Source Production & Equipment Co., Inc. et al v. Schehr et al, No. 2:2016cv17528 - Document 97 (E.D. La. 2017)
Court Description: ORDER AND REASONS granting in part and denying in part 76 , 82 , 86 , 87 Motions to Dismiss defendant Kevin Schehr's counterclaims; The counterclaim for revendicatory relief against Dicharry and Kusy and the counterclaim for intentional interference with a contract against Kusy are DISMISSED WITHOUT PREJUDICE. Signed by Judge Sarah S. Vance on 12/28/2017. (blg)
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Source Production & Equipment Co., Inc. et al v. Schehr et al Doc. 97 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA SOURCE PRODUCTION & EQUIPMENT CO., INC., ET AL. CIVIL ACTION VERSUS NO. 16-17528 KEVIN J . SCHEHR, ISOFLEX USA, ISOFLEX RADIOACTIVE LLC, RICHARD H. McKANNAY, J R., AND J OHN DOES 1-10 SECTION “R” (1) ORD ER AN D REASON S Plaintiff Source Production & Equipm ent Co., Inc. and counterclaim defendants Richard Dicharry and Sandra Kusy each m ove to dism iss defendant Kevin Schehr’s counterclaim s. 1 For the following reasons, the Court grants in part and denies in part the m otions. I. BACKGROU N D Source Production & Equipm ent Co., Inc. (SPEC) and its affiliates brought this trade-secret m isappropriation and unfair com petition action against Kevin Schehr, Isoflex USA, Isoflex Radioactive LLC, and Richard 1 R. Docs. 76, 82, 86, 87. 1 Dockets.Justia.com McKannay, J r. 2 SPEC is a supplier of industrial and m edical radiography equipm ent and radioactive isotope m aterials. 3 Richard Dicharry is SPEC’s president and owner. 4 Schehr was an executive officer of SPEC until J uly 7, 20 16, when he was replaced by Sandra Kusy. 5 Three days later, on J uly 10 , Schehr was term inated. 6 Schehr’s relationship with Dicharry and SPEC deteriorated during the m onths leading up to Schehr’s term ination. For exam ple, according to Schehr, Dicharry had prom ised to give him a 10 % ownership interest in SPEC if Schehr facilitated the com pletion of the design of a new radiography system (Radiography Contract). 7 Schehr alleges that the design was com pleted, but that two weeks before Schehr’s termination Dicharry unreasonably refused to sign off on the new design. 8 SPEC and Dicharry also allegedly agreed to form a new com pany with Schehr and Dennis Chedraui (NEWCO Agreem ent). 9 Although the parties to the agreement allegedly 2 R. Doc. 33. A m ore in-depth discussion of the facts underlying plaintiffs’ complaint can be found in the Court’s order dated August 29, 20 17. See R. Doc. 53. 3 R. Doc. 33 at 8 ¶ 19. 4 R. Doc. 61 at 14 ¶ 68. 5 Id. at 2 ¶¶ 6-7. 6 Id. 7 Id. at 15 ¶ 73. 8 Id. at 16 ¶ 77. 9 Id. at 17 ¶ 82. 2 signed a letter of intent, and Dicharry and SPEC verbally obligated them selves to the term s of the NEWCO Agreement, Schehr asserts that Dicharry and SPEC failed to fulfill their obligations under the agreem ent. 10 According to Schehr, Kusy caused Dicharry and SPEC to breach these contracts by providing Dicharry with false inform ation about a conference Schehr attended and a conspiracy between Schehr and Chedraui. 11 Schehr alleges that upon his term ination, SPEC seized a thum b drive and pictures belonging to him . 12 SPEC allegedly obtained the password for Schehr’s personal em ail account from this thum b drive and accessed the account on November 10 , 20 16. 13 Schehr further alleges that Dicharry and Kusy both made defam atory statem ents about Schehr after his term ination. 14 Plaintiffs filed suit on December 12, 20 16, 15 and filed an am ended com plaint on April 4, 20 17. 16 The Court granted in part and denied in part defendants’ m otion to dism iss on August 29. 17 On Septem ber 12, Schehr answered the am ended com plaint and filed counterclaim s against SPEC. 18 10 11 12 13 14 15 16 17 18 Id. at 18 ¶¶ 87-88. R. Doc. 66 at 5 ¶¶ 17, 20 . R. Doc. 61 at 13 ¶ 62. Id. at 10 -11 ¶¶ 45-54. Id. at 4-9. R. Doc. 1. R. Doc. 33. R. Doc. 53. R. Docs. 60 -61. 