SHARPE v. AMERICAN ACADEMY OF ACTUARIES

Filing 14

MEMORANDUM OPINION re #13 Order on Defendant's Motion to Dismiss Amended Complaint. Signed by Judge Trevor N. McFadden on 1/12/2018. (lctnm3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

TIMOTHY W. SHARPE,
Plaintiff,
v.

Case No. 1:17-cv-00258 (TNM)

AMERICAN ACADEMY OF ACTUARIES,
Defendant.

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MEMORANDUM OPINION

Plaintiff Timothy W. Sharpe is an actuary and voluntary member of defendant American
Academy of Actuaries (the “Academy”), a professional accreditation association. Am. Compl.
¶¶ 26-27, 36. Mr. Sharpe’s six-count complaint seeks damages and injunctive relief from the
Academy’s alleged unlawful dissemination of information regarding Mr. Sharpe’s disciplinary
proceeding within the organization. Id. 29-39. Pending before the Court is the Defendant’s
Motion to Dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). Def.’s Mot. to Dismiss Am. Compl. Having confirmed that jurisdiction and venue is
proper in this Court, 1 and upon consideration of the pleadings, relevant law, and related legal
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memoranda in opposition and in support, I find that all counts in the complaint should be
dismissed for failure to state a claim upon which relief can be granted. Accordingly, the
Defendant’s motion is GRANTED, and the complaint is DISMISSED.

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See 28 U.S.C. §§ 1332, 1391.
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I.

BACKGROUND

Mr. Sharpe is an actuary who has been practicing the profession for nearly 30 years. Am.
Compl. ¶ 6. Among his clients are municipalities in the state of Illinois, for which he provides
services related to pension matters. Id. Throughout his professional career, Mr. Sharpe has been
a voluntary member of the Academy, a professional organization of actuaries with over 18,500
members. Id. at ¶¶ 26-27. In March 2014, Mr. Sharpe was the subject of a complaint filed with
the Academy by Tia Sawhney, also an actuary, who raised concerns about Mr. Sharpe’s alleged
failure to comply with actuarial communication standards. Id. at ¶ 92.
The Academy’s Bylaws establishes an operating unit within the Academy, the Actuarial
Board for Counseling and Discipline (“ABCD”), to consider complaints made against member
actuaries and recommend discipline to the Academy. Id. at ¶¶ 36-40. While the ABCD is part of
the Academy, it also follows its ABCD Rules of Procedure (“ABCD Rules”) setting forth its
disciplinary process, which was promulgated pursuant to, and consistent with, the Academy’s
Bylaws’ enabling provision. See Am. Compl. Ex. 2, Art. X, § 1 (establishing the ABCD and
authorizing it to establish Rules of Procedure); id. Ex. 3 (the ABCD Rules). 2 The ABCD does
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not itself impose discipline on the subject actuary; rather, it makes a recommendation to the
Academy, which makes a final determination on whether to discipline the subject actuary, and, if
so, what form it should take. Id. at ¶ 40. Possible disciplinary actions include a private
reprimand, public reprimand, suspension, or expulsion. Id.

