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In the united states district court for the - Virginia Lawyers Weekly

In the united states district court for the - Virginia Lawyers Weekly

Case 3:10-cv-00111-REP

Case 3:10-cv-00111-REP Document 29 Filed 11/03/10 Page 10 of 14 Napper Dep. at 40:25-41:9.) Indeed, the record indicates otherwise; that Napper never asked MWV to terminate Clark, and did not even learn about her termination until weeks after the fact. (Id.) As Napper asserts, “intent on the part of the interfering party is essential to a valid claim for tortious interference.” (Def.’s Br. at 14 (citing Atl. Coast Vess Bevs., Inc. v. Farm Fresh, Inc., Case No. 3:93cv284, 1993 U.S. Dist. LEXIS 21405 at *18 (E.D. Va. Oct. 8, 1993).) However, recent developments in Virginia law provide additional nuances to the element of intent in tortious interference cases, easing a putative plaintiff’s burden to some extent. As the Supreme Court of Virginia recently explained: [The intent element is met] if the actor acts for the primary purpose of interfering with the performance of the contract, and also if he desires to interfere, even though he acts for some other purpose in addition. The rule is broader, however, in its application than to cases in which the defendant has acted with this purpose or desire. It applies also to intentional interference . . . in which the actor does not act for the purpose of interfering with the contract or desire it but knows that the interference is certain or substantially certain to occur as a result of his action. The rule applies, in other words, to an interference that is incidental to the actor’s independent purpose and desire but known to him to be a necessary consequence of his action. DurretteBradshaw, 670 S.E.2d at 707 (adopting Restatement (Second) of Torts § 766 cmt. j (1979)) (emphasis added). The requirement that a putative plaintiff establish intent reflects the concept that interference with a contract, alone, is not actionable -- only tortious interference with a contract is actionable. Here, there is absolutely no evidence that Napper had the specific purpose of causing MWV to terminate Clark’s employment. However, under the rule explained in DurretteBradshaw, Clark could satisfy the intent requirement if she could establish that Napper knew that her termination would result from his account of her role in the Lost Report Incident. Nevertheless, the present record lacks such evidence. Indeed, Napper was not an employee of 10

Case 3:10-cv-00111-REP Document 29 Filed 11/03/10 Page 11 of 14 MWV, and only occasionally required the services of their administrative assistants during his infrequent visits. (Napper Decl. 3.) Moreover, the record indicates that he did not even learn about Clark’s termination until weeks after it occurred. It would not follow, then, that he would have the sort of authority or influence to coerce MWV to terminate an otherwise competent, performing employee. In fact, Rieck stated that the opposite was true -- Napper had no such authority over any MWV employees. (Rieck Decl. 8.) Significantly, the undisputed record shows that MWV made the decision to terminate Clark -- not Napper. Because there is no evidence that Napper knew that his comments would lead to Clark’s termination, and there is no other evidence of such a purpose on Napper’s part, Clark cannot satisfy the intent requirement. Therefore, the Court recommends that Napper’s motion for summary judgment can be granted on that basis alone. C. “Improper” Methods Even if there was evidence of the requisite intent, the Court would still recommend the granting of summary judgment because there is no evidence that Napper’s methods were “improper.” See Duggin, 360 S.E.2d at 836. The Supreme Court of Virginia has provided a thorough, but not exhaustive, list of the sort of conduct that would rise to the level of “improper” interference with an at-will employment contract. Id. at 836. Here, the undisputed record shows only that Napper expressed general dissatisfaction with Clark’s work, specifically with regard to the Lost Report Incident. He also asked that someone else assist him in the future. (Pl.’s Br. at Ex. 2; Clark Dep. at 85:4- 86:5.) His role in the Incident was primarily that of a witness, albeit a witness adverse to Clark. As Clark asserts, Napper gave his account of the Incident to MWV employees on more than one 11

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