3 Schehr then amended his counterclaim s to add Dicharry, Kusy, and unknown insurers of SPEC as counterclaim -defendants. 19 Schehr asserts counterclaim s for defam ation, invasion of privacy, and revendicatory relief against all counterclaim -defendants; breach of contract or detrimental reliance against SPEC, Dicharry, and the insurers; unpaid wages against SPEC and the insurers; and intentional interference with a contract against Kusy. SPEC, Dicharry, and Kusy now move to dism iss certain counterclaim s. 20 II. LEGAL STAN D ARD The Court applies the sam e test to a motion to dism iss a counterclaim as it does to a motion to dism iss a com plaint. To survive a Rule 12(b)(6) m otion to dism iss, a plaintiff m ust plead enough facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quoting Bell Atlantic Corp. v. Tw om bly , 550 U.S. 544, 547 (20 0 7)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the m isconduct alleged.” Id. at 678. A court m ust accept all well-pleaded 19 20 R. Doc. 66. R. Docs. 76, 82, 86, 87. 4 facts as true and m ust draw all reasonable inferences in favor of the plaintiff. Lorm and v. U.S. Unw ired, Inc., 565 F.3d 228, 239, 244 (5th Cir. 20 0 9). But the Court is not bound to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678. A legally sufficient com plaint m ust establish m ore than a “sheer possibility” that the plaintiff’s claim is true. Id. It need not contain detailed factual allegations, but it m ust go beyond labels, legal conclusions, or form ulaic recitations of the elements of a cause of action. Tw om bly , 550 U.S. at 555. In other words, the face of the com plaint m ust contain enough factual m atter to raise a reasonable expectation that discovery will reveal evidence of each elem ent of the plaintiff’s claim. Lorm and, 565 F.3d at 257. If there are insufficient factual allegations to raise a right to relief above the speculative level, Tw om bly , 550 U.S. at 555, or if it is apparent from the face of the com plaint that there is an insuperable bar to relief, Jones v. Bock, 549 U.S. 199, 215 (20 0 7); Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 20 0 7), the claim m ust be dism issed. III. D ISCU SSION SPEC, Dicharry, and Kusy m ove to dism iss Schehr’s counterclaim s for defam ation and invasion of privacy. Dicharry and Kusy move to dism iss the 5 counterclaim for revendicatory relief. SPEC and Dicharry m ove to dism iss the counterclaim for breach of contract or detrim ental reliance. Finally, Kusy m oves to dism iss the counterclaim for intentional interference with a contract. The Court addresses each counterclaim in turn. A. D e fam atio n Under Louisiana law, “[i]n order to prevail in a defam ation action, a plaintiff m ust necessarily prove four elements: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury.” Fitzgerald v. Tucker, 737 So. 2d 70 6, 715 (La. 1999). “In other words, a plaintiff m ust prove ‘that the defendant, with actual m alice or other fault, published a false statement with defam atory words which caused plaintiff dam ages.’” Id. (quoting Trentecosta v. Beck, 70 3 So.2d 552, 559 (La. 1997)). Schehr’s defam ation claim alleges three sets of defam atory statements. First, Kusy and Dicharry, acting in their capacity as SPEC em ployees, allegedly defamed Schehr to other SPEC em ployees. 21 Second, Kusy and Dicharry, again acting in their capacity as SPEC em ployees, allegedly m ade defam atory statements about Schehr to Keith Frazier, a former SPEC 21 R. Doc. 61 at 4-6 ¶¶16-26. 6 em ployee. 22 Third, Dicharry authorized SPEC to file letters with regulatory agencies concerning violations of environm ental regulations; according to Schehr, these letters falsely asserted that Schehr was responsible for these violations. 