NEW YORK LIFE INSURANCE COMPANY v. GRANT

Filing 29

ORDER GRANTING in part and DENYING in part 12 Motion to Dismiss and DENYING 17 Motion to Strike. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 10/28/2014. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
NEW YORK LIFE INSURANCE
COMPANY,
Plaintiff,
v.
DEAN GRANT,
Defendant.

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CIVIL ACTION NO. 5:14-CV-101 (MTT)

ORDER
Before the Court is Plaintiff New York Life Insurance Company’s motion to
dismiss (Doc. 12) Defendant Dean Grant’s counterclaim (Doc. 7) and New York Life’s
motion to strike (Doc. 17) Grant’s amended counterclaim (Doc. 15). For the following
reasons, the motion to dismiss is GRANTED in part and DENIED in part, and the
motion to strike is DENIED.
I. BACKGROUND
New York Life sells insurance products. (Doc. 1 at ¶ 19). Grant began working
for New York Life as an Agent on October 7, 1988, and as a District Agent on March 6,
2000. (Doc. 15 at ¶¶ 1-4). As an Agent, Grant received commissions based on his
own sales of New York Life products, and as a District Agent, he received override
commissions (“Overrides”) based on sales by other agents within his District Agency.
(Docs. 1 at ¶ 10; 15 at ¶ 8). The relationship between New York Life and Grant,
including the amount of commissions he earned, was governed by an Agency Contract
and a District Agency Agreement. (Doc. 15 at ¶¶ 8-10). Under certain circumstances,

such as if an insurance product was rescinded, declined or cancelled, Grant was
obligated to reimburse New York Life. (Doc. 1 at ¶ 19). Grant terminated his Agency
Contract on December 31, 2013, and his District Agency Agreement on July 31, 2013,
“pursuant to his retirement from New York Life.” (Doc. 15 at ¶¶ 1-5). On March 13,
2014, New York Life filed this lawsuit against Grant, seeking to recover $287,819.01
that Grant allegedly failed to reimburse New York Life. (Doc. 1 at ¶ 3).
On April 14, 2014, Grant filed a counterclaim along with his answer and defenses
to New York Life’s complaint. (Doc. 7). New York Life timely moved to dismiss Grant’s
counterclaim for failure to state a claim upon which relief can be granted. (Doc. 12).
Grant filed a consent motion for a four-week extension of time to file his response to
New York Life’s motion to dismiss, which the Court granted. (Doc. 14). Grant’s
response to New York Life’s motion to dismiss was due on June 17, 2014. That day,
Grant filed a brief in response to New York Life’s motion to dismiss, as well as an
amended counterclaim. (Doc. 15; 16). New York Life then filed a motion to strike
Grant’s amended counterclaim, arguing that the amended pleading was (1) untimely
because it was filed without its consent or the leave of Court and after the deadlines set
forth by Fed. R. Civ. P. 15; and (2) futile because, even as amended, it fails to state a
claim upon which relief can be granted. (Doc. 17 at 2). Grant filed a response to New
York Life’s motion to strike, arguing the amended counterclaim was timely filed and
addressing New York Life’s futility arguments. (Doc. 19).
In his amended counterclaim, Grant alleges New York Life, as early as 2010,
began interfering with the successful performance of Grant’s Agency Contract and

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District Agency Agreement.1 Grant makes four allegations against New York Life. First,
Grant alleges New York Life made substantial changes to the District Agency
Agreement, including terms related to his compensation, without providing the required
written notice. (Doc. 15 at ¶¶ 19-20). In Grant’s view, this impacts how much, if any, he
owes New York Life. Second, Grant alleges New York Life failed to officially transfer an
agent to his District Agency, despite representations that it would do so. (Doc. 15 at ¶
21). New York Life has not covered the numerous expenses incurred by Grant for
“training and grooming” the agent from 2008 to 2013. (Doc. 15 at ¶ 21). Third, Grant
alleges New York Life interfered with clients of his limited liability company, Grant
Financial Group, through unauthorized contact, unauthorized letters, and the production
of erroneous information. (Doc. 15 at ¶¶ 13-18). Finally, Grant alleges New York Life
arbitrarily refused to honor a successor agreement Grant signed with a current New
York Life agent, which would have allowed Grant’s clients to be taken care of by an
experienced agent. (Doc. 15 at ¶ 22). Instead, Grant’s book of clients was transferred
to inexperienced agents, resulting in damages to Grant’s business reputation in the
local community. (Doc. 15 at ¶ 22).
Based on these allegations, Grant asserts the following claims against New York
Life: 1) breach of contract; 2) breach of implied covenant of good faith and fair dealing;
3) negligent misrepresentation; 4) breach of implied contract; 5) quantum meruit; 6)
promissory estoppel; 7) tortious interference with business relations; 8) negligent and
intentional infliction of emotional distress; and 9) attorney’s fees.

