DOE v. SMITH

1
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JOHN DOE, 	)
)
Plaintiff 	)
)
v. 	) 	No. 2:23-cv-00423-JAW
)
SARA SMITH, 	)
)
Defendant 	)
ORDER ON MOTION TO AMEND
John Doe alleges that Sara Smith violated the terms of their nondisclosure
agreement (NDA) by informing third parties about his billion-dollar lottery winnings.
He now seeks to amend his complaint to, among other things, add allegations that
Smith violated the NDA by disclosing protected information to her attorney and in
state court custody filings regarding his and Smith’s minor child. 	See Motion
(ECF No. 28).1 	In his proposed amended complaint, Doe alleges that Smith was
obligated under the terms of the NDA to seek his permission before making such
disclosures or, at the very least, provide him with advance notice. 	See Proposed
Amended Complaint (ECF No. 28-1) ¶¶ 27-33.
Smith argues that Doe’s proposed amendments are futile because the NDA is
“unenforceable as against public policy” to the extent that it required her to seek Doe’s
permission before talking to her attorney or making custody-related court filings.
Opposition (ECF No. 48) at 8-9.
1 The sealing issues raised by Doe in his motion were resolved by the Court’s recent order. See Order
on Motion to Unseal (ECF No. 71) at 20-22.
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Doe rejoins that the NDA is not unreasonable in the context of the custody
dispute because Smith could have made her custody filings without disclosing
protected information and, in his view, Smith’s custody filings were not made in good
faith. See Reply (ECF No. 52) at 4-5.2
The NDA is, by its terms, governed by Maine law. See NDA (ECF No. 1-1) ¶ 8.
Under Maine law, a contract is unenforceable as against public policy if it is “harmful
to the interests of society.” 	Court v. Kiesman, 2004 ME 72, ¶ 11, 850 A.2d 330. 	In
such circumstances, “the parties’ freedom to contract” must be weighed “against the
detriment to society if [the court] were to enforce the contract.” Id.
With this balancing test in mind, I have no trouble concluding that the NDA is
unenforceable to the extent it would interfere with Smith’s ability to consult with her
attorney and make custody-related court filings. The parties’ freedom to contract and
Doe’s interests in enforcement of the NDA are clearly outweighed by Smith’s right to
seek redress in court for child custody-related issues. 	The protected information at
issue was seemingly relevant to the custody dispute. 	And it is easy to imagine the
harm that might be wrought by requiring one parent to seek the other parent’s
permission—or even just provide the other parent advance notice—before talking to
an attorney or making an emergency child custody filing.
My conclusion is consistent with caselaw from Maine and elsewhere. See, e.g.,
Riemann v. Toland, 2022 ME 13, ¶ 39, 269 A.3d 229 (“[A]ny provision in a premarital
2 I decline to give credence to Doe’s suggestion that Smith’s custody filings were made in bad faith
because that would require me to accept his version of hotly contested facts, which would be
inappropriate at this early stage in the case.
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agreement that may hinder the court’s ability to assess and address issues regarding
the best interest of a child, including a provision that could negatively affect a party’s
right to litigate such issues, is void and unenforceable.”); id. ¶ 40 (“Enforcement of a
provision in a premarital agreement waiving attorney fees could expose the child and
the parties to the risk that the terms of the agreement, rather than the court’s
understanding of the child’s best interest, will determine the outcome of issues, such
as custody, that require an analysis of the best interest of the child.”); Lana C. v.
Cameron P., 108 P.3d 896, 902 (Alaska 2005) (concluding “that a private agreement
that seeks to bar an individual from presenting relevant evidence to a court in a
domestic violence proceeding [involving a child and her parents] . . . is unenforceable
as contrary to public policy”); In re Marriage of Joseph, 217 Cal. App. 3d 1277, 1284
(Cal. Ct. App. 1990) (“[T]hat parties cannot by contract limit the court’s power to
resolve issues concerning children’s welfare . . . has been reiterated in numerous . . .
opinions.”); EEOC v. Astra U.S.A., Inc., 94 F.3d 738, 744 (1st Cir. 1996) (quoting Town
of Newton v. Rumery, 480 U.S. 386, 392 (1987)) (“[A] promise is unenforceable if the
interest in its enforcement is outweighed in the circumstances by a public policy
harmed by enforcement of the agreement.”).
Accordingly, Doe’s proposed amendments regarding Smith’s breach of the NDA
in the context of their custody dispute are futile, and his motion to amend his
complaint 	is 	DENIED. 	See 	Aponte-Torres 	v. 	Univ. 	of 	P.R., 	445 	F.3d 	50, 	58
(1st Cir. 2006) (noting that even under Fed. R. Civ. P. 15(a)’s liberal standard, courts
may deny proffered amendments when they “would be an exercise in futility”).
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NOTICE
In accordance with Federal Rule of Civil Procedure 72(a), a party may
serve and file an objection to this order within fourteen (14) days after being
served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right
to review by the district court and to any further appeal of this order.
Dated: May 21, 2024
/s/ Karen Frink Wolf
United States Magistrate Judge
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