Source Production & Equipment Co., Inc. et al v. Schehr et al

Filing 97

ORDER AND REASONS granting in part and denying in part 76 , 82 , 86 , 87 Motions to Dismiss defendant Kevin Schehr's counterclaims; The counterclaim for revendicatory relief against Dicharry and Kusy and the counterclaim for intentional interference with a contract against Kusy are DISMISSED WITHOUT PREJUDICE. Signed by Judge Sarah S. Vance on 12/28/2017. (blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SOURCE PRODUCTION &
EQUIPMENT CO., INC., ET AL.

CIVIL ACTION

VERSUS

NO. 16-17528

KEVIN J. SCHEHR, ISOFLEX USA,
ISOFLEX RADIOACTIVE LLC,
RICHARD H. McKANNAY, JR., AND
JOHN DOES 1-10

SECTION “R” (1)

ORDER AND REASONS
Plaintiff Source Production & Equipment Co., Inc. and counterclaimdefendants Richard Dicharry and Sandra Kusy each move to dismiss
defendant Kevin Schehr’s counterclaims.1 For the following reasons, the
Court grants in part and denies in part the motions.

I.

BACKGROUND
Source Production & Equipment Co., Inc. (SPEC) and its affiliates

brought this trade-secret misappropriation and unfair competition action
against Kevin Schehr, Isoflex USA, Isoflex Radioactive LLC, and Richard

1

R. Docs. 76, 82, 86, 87.
1

McKannay, Jr. 2 SPEC is a supplier of industrial and medical radiography
equipment and radioactive isotope materials.3 Richard Dicharry is SPEC’s
president and owner. 4 Schehr was an executive officer of SPEC until July 7,
2016, when he was replaced by Sandra Kusy.5 Three days later, on July 10,
Schehr was terminated.6
Schehr’s relationship with Dicharry and SPEC deteriorated during the
months leading up to Schehr’s termination. For example, according to
Schehr, Dicharry had promised to give him a 10% ownership interest in SPEC
if Schehr facilitated the completion of the design of a new radiography
system (Radiography Contract).7

Schehr alleges that the design was

completed, but that two weeks before Schehr’s termination Dicharry
unreasonably refused to sign off on the new design.8 SPEC and Dicharry also
allegedly agreed to form a new company with Schehr and Dennis Chedraui
(NEWCO Agreement). 9 Although the parties to the agreement allegedly

R. Doc. 33. A more in-depth discussion of the facts underlying
plaintiffs’ complaint can be found in the Court’s order dated August 29, 2017.
See R. Doc. 53.
3
R. Doc. 33 at 8 ¶ 19.
4
R. Doc. 61 at 14 ¶ 68.
5
Id. at 2 ¶¶ 6-7.
6
Id.
7
Id. at 15 ¶ 73.
8
Id. at 16 ¶ 77.
9
Id. at 17 ¶ 82.
2
2

signed a letter of intent, and Dicharry and SPEC verbally obligated
themselves to the terms of the NEWCO Agreement, Schehr asserts that
Dicharry and SPEC failed to fulfill their obligations under the agreement.10
According to Schehr, Kusy caused Dicharry and SPEC to breach these
contracts by providing Dicharry with false information about a conference
Schehr attended and a conspiracy between Schehr and Chedraui. 11
Schehr alleges that upon his termination, SPEC seized a thumb drive
and pictures belonging to him.12 SPEC allegedly obtained the password for
Schehr’s personal email account from this thumb drive and accessed the
account on November 10, 2016. 13 Schehr further alleges that Dicharry and
Kusy both made defamatory statements about Schehr after his termination. 14
Plaintiffs filed suit on December 12, 2016, 15 and filed an amended
complaint on April 4, 2017. 16 The Court granted in part and denied in part
defendants’ motion to dismiss on August 29. 17 On September 12, Schehr
answered the amended complaint and filed counterclaims against SPEC.18

10
11
12
13
14
15
16
17
18

Id. at 18 ¶¶ 87-88.
R. Doc. 66 at 5 ¶¶ 17, 20.
R. Doc. 61 at 13 ¶ 62.
Id. at 10-11 ¶¶ 45-54.
Id. at 4-9.
R. Doc. 1.
R. Doc. 33.
R. Doc. 53.
R. Docs. 60-61.
3

Schehr then amended his counterclaims to add Dicharry, Kusy, and
unknown insurers of SPEC as counterclaim-defendants.19 Schehr asserts
counterclaims for defamation, invasion of privacy, and revendicatory relief
against all counterclaim-defendants; breach of contract or detrimental
reliance against SPEC, Dicharry, and the insurers; unpaid wages against
SPEC and the insurers; and intentional interference with a contract against
Kusy.