1
For the reasons discussed below, the Court will consider the allegations raised in the amended
counterclaim because the amendment was timely.
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II. DISCUSSION
A. New York Life’s Motion to Strike Grant’s Amended Counterclaim
Federal Rule of Civil Procedure 15(a) governs the amendment of pleadings
before trial:
(1) Amending as a Matter of Course. A party may amend its pleading
once as a matter of course within:
a. 21 days after serving it, or
b. 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 motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its
pleading only with the opposing party’s written consent or the court’s
leave. The court should freely give leave when justice so requires.
Under Rule 15(a)(2), the Court “need not, however, allow an amendment (1) where
there has been undue delay, bad faith, dilatory motive, or repeated failure to cure
deficiencies by amendments previously allowed; (2) where allowing amendment would
cause undue prejudice to the opposing party; or (3) where amendment would be futile.”
Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (citing Foman v. Davis, 371
U.S. 178, 182 (1962)).
New York Life argues the amended counterclaim is untimely because it did not
consent to the amended counterclaim. New York Life also argues the amended
counterclaim is futile because, even as amended, it fails to state a claim upon which
relief can be granted. (Doc. 18 at 4-10). Finally, New York Life argues it will be
prejudiced if the Court allows the amending pleading because it incurred expenses in
moving to dismiss the counterclaim as originally pled. (Doc. 18 at 2). For this reason,
New York Life requests the amended counterclaim be allowed only on the condition that
Grant pay New York Life’s reasonable attorney’s fees.

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Grant acknowledges the amended counterclaim was filed outside of the 21 days
allowed by Rule 15(a)(1). Nevertheless, Grant “believes that his amended pleading is
still timely as a matter of course” and “appreciates that he has exercised this right to
amend as a matter of course and without leave of court pursuant to Rule 15(a) of the
Federal Rules of Civil Procedure.” (Doc. 16 at 3-4). Specifically, Grant cites to the
consent motion that was agreed upon and filed by the Parties. Grant argues that he
“has not attempted to use this extension of time in which to file this Response in order to
circumvent the specific time periods established under Rule 15(a).” (Doc. 16 at 4).
Grant also argues the filing of the amended counterclaim does not thwart the purpose of
Rule 15. (Doc. 16 at 4).
On May 16, 2014, Grant filed a consent motion “to extend the time in which
Defendant-Counterclaimant might file his response to Plaintiff’s Motion to Dismiss
Defendant’s Counterclaims.” (Doc. 14). The Court granted the motion on May 19. One
response to a motion to dismiss is to file an amended pleading. See Fed. R. Civ. P. 15,
Advisory Committee’s Note (2009 Amendments) (“A responsive amendment may avoid
the need to decide the motion or reduce the number of issues to be decided, and will
expedite determination of issues that otherwise might be raised seriatim.”). The Court’s
Order, then, extended the time period for filing an amended counterclaim as a matter of
course under Rule 15(a). Fed. R. Civ. P. 6(b) (“When an act may or must be done
within a specified time, the court may, for good cause, extend the time ….”). That is
precisely what Grant did.2 Because Grant timely amended his counterclaim pursuant to
the Court’s extension of time, New York Life’s motion to strike is DENIED.

2
Although New York Life argues it did not give Grant consent to amend his counterclaim simply
because it gave him consent to file a motion for extension of time, New York Life seems to
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“Under the Federal Rules, an amended complaint supersedes the original
complaint.” Fritz v. Standard Sec. Life Ins. Co. of N.Y., 676 F.2d 1356, 1358 (11th Cir.
1982). “As a result, motions directed at the superseded pleading generally are to be
denied as moot.” Mize v. Blue Ridge Bank, No. 8:12-CV-2763, 2013 WL 1766659, at *1
(D.S.C.). Nevertheless, the Court may consider New York Life’s motion to dismiss the
original counterclaim as being directed towards the amended counterclaim. See 6
Charles Alan Wright et al., Federal Practice and Procedure § 1476 (3d ed. 2011)
(“[D]efendants should not be required to file a new motion to dismiss simply because an
amended pleading was introduced while their motion was pending. If some of the
defects raised in the original motion remain in the new pleading, the court simply may
consider the motion as being addressed to the amended pleading.”); Chavez v. Credit
Nation Auto Sales, Inc., 966 F. Supp. 2d 1335, 1345 n.2 (N.D. Ga. 2013). “To hold
otherwise would be to exalt form over substance.” 6 Charles Alan Wright et al., Federal
Practice and Procedure § 1476 (3d ed. 2011).
New York Life filed a consolidated reply brief in response to Grant’s amended
counterclaim, arguing that the counterclaim, even as amended, fails to state a claim
upon which relief can be granted. (Doc. 18 at 2). Because New York Life has
responded to the merits of the amended counterclaim and continues to allege that
Grant’s counterclaim fails to state a claim, the Court will consider New York Life’s
original motion to dismiss as being directed towards Grant’s amended counterclaim.

acknowledge in its consolidated reply brief that one way to respond to a Rule 12(b)(6) motion is
to file an amended pleading. (Doc. 18 at 1) (“In response to New York Life’s Rule 12(b)(6)
motion to dismiss the nine counts of his counterclaim, defendant filed an ‘amended answer,
defenses and counterclaims.’”) (emphasis added).

