                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA




STEPHEN D. METZ,

             Plaintiff,

        v.                                      Civil Action No. 12-1694 (GK)

BAE SYSTEMS TECHNOLOGY
SOLUTIONS & SERVICES, INC.,

             Defendant.



                                  MEMORANDUM OPINION

        Plaintiff    Stephen D.         Metz   ( "Plaintiff 11    or     "Metz 11 )      brings

this diversity action against Defendant BAE Systems Technology

Solutions     & Services,          Inc.     ("Defendant 11       or    "BAE 11 )      alleging

violations of the common law of the District of Columbia.

        This matter    is presently before            the Court          on Defendant's

Motion to Dismiss Plaintiff's Amended Complaint                          [Dkt.     No.     13] .

Upon    consideration        of   the     Motion,   Opposition          [Dkt.      No.     19],

Reply    [Dkt. No.    20],    and the entire record herein,                   and for the

reasons stated below, Defendant's Motion to Dismiss is granted.
                       1
I.       BACKGROUND

         BAE    provides    management            and      operational        support           to    the

United        States   Armed      Forces,        Department          of    Defense,       and other

federal        agencies.    Am.      Compl.      ~   7.    BAE is         incorporated and has

its principal place of business in Maryland. Id.                                  ~~    5-6. Metz, a

Virginia        resident,      was    employed            at   BAE   as     Vice       President       of

Maritime Programs from August 13, 2007, to February 3, 2012. Id.

~~   3, 8, 52.

         On    February 3,        2012,    Metz        was     laid off.          Id.    ~52.        Metz

signed a Waiver and Release Agreement with BAE that included a

Non-Compete Provision barring Metz for one year from working for

BAE' s    competitors.       Id.     ~~   2 0,    52.      That Provision was effective

immediately and expired in February of 2013. Id.                              ~    20.

         Metz then applied for the position of Senior Vice President

and Group Manager of the Acquisition Program Management Group at

ALION, a company that had worked with BAE on several projects in

the past.        Id.   ~~52-53,       58-59. ALION selected Metz to fill the

position,        and he     began working              there     on May       14,       2012,        three



1
   For purposes of ruling on a motion to dismiss, the factual
allegations of the complaint must be presumed to be true and
liberally construed in favor of the plaintiff. Aktieselskabet AF
21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir.
2008); Shear v. Nat'l Rifle Ass'n of Am., 606 F.2d 1251, 1253
 (D.C. Cir. 1979). Therefore, the facts set forth herein are
taken from the Amended Complaint ("Am. Compl.") [Dkt. No. 9].
                                                 -2-
months after he left BAE. Id.             ~       54. Metz's employment with ALION

was "on an at will basis." Id.                ~    55.

          Shortly after being hired, Metz informed BAE employees that

he was now working for ALION.                     Id.    ~   57.   In late May 2012,        BAE

contacted Metz and ALION and "demand [ed]                          that ALION immediately

fire       Plaintiff    or     that     Plaintiff             immediately        resign"    and

threatened legal action if neither of these events occurred. Id.

~   63,    67.   The Amended Complaint alleges when Metz went to work

for ALI ON,       ALI ON and BAE had been teammates and partners on a

number of projects                 and therefore,             were not     competitors and

would not be competitors during the duration of Metz's one year

non-competition        agreement       with BAE.              On    June   15,    2012,    as   a

direct consequence of BAE's actions, ALION terminated Metz.                                 Id.

~ 74.

          On October 16,      2012, Metz filed a complaint in this Court.

On November 21, 2012, he filed an Amended Complaint. 2 On December

21,     2012,    BAE   filed   a    Motion         to    Dismiss     Plaintiff's      Amended

Complaint        ("Motion")    [Dkt.    No.        13]       On January 25,        2013,   Metz

filed an Opposition to Defendant's Motion to Dismiss the Amended

Complaint        ("Opposition")     [Dkt. No. 19]. On February 8, 2013, BAE



2
  In his Amended Complaint, Metz alleges several facts which are
completely opposite   to   those  he  alleged   in his   initial
complaint. Mot. at 17-18.
                                              -3-
 filed a Reply in Support of Its Motion to Dismiss Plaintiffs'

 Amended Complaint ("Reply")              [Dkt. No. 2 0] .

