MEMORANDUM AND ORDER
I. INTRODUCTION
Raj Mohan Pallerla (“Pallerla”), an employee of the plaintiff TalentBurst, Inc. (“TalentBurst”), left the company to work instead for the defendant Collabera, Inc. (“Collabera”). This turn of events gives rise to the instant suit, in which Talent-Burst asserts three causes of action against Collabera.
First, TalentBurst asserts a claim of breach of fiduciary duty, alleging that Pal-lerla’s defection to Collabera was a violation of the fiduciary duty of loyalty that he owed to TalentBurst and that Collabera should be held liable for “aiding and abetting” the violation because it provided Pal-lerla with encouragement and assistance. Second, TalentBurst asserts a claim of tor-tious interference with contractual and advantageous relations, alleging Collabera’s offer of employment induced Pallerla to breach a contractual obligation he had to TalentBurst by violating a covenant not to compete or solicit customers. Finally, Ta-lentBurst asserts that Collabera’s actions in assisting Pallerla to breach his fiduciary duty and in interfering with contractual relations constitute a violation of Massachusetts General Laws chapter 93A section 11 (“chapter 93A”).
Collabera moves to dismiss the claim in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted.
A. Procedural Posture
TalentBurst filed its complaint in the Massachusetts Superior Court sitting in and for the county of Middlesex in May 2008. See Compl. [Doc. 1 Ex. 1] (including summons that gives date of service as May 15, 2008). Collabera removed the suit to this Court on June 3, 2008. Notice of Removal [Doc. 1]. The next day, June 4, Collabera filed the motion to dismiss [Doc. 5] and a supporting memorandum (“Mem. in Supp.”) [Doc. 6]. TalentBurst filed a memorandum in opposition (“Mem. in Opp.”) on June 17, 2008. On July 8, Col-labera filed a reply memorandum [Doe. 13],
B. Alleged Facts
TalentBurst is a corporation that provides information technology staff to clients.
Collabera also is in the business of providing information technology staff to clients. Id. ¶8. In March 2006, Talent-Burst signed a consulting services agreement with Collabera, which provided that TalentBurst staff would perform work for Collabera’s clients. Id. ¶ 8. In April 2006, Pallerla was assigned to work on a long-term project for one of Collabera’s clients (“the End Client”) under the terms of the agreement. Id. ¶ 9. Pallerla continued in this assignment without incident until September 27, 2007. On that date, Pallerla notified TalentBurst that he was resigning, effective the next day. Id. ¶ 11. In response, TalentBurst reminded Pallerla of the terms of the Covenant. Id. ¶ 12. Pal-lerla ceased working for TalentBurst on September 28, 2007. See id. ¶ 11.
On November 28, 2007, TalentBurst discovered that Pallerla was employed by Collabera and that, despite his resignation from TalentBurst, he had continued to work on his assignment for the End Client without any interruption. Id. ¶ 15. This employment situation, which dictates the conclusion that Pallerla immediately entered Collabera’s employment upon resigning from TalentBurst, violated the Covenant to which Pallerla agreed. Id. ¶ 13. TalentBurst made inquiries of Collabera regarding Pallerla’s employment, to which Collabera “knowingly made false representations ... or otherwise sought to mislead TalentBurst concerning its continuing relationship with or employment of’ Pallerla. Id. ¶ 17. Finally, in January 2008, Collab-era admitted that it employed Pallerla and that Pallerla continued working for the End Client at Collabera’s direction. See id. ¶ 18.
In February 2008, TalentBurst sent a demand letter to Collabera, in which it informed Collabera of the Covenant that Pallerla had signed.
C. Federal Jurisdiction
The Court has diversity jurisdiction of this case pursuant to 28 U.S.C. § 1332.
