3 Pelletier that he should have been allowed to become a member of MPERS in the
past but nevertheless refused to allow Mr. Pelletier to enroll on that day. (Compl.
'1I 19(n).) Mr. Richardson falsely told MPERS that Mr. Pelletier had been offered the opportunity to join the retirement plan when he was hired. (Compl. '1I 19(o).)
On December 31, 2013, an investigation by MPERS found that the Authority did
not advise Mr. Pelletier that he could join MPERS at the time he was hired.
(Compl. '1I 19(r).)
Mr. Pelletier submitted an application to join the MPERS retirement plan
on October 4, 2012. (Compl. '1I 19(s).) He has since submitted two more
applications, one on June 30, 2014 and one on July 10, 2014. (Compl. '1I 19(s).) Mr.
Richardson has refused to process the applications. (Compl. '1I 19(s).) Mr. Pelletier
filed his complaint on July 29, 2014.
Analysis
1. Standard of Review
On review of a motion to dismiss for failure to state a claim, the court
accepts the facts alleged in plaintiff's complaint as admitted. Saunders v. Tisher,
2006 ME 94, '1I 8, 902 A.2d 830. The court "examine[s] the complaint in the light
most favorable to 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." Doe v. Graham, 2009 ME 88, '1I 2, 977 A.2d 391 (quoting Saunders,
2006 ME 94, '1I 8, 902 A.2d 830). "For a court to properly dismiss a claim for
failure to state a cause of action, it must appear 'beyond doubt that [the] plaintiff
is entitled to no relief under any set of facts that might be proven in support of
the claim."' Dragomir v. Spring Harbor Hosp., 2009 ME 51, '1I 15, 970 A.2d 310
(quoting Plimpton v. Gerrard, 668 A.2d 882, 885 (Me. 1995)).
4 2. Overview
In their motion to dismiss, defendants make three primary arguments: (1)
plaintiff's claims are barred by the applicable statute of limitations, (2)
defendants are immune from suit under the Maine Tort Claims Act, and (3)
plaintiff has failed to state a claim on which relief can be granted for each 2 individual count of the complaint. The court will first address defendants'
statute of limitations and Maine Tort Claims Act arguments. The court will then
address each individual count in the complaint to determine whether plaintiff
has stated a claim.
3. Statute of Limitations
Defendants first argue that the applicable statutes of limitations bar Mr.
Pelletier's claims. Maine's general statute of limitations for civil claims is six 3 years. 14 M.R.S. § 752 (2014). In cases of fraud, the statute of limitations begins
to run "when the potential plaintiff discovers that she has a cause of action or
when she should have discovered it in the exercise of due diligence and ordinary
prudence." Efstathiou v. Aspinquid, Inc., 2008 ME 145, <1[ 17, 956 A.2d 110
(emphasis in original).
Mr. Pelletier filed his complaint on July 29, 2014. Defendants argue that
Mr. Pelletier should have discovered that he was eligible to enroll in MPERS
before July 29, 2008 and therefore all of his claims are barred by the statute of
limitations. Mr. Pelletier has alleged that employees of the Authority, including
2 Defendants also argue that the court is without jurisdiction to hear plaintiff's claim for "administrative review" and any claim barred by the Maine Tort Claims Act. This jurisdictional argument is subsumed by the court's analysis on defendants' other arguments. 3 There are different filing deadlines for plaintiff's Maine Tort Claims Act and Rule 80 claims. The court addresses these deadlines separately.
5 Mr. Richardson and Ms. Asselin, explicitly lied to him about whether he could
join the retirement plan. He alleges that they told prospective employees and
told others at the Authority that new hires were not eligible to enroll from the
time he was hired up to the present. According to the complaint, Mr. Pelletier
did not discover the Authority's alleged fraud until September 2012. Given these
allegations and the absence of evidence that Mr. Pelletier should have known
that he could enroll in MPERS at any other specific time, the court cannot
conclude at this stage that Mr. Pelletier's claims are barred by the statute of 4 limitations.
