Orbit Corp et al v. FedEx Ground Package System, Inc., No. 2:2014cv00607 - Document 20 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION AND ORDER: granting in part and denying in part 6 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 10 Motion to Strike ; granting in part and denying in part 14 Motion to Amend/Correct. The Court GRANTS in part, and DENIES in part, Defendant's motion to strike Plaintiffs' brief in opposition. ECF No. 10. Similarly, the Court GRANTS in part, and DENIES in part, Plaintiffs' motion for leave to file an amended brief. EC F No. 14. At Plaintiffs request, Counts I, II, VI and VII of the amended complaint are deemed WITHDRAWN, and Plaintiffs are foreclosed from pursuing further relief on such grounds. Similarly, to the extent any of Plaintiffs' remaining allegatio ns can be interpreted as advancing a claim for "wrongful termination" of the Operating Agreement, such allegations are deemed WITHDRAWN, and Plaintiffs are foreclosed from pursuing further relief on such theory. As to the remaining Counts i n the amended complaint, Defendant's 12(b)(6) motion to dismiss for failure to state a claim is GRANTED as to Counts IV, V, IX, X and XI. ECF No. 6. Furthermore, Defendant's 12(b)(6) motion is GRANTED in part, and DENIED in part, as to Coun ts III and VIII. The partial dismissal of Count III, and the dismissal of Counts IV and V are with prejudice. The partial dismissal of Count VIII and the dismissal of Counts IX, X, and XI are without prejudice to Plaintiffs' right to file a form al motion seeking leave to file a second amended complaint. If Plaintiffs elect to file such a motion, it shall be filed no later than August 7, 2015, and should be accompanied by a supporting brief, which includes as an exhibit Plaintiffs' prop osed second amended complaint. If Plaintiffs elect not to pursue further amendment within the time-period set forth herein, the partial dismissal of Count VIII and the dismissal of Counts IX, X and XI shall become dismissals with prejudice, and Defendant shall have until August 21, 2015, to file a responsive pleading. Signed by District Judge Mark S. Davis on 7/30/2015. (bgra)
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Orbit Corp et al v. FedEx Ground Package System, Inc. UNITED Doc. 20 STATES EASTERN DISTRICT DISTRICT OF FILED COURT VIRGINIA Norfolk Division JUL 3 0 2015 ORBIT CORP, CLE«M^5isTRTcTcouRT and GARY SIMON, Plaintiffs, Civil v. FEDEX GROUND INC., PACKAGE No. 2:14cv607 SYSTEM, d/b/a FEDEX HOME DELIVERY, Defendant. MEMORANDUM This filed matter by FedEx is before Ground OPINION the AND Court Package ORDER on System, a motion Inc., to dismiss, ("Defendant" or "FedEx") pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Court are Procedure. two associated ECF No. motions 6. Also pending before addressing the fact that the the brief in opposition to dismissal filed by Orbit Corp ("Orbit") and Gary Simon ("Simon," and collectively with Orbit, "Plaintiffs") exceeds the page limit established by this Court's local rules. ECF Nos. 10, 14; see E.D. Va. Loc. Civ. R. 7(F)(3) (limiting responsive briefs to thirty pages). As briefing dispute, to the initial brief consistent the Court accepts in opposition to the motion with Plaintiffs' proposed Plaintiffs' to dismiss; amended brief, however, the Court Dockets.Justia.com will not consider the pages in the original brief presenting a detailed recitation of the facts. on the facts complaint. incorporated Instead, by reference Such ruling GRANTS in part, Defendant's motion to strike, the Court will rely ECF No. from the amended and DENIES in part, 10, and Plaintiffs' both motion for leave to file an amended brief, ECF No. 14.x I. Factual and Procedural Background As alleged in Plaintiffs' amended complaint, Orbit is a Virginia corporation which owns and operates trucking equipment. Am. Compl. H 1, ECF No. 3. and acted as a FedEx November 2011 Delaware corporation Pennsylvania. through through driver May with performing 2013. its Id. 2012, FedEx and Orbit the president Gary vigorously dispute parties' other from FedEx place business of is a in Simon, business drivers, 1 The Court reaches whether relationship "employees" of such resolution, entered into a written whereby FedEx hired Orbit, to services of FedEx packages in Virginia. parties deliveries Defendant principle ("the Operating Agreement") its home Id. U 2. In April of contract Gary Simon is the president of Orbit the perform Id. home HH 7, delivery 30-35. Operating Agreement rendered Simon, FedEx or The and and Orbit's "independent as opposed to merely accepting Plaintiffs' proposed amended brief, because such amended brief includes changes to the "Argument" section. Although such changes appear to be minor, because Defendant has not had an opportunity to respond to such modified argument, the Court considers the argument section of Plaintiffs' original brief. contractors." Plaintiffs' alternatively seeks relief amended complaint, however, irrespective of which classification is deemed to apply. Defendant Rule 12(b)(1) Procedure. counts and the Rule instant motion 12(b)(6) of the to dismiss Federal pursuant Rules of to Civil Plaintiffs opposed dismissal of the majority of the in withdraw filed the amended Counts I, complaint, II, VI, and but affirmatively VII. ECF No. moved 9, at to 33. Defendant's motion is fully briefed and ripe for review. II. Standard of Review A. Subject Matter Jurisdiction - Rule 12(b)(1) A party may, at any time, move to dismiss an action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). The party asserting jurisdiction "has the burden of proving that subject matter jurisdiction exists." Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). B. Plausible Right to Relief - Rule 12(b)(6) Federal Rule of of a complaint, or Civil Procedure 12(b)(6) a claim within a permits dismissal complaint, based on the plaintiff's "failure to state a claim upon which relief can be granted." Fed. R. Civ. pursuant to Rule 12(b) (6) 8(a)(2), which requires P. 12(b) (6). A motion to dismiss must be read in conjunction with Rule "a short and plain statement claim showing that the pleader is entitled to relief," of the Fed. R. Civ. P. 8(a)(2), what the Bell so as to "'give the defendant fair notice of . . . claim is and the grounds upon which it rests,'" Atl. Corp. in original) The v. 550 U.S. 544, (quoting Conley v. Gibson, United pleading Twombly, States standard set Supreme forth in (2007) 355 U.S. Court Rule 555 has 8 (a) (omission 41, 47 (1957)). interpreted as requiring the that a complaint include enough facts for the claim to be "plausible on its face" and thereby "raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." 570 is (internal citations omitted). "not more akin than Ashcroft 550 a v. U.S. at the defendant Because possibility" 556 556). U.S. In when the to liable Rule other draw for the the that 662, plaintiff 12(b)(6) complaint without The plausibility requirement 'probability requirement, ' but sheer court is a a Iqbal, plausibility allows to Id. at 555, 678 a "[a] pleads resolving factual is claim the facial content that that Id. the at sufficiency disputes, for liable. has inference alleged." tests asks (quoting Twombly, factual reasonable misconduct motion defendant (2009) words, it a district 663. of a court "'must accept as true all of the factual allegations contained in the complaint' of the and plaintiff.'" Montgomery County, 684 'draw all reasonable inferences Kensington F.3d 462, 467 Volunteer (4th Cir. Fire 2012) in favor Dep't v. (quoting E.I, du Pont 435, 440 de Nemours (4th Cir. & Co. v. A. Rule Count 12(b) (6) to VII of seek for relief II, the invokes Rule amended dismissal of 12(b)(1) complaint, all F.3d remaining and to seek invokes counts. In Plaintiffs affirmatively withdraw their contained in Counts amended complaint. I, 637 Withdrawn Claims response to such motion, claims Inc., Discussion Defendant's motion to dismiss of Indus., 2011)). III. dismissal Kolon Accordingly, VI and VII WITHDRAWN, I, II, the Court VI and VII hereby deems of the Counts and Plaintiffs are foreclosed from pursuing further relief on such grounds. In that addition, can be termination" Plaintiffs' interpreted the withdraws asserting claim for The construed as a WITHDRAWN wrongful all termination claim "wrongful Agreement requires be resolved through binding arbitration. deems Agreement—a allegations the therefore Operating a all that Court of as brief allegations claim, and that can Plaintiffs be are foreclosed from pursuing further relief from this Court on such theory. B. 1. In claim Count under III, the Remaining Claims Count III Plaintiffs Fair Labor - FLSA Overtime advance an Standards overtime Act compensation ("FLSA"), which requires an employer to pay its employees additional compensation for any work-week in which an employee works more than forty hours. 29 U.S.C. § 207(a)(1). As recently explained by another judge of this Court: Generally, to assert a claim for overtime compensation pursuant to 29 U.S.C. § 207, "a plaintiff must plead (1) that he worked overtime hours without compensation; and (2) that the employer knew or should have worked known that he overtime but failed to compensate him for it." Butler v. DirectSat USA, LLC, 800 F. Supp. 2d 662, 667 (D. Md. 2011) . However, courts have expressed differing views regarding the level of factual detail required to be pled in an FLSA claim in order to survive a Rule 12(b) (6) motion to dismiss. In Butler, the Maryland District Court adopted a more lenient approach stating, There would be little benefit to dismissing this claim and requiring Plaintiffs to amend to provide an estimate of the number of the overtime hours worked. The existing complaint details the types of work activities that occupied Plaintiffs' alleged overtime hours and provides Defendants with sufficient notice of the basis of the allegations to form a response. Thus, Plaintiffs have stated a plausible claim for their entitlement to overtime wages. Id. at 668. In Rodriguez v. F & B Solutions LLC, this Court adopted Butler's lenient approach, noting "that a record of the precise number of hours worked is normally in the possession of the employer and as such, can often be obtained through discovery." Rodriguez v. F & B Solutions LLC, 20 F. Supp. 3d 545, 547 Inc. , (E.D. 851 Va. 2014) ; F.2d 106, see 108 also Pforr (4th v. Cir. Food 1988) Lion, ("[A] plaintiff [need not] prove each hour of overtime work with unerring accuracy or certainty."); Harder v. ARCO Welding, Inc., 3:ll-cv-396, (E.D. Va. Nov. 17, 2011) 2011 WL 5599396, at *3 (citations omitted) ("To assert a claim for unpaid overtime wages, a plaintiff must properly allege: '(1) that he overtime hours without compensation, [or she] worked (2) the 'amount and extent' of the work 'as a matter of reasonable inference,' and (3) that [the knew of the uncompensated overtime.'"). Seagram v. David's Towing & Recovery, 474 (E.D. Va. 2014) (applying the Inc., just and employer] 62 F. "more Supp. lenient" 3d 467, standard as outlined in Butler). Here, applying the standard applied in Seagram and Butler, the Court facts to finds state Although Simon hours he instead that a plausible fails claims to plaintiff to to on focus have the hours per day without week, the amended Simon FLSA has claim clearly allege worked fact in that a he alleged for sufficient overtime. precise the unpaid number of typical worked week, in tending excess of 14 indicating how many days he worked each complaint: (1) asserts sufficient facts to plausibly claim that Simon is an "employee" of FedEx who did not receive overtime compensation; (2) asserts sufficient facts to plausibly claim that Simon was routinely required to work more than forty activities and (4) hours that per week; occupied (3) "details Plaintiffs' alleged types of overtime work hours"; "provides Defendants with sufficient notice of the basis of the allegations to form a response." at 668; the see Am. Compl. 