Williams v. Fedex Corporate Services et al

Filing 70

MEMORANDUM DECISION AND ORDERgranting in part and denying in part 23 Motion to Dismiss for Lack of Jurisdiction ; 23 Motion to Dismiss for Failure to State a Claim. Signed by Judge Ted Stewart on 8/21/13. (ss)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

STEVEN R. WILLIAMS,
Plaintiff,

MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS
ROCKY MOUNTAIN CARE CLINIC,
INC. AND JOHN A. GARCIA’S
MOTION TO DISMISS

vs.

FEDEX CORPORATE SERVICES, a
Delaware corporation; MICHAEL BAUTCH,
an individual; KEVIN WILCZYNSKI, an
individual; DAVID TREASE, an individual;
AETNA LIFE INSURANCE COMPANY, a
Connecticut corporation; ROCKY
MOUNTAIN CARE CLINIC, INC., an
expired Utah corporation; JOHN A. GARCIA
and CHRISTINA A. BACK individually and
doing business as ROCKY MOUNTAIN
CARE CLINIC, INC; and ESCREEN, INC, a
Delaware corporation,

Case No. 2:13-CV-37 TS

Defendants.

This matter is before the Court on Defendants Rocky Mountain Care Clinic, Inc. and John
A. Garcia’s Motion to Dismiss. For the reasons discussed below, the Court will grant the Motion

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in part and deny it in part. Specifically, the Court will deny Defendants’ Motion to the extent
that it argues the Court lacks jurisdiction over Plaintiff’s claims against them, but will grant the
Motion to the extent that it seeks dismissal of Plaintiff’s false light invasion of privacy claim.
The Court will also dismiss Defendant John A. Garcia.
I. BACKGROUND
The following facts are taken from Plaintiff’s Amended Complaint and Second Amended
Complaint, where appropriate.1
Plaintiff is, and at all relevant times was, an employee of FedEx Corporate Services
(“FedEx”). Plaintiff is currently a Senior International Account Executive. In December 2010,
FedEx reorganized its International Sales Overlays, resulting in a tripling of Plaintiff’s workload.
To manage his workload, Defendant frequently worked between sixteen and nineteen hours a
day. Plaintiff made requests to his managers to correct the situation, but his pleas were ignored.
Eventually, Plaintiff was forced to take a medical leave of absence due to stress and anxiety.
On November 9, 2011, David Trease (“Trease”), a Regional Sales Manager for FedEx,
sent Plaintiff a letter informing him that Aetna Life Insurance Company (“Aetna”)—to whom
Plaintiff had submitted a short-term disability claim—had claimed that Plaintiff’s claim for
medical leave was due to an alcohol/drug related illness. Because Plaintiff had accessed
treatment and/or benefits, FedEx determined that Plaintiff had self-reported drug abuse and
FedEx required Plaintiff to participate in a substance abuse program for five years.

1

The Court has granted Plaintiff leave to file his Second Amended Complaint by separate

order.
2

Plaintiff was required to report to the Rocky Mountain Care Clinic, Inc. (“Rocky
Mountain”) for drug testing. In all, Plaintiff was required by FedEx to take eleven different drug
tests, none of which resulted in positive results. On two occasions, a Rocky Mountain employee
told Plaintiff that he had been reported as historically testing positive on previous drug tests. On
these occasions, Plaintiff was able to convince the employee that this information was incorrect
and was not required to have his testing witnessed by a drug counselor. However, on a third
occasion, Plaintiff was required to urinate in the presence of a drug counselor. In his proposed
Second Amended Complaint, Plaintiff clarifies that each discussion, during which it was reported
that he had tested positive on drug tests, occurred in the presence of and within hearing of other
patients in a waiting room.
II. MOTION TO DISMISS STANDARDS
A.

