McCray v. Ardelle Associates Inc., et al.
OPINION AND ORDER Denying 38 Motion to Dismiss for Failure to State a Claim; Denying 39 Motion to Dismiss for Failure to State a Claim. Signed by District Judge Robert G. Doumar and filed on 9/15/17. Copies distributed to all parties 9/15/17. (ldab, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
NEWPORT NEWS DIVISION
SHERYL T. McCRAY,
CIVIL NO. 4:14cvl58
INFUSED SOLUTIONS, LLC
and JAMIE BAKER,
OPINION AND ORDER
This matter comes before the Court upon Infused Solutions, LLC and Jamie Baker's
("Defendants") Motion to Dismiss for Failure to State a Claim. ECF Nos. 38, 39.' For the
reasons stated herein, Defendants' Motions to Dismiss are DENIED.
PROCEDURAL AND FACTUAL HISTORY
On May 3, 2013, Plaintiff brought an action in federal court against Jonah Jancewicz,
Ardelle Associates ("Ardelle"), Infused Solutions, LLC ("Infused"), Jamie Baker, the United
States Army Recruiting Command, a John Doe, and a Jane Doe, in connection with Plaintiffs
reprimand and termination. CaseNo, 4:13cv60, ECF No. 1. Ardelle filed a Motion to Dismiss for
Failure to State a Claim, id, ECF No. 3, which the Court granted without prejudice. Id, ECF No.
27. After the Court dismissed Ardelle, the United States Attorney General certified, pursuant to
28 U.S.C. § 2679(d)(2), that Jancewicz was acting within the scope of his employment during his
confrontation with Plaintiff and substituted the United States as defendant. Subsequently,
' Defendants filed two identical motions to dismiss.
This Order addresses and resolves both motions.
simplicity, all citations are to the first-filed motion, ECF No. 38.
Plaintiff moved to voluntarily dismiss her claims against Jancewicz and the United States Army
Recruiting Command. Id, ECF Nos. 32, 37. The Court granted Plaintiffs request for voluntary
dismissal on March 26, 2014, id, ECF No. 41, and dismissed the remaining claims for lack of
jurisdiction on April 17,2014, id, ECF No. 45.
On August 7, 2014, Plaintiff filed the second and present action in Hampton Circuit
Court. See ECF No. 1, Ex. 1 at 2-13. Plaintiff brought defamation claims against Ardelle,
Infused, Baker, Jancewicz, a John Doe, and a Jane Doe, and brought a wrongful termination
claim against Ardelle and Infused. S^ id By the end of October, 2014, Infused, Baker, and
.Ardelle had each filed demurrers to Plaintiffs complaint for failure to state a claim. Ardelle also
argued Plaintiffs defamation claim was barred by the applicable statute of limitations.
Before the state court could rule on the motions, however, on December 2, 2014, the
United States removed the case to this Court pursuant to the United States Attorney's
certification that Jancewicz was acting within the scope of his federal employment. ECF No. 1.
The United States thus substituted itself for Jancewicz, ECF No. 2, then moved to dismiss itself
pursuant to Federal Rule of Civil Procedure 12(b)(1), ECF No. 3. The Court dismissed the
United States on April 7, 2015, without opposition from Plaintiff. ECF No. 11. After dismissing
the United States, the Court remanded the remainder of the case for lack of jurisdiction, but
reversed that action and retained jurisdiction upon Defendants' motion for reconsideration. ECF
No. 14 (retaining jurisdiction pursuant to 28 U.S.C. § 2679).
On June 23, 2015, this Court dismissed all claims against Ardelle. ECF No. 23.
Specifically, the Court converted Ardelle's state-court Demurrer and Plea in Bar into a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6), which the Court granted. Id
PlaintifTs counsel passed away in 2016, and on June 7 of that year, this Court stayed
proceedings to permit Plaintiffs new counsel to familiarize himself with the case. ECF No. 29.
On October 5, 2016, Plaintiff moved to amend the complaint. ECF No. 30. Defendants opposed
amendment and requested that the Court instead convert Defendants' state-court demurrers into
motions to dismiss under the federal rules and dismiss Plaintiff's claims in their entirety, with
prejudice. ECF No. 32, 33. At the October 26, 2016 hearing, this Court granted Plaintiffs
Motion to Amend/Correct the Complaint. ECF No. 36. Plaintiff timely amended. ECF No. 37.
