MACVICAR v. ALLIANCE HOME INSPECTIONS et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
KEVIN MACVICAR, 	)
)
Plaintiff 	)
)
v. 	) 	1:24-cv-00341-LEW
)
ALLIANCE HOME INSPECTIONS 	)
et al., 	)
)
Defendants 	)
SUPPLEMENTAL RECOMMENDED DECISION
Following a review of Plaintiff’s complaint pursuant to 28 U.S.C. §§ 1915, I
concluded that Plaintiff had not alleged facts that would support a plausible claim against
any of the defendants. 	Accordingly, I recommended the Court dismiss the matter unless
Plaintiff amended his complaint to allege an actionable claim. (Recommended Decision,
ECF No. 9.) 	Plaintiff subsequently filed an amended complaint. (Amended Complaint,
ECF No. 13.)
Following a review of the amended complaint, I recommend the Court dismiss some
of Plaintiff’s claims, including all claims against two defendants, and allow Plaintiff to
proceed on two claims.
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F ACTUAL BACKGROUND1
Plaintiff alleges that he was employed by Defendant Alliance Home Inspections
(Alliance) from September 2020 to October 2021. (Amended Complaint ¶ 9.) According
to Plaintiff, when he was hired, Alliance and Defendant Francis told Plaintiff that he was a
1099 independent contractor and not an employee. (Id. ¶ 11.) As such, Plaintiff asserts,
Alliance and Defendant Francis did not pay employer payroll taxes. 	(Id. ¶ 38.) Plaintiff
alleges he was required to pay the unpaid employer payroll taxes to the Internal Revenue
Service (IRS). 	(Id. ¶ 40.) 	Alliance and Defendant Francis also paid Plaintiff in cash for
some work and did not include those payments on Plaintiff’s IRS 1099 forms. (Id. ¶¶ 74–
77.)
Plaintiff alleges he “worked more than 40-hours during numerous weeks and [] was
not compensated for hours worked in excess of 40 hours. . . .” (Id. ¶ 85.) Plaintiff further
asserts that Alliance failed to keep accurate records of hours he worked (Id. ¶ 100), paid
him and other workers in cash for some work, (Id. ¶¶ 74, 77, 115), and intentionally
manipulated its payroll records. (Id. ¶ 116.)
Alliance terminated its relationship with Plaintiff in October 2021. 	(Id. ¶ 48.)
Plaintiff maintains that because Alliance did not pay into the unemployment system during
his time with the company, Plaintiff was ineligible to collect unemployment benefits after
the termination of his employment. 	(Id. ¶¶ 44, 49.) 	Plaintiff further asserts that after he
1 In the amended complaint, Plaintiff reasserts many of the facts that he alleged in the original complaint.
The summary of Plaintiff’s factual allegations is identical in many respects to the summary in the first
Recommended Decision.
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filed a SS-8 form with the IRS in 2022 (Id. ¶ 45), the IRS determined that Plaintiff had
been an employee of Alliance. 	(Id. ¶ 46.) 	After Plaintiff’s work with Alliance ended,
Plaintiff started his own home inspection business. (Id. ¶ 50.) According to Plaintiff, in
April 2022, Defendant Francis sent an email to Plaintiff threatening legal action unless
Plaintiff ceased business operations. 	(Id. ¶ 51.) 	Plaintiff asserts that in that email,
Defendant Francis stated he was relying on legal advice from the law firm Eaton Peabody
and the attorney Dave Attoney. (Id. ¶¶ 52, 55; Email, ECF No. 13-3.)
Plaintiff alleges the following claims: breach of fiduciary duty (Count I), filing
fraudulent tax information (Count II), violations of the Fair Labor Standards Act (Count
III), interference with business by fraud or intimidation (Count IV), violations of Maine’s
Unfair Trade Practices Act (Count V), Unjust Enrichment (Count VI), the intentional
infliction of emotional distress (Count VII), tortious interference with business advantage
(Count VIII), and extortion (Count IX).
LEGAL STANDARD
28 U.S.C. § 1915 is designed to ensure meaningful access to the federal courts for
those persons unable to pay the costs of bringing an action. 	When a party is proceeding
pursuant to the statute, however, “the court shall dismiss the case at any time if the court
determines,” inter alia, that the action is “frivolous or malicious” or “fails to state a claim
on which relief may be granted” or “seeks monetary relief against a defendant who is
immune from such relief.” 	28 U.S.C. § 1915(e)(2)(B). 	“Dismissals [under § 1915] are
often made sua sponte prior to the issuance of process, so as to spare prospective defendants
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the inconvenience and expense of answering such complaints.” 	Neitzke v. Williams, 490
U.S. 319, 324 (1989).
