Auckland v. Gilead Sciences, Inc. et al
Filing
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MEMORANDUM OPINION. Signed by District Judge Thomas T. Cullen on 1/28/2025. (ck). Modified on 1/28/2025 to correct typo and NEF regenerated (ck).
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
IAN LEWIS AUCKLAND,
Plaintiff,
v.
GILEAD SCIENCES, INC., and
HILARY ZACHRY
Defendants.
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1/28/2025
Civil Action No. 7:24-cv-00501
MEMORANDUM OPINION
By:
Hon. Thomas T. Cullen
United States District Judge
Plaintiff Ian Lewis Auckland (“Auckland”) brought this action against Defendants
Gilead Sciences, Inc. (“GSI”) and Hilary Zachry (“Zachry”) alleging defamation and
defamation per se. (Compl. ¶¶ 45–57 [ECF No. 1].) This case is before the court on Defendants’
motion to dismiss under Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6). (Mot. Dismiss
[ECF No. 9].) For the reasons below, the court will grant the motion in part, deny it in part,
and grant Auckland leave to file an amended complaint.
I.
STATEMENT OF FACTS
The facts are taken from Auckland’s complaint and, for purposes of this motion, are
presumed to be true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). All reasonable inferences
are drawn in favor of the plaintiff. See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d
250, 253 (4th Cir. 2009).
Auckland began working for GSI on or around October 2014. (Compl. ¶ 7.) He lives
in Virginia and worked for GSI from his home in Franklin County, Virginia. (Id. ¶ 1.) GSI, a
biopharmaceutical company, operates throughout the United States, including in Virginia. (Id.
¶ 3.) The company is incorporated in Delaware and headquartered in California. (Id.) Zachry
is also an employee of GSI and is domiciled in California. (Id. ¶ 4.)
In the summer of 2023, after over 7 years of employment at GSI, Auckland applied for
a preceptorship role. (Id. ¶ 11.) That role was associated with greater visibility and was often
leveraged for career advancement within GSI. (Id.) Auckland considered the preceptorship
role to be a promotion compared to his role at the time as an executive institutional specialist.
(Id. ¶ 8, 12.) At the time he applied, Auckland contends he was an exemplary employee; on
GSI’s annual performance reviews during his employment, Auckland consistently met or
exceeded all managerial expectations. (Id. ¶ 10.) Also at that time, Zachry was a mentor for the
GSI preceptorship mentorship program. (Id. ¶ 22.)
In August of 2023, both Auckland and Zachry attended a work conference. (Id. ¶ 15.)
At the conference, Auckland and Zachry spoke to each other for approximately 5 minutes.
(Id. ¶ 17.) Auckland and Zachry were surrounded by GSI employees and others during their
conversation. (Id.) The conference concluded and both parties returned home.
On October 12, 2023, about two months after the conference, Auckland received the
preceptorship position for which he had applied. (Id. ¶ 12.) On November 21, 2023, Auckland
received an invitation to an online video conference with GSI Human Resources (“HR”),
which he attended. (Id. ¶ 13.) During the video conference, HR questioned him about the
preceptorship role and his interest in applying for it. (Id. ¶ 14.) HR also asked him if he recalled
speaking to Zachry at the August conference. (Id. ¶ 15.) Auckland said that he remembered
speaking with Zachry, and he described their conversation as brief and insignificant. (Id. ¶ 16.)
According to Auckland, he answered these questions truthfully and professionally. (Id. ¶ 14.)
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HR informed Auckland that he was under investigation for allegedly stating to Zachry at the
conference that he “want[ed] to rip [her] panties off.” (Id. ¶¶ 18, 24.) The allegation shocked
Auckland, and he denied making the statement. (Id. ¶ 19.) Auckland alleges that GSI did not
investigate Zachry’s report to HR, nor did it have any intention of doing so. (Id. ¶ 34.) He
further alleges that GSI’s management directed HR to terminate Auckland’s employment,
despite knowing that Zachry’s claims against Auckland were false. (Id. ¶ 35.) On December 1,
ten days after the video conference, HR notified Auckland that his employment at GSI had
been terminated. (Id. ¶ 20.)
After his termination, Auckland discussed the allegation underlying Zachry’s HR report
with multiple former colleagues, including one of Zachry’s team members. (Id. ¶ 22.) From
that conversation, he learned that Zachry favored other people for the preceptorship position.