23 SPEC, Dicharry, and Kusy first argue that the allegedly defam atory statements m ade to other SPEC em ployees do not satisfy the publication requirement under Louisiana law. Louisiana appellate courts have held that “an intra-corporate com m unication am ong officers or agents of the same corporation, in connection with their duties for the corporation, are a com m unication of the corporation,” not a publication to a third party. W isner v. Harvey , 694 So. 2d 348, 350 (La. App. 1 Cir. 1996) (citing Com m ercial Union Ins. Co. v. Meliky an, 424 So. 2d 1114, 1115 (La. App. 1 Cir. 1982)); accord Doe v. Grant, 839 So. 2d 40 8, 416 (La. App. 4 Cir. 20 0 3); Bell v. Rogers, 698 So. 2d 749, 756 (La. App. 2 Cir. 1997). This intra-corporate com m unication rule is based on Cangelosi v. Schw egm ann Bros. Giant Super Markets, 390 So. 2d 196 (La. 1980 ). The plaintiff in Cangelosi, who was a cashier, alleged that her supervisors falsely accused her of altering a check. Id. at 197. This accusation took place during a m eeting with the 22 23 Id. at 4 ¶ 17, 6 ¶ 27. Id. at 6-8 ¶¶ 28-37. 7 plaintiff’s supervisors. Id. Because the only people present were the plaintiff and “supervisory personnel essential to the investigation,” the Louisiana Suprem e Court held that statements m ade by these supervisors during the m eeting were not published to a third party. Id. at 198. Schehr argues that Cangelosi lim its the intra-corporate com m unication rule to statements m ade by supervisors to other supervisors. 24 According to Schehr, Kusy defamed Schehr at two com panywide m eetings—not just am ong other officers. Thus, Schehr argues that the intra-corporate com m unication rule does not apply. Because state law provides the rule of decision for this counterclaim , the Court m ust apply the law as interpreted by the state’s highest court. See FDIC v. Abraham , 137 F.3d 264, 267-68 (5th Cir. 1998). When there is no ruling by the state’s highest court, a federal court m ust m ake an Erie guess as to how the state’s highest court would decide the issue. Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 468 (5th Cir. 20 0 4). Based on the state appellate court cases cited earlier, the Court finds that the Louisiana Supreme Court would not lim it the intra-corporate com m unication rule to statements m ade by supervisors to other supervisors. Federal courts in this Circuit are in accord. In an unpublished decision, the 24 R. Doc. 81 at 9. 8 Fifth Circuit noted that “an intra-corporate com munication am ong em ployees within the course and scope of their em ploym ent” does not satisfy the publication requirem ent. Ioppolo v. Rum ana, 581 F. App’x 321, 329 (5th Cir. 20 14). The court applied the intra-corporate com munication rule to a professional organization’s distribution of a professional m isconduct report to its entire m em bership—not just the organization’s leadership. Id. District courts in this Circuit have also applied the intra-corporate com m unication rule to statem ents m ade to non-supervisors within an organization. See, e.g., W alter v. BP Am ., Inc., No. 12-177, 20 14 WL 1796676, at *34 (E.D. La. May 6, 20 14) (“[A]ny statem ents exchanged between BP em ployees during the two investigations of plaintiff’s conduct and in conjunction with the term ination of his em ploym ent are intracorporate com munications, which do not constitute publication to a third party under Louisiana defam ation law.”); Marshall v. Circle K Corp., 715 F. Supp. 1341, 1343 n.2 (M.D. La. 1989) (granting sum m ary judgment to defendant because there was “no evidence in the record to indicate that the [allegedly defam atory statem ent] was circulated outside the defendant corporation”). Indeed, Schehr does not point to any court that has adopted its proposed lim itation on the scope of Cangelosi. 