When considering whether a complaint states a claim for which relief may be
granted, courts must assume the truth of all well-plead facts and give the plaintiff the
benefit of all reasonable inferences therefrom. Ocasio-Hernandez v. Fortuno-Burset, 640
F.3d 1, 12 (1st Cir. 2011). 	A complaint fails to state a claim upon which relief can be
granted if it does not plead “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).
Although a pro se plaintiff’s complaint is subject to “less stringent standards than
formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), this is
“not to say that pro se plaintiffs are not required to plead basic facts sufficient to state a
claim,” Ferranti v. Moran, 618 F.2d 888, 890 (1st Cir. 1980). To allege a civil action in
federal court, it is not enough for a plaintiff merely to allege that a defendant acted
unlawfully; a plaintiff must affirmatively allege facts that identify the manner by which the
defendant subjected the plaintiff to a harm for which the law affords a remedy. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
DISCUSSION
A. 	Count I – Breach of Fiduciary Duty
“Under Maine common law, the elements of a breach of fiduciary claim are (1) a
fiduciary relationship between the plaintiff and another person, (2) a breach of the other
person’s fiduciary duty toward the plaintiff, and (3) damages incurred by the plaintiff
proximately caused by the breach.” 	Meridian Med. Sys., LLC v. Epix Therapeutics, Inc.,
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2021 ME 24, ¶ 12, 250 A.3d 122. 	The mere fact that Plaintiff worked for Alliance and
Defendant Francis is insufficient to establish a fiduciary relationship. As a general rule, an
employer is not considered a fiduciary of an employee. 	Matthew T. Bodie, Employment
as Fiduciary Relationship, 105 G EO . L. J. 819, 819 (2017) (“[C]urrent law does not hold
employers to be fiduciaries of their employees. . . .”); see, e.g., Budget v. Tiffany & Co.,
547 N.Y.S.2d 81, 82 (N.Y. App. Div. 1989). 	Plaintiff has not alleged enough facts to
support a finding of a fiduciary relationship.
B. 	Count II – Fraudulent Filing of Information Return
In his amended complaint, Plaintiff alleges that in addition to misclassifying him as
an independent contractor, Alliance and Defendant Francis also paid Plaintiff in cash for
some work and did not include those payments on Plaintiff’s IRS 1099 forms. (Amended
Complaint ¶¶ 74–77.) Some courts have found that underreports of payments to employees
may support a claim under 26 U.S.C. § 7434.2 	See Greenwald v. Regency Mgmt. Servs.
LLC, 372 F. Supp. 3d 266, 270–71 (D. Md. 2019); Rosario v. Fresh Smoothies LLC, No.
20-cv-5831 (LJL), 2021 WL 5847633, at *6 (S.D.N.Y. 2021) (granting plaintiff default
judgment when W-2 form filed by defendant did not reflect cash payments made to
plaintiff). 	That is, underreported payments can suggest that an employer was attempting
to defraud tax authorities by reducing the employer’s tax obligation. 	See Greenwald, F.
Supp. 3d at 271. Given that Defendants classified Plaintiff as an independent contractor,
2 Under § 7434, “[i]f any person willfully files a fraudulent information return with respect to payments
purported to be made to any other person, such other person may bring a civil action for damages against
the person so filing such return.” 26 U.S.C. § 7434(a).
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Defendant’s tax liability would be unaffected by the inclusion or exclusion of the cash
payments. Because Alliance and Defendant Francis designated Plaintiff as an independent
contractor, therefore, a fact finder could not reasonably infer from the alleged failure to
include cash payments on the IRS form that Defendants were attempting to defraud tax
authorities. 	In sum, Plaintiff’s allegations remain conclusory and insufficient to allege a
claim under § 7434.
C. 	Count III – Violations of Fair Labor Standards Act
“Under the [Fair Labor Standards Act], an action for unpaid compensation must
commence within two years after a cause of action accrues and three years if the cause of
action arises out of a willful violation.” 	Trezvant v. Fidelity Emp’r Servs. Corp., 434 F.
Supp. 2d 40, 51 (D. Mass. 2006) (citing 29 U.S.C. § 255(a)). A violation of the FLSA is
willful, and thus subject to the three-year statute of limitations, when the employer “knew
or showed reckless disregard for the matter of whether its conduct was prohibited by the
statute.” McLaughlin v. Richard Shoe Co., 486 U.S. 1677, 1681 (1988). “[A]n employer’s
‘failure to keep adequate payroll records,’ ‘intentional manipulation of [its] records,’ and
the practice of paying employees ‘off the books’ could be ‘sufficient grounds for
concluding that [the employer] did not act in good faith or with a reasonable belief that it
was in compliance with the FLSA.’” Figueroa v. Cactus Mexican Grill LLC, 575 F. Supp.
