Watkins v. International Union, Security, Police and Fire Professionals of America, International Union, Security (SPFPA) et al
MEMORANDUM OPINION re pending motions. Signed by Judge Leonard P. Stark on 3/23/16. (ntl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
INTERNATIONAL UNION, SECURITY,
POLICE AND FIRE PROFESSIONALS
OF AMERICA, INTERNATIONAL
UNION, SECURITY (SPFPA), SPFPA
AMALGAMATED LOCAL 511 ,
FRONTLINE SECURITY SERVICES,
LLC, a Maryland Limited Company,
DEVONNE 0. EDWARDS , RICHARD
RHAMES, individually and in his official
Capacity, and THE UNITED STATES OF
AMERICA, DEPARTMENT OF
C.A. No. 15-444-LPS
G. Kevin Fasic, Katherine R. Witherspoon, Anthony N. Delcollo, COOCH & TAYLOR, P.A.,
Attorneys for Plaintiff
William L. O'Day, Jr. , WOLOSHIN LYNCH & NATALIE, P.A., Wilmington, DE
Scott A. Brooks, GREGORY, MOORE, JEAKLE and BROOKS, P.C., Detroit, MI
Attorneys for Defendants International Union, Security, Police and Fire Professionals of
America, International Union, Security (SPFPA) and SPFPA Amalgamated Local 511
Jennifer G. Brady, Janine L. Hochberg, POTTER ANDERSON & CORROON, LLP
Attorneys for Defendant Devonne 0 . Edwards
Jennifer G. Brady, Janine L. Hochberg, POTTER ANDERSON & CORROON, LLP
Angela D. Hart-Edwards, Julia K. Whitelock, GORDON REES SCULLY MANSUKHANI,
LLP, Washington, DC
Attorneys for Defendants Frontline Security Service, LLC
March 23 , 2016
STARK, U.S. District Judge:
Plaintiff Gregory L. Watkins ("Plaintiff'') filed this action pursuant to 29 U.S.C. § 185(a)
and Delaware common law alleging breach of fiduciary duty, breach of contract, breach of the
implied covenant of good faith and fair dealing, tortious interference with contract, tortious
interference with prospective business opportunities, conspiracy to commit tortious interference
with prospective economic advantage, and conspiracy to commit tortious interference with
business contracts. Plaintiff filed his original Complaint on June 1, 2015. (D.I. 1) In it, he
names the following defendants (collectively, "Defendants"): the Security, Police and Fire
Professionals of America ("SPFP A"), SPFP A Amalgamated Local 511 ("Local 511 "), Frontline
Security Services, LLC ("Frontline"), Devonne 0. Edwards ("Edwards"), Richard Rhames
("Rhames"), and the United States Department of Homeland Security ("DHS"). (Id.
iii! 2-7) 1
On August 21 , 2015, Defendants Frontline and Edwards (the "Frontline Defendants")
filed a motion to dismiss the Complaint for failure to state a claim. (D.I. 6) On September 28,
2015, Plaintiff filed a motion to amend his Complaint. (D.I. 15) The Frontline Defendants
oppose the motion to amend on the grounds that the amendment is futile. (D.I. 19) The Court
held an oral argument on January 26, 2016. (D.I. 25 (Tr.)) The other remaining defendants SPFP A and Local 511 (the "Union Defendants") - do not take a position on the motions, as these
motions are not directed to the claims against these Union Defendants.
0n July 23 , 2015, Plaintiff voluntarily dismissed former Defendants Rhames, an
Inspector with DHS, as well as DHS. (See D.I. 3)
Presently before the Court is the Frontline Defendants' motion to dismiss the counts of
Plaintiff's original Complaint directed at the Frontline Defendants for failure to state a claim
under Fed. R. Civ. P. 12(b)(6), as well as Plaintiff's motion to amend his Complaint under Fed.
R. Civ. P. 15. For the reasons that follow, the Court will grant in part and deny in part the
Frontline Defendants' motion to dismiss and will deny Plaintiff's motion to amend.
For approximately ten years, Plaintiff was employed as a security officer by Frontline.
10) In this capacity, Plaintiff worked with the Federal Protective Service ("FPS"), a
division of the United States Department of Homeland Security. (See id.
6-7, 11 ) Plaintiff's
Complaint arises from a series of events that took place on July 17, 2014 and that led to his
eventual termination. (See id.
