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Gregory P. Jellenek, OD & Associates, PC v. Joseph

United States District Court, E.D. Virginia, Richmond Division

June 26, 2014

ANDREA R. JOSEPH, Defendant.


JOHN A. GIBNEY, Jr., District Judge.

This matter comes before the court on the plaintiffs motion to dismiss the defendant's counterclaims under Federal Rule of Civil Procedure 12(b)(6). (Dk. No. 9.)

The plaintiff filed suit against the defendant in March 2014, alleging a host of claims arising from the messy dissolution of the parties' previous business relationship. (Dk. No. 1.) The defendant promptly counterclaimed, alleging (1) tortious interference with economic relationship and (2) breach of contract. Because the plaintiff alleges factually sufficient, legally complete counterclaims, the Court will DENY the plaintiffs motion to dismiss.


The plaintiffs optometry practice provides services at locations throughout Virginia and (previously) Maryland. At the time the saga in question began, the plaintiff, Jellenek, operated a practice at Andrews Air Force Base (AAFB) in Maryland under a lease with National Vision, Inc., a nation-wide optical retailer. Jellenek hired the defendant, Joseph, to work as an optometrist at his AAFB practice in February 2012. Joseph alleges that during those negotiations, Jellenek agreed to, among other things: (1) provide her with part-time relief (specifically, another optometrist to cover her lunch break and Saturdays) and (2) ten days of paid personal time off per year. Joseph accepted the position on those agreed-upon terms.

In June 2012, Jellenek presented Joseph with an Employment Agreement, which provided for a one-year term of employment dating from October 2012 to October 2013. There were several notable variations between that written contract and the oral agreement Joseph had originally agreed to (and was currently working under). First, the contract limited Joseph to a sum of four days of paid time off during that upcoming 12-month span, a much-diminished allowance that Jellenek enforced when challenged. Second, the contract did not contain any mention of Joseph's previously-promised entitlement to part-time relief.

During Joseph's employment with Jellenek, the AAFB practice was-to put it charitably-poorly run, resulting in Joseph's disenchantment with her newfound employer, general unhappiness among the practice's other employees, and rising concern on the part of Jellenek's leaseholder, National Vision. Joseph submitted her letter of resignation on June 12, 2013, officially resigning effective July 3, 2013. Jellenek's business relationship with National Vision continued to deteriorate, and on October 9, 2013, National Vision terminated its lease with Jellenek. By the end of November 2013, Jelleneck had abandoned the AAFB location.

The AAFB location did not stay vacant long. Joseph entered into a lease with National Vision on December 1, 2013, and began her practice in that same clinic. On December 19, Jellenek sent Joseph a "cease and desist" letter, accusing her of conspiring with National Vision to terminate Jellenek's previous lease.[1] When Joseph refused to close her AAFB practice-or to terminate her agreement with National Vision-Jellenek made good, filing suit in March 2014.


A Rule 12(b)(6) motion to dismiss gauges the sufficiency of a complaint without resolving any factual discrepancies, testing the merits of the claim or judging the applicability of any defenses raised by the non-moving party. Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). A 12(b)(6) motion considers whether the non-moving party's description of the facts, if assumed to be completely true, would entitle her to the requested relief. Unus v. Kane, 565 F.3d 103, 115 (4th Cir. 2009). To survive a 12(b)(6) motion to dismiss, a complaint must contain facts that, when accepted as true, "state[s] a claim to relief that is plausible on its face." Ashcroft v. lqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556 ).


Joseph's counterclaims survive Jellenek's motion to dismiss. As explained in greater detail below: (1) Joseph's counterclaim for tortious interference, as amended, properly alleges facts sufficient to support each of that tort's requisite elements, and (2) a deferential reading of Joseph's asserted facts supports her counterclaim for breach of contract.

A. Tortious Interference with Economic Relationship

To establish tortious interference with economic relationship, Joseph must plead plausible factual support to establish her claim that Jellenek undertook: "(1) intentional and willful acts; (2) calculated to cause damage to [Joseph] in [her] lawful business; (3) done with the unlawful purpose to cause such damage and loss, without right or justifiable cause on the part of the defendants (which constitutes ...

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