Martin v. Mooney et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Timothy Martin
v. Civil No. 19-cv-00323-LM
Opinion No. 2020 DNH 028
Susan E. Mooney; et al.
O R D E R
This dispute arises from an employment relationship gone
awry. Plaintiff Timothy Martin was the administrator at a
continuing care retirement community. His employer fired him
and sent a memorandum to community residents stating that Martin
had been “terminated . . . because of a pattern of
unprofessional conduct.” Doc. no. 1-1. A local newspaper
subsequently learned Martin had been fired and published two
front-page stories about Martin’s termination. Martin alleges
that his former employer, its President, and the employer’s
controlling entity are liable for privacy violations,
defamation, and breach of contract. He also alleges that the
employer’s President, Dr. Mooney, is personally liable for
intentional infliction of emotional distress.
Defendants move to dismiss, arguing that the employer’s
controlling entity cannot be held liable for the alleged
misconduct, and that all claims should be dismissed against all
defendants because Martin’s claims lack facial plausibility.
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 1 of 32

2
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Martin
objects. For the following reasons, the court dismisses the
employer’s controlling entity as a defendant. As to Martin’s
claims against the remaining defendants, the court grants the
motion in part and denies it in part.
STANDARD OF REVIEW
Under Rule 12(b)(6), the court must accept the factual
allegations in the complaint as true, and draw all reasonable
inferences from those facts in the plaintiff’s favor. Foley v.
Wells Fargo Bank, N.A., 772 F.3d 63, 71, 75 (1st Cir. 2014).
The court may also consider documents attached to the complaint
and documents expressly incorporated into it. Id. at 72. The
court must then “determine whether the factual allegations in
the plaintiff’s complaint set forth a plausible claim upon which
relief may be granted.” Id. at 71 (internal quotation marks
omitted). A claim is facially plausible “when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678. However, a
pleading “that offers labels and conclusions or a formulaic
recitation of the elements of a cause of action will not do.”
Id. (quotations omitted).
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 2 of 32

3
BACKGROUND
The following facts are taken from Martin’s complaint and
the attached documents. In August 2014, defendant Alice Peck
Day Memorial Hospital hired Martin to administer a 63-unit
continuing care retirement community called The Woodlands.
Defendant Dr. Susan E. Mooney is the President of Alice Peck Day
Memorial Hospital (“Hospital”). Defendant Alice Peck Day
Lifecare Center, Inc. (“Lifecare”), a subsidiary of Alice Peck
Day Hospital, owns and operates both The Woodlands and Harvest
Hill, a 76-unit residential assisted living facility. Defendant
Dartmouth-Hitchcock Health (“DHH”) is the “controlling entity”
of the Hospital and Lifecare. Doc. no. 1 at ¶ 6.
On February 15, 2018 Dr. Mooney terminated Martin.1 That
same day, she sent a memorandum to the 139 units at The
Woodlands and Harvest Hill informing residents that Martin had
been “terminated as the Administrator of The Woodlands because
of a pattern of unprofessional conduct.” Doc. no. 1-1
(hereinafter “the Memo”).
Two days later, the Valley News, a local newspaper,
published a front-page story stating that Martin had been
“fired” due to “a pattern of unprofessional behavior.” Doc. no.
1-3 at 1. The article quoted a Hospital spokesperson who
1 Martin does not challenge Dr. Mooney’s right to terminate
him.
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 3 of 32

4
confirmed that Martin was no longer employed at The Woodlands
but declined to comment on the reasons for Martin’s departure,
stating: “Per our policy, we will not comment any further about
a personnel matter.” Doc. no. 1-3 at 1. The personnel records
page of the Hospital employee handbook states that: the Hospital
“considers personnel files to be confidential”; access to
personnel files is restricted; and information contained in a
personnel file will only be released in limited circumstances.
Doc. no. 1-2.
One week later, the Valley News published a second front-
page story about Martin’s termination stating Martin had been
fired for “a pattern of unprofessional conduct.” Doc. no. 1-3
at 2. The second article also reported that three of Martin’s
former co-workers had complained to management about Martin in
2015 after Martin purportedly initiated physical contact with a
teenage co-worker.
Martin alleges that because of the “massive news involving
the ‘Me Too’ movement,” individuals who read or learned about
the Memo were left to “wrongly assume the ‘unprofessional
conduct’ phrase could only mean sexual assault or sexual
harassment of female employees.” Doc. no. 1 at ¶19. Martin
contends defendants’ actions have caused him public
embarrassment, humiliation, and loss of income in his field.
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 4 of 32