208, 214 (D. Mass. 2021) (quoting Chao v. Hotel Oasis, Inc., 439 F.3d 26, 35 (1st Cir.
2007)).
In the Recommended Decision, I found that Plaintiff had not alleged sufficient facts
to satisfy the willfulness standard necessary for the application of a three-year statute of
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limitations and, therefore, Plaintiff’s claim was subject to and barred by a two-year statute
of limitations.3 (Recommended Decision at 5–6.) The amended complaint addresses this
issue.
Plaintiff alleges Alliance failed to keep accurate records of hours he worked, paid
him and other workers in cash for some work, and intentionally manipulated its payroll
records. (Amended Complaint ¶ 116.) The alleged facts, if proven, could be sufficient to
establish the willfulness necessary for the three-year statute of limitations to apply. 	See
Figueroa, 575 F. Supp. at 214. Additionally, Plaintiff alleges he “worked more than 40-
hours during numerous weeks and [] was not compensated for hours worked in excess of
40 hours. . . .” (Id. ¶ 85.) Plaintiff thus has alleged a FLSA claim. See Berrios-Nieves v.
Fines Nevarez, No. 18-1164 (JAG), 2019 WL 12043410, at *8 (D.P.R. Feb. 7, 2019).
D. 	Count IV – Interference by Means of Fraud or Intimidation
Because interference by means of fraud or intimidation is an element in tortious
interference with a prospective business advantage, the claim is subsumed by the tortious
interference claim discussed below.
E. 	Count V – Violations of Maine Unfair Trade Practices Act
The Maine Unfair Trade Practices Act provides a private remedy for “[a]ny person
who purchases or leases goods, services or property, real or personal, primarily for
personal, family or household purposes and thereby suffers any loss of money or property
3 Plaintiff was employed by Alliance from September 2020 to October 2021. (Complaint ¶ 9, ECF No. 1;
Amended Complaint ¶ 9.) Plaintiff filed his complaint on October 3, 2024, more than two years after he
was last employed by Alliance. (Id. at 1.)
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. . . as a result of the use or employment by another person of a [prohibited trade practice].”
5 M.R.S. § 213(1). Plaintiff has not alleged that he purchased or leased goods, services or
property for family or household purposes and, therefore, has not alleged a claim under the
Maine Unfair Trade Practices Act. 	Johnson v. Gahagan, No. CIV. A. CV-00-576, 2001
WL 1708833, at 4 (Me. Super. Ct. Apr. 6, 2001).
F. 	Count VI – Unjust Enrichment
To establish a claim for unjust enrichment, three elements must be proven:
[One] a benefit conferred upon the defendant by the plaintiff; [two] an
appreciation or knowledge by the defendant of the benefits; and [three] the
acceptance 	or 	retention 	by 	the 	defendant 	of 	the 	benefit 	under 	such
circumstances as to make it inequitable for the defendant to retain the benefit
without payment of its value.
Aladdin Elec. Assocs. V. Town of Old Orchard Beach, 645 A.2d 1142, 1144 (Me. 1994)
(quoting A.F.A.B., Inc. v. Town of Old Orchard Beach, 610 A.2d 747, 749 (Me. 1992)).
Plaintiff alleges Alliance and Defendant Francis were unjustly enriched because by
classifying him as an independent contractor they avoided the employer portion of payroll
taxes and overtime pay. 	(Amended Complaint ¶¶ 149–158.) 	The allegations regarding
overtime pay are not actionable because “state claims that duplicate [Fair Labor Standard
Act] claims are preempted.” 	Cosman v. Simon Roofing & Sheet Metal Corp., No. 12-
11537-DJC, 2013 WL 2247498, at *2 (D. Mass. May 17, 2013). 	Plaintiff has, however,
alleged an unjust enrichment claim based on the payroll taxes.
G. 	Count VII – Intentional Infliction of Emotional Distress
To state a claim for intentional infliction of emotional distress under Maine law a
plaintiff must show that:
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(1) the defendant intentionally or recklessly inflicted severe emotional
distress or was certain or substantially certain that such distress would result
from [the defendant’s] conduct; (2) the conduct was so extreme and
outrageous as to exceed all possible bounds of decency and must be regarded
as atrocious, utterly intolerable in a civilized community; (3) the actions of
the defendant caused the plaintiff's emotional distress; and (4) the emotional
distress suffered by the plaintiff was so severe that no reasonable person
could be expected to endure it.
Curtis v. Porter, 2001 ME 158, ¶ 10, 784 A.2d 18 (quoting Champagne v. Mid-Maine Med.
Ctr., 1998 ME 87, ¶ 15, 711 A.2d 842) (cleaned up). “The determination of whether the
facts alleged are sufficient to establish that the defendant’s conduct is ‘so extreme and
outrageous to permit recovery’ is a question of law for the court to decide.” 	Agereow v.
