Danjczek v. Spencer et al, No. 3:2015cv00505 - Document 25 (E.D. Va. 2016)

Court Description: MEMORANDUM OPINION. Read Opinion for complete details. Signed by District Judge Robert E. Payne on 01/11/2016. (ccol, )
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Danjczek v. Spencer et al Doc. 25 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division MELISSA ELIZABETH DANICZEK, ESQUIRE, Plaintiff, Civil Action No. V. ANTHONY G. et al., SPENCER, 3:15cv505 ESQUIRE, Defendant. MEMORANDUM OPINION This matter is before the Court on ANTHONY (Docket No. SPENCER'S RULE 12(b)(6) MOTION TO DISMISS stated below, the motion will be granted in part and denied in part. The motion is granted as Four, which are dismissed with prejudice. as it pertains prejudice opinion. and The Additionally, to with motion the Count leave is Court grants The motion is granted which re-plead denied For the reasons i t pertains to Counts Three and Five, to 8). G. as to is within the Danjczek's dismissed 21 days of remaining request to without this counts. amend her Complaint to plead a count of business conspiracy under Va. Code §§ 18.2-499-.500.^ ^ That request was made in the Plaintiff's Memorandum Opposition to Defendant Mahoney's Motion to Dismiss 11, in (Docket No. 2-5). Dockets.Justia.com BACKGROUND I. Factual Background The Complaint states that on May 15, Conunonwealth's proceeding briefing, Attorney (in which plaintiff, in any defending a of was, legal Melissa Danjczek, Danjczek's possession. Court he G. Spencer based on Caroline County interrupted the 1, to demand that If 13-17). At the time, DUI County. charge In open 7) . ordered in the General court, Spencer Spencer to return (Compl. the ordered Spencer out of the courtroom. That afternoon, without f 19-23). the manual to (Compl. f further In his criminal complaint. Commonwealth Spencer Danjczek District accused (Compl. had the in the courtroom. the same day. Attorney resulting (Compl. (Compl. f of Dancjzek, SlSl 21, 25). of 24). and 17). investigation. Spencer (Compl. Spencer stated that he was Caroline warrant he 17). The presiding filed a criminal complaint accusing Danjczek of larceny. f the When Danjczek would not give Spencer the manual, shoved her and grabbed the manual. judge the give him a DUI Manual that was in (Compl. client on a Caroline capacity} Danjczek of having taken the DUI Manual from his office. Exs. DUI and Complaint a apparently not serving as the prosecuting attorney or participating was Anthony 2015, County. arrest (Compl. served on f 19). Danjczek Danjczek retained counsel On May special 20, 2015, prosecutor defense counsel. a in Caroline all (Compl. cases f 21). County in judge which appointed Danjczek On May 21, served a as a Caroline County judge appointed a special prosecutor in the larceny case against Danjczek. (Compl. SI 29). The appointments served to remove Spencer from all cases involving Danjczek. On May 19, 2015, John Mahoney, a lawyer, informed Danjczek that the altercation over the manual had ^^made" Virginia Lawyers Weekly. (Compl. Danjczek again Attorney against "knowing that Special SI to 26) . On speak about Spencer. Danjczek Prosecutor May his (Compl. was had 20, 2015, running for S[ On 28) . represented been Mahoney by appointed" Commonwealth's May counsel in contacted the 22, 2015, and that larceny a case, Mahoney contacted Danjczek and informed her that he had brokered a deal whereby Danjczek against if Spencer would Danjczek Spencer. dropped (Compl. S[ drop all 31) . the larceny charges civil and Mahoney criminal also against charges stated that "Danjczek's business had been hurt by the situation and that i t was only going Mahoney asked to to get worse." speak speak to her attorney. informed Danjczek Commonwealth's 2015, that Attorney. to (Compl. Danjczek (Compl. he SI was (Compl. in 32) . SI 31). person; On May she On May 28, running for SISI On 33). 2015, told him to 2015, the or 26, Mahoney position about June of 1, Mahoney again mentioned to Danjczek that he had met with Spencer to "figure out how to handle the situation"; Danjczek informed Mahoney to speak to her attorney. (Compl. If 34).^ On June 2, 2015, Danjczek was informed that she was being removed from the Court Appointed Counsel County courts. (Compl. SI 36). On list June 5 for all Caroline and June 9, 2015, Mahoney requested to speak with Danjczek, and Danjczek did not respond. 2015, again, {Compl. M telling Danjczek Danjczek business, ^^fix it." 36-37). On June that the and that she, (Compl. f 10, larceny Mahoney, Mahoney charge called had cost and Spencer needed to 39) . Mahoney also informed Danjczek that he would be writing an article about the incident for the Caroline Progress, "I think you article." Caroline her of letter want (Compl. County the to me S thinking 39). Sheriff's following: have her happy Later that Office that thoughts called Spencer removed day, from was the when and stated I write Sgt. Nutter Danjczek and "planning Caroline of the the informed to file County a Court Appointed Counsel Lists" using "everything he had on Danjczek"; that Mahoney had worked out and Danjczek to drop a charges reciprocal against agreement each for other, Spencer and that ^ How and why it came to be that Mahoney was thusly involved is not disclosed by the record. But, it is certainly a strange set of affairs that one of Spencer's potential opponents for political office was engaged in this matter in the way described in the Complaint. Spencer would not "bury" the "information he unless Danjczek allegations to agreed; tarnish continue[d]that Danjczek. that Spencer Danjczek's Mahoney had [had] on Danjczek" "would reputation requested be if that making the drama Nutter call (Compl. 5 40). "When Mahoney determined that he was not going to be able to persuade Danjczek to accept the officer, he began lobbying efforts to have himself replace the Special Prosecutor" in cases where Danjczek served as defense counsel to "further harass and intimidate special Danjczek." prosecutor (Compl. ff 42-43). August 18, 2015, on that order the next day. The prejudice attention larceny on of "irreparably June charge 30, several harm[ing]" Mahoney was but the appointed judge vacated (Compl. 51 49-50). against 2015, local Danjczek but not news Danjczek's was before dismissed attracting outlets, reputation and as an with the allegedly attorney. (Compl. M 44-48).^ ^ In addition to media coverage of Danjczek's larceny case, on or about August 20, 2015, Spencer "sent a forty-three page document to Virginia Lawyers Weekly and the Richmond-Times Dispatch alleging that Investigator Marshall Ellet of the Caroline County Sheriff's Office had withheld exculpatory evidence," apparently making good on his earlier threat. (Compl. M 51-52). II. Procedural Background On Court August 24, asserting 2015, five Danjczek claims filed against against Mahoney and Spencer jointly. the Spencer Complaint and in three this claims The counts against Spencer are: • Count One: False Arrest and Wrongful Seizure in Violation of 42 U.S.C. § 1983 (Compl. 55 54-60) • Count Two: Assault and Battery (Compl. 55 61-65) • Count Five: • Count Six: Abuse of Process {Compl. 55 93-96) • Count Seven: Malicious Prosecution (Compl. 55 97-102) Defamation (Compl. 55 85-92) The counts against Spencer and Mahoney were: • Count 3: Attempted Extortion (Compl. 55 66-7 9) • Count 4: Civil Conspiracy to Commit Extortion (Compl. 55 80-84) • Count 8: (Compl, Intentional Infliction of Emotional 55 103-117) Mahoney filed his motion to dismiss Counts Three, Eight, accompanied by ("Mahoney's 12(b)(6) all the claims Distress by a ("Spencer's 12(b)(6) Memorandum in Mem."). other accompanied a Support. Four, (Docket No. and 4) Spencer filed his motion to dismiss than Count Memorandum Mem."). in Two (Assault Support. Danjczek and (Docket replied Battery), No. separately 9) to Mahoney (Pl.'s Mem. in Supp. Dismiss, Docket No. 11) Spencer (Pl.'s Mem. Dismiss, Docket No. Docket No. filed a reply. to Def. Mahoney's Mtn. ("Pl.'s Mahoney 12(b)(6) Resp.") in Supp. 12) Mahoney filed a reply. Dismiss, of 0pp. of 0pp. to Def. ("Pl.'s Spencer and to Spencer's Mtn. 12(b)(6) to to Resp."). (Def. Mahoney's Reply in Supp. of Mtn. to 15) ("Mahoney's 12(b)(6) (Spencer's Rebuttal in Supp. to Dismiss, Docket No. 14) Reply"). of R. Spencer 12(b)(6) Mtn. ("Spencer's 12(b)(6) Reply"). In her response to Mahoney's brief, Danjczek conceded that she had not adequately pled Counts Three and Four, and withdrew those In claims. pleading, include Mahoney 12(b)(6) Resp. 2). the same Danjczek requested leave to amend the Complaint and to a new conspiracy" Mahoney (Pl.'s claim against in violation 12(b)(6) Resp. Spencer of 2). Va. and Mahoney Code Spencer for "business §§18.2-499-.500. and Mahoney (Pl.'s opposed the amendment. Danjczek (Docket No. subsequently 18), dismiss as moot and dismissed the (Docket No. Court Mahoney denied from Mahoney's the case motion to 19). ISSUES The questions before the Court are: (1) Whether Counts because to One, (a) grant Spencer's Five, Danjczek Six, Motion Seven, failed to to and state Dismiss as Eight, either a claim to upon which relief may be granted, or (b) Spencer enjoys qualified or absolute immunity. (2) Whether to grant Danjczek's request to amend her Complaint to include a claim for business conspiracy. LEGAL STANDARD FOR A UNDER FED. A motion challenges to the R. dismiss legal R. Civ. P. P. under sufficiency Alternative Resources Corp., Fed. MOTION TO DISMISS CIV. 458 8(a)(2) 12(b)(6) Fed. of R. a 338 only ... in order to give the defendant claim Evans v. F.3d is the Maryland 582, Twombly, and 585 When Dep't (4th 550 U.S. 544, deciding reasonable a Ltd. (4th Cir. 2009). pleader's description can accept the be v. of a 2015) 555 short it State v. 2006), and plain is entitled to rests." Highway in to dismiss, favor of However, Admin., a Atl. court the Corp. 780 "draw[s] plaintiff." Inc., 591 v. all Nemet F.3d 250, 253 while the court must "will accept the of reasonably Bell McCleary- (2007)). motion (citing Consumeraffairs.com, facts," Jordan fair notice of what the which Transp., what drawn conclusory allegations pleaded upon Cir. inferences Chevrolet, that grounds 12(b)(6) (4th Cir. statement