1M 26, sufficiently allege that 42-50. Defendant was hours Simon worked each week. Butler, 800 F. Supp. 2d Additionally, aware of the Plaintiffs number of Am. Compl. U^I 46, 58, 144. Although overtime Simon has compensation, alleged Orbit a has plausible not. FLSA for applying Even claim the forgiving standard set forth in Seagram and Butler, to state a plausible right to relief as Orbit fails it improperly attempts to assert a FLSA claim either on behalf of a corporation, behalf of unnamed action. Both advance Orbit's lack clear unidentified persons Hoffmann-La of warrants Orbit. that factual 173 any individuals Cf. (1989) claim may others effort (emphasis standing dismissal Inc. v. a party and its with of this failure to respect Count Sperling, to Three 493 to as U.S. to 165, (recognizing that although an individual with an FLSA pursue in to not allegations Roche relief on "similarly situated," Congress are or on 194 7 "free[] added). his to and the "representative of Defendant's therefore GRANTED in part behalf amendments eliminated employers own the motion burden" to on behalf of FLSA enacted by actions" of such dismiss in an actions) Count III (as to Orbit) , and DENIED in part is (as to Simon). 2. Count IV - In "unlawful § 40.1-29 Count "Unlawful Deductions" Va. IV, deductions" of Plaintiffs from assert Plaintiffs' the Virginia Code. Code that pay Defendant's § 40.1-29 Defendant in violation motion to made of dismiss asserts that there is no private right of action under such code section, with such statute only establishing a right 8 to pursue relief through the Virginia Commissioner of ("the Commissioner"). Plaintiffs' Defendant's interpretation, statutory response Labor and Industry does but not challenge instead curiously claims that Count IV alleges a breach of the Operating Agreement (not a § 40.1-29 claim) twice asserts caption, even though such count, that Defendant's violation of Va. Code § 40.1-29." Having carefully actions were its "in Am. Compl. UH 113, 116. considered authorities cited therein, excluding the parties' briefs and the it appears undisputed that Plaintiffs lack a private cause of action under § 40.1-29. of City of Norfolk v. Giannoutsos, 238 Va. 144, See School Bd. 147 (1989) ("One of the basic principles of statutory construction is that where a statute creates a right vindication of that right, and provides a remedy for the then that remedy is exclusive unless the statute says otherwise."); Pallone v. Marshall Legacy Inst., 97 F. Supp. 2d 742, 746 (E.D. Va. 2000) (indicating that § 40.1- 29 creates a scheme under which "the Commissioner may pursue the employee's claim for unpaid or such remedy Giannoutsos, Inc. , 48 Va. is "the 238 sole Va. Cir. 17, at 19 untimely paid wages," remedy provided by 147; Eslami (1999))). v. the Act" Global Moreover, and that One to (citing Commc'ns, the extent Plaintiffs argue in their brief in opposition to dismissal that Count IV actually contract provision alleges or a claim pursuant unidentified to provision an unidentified of Pennsylvania law, such attempted recharacterization of face because theory of the amended complaint does recovery the nature of that would the claim. give Count IV fails on its not identify any other Defendant Twombly, 550 U.S. "fair notice" at 555. of Count IV, which is clearly identified as a claim advanced pursuant to the Virginia Code, is therefore DISMISSED. 3. Count V - "Declaratory Judgment" In Count V, that, Plaintiffs seek a declaratory judgment holding "pursuant to the of Virginia," Am. Defendant and laws Compl. not of the United States and the State U 122, "independent dismissal of such count, Plaintiffs were "employees" of contractors." or an seeks arguing that while some of Plaintiffs' claims may ultimately turn on Plaintiffs' "employee" Defendant "independent classification as an contractor," a separate count seeking such determination is improper because all of the harm Plaintiffs allege has already occurred, leaving no live dispute that could impact future behavior. It is well-established that a district court's exercise of its discretionary authority to issue a declaratory judgment "is appropriate 'when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and . . . when it will insecurity, terminate and Centennial Life and afford relief controversy Ins. Co. v. giving Poston, 10 rise 88 from to F.3d the uncertainty, the 255, proceeding.'" 256 (4th Cir. 1996) (omission in original) Quarles, 92 F.2d 321, 325 (quoting Aetna Cas. (4th Cir. 1937)). & Sur. When, "claims and rights asserted have fully matured, wrongs have already been generally unavailable. 2015 WL 1137584, at suffered," *4-5 (E.D. Va. Inc., Mar. v. in contrast, and the alleged declaratory Hanback v. DRHI, Co. judgment is --F. Supp. 3d--, 11, 2015) (internal quotation marks and citations omitted); see 28 U.S.C. § 2201(a) (providing federal courts discretionary authority to issue declaratory judgments "[i]n a case of actual controversy within its jurisdiction"); 689, 695 are (E.D. Tapia v. Va. 2010) U.S. Bank, N.A., 718 F. Supp. 2d (explaining that declaratory judgments "untimely if the questionable conduct has already occurred or damages have already accrued") .2 This is so because when a contract has already been breached causing damages, otherwise accrued, flowing "'there from is no a business guidance' transaction that can be or damages have offered already via a declaratory judgment to steer" the parties' future conduct with respect to such contract or business transaction. Hanback, 2015 WL v. 1137584, at *4 (quoting The Hipage Co., Inc. Access2Go, Inc., 589 F. Supp. 2d 602, 615 (E.D. Va. 2008)). 