STATE OF MAINE BUSINESS AND CONSUMER COURT CUMBERLAND, ss BCD-CV-19-06
PATRIOT MECHANICAL, LLC
Plaintiff
v. COMBINED ORDER ON MOTION TO AMEND AND MOTION PURSUANT TO RULE 56(f) in RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
MAINE CONTROLS, LLC, et al,
Defendants
Before the Court is Plaintiff’s Motion to Amend its Complaint, along with Plaintiff’s
Motion pursuant to Rule 56(f) in response to Defendants’ Motion for Summary Judgment.
Plaintiff is represented in this matter by Attorney Daniel Feldman and Defendants are
represented by Attorney Marie Mueller and Attorney Robert Ruesch.
On December 3, 2018 Plaintiff brought an eleven-count Complaint against the
Defendants. By order dated March 20, 2019, the Court granted Defendants’ Motion to dismiss
Counts I (Fraud); Counts II and VI (Negligence); Counts III and IV (Defamation); Counts VII
and VIII (Anti-trust); and Count X (Breach of Confidential Relationship). The Motion to Dismiss
1 was orally argued on February 26, 2019, the same day that the Court issued a Case Management
Scheduling Order (“CMO”).
That Order set a deadline of April 12, 2019 to amend pleadings or join parties. The
Motion to Amend pending before the Court is dated November 15, 2019. On November 18,
2019, Defendants filed a Motion for Summary Judgment and in response the Plaintiff filed on
November 27, 2019 the pending Rule 56(f) motion. Discovery was set to end pursuant to the
CMO on August 30, 2019 but that deadline, along with the deadline to request a jury trial, was
extended by an agreed-upon order to October 29, 2019. The trial month set by the CMO, which
has not been extended, is March of 2020.
Motion to Amend
The parties have made multiple arguments about the motion to amend. Defendants argue
it is untimely, and that it is a futile attempt to revive dismissed claims based on no new
information. Plaintiff claims that the motion to amend is not untimely or futile but did concede at
oral argument that it was no longer seeking to amend the complaint to add or “revive” any
defamation claims (counts III and IV). Therefore, the only claims that Plaintiff now seeks to add
are anti-trust claims (counts VII and VIII).
The Court has considered the parties’ arguments about the Plaintiff’s attempt to revive
the anti-trust claims. While they both make extensive arguments about the viability of Plaintiff’s
anti-trust claims, the Court has concluded that under these circumstances it is simply too late in
this litigation for these amendments to be made. Plaintiff is correct that a late request to amend is
not, by itself, fatal to amendment. However, there is more to consider here, including the fact
that this matter was supposed to be tried this month, and a fully dispositive motion for summary
2 judgment was filed several months ago. The Plaintiff has failed to articulate how granting this
motion under these circumstances is in the interests of justice, particularly where Plaintiff agrees
that a separate lawsuit could be filed on these claims. The Plaintiff has failed to convincingly
articulate what information was just learned, so late in the process, that would justify the Court
having to extend by months further discovery and motion practice. The Court will therefore deny
the Motion to Amend as untimely.
Motion brought pursuant to Rule 56(f)
With respect to the Plaintiff’s Rule 56(f) motion, the parties agree on the five criteria that
the Court must consider in deciding the motion. Defendants seem to concede that Plaintiff meets
three of the five criteria, but challenge Plaintiff’s ability to establish two of them, specifically
whether Plaintiff “has been diligent in conducting discovery, and show good cause why the
additional discovery was not previously practicable with reasonable diligence” and to “set forth a
plausible basis for believing that specified facts, susceptible of collection within a reasonable
time frame, probably exist, and indicate how the emergent facts, if adduced, will influence the
outcome of the pending summary judgment motion.” Simas v. First Citizens’ Fed. Credit Union
170 F. 3d 37, 46 n. 4 (1st Cir. 1999).
Defendants concede that the witness Plaintiff wishes to depose, Mr. Parks, is “a key
witness” [Def.’s Opposition, pg. 2] and the Court is persuaded that his testimony is at least
arguably relevant as to what, if any, contract may have been formed.