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B. Failure to State a Claim3
1. Standard
To avoid dismissal pursuant to Fed. R. Civ. P. 12(b)(6), a complaint must contain
specific factual matter to “‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 697 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “At the motion to dismiss stage, all well-pleaded facts are accepted as true,
and the reasonable inferences therefrom are construed in the light most favorable to the
plaintiff.” Garfield v. NDC Health Corp., 466 F.3d 1255, 1261 (11th Cir. 2006).
However, “[w]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not ‘shown’ – that
the pleader is entitled to relief.” Iqbal, 556 U.S. at 679. “[C]onclusory allegations,
unwarranted deductions of facts or legal conclusions masquerading as facts will not
prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir.
2002). Further, where there are dispositive issues of law, a court may dismiss a claim
regardless of the alleged facts. Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist.,
992 F.2d 1171, 1174 (11th Cir. 1993).

3
New York Life relies on two extrinsic documents in its motion to dismiss: (1) an Agency
Contract, Exhibit 1, and (2) a District Agency Agreement, Exhibit 2. In his amended answer,
Grant denies that Exhibit 1 is an actual copy of the Agency’s Contract signed by Grant, but
admits that Exhibit 2 is a copy of the District Agency Agreement he signed. (Doc. 15 at ¶¶ 7, 9).
“In ruling upon a motion to dismiss, the district court may consider an extrinsic document if it is
(1) central to the plaintiff's claim, and (2) its authenticity is not challenged.” SFM Holdings, Ltd.
v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010) (citation omitted); see also
Brooks v. BCBS of Fla., Inc., 116 F.3d 1364, 1369 (“[D]efendant’s attaching such documents to
the motion to dismiss will not require conversion of the motion into a motion for summary
judgment.”). Thus, the only document the Court may rely on is the District Agency Agreement.

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2. Analysis4
a. Count I - Breach of Contract
Grant alleges he entered into an Agency Contract and a District Agency
Agreement with New York Life. He contends New York Life breached these
agreements by 1) failing to provide written notice and 2) modifying the agreements in
such a way as to make performance impractical and impossible. (Doc. 15 at ¶¶ 23-28).
A breach of contract claim in Georgia requires “(1) breach and the (2) resultant
damages (3) to the party who has the right to complain about the contract being
broken.” Norton v. Budget Rent A Car Sys., Inc., 307 Ga. App. 501, 502, 705 S.E.2d
305, 306 (2010). “The breach must be more than de minimus and substantial
compliance with the terms of the contract is all that the law requires.” Kuritzky v. Emory
Univ., 294 Ga. App. 370, 371, 669 S.E.2d 179, 181 (2008). “A breach occurs if a
contracting party repudiates or renounces liability under the contract; fails to perform the
engagement as specified in the contract; or does some act that renders performance
impossible.” UWork.com, Inc. v. Paragon Techs., Inc., 321 Ga. App. 584, 590, 740
S.E.2d 887, 893 (2013) (citation omitted).
Grant alleges New York Life breached the express terms of both the Agency
Contract and the District Agency Agreement because New York Life “failed to provide
the proper written notice of changes to the compensation schedule[s] as required under
the respective agreements.” (Doc. 15 at ¶ 26). According to Grant, the District Agency
Agreement provides: “New York Life will have the right to change or modify
[Compensation] Schedule A, including Exhibits I, II and III, by giving the District Agent

4
The Parties agree the claims are governed by Georgia Law. (Doc. 15 at ¶ 31 and Doc. 12-1 at
9).
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thirty (30) days’ written notice.” (Doc. 15 at ¶ 9). Similarly, the Agency Contract
provides: “The Company reserves the right to change such [compensation] schedules,
in whole or in part, at any time by giving written notice to the Agent and the new rates,
policy years, rules and conditions will apply as set forth in the Schedules.” (Doc. 15 at ¶
10).
In Grant’s view, “the written notice is what triggers [New York Life’s] right to
amend the terms of the agreement[,]” and “the failure of [New York Life] to provide
written notice of the alteration of the material terms of both agreements is a complete
failure of compliance with such provisions.” (Doc. 19 at 6-7). Grant contends that
although he cannot determine the exact amount of damages at this time, “[t]he disparity
in the amount of recovery alleged by [New York Life] and the actual amount, if any,
owed by Grant are a fundamental part of the damages claimed by Grant.” (Doc. 19 at
7). In response, New York Life argues Grant, at most, alleges a “de minimis” breach of
contract and has failed to provide “a statement of any ‘resultant damages’ due to the
alleged failure to provide written notice.” (Doc. 18 at 5).
Grant also alleges New York Life’s modification to the terms of the District
Agency Agreement “rendered the performance thereunder by Grant impractical and
impossible, thus frustrating the intended purpose of such agreements as a whole.”
(Doc. 15 at ¶ 27). Grant alleges New York Life modified the amount of Overrides he
received in such a way as to place significant limitations on the profitability of Grant’s
District Agency. (Doc. 15 at ¶ 19). He further alleges New York Life modified the
number of agents allowed in his District Agency, which similarly resulted in a substantial
decrease in profitability. (Doc. 15 at ¶ 20). New York Life argues “such ‘conclusory …