II. ANALYSIS
A. Breach of Fiduciary Duty
Collabera argues that the claim for breach of fiduciary duty must be dismissed because the alleged facts, taken in the light most favorable to TalentBurst, fail to demonstrate that Collabera owed a fiduciary duty to TalentBurst. Mem. in Supp. at 3-4. Collabera reasons that the relation
TalentBurst does not disagree with any of these contentions. It, however, asserts that they are irrelevant because it is not proceeding on the theory that Collabera itself breached a fiduciary duty. Instead, TalentBurst asserts that Collabera may be held liable for Pallerla’s breach of a fiduciary duty to his employer because it “actively participated!,] substantially assisted in or encouraged the breach to the degree that [it] could not reasonably be held to have acted in good faith.” Mem. in Opp. at 4.
The courts of Massachusetts, including the Supreme Judicial Court, have accepted that a defendant can be held liable, even if he has no fiduciary duty to the plaintiff, for assisting a breach of fiduciary duty owed by another. See, e.g., Spinner v. Nutt,
Collabera asserts that TalentBurst cannot allege a breach of fiduciary duty by Pallerla because he, although an employee, owed no duty of loyalty to TalentBurst. Reply [Doc. 13] at 2-5. Although Talent-Burst alleges Pallerla owed it a duty of loyalty, Compl. ¶ 7, the Court is not obligated to accept as true, even at the motion to dismiss stage, conclusory legal assertions. See, e.g., Beddall v. State St. Bank and Trust Co.,
At common law, employees have a duty of loyalty to their employer, which precludes competing with their employer. See Restatement (Third) of Agency § 8.04 (2006). Massachusetts, however, appears to have adopted a more limited rule; multiple cases state only that “[e]mployees occupying positions' of trust and confidence owe a duty of loyalty to their employer.” Chelsea Indus., Inc. v. Gaffney,
Three factors lead the Court to conclude that the duty of loyalty does not extend to “rank-and-file” employees under Massachusetts law, absent special circumstances indicating they held a position of “trust and confidence.”
Finally, every case save two the Court reviewed involving a viable action for breach of a fiduciary duty of loyalty under Massachusetts law dealt with an employee who occupied a higher rung on the corporate ladder, such as a manager or executive. The two exceptions were cases involving law firm associates, who likely satisfied the standard due to their access to confidential information. See swpra note 3. Otherwise, however, the Court has found no instance where a duty of loyalty was imposed under Massachusetts law on “rank-and-file” employees. Similarly, courts have refused to find that non-managerial at-will employees owe their employers a fiduciary duty of loyalty when applying New Hampshire law, which is identical to the Massachusetts standard. See White v. Ransmeier & Spellman,
In sum, Massachusetts law makes clear that only certain employees owe their employers a fiduciary duty of loyalty. Ta-lentBurst, however, makes no allegations in the complaint that permit this Court to conclude that Pallerla is one of those employees. First, Pallerla is described in the complaint as a systems administrator who was hired out to clients to perform IT work. His title, the type of work associated with it, and the fact he was hired out to do work for clients all indicate Pallerla was a “worker bee,” not a manager, executive, or officer. Second, TalentBurst makes no allegations in the complaint that give rise to the inference that Pallerla was entrusted with confidential information or that other special circumstances existed such that he could be said to have occupied a position of “trust and confidence.”
For all the foregoing reasons, the motion to dismiss count I of the complaint is GRANTED.
B. Tortious Interference
There are four elements that must be proven in order to prevail on a claim of tortious interference with contractual and advantageous relations. A plaintiff must demonstrate (1) that he had a contract with a third party; (2) the defendant knowingly induced the third party to break the contract; (3) the defendant’s interference was improper in motive or means; and (4) the plaintiff was harmed by the defendant’s actions. Network Sys. Architects Corp. v. Dimitruk,
1. Element 1—Existence of a Contract
Collabera does not argue that Talent-Burst fails to allege the existence of any contract; indeed, the complaint clearly alleges that Pallerla signed an employment agreement. Rather, Collabera asserts Ta-lentBurst has failed to plead the first element of the claim because it cannot demonstrate that the employment agreement, including the Covenant, is valid and enforceable. Mem. in Supp. at 6. Collabera correctly notes that TalentBurst failed to attach a copy of the employment agreement, which is undisputedly the basis for the tortious interference claim, to the complaint, nor did TalentBurst specifically allege that the Covenant is valid. Id. at 5. Collabera suggests the Court therefore must conclude that the Covenant is invalid and, consequently, dismiss the count because “a third party cannot be held liable for intentional interference ... on an invalid and unenforceable contract.” Id.