Further, with respect to whether Plaintiff has been diligent in conducting discovery, the
Court has reviewed the timeline of events leading up to this motion and finds that Plaintiff was
reasonably diligent given the reasons the deposition was continued the first time, as well as other
3 factors. The deposition of Mr. Parks was mistakenly set for Veterans Day, and the parties agreed
to reschedule it. Over the next few weeks the parties were working on different aspects of this
litigation, including exchanging discovery. In mid-November Plaintiff was filing the Motion to
Amend, and Defendants were working on the Motion for Summary Judgment. The Court has
therefore concluded that a brief extension of the discovery deadline would be appropriate to
allow for Mr. Park’s deposition to be taken. This is the only discovery that will be permitted
during this brief period by either party, absent extraordinary cause.
The entry will be: Plaintiff’s Motion to Amend is DENIED. Plaintiff’s Rule 56(f) Motion
is GRANTED. The discovery deadline is extended until April 3, 2020 to permit Mr. Park’s
deposition to be completed. Plaintiff’s Opposition to the pending Motion for Summary Judgment
brought by Defendants shall be filed by April 17, 2020, with Defendants’ Reply due by April 24,
2020. The Court will then decide if oral argument will be scheduled or the matter taken under
advisement.
March 2, 2020 /S
DATE M. Michaela Murphy Justice, Business and Consumer Court
4 BCD-CV-2019-06
Patriot Mechanical, Inc.
v.
Maine Controls, LLC and Mechanical Services, LLC
Party Name: Attorney Name:
Patriot Mechanical Inc. Daniel Feldman, Esq. David Weyrens, Esq. Hallett, Whipple, Weyrens 6 City Center Ste 208 Portland, ME 04112
Maine Controls, LLC and Robert Ruesch, Esq. Mechanical Services, LLC Marie Mueller, Esq Verrill Dana One Portland Square Portland, ME 04101 STATE OF MAINE BUSINESS & CONSUMER DOCKET CUMBERLAND, ss. DOCKET NO. BCD-CV-19-06
PATRIOT MECHANICAL, LLC ) ) Plaintiff, ) ) v. ) ORDER ON DEFENDANTS’ ) PARTIAL MOTION TO DISMISS MAINE CONTROLS, LLC, et al., ) ) Defendants. )
Pending before the Court is Defendants Maine Controls, LLC and Mechanical Services,
LLC’s (collectively “Maine Controls”) partial motion to dismiss pursuant to M.R. Civ. P. 12(b)(6).
Plaintiff Patriot Mechanical, LLC (“Patriot”) opposes the motion. The Court heard oral argument
on the motion on February 26, 2019. A. Robert Ruesch, Esq. appeared for Maine Controls and
Dan Feldman, Esq. appeared for Patriot.
BACKGROUND
The following facts are taken from Maine Controls’ Complaint and for purposes of this
motion are treated as admitted. Patriot, an HVAC contractor, requested a quote from Maine
Controls on the cost of services and component parts in preparing its bid for a project at the City
of Portland, Maine’s North Deering fire station (the “Project”). (Pl’s Compl. ¶¶ 9, 16.) Patriot
assumed that Maine Controls components and services were required to win the contract. (Pl’s
Compl. ¶¶ 10-12.) Maine Controls quoted a base bid price of $82,250 (the “Quote”) for the services
and components necessary for the Project. (Pl’s Compl. ¶ 17.) Patriot believed this to be the
standardized quote given to any and all mechanical contractors who sought a quote for the Project.
(Pl’s Compl. ¶ 19.) Furthermore, Patriot believed that Maine Controls wanted Patriot to believe
1 that the Quote was a standardized quote given to any and all mechanical contractors who sought a
quote for the Project. (Pl’s Compl. ¶ 20.) Patriot used the Quote in its bid for the Project. (Pl’s
Compl. 23.) Patriot’s bid was roughly $25,000 higher than the winning bid for the Project. (Pl’s
Compl. ¶ 24.) This resulted in damages to Patriot both in the form of lost profits for failing to
submit a winning bid for the Project and for damage to Patriot’s reputation for submitting an
artificially inflated bid. (Pl’s Compl. ¶ 36.) Patriot filed an eleven-count complaint against Maine
Controls for these alleged misdeeds; in the instant motion, Maine Controls seeks dismissal of eight
of those counts.
STANDARD OF REVIEW
In reviewing a motion to dismiss under Rule 12(b)(6), courts “consider the facts in the
complaint as if they were admitted.” Bonney v. Stephens Mem. Hosp., 2011 ME 46, ¶ 16, 17 A.3d
123. The complaint is viewed “in the light most favorable to the plaintiff to determine whether it
sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief
pursuant to some legal theory.” Id. (quoting Saunders v. Tisher, 2006 ME 94, ¶ 8, 902 A.2d 830).
