Berenson v. Administrators of the Tulane University Educational Fund, No. 2:2017cv00329 - Document 24 (E.D. La. 2017)

Court Description: ORDER granting 9 Motion to Dismiss. Plaintiff's claims for age discrimination are DISMISSED WITH PREJUDICE. Plaintiff's claim for tortious interference with his contract with LSU is also DISMISSED WITH PREJUDICE. Plaintiff's claim for tortious interference with his contract with Tulane is DISMISSED WITHOUT PREJUDICE. Plaintiff has 21 days to amend his complaint with regard to tortious interference with his contract with Tulane. Signed by Judge Sarah S. Vance on 7/11/2017. (cg)

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Berenson v. Administrators of the Tulane University Educational Fund Doc. 24 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA DR. GERALD S. BERENSON VERSUS CIVIL ACTION NO. 17-329 THE ADMINISTRATORS OF THE TULANE UNIVERSITY EDUCATIONAL FUND SECTION “R” (2) ORD ER AN D REASON S Defendant, the Adm inistrators of the Tulane Educational Fund, 1 (“Tulane”) m oves to dism iss in part plaintiff’s complaint. 2 For the following reasons, the Court grants the m otion. I. BACKGROU N D A. Factu al Backgro u n d Plaintiff Dr. Gerald Berenson is a 94 year-old m edical doctor, scientist and professor. 3 Berenson joined the faculty of Louisiana State University (LSU) in or about 1954. 4 Berenson began working at Tulane University in 1 Defendant was incorrectly designated as “The Adm inistrators of the Tulane University Educational Fund.” See R. Doc. 1. 2 R. Doc. 9. 3 R. Doc. 13 at 2 ¶ 4. 4 Id. at 2 ¶ 6. Dockets.Justia.com 1991. 5 According to his com plaint, Berenson founded, led and directed the Bogalusa Heart Study while a faculty m ember at LSU and Tulane. 6 Berenson alleges that in 20 14, Tulane substantially cut his salary without notice or justification and discontinued benefits provided by Tulane to him and his wife. 7 Berenson also alleges that Tulane rem oved him from his role as an investigator on several grants without legitim ate basis. 8 On or about J une 30 , 20 16, Tulane term inated Berenson’s em ploym ent as a Research Professor in the Department of Epidem iology of Tulane’s School of Public Health and Tropical Medicine. 9 Berenson alleges that Tulane, through Department of Epidem iology Dean Pierre Buekens and Chairm an of Epidem iology Dr. J iang He, acted unilaterally to dim inish Berenson’s involvem ent and role in the Bogalusa Heart Study. 10 Tulane form ed a “Steering Com m ittee” chaired and controlled by Dr. Lydia Bazanno. 11 According to the complaint, Tulane used the Steering Com mittee to control virtually all aspects of the Bogalusa Heart Study, including Berenson’s access to research data, m aterials, and 5 6 7 8 9 10 11 Id. at 3 ¶ 7. Id. at 3 ¶ 9. Id. at 5 ¶ 15. Id. at 4-5 ¶ 14-15. R. Doc. 13 at 6 ¶ 18. Id. at 5 ¶ 16. Id. 2 specim ens. 12 Berenson contends that Tulane’s use of the Steering Com m ittee to control the Bogalusa Heart Study violated applicable law, grant conditions, NIH requirem ents and regulations, and Berenson’s agreements with Tulane. 13 Tulane also allegedly distributed letters to Berenson’s colleagues and collaborators notifying them of the Steering Com m ittee’s form ation and of its control of the Bogalusa Heart Study. 14 Berenson contends that these letters im plied that he had done something wrong and caused damage to his reputation and standing. 15 According to the com plaint, Tulane has denied Berenson access to grant funds, the Bogalusa Heart Study and other research data, m aterials and specim ens needed to carry out his work. 16 Berenson alleges that younger em ployees of Tulane in sim ilar positions have not been denied such access. 17 Berenson further alleges that Tulane has im properly asserted control over data, specim ens, and m aterials generated through grants originated and carried out by LSU. 18 12 13 14 15 16 17 18 Id. Id. at 5 ¶ 16. Id. at 5-6 ¶ 17. R. Doc. 13 at 6 ¶ 17. Id. at 6 ¶ 18. Id. Id. at 7 ¶ 22. 