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sweeping allegations with no factual information to support [the] claims’ are not
sufficient to state a claim for breach of contract.” (Doc. 18 at 5).
It may be that the breach of contract was de minimis and did not cause damages.
However, the Court cannot decide that issue at the motion to dismiss stage. And it may
be that New York Life’s allegedly improper modification of the terms did not cause
damages by rendering performance of the agreement impractical or impossible. The
Court cannot decide that issue at this stage of the litigation. Because Grant has pled a
breach and damages therefrom, he has alleged sufficient facts to state a claim for
breach of contract.
b. Count II - Breach of Good Faith and Fair Dealing
Grant asserts New York Life “has breached the implied covenant of good faith
and fair dealing by acting in bad faith when exercising those rights within its sole
discretion under the terms of the contracts thereby rendering Grant’s performance
impossible.” (Doc. 16 at 7). Specifically, Grant alleges “New York Life’s conduct in the
performance of these agreements by, among other things, arbitrarily, unilaterally, and
unreasonably altering the material terms of the agreements constitutes a breach of the
implied covenant of good faith and fair dealing arising from these express terms.” (Doc.
15 at ¶ 33). In response, New York Life argues this claim is based on the same alleged
conduct as Grant’s breach of contract claim, and “[b]ecause Grant’s cause of action for
breach of the implied covenant of good faith and fair dealing cannot be asserted
independently of his breach of contract claim, it should be dismissed.” (Doc. 18 at 6).
Under Georgia law, “[e]very contract implies a covenant of good faith and fair
dealing in the contract's performance and enforcement.” Myung Sung Presbyterian

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Church, Inc. v. N. Am. Ass'n of Slavic Churches & Ministries, Inc., 291 Ga. App. 808,
810, 662 S.E.2d 745, 748 (2008). “It is a doctrine that modifies the meaning of all
explicit terms in a contract, preventing a breach of those explicit terms de facto when
performance is maintained de jure.” Alan’s of Atlanta, Inc. v. Minolta Corp., 903 F.2d
1414, 1429 (11th Cir. 1990).
Grant alleges New York Life entered into two written agreements and violated the
implied covenant of good faith and fair dealing in modifying the terms of these
agreements. Grant has set forth a claim for the breach of an express agreement.
Accordingly, he has alleged facts sufficient to state a claim for breach of the implied
covenant of good faith and fair dealing.
c. Count III - Negligent Misrepresentation
In Count III, Grant alleges New York Life negligently supplied false information
pertaining to 1) conversion credits, 2) compensation schedules, and 3) agent
placements. (Doc. 15 at ¶ 37). But Count III contains no facts supporting these claims.
In his brief, Grant says the factual bases are found in paragraphs 18, 21, and 22 of his
amended counterclaim. (Doc. 19 at 9). The Court will turn to those paragraphs to
determine whether Grant has sufficiently alleged claims for negligent
misrepresentation.5 New York Life argues Grant “has failed to allege how any person
justifiably relied to his or her detriment on false information negligently provided by New

5
Paragraphs 18, 21, and 22 make no mention of compensation schedules. The Court takes
Grant at his word; his claims for negligent misrepresentation are based factually only on
paragraphs 18, 21, and 22. Thus, he does not assert a claim for negligent misrepresentation
regarding compensation schedules.
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York Life.”6 (Doc 18 at 6). According to New York Life, “the only allegedly ‘false’
information provided by New York Life was ‘erroneous calculations to clients of Grant
Financial Group regarding ‘conversion credits,’ that was discovered and corrected.”
(Doc. 18 at 7-8). New York Life also takes the position that Fed. R. Civ. P. 9(b) applies
to this claim. (Doc. 18 at 7). Grant does not take a position on whether Rule 9(b)
applies, but believes he has sufficiently pled a negligent misrepresentation claim against
New York Life. (Doc. 19 at 10).
To state a claim for negligent misrepresentation claim, Grant must allege facts
showing “(1) the defendant’s negligent supply of false information to foreseeable
persons, known or unknown; (2) such persons’ reasonable reliance upon that false
information; and (3) economic injury proximately resulting from such reliance.” Marquis
Towers, Inc. v. Highland Group, 265 Ga. App. 343, 346, 593 S.E.2d 903, 906 (2004)
(citation and quotation marks omitted). To be liable for a negligent misrepresentation, it
is not necessary that the misrepresentation be made directly to the complaining party,
but it is necessary that the complaining party reasonably rely on the misrepresentation
and be injured as a result. See, e.g., Wingate Land, LLC v. ValueFirst, Inc., 314 Ga.
App. 24, 27, 722 S.E.2d 868, 870 (2012); Spellman v. Harrell Ins. Agency, Inc., 292 Ga.
App. 249, 251, 663 S.E.2d 816, 818 (2008); White v. BDO Seidman, LLP, 249 Ga. App.
668, 671, 549 S.E.2d 490, 493 (2001). Additionally, under Georgia law it is necessary
that the maker of the statement actually be aware that the third party—here Grant—will
rely on the information and that the “known third party's reliance was the desired result
of the misrepresentation.” Martha H. W. Trust v. Market Value of Atlanta, Inc., 262 Ga.