(Id. ¶ 23.) He also learned that Zachry had told a co-worker that Auckland had said he
“want[ed] to rip [her] panties off” and directed that co-worker to report it to GSI’s
management. (Id. ¶¶ 24–26.) Auckland alleges that Zachry spread this allegation, which she
knew to be false, to prevent him from receiving the preceptorship position. (Id.)
Further, Auckland alleges that, after it could not verify Zachry’s report to HR, GSI
tried to cover up Zachry’s allegation. (Id. ¶ 27–28.) Auckland claims that, in exchange for her
silence concerning the statement that Auckland allegedly made at the conference, GSI
promised Zachry that Auckland would not work on accounts that Zachry preferred. (Id. ¶ 28–
29.) But despite Zachry’s machinations against him, Auckland received the preceptorship. (Id.
¶ 30.) After his termination, Auckland also apparently learned that Zachry had exchanged a
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series of text messages with another GSI employee in October 2023, in which she discussed
this corrupt arrangement that she had allegedly made with GSI. (Id. ¶ 31.)
On August 2, 2024, Auckland brought suit in this court against GSI and Zachry,
alleging claims of defamation and defamation per se. GSI and Zachry filed a motion to dismiss
under Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6), arguing that this court does not
have personal jurisdiction over Zachry and that the Complaint fails to state a claim upon which
relief can be granted. (See generally Mot. Dismiss). The motion was fully briefed by the parties
and is ripe now for disposition.
II.
STANDARD OF REVIEW
Motions to dismiss under Rule 12(b)(2) challenge a court’s personal jurisdiction over a
defendant. Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003).
When a defendant challenges personal jurisdiction “based on the contents of a complaint and
supporting affidavits, the plaintiff has the burden of making a prima facie showing in support
of its assertion of jurisdiction.” Universal Leather, LLC v. Koro AR, S.A., 773 F.3d 553, 558 (4th
Cir. 2014). At that stage, the court “must construe all relevant pleading allegations in the light
most favorable to the plaintiff, assume credibility, and draw the most favorable inferences for
the existence of jurisdiction.” Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989).
Motions to dismiss under Rule 12(b)(6) test the legal sufficiency of a complaint. Edwards
v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, the
complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the plaintiff’s
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allegations “allow[] the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. While a complaint does not need “detailed factual allegations,”
complaints merely offering “labels and conclusions,” “naked assertion[s] devoid of ‘further
factual enhancement,’” or “a formulaic recitation of the elements of a cause of action will not
do.” Id. (alteration in original) (internal quotation marks omitted) (quoting Twombly, 550 U.S.
at 555, 557).
III.
ANALYSIS
A. The Court Lacks Personal Jurisdiction Over Zachry
A court may “assert personal jurisdiction over a nonresident defendant” if two
conditions are met: “(1) the exercise of jurisdiction must be authorized under the” forum
state’s—here, Virginia’s—long-arm statute; and “(2) the exercise of jurisdiction must comport
with the due process requirements of the Fourteenth Amendment.” Carefirst of Md., 334 F.3d
at 396. Virginia’s long-arm statute permit courts to exercise personal jurisdiction over “a
person, who acts directly or by an agent, as to a cause of action arising from the
person’s . . . [t]ransacting any business in this Commonwealth.”1 Va. Code Ann. § 8.01328.1(A)(1). And the Supreme Court of Virginia has interpreted the Virginia long-arm statute
to be co-extensive with “the outer bounds of due process,” so this two-step inquiry collapses
into a single question. Tire Eng’g & Distrib., LLC v. Shandong Linglong Rubber Co., Ltd., 682 F.3d
1 The long-arm statue also permits the exercise of jurisdiction on a number of additional bases not relevant
here. See Va. Code Ann. § 8.01-328.1(A)(2)–(10). Further, there is no contention that Zachry’s contacts with
Virginia are sufficiently “continuous and systematic” to give the court general personal jurisdiction over her, so
the court’s exercise of personal jurisdiction, if permissible, must be based on the conduct giving rise to this
litigation. See CFA Inst. v. Inst. of Chartered Fin. Analysts of India, 551 F.3d 285, 292 n.5 (4th Cir.
2009).
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292, 301 (4th Cir. 2012); see AESP, Inc. v. Signamax, LLC, 29 F. Supp. 3d 683, 688 (E.D. Va.
2014). Accordingly, the proper inquiry is only whether the defendant has “sufficient minimum
contacts with the forum state” to permit the court’s exercise of jurisdiction. See CFA Inst. v.
Inst. of Chartered Fin. Analysts of India, 551 F.3d 285, 292 (4th Cir. 2009).
