John James, Inc. et al v. Hamberger North America, LLC et al
Filing
47
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT HAMBERGER FLOORING GMBH & CO.'S MOTION TO DISMISS 16 and alternatively denying as moot motion to quash service; GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO AMEND 19 ; DENYING AS MOOT CHICO'S FAS., INC.'S MOTION TO DISMISS 11 and J&J INDUSTRIES, INC.'S MOTION TO DISMISS 17 . Hamberger Flooring GMBH & Co. is hereby DISMISSED as a Defendant to this civil action. The plaintiffs' claims for defamation are DISMISSED. The Clerk is directed to file the plaintiffs' amended complaint. Signed by Senior Judge Frederick P. Stamp, Jr. on 8/2/2013. (copy to all counsel of record via CM/ECF)(nmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JOHN JAMES, INC. d/b/a
BUDGET INTERIORS,
an Ohio corporation
and RANDALL J. DLESK,
an individual,
Plaintiffs,
v.
Civil Action No. 5:12CV143
(STAMP)
HAMBERGER NORTH AMERICA, LLC,
an Illinois corporation,
HAMBERGER FLOORING GMBH & CO.,
a German organization,
J&J INDUSTRIES, INC.,
a Georgia corporation and
CHICO’S FAS., INC.,
a Florida corporation,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT HAMBERGER FLOORING
GMBH & CO.’S MOTION TO DISMISS,
GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION TO AMEND
AND DENYING AS MOOT
CHICO’S FAS., INC.’S MOTION TO DISMISS,
J&J INDUSTRIES, INC.’S MOTION TO DISMISS
AND HAMBERGER FLOORING GMBH & CO.’S
MOTION TO QUASH SUMMONS
I.
Background
The plaintiffs filed this civil action in the Circuit Court of
Ohio County, West Virginia.
The complaint raises claims against
all named defendants for tortious interference with contract,
breach of contract, breach of duty of good faith and fair dealing,
and defamation.
The allegations in the complaint arose from an
alleged failed business deal between the plaintiffs and defendant
Chico’s FAS., Inc. (“Chico’s”) wherein the plaintiffs claim they
were contracted to install flooring in Chico’s stores in West
Virginia and throughout the United States.
The complaint alleges
that the plaintiffs entered into agreements with Hamberger Flooring
GMBH & Co. and Hamberger North America (“Hamberger,” “HNA,” and
collectively
“the
Hamberger
defendants”)
and
defendant
J&J
Industries, Inc. (“J&J”) for the purpose of obtaining flooring
materials to install in Chico’s stores.
However, the plaintiffs
allege, at some time after these contractual relationships were
finalized, the Hamberger defendants and J&J approached Chico’s in
order to entice it to breach its contract with the plaintiffs in
favor of working directly with the Hamberger defendants and J&J.
The plaintiffs claim that this attempt was successful and Chico’s
breached its contractual obligations to the plaintiffs as a result.
The defendants then removed this civil action to this Court,
citing subject matter jurisdiction pursuant to 28 U.S.C. §§ 1332(a)
and 1441(a), and a number of motions to dismiss were filed by the
defendants.
Defendant Hamberger moves to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(2), arguing that this Court
lacks personal jurisdiction over it.
Defendants J&J and Chico’s
move to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) and argue that the plaintiffs have failed to state a claim
against them.
These defendants request, in the alternative to an
order granting dismissal of all claims against them, that this
Court require the plaintiffs to file a more definite statement.
The plaintiffs responded to J&J and Chico’s motions to dismiss by
2
acknowledging
the
insufficiency
federal pleading requirements.
of
their
complaint
under
the
Plaintiffs then filed a motion for
leave to file an amended complaint.
All motions to dismiss, as
well as the plaintiffs’ motion for leave to file an amended
complaint, are now fully briefed and ripe for disposition by this
Court.
For
the
reasons
that
follow,
this
Court
will
grant
defendant Hamberger’s motion to dismiss for lack of personal
jurisdiction, will grant in part and deny in part the plaintiffs’
motion for leave to amend, and will deny as moot all remaining
motions.
