Gordon v. Kaleida Health Hinterberger v. Catholic Health , 536 F. App'x 14 ( 2013 )

12-0654; 12-0918
Gordon v. Kaleida Health; Hinterberger v. Catholic Health
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED
AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A
PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY
NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 21st day of August, two thousand thirteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 GUIDO CALABRESI,
10 RALPH K. WINTER,
11 Circuit Judges.
12
13 - - - - - - - - - - - - - - - - - - - -X
14 GAIL HINTERBERGER, BEVERLY WEISBECKER,
15 CYNTHIA WILLIAMS, MARCIA CARROLL, on
16 behalf of themselves and all other
17 employees similarly situated,
18
19 Plaintiffs -Appellants,
20
21 v. 12-0918
22
23 CATHOLIC HEALTH SYSTEMS, INC., JOSEPH
24 MCDONALD, MICHAEL MOLEY, CHESTNUT RIDGE
25 MEDICAL SUPPLIES, INC., CATHOLIC HEALTH
26 SYSTEM PROGRAM OF ALL INCLUSIVE CARE FOR THE
1 ELDERLY, INC., CATHOLIC HEALTH SYSTEM
2 CONTINUING CARE FOUNDATION, KENMORE MERCY
3 HOSPITAL, MCAULEY SETON HOME CARE
4 CORPORATION, MERCY HOSPITAL OF BUFFALO,
5 NAZARETH HOME OF THE FRANCISCAN SISTERS OF
6 THE IMMACULATE CONCEPTION, NIAGARA HOMEMAKER
7 SERVICES, INC., SISTERS OF CHARITY HOSPITAL
8 OF BUFFALO, NEW YORK, ST. ELIZABETH'S HOME
9 OF LANCASTER, NEW YORK, ST. FRANCIS
10 GERIATRIC AND HEALTHCARE SERVICES, INC., ST.
11 FRANCIS HOME OF WILLIAMSVILLE, NEW YORK, ST.
12 JOSEPH HOSPITAL OF CHEEKTOWAGA, NEW YORK,
13 ST. JOSEPH'S MANOR OF OLEAN, N.Y., ST.
14 VINCENT'S HOME FOR THE AGED, ST. CLARE MANOR
15 OF LOCKPORT, N.Y., ST. LUKE MANOR OF
16 BATAVIA, N.Y., OUR LADY OF VICTORY
17 RENAISSANCE CORPORATION, CHESTNUT RIDGE
18 FAMILY PRACTICE, PLLC, ST. MARY'S MANOR,
19
20 Defendants-Appellees.
21
22
23 - - - - - - - - - - - - - - - - - - - -X
24 CATHERINE GORDON, JAMES SCHAFFER, TERESA
25 THOMPSON, PAMELA MIKA, JENNIFER PFENTNER,
26 DIANA GALDON, on behalf of themselves
27 and all other employees similarly
28 situated,
29
30 Plaintiffs- Appellants,
31
32 v. 12-0654
33
34 KALEIDA HEALTH, JAMES R. KASKIE, DAVID R.
35 WHIPPLE, MFHS MANAGED CARE, INCORPORATED,
36 FAMILY PHARMACEUTICALS, WESTLINK CORPORATION,
37 COMMUNITY MEDICAL PC, GENERAL PHYSICIANS PC,
38 MILLARD FILLMORE AMBULATORY SURGERY CENTER,
39 VISITING NURSING ASSOCIATION OF WESTERN NEW
40 YORK, INCORPORATED, VNA HOME CARE SERVICES,
41 INCORPORATED, VNA OF WNY, INCORPORATED,
42 GENERAL HOMECARE, INCORPORATED, WATERFRONT
2
1 HEALTH CARE CENTER, INCORPORATED, KALEIDA
2 HEALTH FOUNDATION, WOMEN AND CHILDREN'S
3 HOSPITAL OF BUFFALO FOUNDATION, KALEIDA IPA,
4 LLC, KALEIDA MCO, LLC, GRACE MANOR HEALTH
5 CARE FACILITY, INCORPORATED, SCHENK PHYSICAL
6 THERAPY, PC,
7
8 Defendants-Appellees.
9
10 - - - - - - - - - - - - - - - - - - - -X
11
12 FOR APPELLANTS: GUY A. TALIA (J. Nelson Thomas,
13 Michael J. Lingle, on the
14 brief), Thomas & Solomon LLP,
15 Rochester, NY.
16
17 FOR APPELLEES: MARK A. MOLLOY & SUSAN C. RONEY
18 (Todd R. Shinaman, Joseph A.