2 Although Plaintiffs' claim is governed by the federal Declaratory Judgment Act, Virginia law appears in conformity with the application of 585 and such Act. See Bd. of Supervisors v. Hylton Enters., (1976) ("[W]here claims and rights asserted have the alleged wrongs have already been suffered, 216 Va. 582, fully matured, a declaratory judgment proceeding, which is intended to permit the declaration of rights before they mature, is not an available remedy." (citing Liberty Mutual Ins. Co. v. Bishop, 211 Va. 414, 11 421 (1970))). The case Court specific ongoing therefore facts, the controversy judgment. agrees parties' suitable Plaintiffs' with dispute for that, does not resolution business relationship, breaches or alleged on these present by own allegations document parties' other Defendant an declaratory the end of the demonstrating that any contract harm has already occurred, and any relief owed to Plaintiffs will be fully adjudicated through the resolution the amended of complaint. 3:12cv617, 2013 (granting because other a prevented See WL motion there was Bagley 350527, to "no v. at *7 dismiss a reasonably or mandated" rights would be affirmative and the "addressed by claims Wells (E.D. set Fargo Va. the N.A., 29, 2013) judgment count future determination in Bank, Jan. declaratory certain forth conduct of the to be parties' the underlying contract claim"). Count V of the amended complaint is therefore DISMISSED. 4. Count VIII Count VIII of Plaintiffs are Defendant outset, contract claim allegations section should of references that the be to be parties' noted expressly precede Plaintiffs' to "Breach of Contract" the amended complaint asserts determined breached it - Defendant's "independent Operating that while the amended various 12 Agreement. all lengthy of "Factual complaint acts even if contractors," Plaintiffs' incorporates it, that, that At the breach the of factual Background" includes so Plaintiffs many assert were unfair or spiteful that it is difficult to unravel on what basis Plaintiffs purport to allege Agreement. Moreover, even specifically enumerated breach fail to clearly purportedly articulate breached by a within of breach of Count VIII, contract which Defendant. the Such Plaintiffs' count, contractual Operating Plaintiffs duties failure to were clearly allege contract violations appears to result from the fact that, as acknowledged by Plaintiffs motion, in their briefing on the pending the Operating Agreement focuses primarily on Plaintiffs' obligations, Plaintiffs' including few express duties required by Defendant. theory of recovery on Count VIII therefore remains largely elusive, particularly to the extent that Plaintiffs seek to assert policies or that Defendant's "customary" Operating Agreement, failure practices to adhere constitute to internal a breach of the as the Agreement itself appears silent as to many of the topics of which Plaintiffs complain (ex. route planning, package preparation, quality control, etc.).3 After considering the varied allegations in the amended complaint, the only asserted breach of the Operating Agreement that states a "plausible" right to relief by alleging facts that 3 For example, K 1.7 of the Operating Agreement requires Plaintiffs to prepare and deliver daily logs to Defendant, but appears to provide no duty, mandatory or discretionary, on the part of Defendant. Similarly, H 1.10 of the Operating Agreement does not appear to include any promises from Defendant to Plaintiffs, but instead references promises previously made by Defendant to other companies and customers, which even if breached, basis for recovery by Plaintiffs. 13 do not appear to provide a "give the defendant fair notice of what the grounds upon which it rests," Twombly, Plaintiffs' assertion approval the proposed assignment/sale of that the Defendant Primary Service Areas ("PSAs") paragraph Operating 15 of the their contractor Moreover, further rights acceptable "Addendum and to 16" clarification Defendant's consent withheld." Id. unreasonably of Agreement to the regarding a assignments, Addendum 16 1 7. to "replacement 3-1, Agreement 1 15. provides indicating to an assignment will not be at discusses "the right ECF No. Operating FedEx Specifically, expressly obligations withheld Plaintiffs' Plaintiffs [Defendant]." to 550 U.S. at 555, is to a third-party. "Assignment," and by its terms gives assign" . . . claim is and that "unreasonably Plaintiffs' amended complaint asserts a plausible claim that Defendant violated such contractual provisions by unreasonably withholding approval of Defendant's attempted assignment. In contrast to the above clearly articulated and plausible breach of contract claim, the amended complaint's various references to contract provisions that are limited to defining Plaintiffs' obligations, Defendant's purported follow corporate policies and practices are in "oral place at contracts," other unfair FedEx that facilities, dealing, purported failure to provide "customary" 14 to Plaintiffs assert vague inducement, failures references and to Defendant's temporary help and/or to "qualify" individuals Plaintiffs purportedly intended to hire as Orbit relief. employees,4 Defendant's all fail motion part and DENIED in part denial limited Operating to to dismiss with respect Plaintiffs' Agreement to state a plausible by claim is to that unreasonably to GRANTED therefore right in Count VIII, Defendant with such breached refusing to the approve Plaintiffs' proposed assignment/sale. 5. Count IX & X - Tortious Interference with Purchase Contract and Business Expectancy Counts IX and X of the amended complaint