Auckland contends that the court can permissibly exercise personal jurisdiction over
Zachry based on a series of text messages that Zachry exchanged with a “Virginia-based
employee” in which Zachry and the other employee discussed what Auckland allegedly said
to Zachry at the conference. (Mem. Opp’n Mot. Dismiss at 4 [ECF No. 14].) Auckland’s
argument fails.
While a “single act of doing business by a person in the Commonwealth” suffices to
confer personal jurisdiction, Darden v. Heck’s, Inc., 459 F. Supp. 727, 731 (W.D. Va. 1978), “the
law is well settled that mere emails and telephone calls directed at Virginia do not amount to
transacting business in Virginia,” Nathan v. Takeda Pharms. Am. Inc., CL-2010-2064, 2011 WL
8947650, at *8 (Va. Cir. Ct. Aug. 2, 2011). It follows that Zachry’s “single act” of exchanging
a series of text messages does not confer jurisdiction of this court over her personally because
the text message exchange is not a business transaction within the meaning of the long-arm
statute. See id.
Further, the complaint does not allege that the messages were either sent from or
received in Virginia. Though Auckland’s response to Defendants’ motion states that the
exchange was with a “Virginia-based employee,” and seems to indicate that the employee was
in Virginia at the time of the exchange, those facts do not appear in the complaint or in an
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affidavit. (See Mem. Opp’n Mot. Dismiss at 2, 4.) Accordingly, the court cannot properly
consider those facts. See Universal Leather, LLC, 773 F.3d at 558.
Auckland has not identified any other basis for jurisdiction, and the court has not
identified any additional facts in the complaint that would establish personal jurisdiction.
Because Auckland has not met his “burden of making a prima facie showing in support of”
the court’s exercise of personal jurisdiction, id., the court will grant Defendants’ motion as to
the claims against Zachry.
Auckland asserts that he can “plead additional or alternative facts” to supplement the
complaint, and requests leave to amend the complaint should the court find the existing
allegations deficient. (Mem. Opp’n Mot. Dismiss at 20 n.2.) The court will grant that request
and permit Auckland to file an amended complaint.
B. The Complaint States a Claim for Relief
To succeed on a defamation claim under Virginia law, a plaintiff must plead and prove
three elements: “(1) publication of (2) an actionable statement with (3) the requisite intent.”
Tharpe v. Saunders, 737 S.E.2d 890, 892 (Va. 2013). An actionable statement is one that is both
false and defamatory. Schaecher v. Bouffault, 772 S.E.2d 589, 594 (Va. 2015). A statement is
defamatory if it tends to “harm the reputation of another [so] as to lower him in the estimation
of the community or to deter third persons from associating or dealing with him.” Chapin v.
Knight-Ridder, Inc., 993 F.2d 1087, 1092 (4th Cir. 1993) (quoting Restatement (Second) of Torts
§ 559). “A statement is defamatory per se if it (i) imputes the commission of a crime of moral
turpitude for which a party may be convicted, (ii) imputes that the person is infected with a
contagious disease which would exclude the person from society, (iii) imputes an unfitness to
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perform the duties of a job or lack of integrity in the performance of duties, or (iv) prejudices
the party in [his] profession or trade.” Taylor v. CNA Corp., 782 F. Supp. 2d 182, 201 (E.D. Va.
2010). “If a plaintiff proves defamation per se, ‘Virginia law presumes that the plaintiff
suffered actual damage to his reputation and, therefore, [the plaintiff] does not have to present
proof of such damages.’” Edwards v. Schwartz, 378 F. Supp. 3d 468, 503 (W.D. Va. 2019)
(quoting Swengler v. ITT Corp. Electro-Optical, Prods. Div., 993 F.2d 1063, 1071 (4th Cir. 1993)).
“Defamation claims may be defeated by an appropriate assertion of privilege which, in turn,
may be overcome if the plaintiff proves that the privilege has been lost or abused.” Thompson
v. Rockingham County, 663 F. Supp. 3d 509, 532 (W.D. Va. 2023) (citing Cashion v. Smith, 749
S.E.2d 526, 532 (Va. 2013)).
