Subject: Fourth Motion to Dismiss (3rd this week) from
         Harrington Memorial Hospital

THis is the Motion to Dismiss from my former employer.  Quite
interesting is the fact that they CLAIM THEY DID NOT REQUEST A POLICY
WITH ANY LIMITATION ON MENTAL ILLNESSES, yet criticize me for stating I
was unaware of the limitation until I became disabled (not that it
matters since my disability is not mental!).  They also spend pages and
pages trying to defend a discrimination suit when I have, so far, not
sued them for discrimination.  They also claim that since they sent me
forms they were "assisting me."  I wish I could find that letter from
the hospital attorney advising me not to have contact with hospital
employees since I had filed a complaint with the EEOC.  (At the
suggestion of the hospital's insurance agent, I had gone to the hospital
seeking affidavits about my condition from co-workers). Say a prayer
that it will turn up tomorrow.  Also interesting is the fact that the
hospital has declared me "totally disabled" but feels no obligation to
make THEIR insurance carrier honor the claim.  They also claim I
resigned voluntarily, when in fact I was misled.  I do have a letter to
their attorney clarifying why I resigned (in order to HELP the hospital
hire a replacement, or so I'd been told by the head of Human Resources).
- That was a phone call.  That would be part of the conspiracy to commit
wire fraud by deceiving me into resigning and giving up rights to sue
the hospital (if that's even what happened. I'm still not sure what
difference it makes if I resigned for health reasons or made them
terminate me involuntarily.)

---------------------------------------------------------------------


MOTION OF DEFENDANTS HARRINGTON MEMORIAL HOSPITAL, INC., AND RICHARD
MANGION TO DISMISS PLAINTIFF'S COMPLAINT, OR IN THE ALTERNATIVE, FOR
SUMMARY JUDGEMENT

Now comes the defendants Harrington Memorial Hospital, Inc.
('Harrington") (Footnote: Although the plaintiff calls Harrington
Memorial Hospital," the correct corporate name is "Harrington Memorial
Hospital, Inc..") and Richard Mangion ("Mr. Mangion") and hereby move
this Honorable Court to Dismiss the Plaintiff's Complaint pursuant to
Fed. R. Civ. P. Rule 12(b)(6), or in the alternative for Summary
Judgement, the defendants seek an order, pursuant to Fed. R. Civ. P.
Rule 12 (e), requiring plaintiff to provide a more definite statement as
to the nature and extent of plaintiff's claims against Harrington and
Mr. Mangion.  As grounds therefor the defendants Harrington and Mr.
Mangion submit their Memorandum in Support of Their Motioin as well as
the Affidavit of Charlene Richard and state as follows:
1. The plaintiff, acting pro se, filed a three hundred and one (301)
page complaint with this Court in which she named as defendants sixty
(60) different individuals and entities, including UNUM Insurance
Company, Harrington, and Mr. Mangion.
2. It is nearly impossible to discern from the rambling tome the
plaintiff calls a complaint the nature and extent of her claims against
Harrington and Mr. Mangion.  In fact, the bulk of the allegations in the
301 page treatise primarily allege wrongdoings on the part of UNUM and
UNUM's employees and agents.
3.  However, from what the defendants Harrington and Mr. Mangion can
discern, it is clear that nowhere in the vague accusations that
plaintiff makes in her complaint that she states one claim against
Harrington and Mr. Mangion upon which relief might be granted by this
Court.

Wherefor, defendants Harrington Memorial Hospital, Inc. and Richard
Mangion respectfully request that this Honorable Court Grant the
Defendants' Motion to Dismiss or in the Alternative for Summary
Judgment. In the event that the court denies Defendant's Motion to
Dismiss or in the alternative for Summary Judgement, defendants
Harrington and Mr. Mangion respectfully request that the court order
plaintiff to make a more definitive statement of her allegations
against  defendants Harrington and Mr. Mangion.

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1

I hereby certify that I attempted to confer in good faith with the
plaintiff in an effort to resolve or narrow the issue presented by the
within Motion to Dismiss the Complaint or in the Alternative for Summary
Judgement, but was unable to do so.  More specifically, on Thursday,
December 17, 1998, I called plaintiff at her home and left a message on
her answering machine introducing myself and telling her who I represent
as well as stating the reason for my call.  The plaintiff responded to
my message by leaving a message on my voice mail on Saturday, December
19, 1998 in which she said that she was out of town and had been pushing
herself "pretty hard." She stated that, as a result, "I don't think it's
a good idea for me to have any kind of conference with a lawyer until my
energy levels are back to something approaching normal" and that we have
"plenty of time for us to discuss these motions and everything else."
However, given the fact that the defendants' responsive pleading to the
plaintiff's complaint is due to be filed with the court no later than
December 24, 1998, it seemed incumbent that I submit the Motion to
Dismiss and Complaint or in the Alternative for Summary Judgement
without delay.

