EDWARDS v. ND PAPER INC et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
KEYANA EDWARDS, 	)
)
Plaintiff 	)
)
v. 	) 	2:26-cv-00086-JCN
)
ND PAPER, INC., et al., 	)
)
Defendants 	)
ORDER ON MOTION TO DISMISS
Plaintiff, who asserts this action on her own behalf and as guardian for her husband,
Damion Hatcher, alleges that Damion was seriously injured when he fell into the opening
of a chimney while performing cleaning services at a paper mill. 	Plaintiff claims that
Damion’s fall and resulting injuries were the product of negligence by the owner of the
paper mill and multiple companies that were contracted to provide services at the paper
mill. 	Defendant New England Mechanical Overlay, Inc. (NEMO) moves to dismiss
Plaintiff’s claims against it. (Motion, ECF No. 22.) Plaintiff opposes the motion. (Opp’n,
ECF No. 53.)
After consideration of the record, the parties’ arguments, and the applicable law, the
Court denies the motion.
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F ACTUAL BACKGROUND1
On May 28, 2025, Damion was performing cleaning services during a shutdown at
the Nine Dragons paper mill in Rumford, Maine (the Mill), which was owned, operated,
and controlled by Defendant ND Paper, Inc. (ND Paper). (Compl. ¶¶ 1, 10.) Damion was
employed by Strategic Environmental Response Solutions, LLC (SERS), a company
contracted to provide industrial cleaning and environmental services at the Mill. (Id. ¶ 23.)
In addition to SERS, several other companies contracted to perform work at the Mill
during the shutdown. 	Defendant Republic Services, Inc. (Republic), an environmental
services company, contracted to perform cleaning and maintenance work at the Mill, and
to provide personnel and equipment. (Id. ¶ 11.) Defendant ACV Environmental Services,
Inc. (ACV), an environmental services company, contracted to provide waste management
and remediation services at the Mill. 	(Id. ¶ 12.) 	Defendant Clean Venture, Inc. (Clean
Venture), an environmental services company, contracted to provide cleaning services for
a chimney at the Mill known as the “Northern Cyclone.” (Id. ¶ 13.) Defendant Zampell
Refractories, 	Inc. 	(Zampell), 	a 	company 	that 	provides 	industrial 	construction 	and
maintenance services, contracted to perform scaffolding and other construction work at the
Mill. 	(Id. ¶ 14.) 	Defendant NEMO, a company that provides industrial boiler repair
services, contracted to perform boiler maintenance at the Mill. (Id. ¶ 15.) Defendant Labor
Cleaning Service, Inc. (Labor Cleaning), a company that provides industrial cleaning
services, contracted to perform cleaning services at the Mill. (Id. ¶ 16.)
1 The following facts are drawn from Plaintiff’s second amended complaint (Complaint, ECF No. 76) and
are accepted as true as required when assessing the motion to dismiss.
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During the shutdown, the Mill was a multi-employer worksite under Occupational
Health and Safety Administration (OSHA) policy: on such a worksite, more than one
employer may be responsible for hazardous conditions affecting worker safety. (Id. ¶ 65.)
According to Plaintiff, ND Paper, as the host and controlling employer, had a duty to
identify workplace hazards, establish and enforce safety rules, implement and oversee
permit systems, coordinate the activities of multiple contractors, and prevent or correct
hazardous conditions, including by stopping work when conditions were unsafe. 	(Id. ¶¶
10, 68.) Plaintiff asserts that Republic, ACV, Clean Venture, Zampell, NEMO, and Labor
Cleaning each had independent responsibilities under industry standards to identify safety
hazards associated with their activities, protect workers from safety hazards, follow permits
and site rules, and stop work, or remove workers from danger when conditions were unsafe.
(Id. ¶¶ 11-16, 69.) Plaintiff alleges that each Defendant had a duty to exercise reasonable
care to provide a safe workplace within the scope of its respective role at the Mill. (Id. ¶
66.)
