TSYS Acquiring Solutions, LLC v. Electronic Payment Systems, LLC

Filing 99

ORDER granting Defendant's 86 Motion to Amend; the Clerk shall file the Proposed Amended Counterclaims lodged as 87 . Signed by Judge David G Campbell on 5/10/11.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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TSYS Acquiring Solutions, LLC,
Plaintiff,

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vs.

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Electronic Payment Systems, LLC,

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Defendant.

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No. CV10-1060 PHX DGC

ORDER

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Defendant Electronic Payment Systems, LLC (“EPS”) moves to amend its answer to

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assert a new counterclaim for tortious interference with prospective business. Docs. 86, 86-1.

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Plaintiff TSYS Acquiring Solutions, LLC (“TSYS”) opposes on grounds that the

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counterclaim fails plausibly to plead breach or termination of contract or expectancy,

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improper motive or means, and damages. Doc. 89. The motion has been fully briefed

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(Docs. 86, 89, 92), and the parties do not request oral argument. The Court will grant the

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motion.

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Rule 15 of the Federal Rules of Civil Procedure declares that courts should “freely

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give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). “A motion for

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leave to amend may be denied if it appears to be . . . legally insufficient.” Miller v. Rykoff-

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Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988) (citation omitted).

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A claim for tortious interference with prospective business must plead the following

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elements: (1) “the existence of a valid contractual relationship or business expectancy”;

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(2) the interferor’s “knowledge of the relationship or expectancy”; (3) “intentional

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interference inducing or causing a breach or termination of the relationship or expectancy”;

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and (4) “resultant damage to the party whose relationship or expectancy has been disrupted.”

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Antwerp Diamond Exch. of Am., Inc. v. Better, 637 P.2d 733, 740 (Ariz. 1981) (citations

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omitted). The interference must also be improper as to motive or means. Hill v. Peterson,

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35 P.3d 417, 420 (Ariz. Ct. App. 2001).

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EPS has alleged that it has a contract with Merrick Bank, that it is negotiating a

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renewal, and that TSYS is aware of these facts. Doc. 86-1 at 22. EPS also alleges that TSYS

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encouraged Merrick Bank to refrain from renewing the contract. Id. TSYS challenges

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plausibility with regard to termination of the contract or expectancy, improper motive or

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means, and damages. Doc. 89. EPS does not allege that Merrick Bank did not renew the

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contract, but that it did not invite EPS to a conference that would be useful in developing the

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contract and in conducting its business. Doc. 86-1 at 22.

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TSYS argues that the breach or termination must actually have happened and that such

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occurrence must be pled. Doc. 89 at 4-5. EPS responds that Antwerp recognizes liability as

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long as there was an effect of dampening business transactions or sales. Doc. 92 at 4. The

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Court finds this sufficient under Antwerp to state a claim.

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TSYS argues that EPS has filed sufficiently to allege improper motive, arguing that

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the allegation is conclusory. Viewed in the context of the entire answer and counterclaim,

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the Court finds sufficient factual allegations to support an allegation of improper motive.

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TSYS’ factual arguments are more properly addressed at the summary judgment stage.

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Finally, TSYS argues that EPS has not alleged facts showing damages as required by

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Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). The Court finds that the proposed EPS

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counterclaim sufficiently alleges the fact of damages. Doc. 86-1, ¶ 111. Whether EPS can

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present evidence in support of that allegation may be addressed at summary judgment.

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Applying the liberal amendment policy of Rule 15, EPS’s motion to amend will be
granted.

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IT IS ORDERED that EPS’s motion to amend (Doc. 86) is granted. The Clerk shall
file the Proposed Amended Counterclaims lodged as Doc. 87.
DATED this 10th day of May, 2011.

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