IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION
ANTHONY MARCANTONIO
Plaintiff,
v.
KYLE DUDZINSKI,
LUKE PAPENDICK,
CHARLES ROMMEL,
DAVID INGRAHAM,
and
JACOB PEARCE,
Defendants.
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Case No.: 3:15-CV-00029
BRIEF IN SUPPORT OF CHARLES ROMMEL'S MOTION TO DISMISS
Comes now, Defendant Charles Rommel ("Defendant" or "Rommel"), by counsel, and
submits these grounds in support of his Motion to Dismiss:
PRELIMINARY STATEMENT
Plaintiff has filed a federal lawsuit based on his voluntary participation in a team-building
tradition known as Welcome Week. At this stage of litigation Rommel is required by federal
rule to treat the allegations of the Complaint as true. The Complaint nonetheless fails because
Plaintiff has wrongly attempted to import Virginia's business torts to the school context, and
because it contains only scant allegations regarding Rommel, none of which plausibly plead any
tort by him.
Virginia's business torts of tortious interference and business conspiracy are not
applicable in this school context. Plaintiff has not alleged any valid contract with the University
of Virginia ("UVA" or "the University"), and there is no valid claim that Defendant interfered
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with a contract. Moreover, from the face of the Complaint, it is clear that Plaintiff chose to leave
UVA’s swim team, and the school altogether, as there is no allegation that Marcantonio was
asked to leave either the swim team or the school, and the allegations of the Complaint reveal
that UVA took steps to enable Marcantonio to continue practicing. (Compl. ¶ 37.) Indeed,
Plaintiff fails to allege multiple key elements of tortious interference and business conspiracy.
Plaintiff's omissions in pleading are not mere mistakes; these torts simply do not provide relief
for a student's frustrated swim and educational goals.
Plaintiff has further failed to allege the type of agreement and unity of purpose necessary
to constitute a conspiracy among the Defendants. This Court and the United States Supreme
Court have made clear that defendants are not vicariously liable for the actions of one another
unless the Plaintiff can allege an agreement for a conspiracy. At most, the Complaint alleges that
the Defendant engaged in parallel actions, or in occasional cooperation on discrete tasks, like
crafting a hyperbolic email invitation to a party. These actions do not go near alleging an
agreement for the broad and wide ranging conspiracy claimed.
Finally, while the Complaint recounts in detail certain events of Welcome Week, the
Complaint is vague and frequently silent when it ought to be recounting "enough facts to state a
claim to relief that is plausible on its face" against Rommel. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Through the twenty-eight
page Complaint, only seven non-jurisdictional allegations use Charles Rommel's name. The
Complaint lapses into legal conclusions, asserting that unidentified Defendant's "threatened"
Plaintiff. Similarly, Plaintiff's claims that he was forced to take actions are, on close reading,
conclusory allegations that equate social discomfort with legal force.
Federal pleading standards require more than boiler plate legal allegations and boorish
behavior at a college party to subject a classmate to civil liability, let alone potential treble and
2
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punitive damages. On review, the Complaint fails to set out requisite facts, and it should be
dismissed as to Charles Rommel.
ALLEGATIONS OF THE COMPLAINT
This matter centers around the 2014 "Welcome Week" among the men's swim team at the
University of Virginia. Welcome Week was described to Plaintiff as being "hosted by the
upperclassman swimmers" and a time for "team bonding." (Compl. ¶23.) The relevant factual
allegations are set out at length in Defendant Kyle Dudzinski's Motion to Dismiss. Notably,
however, the twenty-eight page Complaint makes only seven non-jurisdictional allegations that
use Charles Rommel's name, and they essentially only claim he did the following five things:
•
Rommel helped author an email sent on or about Aug. 26, 2014 under the
pseudonym "Mr. Mean" (Compl. ¶24);
•
Rommel teased and cursed the first year swimmers; (Compl. ¶26, iv, xxiii, xxiv)
•
Rommel yelled into a room where the first year swimmers were sequestered
during the party (Compl. ¶26, iv, xxiv);
•
Rommel gave Marcantonio an insulting nickname modelled after a disgraced
politician (Compl. ¶26, xxxv);
•
Rommel threw a bottle onto the ground and it broke, causing glass shards to hit an
individual who is not a party to this lawsuit (Compl. ¶26, xix); and
•
Rommel asked Marcantonio offensive questions, to which Marcantonio – not any
of the Defendants – responded with a racial slur.1 (Compl. ¶26, xxxvi.)