assert that Defendant tortiously interfered with Plaintiffs' contract and/or business expectancy involving the assignment of Plaintiffs' rights and obligations under the Operating Agreement, to include the sale Although of their Plaintiffs Virginia or vehicles and Pennsylvania and FedEx Defendant law PSAs to disagree apply to a as such claims, third-party. to whether this Court finds such choice of law dispute to be immaterial, as Plaintiffs fail to state a tort claim under either forum's law. 4 While the Operating Agreement clearly provides express qualifications for any employees hired by Plaintiffs, it does not appear to discuss a process by which Defendant "approved" or otherwise passed judgment on proposed Orbit employees. Moreover, even assuming that FedEx did engage in a process to pass judgment on proposed Orbit employees, the amended complaint does not identify any prospective employees, does not assert that they met all of the contractual requirements to be hired by Orbit, and does not explain what steps Defendant purportedly took to improperly block their hire nor which contractual provision(s) was purportedly violated. In short, the amended complaint does not state a plausible breach of contract claim based on Defendant's alleged failure to "approve" Plaintiffs' proposed employees. 15 First, a tort to the extent Plaintiffs assert that FedEx committed by making Plaintiffs' state a false statements intending prospective assignee/buyer, plausible Defendant's tort attempted claim scare Plaintiffs with admit Plaintiffs' that contract and/or expectancy failed to dissuade the prospective buyer. Compl. U 76. buyer results causation and damages. 333 S.E.2d 97, interference does (i.e., Plaintiffs (1985) Virginia CGB Pennsylvania accrue until, legal (citations inability at to 230 Va. allege 112, 120, (indicating that elements of tortious law include Occupational Inc. , 357 F.3d 375, 'actual conduct") in See Chaves v. Johnson, damage"); under not 102 under Health Servs. that, Am. More specifically, FedEx's inability to deter the third-party "resultant off such allegations fail to because interference to law, "a least, damage') 384 as omitted). both Therapy, (3d Cir. tortious the a Inc. 2004) v. of suffers the attempted and RHA (indicating interference plaintiff result Such causation claim injury defendant's "interference" therefore fails to support a plausible right to relief.5 Second, through to the arguing that extent Plaintiffs FedEx's failure attempt to to allege "approve" a tort Plaintiffs' prospective buyer breached an independent common law duty, such s As discussed below, this Court does not take a position as to whether Virginia or Pennsylvania courts would adopt a "stranger" to the contract rule that would bar such a tort claim even if the attempts to dissuade the prospective buyer had been successful. 16 alleged claim is belied by the record as it is undisputed that FedEx had a contractual duty to consider any proposed assignment and provide its "consent or lack thereof to any such assignment or transfer" within describing "the assignment or 30 days nature, transfer." Stated differently, of receipt type and ECF No. FedEx was not of a scope 3-1, written of the notice proposed at Addendum 16 1 7. "interfering" with a contract purporting to assign/sell a FedEx PSA to a third-party because Plaintiffs had previously agreed that the only process through which they could complete such assignment/sale required FedEx's participation and approval. Accordingly, Plaintiffs plausibly allege any harm flowing from "interference" fail that to was violative of an independent common law duty. Reaching such conclusion does not require this Court to resolve complex questions of state law on sparse briefing with respect to "stranger" whether Pennsylvania to the contract rule or Virginia would adopt the that has been adopted by West Virginia and various other states.6 Rather, irrespective of 6 The "stranger" to the contract rule espoused by FedEx categorically precludes a tortious interference claim when the alleged tortfeasor is "related" to the third-party contract/relationship. See Childers Oil Co. v. Exxon Corp. , 960 F.2d 1265, 1271 (4th Cir. 1992) (concluding that, pursuant to West Virginia law, "[tlortious interference claims lie only against a party that is a stranger to the relationship") ,• cf. Kernaghan v. BCI Commc'ns, Inc., 802 F. Supp. 2d 590, 596-97 (E.D. Pa. 2011) (noting the apparent absence of precedent addressing "whether the Pennsylvania Supreme Court would adopt and apply the 'stranger' rule to a tortious interference claim," and ultimately declining to hold that Pennsylvania courts would adopt such rule). 17 whether Pennsylvania allegations treat Counts see Frank C. 784 F.3d would demonstrate that IX and X as 186 (3d such rule, Pennsylvania disguised Pollara Grp., 177, adopt LLC v. Cir. the case-specific courts breach of would contract Ocean View Inv. 2015) (discussing either claims, Holding, LLC, Pennsylvania's common law "gist-of-the-action doctrine" which is a policy based doctrine that requires courts to engage in a "factually intensive inquiry as to the nature of a plaintiff's claims" in an effort to ensure that tort recovery is not permitted "for the mere breach of contractual duties" citations omitted)), claims fail to (internal quotation marks and or alternatively, allege that FedEx would conclude that such acted without justification when it evaluated and passed on the suitability of Plaintiffs' proposed buyer, see CGB Occupational Therapy, 357 F.3d at 384-85 (indicating an that, under Pennsylvania law, element of a tortious interference claim is that the alleged intervener acted without "privilege or justification"). Similarly, inapplicable to elements a of intentional Dunn, although Plaintiffs assert that Virginia