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Where an actuary is a member of multiple actuarial professional organizations, an Agreement
on Joint Discipline controls, which outlines the complaint review and disciplinary process as
among the multiple professional organizations. Am. Compl. ¶¶ 44-53. Mr. Sharpe is a member
only of the Academy, id. at ¶ 43, and for the reasons stated in Part III.A.1., infra, I focus on the
procedures applicable to subject actuaries who are members only of the Academy.
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Both the Academy’s Bylaws and the ABCD Rules contain provisions governing the
confidentiality of disciplinary proceedings. In the Bylaws, Article Ten provides that “[e]xcept as
otherwise provided in these Bylaws, all proceedings under this Article shall be kept confidential
by the ABCD, its staff, investigators, and advisers.” Am. Compl. Ex. 2, Art. X, § 9. In the
ABCD Rules, Section Ten similarly provides that “[t]he ABCD will make a reasonable effort to
keep confidential the facts and circumstances involved in any matter considered by the ABCD
for possible counseling or recommendations for discipline or the services of a mediator.” Id. Ex.
3, § 10. However, both governing documents are explicit that the ABCD can provide the
complainant with information on the disciplinary proceedings. Both documents state that the
“requirement as to confidentiality shall not preclude the ABCD from [] [a]dvising complainants
and subject actuaries about the progress and outcome of matters under consideration”. Id.; id.
Ex. 2, Art. X, § 9. There is no confidentiality requirement imposed upon complainants (or, for
that matter, the subject of a complaint).
In Mr. Sharpe’s case, the Academy held a hearing on December 7, 2015 to consider the
allegations, which Mr. Sharpe was unable to attend due to a serious illness involving his mother.
Id. at ¶ 110. On January 29, 2016, the ABCD issued a written report recommending that the
Academy expel Mr. Sharpe from membership. Id. at ¶ 112. On February 9, 2016, an article
appeared on a website, WirePoints, under the headline: “Illinois Fire and Police Pension Actuary
Facing Actuarial Discipline – WP Exclusive.” Id. Ex. 1. The article, authored by Mark
Glennon, founder of WirePoints, stated that the ABCD had “recently recommended that Timothy
Sharpe, actuary to dozens of troubled Illinois fire and police pension funds, be expelled from
membership in the [Academy],” and that the “recommendation is the result of separate
complaints by two actuaries, one by actuary Tia Goss Sawhney.” Id.

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Mr. Sharpe contends that the Academy and/or ABCD must have improperly disseminated
the ABCD’s recommendation of expulsion, and that this allegedly improper conduct has resulted
in the loss of clients. Id. at ¶¶ 131, 139. Accordingly, Mr. Sharpe sued the Academy for breach
of contract, negligence, publication of private facts, denial of due process and fair procedure,
tortious interference with contract, and tortious interference with prospective business advantage.
Id. at 29-38. The Academy responds that Mr. Sharpe fails to state a claim upon which relief can
be granted. Def.’s Mot. to Dismiss Am. Compl. For the reasons that follow, I find that each
count in the Amended Complaint fails to state a claim upon which relief can be granted, and
dismiss the complaint in its entirety.
II.

LEGAL STANDARD

A party may move to dismiss a complaint on the ground that it “fail[s] to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil Procedure
8(a)(2) requires that a complaint contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” This requires the complaint to contain sufficient factual
allegations that, if true, “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A complaint is insufficient if it merely offers “‘labels and
conclusions’” or “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 546). Rather, “[a] claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678. Plausibility “asks for more than a sheer possibility that a defendant has acted unlawfully,”
id., and pleading facts that are “merely consistent with” a defendant’s liability “stops short of the
line between possibility and plausibility.” Twombly, 550 U.S. at 545-46.

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In evaluating a motion to dismiss pursuant to Rule 12(b)(6), the Court must construe the
complaint in the light most favorable to the plaintiff and accept as true all reasonable factual
inferences drawn from well-pled factual allegations. See In re United Mine Workers of Am.
Emp. Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994). The Court does not accept as
true legal conclusions or “[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements.” Iqbal, 556 U.S. at 678. Last, “[i]n determining whether a
complaint fails to state a claim, [the court] may consider only the facts alleged in the complaint,
any documents either attached to or incorporated in the complaint and matters of which [the
court] may take judicial notice.” Hurd v. District of Columbia Gov’t, 864 F.3d 671, 678 (D.C.
Cir. 2017) (quoting EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir.
1997)).
III.

ANALYSIS

As this matter is properly before the Court based on diversity of citizenship, 3 I must first
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address which state law controls Mr. Sharpe’s claims. See Erie R.R. Co. v. Tompkins, 304 U.S.
64 (1938). In this District, the Court must first determine whether there is a conflict between the
laws of the relevant jurisdictions, and if not, apply the law of the District of Columbia. GEICO
v. Fetisoff, 958 F.2d 1137, 1141 (D.C. Cir. 1992). The Defendant argues that no “true conflict”
exists between District of Columbia law and Illinois law, Mem. of P. & A. in Support of Def.’s
Mot. to Dismiss Am. Compl. 21-24, and the Plaintiff does not address the issue in his brief.
Having reviewed the laws of both jurisdictions, I agree with the Defendant that no “true conflict”