11) While working at the United States Attorney' s Office in the
District of Delaware, Plaintiff regularly carried a personal firearm to and from work. (Id. )
Plaintiff alleges that he carried the firearm to work every day and that he did so with the
knowledge of his Frontline supervisor, FPS officers, and "other relevant individuals serving as
part of [his] chain of command." (Id.) While at work, Plaintiff stored his firearm in a box at his
On the morning of July 17, while Plaintiff was preparing the office for a meeting, his
firearm was discovered by a local police officer. (Id.
13) The discovery was reported to FPS
officials, who conducted an investigation and cited Plaintiff for violating federal regulations. (Id.
This recitation is based, as it must be at this stage, on taking as true all well-pleaded
factual allegations in the proposed amended Complaint (D .I. 15-1 ). Except when addressing
Plaintiff's proposed amendments, the Court refers interchangeably to the original Complaint (D.I.
1) and the amended Complaint, as they are identical for most purposes.
Following the FPS investigation, Frontline suspended Plaintiffs employment. (Id.
FPS officials wrote a letter to Frontline claiming that Plaintiff had violated federal regulations
and requesting that Frontline "take corrective action to eliminate any additional violations." (Id.
if 16) On December 1, 2014, Frontline officials prepared and reviewed a "Disciplinary
Termination Request." (Id.
Shortly thereafter, Plaintiff was notified that he had been
Plaintiff attempted to contact his union representative to challenge his
termination, but the union was unresponsive. (See id.
Plaintiff claims that his termination was improper. Specifically, Plaintiff alleges that: his
union, the SPFP A, breached its fiduciary duties by failing to represent him in his employment
dispute; his employer, Frontline, breached its collective bargaining agreement (D.I. 1 Ex. A
("CBA")) with the union; Frontline breached the implied covenant of good faith and fair dealing;
the FPS interfered with his employment contract and with prospective business opportunities;
and Frontline and the FPS conspired to interfere with Plaintiffs employment and with
prospective economic opportunities. Plaintiff seeks compensatory damage, punitive damages,
back pay, front pay, equitable relief, and attorneys' fees . (D.I. 15-1 at 16)
LEGAL ST AND ARDS
Motion to Dismiss
Evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) requires
the Court to accept as true all material allegations of a complaint. See Spruill v. Gillis, 372 F.3d
218, 223 (3d Cir. 2004). "The issue is not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the claims." In re Burlington Coat Factory
Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997) (internal quotation marks omitted). Thus, the
Court may grant such a motion to dismiss only if, after "accepting all well-pleaded allegations in
the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not
entitled to relief." Maio v. Aetna, Inc. , 221 F.3d 472, 481-82 (3d Cir. 2000) (internal quotation
However, " [t]o survive a motion to dismiss, a civil plaintiff must allege facts that ' raise a
right to relief above the speculative level on the assumption that the allegations in the complaint
are true (even if doubtful in fact) ."' Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007)
(quoting Bell At/. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A claim is facially plausible
"when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). "The complaint must state enough facts to raise a reasonable expectation that discovery
will reveal evidence of [each] necessary element" of a plaintiffs claim. Wilkerson v. New Media
Tech. Charter Sch. Inc., 522 F .3d 315, 321 (3d Cir. 2008) (internal quotation marks omitted).
The Court is not obligated to accept as true "bald assertions," Morse v. Lower Merion
Sch. Dist., 132 F .3d 902, 906 (3d Cir. 1997) (internal quotation marks omitted), "unsupported
conclusions and unwarranted inferences," Schuy lkill Energy Res., Inc. v. Pennsy lvania Power &
Light Co. , 113 F.3d 405 , 417 (3d Cir. 1997), or allegations that are "self-evidently false," Nami v.
Fauver, 82 F.3d 63 , 69 (3d Cir. 1996).
Motion to Amend
Pursuant to Federal Rule of Civil Procedure 15(a), a party may amend its pleading once
as a matter of course within 21 days after serving it or, if the pleading is one to which a
responsive pleading is required, 21 days after service of a responsive pleading or 21 days after
service of a Rule 12(b) motion, whichever is earlier. Otherwise, a party may amend its pleading
only with the opposing patty' s written consent or the court' s leave. Rule 15 provides that courts
should freely give leave to amend when justice so requires.
