.

Id. at ¶ 21.

The Employment Agreement is broad in scope and generally sets
forth the conditions of Cameron’s employment, including terms on
employment duties, confidential information, and termination.
The agreement contains a forum selection clause that states the
following:
Any and all disputes between the parties hereto
arising from, caused by or in any way related to this
Agreement, which have not been resolved by the parties
through negotiation, with or without mediation, shall
be resolved by litigation venued in the New Hampshire
state courts.
Id. at ¶ 27(a) (emphasis added).
In 2013, Cameron began using Google’s instant messaging
service, Gchat, to discuss personal and business matters with
several of his colleagues at X-Ray.

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Cameron occasionally

discussed his frustrations with X-Ray’s business operations.
Cameron accessed Gchat through his personal Gmail account.
On August 8, 2014, two X-Ray shareholders, Douglas K.
Ewing, M.D., and Joseph G. Venus, M.D., told Cameron that they
had seen his chats and informed him that his employment would
need to be terminated.

In October 2014, a different X-Ray

shareholder, Daniel Tyler Zapton, M.D., told Cameron that he
accessed Cameron’s personal account and obtained his chat
history.

Cameron alleges that Zapton accessed his chat history,

without authorization, from either his work-issued laptop or his
computer station at X-Ray.

Cameron further alleges that Zapton

printed and distributed more than a year’s worth of his private
Gchat history to the other X-Ray shareholders.

In December

2014, X-Ray terminated Cameron’s employment, effective February
6, 2015.

On February 3, 2015, the shareholders held a meeting,

without Cameron present, and provided a third-party consultant
with a copy of Cameron’s chat history.
On July 27, 2016, Cameron filed a complaint in this court
against X-Ray and six individual shareholders: Zapton, Venus,
Ewing, Timothy J. McCormack, M.D., Mark A. Hadley, M.D., and
Richard J. Waite, M.D. (collectively, the “Physician
Shareholders”).

Cameron asserts seven claims: (1) Violation of

the Stored Communications Act, 18 U.S.C. § 2701; (2) Violation
of RSA 570-A; (3) Invasion of Privacy, Intrusion on Seclusion;
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(4) Invasion of Privacy, Public Disclosure of Private Facts; (5)
Wrongful Termination; (6) Breach of Fiduciary Duty; and (7)
Breach of Contract.

On October 7, 2016, defendants filed the

instant motion to dismiss.

Doc. no. 11.
Discussion

Defendants contend that this action must be dismissed
because Cameron’s claims are controlled by the forum selection
clause contained in the Employment Agreement and consequently
must be filed in New Hampshire state court.

Defendants have

“the burden of demonstrating that: (1) the parties entered into
a valid contract of which the forum selection clause was an
agreed-to provision, (2) the clause is mandatory and (3) the
clause governs the claims asserted in the lawsuit.”

Expedition

Leather LLC v. FC Organizational Prods. LLC, No. 11-cv-588-JL,
2013 WL 160373, at *3 (D.N.H. Jan. 15, 2013) (citations and
internal quotation marks omitted).

Cameron does not dispute

that the Employment Agreement is valid or that the forum
selection clause is mandatory and enforceable.

Rather, he

argues that the forum selection clause does not govern his
claims against defendants because those claims are not “related
to” the Employment Agreement.

Thus, the parties’ dispute

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centers on whether the forum selection clause governs Cameron’s
claims in this lawsuit.1
“[I]t is the language of the forum selection clause itself
that determines which claims fall within its scope.”

Rivera v.

Centro Medico de Turabo, Inc., 575 F.3d 10, 19 (1st Cir. 2009).
Here, the forum selection clause covers disputes that are “in
any way related to” Cameron’s Employment Agreement.

The First

Circuit has interpreted the phrase “related to” in forum
selection clauses to be very broad in scope.

See Huffington v.

T.C. Group, LLC, 637 F.3d 18, 22-23 (1st Cir. 2011).

The phrase

“related to” is synonymous with other embracing language, such
as “with respect to,” “in connection with,” and “associated
with.”

See id. at 22.