Weisberg, 2018 ME 140, ¶ 27, 195 A.3d 1210 (quoting Champange, 1998 ME 87, ¶ 16,
711 A.2d 842).
Plaintiff alleges that the email allegedly sent by Defendant Francis, on the advice of
his attorney, caused Plaintiff humiliation, mental anguish, and emotional distress. 	As a
matter of law, this purported email “is not so outrageous and atrocious that it would be
utterly intolerable in a civil society.” 	Davis v. Theriault, No. 1:22-cv-00275-JDL, 2023
WL 5628193, at *59 (D. Me. Aug. 31, 2023) (finding that the filing of complaints about
municipal officials, the alleged dissemination of confidential information, and engaging in
a “smear” campaign were insufficient); see also Argereow, 2018 ME 140, ¶ 28, 195 A.3d
1210.
H. 	Count VIII – Tortious Interference with Business Advantage
“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
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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 (footnotes omitted).
The elements of inference by fraud are: (1) mak[ing] a false representation
(2) of a material fact (3) with knowledge of its falsity or in reckless disregard
of whether it is true or false (4) for the purpose of inducing another to act or
refrain from acting in reliance on it, and (5) the other person justifiably relies
on the representation as true and acts upon it to the damage of the plaintiff.
Id. ¶ 14. “Interference by intimidation involves unlawful coercion or extortion.” Id. ¶ 16.
Plaintiff’s claim of tortious interference centers on an email allegedly sent to him
by Defendant Francis. 	According to Plaintiff, the email states that Plaintiff’s business is
in violation of a non-compete agreement and that Defendant Francis had “lived up to [his]
promise of not discussing to your wife the reasons as to why you were terminated out of
respect at the time for you.” Neither the email nor any other allegations are sufficient to
support a finding of fraud, coercion, or extortion necessary to satisfy the pleading standard
for tortious interference.
I. 	Count IX – Blackmail-Extortion
Plaintiff alleges that Defendants’ conduct constitutes blackmail and extortion. 	To
the extent Plaintiff seeks to assert a claim based on violation of criminal statutes prohibiting
blackmail and extortion, Plaintiff’s claim fails. 	“[I]t is well-settled that criminal statutes
do not provide a private cause of action. . . .” Lundgren v. Universal Wilde, 384 F. Supp.
3d 134, 136 (D. Mass. 2019); Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989).
Plaintiff’s claim also fails to the extent he seeks to assert a tort claim based on
blackmail or extortion. Plaintiff does not cite to any authority, nor has any authority been
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identified, that suggests Maine recognizes a civil cause of action for blackmail or extortion.
See Godfredson v. JBC Legal Group, P.C., 387 F. Supp. 2d 543, 555 (E.D.N.C. 2005)
(dismissing claim for civil extortion when “survey of the applicable North Carolina
authority indicate[d] that no civil cause of action exists for the tort of extortion.”); see also
Rader v. ShareBuilder Corp., 772 F. Supp. 2d 599, 606 (D. Del. 2011) (“Blackmail and
extortion are, in almost all jurisdictions, crimes, not civil causes of action.”). 	Plaintiff,
therefore, has failed to assert a claim based on blackmail or extortion.
C ONCLUSION
Based on the foregoing analysis and the analysis in the original Recommended
Decision, I recommend the Court dismiss Counts I (breach of fiduciary duties), II
(fraudulent 	filing 	of 	information 	return), 	IV 	(interference 	by 	means 	of 	fraud 	or
intimidation), V (violation of Maine Unfair Trade Practices Act), VII (intentional infliction
of emotional distress), VIII (tortious interference with prospective business advantage),
and IX (blackmail/extortion) of Plaintiff’s amended complaint. 	I further recommend the
Court permit Plaintiff to proceed against Alliance and Defendant Francis on Counts III
(Fair Labor Standards Act) and VI (unjust enrichment) of the amended complaint.4
NOTICE
A party may file objections to those specified portions of a magistrate
judge’s report or proposed findings or recommended decisions entered
4 Plaintiff has alleged no facts that would support a claim against Dave Attoney or Eaton Peabody. “It is
well settled that attorneys are “‘immunized from liability under the shield afforded attorneys in advising
their clients, even when such advice is erroneous, in the absence of fraud, collusion, malice or bad faith.’”
Pecile v. Titan Capital Group, LLC, 947 N.Y.S. 2d 66, 67 (N.Y. App. Div. 2012) (quoting Beatie v. DeLong,
561 N.Y.S. 2d 448, 451 (N.Y. App. Div. 1990)).
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pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, within fourteen
(14) days of being served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court’s order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 2nd day of January, 2025.
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