SPEC, Dicharry, and Kusy now move to dismiss certain

counterclaims. 20

II.

LEGAL STANDARD
The Court applies the same test to a motion to dismiss a counterclaim

as it does to a motion to dismiss a complaint. To survive a Rule 12(b)(6)
motion to dismiss, a plaintiff must plead enough facts to “state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (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.” Id. at 678. A court must accept all well-pleaded

19
20

R. Doc. 66.
R. Docs. 76, 82, 86, 87.
4

facts as true and must draw all reasonable inferences in favor of the plaintiff.
Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 239, 244 (5th Cir. 2009). But
the Court is not bound to accept as true legal conclusions couched as factual
allegations. Iqbal, 556 U.S. at 678.
A legally sufficient complaint must establish more than a “sheer
possibility” that the plaintiff’s claim is true. Id. It need not contain detailed
factual allegations, but it must go beyond labels, legal conclusions, or
formulaic recitations of the elements of a cause of action. Twombly, 550 U.S.
at 555. In other words, the face of the complaint must contain enough factual
matter to raise a reasonable expectation that discovery will reveal evidence
of each element of the plaintiff’s claim. Lormand, 565 F.3d at 257. If there
are insufficient factual allegations to raise a right to relief above the
speculative level, Twombly, 550 U.S. at 555, or if it is apparent from the face
of the complaint that there is an insuperable bar to relief, Jones v. Bock, 549
U.S. 199, 215 (2007); Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 2007),
the claim must be dismissed.

III. DISCUSSION
SPEC, Dicharry, and Kusy move to dismiss Schehr’s counterclaims for
defamation and invasion of privacy. Dicharry and Kusy move to dismiss the
5

counterclaim for revendicatory relief. SPEC and Dicharry move to dismiss
the counterclaim for breach of contract or detrimental reliance. Finally, Kusy
moves to dismiss the counterclaim for intentional interference with a
contract. The Court addresses each counterclaim in turn.
A.

Defamation

Under Louisiana law, “[i]n order to prevail in a defamation action, a
plaintiff must necessarily prove four elements: (1) a false and defamatory
statement concerning another; (2) an unprivileged publication to a third
party; (3) fault (negligence or greater) on the part of the publisher; and (4)
resulting injury.” Fitzgerald v. Tucker, 737 So. 2d 706, 715 (La. 1999). “In
other words, a plaintiff must prove ‘that the defendant, with actual malice or
other fault, published a false statement with defamatory words which caused
plaintiff damages.’” Id. (quoting Trentecosta v. Beck, 703 So.2d 552, 559
(La. 1997)).
Schehr’s defamation claim alleges three sets of defamatory statements.
First, Kusy and Dicharry, acting in their capacity as SPEC employees,
allegedly defamed Schehr to other SPEC employees. 21 Second, Kusy and
Dicharry, again acting in their capacity as SPEC employees, allegedly made
defamatory statements about Schehr to Keith Frazier, a former SPEC

21

R. Doc. 61 at 4-6 ¶¶16-26.
6

employee. 22 Third, Dicharry authorized SPEC to file letters with regulatory
agencies concerning violations of environmental regulations; according to
Schehr, these letters falsely asserted that Schehr was responsible for these
violations. 23
SPEC, Dicharry, and Kusy first argue that the allegedly defamatory
statements made to other SPEC employees do not satisfy the publication
requirement under Louisiana law. Louisiana appellate courts have held that
“an intra-corporate communication among officers or agents of the same
corporation, in connection with their duties for the corporation, are a
communication of the corporation,” not a publication to a third party.
Wisner v. Harvey, 694 So. 2d 348, 350 (La. App. 1 Cir. 1996) (citing
Commercial Union Ins. Co. v. Melikyan, 424 So. 2d 1114, 1115 (La. App. 1 Cir.
1982)); accord Doe v. Grant, 839 So. 2d 408, 416 (La. App. 4 Cir. 2003); Bell
v. Rogers, 698 So. 2d 749, 756 (La. App. 2 Cir. 1997). This intra-corporate
communication rule is based on Cangelosi v. Schwegmann Bros. Giant
Super Markets, 390 So. 2d 196 (La. 1980). The plaintiff in Cangelosi, who
was a cashier, alleged that her supervisors falsely accused her of altering a
check. Id. at 197. This accusation took place during a meeting with the

