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STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO. CV-22-203
MECHANICAL SERVICES, d/b/a MAINE CONTROLS, Plaintiff, ORDER ON MOTION v. TO DISMISS STATE OF MAINE Cumberland, ss, Clerk's Office JEREMY COLLINS, CRAIG KIRBY, and COLLINS AUTOMATION, Defendants MAR O8 2023 /: 2§PivJ RECEIVED Before the Court is a Motion to Dismiss brought Defendant Collins Automation. Collins
Automation, a company formed by the other Defendants Craig Kirby and Jeremy Collins, argues
under M.R. Civ. P. 12(b)(6) and 9(b) that Count II of Plaintiffs Amended Complaint fails to
aiticulate a sufficient claim for fraudulent misrepresentation as to Collins Automation and
therefore, that the Amended Complaint should be dismissed as to Collins Automation. The
remaining counts do not involve Collins Automation as a Defendant. For the following reasons,
the Court denies the Motion.
Background
The following facts are alleged in the Amended Complaint:
Mechanical Services is a heating, ventilation, and air conditioning ("HV AC") contractor
based in Portland with four other locations in Maine. PL's Amend. Comp!.~ 6. Maine Controls is
a division of Mechanical Services that specializes in sales, installation, and maintenance of
automatic digital temperature control components and systems. Id. Maine Controls serves
Plaintiff-A Robert Ruesch, Esq. I Defendant Collins Auto-Robert Cummins, Esq. Deis Jeremy Collins & Craig Kirby-David Goldman, Esq. commercial facilities and educational institutions in Maine, and it supplies products to and
subcontracts with other HVAC entities in Maine. Id. I! For about 40 years, Maine Controls has had a business relationship with Schneider
Electric Buildings America ("Schneider"), which manufactures HV AC components and systems, I wherein Maine Contmls would purchase software and matel'ials from Schneider. n 7-8. The relationship was mutually beneficial for both companies. 'if 9.
Kirby was employed by Maine Controls for about 15 years and was a project programmer
and manager. 'if 13. He gave notice of his intent to leave Maine Controls in February 2021 and
resigned officially on April 30, 2021. 'i['i[ 14-15. Collins was employed at Maine Controls for four
years, as a service technician and later a project manager. 1115. He resigned on May 7, 2021. Jd.
Collins and Kirby had acknowledg~d receipt of the Mechanical Services Employee
Handbook ("Handbook"), which states that "employees are expected to understand and embrace
the mission and goals of Mechanical Services, Inc. and contribute in the dedicated effo1ts and
work to fulfill the purpose of this organization." 'i['i[ 16-17. It also prohibits solicitation of
Mechanical Services employees for any reason on Mechanical Services Prope1ty 01· work time
and prohibits solicitation of customers for non-related service of goods." 'i['i[ 18-19. It requires
employees to take an active interest in promoting the best relationship between Mechanical
Services and its customers. 'i['i[ 19-20. The conflict of interest policy in the Handbook states that
employees cannot perform any work for customers of or compete with Mechanical Services, 11
22.
Collins and Kirby worked closely together, and Collins worked directly with Maine
Controls customers. 'if 24. Collins was responsible for managing customer and vendor
relationships. 'if 25, In 2015 and 2016 Schneider announced it would phase out its "IIA'' products,
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and Kirby, in his role evaluating technology and product development, expressed a resulting
concem about continuing to install them. 1129-30. Kirby expressed in the months and years
prior to his depa1ture from Maine Controls that he had concerns about the quality of Schneider's
products and services. n 27-28. Based on Kirby's advising, Maine Controls developed a relationship with another
manufacturer and installed systems from other vendors, in addition to purchasing Schneider
products and systems to maintain Schneider systems for existing customers, 1131-34. Some
Schneider systems can only be maintained and updated through Schneider proprietary software
and equipment. 11 11-12. In late 2020 or early 2021, Kirby and Collins began planning to form a
competitor company, and through Collins's father, they reserved a business name "Collins
Automation LLC" in February 2021. 1136, 38. They filed for formation of a limited liability
company of the same name in March 2021. 140. Also in early 2021, Collins and Kirby
deactivated a Schneider subscription Maine Controls had used to stay informed about Schneider
products, 1 37.