6
Grant did not originally allege a claim for negligent misrepresentation. Although New York Life
did not address the merits of this claim in its motion to dismiss, New York Life addresses the
claim in its consolidated reply brief. (Doc. 18 at 6).
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App. 90, 92, 584 S.E.2d 688, 691 (2003) (internal quotation marks and citations
omitted). The Eleventh Circuit has not expressly ruled that Rule 9(b)’s heightened
pleading standard applies to claims for negligent misrepresentation under Georgia Law,
and district courts differ over whether the standard should apply. See DIRECTV, LLC v.
Stanley Wells, No. 1:13-CV-28 WLS, 2013 WL 6036686, at *2 n.2 (M.D. Ga.) (collecting
cases).
First, in paragraph 18 of his amended counterclaim, Grant alleges New York Life,
through one of its managers, “produced erroneous calculations to clients of Grant
Financial Group regarding ‘conversion credits’ to which such clients would be entitled
for the conversion of their life insurance policies.” (Doc. 15 at ¶ 18). Although Grant
does not provide any details about the identity of these clients, he alleges the clients
agreed to the conversion credits. New York Life then allegedly “indicated that a
miscalculation had occurred” and “offered an ‘accommodation agreement’ to the clients
of Grant Financial Group.” (Doc. 15 at ¶ 18). According to Grant, this agreement “was
materially different and significantly less advantageous for the conversion of the clients’
term policies.” (Doc. 15 at ¶ 18). In addition, Grant alleges the “clients received a letter
indicating that their current term life policies had lapsed, when in fact all applicable
premiums had been paid and applied to the policies.” (Doc. 15 at ¶ 18). Based on New
York Life’s behavior, “the clients ultimately rejected the accommodation and conversion
of policies resulting in a substantial loss of compensation to Grant and damages to
Grant’s reputation with his clients.” (Doc. 15 at ¶ 18).
Grant fails to allege that New York Life knew Grant would rely on the allegedly
false information and intended him to do so. Indeed, Grant fails to allege how he relied

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on the information supplied by New York Life. Paragraph 18 of his amended
counterclaim makes clear only clients received and acted on this information.
Accordingly, Grant has failed to state a claim against New York Life for negligent
misrepresentation to the clients, even under the more lenient Rule 8 pleading
standards.
Grant, citing paragraph 22 of his amended counterclaim, alleges New York Life
“arbitrarily refused” to honor a successor agreement Grant entered into with a current
New York Life agent. The purpose of the successor agreement was to “insure that
[Grant’s] New York Life clients that would remain with New York Life were taken care of
by a veteran and experienced agent who was geographically convenient to them.”
(Doc. 15 at ¶ 22). Instead, New York Life transferred Grant’s former clients to
“inexperienced agents,” which “resulted in damages to Grant’s business reputation in
the local community.” (Doc. 15 at ¶ 22). Because Grant fails to allege how New York
Life supplied false information, and consequently fails to allege how he relied on such
information, this claim for negligent misrepresentation fails.
Finally, citing paragraph 21 of his amended counterclaim, Grant alleges that
Grant Financial Group acted as the “de facto District Agent office” for an agent identified
as U.P. from approximately January 29, 2008, to July 31, 2013. (Doc. 15 at ¶ 21).
According to Grant, he was “led to believe that U.P. would be officially transferred to his
District Agency, thereby affording Grant the entitlement to Override compensation for
U.P.’s production.” (Doc. 15 at ¶ 21). However, U.P. was never officially transferred,
Grant never received any Overrides, and New York Life “has not remitted any amounts