II.
A.
Applicable Law
Motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(2) for lack of personal jurisdiction
Through a “long-arm” statute, such as West Virginia Code
§ 56-3-33,1 a state may enable courts within the state to exercise
1
Section 56-3-33 states, in pertinent part:
(a) The engaging by a nonresident, or by his duly
authorized agent, in any one or more of the acts
specified in subdivisions (1) through (7) of this
subsection shall be deemed equivalent to an appointment
by such nonresident of the secretary of state, or his or
her successor in office, to be his or her true and lawful
attorney upon whom may be served all lawful process in
any action or proceeding against him or her, in any
circuit court in this state . . . for a cause of action
arising from or growing out of such act or acts, and the
engaging in such act or acts shall be a signification of
such nonresident’s agreement that any such process
against him or her, which is served in the manner
hereinafter provided, shall be of the same legal force
and validity as though such nonresident were personally
served with a summons and complaint within this state:
(1)
Transacting any business in this state;
3
personal jurisdiction over non-residents that commit certain acts
within the state, or certain acts outside of the state, that have
caused injury within the state.
See Lozinski v. Lozinski, 408
S.E.2d 310, 315 (W. Va. 1991) (“The intent and benefit of any longarm statute is to permit the secretary of state to accept process
on behalf of a nonresident and to view such substituted acceptance
as
conferring
personal
jurisdiction
over
the
nonresident.”).
Because the West Virginia long-arm statute is coextensive with the
full reach of due process, it is unnecessary to go through the
normal two-step formula for determining the existence of personal
jurisdiction.
1997).
In re Celotex Corp., 124 F.3d 619, 627-28 (4th Cir.
Instead,
the
“statutory
inquiry
merges
with
the
Constitutional injury,” and this Court must determine whether
exercising personal jurisdiction is consistent with the due process
(2) Contracting to supply services or things
in this state;
. . .
(4) Causing tortious injury in this state by
an act or omission outside this state if he
regularly does or solicits business, or
engages in any other persistent course of
conduct, or derives substantial revenue from
goods used or consumed or services rendered in
this state;
(b) When jurisdiction over a nonresident is based solely
upon the provisions of this section, only a cause of
action arising from or growing out of one or more of the
acts specified in subdivisions (1) through (7),
subsection (a) of this section may be asserted against
him or her.
W. Va. Code § 56-3-33 (emphasis added).
4
clause.
Id. at 628; see World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 291 (1980).
Due process requires that a defendant receive adequate notice
of the suit and be subject to the personal jurisdiction of the
court.
Id.
(citations
omitted).
The
exercise
of
personal
jurisdiction over a non-resident defendant is proper only so long
as “minimum contacts” exist between the defendant and the forum
state,
“such
that
maintenance
of
the
suit
does
not
offend
‘traditional notions of fair play and substantial justice.’” Int’l
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken
v. Meyer, 311 U.S. 457, 463 (1940)).
If defendant’s contacts with the forum state provide the basis
for the suit, those contacts may establish “specific jurisdiction.”
Carefirst of Md., Inc. v. Carefirst Pregnancy Centers, Inc., 334
F.3d 390, 397 (4th Cir. 2003).
To determine whether specific
jurisdiction exists, this Court considers: “(1) the extent to which
the defendant has purposefully availed itself of the privilege of
conducting activities in the state; (2) whether the plaintiffs’
claims arise out of those activities directed at the state; and (3)
whether
the
exercise
of
personal
constitutionally ‘reasonable.’”
jurisdiction
would
be
Id. (quoting ALS Scan, Inc. v.
Digital Serv. Consultants, Inc., 293 F.3d 707, 711-12 (4th Cir.
2002)).
If the defendant’s contacts with the state are not the basis
for the suit, however, then jurisdiction “must arise from the
5
defendant’s general, more persistent, but unrelated contacts with
the state.”
Id.