In spring 2021, Maine Controls learned Schneider would no longer sell software or
control devices to it. 135. Meanwhile, Kirby and Collins were in conversations with Schneider
on behalf of Collins Automation, and on April 20, 2021 Schneider informed Collins and Kirby
that Collins Automation would be its designated controls vendor in Maine. 1 41. Collins was
aware that Collins Automation's agreement with Schneider meant that Schneider would refuse to
sell to Maine Controls, and he represented to Steve Lizotte, a Maine Controls employee, that the
reason Lizotte could not obtain a software license from Schneider was Schneider's agreement
with Collins Automation. 11 42-44. Still, Maine Controls cannot purchase necessary products
from Schneider. 145.
3 I I l l
While Collins and Kirby were working for Maine Controls, they were working on a
project for a long-standiug customer ("Customer #1 "), and due in part to their pace, they were
behind on completion ,i,i 46-47. Completion was fu1ther delayed by their departures from Maine
Controls. ,i 50. Kirby and Collins have used information obtained through employment with
Maine Controls to solicit Customer#1's business and have hired multiple employees of Maine
Controls. 11il 51-52. One Maine Controls employee now working at Collins Automation was
involved in a pricing proposal with another long-standing Maine Controls customer ("Customer
#2"). After being persuaded to make the change by the former Maine Controls employee,
Customer #2, whose system is made of Schneider components, switched its specifications so that
Maine Controls was replaced by Collins Automation as the only acceptable contractor for its
system. ,i,i 53-58. Despite not being able to purchase Schneider products, Maine Controls is
capable of servicing Customer #2's system. ,i 59.
Until spring 2021, Schneider had never prevented Maine Controls from purchasing any
necessary products. ,i 60. After Maine Controls and its counsel attempted to reach a compromise
with Schneider, Schneider issued a Notice of Default and Termination on May 25, 2022 to
Maine Controls, which alleged a "failure to maintain sales goals/objectives" and asked Maine
Controls to co11ect the failures or risk termination of its account with Schneider. ,i,i 61-63.
Schneider explained that after termination, Maine Controls would still be able to serve its
existing customer base for 18 months by buying Schneider parts for repair and service. ,i 64.
Even though Maine Controls has ordered parts from Schneider since then, Schneider has told
Maine Controls it is on a "credit hold" and refused to ship anything. ,i,i 66-68. Schneider's
representative in the finance depattment has been instructed by the sales depattment not to
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STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO. CV-22-203
MECHANICAL SERVICES, d/b/a MAINE CONTROLS, Plaintiff, ORDER ON MOTION v. TO DISMISS STATE OF MAINE Cumberland, ss, Clerk's Office JEREMY COLLINS, CRAIG KIRBY, and COLLINS AUTOMATION, Defendants MAR O8 2023 /: 2§PivJ RECEIVED Before the Court is a Motion to Dismiss brought Defendant Collins Automation. Collins
Automation, a company formed by the other Defendants Craig Kirby and Jeremy Collins, argues
under M.R. Civ. P. 12(b)(6) and 9(b) that Count II of Plaintiffs Amended Complaint fails to
aiticulate a sufficient claim for fraudulent misrepresentation as to Collins Automation and
therefore, that the Amended Complaint should be dismissed as to Collins Automation. The
remaining counts do not involve Collins Automation as a Defendant. For the following reasons,
the Court denies the Motion.
Background
The following facts are alleged in the Amended Complaint:
Mechanical Services is a heating, ventilation, and air conditioning ("HV AC") contractor
based in Portland with four other locations in Maine. PL's Amend. Comp!.~ 6. Maine Controls is
a division of Mechanical Services that specializes in sales, installation, and maintenance of
automatic digital temperature control components and systems. Id. Maine Controls serves
Plaintiff-A Robert Ruesch, Esq. I Defendant Collins Auto-Robert Cummins, Esq. Deis Jeremy Collins & Craig Kirby-David Goldman, Esq. commercial facilities and educational institutions in Maine, and it supplies products to and
subcontracts with other HVAC entities in Maine. Id. I! For about 40 years, Maine Controls has had a business relationship with Schneider
Electric Buildings America ("Schneider"), which manufactures HV AC components and systems, I wherein Maine Contmls would purchase software and matel'ials from Schneider. n 7-8. The relationship was mutually beneficial for both companies. 'if 9.