Signed - Robert Pierce

MEMORANDUM OF DEFENDANTS HARRINGTON MEMORIAL HOSPITAL, INC., AND RICHARD
MANGION IN SUPPORT OF THEIR MOTION TO DISMISS, OR IN THE ALTERNATIVE FOR
SUMMARY JUDGMENT

The defendants Harrington Memorial Hospital, Inc., ("Harrington") and
Richard Mangion ("Mr. Mangion") hereby submit this memorandum in support
of their Motion to Dismiss pursuant to Fed. R. Civ. P Rule 12(b)(6), or
in the alternative for Summary Judgment pursuant to Fed. R. Civ. P. Rule
56.  In the event that the court is not inclined to grant defendant's
Motion to Dismiss, or in the alternative for Summary Judgment, the
defendants seek and order, pursuant to Fed.R.Civ.P. rule 12(e),
requiring plaintiff to provide a more definitive statement as to the
nature and extent of plaintiff's claims against Harrington and Mr.
Mangion.

FACTS (Footnote: Theh bulk of the facts contained herein are gleaned
from the plaintiff's Complaint.  However, other facts are taken from the
Affidavit of Charlene J. Richard, ("Richard Aff."), Director of the
Human Resource Department of Harrington Memorial Hospital.

Harrington is a not-for-profit hospital located in Southbridge,
Massachusetts.  complaint, p. 117.  Mr. Mangion is Harrington's
President and CEO. Complaint, p. 117.  In 1993, Harrington obtained a
group insurance policy through UNUM Insurance Company, whereby UNUM
provided disability insurance to certain of Harrington employees (the
"Policy').  Complaint, p. 93; See also Richard Aff. Paragraph 3.  The
Policy contains a two year limitation on benefits for "mental illnesses"
Complaint, pp. 92, 199.  However, Harrington did not request any limit
or exception for benefits to individuals suffering from mental illness.
Richard Aff. Paragraph 3.

Plaintiff Judith Morris, M.D. ("Dr. Morris") was employed by Harrington
to work as an emergency room physician in March of 1995.  Complaint, p.
199.  Plaintiff claims that she was not aware of the "mental illnesses"
two year limitation until approximately November of 1996.  Complaint,
pp.92-93, 199-200.  In fact, at or prior to the commencement fo her
employement, Harrington gave to the plaintiff a Digest of Employee
Benefits and a copy of UNUM's Policy for Long Term Income Protection.
Richard Aff., Paragraph 12.  Had she read the Policy provided to her by
the Hospital, she would have immediately learned of the mental illness
limitation which is set forth in detail in page 16 of the Policy.  See
the Policy attached as Exhibit "A" to the Richard Aff.

Due to illness, plaintiff was granted a leave of absence from her
employment with Harrington on October 28, 1996, and she resigned her
position with Harrington on February 20, 1997.  Richard Aff., Paragraph
4,6.  A copy of plaintiff's letter of resignation is attached to the
Richard Aff. as Exhibit "B."  Plaintiff made a claim for benefits under
the Policy in 1996.  Apparently UNUM approved the claim up through
February 14, 1997, but later denied plaintiff's claim for benefits after
that date.  Richard Aff., Paragraph 7.  See Charge of Discrimination
filed by Dr. Morris that is attached to Richard Aff. as Exhibit "C"
(Footnote: Atlhough it is not clear due to the vague nature of the
complaint, it appears that plaintiff's claims arise out of UNUM's denial
of benefits under two disability policies: First, the group policy
purchased by Harrington; and second, an individual policy issued by UNUM
to plaintiff.  It appears that Dr. Morris makes no claims against
Harrington that arise out  of the individual policy, nor could any such
claims be made.)

PLAINTIFF'S CLAIMS AGAINST HARRINGTON AND MR. MANGION

It is nearly impossible to discern from plaintiff's complaint the nature
and extent of her claims against Harrington and Mr. Mangion.  The bulk
of the allegations in the 301 page treatise address alleged wrongdoing
on the part of UNUM, as well as its employees and agents.  Plaintiff's
factual allegations against Harrington can be summarized as follows:
 1. Harrington purchased the Policy which contains a two year mental
illness exclusion; and
 2. Plaintiff was not aware of the two year limitation at the time she
was employed by Harrington (Footnote: Numerous times in her complaint,
plaintiff incorporates by reference a document entitled Indictment of
UNUM Insurance Company.  This so-called Indictment was never served upon
defendants Harrington and Mr. Mangion, and it is impossible to defend
against statements and allegations that plaintiff broadly references but
that are not in the defendants' possession.

It is difficult to determine from a review of the complaint the specific
counts plaintiff has made against Harrington and Mr. Mangion.  While
most of the count, factually and legally, appear to be directed towards
co-defendant UNUM, many, if not all, of the counts are directed towards
the "defendants and each of them and all of them.  Thus, Harrington and
Mr. Mangion, for the purposes of this motion, assume that plaintiff is
attempting to assert all causes of action which she raised (except those
referenced below) against both Harrington and Mr. Mangion.
Nevertheless, none of the claims brought by plaintiff have any legal
support or any basis in fact.

The causes of action Harrington and Mr. Mangion have gleaned from the
plaintiff's complaint are as follows:
1.  Breach of Contract (pages 119-125)
2.  Violation of M.G.L. c. 93A (pages 126-135)
3. Fraud (pages 129-135)
4. Violation of G.L. c 175, 176 and 176D (pages 135-140)
5. Violation by Insurance Commisioner of c. 175 (pages 141-142) (this
count does not appear to be directed towards Harrington and Mr. Mangion
and will not be addressed in the "Argument" section below).
6. Deceit (pages 142-147)
7. Negligent Infliction of Emotional Distress (pages 148-151)
8. Intentional Infliction of Emotional Distress (pages 151-162)
9. Violations of the Racketeering Influenced Corrupt Organizations Act,
18 U.S.C.  1962-1968 (pages 163-290).