9 The Court finds that, based on the intra-corporate com m unication rule, Schehr has not alleged publication of Dicharry’s and Kusy’s allegedly defam atory statements to other SPEC em ployees. Kusy allegedly defamed Schehr by telling SPEC em ployees at com panywide meetings that SPEC would not give Christm as bonuses in 20 16 because of Schehr’s em bezzlement. 25 Dicharry’s allegedly defam atory statem ent to other SPEC em ployees consisted of an accusation that Schehr sabotaged a package. 26 By Schehr’s own allegations, these statem ents “were m ade within the course and scope of their duties as employees of SPEC.”27 Such com m unications do not constitute publication to a third party. See W isner, 694 So. 2d at 350 . Thus, Schehr fails to state a defam ation claim based on statem ents m ade by Dicharry and Kusy to other SPEC employees. Regarding the second set of allegedly defam atory statements, SPEC and Dicharry do not contest that Schehr states a claim for defam ation based on statements m ade to Frazier, a form er SPEC employee. 28 Kusy fails to address this basis for defamation, apparently assum ing that it does not apply 25 26 27 28 R. Doc. 61 at 4 ¶¶ 16, 18. Id. ¶ 17. R. Doc. 8 at ¶ 39. R. Doc. 76-1 at 8 n.2; R. Doc. 86-1 at 9 n.2. 10 to her. 29 Schehr’s counterclaim does state that Kusy (and Dicharry) told Frazier in the fall of 20 16 that Schehr had sabotaged a package. 30 The paragraph in which this allegation appears does not state that Frazier was a form er employee. But a later paragraph, involving allegedly defam atory statements m ade by Dicharry (but not Kusy) to Frazier, does state that Frazier was a former SPEC em ployee. 31 Frazier m ay have left SPEC between when these allegedly defam atory statem ents were m ade. But at the m otion to dism iss stage, Schehr is entitled the benefit of a doubt, and the Court m ust draw all reasonable inferences in his favor. The Court finds it reasonable to infer that Frazier was a form er employee at both tim es when Dicharry and Kusy made allegedly defamatory statem ents to him . Indeed, both sets of statements necessarily were m ade after Schehr’s term ination in J uly 20 16. Thus, Schehr states a claim for defam ation against SPEC, Dicharry, and Kusy based on statements m ade to Frazier. Regarding the third set of allegedly defam atory statements, SPEC and Dicharry argue that SPEC’s letters to regulatory agencies are conditionally 29 Kusy states: “Schehr’s counterclaim for defam ation against Ms. Kusy relies solely upon statem ents m ade by Ms. Kusy to SPEC em ployees . . . .” R. Doc. 87-1 at 5. 30 R. Doc. 61 at 4 ¶ 17. 31 Id. at 6 ¶ 27. According to Schehr, Dicharry defam ed him by attributing his term ination to theft and embezzlem ent from SPEC. Id. at 5 ¶ 20 . 11 privileged. 32 Under Louisiana law, “privilege is a defense to a defam ation action.” Kennedy v. Sheriff of E. Baton Rouge, 935 So. 2d 669, 681 (La. 20 0 6). As such, dism issal of the counterclaim is appropriate only if the conditional privilege “appears clearly on the face of the pleadings.” Clark v. Am oco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986). The doctrine derives from the policy consideration “that som etim es, . . . in order to encourage the free comm unication of views in certain defined instances, one is justified in com m unicating defam atory information to others without incurring liability.” Id. Louisiana courts engage in a two-step process to determ ine whether a conditional privilege exists. Id. at 682. “First, it m ust be determ ined whether the attending circum stances of a com m unication occasion a qualified privilege. The second step of the analysis is a determ ination of whether the privilege was abused, which requires that the grounds for abuse—m alice or lack of good faith—be exam ined.” Id. (citation om itted). SPEC and Dicharry point to a conditional privilege for “statement[s] to a state agency with a legitim ate interest in the subject m atter [that are] relevant to the subject m atter of the [agency’s] inquiry.” Fisher v. ASI Fed. Credit Union, 223 So. 3d 779, 784 (La. App. 5 Cir. 20 17). Sim ilarly, the Louisiana Supreme Court has recognized a conditional privilege for 32 R. Doc. 76-1 at 5; R. Doc. 86-1 at 6. 