22
23

Id. at 4 ¶ 17, 6 ¶ 27.
Id. at 6-8 ¶¶ 28-37.
7

plaintiff’s supervisors. Id. Because the only people present were the plaintiff
and “supervisory personnel essential to the investigation,” the Louisiana
Supreme Court held that statements made by these supervisors during the
meeting were not published to a third party. Id. at 198.
Schehr

argues

that

Cangelosi

limits

the

intra-corporate

communication rule to statements made by supervisors to other
supervisors. 24 According to Schehr, Kusy defamed Schehr at two companywide meetings—not just among other officers. Thus, Schehr argues that the
intra-corporate communication rule does not apply.

Because state law

provides the rule of decision for this counterclaim, the Court must apply the
law as interpreted by the state’s highest court. See FDIC v. Abraham, 137
F.3d 264, 267-68 (5th Cir. 1998). When there is no ruling by the state’s
highest court, a federal court must make an Erie guess as to how the state’s
highest court would decide the issue. Martin K. Eby Constr. Co. v. Dall. Area
Rapid Transit, 369 F.3d 464, 468 (5th Cir. 2004).
Based on the state appellate court cases cited earlier, the Court finds
that the Louisiana Supreme Court would not limit the intra-corporate
communication rule to statements made by supervisors to other supervisors.
Federal courts in this Circuit are in accord. In an unpublished decision, the

24

R. Doc. 81 at 9.
8

Fifth Circuit noted that “an intra-corporate communication among
employees within the course and scope of their employment” does not satisfy
the publication requirement. Ioppolo v. Rumana, 581 F. App’x 321, 329 (5th
Cir. 2014). The court applied the intra-corporate communication rule to a
professional organization’s distribution of a professional misconduct report
to its entire membership—not just the organization’s leadership. Id. District
courts in this Circuit have also applied the intra-corporate communication
rule to statements made to non-supervisors within an organization. See, e.g.,
Walter v. BP Am., Inc., No. 12-177, 2014 WL 1796676, at *34 (E.D. La. May
6, 2014) (“[A]ny statements exchanged between BP employees during the
two investigations of plaintiff’s conduct and in conjunction with the
termination of his employment are intracorporate communications, which
do not constitute publication to a third party under Louisiana defamation
law.”); Marshall v. Circle K Corp., 715 F. Supp. 1341, 1343 n.2 (M.D. La.
1989) (granting summary judgment to defendant because there was “no
evidence in the record to indicate that the [allegedly defamatory statement]
was circulated outside the defendant corporation”). Indeed, Schehr does not
point to any court that has adopted its proposed limitation on the scope of
Cangelosi.

9

The Court finds that, based on the intra-corporate communication
rule, Schehr has not alleged publication of Dicharry’s and Kusy’s allegedly
defamatory statements to other SPEC employees. Kusy allegedly defamed
Schehr by telling SPEC employees at companywide meetings that SPEC
would not give Christmas bonuses in 2016 because of Schehr’s
embezzlement. 25 Dicharry’s allegedly defamatory statement to other SPEC
employees consisted of an accusation that Schehr sabotaged a package. 26 By
Schehr’s own allegations, these statements “were made within the course and
scope of their duties as employees of SPEC.” 27 Such communications do not
constitute publication to a third party. See Wisner, 694 So. 2d at 350. Thus,
Schehr fails to state a defamation claim based on statements made by
Dicharry and Kusy to other SPEC employees.
Regarding the second set of allegedly defamatory statements, SPEC
and Dicharry do not contest that Schehr states a claim for defamation based
on statements made to Frazier, a former SPEC employee. 28 Kusy fails to
address this basis for defamation, apparently assuming that it does not apply