5
In March 2019, Martin brought this action alleging four
claims against all defendants: (I) Invasion of Privacy by Public
Disclosure of Private Facts; (II) Invasion of Privacy by
Intrusion Upon Seclusion; (III) Defamation; and (IV) Breach of
Contract. Martin brings one additional claim against Dr.
Mooney: (V) Intentional Infliction of Emotional Distress.
Martin seeks compensatory and enhanced compensatory damages as
well as attorney’s fees and costs. The defendants move to
dismiss, arguing both that Martin’s claims lack facial
plausibility and that DHH cannot be held liable for the
purported misconduct. See Iqbal, 556 U.S. at 678.
DISCUSSION
Before reaching the motion to dismiss on a claim-by-claim
basis, the court first considers DHH’s liability as a parent
corporation.
I. DHH’s Liability as a Parent Corporation
The court first considers whether DHH can be held liable in
this case. Martin does not allege DHH directly committed any
wrongdoing. Rather, Martin asserts DHH is liable because DHH is
the “controlling entity” of the Hospital and Lifecare (doc. no.
1 at ¶ 6) and has the power to control the Hospital’s board of
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 5 of 32

6
trustees, approve the Hospital’s budget, and terminate the
Hospital’s CEO.
“It is a general principle of corporate law deeply
ingrained in our economic and legal systems that a parent
corporation . . . is not liable for the acts of its
subsidiaries.” United States v. Bestfoods, 524 U.S. 51, 61
(1998) (quotation omitted); see also Leeman v. Boylan, 134 N.H.
230, 235-36 (1991) (holding a parent corporation is not
vicariously liable solely because it owns a subsidiary). Nor
does a parent company’s “control” over a subsidiary, which may
include “election of directors, the making of by-laws . . . and
the doing of all other acts incident to the legal status of
stockholders,” extend subsidiary liability to the parent
company. See Bestfoods, 524 U.S. at 62. In limited situations,
a parent company may be held liable for the acts of its
subsidiary; for example, if the corporate form is being used to
accomplish a wrongful purpose such as fraud. Id.
Martin’s complaint does not allege wrongdoing by DHH or
include facts that support a reasonable inference that the
corporate relationship between DHH and the Hospital is being
used to accomplish a wrongful purpose. Therefore, the court
dismisses all claims against DHH because the court cannot
reasonably infer that DHH is liable for the alleged misconduct.
See Iqbal, 556 U.S. at 678.
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 6 of 32

7
II. Motion to Dismiss Counts I-V
The defendants have moved to dismiss each of Martin’s five
claims. The court considers each claim in turn.
A. Count I: Public Disclosure of Private Facts
In Count I, Martin alleges that defendants violated his
privacy, and are liable for public disclosure of private facts,
because Dr. Mooney informed residents that Martin had been
terminated “because of a pattern of unprofessional conduct.”
Doc. no. 1 at ¶ 28. Under New Hampshire law, a party is liable
for public disclosure of private facts if it (1) “gives
publicity,” (2) to “a matter concerning the private life of
another,” (3) when the matter publicized “would be highly
offensive to a reasonable person,” and (4) the matter is “not of
legitimate concern to the public.” Lovejoy v. Linehan, 161 N.H.
483, 486 (2011) (quoting Restatement (Second) of Torts § 652D).
Defendants move to dismiss, arguing Martin’s complaint fails to
plausibly allege the four elements of a public disclosure of
private facts claim. The court addresses each element of this
tort claim below.
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 7 of 32

8
1. Publicity
“Publicity” means making a matter public “by communicating
it to the public at large, or to so many persons that the matter
must be regarded as substantially certain to become one of
public knowledge.” Karch v. BayBank FSB, 147 N.H. 525, 535
(2002) (quotation omitted). Whether a disclosure of a private
matter has become one of public knowledge “does not, as a matter
of law, depend on the number of people told” and “is a
conclusion best reached by the trier of fact.” Id.
Defendants argue that Dr. Mooney did not “publicize” the
Memo because she only sent it to the community residents, and
not to the general public. Martin counters that Dr. Mooney’s
distribution of the Memo made it “substantially certain” that
the information about Martin’s termination would become public
knowledge, as it indeed did, because Dr. Mooney sent the memo to
over 100 people and it was foreseeable and predictable that one
of them would disclose the Memo to the press.
In Karch, the New Hampshire Supreme Court held an employee
had plausibly alleged the publicity element of a Public
Disclosure of Private Facts claim when the employee’s complaint
alleged that the employer shared her information with a limited
number of co-workers. Id. The purported publication in this
case exceeds the publication in Karch; therefore, Martin’s
complaint plausibly alleges the element of publicity.
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 8 of 32

9
2. Private Life
To establish the second element, Martin must show the
publicized matter concerns his “private life.” Lovejoy, 161
N.H. at 486. Neither the New Hampshire Supreme Court, nor the
Restatement (Second) of Torts, have set forth a bright line rule
for determining whether a matter concerns a person’s private or
public life. See Restatement (Second) of Torts § 652D cmt. b.
However, the Restatement offers several examples. Information
about a person that is included in the public record and
information about activities a person undertakes “in dealing
with the public” involves a person’s public life. Id. On the
other hand, records not open to public inspection, photographs
taken without consent in private, sexual relations, intimate
personal letters, and other facts that a person “does not expose
to the public eye, but keeps entirely to himself or at most
reveals to his family or close friends” involve that person’s
private life. Id.
Martin alleges that the information in the Memo concerned
his private life because: (a) Martin wished the information to
be kept private and took no action to share it; (b) the
Hospital’s personnel policy stated employee information was
confidential; and (c) the public would not have learned why
Martin left his position but for Dr. Mooney’s action.
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 9 of 32

