Montany v. University of New England

United States Court of Appeals
For the First Circuit
No. 16-2176
ANNALIA MONTANY,
Plaintiff, Appellant,
v.
UNIVERSITY OF NEW ENGLAND and SCOTT MCNEIL,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
John J.E. Markham, II, with whom Markham & Read was on brief,
for appellant.
Edward M. Kaplan, with whom William D. Pandolph and Sulloway
& Hollis, P.L.L.C. were on brief, for appellees.
May 30, 2017
THOMPSON, Circuit Judge. Annalia Montany appeals from
the entry of summary judgment in favor of the University of New
England (UNE) and Scott McNeil (collectively, defendants). We
affirm.
BACKGROUND1
Montany was a student in UNE's two-year occupational-
therapy master's degree program. The program requires its students
to take practical exams, in which program instructors act as mock
patients and students are tested on their ability to properly
manage a patient in need of occupational therapy. In one of these
practical exams, Montany was tasked with assisting McNeil — an
instructor playing the role of a mock patient who was "unable to
ambulate" and was "very weak, and unable to bear much weight into
the legs" — in a transfer from a wheelchair into a bed. According
to Montany, while she was assisting McNeil in the transfer, McNeil
intentionally "dropped his weight" (210 pounds) in "a fake
slipping" or "falling movement."2 Montany suffered a back injury
1 In this summary-judgment appeal, we view the facts (and all
reasonable inferences that can be drawn from them) in the light
most favorable to Montany, the nonmovant. See Garmon v. Nat'l
R.R. Passenger Corp., 844 F.3d 307, 312 (1st Cir. 2016). We set
forth here only those facts necessary to provide the general
backstory, amplifying this factual background when necessary in
the course of our analysis.
2 In her opening and reply briefs, Montany repeatedly asserts
that McNeil instructed her to hold on to a gait belt during this
transfer. However, the record passages cited for support show
only that Montany was holding a gait belt during the transfer, not
that McNeil instructed her to do so. Nonetheless, because it makes
-2-
as a result, although she did not report this injury to McNeil at
this time. Montany did not achieve the minimum passing score on
this practical exam. According to Montany, she told McNeil three
days after failing this practical exam that her "back hurts." Five
days after that, Montany took a retake of the practical exam for
the course; it is undisputed that she did not tell McNeil or any
other instructor at UNE that she could not retake the practical
exam because of any back problem. She failed the retake exam as
well, and so did not receive a passing grade for the course.
As a result of this failing grade, the program's Student
Development Committee (SDC) intervened. During her initial
meeting with the SDC, Montany did not report that she had injured
her back or relate that her failure of the retake of the practical
exam was a product of her back injury. The SDC developed a plan
(SDC plan) for Montany that provided, in pertinent part, that,
"[d]epending on her GPA and progress in other courses this fall,
she may return [for the following fall semester] on academic
probation to re-take [the failed course] or be dismissed" and that
"she needs to keep her GPA high in other courses to meet the 3.00
semester criterion." In a later meeting with the SDC, she reported
the back injury she suffered in the practical exam. Although
no difference to our analysis, we assume, favorably to Montany,
that McNeil instructed her to hold on to a gait belt during the
transfer.
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Montany maintained a 3.07 GPA that semester, the SDC nonetheless
voted to dismiss Montany from the program. The program director
agreed, and, accordingly, Montany was dismissed from the program.
Montany responded by filing suit against UNE and McNeil.
She asserted a negligence claim against both defendants and a
breach-of-contract claim against UNE. Montany timely appealed
from the district court's entry of summary judgment on both claims.
ANALYSIS
On appeal, Montany argues that the district court3 erred
in entering summary judgment for defendants on both of her claims.
We address each claim in turn.
A. Negligence
In her complaint, Montany alleged that the practice of
feigning falls in a practical exam — which, according to Montany,
McNeil did during Montany's practical exam (and, to a lesser
extent, during another one of Montany's practical exams in the
prior semester) — is "a procedure known by the medical community
to be dangerous." "Lifting or bearing the dead weight of a
patient," Montany's complaint alleged, "is known to be a frequent
cause of injury to health care providers. Therefore, the practice
3 We view things institutionally and use "the district court"
to refer to both the magistrate judge who issued a report and
recommendation (R&R) and the district-court judge who adopted the
R&R in its entirety.
