United States District Court, D. New Hampshire
Zachary W. Berk, Esq., George M. Boucher, Esq., Michael S.
Lewis, Esq., Robert Terry Parker, Esq.
McCafferty United States District Judge
dispute arises from an employment relationship gone awry.
Plaintiff John Cameron, M.D., alleges that he lost his job as
a radiologist after coworkers unlawfully accessed and
circulated his private instant messaging history, which
apparently contained disparaging remarks about their
business. Cameron brought this action in federal court
against his former employer and six former coworkers.
Defendants move to dismiss, arguing that a forum selection
clause in Cameron's employment contract requires him to
bring these claims in New Hampshire state court. Cameron
objects. On February 6, 2017, the court heard oral argument
on defendants' motion.
First Circuit, a motion to dismiss based on a forum selection
clause is treated as a motion to dismiss for failure to state
a claim under Federal Rule of Civil Procedure 12(b)(6).
Claudio-de León v. Sistema Universitario Ana G.
Méndez, 775 F.3d 41, 46 (1st Cir. 2014). Under
Rule 12(b)(6), the court must accept the factual allegations
in the complaint as true, construe reasonable inferences in
the plaintiff's favor, and “determine whether the
factual allegations in the plaintiff's complaint set
forth a plausible claim upon which relief may be
granted.” Foley v. Wells Fargo Bank, N.A., 772
F.3d 63, 71 (1st Cir. 2014) (citations and internal quotation
marks omitted). In ruling on the motion, the court may
consider “documents the authenticity of which are not
disputed by the parties, documents central to plaintiffs'
claim, and documents sufficiently referred to in the
complaint.” Claudio-de León, 775 F.3d at 46
(internal quotation marks omitted).
X-Ray Professional Association (“X-Ray”) is a
medical imaging corporation comprised of approximately 15
radiologists. In 2005, X-Ray hired Cameron, a board-certified
radiologist, as a partnership-track employee. Cameron was
induced to join X-Ray, in part, “by promises that he
would become a shareholder after 3 years of employment and
would be eligible to buy into the membership of [Concord
Imaging Center, LLC] (“CIC”) after serving 1 year
as an X-Ray PA shareholder.” Doc. no. 1 at ¶ 14.
CIC is the company that owns the medical imaging equipment
used by X-Ray, and X-Ray shareholders own 50 percent of CIC.
Cameron eventually became a shareholder of X-Ray and later
became a member of CIC. He entered into a buy-in agreement
with other X-Ray shareholders regarding his CIC membership
interest (“CIC Agreement”).
January 1, 2010, Cameron entered into an Amended and Restated
Shareholder Physician Employment Agreement with X-Ray
(“Employment Agreement”), which replaced any
previously signed employment contracts. See doc. no. 11-2.
The Employment Agreement is “the entire and complete
Agreement concerning the employment arrangement”
between Cameron and X-Ray. Id. at ¶ 21. The
Employment Agreement is broad in scope and generally sets
forth the conditions of Cameron's employment, including
terms on employment duties, confidential information, and
termination. The agreement contains a forum selection clause
that states the following:
Any and all disputes between the parties hereto arising from,
caused by or in any way related to this Agreement, which have
not been resolved by the parties through negotiation, with or
without mediation, shall be resolved by litigation venued in
the New Hampshire state courts.
Id. at ¶ 27(a) (emphasis added).
2013, Cameron began using Google's instant messaging
service, Gchat, to discuss personal and business matters with
several of his colleagues at X-Ray. Cameron occasionally
discussed his frustrations with X-Ray's business
operations. Cameron accessed Gchat through his personal Gmail
August 8, 2014, two X-Ray shareholders, Douglas K. Ewing,
M.D., and Joseph G. Venus, M.D., told Cameron that they had
seen his chats and informed him that his employment would
need to be terminated. In October 2014, a different X-Ray
shareholder, Daniel Tyler Zapton, M.D., told Cameron that he
accessed Cameron's personal account and obtained his chat
history. Cameron alleges that Zapton accessed his chat
history, without authorization, from either his work-issued
laptop or his computer station at X-Ray. Cameron further
alleges that Zapton printed and distributed more than a
year's worth of his private Gchat history to the other
X-Ray shareholders. In December 2014, X-Ray terminated
Cameron's employment, effective February 6, 2015. On
February 3, 2015, the shareholders held a meeting, without
Cameron present, and provided a third-party consultant with a
copy of Cameron's chat history.
27, 2016, Cameron filed a complaint in this court against
X-Ray and six individual shareholders: Zapton, Venus, Ewing,
Timothy J. McCormack, M.D., Mark A. Hadley, M.D., and Richard
J. Waite, M.D. (collectively, the “Physician
Shareholders”). Cameron asserts seven claims: (1)
Violation of the Stored Communications Act, 18 U.S.C. §
2701; (2) Violation of RSA 570-A; (3) Invasion of Privacy,
Intrusion on Seclusion; (4) Invasion of Privacy, Public
Disclosure of Private Facts; (5) Wrongful Termination; ...