1
Rommel denies the allegations as set out in Complaint, and in particular this allegation.
Rommel has already contacted Plaintiff's counsel regarding the false allegation related to race,
informed him unequivocally that Rommel did not make the statements contained in this
allegation, and reminded him of his duties under Federal Rule of Civil Procedure 11 to allege
only facts on which Plaintiff possesses a good-faith basis.
3
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The remainder of the Complaint makes various allegations about "retaliation" and
unidentified "threats" that are not attributed to any individual, but instead are attributed to
"defendants" or, at times, an "upper classman." (See, e.g., Compl. ¶28.) The Complaint
similarly blurs allegations against unidentified "Defendants" with allegations as to nonparties,
including that:
•
"By this time all of the first years, including plaintiff, were trapped inside and
because of what had gone on before since his arrival at the Swim House, the yelling,
screaming, obscenities and threatening tone and words being used by the upperclassman,
plaintiff was beginning to fear for his safety." (Compl. ¶ 26, ix.)
•
"defendants and those they were instigating . . . had locked them into a
bathroom." (Compl. ¶ 26, xx.)
Notably, the Complaint does not allege that Marcantonio was pressured to drink alcohol,
nor does it allege that he drank alcohol. The Complaint does not allege that Marcantonio
attempted to leave the party at the Swim House or that there was any physical restraint on
Marcantonio. Rather, it equates Marcantonio's desire to fit in and any attendant social pressure
with 'being forced' to take actions. The Complaint does not allege that Marcantonio broke any
school policy, nor does it allege that Marcantonio was barred from swimming for UVA, that he
was denied any opportunity to compete, or that he was forced to leave the University or
withdraw from any classes.2
2
Although not alleged in the Complaint, Plaintiff enrolled at Northwestern University where he
is now a member of the swim team. See
http://www.nusports.com/news/2015/7/1/MSWIM_0701154940.aspx; see also Philips v. Pitt
County Mem. Hospital, 572 F.3d 176 (4th Cir. 2009) (at the 12(b)(6) stage, court “may properly
take judicial notice of matters of public record”).
4
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STANDARD
"[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss."
Doe v. Washington & Lee Univ., Case No. 6:14cv00052, 2015 U.S. Dist. LEXIS 102426, at *3
(W.D. Va. Aug. 5, 2015) (unpublished) (quoting Iqbal, 556 U.S. at 679). The "plaintiff's
obligation to provide the 'grounds' of his entitle[ment] to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do."
Cominelli v. The Rector & Visitors of The Univ. of VA, 589 F. Supp. 2d 706, 712 (W.D. Va.
2008) (quoting Twombly, 550 U.S. 544 at 570 (internal citations omitted)). Rather, "a plaintiff
must sufficiently allege facts to allow the Court to infer that all elements of each of his causes of
action exist . . ." Schlegel v. Bank of Am., N.A., 505 F. Supp. 2d 321, 325 (W.D. Va. 2007)
(internal quotation omitted). Where a complaint fails to meet this standard, it should be
dismissed. Federal Rule of Civil Procedure 12(b).
ARGUMENT & AUTHORITIES
Defendant incorporates by reference the Motion to Dismiss filed by Defendant Kyle
Dudzinski and requests the Court dismiss the Complaint for the reasons set out in the brief in
support of Defendant Dudzinski's Motion to Dismiss, and as set forth below.
I.
Plaintiff Has Failed to Allege Facts Supporting the Requisite Elements of
Tortious Interference With Contract. (Count V.)
Virginia's business tort, allowing damages for tortious interference with contract, is not
applicable to this college setting. To state a prima facie claim under Virginia law for intentional
interference with contractual rights, a party must allege the (1) "existence of a valid contractual
relationship or business expectancy," (2) that Defendant knew of the business relationship, (3)
that Defendant engaged in "intentional interference inducing or causing a [4] breach or
termination of the relationship or expectancy" and resulting damage. Duggin v. Adams, 234 Va.
221, 225-26, 360 S.E.2d 832, 835 (Va. 1987) (brackets supplied, citing Chaves v. Johnson, 230
5
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Va. 112, 120, 335 S.E.2d 97, 102 (Va. 1985)); see also, Tharpe v. Lawidjaja, 8 F.Supp.3d 743,
770 (W.D. Va. 2014). Marcantonio cannot satisfy elements 1, 3 or 4.