12 “com m unications of alleged wrongful acts to the officials authorized to protect the public from such acts.” Kennedy , 935 So. 2d at 683. The Court finds that this conditional privilege does not so clearly apply to SPEC’s allegedly defam atory letters to regulatory agencies as to justify dism issal under Rule 12(b)(6). Notifying the Nuclear Regulatory Com m ission and the Louisiana Departm ent of Environm ental Quality of noncom pliance with environm ental regulations would seem to be conditionally privileged under Louisiana law; such notification would be reasonably necessary to protect the environm ent and the public. But Schehr alleges that Dicharry told the agencies that Schehr deliberately ordered violations of a used radiography source import regulation. 33 Schehr alleges both the falsity of this statement and Dicharry’s and SPEC’s knowledge, or reckless disregard, of its falsity. 34 Specifically, Schehr alleges that Dicharry himself, not Schehr, was responsible for ensuring com pliance with environm ental regulations. 35 This factual content does not necessarily establish knowledge, or reckless disregard, of the statement’s falsity. But it does support the plausible inference that if the statement in the letters were untrue, then because of Dicharry’s 33 34 35 R. Doc. 61 at 6-7 ¶ 29. Id. at 7 ¶ 32. Id. ¶¶ 30 -31. 13 responsibilities, Dicharry and SPEC either knew the statem ent was untrue or they were in reckless disregard of its falsity. Thus, Schehr’s allegations support a plausible inference that the allegedly defam atory statem ents in SPEC’s letters to regulatory agencies were m ade in bad faith, and no conditional privilege clearly appears on the face of the counterclaim . Schehr states a claim for defam ation against SPEC and Dicharry based on allegedly defam atory statements m ade in SPEC’s letters to regulatory agencies. B. In vas io n o f Privacy Schehr’s invasion of privacy counterclaim alleges that a SPEC em ployee accessed Schehr’s private email account without his perm ission on November 10 , 20 16. 36 Schehr asserts violations of both Louisiana com m on law and the Louisiana Personal Online Account Privacy Protection Act, La. R.S. § 51:1951 et seq. 37 Dicharry and Kusy argue that the com m on law invasion of privacy counterclaim against them should be dism issed because their alleged involvem ent in accessing Schehr’s email account is speculative. 38 Schehr alleges that his em ail account was accessed “on a com puter on SPEC’s 36 Id. at 10 -11 ¶¶ 45-54. Id. at 9 ¶ 44. 38 R. Doc. 86-1 at 11 n.3; R. Doc. 87-1 at 7 n.1. SPEC does not seek to dism iss Schehr’s com m on law invasion of privacy counterclaim . R. Doc. 761 at 9 n.2. 14 37 prem ises by a SPEC em ployee, including but not lim ited to Mr. Dicharry and/ or Ms. Kusy.”39 Given Dicharry’s and Kusy’s leadership roles in SPEC, and their alleged relationship with Schehr, it is not speculative to infer that one or both of them accessed Schehr’s em ail account from SPEC’s offices. Moreover, the case cited by Dicharry and Kusy—Christensen v. W MA Consum er Services, Inc., No. 0 3-1545, 20 0 3 WL 22174240 (E.D. La. Sept. 5, 20 0 3)—concerned heightened pleading requirements under Federal Rule of Civil Procedure 9(b). Thus, the Court will not dism iss Schehr’s comm on law invasion of privacy counterclaim against SPEC, Dicharry, and Kusy. SPEC, Dicharry, and Kusy next argue that Schehr fails to state a claim for statutory invasion of privacy because the Personal Online Account Privacy Protection Act applies only to em ployers and educational institutions. 