III. Argument
A.  All of the Causes of Action Brought by Plaintiff are entirely
without Merit and should be dismissed pursuant to Fed. R. Civ. P. Rule
12(b)(6).

      1. The Plaintiff Does not have Standing To Sue Under the ADA
Because She Is Not a Qualified Individual With a Disability.

In her complaint, it appear that plaintiff is somehow claiming that
Harrington and Mangion violated the Americans with Disabilities Act
("ADA") by providing a group disability policy with a two year mental
illness limitation.  Complaint p. 199-200.  The plaintiff  (Footnote: It
appears that Dr. Morris intended to bring this suit as part of a class
action as the cover page of her complaint identifies as plaintiff not
only herself, but also "The Citizens of the Commonwealth of
Massachusetts" and "The Citizens of the United States of America."
However, none of these additional plaintiffs are further identified, and
the complaint must be dismissed as to thsoe additional plaintiffs as
they do not meet the prerequisits to a Class Action set forth in Fed. R.
Civ. P. Rule 23(a) and further the court has not and cannot make a
determination whether this alleged "class" may be maintained pursuant to
Fed.R.Civ.P. Rule 23(c)(1).) may not pursue a claim for discrimination
under the ADA, because she is not a "qualified individual with a
disability."  Title I of the ADA forbids discrimination in the terms and
conditions of employment, in relevant part, that "no covered entity
shall discriminate against a qualified individual with a disability
because of the disability of such individual." 42 U.S.C.  12112(a).

A "qualified individual with a disability" is defined as "an individual
with a disability who, with or without reasonable accomodation, can
perform the essential functions of the employment position that such
individual holds or desires." (Emphasis added.) 42 U.S.C.  123111(8).
Under the great weight of authority provided by the majority of federal
appeals courts, Morris cannot be deemed a "qualified individual with a
disability" as the term is defined by the ADA, because she is totally
disabled. (Footnote: The First Circuit has reviewed a case involving
disparate disability benefits.  In Carparts Dist. Ctr., Inc. v.
automotive wholesaler's Assn. of N.E., the First Circuit "assumed[d]
that [plaintiff] was a 'qualified individual with a disability'" for
purposed of the appeal, without analyzing that issue. 37F.3d 12,15 n.2
(1st Cir. 1994).  The Carparts Court instead focused on whether the
defendant, an insurance carrier, could be considered an "employer" under
the ADA.  In addition, the Court never reached the issue of whether the
disparity of benefits violates the ADA, discussed in Section 2 infra.)

See, e.g., EEOC v. CNA Insurance Companies, 96 F.3d 1039, 1043-45 (7th
cir. 1996); Gonzales v. Garner Food Services, Inc. 89 F. 3d 1523,
1530-31 (11th Cir. 1996) cert. denied, sub nom Wood v. Garner Food
Servs., Inc. 117 S. Ct 1822; Parker v Metropolitan Life Ins. Co., 875 f.
supp. 1321, 1325-26 (W.D. Tenn. 1995), aff'd in part and rev'd in part,
99 F.3d 181 (6th Cir. 1996), reh'g en banc, aff'd by, 121 F.3d 1006 (6th
Cir 1997), cert denied, 118 S. Ct 871 (1998) (holding plain language of
the Act clearly indicates that the ADA was designed to afford relief
only to those individuals with disabilities who can perform the
essential functions of the job that they hold or seek); but see Ford v.
Schering-Plough Corp., 145 F. 3d 601, 607 (3d cir. 1989) (holding
totally disabled individual "eligible" to sue employer under title I,
even though mental disability limitation on benefits not a violation of
ADA).  In both CNA and Parker, the plaintiffs obtained LTD insurance
plans through their employers, issued by third party insurers, which
limited benefits for mental disabilities to a 24-month period,  but did
not limit benefits for physical disabilities in the same manner.  The
plaintiffs alleged that they became completely unable to perform the
essential job functions due to mental disabilities and filed suit
against their employers pursuant to Title 1 based on the disparity in
coverage.  The Courts ruled that the plaintiffs lacked standing to sue
because neither was a "qualified individual with a disability." CNA, 96
F. 3d at 1043-45; Parker, 875 F. Supp. at 1326.  In addition, in
Gonzales, the eleventh circuit helf that under the "plain language" of
the ADA, protection afforded by Title 1 does not extend to former
employees, but rather extends only to job applicants and current
employees capable of performing essential functions of available jobs.
89 F. 3d 1528.  Therefore, the court should dismiss the ADA action
against defendants Harrington and Mr. Mangion.

2.  Assuming, Arguendo, that Plaintiff is Considered A "Qualified
Individual With a Disability," Her ADA Claim Must Fail In Any Event
Because A Disparity In Benefits Does Not Violate the ADA.