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engaged in by defendant McNeil . . . was negligent in that it
placed an unreasonable risk of injury upon the plaintiff." Montany
further alleged that McNeil's conduct during the practical exam in
which she suffered a lasting back injury "was unreasonable and a
lack of ordinary care" and that McNeil's weight "was more tha[n]
[Montany] should have been required to bear."
After discovery was complete, the district court entered
summary judgment in defendants' favor on Montany's negligence
claim. Reasoning that "[t]he circumstances of the practical exam
at issue were particular to the program of study of occupational
therapy conducted by UNE" and that "the negligence and its harmful
results to [Montany] are not so obvious in this case as to lie
within a jury's common knowledge," the court concluded that expert
testimony was required to establish defendants' breach of the
standard of care. The court explained:
Whether a student studying occupational therapy is
required to move patients heavier than herself as part
of the job duties for which she is being trained, whether
she must demonstrate at [Montany's] stage of her
training at the time of the practical exam at issue that
she knows how to do this without coaching from an
instructor or supervisor, and whether an instructor
acting as a patient in such an exam may reasonably act
in the manner described by [Montany] are all questions
that are not within an average juror's common sense,
knowledge, or experience.
Because Montany had failed to designate such an expert, the
district court granted defendants summary judgment on her
negligence claim.
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On appeal, Montany argues that expert testimony was not
required to establish McNeil's breach of the standard of care.
Montany insists that, to the contrary, McNeil's actions —
instructing Montany to hold on to a gait belt and then dropping
his weight during the practical exam — were "non-technical" and
went "against common sense and the ordinary standard of care." As
a fallback, Montany argues that, even if expert testimony would
ordinarily be required in this context, it is not required in this
case because "the negligence and harmful results [were]
sufficiently obvious as to lie within common knowledge." (Quoting
Cyr v. Giesen, 108 A.2d 316, 318 (Me. 1954).) We disagree.
Under Maine law,4 there are four elements of a negligence
claim: "duty, breach, causation, and damages." Maravell v. R.J.
Grondin & Sons, 914 A.2d 709, 712 (Me. 2007) (quoting Maddocks v.
Whitcomb, 896 A.2d 265, 268 (Me. 2006)). "In determining the
nature of the appropriate standard of care or practice, expert
testimony may be necessary 'where the matter in issue is within
the knowledge of experts only, and not within the common knowledge
of lay[persons].'" Id. at 712-13 (alteration in original) (quoting
Cyr, 108 A.2d at 318). The Maine Supreme Judicial Court, sitting
as the Law Court (Law Court), has held that expert testimony is
4 The parties agree that Maine law governs this diversity
case.
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ordinarily required to establish the duty and breach elements in
a negligence action against a physician or surgeon, see Cyr, 108
A.2d at 318, a dentist, see Welch v. McCarthy, 677 A.2d 1066, 1067,
1069 (Me. 1996), an attorney, see Pawlendzio v. Haddow, 148 A.3d
713, 715 (Me. 2016), a professional engineer, see Seven Tree Manor,
Inc. v. Kallberg, 688 A.2d 916, 917-18 (Me. 1997), a college
athletic trainer, see Searles v. Trs. of St. Joseph's Coll., 695
A.2d 1206, 1210 (Me. 1997), and a general contractor supervising
a blasting contractor, see Maravell, 914 A.2d at 713. As the Law
Court has observed, requiring expert testimony in such
circumstances protects against "the potential danger that a jury,
composed of laymen and gifted with the benefit of hindsight, will
divine the breach of a[n] . . . obligation largely on the basis of
the unfortunate result." Woolley v. Henderson, 418 A.2d 1123,
1131 (Me. 1980).
We reject Montany's contention that an expert is not
generally required to establish the standard of care for what is
reasonable conduct in a practical exam in an occupational-therapy
program and the breach of that standard of care. Montany admits
that "[a] practical exam requires that a student properly manage
a patient in need of occupational therapy," and McNeil testified
that practical exams are designed to test students' abilities to
demonstrate proper mastery of transfer mechanics. The question of
whether a practical exam tests those mechanics in an unreasonable
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fashion is "not within the common knowledge of lay[persons]" and
instead lies "within the knowledge of experts only." Maravell,
914 A.2d at 712-13 (alteration in original) (quoting Cyr, 108 A.2d
at 318). Indeed, Montany concedes that her negligence claim
involves the question "whether an instructor acting as a patient
in [a practical] exam 'may reasonably act in the manner described
by [Montany].'" Answering that question requires more than the
jury's common sense, knowledge, and experience; it requires expert
testimony separating the reasonable actions of an occupational-
therapy instructor administering a practical exam to a graduate
student from those that breach the standard of care.5
Of course, even in those circumstances where expert
testimony is ordinarily required to establish breach of the
standard of care, such testimony is not required "where the
negligence and harmful results are sufficiently obvious as to lie
within common knowledge." Id. at 713; see also Downer v. Veilleux,
322 A.2d 82, 84 (Me. 1974) (explaining that this exception applies
"where the negligence and the harmful results are so glaringly
apparent as to lie within the common knowledge of laymen"); cf.