 II.    STANDARD OF REVIEW

        To    survive     a    motion     to    dismiss         under        Rule    12(b) (6),     a

 plaintiff      need only plead           "enough         facts       to     state   a   claim to

 relief that is plausible on its face" and to "nudge [                                     [his or

 her] claims across the line from conceivable to plausible." Bell

Atlantic Corp. v.             Twombly,    550 U.S.        544,        570    (2007).     "[O]nce a

claim has been stated adequately, it may be supported by showing

any     set     of   facts      consistent       with       the        allegations         in     the

complaint." Id. at 563.

        Under the Twombly standard,                  a   "court deciding a motion to

dismiss must not make any judgment about the probability of the

plaintiffs' success .                    [,] must assume all the allegations in

the complaint are true (even if doubtful in fact)                                          [, and]

must give the plaintiff the benefit of all reasonable inferences

derived from the facts alleged." Aktieselskabet AF 21,                                    52 5 F. 3d

·at    17     (internal       quotation     marks         and     citations          omitted) .     A

complaint       will    not     suffice,       however,          if     it     "tenders      'naked

assertion[s]' devoid of 'further factual enhancement.'" Ashcroft

v. Iqbal, 556 U.S. 662, 678                (2009)        (quoting Twombly, 550 U.S. at

557)    (alteration in Iqbal).



                                               -4-
III. ANALYSIS

       Metz has withdrawn Counts I and V of his Amended Complaint.

Opposition 2 n.1.                Thus,     the remaining claims are Counts II-IV,

all of which BAE argues must be dismissed.                                  The Court addresses

each Count in turn.

       A.      Count II: Tortious Interference with Contract

       In Count           II,    Metz      alleges      that      BAE tortiously interfered

with     his      employment           agreement          with     ALION      and        intentionally

procured       the       termination         of     that       agreement       through            improper

means.      Am.    Compl.        ~   79.    Metz    acknowledges           that      his        employment

agreement          was      "at        will,"       but       claims        that,          "under      the

circumstances of                this    case,"     he     "had a         contract of            employment

with ALION." Id.

       To state a claim for intentional interference with contract

under D.C. law, a plaintiff must allege:                             "(1) the existence of a

contract;          (2)     knowledge         of      the       contract;           (3)      intentional

procurement          of     a     breach      of     the      contract;        and         (4)     damages

resulting         from the breach."               Onyeoziri v.            Spivak,         44 A.3d 279,

286 (D.C. 2012)

       The District of Columbia Court of Appeals has made it clear

that an at-will employment agreement cannot be used as the basis

of a     tortious interference with contract claim.                                 McManus v.         MCI

Commc'ns       Corp.,       748      A.2d    949,       957      (D.C.     2000)         ("It    is   clear
                                                    -5-
that,       as      an    at-will       employee,             appellant        did        not    have      a

contractual employment relationship she could use as the basis

for     a     suit       for     tortious           interference         with         a    contractual

relationship.")            (citing          Bible    Way       Church v.        Beards,         680   A.2d

419, 432-33           (D.C. 1996)); see also Riggs v. Home Builders Inst.,

203 F.        Supp.      2d 1,    22-23       (D.D.C.         2002)     (noting that plaintiff

could not bring an intentional interference with contract claim

based       on      an    at-will       employment             agreement        under       D.C.        law)

(citations omitted). The logic behind the court's conclusion was

that     "if      there     is     no   fixed        or       assured    employment             there     is

nothing tangible with which to interfere." Dale v. Thomason,                                             962

F.    Supp. 181, 184             (D.D.C. 1997)            (discussing Bible Way,                680 A.2d

at 432-33).

        Even though Metz acknowledges that his employment agreement

with ALION was at-will, he states that "under the circumstances

of     this      case,     Plaintiff          had     a       contract    of     employment           with

ALION."       Am.     Compl.      ~   79.    However,          Metz    does     not       identify any

"circumstances"            related to his agreement with ALION that would

indicate         that      this       was     "fixed          or      assured     employment"             or

othe,rwise       more      "tangible"         than        a    standard       at-will       employment

agreement. Dale, 962 F. Supp. at 184.

