Opinion
CIVIL ACTION NO. 03-CV-679
October 27, 2003
MEMORANDUM
Presently before the Court is the Plaintiffs Motion to Dismiss, or in the Alternative, Grant Summary Judgment as to the Defendant's Counterclaim.
A. Procedural History
Plaintiff filed its Complaint on February 3, 2003 along with a Motion for Preliminary Injunction. The Court held hearings and granted Plaintiffs Motion for Preliminary Injunction, in part. On February 14, 2003, Defendant filed his Amended Answer, New Matter and Counterclaim (Docket No. 22), which the Court Dismissed without prejudice for failure to follow the Federal Rules of Civil Procedure. See July 10, 2003 Order (Docket No. 65). Also in this Order, the Court gave Defendant ten days to file a Motion to add any third party defendants, but Defendant failed to file such a Motion.
Defendant has repleaded his Answer and Affirmative Defenses (Docket No. 70), and has also in this pleading indicated an intent to add third party defendants. Although Defendant characterizes these individuals and entities as "third party defendants", it appears that they would be more correctly defined as additional defendants on the counterclaim. However, it is clear from Rule 14(a) of the Federal Rules of Civil Procedure that Defendant can only add additional parties on his counterclaim by filing a Motion to this effect. The Court has previously reminded Defendant, who appears pro se in this litigation, of his need to follow the Federal Rules of Civil Procedure, but Defendant continues to fail to follow them. The Court notes in passing that one of the proposed additional "third parties" is a Pennsylvania resident, and Defendant would possibly lose diversity jurisdiction by adding such an individual.
The Plaintiff has moved to dismiss each proposed count of Defendant's counterclaim, and the Court rules as follows.
B. Legal Standard
When deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court may look only to the facts alleged in the complaint and its attachments. Jordan v. Fox, Rothschild, O'Brien Frankel, 20 F.3d 1251, 1261 (3d Cir. 1994). The Court must accept as true all well-pleaded allegations in the complaint and view them in the light most favorable to the plaintiff. Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985). A Rule 12(b)(6) motion will be granted only when it is certain that no relief could be granted under any set of facts that could be proved by the plaintiff. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).
A pro se complaint, "however inartfully pleaded," must be held to no less stringent standards than formal pleadings drafted by lawyers" and can only be dismissed for failure to state a claim if it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (quotingConlev v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L. Ed.2d 80 (1957)).
C. Discussion as to Whether Defendant's Amended Counterclaim States Various Claims Upon which Relief Can Be Granted
1. Count I — Count I of Defendant's amended counterclaim claims defamation and the key allegation is in paragraph 85, which states specifically, "Bemart [previously identified as Executive Vice President of Plaintiff Securelnfo] intentionally and falsely stated to Bill Lynch [of Siemens Corporation, a potential business partner for Plaintiff] that Bukstel had been terminated from his employment with Securelnfo" (alterations added).
Defendant alleges in paragraph 80 that this conversation was held on September 18, 2002, and the falsity is apparently, according to the allegations in paragraph 86, that Defendant was not terminated until September 27, 2002. BuksteFs Amended Complaint does not allege why the nine days variance between the date of the statement and the effective date of termination is material, and from Defendant's own testimony at the preliminary injunction hearing, it appears that Defendant was, in fact, terminated on September 18, 2002, but this termination was temporarily rescinded and rescheduled for September 27, 2002. Thus, it appears that the statement alleged in paragraph 85 was true, and it is, of course, hornbook law that truth is a complete defense to a claim of defamation. See, e.g., Medico v. Time, Inc., 643 F.2d 134, 137 n. 7 (3d Cir. 1981) (citing RESTATEMENT (SECOND) OF TORTS § 581A (1977)). Therefore, Count I of the counterclaim must be dismissed.
2. Count II, Wrongful Termination — Defendant cites no facts or legal principle that gave Defendant any guarantee of employment by Plaintiff and there is nothing in the counterclaim, or in any other aspect of this case including the evidence from the preliminary injunction hearing, which would allow the Court to conclude that there was a prohibition on Plaintiff terminating Defendant. In other words, Defendant's employment was completely "at will" and therefore Defendant's counterclaim for wrongful termination must be dismissed.