While Collabera correctly states the effect of an invalid contract on a tor-tious interference with contractual relations claim, see Telectronics, Inc. v. Downing,
Non-competition agreements are not invalid per se. “A covenant not to compete contained in a contract for personal services will be enforced if it is reasonable, based on all the circumstances.” All Stainless, Inc. v. Colby,
Taken together, these allegations, when taken as true and viewed in the light most favorable to TalentBurst, give rise to the reasonable inference that the non-competition agreement is reasonable and valid. Therefore, the Court declines to dismiss the tortious interference claim on the basis that TalentBurst has failed adequately to allege the first element of the claim.
2. Element S—Improper Means or Motive
Collabera asserts that TalentBurst has failed to satisfy the third element of the tortious interference claim because the complaint does not put forth any factual allegations from which it could be concluded that Collabera relied upon improper means or motive in interfering with the relationship between Pallerla and Talent-Burst. Mem. in Supp. at 6-8.
The only specific improper means cited by TalentBurst, who correctly notes that improper means may be proven through a showing that the defendant violated a statute or common law precept, is that Collab-era “aided and abetted” Pallerla’s breach of fiduciary duty. Mem. in Supp. at 7. As discussed above, however, it appears as matter of law—at least as the facts are alleged in the complaint—that Pallerla did not owe a duty of loyalty. Therefore, there can be no “aiding and abetting” to serve as the basis of improper means.
TalentBurst does not allege any other statutory or common law violation that could satisfy the improper motive/means requirement.
Accordingly, the question is whether the fact that Collabera interfered with a restrictive covenant governing a competitor’s employee, as opposed to some other contractual obligation, itself creates a presumption that Collabera had an improper motive. Two cases from Massachusetts state courts suggest this might be true. See W.B. Mason Co., Inc. v. Staples, Inc.,
Even TalentBurst appears to recognize its failure in alleging improper means in its memorandum when it repeatedly reminds the Court of Federal Rule of Civil Procedure 8(a) and rejects the notion that it needs to “ ‘present any evidence’ that [Col-labera’s] interference was with improper motive or means.” Mem. in Opp. at 7. Instead, TalentBurst reasons that Rule 8(a) means that TalentBurst’s generalized allegation that Collabera acted with improper motive or means, Compl. ¶ 31, is sufficient. See id. TalentBurst’s argument completely ignores Bell Atlantic’s holding that simply reciting the elements of a cause of action is insufficient to survive a motion to dismiss. Bell Atlantic v. Twombly, — U.S. -, -,
C. Chapter 93A
TalentBurst itself indicates that it bases its chapter 93A claim on Collabera’s alleged unfair or deceptive practices in (1) “aiding and abetting” of Pallerla’s breach of fiduciary duty and (2) the tortious interference with the relationship between Ta-lentBurst and Pallerla. Mem. in Opp. at 8. As discussed supra, however, the first basis is not viable because Pallerla had no fiduciary duty to TalentBurst,
Massachusetts courts have ruled directly on this question and held that a chapter 93A cannot, as matter of law, derive from a tortious interference claim in these circumstances. Given “the actual willful breach of a non-compete agreement by an employee is not actionable under [chapter] 93A because the claim arose from the employment relationship, then the conduct of a third party to induce such a breach must also not be actionable because this claim, too, arose from the employment relationship.” Intertek Testing Servs. NA, Inc. v. Curtis-Strauss LLC,
While not disputing the holding put forth in Intertek or that its holding has been adhered to in subsequent cases, Ta-lentBurst cites other cases it argues demonstrate this Court should decline to follow Intertek. TalentBurst is wrong. Both of the cases relied upon by TalentBurst differ in significant respects from both the instant case and Intertek. First, in Professional Staffing Group v. Champigny,
Juncker Associates v. Enes,
Accordingly, because Massachusetts courts have already ruled in the context of a virtually identical fact pattern that a chapter 93A claim cannot as matter of law be sustained and because TalentBurst fails to present any authority to the contrary, the motion to dismiss the chapter 93A claim must be GRANTED.