Furthermore, even if this court decides that plaintiff is a qualified
individual with a disability, her ADA claim should be dismissed because
she was not treated differently because of her disability.  Ford, 145 F.
3d at 608.  Every employee at Harrington, including Morris, has the
opportunity to participate in the same plan, whether disabled or not.
The test for a violation is not whether each illness is subject to the
exact same coverage; rather, it is whether every employee is offered the
same plan, regardless of her present or future disability.  Id.  "The
ADA does not require equal coverage for every type of disability; such a
requirement, if it existed, would destabilize the insurance industry in
a manner definitely not intended by Congres when passing the ADA." Id;
see also CNA, 96 F. 3d at 1044; Parker, 121 F. 3d at 1015-16; Krauel v.
Iowa Methodist Med. Ctr., 95 F. 3d 674 (8th Cir. 1996) (analogizing
infertility exclusion to differential benefits for mental and physical
illnesses).

The legislative history supports the cases finding no violation of the
ADA.  The Senate Labor and Human Resources Committee report stated that
"it is permissible to limit coverage for certain procedures and
treatments." S. Rep. No 101-116, at 29 (1989).  In addition, the report
stated "All people with disabilities must have equal access to the
health insurance coverage that is provided by the employer to all
employees." Id.  Later actions by Congress further evinces its intent to
allow disparity.  In 1996, the Senate defeated an amendment to the
Health Insurance Portability and Accountability Act of 1996, Pub. L. No.
104-191, 110 Stat. 1936 (1996), which would have mandated parity in
insurnace coverage for mental and physical illnesses.  That amendment
would have been necessary if the ADA already required such parity.
Clearly, the legislature did not intend for parity in all types of
coverage.  Therefore, to the extent plaintiff brings a claim under the
ADA, such claim should be dismissed.

Further the plaintiff, in fact, denies that she suffers from a mental
illness, alleging instead that her ailment, Chronic Fatigue Syndrome
("CFS"), is a debilitating physical disorder, p. 87-88.  Therefore, her
argument that Harrington and Mr. Mangion is liable for providing a
Policy with disparate benefits for mental and physical illnesses is
necessarily moot.  There is not limitiation in the Policy for disability
due to physical ailments such as that from which the plaintiff claims to
suffer, so she does not have standing to bring a claim against
Harrington and Mr. Mangion for any alleged disparity in benefits.

Moreover, plaintiff was only allowed disability benefits by UNUM for a
period of approximately six (6) months from late October, 1996 through
February 14, 1997.  UNUM apparently denied plaintiff's claims for
benefits after that date.  Consequently, plaintiff was not even granted
benefits up to the two year mental illness disability limit pursuant to
the UNUM policy and has no standing to bring a claim against Harrington
and Mr. Mangion for any alleged disparity between the coverage provided
for mental illnesses physical illnesses in the Policy.

Lastly, it is ludicrous for the plaintiff to allege claims against
Harrington and Mr. Mangion based on her alleged lack of knowledge of the
disparity of the disparity of benefits; The plaintiff's argument
necessarily implies that had she known at the beginning of her
employment with Harrington that there was a two year limit  under the
Policy for disability benefits provided to her by UNUM for mental
illnesses that she would not have accepted the position offered to her
by Harrington.  This further implies that she knew at the onset of her
employment with Harrington that she would be taking advantage of the
mental health disability benefits offered by the Policy.  However,
plaintiff was given by Harrington at or prior to the commencement of her
employment a copy of UNUM's Policy for Long Term Income Protection.
Richard Aff, Paragraph 12.  Had she read the Policy provided to her by
the Hospital, she would have immediately learned of the mental illness
limitation, the details of which is set forth in detail in page 16 of
the Policy.  See the Policy attached as Exhibit "A" to Richard Aff.
Consequently, plaintiff's claims of defendants' violation of the ADA
must be dismissed.

3.  Plaintiff's Claim for Breach of Contract Is Entirely Without Merit
Because If Such a Breach Occurred, I Was The Breach of UNUM, Not That Of
Harrington or Mr. Mangion.

In pages 119-125, plaintiff makes claims that the defendants breached
the contracts of insurance, essentially refusing to pay to her
disability benefits.  This claim fails for the simple reason that
neither Harrington nor Mr. Mangion entered into any agreement with the
plaintiff to approve claims for disability benefits.  Harrington merely
obtained a group disability policy, for the benefit of certain
employees, and all decisions concerning the granting of such benefits
were made by UNUM, not Harrington and Mr. Mangion.  Plaintiff wildly
asserts that she "relied upon the employer for protection of her income
from disabling illness or injury and  for peace of mind that she would
be able to receive promised benefits should such a situation arise."
Complaint, p.120.  However,t he sole statement made by Harrington prior
to plaintiff's employment was that she was eligible for disability
insurance coverage.  See Harrington's Digest of Employee Benefits and
UNUM's Policy for Long Term Protection that was provided to plaintiff
that is attached as Exhibit "A" to Richard Aff..  Obviously, no one from
Harrington told plaintiff that UNUM would pay benefits for any claims
that she brought irrespective of the merit (or lack thereof) of such
claim.