“Dismissal is warranted when it appears beyond a doubt that the plaintiff is not entitled to relief
under any set of facts that he might prove in support of his claim.” Id. “The legal sufficiency of a
complaint challenged pursuant to M.R. Civ. P. 12(b)(6) is a question of law” and thus subject to
de novo appellate review. Marshall v. Town of Dexter, 2015 ME 135, ¶ 2, 125 A.3d 1141.
DISCUSSION
I. Fraud
In Count I, Patriot pleads fraud against Maine Controls. To prevail on a fraud claim, a
plaintiff must prove the following elements by clear and convincing evidence:
(1) A party made a false representation, (2) The representation was of a material fact, (3) The representation was made with knowledge of its falsity or in reckless
2 disregard of whether it was true or false, (4) The representation was made for the purpose of inducing another party to act in reliance upon it, and (5) The other party justifiably relied upon the representation as true and acted upon it to the party's damage.
Barr v. Dyke, 2012 ME 108, ¶ 16, 49 A.3d 1280 (citing Flaherty v. Muther, 2011 ME 32,
¶ 45, 17 A.3d 640). In its motion to dismiss, Maine Controls claims that Patriot’s allegation that
the Quote contained information that was knowingly false or provided with reckless disregard as
to its falsity fails as a matter of law because the putative misrepresentation—the Quote—cannot
be true or false. Patriot responds that in fact Maine Controls represented that the Quote was for
what “the services and parts would cost a bidder” when it knew that the cost was in fact
significantly lower. (Pl’s Compl. ¶¶ 39-42.)
Although most causes of action are allowed to be pleaded generally, Maine Controls points
out that M.R. Civ. P. 9(b) requires “the circumstances constituting fraud” to be “stated with
particularity.” Under this standard, Patriot’s general allegations that the Quote was represented as
being the cost (as opposed to the price) of the requested services and components is insufficient to
adequately plead the “false representation” element of fraud. The mere fact that Maine Controls’
Quote was addressed to “mechanical contractor” rather than Patriot simply does not make the
Quote a lie, even if Patriot were to ultimately prove at trial that the Quote is not an accurate
representation of the actual cost of the requested parts and services. See Eaton v. Sontag, 387 A.2d
33, 38 (Me. 1978) (Every man has the right to ask any price he sees fit [for his goods or services]”).
Patriot has therefore failed to properly allege that Maine Controls made a false
representation when it issued the Quote under M.R. Civ. P. 9(b). The Complaint therefore fails to
allege an essential element of fraud. Maine Controls’ motion is granted with respect to Count I.
II. Negligence
Patriot pleads negligent misrepresentation (Count II) and negligence (Count VI) against
3 Maine Controls. In its motion, Maine Controls does not argue that Patriot has failed to adequately
allege the elements of either claim. Instead, Maine Controls argues that these claims are barred by
the economic loss doctrine. Patriot responds that the economic loss doctrine is only applicable to
actions based on product failure and merely limits “tort recovery for a defective product’s damage
to itself.” Oceanside at Pine Point Condominium Owners Ass’n v. Peachtree Doors, Inc., 659 A.2d
267, 270 (Me. 1995).
In general, the economic loss doctrine prevents recovery in tort for purely economic
damages and has been applied to bar tort claims in actions grounded in breach of contract or
warranty theories, including claims involving breach of a service contract. Oceanside at Pine Point
Condo. Owners Ass’n., 659 A.2d at 269-71. Patriot is correct that the Law Court has not yet
recognized application of the economic loss doctrine outside the context of tangible property.
Other Maine courts, including the U.S. District Court for the District of Maine, the Maine Superior
Court, and this Court have applied the doctrine to service contracts as well. See Me. Rubber Int’l
v. Envtl. Mgmt. Grp., Inc., 298 F. Supp. 2d 133, 136 (D. Me. 2004); Twin Homes, Inc. v. Molley,
No. CV-01-298, 2002 Me. Super. LEXIS 209 (Nov. 14, 2002); Bayreuther v. Gardner, No. CV-
99-352, 2000 Me. Super. LEXIS 140 (June 21, 2000); SME Corp. v. Belfast Bridge, LLC, No.
