United States District Court, E.D. Virginia, Alexandria Division
MATTER comes before the Court on Defendant Bowhead Logistics
Solutions, LLC's ("Defendant") Motion to
Dismiss the Complaint under Federal Rule of Civil Procedure
People, Technology, and Processes, LLC ("Plaintiff"
or "PTP") is a Florida small business that provides
specialized Information Technology services. Defendant is an
Alaskan company headquartered in Alexandria, Virginia, that
provides a broad range of services to aerospace and defense
customers. In 2014, the Government Services Administration
awarded Bowhead a government-wide acquisition contract called
the One Acquisition Solution for Integrated Services (OASIS).
Around the same time period, the U.S. Army announced that it
would purchase field support services by way of a task order
under the OASIS contract.
and Defendant worked together to compete for that task order,
which was awarded to Defendant in July 2015. Thereafter,
Defendant executed subcontract agreements with Plaintiff and
with three other subcontractors. Under the subcontract
between Plaintiff and Defendant, which took effect on
February 12, 2016, Plaintiff was to provide IT professionals
to various locations in the United States and abroad. The
subcontract required that all personnel possess an active
security clearance, as these employees would handle
classified government information. The subcontract also
required that Defendant pay for Plaintiff's services
within thirty days of receiving an invoice for those
after they began performing under the subcontract, it came to
the parties' attention that one of the IT professionals
who had been hired did not have an active security clearance.
Plaintiff alleges that Defendant was aware that this employee
lacked the proper clearance and that Defendant told Plaintiff
to continue processing the employee's clearance, and to
ensure that all future hires have the required clearance. Two
months later, in October 2016, the parties learned that a
second employee had been placed on the contract without an
to the Plaintiff, Defendant consistently failed to pay its
invoices within the thirty days required by the subcontract.
Plaintiff states that it raised the issue of payment delays
with Defendant in July 2016, and that, in mid-November 2016,
Plaintiff's CEO threatened to raise the issue with the
Small Business Administration. On November 25, 2016,
Defendant issued a notice of termination of the subcontract.
In its notice, Defendant claimed that Plaintiff had defaulted
on its obligation to provide personnel with the required
security clearance. Defendant stated that it considered this
a material and incurable breach of the subcontract. Plaintiff
contends that there was no default, and that, in any event,
Defendant was required to provide a proper cure notice to
Plaintiff before terminating the subcontract for default.
alleges that shortly after the termination of the
subcontract, Defendant, along with the other subcontractors,
recruited and hired Plaintiff's employees.
Plaintiff's employees were bound by non-competition
agreements, and Plaintiff claims that it notified Defendant
about these agreements and demanded that Defendant stop
recruiting its employees. According to Plaintiff, Defendant
and the other subcontractors hired twenty-six of Plaintiff s
employees, diverting millions of dollars in contract revenue
filed an eight-count complaint against Defendant on March 3,
2016. Plaintiff alleges the following counts: (I) breach of
contract; (II) breach of the implied covenant of good faith
and fair dealing; (III) quantum meruit; (IV)
tortious interference with existing contract; (V) tortious
interference with business expectancy; (VI) business
conspiracy under sections 18.2-499 and 18.2-500 of the
Virginia Code; (VII) declaratory judgment; and (VIII) partial
specific performance. Defendant has moved to dismiss the
complaint under Federal Rule of Civil Procedure 12(b) (6) for
failure to state a claim upon which relief can be granted.
For the following reasons, the claims contained in Counts II,
V, VI, VII, and VIII fail to state a claim upon which relief
can be granted and are therefore dismissed.
Rule of Civil Procedure 8(a)(2) requires that a complaint
contain "a short and plain statement of the claim
showing that the pleader is entitled to relief, in order to
give the defendant fair notice of what the claim is and the
grounds upon which it rests." Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal citation and
quotations omitted). To survive a motion to dismiss under
Rule 12(b)(6), a complaint must contain "sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal citation and
quotations omitted). Complaints are required to allege
"a plausible claim for relief" instead of
merely stating facts that leave open "the
possibility that a plaintiff might later establish
some set of undisclosed facts to support recovery."
