United States District Court, D. Maine
ORDER ON DEFENDANT’S MOTION TO DISMISS
George Z. Singal United States District Judge
Before the Court is the Motion to Dismiss with Incorporated Memorandum of Law filed by Defendant Moark, LLC (“Moark” or “Defendant”) (ECF No. 7) (the “Motion”). For the reasons explained herein, the Court GRANTS IN PART AND DENIES IN PART the Motion.
I. LEGAL STANDARD
The Federal Rules of Civil Procedure require only that a complaint contain “a short and plain statement of the grounds for the court’s jurisdiction . . . a short and plain statement of the claim showing that the pleader is entitled to relief; and a demand for the relief sought[.]” Fed.R.Civ.P. 8(a)(1)-(3). The Court assumes the truth of the complaint’s well-pleaded facts and draws all reasonable inferences in plaintiffs’ favor. Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012). Under Rule 12(b)(6), the Court “may consider only facts and documents that are part of or incorporated into the complaint.” United Auto., Aero., Agric. Impl. Workers of Am. Int’l Union v. Fortuno, 633 F.3d 37, 39 (1st Cir. 2011) (internal citations omitted).
A viable complaint need not proffer “heightened fact pleading of specifics, ” but in order to survive a motion to dismiss it must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In considering a motion to dismiss, the Court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Plaintiffs must include enough facts supporting a claim for relief that “nudge their claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. “If the factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (quoting SEC v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010)); see also Iqbal, 556 U.S. at 678 (stating that the Court need not accept “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements”). At this point in the litigation, “the determination of whether an issue is trialworthy simply is not the same as the determination of whether a plaintiff states a claim upon which relief can be granted.” Bodman v. Me., Dept. of Health & Human Servs., 720 F.Supp.2d 115, 121 (D. Me. 2010) (denying motion to dismiss a hostile work environment claim).
II. FACTUAL BACKGROUND
For the purposes of this Motion, the Court considers the facts as alleged in Plaintiffs’ First Amended Complaint (ECF No. 10) (the “Complaint” or “Compl.”).
C&M Property Management, LLC (“C&M”) is a Connecticut limited liability company. (Compl. ¶ 2.) Michael Warbin (“Warbin” and, together with C&M, “Plaintiffs”) is the sole member of C&M. (Compl. ¶ 1.) On August 1, 2006, C&M entered into a contract (the “Contract”) with Kofkoff Egg Farms LLC, under which C&M agreed to provide rodent and other pest control services at three facilities located in Connecticut. (Compl. ¶ 11.) Paragraph 13 of the Contract provides, “This agreement may be terminated with 30 days written notice to the non-terminating party.” (Compl. ¶ 21.) Defendant later acquired Kofkoff Egg Farms LLC and assumed the Contract. (Compl. ¶ 12.) C&M subsequently became responsible for pest control at other of Defendant’s properties, including a facility in Turner, Maine (the “Turner Facility”). (Compl. ¶ 13.) C&M routinely used firearms in connection with its pest control services on Defendant’s properties, and Defendant knew and approved of C&M’s use of firearms. (Compl. ¶¶ 14-15.)
On August 19, 2013, while C&M was engaged in pest control activities at the Turner Facility, an employee of Defendant was shot and killed. (Compl. ¶ 17.) On that date and since then, Defendant has allegedly made defamatory statements about C&M. Specifically, the Complaint alleges that in the course of the investigation into the shooting death, “Blair E. Hagy and Gwen Gruver of Moark” repeatedly and falsely stated to law enforcement officials including Maine State Police Officer Eric Paquette, as well as to “other people in the community, ” that “C&M was prohibited from using firearms at its facilities” and that “[Defendant] had no idea that C&M was in fact using firearms to clear pests.” (Compl. ¶ 19.) Plaintiffs allege that these statements have harmed their professional reputations, and that “it is now impossible for Plaintiffs to find work in the pest control industry.” (Compl. ¶ 32.)
On August 20, 2013, Defendant verbally instructed C&M not to set foot on any of Defendant’s properties. (Compl. ¶ 22.) Defendant then hired another contractor to provide pest control services. (Compl. ¶ 24.) As of March 4, 2016, Defendant had not terminated the Contract in writing. (Compl. ¶ 23.)
On August 19, 2015, Plaintiffs filed a complaint in this Court (ECF No. 1) asserting causes of action for breach of contract, defamation, and negligence. On February 12, 2016, Defendant brought the Motion, advancing four separate arguments: (1) that Plaintiffs failed to establish this Court’s subject-matter jurisdiction; (2) that Plaintiff Warbin alleged no cause of action against Defendant; (3) that Plaintiff C&M failed to plausibly allege a cause of action for defamation; and (4) that Plaintiff C&M failed to plausibly allege a cause of action for negligence. On March 4, 2016, Plaintiffs filed their amended Complaint (ECF No. 10) as a matter of course pursuant to Fed.R.Civ.P. 15(a)(1)(B) and their Response (ECF No. 11) opposing Defendant’s Motion.
In its Reply (ECF No. 13), Defendant concedes that the Complaint, as amended, adequately sets forth this Court’s subject-matter jurisdiction based on the parties’ diversity of citizenship. Defendant further admits that C&M has pleaded a cause of action for breach of contract against Defendant. However, three further issues remain: whether C&M has plausibly stated a claim for defamation, whether C&M has plausibly stated a negligence-based tort claim, and ...