3 B. Pro ce d u ral Backgro u n d Berenson initially filed a petition in state court in Septem ber 20 16, asserting claim s for breach of contract, age discrim ination in violation of the Louisiana law, interference with employment, and dam age to reputation. 19 Berenson also requested a declaratory judgment that Tulane has no legal right to control Bogalusa Heart Study data, m aterials, or specimens; or alternatively, that Tulane has no legal right to control Bogalusa Heart Study data generated or collected during Berenson’s time at LSU. 20 Finally, Berenson sought a judgm ent declaring that he is entitled to access all Bogalusa Heart Study related data in connection with his em ploym ent with LSU and Tulane. 21 Tulane filed peremptory exceptions of no right of action to dism iss Berenson’s state law claim s for age discrim ination, interference with em ploym ent, dam age to reputation, and declaratory relief. 22 The state court dism issed Berenson’s state law age discrim ination claim with prejudice on the basis that Tulane is not an “em ployer” under the Louisiana Em ploym ent Discrim ination Law, La. R.S. 23:30 1, et seq. 23 The state court also dism issed 19 20 21 22 23 R. Doc. 1-4 at 1-8. Id. at 11-12. Id. at 12. Id. at 18. R. Doc. 1-18 at 86. 4 Berenson’s defam ation claim , with leave to amend the claim within forty five days. 24 The state court denied Tulane’s perem ptory exception to dism iss Berenson’s claim s of tortious interference with an em ployment contract, tortious interference with business relations, and tortious interference with an econom ic advantage. 25 The court also denied Tulane’s perem ptory exception to dism iss Berenson’s claim for declaratory relief. 26 On November 21, 20 16, Berenson received a “right to sue” letter from the U.S. Equal Em ploym ent Opportunity Com m ission authorizing him to file claim s against Tulane pursuant to the federal Age Discrim ination in Em ploym ent Act of 1967 (ADEA), 29 U.S.C. § 621, et. seq. 27 On December 14, 20 16, Berenson filed a First Am ended Petition in state court adding ADEA age discrim ination claim s against Tulane. 28 On J anuary 12, 20 17, Tulane rem oved the case to this Court. 29 On February 9, 20 17, Tulane filed a m otion to dism iss in part Berenson’s First Am ended Petition under Federal Rule of Civil Procedure 12(b)(6). 30 On the 24 25 26 27 28 29 30 Id. at 87. Id. at 87. Id. at 87. R. Doc. 1-1 at 20 . R. Doc. 1-1. R. Doc. 1 at 1-4. R. Doc. 9. 5 same day, Berenson filed an unopposed m otion for leave to file a Second Am ended Com plaint. 31 The Court granted the m otion. 32 In his Second Am ended Complaint, Berenson asserts claim s against Tulane for breach of contract, age discrim ination in violation of both Louisiana law and the ADEA, interference with em ployment, and defam ation. 33 Berenson also seeks declaratory relief. 34 II. LEGAL STAN D ARD To survive a Rule 12(b)(6) m otion to dism iss, the plaintiff m ust plead “sufficient factual m atter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quoting Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 570 (20 0 7)). A claim is facially plausible when the plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the m isconduct alleged.” Id. at 678. A court m ust accept all well-pleaded facts as true and m ust draw all reasonable inferences in favor of the plaintiff. See Lorm and v. US Unw ired, Inc., 565 F.3d 228, 232 (5th Cir. 20 0 9). 31 32 33 34 R. Doc. 10 . R. Doc. 12. R. Doc. 13. Id. 6 A legally sufficient com plaint m ust establish m ore than a “sheer possibility” that the plaintiff’s claim is true. Iqbal, 556 U.S. at 678. It need not contain detailed factual allegations, but it m ust go beyond labels, legal conclusions, or form ulaic recitations of the elem ents of a cause of action. Id. In other words, the face of the com plaint m ust contain enough factual m atter to raise a reasonable expectation that discovery will reveal relevant evidence of each elem ent of the plaintiff’s claim. Lorm and, 565 F.3d at 257. The claim m ust be dism issed if there are insufficient factual allegations to raise a right to relief above the speculative level, Tw om bly , 550 U.S. at 555, or if it is apparent from the face of the com plaint that there is an insuperable bar to relief, Jones v. Bock, 549 U.S. 199, 215 (20 0 7). III. D ISCU SSION Tulane m oves to dism iss Berenson’s state law claim s of age discrim ination, defam ation, and tortious interference with em ployment contract. 