The opinion of the court was delivered by: RICHARD LEON, District Judge
MEMORANDUM OPINION (August 19, 2005) [# 38]
Krishna Muir, the plaintiff, brings this action to challenge
the decision by the defendant, the Navy Federal Credit Union
("NFCU"), to set off his joint bank account with his father to
satisfy a debt that belonged to his father individually. On March
1, 2005, the Court issued two opinions regarding Counts I through
XI of Mr. Muir's complaint. Before the Court is NFCU's motion to
dismiss the remaining claim in the complaint, tortious
interference with business expectancy. For the following reasons,
the Court GRANTS the defendant's motion.
A Rule 12(b)(6) motion to dismiss is appropriately granted when
"it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief."
Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In considering the
motion to dismiss, the Court must accept as true all of the
well-pleaded allegations set forth in the complaint and construe them liberally. Doe v.
United States Dep't of Justice, 753 F.2d 1092, 1102 (D.C. Cir.
To prevail on a claim of tortious interference with business
expectancy under Virginia Law,*fn1 a plaintiff must prove:
"(1) the existence of a business relationship or expectancy, with
a probability of future economic benefit to plaintiff; (2)
defendant's knowledge of the relationship or expectancy; (3) a
reasonable certainty that absent defendant's intentional
misconduct, plaintiff would have continued in the relationship or
realized the expectancy; and (4) damage to the plaintiff."
Williams v. Dominion Tech. Partners, L.L.C., 265 Va. 280, 289
(2003). The plaintiff must prove each element by a preponderance
of the evidence. Commercial Bus. Sys., Inc. v. Halifax Corp.,
253 Va. 292, 301 (1997). Mr. Muir, for the following reasons, has
not done so.
Regarding the first and third elements of the tort, plaintiff
alleges that he had a "viable business expectancy with a
probability of future economic benefit" and that he "avers to a
reasonable certainty that absent the [d]efendant's intentional
misconduct, he would have realized that expectancy." Compl. ¶¶
137, 139. The plaintiff, however, has not provided any additional
information about the business expectancy and his probability of
realizing it. See generally Compl. ¶¶ 136-145. Indeed,
plaintiff had an opportunity to flesh out these allegations in
greater detail after receiving Defendant's Motion to Dismiss, but
failed to do so. See generally Opp'n at 1-10. As the allegations currently stand, there is nothing more than
"mere proof of [Mr. Muir's] belief and hope." This alone will not
satisfy the objective test to recover for this tort. Commercial
Bus. Sys., Inc., 253 Va. at 301. Additionally, plaintiff's
subjective characterizations of the future economic benefit to
him do not transform the mere "possibility" into a "probability"
sufficient to satisfy the first element of the tort. Id. The
Court is required only to accept facts as alleged. It is not
required to accept inferences that are unsupported by the facts
set out in the complaint or legal conclusions masquerading as
factual allegations. Kowal v. MCI Communications Corp.,
16 F.3d 1271, 1276 (D.C. Cir. 1994); see also 2 JAMES WM. MOORE ET AL.,
MOORE'S FEDERAL PRACTICE, ¶ 12.34 (3d ed. 1997) (holding that a
court is not required to accept subjective characterizations or
legal conclusions as alleged). Since the plaintiff has not
alleged any facts to meet the objective test required for the
first and third elements of tortious interference with business
expectancy claim, the Court dismisses Count XII of the
plaintiff's complaint pursuant to Rule 12(b)(6).
For the foregoing reasons, the defendants' motion to dismiss is
GRANTED. An order consistent with this ruling accompanies this
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