                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-2302


WENDELL E. WHYE; WILLIAM H. TROUT, Individually             and    on
behalf of a class of persons similarly situated,

                Plaintiffs – Appellants,

          v.

CONCENTRA HEALTH SERVICES, INC.,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Ellen L. Hollander, District Judge.
(1:12-cv-03432-ELH)


Submitted:   August 29, 2014             Decided:     September 10, 2014


Before KING and    AGEE,   Circuit    Judges,   and    HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Cyril V. Smith, William K. Meyer, Adam B. Abelson, ZUCKERMAN
SPAEDER LLP, Baltimore, Maryland; Julie C. Janofsky, FEDDER &
JANOFSKY LLC, Baltimore, Maryland, for Appellants. Catherine A.
Hanrahan, David M. Ross, WILSON ELSER MOSKOWITZ EDELMAN & DICKER
LLP, Washington, D.C.; Shadonna E. Hale, WILSON ELSER MOSKOWITZ
EDELMAN & DICKER LLP, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Wendell        Whye   and        William          Trout     (“Plaintiffs”),

individually       and   on   behalf     of       a   class    of     similarly    situated

individuals, filed a putative class action lawsuit in Maryland

circuit      court       against       Concentra             Health     Services,        Inc.

(“Concentra”), asserting Maryland tort claims for intrusion upon

seclusion and fraud based on allegedly unlawful breath alcohol

testing      Concentra      conducted      on         Plaintiffs       and     other    class

members.      After Concentra removed the case to federal district

court on the basis of diversity jurisdiction, the district court

granted Concentra’s motion to dismiss the complaint for failure

to   state    a    claim.      Plaintiffs             now    appeal,    challenging       the

dismissal     of    both    claims.       For         the    reasons    that    follow,    we

affirm.

             We review de novo a district court’s dismissal of a

complaint for failure to state a claim.                         Philips v. Pitt Cnty.

Mem. Hosp., 572 F.3d 176, 179-80 (4th Cir. 2009).                              In ruling on

a Fed. R. Civ. P. 12(b)(6) motion to dismiss, the court is

required     to    “accept    as   true       all      of    the    factual     allegations

contained in the complaint and draw all reasonable inferences in

favor   of    the    plaintiff.”          Kensington           Volunteer       Fire    Dep’t,

Inc. v. Montgomery Cnty., Md., 684 F.3d 462, 467 (4th Cir. 2012)

(internal quotation marks omitted).                         A motion to dismiss “does

not resolve contests surrounding facts, the merits of a claim,

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or the applicability of defenses.”                       Tobey v. Jones, 706 F.3d

379, 387 (4th Cir. 2013) (internal quotation marks omitted).                               To

survive    a    Rule     12(b)(6)     motion,        the    complaint       must    allege

sufficient      facts       “to    raise     a     right    to     relief     above       the

speculative      level”     and     “to    state     a   claim   to   relief       that    is

plausible on its face.”              Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555, 570 (2007).               However, the court need not consider

“legal    conclusions,       elements       of   a   cause    of    action,    and    bare

assertions      devoid      of    further    factual       enhancement,”      or    accept

“unwarranted           inferences,          unreasonable           conclusions,            or

arguments.”      Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,

591 F.3d       250,   255    (4th    Cir.    2009)       (internal    quotation       marks

omitted).

            Under Maryland law, the tort of intrusion on seclusion

is defined as “[t]he intentional intrusion upon the solitude or

seclusion of another or his private affairs or concerns that

would be highly offensive to a reasonable person.”                          Mitchell v.

Balt. Sun Co., 883 A.2d 1008, 1022 (Md. Ct. Spec. App. 2005)

(internal quotation marks omitted); see Restatement of Torts 2d,

§ 652B (1977).         “[T]he gist of the offense is the intrusion into

a private place or the invasion of a private seclusion that the

plaintiff has thrown about his person or affairs.”                          Pemberton v.

Bethlehem Steel Corp., 502 A.2d 1101, 1116 (Md. Ct. Spec. App.