A plaintiff establishes general jurisdiction by
showing that the defendant’s activities in the state have been
Id. (citing Helicopteros Nacionales
“continuous and systematic.”
de Columbia, S.A. v. Hall, 466 U.S. 408, 414 & n.9 (1984)).
When a court’s power to exercise personal jurisdiction over a
non-resident
defendant
is
challenged
by
a
motion
under
Rule
12(b)(2) of the Federal Rules of Civil Procedure, the plaintiff
bears the burden of proving the existence of the grounds for
jurisdiction by a preponderance of the evidence.
Owens-Illinois,
Inc. v. Rapid Am. Corp., (In re The Celotex Corp.), 124 F.3d 619,
628 (4th Cir. 1997) (citing Combs v. Bakker, 886 F.2d 673, 676 (4th
Cir. 1989)).
B.
Motion to amend complaint
Federal
Rule
of
Civil
Procedure
15(a)(1)(A)
states,
in
pertinent part, that “[a] party may amend its pleading once as a
matter of course . . . before being served with a responsive
pleading.”
If a party seeks to amend its pleadings in all other
cases, it may only do so “with the opposing party’s written consent
or the court’s leave.
justice so requires.”
Rule
15(a)
The court should freely give leave when
Fed. R. Civ. P. 15(a)(2).
grants
the
district
court
broad
discretion
concerning motions to amend pleadings, and leave should be granted
absent some reason “such as undue delay, bad faith or dilatory
motive
on
the
part
of
the
movant,
6
repeated
failure
to
cure
deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of allowance of the amendment, [or]
futility of amendment.”
Foman v. Davis, 371 U.S. 178, 182 (1962);
see also Ward Elec. Serv. v. First Commercial Bank, 819 F.2d 496,
497 (4th Cir. 1987); Gladhill v. Gen. Motors Corp., 743 F.2d 1049,
1052 (4th Cir. 1984).
III.
A.
Discussion
Motion to dismiss for lack of personal jurisdiction
Defendant Hamberger has challenged this Court’s jurisdiction
over it arguing that it does not have contacts with the State of
West Virginia sufficient to require it to defend against this case
in this court. Thus, Hamberger requests that this Court dismiss it
from the action pursuant to Federal Rule of Civil Procedure
12(b)(2).
In the alternative, Hamberger asks this Court to quash
the service made upon it by the plaintiffs for failure to comply
with the mandates of the Hague Convention for international service
of process.
In support of its motion to dismiss, Hamberger argues
that
a
it
is
German
company
with
its
registered
offices
in
Stephanskirchen, Germany, where it manufactures, markets and sells
its flooring products under the “Haro” brand name.
Hamberger
further asserts that it does no direct business in the United
States, let alone in West Virginia specifically.
Rather, it
claims, any of its flooring products which are sold or used in the
United States are received and processed through HNA, which is
located in Bolingbrook, Illinois.
7
All orders from the United
States
are
shipped
to
the
HNA
subsequently distributed by HNA.
warehouse
in
Illinois,
and
Hamberger claims that it does no
business in West Virginia, and employs no one in the state.
It
also asserts that it has never applied for a license or permit to
do business in West Virginia, owns no assets in West Virginia,
tangible or otherwise, and has never sent employees, agents or
representatives
whatsoever.
West
to
West
Virginia
for
any
business
purpose
Hamberger maintains that it operates no offices in
Virginia,
nor
has
it
ever
been
assessed
taxes
in
West
Virginia, or appointed an attorney-in-fact or registered agent in
the
state
for
the
purpose
of
service
of
process.
Finally,
Hamberger says that, aside from the present litigation, it has
never been involved in a lawsuit in the United States, and has
never been subject to the jurisdiction of any United States court.
Hamberger offers the affidavit of Ludwig Strebel, its sales and
technical coordinator of major overseas countries, in support of
all of the above assertions.
As previously stated, it is the burden of the plaintiffs in
response to a challenge to personal jurisdiction to establish, by
a preponderance of the evidence, that personal jurisdiction exists
over the challenging defendant.
satisfy this burden.