RULE 12(b)(1)
A challenge to subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)

may take one of two forms. First, a party may bring a facial attack, which “looks only to the
factual allegations of the complaint in challenging the court’s jurisdiction.”2 Second, a party may
bring a factual attack, which “goes beyond the factual allegations of the complaint and presents
evidence in the form of affidavits or otherwise to challenge the court’s jurisdiction.”3 Because

2

Muscogee (Creek) Nation v. Okla. Tax Comm’n, 611 F.3d 1222, 1227 n.1 (10th Cir.

3

Id. (citation omitted).

2010).

3

Defendants make a facial attack, the same standard applies to Defendants’ 12(b)(1) and 12(b)(6)
attacks.4
B.

RULE 12(b)(6)
In considering a motion to dismiss for failure to state a claim upon which relief can be

granted under Rule 12(b)(6), all well-pleaded factual allegations, as distinguished from
conclusory allegations, are accepted as true and viewed in the light most favorable to Plaintiff as
the nonmoving party.5 Plaintiff must provide “enough facts to state a claim to relief that is
plausible on its face,”6 which requires “more than an unadorned, the-defendant-unlawfully
harmed-me accusation.”7
“A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements
of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’
devoid of ‘further factual enhancement.’”8 “The court’s function on a Rule 12(b)(6) motion is
not to weigh potential evidence that the parties might present at trial, but to assess whether the
plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be granted.”9
As the Court in Iqbal stated,

4

Id.

5

GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.

6

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007).

7

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

8

Id. (quoting Twombly, 550 U.S. at 557) (alteration in original).

9

Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).

1997).

4

only a complaint that states a plausible claim for relief survives a motion to
dismiss. Determining whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense. But where the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not show[n]—that the pleader is entitled to
relief.10
III. DISCUSSION
A.

JOHN A. GARCIA
As an initial matter, the Court notes that there are absolutely no allegations against

Defendant John A. Garcia and Plaintiff asserts no claims against him. Both the Amended
Complaint and the proposed Second Amended Complaint merely allege that he is the owner of
Defendant Rocky Mountain.11 There are no allegations that Defendant Garcia had a role in any
of the actions complained of by Plaintiff. Defendants have not argued for dismissal on this
ground. However, because of the dearth of allegations against him, and the fact that no claims
have been brought against him, the Court will dismiss Defendant Garcia from this action.
B.

SUPPLEMENTAL JURISDICTION
Defendants first argue that the Court does not have supplemental jurisdiction over the

state law claims asserted against them.

10

Iqbal, 556 U.S. at 679 (alteration in original) (internal quotation marks and citations

omitted).
11

The same allegation is lodged against Defendant Christina A. Back. However, Ms.
Back has not made an appearance in this case.
5

28 U.S.C. § 1367(a) provides:
Except as provided in subsections (b) and (c) or as expressly provided otherwise
by Federal statute, in any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental jurisdiction over all other
claims that are so related to claims in the action within such original jurisdiction
that they form part of the same case or controversy under Article III of the United
States Constitution.
Under § 1367(c), the Court may decline to exercise supplemental jurisdiction over a
claim if: (1) the claim raises a novel or complex issue of state law, (2) the claim substantially
predominates over the claim or claims over which the district court has original jurisdiction, (3)
the district court has dismissed all claims over which it has original jurisdiction, or (4) in
exceptional circumstances, there are other compelling reasons for declining jurisdiction.
In making this determination, the Court considers “the values of judicial economy,
convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case
brought in that court involving pendent state-law claims.”12
Based on the above, the Court must make two determinations. The Court must first
consider whether it has supplemental jurisdiction over the claims asserted. If the Court does
have supplemental jurisdiction, the Court must consider whether it should decline to exercise that
jurisdiction.
As stated, § 1367(a) states that the Court may exercise “supplemental jurisdiction over all
other claims that are so related to claims in the action within such original jurisdiction that they
form part of the same case or controversy under Article III of the United States Constitution.” “A