Plaintiff alleges that he had a contract with the University arising from inducements to
come swim at UVA and the University's handbook, including the anti-hazing policy.
Marcantonio's claim fails because he has not alleged a contract between himself and UVA,
because the Complaint does not properly plead any interference on the part of Charles Rommel,
and finally – even if there were a contract – because there is no breach as Marcantonio was not
forced to leave either the swim team or UVA.
a.
Marcantonio Has Not Pleaded a Cognizable Contract. (Count V.)
Marcantonio has not alleged a cognizable contract under Virginia law and as such has not
met the threshold showing required for tortious interference. To adequately plead a claim for
tortious interference, Marcantonio must set out the terms of the contract he claims was disrupted.
Marcantonio's only allegations are that he was induced to come to UVA by statements that it
possessed a swim team with comradery, by the opportunity to be part of a highly competitive
swim team (Compl. ¶¶17, 19), and the University handbook, including an anti-hazing policy.
(Compl. ¶¶ 18-22.) Under established Virginia law, the inducements that the Complaint alleges
brought Marcantonio to UVA, as well as the University handbook, do not create a contract, and
thus they cannot support a claim for tortious interference with contract.
"Courts applying Virginia law routinely reject the notion that a 'Student Handbook'
creates a mutuality of engagement" sufficient to form a contract. Doe, Case No. 6:14-cv-0052,
2015 U.S. Dist. LEXIS 102426, at *3 (concluding handbook did not create mutuality of
obligation). Mere declarations or statements of policy on the part of the university do not give
rise to contract rights because "[i]n Virginia, in order for there to be a contract there must be an
absolute mutuality of engagement so that each party is bound and has the right to hold the other
6
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party to the agreement." Davis v. George Mason Univ., 395 F. Supp. 2d 331, 337 (E.D. Va.
2005) (finding George Mason Handbook does not establish a contract as "the Catalog amounts to
an unenforceable illusory contract because it purports to promise specified performance, but the
performance by GMU, the promissor, is entirely optional . . . ."); see also, Truell v. Regent Univ.
Sch. of Law, Civ. No. 2:04cv716, 2006 U.S. Dist. LEXIS 54294, *21, 2006 WL 2076769 (E.D.
Va. July 21, 2006) (unpublished) (law school handbook and manual did not form a contract).
Similarly, advertisements about a college that induce a student to attend a college do not supply
terms sufficient to create a contract. Dodge v. Trs. of Randolph-Macon Woman's College, 276
Va. 1, 3-4, 661 S.E.2d 801, 802 (2008). In Dodge v. Trs. of Randolph-Macon Women's College,
the Supreme Court of Virginia held that Randolph-Macon Women's College's advertisements as
an all-women's college, coupled with its academic catalog and actual enrollment papers, did not
give students a contractual right to an all-women's college education. This was the case where
the students pleaded that they accepted and matriculated according to the college's documents
that highlighted an all-women's education. Id. at 4-6, 661 S.E.2d 802-03.
In this case, there is nothing to indicate any "absolute mutuality of engagement" in the
handbook or anti-hazing policy. Moreover, like the advertisements in Dodge, a coach's positive
statements about UVA do not give rise to any kind of contract between Marcantonio and the
University. Marcantonio had no contract right in the University of Virginia's anti-hazing policy;
he had no contract right in the comradery of the swim team. The scant allegations of the
Complaint regarding Marcantonio’s personal expectations of his college experience are
insufficient to establish a contract that can support tortious interference with contract.
7
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b.
Even if There Were a Contract, There Are No Allegations that Charles
Rommel Engaged in Activity that Was Designed to Cause the Breach of a
Contract Between Marcantonio and UVA. (Count V.)
Nothing in the Complaint indicates that Rommel took steps that required Marcantonio to
leave the swim team or the University. Tortious interference is "predicated on the common law
duty to refrain from interfering with another's contractual and business relationships . . . ."
Dunlap v. Cottman Transmission Sys., LLC, 287 Va. 207, 218, 754 S.E.2d 313, 319 (Va. 2014).
Even if Marcantonio had properly alleged a contract, the Complaint fails to allege a claim for
tortious interference because it does not set out the requisite element that Defendant engaged in
"intentional interference inducing or causing a breach or termination of the relationship or
expectancy" and resulting damage. Duggin, 234 Va. at 225-26, 360 S.E.2d at 835.