25
26
27
28

R. Doc. 61 at 4 ¶¶ 16, 18.
Id. ¶ 17.
R. Doc. 8 at ¶ 39.
R. Doc. 76-1 at 8 n.2; R. Doc. 86-1 at 9 n.2.
10

to her.29 Schehr’s counterclaim does state that Kusy (and Dicharry) told
Frazier in the fall of 2016 that Schehr had sabotaged a package. 30 The
paragraph in which this allegation appears does not state that Frazier was a
former employee. But a later paragraph, involving allegedly defamatory
statements made by Dicharry (but not Kusy) to Frazier, does state that
Frazier was a former SPEC employee.31 Frazier may have left SPEC between
when these allegedly defamatory statements were made. But at the motion
to dismiss stage, Schehr is entitled the benefit of a doubt, and the Court must
draw all reasonable inferences in his favor. The Court finds it reasonable to
infer that Frazier was a former employee at both times when Dicharry and
Kusy made allegedly defamatory statements to him. Indeed, both sets of
statements necessarily were made after Schehr’s termination in July 2016.
Thus, Schehr states a claim for defamation against SPEC, Dicharry, and Kusy
based on statements made to Frazier.
Regarding the third set of allegedly defamatory statements, SPEC and
Dicharry argue that SPEC’s letters to regulatory agencies are conditionally

Kusy states: “Schehr’s counterclaim for defamation against Ms. Kusy
relies solely upon statements made by Ms. Kusy to SPEC employees . . . .” R.
Doc. 87-1 at 5.
30
R. Doc. 61 at 4 ¶ 17.
31
Id. at 6 ¶ 27. According to Schehr, Dicharry defamed him by attributing
his termination to theft and embezzlement from SPEC. Id. at 5 ¶ 20.
11
29

privileged.32 Under Louisiana law, “privilege is a defense to a defamation
action.” Kennedy v. Sheriff of E. Baton Rouge, 935 So. 2d 669, 681 (La.
2006). As such, dismissal of the counterclaim is appropriate only if the
conditional privilege “appears clearly on the face of the pleadings.” Clark v.
Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986). The doctrine derives
from the policy consideration “that sometimes, . . . in order to encourage the
free communication of views in certain defined instances, one is justified in
communicating defamatory information to others without incurring
liability.” Id. Louisiana courts engage in a two-step process to determine
whether a conditional privilege exists.

Id. at 682.

“First, it must be

determined whether the attending circumstances of a communication
occasion a qualified privilege.

The second step of the analysis is a

determination of whether the privilege was abused, which requires that the
grounds for abuse—malice or lack of good faith—be examined.” Id. (citation
omitted).

SPEC and Dicharry point to a conditional privilege for

“statement[s] to a state agency with a legitimate interest in the subject matter
[that are] relevant to the subject matter of the [agency’s] inquiry.” Fisher v.
ASI Fed. Credit Union, 223 So. 3d 779, 784 (La. App. 5 Cir. 2017). Similarly,
the Louisiana Supreme Court has recognized a conditional privilege for

32

R. Doc. 76-1 at 5; R. Doc. 86-1 at 6.
12

“communications of alleged wrongful acts to the officials authorized to
protect the public from such acts.” Kennedy, 935 So. 2d at 683.
The Court finds that this conditional privilege does not so clearly apply
to SPEC’s allegedly defamatory letters to regulatory agencies as to justify
dismissal under Rule 12(b)(6).

Notifying the Nuclear Regulatory

Commission and the Louisiana Department of Environmental Quality of
noncompliance with environmental regulations would seem to be
conditionally privileged under Louisiana law; such notification would be
reasonably necessary to protect the environment and the public.
But Schehr alleges that Dicharry told the agencies that Schehr
deliberately ordered violations of a used radiography source import
regulation.33 Schehr alleges both the falsity of this statement and Dicharry’s
and SPEC’s knowledge, or reckless disregard, of its falsity. 34 Specifically,
Schehr alleges that Dicharry himself, not Schehr, was responsible for
ensuring compliance with environmental regulations.35 This factual content
does not necessarily establish knowledge, or reckless disregard, of the
statement’s falsity. But it does support the plausible inference that if the
statement in the letters were untrue, then because of Dicharry’s

33
34
35

R. Doc. 61 at 6-7 ¶ 29.
Id. at 7 ¶ 32.
Id. ¶¶ 30-31.
13

responsibilities, Dicharry and SPEC either knew the statement was untrue or
they were in reckless disregard of its falsity. Thus, Schehr’s allegations
support a plausible inference that the allegedly defamatory statements in
SPEC’s letters to regulatory agencies were made in bad faith, and no
conditional privilege clearly appears on the face of the counterclaim. Schehr
states a claim for defamation against SPEC and Dicharry based on allegedly
defamatory statements made in SPEC’s letters to regulatory agencies.
B.