12

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988).
6

claim is part of the same case or controversy if it derives from a common nucleus of operative
fact.”13
Defendants argue that the claims against them are legally and factually distinct from the
claims over which this Court has original jurisdiction. While at first blush, this argument is
appealing, a closer look reveals that it must be rejected.
The Court has original jurisdiction over Plaintiff’s ADA and ERISA claims, none of
which have been asserted against Defendants Rocky Mountain. Rather, Plaintiff brings claims
against Rocky Mountain for false light invasion of privacy, intrusion upon seclusion, defamation,
and intentional infliction of emotional distress. While it is true that these claims are legally
distinct from the claims over which the Court has original jurisdiction, all of Plaintiff’s claims
are factually related.
Each of Plaintiff’s claims center around Plaintiff’s employment at FedEx. A critical
component of Plaintiff’s claims concern his allegations that FedEx inappropriately required him
to undergo drug treatment, including drug testing. Plaintiff alleges that, as part of the drug
testing, he was repeatedly informed that he had failed drug tests in the past and was therefore
required to undergo observed collection. These allegations frame not only Plaintiff’s ADA
claims, but also many of his state law claims, including those lodged against Rocky Mountain.
Therefore, the Court finds that all of Plaintiff’s claims derive from a common nucleus of
operative fact.

13

Price v. Wolford, 608 F.3d 698, 702-03 (10th Cir. 2010) (quotation marks and citation
omitted).
7

The cases relied upon by Defendants in support of their Motion are inapposite. In Cook v.
Olathe Medical Center, Inc.,14 the court declined to exercise supplemental jurisdiction over a
state law medical malpractice claim where the only remaining federal claim related to excessive
force that allegedly occurred well before the plaintiff was hospitalized. Additionally, the court
declined to exercise jurisdiction under § 1367(c) because the state law claims raised novel issues
of state law and predominated over the federal claim.
In Hudson v. Delta Air Lines, Inc.,15 the Eleventh Circuit affirmed the district court’s
decision declining supplemental jurisdiction over a state law contract claim that was completely
unrelated to the ERISA claim at issue.
In this case, there is a clear factual nexus between Plaintiff’s federal claims and the state
law claims. Therefore, exercising supplemental jurisdiction is permissible under § 1367(a).
The next question is whether the Court should decline to exercise jurisdiction under §
1367(c). The Court may decline to exercise supplemental jurisdiction over a claim if: (1) the
claim raises a novel or complex issue of State law, (2) the claim substantially predominates over
the claim or claims over which the district court has original jurisdiction, (3) the district court has
dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances,
there are other compelling reasons for declining jurisdiction. None of these circumstances are
present here.

14

2011 WL 2790183 (D. Kan. July 14, 2011).

15

90 F.3d 451 (11th Cir. 1996).
8

Further, a consideration of the Carnegie-Mellon factors does not support dismissal of
Rocky Mountain. The values of judicial economy, convenience, fairness, and comity are all
promoted by exercising supplemental jurisdiction over Plaintiff’s state-law claims.
C.

FALSE LIGHT INVASION OF PRIVACY
Defendants next argue that Plaintiff’s claim for false light invasion of privacy should be

dismissed under Rule 12(b)(6).
“A prima facie case for false light requires a plaintiff to demonstrate that (1) the
defendant publicized a matter concerning the plaintiff that placed the plaintiff before the public
in a false light, (2) the false light in which the plaintiff was placed would be highly offensive to a
reasonable person, and (3) the defendant knew or recklessly disregarded the falsity of the
publicized matter and the false light in which the plaintiff was placed.”16
In this Motion, the element of publicity is at issue. “For a ‘publication’ to be effective,
the statements must be ‘distributed to a large number of persons, or any broadcast over the radio,
or a statement made in address to a large audience.’”17
The parties conflate the requirements of “publicity” (which is required to prevail on a
false light claim) and “publication” (which is required for defamation). The Restatement
(Second) of Torts § 652D, Comment a provides:

16

Jacob v. Bezzant, 212 P.3d 535, 544 (Utah 2009).

