ORDER ON DEFENDANT'S MOTION TO DISMISS
E. WALKER JUSTICE.
matter is before the court on Defendant's motion to
dismiss pursuant to M.R. Civ. P. 12(b)(6).
Standard of Review
motion to dismiss tests the legal sufficiency of the
complaint and will be granted only if the complaint fails
"to state a claim upon which relief can be
granted." M.R. Civ. P. 12(b)(6); State v.
Weinschenk, 2005 ME 28, ¶ 10, 868 A.2d 200. The
sufficiency of a complaint is a question of law. Bean v.
Cummings, 2008 ME 18, ¶ 7, 939 A.2d 676. On a
motion to dismiss for failure to state a claim, the facts are
not adjudicated. Marshall v. Town of Dexter, 2015 ME
135, ¶ 2, 125 A.3d 1141. The court reviews the material
allegations in the complaint in the light most favorable to
the plaintiff to determine whether the plaintiff would be
entitled to relief pursuant to some legal theory.
Bean, 2008 ME 18, ¶ 7, 939 A.2d 676. Dismissal
is warranted only when it appears beyond a doubt that the
plaintiff is not entitled to relief under any set of facts
that the plaintiff might prove in support of his or her
Complaint is set out in four counts; to wit: Invasion of
Privacy, Unlawful Disclosure of Confidential Health Care
Information, Intentional Infliction of Emotional Distress,
and California Comprehensive Computer Data Access and Fraud
contends that Plaintiff has failed to state a claim, in
Invasion of privacy.
tort of invasion of privacy in Maine manifests in four
proscribed types of conduct for which relief may be granted.
See Nelson v. Maine Times, 373 A.2d 1221, 1223 (Me.
1977). Plaintiff advances the tort through the subspecies
described as "intrusion upon the seclusion of
another." Nelson cited with approval and relied
upon the Restatement (Second), Torts § 652B, which
One who intentionally intrudes, physically or otherwise, upon
the solitude or seclusion of another or his private affairs
or concerns, is subject to liability to the other for
invasion of his privacy, if the intrusion would be highly
offensive to a reasonable person.
Nelson v. Me. Times, 373 A.2d 1221, 1223 (Me. 1977).
points to the admonition in Nelson that "a
complaint should minimally allege a physical intrusion upon
premises occupied privately by a plaintiff for purposes of
seclusion." Id. The court agrees with Plaintiff
that the narrow limitation of the Restatement in
Nelson was likely animated by the facts of that
particular dispute. By its own terms the Restatement is
broader in its scope to also include intentional invasion,
other than physical, into one's private affairs or
concerns. In 1977 the nature Nelson's claim decidedly did
not involve an invasion upon one's private affairs or
concerns that were digitally stored or transmitted. Under the
particular facts of Nelson, it might have been
sufficient to limit what "the" complaint should
have alleged as opposed to what "a" complaint must
allege in perpetuity to support this particular tort. The
question becomes whether the choice in articles is
significant in terms of the binding effect of
Nelson, as inapplicable as it plainly is to an
alleged intrusion into the "private affairs and
concerns" of Plaintiff that were stored and transmitted
through digital medium. It is clear that Plaintiff did not
allege a physical intrusion upon her premises. The court has
little doubt that the Nelson rule may be revisited
in light of privacy breaches that could not have existed in
1977. However, until the Law Court modifies its holding in
Nelson, Count I of the Complaint is dismissed as
failing to state a claim.
Unlawful disclosure of confidential health care
argues that the type of disclosure alleged in the Complaint
falls within an exception to a violation of 22 M.R.S.
§1711-C. Maine has long embraced the so-called
"notice pleading" rule. See Johnston v. Me.
Energy Recovery Co.,2010 ME 52, ¶ 16, 997 A.2d
741, 746 (stating that Maine is a notice pleading state).
Notice pleading requires that a complaint give "fair
notice of the cause of action, " id. (quotation
marks omitted), by providing "a short and plain
statement of the claim showing that the pleader is entitled
to relief." M.R. Civ. P. 8(a)(1). "A complaint need
not identify the particular legal theories that will be
relied upon, but it must describe the essence of the claim
and allege facts sufficient to demonstrate that the
complaining party has been injured in a way that entitles him
or her to relief." Burns v. Architectural Doors
& Windows, 2011 ME 61. ¶¶ 16-17, 19 ...