Defendants argue that Auckland’s claims against GSI should be dismissed because (1)
the allegations in the complaint do not establish that GSI had reason to believe that Zachry’s
report to HR was false or that GSI acted with reckless disregard for the truth; (2) Zachry’s
report to HR is protected by the internal corporate communications privilege, so it cannot
satisfy the publication prong of a defamation claim; (3) Virginia’s anti-SLAPP (Strategic
Lawsuit Against Public Participation)2 statute bars Auckland’s claims; and (4) Zachry’s report
to HR is not an actionable statement under Virginia law. (Mem. Supp. Mot. Dismiss at 2 [ECF
No. 10].) The court is unconvinced by these arguments at this early stage of the litigation and
will deny Defendants’ motion as to the claims against GSI.
2 “Generally speaking, anti-SLAPP statutes aim to weed out and deter lawsuits brought for the improper
purpose of harassing individuals who are exercising their protected right to freedom of speech.” Fairfax v. CBS
Corp., 2 F.4th 286, 296 (4th Cir. 2021) (citing Henry v. Lake Charles Am. Press, LLC, 566 F.3d 164, 169 (5th Cir.
2009)).
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Defendants’ first argument—that the complaint is insufficient to establish actual malice
on the part of GSI—is irrelevant. The only actionable statement that is alleged in the complaint
is Zachry’s report to HR that Auckland told her he “want[ed] to rip [her] panties off.” (Compl.
¶¶ 24, 46, 52.) Likewise, the complaint clearly states that Auckland seeks to hold GSI liable
“on the basis of respondeat superior.”3 (Compl. ¶¶ 48, 54.) The complaint does not profess to
allege direct liability on the part of GSI. Because the complaint only seeks to hold GSI
vicariously liable for Zachry’s allegedly false allegation underlying her report to HR, the
relevant questions are whether Zachry defamed Auckland, and whether GSI can be held
vicariously liable for Zachry’s conduct. GSI’s state of mind—if any—is simply not an element
of Auckland’s claim.4 Though some of the arguments that Auckland makes in his response to
Defendants’ motion sound in direct liability against GSI, no such claim is asserted on the face
of the complaint, so the court will evaluate the motion only on the basis of the vicarious
liability claims against GSI.
Defendants’ second and third arguments—that Auckland’s claims are defeated by the
internal corporate communications privilege and barred by Virginia’s anti-SLAPP statute—
both fail because the complaint contains sufficient allegations that Zachry acted with actual
malice to survive a motion to dismiss. The internal corporate communications privilege
additionally does not apply because the complaint alleges that Zachry acted with common-law
malice.
3 Respondeat superior liability can apply to defamation claims under Virginia law. See Lokhova v. Halper, 995 F.3d
134, 146 (4th Cir. 2021) (applying respondeat superior to defamation claim); Koontz v. Jording, 3:18cv380, 2019 WL
1339595, at *9 (E.D. Va. Mar. 25, 2019) (same).
4 For the same reason, whether GSI made a statement that satisfies the publication prong of a defamation claim
is irrelevant. (See Mem. Supp. Mot. Dismiss at 8 n.5.)
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To show actual malice, a defamation plaintiff must allege that a statement was made
“with knowledge that it was false or with reckless disregard of whether it was false or not.”
N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964). Virginia’s anti-SLAPP statute expressly
incorporates that standard: “The immunity provided by this section shall not apply to any
statements that the declarant knew or should have known were false or were made with
reckless disregard for whether they were false.” Va. Code Ann. § 8.01-223.2(B). With respect
to the internal corporate communications privilege, the Supreme Court of Virginia has
recognized a number of grounds on which the privilege can be defeated, including that “the
statements were made with knowledge that they were false or with reckless disregard for their
truth.” Cashion, 749 S.E.2d at 533.
In his complaint, Auckland alleges that he never told Zachry that he “want[ed] to rip
[her] panties off” and that Zachry knew Auckland had never made such a statement. (Compl.
¶¶ 19, 25.) At the motion to dismiss stage, the court accepts these allegations as true. See Bell
Atl. Corp., 550 U.S. at 555–56. These facts sufficiently establish that Zachry knew her allegation
was false when she made it to GSI. See Steele v. Goodman, 382 F. Supp. 3d 403, 428 (E.D. Va.
2019) (explaining that defendants “cannot prevail on the defense of ‘truth’” on a motion to
dismiss “due to the deference the Court must give Plaintiffs’ allegations at this procedural
stage”). Further, actual malice is a question of fact generally reserved for the jury. See Alexis v.
Kamras, No. 3:19-cv-00543, 2020 WL 7090120, at *20–21 (E.D. Va. Dec. 3, 2020).
Accordingly, the complaint sufficiently alleges that Zachry acted with actual malice, which
defeats the internal corporate communications privilege and makes Virginia’s anti-SLAPP
statute inapplicable at this stage of litigation.