35 Tulane also contends that Berenson is not entitled to punitive dam ages on his state law claim s and is not entitled to either punitive or general dam ages under the ADEA. 36 35 36 R. Doc. 9-1. R. Doc. 9-1. 7 Tulane’s m otion to dism iss is directed at Berenson’s First Am ended Petition. 37 Berenson has since filed, with Tulane’s consent and leave of the Court, a Second Am ended Com plaint. 38 The Second Am ended Com plaint includes few substantive changes to the m ajority of the claim s challenged by Tulane in this m otion. The Court will therefore consider Tulane’s m otion to dism iss in relation to Berenson’s m ost recent amended com plaint. See N guy en v. Hung Do, No. 13-2537, 20 13 WL 6665722, at *1-2 (E.D. La. Dec. 16, 20 13) (motion to dism iss is not m ade m oot by filing of am ended com plaint); 6 Wright & Miller, Federal Practice and Procedure § 1476 (3d. ed. 20 17) (“[D]efendants should not be required to file a new m otion to dism iss sim ply because an am ended pleading was introduced while their m otion was pending. . . . [T]he court sim ply m ay consider the m otion as being addressed to the am ended pleading.”). The Court considers the arguments in Tulane’s m otion to dism iss in turn. A. Age D is crim in atio n U n d e r Lo u is ian a Law The state court dism issed Berenson’s state law age discrim ination claim with prejudice on the grounds that Tulane is not an em ployer under the Louisiana Employm ent Discrim ination Law, La. R.S. 23:30 1, et seq. 39 37 38 39 R. Doc. 9. R. Doc. 13. R. Doc. 1-18 at 86. 8 The Louisiana Em ploym ent Discrim ination Law does not apply to private educational or religious institutions or nonprofit corporations. La. R.S. 23:30 2(2)(b). Berenson concedes that his state law age discrim ination claim was dism issed without leave to amend, but he states that he wishes to reserve his right to appeal. 40 It is a “well-established principle that ‘when a case is rem oved the federal court takes it as though everything done in the state court had in fact been done in the federal court.’” Murray v. Ford Motor Co., 770 F.2d 461, 464 (5th Cir. 1985) (citing Savell v. Southern Ry ., 93 F.2d 377, 379 (5th Cir. 1937). A plaintiff does “not waive his right to appeal the order dism issing his claim . . . by filing an am ended com plaint which fail[s] to m ake reference to that alleged cause of action.” W ilson v. First Houston Inv. Corp., 566 F.2d 1235, 1237 (5th Cir. 1978), judgm ent vacated on other grounds, 444 U.S. 959 (1979). Berenson did not have leave to am end his com plaint to re-plead a state law age discrim ination claim , and the Court dism isses this claim. B. D e fam atio n Tulane also m oves to dism iss Berenson’s claim for defamation. 41 The state court dism issed Berenson’s defam ation claim with leave to am end. 42 40 41 42 R. Doc. 17 at 9-10 . R. Doc. 9 at 6-7. R. Doc. 1-18 at 87. 9 Berenson contends that his com plaint has since been am ended to state a cause of action for defam ation. 43 While Berenson’s Second Amended Com plaint is somewhat m ore specific than his original petition, the am ended com plaint still fails to state a claim for defam ation. Under Louisiana law, “[i]n order to prevail in a defam ation action, a plaintiff m ust necessarily prove four elements: (1) a false and defam atory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury.” Fitzgerald v. Tucker, 737 So.2d 70 6, 715 (La. 1999). “In other words, a plaintiff m ust prove ‘that the defendant, with actual m alice or other fault, published a false statem ent with defam atory words which caused plaintiff dam ages.’” Id. (quoting Trentecosta v. Beck, 70 3 So.2d 552, 559 (La. 1997). In both his original petition and his Second Am ended Com plaint, Berenson alleges that Tulane injured his reputation by sending out letters to colleagues and collaborators notifying them that the Steering Com m ittee had taken over control of the Bogalusa Heart Study. 