The Third Circuit has adopted a liberal approach to the amendment of pleadings in an
effort to ensure that "a particular claim will be decided on the merits rather than on
technicalities." Dole v. Arco Chem. Co. , 921F.2d484, 486-87 (3d Cir. 1990). Amendment,
however, is not automatic. See Dover Steel Co., Inc. v. Hartford Acc. & Indem., 151 F.R.D. 570,
574 (E.D. Pa. 1993). Leave to amend should be granted absent a showing of"undue delay, bad
faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue of the
allowance ofthe amendment, futility of amendment, etc." Farnan v. Davis, 371U.S.178, 182
(1962); see also Oran v. Stafford, 226 F.3d 275, 291 (3d Cir. 2000). Futility of amendment
occurs when the complaint, as amended, does not state a claim upon which relief can be granted.
See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). If the
proposed amendment "is frivolous or advances a claim or defense that is legally insufficient on
its face , the court may deny leave to amend. " Harrison Beverage Co. v. Dribeck Importers, Inc. ,
133 F.R.D. 463 , 468 (D.N.J. 1990).
Motion to Dismiss
The Frontline Defendants move to dismiss each of the claims asserted against them in the
original Complaint. These are: Count II alleging breach of the CBA; Count III alleging breach of
the implied covenant of good faith and fair dealing; Count V alleging tortious interference with
prospective business opportunities; Count VI alleging tortious interference with prospective
economic advantage; and Count VII alleging civil conspiracy. The Court addresses each of these
Count II - Breach of the CBA
Count II of the original Complaint alleges that the Frontline Defendants violated 29
U.S.C. § 185(a) by breaching the CBA. Plaintiff identifies five discrete violations of Article 8 of
the CBA. (See D .I. 1 il 22; D .I. 1-1 3 ("CBA") at 9-10) According to the Complaint, Defendants:
Failed to determine/investigate whether the firing of
Plaintiff was done with just cause;
Failed to advise Plaintiff of contemplated
disciplinary action within the requisite time frame ;
Failed to provide Plaintiff with a
meeting/conference in the course of an
Fired Plaintiff without just cause; and
Suspended Plaintiff for an extended period of time
with no action or effort made to address the
(D.I. 1 il 33) The Frontline Defendants argue that their actions were authorized by Articles 5 and
29 of the CBA and, thus, they did not violate the agreement. (D .I. 7 at 9-10) The Frontline
Defendants do not challenge the adequacy of Plaintiffs factual allegations. Instead, the motion
is based solely on the appropriate legal interpretation of the various provisions of the CBA.
The CBA is an exhibit to the original Complaint. (See D.I. 1-1) All parties agree that
the Court can and must consider the CBA in resolving the pending motions.
Article 8 of the CBA, entitled "Discipline and Discharge," outlines the steps and
procedures employers such as Frontline must follow when disciplining employees. Article 8,
Section 1 provides:
No employee shall be disciplined or discharged except for
just cause. The Employer shall notify an employee of its
intention to impose discipline or to discharge the employee
within 15 business days after management has actual
knowledge of the incident. . . . The employer shall attempt
to conduct a confidential investigation of the circumstances
of the event(s) giving rise to the possible disciplinary
action, including meeting with the employee ....
(CBA at 9) Taking Plaintiffs allegations as true, it is clear that the Frontline Defendants did not
comply with any of the requirements of Article 8. (See D.I. 1iii!15-19)
For purposes of the motion to dismiss, the Frontline Defendants do not deny that they
violated the requirements of Article 8. Instead, they base their motion on Articles 5 and 29 of the
CBA, which the Frontline Defendants argue supersede any obligations they might otherwise have
under Article 8. (D.I. 7 at 9-10)
Article 5 of the CBA states that employers may:
establish reasonable quality and performance standards [and]
formulate and enforce appropriate Employer rules and regulations
. .. if not covered by the provisions of [the CBA] , to hire, suspend,
promote, demote, transfer, discharge or discipline for just cause, or
relieve employees from duty because of lack of work, client or
Government request, or for other legitimate reasons . . ..
(CBA at 7) Article 29 provides:
Notwithstanding any provision of this Agreement, to the extent the
Government requires compliance with specific procedures ...
Employer will comply with those requirements without recourse by
any employee ... .
(CBA at 23)
To the extent the Frontline Defendants are contending that Article 5 on its own obviates
any obligation to provide Plaintiff the protections of Article 8, the Court disagrees. Article 5
provides employers latitude to develop policies and practices but only in areas "not covered by
the provisions of' the CBA. The conduct Plaintiff alleges the Frontline Defendants engaged in
was conduct that is "covered by the provisions" of the CBA, i.e., Article 8.