The plaintiffs have failed to
Initially, it is clear to this Court that
this defendant does not have nearly enough contacts with the state
of West Virginia to establish general jurisdiction over it within
the state.
Any connection that this defendant may have whatsoever
8
with West Virginia is sparse and only tangential in that the
connection is solely related to other defendants in this action who
may be subject to suit in West Virginia.
See Carefirst of Md.,
Inc., 334 F.3d at 397 (4th Cir. 2003). Thus, plaintiffs would need
to prove that specific jurisdiction exists by showing evidence of
elements of the three-pronged test above-described.2
In an attempt to meet this burden, the plaintiffs maintain
that they worked directly with Hamberger, and specifically Ludwig
Strebel
in
the
establishment
of
relationships relevant to this case.
the
alleged
contractual
The plaintiffs say that, on
July 22, 2010, Ludwig Strebel traveled to Fort Myers, Florida to
meet with plaintiff Randall J. Dlesk (“Dlesk”) and Chico’s for the
purpose of discussing Hamberger supplying flooring for the Chico’s
store projects managed by the plaintiffs.
The plaintiffs also
argue that Mr. Strebel traveled to Fort Myers a second time in
November
2010
relating
to
the
plaintiffs’
transactions
with
Hamberger and Chico’s, and during that trip, also visited Naples,
Florida, Knoxville, Tennessee, and Bridgeport, Ohio to tour the
plaintiffs’ corporate headquarters and showroom in Bridgeport.
The plaintiffs claim that, as a result of these interactions
and trips, Hamberger supplied flooring for Chico’s construction
2
“(1) the extent to which the defendant has purposefully
availed itself of the privilege of conducting activities in the
state; (2) whether the plaintiffs’ claims arise out of those
activities directed at the state; and (3) whether the exercise of
personal jurisdiction would be constitutionally ‘reasonable.’” Id.
(quoting ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293
F.3d 707, 711-12 (4th Cir. 2002)).
9
projects to be managed by the plaintiffs.
was in Morgantown, West Virginia.
One of these projects
The plaintiffs assert that they
placed the order for this project directly with Hamberger and Mr.
Strebel by email on February 4, 2011, and that there was never any
indication
that
HNA
was
ever
involved
involving the Morgantown project.
with
the
transactions
The plaintiffs also provide
evidence of a number of later emails between plaintiff Dlesk and
Ludwig Strebel related to the plaintiffs’ dealings with Chico’s.
Accordingly,
the
plaintiffs
maintain,
the
record
shows
that
Hamberger, through Ludwig Strebel, was directly involved in the
dealings related to this civil action, and the plaintiffs did not
deal with Hamberger simply tangentially through HNA.
They further
assert that the above contacts are sufficient to give this Court
jurisdiction over Hamberger in this case.
This Court disagrees.
While the plaintiffs have perhaps presented evidence that they
dealt with Hamberger directly on multiple occasions relating to
their alleged contractual relationship with Chico’s, the plaintiffs
have failed to present any evidence of Hamberger purposely availing
itself of the privilege of conducting business in the state of West
Virginia.
The
plaintiffs
have
included
evidence
of
Ludwig
Strebel’s business travels to the states of Florida, Tennessee, and
Ohio, and have presented evidence of email correspondence between
Mr. Strebel and the plaintiffs, but they have offered nothing to
show that Hamberger or Mr. Strebel ever conducted business with the
plaintiffs within West Virginia.
10
This Court notes that the
plaintiff John James, Inc. is not even a West Virginia corporation,
and is rather headquartered in Ohio, further indicating that
Hamberger had no intention of conducting business in West Virginia.
The only allegation that the plaintiffs have presented of any
contact between the Hamberger and the state of West Virginia is a
single order placed for a single project in Morgantown, West
Virginia.
However, even if such a contact would be sufficient to
establish jurisdiction in this Court over this defendant in this
case, the plaintiffs have failed to sufficiently support their
claim that they placed the order for the Morgantown project
directly with Hamberger, rather than through HNA.
The emails
relating to this transaction which have been provided by the
plaintiffs show that the plaintiffs placed an order for the
Morgantown project on February 4, 2011.