of the claim showing that the pleader relief, P. complaint. F.3d 332, "requires Civ. Charles happened" therefrom," and the encompassing the A. 8 Wright & "any court legal Arthur conclusions "need effects R. not of Miller, Federal Practice and Procedure § 1357 Old *4 a Dominion Sec. (E.D. Va. Co., 2014). L.L.C., No. (3d ed. 1998); 3:13CV820, 2014 Chamblee v• WL 1415095, Nor is the court required to accept as true legal conclusion unsupported by factual allegations. V. 868 Iqbal, 556 U.S. (2009). analytical dismiss amount "Twombly approach requires to mere 678-79, and for courts 129 S. Iqbal evaluating to formulaic and to conduct a the 662, reject recitation also "after factual conclusory of all 173 L. clear 12(b)(6) the Ed. that motions elements of a 2d the allegations allegations plausibly to that claim all well-pleaded reasonable in the plaintiff's favor, factual suggest supra; Chamblee, a motion made under Rule 12(b)(6) accepting and drawing made Rule entitlement to relief." Wright & Miller, if, 1937, context-specific analysis to determine whether well-pleaded In sum, Ct. Ashcroft an supra. should be granted allegations inferences ... as from those true facts it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief." Edwards v. (4th Cir. City of Goldsboro, assessing 244 1999). APPLICATION OF MOTION TO DISMISS The 178 F.3d 231, foregoing whether principles Danjczek has STANDARD TO DANJCZEK'S CLAIMS provide stated the facts may be granted in each count under attack. framework upon which for relief I. Count One: U.S.C. § False Arrest and Wrongful Seizure under 42 1983 A. General Requirements of a § 1983 Claim "Section 1983, who, under color constitutional which imposes civil liability on any person of or 875 F. deprives another statutory rights, substantive rights, federal law, is not person itself Oliver, 1124, 510 U.S. (1994)) 1132 266, (internal a federal source of but merely provides a method for vindicating rights elsewhere conferred." Amato v. Supp. of (E.D. 269, Va. 114 S. quotations 1994) Ct. (relying on Albright v. 807, omitted). City of Richmond, To 811, 127 L.Ed.2d. succeed on a § 114 1983 claim, a plaintiff must prove by a preponderance of the evidence that: (1) the plaintiff of a defendant federal engaged in conduct constitutional or which statutory that the defendant was acting under color of law, the acts damages. of that Amato, Blackmar, & defendant 875 Wolf, F. proximately Supp. Federal at Jury caused 1132-33 (relying Practice and right, and the deprived (3) (2) that plaintiff's on Devitt, Instructions § 103.03). The second Danjczek asserts (Compl. 5S[ and government third that 7-8), official. and elements Spencer was Spencer (Spencer's 10 a are not state actor characterizes 12(b)(6) at Mem. issue at the himself 7). here. time as a Danjczek alleges that as a direct result of the mental, physical, and professional harm. arrest, she suffered (Compl. S[ 60). The first element, whether Danjczek made out a violation of a constitutional question. right cognizable Additionally, Spencer under argues has adequately pled a violation of a protected by addresses B. qualified each of these and issues § 1983, that, remains even if Danjczek constitutional right, absolute immunity. in The he is Court in turn. False Arrest Claims of false arrest are cognizable in an action under 42 U.S.C. v. § 1983 Anderson, 873 on Brooks v. 1996); Oct. as F. Supp. of the Fourth 2d 753, 756 City of Winston-Salem, Day v. 28, violations Milam, 2011)). l:llcv97, Amendment. (E.D. Va. 2012) 85 F.3d 178, 2011 WL 5190809, "A plaintiff's allegations McPhearson 183 at (relying (4th Cir. *4 (E.D. Va. that police seized him pursuant to legal process that was not supported by probable cause and that the criminal proceedings terminated in his favor are sufficient violative Cnty•, of 475 to the F.3d state a Fourth 621, claim alleging Amendment." 630 (4th Cir. that Miller 2007) v. a seizure Prince {internal was George's quotations omitted). To because because proceed it on followed it was a from claim a that warrant dishonest," "seizure affidavit "Plaintiff 11 was that must unreasonable was deficient prove that [defendant] truth made omitted make, the deliberately or material from that or with false a reckless statements affidavit reckless affidavit with material in disregard his facts for affidavit with the the ... or intent to disregard of whether they thereby made, misleading." Miller, 475 F.3d at 627 (internal quotations omitted) Reckless disregard can be established by evidence that an officer acted with a high degree of awareness of [a statement's] probable falsity, that is, when viewing all the evidence, the affiant must have entertained of his doubt serious statements the or accuracy doubts had of as to obvious the the truth reasons information to he In the case of a lay affiant, the affiant is liable when a complaint is made "maliciously and without cause." Malley v. Briggs, 475 U.S. 335, 341-42 (1986). However, government officials are governed by standard of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Only where the warrant application is lacking in indicia of probable cause as render official belief in its so to existence unreasonable, Leon, supra . . . will the shield of immunity be lost ... The question in this case is whether a reasonably well-trained officer in petitioner's position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant. Malley, 475 U.S. at 344-45. In Complaint as a whole indicates the instant case, while the that Spencer harbored some inexplicable malice against Danjczek that drove this bizarre sequence of events, and although Danjczek alleges that Spencer's allegations were malicious (Compl. ^ 55, 59), Malley prohibits the Court from considering that malice. The dispositive question thus becomes Miller's objective test of reckless disregard. 12 reported .... the false statements or omissions must be material. Id. jury at 627, could 629 find (internal that causing middle-aged black male suspect was with a young reckless quotations when a all white male disregard for omitted) warrant to information be issued for indicated that constituted a whether (holding that the a a the misrepresentation affidavit was misleading). Allegations of negligence or mistake do not provide a sufficient basis for constitutional violations. Miller, 475 F.3d at 627-28; McPhearson, 873 F. Supp. at 757. In this case, Danjczek alleges two relevant pieces of before he information: 23. Spencer did not request the assistance of law enforcement in obtaining his warrant. No officers of the CCSO were involved in any aspect of Spencer obtaining a warrant. Indeed, no investigation was ever conducted by law enforcement at any time during the pendency of the case against Danjczek. 55. Spencer knew that his allegations of petit larceny by Danjczek were ... without probable cause . . . Spencer knew that there was absolutely no indicia of evidence that the DUI Manual in question was ever the property of Spencer or his office . . . . This fact became clearly evidence when Judge Reibach ... asked Spencer for the manual ... and returned it directly to [Danjczek]. (Compl. 23, 55) . procured the warrant, (Compl. 5 18). Danjczek also states that, Spencer acknowledged acting out of anger. Danjczek alleges also that Spencer's purpose in 13 securing the warrant was further evidenced by Spencer's refusal to accept a suggestion that the Sheriff's office should investigate whether Danjczek had stolen the DUI Manual. f 21). On this "deliberately or basis, with Danjczek reckless alleges disregard" that for (Compl. Spencer her acted Fourth and Fourteenth Amendment rights in having her arrested, acting only on his unfounded, uninvestigated suspicion. 59). The Court must accept Danjczek's (Compl. f alleged facts as true, take the facts in the light most favorable to the plaintiff, and draw all reasonable inferences in Danjczek's favor at the motion to dismiss 628-29. stage. Under specificity Iqbal, this that 556 U.S. standard, the at 679; Danjczek warrant was Miller, alleges issued 475 with and F.3d at sufficient that she was arrested without any investigation into Spencer's suspicions and without the any factual DUI true, Manual. show arrest. that The prohibits claim for In other there Fourth that basis whatsoever was words, no Amendment conduct, and to believe that Danjczek's probable to the cause United Danjczek has facts, to States she stole taken support as her Constitution adequately stated a false arrest. In relation to the false arrest miscellaneous assertions of law, issue. all of which are unfounded and do not negate Danjczek's statement of a may be granted. 14 Spencer makes three claim upon which relief Spencer first argues that "[a] maintained when the defendant valid arrest warrant." Porn V. 2010). As Town of false arrest claim cannot be has been (Spencer's Prosperity, 375 12(b)(6) Fed. That contention presupposes explained proved, above, then contention the must if the warrant fail. arrested App'x that The not fact 284, of a (relying on 288 the validly that 4) to (4th Cir. the warrant was valid. allegations was Mem. pursuant a Complaint issued, magistrate so are that erroneously issues a warrant based on a constitutionally deficient affidavit does not protect affiant would the have affiant where recognized a that reasonably the affidavit did not 475 U.S. 335, 341- demonstrate probable cause. Malley v. Briggs, 42 (1986); Complaint, knew that Miller, 475 if proved, the Spencer F.3d 632. would permit a affidavit was next at The well-trained allegations of the jury to find that Spencer untrue. suggests that the fact that the magistrate eventually issued the warrant is entitled to "great deference." (Spencer's Va. 353, Circuit 12(b)(6) 360 have recklessly Mem. (2011)). both causes 5) (citing Hicks v. However, held that, an constitutionally deficient Commonwealth, 281 the Supreme Court and the Fourth when arrest an affiant warrant affidavit, the to intentionally issue intervening on fact or a that a magistrate grants the warrant does not absolve the affiant of § 1983 liability. Malley, 475 U.S. 15 at 345-46 ("ours is not an ideal system, under and docket is pressures, should"); Miller, Finally, theft it possible will that fail to a magistrate, perform as a working magistrate 475 F.3d at 632. Spencer prosecution addresses was Danjczek's time-barred, probable cause to accuse her of a such crime. assertion that that Spencer any lacked (Spencer 12(b)(6) Mem. 6) . Spencer argues first that a statute of limitations only bars conviction rather than issuance of a warrant, and second that larceny is a continuing offense in Virginia such that statute of limitations did not begin to toll removed from Danjczek's possession. (relying on Thompson v. until the DUI Manual (Spencer 12(b)(6) Commonwealth, 390 S.E. Mem. 2d was 6-7) 198, 200 (1990)). Spencer is correct on the second point. E.g., Gheorqhiu V. 280 Va. Com., identified 678, larceny as 685, a 701 S.E.2d 407, continuing 411 offense (2010) for ("We have venue purposes based on the common law legal fiction that each time the stolen goods are taken asportation and a into a new new crime jurisdiction, is there committed"). is an However, illegal the fact that any larceny was within the statute of limitations does not have any swearing: effect the Spencer's affidavit constitutionally outside of the on deficient intentional underlying whether the statute of limitations. 