10
Defendants counter that information about a person’s
employment, as a matter of law, concerns that person’s public
life; accordingly, an employer who shares that information is
not liable for public disclosure of private facts. Defendants
rely on three cases in support of this proposition. See
Remsburg v. Docusearch, Inc., 149 N.H. 148, 157 (2003); Moxley
v. Reg'l Transit Servs., 722 F. Supp. 977, 980-81 (W.D.N.Y.
1989); McGarry v. Univ. of San Diego, 154 Cal. App. 4th 97, 110
(Cal. Ct. App. 2007). However, none of these cases supports
defendants’ proposition.
In Remsburg, the New Hampshire Supreme Court held that an
employee’s work address is a public matter because the public
could learn that information by observing a person’s public
commute. 149 N.H. 148, 157 (2003). Nothing about Remsburg
leads to the broad conclusion that other kinds of employee
information, including the reasons for an employee’s
termination, are public as a matter of law.
Moxley, a case construing the Fourth Amendment rights of a
bus driver who worked for a public transportation authority,
also offers no support for defendants’ arguments. In Moxley,
the bus driver argued that his employer violated his Fourth
Amendment rights by requiring him to take a drug screening test
as part of a return-to-work physical. 722 F. Supp. at 980-81.
The court held that the employer had not violated the employee’s
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 10 of 32

11
constitutional rights because the employer had provided the
employee with notice of the drug-screening policy, the employee
had consented in writing to the physical, and the employee knew
that he would be tested for drugs. Id. Here, Martin is not
relying on the Fourth Amendment. He was a private employee at a
private facility who did not consent to having information about
his termination shared with the residents.
McGarry is even less relevant. McGarry merely held that a
terminated football coach could not succeed in a defamation
claim against his employer (a public university) because the
coach was a public figure and his termination “was already a
topic of widespread public interest.” 154 Cal. App. 4th at 110,
117. The court acknowledged in McGarry that the plaintiff had
not asserted an invasion of privacy claim and declined to
address whether the coach had a legitimate expectation of
privacy in the university’s reasons for terminating him. Id. at
111 n.9.
In sum, the defendants’ cited cases fall well short of
establishing that, as a matter of law, information about a
private employee’s termination involves that person’s public
life. Construed in his favor, Martin’s allegations plausibly
allege that the Memo contains information “not open to public
inspection,” as described in the Restatement (Second) of Torts.
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 11 of 32

12
See Restatement (Second) of Torts § 652D cmt. b. At this early
stage, this element is plausibly alleged.
3. Highly offensive
To make out the third element of a claim for public
disclosure of private facts, the “matter publicized” must
concern something that “would be highly offensive to a
reasonable person.” Lovejoy, 161 N.H. at 486 (quotation
omitted). Defendants argue that informing others of a person’s
termination is not, as a matter of law, offensive—especially
when the reasons given are “vague” and “non-detailed.” Doc. no.
5-1 at 7.
In a false-light invasion of privacy claim, this court has
found that an employer’s comments conveying that an employee was
“professionally deficient” can be highly offensive. Wentworth-
Douglass Hosp. v. Young & Novis Prof'l Ass'n, No. 10-CV-120-SM,
2011 WL 446739, at *7 (D.N.H. Feb. 4, 2011); see also Pawlaczyk
v. Besser Credit Union, No. 14-CV-10983, 2014 WL 5425576, at *5
(E.D. Mich. Oct. 22, 2014) (observing it could be “highly
offensive” for an employer to publicize that an employee had
been terminated but holding it was not “highly offensive” for an
employer to state a person was no longer an employee without
disclosing “the nature of the separation or any reasons behind
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 12 of 32

13
it”). Thus, at this early stage, Martin’s allegations are
sufficient to meet the third element.
4. Legitimate Concern to the Public
Under the fourth and final element of this invasion of
privacy tort, defendants can only be held liable for public
disclosure of private facts if the “matter publicized is of a
kind that . . . is not of legitimate concern to the public.”
Lovejoy, 161 N.H. at 486 (quotation omitted). A “public concern
is something that is a subject of legitimate news interest; that
is, a subject of general interest and of value and concern to
the public at the time of publication.” City of San Diego, Cal.
v. Roe, 543 U.S. 77, 83–84 (2004) (stating that this is the
“same standard used to determine whether a common-law action for
invasion of privacy is present”). However, a line must be drawn
between information to which the public is entitled and “morbid
and sensational prying into private lives for its own sake.”
Restatement (Second) of Torts § 652D cmt. h. The limitations
are “those of common decency” and the analysis “becomes a matter
of community mores.” Id. Due regard must be given to both
“freedom of the press and its reasonable leeway to choose what
it will tell the public” and “to the feelings of the individual
and the harm that will be done to him by the exposure.” Id.
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 13 of 32

