Goulmamine et al v. CVS Pharmacy, Inc., No. 3:2015cv00370 - Document 20 (E.D. Va. 2015)

Court Description: MEMORANDUM OPINION. See Opinion for details. Signed by District Judge Robert E. Payne on 10/09/2015. (ccol, )
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Goulmamine et al v. CVS Pharmacy, Inc. Doc. 20 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division CLERK, US DISTRiCT COURT Ri^iMOND, VA REDOUANE GOULMAMINE, M.D., and iyilDLOTHIAN REHABILITATION ASSOCIATES, LLC d/b/a/ The Petersburg Spine Center, Plaintiff, Civil Action No. V. CVS PHARMACY, 3:15cv370 INC., Defendant. MEMORANDUM OPINION This matter is before the Court on Defendant CVS Pharmacy, Inc.'s MOTION TO DISMISS. forth below, (Docket No. 10). For the reasons set the motion will be granted in part and denied in part. BACKGROUND Plaintiff doctor and Redouane the Rehabilitation Center." (Compl. Goulmamine, sole Associates, SI 8, M.D. member PLLC Docket No. of d/b/a 1). is a licensed medical Plaintiff The "Midlothian Peterburg Spine The facts are set forth as alleged in the Complaint. Dockets.Justia.com Beginning in late 2014 and continuing through early 2015, pharmacy employees at several central Virginia locations of CVS Pharmacy Inc. CVS would ("CVS") no longer began telling Goulmamine's patients that fill (Compl. 12-15, (hereinafter prescriptions 23) . Goulmamine "Goulmamine") further written and allege The that, by Goulmamine. Spine Center during these nearly two-dozen conversations, CVS employees also made: • Factual that (and incorrect) Goulmamine was statements in jail relating to Goulmamine: (Compl. 5 23(k)), Goulmamine had overprescribed to a pregnant patient 5 23 (k)), someone in prescriptions. • Factual that in his the f 23(m)), office was (Compl. SI 23(j), DEA, FBI, to or producing (g)-(i), regulatory bodies: Board or had (k), (1), of revoked statements Medicine his was license. (q)). Potentially misleading statements of fact: allegations, fraudulent (p) ) . the Goulmamine (Compl. 123(c), and that Goulmamine statements relating to Goulmamine's relationship investigating • (Compl. (and incorrect) standing (Compl. that one of Goulmamine's patients had died from an overdose of Xanax or that per Goulmamine's CVS employees made several statements that "he is being investigated" or "audited," or that he was "under review." (Compl. 5 23(e), (n) , 2 (o) , (q)). These statements leave the context, identity it is of the investigator reasonable that a investigator to be a ambiguous, but in patient might believe the regulatory or oversight body, rather than CVS. • Statements of opinion regarding Goulmamine's prescription practices: "he is filling too many prescriptions" 23(h)) (Compl. 5 and "he writes too much pain pills and it's against the law." (Compl. 1 23(j)). • Statements of opinion regarding Goulmamine or Goulmamine's relationship with his patients: "he is bad news," 23(c), (d)), (Compl. SI variations on "you should find another doctor" or "your doctor won't be in business much longer," (Compl. 1 (Compl. 23(f), (q), 1 23(h), • (and and "he may lose his license." (q)). Factual (r)), between fill truthful) Goulmamine Dr. and statements CVS: about variations Goulmamine's prescriptions." the on relationship "CVS (Compl. will not SI 23 (a)-(g), (i)-(s). The Complaint also alleges that an employee stated that CVS "had problems with third parties: [Goulmamine]." (Compl. SI 23(j)) . • Statements such as about "you shouldn't be taking criticisms these of patients, pain pills," "you are probably addict." a drug addict," (Compl. 1123(b), (i) , and "you are just a drug (s) ) . Goulmamine states that he is, and was during the relevant time frame, in bodies, that he has never been investigated by such bodies, that he good has prescriptions. standing never had (Compl. with a all patient S[S[ 25-26). regulatory die Center have been a oversight result Dr. substantially harmed. and of Goulmamine states that, a result of CVS's campaign of defamation. Spine as and his "[a]s Goulmamine and The Dr. Goulmamine is losing patients almost daily and he is also losing referrals." (Compl. g[ 27) . In March 2015, would no longer CVS sent Goulmamine a letter stating that it fill his prescriptions. (Compl. 18-21). Goulmamine alleges that CVS told Dr. Goulmamine words to the effect that (i) he "wrote too many pain pill" prescriptions; (ii) some of his patients were "red flags" a euphemism for drug addicts - because they were "self pay"; and (iii) because it [CVS] takes to heart drug abuse and diversion," i t will no longer fill his prescriptions. (Compl. 5 19). Goulmamine claims that he was "so offended at the letter that he ripped it up and threw it away." CVS attached an exhibit letter at Exhibit 1. which (Def.'s Br., CVS Ex. alleges 1, is (Compl. the 5 21). March Docket No. 11). 2015 Goulmaraine's defamation Complaint (Count I); presents three insulting words claims (Count for II); relief: and tortious interference with contract/business expectancy (Count III). DISCUSSION CVS facts argues that entitling Goulmamine him to relief has in correct as to Counts II and III, failed any to of state set of claims. his a CVS is and incorrect as to Count I. A. Legal Standard for a Motion to Dismiss A motion challenges the to dismiss legal Rule and plain of Civil statement of what the ... McCleary-Evans v. 780 Corp. reasonable a P. complaint. F.3d 332, 8(a) (2) claim Civ. 338 (4th Cir. "requires showing 12(b)(6) Jordan that the v. 2006). only a in order to give the defendant Maryland Twombly, When the of R. short pleader is fair notice claim is and the grounds upon which i t rests." Admin., V. 458 Procedure of entitled to relief, Fed. sufficiency Alternative Resources Corp., Federal under F.3d 582, 585 550 U.S. deciding a inferences Chevrolet, Ltd. v. (4th Cir. 2009). pleader's description (4th 544, motion in Dep't Cir. 555 to of of 2015) dismiss, favor State (citing Highway Bell Atl. (2007)). of Consumeraffairs.com, However, Transp., a court the "draw[s] plaintiff." Inc., 591 all Nemet F.3d 250, 253 while the court must "will accept the what "any happened" 5 and conclusions that can accept the be reasonably drawn therefrom," facts," Charles A. Federal Practice and Procedure § Dominion *4 a (E.D. Va. Sec. Co., 2014). L.L.C., Wright 1357 No. & Arthur (3d ed. Iqbal, 868 not analytical dismiss to 662, 678-79, "Twombly approach requires mere R. Miller, Chamblee v. 2014 WL 1415095, Nor is the court required to accept as true 556 U.S. (2009). amount "need 1998); 3:13CV820, legal conclusion unsupported by factual V. court conclusory allegations encompassing the legal effects of pleaded Old the and for courts formulaic 129 S. Iqbal to reject Ct. also evaluating allegations. 