Invasion of Privacy

Schehr’s invasion of privacy counterclaim alleges that a SPEC
employee accessed Schehr’s private email account without his permission on
November 10, 2016. 36 Schehr asserts violations of both Louisiana common
law and the Louisiana Personal Online Account Privacy Protection Act, La.
R.S. § 51:1951 et seq. 37
Dicharry and Kusy argue that the common law invasion of privacy
counterclaim against them should be dismissed because their alleged
involvement in accessing Schehr’s email account is speculative. 38 Schehr
alleges that his email account was accessed “on a computer on SPEC’s

Id. at 10-11 ¶¶ 45-54.
Id. at 9 ¶ 44.
38
R. Doc. 86-1 at 11 n.3; R. Doc. 87-1 at 7 n.1. SPEC does not seek to
dismiss Schehr’s common law invasion of privacy counterclaim. R. Doc. 761 at 9 n.2.
14
36
37

premises by a SPEC employee, including but not limited to Mr. Dicharry
and/or Ms. Kusy.”39 Given Dicharry’s and Kusy’s leadership roles in SPEC,
and their alleged relationship with Schehr, it is not speculative to infer that
one or both of them accessed Schehr’s email account from SPEC’s offices.
Moreover, the case cited by Dicharry and Kusy—Christensen v. WMA
Consumer Services, Inc., No. 03-1545, 2003 WL 22174240 (E.D. La. Sept. 5,
2003)—concerned heightened pleading requirements under Federal Rule of
Civil Procedure 9(b). Thus, the Court will not dismiss Schehr’s common law
invasion of privacy counterclaim against SPEC, Dicharry, and Kusy.
SPEC, Dicharry, and Kusy next argue that Schehr fails to state a claim
for statutory invasion of privacy because the Personal Online Account
Privacy Protection Act applies only to employers and educational
institutions. 40

While the Act clearly applies only to employers and

educational institutions, see La. R.S. §§ 15:1953-54, Schehr argues that the
Act provides continuing protection to employees even after their
termination.41 Schehr’s argument lacks support in the statutory text. The
Act prohibits employers from accessing the personal online account of an
employee or applicant for employment under certain circumstances. Id. §

39
40
41

R. Doc. 61 at 11 ¶ 54.
R. Doc. 76-1 at 8; R. Doc. 86-1 at 10; R. Doc. 87-1 at 7.
R. Doc. 81 at 10.
15

15:1953. But the Act does not mention former employees. To the contrary,
one part of the Act’s definition of “personal online account” explicitly refers
to accounts made “by a current employee, applicant for employment,” or
others covered by the Act (namely, students). Id. § 15:1592(4) (emphasis
added). 42 Because Schehr was not an employee of SPEC in November 2016
when his email account allegedly was accessed without his permission, he
fails to state a claim under the Personal Online Account Privacy Protection
Act.
C.

Revendicatory Relief

Under Louisiana law, “[t]he owner of a thing is entitled to recover it
from anyone who possesses or detains it without right” by means of a
revendicatory action. La. Civ. Code art. 526 & cmt. An owner can seek to

In full, this definition reads:
“Personal online account” means an online account that the
employee, applicant for employment, student, or prospective
student uses exclusively for personal communications unrelated
to any business purpose of the employer or educational
institution. A personal online account does not extend to any
account or profile created, serviced, maintained, used, or
accessed by a current employee, applicant for employment,
student, or prospective student for either business purposes of
the employer or educational institution or to engage in businessrelated communications.
La. R.S. § 15:1592(4).
16
42

recover property only from those who possess it. See Gibbs v. Harris, 799
So. 2d 665, 670 (La. App. 2 Cir. 2001).
Schehr’s counterclaim for revendicatory relief asserts that SPEC seized
and continues to possess a thumb drive and pictures belonging to Schehr.43
As with Schehr’s invasion of privacy counterclaim, Dicharry and Kusy argue
that the counterclaim for revendicatory relief lacks specific allegations
against them.44 Indeed, Schehr does not allege that either Dicharry or Kusy
currently possesses his thumb drive and pictures. Schehr merely alleges that
“SPEC and its agents and/or employees continue to improperly detain and
possess” these things. 45 This allegation does not even name Dicharry and
Kusy, and fails to state a claim for revendicatory relief against them. Thus,
Schehr’s counterclaim for revendicatory relief against Dicharry and Kusy
must be dismissed.
D.

