Graham v. Hubbs Machine and Manufacturing, Inc. et al

Filing 55

MEMORANDUM AND ORDER : 33 IT IS HEREBY ORDERED that plaintiff's motion to dismiss defendant's counterclaim for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) [Doc. # 33 ] is granted.. Signed by District Judge Carol E. Jackson on 2/26/15. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TONYA GRAHAM,

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Plaintiff,
vs.
HUBBS MACHINE AND
MANUFACTURING, INC. and
RICK BENWARD,
Defendants.

Case No. 4:14-CV-419 (CEJ)

MEMORANDUM AND ORDER
This matter is before the court on plaintiff’s motion to dismiss the
counterclaim of defendant Hubbs Machine and Manufacturing, Inc., pursuant to Fed.
R. Civ. P. 12(b)(6). Defendant has filed a response in opposition, and the issues
are fully briefed.
I.
Tonya

Background
Graham

was

employed

by

defendant

Hubbs

Machine

and

Manufacturing, Inc., from February 1996 until her termination in July 2013. At the
time of her termination, Graham was vice president and corporate officer of the
company, and had worked in that capacity since July 2008.

In the amended

complaint, plaintiff asserts a claim against defendant Hubbs Machine for wrongful
termination in violation of Missouri public policy.

Plaintiff alleges that she was

harassed and ultimately terminated for reporting violations of the Financial Industry
Regulation Authority (FINRA) rules, ethical codes and regulations, and the
Employee Retirement Income Security Act of 1974 (ERISA). In its answer to the

amended complaint, defendant asserts a two-count counterclaim for tortious
interference with a business expectancy and breach of fiduciary duty.
II.

Legal Standard

The purpose of a motion to dismiss under Rule 12(b)(6) of the Federal Rules
of Civil Procedure is to test the legal sufficiency of the complaint.

The factual

allegations of a complaint are assumed true and construed in favor of the plaintiff,
“even if it strikes a savvy judge that actual proof of those facts is improbable.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 508 n.1 (2002)); Neitzke v. Williams, 490 U.S. 319,
327 (1989) (“Rule 12(b)(6) does not countenance . . . dismissals

based on a

judge’s disbelief of a complaint’s factual allegations”); Scheuer v. Rhodes, 416 U.S.
232, 236 (1974) (a well-pleaded complaint may proceed even if it appears “that a
recovery is very remote and unlikely”). The issue is not whether the plaintiff will
ultimately prevail, but whether the plaintiff is entitled to present evidence in
support of his claim. Id. A viable complaint must include “enough facts to state a
claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see also id.
at 563 (stating the “no set of facts” language in Conley v. Gibson, 355 U.S. 41, 4546 (1957), “has earned its retirement.”). “Factual allegations must be enough to
raise a right to relief above the speculative level.” Id. at 555.
III.

Discussion
A.

Count I: Tortious Interference with Business Expectancy

Plaintiff first asserts that Count I fails because an action for tortious
interference with a business expectancy will lie only against a third-party. Plaintiff
argues that she is not a third-party because she was acting as an agent of the

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defendant.

Plaintiff also argues that the defendant fails to state how she acted

without legitimate business justification. Defendant asserts that plaintiff’s actions
were not done on behalf of defendant as its agent, but on her own behalf as an
individual.
“A claim for tortious interference with a contract or business expectancy
requires proof of each of the following:

(1) a contract or a valid business

expectancy; (2) defendant's knowledge of the contract or relationship; (3)
intentional interference by the defendant inducing or causing a breach of the
contract or relationship; (4) absence of justification; and, (5) damages resulting
from defendant's conduct.”

Community Title Co. v. Roosevelt Fed. Sav. & Loan

Ass’n, 796 S.W.2d 369, 372 (Mo. banc 1990). “An action for tortious interference
with a business expectancy will lie against a third party only.”