This order was sent from
a representative for John James, Inc. to Sandra Shramm3 and Ludwig
Strebel, but also included on the email was an email address
entitled “GU_SS.”
According
to
Hamberger,
in
a
claim
which
has
not
been
challenged by the plaintiffs, the GU_SS email address belongs to
Sean Stewart, the sales manager for HNA in Chicago, Illinois.
Hamberger has also provided this Court with an email from Mr.
Stewart to the plaintiffs on the same day that the Morgantown order
was placed, confirming the order.
Hamberger has also provided an
order confirmation receipt relating to the February 4, 2011 order
3
Sandra Shramm is another employee at Hamberger.
11
for Chico’s Morgantown, West Virginia.
This confirmation clearly
represents
as
HNA
in
Chicago,
Illinois
the
entity
providing
confirmation and names Sean Stewart as the person in charge of the
order.
ECF No. 32 Ex. 2.
Finally, Hamberger has also presented an
email from plaintiff Dlesk cancelling order number 3109910799,
which
is
the
order
number
assigned
to
the
February
4,
2011
Morgantown order, as shown in both the previous emails regarding
the
order
discussed.
and
in
the
order
confirmation
receipt
previously
See ECF No. 32 Ex. 2 and ECF No. 32 Ex. 4.
As such,
the plaintiffs have failed to show that this transaction took place
with Hamberger, rather than HNA, and even failed to show that this
transaction was ever finalized.
As this is the only contact with
West Virginia that the plaintiffs have alleged, the plaintiffs have
not shown by a preponderance of the evidence that Hamberger has
ever conducted any type of business in the state of West Virginia.
As a result, this Court cannot find that it has jurisdiction over
Hamberger.
Defendant Hamberger’s motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(2) is thus granted, and
Hamberger is dismissed as a defendant to this civil action.
Further, as this Court finds that Hamberger must be dismissed,
Hamberger’s motion to quash service is denied as moot.
B.
Motion to amend complaint
As noted above, following the filing of defendants Chico’s and
J&J’s
motions
to
dismiss
for
failure
to
state
a
claim,
the
plaintiffs conceded that the complaint filed in the Circuit Court
12
of Ohio County failed to meet the pleading requirements of Federal
Rule of Civil Procedure 8, as defined by the United States Supreme
Court in Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662 (2009).
the
insufficiency
of
their
complaint
The plaintiffs argue that
is
the
result
of
the
difference between the pleading standards required in state court,
where the complaint was originally filed, and those of federal
court.
Thus,
the
plaintiffs
request
leave
to
file
a
more
stringently pled amended complaint in order to comply with the
pleading requirements of Rule 8. Defendants Chico’s and J&J oppose
the plaintiffs’ motion to amend on the grounds that the proposed
amended complaint is equally deficient under Rule 8, and is thus
futile.
As noted above, motions to amend must be granted liberally,
and only denied when it is clear that granting the motion would
cause “undue delay,” that the motion was motivated by “bad faith or
dilatory motive,” and in situations of “repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of allowance of the amendment, [or]
futility of amendment.”
Foman, 371 U.S. at 182.
The opposing
defendants in this case do not argue that the motion to amend is
delayed, motivated by bad faith, or prejudicial, but rather only
assert that the proposed amended complaint would also be subject to
dismissal for failure to state a claim, and is thus futile.
In
determining whether a proposed amended complaint is futile, the
13
Court must consider whether or not the amended complaint would be
subject to dismissal under the standards of the Federal Rules of
Civil Procedure.
United States ex rel. Wilson v. Kellogg Brown &
Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008).
The objecting
defendants here argue that the plaintiffs’ amended complaint would
be subject to dismissal pursuant to Rule 12(b)(6).
In assessing whether a complaint fails to state a claim under
Rule
12(b)(6),
a
court
must
accept
contained in the complaint as true.
the
factual
allegations
Advanced Health-Care Servs.,
Inc. v. Radford Cmty. Hosp., 910 F.2d 139, 143 (4th Cir. 1990).