Kirby was employed by Maine Controls for about 15 years and was a project programmer
and manager. 'if 13. He gave notice of his intent to leave Maine Controls in February 2021 and
resigned officially on April 30, 2021. 'i['i[ 14-15. Collins was employed at Maine Controls for four
years, as a service technician and later a project manager. 1115. He resigned on May 7, 2021. Jd.
Collins and Kirby had acknowledg~d receipt of the Mechanical Services Employee
Handbook ("Handbook"), which states that "employees are expected to understand and embrace
the mission and goals of Mechanical Services, Inc. and contribute in the dedicated effo1ts and
work to fulfill the purpose of this organization." 'i['i[ 16-17. It also prohibits solicitation of
Mechanical Services employees for any reason on Mechanical Services Prope1ty 01· work time
and prohibits solicitation of customers for non-related service of goods." 'i['i[ 18-19. It requires
employees to take an active interest in promoting the best relationship between Mechanical
Services and its customers. 'i['i[ 19-20. The conflict of interest policy in the Handbook states that
employees cannot perform any work for customers of or compete with Mechanical Services, 11
22.
Collins and Kirby worked closely together, and Collins worked directly with Maine
Controls customers. 'if 24. Collins was responsible for managing customer and vendor
relationships. 'if 25, In 2015 and 2016 Schneider announced it would phase out its "IIA'' products,
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and Kirby, in his role evaluating technology and product development, expressed a resulting
concem about continuing to install them. 1129-30. Kirby expressed in the months and years
prior to his depa1ture from Maine Controls that he had concerns about the quality of Schneider's
products and services. n 27-28. Based on Kirby's advising, Maine Controls developed a relationship with another
manufacturer and installed systems from other vendors, in addition to purchasing Schneider
products and systems to maintain Schneider systems for existing customers, 1131-34. Some
Schneider systems can only be maintained and updated through Schneider proprietary software
and equipment. 11 11-12. In late 2020 or early 2021, Kirby and Collins began planning to form a
competitor company, and through Collins's father, they reserved a business name "Collins
Automation LLC" in February 2021. 1136, 38. They filed for formation of a limited liability
company of the same name in March 2021. 140. Also in early 2021, Collins and Kirby
deactivated a Schneider subscription Maine Controls had used to stay informed about Schneider
products, 1 37.
In spring 2021, Maine Controls learned Schneider would no longer sell software or
control devices to it. 135. Meanwhile, Kirby and Collins were in conversations with Schneider
on behalf of Collins Automation, and on April 20, 2021 Schneider informed Collins and Kirby
that Collins Automation would be its designated controls vendor in Maine. 1 41. Collins was
aware that Collins Automation's agreement with Schneider meant that Schneider would refuse to
sell to Maine Controls, and he represented to Steve Lizotte, a Maine Controls employee, that the
reason Lizotte could not obtain a software license from Schneider was Schneider's agreement
with Collins Automation. 11 42-44. Still, Maine Controls cannot purchase necessary products
from Schneider. 145.
3 I I l l
While Collins and Kirby were working for Maine Controls, they were working on a
project for a long-standiug customer ("Customer #1 "), and due in part to their pace, they were
behind on completion ,i,i 46-47. Completion was fu1ther delayed by their departures from Maine
Controls. ,i 50. Kirby and Collins have used information obtained through employment with
Maine Controls to solicit Customer#1's business and have hired multiple employees of Maine
Controls. 11il 51-52. One Maine Controls employee now working at Collins Automation was
involved in a pricing proposal with another long-standing Maine Controls customer ("Customer
#2"). After being persuaded to make the change by the former Maine Controls employee,
Customer #2, whose system is made of Schneider components, switched its specifications so that
Maine Controls was replaced by Collins Automation as the only acceptable contractor for its
system. ,i,i 53-58. Despite not being able to purchase Schneider products, Maine Controls is
capable of servicing Customer #2's system. ,i 59.