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The complaint additionally alleges that Zachry acted with common-law malice, which
also defeats the internal corporate communications privilege. See Meredith v. Nestle Purina Petcare
Co., 516 F. Supp. 3d 542, 557 (E.D. Va. 2021). Common-law malice can be shown in a number
of ways, including if a statement is “motivated by personal spite or ill will” or “not made in
good faith.” Cashion, 749 S.E.2d at 533. Auckland’s complaint alleges that Zachry falsely
accused him of making a sexually charged statement because she “did not wish for Mr.
Auckland to receive the preceptorship” and “favored other parties for the position over Mr.
Auckland.” (Compl. ¶¶ 22–25.) These allegations suffice to establish common-law malice at
the motion to dismiss stage.
Defendants’ final argument—that Zachry’s report to HR regarding Auckland’s alleged
statement to her is not actionable—also fails. Defendants argue that, because the complaint
does not allege that the allegation underlying Zachry’s report to HR was made to anyone
outside GSI, “Plaintiff cannot allege that the statement at issue harmed his reputation in the
community or prejudiced him in his profession.” 5 (Mem. Supp. Mot. Dismiss at 11.) That
argument misunderstands the standard. Whether a statement is actionable as defamatory does
not turn on the actual effect the statement had on the plaintiff’s reputation. That is because
whether a statement is defamatory is a question of law, not a question of fact. Taylor, 782 F.
Supp. 2d at 201. To be defamatory a statement must merely be of the type that “tend[s] to harm
the reputation of another.” Chapin, 993 F.2d at 1092 (emphasis added) (quoting Restatement
5 Properly framed, this argument goes to the publication prong of a defamation claim, not the actionability
prong. But because the complaint contains sufficient allegations to defeat the application of the internal
corporate communications privilege at this stage and because Auckland seeks to hold GSI liable only under a
respondeat superior theory of liability, Zachry’s statement to GSI and other GSI employees satisfies the publication
prong at this stage of the litigation.
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(Second) of Torts § 559). Accordingly, to determine whether a statement is actionable, the
court must examine the substance of the statement itself—not the statement’s actual impact
on the plaintiff.
An allegation of workplace sexual harassment is a serious matter that has the power to
“lower [a plaintiff] in the estimation of the community or to deter third persons from
associating or dealing with him.” Chapin, 993 F.2d at 1092 (quoting Restatement (Second) of
Torts § 559); see Reid v. James Madison Univ., No. 5:21-cv-00032, 2024 WL 3656775, at *10
(W.D. Va. Aug. 5, 2024) (recognizing that allegations of sexual misconduct are highly
stigmatizing). The Supreme Court of Virginia has recognized that “quotations falsely
attributed to a plaintiff are actionable as defamation” if believing that the quotation properly
came from the plaintiff would harm the plaintiff’s reputation. Tharpe, 737 S.E.2d at 894–95.
One would reasonably understand an allegation that someone said at a work conference that
they “want[ed] to rip [a co-worker’s] panties off” as an allegation of workplace sexual
harassment, which would tend to harm the reputation of the mis-attributed speaker. That
Zachry’s accusation of sexual harassment is of the type that would tend to harm one’s
reputation is also evidenced by the allegation that Auckland was terminated from his
employment because he allegedly made the statement to Zachry. (Compl. ¶¶ 20, 49, 55.)
Accordingly, the court concludes that the alleged statement is defamatory and therefore
actionable as a matter of law.
Defendants do not argue that Zachry’s allegation of sexual harassment is not
defamatory per se because the allegation does not fit within any of the specified categories of
per se defamatory statements. They argue only that it is neither defamatory nor defamatory per
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se because it was not shared with anyone outside GSI. Having concluded that Zachry’s
allegedly false report to HR would constitute defamation, the court assumes without deciding
that the allegation is defamatory per se because it either “imputes an unfitness to perform the
duties of a job or lack of integrity in the performance of duties” or “prejudices [Auckland] in
[his] profession or trade.” Taylor, 782 F. Supp. 2d at 201.
IV.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is granted as to the claims
against Zachry and denied as to the claims against GSI, and Auckland may file an amended
complaint.
The clerk is directed to forward a copy of this Memorandum Opinion and the
accompanying Order to all counsel of record.
ENTERED this 28th day of January, 2025.
/s/ Thomas T. Cullen________________
HON. THOMAS T. CULLEN
UNITED STATES DISTRICT JUDGE
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