        Instead, Metz attempts to distinguish Bible Way and McManus

by arguing that             the alleged "interferers"                     in those cases were
                                                    -6-
not true third parties,              but were fellow employees of the same

employer.      Opposition      8-10.     That     is       a    distinction       without      a

difference. The defendant's status is irrelevant to the question

of   whether    an   at-will       employment        agreement          can    constitute      a

contract for purposes of a tortious interference with contract

claim.     See Riggs,   203 F.        Supp.    2d at 23           (rejecting attempt to

distinguish McManus and Bible Way and noting that uthe courts in

both cases           . specifically focused on the plaintiffs' at-will

status in rejecting the tortious interference claims")                                (citing

McManus,     748 A.2d at       957-58;        Bible Way,         680 A.2d at         432-33).

Metz's attempt to distinguish controlling precedent based on the

status of the alleged third party interferer is unpersuasive.

      Therefore,      Metz   has      failed    to     allege      the       existence    of   a

contract     upon    which     his     tortious        interference           with   contract

claim can be based, and Count II shall accordingly be dismissed. 3

      B.     Count  III:  Tortious              Interference            with     Prospective
             Economic Advantage

      In Count III,      Metz alleges that BAE tortiously interfered

with his uvalid business or economic expectancy with ALION," and

intentionally        induced     or     caused         the       termination         of   that

expectancy through improper means.                   Am.       Compl.    ~   83. Again,     the


3
  BAE also argues, persuasively, that Metz has failed to allege
any facts demonstrating that BAE had any knowledge of some non-
at-will contract between Metz and ALION.
                                          -7-
basis for Metz's claim is his at-will employment agreement with

ALION.

        To     state             a       claim         for      intentional                  interference              with

prospective economic advantage under D.C.                                           law,       a plaintiff must

allege:       "(1)         the existence of a                      valid business relationship or

expectancy between plaintiff and                                    [ALION] ;          (2)    knowledge of the

relationship           or        expectancy on                the     part        of     the       defendant;           ( 3)

intentional           interference                     inducing         or        causing           a         breach       or

termination of the relationship or expectancy; and                                                      (4)    resultant

damage."       Sabre         Int '1         Sec.     v.      Torres Advanced Enter.                           Solutions,

Inc.,    857     F.         Supp.          2d    97,      103       (D.D.C.       2012)         (citing          Bennett

Enters.,       Inc.         v.       Domino's          Pizza,       Inc.,      45      F.3d 493,               499   (D.C.

Cir. 1995)).

        In    McManus,               748     A. 2d      at    1957,       the       District             of     Columbia

Court    of     Appeals               directly          addressed           the     issue          of     whether          it

would        recognize               a     claim        for        intentional               interference              with

prospective          economic               advantage           based     on      an         at-will          employment

agreement.            The            court      ruled        that    it      "never          has    held         that      an

employee can maintain a                          suit        for    interference with prospective

advantage        where                her       expectancy            was      based           on         an     at-will

relationship.         11
                             Significantly,                  the court said that "we do not do

so now,"       and that it was                     "not willing"               to provide the employee

"contractual protections based on her alleged expectancy."                                                           Id.

                                                             -8-
        Based on this language in McManus,                     several other members of

this District Court have already concluded that the District of

Columbia       Court     of     Appeals     would        not     recognize       a     tortious

interference with prospective economic advantage claim based on

an at-will employment agreement. See Zelaya v. UNICCO Serv. Co.,

587 F.     Supp.      2d 277,     287   (D.D.C.    2008); Houlahan v.                World Wide

Ass'n     of    Specialty       Programs     & Sch.,           No.     04-01161,       2006   WL

785326,    at    *4     (D.D.C.    March 28,      2006);        Daisley v.       Riggs Bank,

N.A.,    372 F.       Supp.    2d 61,    72-73    (D.D.C.       2005);    Gross v.       Davis,

No.   01-1486,     2003 U.S. Dist. LEXIS 3427,                  at *9-*10        (D.D.C. Mar.

3, 2003); Riggs, 203 F. Supp. 2d at 24-25.

        In response,          Plaintiff has presented a                 long and detailed

argument -- which is purely speculative -- that the District of

Columbia        Court     of      Appeals        would     permit         a    third      party

interference       claim brought          by an at-will              employee.        Plaintiff

cites extensive case law from other jurisdictions throughout the

country,       including the Maryland courts,                   the Supreme Court,            and

the Restatement          (Second)       of Torts    in support of              its position.