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The Defendant is an Illinois corporation with its principal place of business in Washington,
District of Columbia. Mem. of P. & A. in Support of Def.’s Mot. to Dismiss Pl.’s Am. Compl.
21. Mr. Sharpe, although a citizen of Michigan, Am. Compl. ¶ 26, has provided services to
Illinois pension funds since 1992 and has maintained a place of business in Illinois. Id. ¶¶ 32-33.
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exists. See GEICO, 958 F.2d at 1141. Analyzing the Amended Complaint under District of
Columbia law, I find that the Plaintiff has failed to state a claim on each of the counts alleged.
A. Breach of Contract
For the Plaintiff’s breach of contract claim to survive a motion to dismiss based on
Federal Rule of Civil Procedure 12(b)(6), he must sufficiently plead that there was: (1) a valid
contract between the parties; (2) an obligation or duty arising out of the contract; (3) a breach of
that duty; and (4) damages caused by the breach. Francis v. Rehman, 110 A.3d 615, 620 (D.C.
2015). The first two elements are satisfied as the Academy does not contest that the Bylaws and
ABCD Rules form a contract between Mr. Sharpe and the Defendant. Mem. of P. & A. in
Support of Def.’s Mot. to Dismiss Am. Compl. 27. As for a breach of duty, the Amended
Complaint points to four contractual provisions that the Defendant allegedly violated—Section
Six on the Agreement on Joint Discipline; Article Nine, Section Six of the Academy Bylaws;
Article Ten, Section Nine of the Academy Bylaws; and Section Ten of the ABCD Rules. Am.
Compl. ¶¶ 183-186. Because the former two provisions do not apply to the alleged conduct, and
the latter two provisions explicitly permit disclosure to the complainant, none of these provisions
support a finding that a plausible breach of contract occurred.
1. Agreement on Joint Discipline and Article Nine of the Academy Bylaws
A plain reading of the Agreement on Joint Discipline and Article Nine, Section Six of the
Academy Bylaws foreclose the possibility that these provisions give rise to a breach of contract
claim. It is undisputed that Mr. Sharpe is a member only of the Academy and not of any other
actuarial organization, and that the ABCD issued its recommendation on January 29, 2016. See

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Am. Compl. ¶¶ 43, 112. Therefore, the Agreement on Joint Discipline does not apply because
the agreement effective at the time the ABCD rendered a decision in his case dictates,
If a Referring Body issues a recommendation to discipline a Subject
Actuary who is a member of only one (1) of the Parties, such party
shall proceed in accordance with its own individually established
procedures for addressing such a recommendation, and this
Agreement shall have no application to such proceeding.
Id. Ex. 7 ¶ 3.A. (Amended and Restated Agreement on Joint Discipline dated December 10,
2015). 4 Therefore, as a member only of the Academy, the Agreement on Joint Discipline has no
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application to Mr. Sharpe’s disciplinary action. Article Nine of the Academy Bylaws is also
inapplicable to Mr. Sharpe’s scenario. Article Nine pertains to the Academy’s process of
reviewing and taking action on a disciplinary recommendation from the ABCD. See Am.
Compl. Ex. 2, Art. IX, § 1 (referring complaints to the ABCD); id. § 3 (“govern[ing] proceedings
to consider and act upon disciplinary recommendations concerning Academy members”)
(emphasis added); id. § 4 (setting forth procedures for appeals of the Academy’s disciplinary
determinations). It is clear from the provisions of Article Nine that it relates to the Academy’s
process for referring and acting on disciplinary recommendations, and the Amended Complaint
alleges that the Academy had, at the time, not yet acted on the ABCD’s disciplinary
recommendation. See id. at ¶ 17. Therefore, Article Nine of the Academy’s Bylaws cannot form
the basis for a breach of contract claim.