40 While the Act clearly applies only to em ployers and educational institutions, see La. R.S. §§ 15:1953-54, Schehr argues that the Act provides continuing protection to em ployees even after their term ination. 41 Schehr’s argument lacks support in the statutory text. The Act prohibits employers from accessing the personal online account of an em ployee or applicant for em ployment under certain circum stances. Id. § 39 40 41 R. Doc. 61 at 11 ¶ 54. R. Doc. 76-1 at 8; R. Doc. 86-1 at 10 ; R. Doc. 87-1 at 7. R. Doc. 81 at 10 . 15 15:1953. But the Act does not m ention form er em ployees. To the contrary, one part of the Act’s definition of “personal online account” explicitly refers to accounts m ade “by a current em ployee, applicant for em ployment,” or others covered by the Act (nam ely, students). Id. § 15:1592(4) (emphasis added). 42 Because Schehr was not an em ployee of SPEC in November 20 16 when his em ail account allegedly was accessed without his perm ission, he fails to state a claim under the Personal Online Account Privacy Protection Act. C. Re ve n d icato ry Re lie f Under Louisiana law, “[t]he owner of a thing is entitled to recover it from anyone who possesses or detains it without right” by means of a revendicatory action. La. Civ. Code art. 526 & cm t. An owner can seek to 42 In full, this definition reads: “Personal online account” m eans an online account that the em ployee, applicant for em ploym ent, student, or prospective student uses exclusively for personal com m unications unrelated to any business purpose of the em ployer or educational institution. A personal online account does not extend to any account or profile created, serviced, m aintained, used, or accessed by a current em ployee, applicant for em ploym ent, student, or prospective student for either business purposes of the em ployer or educational institution or to engage in businessrelated com m unications. La. R.S. § 15:1592(4). 16 recover property only from those who possess it. See Gibbs v. Harris, 799 So. 2d 665, 670 (La. App. 2 Cir. 20 0 1). Schehr’s counterclaim for revendicatory relief asserts that SPEC seized and continues to possess a thum b drive and pictures belonging to Schehr. 43 As with Schehr’s invasion of privacy counterclaim , Dicharry and Kusy argue that the counterclaim for revendicatory relief lacks specific allegations against them. 44 Indeed, Schehr does not allege that either Dicharry or Kusy currently possesses his thum b drive and pictures. Schehr m erely alleges that “SPEC and its agents and/ or em ployees continue to im properly detain and possess” these things. 45 This allegation does not even nam e Dicharry and Kusy, and fails to state a claim for revendicatory relief against them . Thus, Schehr’s counterclaim for revendicatory relief against Dicharry and Kusy m ust be dism issed. D. Bre ach o f Co n tract an d D e trim e n tal Re lian ce To state a claim for breach of contract under Louisiana law, a plaintiff m ust allege “(1) the obligor’s undertaking an obligation to perform , (2) the obligor failed to perform the obligation (the breach), and (3) the failure to 43 R. Doc. 61 at 13 ¶¶ 60 -64. R. Doc. 86-1 at 11; R. Doc. 87-1 at 8. SPEC does not seek to dism iss Schehr’s counterclaim for revendicatory relief. 45 R. Doc. 61 at 13 ¶ 63. 