Although Bukstel, in his original counterclaim, accurately cites Pennsylvania law that a cause of action exists for wrongful discharge in violation of public policy, these cases are distinguishable and there is no violation of public policy related to Plaintiffs employment of Defendant or Plaintiffs termination thereof. Rothrock held that public policy is violated where an employee is terminated for refusing to dissuade a subordinate employee from pursuing a workers' compensation claim; Shick held that public policy is violated where an employee is terminated for having filed a workers' compensation claim. Nor does Bukstel's Amended Counter claim appear to allege facts comparable to those cases outside the workers' compensation context wherein Pennsylvania courts found public policy violations. See, e.g., Highhouse v. Avery Transp., 660 A.2d 1374 (Pa.Super. 1995) (holding that an employer violates public policy by terminating an at-will employee for filing an unemployment compensation claim); Kroen v. Bedway Sec. Agency, Inc., 633 A.2d 628 (Pa.Super. 1993) (holding that an employer violates public policy by discharging an employee who refuses to submit to a polygraph test);Field v. Phila. Elec. Co., 565 A.2d 1170 (Pa.Super. 1989) (holding that an employer violates public policy by releasing a whistleblower-employee who reported, as was his statutory duty, nuclear power violations); Reuther v. Fowler Williams, Inc., 386 A.2d 119 (Pa.Super. 1978) (holding that an employer violates public policy by terminating an employee who had taken time off in order to serve jury duty).
See Docket No. 22, citing Rothrock v. Rothrock Motor Sales, Inc., 810 A.2d 114 (Pa.Super. 2002) and Shick v. Shirey, 716 A.2d 731 (Pa. 1998).
3. Count III, Breach of Contract — Defendant's Breach of Contract claim is premised on Plaintiffs alleged breach of the employment agreement negotiated and accepted by John Linton, Plaintiffs Chief Operations Officer. As Defendant alleges, Linton's promises of stock certificates induced him to continue his employment relationship with Securelnfo, and these promises went unfulfilled. According to Bukstel, "[Securelnfo] and third party defendants have breached contracts for stock, wage, and commission compensation." (Def.'s Mot. Opp'n, Docket No. 76, ¶ 24.)
SecureInfo responds that the compensation Defendant seeks either already has been provided or was never earned. (Pl.'s Reply Mem., Docket No. 53, at 7-8.) In particular, SecureInfo argues that Defendant's receipt of a subsequent paycheck equaled an implicit acceptance of and acquiescence to to Securelnfo's representations regarding contractually owed compensation; in its supporting memoranda, SecureInfo emphasizes that Defendant failed to deny this exact argument contained within Plaintiffs original complaint. Id. This Court notes that Defendant's Amended Answer answers as follows, "14. Denied. Securelnfo did not attempt to resolve employment disputes in good faith. Amount of wages owed was incorrect." (Def.'s Am. Answer, Docket No. 70, ¶ 14) (emphasis added). Given that the parties dispute both the contractual terms and the satisfaction thereof, this Court will deny Plaintiffs Motion to Dismiss this Count.
4. Count IV, Conspiracy to Terminate Defendant's Employment, and Count V, Conspiracy to Unlawfully Withhold Compensation — These Counts must be dismissed because as Plaintiff persuasively demonstrates in its brief, pages 10-12, and in an earlier brief (Docket No. 53), pages 8-9, there can be no claim of conspiracy, because as noted in other sections of this Memorandum, the underlying acts are not unlawful. Plaintiff had the right to terminate Defendant, and there is no adequate claim for wrongfully withholding compensation. Any claim relating to Defendant's claim for compensation is subsumed within Count III, for breach of contract. In addition, the Defendant's counterclaim is only against SecureInfo and, of course, a corporation cannot conspire with itself. See, e.g., Jackson v. T N Van Serv., No. 99-1267, 2000 U.S. Dist. LEXIS 6210, at *16-18 (E.D. Pa. May 9, 2000). Although Defendant's pleadings suggest that the conspiracy was between SecureInfo and several of its officers and/or directors, it is clear that a corporation cannot conspire with its own employees, and therefore, Bukstel has failed to state a claim for conspiracy.
5. Count VI — Defendant's Amended Counterclaim contains no Count VI.
6. Count VII, Intentional Infliction of Emotional Distress — The tort of intentional infliction of emotional distress requires an allegation of "extreme or clearly outrageous" conduct. Hare v. H R Indus., Inc., Nos. 02-1996, 02-2487, 02-3284, 2003 U.S. App. LEXIS 10304, at *120 (3d Cir. May 22, 2003). The Court finds that Bukstel has adequately pleaded this claim by his allegations for provisions for health insurance and his claim that SecureInfo cancelled his health insurance coverage in an outrageous manner with the purpose of inflicting emotional distress on Defendant, particularly in view of the serious health situation of his young daughter Defendant's allegations are sufficient to go forward as to Count VII.
While Bukstel's Amended Counterclaim refers only to general physical harm suffered by his family and contains no specific reference to the serious medical situation of his young daughter, his original counterclaim mentioned her health. At the Preliminary Injunction hearing, there were additional references to her medical condition. Furthermore, Defendant's latest motion and memorandum in opposition to Plaintiffs Renewed Motion to Strike and Dismiss the Amended Counterclaim states, "SecureInfo and VAST LLC knew Bukstels' [sic] had a daughter and wife with cancer diagnoses." (Docket No. 76, ¶ 35.) This claim satisfies liberal notice pleading.