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The Plaintiff argues that an earlier version of the agreement governs instead, Am. Compl. ¶¶
160-166, but this, too, is countered by the explicit language of the document. The agreement
dated December 10, 2015 specifies that it shall be effective for “cases in which a Referring Body
recommends disciplinary action on or after December 10, 2015,” and that “the terms and
conditions of the Original Agreement shall have no further force and effect for any case in which
a recommendation of disciplinary action is issued by a Referring Body on or after December 10,
2015.” Id. Ex. 7 ¶¶ 10, 13. Parties are, of course, free to contract a certain date to be the
effective date of an agreement, regardless of the actual date of execution. See, e.g., Sweetman v.
Strescon Indus., 389 A.2d 1319, 1322 (Del. 1978).
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2. Article Ten of the Academy Bylaws and Section Ten of the ABCD Rules
Turning to Article Ten, Section Nine of the Academy Bylaws and Section Ten of the
ABCD Rules, neither of these provisions support a claim for breach of contract because both
explicitly allow the ABCD to advise complainants “about the progress and outcome of matters
under consideration.” See id. Ex. 2, Art. X, § 9; id. Ex. 3, § 10. The Plaintiff makes several
arguments about why this language is not fatal to his claim, but none meet Rule 12(b)(6)’s
pleading standard.
The Plaintiff first argues that it is not clear who informed WirePoints about the ABCD’s
recommendation of expulsion. Id. at ¶¶ 140-142. But this is no whodunit. Based on the
Amended Complaint and its attachments, the reasonable inference to draw is that the ABCD—
per its policies—provided its recommendation to Ms. Sawhney, the complainant, who then
disclosed the recommendation to further third parties. 5 The WirePoints article mentions
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Ms. Sawhney and the fact of her complaint by name. Am. Compl. Ex. 1. Further, Ms. Sawhney
herself declared her intention to publicize the complaint and outcome. In her complaint to the
ABCD, she announced, “since these are my opinions and they concern public work, I claim the
right to share them in the public domain” and “I do not intend to abide with the ABCD’s request
to keep my complaint or the ABCD’s response to my complaint confidential.” Id. at ¶¶ 96-97.

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The Defendant argues that I should only give effect to the Plaintiff’s Original Complaint,
wherein he alleged that the Academy “informed Ms. Sawhney of the ABCD’s confidential
recommendation” and that she, in turn, informed WirePoints of ABCD’s recommendation.
Compl. ¶¶ 98-99. In the Defendant’s view, the apparent about-face in the Plaintiff’s position
means that I should only accept as true the factual inference that the Defendant disclosed the
ABCD’s recommendation to Ms. Sawhney. Def.’s Mot. to Dismiss Am. Compl. 25-26 (citing
Hourani v. Mirtchev, 943 F. Supp. 2d. 159 (D.D.C. 2013)). Because I find that even under the
Amended Complaint, the Plaintiff fails to state a claim upon which relief can be granted, I need
not reach this question, but note that the Original Complaint alleges that “the Academy leaked
the confidential ABCD recommendation to one or more third parties outside of the Academy”.
Compl. ¶ 100.
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A few months after submitting her complaint to the ABCD, she authored an article for
WirePoints disclosing that she “filed an [ABCD] report against [certain Illinois police funds’]
actuary, Mr. Timothy Sharpe.” Id. at ¶¶ 99-100. The following month, Ms. Sawhney contacted
a reporter about her complaint against Mr. Sharpe. Id. at ¶ 102. Ms. Sawhney’s clear intention
and actions taken to publicize her complaint against the Plaintiff, coupled with the WirePoints
article’s citation to her complaint, lead to the inevitable inference that she provided the ABCD’s
recommendation to WirePoints. While there remains a possibility that the Academy or ABCD
improperly disclosed the ABCD’s recommendation to someone other than Ms. Sawhney, a
“sheer possibility” does not constitute plausibility. See Twombly, 550 U.S. at 545-46.
The Plaintiff next argues that the ABCD flouted its responsibility to “make a reasonable
effort to keep confidential the facts and circumstances involved in any matter considered by the
ABCD for possible counseling or recommendations for discipline” because Ms. Sawhney made
clear to the ABCD that she did not intend to keep its response to her complaint confidential.
Pl.’s Mem. in Opp. to Def.’s Mot. to Dismiss Am. Compl. 36. This argument is unpersuasive
because the ABCD’s obligation with respect to making a reasonable effort to keeping
information confidential is cabined by the very next sentence, which unequivocally states that the
requirement “shall not preclude the ABCD from [] [a]dvising complainants and subject actuaries
about the progress and outcome of matters under consideration.” See id. Ex. 2, Art. X, § 9
(emphasis added); id. Ex. 3 § 10 (emphasis added). Although neither the Academy’s Bylaws nor
the ABCD Rules seem to require or compel the disclosure of any information to a complainant,
and the Plaintiff may fairly argue that it would be in poor taste to disclose the ABCD’s
recommendation in an instance where a complainant has so clearly made known her intention to
disclose the recommendation, these provisions cannot support a claim for breach of contract in