law is these counts, tortious interference McCormack & 870 such requires a claim interference with MacPherson 708 S.E.2d 867, (2011) under the v. Virginia claim one requires third-party Connolly, law, 281 of proof contract. Va. 553, the of See 558-59, (indicating that the third element of "intentional 18 interference" with the asserted contract description of of Torts, or the which expectancy, and favorably cause of action in the includes the tortfeasor "intentionally and citing Restatement requirement that the improperly interfere[d]" 225-26, intentionally 360 S.E.2d interferes with subject to tort liability." Va. at factual 120, 335 S.E.2d allegations 832, 835 another's at clearly 102)). reveal obligation, through evaluating to and participate passing third-party buyer/assignee.7 dissatisfied required duty that with evaluation, the this 234 Va. rights (citing Chaves, Notably, that alleged ("[0]ne contractual (emphasis added) basis for challenging FedEx's right, FedEx's (1987) (Second) with the performance of a third-party contract); Duggin v. Adams, 221, Plaintiffs' Plaintiffs the lack who is 230 own any or more accurately stated, in the third-party contract judgment on the prospective While Plaintiffs are unquestionably end-result Court is so broad that is of FedEx's unaware of contractually any common it would preclude a party that law is 7 Moreover, to the extent that Plaintiffs' claims, analyzed under Virginia law, assert tortious interference with a mere expectancy, or tortious interference with a third-party contract viewed by the law to be the equivalent of an "expectancy" because it was contingent upon a yet to be received "approval" from FedEx, Virginia law requires allegations that the purported interference was effectuated through "improper means." Duggin, 234 Va. at 226-28, 360 S.E.2d at 836-37. While a variety of tortious, illegal, and unethical acts constitute "improper means," the Virginia Supreme Court has expressly recognized that such concept does not extend to "actions solely motivated by spite, ill will and malice," Dunn, McCormack & MacPherson, 281 Va. at 560, 708 S.E.2d at 871, which appear to be the alleged motivators behind Defendant's conduct as asserted in the amended complaint. 19 required by contract to consider and pass judgment on a prospective assignment from considering and passing judgment on such assignment. in the affairs Stated differently, of another existing contractual right FedEx's evaluation as: and "interference"; and the "another," affairs FedEx to of the recognized (2) extent interest to in but such not of interfered FedEx's pre proposed assignee, by at rather, FedEx the is "affairs" that light evaluate judgment the in (1) FedEx has definition not issue are has are not merely also the affairs of both a contractually and a contractually affairs recognized right to protect such interest.8 In sum, because the only conduct engaged in by FedEx that allegedly caused Plaintiffs any harm was FedEx's "disapproval" of Plaintiffs' prospective assignee/buyer, Plaintiffs have 3 The Court notes that even if Plaintiffs have otherwise pled sufficient facts to state a tortious interference claim under Virginia law, the face of the Operating Agreement (which is incorporated into the amended complaint) conclusively indicates that FedEx acted with "justification or privilege" when it exercised its contractual right to evaluate and pass judgment on the proposed assignee/buyer. See Chaves, 230 Va. at 120, 335 S.E.2d at 102 (discussing the affirmative defense of "justification or privilege" under Virginia law; Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (indicating that in "rare circumstances where facts sufficient defense are alleged in the complaint, motion not to dismiss expressly filed under characterize Rule to rule on an affirmative the defense may be reached by a 12(b)(6)"). its argument as While invoking Defendant an does affirmative defense, Defendant's assertion in support of dismissal that FedEx cannot have interfered with a third-party contract in light of the fact that the Operating Agreement "specifically provides" FedEx authority to evaluate proposed assignments is sufficient to invoke such defense. ECF No. 7, at 27. Therefore, to the extent Virginia law applies, Counts IX and X are alternatively dismissed based on the facial applicability of such affirmative defense. 20 failed to bargained state for a cause contractual approval/disapproval action role of contract/expectancy, of and to in play in Plaintiffs' while tort. FedEx the a evaluation and asserted Plaintiffs had third-party have stated a plausible breach of contract claim based on FedEx's failure to "approve" allege the that proposed FedEx's evaluate and pass assignment/sale, exercise of its Plaintiffs bargained to right for fail to judgment on the proposed third-party violated any common law duty recognized by Pennsylvania or Virginia law. Counts IX and X are therefore DISMISSED. 6. Count XI - "Personal Injury" Count XI of the amended complaint, not the final count that has been asserts breached withdrawn a duty subcontractors to and/or Simon.9 Simon physical anguish" Defendant's by Plaintiffs, provide a alleges a general damages that safe duty in resulted intentional work not the to count Although appears to far from attempt clear, to assert infliction of emotional distress 9 It appears from the context this a of "mental other claim [and] 3, phrased for and things, ECF No. broadly for plaintiff harassment, sabotage of Plaintiff's business operations." 174-77. harm among abuse, Defendant environment form from, "verbal that M tort intentional ("IIED"). of the allegations in the complaint that Count XI is asserted only by plaintiff Simon. 