16 or the larceny reckless false Complaint was within was or C. Qualified Iinmunity Stating a claim under 42 U.S.C. § 1983 also requires that Danjczek overcome any common law immunities which Spencer enjoys as a state official.^ Defeating a qualified immunity claim under § 1983 requires a two-pronged analysis. A court examines (1) whether the facts alleged by the plaintiff make out a violation of a constitutional "clearly established" misconduct. also right; at Anderson v. Pearson v. and the (2) time Creighton, Callahan, 55 of whether the 483 U.S. U.S. 223, the right defendant's 635, 232 640 (2009) was alleged (1987); see (eliminating the order of operations in assessing these two prongs); Henry v. Purnell, In 501 "[q]ualified F.3d 374, immunity conduct violated Pearson, 55 U.S. a and (4th Cir. unless applicable established 2007). the sum, official's constitutional right." at 232. The plaintiff bears the burden of proof the second question, Henry, is clearly on the first question, occurred, 376-78 whether the violation of a federal right defendant whether he bears is the burden entitled to of proof qualified on the immunity. 501 F.3d at 377-78. ^ Prosecutors are not entitled to absolute immunity in swearing out testimony which provides the basis for probable cause when "any competent witness" might have performed that function. Kalina v. Ed. 2d 471 Fletcher, 522 U.S. 118, (1997). 17 129-30, 118 S. Ct. 502, 138 L. As of explained above, the facts Danjczek's constitutional right as pled present to be free a violation from unreasonable seizure. This satisfies the first prong of the analysis. The second whether that violation. As prong right a of was the analysis requires clearly established at general matter, notice their conduct is the lawful." suit, Miller, 475 of time of the "[q]ualified immunity to ensure that before they are subjected to on examination operates officers are F.3d at 631 (internal quotations omitted). As such, [a] clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right .... We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate . . . . We have repeatedly told courts .... The dispositive question is whether the violative nature of particular conduct is clearly established .... We have repeatedly told courts . . . not to define clearly established law at a high level of generality .... This inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition. Mullenix v. quotations whether Luna, omitted). case law 135 In S. Ct. other clearly 305, words, 308 the established (2015) correct that a (internal inquiry federal is law prohibited the official's conduct in the context of the specific situation he confronted. Mullenix, 18 136 S. Ct. at 309. Spencer violated a clearly established rule. Court has long held Amendment with if, in order reckless statements that 677 or omits Leon, (1984)) Siwinski, to disregard police for 897, warrant, the truth facts." Delaware, 468 U.S. officer violates obtain a material (relying on Franks v. States V. a Miller, 438 U.S. 922-23, F.2d 257, 264 he 154, (4th Cir. Fourth material 475 155 104 S.Ct. the deliberately or makes (internal citations omitted). 942 "[T]he Supreme F.3d false at 631 (1978); United 3405, 82 L.Ed.2d See also Torchinsky v. 1991) (noting that police officer may be liable under § 1983 where he fails to investigate readily available exculpatory evidence); Clipper v. Takoma Park, Md., 876 F.2d investigation, Hucal, "extent arrest" F.2d which is (4th Cir. 123, a and balanced (finding over-reliance F.2d n.5 Circuit found that clearly established Cir. police rule Cir. officer that on 1986) must the approvingly (4th a (7th against (cited 957 127 police circumstances) 953, 1989) failure in officer In of v. be deliberately making false statements in an affidavit. the prior to extenuating Dicksey, Miller, should BeVier that investigate Sevigny 1988)). against (noting existence to investigative justify a § 1983 claim for false arrest); 806 to 20 speculation, instincts may v. 17, the aware or 846 Fourth of this recklessly Police officers are not prosecutors, meaning that there is no case directly on point for the proposition that prosecutors 19 should not deliberately or recklessly make false statements in an affidavit. Nonetheless, the same principles apply with equal, if not greater force, prosecutor knowledge Amendment who is does not charged with countenance the affidavits that based on the to a Fourth falsehoods or deliberate disregard for the truth. In any event, point is question not is, necessary. instead, particular conduct the context as explained in Mullenix, of is this Mullenix, whether the 136 a case directly on S. Ct. violative at 309. The of the nature clearly established and beyond debate specific situation. Id. The Court in finds Miller^ s^ pronouncement that police officers may not deliberately or recklessly make false statements in an affidavit. Miller, F.3d at 631, would have clearly indicated to a 475 reasonable officer in Spencer's position as a prosecutor that his actions violated that established right, established" requirement of Mullenix. the complaint, there are would have made Miller^ s Stated simply, a no Moreover, extenuating the prosecutor must "clearly on the facts of circumstances applicability uncertain reasonable ® In the Fourth Circuit, satisfying know in this that, which case. like a a ruling by the Supreme Court of the United States, the Court of Appeals for the Fourth Circuit, or the highest court in the state in which the case arose suffices to "clearly establish" a constitutional violation. E.g., Hill v. Crum, 727 F.3d 312, 322 (4th Cir. 2013). Miller, decided in 2007, "clearly established" the relevant rule prior to Spencer's alleged violations of Danjczek's rights in 2015. 20 police officer, the prosecutor cannot make deliberately or recklessly false statements. For the burden of foregoing reasons. proof and Spencer has persuasion on the failed to meet his issue of qualified immunity, and the motion to dismiss Count One will be denied. II. Count Two: Assault and Battery (231 61-65) Spencer does not ask the Court dismiss Count Two. (Spencer's 12(b)(6) Mem. 17). There is supplemental jurisdiction over Count Two Five through (and Eight) the remaining pursuant to 28 state law claims arise out of the Count One, and, therefore, the state law U.S.C. same Court at 1367. § facts will claims All that gave retain Counts those rise to supplemental jurisdiction over Count Two and Counts Five through Eight. III. Counts 3 and 4: Attempted Extortion Conspiracy - Extortion (I9I 80-84) Danjczek Fourt withdrew claims (Pl.'s Mahoney 12(b)(6) Motion to Dismiss, IV. the Count Five asserts a action The for in stated 2) 66-79) and Civil Counts Three and in response to Mahoney's (Mahoney 12(b)(6) Mem. 5-10). Count Five: Defamation Spencer. Resp. (M Complaint, defamation (13 85-92) common law claim of defamation against as pled, because 21 does not Spencer's state criminal a cause of complaint enjoys absolute privilege However, the entitling facts (also known as judicial privilege). included in Danjczek's exhibits state facts Danjczek dismissed without to relief. prejudice, Therefore, with Count leave will be replead within to Five 21 days. A. Elements and Defenses Under Virginia law, defamation requires the allegations and proof of: "(1) actionable; Union and Univ., May 16, (4th Cir. of law. absolute in a requisite 3:07CV447, of a intent." Andrews that v. 2096964, at Kollman, actionable, 1993). the statement Knight-Ridder, Whether In a a Inc., statement context of is must 993 *10 defamation, {E.D. Va. 569, 575 false be and F.2d 1087, actionable is Virginia 269 Va. be 2008 statement WL Chapin v. Id. (2) (relying on Jordan v. To defamatory. (3) No. 2008) (2005)).