19 Carello, Lynette Nogueras-
20 Trummer, on the brief), Nixon
21 Peabody LLP, Buffalo, NY.
22
23 Appeals from judgments of the United States District
24 Court for the Western District of New York (Skretny, C.J.).
25
26 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
27 AND DECREED that the judgments are AFFIRMED.
28
29 Gail Hinterberger, Beverly Weisbecker, Cynthia
30 Williams, Marcia Carroll, Catherine Gordon, James Schaffer,
31 Teresa Thompson, Pamela Mika, Jennifer Pfentner, and Diana
32 Galdon (collectively, the “employees”) appeal from the
33 judgments of the United States District Court for the
34 Western District of New York (Skretny, C.J.), denying their
35 motions to remand to state court, and dismissing their
36 complaints. The denial of remand to state court is reviewed
3
1 de novo. Shafii v. British Airways, PLC, 83 F.3d 566, 570
2 (2d Cir. 1996). The grant of a motion to dismiss is
3 likewise reviewed de novo. City of Omaha v. CBS Corp., 679
4 F.3d 64, 67 (2d Cir. 2012). Dismissal for failure to state
5 a claim is affirmed only when “it is clear that no relief
6 could be granted under any set of facts that could be proved
7 consistent with [plaintiffs’] allegations.” Commercial
8 Cleaning Servs., L.L.C. v. Colin Serv. Sys., Inc., 271 F.3d
9 374, 380 (2d Cir. 2001) (internal quotation marks omitted).
10 The exercise of supplemental jurisdiction is reviewed for
11 abuse of discretion. Carlsbad Tech., Inc. v. HIF Bio, Inc.,
12 556 U.S. 635, 639 (2009). We assume the parties’
13 familiarity with the underlying facts, the procedural
14 history, and the issues presented for review.
15 I. RICO
16 The employees allege that their employers used a scheme
17 to cheat them out of their lawful earnings, in violation of
18 the Racketeer Influenced and Corrupt Organizations Act
19 (“RICO”). The district court dismissed the civil RICO claim
20 with prejudice. Hinter[b]erger v. Catholic Health Sys., No.
21 08-CV-952S, 2012 WL 125270, at *7-10 (W.D.N.Y. Jan. 17,
22 2012). In order to state a claim under civil RICO, a
4
1 plaintiff “must allege the existence of seven constituent
2 elements: (1) that the defendant (2) through the commission
3 of two or more acts (3) constituting a ‘pattern’ (4) of
4 ‘racketeering activity’ (5) directly or indirectly invests
5 in, or maintains an interest in, or participates in (6) an
6 ‘enterprise’ (7) the activities of which affect interstate
7 or foreign commerce.” Moss v. Morgan Stanley, Inc., 719
8 F.2d 5, 16-17 (2d Cir. 1983); see 18 U.S.C. § 1962(a)-(c).
9 This Court has recently rejected identical RICO claims
10 brought by the same class action law firm against other
11 health systems. As in those cases, “the mailing of pay
12 stubs cannot further the fraudulent scheme because the pay
13 stubs would have revealed (not concealed) that Plaintiffs
14 were not being paid for all of their alleged compensable
15 overtime.” See Lundy v. Catholic Health Sys. of Long Island
16 Inc., 711 F.3d 106, 119 (2d Cir. 2013); see also Nakahata v.
17 N.Y.-Presbyterian Healthcare Sys., Inc., 2013 WL 3743152, at
18 *8 (2d Cir. July 11, 2013). The RICO cause of action was
19 properly dismissed for failure to state a claim.
