ORDER ON MOTION TO DISMISS
Joyce V. Wheeler Justice, Superior Court
Before the court is the defendant's motion to dismiss counts I, IV, and V of plaintiffs' complaint. For the following reasons, the motion is granted in part and denied in part.
The following facts are taken from plaintiffs' complaint. Plaintiff Joseph Bruno is the owner and CEO of Community Pharmacy, a Maine limited partnership that operates multiple pharmacies in Maine. (Compl. ¶¶ 1-3.) Bruno is a licensed Maine pharmacist and the president of the Maine Board of Pharmacy. (Compl. ¶ 9.) Bruno is also a former representative in the Maine House of Representatives, and he currently serves as a Selectman for the Town of Raymond. (Compl. ¶¶ 10-11.) Defendant Paul Corrado is the owner and president of Corrado's, Inc., a Maine corporation that operates a single pharmacy in Corinth, Maine. (Compl. ¶ 4-6.)
Corrado was an employee of Community Pharmacy until he was terminated on September 6, 2011. (Compl. ¶ 7.) After he was terminated, Corrado opened Corrado's Pharmacy, which competes with Community Pharmacy's Corinth location. (Compl. ¶ 8.) Since 2012, the Maine Board of Pharmacy has received multiple complaints about Corrado's Pharmacy, and at least some of these complaints resulted in disciplinary action, including fines, license suspension, and probation. (Compl. ¶¶ 12-13.) Because of Bruno's prior relationship with Corrado, he recuses himself when the Board considers complaints against Corrado's. (Compl. ¶ 15.)
Corrado wrote a letter addressed to Governor Paul LePage, claiming that Bruno "has done everything in his power to put Mr. Corrado out of business" and that he "has used his influence against Mr. Corrado." (Compl. ¶¶ 19-21.) The letter asks the Governor to investigate Bruno and remove him from the Board of Pharmacy. (Compl. ¶ 22.) Corrado disseminated the letter in the Town of Corinth and published it on the internet, including on Facebook. (Compl. ¶ 17.)
Corrado's Pharmacy's agents or employees have accessed confidential and proprietary customer information from Community Pharmacy. (Compl. ¶ 24.) Corrado's made calls to Community Pharmacy's customers telling them that Community Pharmacy of Corinth was closing and telling them that they should switch their prescriptions to Corrado's. (Compl. ¶ 24-25.) At least one of Community Pharmacy's customers switched their prescriptions to Corrado's temporarily, and many others were confused and inquired as to whether Community Pharmacy was closing. (Compl. ¶¶ 26-27.) Corrado himself has come into Community Pharmacy's Corinth Location and told a customer, "I have a pharmacy up the road, you should come check it out." (Compl. ¶ 28.)
1. Standard of Review
On review of a motion to dismiss for failure to state a claim, the court accepts the facts alleged in plaintiffs complaint as admitted. Saunders v. Tisher, 2006 ME 94, ¶ 8, 902 A.2d 830. The court then "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, ¶ 2, 977 A.2d 391 (quoting Saunders, 2006 ME 94, ¶ 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, ¶ 15, 970 A.2d 310 (quoting Plimpton v. Gerrard, 668 A.2d 882, 885 (Me. 1995)).
2. Count I: Tortious Interference (Bruno and Community Pharmacy v. Paul Corrado and Corrado's, Inc.)
Plaintiffs assert that Corrado and Corrado's Pharmacy are liable for tortious interference with a prospective economic advantage for improperly driving Community Pharmacy's customers to Corrado's Pharmacy. "Tortious interference with a prospective economic advantage requires a plaintiff to prove: (1) that a valid contract or prospective economic advantage existed; (2) that the defendant interfered with that contract or advantage through fraud or intimidation; and (3) that such interference proximately caused damages." Rutland v. Mullen, 2002 ME 98, ¶ 13, 798 A.2d 1104. Defendants argue that the complaint fails to plead interference by fraud or intimidation.
a. Interference by Fraud
The elements of fraud for the purposes of a tortious ...