The allegations of the Complaint regarding Rommel are that he cursed at a group of
students including Marcantonio, threw a bottle that broke and caused pieces to hit a third party,
and that Rommel asked Marcantonio offensive questions. These are actions that, on the face of
the Complaint, made Marcantonio uncomfortable. But nothing in the alleged actions actually
attributed to Charles Rommel suggests "intentional interference" with Marcantonio's status as a
student or a swimmer at UVA.
The Complaint contains other generalized claims that the defendants retaliated against
Marcantonio after he spoke to coaches about Welcome Week, and that he was threatened by
unidentified defendants after Marcantonio informed the Coach about the swim team party and
that Marcantonio then practiced by himself. But whether a statement is a threat is a legal
question. See, e.g., United States v. White, 670 F.3d 498, 507 (4th Cir. 2012) ("In determining
whether a statement is a true threat, [and thus does not receive First Amendment Protection] we
have employed an objective test so that we will find a statement to constitute a true threat if an
ordinary reasonable recipient who is familiar with the context ... would interpret [the statement]
8
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as a threat of injury" (first brackets supplied)). The Complaint does not plead the substance of
the supposed threats, nor does it identify the speaker – relying only on boilerplate language. This
is insufficient under federal pleading standards to properly allege that threats were made.
Twombly, 556 U.S. at 555. (Mere "labels and conclusions" and "formulaic recitation[s] of the
elements of a cause of action will not do.") If such bare allegations cannot allege a threat, they
also cannot serve as factual allegations supporting claims for tortious interference.
More fundamentally, tortious interference is premised on notions of unfair competition,
whereby a third party causes a plaintiff's contracting party to back away. C.f. 17th St. Assocs.,
LLP v. Markel Int'l Ins. Co., 373 F.Supp.2d 584, 601 (E.D.Va.2005) (“contact by the defendant
with the source of the plaintiff's business expectancy, direct or indirect, is a de facto prima facie
element of a claim for tortious interference with a business expectancy.”). There is no allegation
that Defendants contacted the University or took actions that caused UVA to sever ties with
Marcantonio. Marcantonio alleges that, at various points, Defendants attempted to have
Marcantonio break University policy. Yet there is no allegation that Marcantonio broke policy,
and there is no allegation that the University ever took corrective action against Marcantonio. In
short, there is nothing indicating that Defendants, and in particular Charles Rommel, caused the
University to discontinue a contract with Plaintiff.
c.
There Is No Allegation that UVA or Marcantonio Breached a Contract;
Voluntary Withdrawal from the University Is Not Sufficient to Establish
Tortious Interference. (Count V.)
Plaintiff's tortious interference with contract claims fails because he has not alleged an
actual breach of contract. "One of the requisite elements of the tort is proof that a defendant
intentionally interfered with the contract or expectancy and that the interference induced or
caused a breach of the contract or a termination of the expectancy." Fox v. Deese, 234 Va. 412,
429, 362 S.E.2d 699, 709 (Va. 1987) (trial court properly sustained demurrer where no allegation
9
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interference caused breach); Smith v. Logan, 363 F. Supp. 2d 804, 812 (E.D. Va. 2004) ("In
Virginia, breach of contract is an essential element of a claim for tortious interference."); see
also, Duggin v. Adams, 234 Va. at 225-26, 360 S.E.2d at 835. Nothing in the Complaint
indicates that the University of Virginia barred Marcantonio from swimming or competing. It is
clear from the face of the Complaint that Marcantonio was able to continue to swim as UVA
took steps to enable his continued practice. (Compl. ¶ 37.) Rather, Marcantonio chose to leave
the UVA Swim Team. Because UVA did not revoke his "swim contract," assuming that there is
a contract, Marcantonio cannot show the type of breach required to establish tortious
interference. C.f. CVLR Performance Horses, Inc. v. Wynne, 977 F. Supp. 2d 598, 603 (W.D.
Va. 2013) ("Plaintiff's claim for tortious interference with contract must fail, because Plaintiff
could not interfere with her own contract.").
The Complaint further equates Marcantonio's decision not to swim at UVA with his
decision to leave UVA. But there is no suggestion in the Complaint that Marcantonio was forced
to leave his studies at UVA. Marcantonio could have opted not to swim and continued to pursue
a University of Virginia degree, and the Complaint does not allege otherwise. Defendant
requests that the count for tortious interference be dismissed.
II.
Marcantonio's Claims for Common Law Conspiracy and Business Conspiracy
Fail. (Counts VIII, IX.)
a.
