Wendell Whye v. Concentra Health Services, Inc., No. 13-2302 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-2302 WENDELL E. WHYE; WILLIAM H. TROUT, Individually behalf of a class of persons similarly situated, and on Plaintiffs Appellants, v. CONCENTRA HEALTH SERVICES, INC., Defendant - Appellee. Appeal from the United States District Court for the District of Maryland, at Baltimore. Ellen L. Hollander, District Judge. (1:12-cv-03432-ELH) Submitted: August 29, 2014 Before KING and Circuit Judge. AGEE, Circuit Decided: Judges, and September 10, 2014 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Cyril V. Smith, William K. Meyer, Adam B. Abelson, ZUCKERMAN SPAEDER LLP, Baltimore, Maryland; Julie C. Janofsky, FEDDER & JANOFSKY LLC, Baltimore, Maryland, for Appellants. Catherine A. Hanrahan, David M. Ross, WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP, Washington, D.C.; Shadonna E. Hale, WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Wendell individually Whye and on and behalf William of a Trout class of ( Plaintiffs ), similarly situated individuals, filed a putative class action lawsuit in Maryland circuit court against Concentra Health Services, Inc. ( Concentra ), asserting Maryland tort claims for intrusion upon seclusion and fraud based on allegedly unlawful breath alcohol testing members. Concentra conducted on Plaintiffs and other class After Concentra removed the case to federal district court on the basis of diversity jurisdiction, the district court granted Concentra s motion to dismiss the complaint for failure to state dismissal a claim. of both Plaintiffs claims. For now appeal, challenging the reasons that follow, the we affirm. We review de novo a district court s dismissal of a complaint for failure to state a claim. Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 179-80 (4th Cir. 2009). In ruling on a Fed. R. Civ. P. 12(b)(6) motion to dismiss, the court is required to accept as true all of the factual allegations contained in the complaint and draw all reasonable inferences in favor of the plaintiff. Kensington Volunteer Fire Dep t, Inc. v. Montgomery Cnty., Md., 684 F.3d 462, 467 (4th Cir. 2012) (internal quotation marks omitted). A motion to dismiss does not resolve contests surrounding facts, the merits of a claim, 2 or the applicability of defenses. Tobey v. Jones, 706 F.3d 379, 387 (4th Cir. 2013) (internal quotation marks omitted). survive a Rule 12(b)(6) sufficient facts speculative to level raise a to 544, 555, 570 (2007). conclusions, assertions devoid unwarranted arguments. 591 F.3d right a complaint to claim must relief to allege above relief the that is Bell Atl. Corp. v. Twombly, 550 U.S. However, the court need not consider elements of the state and plausible on its face. legal motion, To further inferences, of a cause factual of action, enhancement, unreasonable and or conclusions, bare accept or Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 250, 255 (4th Cir. 2009) (internal quotation marks omitted). Under Maryland law, the tort of intrusion on seclusion is defined as [t]he intentional intrusion upon the solitude or seclusion of another or his private affairs or concerns that would be highly offensive to a reasonable person. Mitchell v. Balt. Sun Co., 883 A.2d 1008, 1022 (Md. Ct. Spec. App. 2005) (internal quotation marks omitted); see Restatement of Torts 2d, § 652B (1977). [T]he gist of the offense is the intrusion into a private place or the invasion of a private seclusion that the plaintiff has thrown about his person or affairs. Pemberton v. Bethlehem Steel Corp., 502 A.2d 1101, 1116 (Md. Ct. Spec. App. 1986). An actionable tort requires both that the intrusion 3 must be something which would be offensive or objectionable to a reasonable man, and that the thing into which there is intrusion or prying must be, and be entitled to be, private. Hollander v. Lubow, quotation marks 351 A.2d omitted) 421, (relying 426 on (Md. W. 1976) Prosser, (internal The Law of Torts 807-08 (4th ed. 1971)), superseded on other grounds as stated in Hartford Ins. Co. v. Manor Inn of Bethesda, Inc., 642 A.2d 219 (Md. 1994). Plaintiffs first assert that the district court erred in dismissing their determining that expectation of intrusion they could privacy in upon seclusion neither establish their breath, nor claim a that after reasonable the testing was highly offensive to a reasonable person. breath We have reviewed the district court s careful discussion of this issue and find without no reversible deciding, error. Importantly, Plaintiffs argument even that accepting, they had a reasonable expectation of privacy in their breath, we conclude, for the reasons stated by the district court, that Plaintiffs cannot establish that the breath testing was highly offensive to a reasonable person as a matter of law. Thus, we conclude the district court did not err in dismissing this claim. Turning to the fraud claim, a plaintiff must plead the circumstances constituting fraud with particularity. R. Civ. P. 9(b). To establish 4 a claim for See Fed. fraudulent misrepresentation, the plaintiff must demonstrate that (1) the defendant made a false representation to the plaintiff, (2) the defendant knew the misrepresentation misrepresentation with reckless was false, indifference to or made the its truth or falsity, (3) the defendant made the misrepresentation for the purpose of defrauding the plaintiff, (4) the plaintiff relied, and had a right to rely, on the misrepresentation, and (5) the plaintiff suffered misrepresentation. 2005). compensable damages resulting from the Hoffman v. Stamper, 867 A.2d 276, 292 (Md. A false representation is defined as a statement, conduct, or action that intentionally misrepresents a material fact. Sass v. Andrew, 832 A.2d 247, 260 (Md. Ct. Spec. App. 2003); see also Fowler v. Benton, 185 A.2d 344, 349 (Md. 1962) (defining false representation as anything short of a warranty which produces upon the mind a false impression conducive to action ). A fact is material if a reasonable person would rely upon it in making a decision or if the maker knows the specific recipient of the fact would likely consider it important. Gross v. Sussex Inc., 630 A.2d 1156, 1161 (Md. 1993). A statement that is vague and indefinite in its nature and terms cannot support a cause of action for fraud. Lasater v. Guttmann, 5 A.3d 79, 103 (Md. Ct. Spec. App. 2010) (internal quotation marks omitted). [M]ere vague, general, or indefinite statements . . . should, as a general rule, put the 5 hearer upon inquiry, and there is no right to rely upon such statements. Goldstein v. Miles, 859 A.2d 313, 332 (Md. Ct. Spec. App. 2004) (internal quotation marks omitted). Plaintiffs assert that the district court erred in concluding that they failed to adequately plead any of the four elements of fraud. in light issue. of the We find Plaintiffs arguments unpersuasive, district Moreover, even court s assuming, thorough without treatment the that deciding, of the district court incorrectly determined that Plaintiffs failed to adequately plead scienter, adequately allege the we conclude remaining that elements reasons stated by the district court. of they failed fraud, for to the Therefore, the district court did not reversibly err in dismissing this claim. Accordingly, we affirm the district court s judgment. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 6

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