17 44 perform resulted in dam ages to the obligee.” Favrot v. Favrot, 68 So. 3d 10 99, 110 8-0 9 (La. App. 4 Cir. 20 11). To state a claim for detrimental reliance, a party m ust allege: “(1) a representation by conduct or word; (2) justifiable reliance; and (3) a change in position to one’s detriment because of the reliance.” Suire v. Lafay ette City -Par. Consol. Gov’t, 90 7 So. 2d 37, 59 (La. 20 0 5). The doctrine is “designed to prevent injustice by barring a party from taking a position contrary to his prior acts, adm issions, representations, or silence.” Id. But claim s of detrim ental reliance are “not favored in Louisiana,” and “m ust be exam ined carefully and strictly.” In re Ark-La-Tex Tim ber Co., 482 F.3d 319, 334 (5th Cir. 20 0 7). Schehr alleges three instances of breach of contract or detrim ental reliance. First, Schehr alleges that Dicharry did not give Schehr a 10 % ownership interest in SPEC as required under the Radiography Contract. 46 Second, Schehr alleges that Dicharry and SPEC did not fulfill their obligations under the NEWCO Agreem ent. 47 Third, Dicharry allegedly prom ised to nam e Schehr as a beneficiary in his will, which led Schehr to choose not to take over his father’s business. 48 46 47 48 Id. at 15-16 ¶¶ 73-80 . Id. at 17-18 ¶¶ 82-88. Id. at 18 ¶ 90 . 18 Schehr’s allegations regarding the Radiography Contract m ake out a claim for breach of contract, but not detrim ental reliance. According to Schehr, Dicharry prom ised to give him a 10 % ownership interest in SPEC in exchange for Schehr’s facilitating the design of a new radiography system . 49 Schehr alleges that the design team completed a prototype of the new system, but Dicharry unreasonably refused to sign off on it at a m eeting two weeks before Schehr’s term ination, and refused to give Schehr the prom ised ownership interest. 50 These facts suffice to support the inference that Dicharry breached an obligation to Schehr. See Knecht v. Bd. of Trs. for State Colls. & Univs. & N w . State Univ., 591 So. 2d 690 , 695 (La. 1991) (approving of the principle “that when an em ployer prom ises a benefit to em ployees, and employees accept by their actions in m eeting the conditions, the result is not a m ere gratuity or illusory prom ise but a vested right in the em ployee to the prom ised benefit”). SPEC and Dicharry’s arguments to the contrary are meritless. First, they argue that Schehr fails to establish the com pletion of the new radiography system , noting that the design team com pleted only a prototype. 51 But it is not Schehr’s burden at the motion to dism iss stage to 49 50 51 Id. at 15 ¶ 73. Id. ¶¶ 77, 80 . R. Doc. 76-1 at 10 ; R. Doc. 86-1 at 16. 19 establish the fulfillm ent of his obligation under the Radiography Contract. It is enough to allege, as he does, that he did in fact facilitate the com pletion of the design of the new radiography system . Second, SPEC and Dicharry argue that Schehr fails to show how Dicharry breached the Radiography Contract, and which provision of the contract Dicharry breached. 52 But Schehr clearly alleges that Dicharry breached a key term of the contract by not giving him a 10 % ownership interest in SPEC. Thus, Schehr states a claim for breach of contract based on the Radiography Contract. Schehr does not allege that he changed his position because of the Radiography Contract. For this reason, Dicharry’s alleged breach of this contract does not give rise to a detrim ental reliance claim . Schehr’s allegations regarding the NEWCO Agreem ent do not state a claim for either breach of contract or detrim ental reliance. While Schehr does allege that Dicharry and SPEC verbally obligated them selves to the term s of the NEWCO Agreem ent, 53 Schehr does not allege how Dicharry and SPEC then breached the agreement. The vague assertion that “Mr. Dicharry and SPEC have failed to fulfill their obligations under . . . the NEWCO Agreement”54 does not raise a right to relief for breach of contract above the 52 53 54 R. Doc. 76-1 at 12; R. Doc. 86-1 at 17. R. Doc. 61 at 18 ¶ 87. Id. ¶ 88. 