The Complaint Fails to Allege Any Unitary Purpose or Preconceived Plan
and Thus Fails to Plead An Essential Element of Both Virginia Common
Law and Business Conspiracy. (Counts VIII, IX.)
The Complaint fails to state allegations sufficient to allege that Charles Rommel joined in
a common law conspiracy and fails to even mention an essential element of Virginia common
law conspiracy.3 To allege a conspiracy under Virginia common law and statutory law, a
3
A conspiracy count cannot be sustained unless there is an underlying tort or wrong. William v.
AES Corp., 28 F.Supp.3d 553, 574 (E.D. Va. 2014). In the event the Court dismisses the claims
10
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plaintiff may not rely on mere allegations that defendant engaged in "parallel conduct, even
conduct consciously undertaken." Twombly, 550 U.S. at 557. See also, Feeley v. Total Realty
Management, 660 F.Supp. 2d 700, 712 (E.D. Va. 2009). Instead, in the complaint:
[t]he plaintiff must allege that the defendants combined together to
effect a 'preconceived plan and unity of design and purpose, for the
common design is the essence of the conspiracy.' Bull v.
Logetronics, Inc., 323 F.Supp. 115, 131 (E.D.Va.1971) (citations
omitted). In order to survive a motion to dismiss, plaintiff must at
least plead the requisite concert of action and unity of purpose in
more than "mere conclusory language." Lewis v. Gupta, 54
F.Supp.2d 611, 618 (E.D.Va.1999) (citing Bowman v. State Bank
of Keysville, 229 Va. 534, 331 S.E.2d 797, 802 (1985) (a
conspiracy claim asserted in mere conclusory language is based on
inferences that are not fairly and justly drawn from the facts
alleged)).
AWP, Inc. v. Commonwealth Excavating, Inc., No. 5:13CV031, 2013 WL 3830500, at *2-3
(W.D. Va. July 24, 2013) (analyzing civil conspiracy). See, CVLR Performance Horses, Inc.,
977 F. Supp. 2d at 605 (requiring same elements to plead business conspiracy claim).
i.
The Complaint Cannot Rely on Its Legal Conclusions and
Boilerplate Language. (Counts VIII, IX.)
Each of Plaintiff's conspiracy counts fails because it is alleged using conclusory language
that fails to set out "the requisite concert of action and unity of purpose . . . ." AWP, No.
5:13CV031, 2013 WL 3830500, at *2-3. In Count VIII, common law conspiracy, the Complaint
merely states that "each of these defendants conspired together and combined to do that which is
contrary to law, including hazing, assault, battery, false imprisonment, and other conduct against
the plaintiff. . . ." (Compl. ¶65.) Similarly, in Count IX, for Virginia business conspiracy, the
Complaint states "By the intentional and calculated destruction of plaintiff's valuable swim
contract with UVA, the defendants combined and conspired with each other, in committing the
above-described actions, to injure plaintiff in his business and property...." (Compl. ¶69.)
that form the predicates of the claimed conspiracy, Defendant asks that the Court dismiss the
associated conspiracy claim.
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Such conclusory pleading does not pass muster. For example, in William v. AES Corp.,
28 F. Supp. 3d 553, 575 (E.D. Va. 2014) the United States District Court for the Eastern District
of Virginia rejected a complaint that alleged that "Defendants knowingly and willfully conspired
and agreed among themselves to engage in supplying unreliable electric power in Cameroon, in
violation of the rights of Plaintiffs." In dismissing that claim, the Court noted that it contained
"only vague, conclusory allegations of conspiracy" and failed to "identify or detail any
agreement" between the defendants. Id.
In this case, the Complaint makes only conclusory allegations as to "the requisite concert
of action and unity of purpose[,]" for business conspiracy, and there is no purpose pleaded
whatsoever as to civil conspiracy.
ii.
The Factual Allegations of the Complaint Merely Indicate Parallel
Action and Do Not Rise to the Level of Alleging Any Unitary
Purpose or Preconceived Plan. (Counts VIII, IX.)
Plaintiff's conclusory pleading cannot be bolstered by factual allegations because the
factual allegations of the Complaint never rise above simple statements of concerted action.
Because the factual allegations show no unitary plan, they cannot sustain the conspiracy counts
of the Complaint. See Twombly, 550 U.S. at 557; Feeley, 660 F.Supp. 2d at 712.