1937, made Rule recitation of 173 L. clear 12(b)(6) conclusory the Ashcroft Ed. that the motions allegations elements of a 2d to that claim and to conduct a context-specific analysis to determine whether the well-pleaded factual allegations entitlement to relief." Wright & Miller, In sum, all reasonable plaintiff's allegations factual favor, inferences Edwards 1999). v. ... as from true Chamblee, an supra. "after accepting and those suggest drawing facts in all the i t appears certain that the plaintiff cannot prove any set of facts Cir. supra; a 12(b)(6) motion should be granted if, well-pleaded relief." plausibly in support of his claim entitling him to City of Goldsboro, 178 F. 3d 231, 244 (4th B. Count I : The Defamation parties defenses to, concur with the elements of, and relevant defamation: (1) publication; (2) of a statement that is actionable; and (3) requisite intent. Jordan v. Kollman^ 612 S.E. 2d 203, 206 (Va. 2005). Defamation claims may be defeated by a claim of privilege, which, in turn, may be overcome if the plaintiff proves malice. Great Coastal Exp., Inc. v. Ellington, 334 S.E. Andrews v. at *10 Smith, Inc. Va. 993 286 Va. actionable, 993 F. 853 (Va. Virginia Union Univ., No. (E.D, Ridder, 2d 846, a 2d. May F. 16, 2d. 327, 1087, 337-339, statement at matter of law. 1092. Id. 2008); 1092 3:07CV447, see Whether be a 2008 WL 2096964, also Chapin (4th Cir. 1993); 749 S.E. must 1985). 2d 526, false and statement 531 v. Cashion v. (2013). defamatory. is CVS is a however, the question of whether a defendant Cashion, 337. alleges statements, that and that Goulmamine the (Def.'s Mem. for a Failure to State Goulmamine demonstrate replies malice that CVS may not and has pled remaining statements qualified privilege. 11) . Chapin, actionable has lost or abused a privilege is a question of fact. at To be The existence of qualified privilege is also a question of law; 286 Va. Knight Claim 6, that he non-actionable are protected by in Support of Mtn. 9-12) has invalidate ("Def.'s pled any Br." sufficient privilege to Dismiss Docket facts defense, No. to and raise the affirmative defense of privilege at 7 the 12(b)(6) stage. 6-7, 9-10) 1. (Pl.'s Mem. in Opposition to Mtn. to Dismiss ("Pl.'s Reply," Docket No. 17). Actionable (i) Statements Goulmamine Has Pled Several Clearly Actionable Statements "To be actionable, defamatory." Jordan, defamation case, a the statement be both false 269 Va. at 575. At the 12(b)(6) court must which the Complaint alleges 1092. must accept to be as false false. stage in a any Chapin, statements 993 F. Because the Court presumes falsity at this stage, actionability question whether statements the in deciding a referenced motion in to the and 2d at the key dismiss Complaint is are defamatory. Virginia per se, V. recognizes certain statements as defamatory including statements which impute to the plaintiff the commission trade, law of a criminal offense, impugn his fitness for or prejudice plaintiff in pursuit of his trade. Hew York Times Co., 416 F.3d 320, 330 (4th his Hatfill Cir. 2005). Whether a statement is capable of having defamatory meaning is a question of law. Id. "In determining whether or not the criminal popular offense, sense"; the words an express must be construed allegation 8 language does of in the criminal impute a plain and activity is not necessary. Id. at 331. Both murder and "a charge of aiding and abetting in the possession of narcotics" are crimes of moral turpitude which qualify as defamatory per se. statements regarding Goulmamine causing overdoses, their plain and popular sense, Id. CVS's construed in thus impugn to Goulmamine a crime of moral turpitude. With regard "implication to impugning ... that unprofessional the conduct fitness plaintiff ... for is for one's guilty which conduct an unethical of trade, and the defendant suggests ... that the plaintiff could and should be subjected to disbarment proceedings" "impute[s] conduct Carwile Richmond 592 v. (1954). is tending to injure Newspapers, Stating that a worthy of losing his controlled substances attorney has defamatory per him 196 Va. in 1, se, because his 8, it profession." 82 S.E. 2d 588, physician has committed misconduct license to practice medicine or dispense is sufficiently similar to committed conduct suggesting an worthy of disbarment, such that several CVS statements qualify as defamation per se. Goulmamine has thus pled statements that are defamatory per se, and that he claims proper inferences stated several not in are untrue. favor actionable of (Compl. the statements. protected by qualified privilege, 9 5 25). plaintiff, If then these Drawing the Goulmamine has statements are Goulmamine has pled actionable statements sufficient to state a claim for relief, and thus to move past the 12(b)(6) stage. (ii) Actionability of Statements of Truth or Opinion CVS attacks a sub-set of the statements in the Complaint as non-actionable, are opinions. First, not either because they are truthful or because they (Def.'s Br. 9-12). CVS properly asserts constitute defamation, and that that statements whether expression of opinion is a question of law. 336; see also Jordan, 269 Va. at 575-576 a cannot are be However, generally not objectively CVS misses actionable characterized two caveats to opinion do statement Cashion, is an 286 Va. at ("To be actionable, statement must be both false and defamatory . . . . opinion of because as the true the [S]tatements of such statements or false."). "opinions cannot be defamatory" rule. First, "statements [of opinion] may be actionable if they have a provably false connotation and are thus capable of being proven true or false." E.g., Katti v. WL Nov. 3424253, omitted). made it at *4 (E.D. In Cashion, with Va. 22, Moore, 2006) No. 3:06CV471, (internal 2006 citations the insinuation that a patient "could have better resuscitation [by plaintiff anesthesiologist]" was actionable because "[w]hether the quality 10 of [plaintiff contributed anesthesiologist's] to the patient's treatment death is an capable of being proven true or false, opinion testimony." Carwile, 196 Va. Cashion, at 8. 286 Va. caused or of allegation even fact such as through expert at 337; see also, e.g., "Opinions" about whether a professional has met a professional standard of care may be defamatory when such "opinions" could be proven true or false at trial. Second, a statement of opinion may be actionable when it "reasonably can be construed as a statement of fact" because "it is 'laden with factual allegedly false." Andrews, Richmond Newspapers, 32, 43 n. content' 2007 WL Inc. v. Lipscomb, 4143080 at *8 are (quoting 234 Va. 277, 362 S.E. 2d 8 (1987)). Bearing these two caveats to the "opinion is not defamation" rule in mind, statements and the underlying facts CVS claims are it is clear that many of the "opinions," (Def.'s Br. 10), are actionable either because they may be proven false by an expert witness or because they are laden with factual content and the underlying facts are alleged to be false. CVS also properly asserts that truth is a complete defense to a defamation claim. Alexandria Gazette Corp. 154, 160, that any 93 S.E. 2d 274, statement that 279 (1956). CVS would v. West, 198 Va. CVS accordingly argues not fill Goulmamine's prescriptions is non-actionable, because it is factually correct 11 that CVS had chosen to stop filling Goulmamine's prescriptions. (Def.'s Br. 11-12). CVS also claims that any statement that Goulmamine was "under review" or "under investigation" is nonactionable, because it is factually correct that CVS did conduct an investigation into Goulmamine's prescribing patterns. Br. {Def.'s 11-12). However, Goulmamine is correct that, drawing all reasonable inferences in his favor, heard "CVS is not Goulmamine is it plausible that a patient who filling Goulmamine's prescriptions anymore. being investigated" would believe the investigation was being performed by an entity other than CVS. As