Until spring 2021, Schneider had never prevented Maine Controls from purchasing any
necessary products. ,i 60. After Maine Controls and its counsel attempted to reach a compromise
with Schneider, Schneider issued a Notice of Default and Termination on May 25, 2022 to
Maine Controls, which alleged a "failure to maintain sales goals/objectives" and asked Maine
Controls to co11ect the failures or risk termination of its account with Schneider. ,i,i 61-63.
Schneider explained that after termination, Maine Controls would still be able to serve its
existing customer base for 18 months by buying Schneider parts for repair and service. ,i 64.
Even though Maine Controls has ordered parts from Schneider since then, Schneider has told
Maine Controls it is on a "credit hold" and refused to ship anything. ,i,i 66-68. Schneider's
representative in the finance depattment has been instructed by the sales depattment not to
release any orders for Maine Controls. ,i 69. Since Schneider and Collins Automation developed
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a relationship, Schneider has not been responsive and has not answered questions about the
Notice it sent to Maine Controls. ,r,r 70-71.
Plaintiff Maine Controls brought this action against Craig Kirby, Jeremy Collins, and
Collins Automation. Plaintiffs Count I alleges Breach of Loyalty as to Collins and Kirby; Count
II alleges interference with economic advantage as to Kirby, Collins, and Collins Automation;
and Count III alleges misappropriation of trade secrets as to Collins and Kirby, The Motion
cun-ently before the Court only concerns Count IL
Specifically, Count II alleges that, as a manager at Maine Controls, Kirby was
responsible for evaluating Schneider products and for Maine Controls' purchasing decisions and
that he used his position to steer Maine Controls away from Schneider, At the same time, it
alleges Kirby and Collins cultivated relationships with Schneid,;r on behalf of Collins
Automation to facilitate Schneiders' decision to stop selling to Maine Controls. It also states that
Kh:by and Collins, individually, and as representatives of Collins Automation, knowingly and fraudulently provided incorrect information and/or withheld information from Maine Controls regarding Schneider for the purpose of interfering with Maine Controls' business relationship with Schneider for their personal benefit and the benefit of Collins Automation. , , , As a result , , , Maine Controls has suffered and continues to suffer substantial damages.
Pl. 's Amend. Compl. ,r,r 84-85.
Legal Standard
On a Rule 12(b)(6) motion to dismiss, the court construes the complaint in the light most
favorable to the nonmoving paity to determine whether the complaint alleges the elements of a
cause of action or facts that may justify relief on any legal theory, Stevens v. Bouchard, 532 A.2d
1028, 1030 (Me. 1987). "In all averments of fraud or mistake, the cii·cumstances constituting
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fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition
of mind of a person may be averred generally." M.R. Civ. P. 9(b).
Discussion
A well-pied claim for interference with "either an existing contractual relation economic
advantage requires (1) the existence of a valid contract or prospective economic advantage, (2)
interference with that contract or advantage though fraud or intimidation, and (3) damages
proximately caused by the interference." Meridian Med. Sys., LLC v. Epix Therapeutics, Inc.,
2021 ME 24, 151, 250 A.3d 122 (citing Barnes v. Zappia, 658 A.2d 1086, 1090 (Me. 1995);
Harlor v. Amica Mut. Ins. Co., 2016 ME 161, 112, 150 A.3d 793; Currie v. Indus. Sec., Inc.,
2007 ME 12, 131, 915 A.2d 400).
Fraud in this context involves
(1) making a false representation (2) of a material fact (3) with lmowledge of its
falsity or in reckless disregard of whether it is true or false (4) for the purpose of
inducing another to act or refrain from acting in reliance on it, and (5) the other
person justifiably relies on the representation as true and acts upon it to the
damage of the plaintiff.