The only allegation of actual cooperation that mentions Rommel by name is the assertion
at paragraph 24 that Rommel helped author an email with others. Plaintiff cannot bootstrap a
broad conspiracy to haze and interfere with Plaintiff's business interests to the mere act of
authoring an email. The remainder of the Complaint does nothing more to suggest an agreement
or unitary purpose. In paragraph 28, the Plaintiff claims that Kyle Dudzinski was a ringleader
"during the entire time spent at the Swim House" and that the other defendants were parties to
the action. But this suggests spontaneous, parallel action where some members of a party got out
of hand, inspiring others to do the same. It is not indicative of some plot against Marcantonio.
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The Complaint uses much vaguer language later in a section entitled "Retaliation", alleging that
the Defendants (again without naming them) "ostracized and threatened" plaintiff (Compl. ¶37)
after he spoke to a coach about Welcome Week. But there is no claim that the Defendants
cooperated in threatening plaintiff, or that even all of the defendants made threats.4
This Court rejected a similarly pleaded conspiracy claim in Schlegel v. Bank of America,
N.A., 505 F.Supp. 321, 327 (W.D. Va. 2007) on the grounds that no unity of purpose had been
alleged. This Court explained that:
Plaintiff here has merely alleged that Ewald independently acted improperly,
Main independently acted improperly, and the Bank officials independently acted
improperly, all to Plaintiff's detriment. Ergo, he says, those three must have acted
in concert. Plaintiff simply has not alleged any facts that would allow the court to
infer that any [officials of] Main and the Bank acted together. His claim must
therefore be dismissed.
Id. (brackets supplied).5 Because the Complaint does not allege an agreement or purpose among
the Defendants, much less any facts reflecting such a purpose, the claims for conspiracy and
business conspiracy fail.
b.
Marcantonio Has No Business Interest at Stake in This Matter and Thus
His Claim for Business Conspiracy Fails. (Count IX.)
As is set forth more fully in the Brief in Support of the Motion to Dismiss filed by
Defendant Kyle Dudzinski, Marcantonio has no claim for business conspiracy. By its very
4
As explained, infra, Plaintiff cannot rely on his boilerplate claim that he was threatened,
because whether a threat has occurred is a factual and legal determination.
5
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) ("heightened pleading standard" applicable) (brackets supplied, citing Bay Tobacco,
LLC v. Bell Quality Tobacco Products, LLC, 261 F.Supp.2d 483, 499 (E.D. Va. 2003)). See,
Schlegel v. Bank of America, N.A., 505 F.Supp.2d 312, 328 (W.D. Va. 2007) (Virginia business
conspiracy must be pleaded with particularity). Like the complaint in Schlegel, this Complaint
fails to satisfy even a Federal Rule of Civil Procedure 8’s notice pleading standard, and it
entirely fails to set out the heightened pleading standard as it fails to allege any time or place as
to the agreement for the supposed conspiracies.
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terms, Virginia's business conspiracy statute does not apply to this action because Marcantonio
has no business interest in swimming at UVA. The Virginia business conspiracy statute
establishes liability for "[a]ny two or more persons who combine, associate, agree, mutually
undertake or concert together for the purpose of (i) willfully and maliciously injuring another in
his reputation, trade, business or profession . . . ." VA. CODE ANN. § 18.2-499 (A). Virginia's
statute means what it says; to establish a conspiracy a plaintiff must allege that the parties to the
conspiracy had as their predominate purpose an intent to injure the plaintiff "in his business."
See, Dunlap, 287 Va. at 214-15, 754 S.E.2d at 317 (internal citations omitted); A Fisherman's
Best, Inc. v. Recreational Fishing Alliance, 310 F.3d 183, 195 (4th Cir. 2002). "Despite its broad
language, it is well-settled that this statute applies only to injuries 'to business and property
interests, not to personal or employment interests.'" Shirvinski v. United States Coast Guard, 673
F.3d 308, 321 (4th Cir. 2012). Marcantonio's claim that there was a conspiracy to interfere with
his "swim contract" must fail, because Virginia's business conspiracy statute does not provide
relief for non-business interests.
III.
Plaintiff Fails to Adequately Allege the Remaining Counts of the Complaint As to
Rommel.