14
Defendants argue Martin’s high-level position as
Administrator of The Woodlands rendered his termination and the
reasons for it a matter of public concern. Martin acknowledges
that the identity of the Administrator of The Woodlands is a
matter of public concern, and “would have been in the ‘People’
or ‘Business’ section of a newspaper.” Doc. no. 7-1 at 9. He
argues, however, that the public’s “idle interest” in learning
the reasons for his departure does not make them a matter of
legitimate public concern. Id.
Generally, a person who “voluntarily places himself in the
public eye” by assuming a prominent professional role “cannot
complain when he is given publicity that he has sought, even
though it may be unfavorable to him.” Restatement (Second) of
Torts § 652D cmt. e. For public figures, permissible publicity
may “legitimately extend, to some reasonable degree” to facts
“which are not public” even though publicity of those same facts
could constitute an invasion of privacy if the person were not a
public figure. Id. at cmt. h. When analyzing whether a matter
is of legitimate concern to the public, “reasonable proportion”
should be maintained “between the event or activity that makes
the individual a public figure and the private facts to which
publicity is given.” Id.
In this case, the event that put Martin in the public eye,
his high position at The Woodlands, is connected closely to the
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 14 of 32

15
purportedly private matter, the reason for Martin’s departure
from that position. This high degree of connection strengthens
defendants’ argument that Martin’s termination, and the reasons
for it, were matters of legitimate public concern. However,
defendants have cited no legal authority that stands for the
broad proposition that the reason a private employee leaves a
position at a private institution is a matter of legitimate
public concern.
At this stage, the court’s role is not to “attempt to
forecast a plaintiff’s likelihood of success on the merits” but
rather to focus “on the reasonableness of the inference of
liability that the plaintiff is asking the court to draw from
the facts alleged in the complaint.” Ocasio-Hernandez v.
Fortuno-Burset, 640 F.3d 1, 13 (1st Cir. 2011). The fourth
element is therefore plausibly alleged.
For these reasons, at this early stage, the court concludes
that Martin’s complaint sets forth a plausible claim that
defendants are liable for public disclosure of private facts.
Defendants’ motion to dismiss Count I is denied.
B. Count II: Intrusion Upon Seclusion
In Count II, Martin alleges that defendants are liable for
intrusion upon seclusion because Dr. Mooney “intruded” by
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 15 of 32

16
distributing the Memo which contained private information about
Martin’s termination.
A party is liable for intrusion upon seclusion if it
“intentionally intrudes, physically or otherwise, upon the
solitude or seclusion of another or his private affairs or
concerns.” Restatement (Second) of Torts § 652B; Karch, 147
N.H. at 534 (stating that New Hampshire common law for intrusion
upon seclusion is “consistent with the Restatement (Second) of
Torts § 652B”). Courts and secondary sources have recognized
several forms of intrusion including: physical invasion of
another’s abode, use of technology to eavesdrop on private
conversations, and investigating or examining another’s private
concerns. Karch, 147 N.H. at 534; Restatement (Second) of Torts
§ 652B; 9 S. Speiser, C. Krause, & A. Gans, The American Law of
Torts §§ 30.09-30:19 (2012); 3 D. Dobbs, Law of Torts § 580
(2011). In order for a party to be liable for intrusion upon
seclusion, the intrusive conduct must go “beyond the limits of
decency” and “the defendant should have realized that it would
be offensive to persons of ordinary sensibilities.” Karch, 147
N.H. at 534-35 (quotation and brackets omitted). An intrusion
upon seclusion claim does not require publicity—although
publicity may affect the amount of damages. Hamberger v.
Eastman, 106 N.H. 107, 112 (1964).
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 16 of 32

17
Defendants’ motion to dismiss does not address the
threshold question of whether Dr. Mooney’s conduct constitutes
an “intrusion” as contemplated by this tort. The court
observes, however, that neither the parties nor the court have
identified any case in which an employer was found liable for
intrusion upon seclusion after engaging in conduct comparable to
Mooney’s. See, e.g., Restatement (Second) of Torts § 652B (no
examples comparable to this case); 9 The American Law of Torts
§§ 30.09-30:19 (same); 3 Law of Torts § 580 (stating that the
“emphasis in the intrusion tort is on the intrusive act” but
including no examples of intrusive acts comparable to this
case). However, because defendants’ motion to dismiss does not
appear to dispute that Dr. Mooney’s conduct constitutes an
“intrusion,” the court will limit its analysis to those
arguments raised and briefed by the parties.
Defendants urge the court to dismiss Martin’s intrusion
upon seclusion claim for two reasons: (1) the information in the
Memo involved Martin’s public life as opposed to a private
matter; and (2) Dr. Mooney’s conduct was not offensive or beyond
the limits of decency as a matter of law.
As the court already explained when reviewing Martin’s
public disclosure of private facts claim, the cases cited by
defendants do not establish that information about a private
employee’s termination is a public matter.
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 17 of 32