The Frontline Defendants are on more solid ground when they tum to Article 29. Article
29 allows an employer to deviate from the normal requirements of the Agreement, including
those set out in Article 8, "to the extent" required by the government. (CBA at 23) According to
the Frontline Defendants, "Frontline's decision to terminate Plaintiff was in compliance with ...
FPS' directive 'that Frontline take corrective action to eliminate any additional violations."'
(D.I. 7 at 9-10) Plaintiff responds that "[t]here was no direct order to terminate Plaintiff' and
that the FPS "never specifically instructed that Plaintiff be terminated." (D .I. 16-1 at 9)
Taking the allegations of the Complaint as true, the Court agrees with the Frontline
Defendants. In the Complaint, Plaintiff alleges that "Frontline bowed to the wishes of the
Department of Homeland Security, pursuant to its agenda to force Plaintiff [s] termination."
(D.I. 1 ~ 38) The Complaint further alleges that Frontline fired Plaintiff "in order to keep its
contract with FPS" (id.
40) and that the "FPS ... insisted that Frontline terminate Plaintiff' (id.
46). Because Frontline's termination of Plaintiff was done in order to comply with a
requirement imposed by the FPS, an agency of the government, Article 29 of the CBA relieved
Frontline of the obligations that would otherwise have been imposed by Article 8. Therefore,
Plaintiff has failed to state a claim for breach of the CBA with respect to his termination by the
Frontline Defendants (see D.I. 1if33(a), (d), (e)).
A portion of Plaintiff s Count II does not relate directly to Plaintiffs termination.
Plaintiff also alleges that the Frontline Defendants breached Article 8 of the CBA by failing to
provide the procedural protections set out in Article 8. In particular, in paragraph 33(b) and (c)
he contends that he was not advised of contemplated disciplinary action within the requisite time
frame and that he was not provided a meeting or conference in the course of the investigation.
The Complaint does not allege that FPS required the Frontline Defendants to deprive Plaintiff of
these procedural protections. At this stage of the proceedings, the Court will not presume that
implicit in the FPS ' directive to terminate Plaintiff was a subsidiary directive to do so without
advising him of the contemplated disciplinary action and without meeting with him. Thus,
Article 29 does not prevent Plaintiff from stating a claim on which relief may be granted with
respect to these procedural allegations. Accordingly, the Court will deny the Frontline
Defendants ' motion to dismiss with respect to the allegations in paragraph 33(b) and (c).4
Count III - Implied Covenant of Good Faith and Fair Dealing
In Count ID, Plaintiff alleges that the Frontline Defendants breached the implied covenant
of good faith and fair dealing. The Court agrees with the Frontline Defendants that this claim is
preempted by§ 301 of the Labor Management Relations Act, 29 U.S.C. § 185.
The Frontline Defendants argued at the hearing that Plaintiff s claim should be dismissed
because he failed to exhaust administrative remedies. (Tr. 31) Because this argument was made
for the first time at the hearing, the Court will not consider it. See, e.g., In re Optim Energy,
LLC, 527 B.R. 169, 172 n.3 (D . Del. 2015) ("Normally, the Court will not consider an issue that
a party raises for the first time at oral argument."); Tomasko v. Ira H. Weinstock, P.C. , 357 Fed.
Appx. 472, 479 (3d Cir. Dec. 18, 2009) (" [W]e find that the specific objections ... raised for the
first time at oral argument in the District Court have been waived.").
ill Allis-Chalmers Corp.
Lueck, 471U.S.202 (1985), the Supreme Court discussed the
scope of the LMRA' s preemptive effect. The Court explained that "state-law rights and
obligations that do not exist independently of private agreements .. . are pre-empted." Id. at 213 .
"[W]hen resolution of a state-law claim is substantially dependent upon analysis of the terms of
an agreement made between the parties in a labor contract, that claim must either be treated as a
§ 301 claim, or dismissed as pre-empted .. .. " Id. at 220; see also Guerrero v. Hovensa LLC,
259 Fed. Appx. 453 , 457 (3d Cir. Dec. 21 , 2007). The inquiry, then, is whether "the state-law
claim can be resolved without interpreting the agreement itself." Lingle v. Norge Div. ofMagic
Chef, Inc. , 486 U.S. 399, 410 (1988) .
ill Delaware, the implied covenant of good faith and fair dealing is present in every
contract. See Merrill v. Crothall-American, Inc., 606 A.2d 96, 101 (Del. 1992). A claim for
breach of the covenant requires employer conduct amounting to fraud, deceit, or
misrepresentation with respect to the terms or conditions of employment. See Reed v. Agilent
Techs. , Inc., 174 F. Supp. 2d 176, 191 (D. Del. 2001) ; see also Merrill, 606 A.2d at 101. A
plaintiff must allege conduct that "has the effect of preventing [the plaintiff] from receiving the
fruits of the contract." ACE & Co. v. Balfour Beatty PLC, 148 F. Supp. 2d 418 , 426 (D. Del.