Breach of Contract and Detrimental Reliance

To state a claim for breach of contract under Louisiana law, a plaintiff
must allege “(1) the obligor’s undertaking an obligation to perform, (2) the
obligor failed to perform the obligation (the breach), and (3) the failure to

R. Doc. 61 at 13 ¶¶ 60-64.
R. Doc. 86-1 at 11; R. Doc. 87-1 at 8. SPEC does not seek to dismiss
Schehr’s counterclaim for revendicatory relief.
45
R. Doc. 61 at 13 ¶ 63.
17
43

44

perform resulted in damages to the obligee.” Favrot v. Favrot, 68 So. 3d
1099, 1108-09 (La. App. 4 Cir. 2011). To state a claim for detrimental
reliance, a party must allege: “(1) a representation by conduct or word;
(2) justifiable reliance; and (3) a change in position to one’s detriment
because of the reliance.” Suire v. Lafayette City-Par. Consol. Gov’t, 907 So.
2d 37, 59 (La. 2005). The doctrine is “designed to prevent injustice by
barring a party from taking a position contrary to his prior acts, admissions,
representations, or silence.” Id. But claims of detrimental reliance are “not
favored in Louisiana,” and “must be examined carefully and strictly.” In re
Ark-La-Tex Timber Co., 482 F.3d 319, 334 (5th Cir. 2007).
Schehr alleges three instances of breach of contract or detrimental
reliance. First, Schehr alleges that Dicharry did not give Schehr a 10%
ownership interest in SPEC as required under the Radiography Contract. 46
Second, Schehr alleges that Dicharry and SPEC did not fulfill their
obligations under the NEWCO Agreement. 47

Third, Dicharry allegedly

promised to name Schehr as a beneficiary in his will, which led Schehr to
choose not to take over his father’s business. 48

46
47
48

Id. at 15-16 ¶¶ 73-80.
Id. at 17-18 ¶¶ 82-88.
Id. at 18 ¶ 90.
18

Schehr’s allegations regarding the Radiography Contract make out a
claim for breach of contract, but not detrimental reliance. According to
Schehr, Dicharry promised to give him a 10% ownership interest in SPEC in
exchange for Schehr’s facilitating the design of a new radiography system. 49
Schehr alleges that the design team completed a prototype of the new system,
but Dicharry unreasonably refused to sign off on it at a meeting two weeks
before Schehr’s termination, and refused to give Schehr the promised
ownership interest. 50

These facts suffice to support the inference that

Dicharry breached an obligation to Schehr. See Knecht v. Bd. of Trs. for
State Colls. & Univs. & Nw. State Univ., 591 So. 2d 690, 695 (La. 1991)
(approving of the principle “that when an employer promises a benefit to
employees, and employees accept by their actions in meeting the conditions,
the result is not a mere gratuity or illusory promise but a vested right in the
employee to the promised benefit”).
SPEC and Dicharry’s arguments to the contrary are meritless. First,
they argue that Schehr fails to establish the completion of the new
radiography system, noting that the design team completed only a
prototype. 51 But it is not Schehr’s burden at the motion to dismiss stage to

49
50
51

Id. at 15 ¶ 73.
Id. ¶¶ 77, 80.
R. Doc. 76-1 at 10; R. Doc. 86-1 at 16.
19

establish the fulfillment of his obligation under the Radiography Contract. It
is enough to allege, as he does, that he did in fact facilitate the completion of
the design of the new radiography system. Second, SPEC and Dicharry argue
that Schehr fails to show how Dicharry breached the Radiography Contract,
and which provision of the contract Dicharry breached. 52 But Schehr clearly
alleges that Dicharry breached a key term of the contract by not giving him a
10% ownership interest in SPEC. Thus, Schehr states a claim for breach of
contract based on the Radiography Contract.
Schehr does not allege that he changed his position because of the
Radiography Contract. For this reason, Dicharry’s alleged breach of this
contract does not give rise to a detrimental reliance claim.
Schehr’s allegations regarding the NEWCO Agreement do not state a
claim for either breach of contract or detrimental reliance. While Schehr
does allege that Dicharry and SPEC verbally obligated themselves to the
terms of the NEWCO Agreement,53 Schehr does not allege how Dicharry and
SPEC then breached the agreement. The vague assertion that “Mr. Dicharry
and SPEC have failed to fulfill their obligations under . . . the NEWCO
Agreement” 54 does not raise a right to relief for breach of contract above the