1986).      An actionable tort requires both that “the intrusion

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must be something which would be offensive or objectionable to a

reasonable     man,”       and    that     “the      thing       into   which      there     is

intrusion or prying must be, and be entitled to be, private.”

Hollander     v.    Lubow,       351    A.2d    421,   426       (Md.   1976)      (internal

quotation     marks       omitted)      (relying     on    W.     Prosser,      The    Law   of

Torts 807-08 (4th ed. 1971)), superseded on other grounds as

stated in Hartford Ins. Co. v. Manor Inn of Bethesda, Inc., 642

A.2d 219 (Md. 1994).

             Plaintiffs first assert that the district court erred

in    dismissing       their      intrusion         upon       seclusion       claim    after

determining        that    they    could        neither        establish    a    reasonable

expectation       of   privacy     in    their      breath,       nor   that    the    breath

testing was highly offensive to a reasonable person.                                  We have

reviewed the district court’s careful discussion of this issue

and   find   no     reversible         error.       Importantly,        even     accepting,

without      deciding,       Plaintiffs’            argument       that     they       had   a

reasonable expectation of privacy in their breath, we conclude,

for the reasons stated by the district court, that Plaintiffs

cannot establish that the breath testing was highly offensive to

a reasonable person as a matter of law.                          Thus, we conclude the

district court did not err in dismissing this claim.

             Turning to the fraud claim, a plaintiff must plead the

circumstances constituting fraud with particularity.                               See Fed.

R.    Civ.   P.     9(b).         To     establish         a    claim     for    fraudulent

                                                4
misrepresentation, the plaintiff must demonstrate that (1) “the

defendant made a false representation to the plaintiff,” (2) the

defendant    knew    the    misrepresentation          was    false,    or    made    the

misrepresentation         with    reckless     indifference      to    its    truth    or

falsity, (3) the defendant made the misrepresentation “for the

purpose of defrauding the plaintiff,” (4) the plaintiff relied,

and had a right to rely, on the misrepresentation, and (5) the

plaintiff     suffered      compensable         damages      resulting       from     the

misrepresentation.         Hoffman v. Stamper, 867 A.2d 276, 292 (Md.

2005).      A “false representation” is defined as “a statement,

conduct, or action that intentionally misrepresents a material

fact.”   Sass v. Andrew, 832 A.2d 247, 260 (Md. Ct. Spec. App.

2003); see also Fowler v. Benton, 185 A.2d 344, 349 (Md. 1962)

(defining false representation as “anything short of a warranty

which produces upon the mind a false impression conducive to

action”).     A fact is material if a reasonable person would rely

upon it in making a decision or if the maker knows the specific

recipient    of     the    fact    would      likely   consider        it    important.

Gross v. Sussex Inc., 630 A.2d 1156, 1161 (Md. 1993).

            “A    statement       that   is    vague    and    indefinite       in    its

nature and terms cannot support a cause of action for fraud.”

Lasater v. Guttmann, 5 A.3d 79, 103 (Md. Ct. Spec. App. 2010)

(internal quotation marks omitted).                “[M]ere vague, general, or

indefinite statements . . . should, as a general rule, put the

                                           5
hearer upon inquiry, and there is no right to rely upon such

statements.”         Goldstein v. Miles, 859 A.2d 313, 332 (Md. Ct.

Spec. App. 2004) (internal quotation marks omitted).

             Plaintiffs       assert   that       the   district      court    erred    in

concluding that they failed to adequately plead any of the four

elements of fraud.           We find Plaintiffs’ arguments unpersuasive,

in   light    of    the    district    court’s       thorough       treatment    of    the

issue.       Moreover,      even    assuming,       without    deciding,       that    the

district court incorrectly determined that Plaintiffs failed to

adequately      plead      scienter,    we       conclude    that    they     failed    to

adequately      allege      the    remaining      elements    of     fraud,     for    the

reasons stated by the district court.                    Therefore, the district

court did not reversibly err in dismissing this claim.

             Accordingly, we affirm the district court’s judgment.

We   dispense      with    oral    argument       because    the     facts    and   legal

contentions        are    adequately   presented        in   the    materials       before

this court and argument would not aid the decisional process.



                                                                                AFFIRMED




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