^ publication; is a privilege 1092 matter may be (including "communications made in proceedings pending court or before a quasi-judicial body") (including communications "made in good faith, or qualified to and by persons who have corresponding duties or interest in the subject of the communication"). Donner (relying on Gov't (2006) ^ Counts Micro (discussing Five, Six, v. Rubin, Res., qualified Seven, Inc. 77 v. Va. Cir. Jackson, immunity); 271 Linderman 309 Va. v. (2008) 29, 42 Lesnick, and Eight are Virginia state tort claims and are governed by Virginia law. 22 268 Va. 532, plaintiff 537 may (2004) overcome Great Coastal Exp., but absolute defeated even by a qualified Inc. immunity (discussing v. is privilege question of showing a 230 Va. 142, complete defense which showing of malice. whether by iiranunity)). Ellington^ The existence of privilege is also a the absolute a Lindeman, has or Smith, B. 286 Va. 327, 337 be at 537. however, abused qualified privilege is a question of fact for the jury. V. (1985), cannot 268 Va. lost malice, 151 question of law; defendant A a Cashion (2013). As Stated in the Complaint, the Defamation Claim Based on the Criminal Complaint is Defeated by Absolute Privilege Spencer claims that Danjczek "fails to make any allegation of a statement Plaintiff bases by Spencer her . . . claim are The the 'statements' news reports on . . . which the Plaintiff does not identify any statement of Spencer's in the news reports and does not contend that any of Spencer's statements identified elsewhere in the Complaint are defamatory." Mem. 9) . Although Danjczek reported on the charges alleges (Compl. that (Spencer's 12(b)(6) several 15 88-89), news outlets she also states that, "[a]s a direct result of the false allegations involving a crime of moral been turpitude, irreparably Opposition, criminal Danjczek's harmed." Danjczek complaint, reputation (Compl. SI subsequently rather than the 23 89). as In an her clarified news attorney Memorandum that reports, is has in Spencer's the basis for her defamation claim. affidavit submitted (Pl.'s Spencer Mem. to support the in 0pp. criminal 18). complaint The is a published statement by Spencer. However, Spencer's affidavit is protected privilege under Virginia law. See Darnell v. 708 (1950) request (holding to a that justice a of lay the person peace absolute Davis, 190 Va. swearing was by out entitled a to 701, written absolute privilege in the context of Virginia's fighting words statute); Potomac Valve 1280, 1284 Virginia & Fitting (4th Cir. fighting Linderman, 268 Va. Inc. v. 1987) words (noting and at 537 Crawford Fitting Co., co-extensive defamation (noting that a absolute immunity under any circumstances, malice). Thus, Danjczek has 829 F.2d nature statutes); see of also speaker does not lose even on a showing of in founding her defamation claim on the warrant, failed to state facts upon which relief may be even some of granted. However, its the allegations, defamation the DUI disclose claims Specifically, statements exhibits Exhibits that Manual on Spencer from his an 1 to the that Complaint, Danjczek alternate and 7 accused office can statement to the Danzcjek when and she of plead by Spencer. Complaint improperly left. (Compl. valid include taking Exs. 7). These statements by Spencer in the courtroom on May 15, 24 1, 2015 meet all the elements of defamation, without triggering any defenses. First, Complaint, Spencer from made the a non-privileged exhibits accompanying statement. the From the Complaint, from Spencer's Answer, and from Spencer's 12(b)(6) Brief, it is clear that not Spencer was engaged judicial activity when from office. his he {Compl. in a accused S[S[ trial, a hearing, Danjczek of 13-17) . It taking appears, the book instead, that Danjczek was engaged in or just completing a hearing a trial) when Spencer came out of the or other (or perhaps gallery where he was a spectator and accused her of taking the book from his office. Absolute privilege, sometimes called judicial privilege, is broad in scope and applies to communications made in proceedings pending in a court or before a quasi-judicial body .... If the communication is made in such a judicial proceeding, i t need only be relevant and pertinent to the case to be protected by the privilege . . . . The reason for the rule of absolute privilege in judicial proceedings is to encourage unrestricted speech in litigation. Lindeman, 268 Va. attorney's advocacy "relevant and at to 537.® accuse pertinent to First, interrupting that attorney the case." of a defense larceny Second, is not Spencer's ® In the case of state-employed speakers such as prosecutors, absolute immunity and absolute privilege have overlapping rationales and scopes. Compare Andrews, 266 Va. at 320-22, with Lindeman, 268 Va. at 537. 25 accusation judicial is an interruption proceedings. Third, immunity simply does not courtroom: gallery. advocacy, Thus, the rather than rationale apply to Spencer's unrestricted unrestricted of, speech not in part behind the absolute statements litigation unrestricted of, in the refers interjections from to the Danzcjek has available a published statement not subject to any defenses,® and the record shows that she can properly plead a defamation claim. The remaining be actionable, Jordan, element of defamation is actionability. the statement must be both false and defamatory." 269 Va. at 575. court must accept, At this stage in a as false, alleges to be false. Chapin, defamation case, to infer from a any statements that the Complaint 993 F.2d at 1092. Although Danzcjek never explicitly states that she did not steal the book, reasonable "To what she accusation to that effect was false. does say is that it is the This satisfies the falsity element of actionability. ® It may be that Danjczek did not plead the courtroom statements as the basis for her defamation claim because they do not explicitly spell out "Danjczek committed larceny." However, this misses the Hatfill rule that a comment is defamatory as an accusation of a crime so long as ordinary people would interpret the statement as an accusation of a crime. Hatfill v. New York Times Co., 416 F.3d 320, 330-21 (4th Cir. 2005). Under Hatfill, Spencer's assertion that Danjczek took his book is as defamatory as "you committed larceny." 26 As to the defamatory element of actionability, Virginia law recognizes certain statements which statements impute to as the defamatory per plaintiff the se, including commission of a criminal offense, impugn his fitness for his trade, or prejudice plaintiff Co., in pursuit 416 F.3d 320, of 330 his trade. (4th Cir. Hatfill 2005). v. New York Times Whether a statement is capable of having defamatory meaning is a question of law. According to the exhibits accused Danjczek of larceny, 7) . Also, accompanying the Complaint, a criminal offense. (Compl. Id. Spencer Exs. 1, accusing an attorney of a crime also tends to impugn her fitness to practice law, which in turn prejudices her in the pursuit of her trade. 8 of (1954). Richmond Newspapers, 196 Va. 1, Because Danjczek did not plead defamation on the basis Spencer's cannot Carwile v. comments consider them in in the courtroom, evaluating the however, adequacy the Court of Danjczek's facts sufficient pleadings. In conclusion, Danjczek's exhibits state to prevail on a claim of defamation, but Danjczek's pleadings do not do so. Count Five In the interest of justice, without prejudice, with leave the Court will dismiss to replead days of this opinion. V. Count Seven: Malicious Prosecution 27 (HII 97-102) within 21 "In an action for malicious prosecution, the plaintiff must prove four elements: that the prosecution was (1) malicious; (2) instituted (3) without by or probable with the cause; cooperation and (4) of terminated unfavorable to the plaintiff." Lewis v. (2011)." based "An upon instigated action an for malicious underlying without cause defendant; in Kei, a manner 281 Va. prosecution criminal probable the .... 715, 722 often most proceeding not is maliciously Malicious prosecution differs from abuse of process in that malicious prosecution lies for V. ^maliciously Mount Vernon causing process Associates, quotations omitted). 235 to Va. second element, criminal or proceeding, proceeding terminated plaintiff. (Spencer's A. the in 12-15). fourth a manner 12(b)(6) lack of probable 12(b)(6) Mem. 531, Donohoe Const. 540 (1988) Co. (internal Spencer does not dispute that Danjczek has adequately plead the contests issue." Mem. cause and that Spencer instituted a element, not that the criminal unfavorable 11-15). Instead, lack of malice. to the Spencer (Spencer's Each will be addressed in turn. Lack of Probable Cause At Virginia law. Count Six comes before Count Seven in the Complaint, but malicious prosecution comes before abuse of process chronologically. Hence, this opinion abandons Danjczek's order of counts because chronological order is more logical. 28 in the context of a malicious prosecution action, probable cause is defined as "knowledge of such facts and circumstances to raise the belief in a reasonable mind, acting on those facts and circumstances, that the plaintiff is guilty of the crime of which he is suspected." Andrews v. Ring^ 266 Va. 311, 585 S.E.2d 780, 786 (2003). "The determination whether a defendant had probable cause to believe that a crime was committed is judged with reference to the time the defendant took the action initiating the criminal charges." Stanley v. Webber^ 260 Va. 90, 531 S.E.2d 311, 314 (2000). Bennett v. 494, 514 2012) . R & L Carriers (E.D. Va. aff'd, 2010) LLC, App'x 492 F. 744 F. 315 Supp. (4th The "test" for probable cause is "whether the facts circumstances criminal known, or proceedings] reasonable man in crime charged." Va. Shared Servs., 679 are known, sufficient the belief that Id. (1967)), made at 518 As such, to the [initiator to justify an accused relevant and of the and guilty of the (quoting Giant of Va. the Cir. prudent a is 2d v. inquiry Piqg, is 207 whether Spencer had probable cause to believe that a crime was committed by Danjczek at the time Spencer swore out the criminal complaint. Spencer argues that his criminal complaint showed probable cause under the Virginia malicious prosecution standard for the same reason that he had probable cause under the § 1983 standard for unreasonable seizure. (Spencer's 29 12(b)(6) Mem. 12). The argument as to Count Seven, under Virginia law, is lacking in merit here as i t was in Count One. On the § 1983 issue, Spencer argued that Danjczek was not wrongfully seized because she was arrested pursuant to a valid arrest warrant. magistrate's (Spencer's 12(b)(6) Mem. 4). It is true that a issuance of a warrant is pertinent evidence of probable cause (Spencer, 12(b)(6) Mtn. 5) Commonwealth, 281 Va. 353, 360 (relying on Hicks v. (2011)). However, a magistrate's imprimatur does not conclusively establish that probable cause exists. Bennett, 744 F. interpreting Brodie v. Supp. Huck, 187 2d Va, at 519-22 485 (quoting (1948) and (noting that Virginia cases "in no way suggest[] that a government official's belief in the guilt of the accused establishes, law, as a matter of that probable cause existed as would preclude a malicious prosecution claim").