Romano v. Site Acquisitions, Inc.

2016 DNH 002

• Court: District Court, D. New Hampshire
• Decided: January 4, 2016
• Docket: 15-cv-384-AJ
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Christopher Romano, et al.

v. Civil No. 15-cv-384-AJ Opinion No. 2016 DNH 002 Site Acquisitions, Inc.

O R D E R

In a case that has been removed from the New Hampshire

Superior Court, Christopher Romano, Michael Petros, and Shane

Bruneau (collectively, “plaintiffs”) bring suit against their

former employer, Site Acquisitions, Inc.1 (“Site Acquisitions” or

“defendant”), alleging that the defendant failed to make

payments to the plaintiffs earned as part of an incentive

program between the defendant and AT&T. Am. Compl., Doc. No.

13.

Before the court is the defendant’s motion to dismiss two

counts (Counts IV and V) of the plaintiffs’ second amended

complaint. Doc. No. 15. For the reasons that follow, the

defendant’s motion is granted.

1 In its motion to dismiss, the defendant notes that it “was converted to a limited liability company effective January 1, 2015” and, therefore, “[t]he correct name for [the] [d]efendant is Site Acquisitions, LLC.” Doc. No. 15-1 at 1. Standard of Review

When ruling on a motion to dismiss under Fed. R. Civ. P.

12(b)(6), the court must "accept as true all well-pleaded facts

set out in the complaint and indulge all reasonable inferences

in favor of the pleader." SEC v. Tambone, 597 F.3d 436, 441

(1st Cir. 2010) (citing In re Colonial Mortg. Bankers Corp., 324

F.3d 12, 15 (1st Cir. 2003)). Although the complaint need only

contain "a short and plain statement of the claim showing that

the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), it

must allege each of the essential elements of a viable cause of

action and "contain sufficient factual matter, accepted as true,

to state a claim to relief that is plausible on its face."

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

marks omitted).

In other words, the "plaintiff[s’] obligation to provide

the 'grounds' of [their] 'entitlement to relief' requires more

than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do." Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007). Instead, the facts alleged

in the complaint must, if credited as true, be sufficient to

"nudge[] [the plaintiffs’] claims across the line from

conceivable to plausible . . . ." Id. at 570. If, however, the

"factual allegations in the complaint are too meager, vague, or

conclusory to remove the possibility of relief from the realm of

2 mere conjecture, the complaint is open to dismissal." Tambone,

597 F.3d at 442.

Background

Accepting the factual allegations set forth in the

plaintiffs’ amended complaint as true, the relevant facts are as

follows.

Site Acquisitions provides services to the wireless

telecommunications industry, including the siting and

installation of telecommunications towers. Am. Compl. ¶ 8, Doc.

No. 13. At various times between 2013 and 2015, the plaintiffs

served on tower crews for Site Acquisitions. Id. ¶ 9. A tower

crew is responsible for installing telecommunications tower

systems (“cell phone towers”). Id. ¶ 10.

At some point, AT&T contracted Site Acquisitions to install

cell phone towers in New Hampshire. Id. ¶ 12. AT&T has an

incentive program for tower crews designed to encourage greater

performance and minimize substandard tower installations. Id. ¶

13. Under the program, if tower crews met certain quality

standards established by AT&T, they were entitled to non-

discretionary bonuses. Id. ¶¶ 15-16. The bonuses were intended

to be directly passed to the tower crews. Id. ¶ 17.

During a meeting held in 2013, a Site Acquisitions manager

explained to the plaintiffs’ tower crew that AT&T was offering

3 incentive pay under the program, and the benefits would be paid

directly to the tower crew. Id. ¶¶ 21-23. Based on the

representations made by Site Acquisitions, the plaintiffs

completed over twenty cell phone tower installations, working

weekends and up to seventy hours a week. Id. ¶¶ 24-25. Nearly

every cell phone tower completed by the plaintiffs qualified for

full payment under AT&T’s incentive program. Id. ¶ 26.

Site Acquisitions received payments from AT&T under the

incentive program, but did not pass any portion of the funds to

the plaintiffs. Id. ¶ 29. Site Acquisitions knew, however,

that the payments were intended for the plaintiffs and other

qualifying tower crews. Id. ¶ 30. Further, Site Acquisitions

never contacted its tower crews about the incentive payments.