Plaintiff has failed to allege sufficient facts as to Rommel to state any of the remaining
claims against him. Because Plaintiff has not properly alleged a conspiracy count, he cannot
attribute the acts of others to Rommel. In the alternative, even if some of the later factual
allegations were sufficient to suggest some limited agreement, Plaintiff could not carry vicarious
liability back in time, and attempt to hold Rommel responsible for the pre-agreement actions of
others. By way of example, if the Court found some limited agreement in the post-party
allegations of the Complaint, Rommel could not be held liable for assault or battery based on the
actions of other defendants at the party.
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The Complaint contains only very limited allegations as to Charles Rommel. As a result,
Plaintiff's generalized and conclusory allegations do not meet the "plausibility" standard
encompassed in Federal Rule of Civil Procedure 8. As set forth below, the remaining counts of
the Complaint should be dismissed.
a.
The Complaint Does Not Allege Sufficient Facts to State a Claim for False
Imprisonment as to Rommel (Count III).
With regard to false imprisonment, there is no allegation that Rommel took affirmative
steps to trap Plaintiff in the Swim House or one of its bathrooms. Instead, the Complaint
contains two confusing and broad allegations that, in the light most favorable to Plaintiff, allege
that the actions of unspecified “upperclassman” caused Plaintiff fear.
The Complaint first alleges "By this time all of the first years, including plaintiff, were
trapped inside and because of what had gone on before since his arrival at the Swim House, the
yelling, screaming, obscenities and threatening tone and words being used by the upperclassman,
plaintiff was beginning to fear for his safety." (Compl. ¶ 26, ix.) The Complaint sets out no real
reason that Plaintiff believed he could not leave, and certainly no reason attributable to Rommel.
Rather, the Complaint seems to attribute the threatening tone and attendant actions to "the
upperclassman," who is not identified in the Complaint. Later in paragraph 26, (xx), Plaintiff
again claims to be trapped – now in a bathroom. The Plaintiff states that "defendants and those
they were instigating . . . had locked them in a bathroom." The Complaint does not allege who,
be it a Defendant or "those they were instigating," caused Plaintiff to allegedly be locked in a
bathroom. The Complaint does not plausibly set out a claim that Defendant Rommel falsely
imprisoned Plaintiff.
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b.
The Complaint Lacks Factual Allegations Sufficient to Establish Claims
for Intentional Infliction of Emotional Distress, Assault, Battery,
Negligence, and Hazing Against Charles Rommel (Counts I, II, IV, VI,
and X).
The Complaint similarly fails to make factual allegations about Charles Rommel that are
sufficient to support claims for intentional infliction of emotional distress, hazing, negligence,
assault and battery. The Complaint suggests that Plaintiff feared for his safety "because of what
had gone on before since his arrival at the Swim House, the yelling, screaming, obscenities and
threatening tone and words being used by the upperclassman…" (Compl. ¶ 26, ix.) It contains
only conclusory allegations as to the conduct of Rommel and nowhere does the Complaint allege
that Rommel physically touched Plaintiff. Similarly, the factual allegations of the Complaint do
not rise to the level of showing that Rommel caused the level of emotional distress necessary to
constitute the tort of intentional infliction of emotional distress,6 violated some common law duty
as to Plaintiff so as to constitute negligence, or acted in such a way as to "recklessly or
intentionally endanger the health or safety" of Plaintiff, so as to constitute hazing. See, Va. Code
§ 18.2-56. As discussed infra, the only specific allegations as to Rommel are that he helped
author a crude email; teased, cursed, and yelled at the first year swimmers; insulted Plaintiff;
broke a glass bottle that harmed a third party; and asked an offensive question. (Complaint
¶¶ 24, 26.) None of these allegations establish the elements of intentional infliction of emotional
distress, assault, battery, or negligence. Because a complaint must plead "enough facts to state a
claim to relief that is plausible on its face," Twombly, 550 U.S. at 570; Iqbal, 556 U.S. at 678, the
claims against Charles Rommel should be dismissed.
6
Defendant incorporates by reference Defendant Kyle Dudzinski's Motion to Dismiss and
Brief in Support as to the Count for Intentional Infliction of Emotional Distress.
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IV.
The Claim for Punitive Damages Should Be Dismissed. (Count VII.)
"[U]nder Virginia law, there is no cognizable cause of action for malice or punitive
damages." Fravel v. Ford Motor Co., 973 F. Supp. 2d 651, 654-55 (W.D. Va. 2013) (Augustin v.
SecTek, Inc., 807 F.Supp.2d 519, 526 (E.D.Va. 2011)). Because the Complaint does not properly
plead torts as to Defendant Rommel, and because the factual allegations of the Complaint do not
rise to the level of willful and wanton conduct, Plaintiff's claim for punitive damages should be
dismissed and stricken.