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to cover expenses or reimbursements for the training and supervision of U.P.” (Doc. 15
at ¶ 21).
Again, Grant has failed to allege that New York Life negligently supplied false
information, knew Grant would rely on such information, and intended him to do so. Nor
does Grant allege how he relied on any false information. Rather, Grant alleges New
York Life promised to do something that it did not do. This could be a fraud claim if New
York Life had no intention to fulfill its promises at the time it made them. McCravy v.
McCravy, 244 Ga. 336, 338, 260 S.E.2d 52, 54 (1979). But as pled, Grant has failed to
state a claim for negligent misrepresentation.
d. Count IV - Breach of Implied Contract
Grant argues, in the alternative, he had an implied contract or contracts with New
York Life whereby he “performed, both as an Agent and District Agent, in accordance
with his obligations, which implied contractor contracts were breached by New York Life
through its improper conduct.” (Doc. 15 at ¶ 39). New York Life responds that this
claim fails as a matter of law “[b]ecause [Grant] alleges that he had express contracts
on the very subjects forming the basis for his implied contract … claim[].” (Doc. 18 at
8).
New York Life’s argument is without merit. Georgia law allows a party to plead a
claim for breach of an implied contract in the alternative to a claim for breach of an
express contract. See Fed. Ins. Co. v. Westside Supply Co., 264 Ga. App. 240, 248,
590 S.E.2d 224, 232 (2003); Clark v. Aaron’s, Inc., 914 F. Supp. 2d 1301, 1309-10
(N.D. Ga. 2012). This is precisely what Grant has done. He has disputed the validity of
the express contracts, “to the extent that they were unilaterally modified by [New York

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Life],” and has pled, in the alternative, a claim for breach of an implied contract. (Docs.
15 at ¶ 39; 16 at 8). Accordingly, the Court cannot say the claim fails as a matter of law.
e. Count V - Quantum Meruit
Grant argues, in the alternative, “[he] is entitled to quantum meruit for the work
he performed and actions taken on behalf of New York Life and accepted by New York
Life.” (Doc. 15 at ¶ 44). Specifically, Grant argues he is entitled to “the value of the
work he performed and expenses incurred on behalf of New York Life in serving as a
District Agent for U.P. for which Grant was not paid, compensated or reimbursed.”
(Doc. 15 at ¶ 41). Grant alleges “New York Life consented to and knew that Grant was
performing work and engaging in conduct to the benefit of New York Life.” (Doc. 15 at ¶
42). Moreover, Grant alleges “New York Life accepted the value of [his] work and
actions.” (Doc. 15 at ¶ 43). In response, New York Life argues this claim fails as a
matter of law because Grant alleges he had express contracts on the subjects forming
the basis for his quantum meruit claim. (Doc. 18 at 8; 12-1 at 12).
To recover under a quantum meruit theory, a party must prove four elements:
“(1) his performance as agent of services valuable to the defendants; (2) either at the
request of the defendants or knowingly accepted by the defendants; (3) the defendants'
receipt of which without compensating [claimant] would be unjust; (4) [and] expectation
of compensation at the time of the rendition of the services ….” Allen v. T.A.
Commc’ns, Inc., 181 Ga. App. 726, 727, 353 S.E.2d 569, 570 (1987). Although “there
cannot be an express and implied contract for the same thing existing at the same time
between the same parties,” the existence of an employment contract does not
automatically invalidate an employee's quantum meruit claim. Fonda Corp., 144 Ga.

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App. at 292, 241 S.E.2d at 260. A plaintiff can recover “[t]he reasonable value of extra
work performed in addition to what the contract contemplated.” Gerdes v. Russell Rowe
Commc’ns, Inc., 232 Ga. App. 534, 537, 502 S.E.2d 352, 355 (1998) (citation and
internal quotations omitted).
By training U.P., Grant alleges he provided value to New York Life, who
knowingly accepted Grant’s services. Grant also alleges he anticipated receiving
compensation by rendering these services. Although Grant has alleged a claim for
breach of contract, it is not undisputed that a valid contract exists. Grant alleges New
York Life unilaterally modified the agreements at issue in bad faith, such that the
contracts are no longer supported by consideration. (Doc. 16 at 8). Accordingly, Grant
has sufficiently pled this claim in the alternative and may be able to recover under this
theory. At this stage of the litigation, the Court cannot say the claim fails as a matter of
law. See Clark, 914 F. Supp. 2d at 1309.
f. Count VI - Promissory Estoppel
Grant raises a claim, in the alternative, for “promissory estoppel in that the
Agency Contract and District Agency Agreement, to the extent such contracts were
unilaterally modified by New York Life, were not supported by sufficient consideration.”
(Doc. 15 at ¶ 45). According to Grant, he was induced to perform by New York Life,
based on misrepresentations made by New York Life, and “under the impression that he
would be adequately compensated for such services.” (Doc. 15 at ¶ 47). New York Life
acknowledges “a party is generally permitted to plead both promissory estoppel and
breach of contract claims in the alternative,” but argues Grant’s counterclaim “does not
indicate that its claims are asserted as alternative theories of recovery.” (Doc. 12-1 at