44 Berenson contends that 43 44 R. Doc. 17 at 10 . R. Doc. 1-4 at 4 ¶ 17; R. Doc. 13 at 5-6 ¶ 17. 10 these letters im plied that he had done som ething wrong and dam aged his reputation and standing. 45 Berenson’s Second Am ended Complaint adds som e additional details to his original petition. The amended com plaint states that Tulane’s letters contained language “advising or im plying that Berenson would no longer head, control, develop, grow or be the contact for collaborations with the Study.”46 Specifically, the letters allegedly stated that “another generation of Tulane investigators is now m oving the study to the next level” and that collaborators should work through the Steering Com mittee rather than Berenson. 47 Berenson asserts that Tulane has continued to represent to colleagues that Berenson does not have access to the Bogalusa Heart Study. 48 Berenson does not state a claim for defam ation because he has not adequately pleaded that Tulane’s statem ents were false. Although Berenson asserts that Tulane’s letters im plied he had done something wrong, he does not specify why the letters would have that im plication. Nor does he explicitly allege that the im plication was false. Berenson also fails to adequately allege that Tulane’s other statements were false. The inform ation in Tulane’s 45 46 47 48 Id. R. Doc. 13 at 13 ¶ 43. Id. Id. at 14 ¶ 44. 11 letters is consistent with Berenson’s own factual allegations that Tulane replaced him as head of the Bogalusa Heart Study and prevented him from accessing study data. 49 While Berenson argues that Tulane acted wrongfully in curbing his involvem ent in the study, he has not indicated that Tulane’s description of the current status of the study’s m anagem ent is inaccurate. Berenson’s Second Am ended Complaint does assert that these “intentional and m alicious, or alternatively negligent, statem ents were untrue and defam atory and/ or carry or have carried false and defam atory im plications about Dr. Berenson.”50 Yet these are legal conclusions without factual support, and the Court is not required to accept them as true. See Iqbal, 556 U.S. at 678. Berenson has therefore failed to state a cause of action for defamation, and the Court dism isses this claim . C. To rtio u s In te rfe re n ce w ith Em p lo ym e n t Co n tract Tulane m oves to dism iss Berenson’s claim for tortious interference with em ployment contract. 51 Berenson argues that his tortious interference claim should not be dism issed because the state court’s denial of Tulane’s 49 50 51 R. Doc. 13 at 4-7. Id. at 14 ¶ 45. R. Doc. 9-1 at 10 . 12 perem ptory exception regarding the sam e claim should be considered the “law of the case” on this issue. 52 The Court is not bound by the state court’s denial of a perem ptory exception. “[W]henever a case is removed, interlocutory state court orders are transformed by operation of 28 U.S.C. § 1450 into orders of the federal district court to which the action is removed.” N issho-Iw ai Am erican Corp. v. Kline, 845 F.2d 130 0 , 130 4 (5th Cir. 1988). The “district court is not precluded by the law-of-the-case doctrine from reconsidering previous rulings on interlocutory orders,” including a state court’s denial of a defendant’s peremptory exception. Louisiana v. Guidry , 489 F.3d 692, 698 (5th Cir. 20 0 7) (internal citation om itted); see also Marshall v. Hunter, 670 F. App’x 221, 222 (5th Cir. 20 16) (“[T]he district court is free to reconsider an interlocutory decision upon rem oval.”). Berenson has not stated a claim for tortious interference with contract. In 9 to 5 Fashions, Inc. v. Spurney , the Louisiana Suprem e Court recognized a narrow cause of action for tortious interference with contract. 