Saucier v. United States Cellular Corp.

• Court: Superior Court of Maine
• Decided: July 2, 2020
• Docket: CUMbcd-cv-20-08
• Status: Unpublished

Opinion

STATE OF MAINE BUSINESS & CONSUMER COURT CUMBERLAND, ss. DOCKET NO. BCD-CV-2020-08

LEANE M. SAUCIER, ) ) Plaintiff, ) ) v. ) ) UNITED STATES CELLULAR, ) ORDER GRANTING IN PART AND CORP., ) DENYING IN PART THE MOTION TO ) DISMISS OF UNITED STATES Defendant, ) CELLULAR, CORPORATION AND ) MAINE RSA #1, INC. MAINE RSA #1, INC., ) ) Defendant, ) ) and ) ) JAHLEEL WILLIAMS, ) ) Defendant. )

On or about August 23, 2019, Plaintiff Leane M. Saucier (“Saucier”) filed a Complaint

seeking damages, including punitive damages, for invasion of privacy/intrusion upon seclusion

(Count I), intentional infliction of emotional distress (Count II), negligent infliction of emotional

distress (“NIED”) (Count III), fraud (Count IV), and negligent supervision (Count V). (Pl.’s

Compl. ¶¶ 36-106). Pursuant to M.R. Civ. P. 12(b)(6), Defendants United States Cellular Corp.

and its wholly owned subsidiary Maine RSA #1, Inc. (collectively “USC”), have moved to dismiss

Counts III, IV, V of the Complaint, as well as the claim for punitive damages, for failure to state a

1 claim upon which relief may be granted. For the following reasons, USC’s Motion is granted in

part and denied in part.

STANDARD OF REVIEW

A motion to dismiss pursuant to Maine Rule of Civil Procedure 12(b)(6) tests the legal

sufficiency of a complaint. State v. Weinschenk, 2005 ME 28, ¶ 10, 868 A.2d 200. In considering

a motion to dismiss, courts must “examine the complaint 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.” In re Wage Payment Litigation, 2000 ME

162, ¶ 3, 759 A.2d 217; Bean v. Cummings, 2008 ME 18, ¶ 7, 939 A.2d 676. “The material

allegations of the complaint must be taken as admitted” and must be assumed as true. Livonia v.

Town of Rome, 1998 ME 39, ¶ 5, 707 A.2d 83. Dismissal is appropriate only when it appears

“beyond doubt that a plaintiff is entitled to no relief under any set of facts that [they] might prove

in support of [their] claim.” Hall v. Bd. of Envtl. Prot., 498 A.2d 260, 266 (Me. 1985).

FACTUAL ALLEGATIONS

The Complaint in this case sets forth the following factual allegations, which the Court

assumes are true for the limited purpose of deciding the Motion to Dismiss. On or about September

29, 2017, Saucier visited USC’s retail store location in Presque Isle to exchange her existing cell

phone for a new one. (Pl.’s Compl. ¶ 8). Williams was the USC employee who waited on Saucier

while she was in the store. (Pl.’s Compl. ¶ 13). Williams facilitated the process of activating

Saucier’s new phone and transferring the data from her old phone to the new one. (Id. ¶¶ 14-15).

As an employee of USC, William’s job responsibilities encompassed performance of those

services. (Id. ¶¶ 38-39).

2 While waiting on Saucier, Williams reported to her that it was necessary for him to take

her phone to the back of the store, away from her immediate vicinity, in order to complete the

activation and transfer. (Id. ¶¶ 16-17, 41). Believing Williams’s representations that he was acting

in his capacity as an employee of USC and that it was necessary for him to possess her phone to

complete the activation and transfer, Saucier provided Williams with possession of her phone and

password. (Id. ¶¶ 40-42, 93). While in the back of the store and without Saucier’s permission or

knowledge, Williams searched through Saucier’s cell phone, located private and sensitive photos

of Saucier, and used her phone to send those photos to a work phone in his possession provided

by USC. (Id. ¶¶ 18, 87-88).

Williams knew his report to Saucier was false, and he made false representations for the

purpose of inducing Saucier into providing him with her phone and password. (Id. ¶¶ 89-90). If

Saucier had known what Williams was actually doing with her phone then she would not have

consented to his possession of it. (Id. ¶¶ 87-88). Saucier relied upon Williams’s representations to

her detriment. (Id. ¶ 93).

On or about September 30, 2017, Saucier uncovered the interaction history between her

phone and Williams’s, including the two photos Williams had sent to himself. (Id. ¶¶ 26-30).