such, it is plausible that a listener would infer a false fact (investigation by a regulatory agency) rather than a true fact (investigation by CVS). This conclusion is bolstered by the Fourth Circuit "general rule of interpretation ... that 'allegedly defamatory words meaning ... are courts to be applying taken in their plain and natural Virginia defamation law should consider not only the words themselves but also the inferences fairly attributable to them." Hatfill, 416 F. 3d at 331 (internal quotations omitted). Goulmamine falters, statement "CVS be actionable. is however, in arguing that the truthful investigating Goulmamine," in isolation, can First, Goulmamine argues that truthful statements 12 can be actionable when such statements are defamatory per se. (Pl.'s Reply 17). However, Goulmamine draws this conclusion from a misreading of Baylor v. Comprehensive Pain Mgmt. Ctrs., 2011 U.S. Dist. LEXIS 37699 (W.D. Va. Apr. 6, 2011). To the contrary, Virginia law clearly states that an actionable statement must be defamatory and untrue, even if that statement is defamatory per se. Baylor v. Comprehensive Pain Mgmt. Ctrs., 7:09-CV-00472, 2011 WL 1327396, at *9; see also, e.g., Carwile, 198 Va. at 8. Goulmamine also argues that CVS should not be able to rely on the fact, if true, that CVS was conducting investigation, because facts not included in a complaint may not be considered on a motion to dismiss. (Pl.'s Reply 16). Goulmamine is correct that "materials outside the complaint may not be considered" in deciding a motion under Rule 12(b)(6) U.S. Airways^ 510 F.3d 442, 450 stage. (4th Cir. E.g., 2007). Bosiger v. CVS does not dispute this point of law. Instead, CVS argues that reference to its investigation was included in Goulmamine's Complaint, because the Complaint referred to the March 15 letter from CVS, and the text of that March 15 letter Exhibit 1) states the Reply 9-10, Docket No. of 1 Exhibit because existence of an (as provided by CVS as investigation. (Def.'s 18) . Goulmamine objects to introduction it "may referenced in the Complaint, indeed be the letter that is but it also may not." Goulmamine 13 therefore argues that, because all reasonable factual inferences must be drawn in a plaintiff's favor in deciding a Rule 12(b)(6) motion, that any uncertainty over the letter's identity must be resolved against CVS. However, for the purposes of evaluating whether "CVS investigating facts the to statement the Complaint, is the Court finds Goulmamine" that it is adds not unreasonable to accept that Exhibit 1 is the March 2015 letter referred to in the Complaint. Exhibit 1 may be incorporated into the Complaint by reference, and communications which consisted entirely of the "CVS is investigating Goulmamine" are factual, not misleading, and not actionable. To summarize the results of the parties' skirmishes: truthful statements are not actionable, truthful but misleading statements are actionable, true and non-misleading statements are not actionable, and CVS may introduce Exhibit 1 to show that it was conducting an investigation into Goulmamine. fiii) Conclusion on Actionable Statements Goulmamine correctly states that, "[i]n determining whether a statement is one of fact or opinion, a court may not isolate one portion of the statement at issue from another portion of the statement .... as (Pl.'s a whole." Rather, Br. a court must consider the statement 15) (citing 14 Hyland v. Raytheon Tech. Servs. Co., 277 also Snyder v. Va. 40, 48, 670 S.E. 2d 746, 751 (2009)). Phelps, 580 F. 3d 206, 219 (4th Cir. 2009). The conversations quoted in the Complaint at 51 23(a) 23(b) are not statements See actionable, that CVS because would no they consist longer fill and f solely of Goulmamine's prescriptions. Drawing all reasonable inferences all the other conversations quoted (s) ) contain at least one in Goulmamine's favor, (at 55 12-15 and SI5 23(c)- statement that is actionable because it is untrue and defamatory, because it is true but misleading, or because it is an opinion that is actionable on the grounds that it reciting has is verifiably false or is based on nearly two-dozen pled sufficient defamatory actionable untrue facts. conversations, statements to state By Goulmamine a claim for defamation. 2. Pharmacist-Patient Qualified Privilege CVS asserts, and Goulmamine does not contest, that conversations between a pharmacist and patient are shielded by a qualified privilege. has ever applied communications, and (Def.'s Br. qualified the 6). However, no Virginia court privilege parties' to current pharmacist-patient pleadings have not presented an adequate basis for extending Virginia privilege law to pharmacist-patient communications. 15 When confronted with uncertain state law, a federal court sitting in diversity jurisdiction must predict what course the highest court in the state would take. Byelick v. Vivadelli, 79 F. Supp. 2d 610, 623 (E.D. Va. 1999). The federal court may base its prediction on ^'canons of construction, law, treatises, recent pronouncements policies by the state's highest court, restatements of the of general rules or well considered dicta, and the state's trial court decisions." Wells v. Liddy^ 186 F.3d 505, 528 (4th Cir. 1999). Finally, cases from other jurisdictions can also provide guidance. See Warren Bros. Co. v. Cardi Corp., 471 F.2d 1304, 1307-08 {1st Cir. 1973). CVS properly states that Virginia Supreme Court's general rule on qualified privilege set by the Supreme Court of Virginia is that: "[c]ommmunications between persons which the persons have an privilege. Va. 568, Virginia (Def.'s Br. 6) 572, 528 court S.E. has on a subject in interest or duty" enjoy qualified (relying on Larimore v. Blaylock, 259 2d ever 119, 121 applied (2000)). this However, general rule no to communications between a pharmacist and a patient. Instead, the overwhelming majority of qualified privilege cases founded on the foregoing general principles deal with intra-organizational immunity. E.g., Mann v. Heckler & Koch Def., Inc., 639 F. Supp. 2d 619, 636 (E.D. Va. 2009); Kuley v. 16 Fayez, 89 Va. Cir. 238 (2014) ("The Virginia genesis came communications of the largely made to course of business]. qualified from a a privilege series business of associate doctrine cases in the in [about ordinary These cases established the privilege as a common-law doctrine in the Commonwealth"). While pharmacists and patients may have some form of common interest in the patient's health, that interest is clearly not identical to the intra- corporate common interest that forms the predicate for Virginia qualified privilege jurisprudence. CVS argues that pharmacist-patient licensed privilege relationship 'health services' qualified should because professionals' who apply to the "pharmacists render are 'professional and owe a duty of reasonable care to their patients." (Def.'s Br. 6). CVS implies that the duty to provide health care substitutes for traditional intra-corporate duties which rise to qualified privilege in cases such as Mann. gave CVS relies primarily on three sources of law to establish this duty: Va. Code § nurses, 8.01-581.1 are (stating "health that physicians, professionals" services"). Lemons v. Abbott Labs., who Inc., like provide doctors and "professional 50 Va. Cir. 339 (1999) (stating that pharmacists owe duties of