BCD-WB-CV-07-28, 2009 Me. Bus. & Consumer LEXIS 25, at *26-27 (Bus. & Consumer Ct.
Apr. 8, 2009, Humphrey, C.J.).
Patriot’s negligence claim alleges only that Maine Controls breached a duty. (Pl’s Compl.
¶ 83.) Presumably, this duty arose out of Patriot’s request for a quote from Maine Controls. As
explained in more detail below, Patriot’s only other possible alternative basis for imposition of a
duty—the existence of a confidential relationship between the parties—is wholly inadequate as a
matter of law. The parties are both commercial entities whose relationship could at best be
4 described as a commercial contract.1 See Schmid Pipeline Constr. v. Summit Nat. Gas of Me., Inc.,
No. 1:13-cv-464-GZS, 2014 U.S. Dist. LEXIS 100435, at *10 (D. Me. June 23, 2014) (where
“dispute is over the ‘value and quality of what was purchased,’ in the absence of any facts of a
special relationship between the parties that might give rise to duty in tort (e.g., a fiduciary
relationship), an aggrieved party's recourse should be governed by the terms of the contract.
Whether a court formally extends application of the economic loss doctrine to bar tort recovery,
or whether a court determines that recognition of a duty in tort under the circumstances is not
appropriate, the result is the same.”). Therefore, Plaintiffs’ remedy for an alleged breach of the
undefined “duty” necessarily sounds only in contract. See id.
Several of the cases cited above recognize that the economic loss doctrine bars claims for
negligent misrepresentation in actions based on contract or warranty theories. See id. at *5-6, 10;
Me. Rubber Int’l. 298 F. Supp. 2d at 136; Peachtree Doors, 659 A.2d at 269-71. Patriot’s
complaint alleges Maine Controls “made false statements, misrepresentations and
representations;” all related to the Quote that Patriot used in its bid for the Project. (Pl’s Compl. ¶
52.) As with Plaintiffs’ negligence claim, this claim is at best a mislabeled contract claim, the
recovery for which sounds in contract alone. Plaintiffs’ claims for negligence and negligent
misrepresentation will be dismissed.
III. Defamation
In Counts III and IV, Patriot alleges that Maine Controls is liable for defamation and
1 Maine Controls has not moved for dismissal of Patriot’s breach of contract claim, Count IX, in the instant motion. (Pl’s Compl. ¶¶ 96-101.) As noted in Me. Rubber Int’l, Patriot still have “the traditional recourse for breach of contract and any damages [it] can prove under contract law standards, given the contract [it] entered into. Contract law allows for foreseeable damages arising from the breach (though these may be limited by the contractual language.)” 298 F. Supp. 2d at 138 & n. 7; see also Peachtree Doors, 659 A.2d at 271 (“Plaintiffs’ claims for economic damages—‘the costs of all repairs, renovation, corrections and replacements related to the Defendant’s defective performance of its contract’—are properly addressable under a warranty theory.”).
5 defamation per se. Maine Controls argues that Patriot has failed to allege any of the elements of
defamation. A claim for defamation requires (1) a false and defamatory statement concerning
another, (2) an unprivileged publication to a third party, (3) fault amounting at least to negligence
on the part of the publisher, and (4) either actionability of the statement irrespective of special
harm (defamation per se) or the existence of special harm caused by the publication. Cole v.
Chandler, 2000 ME 104, ¶ 5, 752 A.2d 1189.
The supposedly defamatory statement is the Quote. Patriot’s opposition devotes several
pages to persuading the Court that the Quote is a statement. However, regardless of whether the
Quote is a statement, the allegations are insufficient to show that it is either false or defamatory. It
is not false because it is incapable of being true or false by its very nature, as explained above. See
Eaton, 387 A.2d at 38. It is not defamatory because it does not “tend[] so to harm [Patriot’s]
reputation . . . as to lower [it] in the estimation of the community or to deter third persons from
associating or dealing with [it].” Schoff v. York Cty., 2000 ME 205, ¶ 9 n.3, 761 A.2d 869 (citing
Bakal v. Weare, 583 A.2d 1028, 1029 (Me. 1990); Restatement (Second) of Torts § 559(1977)).