Saucier suffered severe emotional distress upon uncovering this interaction history and reported

Williams to the Presque Isle Police Department. (Id. ¶¶ 31-32). Shortly thereafter, the Presque Isle

Police Department served a search warrant on USC in connection with the incident. (Id. ¶ 54).

USC nevertheless continued employing Williams to work at the store, performing the same job

responsibilities and having the same access to customers, for about another year. (Id. ¶ 56).

At all times throughout this incident Williams was acting as an agent and employee of

USC. (Id. ¶¶ 43-44). USC provided Williams with the authority, status, and the instrumentality

3 (the cell phone he used to receive Plaintiff’s photos) that enabled him to deceive Plaintiff and

access her private photos. (Id. ¶¶ 45-48). USC was aware or had an opportunity to be aware of

similar or identical occurrences of employee conduct within their retail stores, as well as the retail

stores of their competitors, prior to September 29, 2017. (Id. ¶ ¶ 33-34). As of September 29, 2017,

USC had no policies in place that would effectively ensure the protection of its customers’ private

information from exploitation by its own employees or otherwise monitor its employees’ customer

interactions. (Id. ¶ 35).

ANALYSIS

The NIED (Count III) and negligent supervision (Count V) claims share a common

element. Accordingly, in determining whether Saucier is entitled to relief pursuant to some legal

theory, the Court examines the NIED and negligent supervision claims together. The Court then

examines the fraud claim (Count IV) and the request for punitive damages.

NIED and Negligent Supervision

In order for a claim alleging NIED (Count III) to survive a motion to dismiss, the complaint

must successfully allege facts that establish either “bystander liability,” or, as in this case, the

existence of a “special relationship” between the complainant and the tortfeasor. Curtis v. Porter,

2001 ME 158, ¶ 19, 784 A.2d 18. Likewise, facts demonstrating the existence of a “special

relationship” must be alleged for a complaint to adequately claim negligent supervision. Fortin v.

Roman Catholic Bishop of Portland, 2005 ME 57, ¶ 36, 871 A.2d 1208. In Maine, only a narrow

subset of traditional fiduciary relationships qualifies as a “special relationship” for the purposes of

NIED and other negligence claims (i.e. negligent supervision): those in which there exists a “great

disparity of position and influence between the parties.” Fortin, 2005 ME 57, ¶ 34, 871 A.2d 1208;

See Bryan R. v. Watchtower Bible & Tract Society, Inc., 1999 ME 144, ¶¶ 20-22, 738 A.2d 839.

4 In this case, Saucier alleges a “special relationship” with USC based on her status as a

business invitee upon the premises of USC’s retail store in Presque Isle. (Pl. Compl. ¶¶ 79, 97).

Saucier asserts USC “owed a duty of care not to cause her emotional distress,” and that USC was

obligated “to protect [her] from intentional conduct of its employees.” (Id. ¶¶ 79, 96). The Law

Court, however, has not recognized a “special relationship” based on a complainant’s status as a

business invitee on premises owned by a defendant. See e.g. Curtis, 2001 ME 158, ¶ 19, 784 A.2d

18. Further, Saucier’s argument for a “special relationship” with USC is unsupported by the facts.

Absent factual allegations that would demonstrate the existence of a “great disparity of position

and influence” between Saucier and USC, Saucier’s status as a business invitee in USC’s retail

store, even when examined in the light most favorable to Saucier, does not give rise to the “special

relationship” required to support her claims for NIED (Count III) and negligent supervision (Count

V). Thus, the Court grants USC’s Motion to Dismiss Counts III and V of the Complaint.

Fraud and Punitive Damages

To state a claim for fraud, a complainant must adequately allege that the defendant made a

false representation of a material fact with knowledge of its falsity for the purpose of inducing the

complainant to act in reliance upon it, and that the complainant justifiably relied on the false

representation to their detriment. Barr v. Dyke, 2012 ME 108, ¶ 16, 49 A.3d 1280. Additionally,

fraud must be “pled with specificity,” meaning that the circumstances constituting fraud must be

alleged with particularity. M.R. Civ. P. 9(b); Bean, 2008 ME 18, ¶ 8, 939 A.2d 676.

Here, Saucier’s Complaint alleges that Williams knowingly made false representations of

material facts for the purpose of inducing her to act in reliance upon them, and she justifiably relied

on them to her detriment. The allegations are plainly sufficient to state a claim of fraud against

Williams. USC seeks to dismiss, however, on the grounds that because the Complaint fails to

5 allege USC knowingly participated in the fraud, USC cannot be held vicariously liable for

Williams’ fraud. In other words, according to USC the Complaint fails to state a claim of fraud

against USC upon which relief can be granted.