care to patients, though not deciding what those duties entail), 337-38 (finding that qualified 17 and Cashion, privilege 286 Va. applied at to communications between patient's cause of death). of these sources professionals medical However, when read in context, supports actually discussing none pharmacist-patient a qualified privilege. Cashion is merely a variation on the wellestablished intra-organizational theme; it does not stand for the principle that discussions of medical care between providers and patients are always "[c] ommmunications between persons on a subject in which the persons have an interest or duty." Cashion, 286 Va. at 337. Lemons recognized that pharmacists owe a duty of reasonable care to patient-customers, but did not decide what that duty entails. Lemons, 50 Va. Cir. at 341 (leaving the scope of a pharmacist's duty to a medical malpractice board's determination) . As such, Lemons does not actually stand for the proposition that pharmacists counseling patients. have Indeed, an the "interest Virginia or case duty" law in only explicitly states one duty of care for pharmacists: the duty to correctly fill a prescription. Nichols Health Plan of Mid-Atl. States, 608 v. 257 Va. 491, K-Mart Corp., (1999); Franklin v. Inc., 997 F. Kaiser Supp. Found. 514 S.E. 2d 453, 2d 461 (W.D. Va. 2014). Finally, cases in CVS offers two Florida and Arizona federal court which the qualified privilege. courts (Def.'s found Br. 18 that 6-7). pharmacists The first, enjoyed a DeBinder v. Albertson's, Inc., No. 06-1804, 2008 U.S. Dist. LEXIS 24289 (D. Ariz. Mar. 26, 2008), is inapplicable to the legal question at hand. DeBinder turned on a call between a pharmacist and a nurse, wherein the nurse told the pharmacist that the plaintiff was "calling in prescriptions all over town" using the name of the nurse's supervising doctor. DeBinder v. Albertson's, No. CV 06-1904-PCT-PGR, 2008 WL 828775, at *3. not a pharmacist-patient subsequently found that communication. the Inc., First, this is Second, communications were the court privileged because they were made to prevent commission of a crime (fraud) and because the nurse was acting to protect her employer's reputation, id. at *5-7, not because there was a penumbra of qualified privilege for statements related to medical treatment. Lefrock v. Walqreens, 77 F. Supp. 3d 1999 (M.D. Fla. 2015) is factually similar to the instant case. found that pharmacists' "false statements The district court pertaining to [a doctor's] medical reputation and ethics" were protected by qualified privilege, because the pharmacists were "filling prescriptions and giving general advice as they have a duty to do." Id. at 1200. However, this duty to "give general advice" originated in state cases holding, in essence, that pharmacists may be liable for not checking the reasonableness of prescriptions. Arrinqton v. Walqreen Co., 644 F. Supp. 2d 1230, 19 1232-33. The Lefrock pharmacists made statements in the course of fulfilling a state law duty; that duty satisfied the "duty" requirement of qualified privilege. 1200. There is no Virginia Lefrock, case law 77 that F. Supp. creates 3d at a duty analogous to the "duty to give general advice" noted in Lefrock. However, read into requires an analogous duty or interest could plausibly be the Virginia Code. pharmacists to The pharmacist screen new licensing statute prescriptions other things, clinical abuse or misuse. Va. Code However, the pharmacist's duty to conduct § such for, among 54.1-3319(A). a review is distinct from his duty to communicate with patients, because the statute Those addresses patient subsections state counseling that a to counsel any person subsequent pharmacist counsel any person who presents a offer" in "shall new prescription" who presents prescription). Va. Code§ 54.1-3319(8). a sections. offer to (and "may refill of a If the offer to counsel is accepted, the pharmacist "shall counsel the person presenting the prescription to the extent the pharmacist deems appropriate in his professional judgment." Va. Code § 54 .1-3319 (CJ. The statute lists several topics the counseling "may, but need not, include" and neither abuse nor misuse is part of that statutory list. Id. While a pharmacist has an explicit statutory duty under § 54 .1-3319 (A) to satisfy himself that no abuse or 20 misuse is occurring, the pharmacist's statutory duty to counsel under §54 .1-3319 (B) - (C) does not explicitly state any duty to discuss abuse or misuse. However, §54.l-3319(C)'s suggested list of counseling topics is not exhaustive. Arguably, a pharmacist's professional judgment might, in some cases, cover counseling patients about abuse, misuse, and a doctor's prescribing habits. While this extension is plausible, it is not conclusively supported either by existing case law or by CVS's briefing. In sum, Virginia has not recognized any qualified privilege for pharmacist-patient communications in the past. The pharmacist's "duty to counsel" under Va. Code§ 54.1-3319(8)-(C) might create a duty to discuss the professional competence of the prescribing physician with a patient, such that pharmacist- patient an counseling would be entitled to extension of the existing common law qualified privilege. Given that there is no settled state law on the issue of pharmacist-patient qualified privilege, however, current briefing the Court (Def.'s Br. 6-7) is not satisfied that CVS's sufficiently establishes that CVS's alleged statements are sheltered by a qualified privilege. CVS may raise the issue again in a motion for summary judgment if supported by more authority than has been presented at this stage. 21 3. Consideration of Affirmative Defenses in Deciding a Rule 12(b) (6) Motion Goulmamine correctly cites Jones Praxair for the proposition that, not plead facts generally to affirmative motion to dismiss. 549 U.S. 4 66 negate 199 2 007) ) . Bock generally, affirmative defenses are not (Pl.'s Reply 6) (2007); (4th Cir. an v. Goodman v. a and Goodman a petitioner need defense, ground and to Inc., 494 that grant (relying on Jones v. Praxair, v. F. a Bock, 3d 458, Goulmamine misses Goodman's exception to the rule: a court may reach the merits of an affirmative defense at the motion to dismiss stage when "all facts necessary to the affirmative defense clearly appear on the face of the case. As complaint." Goodman, 494 F. 3d at 466. That exception, however, does not apply in this discussed below, Goulmamine has raised facts that would allow a jury to find that the qualified privilege support face of immunity protects the the CVS acted with malice, CVS's affirmative Complaint. defense. As such, statements, defense Hence, fails. 