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Bailey v. Washington Area Council of Engineering Laboratories

United States District Court, W.D. Virginia, Harrisonburg Division

September 21, 2016



          Elizabeth K. Dillon United States District Judge.

         Plaintiff Jeffrey William Bailey, proceeding pro se, filed this action against the Washington Area Council of Engineering Laboratories (WACEL), a private association of engineering laboratories, inspection agencies, and public building officials that provides certification and accreditation for engineers and engineering firms in the greater Washington, D.C., area. (Pl.'s Am. Compl., Dkt. No. 45, at 9; Compl. Ex. 4, Dkt. No. 2-4, at 2.) Bailey's third amended complaint[1] asserts claims titled as breach of fiduciary duty and defamation claims, arising from WACEL's decision to terminate his professional certifications. The third amended complaint also includes language related to federal claims previously dismissed by this court. (See Order, Dkt. No. 44, at ¶ 5 (dismissing Bailey's federal claims).)

         Pursuant to 28 U.S.C. § 636(b)(1)(B), this matter was referred to United States Magistrate Judge Joel C. Hoppe for a recommended disposition of WACEL's motion to dismiss Bailey's third amended complaint. (Dkt. Nos. 47, 45.) WACEL argued that because Bailey's third amended complaint went beyond the scope of this court's September 21, 2015 order granting him leave to amend (which WACEL claimed only allowed Bailey to delete certain defendants), was filed two days after the deadline, and had other procedural flaws, [2] the court should dismiss it. WACEL also argued that Bailey's federal claims had been dismissed with prejudice, and that he failed to state plausible claims for breach of fiduciary duty or defamation. (Def.'s Mem. Supp. Def.'s Mot. to Dismiss, Dkt. No. 48.) Neither party requested a hearing, and after considering the briefs, the magistrate judge filed a report and recommendation on July 28, 2016, recommending that the motion be granted in part and denied in part. (Report, Dkt. No. 58.)

         The report first rejected WACEL's argument that Bailey's claims should be dismissed on procedural grounds. The magistrate judge determined that Bailey substantially complied with the September 21 order, which was not limited as WACEL suggested, and that the late filing and procedural defects had little practical significance and caused no prejudice to WACEL. Nevertheless, the report recommended that, to the extent Bailey's third amended complaint attempted to reassert federal claims dismissed with prejudice, those claims should be struck pursuant to Federal Rule of Civil Procedure 12(f). The magistrate judge further determined that because WACEL's allegedly defamatory statements were not sufficiently alleged, and because Bailey failed to allege publication or the requisite intent, Bailey's defamation claim should be dismissed pursuant to Rule 12(b)(6).

         However, interpreting WACEL's first claim as one for denial of a common law right to fair procedure, the magistrate judge recommended that it should be allowed to proceed. Noting that there was some question as to the applicable law, the magistrate judge determined that the alleged lack of notice and procedure WACEL afforded Bailey before terminating his certifications plausibly gave rise to a denial of fair procedure claim under both Maryland and Virginia common law.

         WACEL objected to the report's disposition of Bailey's fair procedure claim. (Def.'s Objs., Dkt. No. 60.) The court has reviewed the report and WACEL's objections. For the reasons set forth herein, the court will adopt the report in full, and will grant in part and deny in part WACEL's motion to dismiss. Specifically the court will dismiss Bailey's defamation claim, strike any previously dismissed federal claims, and allow Bailey's denial of fair procedure claim to move forward.

         I. BACKGROUND

         The court adopts the recitation of facts and procedural background as set forth in the report. (Dkt. No. 58, at 1-5.) Because the court is ruling on a motion to dismiss, it accepts as true the well-pleaded facts set forth in the third amended complaint, e.g. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572 (2007), and the documents previously filed with the court and incorporated into Bailey's third amended complaint. (See Dkt. No. 45, at 9.) Because Bailey is proceeding pro se, the court will also consider any factual allegations raised in Bailey's opposition brief (Dkt. No. 53). See, e.g., Davis v. Bacigalupi, 711 F.Supp.2d 609, 615 (E.D. Va. 2010).


         A. Standard of Review

         Under Rule 72(b)(2), a party may object to a magistrate judge's recommended disposition of a case within fourteen days of receiving the proposed findings and recommendations. Accord 28 U.S.C. § 636(b)(1)(C). The court must review de novo any part of the recommendation to which a party has properly objected, and “may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3); accord 28 U.S.C. § 636(b)(1)(C); United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007). Any part of the report to which a party has not objected is reviewed only for “clear error on the face of the record.” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

         B. Defamation and Federal Claims

         Bailey has not objected to the recommended disposition of his defamation claim and federal claims. Finding no clear error in the magistrate judge's analysis, the court concludes that the report should be adopted and WACEL's motion to dismiss granted with respect to those claims.

         C. Denial of ...

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