On May 28, 2025, while working for SERS, Damion was assigned to perform
cleaning services on an overnight shift at the Mill. 	(Id. ¶ 24.) 	That night, a supervisor
directed Damion to enter and clean a hazardous permit-required confined space on the ninth
floor of the Mill adjacent to the opening of the Northern Cyclone chimney.2 (Id. ¶¶ 17, 19,
2 Under regulations promulgated by OSHA, a permit-required confined space is a confined space that has
one or more of the following characteristics:
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25.) Below the opening, the Northern Cyclone chimney has an interior drop of eighty feet
straight down to a large industrial boiler. (Id. ¶ 18.) In addition to its proximity to the open
end of the chimney, the confined space presented other hazards to an occupant, including
sloped floors. 	(Id. ¶ 20.) 	Damion’s work in the confined space involved removing
accumulated ash and debris from the floor using a shovel and a hose and water to wash the
ash and debris down the opening of the chimney. (Id. ¶ 26.)
Plaintiff alleges that industry standards and workplace safety regulations require
that any worker inside a permit-required confined space be equipped with a retrieval system
or mechanical rescue device. (Id. ¶ 27.) Damion was allegedly provided with neither. (Id.
¶ 28.)
Plaintiff also asserts that industry standards and workplace safety regulations
require that a worker in the vicinity of a fall hazard be equipped with appropriate fall
protection. (Id. ¶ 29.) The only fall protection measure in the confined space consisted of
scaffolding poles that served as makeshift guardrails. 	(Id. ¶¶ 22, 29.) 	According to
Plaintiff, the poles, which were installed by Defendants, were not securely anchored and
were prone to moving or becoming dislodged; they had rough exposed surfaces that posed
risks of cuts and snagging of clothing in an area immediately adjacent to a severe fall
(1) Contains or has a potential to contain a hazardous atmosphere;
(2) Contains a material that has the potential for engulfing an entrant;
(3) Has an internal configuration such that an entrant could be trapped or asphyxiated by
inwardly converging walls or by a floor which slopes downward and tapers into a
smaller cross-section; or
(4) Contains any other recognized serious safety or health hazard.
29 C.F.R. § 1910.146.
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hazard; and the installation did not meet height, surface, and load-bearing standards for a
guardrail system designed to protect against falls. (Id. ¶ 22.)
Plaintiff further alleges that industry standards and workplace regulations require
that a properly trained attendant continuously monitor the safety of a worker inside a
permit-required confined space. (Id. ¶ 30.) Plaintiff asserts that the attendant assigned to
monitor Damion was not properly trained and did not continuously monitor him while he
was within the confined space. (Id. ¶ 31.)
When Damion completed his assigned task in the confined space, he sought
confirmation that the work was done to satisfaction. 	(Id. ¶ 32.) 	Rather than instructing
Damion to exit the confined space, the attendant permitted him to remain inside while a
supervisor was summoned. 	(Id.) 	The attendant observed Damion standing inside the
confined space, with his hands on the top scaffolding rail in proximity to the chimney
opening. (Id. ¶ 33.) The attendant then lost sight of Damion. (Id.)
A short time later, a NEMO supervisor looked into the confined space and observed
that a scaffolding rail was on the floor. 	(Id. ¶ 34.) 	The NEMO supervisor asked the
attendant whether anyone had been working in the space and informed the attendant that a
scaffolding rail was on the floor. (Id. ¶¶ 35-36.) The attendant called out for Damion but
received no response. (Id. ¶ 37.) The attendant then climbed inside the confined space and
confirmed that Damion was not there. (Id. ¶ 38.)
Plaintiff maintains that an uncoordinated search ensued, without a confined-space
rescue plan or retrieval equipment. (Id. ¶ 39.) The initial search failed to located Damion,
delaying his rescue and emergency medical treatment. 	(Id. ¶ 40.) 	About thirty minutes
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after he was first reported missing, Damion was discovered eighty feet below the confined
space, at the base of the Northern Cyclone chimney. (Id. ¶ 41.) Damion suffered extensive,
permanent, and life-altering injuries in the fall. (Id. ¶ 2.)
After Damion’s fall, OSHA investigated the circumstances of the accident. 	(Id. ¶
49.) 	As a result of its investigation, OSHA issued multiple citations for violations of
workplace safety regulations to Defendants ND Paper, ACV, Zampell, and Labor Cleaning.