22 do potentially negating even the facts not that if qualified necessary clearly appear aspect of CVS's on to the motion 4. Malice and Loss of Qualified Privilege The parties do not dispute the established precept that a speaker loses qualified privilege when the plaintiff proves actual or coiranon law malice. (Pl.'s Reply 8). A "non-exhaustive" list of ways to prove common law malice include a showing that: (1) the statements were made with knowledge that they were (3) the statements were motivated by personal spite or ill (4) (5) false or with reckless disregard for their truth ... will ... the statements included "strong or violent language disproportionate to the occasion ... or the statements were not made in good faith. Cashion, 286 Va. at 339. Any one of these ways to show malice, if proved, defeats the privilege. Id. Goulmamine concentrates on the first and fourth methods. Goulmamine first argues that CVS employees made statements that were malicious because they exhibited reckless disregard for the truth. (Pl.'s Reply 9). Goulmamine asserts that failure to verify, when verification would have been a "simple matter," rises to the level of "wanton and reckless disregard for the rights of another." (Pl.'s Reply 9-10) (relying on A.B.C. Needlecraft Co. v. Dun & Bradstreet, Inc., 245 F. 2d 775, 777 {2d. Cir. 1957)). Goulmamine argues that, if CVS had called Goulmamine directly or adequately investigated Goulmamine, then CVS would know that the statements about DEA/FBI/Board Medicine investigations were false. (Pl.'s Reply 9-10). 23 of CVS raises factual and legal defenses to the recklessness allegation. As a factual matter, CVS argues that Exhibit 1 stated that CVS attempted to contact Goulmamine twice, such the Complaint shows evidence of CVS's due diligence. (Def.'s Reply 5 n.3). As a legal matter, CVS first rejects the notion that A.B.C. Needlecraft imposes a duty of due diligence, stating that under Fourth Circuit precedent "common law satisfied by a showing of mere negligence." malice is (Def.'s Br. not 5) (relying on Poindexter v. Mercedes-Benz Credit Corp., 792 F.3d 406, 412 (4th Cir. 2015)). CVS asserts that the Complaint states facts sufficient for negligence, at most. (Def.'s Br. 5), That view, however, off the mark. First, as a factual matter, CVS's internal investigation of Goulmamine is not an investigation into Goulmamine's relationship with regulatory bodies. Second, making any statement about a doctor causing death-by-overdose without knowing whether it was true is so damning to a medical professional truth. ^ Hatfill, that it constitutes Cashion 286 Va. at 416 F. Goulmamine reckless disregard 337; Carwile, for the 196 Va. at 8; 3d at 331. also asserts that the statements at issue included strong or violent language disproportionate to the occasion. For this proposition, (Pl.'s Reply 10). Goulmamine relies largely on Crawford & Co. v. Graves. 199 Va. 495, 100 24 S.E. 2d 714 found (1957), and qualified complained of unnecessarily Crawford & Co. goes wherein the court held that malice will be privilege beyond defamatory." lost what the Crawford where "the occasion & Co., communication demands 199 Va. and at is 498.^ stands for the proposition that ill-will is not an absolute requirement when the communication goes "beyond the scope" or is "disproportionate to" the interest or duty which gives rise to qualified privilege. Id. at 499; see also Cashion, 286 Va. at 339. Instead, disproportionately disparaging remarks may constitute malice, in place of an ill-will finding. CVS responds by arguing that ill-will is always required to prove malice. Express, Inc. However, states CVS's that own citation to "[c]ommon-law malice Great is some sinister or corrupt motive such as ... ill will Coastal defined as or what, as a matter of law, is equivalent to malice." (Def.'s Reply 4) (quoting Great Coastal, 230 Va. at 150 n.3). Again, Goulmaraine I" Crawford & Co., an insurance adjuster told the victim of a workplace accident that the victim-employee should see an orthopedist rather than a chiropodist. This, the court found, was within the scope of what the occasion demanded. However, the insurance adjuster continued on, implying that the chiropodist was only competent to cure trivial ailments ("Dr. Graves is not the type of doctor for this kind of work. He is a doctor for ingrowing toenails, flat feet and falling arches."). Because the insurance adjuster went "further than his interest or his duties require[d]" and was "unnecessarily defamatory," the statement fell outside the scope of the qualified privilege. Id. at 49899. 25 makes the better argument; Virginia case law under Crawford & Co^ and Cashion shows that malice may be proved either by ill- will or by the "malice equivalent" of going beyond the scope of the duty or occasion. Applying the first and fourth means of defeating qualified privilege from Cashion (reckless disregard or "strong or violent language disproportionate to the occasion") and bearing in mind that ill-will is not required in all malice cases, there is a triable issue of fact about whether CVS lost its qualified privilege.^ Moreover, Goulmamine need not even prove malice if qualified privilege does not apply. In the absence of qualified privilege, compensatory damages in an action between two private plaintiffs are available when the plaintiff proves by a preponderance of the evidence that the publication was false, and that the defendant either knew it to be false, or believing it to be true, lacked reasonable grounds for such belief, or acted negligently in failing to ascertain the facts on which the publication was based ... The application of this negligence standard is expressly limited, however, to circumstances where the defamatory statement substantial danger to reputation apparent. makes Gazette, Inc. v. Harris. 229 Va. 1, 13, 325 S.E. 2d 713, 725 (1985). The substantial danger of accusing a doctor of killing patients should have been apparent to a pharmacist, since accusing a person of a crime of moral turpitude or accusing a malpractice constitute defamation per se. See Hatfill, supra.• CVS acknowledges that "at most. Plaintiffs ha^ alleged that CVS Pharmacy acted negligently." (Def.'s Br. 5). The statements clearly posed a substantial danger and CVS has conceded that the Complaint might state negligence, therefore, Goulmamine has pled sufficient facts to take this case before a jury if a qualified privilege does not exist. 26 5. Conclusion Defamation and requisite privilege, requires intent. publication, an Defamation may be actionable statement, defeated by qualified and qualified privilege may be defeated by a showing of malice. Andrews, 2008 WL 2096964, at *10. Neither party contests publication, and Goulmamine has pled several untrue and defamatory statements, such that CVS's attempts to eliminate some statements as true or as mere opinion are irrelevant. The Court finds that CVS has not, at this time, made a legal argument which adequately shows that Virginia's law on qualified pharmacist privilege and patient. privilege does exist, sufficient facts that demonstrated covers reckless communications If pharmacist-patient Goulmamine a has reasonable jury indifference to the between qualified nevertheless could truth a stated find that CVS or that CVS communicated outside the scope of its duty, thereby establishing malice and defeating qualified privilege. Because Goulmamine has pled all the elements of defamation, and because CVS has not conclusively demonstrated that qualified immunity should protect the communications at issue, to Dismiss Count I will be denied. 27 the Motion CVS may raise the issue of qualified privilege again on a motion for summary judgment, following more extensive briefing. 