18
Turning to defendants’ second argument—whether Dr. Mooney’s
conduct was offensive or beyond the limits of decency—the court
observes that although an intrusion upon seclusion claim and a
public disclosure of private facts claim both have elements that
contain the word “offensive,” the elements of the respective
torts are not the same. For an intrusion upon seclusion claim,
the intrusion must be offensive. Restatement (Second) of Torts
§ 652B (Intrusion upon Seclusion). On the other hand, a public
disclosure of private facts claim requires no intrusion; rather,
the matter publicized must be highly offensive. Restatement
(Second) of Torts § 652D (Publicity Given to Private Life).
Therefore, the court’s finding in Count I, that the matter
publicized could be highly offensive, has little bearing on the
court’s analysis in Count II. For purposes of this count,
Martin’s complaint must plausibly allege that Dr. Mooney
intruded and that a reasonable person could find her intrusion
offensive. Karch, 147 N.H. at 534.
Whether an “intrusion would be offensive to persons of
ordinary sensibilities is ordinarily a question for the fact-
finder and only becomes a question of law if reasonable persons
can draw only one conclusion from the evidence.” Remsburg, 149
N.H. at 156. In making this determination, the fact-finder
should consider “the degree of intrusion, the context, conduct
and circumstances surrounding the intrusion as well as the
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 18 of 32

19
intruder's motives and objectives, the setting into which he
intrudes, and the expectations of those whose privacy is
invaded.” Id. (quotation omitted).
Here, relying on the factors set forth by the New Hampshire
Supreme Court, and accepting for purposes of this motion that
Dr. Mooney’s actions constitute an “intrusion,” the court cannot
conclude as a matter of law that no jury could find for Martin
on this fact-dependent tort claim. It is possible, with a more
developed record, that a fact-finder could conclude that
publicizing the reason for Martin’s termination rises to the
level of offensive and indecent, especially as there appears to
be no reason that the residents of The Woodlands needed to know
anything more than the fact that Martin had been replaced. See
Karch, 147 N.H. at 534-35. The court holds that Martin’s
intrusion upon seclusion claim survives dismissal at this early
stage. Defendants’ motion to dismiss Count II is denied.
C. Count III: Defamation
Martin alleges defendants are liable for defamation because
the Memo criticized his professional performance and harmed his
professional reputation. Defendants move to dismiss, arguing
that Martin’s complaint fails to allege the necessary elements
of a defamation claim. Alternatively, they argue the statement
in the Memo is privileged.
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 19 of 32

20
Under New Hampshire law, in order to survive a motion to
dismiss, the plaintiff “must have alleged facts that would show
that the defendants failed to exercise reasonable care in
publishing a false and defamatory statement of fact about the
plaintiff[] to a third party.” Automated Transactions, LLC v.
Am. Bankers Ass'n, 216 A.3d 71, 77 (N.H. Aug. 16, 2019)
(quotation and brackets omitted) (emphases added); see also
Pierson v. Hubbard, 147 N.H. 760, 763 (2002); Indep. Mechanical
Contractors v. Gordon T. Burke & Sons, 138 N.H. 110, 118 (1993).
Embedded in this standard is the requirement that the challenged
statement be “false” and one “of fact.” Automated Transactions,
LLC, 216 A.3d at 77; see also Gen. Star Indem. Co. v. Beck, No.
18-CV-108-JD, 2018 WL 3849877, at *4 (D.N.H. Aug. 13, 2018)
(stating that a claim for defamation “require[s] as an element
that the challenged statement be false”).
Martin argues that he has plausibly alleged that the Memo
contains a defamatory statement because, under New Hampshire
common law, a statement accusing a person of committing a crime,
or engaging in activities that would tend to injure him in his
trade or business, is defamatory per se. See, e.g., MacDonald
v. Jacobs, 171 N.H. 668, 674, cert. denied, 139 S. Ct. 2754
(2019); Chagnon v. Union Leader Corp., 103 N.H. 426, 441
(1961); Jones v. Walsh, 107 N.H. 379, 380 (1966); see also
Restatement (Second) of Torts § 570 (1977). A statement that is
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 20 of 32