The Amended Complaint eliminated a previous claim of wrongful termination and added
claims of defamation per se and tortious interference with business expectancy. ECF No. 37. The
Amended Complaint also dropped the John and Jane Doe defendants, only alleging claims
against Infused and Baker. Id Both Defendants filed motions to dismiss, which Plaintiff
opposed. ECF Nos. 38,39,40. The motions are ripe for decision.
Facts Alleged in the First Amended Complaint
Plaintiffs Amended Complaint alleges that in September 2012 Plaintiff was employed by
Ardelle as a General Clerk at a United States Army Recruiting Center in Hampton, Virginia, and
had been for four months. Am. Compl., ECF No. 37, ^ 6. Ardelle provided administrative
workers, like Plaintiff, to United States Army Recruiting Centers under a subcontracting
agreement with Infused, the prime contractor with the United States Government. Id
On September 20, 2012, Plaintiff had a dispute with a colleague. Sergeant First Class
Jonah Jancewicz, after she asked that he notify her prior to taking any lunch breaks. Id
During this encounter, Plaintiff claims that Jancewicz "angrily and profanely confronted Plaintiff
and . . . threatened Plaintiff by hinting that he could get her terminated from her job." Id. H 10.
Both Jancewicz and Plaintiff then informed their superiors at, respectively. Army Recruiting and
Ardelle about the incident, and both made complaints about the incident to Army Recruiting
On September 26, 2012, Jamie Baker, an employee of Infused, called Plaintiffand told
Plaintiff that the Army had expressed frustration at the incident. Id. H13. Plaintiff alleges Baker
was "upset and angry with Plaintiff" when she called because. Baker reported, a person from
United States Army Recruiting had "chewed [Baker] out" about the complaints. Id Both Baker
and another employee of Infused, Mr. Akbar, also told Plaintiff to report any further incidents to
Infused, rather than Ardelle or Army Recruiting. Jd.
13, 15. The same day, Ms. Baker
informed Plaintiff she would be placed on a 90-day probationary period and told Plaintiff that
she had been warned about Plaintiffs behavior, to which Plaintiff responded that no issues with
her behavior had ever been discussed with her. Id
13-14. That same day, Ms. Baker sent
Plaintiff a "Final Warning Notice," placing Plaintiff on a 90-day probationary period. Id. 1 16.
The Warning stated "[ejmployee is extremely confrontational and exhibiting constant
insubordinate behavior towards individuals at her work location." Id, Ex. 1. The Warning also
claimed Plaintiffs alleged behavior "has been an issue for over 90 days and appears to be getting
significantly worse instead of improving." Id Plaintiff refused to sign the Notice, against Ms.
Baker's request, "due to the false statements made therein." Id ^ 17. In her Amended Complaint,
Plaintiff asserts that "[u]pon reasonable and plausible information and belief. Defendants
published the false statements in the notice to the subcontractor Ardelle with actual and/or
common law malice." Id. H 18.
On September 28, 2012, Plaintiff e-mailed Baker requesting documentation to support
the Notice. Am. Compl, ECF No. 37, ^ 19. Baker refused to discuss the matter and warned that if
Plaintiff continued her behavior, she would be subject to termination. Id, Ex. 3. On October 4,
2012, Ardelle sent Plaintiff a termination notice that stated Plaintiff had been terminated because
she violated the workplace code of conduct regarding workplace violence. Id ^ 20; Ex. 4.
Plaintiff also asserts that, in addition to the false statements in the September 26, 2012
written notice, she believes Defendants published additional false statements to Ardelle with
actual and/or common law malice in order to secure her termination. Id. ^ 22.