3 C. Count II: Insulting Words Virginia's insulting words statute states, in its entirety, that "[a] 11 words shall be actionable which from their usual construction and common acceptance are construed as insults and tend to violence and breach of the peace." Va. Code§ 8.01-45. The parties disagree over three main legal issues: whether CVS uttered peace, insults whether insulting words whether CVS may which Goulmamine giving tend to violence was rise to required an introduce Exhibit to and breach of the state insulting 1 as verbatim words the March claim, 2015 the and letter referenced in the Complaint. 1. 3 Insults Tending to Peace Violence and To Breach of the Moreover, the Court declines to act on CVS's suggestion that it should convert CVS's motion to a motion under Rule 12(c). (Def.'s Reply 5 n.4). As CVS notes, "[i]t is appropriate to grant a motion under Rule 12 (c) 'where no genuine issues of material fact remain and the case can be decided as a matter of law.'" (Def.' s Reply 6 n. 4) (relying on Wells Fargo Equip. Fin., Inc. v. State Farm Fire & Cas. Co., 805 F. Supp. 2d 213, 216 (E. D. Va. 2011)) . Even incorporating the Answer and Exhibit 1, there are still unresolved and material factual issues, clearly reserved for the jury, about whether CVS acted with reckless disregard for the truth or out of proportion to its interest or duty. It would be inappropriate to grant a 12 (c) motion, and thus pointless to convert this 12(b) (6) motion into a 12(c) motion. 28 The parties disagree over two propositions of law: insulting words must be uttered face to face, whether and whether the terms of CVS's communications are insulting. (i) CVS Form of the Insulting Words states that fighting words claim, Thompson v. Virginia that § at *4 Circuit (Def.' s cannot Br. (W.D. Court Va. at confrontation a that physical No. presents reaction." a 2, 1998)) Thompson which Thompson clear in and a WL However, to danger 329237, (Va. state face of at a *4 Cir. Ct. both turned instead "clear and violent physical reaction." Thompson, at *4; Hutchins, the neither case involved on whether generic derogatory words could present a WL 329237, 2000 and relies face present 2000 confrontation that was not face-to-face; present danger of a a words used in a verbal attack Thompson, (emphasis added). of 5: 98CV00083, (quoting Hutchins v. Cecil, 1998 WL 972093, at *4 Feb. basis relying primarily on 2000). individual a the CIV. A. 16, opinion on particular form 12-13), Mar. 8.01-45 "only penalize[s] directed violent letter Town of Front Royal, 329237, WL a 2000 1998 WL 972093, at *1. The "face to face" language on which CVS relies is present in the case law, but has never actually controlled the outcome of a case. 4 4 CVS also notes that its construction is consistent with the insulting words statutes' history as an anti-dueling statute 29 The written cases Goulmamine communications are more compelling. Technical Products, defendant musters satisfy In Trail v. Inc., 697 F. sent plaintiff a Virginia statute. Trail, expressly rejected the the for the statute, proposition (Pl.' s Reply stated that the 12), General Dynamics Armament and Supp. 2d 654 (W. D. Va. 2010), letter accusing her of violating a 697 F. Supp. 2d at 658. The Trail court idea that the insulting words involves a "face to face" requirement." Id. at 658-69. Trail that "Virginia Supreme Court has statute Instead, repeatedly held that false accusation of criminal conduct, even when stated in writing, may constitute insulting words under the statute." Id. (relying on Darnell v. S. E. at 2d 658 68, concluding 70 ( 1950) that the Davis, 190 Va. ("reasonable men would be words (in the affidavit] 7 01, 707, 58 justified in carried an imputation of crime .... This, we consider sufficient to sustain a finding that the words were insulting and tended to violence (Def.'s Br. 13) (relying on W.T. Grant Co. v. Owens, 149 Va. 906, 141 S.E. 860 (1928)), but this is incorrect. W.T. Grant Co. states explicitly that no weight should be given to the fact that the statute was once an anti-dueling statute. W. T. Grant Co., 149 Va. at 913-16 (noting that, since the statute was amended to excise the anti-dueling portion of the statute in 184 9, "no weight or importance has been attached to the purpose for which it was originally enacted"). 30 and breach of the peace.") ) . 5 CVS, in its reply, cites three decisions that do not speak directly to whether insulting words may be written 6 and one case which actually supports the notion that insulting words may be written. (Def.' s Reply 12) . The plaintiff in Williams v. Garraghty, 249 Va. 224, 455 S.E. 2d 209 (1995) based an insulting words statute on a written memorandum; the trial trial, and court allowed the plaintiff the insulting raised no words error claim on that to go to basis on only in appeal. CVS's proposed face-to-face dicta. On the other hand, Court of Virginia statements court may be requirement appears at least one decision of the Supreme (Darnell) explicitly acknowledged that written actionable did not decide the as case on insulting that words, basis. though that Another Supreme 5 Darnell was not decided on the basis of whether written words are actionable in an insulting words case: the court acknowledged that the words were insulting and tended to violence, but ultimately found for the defendant because the affidavit was privileged as part of a judicial proceeding. Id. at 709. 6 Allen & Rocks, Inc. v. Dowell, 252 Va. 439, 442, 477 S.E. 2d 741, 743 (1996) turned on the likelihood of violence, and, although the words were spoken over the telephone, the court did not discuss whether the medium of communication had any impact on whether the communication rose to the level of insulting words. Chaffin v. Lynch, 83 Va. 106 (1887) states that the statute pertains to written and spoken words, though it goes on to find that the words used in the instant case did not rise to the level of inciting violence. Wright v. Cofield, 146 Va. 637, 640, 131 S.E. 787, 788 (Va. 1926) dealt with damages. 31 Court of Virginia decision allowing a written (Williams) communication to did not assign error to form the basis of an insulting words claim. Finally, one Western District of Virginia decision (Trail) explicitly and necessarily held suffices for an insulting words claim. is on Goulmamine' s communications may side: serve as the the writing The weight of authority finds Court basis that of that written an insulting words claim, at least where the words are otherwise insulting and tend to violence. 32 (ii) Language Which has a Tendency to Incite Violence CVS states, and Goulmamine does not dispute, that there is a two-part test for whether a plaintiff has stated a claim under the insulting words statute: (1) a plaintiff must plead words that would be construed as insults and breach Hotung, the peace. 7 of 85 Va. Funding Corp., (Def.' s Cir. 1988 241 WL Br. (2012); 619329, at (2) 14) tend to violence and (relying Mak Shun Ming Givens *2 v. (Va. Dominion Cir. Ct. Mortgage Sept. 1. 1988)). Whether words are insulting and tend to incite violence is determined by the usual construction of the common acceptance in the community. Cook v. 185 Va. 516, Williamsburg 39 S.E. Found., Instruction No. 19 37, 030 2d Va. 304 (1946); Cir. ( 1988 Repl. 381 words and their Patterson Drug Co., Sanderson (1990); v. Va. Colonial Model Jury Ed.) . Whether the words are "insulting" is a question of fact, but a court may find as a matter jury of law that no reasonable could find the words insulting. 