21
defamatory per se is defamatory on its face; therefore, a
plaintiff can “recover as general damages all damages which
would normally result from such a defamation, such as harm to
his reputation,” without needing to “prove these damages
specifically.” Lassonde v. Stanton, 157 N.H. 582, 593 (2008)
(quotation omitted).
Defendants argue that the court must dismiss this claim
because Martin’s complaint does not plausibly allege that the
statement in the Memo is false. Defendants raised Martin’s
failure to allege falsity in their motion to dismiss; however,
Martin did not move to amend his complaint to allege that the
statement in the Memo was false. Rather, Martin argued in his
objection that criticism of professional performance is
defamation per se.
Martin cites several cases in support of the proposition
that the Memo contains a statement that is defamatory per se.
For example, in Jones v. Walsh, the New Hampshire Supreme Court
held that an employer may be liable for defamation per se
because he publicly accused a waitress of “not ringing the cash
up in the cash register” and a restaurant patron could interpret
that language as accusing the waitress of a criminal offense or
morally reprehensible conduct. 107 N.H. 379, 380 (1966). Here,
as in Jones, the statement at issue contains language that could
be interpreted as accusing Martin of engaging in behavior which
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 21 of 32

22
would tend to injure him in his trade or business. See also
Chagnon, 103 N.H. at 441. Therefore, the court concludes Martin
has plausibly alleged that the Memo is defamatory.
However, the defamation per se doctrine does not obviate
the requirement that a statement be false in order for liability
to attach under New Hampshire law. See, e.g., Automated
Transactions, 216 A.3d at 77; Pierson, 147 N.H. at 763. The New
Hampshire Supreme Court made this clear in Jones, the defamation
per se case cited above, by holding that a statement must
“falsely” accuse someone of criminal or morally reprehensible
conduct in order for the speaker to be liable for defamation per
se. 107 N.H. at 380.2 Because falsity is an element of New
Hampshire’s defamation tort, Martin’s complaint must plead facts
demonstrating falsity to prevail on a motion to dismiss the
complaint in federal court. See Tannerite Sports, LLC v.
NBCUniversal News Grp., a division of NBCUniversal Media, LLC,
864 F.3d 236, 247 (2d Cir. 2017).
2 Martin also cites Jensen v. Hewlett-Packard Co., to support
his defamation per se argument. 14 Cal. App. 4th 958, 965 (Cal.
Ct. App. 1993) (applying California law). In Jensen, a
California court held that “unless an employer’s performance
evaluation falsely accuses an employee of criminal conduct, lack
of integrity, dishonesty, in competence or reprehensible
personal characteristics or behavior” the employer cannot be
held liable for defamation per se. Id. (emphasis added).
Therefore, Jensen also does not obviate the requirement that an
employer’s statement be false in order for the employer to be
held liable for defamation per se.
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 22 of 32

23
When falsity is an element of a state law defamation claim,
federal courts have required plaintiffs to plead facts that, if
proven true, would allow a reasonable person to consider the
statement false. See Swindol v. Aurora Flight Scis. Corp., 832
F.3d 492, 494-95 (5th Cir. 2016) (upholding district court’s
dismissal of employee’s defamation claim, even though employee
claimed statements by human resources manager were defamatory,
because employee failed to allege the statements were false);
see also Tannerite Sports, 864 F.3d at 252; Clark v. Viacom
Int'l Inc., 617 F. App'x 495, 509-10 (6th Cir. 2015); Price v.
Stossel, 620 F.3d 992, 1003 (9th Cir. 2010).
Here, Martin’s complaint does not include any facts from
which the court can reasonably infer that the Memo is false.
See Foley, 772 F.3d at 75 (The court makes “reasonable
inferences, drawn from the alleged facts, in the pleader’s
favor” when reviewing a Rule 12(b)(6) motion for failure to
state a claim). The complaint includes no assertions about
Martin’s professionalism or the reason for his termination. On
these topics, the complaint states:
12. Mr. Martin was successful in filling the
facility, bringing in approximately $16,000,000 in new
entrance fees during his tenure.
13. Working relations between Mr. Martin and Dr.
Mooney gradually deteriorated to the point that she
decided to terminate his employment on February 15,
2018, and Mr. Martin is not challenging her right to
do so.
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 23 of 32

24
14. . . .[Dr. Mooney] personally sent a memo to each
and every one of the 63 residential units at The
Woodlands and the 76 units at Harvest Hill, thereby
intentionally defaming and harming Mr. Martin’s
professional reputation by intruding upon his right to
not have his affairs, whether true or false, known to
others.
Doc. no. 1 at ¶¶ 12-14 (emphasis added). Therefore, not only
does the complaint lack facts from which the court could draw
the inference that the statement in the Memo may be false, in
¶ 14, the complaint appears to tacitly recognize that the Memo
may contain a true statement.
The court concludes, based on the facts alleged in the
complaint, that Martin has failed to plausibly allege that the
statement in the Memo is false. The court dismisses Count III.
D. Count IV: Breach of Contract
In Count IV, Martin alleges that defendants are liable for
breach of contract because the Memo contained confidential
information about Martin’s termination. Martin attached one
page from the employee handbook to his Complaint. That page is
titled “Personnel Records.” It includes the statement that the
Hospital “considers personnel files to be confidential and
limits access to an employee’s personnel file.” Doc. no. 1-2.
The page lists several circumstances in which the employer may
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 24 of 32