III. CONCLUSION
For the foregoing reasons, Collabera’s motion to dismiss the complaint ought be, and hereby is, GRANTED. This dismissal is without prejudice to TalentBurst moving within 30 days of the date of this order for leave to amend should such an amendment be tendered in good faith consistent with the strictures of Federal Rule of Civil Procedure 11. Because count III will not lie whether or not a tortious interference claim is viable, that aspect of count III is dismissed with prejudice.
SO ORDERED.
Notes
. It also provides “regulatory compliance solutions” for clients. Compl. ¶ 2.
. The exact restrictions placed on Pallerla by the Covenant are not clear. TalentBurst neither makes specific allegations about the specific terms of the Covenant nor attaches a copy of the employment agreement to the complaint.
. TalentBurst, however, alleges Collabera was aware of the Covenant prior to this correspondence. See Compl. ¶ 10.
. For instance, a lower-level employee easily could be considered to occupy a position of "trust and confidence” if they are provided with access to confidential information. This may be why the associate in Grady was considered to satisfy the standard even though she did not hold a position high on the corporate hierarchy. Information relating to litigation conveyed to law firms by clients may be considered confidential due to the attorney-client privilege or work product doctrine, for instance, such that an associate who is permitted to access that information can be considered in a position of "trust and confidence.” See Meehan v. Shaughnessy,
. Notably, although it is clear that the employment agreement, including the Covenant, created contractual duties on Pallerla’s part, TalentBurst cites no authority for the proposition that the signing of a restrictive covenant also creates a fiduciary obligation.
. Although TalentBurst asserts a chapter 93A claim, this is inadequate to support a finding of improper means or motive. The chapter 93A claim is itself dependent upon the tor-tious interference claim. Mem. in Supp. at 8. In other words, an argument that TalentBurst adequately states a tortious interference claim because it asserts a chapter 93A claim would be circular because one of the "unfair and deceptive trade practices” alleged is tortious interference.
. TalentBurst does vaguely suggest that improper motive or means can be inferred because, after Pallerla quit, Collabera misled TalentBurst as to the existence of an employment relationship and then later claimed TalentBurst waived Pallerla’s restrictive covenant via the consulting deal between Ta-lentBurst and Collabera. See Mem. in Supp. at 7.
This is unpersuasive. All this demonstrates, at most, is that Collabera attempted to protect Pallerla or, perhaps, itself from TalentBurst’s anger upon finding out what Pallerla did after leaving TalentBurst. This later behavior, however, has little relevance upon the issue of whether Collabera’s reasons for hiring Paller-la or the method by which it enticed him to leave TalentBurst were improper.
. Alternatively, Collabera may have thought that Pallerla was talented and wished to have a skilled person like him on their payroll. It is hard to see, however, how a desire to employ highly qualified individuals is an improper motive. See United Truck Leasing, 406 Mass, at 817,
. TalentBurst cites two cases, Augat Inc. v. Aegis, Inc.,
. Indeed, counsel for TalentBurst either demonstrates her failure to actually read this case or is affirmatively attempting to mislead the Court when she states that Professional Staffing "holds that [chapter] 93A applies to a former employer’s suit against its former employee’s current employer for violation of a non-compete.” Mem. in Supp. at 8.
. The Juncker court interpreted the claim as one against the former employee’s business, although the employee was named personally in the complaint.