Id. ¶ 31.

In 2014, a member of the plaintiffs’ tower crew asked Site

Acquisitions when the crew would receive their incentive

payments. Id. ¶ 34. Site Acquisitions stated that the

plaintiffs’ tower crew would receive payment by the end of 2014.

Id. ¶ 35. Instead, the plaintiffs received a holiday bonus

significantly smaller than the AT&T incentive program payments

the plaintiffs expected to receive. Id. ¶ 36.

On June 25, 2015, the plaintiffs filed an action against

Site Acquisitions in Rockingham County Superior Court. Doc. No.

1 at 1. On September 17, 2015, the defendant removed the action

4 to this court. Doc. No. 1. The plaintiffs’ second amended

complaint contains seven counts against the defendant: (I)

breach of contract (II) promissory estoppel, (III) unjust

enrichment, (IV) violation of the New Hampshire Consumer

Protection Act, (V) request for equitable accounting, (VI)

failure to pay overtime wage, and (VII) failure to pay all wages

due. Doc. No. 13.

Discussion

The defendant moves to dismiss counts IV and V of the

plaintiffs’ second amended complaint. Doc. No. 15. The court

examines each count in turn.

I. Count IV – The New Hampshire Consumer Protection Act

The New Hampshire Consumer Protection Act (“CPA”), New

Hampshire Revised Statutes Annotated (“RSA”) § 358-A:2, states

that it is “unlawful for any person to use any unfair method of

competition or any unfair or deceptive act or practice in the

conduct of any trade or commerce within this state.” RSA § 358-

A:2. “Any person injured by another's use of any method, act or

practice declared unlawful under [the CPA] may bring an action”

under the statute. RSA § 358-A:10.

However, although “the CPA is broadly worded . . . not all

conduct in the course of trade or commerce falls within its

scope.” State v. Moran, 151 N.H. 450, 452 (2004) (citing

5 Barrows v. Boles, 141 N.H. 382, 390 (1996)). The CPA “provides

a non-exhaustive list of specific acts deemed to be unfair or

deceptive.” State v. Sideris, 157 N.H. 258, 262 (2008) (citing

RSA § 358-A:2, I-XIV). “In determining which commercial

actions, not specifically delineated, are covered by the [CPA],

[courts] have employed the ‘rascality’ test.” ACAS Acquisitions

(Precitech) Inc. v. Hobert, 155 N.H. 381, 402 (2007) (citing

Moran, 151 N.H. at 452). “Under the rascality test, the

objectionable conduct must attain a level of rascality that

would raise an eyebrow of someone inured to the rough and tumble

of the world of commerce.” Hobert, 155 N.H. at 402.

Count IV of the plaintiffs’ second amended complaint

alleges that the defendant violated the CPA by withholding

incentive payments from AT&T intended for the plaintiffs and

other tower crews. Am. Compl. ¶¶ 59-67, Doc. No. 13. The

plaintiffs claim that this conduct was an “unfair and deceptive

act,” as defined in the CPA. Id. ¶ 67.

In its motion to dismiss, the defendant argues that the

plaintiffs’ complaint does not properly allege a violation of

the CPA because the claim “arise[s] directly out of their

employment relations with [the defendant]” and “[c]onduct

stemming from the employment relationship is private in nature

and distinct from the genre of marketplace or consumer

transactions.” Doc. No. 15-1 at 4. The defendant additionally

6 argues that, even assuming the CPA permits claims stemming from

employment relationships, the claim must nonetheless be

dismissed because it fails to satisfy the “rascality test” as

the claim is “grounded on [the defendant’s] alleged breach of

contract.” Id. at 6.

The plaintiffs object, arguing that their CPA claim does

not stem “from some simple failure to pay ordinary wages, but

from the unfair manner in which [the defendant] handled money

received from AT&T which . . . [was] specifically intended to

benefit the [p]laintiffs.” Doc. No. 16-1 at 2-3. Additionally,

the plaintiffs contend that, in viewing the complaint in the

light most favorable to them, a finder of fact could reasonably

find that the defendant’s conduct satisfies the rascality test.

Id. at 8.