17

Watkins v. Gen. Refractories Co., 805 F. Supp. 911, 918 (D. Utah 1992) (quoting
Restatement (Second) of Torts § 652D cmt. a (1977)); see also Restatement (Second) of Torts §
652E, cmt. a (stating that § 652D cmt. a, is applicable to false light claims).
9

“Publicity,” as it is used in this Section, differs from “publication,” as that
term is used in § 577 in connection with liability for defamation. “Publication,”
in that sense, is a word of art, which includes any communication by the defendant
to a third person. “Publicity,” on the other hand, means that the matter is made
public, by communicating it to the public at large, or to so many persons that the
matter must be regarded as substantially certain to become one of public
knowledge. The difference is not one of the means of communication, which may
be oral, written or by any other means. It is one of a communication that reaches,
or is sure to reach, the public.
Thus it is not an invasion of the right of privacy, within the rule stated in
this Section, to communicate a fact concerning the plaintiff’s private life to a
single person or even to a small group of persons. On the other hand, any
publication in a newspaper or a magazine, even of small circulation, or in a
handbill distributed to a large number of persons, or any broadcast over the radio,
or statement made in an address to a large audience, is sufficient to give publicity
within the meaning of the term as it is used in this Section. The distinction, in
other words, is one between private and public communication.18
In their Motion to Dismiss, Defendants argue that Plaintiff’s false light claim does not
contain factual allegations that Rocky Mountain publicized information about Plaintiff to a third
party. In response, Plaintiff argues that Rocky Mountain made statements to its employees that
Plaintiff had failed a drug test. Plaintiff also submits a declaration stating that Rocky Mountain’s
employees made statements about Plaintiff within earshot of others the waiting room.
Defendants object to Plaintiff’s declaration. Because the Court’s review on a 12(b)(6)
motion is limited to the Complaint, this objection is well taken. However, Plaintiff makes
similar allegations in his proposed Second Amended Complaint. Defendants have not opposed
Plaintiff’s motion to amend. Therefore, for the purposes of resolving this Motion, the Court will
consider these additional allegations.

18

Restatement (Second) of Torts § 652D cmt. a.
10

Even considering the additional allegations, Plaintiff’s false light claim fails. At most,
Plaintiff alleges that Rocky Mountain publicized statements about Plaintiff to its employees and a
certain number of people who may have overheard the statements while in the waiting room.
This limited amount of disclosure is insufficient to state a claim for false light invasion of
privacy. As stated, the tort is concerned with communication that reaches the public and it is not
sufficient where disclosure was made to a small group. Thus, this claim must be dismissed.
D.

DEFAMATION
Defendants also seek dismissal of Plaintiff’s defamation claim. To state a claim for

defamation, Plaintiff “must show that defendants published the statements concerning him, that
the statements were false, defamatory, and not subject to any privilege, that the statements were
published with the requisite degree of fault, and that their publication resulted in damage.”19
As to this claim, the issue presented is whether the element of publication has been
sufficiently alleged. “The requirement of ‘publication’ means that the defamatory statement be
communicated to a third person and that the third person read and understand the statement.”20
The Court finds that there are sufficient allegations to support Plaintiff’s defamation
claim, especially when the additional allegations in the proposed Second Amended Complaint
are considered. Specifically, Plaintiff has alleged that Rocky Mountain communicated allegedly
defamatory statements to both its employees and to other individuals who were present in the

19

West v. Thomson Newspapers, 872 P.2d 999, 1007-08 (Utah 1994).

20

DeBry v. Godbe, 992 P.2d 979, 985 (Utah 1999).
11

waiting room. These facts are sufficient to state the element of publication in a defamation
claim. Therefore, the Court will not dismiss this claim.
IV. CONCLUSION
It is therefore
ORDERED that Defendant Rocky Mountain Care Clinic, Inc. and John A. Garcia’s
Motion to Dismiss (Docket No. 23) is GRANTED IN PART AND DENIED IN PART.
DATED August 21, 2013.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge

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