The First Circuit has explained that

these phrases are broader in scope than the term “arising out
of” and broader than the concept of a causal connection.

Id.

Claims are “related to” an agreement if they are “connected by
reason of an established or discoverable relation.”
(citations omitted).

See id.

Thus, claims may be “related to” a

At oral argument, the parties agreed that their dispute
should be decided under federal common law. See Lambert v.
Kysar, 983 F.2d 1110, 1116 (1st Cir. 1993). In any event, the
parties acknowledged that the New Hampshire Supreme Court and
the First Circuit have adopted the same standard for analyzing
the applicability and scope of forum selection clauses. See
Hansa Consult of N. Am. v. Hansaconsult Ingenieurgesellschaft,
163 N.H. 46, 54-55 (2011) (applying First Circuit approach to
whether non-contractual claims “arise under” the contract).
1

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particular agreement although they seek to enforce rights that
do not arise directly out of the agreement.

See id. at 22-23.

Cameron asserts seven claims against defendants.

The seven

claims fall into two categories of conduct: (1) claims
concerning Cameron’s termination (Counts V–VII); and (2) claims
concerning the unauthorized access of Cameron’s private instant
messaging history (Counts I–IV).

The court must determine

whether these claims fall under the broad scope of the forum
selection clause.
I.

Claims Concerning Employment Termination (Counts V-VII)
Cameron alleges three claims concerning his employment

termination: wrongful termination against X-Ray (Count V);
breach of fiduciary duty against X-Ray and the Physician
Shareholders (Count VI); and breach of the CIC Agreement against
the Physician Shareholders (Count VII).
Count V alleges that X-Ray terminated Cameron’s employment
out of bad faith, malice, or retaliation as a result of
Cameron’s private communications concerning the business
operations of X-Ray.

Count VI alleges that X-Ray and the

Physician Shareholders breached fiduciary duties they owed
Cameron by terminating his employment without a legitimate
business reason.

Count VII alleges that the Physician

Shareholders failed to pay Cameron dividends and monies owed

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pursuant to the CIC Agreement, presumably because he was
wrongfully terminated.
Cameron argues that his claims are not subject to the forum
selection clause because they exist independent of the
Employment Agreement and do not require reading or interpreting
any language in the agreement to determine defendants’
liability.

Cameron’s argument might be persuasive if the forum

selection clause used a narrower phrase, such as “enforce rights
under,” “arise under,” or “derive from” this agreement, rather
than the broad phrase “in any way related to” this agreement.
While Cameron’s claims do not directly invoke any rights or
provisions in the Employment Agreement, the broad forum
selection clause in this case encompasses claims that are
factually connected to Cameron’s employment relationship
evidenced by the Employment Agreement.

See Slater v. Energy

Servs. Grp. Int’l, Inc., 634 F.3d 1326, 1331 (11th Cir. 2011)
(claims “relating to” employment contract include all claims
arising “directly or indirectly” from the employment
relationship evidenced by the contract); Cf. Chebotnikov v.
LimoLink, Inc., 150 F. Supp. 3d 128, 131 (D. Mass. 2015) (“As a
general matter, disputes ‘arising under,’ ‘arising out of,’ or
‘arising from’ the terms of an agreement must have their
inception in the agreement itself, instead of merely being
related to the agreement or the relationship of the parties.”).
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Counts V-VII are all based on the allegedly wrongful
termination of Cameron’s employment.

The Employment Agreement

defines the scope of Cameron’s employment relationship with XRay and includes specific provisions governing Cameron’s
termination.

Although Cameron does not allege a breach of the

Employment Agreement, his claims are premised on the termination
of a relationship governed by the Employment Agreement.
Therefore, these claims are clearly “related to” the Employment
Agreement and thus subject to the forum selection clause.2
II.

Claims Concerning Invasion of Privacy (Counts I–IV)
Cameron alleges four claims against X-Ray, Zapton, and

Venus concerning the unauthorized access of his private instant
messaging history.