Zipper v. Health

Midwest, 978 S.W.2d 398, 419 (Mo. Ct. App. 1998).
“Where the individual being sued is an officer or agent of the defendant
corporation, the officer or agent acting for the corporation is the corporation for
purposes of tortious interference.” Id. This rule is based on the principle that “[a]
corporate officer, acting within his or her authority, is privileged to induce a breach
of a corporate contract provided that he or she uses no improper means, acts in
good faith to protect the corporate interest and does not act out of self interest.”
Meyer v. Enoch, 807 S.W.2d 156, 159 (Mo. Ct. App. 1991) (collecting cases). So,
“[f]or a corporate officer or agent to be liable for tortuously interfering with a
contract of a corporation, he or she must have [both] acted out of self interest,
[and] also have used improper means.” Mackey v. ACL Transp., LLC, No. 4:09-CV1159 (CEJ), 2009 WL 3517534, *2 (E.D. Mo. Oct. 23, 2009) (quoting Meyer, 807

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S.W.2d at 159). “Improper means are those that are independently wrongful, such
as threats, violence, trespass, defamation, misrepresentation of fact, restraint of
trade, or any other wrongful act recognized by statute or the common law.”
Western Blue Print Co., LLC v. Roberts, 367 S.W.3d 7, 20 (Mo. banc 2012) (quoting
Stehno v. Sprint Spectrum, L.P., 186 S.W.3d 247, 252 (Mo. banc 2006)).
Taking the allegations of the counterclaim as true, plaintiff’s conduct is
inconsistent with serving the interests of the company as its agent. Certainly, an
employee who seeks to harm her employer’s business cannot be acting within the
scope of her authority as agent.

As such, plaintiff is a third party against whom a

tortious interference claim will lie.
Nevertheless, the defendant’s claim fails because the counterclaim contains
no allegations to support a plausible inference that plaintiff acted out of self-interest
or used improper means in her communications with defendant’s business
associates.

Defendant asserts only conclusory allegations that plaintiff “acted

without legitimate business justification” and “acted out of greed and self-interest.”
Countercl. ¶¶ 10, 13 [Doc. #4]. Defendant also does not allege actual damage to
its business relationships. See id. at ¶6 (stating that plaintiff’s statements resulted
in business associates “questioning” or having “doubt” about continuing to do
business with defendant). “[A] plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
555 (internal quotations and citations omitted).

The court finds that Count I of

defendant’s counterclaim does not satisfy the requirements for stating a claim for
relief. Therefore, it will be dismissed.

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Count II: Breach of Fiduciary Duty
Plaintiff also challenges Count II, arguing that Hubbs Machine fails to show
how she breached her duty to the company, causation, and any resulting harm. To
assert a breach of fiduciary duty claim, a proponent must show that a fiduciary duty
existed between the proponent and the defending party, the defending party
breached the duty, and the breach caused harm to the proponent.

Hallquist v.

United Home Loans, Inc., 715 F.3d 1040 (8th Cir. 2013) (applying Missouri law);
Western Blue Print Co., LLC v. Roberts, 367 S.W.3d 7, 15 (Mo. banc 2012) (same).
In Count II, defendant claims that plaintiff conspired to damage defendant’s
business relationships with customers, intentionally damaged the company’s
credibility, publicly disparaged the company, and usurped business opportunities
that belonged to defendant. There are, however, no facts alleged to support these
claims. Instead, defendant simply asserts “legal conclusion[s] couched as [] factual
allegation[s,]” which the court is not required to accept as true. Papasan v. Allain,
478 U.S. 265, 286 (1986).

Defendant’s fail “to raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555. Therefore, Count II of defendant’s
counterclaim fails to state a claim and will be dismissed.
For the reasons set forth above,

***

IT IS HEREBY ORDERED that plaintiff’s motion to dismiss defendant’s
counterclaim for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) [Doc.
#33] is granted.
____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 26th day of February, 2015.
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