21 amended It is well-established that an independent IIED tort claim arises under outrageous law only Virginia and intolerable in Eldridge, 215 Va. 338, 342, the that generally accepted standards of v. if conduct it at issue against offends "was the decency and morality." 210 S.E.2d 145, 148 Womack (1974). The Virginia Supreme Court has further explained that such cause of action is "not insufficient is favored" for a under defendant Virginia to have tortious or even criminal'"; found only character, where and so the in and that "it is 'acted with an intent which rather, conduct extreme law has "'[1]iability has been been so as to degree, outrageous go beyond in all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" 241 Va. 23, 27 46 cmt. d S.E.2d 24, (1991) (1965)); 34 (quoting Restatement see Harris v. (2006) Kreutzer, ("Insensitive and Russo v. White, (Second) 271 Va. demeaning of Torts § 188, 204, conduct 624 does not equate to outrageous behavior as set [forth] by [Virginia's] caselaw.") ,10 In Pennsylvania, while it does not appear that the state's highest court has expressly recognized the tort of IIED, court has cited to § 4 6 of the Restatement (Second) such of Torts "as setting forth the minimum elements necessary to sustain such a 10 As with Counts IX and X, Plaintiffs assert that Count XI is governed by Pennsylvania law, not Virginia law. 22 cause of action." 176, 181, David 754 Mem'l (1987)). A.2d Park, The "highly Taylor v. 650, Inc., 652 availability requires atrocious, Pa. of the (citing 183, 190, recovery and that and utterly (2000) 515 circumscribed," standard, Albert Einstein Med. asserted intolerable in Kazatsky 527 under consistent A.2d such with conduct a Ctr. , 562 Pa. King 988, standard the be v. 991 is Virginia "'regarded as civilized community,'" such that if the facts were recited to a member of the community they would "'arouse his him to exclaim, resentment against the actor, "Outrageous!"'" Kazatsky, 515 Pa. at and lead 191, 527 A.2d at 991 (quoting Restatement (Second) of Torts § 46 cmt. d) ; cf. 1 Summ. Pa. Jur. 2d Torts § 10:48 under Pennsylvania law, the workplace rising (2d ed.) (indicating that, "it is extremely rare to find conduct in to the necessary level of outrageousness" and that a tort action generally does not arise even in the face of "unjustified criticism, situations where "a snubs, generally betrayed confidences," oppressive work or in environment" is created in an effort to "force the employee to quit or retire"). Here, regardless of whether Virginia law or Pennsylvania law applies, Simon fails to state a plausible right to relief as the allegations of verbal abuse, harassment,11 sabotage of 11 Although not restated in Count XI, Simon does allege earlier in the amended complaint that a FedEx manager made an internal report that falsely accused Simon of engaging in "workplace violence." However, it appears from the context of Simon's allegations that the false report accused Simon of an angry exchange of words that made the 23 business operations, etc., fail to rise atrocious and utterly intolerable behavior. Simon plainly for him alleges motivated reputation that her and/or FedEx actions suggesting that the she an end to "the at 342, 10:54 (2d 210 S.E.2d at ed.) dislike specific his to allege purpose of or that she "knew or should have 148; (indicating while business fails known that emotional distress would likely result." Va. of damage company's amended complaint inflicting emotional distress" level personal effort his acted with the Additionally, manager's in ultimately relationship with FedEx, facts a to see 1 Summ. that, under Pa. Womack, Jur. 215 2d Torts Pennsylvania law, § a plaintiff must prove that the actor either "intended to inflict severe emotional certain, or defendant's complainant distress" substantially actions"); fear violence). for First, or "knew certain, Restatement her that safety such to distress follow from the § 46 cmt. (Second) (as was of Torts opposed to alleging physical such conduct fails to rise to the level necessary to be considered "outrageous." See Johnson v. Plaisance, 25 Va. Cir. 264, 268 (1991) (indicating that the plaintiff's allegations that she was terminated from her nursing job based on a false report that she had been drinking, a report that was relayed to the State Board of Nursing, was "not sufficiently outrageous to support" an IIED claim) ,1 Summ. Pa. Jur. 2d Torts § 10:48. Second, Simon asserts that such false report was intended to harm his reputation within FedEx, not to cause him emotional distress. at 14 8 Third, See Womack, 215 Va. at 342, 210 S.E.2d (discussing the intent required to succeed on an IIED claim) . Simon fails to directly assert that such false report contributed to his claimed injury (possibly because he acknowledges that, upon investigation, FedEx determined that the allegations were in fact baseless, ECF No. 3, f 65). Accordingly, even when considered in conjunction with the other alleged workplace harassment, Simon's reference to the false internal report fails to state a plausible IIED claim. 