^^ The magistrate's blessing is relevant but not dispositive to lack of probable cause. Spencer also argued that probable cause existed because objective facts demonstrated that the Danjczek had committed an offense. v. (Spencer's 12(b)(6) Galloway, 274 Montgomery Cnty., As noted F. App'x Mem. 5) 246 (4th 70 F. App'x 88, earlier, "ours is not 95 an (relying on United States Cir. 2008); Bruette (4th Cir. 2003)). ideal system, v. Probable and it is possible that a magistrate, working under docket pressures, will fail to perform as a magistrate should." Malley, 475 F. 3d at 345-46. 30 cause is, indeed, 392 U.S. 1, 22 an objective standard. facts seizure the the belief officer available search that knows that exist. Franks, question This has no was officer man of the moment reasonable he bases probable for the [Danjczek]." that of "Spencer Id. his manual . .. cause does 23, 55 that the DUI Manual or true, the facts the returned accept favor. Iqbal, draw 556 was there 55). Court must and not that and the plaintiff, in probable Spencer of proceedings, take the If an knew evidence property {Compl. of caution appropriate?" which then at his office fact became clearly evidence when Judge Reibach Spencer Ohio, at 155-56. indicia the on false, alleged ever a facts are 438 U.S. Danjczek the action taken was the determination to Warrant the cause absolutely Terry v. (1968). But it is an objective standard that asks "would the or E.g., in all U.S. At light 679; this .... asked directly stage of most favorable inferences Miller, 475 in F.3d to the Danjczek's alleged facts reasonable at it ... in to as the Danjczek's at 628-29. Danjczek has alleged that Spencer knowingly stated untrue facts; if she is correct, cause. While evidence, jury this means that Spencer did not have probable jurors may ultimately choose not to credit her Danjczek has nevertheless pled facts sufficient that a could determine that Spencer when he initiated the prosecution. 31 did not have probable cause B. Malice In Virginia, "malice" means "any controlling motive other than a good faith desire to further the ends of justice, enforce obedience to the criminal laws, suppress crime, or see that the guilty are punished." [Hudson v. Lanier, 255 Va. 330, 332, 497 S.E.2d 471, 473 (1998)] In Virginia, under certain circumstances, the want of probable cause alone can serve as legally sufficient evidence to support an inference of malice. See [Giant of Va., Inc. v. Pigg, 207 Va. 679 152 S.E.2d 271, 276 (1967)]; see also Oxenham v. Johnson, 241 Va. 281, 402 S.E.2d 1, 2 (1991). In these instances, "there [i]s such a want of probable cause" that an inference of legal malice is warranted. supra, 152 S.E.2d at 276 (emphasis added) (The malicious prosecution defendant's "disregard of information communicated to him constituted an aggravated circumstance which supports the finding of the jury that there was such a want of probable cause as warranted an inference of legal malice."); Oxenham, supra, at 2 (The defendant's "lack of probable cause [alone] was sufficient to support an inference of [the defendant 1 s] legal malice" where the defendant had "caused [an] arrest warrant to issue" against the plaintiff solely because the plaintiff had refused to let the defendant search the plaintiff 1 s residence without a search warrant.). the fact that [a malicious prosecution plaintiff does] not label and identify explicitly an alleged improper motive ... is of no consequence. The Court is not aware of any authority that requires otherwise. Bennett, 744 F. Supp. 2d at 521-24. 32 Spencer argues that "[n]othing in the Plaintiff's Complaint supports a finding that Spencer acted with actual malice .... As Spencer stated Danjczek had in the criminal Complaint, larceny. (Spencer committed he believed" 12(b)(6) that Mem. 13). Spencer neglects that malice may be inferred under aggravating circumstances, including disregard for communications by others and the appearance of reprisal. Bennett, 24 (relying on Pigg, 2). According to judge's (Compl. SI 17), aggravated 152 S.E.2d at 276; the indication 744 F. Supp. 2d at 521- Complaint, that which, he as circumstance. Spencer had in Oxenham, no Moreover, ignored claim Pigg, a to jury the 402 S.E.2d at the trial DUI might Complaint the Manual consider alleges an that Spencer initiated the larceny prosecution to affect the outcome of the assault and battery charge against himself which is certainly a permissible inference facts and is clearly "other than a the ends of justice, suppress crime, Finally, prosecution suspicions Complaint without Spencer Danjczek has the alleged good faith desire to further obedience that he actually proceeded pled alleges to that investigating investigation be conducted. that from SI 98), the criminal laws, or see that the guilty are punished." the and enforce (Compl. facts because which, 33 what spurned (Compl. Spencer ISI 21, he if was were a initiated clearly suggestion 23). mad. proved, the mere that an It also alleges (Compl. are SI adequate 18). to support a jury finding that Spencer reasons, the initiated a malicious prosecution against her. For the foregoing Motion to Dismiss Count Seven will be denied. VI. Count Six: Abuse of Process To sustain a cause (21 93-96) of action for abuse of process, (1) the a plaintiff must plead and prove: existence of an ulterior purpose; and (2) an act in the use of the process not proper in the regular prosecution of the proceedings .... The distinctive nature of malicious abuse of process lies in the perversion of regularly-issued process to accomplish some ulterior purpose for which the procedure was not intended .... A legitimate use of process to its authorized conclusion, even when carried out with bad intention, is not a malicious abuse of that process .... Process is maliciously abused when whip it is used oppressively, e.g. ^ as "a to force the payment of an alleged indebtedness," [] or as a means of extortion. Donohoe Const. Co., Accepting facts in the reasonable 679, Police had alleged light favorable inferences an in facts to Danjczek's pled the investigation (2006) most ulterior also Montgomery v. 532 at 539-40. Danjczek's Danjczek has Spencer 235 Va. first movie against McDaniel, 271 true, taking the her, and drawing all favor, element of him as Iqbal, of wanting dropped. Va. 465, abuse the of 628 5 at process: State 31) . See S.E.2d 529, (finding Litigant A naming Litigant B as a 34 U.S. Virginia (Compl. 469, 556 defendant in a cross-bill withdrawing as a Litigant means Cs of suit pressuring against sufficient ulterior motive). Additionally, that Spencer initiated the prosecution Litigant Litigant C A into was a the Complaint alleges without investigating what were clearly mere suspicions and that he actually spurned a suggestion (Compl. f that 21, the 23). court security conduct an investigation. It also alleges that Spencer proceeded to swear out the affidavit while and because he was angry. (Compl. SI 18) . As to the second element, abuse of process requires an act other than initiation of process that sets the coercive power of the Co., judiciary into play against a 235 Va. at 539-40. Taking person. E.g., depositions and Donohoe Const. taking out an execution on a previously-paid judgment both fulfill the second prong of Donohue. 893, 342 Ely v. Whitlock, 896 (1989); BNX Sys. Corp. v. (4th Cir. 238 Va. 670, Nardolilli, 674, 385 S.E.2d 368 F. App'x 339, 2010). By declining Spencer subjected process when to she withdraw Danjczek was his to complaint additional required to defend against coercive herself Danjczek, power against of the ongoing criminal case and to appear in Caroline County General District Court on June 30, 2015. (Compl. SI 44), Because Spencer's continuing misconduct subjected Danjczek to additional 35 coercive pressure of the judicial system, Count the motion to dismiss Six will be denied. VII. Count Eight: Intentional Infliction of Emotional Distress {51 103-117) To state a claim for intentional infliction of emotional distress a plaintiff must plead that 1) the or or reckless; 2) intolerable; wrongdoer's conduct the 3) was conduct there intentional was was outrageous a causal connection between the wrongdoer's conduct and the resulting emotional distress; and 4) the resulting emotional distress was severe." Ogunde v. Prison Health Servs., 520, 526 (2007); 182, 186 (2007). intolerable) Almy v. fourth 274 Va. 55, Grisham, 273 contests Spencer and Inc., the (severe Va. 68, 645 S.E.2d 77, second resulting 65, 639 S.E.2d (outrageous distress) and elements. (Spencer 12(b)(6) Mem. 11-12). As a preliminary emotional distress matter, is disfavored, at Virginia law. Russo v. that infliction intentional provide "not a White, clear definition favored"); Almy, inherent in proving emotions in the of a absence tort of infliction of though not completely barred, 241 Va. emotional 23, 26 (1991) failure to it Va. at 77 alleging ("Because injury accompanying 36 distress' (noting the prohibited conduct malces of 273 intentional to physical of the problems mind injury, or the tort of intentional infliction of emotional distress is 'not favored' in the law."). A. It Severe Emotional Distress, Pleading Standards is worth examining the order to note that the and elements Fourth Circuit Federal Versus of this requires State claim out federal of courts applying Virginia law to apply laxer standards of pleading than Virginia requires in its own state courts. In Virginia negligence, a state plaintiff courts, "in alleging contrast a claim to for a claim of intentional infliction of emotional distress must allege in her motion for judgment all facts necessary to establish the cause of action in order to withstand challenge on demurrer." Almy, 273 Va. {emphasis added) . Under Virginia law, "liability arises only when the emotional distress is extreme, and only where the distress inflicted is so severe that no reasonable person could be expected to endure it." Russo, 400 S.E.2d at 162. A plaintiff in Virginia state court must plead "with the requisite degree of specificity" the facts giving rise to his claim of severe emotional distress. Jordan, 500 S.E.2d at 219. In Russo, for example, the Supreme Court of Virginia held that the plaintiff's allegations that "she was nervous, could not sleep, experienced stress and 'its physical symptoms,' withdrew from activities, and was unable to concentrate at work" were insufficient to avoid a demurrer on her claim for intentional infliction of emotional distress. 