4. Maine Tort Claims Act Notice Requirement
Defendants next argue that count I of Mr. Pelletier's complaint must be
dismissed under the Maine Tort Claims Act because Mr. Pelletier was required to
provide notice to the Authority, the government entity, within 180 days of the
discovery of the cause of action. 14 M.R.S. § 8107 (2014). Defendants are correct
about the notice requirement, however, the Maine Tort Claims Act only applies
to actions for damages. See 14 M.R.S. § 8103 (providing immunity "on any and
all tort claims seeking recovery of damages"). Mr. Pelletier argues that, despite
his demand for compensatory damages in his complaint, he may only be entitled
to equitable relief under count I. (Pl.'s Opp. Mem. at 15.) Mr. Pelletier goes on to
argue that the cause of action may not have even accrued yet because he will not
4 Mr. Pelletier also argues that he has alleged facts that occurred within the six-year statute of limitations for each individual cause of action and that the Authority is equitably estopped from asserting the statute of limitations in this case. Given the court's conclusion on this issue, the court need not address these arguments.
6 5 suffer an actual injury until he retires. See Day v. Town of Baileyville,
WASHCV-2012-9, at 17 (Me. Super. Ct., Wash. Cnty., Apr. 25, 2014) (cause of
action did not accrue until plaintiff stopped working for government entity). Mr.
Pelletier does not dispute defendants' argument that he has failed to file a timely
notice under the Maine Tort Claims Act. Thus, Mr. Pelletier is not entitled to
recover money damages. The court will consider whether the complaint states a
claim for fraud below.
5. Count I- Fraud and Conspiracy to Commit Fraud
Defendants challenge whether Mr. Pelletier has stated a claim of fraud. To
state a claim for fraud, a plaintiff must allege:
(1) that [one party] made a false representation; (2) of a material fact; (3) with knowledge of its falsity or in reckless disregard of whether it is true of false; (4) 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 [its] damage.
Flaherty v. Muther, 2011 ME 32, '1I 45, 17 A.3d 640. The circumstances
surrounding the alleged fraud must be "stated with particularity." M.R. Civ. P.
9(b ). This standard does not ask "whether the complaint sets out a textbook
definition of fraud but whether defendant is fairly apprised of the elements of
the claim." TD Banknorth, N.A. v. Hawkins, 2010 ME 104, '1I 23, 5 A.3d 1042
(quoting 1 Field, McKusick & Wroth, Maine Civil Practice § 9.2 at 221 (2d ed.
1970)).
5 Defendants have not moved to dismiss on ripeness grounds. The court will reserve judgment on the ripeness issue until the parties have an opportunity to fully brief the arguments.
7 Mr. Pelletier alleges that he was falsely told in his employment interview
that he would not be able to enroll in MPERS. The Authority made the statement
to Mr. Pelletier and other employees so they would not enroll in that retirement
plan. Mr. Pelletier relied on the information by not enrolling in MPERS even
though he was eligible. Defendants argue that the only alleged false statement
made to Mr. Pelletier was in an employment interview, before he was eligible to
enroll in MPERS, but for purposes of a fraud claim it is irrelevant whether Mr.
Pelletier could have enrolled in the program at the time the false statement was
made. Mr. Pelletier has alleged sufficient facts to meet the particularity standard
for pleading fraud.
6. Count II -Breach of Contract
Count II of Mr. Pelletier's complaint alleges breach of contract. Mr.
Pelletier argues that he is a third party beneficiary of a contract between the
Authority and MPERS. Maine courts look to the Restatement (Second) of
Contracts for guidance on third party beneficiary claims. F.O. Bailey Co. v.
Ledgewood, Inc., 603 A.2d 466, 468 (Me. 1992). Under the Restatement, only an
intended beneficiary of a contract may sue to enforce the contract. Restatement
(Second) of Contracts § 304 (1981). A beneficiary of a contract is an intended
beneficiary "if recognition of a right to performance in the beneficiary is
appropriate to effectuate the intention of the parties" and:
(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or (b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.
8 6 Id. § 302. These principles also apply to government contracts. Id. § 313.