The problem for Plaintiff is that one cannot identify the "fruits of a contract," such as the
CBA, without interpreting the contract itself. Similarly, one cannot determine whether an action
constitutes fraud "with respect to the terms or conditions of employment" without first
identifying the terms or conditions of employment. Because the covenant of good faith and fair
dealing can only be understood through reference to the contents of a specific contract,
evaluating Plaintiff's claim would require the Court to analyze the contents of the CBA.
Accordingly, the claim is preempted by the LMRA and the Court will dismiss Count III. 5
Count V - Tortious Interference with Prospective
In response to the Frontline Defendants ' motion to dismiss, Plaintiff agreed to dismiss
Count V. (See D.I. 16-1 at 13) Accordingly, the Court will dismiss Count V.
Count VI - Conspiracy to Commit Tortious
Interference with Prospective Economic Advantage
In order to state a claim for conspiracy under Delaware law, a plaintiff must allege facts
establishing the following elements: (1) two or more persons; (2) an object to be accomplished;
(3 ) a meeting of the minds between or among such persons relating to the object or a course of
action; (4) one or more unlawful acts; and (5) damages as a proximate result thereof. See Trice v.
Chapman, 2012 WL 3762872, at *3 (D. Del. Aug. 28 , 2012). In order to state a claim for
tortious interference with prospective economic advantage, Delaware law requires a plaintiff to
allege facts establishing: (1 ) a reasonable probability of a business opportunity; (2) intentional
interference with that opportunity; (3) proximate causation; and (4) damages. See eCommerce
Indus., Inc. v. MWA Intelligence, Inc., 2013 WL 5621678 , at *40 (Del. Ch. Sep. 30, 2013).
The Frontline Defendants argue that Count VI fails to state a claim on which relief may
be granted because Plaintiff has not adequately alleged facts sufficient to support the "meeting of
the minds" element of conspiracy. (D.I. 7 at 17) Rather than responding to this argument,
Given the Court' s conclusion that Plaintiffs claim is pre-empted by§ 301 of the LMRA,
the Court need not reach the Frontline Defendants ' alternative argument that Plaintiff was an atwill employee and, hence, that the implied covenant of good faith and fair dealing is inapplicable.
(See D.I. 7 at 12-14)
Plaintiff essentially conceded the pleading deficiency and instead filed his motion for leave to
amend the original Complaint. (See D.I. 15)
The Court agrees with the Frontline Defendants that Count VI of the original Complaint
fails to state a claim because it fails to allege sufficient facts to support the "meeting of the
minds" element of conspiracy. Plaintiff alleges no facts showing a meeting of the minds or
agreement between Frontline, as Plaintiff's employer, and the FPS or FPS Inspector Rhames.
Instead, the Complaint alleges that Frontline acted at the instruction of FPS and/or Rhames. (See
D.I. 1 if 54(a)) Accordingly, the Court will grant the motion to dismiss Count VI. The Court will
address Plaintiff's request to amend Count VI below.
Count VII - Conspiracy to Commit Tortious
Interference with Employment Contracts
The Frontline Defendants assert that Count VII, alleging a conspiracy to commit tortious
interference with an employment contract, fails to state a claim due to (among other reasons) the
same failure to allege a "meeting of the minds" that plagued Count VI. The Court agrees and
will grant the motion to dismiss Count VII. The Court will address Plaintiff's request to amend
Count VII below.
Motion to Amend
As noted above, rather than respond to the Frontline Defendants' contention that Counts
VI and VII of the original Complaint failed to state a claim because it failed to allege adequately
the "meeting of the minds" element of conspiracy, Plaintiff filed a motion for leave to amend.