400 S.E.2d at 163. It was important to the court that the plaintiff had not alleged "that she had any 37 at 77 physical injury caused by the stress, that she sought medical attention, that she was confined at home or she lost income." Hatfill, 416 F.3d at allegations of reputation, stress, swings, 337. insomnia meet and the severe emotional However, R. Civ. harm, clinical (Compl. state hospital, Defendant financial Virginia in a or that Id. claims harm to anxiety fSI high her and 113-117) courts' that Danjczek's professional depression, are mood insufficient to standards for pleading distress. the Fourth Circuit has explicitly stated that Fed. P. 8 trumps Virginia's heightened pleading standards for intentional infliction of emotional distress in federal governed by state law. Rule 8 - applicable in this diversity case did not require [plaintiff to plead at state court levels of specificity]. See Swierkiewicz, 992. The result of issue. Dr. 534 U.S. complaint at 513, alleges 122 that defendants' defamation Hatfill suffered has S. Ct. "[a]s here severe a at and ongoing loss of reputation and professional standing, loss of employment, past and ongoing financial injury, severe emotional distress and other injury." The complaint further alleges that publication of Kristof's emotional columns distress" inflicted "grievous upon Hatfill. These allegations are sufficient under Rule give The Times "fair notice of 8 to what [Hatfill's] claim is and the grounds upon which i t rests," at 512, 122 S.Ct. 992 (citing Conley ^ 355 U.S. at 47, 78 S.Ct. 99), and they are adequate to state the final necessary element 38 of a claim for cases intentional infliction of emotional distress. Hatfill, 2d 416 F.3d at 565, 571 337; see also Perk v. Va. 2007) (E.D. (noting Worden, the 475 F. Fourth Supp. Circuit's mandate). Hatfill Almy• was decided before Iqbal and Twombly, In light of these intervening cases, as well as at least one Eastern District of Virgnia Court has found that Hatfill no longer sets a lower bar for intentional infliction of emotional distress pleadings in federal court. The complaint's Plaintiffs distress ["] draw conclusory suffered does the not "allow reasonable defendant is statement "severe liable the inference for the that emotional court that to the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937; Twombly, 550 U.S. at 570, 127 S.Ct. 1955. Hatfill was also decided prior to Harris and Almy, and the facts that were pled with requisite specificity do not satisfy the substantive standards set forth in those decisions, Fuller V. (Jackson, case, J.). decided reference Agency, J.). Miff, to Inc., Moreover, pleadings is 990 F. However, even Supp. discussion a 581 followed Twombly, 997 F. Supp. 2d 409, merely 576, recently, Almy, Almy's 2d (E.D. Va. 2013) a different Eastern District of Virginia more Fuller, as discussed above. or 415 of restatement Hatfill Iqbal. Williams (E.D. Va. 2014) high of bars Russo, and and without v. (Spencer, heightened the Fourth Circuit already held that Russo does not supplant Rule 8 at the 39 motion to dismiss stage. Hatfill, 416 F.3d at 337. If the Fourth Circuit decided that Rule 8 preempts Russo, to believe that Iqbal do Iqbal demand the Rule 8 unquestionably does not trump specificity preempt Almy. Hatfill. (rather there is no reason than Twombly and However, Twombly and conclusory allegations), without altering the type of harm the plaintiff must allege. Because rejection Hatfill's of Almy, rejection and because of Russo Iqbal functions and Twombly as a govern specificity rather than the types of damages Danjczek may allege in her Complaint, approach. Under which she is this this Court adopts approach, entitled to the Danjczek Hatfill has relief under her and Williams stated facts upon intentional infliction of emotional distress claim at the motion to dismiss stage: Hatfill, she has pled financial harm, reputation, swings, and stress, clinical insomnia. harm to her professional anxiety Danjczek like and has pled depression, severe mood emotional distress with sufficient particularity and severity to meet the Fourth Circuit's pleading requirements. B. Intentional or Reckless Conduct; Outrageous Conduct A key element of the claim asserted in Count Eight is that Spencer acted either intentionally or recklessly "such that knew or should [plaintiff] ("This have severe element of known emotional the tort that [his] act distress." is 40 set ... Almy, forth would 273 in Va. [he] cause 77-78 [plaintiff's] allegations that specific severe [defendants] purpose of emotional these three acted intentionally . . . with the causing distress. defendants her humiliation, [Plaintiff] intentionally cause her this distress, and that ridicule, further alleged manufactured [one defendant] and that evidence to expressed his intent to have her 'really, really suffer'"). Outrageousness 215 Va. 338, intent, question of law. (1974). 342 is a Under Virginia law, criminal intent, malicious intent, punitive element damages an sufficient nor conduct worthy of fulfill "outrageous" emotional where the character, go beyond and to be utterly 241 Va. infliction the of Russo, intentional to Eldridge, neither tortious Liability has been found only conduct has been so outrageous in and so extreme in degree, as to all possible bounds of decency, regarded as atrocious, and claim. of is Womack v. distress at 27. intolerable in a civilized community." Id. (quoting Thus, liability does not threats, annoyances, Gaiters v. pled poorly (Second) a in appointed a the petty oppressions, facts parade cases of Torts, extend to "mere Lynn, 831 F.2d 51, Talcing has Restatement of pled 53 in horribles involving special prosecutor to 41 insults, (d) (1965). indignities, 1987). Complaint against Danjczek's 146 or other trivialities." (4th Cir. the § as true, Spencer: clients Danjczek behaving that the so court replace Spencer in her cases (Compl. f May 15, 111); verbally harassing Danjczek in the courtroom on 2015 in the course of a involved (Compl. on May 15, (Compl. probable (Compl. (conduct 17); cause Appointed in which no swearing out a and having Danjczek having Danjczek Counsel and then list (Compl. releasing, lawyer may ever warrant 20-24); SlSl release, 13-16); assaulting Danjczek in the courtroom 2015 SI case in which he was not even 15 that served abusing a Kreutzer, 35, documents the from 40); to knew lacked courtroom the Court threatening trade to publications 51-52).^^ acts undermining a plaintiff's employment or plaintiff are v. 540 F. Supp. 2d aff'd, S.E.2d 24, Harris verbal abuse not outrageous); Earley v. Marion, 2008) 624 E.g., (holding (W.D. Va. 201, outrageous. (2006) 690 188, not 31 680, 271 Va. in removed which damaged Danjczek's reputation (Compl. Individually, he engage) 340 F. App'x 169 (4th Cir. 2009) (rumors about fitness for profession not outrageous); Karpel v. Inova Health 38137, at *7 Sys. (E.D. Servs., Va. Jan. Inc.., No. 27, 1997) CIV.A. 96-347-A, aff'd sub nom. 1997 WL Karpel v. "Spencer . . . sent a forty-three page document to Virginia Lawyers Weekly and the Richmond-Times Dispatch alleging that Investigator Marshall Ellet of the Caroline County Sheriff's Office had withheld exculpatory evidence ... This is the information that Spencer promised to 'bury in the sand' if Danjczek accepted his offer." (Compl. If 51-52). The Complaint is unclear exactly how this pertains to Danjczek, but that can be sorted out in the discovery process. 42 Inova Health Sys. plaintiff's Nursery, is falsely 232 558 (W.D. not F. Supp. Goddard (E.D. 2d 246, 1990) Buck Creek Va. 2001) fired for theft, reputation in Life community, Corp., 82 F. (mere professional negligence Norfolk S W. (being v. (causing (W.D. 265 Protective 2000) 1998) Warner plaintiff was v. Va. Simmons v. Va. (4th Cir. outrageous); destroy plaintiff's outrageous); 2d 545, 134 F.3d 1222 stating that to not outrageous); 230, was 149 intention not Supp. firing Inc., (defendant with Servs., Ry. cursed and Co., 734 F. screamed at Supp. in the workplace not outrageous). However, outrageous exacerbating actions exacerbating factors this case. First, undermining See, e.g., 2014) a become nude make outrageous; the conduct, Tharpe v. can manner, otherwise several recognized in Virginia plaintiff's (posting factors of nonthose law are present in or means associated with employment may create outrageousness. Lawidjaja, pictures 8 F. of Supp. 3d 743, plaintiff on 783 the (W.D. Va. internet and linking them to plaintiff's business's website was outrageous). Second, duration allegations and may cumulative finding outrageousness. 493, 501 be (W.D. period of years). Va. nature E.g., 2015) Third, outrageous of the misconduct Faulkner v. (noting in Dillon, repeated aggregate: is the relevant 92 F. misconduct Supp. over to 3d a the abuse of a position of authority is also relevant to finding outrageousness. 43 Baird v. Rose, 192 F.3d 462, 472 (4th Cir. 1999) outrageous character of {noting the that "tt]he conduct may arise extreme from an and abuse by the actor of a position ... which gives him actual ... authority over the cmts. e, other") f (citing Restatement (Second) of Torts, § 4 6, (1965)). While none individually, prolonged, of a Danjczek's reasonable vindictive, and facts pled is could find that jury multifaceted campaign outrageous of Spencer's misconduct rose to the level of "outrageous and intolerable" conduct going "beyond all possible bounds of decency" by taking into account the methods by which he went about the misconduct, and repeated character of the misconduct, of his mantle misconduct of stated a occurred Commonwealth's legally plausible while he the duration and the fact that much wore the authoritative Attorney. Dancjzek has accordingly claim for relief. Spencer's motion to dismiss Count Eight will be denied. APPLICABILITY OF ABSOLUTE TO COUNTS FIVE, Spencer was, during Commonwealth's Attorney "Given the for all the Caroline fact-intensive IMMUNITY SIX AND SEVEN relevant County. nature of He the conduct, thus the contends [intentional infliction of emotional distress] inquiry, the claim is better reserved for summary judgment or trial." Harrison v. Prince William Cnty. Police Dep't, 640 F. Supp. 2d 688, 710 (E.D. Va. 2009) . 