"[P]unitive damages are awarded only in cases of the most egregious conduct." Adkins v.
Bank of Am., N.A., No. 1:14-CV-563 GBL/JFA, 2014 WL 3615876, at *7 (E.D. Va. July 18,
2014) (brackets supplied, dismissing punitive damages claim on motion to dismiss) appeal
dismissed, 585 F. App'x 61 (4th Cir. 2014) cert. denied, 135 S. Ct. 2311, 191 L. Ed. 2d 982
(2015). To plead a basis for punitive damages, a plaintiff must set out factual allegations that
evince "actions consciously in disregard of another person's rights or acting with reckless
indifference to [the] consequences with the defendant aware, from his knowledge of existing
circumstances and conditions, that his conduct probably would cause injury to another." Id.
(citations omitted).
Whereas simple negligence conveys "heedlessness, inattention, inadvertence; willfulness
and wantonness convey the idea of purpose or design, actual or constructive . . . ." Green v.
Ingram, 269 Va. 281, 292, 608 S.E.2d 917, 923 (Va. 2005) (quoting Boward v. Leftwich, 197 Va.
227, 231, 89 S.E.2d 32, 35 (Va. 1955)). "Willful or wanton negligence involves a greater degree
of negligence than gross negligence, in that an essential ingredient of the act or omission in
willful or wanton negligence is an actual or constructive consciousness of the danger involved."
Boren v. Nw. Reg'l Jail Auth., No. 5:13CV013, 2013 WL 5429421, at *5 (W.D. Va. Sept. 30,
2013) (internal quotation marks omitted, quoting Boward.)
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Nothing in the Complaint indicates egregious harm to Plaintiff or suggests an idea of
purpose or design, actual or constructive, on the part of Rommel. This is not a case where a
young person was pressured to drink alcohol and suffered from alcohol poisoning. Indeed,
Plaintiff's chief physical complaint is that he drank too much milk and juice at the swim party
and vomited as a result. (Compl. ¶ 26, xliv.) This is not a case where a student was pummeled
or even physically touched by Rommel. The only physical contact alleged is that some unnamed
person placed a bucket on Defendant's head. And, as set forth in Defendant Kyle Dudzinski's
Motion to Dismiss, there is no actionable claim for emotional distress in this matter. There is
then, no egregious conduct sufficient to support a claim for punitive damages.
The Supreme Court of Virginia has rejected punitive damages in cases with far more
shocking allegations. Most notably, the Supreme Court of Virginia found that punitive damages
were not available where a police officer shot through a door, killing a mother whose body was
found draped over and protecting her child. Green, 269 Va. at 285-86, 608 S.E.2d at 919-20.
Punitive damages were unavailable, even where the officer was specifically trained to act as if
there were people behind the door at which he was firing. Id. See also, Doe v. Isaacs, 265 Va.
531, 536, 579, S.E.2d 174, 177 (Va. 2003) (punitive damages claim struck where driver who hit
car was alleged to have known of victims' injuries and yet left scene of accident).
Because the Plaintiff has not pleaded facts indicating that Defendant Rommel took actions
ignoring actual or constructive harm to Plaintiff and ultimately harmed Plaintiff, Plaintiff's
demand for punitive damages should be stricken.
CONCLUSION
In light of the foregoing, and for the reasons set out in Defendant Kyle Dudzinski's
Motion to Dismiss and his associated Brief in Support as incorporated herein, Charles Rommel
asks that the Court dismiss him from this action.
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Respectfully submitted
CHARLES ROMMEL,
/s/-Erin B. Ashwell
Thomas T. Cullen (VSB No. 68070)
Erin Ashwell (VSB No. 79538)
J. Benjamin Rottenborn, Esq. (VSB No. 84796)
Woods Rogers PLC
10 South Jefferson Street, Suite 1400
Roanoke, VA 24011
540.983.7602
540.983.7711 (facsimile)
[email protected]
[email protected]
[email protected]
Counsel for Defendant Charles Rommel
CERTIFICATE OF SERVICE
I hereby certify that, on this 9th day of September, 2015, the foregoing was filed
electronically with the Clerk of Court using the CM/ECF system, which will send a Notice of
Electronic Filing (NEF) to counsel of record in this matter.
/s/-Erin B. Ashwell
Erin B. Ashwell
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