ORDER ON DEFENDANTS' MOTION TO DISMISS
Mills, Superior Court Justice.
the court is defendants Creative Beginnings Child Care Center
and Kerry Falagario's motion to dismiss plaintiff Eric
Berry's complaint. For the following reasons, the motion
is granted in part and denied in part as to defendant
Creative Beginnings and granted as to defendant Falagario.
Creative Beginnings is a daycare business owned by defendant
Falagario. (PL's Compl. ¶ 7.) On February 11, 2011,
plaintiff's youngest child, Devin, was in defendants'
care. (Id. ¶ 8.) On the afternoon of February
11, plaintiff arrived at defendant Creative Beginnings to
pick up Devin. (Id. ¶ 9.) He was accompanied by
his two other children, Erica and Matthew. (Id.
¶ 10.) Erica and Matthew attempted to enter the daycare
facility, but the access code they entered was denied.
(Id. ¶ 11.) They were then let into the
facility by another parent. (Id. ¶ 12.)
plaintiff waited in the parking lot, defendant Falagario
approached plaintiff and told him, within sight and earshot
of other parents, children, and defendants' staff, that
plaintiff could not be on defendant Creative Beginnings's
premises and could not pick up Devin. (Id. ¶
13.) Inside the daycare facility, an employee of defendant
Creative Beginnings separated Devin from Erica and Matthew,
who were preparing Devin to leave. (Id. ¶¶
14-15.) Plaintiff was told to leave the premises without
Devin. (Id. ¶ 17.) As a result of
defendants' actions, plaintiff and his children have
suffered severe emotional distress, including strokes, sleep
disorders, headaches, anxiety, stress, fear of separation,
and gastrointestinal problems. (Id. ¶¶ 17,
this incident, Devin's mother, Teresa Stanford, continued
to place Devin in defendants' care. (Id. ¶
18.) Plaintiff called defendants multiple times to ask why he
was barred from the premises. (Id.) Plaintiff was
repeatedly told that he could not be on the premises but was
not given a reason. (Id. ¶ 19.) Two weeks
later, defendant Falagario told plaintiff she had made a
mistake and that plaintiff was allowed to pick up Devin.
(Id. ¶20.) Defendants reactivated
plaintiff's access code to the facility. (Id.
¶ 21.) Defendants did not inform the other parents or
staff about the error. (Id. ¶ 26.)
16, 2016, plaintiff filed a complaint individually and on
behalf of Erica, Matthew, and Devin. In the complaint, plaintiff
alleged six causes of action against both defendants: count
I, breach of contract (Eric Berry); count II, negligent
infliction of emotional distress (Eric Berry and children);
count III, intentional infliction of emotional distress (Eric
Berry and children); count IV, defamation (Eric Berry); count
V, false light (Eric Berry); and count VI, breach of
fiduciary duty (Eric Berry and children). On July 7, 2016,
defendants filed an answer and a motion to dismiss counts I,
II, IV, V, and VI, as well as plaintiff's request for
punitive damages. Defendants did not move to dismiss count
III. Plaintiff opposed the motion on July 29, 2016.
Defendants filed a reply on August 4, 2016.
Standard of Review
reviewing a motion to dismiss, the court "examine[s] 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
Litig. v. Wal-Mart Stores, Inc., 2000 ME 162, ¶ 3,
759 A.2d 217. The court treats the facts in the complaint as
admitted. Saunders v. Tisher, 2006 ME 94, ¶ 8,
902 A.2d 830. "Dismissal is warranted when it appears
beyond a doubt that the plaintiff is not entitled to relief
under any set of facts that he might prove in support of his
claim." Tohanson v. Dunnington, 2001 ME 169,
¶ 5, 785 A.2d 1244.
Motion to Dismiss
Count I, Breach of Contract
argue that the complaint does not set forth a cause of action
for breach of contract because plaintiff was not a party to
the contract entered into between Ms. Stanford and defendant
Creative Beginnings to register Devin for daycare
services.(Defs.' Mot. Dismiss 10-11; Ex. A to
Mot. Dismiss.) Because plaintiff is not a party to the
contract, he can sue for breach of contract only if the
contracting parties intended that he have an enforceable
right under the contract. Stull v. First Am. Title Ins.
Co., 2000 ME 21, ¶ 17, 745 A.2d 975. The intent
must be "clear and definite"; it is not enough that
plaintiff benefitted or could have benefitted from
performance of the contract. Devine v. Roche Biomedical
Labs., 659 A.2d 868, 870 (Me. 1995).
may be able to make this showing by virtue of the fact that
he is listed in the contract as "parent/guardian 2,
" a designation that appears to grant him certain
rights. (Ex. A 2.) For example, the contract requires
defendant Creative Beginnings to attempt to contact either
parent 1 or parent 2 before calling emergency contacts.
(Id. at 5.) Further, plaintiff may be able to show
that the contracting parties had a clear and definite intent
to allow him to pick up Devin from daycare, based on the fact
that plaintiff had an access code to the facility. (PL's
Compl. ¶ 33.) Plaintiffs breach of contract claim,
therefore, survives as to defendant Creative