44 that he is entitled (defamation), Count to Six absolute {abuse immunity process), of for Count and Count Five Seven {malicious prosecution). As to Count Danjczek's immunity, Seven, the malicious because Court denies prosecution Spencer has the motion claim not based shown that applies to swearing out a criminal complaint; will time. permit As further to Danjczek's Count abuse Six, of because Spencer was alleged abuses. whether As Spencer defamation claim briefing the follow-up Court process not on denies claim serving as to Count Five, is entitled for on state absolute absolute however, issues dismiss immunity the Court at a later to dismiss absolute immunity officer during the it is not necessary to decide to swearing a on the motion based to absolute out the immunity criminal from a complaint, because that act is clearly protected by the defamation doctrine of absolute privilege. A. Preliminary Issue: Virginia State Law Immunities for Counts Five, Six and Seven Counts law. to Hence, federal The state Five, Six and Seven are based in Governs Virginia's tort they are governed by state law and are not subject defenses. Supreme common applicability Court law, of of not absolute Virginia federal has common prosecutorial 45 explicitly law, immunity held that governs the in a case of malicious (2003). prosecution. Andrews Accordingly, the v. Ring, Supreme 266 Court's Va. 311, pronouncements federal common law of absolute prosecutorial immunity the Imbler family) do not define Virginia defense of absolute prosecutorial immunity. 320-21 (citing to Burns v. Pachtman, 424 Milwaukee (noting v. U.S. when law on point, need for 409 Illinois that, Reed, 500 U.S. (1976)). & Michigan, there is See 451 both state 478 U.S. law common law"). Spencer's City 314 at of n.7 (1981) federal common when "[i]f state law can be applied, federal the Imbler v. e.g.. law and on 266 Va. (1991); 304, on (including Andrews, also, state 320-21 there is no reliance on federal principles of absolute immunity is therefore misplaced. However, Virginia though not exactly, Virginia has, prosecutorial available 2011 that WL in Andrews at contrary to federal immunity under *10 a Virginia Vuyyuru n.9 (E.D. absolute layperson v. Va. recognized state Jadhav, Apr. file closely, The Supreme Court of No. 19, prosecutorial to hews a law broader than to is 3:10-CV-173, 2011) (noting immunity criminal to complaint, law finding that absolute immunity does not prosecutor's act of advising police officers). the most part, endeavored absolute circumstances, law. extended advising extend to a some federal 1483725, of to federal common law. immunity at prosecutors law however, re-invent the the Supreme Court wheel, 46 and does of Virginia cite has federal For not cases when i t agrees with them. E.g., Andrews, 266 Va. at 320 (citing the United States Supreme Court's decision in Imbler immediately before pronouncing that the Virginia Supreme Court is the ultimate authority on Virginia common law). The cases Virginia is not Supreme Court's surprising willingness considering to that cite federal both federal prosecutorial immunity and state prosecutorial immunity are both common See, law e.g., Andrews, of defenses Buckley 266 Va. Virginia that v. at to share common Fitzsimmons, 320. cite a origin 509 U.S. and 259, rationale. 268 (1993); The willingness of the Supreme Court federal cases, together with the common origin and rationale of the state and federal doctrines, signal that federal immunity decisions are persuasive when there are no Virginia immunity decisions on point. See Byelick v. 79 F. Supp. 2d confronted in law highest Co. court 623 (E.D. Va. 1999) uncertain with state 610, state law, a diversity in the cases state must would that, in the "relevant" to absence a of court's state federal predict take); V. Cardi Corp.. 471 F.2d 1304, 1307 law determination (noting see cases, of that, court what also (1st Cir. Vivadelli, the applying course Warren 1973) federal what when the Bros. (noting cases state are "courts would decide if faced with the issues before us"). Having dispositive established source of that law, Virginia and 47 that law federal provides law plays the a persuasive role, claims for the next step is to apply Virginia law to the defamation, malicious prosecution, and abuse of process. At each Va. Virginia element 478, 480 of law. Spencer bears the burden of establishing his immunity defense. Tomlin v. (1996); see also Jordan v. Shands, McKenzie, 255 Va. 492, 251 499 (1998). B. It Absolute Iimnunity and Defamation is absolute complaint Virginia from not necessary prosecutorial against doctrine defamation to immunity Danjczek, of determine swearing because, absolute claims. in whether as privilege Darnell, 190 Va. Spencer out the discussed protects at 708 enjoyed criminal above, all the affiants (holding that lay man swearing out a written request to a justice of the peace was entitled to absolute privilege in the context of Virginia's fighting words statute); at and 1284 Potomac Valve & Fitting Inc., (noting co-extensive nature of Virginia defamation statutes); see also Linderman, 829 F.2d fighting words 268 Va. at 537 (noting that a speaker does not lose absolute immunity under any circumstances, even on a showing of malice).*'' Spencer's conduct in the May 15, 2015 hearing does not enjoy the same absolute privilege, because the pleadings do not even suggest that Spencer was acting in a prosecutorial capacity or participating in the judicial process. Because Spencer was not engaged in judicial proceedings, he is not entitled to absolute 48 C. Absolute Iinmunity and Malicious Prosecution "In an action for malicious prosecution, prove (2) four elements: that the the plaintiff must prosecution was: (1) malicious; instituted by or with the cooperation of the defendant; without probable cause; and (4) terminated in a (3) manner not unfavorable to the plaintiff." Lewis, 281 Va. at 722. "An action for malicious prosecution most often is based upon an underlying criminal proceeding maliciously instigated without probable cause ... Malicious prosecution differs from abuse of process in that malicious prosecution lies for ^maliciously causing process to 235 issue." quotations discussed the Donohoe omitted). above, elements occurred and of but Const. The at adequacy the malicious whether, at Co., outset Va. of it time. 540 Danjczek's is prosecution that at to (internal pleadings necessary to see Spencer when was is examine the acting tort in a capacity that would permit the immunity he claims. immunity for his statements in the courtroom, Andrews, 266 Va. 320-22, in the same manner that a lay heckler would not receive absolute immunity for interrupting court proceedings with nonjudicial business. However, as discussed supra, Danjczek did not properly plead defamation based on Spencer's conduct at the May 15, 2015 hearing, and it is not the Court's place to rewrite a represented plaintiff's papers to better state a cause of action. She has been given leave to amend Count Five. 49 The active element element, "instituted of malicious by or prosecution with the is the cooperation second of the defendant." This Court previously determined that to find that the "instituted by, cooperation of" the Court must or with the element has been satisfied, ascertain whether a defendant affirmatively, actively, and voluntarily took steps to instigate or to participate in the arrest of the defendant, defendant exercised some and whether the level of control over the decision to have the plaintiff arrested. A defendant instigates or cooperates in the proceedings by either taking the original steps to initiate the proceeding (here the arrest) or by subsequently adopting and ratifying the steps that others have already taken to initiate proceedings. Bennett, 744 F. passively held act that responds liable Complaint, when ... Supp. for 2d at 511-12 police (also noting that someone who requests malicious swore out Danjczek be the information prosecution). Spencer took the relevant, he for affidavit arrested while cannot According to be the affirmative and voluntary for larceny and she was in the "demanded courtroom." (Compl. 5 19-20).^® Absolute immunity is irrelevant to the malicious prosecution after this point for two reasons. First, malicious prosecution deals with initiation of process; after that, any bad acts fall under the abuse of process umbrella. Donohoe Const. Co., 235 Va. at 540. Second, the Complaint alleges no further bad actions by Spencer between his swearing out the affidavit and requesting Danjczek's arrest on May 15, 2015 (Compl. SIl 19-20) and his replacement by a special prosecutor in Danjczek's larceny case on May 21, 2015, (Compl. 5 29), at which point Spencer stopped 50 For whether, the purposes under prosecutorial of absolute Virginia capacity law, in immunity, Spencer swearing was out the Court acting asks his affidavit the in and requesting Danjczek's arrest. The process by which an accused may be charged with a criminal offense in Virginia includes indictment, presentment, information, arrest warrant, or summons. When a prosecutor is involved in the initiation of the criminal process, it may take the form of preparation of an indictment for consideration by a Grand Jury, direction to a law enforcement officer to obtain a warrant or summons, or advice to a law enforcement officer that sufficient probable cause exists for the obtaining of a warrant or a summons. For the purposes of determining a prosecutor's absolute immunity from suit, these are distinctions without a material difference. In each case where a prosecutor is involved in the charging process, under Virginia law, that action is intimately connected with the prosecutor's role in judicial proceedings and the prosecutor is entitled to absolute immunity from suit for such actions. Andrews, 266 Va. at 321 absent from this list. criminal complaint, absolute irnrnunity. 16 (2003). Criminal complaints are notably In Virginia, and such lay persons Andrews, acting in the prosecutorial absolute immunity defense. any lay person can file a are 266 Va. not entitled to at 317 (noting that capacity which gives 16 Although complaining witnesses privilege in defense to defamation. 