(Id. ¶¶ 50-62.) OSHA cited NEMO for violations of 29 C.F.R. § 1904.29(b)(1) and (b)(4)
for failing to properly complete OSHA injury logs. (Id. ¶ 63.)
Plaintiff alleges that Defendants failed to follow industry standards by neglecting to
provide, maintain, or otherwise ensure that appropriate guardrail systems or other fall-
protection systems were in place in the confined space where Damion fell. 	(Id. ¶ 70.)
Plaintiff maintains that Defendants also failed to properly train workers, attendants, and
supervisors on fall protection, and failed to ensure adequate staffing and supervision during
an overnight shift involving high-risk work. (Id. ¶ 74.) Because Defendants did not adopt
appropriate facilities management and employ operational safeguards, Damion had to work
in a hazardous location without proper monitoring or fall-protection measures. 	(Id. ¶ 4.)
Plaintiff asserts that Damion would not have fallen and suffered injuries if Defendants had
complied with accepted industry standards and safety practices. (Id. ¶ 5.)
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LEGAL STANDARD
NEMO seeks dismissal of Plaintiff’s claims against it pursuant to Federal Rule of
Civil Procedure 12(b)(6).3 	“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” 	Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks omitted). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” 	Id. 	At
the pleading stage, “a high degree of factual specificity is not required.” Grajales v. P.R.
Ports Auth., 682 F.3d 40, 47 (1st Cir. 2012); see also Fed. R. Civ. P. 8(a)(2). “To cross the
plausibility threshold a claim does not need to be probable, but it must give rise to more
than a mere possibility of liability.” 	Grajales, 682 F.3d at 44-45. 	As with other
assessments that involve an element of reasonableness, determining whether a complaint
states a plausible claim is a context-specific task, informed to some degree by common
sense. Iqbal, 556 U.S. at 679.
3 NEMO also requested dismissal under Rules 12(b)(2), (4), and (5), asserting that Plaintiff failed to name
or serve NEMO correctly, and that the Court consequently lacks personal jurisdiction over NEMO. After
NEMO filed the motion, Plaintiff amended her complaint—with the Court’s leave and without objection
from NEMO—to correct the identification of NEMO. The record establishes that NEMO received adequate
notice that it was being sued in this matter, as its registered agent accepted service of the summons and
complaint, NEMO filed this motion, and it answered crossclaims by other defendants. Moreover, NEMO
has not denied that it was providing boiler maintenance services at the Mill at the time of Damion’s fall.
Under the circumstances, consistent with the First Circuit’s guidance, see United States v. Davis, 261 F.3d
1, 33 n.25 (1st Cir. 2001), the Court denies NEMO’s dismissal request based on the alleged failure to
properly name and serve NEMO. See also Wash. Trust Advisors, Inc. v. Arnold, 669 F. Supp. 3d 35, 40
(D. Mass. 2023) (discussing the “misnomer rule” that applies when a plaintiff “has actually sued and served
the correct defendant, but mistakenly used the wrong name of the defendant”) (quotation marks omitted).
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In evaluating NEMO’s motion, the Court accepts “as true all well-pleaded facts
alleged in the complaint and draw[s] all reasonable inferences therefrom in the pleader’s
favor.” 	Santiago v. Puerto Rico, 655 F.3d 61, 72 (1st Cir. 2011). 	The Court does not,
however, credit legal conclusions or recitals of the elements of a cause of action supported
only by conclusory statements. 	Iqbal, 556 U.S. 678. 	“If the factual allegations in the
complaint are too meager, vague, or conclusory to remove the possibility of relief from the
realm of mere conjecture, the complaint is open to dismissal.” 	Morales-Cruz v. Univ. of
P.R., 676 F.3d 220, 224 (1st Cir. 2012) (quotation marks omitted).
DISCUSSION
The plausibility assessment “operates in conjunction with the substantive law” that
gives rise to the claims asserted. Shay v. Walters, 702 F.3d 76, 82 (1st Cir. 2012). In the
complaint, Plaintiff asserts the following as separate claims against NEMO: negligence;
negligent hiring, training, and supervision; loss of consortium; and punitive damages. 	In
this diversity action concerning injuries that occurred in Maine, Maine law supplies the
substantive rules of decision. See Phil. Indem. Ins. Co. v. Employers Ins. Co. of Wausau,
703 F. Supp. 2d 41, 45 (D. Me. 2010); Piche v. Nugent, No. Civ. 05-82-B-K, 2005 WL
2428156, at *2 (D. Me. Sept. 30, 2005).