The first issue is whether Mr. Pelletier has a right to performance based on
the intent of the Authority and MPERS in providing retirement plans to
participating local district employees. That intent is clear from statute: "The
purpose of the Participating Local District Retirement Program is to provide
retirement allowances and other benefits under this chapter for employees of
participating local districts." 5 M.R.S. § 18200. Thus, the explicit intent of the
program is to benefit employees like Mr. Pelletier. The next issue is whether the
complaint alleges that there was any breach of contract on the part of the
Authority.
Mr. Pelletier relies on 5 M.R.S. § 18252 to argue that the Authority
breached its obligation to notify him of his right to join the MPERS plan. This
section has been amended at least twice since Mr. Pelletier began working for the
Authority. Initially, the law allowed a new employee to join the MPERS plan at
the beginning of employment "or on any anniversary of the beginning of
employment." P.L. 2007, ch. 490, § 1. Beginning March 7, 2008 the law changed so
that an employee could join MPERS "at any time after beginning employment."
Id. Finally, on July 12, 2010 the current version of the law went into effect and
requires a person to elect whether to join the MPERS plan "at the time of initial
hire or on the date of first eligibility to participate." 5 M.R.S. § 18252 (2014). Once
an employee makes a choice, it "is irrevocable with respect to all subsequent
employment with the same employer .... " Id. The language of each of these
6 The Restatement carves out an exception to liability for entities that contract with the government to provide a service for the public generally. In this case, the contract between MPERS and the Authority is not for the general public but for the Authority's employees.
9 versions of the statute has been interpreted to carry an implicit obligation on the
employer to inform the employee of the right to participate in the MPERS
retirement plan. See Kennebec County v. Me. Pub. Employees Ret. Sys., 2014 ME
26, Cf[Cf[ 34-35, 86 A. 3d 1204 (Silver, J., dissenting); Day v. Baileyville, WASHCV-
2012-9, at 14 (Me. Super. Ct., Wash. Cnty., Apr. 25, 2014).
Mr. Pelletier alleges that he was never notified of his ability to enroll in
MPERS at any time. In fact, he alleges that employees of the Authority falsely
told him that he was not eligible to join MPERS. Accepting these allegations as
true, the Authority breached its obligation to provide Mr. Pelletier notice of his
eligibility to enroll in the MPERS plan. Count II will not be dismissed.
7. Count III- Section 1983 Claim
a. Property Interest
Mr. Pelletier asserts a claim under 42 U.S.C. § 1983, arguing that
defendants violated his due process rights under the Fourteenth Amendment by
denying him his statutory right to enroll in MPERS. "To state a procedural due
process claim under § 1983, the plaintiff must allege facts which, if true, establish
that the plaintiff (1) had a property interest of constitutional magnitude and (2)
was deprived of that property interest without due process of law." Clukey v.
Town of Camden, 717 F.3d 52, 54-55 (1st Cir. 2013). Defendants first dispute
whether Mr. Pelletier has a valid property interest for the purposes of his due
process claim.
Certain state law entitlements are considered constitutionally protected
property interests under the Due Process Clause. See Merrill v. Me. Pub.
Employees Ret. Sys., 2014 ME 100, Cf[ 21, 98 A.3d 211 ("[T]he continued receipt of
the benefit of participating in the [life insurance program] is, for purposes of due
10 process, a statutorily created property interest."). In deciding whether a
particular entitlement is constitutionally protected, the court looks to whether,
under state law, government officials have discretion to withhold the
entitlement. Clukey, 717 F.3d at 56.
Defendants argue that because Mr. Pelletier is not a member of MPERS he
has no property interest in the retirement benefits. This argument misses the crux
of the complaint. Mr. Pelletier alleges that he is not a member of MPERS because
he was improperly denied the opportunity to enroll in the program without any
notice or other process. Although there is an element of discretion in the statute,
it is the employee who has discretion to enroll. If an eligible employee applies for
the MPERS plan there is no discretion on the part of the employer or MPERS
itself to deny enrollment. 5 M.R.S. §§ 18252, 18256. Mr. Pelletier was therefore
denied access to a statutorily created property right.