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13). In response, Grant argues he “has disputed the validity of the contracts at issue.”
(Doc. 16 at 8).
Under Georgia law, a claim for promissory estoppel “requires a showing that (1)
the defendant made certain promises, (2) the defendant should have expected that the
plaintiffs would rely on such promises, and (3) the plaintiffs did in fact rely on such
promises to their detriment.” Adkins v. Cagle Foods JV, LLC, 411 F.3d 1320, 1326
(11th Cir. 2005); see also O.C.G.A. § 13–3–44(a). Moreover, a promise is “a
manifestation of an intention to act or refrain from acting in a specified way, so made as
to justify a promisee in understanding that a commitment has been made.” F & W
Agriservices, Inc. v. UAP/Ga. Ag. Chem., Inc., 250 Ga. App. 238, 241, 549 S.E.2d 746,
749 (2011) (citation and quotation marks omitted).
Grant alleges New York Life made certain promises—namely, that U.P. would be
transferred to his District Agency if Grant trained and groomed the agent. Over a five
year period, Grant relied on such promises. Grant “incurred numerous expenses for the
training and grooming of U.P” as a result of New York Life’s inducement. (Doc. 15 at ¶
21). Grant has alleged sufficient facts to state a claim for promissory estoppel. It may
be that this claim fails because a valid express contract exists on the very subject. But
at this stage of the litigation, the Court cannot say that the claim fails as a matter of law.
g. Count VII - Tortious Interference with Business Relations
Grant alleges New York Life “interfered with … relationships between Grant
Financial Group and its clients by engaging in pretextual and improper conduct through
the improper solicitation of these clients.” (Doc. 15 at ¶ 50). As a result, Grant alleges
New York Life “imposed undue and improper economic pressure on Grant and his

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company, Grant Financial Group.” (Doc. 15 at ¶ 50). In response, New York Life
argues Grant “does not allege that New York Life ‘induced a third party or parties not to
enter into or continue a business relationship’ with him, and he has no standing to
assert this claim on behalf of Grant Financial Group, a non-party.”7 (Doc. 18 at 9).
Moreover, New York Life argues Grant has failed to allege New York Life is a “stranger”
to the business relationships with which it allegedly interfered. (Doc. 18 at 9). In New
York Life’s view, “Grant solicited applications for insurance on New York Life’s behalf,
and the resulting contracts formed the business relationship between New York Life and
its insureds.” (Doc. 12-1 at 17). Accordingly, “[t]he ‘clients’ were not those of Grant or
of Grant Financial Group, but were policyholders who were parties to insurance
contracts with New York Life.” (Doc. 12-1 at 16).
To maintain a claim for tortious interference with business relations, a plaintiff
must prove:
(1) improper action or wrongful conduct by the defendant without privilege;
(2) the defendant acted purposely and with malice with the intent to injure;
(3) the defendant induced a breach of a contractual obligation or caused a
party or a third party to discontinue or fail to enter into an anticipated
relationship with the plaintiff; and (4) the defendant's tortious conduct
proximately caused damage to the plaintiff.
Onbrand Media v. Codex Consulting, Inc., 301 Ga. App. 141, 150, 687 S.E.2d 168, 176
(2009). Moreover, to be liable, the defendant “must be a stranger” to the relationship;
that is, parties to a relationship cannot be liable for tortious interference with that
relationship. See id. (citation omitted). See also H&R Block E. Enters., Inc. v. Morris,

7
Grant did not originally plead a claim for tortious interference with business relations; instead,
Grant raised a claim for tortious interference with contractual relations. (Doc. 7 at ¶¶ 47-50).
Although New York Life did not address the merits of this claim in its motion to dismiss, New
York Life addresses the claim in its consolidated reply brief. (Doc. 18 at 9).
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606 F.3d 1285, 1295 (11th Cir. 2010) (“[I]t is well-established under Georgia law a party
cannot tortiously interfere with its own business relationships.”).
In this case, Grant complains New York Life disrupted the relationship it had with
clients of Grant Financial Group. However, the clients of Grant Financial Group appear
to be New York Life’s clients. Grant has not alleged any facts suggesting that New York
Life was a stranger to the business relations Grant shared with the clients of Grant
Financial Group. Accordingly, Grant cannot sustain a claim for tortious interference with
business relations.
h. Count VIII - Negligent and/or Intentional Infliction of Emotional
Distress
Grant asserts claims against New York Life for negligent and intentional infliction
of emotional distress. He alleges New York Life “interfered with contracts between
Grant Financial Group and its clients, and personally targeted Grant which resulted in
physical manifestations for Grant including anxiety, memory loss, and stress.” (Doc. 15
at ¶ 53). Grant alleges this conduct “was so extreme and outrageous in its nature to
which it caused Grant severe emotional distress for which New York Life is liable.”
(Doc. 15 at ¶ 54). In response, New York Life argues “Grant has not asserted how New
York Life’s alleged conduct was so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
society.” (Doc. 18 at 9). The Court agrees.
To prevail on a claim for intentional infliction of emotional distress, the burden is
“stringent.” Grant must demonstrate that:
(1) the conduct giving rise to the claim was intentional or reckless; (2) the
conduct was extreme and outrageous; (3) the conduct caused emotional
distress; and (4) the emotional distress was severe. The defendant's