5 Montany's complaint confirms this conclusion. Although she
alleged that McNeil's conduct during the practical exam "was
unreasonable and a lack of ordinary care," she also alleged that
the practice of feigning falls is "a procedure known by the medical
community to be dangerous" and that "[l]ifting or bearing the dead
weight of a patient is known to be a frequent cause of injury to
health care providers." (Emphasis added.)
- 8 -
Michaud v. Blue Hill Mem'l Hosp., 942 A.2d 686, 688 (Me. 2008)
("Except in unusual circumstances, not existing here, a plaintiff
in a medical malpractice case must prove the nature and scope of
the defendants' duty by expert medical testimony." (emphasis
added)). Montany attempts to bring her case within this exception,
but we are unpersuaded.
The two cases upon which Montany primarily relies do not
support her position that expert testimony was not required in
this case. Montany principally relies on Searles, but that case
offers her no assistance. In Searles, the Law Court held that,
while "establishing the standard of care for [athletic trainers]
in their treatment of athletes ordinarily requires expert
testimony," 695 A.2d at 1210, no expert testimony was required in
the circumstances of that case, which involved a negligence action
brought by a college basketball player who suffered knee injuries,
id. at 1208, 1210-11. The basketball player's claim against the
athletic trainer "involve[d] more than a claim that [the athletic
trainer] negligently conducted a course of treatment of [the
player's] injuries that contributed to a worsening of his
condition, or that he failed to appreciate the seriousness of [the
player's] condition." Id. at 1210-11. Instead, the claim was
that the athletic trainer, despite knowing of the acuteness of the
player's injuries, failed to notify the basketball coach that the
player should not have played basketball and failed to communicate
- 9 -
to the coach the nature and extent of the player's injuries. Id.
at 1211. The court reasoned that "[j]urors could apply their
common knowledge in determining whether such failures, if they
occurred, constituted a breach by [the athletic trainer] of his
duty to exercise reasonable care for the health and safety of [the
player]." Id.But Montany's case is not cut from the same cloth. She
alleges that McNeil's weight drop during the practical exam was
unreasonable. Assessing the reasonableness of that conduct — which
indisputably occurred during the course of a practical exam in an
occupational-therapy graduate-degree program — is not a matter
within the common knowledge of lay jurors. Instead, it is a matter
of professional judgment about the appropriate manner in which to
test occupational-therapy graduate students on mobility-transfer
mechanics. Indeed, Searles actually supports the district court's
conclusion that an expert was required in this case. As the Law
Court recognized in Searles, "the standard of care applicable to
an athletic trainer who treats physical injuries or who must make
judgments about the severity of a physical condition does not
ordinarily lend itself to common knowledge." Id. at 1210. The
same is true for the standard of care in this case, which hinges
on a professional-judgment call about the appropriate manner to
test graduate students in a practical exam administered as part of
an occupational-therapy program.
- 10 -
The other case on which Montany relies, Walter v. Wal-
Mart Stores, Inc., 748 A.2d 961 (Me. 2000), is also of no
assistance to her. In that case, the defendant pharmacist gave
the plaintiff the wrong medication, id. at 964-65, and he admitted
that he failed to follow the pharmacy's four-step process utilized
to check for errors, id. at 967. The Law Court held that expert
testimony was not required to establish the pharmacist's breach of
the standard of care because "[t]he negligence of the pharmacist
and the harmful results were sufficiently obvious to be within the
common knowledge of a lay person. It does not take an expert to
know that filling a prescription with the wrong drug and failing
to take the steps in place in that pharmacy to check for the wrong
drug is negligence." Id. at 972. Unlike a pharmacist's failure
to dispense the correct medication, however, McNeil's alleged
negligence — a purposeful weight drop during a practical exam
testing students' abilities to demonstrate proper transfer
mechanics in an occupational-therapy graduate-degree program — and
its harmful effects are not sufficiently obvious to be within the
common knowledge of a lay person. Expert testimony, therefore,
was required to establish McNeil's breach of the standard of care.6
6
Montany's reliance on Laing v. Clair Car Connection, No.