The second part of a procedural due process inquiry is to determine "what
process is due." Merrill, 2014 ME 100,
the property interest at stake, the risk of erroneous deprivation of that interest,
and the burden on the government to provide additional process. Id. Simple
notice of the opportunity to enroll in the MPERS plan may be sufficient due
process in this case. Based on the allegations in the complaint, however, it
appears that Mr. Pelletier was entitled to join the MPERS plan, he was not
provided any notice of his right to join, and the Authority continues to refuse to
enroll him in the plan. Mr. Pelletier has alleged a valid procedural due process
claim under 42 U.S.C. § 1983. Because this claim survives, Mr. Richardson and
Ms. Asselin will not be dismissed as defendants.
11 b. Qualified Immunity
Defendants argue that, even if Mr. Pelletier has stated a claim under 42
U.S.C. § 1983, Mr. Richardson and Ms. Asselin are nevertheless entitled to
qualified immunity. Under 42 U.S.C. § 1983, "[g]overnment officials may be sued
in their personal capacities for damages for actions they take in their official
capacity or otherwise, provided that while acting under color of state law, they
cause the deprivation of a federal right." Pratt v. Ottum, 2000 ME 203,
A.2d 313. Government officials are entitled to qualified immunity, however, even
if there has been a violation of a federal right, if the right was not "clearly
established" at the time of the violation. Maldonado v. Fontanes, 568 F.3d 263,
269 (1st Cir. 2009).
Mr. Pelletier alleges that the Authority and its employees intentionally
lied to him by stating that he was not eligible to enroll in the MPERS plan.
Defendants cite to no authority that would allow a participating local district,
like the Authority, to deny membership to an employee. By refusing to enroll Mr.
Pelletier, defendants denied him a state entitlement, which is a protected
property interest, without due process. Accordingly, the court cannot conclude
on this record that the right was not "clearly established."
8. Count IV- Rule SOB Claim
M.R. Civ. P. SOB allows a party to file an action in the Superior Court for
review of government action or refusal to act, when the right of review "is
provided by statute or is otherwise available by law." M.R. Civ. P. 80B(a). In this
case, because there is no statutory right of review, the court will focus on
whether review is "otherwise available by law." "Review is deemed 'otherwise
available by law' if it is in the nature of that formerly available under the
12 common law extraordinary writs, such as certiorari, mandamus or prohibition,
adapted to current conditions." Lyons v. Bd. of Dirs. of Sch. Admin. Dist. No. 43,
503 A.2d 233, 236 (Me. 19S6).
Mr. Pelletier argues that the relief requested is in the nature of an action
for writ of mandamus and therefore Rule SOB review is available. Specifically,
Mr. Pelletier claims that he applied for membership in the MPERS plan on June
30, 2014 and July 10, 2014 but the Authority failed to process his applications as
required by law. "[M]andamus lies to compel governmental performance of a
strictly ministerial act, that the applicant, otherwise without remedy is entitled to
have performed." Casco N. Bank, N.A. v. Bd. of Trs. of Van Buren Hasp. Dist.,
601 A.2d 10S5, 10S7 (Me. 1992).
The problem with plaintiff proceeding under the June and July 2014
applications is that, under current law, Mr. Pelletier was not entitled to join the
MPERS plan? Under current law, as discussed above, the employee must make
an election at the time of hire or date of first eligibility. 5 M.R.S. § 1S252. Mr.
Pelletier cannot rely on any "ministerial act" that he was entitled to have
performed. Although Mr. Pelletier may be entitled to relief under other counts of
his complaint, he cannot proceed under Rule SOB. Count IV of the complaint can
be dismissed.
9. Count V- Unpaid Wages Claim
7 Assuming Mr. Pelletier's Rule SOB challenge is premised on prior versions of 5 M.R.S. § 1S252, the challenge is untimely. Mr. Pelletier concedes that he was aware he was eligible to join MPERS by October 2012, and applied for membership at that time. A Rule SOB claim must be filed within 30 days of final government action or 6 months in the case of a failure to act. M.R. Civ. P. SOB(b). Assuming the time period was tolled until October 2012, Mr. Pelletier's complaint was still filed after the filing deadline for a Rule 80B claim.
