United States District Court, D. Maryland
ALL MEDICAL PERSONNEL, INC.
AMERITOX, LLC, etal.
Catherine C. Blake United States District Judge
Medical seeks to recover for uncompensated personnel and
staffing services it provided to Ameritox. The parties have
had a prolonged relationship that dates to 2005, but this
case concerns only the brief period in time following the
sale of Ameritox assets to Aegis Sciences Corporation in
March 2018, and the state of its debts to All Medical
incurred during that sale and subsequent transition period.
It is chiefly a contract dispute, though one with an addendum
in tort. Joined to its claims against Ameritox, All Medical
brings a single negligent misrepresentation claim (Count IV)
against Paul Parker, Ameritox's then-Chief Financial
Officer. The scope of this opinion is narrow. At issue here
is only Mr. Parker's motion to dismiss the negligent
misrepresentation claim brought against him individually.
Because All Medical has failed to state a plausible claim
that Mr. Parker negligently asserted a false statement, the
defendant's motion to dismiss will be granted.
facts relevant to the negligent misrepresentation dispute are
as follows. All Medical is in the business of providing
temporary personnel, staffing services, and administrative
services to healthcare companies like Ameritox. (Compl. at
¶ 8, ECF No. 1.) Ameritox was a company that provided
drug monitoring and other clinical support services. (Compl.
at ¶ 9, ECF No. 1.) All Medical and Ameritox
entered into a contract in 2005 whereby All Medical would
manage and provide temporary specimen collectors to Ameritox.
(Compl. at ¶ 10, ECF No. 1, Ex. A.) This contract was
renewed annually until 2013. (Compl. at ¶ 10, ECF No.
1.) A different agreement was then arranged which maintained
All Medical's provision of personnel for specimen
processing but added certain administrative support services
to the contract. (Compl. at ¶11, ECF No. l, Ex.B.)
March 5, 2018, Ameritox announced that it had sold
"substantially all" of its assets to Aegis Sciences
Corporation. (Compl. at ¶ 17, ECF No. 1, Ex. B.) All
Medical claims that in the wake of this announcement, Mr.
Parker made statements or "assurances" on two
separate telephone calls that amount, it contends, to
negligent misrepresentations. (Compl. at ¶¶ 17-19,
ECF No. 1.) The first, which took place on the day of
Ameritox's announcement, was a representation made on a
conference call involving numerous Ameritox leadership
personnel and All Medical; Mr. Parker is alleged to have
affirmed several times that "All Medical would be paid
in full" for services rendered during the transition
period. (Compl. at ¶ 17, ECF No. 1.) On the second,
which occurred three days later, Mr. Parker is alleged to
have again assured All Medical, this time its Vice President
of Finance, that Ameritox would pay All Medical in full for
its services during the transition period. (Compl. at ¶
19, ECF No. 1.) All Medical maintains that it continued to
provide services to Ameritox on the basis of the~se
representations but that, on May 18, 2018, Mr. Parker
notified All Medical that Ameritox would not be paying for
the services rendered during the transition period, after
all. (Compl. at ¶ 22, ECF No. 1.)
Standard of Review.
survive a motion to dismiss, the factual allegations of a
complaint "must be enough to raise a right to relief
above the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact)." Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (internal citations omitted). The court
must "construe the facts and reasonable inferences
derived therefrom in the light most favorable to the
plaintiff" Ibarra v. United States, 120 F.3d
472, 474 (4th Cir. 1997). "To satisfy this standard, a
plaintiff need not 'forecast' evidence sufficient to
prove the elements of the claim. However, the complaint must
allege sufficient facts to establish those elements."
Walters v. McMahen, 684 F.3d 435, 439 (4th Cir.
2012) (citation omitted). "Thus, while a plaintiff does
not need to demonstrate in a complaint that the right to
relief is 'probable,' the complaint must advance the
plaintiffs claim 'across the line from conceivable to
plausible.'" Id. (quoting Twombly,
550 U.S. at 570). And the plaintiff typically must do so by
relying solely on facts asserted within the four corners of
his complaint. Zak v. Chelsea Therapeutics Mem.,
Ltd., 780 F.3d 597, 606-07 (4th Cir. 2015). Legal
conclusions couched as factual allegations are insufficient.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
the court here is the single claim brought against Mr. Parker
individually-an allegation of negligent misrepresentation.
This is a diversity action and both sides agree that Maryland
law applies. (See ECF No. 14-1 at p. 4; ECF
No. 18 at p. 2.) To establish a prima facie case of negligent
misrepresentation under Maryland law, a plaintiff must prove:
(1) the defendant, owing a duty of care to the plaintiff,
negligently asserted a false statement; (2) the defendant
intended that the statement will be acted upon by the
plaintiff; (3) the defendant has knowledge that the plaintiff
will probably rely on the statement which, if erroneous, will
cause loss or injury; (4) the plaintiff, justifiably, took
action in reliance on the statement, and (5) the plaintiff
suffered damage proximately caused by the defendant's
Swinson v. Lords Landing Village Condo., 758 A.2d
1008, 1016 (Md. 2000); see also Walpert, Smidlian
&Blumenthal, P.A. v. Katz, 762 A.2d 582, 588 (Md.
2000). Mr. Parker argues that the claim against him should be
dismissed because (1) he did not owe All Medical a duty of
care and (2) that as mere promises to pay, the alleged
assurances are not actionable as negligent
of any duty of care Mr. Parker may (or may not) have had to
All Medical on his own or by way of his status with Ameritox,
negligent misrepresentation is the wrong claim for these
facts. It is axiomatic that a claim for negligent
misrepresentation requires a false statement of material
fact. See Swinson, 758 A.2d at 1016; see also
Gross v. Sussex Inc., 630 A.2d 1156, 1162 (Md. 1993).
And yet it is also well established under Maryland law that,
as a general rule, "a breach of a promise to render a
performance in the future is redressable only by an action in
contract." Learning Works, Inc. v. Learning Annex,
Inc., 830 F.2d 541, 546 (4th Cir. 1987). While a
"promissory representation made with an existing
intention not to perform is actionable for fraud,"
id; see also Sass v. Andrew, 832 A.2d 247, 264 (Md.
Ct. Spec. App. 2003), such a representation is not actionable
for negligent misrepresentation." 200 N. Gilmor, LLC
v. Capital One, Nat. Ass 'n, 863 F.Supp.2d 480,
492-93 (D. Md. 2012).
because a "negligent misrepresentation claim based on
statements promissory or predictive in nature" is not
actionable in Maryland, "[u]nless the plaintiff puts
forward evidence tending to show that the 'promisor'
or 'predictor' made the statements with the present
intention not to perform . . . "Miller v. Fairchild
Indus., Inc.,629 A.2d 1293, 1304 (Md. Ct. Spec. App.
1993)..That said, "any promise that is made with the
present intention not to perform or any prediction that is
made with present knowledge that the predicted event will not
occur is, perforce, an intentional misrepresentation, not a