25
release information contained in a personnel file, but none
appear to be applicable in this case. Doc. no. 1-2.
Defendants argue that the court should dismiss Martin’s
breach of contract claim for two reasons: (1) the personnel
records policy does not constitute a contract and cannot serve
as the basis for a breach of contract claim; and (2) even if the
policy constitutes a contract, defendants did not breach the
contract because they did not disclose Martin’s personnel file,
or any information contained therein.
1. Martin’s complaint sets forth a plausible contract
claim
In order to state a breach of contract claim under New
Hampshire law, a plaintiff “must allege sufficient facts to show
(1) that a valid, binding contract existed between the parties,
and (2) that [the defendant] breached the terms of the
contract.” Wilcox Indus. Corp. v. Hansen, 870 F. Supp. 2d 296,
311 (D.N.H. 2012) (internal citations omitted). A contract
requires “offer, acceptance, consideration, and a meeting of the
minds.” Durgin v. Pillsbury Lake Water Dist., 153 N.H. 818, 821
(2006). “A breach of contract occurs when there is a failure
without legal excuse to perform any promise which forms the
whole or part of a contract.” Lassonde, 157 N.H. at 588
(quotation and alterations omitted).
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 25 of 32

26
Martin’s complaint alleges that the personnel records
policy in the employee handbook constitutes an offer which
Martin accepted by becoming an employee. Martin also alleges
that, as an at-will employee free to leave his job at any time,
his continued employment constitutes the requisite
consideration. See Panto v. Moore Bus. Forms, Inc., 130 N.H.
730, 737 (1998). The crux of defendants’ response appears to be
that the policies in the employee handbook were not contractual
“offers”; therefore, Martin’s acceptance of the Administrator
position and continued employment were insufficient to transform
the personnel records policy into a legally binding contract.3
A “primary purpose of a Rule 12(b)(6) motion is to weed out
cases that do not warrant reaching the (oftentimes) laborious
and expensive discovery process because, based on the factual
scenario on which the case rests, the plaintiff could never
3 In support of this assertion, defendants attached Martin’s
2013 job application to their reply. Martin moved to strike the
job application on the basis that it is outside the four corners
of the Complaint. In general, the court must decide a motion to
dismiss exclusively upon the allegations set forth in the
complaint (and any documents attached to that complaint) or
convert the motion into one for summary judgment. Fed. R. Civ.
P. 12(d). Courts have made “narrow exceptions” for official
public records; for documents central to plaintiffs' claim; and
for documents sufficiently referred to in the complaint.
Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993). Martin’s
complaint does not reference or rely upon his 2013 job
application. Therefore, the court grants Martin’s motion to
strike (doc. no. 10) and does not consider the job application
in its ruling.
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 26 of 32

27
win.” Foley, 772 F.3d at 72. However, a plaintiff need only
sufficiently allege a plausible claim in order to survive a
motion to dismiss and is “not required to submit evidence to
defeat a Rule 12 (b)(6) motion.” Id. At this early stage,
accepting the facts in the complaint as true, construing them in
the light most favorable to Martin, and drawing all reasonable
inferences in Martin’s favor, see id. at 68, the court concludes
that it is plausible that the personnel records policy in the
employee handbook constitutes a contract.
2. It is Plausible that Defendants Breached Hospital
Policy
Defendants next argue that even if the personnel policies
constituted a contract, the court should dismiss this claim
because Martin’s complaint does not allege that defendants
disclosed information contained in his personnel file. Martin
counters that it is reasonable to infer that information about
the purported “pattern of unprofessional conduct” was reflected
somewhere in his personnel file. He asserts that, at this pre-
discovery stage of the case, the pertinent issue is whether he
has plausibly alleged that defendants broke the contractual
promise that the Hospital would not publicly disclose
information about personnel matters without employee permission.
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 27 of 32

28
Martin is not arguing that the offending language from the
statement (“pattern of unprofessional conduct”) was taken
verbatim from his personnel file. Rather, he alleges that it is
plausible that the offending language characterizes information
that was likely contained in his personnel file; therefore,
publication of the statement violated the Hospital’s personnel
policy. On the one hand, it is not clear to the court that
defendants’ release of the offending statement—even if it
characterizes information contained in Martin’s personnel file—
violates the Hospital’s personnel policy. On the other hand, at
this early stage, the court may not attempt to forecast Martin’s
likelihood of success on the merits. Rather, “a well-pleaded
complaint may proceed even if a recovery is very remote and
unlikely.” See Ocasio-Hernandez, 640 F.3d at 13 (quotation and
ellipses omitted). Therefore, drawing reasonable inferences in
Martin’s favor, see Foley, 772 F.3d at 75, the court concludes
that Martin has plausibly alleged that defendants breached the
Hospital’s personnel policies by distributing the Memo. After
discovery, the factual record will be clearer, and parties may
revisit this issue at summary judgment or at trial.
For these reasons, the court denies defendants’ motion as
to Count IV.
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 28 of 32