20 II. State Law Claims
21 The remaining causes of action are grounded in state
22 law. As our concurrent summary order in cases 12-0630 and
5
1 12-0670 indicates, it may be that all of the state law
2 claims are preempted under the Labor Management Relations
3 Act (“LMRA”). However, we need not issue a Jacobson remand
4 for further fact-finding here because we can affirm the
5 dismissal of the state claims on other grounds.
6 The employees argue that once the district court
7 dismissed their RICO claim, it should have declined to
8 exercise supplemental jurisdiction over their remaining
9 claims. We disagree. The Supreme Court has made it
10 abundantly clear–-in a case that also involved a dismissed
11 RICO claim–-that “[a] district court’s decision whether to
12 exercise [supplemental jurisdiction over state-law claims]
13 after dismissing every claim over which it had original
14 jurisdiction is purely discretionary.” Carlsbad Tech., 556
15 U.S. at 639 (citing 28 U.S.C. § 1367(c)). The district
16 court’s decision to exercise supplemental jurisdiction here
17 was a wise exercise of judicial economy, not an abuse of
18 discretion.
19 The employees’ first state claim is for breach of
20 contract; however, the only clear allegation in the
21 complaint is that the health systems breached an express and
22 implied promise to “fulfill all of their obligations
6
1 pursuant to applicable state and federal law.” See
2 Hinter[b]erger, 2012 WL 125270, at *14 (quoting complaint).
3 As the district court ruled, “[a] promise to perform a pre-
4 existing legal obligation does not amount to consideration.”
5 Murray v. Northrop Grumman Info. Tech., Inc., 444 F.3d 169,
6 178 (2d Cir. 2006).
7 The claims for breach of an implied covenant of good
8 faith and fair dealing, unjust enrichment, and quantum
9 meruit were dismissed because they are insufficiently
10 distinct from the breach of contract claim. See Mid-Hudson
11 Catskill Rural Migrant Ministry, Inc. v. Fine Host Corp.,
12 418 F.3d 168, 175 (2d Cir. 2005) (in quantum meruit cases, a
13 plaintiff’s ability to recover “may depend on a showing that
14 the additional [recovery sought is] so distinct from the
15 contractual duties that it would be unreasonable for the
16 defendant[s] to assume that [the provided services] were
17 rendered without expectation of further pay” (internal
18 quotation marks and revisions omitted)); Harris v. Provident
19 Life & Accident Ins. Co., 310 F.3d 73, 81 (2d Cir. 2002)
20 (“New York law . . . does not recognize a separate cause of
21 action for breach of the implied covenant of good faith and
22 fair dealing when a breach of contract claim, based upon the
7
1 same facts, is also pled.”); De La Cruz v. Caddell Dry Dock
2 & Repair Co., Inc., 22 A.D.3d 404, 405 (N.Y. App. Div. 1st
3 Dep’t 2005) (“The existence of an enforceable written
4 contract covering the matter at issue precludes recovery for
5 causes of action sounding in quasi contract.” (citations
6 omitted)). The employees have alleged no breach of a duty
7 other than breach of state laws.
8 The employees argue that their quasi-contract claims
9 may not be duplicative because there is a credible dispute
10 over whether or not an underlying employment contract
11 actually exists. We disagree. The employees previously
12 alleged in their complaint that they were party to written
13 employment contracts, and the health systems have readily
14 admitted that these contracts exist. Even now, the
15 employees point to no facts calling into question that
16 conceded allegation. True, the employees withdrew their
17 claims construing allegations of written employment
18 contracts; whether they were withdrawn to avoid LMRA
19 preemption, see Hinter[b]erger, 2012 WL 125270, at *15, or
20 to create an illusory “dispute” about the existence of
21 employment contracts, is no matter. Their remaining bald
22 allegations support no contractual duty extending beyond the
23 statutory requirements already binding the health systems.
8
1 We have considered all of the employees’ remaining
2 arguments and find them to be without merit. Accordingly,
3 the judgments of the district court are hereby AFFIRMED.
4
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
9