He asserts two statutory claims—violations

of the Stored Communications Act (Count I) and RSA 570-A (Count
II)—and two invasion of privacy tort claims (Counts III and IV).
“[C]ourts have held that tort and statutory claims may ‘relate
to’ a contract and fall within the scope of a forum selection

Although Count VII does not specifically reference
Cameron’s termination, this claim appears to allege breach of
the CIC Agreement for failure to pay dividends and monies owed
to Cameron based on his termination. Even if unrelated to
Cameron’s termination, this claim is factually premised and
equally dependent on Cameron’s relationship with X-Ray. Cameron
was only eligible to become a member of CIC and sign the CIC
Agreement because of his employment relationship with X-Ray,
which the Employment Agreement governs. Thus, this claim is
factually connected to the Employment Agreement and falls under
the broad “in any way related to” language.
2

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clause, even if the complaint contains no explicit contract
claims.”

Bagg v. HighBeam Research, Inc., 862 F. Supp. 2d 41,

45 (D. Mass. 2012) (citing Huffington, 637 F.3d at 22-23)
(further citations omitted).

“In the setting of an employment

contract, a forum selection clause governs tort claims that
arise out of the existence of the contract.”

Optasite, Inc. v.

Robinson, Civ. No. 07-40023-FDS, 2007 WL 2259106, at *2 (D.
Mass. July 31, 2007) (citations omitted); see also Huffington,
637 F.3d at 22 (“[A] suit is ‘with respect to’ the agreement if
the suit is related to that agreement—at least if the
relationship seems pertinent in the particular context.”).
Counts I-IV are premised on the same factual allegations:
Zapton and Venus accessed Cameron’s private instant messaging
history, without authorization, and distributed the content of
those messages to other X-Ray shareholders and a third-party
consultant.

Zapton allegedly accessed Cameron’s instant

messaging history from either Cameron’s work-issued laptop or
his computer station at X-Ray.

Thus, the conduct underlying

these claims resulted directly from Cameron’s employment
relationship with X-Ray.3

And, again, the Employment Agreement

In fact, Cameron’s complaint asserts that “the actions
giving rise to the claims at issue arose out of employment and
business relationships based in New Hampshire . . . .” Doc. no.
1 at ¶ 12.
3

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covers the entire employment relationship between Cameron and XRay.
Although these statutory and tort claims may not invoke
specific contractual rights, they result from Cameron’s
employment relationship with X-Ray and are thereby “in any way
related to” his Employment Agreement.

Compare Slater, 634 F.3d

at 1331 (employee’s discrimination and retaliation claims
related to employment contract that governed “the entirety of
the employment relationship” between the parties) with Yevak v.
Nilfisk-Advance, Inc., No. 5:15-cv-05709, 2016 WL 538333, at *3
(E.D. Pa. Feb. 11, 2016) (employee’s discrimination and
retaliation claims not related to employment agreement that was
“designed to protect the Company’s Confidential Information,
business relationships, and competitive advantage”).
Cameron cites Yevak to support his argument that his claims
are not related to the Employment Agreement.

2016 WL 538333.

In Yevak, the plaintiff signed an agreement “designed to protect
the Company’s Confidential Information, business relationships,
and competitive advantage.”
Yevak was narrow in scope.

Id. at *1.

Thus, the agreement in

However, the forum selection clause

within the agreement was broadly worded: “The parties agree that
any litigation in any way relating to this Agreement shall be
venued in either federal or state court in Minnesota . . . .”
Id. at *2.

The court held that plaintiff’s disability and age
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discrimination claims were not subject to the broadly worded
forum selection clause because they were in no way related to
the narrow scope of the agreement.

See id. at *3.

Here, by contrast, the scope of Cameron’s Employment
Agreement is broad and covers the entirety of his employment
relationship with X-Ray.

Thus, in this case, unlike Yevak, a

broadly worded forum selection clause is located within an
agreement that is extremely broad in scope.