In fact, the statement says nothing about Patriot whatsoever. “[A] statement is defamatory only if
it is of or concerning a plaintiff.” Gaudette v. Davis, 2017 ME 86, ¶ 25 n.10, 160 A.3d 1190 (citing
Hudson v. Guy Gannett Broad. Co., 521 A.2d 714, 716 (Me. 1987)). Furthermore, there is no
allegation that Maine Controls “published” the Quote to anyone third party. In paragraph sixty-six
of its complaint, Patriot alleges that Maine Controls made statements that “were unprivileged
publications to a third party” but provides no further detail; other factual allegations seem
inconsistent with the notion that Maine Controls shared the Quote with anyone other than Patriot.
(See Pl’s Compl. ¶¶ 23, 33.) In opposition to Maine Control’s motion to dismiss, Patriot clarified
that it is relying on an agency theory whereby Maine Controls made Patriot its agent by providing
6 a quote that was designed to be shared with another. Patriot cites no authority for this novel theory
of publication and the Court is not aware of any.
In sum, Patriot has failed to state a claim for defamation under either a traditional or
“defamation per se” theory. Counts III and IV of Patriot’s Complaint must be dismissed.
IV. Antitrust
Patriot alleges that Maine Controls violated Maine’ antitrust laws, 10 M.R.S. §§ 1101-
1102.2 Maine Controls responds that Patriot has failed to adequately allege necessary elements
under both section 1101 and 1102.
In Count VII, Patriot alleges a violation of 10 M.R.S. § 1101, which provides: “Every
contract, combination in the form of trusts or otherwise, or conspiracy, in restraint of trade of
commerce in this State is declared to be illegal. Whoever makes any such contract or engages in
any such combination or conspiracy is guilty of a Class C crime.” Maine Controls argues that
Patriot has not alleged the existence of a “contract, combination in the form of trusts of otherwise,
or conspiracy” because the Complaint at most alleges a “conspiracy” between the two Defendants,
and because the two Defendants are in fact the same company, that company could not have
“conspired with itself.” See Podiatrist Ass'n v. La Cruz Azul de P.R., Inc., 332 F.3d 6, 12 (1st Cir.
2003) (“the plaintiff must show concerted action between two or more separate parties” under the
federal analog to 10 M.R.S. § 1101).3 Patriot does not necessarily challenge this requirement, but
argues that the alleged conspiracy is not necessarily between the two Defendants 4 but rather
between the Defendants and the other bidders on the Project who got a quote from Maine Controls.
2 Section 1104 gives any person injured directly or indirectly in its business or property by another person’s violation
of section 1101 or 1101 a private right of action to sue for the injury. 10 M.R.S. § 1104. 3 Maine courts may consider federal antitrust law as persuasive authority when construing Maine’s antitrust statute. McKinnon v. Honeywell Int’l, Inc., 2009 ME 69, ¶ 19, 977 A.2d 420. 4 Patriot does not object to the Court considering Def’s Ex. C, a public filing with the Maine Secretary of State that shows Maine Controls is an assumed name of Mechanical Services. See Moody v. State Liquor & Lott. Comm’n, 2004
7 The problem with Patriot’s argument is that the Complaint does not allege a conspiracy
between Maine Controls and anyone else who requested a quote for Maine Controls’ services and
components for the Project. Patriot only alleges that “[t]he defendants entered into a contract,
combination or conspiracy regarding the quote for components and service for the [Project].” (Pl’s
Compl. ¶ 86.) There are no allegations with respect to who the Defendants entered into this alleged
conspiracy with. Patriot claims that it alleges a conspiracy between Maine Controls and the other
bidders on the Project in paragraphs twenty-four through twenty-six and paragraph thirty-two of
the Complaint. However, these allegations claim only that Maine Controls offered a lower quote
to the winning bidder and that Patriot lost the bid as a result. This is not at all the same as alleging
that Maine Controls conspired with the other bidders to “fix” a quote for the winning bidder. Cf.
In re Insurance Brokerage Antitrust Litigation, 618 F.3d 300, 336 (3d Cir. 2010) (“Bid rigging—
or more specifically, as alleged in this case, bid rotation—is quintessentially collusive behavior
subject to per se condemnation under [the federal analog to 10 M.R.S. § 1101].”). At oral argument,
Patriot conceded that it is “not aware of a conspiracy in the classic sense” between Maine Controls
and any other bidder. In sum, Count VII must be dismissed for failure to allege a contract,
combination in the form of trusts or otherwise, or conspiracy, in restraint of trade.