8 7 The "tend to violence and breach of the peace" language from the statute is sometimes elaborated as "presents a clear and present danger of a violent physical reaction." Thompson, 2000 WL 329237, at *4. 8 "Whether or not the words used are insulting is a jury question, depending on whether from 'their usual construction and common acceptance' they may be 'construed as insults and 33 Statements that are defamatory per se are insulting per se; thus, defamatory \\insulting" per se requirement \\ [AJ n action for statements of the Edmonds, Carwile person 157 namely, F. 196 insulting words at for words actionable per se, no publication is Supp. Va. falsely two-part meet the test. insulting words ... is treated precisely as an action for slander or libel, one exception, necessarily 649, 1) . conveying 651 (E.D. Va. Accordingly, the necessary. charge of 0' Neil v. (relying on uttered by a 1958) "[wJ ords a with criminal offense involving moral turpitude are insulting and actionable under the [insulting words] statute." Zayre of Va., 47, 658. 50, 147 S.E. 2d 710, See also Shupe v. 192 S.E. 2d 766, 767 713 Inc. v. Gowdy, 207 Va. (1966); Trail, Rose's Stores, Inc., 697 F. Supp. 2d at 213 Va. 374, 376, (1972) holding modified on other grounds by tend to violence and breach of the peace.'" Sanderson, 19 Va. Cir. at 381 (quoting Cook, 185 Va. at 521). However, two Virginia circuit courts have held that a court may hold the statements at issue "not actionable as a matter of law because of the nature of the words themselves." Id. at 384 (noting agreement with Smith v. Dameron, 12 Va. Cir. 105 (1987)). The Fourth Circuit has held that a court may hold the statements at issue not actionable as a matter of law where the statement was not delivered in a manner that would tend to incite violence and breach of the peace. Id. (noting Dweyer v. Smith, 867 F.2d 184, 196 (4th Cir.1989)). Although the "insulting" part of insulting words is ultimately a jury issue, the court may decide as a matter of law that no reasonable jury could find a set of words insulting. 34 Fleming v. Moore, 221 Va. 884, 275 S.E. 2d 632 (1981) (implying that all types of defamation per se are insulting). As described above, Virginia statements as defamatory per se. impute to the plaintiff the recognizes several types of This includes statements which commission of a criminal offense (including aiding and abetting possession of narcotics), which impugn which his fitness for his trade (including statements suggest that plaintiff has engaged in sanctionable professional misconduct), or which prejudice plaintiff in pursuit of his trade. Carwile, 196 Va. at 8; Hatfill, 416 F. 3d at 330-31. 2. CVS exact Federal Pleading Requirements for an Insulting Words Claim argues language that, of because the March claim must be dismissed. 2000 WL 329237, at *4 Goulmamine 2015 (Def.' s failed letter, Br. 12) his to quote the insulting words (relying on Thompson, (\''the exact words charged to have been used by the defendant must be alleged' in order to state a cause of action for insulting words)). Thompson derives this principle from a family of Virginia state court cases holding that '\ (t] o state correctly a insulting words, good cause of action for libel, slander or the exact words charged to have been used by the defendant must be alleged." 35 Land Bank of Baltimore v. Birchfield, 173 Va. 200, 200, 3 S.E. 2d 405, 405 (1939); Long v. Old Point Bank of Phoebus, 41 Va. Cir. 409 (1997). Goulmamine, in response, claims that the "exact words" requirement is a state law requirement that is inapplicable in a federal proceeding, and govern his Complaint. F. 3d at complaint 32 9 in (\\A that laxer federal (Pl.' s Reply 18) defamation federal court, standards (relying on Hatfill, complaint, must pleading like provide 'a any other short and 416 civil plain statement of the claim'")). Goulmamine' s reference to the general federal pleading is defeated by more specific federal pleading First, insulting words and defamation standard of jurisprudence on under Goulmamine ignores that Thompson was a Virginia law. federal district court decision, deciding an insulting words claim, that required plaintiff to plead exact words. District Virginia of Virginia state law 2011) LMB/TCB, (\\The Virginia law when McGuire and 2011 pleading 'requires must be set out courts in the Eastern regularly cite the pleading they WL for the at a exact standards defamation McGuire v. 4007682, standard that dismiss failure to plead exact words. 1:11CV528 Second, *5 cases for IBM Corp., No. (E.D. defamation words Va. cases involve 36 Sept. claim 8, under spoken or written in the declaration in haec verba' ") . similar of defamation Al though rather than insulting words, the insulting statute words "has been interpreted by Virginia courts to be virtually co-extensive with the common law action for defamation." Potomac Valve & Inc. (4th v. 1987) to Crawford Fitting Co., 82 9 F. 2d 1280, 1284 Fitting Cir. (applying constitutional imitations on defamation actions insulting words cases) ; O'Neil, 15 7 F. Supp. at 651 ("an action for insulting words ... is treated precisely as an action for slander exception, or libel, namely, for words actionable per no publication is necessary") . se, with one Thompson and McGuire are persuasive authority and, relying on them, the Court concludes that insulting words claims must state the insulting language in haec verba in federal as well as state court. 3. Introduction of CVS's Exhibit 1 CVS operates under the assumption that the letter provided at Exhibit 1 is the same March 2015 letter to which Goulmamine refers in the Complaint as the basis for claim. his insulting words (Def.'s Br. 12). However, Goulmamine objects to the unilateral inclusion of its purported March letter to Goulmamine This letter may indeed be the letter that is referenced in the Complaint, but it also may not. As clearly alleged in the Complaint, Goulmamine was so angry when he received the letter, he ripped it up. Thus, he is unable to say for certain at this stage that CVS is correct in its analysis. In any event, this dispute cannot be resolved at the Rule 12(b) (6) motion to dismiss stage. 37 (Pl.'s Reply 19). While courts must draw all reasonable factual inferences in a plaintiff's favor at the 12(b) (6) stage, 3d tolerate at 244, failures a court is not required to Edwards, 178 F. unreasonable to ask one's client whether an exhibit is the letter referenced in the Complaint. There is no "may or may not 11 : Exhibit 1 either is the letter Goulmamine received in March, or it is not. 4. Application of Law to the Parties' Proffered Letters Nevertheless, even if Exhibit 1 is not the March 2015 letter underlying Goulmamine's insulting words cause of action, this Court finds that neither Exhibit 1 nor the Complaint states words actionable under the insulting words statute. (i) Exhibit insulting. CVS's Exhibit 1 1 The is brief, but statements that letter suggests the Goulmamine' s undermined CVS' s ' 1 compliance obligations. 1) . reasonable Drawing favor, this turpitude, all could be factual read as /1 (Def.' s inferences suggesting are a plausibly prescriptions Br. 14; Ex. in Goulmamine' s crime of moral particularly since Hatfill noted that allegations of aiding and abetting narcotics possession qualified as def amatory per se. Hatfill, 416 F. 3d at 331. 