29
E: Count V: Intentional Infliction of Emotional Distress
In Count V, Martin asserts a claim against Dr. Mooney for
intentional infliction of emotional distress.
Under New Hampshire common law, the bar to establish
intentional infliction of emotional distress “is very high.”
Moss v. Camp Pemigewassett, Inc., 312 F.3d 503, 511 (1st Cir.
2002). A plaintiff must show that the defendant, through
“extreme and outrageous conduct, intentionally or recklessly
caused severe emotional distress to another.” Tessier v.
Rockefeller, 162 N.H. 324, 341 (2011) (quotation omitted). The
court must determine in the first instance “whether the
defendant’s conduct may reasonably be regarded as so extreme and
outrageous as to permit recovery.” Brewer v. K.W. Thompson Tool
Co., 647 F. Supp. 1562, 1567 (D.N.H. 1986) (quotation omitted).
The outrageous act must “go beyond all possible bounds of
decency” and be “regarded as atrocious, and utterly intolerable
in a civilized community.” Mikell v. Sch. Admin. Unit No. 33,
158 N.H. 723, 729 (2009). Severe emotional distress is an
element of the tort. Konefal v. Hollis/Brookline Co-op. School
Dist., 143 N.H. 256, 261 (1998).
Dr. Mooney argues that her conduct was not extreme or
outrageous as a matter of law. In support, Dr. Mooney points to
the New Hampshire Supreme Court’s holding in Konefal. In
Konefal, a school decided not to renew a teacher’s contract
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 29 of 32

30
after that teacher refused to join a union. Id. at 257. The
teacher sued for intentional infliction of emotional distress.
Id. The New Hampshire Supreme Court held that although the
school district’s decision “may have arose from an improper
motive that may support a claim for wrongful termination,” the
non-renewal did not support a claim for intentional infliction
of emotional distress. Id. at 260. The court explained that
“[a]lthough discharging an employee may be illegal and
reprehensible, a great deal more is required to approach
outrageous conduct.” Id. (quotation omitted).
Martin argues that Dr. Mooney’s conduct is not as “benign”
as the employer’s conduct in Konefal. However, he fails to
explain or provide legal authority for the proposition that it
is more extreme and outrageous for an employer to send an
unfavorable memo about a lawful termination than it is for an
employer to illegally act against an employee.
Courts applying New Hampshire law have frequently dismissed
intentional infliction of emotional distress claims on the basis
that the defendant’s actions were not extreme and outrageous as
a matter of law. For example, in DeMeo v. Goodall, an
ophthalmologist brought a claim for “wrongful” infliction of
emotional distress against his employer after his employee
evaluation purportedly contained false and defamatory
information about the doctor’s professional ability. 640 F.
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 30 of 32

31
Supp. 1115, 1117 (D.N.H. 1986). The court construed the claim
as an intentional infliction of emotional distress claim and
held the employer’s evaluation failed as a matter of law to meet
the definition of outrageous conduct. Id. at 1118.
In Mikell, a case in which a teacher purportedly made a
knowing false statement to a vice-principal about items on a
student’s desk in order to get the student expelled, the court
also concluded that the teacher’s conduct was not extreme and
outrageous. 158 N.H. at 726, 730. The court reasoned that “a
teacher falsely reporting misconduct by a student is a
reprehensible act” but that it did not go “beyond all possible
bounds of decency.” Id. at 730.
The court reached a similar result in Brewer, a case in
which an employer failed to provide an employee’s doctor with
work-related chemical samples so the doctor could treat the
employee’s work-related medical condition. Brewer, 647 F. Supp
at 1564, 1567. The employee was unable to return to work
without medical treatment and the employer ultimately fired the
employee. Id. at 1564. The court dismissed the employee’s
intentional infliction of emotional distress claim because the
employer’s actions were not “so outrageous, atrocious, and
utterly intolerable that no reasonable person could be expected
to endure” them and therefore, did not “rise to the level of
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 31 of 32

32
outrageousness and severity necessary to state a cause of action
for intentional infliction of emotional distress.” Id. at 1567.
Here, Dr. Mooney notified senior residents that the
facility’s administrator had been terminated and provided a
negative reason for his sudden departure. This conduct is less
extreme than the employers’ conduct in DeMeo, Mikell, and
Brewer. The court concludes, therefore, that Dr. Mooney’s
actions do not rise to the level of extreme and outrageous
conduct. Having so held, the court need not address whether
Martin’s complaint plausibly alleges that he suffered severe
emotional distress. See Konefal, 143 N.H. at 261. The court
dismisses Count V.
CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss
(doc. no. 5) is granted as to counts III and V; and is denied as
to counts I, II, and IV. All claims are dismissed against DHH.
Martin’s motion to strike Martin’s job application (doc. no. 10)
is granted.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
March 3, 2020
cc: Counsel of Record
Case 1:19-cv-00323-LM Document 17 Filed 03/03/20 Page 32 of 32