A. 	Negligence Claims
Under Maine law, the elements of a negligence claim consist of “(1) a duty of care
owed to the plaintiff; (2) a breach of that duty; (3) an injury; and (4) causation, that is, a
finding that the breach of the duty of care was the cause of the injury.” Bell v. Dawson, 82
A.3d 827, 831-32 (Me. 2013) (quotation marks omitted). 	Maine law also recognizes the
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tort of negligent supervision. 	See Dragomir v. Spring Harbor Hosp., 970 A.2d 310, 315
(Me. 2009). Consistent with the Restatement (Second) of Torts §§ 315(b) and 317, such
an action may be maintained where there is a “special relationship” between the plaintiff
and the defendant such that the defendant has a duty to control the conduct of a third party
to prevent that party from causing harm to the plaintiff. Id. “The existence of a duty and
the scope of that duty are questions of law.” Gniadek v. Camp Sunshine at Sebago Lake,
11 A.3d 308, 313 (Me. 2011). 	“Duty refers to whether the defendant is under any
obligation for the benefit of the particular plaintiff” under the factual circumstances
alleged. Id. (quotation marks omitted). Issues concerning the breach of a duty of care are
ordinarily questions of fact. Reid v. Town of Mt. Vernon, 932 A.2d 539, 544 (Me. 2007).
NEMO contends that the complaint fails to plausibly allege duty, breach, or
causation as to NEMO in the absence of specific allegations that NEMO created the hazard,
controlled the work, had responsibility for safety measures, or had any other direct
involvement in the alleged failure of the guardrail. In support of its argument, NEMO cites
Laurence v. Wall, No. 08-109 ML, 2011 U.S. Dist. LEXIS 22668 (D.R.I. Feb. 8, 2011),
where a plaintiff sued sixty-five defendants, including six defendants who were not
specifically mentioned in the complaint, and where the court concluded that the allegations
against all “defendants” as a group were insufficient to state claims against the six
defendants who were not otherwise mentioned in the complaint. 	Id. at *6-7. 	NEMO
contends that Plaintiff’s allegations that all the defendants owed the same duties are
“insufficient as a matter of law—particularly in a multi-defendant case—to state a claim
against any one defendant.” 	(Motion at 7.) 	NEMO also argues that the lack of OSHA
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workplace safety citations issued to it, when compared to the citations issued to the other
defendants, underscores the need for more specificity.
While a plaintiff’s failure to distinguish among multiple defendants when alleging
the actionable conduct might generate some concerns as to whether one or more defendants
have been adequately notified of the basis of their alleged liability, the failure to do so does
not necessarily require dismissal. 	See, e.g., Rodriguez-Rivera v. Allscripts Healthcare
Solutions, Inc., 43 F.4th 150, 172 (1st Cir. 2022) (articulating doubts about argument that
complaint should be dismissed for failure to specify between two defendants and
explaining that “[c]ertain information, such as the structure and responsibility of each
distinct entity, may often be unavailable to the plaintiff at this early stage of litigation”).
In this case, Plaintiff alleges that each of the contractor defendants, including
NEMO, had a duty to exercise reasonable care to provide a safe workplace within the scope
of its respective role at the Mill. Plaintiff further alleges that Defendants breached the duty
by among other things, failing to install adequate guardrails in the confined space. Plaintiff
has directly alleged that NEMO (along with all the other defendants) was responsible for
the placement of the makeshift scaffolding poles that were not securely anchored and that
served as Damion’s only source of fall protection. 	(Complaint ¶ 22.) 	Given that a high
degree of specificity is not required at the pleading stage, Grajales, 682 F.3d at 47, these
allegations alone are sufficient to withstand NEMO’s challenge. Plaintiff, however, alleges
other facts that support her claim against NEMO. 	For instance, Plaintiff alleges that
NEMO was hired to provide boiler repair services at the Mill during the shutdown, which
services, one can reasonably infer, included work on the boiler at the base of the Northern
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Cyclone around the time that Damion fell. Plaintiff’s assertions that Damion was assigned
to clean in the confined space adjacent to the Northern Cyclone chimney and that a NEMO
supervisor was inspecting the area when the supervisor determined that Damion was
missing support a reasonable inference that NEMO had some responsibility for the
conditions in the confined space. Furthermore, as explained in more detail in the context
of NEMO’s challenge to Plaintiff’s punitive damages claim, Plaintiff’s allegations
regarding the defendants’ delay in securing emergency services also support a claim
against NEMO.