4. The Count Against Harrington and Mr. Mangion for Violation of M.G.L.
c. 93A is Barred as a Matter of Law.

It is axiomatic that M.G. L. c. 93A does not apply to an employment
relationship.  Whelan v. Intergraph Corp., 889 F. Supp 15 (D. Mass.
1996); Informix, Inc. v Rennell, 668 N.e. 2d 1351 (1996), rev. den'd 672
N.E. 2d 538 (1996); Sargent v. Tenaska, Inc., 914 F. Supp. 722 (D. Mass.
1996), affirmed 108 F. 3d 5 (1996).  There is no question that
Harrington was plaintiff's employer, and that Mr. Mangion is
Harrington's CEO (Footnote: In fact, other than the allegation that Mr.
Mangion is Harrington's CEO (which defendant's admit), plaintiff's 301
page diatribe contains absolutely no averments concerning Mr. Mangion's
conduct whatsoever.  However, because c. 93 A does not apply to the
employer/employee relationship, plaintiff's c 93A claim against
Harrington and Mr. Mantion is barred as a matter of law.

5.  Plaintiff's Claims Against Harrington and Mr. Mangion for Violations
Of M.G.L. c 175,, 176 And 176D Must Be Barred As Those Statutes Only
Apply to Insurers And Are Also Preempted by ERISA.

In pages 135-140, plaintiff alleges that the defendants violated M.G.L.
c 175, 176 and 176D.  However, all of these chapters deal with the
business of insurance, focusing primarily on insurance companies,
insurance agencies, and fraternal benefit societies - not employers such
as Harrington.  As such, Harrington and Mr. Mangion cannot be held
liable to plaintiff under c. 175 or 176.  Moreover, a close reading of
plaintiff's allegations demonstrate that all of the claims of unfair
insurance practices are directed towards UNUM and its agents and not
Harrington or Mr. Mangion.

Further, because the plaintiff's claims arise out of a group insurance
policy, the state claims under c. 175, 176 and 176D, as well as the
claims listed in Section 4 supra are pre-empted by the Employee
Retirement Income Security Act of 1974 ("ERISA") 29 U.S.C. 1001 et
seq.  See Pilot Life Insurance co. V. Dedeaux, 481 U.S. 41 (1987);
Wickman v. Northwestern Nat. Ins. Co., 908 F.2d 1077 (1st Cir. 1990);
Parrino v. FHP, Inc, et al, 146 F. 3d 699, 703 (9th Cir.1998).  ERISA
states, with certain narrow exceptions, that the rights, regulations and
remedies provided by that statute "supersede any and all State laws
insofar as they may now or hereafter relate to any employee benefit
plan." 29 U.S.C. 1144(a).  The Supreme Court has made it clear that the
preemption provision of ERISA is extremely broad.  Pilot Life, supra at
45-46 ("The express preemption provisions are deliberately expansive").
The First circuit has followed suit.  See Wickman, 908 F. 2d at 1082;
Vartanian v. Monsanto Co., 14 F. 3d 697, 700 (1st Cir. 1994). Therefore,
the plaintiff's claims against Harrington and Mr. Mangion for violation
of M.G. L. c 175, 176 and 176D are necessarily barred.  Spalding v.
Reliance Life Ins. Co., 835 F. Supp. 23 (D.Mass. 1993) (Chapter 93A
claim based upon alleged violation of Chapter 176D us preempted by
ERISA). (Footnote:In addition, the plaintiff's claim for violation of
M.G.L. c. 93A, as well as the claims for negligent infliction of
emotional distress and intentional infliction of emotional distress as
discussed in Section 6 infra, which are also state claims, are barred by
the pre-emption doctrine contained in ERISA.)

6.  Plaintiff's Claims Against Harrington and Mr. Mangion For Both
Intentional and Negligent Infliction of Emotional Distress are Barred By
the The Exclusivity Provision of M.G.L.c 152  24.

The plaintiff alleges on pages 148 through 151 of her complaint that the
"negligent conduct of UNUM and other defendants" caused severe emotional
distress for the plaintiff, including but not limited to "humiliation,
mental anguish, emotional and physical distress..." Complaint, p. 150
The plaintiff further alleges on pages 151 through 162, that the
defendants "and all of them, and each of them" intended to cause severe
emotional distress for the plaintiff. (Footnote:Plaintiff also alleges
that defendants have violated "M.G.L. c 25 942" by their "extreme and
outragious conduct intended to cause severe emotional distress to
another..." complaint p. 152.  However, M.G.L. c 25 deals with the
Department of Public Utilities and there is no section 942 contained
within that Chapter. Therefore, defendants cannot discern what statute,
if any, they are alleged to have violated and cannot form and
appropriate response to this allegation.).  However, the plaintiff
utterly fails to allege anything which either Harrington or Mr. Mangion
did or did not do to either intentionally or negligently cause her
emotional distress.  In fact, it appears from the paragraph "P" in page
157 that the plaintiff specifically excludes defendant Harrington from
her claims of intentional infliction of emotional distress.