20 speculative level. See Tw om bly , 550 U.S. at 555. Schehr also fails to allege that he changed his position because of the NEWCO Agreement, and therefore fails to make out a detrimental reliance claim on this basis. Finally, Schehr’s allegations regarding Dicharry’s prom ise to nam e him a beneficiary in his will do not state a claim for either breach of contract or detrim ental reliance. Under Louisiana law, contracts regarding a living person’s succession are not enforceable. See La. Civ. Code art. 1976 (“The succession of a living person m ay not be the object of a contract other than an antenuptial agreement.”). A Louisiana court of appeal has held that because a claim ant m ay not rely on a written contract regarding another’s succession, the claim ant “certainly is not justified in relying on only her oral prom ise.” Kibbe v. Lege, 60 4 So. 2d 1366, 1371 (La. App. 3 Cir. 1992). Thus, even if Schehr did rely to his detriment on Dicharry’s prom ise to name him a beneficiary in his will, this reliance was not justified. See id. In sum , the only valid basis for Schehr’s breach of contract claim is SPEC’s and Dicharry’s alleged breach of the Radiography Contract. Schehr does not state a valid claim for detrim ental reliance on any basis. E. In te n tio n al In te rfe re n ce w ith a Co n tract Schehr’s counterclaim for intentional interference with a contract asserts that Kusy interfered with Schehr’s employment contract with SPEC, 21 the Radiography Contract, and the NEWCO Agreem ent. 55 Louisiana law recognizes a narrow cause of action for intentional interference with a contract. In 9 to 5 Fashions, Inc. v. Spurney , 538 So. 2d 228 (La. 1989), the Louisiana Supreme Court held that an action for tortious interference with a contract could be m aintained against a corporate officer if a plaintiff had a contract or legally protected interest with the officer’s corporation, the officer knew of the contract, and the officer intentionally and without justification caused the corporation to breach the contract and dam age the plaintiff. Id. at 234. Louisiana courts have not expanded the lim ited scope of Spurney to other situations. See Petrohaw k Props., L.P. v. Chesapeake La., L.P., 689 F.3d 380 , 395 (5th Cir. 20 12) (discussing “the lim ited nature of Louisiana’s claim for tortious interference with a contract”). Schehr’s counterclaim for intentional interference with a contract fails to state a claim for two reasons. First, Schehr does not allege that Kusy was an officer of SPEC when she allegedly interfered with these contracts. According to Schehr, Kusy became an officer of SPEC only on J uly 7, 20 16— three days before Schehr’s term ination—when she replaced him as General Manager, Vice-President, and Director. 56 Thus, Kusy was not an officer 55 56 R. Doc. 66 at 4-5 ¶¶ 12-20 . R. Doc. 61 at 2 ¶ 7; R. Doc. 66 at 4 ¶ 12. 22 when Dicharry and SPEC allegedly breached the Radiography Contract two weeks before Schehr’s term ination. Second, as explained earlier, Schehr does not sufficiently allege how Dicharry and SPEC breached the NEWCO Agreement. Nor does Schehr explain how SPEC breached his em ploym ent contract. To infer that Kusy interfered with these contracts after J uly 7 and that this interference caused Dicharry and SPEC to breach these contracts in some unspecified way would be pure speculation. Because Schehr’s allegations do not raise a right to relief for intentional interference with a contract above the speculative level, the counterclaim m ust be dism issed. IV. CON CLU SION For the foregoing reasons, the Court GRANTS in part and DENIES in part the m otions to dism iss Schehr’s counterclaim s. The counterclaim for revendicatory relief against Dicharry and Kusy and the counterclaim for intentional interference with a contract against Kusy are DISMISSED WITHOUT PREJ UDICE. New Orleans, Louisiana, this _ _ _ _ _ day of Decem ber, 20 17. 28th _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 23
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