The function of a motion to dismiss under Rule 12(b)(6) is to test "the sufficiency of a
complaint." Occupy Columbia v. Halev. 738 F.3d 107, 116 (4th Cir. 2013). "[I]mportantly, it
does not resolve contests surrounding the facts, the merits of a claim, or the applicability of
defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). "To survive
such a motion, the complaint must contain facts sufficient 'to raise a right to relief above the
speculative level' and 'state a claim to relief that is plausible on its face.'" Halev. 738 F.3d at
116. When reviewing the legal sufficiency of a complaint, the Court must accept "all wellpleaded allegations in the plaintiffs complaint as true" and draw "all reasonable factual
inferences from those facts in the plaintiffs favor." Edwards v. City of Goldsboro. 178 F.3d 231,
244 (4th Cir. 1999). Legal conclusions, on the other hand, are not entitled to the assumption of
truth if they are not supported by factual allegations. Ashcroft v. labal. 556 U.S. 662,678 (2009).
The parties agree that Virginia substantive law applies to this case. ^
Coll. V. Russell. 499 U.S. 225, 226 (1991) ("[A] federal court sitting in diversity apply the
substantive law of the forum State, absent a federal statutory or constitutional directive to the
contrary." (citing Erie R. Co. v. Tompkins. 304 U.S. 64, 78 (1938)).
PLAINTIFF'S DEFAMATION AND DEFAMATION PER SE CLAIMS
"The elements of defamation are '(1) publication of (2) an actionable statement with (3)
the requisite intent.'" Tharoe v. Saunders, 737 S.E.2d 890, 892 (Va. 2013) (quoting Jordan v.
Kollman. 612 S.E.2d 203, 206 (Va. 2005)). "[T]he publication element of a defamation action
requires dissemination of the statement to a third party in a nonprivileged context." Shaheen v.
WellPoint Companies. Inc.. 490 Fed. App'x 552, 555 (4th Cir. 2012) (applying Virginia law). "It
is sufficient to show that, when the defendant addressed the defamatory words to the plaintiff,
another person was present, heard the words spoken, and understood the statement as referring to
the plaintiff." Food Lion. Inc. v. Melton. 458 S.E.2d 580, 584 (Va. 1995).
To be actionable, a statement must be false and defamatory. Chapin v. Knight-Ridden
Inc.. 993 F.2d 1087, 1092 (4th Cir. 1993). Whether a statement is actionable is a matter of law.
Id At the Motion to Dismiss stage, the Court must accept as false any statements which the
Complaint alleges to be false. Chapin. 993 F.2d at 1092. "Because the Court presumes falsity at
this stage, the key actionability question in deciding a motion to dismiss is whether the
statements referenced in the Complaint are defamatory." Goulmamine v. CVS Pharmacy. Inc..
138 F. Supp. 3d 652, 659 (E.D. Va. 2015). "Defamatory statements must be more than merely
unpleasant or offensive; rather, they must make the plaintiff appear odious, infamous, or
ridiculous." Shaheen. 490 Fed. App'x at 555 (internal quotations and citations omitted).
At common law, certain defamatory statements can be actionable per se. including
statements "which impute to a person unfitness to perform the duties of an office or employment
of profit, or want of integrity in the discharge of duties of such an office or employment; [and
statements] which prejudice such person in his or her profession or trade." Fleming v. Moore.
221 Va. 884, 275 S.E.2d 632, 635 (1981). A statement that is per se defamatory must be
"'necessarily hurtful' in its effect upon plaintiff's business and must affect him in his particular
trade or occupation .... There must be a nexus between the content of the defamatory statement
and the skills or character required to carry out the particular occupation[.]" Fleming. 275 S.E.2d
Furthermore, "Virginia recognizes a qualified privilege for communications between
persons on a subject in which the persons have an interest or duty." Shaheen. 490 Fed. App'x at
555 (internal quotations and citations omitted). However, this qualified privilege "may be
overcome if the plaintiff proves malice." Great Coastal Exp.. Inc. v. Ellington. 230 Va. 142, 334
S.E.2d 846, 853 (1985). Although the existence of qualified privilege is a matter of law, the
question of whether a defendant has lost or abused a privilege is a question of fact. Cashion v.