Civ. A. CV-01-516, 2003 WL 1669624, at *4 (Me. Super. Ct. Jan. 29,
2003), is also misplaced. The plaintiff's pertinent claims in
Laing were for negligent misrepresentation and breach of contract,
and the Superior Court rejected the car dealer's argument that
"expert testimony is required to establish one's duty not to
- 11 -
At oral argument, Montany offered an additional reason
why, in her view, her negligence claim does not require expert
testimony: According to Montany, McNeil testified in his
deposition that an intentional weight drop "wasn't part of the
test."7 But this contention made its debut at oral argument, so
we need not — and therefore do not — consider it. See United
States v. Hogan, 722 F.3d 55, 61 (1st Cir. 2013) (holding that
appellant waived arguments raised for first time at oral argument).
As a last gasp, Montany attempts to paper over her own
failure to obtain an expert by noting that "[d]efendants presented
negligently misrepresent facts or breach a contract." Id.Similarly, to the extent Montany intended to rely on Seider v.
Board of Examiners of Psychologists, 754 A.2d 986 (Me. 2000), it
provides her no support. In that case — which arose from the
decision of the Board of Examiners of Psychologists (Board) that
found that the plaintiff, a psychologist, violated the code of
conduct governing her profession — the Law Court rejected the
argument that the Board was required, as a matter of procedural
due process, to establish the standard of care through expert
testimony because (among other reasons) "it is well within the
realm of common knowledge that a complete failure to act in
accordance with provisions of the code of conduct established for
one's profession constitutes a violation, and that violations of
numerous provisions of that code may constitute negligence." Id.
at 992.
7 It appears that what McNeil actually said in his deposition
was less definitive than Montany lets on. From our review of the
deposition transcript (Montany has not pointed us to where in the
record this statement appears), the closest thing we can find in
McNeil's testimony is where he stated: "Shift my weight
unexpectedly, throw my arms in the air unexpectedly, I — that
doesn't sound like what happens in a practical exam." In any
event, because Montany failed to raise this argument to this court
until oral argument, we need not dwell on whether Montany's
characterization of McNeil's testimony is accurate.
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no evidence of any specialized circumstances that preclude a jury
from understanding what happened." But she cites no case — let
alone a Maine case — for the proposition that a defendant in a
negligence action is under any burden to come forward with record
evidence demonstrating that an expert is required to establish the
standard of care and its breach.8 Montany, the plaintiff in this
action, bore the burden of establishing the prima facie elements
of her negligence claim, see Maravell, 914 A.2d at 712, and, for
reasons already explained, we are convinced — based on the
undisputed fact that her negligence claim against an occupational-
therapist instructor alleges that he acted unreasonably in the
course of administering a practical exam to a graduate student in
the occupational-therapy master's degree program — that, to
satisfy this burden, she needed to come forward with expert
testimony to establish the standard of care and its breach.
Because expert testimony was required to establish McNeil's breach
of the standard of care and Montany failed to adduce such evidence,
summary judgment in defendants' favor was appropriate on her
negligence claim. See Pawlendzio, 148 A.3d at 715-16 (affirming
8The Law Court's decision in Seven Tree Manor, which Montany
references in passing in connection with this argument, imposes no
such obligation. In that case, the Law Court instructed the
parties to brief the issue of the need for expert testimony to
establish breach of the standard of care owed by professional
engineers and both parties agreed that such testimony should
ordinarily be required. Seven Tree Manor, 688 A.2d at 917-18.
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entry of summary judgment on legal-malpractice claim based on
plaintiffs' failure to produce expert-based evidence); Michaud,
942 A.2d at 688 (same in medical-malpractice case).
B. Breach of Contract
In her brief before us, Montany's characterization of
her contract claim is a bit of a moving target. At certain points
in her brief, Montany seems to rely on the UNE student handbook as
the basis for her contract claim. At other points in her brief,
Montany seems to suggest that her breach-of-contract claim is
grounded, at least in part, in the SDC plan. Finally, at still
other points in her brief, Montany characterizes her contract claim
as one for UNE's breach of either "the implied promise of good
faith and fair dealing" or the duty "not to act in an arbitrary
manner and in bad faith toward the student." We address each
characterization in turn.