(D .I. 15) In the proposed amendment, Plaintiff seeks to add the following allegation to the two
Frontline terminated Plaintiff, by information and belief, based
upon instruction from FPS to Frontline, with the specific objective
to terminate Plaintiff, as a result of the adoption of FPS ' s
conclusions, with the ulterior motive of blaming Plaintiff for a
perceived violation of regulation and policy that was nonetheless
approved by his superiors. Defendants' coordinated efforts to
investigate Plaintiff' s alleged violations despite the U. S. Attorney' s
refusal to prosecute these "violations", and the subsequent
adoption of the conclusions from .. . that investigation by
Frontline, reveal a conspiracy to terminate Plaintiff's employment.
if 55 ; see also id. if 60)
The Court agrees with the Frontline Defendants that this
proposed Amendment should be denied as futile. (See D.l. 19 at 3) Other than in a conclusory
fashion, Plaintiff does not allege that Frontline, FPS, and Inspector Rhames acted in concert or
that there was a meeting of minds to act to terminate Plaintiff. At most, Plaintiff alleges parallel
conduct, which is not sufficient to allege a civil conspiracy. See Burtch v. Mi/berg Factors, Inc.,
662 F.3d 212, 226 (3d Cir. 2011 ).
The proposed amendments are futile for other reasons as well. First, even if the amended
Complaint is read as alleging a conspiracy to terminate Plaintiff from his employment with
Frontline, it does not allege a meeting of the minds to interfere with prospective economic
advantage (Count VI) or to interfere with employment contracts (Count VII).6 The facts alleged
in the amended Complaint do not extend beyond Plaintiff' s employment with Frontline. (See
D.l. 15-1 iii! 10-24) Plaintiff does not allege any particular economic advantage or employment
that he lost or failed to obtain, nor does he allege that he has attempted to obtain other
Under Delaware law, the elements of a claim for tortious interference with a contract are:
(1) a valid contract; (2) about which the defendants have knowledge; (3) an intentional act by the
defendants that is a significant factor in causing the breach of contract; (4) done without
justification; and (5) which causes injury. See Gill v. Delaware Park, LLC, 294 F. Supp. 2d 638,
645 (D. Del. 2003 ).
employment. 7 Additionally, to the extent that the alleged conspiracy was directed toward ending
Plaintiffs employment with Frontline, such a conspiracy would not be actionable, as a party to a
contract (here, Frontline) cannot interfere or conspire to interfere with its own contract. See
Tenneco Automotive, Inc. v. El Paso Corp. , 2007 WL 92621 , at *2 (Del. Ch. Jan. 8, 2007)
(explaining that defendant "cannot interfere with its own contract").8
Finally, the proposed amended Complaint fails to adequately allege damages, as again it
does not allege any facts indicating that the alleged conspiracy has prevented Plaintiff from
taking advantage of "prospective economic" opportunities. In order to adequately allege a
reasonable probability of a business opportunity, a plaintiff "must identify a specific party who
was prepared to enter into a business relationship." US. Bank Nat'l Ass 'n v. Gunn, 23 F. Supp.
3d 426, 436 (D. Del. 2014). Further, to be reasonably probable, "a business opportunity must be
something more than a mere ... perception of a prospective business relationship." Agilent
Techs., Inc. v. Kirkland, 2009 WL 119865, at *7 (Del. Ch. Jan 20, 2009) (internal quotation
The proposed amended Complaint seeks to add paragraph 56, which states:
Plaintiffs opportunity for future business is and was
reasonably probable given his flawless personnel record, his
support throughout this entire investigation by the United States
Attorney' s Office for the District of Delaware, and the U.S.
Attorney' s decision to dismiss all allegations. Defendants' act of
terminating Plaintiff's employment constitutes tortious interference
given Plaintiffs prior flawless record; Defendant thus intentionally
interefered with Plaintiff's future opportunity to seek employment
by terminating his employment.
At oral argument, Plaintiff belatedly argued that his claim is allowed under Nutt v. A.C.
& S. Co. , 517 A.2d 690 (Del. Super. 1986). (Tr. 29) The Court does not agree, as Nutt does not
undermine the proposition that one cannot interfere with one ' s own contract.
Accordingly, the Court will deny Plaintiff's motion for leave to amend.
For the reasons provided above, the Court will grant the Frontline Defendants' motion to
dismiss with respect to Count II, as it relates to Plaintiff's termination (as outlined in points (a),
(d), and (e) of paragraph 33 of Plaintiff's Complaint), Count III, Count V, Count VI, and Count
VII. The Court will deny the motion with respect to Count II, as it relates to the procedures used
to effectuate Plaintiff's termination (as outlined in points (b) and (c) of paragraph 33 of
Plaintiff's Complaint). Additionally, the Court will deny Plaintiff's motion for leave to file an
amended Complaint as the proposed amendment would be futile. An appropriate Order follows.
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