Smith. 286 Va. 327, 337, 749 S.E.2d 526, 531 (2013). To overcome the privilege, a plaintiff
must prove the communication was made with malice, that is "that the communication was
actuated by some sinister or corrupt motive such as hatred, revenge, personal spite, ill will, or
desire to injure the plaintiff," or that it was made with a legal equivalent to malice, "that the
communication was made with such gross indifference and recklessness as to amount to a
wanton or willful disregard of the rights of the plaintiff." Shaheen. 490 Fed. App'x at 555
(internal quotations and citations omitted). The plaintiff must prove the defamatory words were
spoken with malice by clear and convicting evidence. Id
Defendants do not seriously challenge Plaintift"'s assertion that the statements in the
September 26, 2012 "Final Warning Notice" were defamatory, or even defamatory per se. The
Final Warning Notice said, in part, that Plaintiff was "extremely confrontational," that she
"exhibitfed] constant insubordinate behavior," that the behavior had been "addressed previously
to the employee and not improved" and that it had been an issue "for over 90 days and appears to
be getting significantly worse instead of improving." Am. Compl., ECF No. 37, ^ 16, Ex. 1.
These statements clearly (1) could prejudice Plaintiff in the practice of her profession as a clerk
and (2) contain factual connotations that could be proved false. See Tronfeld v. Nationwide Mut.
Ins. Co.. 636 S.E.2d 447, 451 (Va. 2006) (holding statement that a lawyer "just takes people's
money" could be defamatory per se): Fuste v. Riverside Healthcare Ass'n. Inc.. 575 S.E.2d 858,
861 (Va. 2003) (holding statement that doctors "abandoned" their patients and that there were
"concerns about their competence" could be defamatory per se). Thus, the statements in the Final
Warning Notice could be defamatory per se under Virginia law.
Instead, Defendants challenge Plaintiffs defamation claims on two grounds: (1) Plaintiff
did not sufficiently allege publication because the Amended Complaint does not specify the
method of publication, Motion to Dismiss, ECF No. 38 at 6, and (2) any communication between
Defendants and Ardelle was protected by qualified privilege, id at 6-8. Plaintiff alleges "[u]pon
reasonable and plausible information and belief. Defendants published the false statements in the
[Final Warning Notice] to the subcontractor Ardelle with actual and/or common law malice."
Am. Compl., ECF No. 37 ^ 18. Taken alone, this a conclusory allegation that would not be
entitled to the presumption of truth.
However, after considering all other well-pleaded
allegations in the Amended Complaint, accepting them as true, and drawing all reasonable
factual inferences from those facts in the Plaintiff's favor. Plaintiff has alleged publication and
alleged malice sufficient to overcome the Defendants' qualified privilege.
Plaintiff sufficiently alleged publication. Plaintiff alleged Baker, as an employee of
Infused, emailed her the Final Warning Notice that contained the allegedly defamatory
statements on September 26, 2012, that Baker further said Plaintiff was "subject to 'immediate
termination'" when Plaintiff followed up on September 28, 2012, that Plaintiff was terminated
by Ardelle on October 4, 2012, and that Plaintiff was not aware of any incidents between her
communication with Baker and her termination that could otherwise explain the termination.
Am. Compl., ECF No. 37
16, 19-21. These facts, taken in the light most favorable to the
Plaintiff, lead to the plausible inference that Baker, as an employee of Infused, published the
Final Warning Notice to Ardelle.
Plaintiff also sufficiently alleged malice that, if proved, would overcome Defendants'
qualified privilege. Plaintiff does not dispute that that the relationship between Defendants and
Ardelle was protected by qualified privilege.
Echtenkamp v. Loudon Cntv. Public Sch.. 263
P. Supp. 2d 1043, 1051 (E.D. Va. 2003) ("[T]he [qualified] privilege applies broadly to all
statements related to 'employment matters,' provided the parties to the communication have a
duty or interest in the subject matter."). Nor does Defendant dispute that malice, if properly
alleged and proved, would overcome the qualified privilege.
The Virginia Supreme Court has held common law malice is sufficiently pled when a
plaintiff alleges that "the statements were made with knowledge that they were false or with
reckless disregard for their truth." Cashion v. Smith. 286 Va. 327, 339, 749 S.E.2d 526, 533
(2013). However, a complaint is deficient in alleging malice when it is limited to the conclusory
assertion that the disputed statements were made maliciously or with reckless disregard as to
their veracity. Mavfield v. Nat'l Ass'n for Stock Care Auto Racing. Inc.. 674 F.3d 369, 377-78
(4th Cir. 2012). Plaintiffs Amended Complaint includes allegations that when Baker first
contacted her regarding the September 20, 2012 incident Baker was "upset and angry" because
Baker had been "chewed out" by United States Army Recruiting Center Headquarters. Am.