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light of the explicit provisions permitting the disclosure of certain information to the
complainant.
Last, the Plaintiff contends that the ABCD’s recommendation was not an “outcome of [a]
matter[] under consideration” and was therefore ineligible to be provided to the complainant
under the Academy’s Bylaws and the ABCD Rules. Pl.’s Mem. in Opp. to Def.’s Mot. to
Dismiss Am. Compl. 30-31. Instead, the Plaintiff suggests that “matter” is a broad term that
encompasses both the ABCD’s investigative work and recommendation, as well as the
Academy’s determination on whether to implement the ABCD’s recommendation. Id. Under
this interpretation, it would be premature to inform the complainant of the ABCD’s
recommendation. Id. This argument, too, falls short on account of the plain language and
structure of the Academy’s Bylaws and the ABCD Rules. As previously discussed, the
Academy’s Bylaws describe the handling of disciplinary proceedings in Article Nine (governing
the Academy’s process) and Article Ten (governing the ABCD’s process). Article Ten
establishes the basic procedures and principles for the ABCD’s investigative and disciplinary
recommendation process, and it is pursuant to Article Ten that the ABCD Rules were
established. See Am. Compl. Ex. 2 Art. X, § 1 (“The ABCD is authorized to establish Rules of
Procedure and operating guidelines not inconsistent with the requirements of this Article.”).
Within Article Ten, cases before the ABCD are referred to as “matter[s]” on multiple occasions.
Article Ten, Section One requires that “[n]otice of the inquiry along with the factual basis for the
inquiry and an opportunity to comment on the matter before the ABCD determine whether an
investigation should be initiated.” (emphasis added). Article Ten, Section Five states that “[t]o
review a matter, the Chairperson shall appoint a primary Investigator and may appoint additional

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Investigators.” (emphasis added). Thus, it is consistent that a case before the ABCD would be
referred to as a “matter under investigation” in Article Ten, Section Nine.
The Plaintiff’s interpretation fares no better within the ABCD Rules, for the very
provision on which he relies for his breach of contract claim, Section 10, clearly indicates that a
“matter” is a case that results in the ABCD’s disciplinary recommendation. Indeed, the section
starts: “The ABCD will make a reasonable effort to keep confidential the facts and circumstances
involved in any matter considered by the ABCD for possible counseling or recommendations for
discipline . . . . The requirement as to confidentiality shall not preclude the ABCD from[]
[a]dvising complainants and subject actuaries about the progress and outcome of matters under
consideration”. Id. Ex. 3 § 10 (emphasis added).
Defining an “outcome of [a] matter[] under consideration” as the ABCD’s disciplinary
recommendation is also consistent with the ABCD’s and Academy’s roles in the disciplinary
process. As previously established, the ABCD does not impose discipline on an actuary itself,
but makes a recommendation of discipline to the Academy. Thus, the ABCD’s role ends when it
issues its recommendation and report, and the “outcome of [a] matter[] under consideration” by
the ABCD is necessarily its disciplinary recommendation.
B. Negligence; Publication of Private Facts; Tortious Interference
Given the reasonable inference drawn from the facts pled in the Amended Complaint—
namely, that the ABCD provided Ms. Sawhney, the complainant, with its disciplinary
recommendation as permitted by the Academy’s Bylaws and the ABCD Rules—the majority of
the Plaintiff’s other claims also fail. The Plaintiff’s Amended Complaint fails to state a claim for
negligence because even assuming, arguendo, that the Defendant owed a duty to the Plaintiff,
there could not have been a breach of the Defendant’s duty under these circumstances. See