538 So. 2d 228, 229 (La. 1989). This claim requires five separate elem ents: “(1) the existence of a contract or a legally protected interest between the plaintiff and the corporation; (2) the corporate officer’s knowledge of the contract; (3) 52 R. Doc. 17 at 12. 13 the officer’s intentional inducem ent or causation of the corporation to breach the contract or his intentional rendition of its perform ance im possible or m ore burdensome; (4) absence of justification on the part of the officer; (5) causation of dam ages to the plaintiff by the breach of contract or difficulty of its performance brought about by the officer.” Id at 234. A plaintiff m ust prove all five elements to prevail on his claim . Oliver v. Orleans Parish School Bd., 133 So. 3d 38, 47 (La. App. 4 Cir. 20 14). Berenson prim arily alleges that Tulane interfered with his em ployment contract with LSU, a third-party em ployer. 53 m aintained under current Louisiana law. This claim cannot be In Spurney , the Louisiana Suprem e Court recognized “only a corporate officer’s duty to refrain from intentional and unjustified interference with the contractual relation between his em ploy er and a third person.” Spurney , 538 So. 2d at 234 (em phasis added). Berenson brings this suit against Tulane, and does not allege that any officer of LSU interfered with Berenson’s contractual relationship with LSU. Louisiana appellate courts have narrowly construed this cause of action and have declined to recognize tortious interference with contract claim s outside the specific context of a corporate officer and a contract 53 R. Doc. 13 at 12 ¶ 42. 14 involving that officer’s own em ployer. See Petrohaw k Properties, L.P. v. Chesapeake Louisiana, L.P., 689 F.3d 380 , 395-96 (5th Cir. 20 12) (recognizing lim ited nature of Louisiana’s tortious interference with contract claim ); Gulf Engineering Co., LLC v. Kuhn, 20 9 So. 3d 10 29, 10 33 (La. App. 5 Cir. 20 16) (no cause of action because defendant was not a corporate officer); Tolliver v. Broussard, 155 So. 3d 137, 146 (La. App. 3 Cir. 20 14) (affirm ing dism issal of claim because defendant was “not a corporate official whose em ployer has a contract” with intervenor); Favrot v. Favrot, 68 So. 3d 10 99, 1111 (La. App. 4 Cir. 20 11) (the Louisiana “Supreme Court recognized only a corporate officer’s duty to refrain from intentional and unjustified interference with the contractual relation between his employer and a third person.”) (internal citation om itted); Durand v. McGaw , 635 So. 2d 40 9, 410 , 412 (La. App. 4 Cir. 1994) (where plaintiff and defendant em ployed by different firms, defendant had no duty to refrain from com plaining about plaintiff to plaintiff’s employer). Berenson does not cite any Louisiana case, except for the state court’s decision in this m atter, recognizing a claim for tortious interference with contract based on a corporation’s interference with an employm ent contract involving two third parties. Berenson has therefore not stated a claim for tortious interference with his contract with LSU. 15 To the extent that Berenson alleges that Tulane interfered with his em ploym ent contract with Tulane, he also fails to state a claim . Berenson brings this suit against Tulane as an entity and does not nam e any individual corporate officers as defendants. Louisiana state courts and federal courts applying Louisiana law have m ade clear that claim s for tortious interference with contract cannot be m aintained against corporate entity defendants. See Petrohaw k Properties, L. 689 F.3d 380 at 395 (noting cause of action has not been extended to corporate entity defendants); Technical Control Sy stem s, Inc. v. Green, 80 9 So. 2d 120 4, 120 9 (La. App. 3 Cir. 20 0 2) (holding that tortious interference with contract “should not be expanded to include corporate entity defendants.”); see also Hi-Tech Elec., Inc. v. T&B Constr. and Elec. Serv., Inc., No. 15-30 34, 20 17 WL 615414, at *3 (E.D. La. Feb. 15, 20 17); Magnolia Fin. Grp. v. Antos, No. 15-7144, 20 16 WL 740 7174, at *3 (E.D. La. Dec. 22, 20 16); Boudreaux v. OS Restaurant Services, 58 F.Supp.3d 634, 638 (E.D. La. Sept. 30 , 20 14). Berenson asserts that he stated claim s for tortious interference with business relations and tortious interference with an econom ic advantage. 