The Law Court does not appear to have addressed the question of an employer’s vicarious

liability for an employee’s fraud. However, Maine generally follows the Restatement (Second) of

Agency § 228 to determine the application of vicarious liability as to an employer. Mahar v.

StoneWood Transp., 2003 ME 63, ¶ 13, 823 A.2d 540. An employer may be liable for the conduct

of its employee if it was within the employee’s scope of employment. Dragomir v. Spring Harbor

Hosp., 2009 ME 51, ¶ 12, 970 A.2d 310. An employee’s conduct is within his or her scope of

employment if “(a) it is the kind [he or she is] employed to perform; (b) it occurs . . . within the

authorized time and space limits; [and] (c) it is actuated, at least in part, by a purpose to serve the

master.” Restatement (Second) of Agency § 228(1)(a)-(c) (Am. Law Inst. 2020). USC has not

cited any Maine cases standing for the proposition that an employer’s “knowing participation” is

required for vicarious liability, but even if that element is required, the outcome is no different.

In this case, Saucier alleges that the deception occurred during the activation of a new cell

phone—conduct Williams was employed to perform, during the time and at the place Williams

was employed to work: USC’s Presque Isle retail store. Saucier also alleges USC knew, or should

have known, about similar or identical occurrences of employee conduct within its own retail

stores, as well as the retail stores of its competitors, on occasions prior to September 29, 2017.

Despite this knowledge, USC allegedly had no policies in place that would ensure the protection

of customers’ privacy from exploitation by its employees or otherwise monitor its employees’

interactions with customers. Further, USC continued to employ Williams for a year or so after

being contacted by the police.

6 Viewing the Complaint as a whole and construing the facts liberally in Saucier’s favor, this

Court finds that the Complaint states a claim for fraud as against USC. Even though Saucier does

not succinctly aver USC’s “knowing participation,” such participation, if required, is subsumed

within the allegation that USC knew or should have known about Williams’s tortious conduct prior

to the incident with Saucier, and otherwise is sufficiently pled. At this early stage of the

proceeding, it cannot be said beyond doubt that Saucier is entitled to no relief under any set of

facts she might prove in support of her claim. Hence, the Court denies USC’s Motion to dismiss

Count IV.

Finally, USC argues that Saucier is not entitled to punitive damages based solely on USC’s

continued employment of Williams. But USC’s reading of the Complaint is too cramped, since

Saucier’s request for punitive damages is not based solely on Williams’ continued employment.

The Complaint seeks punitive damages for invasion of privacy (Count I), intentional infliction of

emotional distress (Count II), and fraud (Count IV). Since the Complaint alleges facts that could

be construed to establish malice, actual or implied, dismissal of the request for punitive damages

would be inappropriate at this early stage of the litigation. See Tuttle v. Raymond, 494 A.2d 1353,

1361 (Me. 1985). As a consequence, the Court denies USC’s Motion to Dismiss the request for

punitive damages.

CONCLUSION

Based on the foregoing, the Court grants in part and denies in part USC’s Motion to

Dismiss.1 Specifically, the Court GRANTS USC’s request to dismiss Count III (NIED) and

Count V (negligent supervision), but DENIES USC’s request to dismiss Count IV (fraud) and

1 For clarity, the Motion to Dismiss was filed by both United States Cellular, Corp. and Maine RSA #1, Inc., and this Order applies to the Motion filed by both entities. As stated earlier in this Order, the reference to “USC” includes both entities.

7 the request for punitive damages. This case will proceed on Counts I, II, and IV of the

Complaint, and associated requests for relief.

The Clerk is instructed to enter this Order on the docket for this case incorporating it by

reference pursuant to Maine Rule of Civil Procedure 79(a).

So Ordered.

Dated:___July 2, 2020_____ ___________/s________________ Michael A. Duddy Judge, Business & Consumer Court

8 BCD-CV-2020-08

LEANE SAUCIER

v.

U.S. CELLULAR CORPORATION, MAINE RSA #1, INC. and JAHEEL WILLIAMS

Party Name: Attorney Name:

Leane Saucier Christopher Wright, Esq. Siegel & Crockett, PC 63 Main Street Bethel, ME 04217

US Cellular Corp. Gregory McCullough, Esq. Maine RSA #1, Inc. McCoullough Law Offices 1074 PO Box 910 Sanford, ME 04073

Jahleel Williams James Bowie, Esq. Thompson, Bowie & Hatch 415 Congress Street Portland, ME 04112

Bourque & Clegg George Dilworth, Esq. Drummond Woodsum 84 Marginal Way, Suite 600 Portland, ME 04101