United States District Court, E.D. Virginia, Newport News Division
For Benjamin Fuller, David Krivonak, Plaintiffs: Jonah Eric McCarthy, LEAD ATTORNEY, Akin Gump Strauss Hauer & Feld LLP, Washington, DC; Brittani S. Head, Akin Gump Strauss Hauer & Feld LLP (DC), Washington, DC; James Eamonn Sherry, Jeffrey Matthew King, PRO HAC VICE, Akin Gump Strauss Hauer & Feld LLP (DC-NA), Washington, DC.
Hunter Aliff, Defendant, Pro se, Mechanicsville, VA.
For Kenneth Lamberti, Defendant: Elliott Bruce Bender, LEAD ATTORNEY, Richmond, VA.
For Wayne Miller, Defendant: William Mark Dunn, LEAD ATTORNEY, Shaheen & Shaheen, Richmond, VA.
For Michael Caleb Ingroff, Defendant: James Broome Thorsen, Marchant Thorsen Honey Baldwin & Meyer LLP, Richmond, VA.
Raymond A. Jackson, United States District Judge.
MEMORANDUM OPINION AND ORDER
Before the Court are three Motions to Dismiss pursuant to Rule 12(b)(6) of Federal Rules of Civil Procedure filed by defendants Kenneth Lamberti, Michael Caleb Ingroff, and Wayne Miller. The motions have been fully briefed and are ripe for judicial determination. For the reasons stated herein, Defendant Lamberti's Motion to Dismiss is DENIED, and Defendants Ingroff and Miller's Motions to Dismiss are GRANTED IN PART AND DENIED IN PART.
I. FACTUAL BACKGROUND
On April 30, 2013, Plaintiffs Benjamin Fuller and David Krivonak filed a Complaint against Defendants Hunter Aliff, Kenneth Lamberti, Wayne Miller, Michael Scott Wingfield, Michael Caleb Ingroff, John Does 1 & 2, and Jane Does 1 & 2. Plaintiffs asserted federal jurisdiction based on diversity of citizenship, 28 U.S.C. § 1332, and raised four counts against all defendants under Virginia common law: 1) Battery, 2) Assault, 3) Intentional Infliction of Emotional Distress, and 4) Conspiracy.
The following facts are alleged in Plaintiffs' Complaint. In May 2011, they were vacationing with friends at a private home on Gwynn's Island in Mathews County, Virginia. Compl. ¶ 17. During the evening of May 7, 2011, Plaintiffs were socializing around a bonfire on the beach behind the house where they were staying. Compl. ¶ 18. During the late evening of May 7, 2011, or the early morning of May 8, 2011, Aliff, Lamberti, and Miller came over from a nearby house and joined Plaintiffs around the bonfire. Compl. ¶ 19. At some point, Aliff, Lamberti, and Miller told Plaintiffs that they " seemed queer," and asked Plaintiffs whether they were gay. Compl. ¶ 20. Plaintiff Fuller responded that he was. Compl. ¶ 21. Aliff, Lamberti, and Miller then started to harass Plaintiffs with hostile, taunting, and vulgar comments and questions, such as asking whether they " like to suck dick" and refusing to drink from the same bottle as Plaintiffs because they knew where Plaintiffs' " mouths have been." Compl. ¶ 22.
Plaintiffs observed Aliff, Lamberti, and Miller using their cellphones to send what appeared to be text messages. Compl. ¶ 23. Plaintiffs assert that on information and belief, Aliff, Lamberti, and Miller used their cellphones to inform the other Defendants that Plaintiffs were gay and to encourage the remaining Defendants to join them at the beach for the purpose of further harassing Plaintiffs. Compl. ¶ 24. Shortly thereafter, the remaining Defendants came to the beach from a nearby house. Compl. ¶ 25. Although they had never met Plaintiffs before, they arrived at the beach making comments such as " Are these the faggots you were talking about?" and " I've never seen a real faggot before." Id. Minutes later, Aliff, Lamberti, Ingroff, Wingfield, and John Does 1 & 2, acting together, physically attacked Plaintiffs by punching, kicking, and pushing them, pinning them to the ground, striking Fuller with a stone or other hard object and holding ...