In sum, Plaintiff has alleged sufficient facts to support her negligence claims against
NEMO.
B. 	Punitive Damages
“Punitive damages . . . do not constitute a separate cause of action, but instead form
a remedy available for some tortious or otherwise unlawful acts.” S. Port Marine, LLC v.
Gulf Oil Ltd. P’ship, 234 F.3d 58, 64 (1st Cir. 2000). 	To recover such damages under
Maine law, a plaintiff must prevail on the underlying substantive claim and show, by clear
and convincing evidence, that the defendant acted with malice. 	Tuttle v. Raymond, 494
A.2d 1353, 1363 (Me. 1985). 	Negligence alone cannot support an award of punitive
damages, and reckless conduct will not justify such an award either. 	Id. at 1360-61.
Punitive damages “are available based upon tortious conduct only if the defendant acted
with malice.” Id. at 1361. This requirement is satisfied by a showing of “actual malice,”
which “exists where the defendant’s tortious conduct is motivated by ill will toward the
plaintiff.” Id. The law also recognizes “implied” malice, which exists where “deliberate
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conduct by the defendant, although motivated by something other than ill will toward any
particular party, is so outrageous that malice toward a person injured as a result of that
conduct can be implied.” Id. 	The standard of implied malice, however, is not satisfied by
a defendant’s “mere reckless disregard of the circumstances.” Id.
NEMO contends that the complaint “falls far short” of the “demanding evidentiary
standard” set by Tuttle. (Motion at 10.) As with the negligence claims, NEMO asserts that
the allegations supporting the punitive damages claim are, for the most part, “group
allegations completely unsupported by facts specific to NEMO.” 	(Id.) 	As for the
allegations specific to the NEMO supervisor, NEMO describes the conduct of the
supervisor as “post-incident observation and reporting” conduct that “cannot plausibly
support an inference of malice, let alone meet the clear and convincing standard required
under Maine law.” (Id.)
Plaintiff argues that the standard of proof for punitive damages is not pertinent at
the pleading stage, and that she has alleged facts sufficient to support entitlement to
punitive damages. She contends, for instance, that her allegations regarding the failure of
the defendants, including NEMO through its supervisor, to promptly notify emergency
services and conduct a competent search for Damion despite circumstances which
suggested that he had apparently fallen eighty feet down the Northern Cyclone chimney,
could support an award of punitive damages.
As with the negligence claim, Plaintiff does not distinguish among the defendants
when she alleges Defendants’ failure to promptly notify emergency services and conduct
a competent search for Damion. 	However, one can reasonably infer from Plaintiff’s
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allegations that a NEMO supervisor first noticed that Damion was missing and that the
defendants, including NEMO, unreasonably delayed in contacting emergency services.
Such a delay under the circumstances could reasonably be viewed as sufficiently
outrageous to satisfy the standard of implied malice, considering the severity of the injuries
that were likely (and actually) sustained. 	See Dean v. Scott, No. CV-04-038, 2005 WL
2716526, at *2 (Me. Super. April 26, 2005) (granting motion to amend to add punitive
damages claim where the pleadings alleged company entrusted vehicle to individual
knowing he had a serious history of driving infractions, individual then drove vehicle at an
excessive speed, hitting plaintiffs’ vehicle with considerable force, and individual failed to
“leave his own vehicle before rescuers arrived to determine whether the unconscious
occupants of vehicle he hit were in need of immediate assistance”). In sum, at this stage,
Plaintiff has alleged sufficient facts to support a punitive damage claim.
CONCLUSION
After consideration of the parties’ arguments, for the reasons discussed above, the
Court denies NEMO’s motion to dismiss.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 16th day of October, 2026.
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