Compl., ECF No. 37 TI 13. It alleges two weeks elapsed between when Plaintiff reported the
September 20, 2012 incident and Plaintiff's termination, but Ardelle did not remove Plaintiff
from the workplace during that time despite later claims of "workplace violence." Id
the Amended Complaint alleges Baker threatened "immediate termination" in response to
Plaintiff seeking documentation to support the allegedly false claims made against her. Id. H 19.
These allegations could, taken in the light most favorable to Plaintiff, support an inference that
Defendants published the Final Warning Notice to Ardelle despite Defendants' knowledge of its
falsity, or even support an inference that Defendants were motivated by personal ill will or spite.
In Virginia, a plaintiff must prove four elements in order to establish a claim for tortious
interference: (1) the existence of a valid contractual relationship or business expectancy; (2)
knowledge of the relationship or expectancy on the part of the interferor; (3) intentional
interference inducing or causing a breach or termination of the relationship or expectancy; and
(4) resultant damage to the party whose relationship or expectancy has been disrupted.
DurrettBradshaw. P.O. v. MRC Consulting. L.C.. 670 S.E.2d 704,706 (Va. 2009).
Generally, the alleged interferer cannot be a party to the business expectancy. Beall v.
Abbott Labs.. 130 F.3d 614, 621 (4th Cir. 1997). Rather, a tortious interference claim requires
the existence of three actors: two parties to the contract and a third party who interferes with, or
induces one of the parties to breach the contract. Storey v. Patient First Corp.. 207 F. Supp. 2d.
431, 448 (E.D. Va. 2002). (However, if it can be shown that an agent of a party to the contract
was acting outside of the scope of his employment in tortiously interfering with such contract,
then the aggrieved party may be entitled to recover
" Storey. 207 F. Supp. 2d. at 448 (citing
Wuchenich v. Shenendoah Memorial Hospital. No. 99-1273, 2000 WL 665633, at *17 (4th Cir.
Here, PlaintifTs employment contract was terminable at will, but "the fact that a contract
is terminable at the will of the parties does not make it terminable at the will of others." Duggin
V. Adams. 360 S.E.2d 832, 836 (Va. 1987). Where a contract is terminable at will, the plaintiff
must not only allege and prove that the interference was intentional, but also that the defendant
"employed 'improper methods'" in securing termination of the contract. Dunn. McCormack &
MacPherson v. Connolly. 708 S.E.2d 867, 870 (Va. 2011) (quoting Duggin. 360 S.E.2d at 836
(Va. 1987)). The Supreme Court of Virginia has recognized that defamation may constitute an
improper method of interference. Duggin. 360 S.E.2d at 836.
As the basis of her tortious interference with business expectancy claim, Plaintiff alleges
she had a valid at-will employment contract with Ardelle, she expected continued employment.
Defendants were aware of the relationship, Defendants interfered with this relationship by
defaming Plaintiff, and thus secured her termination. Am. Compl., ECF No. 37, H 37-41.
Defendants argue the claim is time-barred and that any tortious interference did not occur as the
result of improper methods.^ ECF No. 38, ^ 23.
Although the two-year statute of limitations would have run on Plaintiffs tortious
interference with business expectancy claim, Va. Code § 58.01-243(A), that claim is not time
barred because it relates back to the original, timely filed pleadings.^ Under Fed. R. Civ. P. 15,
* Defendants also assert that the communications were between parties that had a teaming agreement, Motion to
Dismiss, ECF No. 38 at 15-16, but they do not explain how this is relevant to PlaintifTs claim for tortious
interference nor explain how this would defeat an otherwise well-pleadedclaim.