Here, contrary to the defendant’s blanket assertion that a

CPA claim “stemming from [an] employment relationship” is

improper, doc. no. 15-1 at 4, “[t]he New Hampshire Supreme Court

has never decided whether the CPA applies to employer-employee

relations.” Jon-Don Prods., Inc. v. Malone, No. CIV. 02-429-M,

2003 WL 1856420, at *3 (D.N.H. Apr. 10, 2003) (quoting

Bartholomew v. Delahaye Grp., Inc., No. CIV. 95-20-B, 1995 WL

907897, at *9 (D.N.H. Nov. 8, 1995)). Nevertheless, the mere

allegation of a breach of an employment contract, or any

ordinary contract, fails to state a CPA claim. See Sideris, 157

7 N.H. at 262 (“An ordinary breach of contract claim . . . is not

a violation of the CPA”); Jon-Don Prods., Inc., 2003 WL 1856420,

at *3 (holding that an alleged breach of an employment contract

“fails to state a claim cognizable under the [CPA]”).

Here, even making all reasonable inferences in favor of the

plaintiffs, the complaint fails to state a CPA claim. At worst,

the complaint alleges that the defendant entered into a contract

with AT&T to install cell phone towers, accepted AT&T’s

incentive program to provide bonuses to tower crews for good

work, told tower crews that they would receive bonuses pursuant

to the incentive program, and, after the cell phone towers were

installed, knowingly kept the bonuses intended for the

qualifying tower crews for its own benefit.

Although the plaintiffs’ allegations are serious,

“misrepresentations . . . [and] broken promises alone do not

rise to the level of rascality where successful [CPA] claims

dwell.” Franchi v. New Hampton Sch., 656 F. Supp. 2d 252, 255-

66 (D.N.H. 2009); see also Barrows, 141 N.H. at 390 (“selfish

bargaining and business dealings will not be enough to justify a

claim for damages under the [CPA]”)) (quotation marks omitted).

Thus, even if the defendant knowingly misrepresented to AT&T and

the plaintiffs that they would pay tower crews their earned

incentive payments, the plaintiffs have not stated a CPA claim.

The defendant’s motion to dismiss count IV is granted.

8 II. Count V – The Plaintiffs’ Request for Equitable Accounting

In Count V, the plaintiffs request an equitable accounting

of the incentive payments received by the defendant from AT&T.

Am. Compl. ¶ 72, Doc. No. 13. In the complaint, the plaintiffs

allege that the defendant has not disclosed any received

incentive payments, and, without an equitable accounting of the

payments, the plaintiffs are unable to determine the amount owed

to them. Id. ¶ 70-71.

plaintiffs’ “[e]quitable [a]ccounting claim is barred by their

ability to conduct discovery via their legal claims for relief

that constitute this action.” Doc. No. 15-1 at 8. The

plaintiffs object, contending that they have “sufficiently

pleaded . . . a plausible right to accounting, and an accounting

is an entirely appropriate remedy.” Doc. No. 16-1 at 10.

“The propriety of affording equitable relief rests in the

sound discretion of the trial court to be exercised according to

the circumstances and exigencies of the case.” Gutbier v.

Hannaford Bros. Co., 150 N.H. 540, 541 (2004) (reversing a trial

court’s decision to grant a petition in equity requesting that

the superior court grant discovery prior to the commencement of

litigation). In this case, the plaintiffs “know[] the form that

the action should take . . . [and] know[] the identity of the

defendant.” Gutbier, 150 N.H. at 545. Further, the plaintiffs

9 have not established a need for accounting as the exact same

information could be found in future discovery. Therefore,

although it may be “cheaper, faster and easier to file a

petition in equity for discovery than to . . . seek normal

discovery, [the plaintiffs] ha[ve] a plain, adequate and

complete remedy at law.” Id. (quotations marks omitted). The

defendant’s motion to dismiss count V is granted.

Conclusion

For the foregoing reasons, the defendant’s motion to

dismiss, doc. no. 15, is granted. Accordingly, counts IV and V

of the plaintiff’s second amended complaint, doc. no. 13, are

dismissed.

SO ORDERED.

__________________________ Andrea K. Johnstone United States Magistrate Judge

January 4, 2016

cc: Brandon D. Ross, Esq. Peter G. Callaghan, Esq.