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Aguilar v. RP MRP Washington Harbour, LLC, 98 A.3d 979, 982 (D.C. 2014) (explaining that
negligence requires a showing that the defendant owed a duty to the plaintiff, the defendant
breached that duty, and injury resulted to the plaintiff proximately caused by the breach of duty).
The Plaintiff’s claim for publication of private facts fails to adequately allege critical
elements of the tort: publication absent any waiver. See Wolf v. Regardie, 553 A.2d 1213, 1220
(D.C. 1989) (requiring publication of private facts to require publicity, absent any waiver or
privilege, given to private facts, in which the public has no legitimate concern, and which would
be highly offensive to a reasonable person of ordinary sensibilities). The Amended Complaint
has not sufficiently pled that the Academy and/or the ABCD improperly published Mr. Sharpe’s
disciplinary proceeding as the Bylaws and ABCD Rules unambiguously provide for the
disclosure of the “outcome of [a] matter[] under consideration”—i.e., the ABCD’s
recommendation—to a complainant.
Additionally, the Plaintiff’s tortious interference with contract and tortious interference
with prospective business advantage claims fail because he has not sufficiently alleged that the
Defendant intentionally interfered with any business relationship or expectancy. See Onyeoziri
v. Spivok, 44 A.3d 279, 286 (D.C. 2012) (listing the elements of intentional interference with
business relations as the existence of a valid contract or business relationship; knowledge of the
contract or relationship; intentional interference with the contract or relationship; and damages
caused by the interference); Brown v. Carr, 503 A.2d 1241, 1247 (D.C. 1986) (explaining that
the elements for intentional interference with a prospective business advantage “runs ‘parallel’”).
The Amended Complaint does not sufficiently plead facts from which to plausibly infer that the
Defendant intentionally interfered with the Plaintiff’s business or business expectancy, nor does
it plead the specific contracts or expectancies that the Plaintiff claims were interfered with, as he

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is required to do. See, e.g., Nyambal v. Alliedbarton Sec. Servs., LLC, 153 F. Supp. 3d 309, 316
(D.D.C. 2016) (“tortious interference claims are routinely dismissed where the plaintiff fails to
name specific contractual relationships that the defendant allegedly interfered with, or to identify
any facts related to future contracts compromised by the alleged interferer.”).
C. Denial of Due Process
The Plaintiff’s remaining claim for denial of due process also fails to meet Rule 12(b)(6).
Courts ordinarily do not interfere with the internal disciplinary process of voluntary, private
associations absent a failure of the association to follow its own rules, see, e.g., Levant v.
Whitley, 755 A.2d 1036, 1043-44 (D.C. 2000), and should the process be reviewed, a
“fundamental fairness” standard governs. See, e.g., Blodgett v. University Club, 930 A.2d 210,
227 (D.C. 2007). As I have already determined, the Plaintiff has not sufficiently pled that the
Academy and/or ABCD violated the confidentiality provisions in their Bylaws and ABCD Rules.
The Plaintiff also argues that the Academy failed to refer the matter to a Joint Disciplinary
Committee pursuant to the Agreement on Joint Discipline; however, this argument is a nonstarter
pursuant to my prior determination that the Agreement on Joint Discipline does not apply to
Mr. Sharpe’s case. Last, the Plaintiff seeks an order enjoining the Academy from taking further
action in his disciplinary matter until this litigation is resolved. By reason of a lack of sufficient
showing that the Defendant failed to follow its own rules—either by violating the confidentiality
provision or by not referring the matter to a Joint Disciplinary Committee—and this Court’s
dismissal of all counts in the Amended Complaint, I find that this remedy is unwarranted.

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IV.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED that the Defendant’s Motion to
Dismiss is GRANTED. A separate order will issue.
SO ORDERED.

/s/
TREVOR N. MCFADDEN
United States District Judge
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Dated: January 12, 2018

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