52
53
54

R. Doc. 76-1 at 12; R. Doc. 86-1 at 17.
R. Doc. 61 at 18 ¶ 87.
Id. ¶ 88.
20

speculative level. See Twombly, 550 U.S. at 555. Schehr also fails to allege
that he changed his position because of the NEWCO Agreement, and
therefore fails to make out a detrimental reliance claim on this basis.
Finally, Schehr’s allegations regarding Dicharry’s promise to name him
a beneficiary in his will do not state a claim for either breach of contract or
detrimental reliance. Under Louisiana law, contracts regarding a living
person’s succession are not enforceable. See La. Civ. Code art. 1976 (“The
succession of a living person may not be the object of a contract other than
an antenuptial agreement.”). A Louisiana court of appeal has held that
because a claimant may not rely on a written contract regarding another’s
succession, the claimant “certainly is not justified in relying on only her oral
promise.” Kibbe v. Lege, 604 So. 2d 1366, 1371 (La. App. 3 Cir. 1992). Thus,
even if Schehr did rely to his detriment on Dicharry’s promise to name him
a beneficiary in his will, this reliance was not justified. See id.
In sum, the only valid basis for Schehr’s breach of contract claim is
SPEC’s and Dicharry’s alleged breach of the Radiography Contract. Schehr
does not state a valid claim for detrimental reliance on any basis.
E.

Intentional Interference with a Contract

Schehr’s counterclaim for intentional interference with a contract
asserts that Kusy interfered with Schehr’s employment contract with SPEC,
21

the Radiography Contract, and the NEWCO Agreement.55 Louisiana law
recognizes a narrow cause of action for intentional interference with a
contract. In 9 to 5 Fashions, Inc. v. Spurney, 538 So. 2d 228 (La. 1989), the
Louisiana Supreme Court held that an action for tortious interference with a
contract could be maintained against a corporate officer if a plaintiff had a
contract or legally protected interest with the officer’s corporation, the officer
knew of the contract, and the officer intentionally and without justification
caused the corporation to breach the contract and damage the plaintiff. Id.
at 234. Louisiana courts have not expanded the limited scope of Spurney to
other situations. See Petrohawk Props., L.P. v. Chesapeake La., L.P., 689
F.3d 380, 395 (5th Cir. 2012) (discussing “the limited nature of Louisiana’s
claim for tortious interference with a contract”).
Schehr’s counterclaim for intentional interference with a contract fails
to state a claim for two reasons. First, Schehr does not allege that Kusy was
an officer of SPEC when she allegedly interfered with these contracts.
According to Schehr, Kusy became an officer of SPEC only on July 7, 2016—
three days before Schehr’s termination—when she replaced him as General
Manager, Vice-President, and Director.56 Thus, Kusy was not an officer

55
56

R. Doc. 66 at 4-5 ¶¶ 12-20.
R. Doc. 61 at 2 ¶ 7; R. Doc. 66 at 4 ¶ 12.
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when Dicharry and SPEC allegedly breached the Radiography Contract two
weeks before Schehr’s termination. Second, as explained earlier, Schehr
does not sufficiently allege how Dicharry and SPEC breached the NEWCO
Agreement. Nor does Schehr explain how SPEC breached his employment
contract. To infer that Kusy interfered with these contracts after July 7 and
that this interference caused Dicharry and SPEC to breach these contracts in
some unspecified way would be pure speculation.

Because Schehr’s

allegations do not raise a right to relief for intentional interference with a
contract above the speculative level, the counterclaim must be dismissed.

IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS in part and DENIES in

part the motions to dismiss Schehr’s counterclaims. The counterclaim for
revendicatory relief against Dicharry and Kusy and the counterclaim for
intentional interference with a contract against Kusy are DISMISSED
WITHOUT PREJUDICE.
New Orleans, Louisiana, this _____ day of December, 2017.
28th

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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