Count VIII alleges an antitrust violation under 10 M.R.S. § 1102, which provides:
“Whoever shall monopolize or attempt to monopolize or combine or conspire with any other
persons to monopolize any part of the trade of commerce of this State shall be guilty of a Class C
crime.” Maine Controls argues that Patriot has not defined the relevant market or alleged an
ME 20, ¶ 11, 843 A.2d 43. However, in its written opposition, Patriot does argue that it is a question of fact as to whether the two Defendants are in fact the same company, notwithstanding its allegation in paragraph 15 of its Complaint: “The exact relationship between Maine Controls and Mechanical services is unclear but it appears that for all intents and purposes, they are the same entity.” (emphasis added). It seems that Def’s Ex. C is dispositive of this factual issue, but in any event, it is not really relevant to Patriot’s section 1101 claim. The effect of the Defendants’ combined control of the market in Maine, and whether that effect is anticompetitive, is more properly considered in the context of a section 1102 claim, which is discussed below.
8 “antitrust injury,” both of which are essential elements to state a claim under section 1102. At oral
argument, Patriot claimed that discovery will be necessary to define the relevant market and
otherwise responds that it has alleged an “antitrust injury” sufficient to state a claim under section
1102.
At least one U.S. District Court in the First Circuit has dismissed an antitrust claim for
failure to adequately “allege a relevant geographic and product market in which trade was
unreasonably restrained or monopolized.” N. Am. Energy Sys., LLC v. New Eng. Energy Mgmt.,
269 F. Supp. 2d 12, 16 (D. Conn. 2002) (citing cases). Cf. Envirnmt’l Exch., Inc. v. Casella Waste
Sys., No. CV-05-25, 2005 Me. Super. LEXIS 140, at *5-6, 12-14 (Oct. 24, 2005, Hjelm, J.)
(denying motion to dismiss plaintiff’s section 1102 claim where relevant geographic and product
market specifically alleged to be “sources of clean fly ash in northeastern Maine”). Like in N. Am.
Energy Sys., LLC, and unlike Envirnmt’l Exch., Inc., Patriot’s allegations include virtually no
definition of the relevant market in terms of either geographic scope or products. In paragraph
eleven, Patriot alleges that Maine Controls was in a position to “corner the market” because “the
North Deering Fire Station already us[ed] its components.” Later, Patriot alleges that Maine
Controls “monopolize[d] trade for components and services . . . regarding a part of the trade or
commerce of the State of Maine.” (Pl’s Compl. ¶¶ 92-93.) At the oral argument, Patriot suggested
“pre-existing boilers with components in them” as the product market and “boilers in the state of
Maine, maybe smaller” as the relevant geographic market. The problem with Patriot’s suggestion
at oral argument is that it goes beyond what was actually alleged in the Complaint, which describes
only a single transaction besides a passing reference to “a part of the trade or commerce of the
State of Maine.” (Pl’s Compl. ¶ 93.) Maine Controls is entitled to have notice of what Patriot
intends to prove in terms of the geographic and product market that Maine Controls has allegedly
9 monopolized. See N. Am. Energy Sys., LLC, 269 F. Supp. 2d at 16. Even if Patriot proves the
allegation that Maine Controls was in a position to “corner the market” on the Project, i.e. it was
the only vendor that could provide the necessary services and components on the Project and
therefore could essentially charge whatever it wanted and decide who won the bid, it does not
follow that Maine Controls therefore had a monopoly over the servicing of all pre-existing boilers
in Maine.
The question of whether Patriot has alleged an antitrust injury is in some ways dependent
on whether Patriot can allege a geographic and product market over which Maine Controls has a
monopoly. As alleged, Patriot is a would-be customer of Maine Controls who sought to obtain
Maine Controls’ components and services, and thus a “presumptive proper” plaintiff. See In re
Compact Disc Min. Advertised Price Antitrust Litig., 456 F. Supp. 2d 131, 146 (D. Me. 2006).
Couched in terms of a single transaction5—the Quote on the Project—Patriot’s injury seems much
more like a claim for breach of contract than antitrust. See Central Distribs., Inc. v. Labatt US
Operating Co., No. BCD-CV-12-33, 2012 Me. Bus. & Consumer LEXIS 41, at *15 (“[Plaintiff]
has alleged no facts as to how the competition among wholesalers has been weakened or affected.