38 This may also plausibly be read as suggesting misconduct. See, plausibly or a Goulmamine e.g., Carwile, that find misconduct that these has 196 cornrni t ted professional Va. at A imply statements crime of moral 8. turpitude, jury could professional such that they are insulting per se. However, statute, "insult" and this is only half of the insulting words letter cannot satisfy the other half of the test because it cannot be read as inciting violence or breach of the peace. CVS compellingly points out that its "muted and respectful tone ... could never reasonably be construed to provoke violence or a breach of the peace." (Def.' s Br. 14) . CVS also points out in its reply that "[p]laintiffs do not deny that the alleged statements did not tend to violence or a breach of the peace, and thus, point." they must be determined to have conceded the (Def.'s Reply 12). Exhibit 1, the basis of an insulting words claim, therefore, cannot form because the letter does not tend to violence or breach of the peace. ii. Goulmamine's Complaint The Complaint states four phrases in haec verba: "wrote too many pain pill," "red flags" and "self pay," and "takes to heart drug abuse and diversion." The statement that Goulmamine "wrote too many pain pill" prescriptions and the suggestion that Goulmamine facilitated drug abuse could be insulting language, 39 because a jury could find that they imply professional misconduct, which is defamatory and insulting per se. However, under the noted above, insult insulting word statute: sufficient the as facts words have such that a a "clear a alone sufficient juror could find that present violence." These four quotations, not plaintiff must also plead reasonable and is tendency to incite devoid of any other context, do not suggest that a reasonable juror could find that the words have a clear and present tendency to incite violence. 5. Looking Complaint, Conclusion at either Goulmamine has CVS's not Exhibit pled or 1 words Goulmamine' s adequate that a reasonable juror could find that the March 2015 letter tends to violence or breach of the peace. Because Goulmamine has failed to state a relief may be granted, claim upon which the Motion to Dismiss Count granted. Count II is dismissed without prejudice, file an amended complaint within 21 days if II will be with leave to Goulmamine can present to this Court the text of an alternate March 2015 letter which tends to incite violence or breach of the peace. 40 D. Count III: Tortious Interference The elements of interference existence of a valid contract; contract ( 3) causing a breach of that from contract. (Def.' s Br. 15) (relying S.E. 2d 589, 602 (Va. 2015)). Bouffault, 772 are: ( 1) the ( 2) defendant's knowledge of that contract; that defendant's with intentional contract; interference and ( 4) inducing or damages resulting on Schaecher v. Interference with contract is only an available cause of action when contracts are for a set duration, and is not available when the contracts are terminable at will. (Def.' s Br. 16) (relying on Wright v. Dee, 87 Va. Cir. 148, at *3 (2013)). The business elements of expectancy a claim are: for tortious interference of existence (1) a with business relationship or expectancy with a probability of future economic benefit to relationship plaintiff; or (2) expectancy; defendant's (3) a knowledge reasonable of the certainty that plaintiff would have continued in the relationship or realized the expectancy absent defendant's intentional misconduct; (4) interference by improper methods; and (5) damages resulting from that interference. (Def.' s Br. 17) 41 (relying on BB&T Ins. Servs., Inc. v. Thomas Rutherford, Inc., 80 Va. Cir. 174, at *6 (2010); Glass v. Glass, 228 Va. 39, 51, 321 S.E. 2d 69 (1984)) . 9 "Interference are not with terminable Contract at is will. applied to contracts Interference with that Business Expectancy is applied to contracts that are terminable at will, to prospective prospective business economic relationships or to Wright, advantage. " 87 some Va. type Cir. of at 151 (relying on Lewis-Gale Med. Ctr., LLC v. Alldredge, 282 Va. 141, 149, 710 S.E. 2d 716, 720 (2011)). First, although improper acts damages has Goulmamine {defamation) has (Compl. pled interference 12-15, (lost patients and referrals) (Compl. 23) through and has pled 27), Goulmamine not pled the causation element necessary to both tortious interference causes of action. Even when this lack of causation was challenged, identify any (Def.'s facts Br. connecting 16, the 18), Goulmamine defamation to failed the loss to of business. (Pl.' s Reply 19-20) . Goulmamine correctly states that he not need "provide specific 9 examples of patients and Although CVS argues that Goulmamine has failed to plead the "improper act" element of tortious interference with business expectancy {Def.'s Br. 18-19), this Court finds that Goulmamine has pled facts sufficient to support a claim for defamation at the instant stage, supra. Because defamation is an improper method, Storey v. Patient First Corp., 207 F. Supp 2d 431, 447 {E.D. Va. 2002), the Court declines to dismiss on this ground. 42 referrals" at the 12 (b) (6) stage. (Pl. Reply 19). However, he must plead facts that show that CVS's conduct was the cause of the loss alleged in the Complaint. Even accepting all well- pleaded allegations as true, the absence of causation means that Goulmamine' s Complaint does not state a set of facts entitling him to relief on either tortious interference cause of action. Second, Goulmamine has failed to plead the existence of a contract not terminable at will. Although the Complaint states that "Plaintiffs have a valid contract ... as to Dr. Goulmamine' s and The Spine Goulmamine's Center's relationships (Compl. patients," conclusory statement, between I en 4 0) this them is and Dr. merely a and does not contain facts sufficient to show that these lost patients were not free to terminate their contracts at will. as true, the Even accepting all well-pleaded allegations absence of a terminable contract means that Goulmamine' s Complaint does not state a set of facts entitling him to relief the tortious interference with contract cause of action. For prejudice these as reasons, regards the Count III Tortious will be Interference dismissed with with Contract Claim. Count III will be dismissed without prejudice as regards the Tortious Interference with Business Expectancy claim, leave to file an amended complaint within 21 days. 43 with CONCLUSION For the reasons set forth above, Defendant's MOTION TO DISMISS {Docket No. 10) will be denied as to Count I. It will be granted as to Count II, but Count II will be dismissed without prejudice with leave for Plaintiff to file an amended complaint within 21 days if Goulmamine can establish that the torn-up letter is not the same letter that CVS presented at Exhibit 1. That motion will be granted dismissed with prejudice as as to to the Count Tortious III. It will be Interference with Contract Claim. It will be dismissed without prejudice as to the Tortious Interference with Business Expectancy Claim, with leave to file an Amended Complaint stating causation and the nature of the business expectancy within 21 days. It is so ORDERED. Isl Robert E. Payne Senior United Judge Richmond, Virginia Date: October 2015 44 States District