Regardless, plaintiff's claims for both intentional and negligent
infliction of emotional distress are completely barred by the
exclusivity provision of the Massachusetts Workers' compensation Act,
M.G.L. c 152 .  This Act was passed to provide " uniform statutory
remedy for injured workers, in contrast to a piecemeal, tort-based
system."  Catalano v. First Essec Sav. Bank, 37 Mass. App. Ct. 377, 380
(1994).  The exclusivity provision prohibits employees from suing
employers arising out of the course of employment.  As a result of
recent decisions, it includes not only claims arising from the
employer's negligence, but also claims arising from employer's
intentional acts.  Clarke v. Kentucky Fried Chicken of California, Inc.
57 F.3d 21, 28-29 (1st Cir. 1995) (holding that the Workers'
Compensation Act "obviously precludes an action for intentional
infliction of emotional distress" brought by former employee as a result
of alleged sexual harassment by employer); Accisvatti v. Professional
Services Group, Inc., 982 F. Supp. 69 (D. Mass. 1997) (employee alleging
wrongful termination prohibited from bringing both intentional and
negligent infliction of emotional distress claims as the "preclusive
effect of the [Worker's Compensation Act] extends to claims for both
negligent and emotional distress"). Plaintiff's claims allege only that
defendants' actions (whatever they may be) involve the defendants
directing behavior of an extreme and outrageous nature toward her.
These assertions as they may pertain to the unknow actions of Harrington
and Mr. Mangion are exactly the type which are meant to be precluded by
M.G.L. c 152 24.  Therefore plaintiff claims of intentional infliction
of emotional distress and negligent infliction of emotional distress
must be dismissed as against Harrington and Mr. Mangion.


7.  Plaintiff's Claim for Deceit Is Barred As Defendants Harrington and
Mr. Mangion Made No Misrepresentation and Further, Plaintiff has Failed
to Plead Fraud With Particularity As Required Pursuant to Fed. R. Civ.
P. Rule 9(b).

On pages 142-147, plaintiff alleges that defendants committed deceit,
but nowhere does she state what deceitful acts Harrington and Mr.
Mangion have committed.  The reason for this is simple - defendants
Harrington and Mr. Mangion have committed no acts of deceit.  Harrington
simply purchased a group disability policy, before the plaintiff was
even employed by Harrington, and later, for reasons known only to UNUM,
plaintiff's claim for benefits was denied.

Pursuant to Fed. R. Civ. P. Rule 9(b), in order to support a claim of
fraud (or deceit in this case), fraud must be pled with particularity.
Not only is the alleged fraud not pled with particularity, but in fact,
Harrington and Mr. Mangion are not even mentioned in this section of
Plaintiff's complaint.  Fed R. Civ. P. Rule 9(b) states in pertinent
part, "[i]n all averments of fraud...., the circumstances constituting
the fraud....shall be stated with particularity." It is well settled
that Rule 9(b) "requires specification of the time, place, and content
of an alleged false representation, but not the circumstances or
evidence from which fraudulent intent could be inferred." McGinty v
Beranger Volkswagon, Inc., 633 F. 2d 226, 228 (1st Cir1980) (emphasis
added).  This special pleading requirement is designed to provide the
defendant with notice of the grounds on which plaintiff's fraud claim
rests.  Wayne Investment, Inc. v Gulf Oil Corporation, 739 F.2d 11 (1st
Cir. 1984), citing McGinty, 633 F. 2d at 228-229.

In her complaint, plaintiff makes general claims of fraud and deceit
allegedly perpetrated by defendants.  However, she fails to state with
any particularity, who, what, when and where the alleged
misrepresentations were made.  It is virtually impossible for the
defendant to respond to such vague and generalized allegations, which is
exactly what the Rule was meant to protect against.  Therefore, if
plaintiff makes claims of fraud against Harrington Memorial Hospital and
Mr. Mangion, such claims should be dismissed for failure to plead with
particularity.  In any event, no claim or fraud brought by the plaintiff
against Harrington and Mr. Mangion can survive simply because neither
Harrington nor Mr. Mangion committed any actas of fraud.

Finally, M.G.L. c. 26 relates to the Banking and Insurance Department.
Obviously, plaintiff cannot allege that Harrington or Mr. Mangion are
subject to this chapter.1961-1068 ("RICO") Must Be Dismissed As
Plaintiff Has Utterly Failed To Assert Sufficient Facts in Her Complaint
Of Specific Instances Of Racketeering Activity.

Plaintiff appears to allege on page 165 - 166 that again UNUM "in
concert with all defendants and each of them" conspired to engage "in a
pattern of racketeering activity."
Complaint, page p. 165.  However, throughout the plaintiff's vague, but
lengthy recital on pages 166 through 195 of UNUM's activities, the
plaintiff once again fails to assert any claims against harrington or
Mr. Mangion.  In fact, it is not until page 199 that the plaintiff even
mentions defendants Harrington or Mr. Mangion.  However, while these
defendants are named under a section entitled "Racketeering Act No. 2 -
Mail Fraud, Wire Fraud, Fraudulent Inducement, Misrepresentation,"
plaintiff does not set forth any acts which defendants Harrington and
Mr. Mangion did or failed to do which in any way constitute violations
of RICO laws.  In fact, the only accusatory statements made in this
section is as follows: "Plaintiff's pleas for legal assistance from Mr.
Taylor, Richard Mangion, and Harrington Memorial Hospital were ignored
after that time [such time which is not defined in plaintiff's
complaint], essentially abandoning her to the mercies of UNUM."
Complaint p. 200.  Further, as inferred by plaintiff, Harrington and Mr.
Mangion cannot be automatically deemed liable to the plaintiff under the
civil RICO statute simply because Harrington purchased a long term
disability insurance policy from UNUM.