The gist of this claim is really a restatement of a breach of contract action.”). In effect, Patriot has
pleaded “no more than ‘labels and conclusions, and a formulaic recitation of the elements of a
cause of action,’” and therefore “fails to state a claim for antitrust statute violations.” Id. (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Therefore, Count VIII must be dismissed
5 Maine Controls claims that even in relation to this single Project, it could not have “cornered the market” because it was only one of six approved vendors for the Project. (Def’s Ex. A.) Patriot alleges, and argues, that regardless of what is reflected in Defendants’ Exhibit A, only Maine Control’s service and components would have been acceptable. (Pl’s Compl. ¶¶ 10-12.) Patriot is entitled to try to prove this allegation at trial; however, as explained above, it was required to allege more—and need to prove more—to prevail on a section 1102 antitrust claim.
10 for failure to allege a definable relevant geographic and product market in which trade was
constrained or any injury resulting from Maine Control’s purported anticompetitive conduct.
V. Breach of Duty of a Confidential Relationship
In Count XI, Patriot alleges the existence of a confidential relationship between Patriot and
Maine Mechanical and, further, that Maine Mechanical breached a duty of loyalty that it owed to
Patriot by virtue of that relationship. However, Patriot does not allege any specific facts of a
particular relationship, only reciting the basic elements of a fiduciary duty. (Pl’s Compl. ¶¶ 103-
09.)
“To survive a motion to dismiss, the plaintiff must allege facts with sufficient particularity
to enable the court to determine whether, if true, such facts could give rise to a fiduciary
relationship.” Ramsey v. Baxter Title Co., 2012 ME 113, ¶ 6, 54 A.3d 710 (quotations omitted).
“Reciting the basic elements of a fiduciary relationship cannot substitute for an articulation in the
complaint of the specific facts of a particular relationship.” Id.; see also Bryan R. v. Watchtower
Bible & Tract Soc. of N.Y., Inc., 1999 ME 114, ¶ 21, 738 A.2d 839 (“because the law does not
generally require individuals to act for the benefit of others, the factual foundations of an alleged
fiduciary relationship must be pled with specificity”).
In opposition to Maine Controls’ motion to dismiss, Patriot does not argue that it has
alleged facts necessary to meet the higher pleading standard for breach of fiduciary duty. Instead,
Patriot argues that it is entitled to the inference that a fiduciary relationship arose between the
parties based on the Quote. See, e.g., Brown v. Me. State Emples. Ass'n, 1997 ME 24, ¶ 5, 690
A.2d 956 (motion to dismiss only granted when “treating the material allegations of the complaint
as true and examining the complaint in the light most favorable to the plaintiff . . . it alleges the
elements of a cause of action against the defendant or alleges facts that could entitle the plaintiff
11 to relief under some legal theory”) (quotation omitted). However, this general pleading standard
is significantly narrowed when the existence of a fiduciary or confidential relationship is alleged.
A plaintiff must plead specific facts for the Court to determine whether those facts could give rise
to a fiduciary relationship. Ramsey, 2012 ME 113, ¶ 6, 54 A.3d 710; Bryan R., 1999 ME 114, ¶
21, 738 A.2d 839. The facts alleged here do not meet this standard. Patriot requested a quote from
Maine Controls in an arms-length transaction; that was the extent of their relationship based on
the facts alleged in the complaint. See Oceanic Inn, Inc. v. Sloan's Cove, LLC, 2016 ME 34, ¶ 18,
133 A.3d 1021 (fiduciary duty “does not arise merely because of the existence of . . . business
relationships”). Patriot has not stated a claim for breach of confidential relationship based on the
allegations in the Complaint. Maine Controls motion to dismiss is granted with respect to Count
XI.
CONCLUSION
Based on the foregoing it is ORDERED:
That Defendants Maine Controls and Mechanical Services’ motion for partial dismissal is
GRANTED. Counts I, II, III, IV, VI, VII, VIII, and X of Plaintiff Patriot Mechanical’s
Complaint are dismissed
The Clerk is requested to enter this Order on the docket for this case by incorporating it by
reference. M.R. Civ. P. 79(a).
Dated: March 20, 2019 ____/s___________________________ M. Michaela Murphy Justice, Business and Consumer Court