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Cameron v. X-Ray Professional Association

United States District Court, D. New Hampshire

February 21, 2017

John Cameron
X-Ray Professional Association, et al. Opinion No. 2017 DNH 032

          Zachary W. Berk, Esq., George M. Boucher, Esq., Michael S. Lewis, Esq., Robert Terry Parker, Esq.


          Landya McCafferty United States District Judge

         This 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.

         Standard of Review

         In the 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).


         Defendant 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”).

         On 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).

         In 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 account.

         On 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.

         On July 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; ...

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