Plaintiff's calims, to the extent that they can be discerned against
Harrington and Mr. Mangion are baseless, especially when considering
that Harrington actually assisted the plaintiff with completing the
necessary forms for filing a claim with UNUM for long term disability
benefits and communicated Harrington's position to UNUM that plaintiff
was in fact disabled and entitled to benefits.  Richard Aff, Paragraph
6.  In fact, Harrington cooperated and attempted to assist plaintiff in
obtaining long term disability coverage from UNUM right up until the
time that she brought a Charge of Discrimination against Harrington
Hospital in August, 1997 as a precursor to this present action.  Richard
Aff. Paragraph 8.  See Exhibit "C" attached to Richard Aff. At no time
did Harrington in any way conspire with UNUM or any of the other named
defendants in an attempt to investigate the plaintiff or to deny the
plaintiff long term disability coverage.  Richard Aff., Paragraph 9.

In cases which allege violations of the civil RICO statute, 18 U.S.C.
1964, "particular care is required to balance the liberality of the
Civil Rules with the necessity of preventing abusive or vexatious
treatment of defendant."  Miranda v Ponce Federal Bank, 948 F. 2d 41 44
(1st Cir. 1991). Civil claims brought under RICO carry no small
repercussions, including treble damages and attorneys fees, not to
mention the potential stigmatization of defendants and the cost of
defending these complex actions.
Therefore, as the Miranda court held, "it would be unjust if a RICO
plaintiff could defeat a motion to dismiss simply by asserting an
inequity attributable to a defendant's conduct and tacking on a
self-serving conclusion that the conduct amounted to racketeering. Id at
44.

For one thing, the complaint must be anchored in a bed of facts, not
allowed to float freely on a sea of bombast.  That is to say, a court
assessing a claim's sufficiency has no obligation to take matters on
blind faith; despite the highly deferential reading which we accord a
litigant's complaint under Rule 12(b)(6), we need not credit bald
assertions, periphrasitic circumlocutions, unsubstantiated conclusionn,
or outright vituperation. Id.

The Miranda court may just have easily have described plaintiff's
complaint in the present case.

As a result, the Miranda court set forth a standard which a civil RICO
complaint must "at a bare minimum" satisfy in order to avoid being
dismissed.  Essentially the complaint must "state facts sufficient to
portray (i) specific instances of racketeering activity within the reach
of the RICO statute and (ii) a causal nexus between that activity and
the harm alleged." Id.  Plaintiff must present proof of (1) conduct, (2)
of an enterprise, (3) through a pattern of (4) racketeering activity.
Benet-Soto v. Chase Manhattan Bank, NAA, 791 F. Supp. 914, 919 (D.Puerto
Rico 1992), citing H.J., Inc. v. Northwestern Bell Telephone Co., 492
U.S. 299 (1989) Miranda supra; Feinstein v Resolution Trust Corporation,
942 F. 2d 34 (1st Cir. 1991).

However, the plaintiff in this action has not made any allegations of
wrongdoing by the defendants Harrington and Mr. Mangion that arise to
any legally actionable claims, much less a "scheme which amounted to or
posed a threat of continued criminal activity." Id. Moreover, the
allegations of violations of the civil RICO statue must also be pled
with particularity and specificity consistent with Fed. R. Civ. P. Rule
9(b). As discussed in Section 7 supra, the plaintiff must, with respect
to RICO allegations "go beyond a showing of fraud and state the time,
place and content of the alleged mail and wire communications
perpetrating that fraud."  Feinstein, 942 F. 2d at 412.  The plaintiff
has completely failed to even made any references as to how defendants
Harrington and Mr. Mangion have violated the Civil RICO statute, much
less provided specific examples of such violations.  As a result, the
plantiff's claims against Harrinton and Mr. Mangion must be dismissed.

B.   If the Court Is Inclined to Deny Defendant's Motion to Dismiss Any
Or All Claims Based on The Plaintiff's Failure To State A Claim Upon
Which Relief Can Be Granted, The Plaintiff Must Be Required To Submit A
More Definitive Statement Pursuant To Fed. R. Civ. P Rule 12 (e) And Her
Complaint Be Dismissed If She Does Not Comply WIth the Court's Order
within Ten (10) Days.

Pursuant to Fed. R. Civ. P. Rule 8(e), all parties are required to
submit pleadings which are "simple, concise and direct."  Rule 8(e)
(emphasis added).  Clearly nothing about the plaintiff's needlessly
volumnious complaint can be described by any of those words.  Further,
contrary to the requirements of Fed. R. Civ. P. Rule 8(a), the
plaintiff's complaint is hardly a "short and plain statement of the
claim showing that the pleader is entitled to relief."  Fed. R. Civ. P.
Rule 8(a) (emphasis added).  While the plaintiff is obviousl involved in
championing her efforts to "right a grievous and ongoing wrong," it is
nearly impossible to discern from the face, or for that matter from the
intestines, of the complaint exactly what wrongs committed by Harrington
and Mr. Mangion might be.  Complaint, Paragraph 9.  Moreoever, although
plaintiff references a number of state and federal laws which she
contends "defendants and each of them and all of them" have violated,
she does not set forth any facts to support her allegations against
Harrington and Mr. Mangion, or for that matter even make specific
allegations against Harrington and Mr. Mangion.