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conduct must be so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community. Whether a claim rises to the requisite
level of outrageousness and egregiousness to sustain a claim for
intentional infliction of emotional distress is a question of law.
Steed v. Fed. Nat. Mortg. Corp., 301 Ga. App. 801, 810, 689 S.E.2d 843, 851-52 (2009)
(citation omitted). See also Roddy v. City of Villa Rica, Ga., 536 F. App’x 995, 1003
(11th Cir. 2013).
“[T]o recover under a claim of negligent infliction of emotional distress a plaintiff
must establish ‘(1) a physical impact to the plaintiff; (2) the physical impact causes
physical injury to the plaintiff; and (3) the physical injury to the plaintiff causes the
plaintiff’s mental suffering or emotional distress.’” Garrett v. Unum Life Ins. Co. of Am.,
427 F. Supp. 2d 1158, 1163 (M.D. Ga. 2005) (citation omitted).
Although Grant alleges New York Life interfered with contracts between Grant
Financial Group and its clients, as discussed above, Grant has alleged no facts
indicating that these clients were individuals other than New York Life’s clients.
Moreover, Grant fails to allege how New York Life personally targeted him. These
allegations fail to establish the extreme and outrageous conduct necessary to plead a
claim of intentional infliction of emotional distress. See Odem v. Pace Acad., 235 Ga.
App. 648, 655-56, 510 S.E.2d 326, 332 (1998) (“Liability for intentional infliction of
emotional distress does not extend to mere insults, indignities, threat, annoyances,
petty oppressions, or other trivialities.”) (citation and internal quotation marks omitted).
Moreover, Grant cannot sustain a claim for negligent infliction of emotional distress
because he has not alleged that he was physically injured as a result of New York Life’s
actions.

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i. Count IX - Attorney’s Fees and Expenses of Litigation
Grant also raises a claim for attorney’s fees under O.C.G.A. § 13-6-11 and
incorporates all of his previous allegations by reference.8 Grant alleges “New York Life
has engaged in conduct that constitutes bad faith and has been stubbornly litigious in
pursuing this action.” (Doc. 15 at ¶ 56). Specifically, Grant alleges New York Life
provided him with notice that he owed an existing debit balance and gave him thirty
days to make a payment. (Doc. 15 at ¶ 56). However, eight days after New York Life
provided this notice, and before the thirty days had run, New York Life brought suit.
(Doc. 15 at ¶ 56). In response, New York Life argues Grant’s claim for attorney’s fees
cannot survive “because the amended counterclaim does not state a viable substantive
claim for other relief.” (Doc. 12-1 at 21).
O.C.G.A. § 13-6-11 authorizes attorney’s fees “where the defendant has acted in
bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble
and expense.” However, “a plaintiff-in-counterclaim cannot recover attorney's fees
under O.C.G.A. § 13-6-11 unless he asserts a counterclaim which is an independent
claim that arose separately from or after the plaintiff's claim.” Byers v. McGuire Props.,
Inc., 285 Ga. 530, 540, 679 S.E.2d 1, 9 (2009) (citations omitted). “Moreover, the
independent counterclaim must be viable.” Sugarloaf Mills Ltd. P’ship of Ga. v. Record
Town, Inc., 306 Ga. App. 263, 266, 701 S.E.2d 881, 884 (2010).
New York Life contends this claim should be denied because all of Grant’s other
claims fail. (Docs. 12-1 at 21; 18 at 10). Because the Court has ruled that all of Grant’s
claims do not fail, New York Life’s motion to dismiss Grant’s claim for attorney’s fees is

8
The Court notes that it is a waste of judicial resources to require the Court to sift through the
facts presented and decide which are material to this cause of action. See Strategic Income
Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 n.10 (11th Cir. 2002).
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denied on this ground. However, the Court notes the Parties’ briefs on this issue miss
the main point. See Singh v. Sterling United, Inc., 326 Ga. App. 504, 512-13, 756
S.E.2d 728, 736-37 (2014); Tri-State Consumer Ins. Co. v. LexisNexis Risk Solutions,
Inc., 858 F. Supp. 2d 1359, 1372-75 (N.D. Ga. 2012). If New York Life wants to move
to dismiss on other grounds, it should do so.

III. CONCLUSION
For the reasons explained above, New York Life’s motion to strike (Doc. 17) is
DENIED. New York Life’s motion to dismiss (Doc. 12) is GRANTED in part and
DENIED in part. The motion to dismiss is granted as to Grant’s claims alleged in
Counts III, VII and VIII of his amended counterclaim, and those claims are hereby
DISMISSED. The motion is denied as to Grant’s claims alleged in Counts I, II, IV, V, VI,
and IX of his amended counterclaim.
SO ORDERED, this 28th day of October, 2014.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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