54 Tulane’s m otion to dism iss is directed only to Berenson’s tortious interference with contract claim , which is the claim the Court rules on here. 54 R. Doc. 17 at 12-15. 16 D . D am age s Finally, Tulane moves to dism iss Berenson’s claims for punitive dam ages as well as his claim s for general and com pensatory dam ages under the ADEA relating to pain and suffering, em otional distress, or anguish. Berenson acknowledges that he cannot recover general dam ages under the ADEA. 55 See Vaughan v. Anderson Reg’l Med. Ctr., 849 F.3d 588, 591, 594 (5th Cir. 20 17). Berenson also concedes that he cannot recover punitive dam ages on any of his claim s. 56 See Vaughan, 849 F.3d at 594 (punitive damages not available under the ADEA); Ross v. Conoco, Inc., 828 So. 2d 546, 555 (La. 20 0 2) (“In Louisiana, there is a general public policy against punitive dam ages” and punitive dam ages “are not allowable unless expressly authorized by statute.”). Accordingly, the Court finds that Berenson is not entitled to general dam ages under the ADEA and is not entitled to punitive dam ages on any of his current claim s. Berenson argues that he is entitled to liquidated dam ages and statutory penalties under the ADEA. 57 Tulane’s m otion to dism iss does not address statutory penalties or liquidated dam ages under the ADEA and that issue is not properly before the Court. 55 56 57 Id. at 11. Id. Id. 17 E. Le ave to Am e n d Berenson has requested the opportunity to am end his com plaint if Tulane’s m otion is granted. 58 The Court will “freely give leave [to am end] when justice so requires.” Fed. R. Civ. P. 15(a). The Suprem e Court has held that “[i]f the underlying facts or circumstances relied upon by a plaintiff m ay be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the m erits.” Fom an v. Davis, 371 U.S. 178, 182 (1962). Leave to amend, however, “is by no means automatic.” Halbert v. City of Sherm an, 33 F.3d 526, 529 (5th Cir. 1994). The Court considers m ultiple factors, including “undue delay, bad faith or dilatory m otive on the part of the m ovant, repeated failure to cure deficiencies by amendm ents previously allowed, undue prejudice to the opposing party by virtue of allowance of the am endment, [and] futility of am endm ent.” Fom an, 371 U.S. at 182. After consideration of these factors, the Court denies leave to amend the state law age discrim ination claim because that claim has already been dism issed with prejudice. The Court further denies leave to am end the defam ation claim because Berenson has previously had the opportunity to am end and failed to cure deficiencies. The Court also denies leave to am end with regard to punitive and general dam ages because those claim s are 58 Id. at 15. 18 foreclosed by current law. The Court denies leave to am end the tortious interference with contract claim as it relates to Berenson’s contract with LSU. The Court grants leave to am end the tortious interference with contract claim as it relates to Berenson’s contract with Tulane. IV. CON CLU SION For the foregoing reasons, Defendant’s m otion to dism iss is GRANTED. Plaintiff’s claim s for age discrim ination in violation of Louisiana law, defam ation, general com pensatory dam ages under the ADEA, and punitive dam ages are DISMISSED WITH PREJ UDICE. Plaintiff’s claim for tortious interference with his contract with LSU is also DISMISSED WITH PREJ UDICE. Plaintiff’s claim for tortious interference with his contract with Tulane is DISMISSED WITHOUT PREJ UDICE. Plaintiff has 21 days to am end his complaint with regard to tortious interference with his contract with Tulane. New Orleans, Louisiana, this _11th _ day of J uly, 20 17 ___ _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 19

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