Dismissal for failure to state a claim is only appropriate in very
limited circumstances, as the pleading requirements of Federal Rule
of
Civil
Procedure
8(a)(2)
only
mandate
“a
short
and
plain
statement of a claim showing that the pleader is entitled to
relief.”
Conley v. Gibson, 355 U.S. 41, 47 (1957).
Still, to
survive a motion to dismiss, the complaint must demonstrate the
grounds to entitlement to relief with “more than labels and
conclusions . . . factual allegations must be enough to raise a
right to relief above the speculative level.” Twombly, 550 U.S. at
555.
The plaintiffs’ amended complaint alleges that plaintiff John
James, Inc. entered into a contract with Chico’s to provide and
install flooring in Chico’s stores throughout the United States.
The complaint also claims that John James, Inc. entered into
contracts with the Hamberger defendants and J&J to obtain certain
14
flooring
materials
for
installation
into
the
Chico’s
stores
included in John James, Inc.’s contract with Chico’s. The proposed
amended complaint then raises three claims against the various
defendants.
defendant
Count I raises a claim for beach of contract against
Chico’s.
Count
II
raises
a
claim
for
tortious
interference, breach of contract, defamation, and breach of good
faith against defendant J&J and the Hamberger defendants.
Count
III raises a claim of breach of contract against the Hamberger
defendants. As earlier indicated, HNA has not moved to dismiss the
plaintiffs’ complaint, and Hamberger has been dismissed for lack of
personal jurisdiction.
This Court will accordingly address the
sufficiency of the allegations against Chico’s and J&J only.
The crux of both Chico’s and J&J’s argument for futility of
amendment as to the breach of contract allegations made against
them in the proposed amended complaint is that the complaint fails
to state a claim because the plaintiffs have not attached the
contracts alleged to have been breached, and do not identify
specific contractual provisions alleged to have been breached. J&J
and Chico’s assert that failure to do either of these things within
the
proposed
amended
requirements of Rule 8.
complaint
fails
to
meet
the
pleading
This Court disagrees.
The plaintiffs allege that contracts existed between John
James, Inc. and both Chico’s and J&J.
With regard to Chico’s, the
plaintiffs also specifically allege that Chico’s placed a number of
purchase orders, listed by specific number, which the plaintiffs
15
claim contractually obligated Chico’s to purchase the amount of
product stated within the orders within twelve months of placing
the order.
The plaintiffs then allege that the specifically named
purchase orders were purchased by Chico’s from other vendors after
they were placed with the plaintiffs, and that Chico’s never
purchased the product from these orders from the plaintiffs within
the mandated twelve months.
As such, the plaintiffs allege breach
of contract through the allegedly unfulfilled purchase orders.
Rule 8 requires a plaintiff to simply allege sufficient facts to
raise the probability of liability on the part of the defendant
above a “speculative level.”
Twombly, 550 U.S. at 555.
The
plaintiffs’ allegations of breach of contract against Chico’s
clearly
succeed
in
accomplishing
this
as
there
are
specific
allegations of purchase orders placed, and specific allegations
regarding how the plaintiffs believe Chico’s breached the terms of
those orders.
As against J&J, the plaintiffs also sufficiently allege a
breach of contract claim.
The proposed amended complaint raises
its breach of contract claim against J&J in Count II.
The
plaintiffs allege that J&J entered into a contract with John James,
Inc.
to
provide
flooring
materials
to
Chico’s
stores
for
installation by the plaintiffs. The complaint further alleges that
J&J breached this contract by selling flooring products directly to
Chico’s
rather
than
through
the
plaintiffs
for
installation
pursuant to the John James, Inc.’s contract with Chico’s.
16
While
the allegations of breach of contract against J&J in the proposed
amended complaint may not establish with certainty the plaintiffs’
right to recover on this claim against J&J, the claims and factual
allegations certainly make the claim “plausible” as is required by
Rule 8.
Id.
