Tortious Interference with Business Expectancy in the District of Columbia-- A Split Among Jurists Regarding Pleading Requirements

A split has developed between District Court judges in the District of Columbia regarding the requirements to plead a count alleging tortious interference with business expectancy. In a post on June 18, 2009, I reported that Judge Ricardo Urbina had issued an opinion requiring the plaintiff to name the third parties with which it had a relationship or expectancy in order to survive a motion to dismiss the claim. Command Consulting Group, LL v. Neuraliq, Inc., 2009 U.S. Dist. Lexis 48082 (D.D.C. June 9, 2009). In a more recent opinion, Judge Richard Roberts rejected that requirement.

In Kimmel v. Gallaudet University, 639 F. Supp.2d 34 (D.D.C. 2009), plaintiff, the former Dean of the College of Liberal Arts, Sciences, and Technologies and a tenured professor, alleged that she was harrassed by various faculty members, excluded from administrative decisions, had her job responsibilities reduced and was a victim of defamatory statements because she supported an unpopular President of the University. In her complaint she alleged that Gallaudet tortiously interfered with her "valid business expectancy that she would be able to teach, and possibly also serve as an administrator, in higher education until her retirement." She also alleged that "agents and employees of Gallaudet intentionally interfered with this business expectancy by spreading false and defamatory lies" and that "[a]t least three potential sources of prospective employment have disappeared" as a result of those actions.

Gallaudet moved to dismiss the count arguing that Kimmel had not specifically identified a third party with whom she had the business expectancy. Judge Roberts rejected the argument, holding that "[a]lthough Kimmel has not specifically named each alleged potential source of prospective employment or expressly asserted that Gallaudet had knowledge of these expectancies, reasonable inferences can be drawn from Kimmel's factual assertions that Gallaudet acted intentionally, and notice pleading does not require the complaint to specify the entities with whom she had an expectancy." Id. at 45. The court relied upon Browning v. Clinton, 292 F.3d 235,243 (D.C. Cir. 2002) where the D.C. Circuit reversed a decision dismissing a count alleging tortious interference with business expectancy. In Browning, the plaintiff did not allege the names of specific publishers that had failed to positively respond to submission of her book for publication. Nevertheless, the circuit court found that the plaintiff was entitled to proceed with the claim, holding that whether a triable issue of fact existed should be reserved for summary judgment. Id.

Accordingly, as it stands in the District of Columbia there is no consensus with regard to what must be pled to allow a claim of tortious interference with business expectancy to proceed to trial.