The specific facts

underlying Cameron’s invasion of privacy claims—that certain
shareholders obtained Cameron’s instant messages through his
work-issued laptop or X-Ray computer station—occurred explicitly
in the context of Cameron’s employment relationship with X-Ray.
These allegations are so closely linked to Cameron’s employment
relationship with X-Ray, which is evidenced by Cameron’s broad
Employment Agreement, that the relationship between the
Employment Agreement and Cameron’s invasion of privacy claims is
“pertinent in the particular context” of this dispute.
Huffington, 637 F.3d at 22.

For these reasons, Counts I-IV

relate to the Employment Agreement and are governed by the forum
selection clause.
III. Claims Against Shareholders
Cameron asserts that even if the forum selection clause
encompasses his claims against X-Ray, it does not capture his

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claims against the Physician Shareholders because the
shareholders are not parties to the Employment Agreement.4
However, a non-party may be bound by a forum-selection clause
where that party is so “closely related to the dispute such that
it becomes foreseeable that it will be bound.”

Hugel v. Corp.

of Lloyd’s, 999 F.2d 206, 209 (7th Cir. 1993) (citations and
internal quotation marks omitted); see also Holland Am. Line,
Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 456 (9th Cir. 2007)
(“[W]here the alleged conduct of the nonparties is closely
related to the contractual relationship, a range of transaction
participants, parties and non-parties, should benefit from and
be subject to forum selection clauses.” (internal quotation
marks omitted)).

“While it may be true that third-party

beneficiaries of a contract would, by definition, satisfy the
‘closely related’ and ‘foreseeability’ requirements, a thirdparty beneficiary status is not required.”

Hugel, 999 F.2d at

209 n.7 (internal citations omitted).
Here, although the Physician Shareholders did not sign
Cameron’s Employment Agreement, they are closely related to his
contractual relationship with X-Ray and the factual allegations
underlying this dispute.

The Physician Shareholders shared a

common interest in X-Ray and signed identical employment

Every claim other than wrongful termination (Count V) is
alleged against one or more of the Physician Shareholders.
4

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agreements containing the same forum selection clause.
no. 16-1.

See doc.

In fact, Cameron’s Employment Agreement referenced

the “agreements inter se among [Cameron] and the other
Shareholder Physicians of [X-Ray] to execute and enter into this
[Employment Agreement] . . . .”

Doc. no. 11-2 at 2 of 19.

The

Physician Shareholders and X-Ray are so closely related—and the
individual employment agreements are so interconnected—that it
was reasonably foreseeable the Physician Shareholders would
benefit from the forum selection clause to the same extent as XRay.

Moreover, the individual shareholders were allegedly

responsible for Cameron’s termination and the other conduct
alleged in his complaint.5

Thus, the Physician Shareholders are

so “closely related” to the dispute at hand that they are
equally subject to the forum selection clause in the Employment
Agreement.

Finally, it would be impractical to bifurcate

identical claims against X-Ray and the individual Physician
Shareholders.

The interests of justice and judicial economy are

Specifically, Ewing and Venus allegedly told Cameron “we
saw your chats,” and “informed him that the shareholders were
going to need to plan an exit strategy for his departure from XRay PA.” Doc. no. 1 at ¶ 24. Further, Zapton allegedly
informed Cameron that “he accessed Cameron’s personal account
and obtained his chat history.” Id. at ¶ 25. Finally, Cameron
alleges that his chats “were obtained through the coordinated
effort of Zapton and Venus and were printed by Zapton when he
accessed Cameron’s computer.” Id.
5

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best served if these claims proceed against all defendants in a
single forum.
In sum, every count alleges claims that are “in any way
related to” Cameron’s Employment Agreement, and thus subject to
the forum selection clause.

Based on the forum selection

clause, Cameron was required to bring these claims in New
Hampshire state court.

Accordingly, the court must dismiss the

entire complaint.
Conclusion
For the foregoing reasons, defendants’ motion to dismiss
(doc. no. 11) is granted, without prejudice to plaintiff’s right
to refile in state court.

The clerk of court shall enter

judgment accordingly and close the case.
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge
February 21, 2017
cc:

Zachary W. Berk, Esq.
George M. Boucher, Esq.
Michael S. Lewis, Esq.
Robert Terry Parker, Esq.

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