24 Accordingly, (same) GRANTED as to Count Defendant's As set forth above, Defendant's opposition. and DENIES in amended brief. At part, the Court GRANTS in part, 10. to Plaintiffs' ECF No. complaint are from Similarly, to allegations "wrongful can be and DENIES in Plaintiffs' brief in the Court GRANTS in part, motion Counts deemed pursuing the is for leave to file an 14. request, foreclosed strike Similarly, Plaintiffs amended dismiss Conclusion motion ECF No. to 12 XI IV. part, motion VI of as the 12 To the extent Simon intends Count XI and of the Plaintiffs and relief any interpreted of II, WITHDRAWN, further extent termination" I, are such on Plaintiffs' advancing Operating VII a grounds. remaining claim Agreement, for such to advance a claim based on a tort theory other than IIED, it is unclear from the allegations in the amended complaint what such theory may be, and thus, there are insufficient facts to state a plausible claim and permit Defendant the opportunity to provide a meaningful response. Such count does not appear to attempt to assert negligent infliction of emotional distress ("NIED") as Simon alleges intentional, not negligent, conduct. Moreover, he does not appear to satisfy the other elements of an NIED claim under either Virginia or Pennsylvania law. See Toney v. Chester Cnty. Hosp., 614 Pa. 98, 117, 36 A.3d 83, 95 (2011) (indicating, in an opinion of an evenly divided court, that an NIED claim absent physical impact (or near impact) to the plaintiff or a close relative of the plaintiff requires a "special relationship" that carries with it the "implied duty to care for the plaintiff's emotional well-being"); Va. Prac. Tort and Personal Injury Law § 11:4 (discussing the difference between an immediate manifestation of "physical injury" resulting from and the subsequent development of physical a traumatic event manifestations of emotional disturbances, such as "anxiety disorder"); Myseros V. Sissler, 239 Va. 8, 12, 387 S.E.2d 463, 466 (1990) (same). 25 allegations are deemed WITHDRAWN, and Plaintiffs are foreclosed from pursuing further relief on such theory. As to the Defendant's claim is 12(b)(6) Counts motion GRANTED as Furthermore, to to Counts IV, whether Inc., 761 discretion, amended for failure IX, X complaint, to and XI. state ECF No. motion is GRANTED in part, F.2d 970, 974 above v. (4th (1) dismissals are a determination that Carter considered the following: counsel, V, the prejudice or without prejudice, Court's the 6. and Norfolk Cir. Cmty. 1985), Plaintiffs, with is within Hosp. the Ass'n, Court has who are represented by have already once filed an amended complaint, although such amendment was not in response to a motion to dismiss; while second Plaintiffs amended have informally complaint dismissal, they have not to nor amend, indicated how amendment;13 (3) a as to Counts III and VIII. determining this in dismiss Defendant's 12(b)(6) DENIED in part, In remaining have any within requested their brief leave in to (2) file opposition a to filed a separate motion seeking leave they, pleading with the exception deficiencies as to their tort claims can be of Count cured (Counts IX, X, III, through and XI) 13 In the opening paragraph to their brief in opposition, Plaintiffs broadly state their request for leave to amend in the event that the Court finds any of Defendant's arguments in support of dismissal to be well-founded. ECF No. 9, at 1. Thereafter, the only specific claim on which Plaintiffs indicate their desire/ability to advance supplemental facts is Count III, the FLSA claim that concluded was not factually deficient as to Defendant Simon. 26 this Id. Court Plaintiffs have failed to advance any reasoned opposition to the pending dismissal motion, instead relying on the contention that Pennsylvania substantive law governs such claims without setting forth the level, see ECF No. dismissal asserted of Pennsylvania 9, at Counts 33; III, standard and (4) IV, V, even at a cursory the primary basis for the IX and X of the amended complaint is not the lack of sufficient factual allegations, but rather, that is the fact that Plaintiffs' relief is unavailable on all of above, the dismissal own allegations demonstrate the legal theories advanced therein. Considering Count III, and prejudice. dismissal The of the partial Counts IX, of the Counts dismissal X, and partial XI of are IV dismissal and Count V are VIII without of with and prejudice the to Plaintiffs' right to file a formal motion seeking leave to file a second amended complaint.14 If Plaintiffs elect to file such a 14 are Both Counts VIII and XI dismissed because the factual allegations fail to state a plausible right to relief and/or fail to put Defendant on notice of the nature of the claim. Such counts are therefore potentially subject to re-pleading. As to Counts IX and X, it appears far less likely that such counts can be recast in order to state a claim on which relief can be granted based on the facts as asserted by Plaintiffs (including, but not limited to, FedEx's contractual right to participate in the assignment process). However, out of an abundance of caution, the Court finds that the best approach is to dismiss Counts IX and X without prejudice. See Ostrzenski v. Seigel, 177 F.3d 245, 253 (4th Cir. 1999) (indicating that, in cases where the plaintiff has not had the opportunity to amend the complaint in response to identified deficiencies, the preferred course is to dismiss claims that may be subject to re-pleading without prejudice "'even though the court doubts that plaintiff will be able to overcome 27 motion, it should be an shall filed accompanied by exhibit Plaintiffs' Plaintiffs elect time-period VIII be and not set later to dismissal than August a supporting brief, proposed forth the no second pursue herein, of dismissals with prejudice, the Counts X 2015, complaint. XI of as If within dismissal and and includes amendment partial IX, which amended further 7, the Count shall become and Defendant shall have until August 21, 2015, to file a responsive pleading. The Clerk is REQUESTED to send a copy of this Memorandum Opinion and Order to all counsel of record. IT IS SO ORDERED. /s/"M£r Mark UNITED S. STATES Davis DISTRICT JUDGE Norfolk, Virginia July 2>0 , 2015 the defects Federal in Practice his initial and pleading'" Procedure § 1357, (quoting at 5A 360-67 Wright (2d ed. & Miller, 1990))). This Court, of course, will not ultimately grant leave to amend if any subsequent proposed amendment is determined to be futile. Perkins v. United States, 55 F.3d 910, 917 (4th Cir. 1995). 28
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