51 are entitled rise to to his absolute where a building inspector filed a criminal complaint, of filing that criminal complaint did not enjoy the act absolute immunity)." In his criminal complaint. Spencer stated "I am the Commonwealth Attorney of Caroline County" (Compl. Ex. 3), but that statement alone does not transform Spencer's role from that of a lay alleges complainant that, in to swearing "complaining witness." In his Reply, a (a whether he to a the state prosecutor. affidavit. Danjczek Spencer was a 23). Spencer reiterates that the criminal complaint was to for defamation) was acting criminal complaint defense of (Pl.'s Spencer 12(b)(6) Mem. in 0pp. "judicial proceeding" defense that as the purposes of absolute privilege but a does not prosecutor return in to the swearing issue out of the (which would trigger absolute immunity and a malicious prosecution). (Spencer's 12(b)(6) Reply The building inspector argued, in the alternative, that he was entitled to the "same qualified immunity extended to police officers for actions taken in good faith and with probable cause." Andrews, 266 Va. at 325-26. Rather than ruling on the claim, the court found that the inspector had not alleged sufficient facts to raise the defense. This leaves the question of whether anyone who swears out a criminal complaint is entitled to qualified immunity as a matter of Virginia law up in the air. Ultimately, the question is not particularly relevant, because malicious prosecution requires the plaintiff to prove that the defendant acted with malice and without probable cause. If the defendant acted with good faith and with probable cause, then negating the plaintiff's case-in-chief and raising a qualified immunity defense are the same thing. Additionally, Spencer does not raise qualified immunity with respect to the malicious prosecution charge, so it is unnecessary to address that at this time. 52 10). See also Kalina v. Ct. 502, 138 L. immunity did Washington not Ed. Fletcher, 2d protect state 471 522 U.S. (1997) for 129-30, (finding prosecutor who "Certification 118, that swore out Determination 118 S. absolute facts of in a Probable Cause" where prosecutor "[i]n doing so ... performed an act that any competent witness might have performed"). At this establishing Virginia acting that law. in briefing record, point. on he It his is is role this Spencer has entitled possible, as a matter not to at a may burden immunity unlikely, and later his absolute albeit prosecutor, met that of under he was provide further On current stage. the it appears more likely that he was acting in the role of a lay complaining witness. borne his burden. Thus, Therefore, on this record. Spencer has not the motion to dismiss Count Seven on the ground of absolute immunity will be denied. D. Absolute Immunity and Abuse of Process Spencer week after happened, than a against was replaced Danjczek's Spencer was, state official Danjczek. by arrest. a Special (Compl. in effect, in Because the Prosecutor a 24, 28). than Once complaining witness continuation Spencer less was not of the then in official capacity, he is not entitled to absolute immunity. 53 that rather criminal acting a case his LEAVE Having conspiracy, TO withdrawn Danjczek PLEAD BUSINESS her claims requests leave CONSPIRACY for to civil amend extortion her Complaint allege a violation of Va. Code. § 18.2-499, which states: A. Any two or more persons who combine, associate, agree, mutually undertake or concert together for the purpose of (i) willfully and maliciously injuring another in his reputation, trade, business or profession by any means whatever or (ii) willfully and maliciously compelling another to do or perform any act against his will, or preventing or hindering another from doing or performing any lawful act, shall be jointly and severally guilty of a Class 1 misdemeanor. Such punishment shall be in addition to any civil relief recoverable under § Va. Code § 18.2-500. 18.2-500 states that: A. Any person who shall be injured in his reputation, trade, business or profession by reason of a violation of § 18.2-499, may sue therefor and recover three-fold the damages by him sustained, and the costs of suit, including a reasonable fee to plaintiff's counsel, and without limiting the generality of the term, "damages" shall include loss of profits. Under the Federal Rules of Civil Procedure, (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within: (A) 21 days (B) if the responsive days after pleading or after serving it, or pleading is one to which a pleading is required, 21 service of a responsive 21 days after service of a 54 and to motion under whichever Fed. 24, R. Civ. 2015. 2015; P. 15(a). is Rule (e) , or (f), Danjczek filed her Complaint on August Mahoney filed his Motion to Dismiss on September 15, Spencer filed his Motion Danjczek filed her Memorandums 2015. 12(b), earlier. to Dismiss on September 17. in Opposition on September 28, Danjczek is ineligible to supplement under Fed. R. 15(a)(1)(A), because her request to supplement occurred than 21 days after she filed her Complaint. However, Complaint was a pleading to which responsive Civ. P. more Danjczek's pleading is required, and Danjczek filed her request to supplement within 21 days after Spencer and Mahoney filed their motions under Rule 12(b)(6). timely As a requested preliminary leave to procedural supplement matter, under Danjczek Fed. R. Civ. has P. 15(a) (1) (B). Spencer argues that a Fed. R. Civ. P. 15 motion should be denied when the amendment would be futile. to amend (Spencer's 12(b)(6) Reply 12-13) (relying on Johnson v. Orowheat Foods Co., 785 (4th F.2d 503, 509 Cir. 1986).^® Spencer argues that 18 Before he was dismissed from the suit, Mahoney made an additional attack on the informal nature of Danjczek's request. (Mahoney's 12(b)(6) Reply 6) (citing Estrella v. Wells Farqo Bank, M.A., 497 plaintiff fails F. App'x 361, 362 (4th Cir. 2012) (when "the to formally move to amend and fails to to provide the district court with any proposed amended complaint or other indication of the amendments he wishes to make," the district court does not "abuse its discretion" in not granting 55 Danjczek's Complaint cannot support a (making any motion to amend business conspiracy claim futile) because the conduct must be directed at the plaintiff's business, person. an (Spencer's 12(b)(6) attorney sued for Reply 12-13). business malicious not at her In another case where conspiracy, a court in this d i s t r i c t noted that [a] right of action is afforded under § 18.2-4 99 "only when malicious conduct is directed at one's business, not one's person." Buschi v. Kirven^ 775 F.2d 1240, 1259 (4th Cir. 1985). Injury to personal reputation and interest in employment are clearly excluded from the scope of the statute's coverage. Andrews v. Ring^ 266 Va. 311, 319, 585 S.E.2d 780 (Va. 2003). The facts set forth in the Complaint indicate that any alleged conspiracy ... was directed at Plaintiff, not his business. While Plaintiff's future employment prospects and his ability to retain clients may have been affected as a result of the acts of the alleged conspirators, § 18.2-499 does not provide relief for such injuries. See^ e.g., Mansfield v. Anesthesia Assocs./ 2008 U.S. Dist. LEXIS 34732, 10-11, 2008 WL 1924029 (E.D. this Va. Apr. 28, 2008) .... Furthermore, Court has previously rejected an argument similar to that because of Plaintiff's contention the nature of his profession, any injury to his personal reputation is also necessarily an injury to the motion); Cozzarelli v. Inspire Pharms., Inc., 549 F,3d 618, 630-31 (4th Cir. 2008) (finding no abuse of discretion declining to grant a motion to amend that was made in in an opposition to dismiss). As shown by Mahoney's own citations, these cases only say that a district court may decline to entertain informal motions to amend, not that a district court must decline to entertain informal motions to amend. 56 his business. Corp., Spencer v. *11 (E.D. Am. Va. See Moore 480 F.Supp. 364, Int'l Grp., Jan. 6, Inc., 2009) v. 375 Allied 3:08CV00591, (Moon, Chem. (E.D. Va. 1979). J.). 2009 WL 47111, First, at Spencer and this case must be distinguished because of the sizes of the practices involved. In Spencer, the plaintiff accused pinning the blame for a failed appeal on him, co-counsel. Id. Spencer worked for defendants of rather than on his mid-sized firm Bowman & Burke, LLP. In Spencer, it was possible for the conspirators to damage the reputation of one attorney in a mid-sized without injuring the business which employed him. Danjczek appears impossible business. to to be a damage Second, solo practitioner, her reputation Danjczek's Complaint directly injured her business by In this case, meaning that it is without does injuring not that Mahoney and Spencer injured her reputation: they firm having merely her state she states that her Court Appointed Attorney list. (Compl. the Complaint and Mahoney worked together on this state a (Compl. 5 that 40), Spencer Danjczek has pled 40) . from the alleges SI5 35, removed sufficient Because facts to claim that Spencer and iyiahoney combined for the purpose of willfully and maliciously injuring Danjczek in her business, either solo because reputation practitioner or and business because removing are inextricable Danjczek from appointed attorney list directly injured her business. 57 the for a court CONCLUSION For the reasons stated 12(b)(6) MOTION TO DISMISS above, ANTHONY (Docket No. 8) G. SPENCER'S RULE is granted in part and denied in part. The motion is granted as it pertains to Counts Three and Four, which are dismissed with prejudice. is granted as it pertains to Count Five, which The motion is dismissed without prejudice and with leave to re-plead within 21 days of the date remaining request to of this counts. amend opinion. The Additionally, her Complaint motion to denied Court the is grants plead a count as to Danjczek's of business conspiracy. I t i s so ORDERED. Robert E. hi Payne /ggy Senior United States District Judge Richmond, Virginia Date: January /( , 2016 58 the