Rutland v. Mullen, 2002 ME 98, 114, 798 A.2d 1104 (quoting Petit v. Key Bank ofMe., 688
A.2d427, 430 (Me. 1996)).
Collins Automation points to First Circuit precedent stating that "a complaint must
specify 'the time, place, and content of an alleged false representation."' United States ex rel.
Gagne v. City of Worcester, 565 F.3d 40, 45 (1st Cir. 2009) (quoting United States ex rel. Rost v.
Pfizer, Inc., 507 F.3d 720, 731 (I st Cir. 2007)); see Bean v. Cummings, 2008 ME 18, 1 11, 939
A.2d 676 (federal constructions and comments valuable as aids for M.R. Civ. P 8(a) and 9(b)).
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Ultimately, the test is "whether defendant is fairly apprised of the elements of the claim," TD
Banknorth, N.A, v. Hawkins, 2010 ME 104,124, 5 A.3d 1042.
Collins Automation argues that Plaintiff has not pled the elements of Count II with the
particularity required of an action alleging fraud. After a review of the whole Amended
Complaint, the Cami concludes Plaintiff's pleading is sufficiently paiticular.
The following allegations suppo1t Count II. Maine Controls had an established
contractual relationship with Schneider under which Maine Controls purchased Schneider
products frequently to instalJ and repair Schneider systems. Kirby, on behalf of Collins
Automation, interfered with that contract by leading Maine Controls to seek and suppo1t a
replacement vendor for new systems. Specifically, "[i]n the years and months" prior to his
departme from the company, Pl.'s Amend. Compl. 128, Kirby, in his capacity as manager at
Maine Controls, expressed concerns about the quality of Schneider products. United Fish Co. v.
Barnes, 627 F. Supp. 732, 734 (D. Me. 1986) (holding an approximate time frame in which the
fraudulent conduct was alleged to have occurred is sufficient under the rule). While Plaintiff
does not state specifically where this conduct took place, it does state that it was in the context of
Kirby's employment with Maine Controls. Kirby's concerns persuaded Maine Controls to pursue
and continue relationships with other vendors. In late 2020 and/or early 2021, Kirby and Collins
themselves pursued a relationship with Schneider on behalf of a competing company they were
forming. This behavior, according to Plaintiff, shows that Kirby did not actualJy believe it was a
good business decision to stop buying products from Schneider or that Schneider products had
significant quality issues, despite what he advised Maine Controls.
To the extent that Maine Controls's decision to putsue other vendors in reliance on
Kirby's statements occurred before Collins Automation was conceived, Collins Automation is
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not liable. On the other hand, Plaintiff alleges that after the formation of Collins Automation and
during their employment with Maine Controls, both Collins and Kirby failed to inform Maine
Controls that they were pursuing Schneider's business on behalfofCollins Automation. This
omission was despite their alleged fiduciary duties to Maine Controls. See Glynn v. Atlantic
Seaboard Corp., 1999 ME 53, ~ 12, 728 A.2d 117 (quoting Binette v. Dyer Libra,y Ass 'n, 688
A.2d 898, 903 (Me. 1996)) (holding that where a fiduciary relationship exists between the
parties, omission by silence can may constitute supplying false information). As a result, Maine
Controls did not take steps to preserve its relationship with Schneider and can no longer buy
Schneider products.
Under this set of facts, Collins Automation could be liable under a theory of respondeat
superior. See Dragomir v. Spring Harbor Hosp., 2009 ME 51, ~ 12,970 A.2d 310; Restatement
(Second) of Agency§§ 212-264; Restatement (Third) of Agency§ 7.03. The Court concludes
that these allegations are sufficient to put Collins Automation on notice of the claim against it
and to meet the requirements of pleading with paiticularity. See Hawkins, 2010 ME 104,124, 5
A.3d 1042. Therefore, the Court denies the Motion to Dismiss,
The entty is
Defendant Collins Automation's Motion to Dismiss is DENIED.
The clerk is directed to enter this Order on the docket by reference. M.R. Civ. P. 79(a).
1!?/,_, DATE SUPERIOR COURT JUSTICE