Further, J&J argues that the claims against it for breach of
the
covenant
of
good
faith
alleged
in
the
proposed
amended
complaint are also futile. However, its argument in this regard is
based entirely upon its arguments that the plaintiffs failed to
sufficiently allege a breach of contract claim against them.
As
this Court found the breach of contract allegations sufficient,
J&J’s arguments as to the insufficiency of the good faith claims
also fail to show futility. Similarly, as to the claim against J&J
for tortious interference with contract, J&J also argues that this
claim is insufficient because the plaintiffs failed to sufficiently
allege a contractual relationship.
tortiously
Chico’s.
the
interfered
with
its
This claim asserts that J&J
contractual
relationship
with
As noted above, the plaintiffs have sufficiently alleged
existence
of
a
contractual
relationship
with
Chico’s.
Accordingly, the plaintiffs’ claim for tortious interference with
contract is also sufficient to survive dismissal under Federal Rule
of Civil Procedure 12(b)(6) standards.
Finally, however, this Court must agree with J&J as to the
defamation claim sought to be raised against it in the amended
complaint, and find that the amended complaint, as to this claim,
17
is futile.4
In West Virginia, a claim for defamation requires that
the following elements be proven: “(1) defamatory statements; (2)
a non-privileged communication to a third party; (3) falsity; (4)
reference to the plaintiff.”
Crump v. Beckley Newspapers, Inc.,
syl. pt. 1, 320 S.E.2d 70 (W. Va. 1983).
The sole allegation as to
defamation within the amended complaint asserts that J&J and HNA
“made various defamatory statements about both Plaintiff John
James, Inc. and Plaintiff Randall J. Dlesk.” The amended complaint
fails
entirely
to
plead
with
any
specificity
what
alleged
defamatory statements were made by J&J and HNA to Chico’s, when
these statements were made, or in what context, or even whether or
not they were false.
In order to sufficiently plead a claim for
defamation, it is at least necessary that the plaintiffs offer “the
exact words charged to have been used or material caused to have
been published by the defendant . . . with particularity.”
Kondos
v. West Virginia Bd. of Regents, 318 F. Supp. 394, 398 (S.D. W. Va.
1970).
Further, even if J&J and HNA intentionally solicited
Chico’s to breach its contract with the plaintiffs in favor of
working directly with these defendants, it does not follow as a
matter of course that they did so through the use of defamatory
statements against the plaintiffs.
4
Accordingly, the plaintiffs’
This Court recognizes that this finding differs from the
Court’s stated tentative rulings set forth in a May 3, 2013 letter
to the parties. However, after further review, this Court has now
concluded that the plaintiffs have failed to adequately plead a
defamation claim under the pleading standards of Federal Rule of
Civil Procedure 8.
18
claims for defamation contained in the proposed amended complaint
fail to meet the pleading standards of Rule 8, and are thus futile.
The plaintiffs’ motion for leave to amend is granted, with the
exception of with regard to the plaintiffs’ defamation claim.
The
motions to dismiss of defendants J&J and Chico’s are also denied as
moot.
IV.
Conclusion
As stated above, and for the reasons stated above, defendant
Hamberger Flooring GMBH & Co.’s motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(2) (ECF No. 16) is GRANTED.
Hamberger Flooring GMBH & Co. is hereby DISMISSED as a defendant to
this civil action.
Hamberger Flooring GMBH & Co.’s alternative
motion to quash service is DENIED AS MOOT.
The plaintiffs’ motion
to amend (ECF No. 19) is GRANTED IN PART and DENIED IN PART.
Clerk
is
DIRECTED
to
file
the
plaintiffs’
amended
The
complaint
attached as Exhibit 1 to the plaintiffs’ motion for leave to file
an
amended
complaint.
However,
the
plaintiffs’
claims
for
defamation are DISMISSED. Defendant Chico’s FAS., Inc.’s motion to
dismiss (ECF No. 11) is DENIED AS MOOT.
Defendant J&J Industries,
Inc.’s motion to dismiss (ECF No. 17) is DENIED AS MOOT.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit copies of this order to
counsel of record herein.
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DATED:
August 2, 2013
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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