1. Handbook
In her complaint, Montany alleged that "[t]here existed
between [Montany] and UNE a contract the terms of which were the
provision of the [s]tudent [h]andbook." Montany argues that the
district court "ignore[d] the claim of breach of contract based
upon the [s]tudent [h]andbook."
But it did no such thing. Rather, the district court
recognized that "[t]he contract claim asserted in the complaint is
based on the student handbook" but noted that, when confronted
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with defendants' argument that they were entitled to summary
judgment on a breach-of-contract claim arising from the student
handbook, Montany eschewed reliance on the handbook, "apparently
abandoned" it as a basis for her contract claim, and instead
"respond[ed] that her claim based on the [SDC plan] remains viable,
as well as a claim, apparently based on an implied contract, that
the defendants acted unfairly, arbitrarily, and/or capriciously."9
Defendants argue that Montany's failure to put forth any
argument in her opposition to defendants' motion for summary
judgment to the effect that UNE breached a provision of the student
handbook constitutes abandonment of any such claim. Having read
Montany's opposition, we agree. See Grenier v. Cyanamid Plastics,
Inc., 70 F.3d 667, 678 (1st Cir. 1995) (recognizing that "an issue
raised in the complaint but ignored at summary judgment may be
deemed waived"); see also Vélez-Vélez v. P.R. Highway & Transp.
Auth., 795 F.3d 230, 238 (1st Cir. 2015) (concluding that plaintiff
failed to preserve arguments relating to entry of summary judgment
on one claim where plaintiff failed to address, beyond mere one-
sentence cursory assertion, that claim in her opposition to
summary-judgment motion); Merrimon v. Unum Life Ins. Co. of Am.,
9 The district court similarly remarked that Montany's
"summary judgment presentation on the merits of her contract claim
is based entirely upon the alleged 'specific contractual promise'
inherent in the ' . . . SDC Plan.'"
- 15 -
758 F.3d 46, 57 (1st Cir. 2014) ("After filing their complaint,
the plaintiffs did nothing to develop this particular claim, and
the summary judgment papers disclose no development of it. The
claim is, therefore, waived.").10
2. SDC Plan
The district court concluded that Montany's "complaint
cannot reasonably be read to include . . . a contract claim based
on the [SDC plan]," and it refused to allow her to amend her
complaint through argument in her opposition to defendants' motion
for summary judgment. See Asociación de Suscripción Conjunta del
Seguro de Responsabilidad Obligatorio v. Juarbe-Jiménez, 659 F.3d
42, 53 (1st Cir. 2011) (quoting Gilmour v. Gates, McDonald & Co.,
10We note that, even if she hadn't abandoned this claim, it's
far from clear that Montany could state a contract claim based on
the provisions of the student handbook. The handbook provides
that its "provisions . . . do not constitute a contract, express
or implied, between [UNE] and any applicant, student's family or
faculty or staff member" and that UNE "reserves the right to change
the policies, procedures, rules, regulations, and information in
this handbook at any time." Under Maine law, a student handbook
using language such as this cannot alone form the basis of a
breach-of-contract claim. See Millien v. Colby Coll., 874 A.2d
397, 400, 402 (Me. 2005) (affirming trial court's conclusion that
student handbook — which contained "a reservation clause that
g[ave] [the college] the right to unilaterally alter the terms of
the handbook without notice to students" — "was not a binding
contract or the exclusive source of the terms of the parties'
agreement" because, "[u]nder Maine law, 'a reservation to either
party of an unlimited right to determine the nature and extent of
his performance renders his obligation too indefinite for legal
enforcement, making it, as it is termed, merely illusory'" (quoting
Corthell v. Summit Thread Co., 167 A. 79, 81 (Me. 1933))).
- 16 -
382 F.3d 1312, 1315 (11th Cir. 2004), for the proposition that
"[a] plaintiff may not amend her complaint through argument in a
brief opposing summary judgment"). We agree that Montany's
complaint cannot be read as asserting such a claim; indeed, the
SDC plan is not even mentioned in the complaint.