' This Court has previously analyzed the tolling of the statute of limitations with respect to the filing of Defendant's
August 7, 2014 complaint (now the Original Complaint in the instant matter). ECF No. 23, at 5. In that Order, this
Court noted that the allegedly defamatory actions and interference occurred between September 22 and October 2,
2012. Plaintiffs first suit was brought 225 days later on May 3, 2013. The action was tolled from that date until
April 17,2014, when it was dismissed for lack of jurisdiction. The second suit was brought 113days later on August
7,2014. Therefore, the total time for the second suit (the Original Complaint) filed on August 7,2014—not counting
the time the prior action was pending—was 338 days, which was within the 365 day limit for bringing a defamation
claim. However, the Amended Complaint was not filed until October 5, 2016—nearly two years after the second
an amendment relates back if it asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out—or attempted to be set out—in the original pleading.'' In this
Circuit, courts consider whether there was (1) a sufficient factual nexus between the amendments
and the prior pleadings and (2) whether defendant had sufficient notice of these new claims such
that he will not suffer prejudice if the amendments are found to relate back. United States ex rel.
Carter v. Halliburton Co.. 315 F.R.D. 56, 61-63 (E.D. Va. 2016). Here, the tortious interference
claim clearly has the same factual basis as the Original Complaint, satisfying the factual nexus
requirement. Furthermore, in relation to any prejudice defendants may suffer, this District has
previously concluded that it is not so much the delay—whether by months or years—in the filing
of the amended complaint that determines prejudice, but whether the case "remains far from
mature in terms of resolution." 14 This includes whether a defendant faces a "looming deadline
of trial that might prevent [the defendant] from adequately responding to the amended
complaint." Id Defendants have not articulated any way in which they will be prejudiced by
amendment, and the Court does not see any possible prejudice that would bar the tortious
Plaintiff has sufficiently pled tortious interference. Plaintiff alleged (1) she had a valid atwill contract; (2) Defendants knew of this contract; (3) Defendants maliciously and intentionally
interfered with the contractual relationship; and (4) Plaintiff was damaged as the result of the
termination of her at-will contract. Plaintiff also pled an improper method of interference—
defamation. Dueein. 360 S.E.2d at 836; see also Stamathis v. Flying J.
suit was filed, well aAer the time for the statute oflimitations had expired any of PlaintifPs claims.
^ Although Defendants cite Virginia law regarding relation back, where a party amends its complaint while the
complaint is pending in federal court, "Federal Rule 15(c) governs the relation back of amendments and controls in
the face of conflicting and less generous state law." Fed. Leasing. Inc. v. Amperif Corp.. 840 F. Supp. 1068, 1071
(D. Md. 1993) (citing Davis v. Finer Aircraft Corp.. 615 F.2d 606, 611-12 (4th Cir. 1980)).
CIV.A.7:01CV00838, 2002 WL 1477586, at *1 (W.D. Va. July 9, 2002) (denying defendant's
motion for summary judgment regarding tortious interference with at-will employment contract
because genuine disputes of material fact existed re improper methods of interference, including
defamation); Gilmore v. Peoples Serv. Drue Stores. Inc.. No. LT-446-4., 1991 WL 834973, at *1
(Va. Cir. Ct. May 17, 1991) (overruling demurrer to claim of tortious interference with at-will
contract because plaintiff alleged interference through defamation). Because Plaintiff properly
plead that Defendants defamed her in order to secure her termination. Plaintiff properly plead
that Defendants' tortious interference with Plaintiff's at-will employment contract was through
Upon a review of the pleadings and subsequent filings, this Court finds that the Plaintiff
has sufficiently pleaded defamation, defamation per se. and tortious interference. However, this
Court wishes to emphasize that it takes no position on "contests surrounding the facts, the merits
of a claim, or the applicability of defenses." Republican Partv of N.C.. 980 F.2d at 952. At the
Motion to Dismiss stage, it is merely the task of this Court to determine whether the Plaintiff has
sufficiently alleged her claims. Given that the Court has determined that the Plaintiff has met this
standard. Plaintiffs Amended Complaint will survive this stage. Nonetheless, whether Plaintiff
proves her claims will depend on future proceedings.
Accordingly, for the reasons stated herein, Defendants' Motion to Dismiss for Failure to
State a Claim is DENIED. ECF No. 38, 39.
The Clerk is DIRECTED to forward a copy of this Order to all Counsel of Record.
IT IS SO ORDERED.
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