13 An employee has a right of action for unpaid wages under 26 M.R.S. §
626-A (2014). The term "unpaid wages" is not defined by statute but has been
interpreted by the Law Court to mean "precisely what [is] owing when an
employer does not pay an employee for work." In re Wage Payment Litig. v.
Wal-Mart Stores, Inc., 2000 ME 162, 112, 759 A.2d 217. Although Mr. Pelletier
alleges that he was improperly excluded from enrolling in the retirement plan,
there is no dispute that he is not a current member of MPERS. He is therefore not
entitled to the "employer's share" of payments under the plan. Although the
Authority's conduct may have been unlawful and Mr. Pelletier may be entitled
to other relief, he cannot bring a claim for "unpaid wages" when he is not
currently a member of the MPERS plan and has never paid his "employee's
share" into the system.
There is another problem with Mr. Pelletier's unpaid wages claim. As the
court noted in Day v. Baileyyille, the MPERS benefits are not due until after Mr.
Pelletier retires. WASHCV-2012-9, at 16 (Me. Super. Ct., Wash. Cnty., Apr. 25,
2014).Thus, even if Mr. Pelletier could bring a claim for unpaid wages, that claim
would likely not be ripe until Mr. Pelletier retires and attempts to collect his
benefits. Mr. Pelletier even acknowledges that the claim is not ripe in his brief,
stating "[w]ith regard to§ 626, this action cannot be brought until the employee
has left the employment of the employer." (Pl.'s Opp. Mem. at 21.) Count V can
10. Count VI- Quantum Meruit
Quantum meruit allows a plaintiff to recover "for services or materials
provided under an implied contract which is a contract inferred from the
conduct of the parties." Runnells v. Quinn, 2006 ME 7, 'IT 10, 890 A.2d 713. "A
14 valid claim for quantum meruit requires that "(1) services be rendered to the
defendant by the plaintiff; (2) with the knowledge and consent of the defendant;
and (3) under circumstances that make it reasonable for the plaintiff to expect
payment." Id. With regard to the third element of the claim, the plaintiff must
have a "contemporaneous understanding" that compensation is anticipated for
the work performed. See Siciliani v. Connolly, 651 A.2d 386, 387 (Me. 1994).
Mr. Pelletier's quantum meruit claim fails because the complaint establishes
that he did not have any expectation or "contemporaneous understanding" of
compensation in the form of MPERS enrollment. The facts alleged in the
complaint establish that the Authority notified Mr. Pelletier that he would not be
enrolled as a member. When Mr. Pelletier was hired, he knew that he would not
be enrolled in the retirement plan and he never expected to receive MPERS
retirement benefits. Although the Authority's conduct may have been unlawful,
the allegations in the complaint do not support a claim for quantum meruit. Count
VI can be dismissed.
11. Count VII- Equitable Estoppel
Mr. Pelletier concedes that count VII of the complaint does not state an
independent claim for relief. (Pl.'s Opp. Mem. at 23.) Count VII can therefore be
dismissed.
CONCLUSION
Mr. Pelletier has alleged sufficient facts to state a claim for fraud and
extend the statute of limitations on his other claims. He has also stated a claim
for breach of contract as a third-party beneficiary and a section 1983 claim for
violation of his procedural due process rights. Mr. Pelletier's other claims fail as a
matter of law and must be dismissed.
15 The entry is:
Defendants' motion to dismiss is denied as to counts I, II, and III of the complaint;
Plaintiff is barred from recovering money damages under count I of the complaint;
Defendants' motion to dismiss is grant ts IV, V, VI, and VII.
Date: ---dR"~ .. ~-----""'3-=o-+-/__..2........ S CJ...._,I
Plaintiff-Donald Fontaine Esq/Robert Mittel Esq Defendants-Daniel Nuzzi Esq