On appeal, Montany has not offered a coherent and
developed argument challenging the ground on which the district
court entered summary judgment on any breach-of-contract claim
premised on the SDC plan. First, she argues that the SDC "plan is
not a separate contract; it is part and parcel of the contract
between UNE and . . . Montany that is based upon the [s]tudent
[h]andbook, and which carries with it an implied obligation of
good faith and fair dealing in all interactions between UNE and
its students." Second, Montany observes that "university/student
contracts mostly 'involve written materials, usually student
handbooks'" and notes that the SDC "plan presented by UNE to
Montany, setting forth the requirements for her continuation at
UNE, and produced by UNE in discovery, is a writing, and part and
parcel of a larger contractual obligation."
But, notwithstanding these passing observations, Montany
has failed to meaningfully develop any argument that the district
court erred in entering summary judgment on any breach-of-contract
claim premised on the SDC plan since such a claim was never alleged
in her complaint; accordingly, we need not consider any such
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undeveloped argument. See United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived."); see also Town of Norwood v. Fed. Energy
Regulatory Comm'n, 202 F.3d 392, 405 (1st Cir. 2000) ("[D]eveloping
a sustained argument out of . . . legal precedents is the job of
the appellant, not the reviewing court, as we have previously
warned.").
3. Good Faith/Arbitrariness
In her complaint, Montany alleges that (1) UNE undertook
an obligation to "deal with her in good faith and fairly" and to
not "act arbitrarily and in bad faith"; (2) she "relied on UNE's
promise of good faith and fair dealing, and that she would not be
treated in bad faith and arbitrarily"; and (3) UNE "did not act in
good faith and did not deal fairly with plaintiff."
But, to the extent she means to assert a claim for UNE's
breach of the implied obligation of good faith and fair dealing,
she cannot do so because, as the district court correctly
concluded, Maine has confined this duty to insurance contracts and
contracts governed by the Uniform Commercial Code (U.C.C.). See
Wortley v. Camplin, 333 F.3d 284, 293 (1st Cir. 2003) ("Maine law
does not impose a duty of good faith and fair dealing except in
circumstances governed by specific provisions of the U.C.C."); Me.
Farms Venison, Inc. v. Peerless Ins. Co., 853 A.2d 767, 770 (Me.
- 18 -
2004) ("We have held that 'in every insurance contract an insurer
owes a duty to act in good faith and deal fairly with its insured'
in the handling of insurance claims." (quoting Marquis v. Farm
Family Mut. Ins. Co., 628 A.2d 644, 648 (Me. 1993))); Haines v.
Great N. Paper, Inc., 808 A.2d 1246, 1250 (Me. 2002) ("We have
declined to impose a duty of good faith and fair dealing except in
circumstances governed by specific provisions of the Uniform
Commercial Code."); Niedojadlo v. Cent. Me. Moving & Storage Co.,
715 A.2d 934, 937 (Me. 1998) ("We have had the opportunity to
extend the implied covenant of objective good faith in contracts
not governed by Maine's U.C.C. and we have specifically refused to
do so. We decline the invitation to do so today." (internal
citations omitted)).
Perhaps in recognition of this hurdle, Montany's reply
brief distinguishes the "duty of good faith and fair dealing" that
"some states attach . . . to various commercial contracts" from
her allegation that UNE breached "a stand-alone duty" to avoid
arbitrary and capricious conduct and to "meet[] common standards
of fair play, meet[] the student's reasonable expectations, and
provide[] fundamental fairness." And, according to Montany, a
jury should decide whether UNE acted arbitrarily and in a
fundamentally unfair manner when it promulgated the SDC plan — a
plan that (in Montany's words) "surely could justify Montany's
reasonable expectation that she would be allowed to return to UNE
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and complete her occupational therapy training if she complied
with" it — but failed to honor it.
But it is not at all clear — despite Montany's
protestations to the contrary — that Maine imposes any such duty
on private universities. The primary authority upon which Montany
relies for the existence of this duty is a decision of the Maine
Superior Court, Millien v. Colby Coll., No. Civ. A CV-02-261, 2003
WL 22100833 (Me. Super. Ct. Aug. 14, 2003). Relying on Goodman v.
President & Trustees of Bowdoin College, 135 F. Supp. 2d 40, 54
(D. Me. 2001), the Superior Court concluded in Millien that: (1)
"a contractual relationship [between the college and the student]
probably exist[ed]," Millien, 2003 WL 22100833, at *2; (2) "[t]o
the extent that there is a contractual relationship between the
college and its students with regard to disciplinary proceedings,
the school's responsibility would be to provide a process which
meets common standards of fair play, meets the student's reasonable
expectations[,] and provides fundamental fairness," id. at *3; and
(3) in any event, the college did not breach any contractual
obligation in that case, id. at *3.