McCleary-Evans v. Md. Dep't of Transp., State Highway
Admin.,, 780 F.3d 582, 587 (4th Cir. 2015) (emphasis in
Court finds that Plaintiff has presented a plausible claim
for relief in Count I (breach of contract), Count III
(quantum meruit, in the alternative), and Count IV
(tortious interference with existing contract). As to all
other counts, the Court finds that Plaintiff has not stated a
plausible claim upon which relief may be granted.
does not present a plausible claim for relief in Count II
(breach of the implied covenant of good faith and fair
dealing), because the failure to act in good faith gives rise
only to a cause of action for breach of contract and does not
amount to an independent tort. See Charles E. Brauer Co.,
Inc. v. NationsBank of Va., N.A., 466 S.E.2d 382, 385
(Va. 1996).Under Virginia law, every contract carries
an implied covenant of good faith and fair dealing, but a
claim for breach of that covenant is a claim for breach of
contract. Rogers v. Deane, 992 F.Supp.2d 621, 633.
Thus, the failure to act in good faith does not amount to an
independent tort, but gives rise only to a cause of action
for breach of contract. Id. As a result, Count II
should be dismissed.
does not present a plausible claim for relief in Count V
(tortious interference with business expectancy), because the
business expectancy that Plaintiff claims it had is too
attenuated to be viable. To state a claim for tortious
interference with a business expectancy, Plaintiff must show:
(1) a valid business expectancy; (2) that Defendant knew of
the expectancy; (3) that but for Defendant's
interference, Plaintiff would have realized the expectancy;
(4) that Defendant used improper means or methods to
interfere with the expectancy, and (5) that Plaintiff
suffered damages. Maximus, Inc. v. Lockheed Info. Mgmt.
Sys. Co., 493 S.E.2d 375, 378 (Va. 1997).
claims that it had a business expectancy in its ability to
transition the employees working on the subcontract to other
contracts and programs once the subcontract was terminated.
Plaintiff alleges that Defendant interfered with that
expectancy by bribing three of Plaintiff's employees and
inducing them to leave their employment with Plaintiff and
work for Defendant instead. However, Plaintiff fails to
identify future contracts or business expectancies with
specificity. Plaintiff states that it intended to transfer
three of its employees to a new program--the Aberdeen
Information Technology Support Services program,, in
Aberdeen, Maryland. But Plaintiff also claims that it lost
twenty-six employees to the Defendant and other
subcontractors. The complaint fails to state if and where the
remaining twenty-three employees would have transitioned.
Furthermore, Plaintiff has not identified a particularized
expectancy in the employees' willingness to transfer to
this new program. Plaintiff's generalized allegation that
it planned to transfer employees to substitute contracts and
programs is insufficient to state a claim of tortious
interference with business expectancy. As a result, Count V
should be dismissed.
does not present a plausible claim to relief in Count VI
(business conspiracy), because Count VI is not pleaded with
particularity. A business conspiracy cause of action arises
when two or more persons "combine, associate, agree,
mutually undertake or concert together for the purpose of
willfully and maliciously injuring another in his reputation,
trade, business, or profession by any means whatsoever."
Va. Code. Ann. § 18.22-499. Business conspiracy must be
pleaded with particularity, and with more than mere
conclusory language. Gov't Employees Ins. Co. v.
Google, Inc., 330 F.Supp.2d 700, 706 (E.D. Va. 2004)
(citing Bay Tobacco, LLC v. Bell Quality Tobacco
Products, LLC, 261 F.Supp.2d 483, 499 (E.D. Va. 2003).
This heightened pleading standards prevents every business
dispute over unfair competition from becoming a business
conspiracy claim. Id.
VI alleges that Defendant, along with the other
subcontractors with whom it executed subcontract agreements,
"wrongfully combined, associated, agreed, concerted
together, and undertook [their] interference with PTP's
contracts, and also with PTP's contractual expectancy,
for the purpose of willfully and maliciously injuring PTP in
its reputation, trade, business, or profession."
Although Count VI incorporates all the facts alleged in the
complaint, Plaintiff does little more than quote section
18.22-499 of the Virginia Code in this claim. Plaintiff
alleges that Defendant and others compelled Plaintiff s
employees to breach their non-competition agreements, but it
fails to explicitly allege when and where the business
conspiracy was formed, what exactly the alleged conspirators
agreed upon, and how the alleged conspirators ...