7. Count Vin, Tortious Interference — To demonstrate a prima facie case for tortious interference with existing contractual relations, a plaintiff must allege: (1) the existence of a contractual relationship; (2) the defendant's intent to harm the plaintiff through interference with its contractual relations; (3) the impropriety of the interference; and (4) resultant harm. InterVest, Inc. v. Bloomberg. L.P., 340 F.3d 144, 168 n. 10 (3d Cir. 2003) (citing Windsor Sees., Inc. v. Hartford Life Ins. Co., 986 F.2d 655, 663 (3d Cir. 1993)). Defendant's pleadings regarding his claim for tortious interference with existing contractual relations currently are insufficient to withstand a Motion to Dismiss because, among other reasons, Defendant does not allege the existence of a contractual relationship. According to the Amended Counterclaim, the Veterans Administration merely is a "prospective client" of SkyFrames Corporation (of which Defendant is a shareholder). Absent a preexisting contractual relationship, Plaintiffs Chief Operations Officer John Linton's alleged communications and representations regarding VSAT satellite antennas could not constitute tortious interference with an existing contract.
The Court notes that Pennsylvania recognizes claims for intentional interference with prospective contractual relationships. Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494, 529-30 (3d Cir. 1998). In order to prevail on his claim for intentional interference with prospective contractual relations, Bukstel must prove:
(1) . . . prospective contractual relation between [himself] and a third party;
(2) purposeful action on the part of [Securelnfo] to prevent the prospective relation from occurring;
(3) [t]he absence of a privilege or justification on the part of [Securelnfo];
(4) the occasioning of actual legal damage as a result of [Securelnfo's] conduct; and
(5) . . . a reasonable likelihood that the relationship would have occurred but for the interference of [Securelnfo].Id. at 530 (citing Pennsylvania cases). Presuming that Defendant intended to plead a claim of intentional interference with prospective contractual relations, Defendant's pleadings currently are insufficient to withstand a Motion to Dismiss because, among other reasons, Defendant does not allege a reasonable likelihood that the relationship with the Veterans Administration would have occurred but for the alleged interference of Securelnfo.
This Court will grant Plaintiffs Motion to Dismiss Count VIII; however, the motion is granted without prejudice, and Defendant is given leave to amend his claim both to specify which theory of tortious interference he alleges and to plead the requisite facts, if he can do so within the provisions of Rule 11, F.R.Civ.P.
8. Count DC, Breach of Fiduciary Duty — This count must be dismissed because this Court concludes that SecureInfo owed no fiduciary duty to Defendant. Defendant's Amended Counterclaim alleges that since Plaintiff failed to deliver stock certificates supposedly promised him, Plaintiff has breached its fiduciary duty of care. However, Defendant does not provide any cases or statutes that support his argument that an unfulfilled promise to deliver stock naturally constitutes a breach of a fiduciary duty. This Court notes that an employer generally does not owe a fiduciary duty to its employees. See, e.g., Ibar v. Field, No. 97-5211, 1999 U.S. Dist. LEXIS 10069, at *13 (S.D.N.Y. July, 6, 1999). Absent a fiduciary relationship between the parties, there could be no subsequent fiduciary duties owed among them; absent fiduciary duties, there could be no breach thereof. This Court will dismiss this count with prejudice.
An appropriate order follows.
ORDER
AND NOW, this ___ day of October, 2003, upon consideration of Defendant's Amended Counterclaim (Docket No. 70), Plaintiffs Renewed Motion to Strike and Dismiss Defendant's Amended Counterclaim or, in the Alternative, for Summary Judgment (Docket No. 71), and Plaintiffs Memorandum of Law in Further Support of Its Renewed Motion to Strike and Dismiss Defendant's Amended Counterclaims or, in the Alternative, for Summary Judgment (Docket No. 81), it is hereby ORDERED that Plaintiffs Renewed Motion to Strike and Dismiss Defendant's Amended Counterclaim or, in the Alternative, for Summary Judgment is:
1. GRANTED WITH PREJUDICE as to Counts I, II, IV, V, and DC;
2. GRANTED WITHOUT PREJUDICE as to Count VIE, with leave to amend within ten (10) days; and
3. DENIED as to Counts III and VII.
Furthermore, Defendant is granted leave to serve additional non-duplicative document requests that he asserts are relevant on the Counts of the counterclaim that are going forward within ten days. Plaintiff must file any objections within ten days of service, and any disputes must be discussed between the parties within ten days after service of any objections, and any Motion to Compel must be filed no later than ten (10) days thereafter.