The student appealed, and the Law Court affirmed.
Millien, 874 A.2d at 400. Because the college did not file a
cross-appeal challenging the Superior Court's finding that a
contractual relationship existed between the parties, the Law
Court accepted this finding and affirmed the lower court's
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conclusion that the college's conduct did not constitute a breach
of contract. Id. at 401-02 & nn.2-3. Notably, the student urged
the Law Court to adopt language from Goodman — the very same
language that Montany relies on in this case — but it declined to
do so: "Because we affirm the trial court's finding regarding the
contractual relationship between [the student] and [the college]
under the facts of this case, we see no need to adopt a fixed
standard or standards governing the contractual relationship
between students and private colleges or universities." Id. at
401 n.2. Since Millien, Maine's highest court has not addressed
whether and to what extent a contractual relationship exists
between students and private colleges or universities.
Now Montany — who elected to bring this diversity action
in federal court instead of Maine state court — asks us to adopt
the very same "fixed standard or standards" that the Law Court
declined to adopt in Millien. But the cases upon which she relies
shed little light on whether the Law Court would hold that a
private university has the contractual relationship with students
that Montany alleges,11 and, in light of Millien, we are hesitant
11In addition to the Maine Superior Court decision in Millien
and the language from Goodman that the Law Court declined to adopt
in Millien, Montany relies on two decisions from the United States
District Court for the District of Maine — both of which predate
the Law Court's decision in Millien and involved situations where
the university did not contest that a contractual relationship
existed, see Gomes v. Univ. of Me. Sys., 304 F. Supp. 2d 117, 130
(D. Me. 2004); Tobin v. Univ. of Me. Sys., 59 F. Supp. 2d 87, 95
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to conclude that it would. After all, "we are reluctant to push
state law to new frontiers in a plaintiff-elected diversity action
where the state's [highest court] has evinced reluctance to take
the approach the diversity plaintiff proposes." Kelly v.
Marcantonio, 187 F.3d 192, 199 (1st Cir. 1999). Montany's breach-
of-contract theory "should have been directed to the state courts
in the first instance." Id. at 198-99. In the absence of authority
persuading us that such a contractual relationship exists under
Maine law, "we find no basis for [this aspect of Montany's
contract] claim." Nicolaci v. Anapol, 387 F.3d 21, 27 (1st Cir.
2004) (declining to recognize cause of action for common-law
indemnification under Massachusetts law where, as diversity
plaintiffs conceded, Massachusetts had never extended doctrine to
scenario of plaintiffs' case and cases cited by plaintiffs did not
support such extension). Therefore, summary judgment was
appropriate on this aspect of Montany's breach-of-contract claim.12
(D. Me. 1999) — and four decisions of this court — all but one of
which also predate Millien and all of which, in any event, apply
the substantive law of a state other than Maine, see Havlik v.
Johnson & Wales Univ., 509 F.3d 25, 34-35 (1st Cir. 2007) (applying
Rhode Island law, which recognizes "that parties to a contract act
pursuant to an implied duty of good faith and fair dealing");
Mangla v. Brown Univ., 135 F.3d 80, 83, 84 (1st Cir. 1998) (same);
Russell v. Salve Regina Coll., 890 F.2d 484, 487, 488 (1st Cir.
1989), rev'd 499 U.S. 225 (1991) (same); Cloud v. Trs. of Bos.
Univ., 720 F.2d 721, 724-25 (1st Cir. 1983) (applying Massachusetts
law).
12
Although the district court did not enter summary judgment
on this aspect of Montany's breach-of-contract claim on this
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CONCLUSION
For these reasons, we affirm the entry of summary
judgment in defendants' favor on Montany's negligence and breach-
of-contract claims.13 Each side shall bear its own costs.
precise ground, we are free to affirm the entry of summary judgment
on any ground apparent from the record. See Delgado Echevarría v.
AstraZeneca Pharm. LP, No. 15-2232, 2017 WL 1593474, at *3 (1st
Cir. May 2, 2017).
13We need not — and therefore do not — address UNE's argument
that the district court could have entered summary judgment on
Montany's breach-of-contract claim on the ground that she failed
to exhaust her internal remedies by failing to appeal her dismissal
to the Dean of UNE.
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