In sum, the plaintiff's complaint is "so vague [and] ambiguous that [the
defendants] cannot reasonably be required to frame a responsive
pleading..." Rule 12(b)(e).  If the Court cannot reasonably be required
to frame a responsive pleading...." Rule 12(b)(e).  If the court
determines that any of the plaintiff's alleged claims against Harrington
and Mr. Mangion should survive the defendant's motion to dismiss, the
plaintiff must be required to set forth in a short and concise manner,
her claims against defendants Harrington and Mr. Mangion including facts
supporting her allegations in order to afford the defendants an
equitable opportunity to respond in her complaint.  Mere "recitation of
statutory language under the guise of being a factual allegation"
against unspecified defendants simply does not satisfy the pleading
requirements.  Feinstein, 942 F. 2d at 42-43.  Nor, for that matter, do
the rambling essays of the plaintiff citing to various allegedly
supporting articles and treatises on insurance have any place in a civil
complaint.

Harrington and Mr. Mangion are mindful of the fact that plaintiff is
acting pro se (albeit by her own description, involuntarily).  However,
the plaintiff's lack of legal experience and unfamiliarity with the
proper form of the drafting of a complaint must not be construed against
the defendants.  As the complaint currently reads, the defendants cannot
discern an appropriate response to the plaintiff as they can hardly
discern from the complaint the specific claims alleged against the
defendants.  Therefore, should the court be inclined to deny the
defendants' motion to dismiss any of the claims of the plaintiff's
complaint, it should order the plaintiff to provide a more definitive
statement as to the nature of her claims against Harrington and Mr.
Mangion, stating with particularity the actions of Harrington and Mr.
Mangion that she believes would tend to support her claim.

Respectfully submitted
Robert R. Pierce

AFFIDAVIT OF CHARLENE RICHARD
I,  Charlene Richard, on oath hereby state the following:

1.  I am the Director of the Human Resources Department for Harrington
Memorial Hospital (the "Hospital") in Southbridge, Massachusetts.

2.  Judy E. Morris, MD of 261 Bumstead Rd, Monson, Massachusetts was
hired by the Hospital as an emergency room physician and commenced her
employment on March 22, 1995.  At or prior to the commencement of her
employment, the Hospital gave to her a Digest of Employee Benefits and a
copy of UNUM's Policy for Long Term Income Protection.  A true and
correct copy of the Digest of Employee Benefits currently given to
prospective employees of the Hospital and UNUM's Policy for Long Term
Income Protection is attached hereto as Exhibit "A."

3.  In selecting the policy for long term income protection benefits for
its employees in or around 1993 that is the subject of Dr. Morris'
claims, the Hospital purchased a group disability policy of insurance
from UNUM without requesting any limit or exception for benefits to
individuals suffering from mental illness.

4.  Dr. Morris requested and was granted an unpaid three month leave of
absence commencing on October 28, 1996 due to medical reason.

5.  On November 21, 1996, I filed a Long Term Disability Claim
Employer's Statement with UNUM on behalf of Dr. Morris in order to
assist in the processing of her claim for long term disability benefits
under the Hospital's Long Term Income Protection Policy Number 52614
with UNUM in effect prior to January, 1997.

6.  By letter dated February 20, 1997 to the Chief of the Hospital
Emergency Department, Dr. Morris voluntarily resigned her position as
emergency room physician at the Hospital.  A true and correct copy of
that letter is attached hereto as Exhibit "B."

7.  Apparently, UNUM approved Dr. Morris' claim for long term disability
benefits up through February 14, 1997, but denied her claim for benefits
after that date.  Since the filing of Dr. Morris' claim for long term
disability benefits from UNUM until she brough a Charge of
Discrimination against the Hospital in August, 1997, the Hospital
assisted Dr. Morris.  See a true and correct copy of the Charge of
Discrimination filed by Dr. Morris attached hereto as Exhibit "C."  In
fact, in my position as the Hospital's Director of Human Resources, I
assisted Dr. Morris in the pursuit of her claim by advising her
periodically on the processing of her claim, communicating the
Hospital's position to UNUM that Dr. Morris was in fact disabled and
entitled to benefits, and by supporting her use of the Hospital's
insurance agent who secured the UNUM policy as her advocate before UNUM.

8.  At no time was the hospital involved in the investigation of the
claim, nor was it in any way involved in UNUM's decision to deny the
plaintiff's benefits.

Signed under the pains and penalties of perjury this 17th day of
December, 1998.

Charlene Richard






Top of Page

Judydoc's Diary Page

Judydoc's Home Page

Insurance Page

Uncivilization and its Discontents

Home Page




Email Judy Morris
at: judydoc AT worldnet DOT att DOT net

Email me, Bill Hammel
at: bhammel AT graham DOT main DOT nc DOT us


The URL for this document is:
http://graham.main.nc.us/~bhammel/INS/DOCS/motdis121798.html
Created: December 29, 1998
Last Updated: May 28, 2000