While this authority may be properly cited and is interesting to

be    aware      of,     it     certainly        does     not        support     Plaintiff's

prediction that the District of Columbia Court of Appeals would

recognize a        cause of action for             third party interference even

though that interference was based on at-will employment.                                     The
                                            -9-
court's language makes it clear that not only was it not making

that ruling in McManus, but even emphasized that it "was

not   willing     to   do     [so]        (emphasis        added) .         Id.        Given    that

emphatic       language,     this         Court      can    certainly            not    reach    the

conclusion that the District of Columbia Court of Appeals would

permit Plaintiff's third party interference claim based upon an

at-will contract to proceed in this case.

        Plaintiff seems to be arguing that the wide acceptance in

the majority of        jurisdictions,               including the Supreme Court,                  of

third    party    interference            claims      based        on    at-will        employment

virtually compels the District of Columbia Court of Appeals to

reach    the     conclusion          it    seeks      when         the     appropriate          issue

presents    itself.          That,        of    course,       is     not    the        case.      The

District    of    Columbia      Court          of   Appeals,        as     the    highest       State

court in the District of Columbia, is fully entitled to make its

own decision interpreting the substantive law in the District of

Columbia.        'It   was    given         this      opportunity           in     McManus,       and

forcefully rejected it. 4



4
  Plaintiff is correct that the Supreme Court did state       in
Haddle v. Garrison, 525 U.S. 121, 126-27 (1998)       that "the
sort of harm alleged by petitioner here       essentially third
party interference with at-will relationships -- states a claim
for relief under § 1985(2).       Such harm has long been a
compensable injury under tort law, and we see no reason to
ignore this tradition in this case. "    However, the Court was
                                               -10-
     In sum, this Court agrees with the cases already cited that

the District of Columbia Court of Appeals'                           language in McManus

leads to        the conclusion that it would not recognize a tortious

interference with prospective economic advantage claim based on

Metz's at-will employment agreement with ALION, and, thus, Count

III shall be dismissed. 5

     C.     Count IV: Breach of the Implied Covenant of Good Faith
            and Fair Dealing

     Count IV alleges that BAE violated the implied covenant of

good faith and fair dealing when it                       ~did   not conduct itself with

honesty in its                    enforcement of the non-compete agreement

with Plaintiff." Am. Compl.              ~    89.

     The District of Columbia Court of Appeals has held that all

contracts       contain     an     implied          duty    of    good    faith    and   fair

dealing, which means that               ~neither      party shall do anything which

will have the effect of destroying or injuring the right of the

other party to receive the fruits of the contract." Allworth v.

Howard Univ.,       890 A.2d 194,             201     (D.C.      2006)    (quoting Hais v.

Smith,    547    A.2d     986,     987       (D.C.    1988)).       ~If   the   party    to   a



interpreting federal             tort    law,       not    ruling on the        substance of
state law.
5
  BAE again argues, persuasively, that Metz has failed to allege
any facts demonstrating that BAE had any knowledge of the
alleged business relationship or expectancy between Metz and
ALION.
                              -11-
contract evades             the    spirit of         the contract,          willfully renders

imperfect         performance,       or        interferes       with    performance           by   the

other party,          he or she may be liable for breach of the implied

covenant of good faith and fair dealing.                         11
                                                                      Id.    (citing Hais,         547

A.2d at 987-88).

        In order to survive a motion to dismiss for breach of the

implied covenant of good faith and fair dealing, plaintiff must

allege facts to show that defendant "has taken steps, or refused

to take steps, which ultimately had the effect of destroying or

injuring the right to receive the fruits of the contract.,, Mero

v. City Segway Tours of Wash. D.C., L.L.C., 826 F. Supp. 2d 100,

106-07 (D.D.C. 2011)              (quotation omitted).

        The    only     contract          that    Metz    has     identified           between     the

parties which can form the basis for Metz's claim is the Waiver

and Settlement Agreement that he executed upon his termination

from BAE.         See Robinson v. Deutsche Bank Nat. Trust Co., No. 12-

0732,      2013    WL 1191034,            at   *13   (D.D.C.     Mar.       25,    2013)      (noting

that under D.C. law, a "claim for breach of the implied covenant

of good faith and fair dealing cannot exist in the absence of a

contractual relationship             11
                                          )    (quoting Busby v.            Capital One,       N.A.,

772   F.      Supp.    2d 268,      284        (D.D.C.    2011)).      Metz must           therefore

allege      that      BAE   "has    taken        steps,    or    refused          to   take   steps,

which ultimately had the effect of destroying or injuring the
                                                 -12-
right to receive the fruits"                       he contracted to receive under the

Waiver and Settlement Agreement.                           Mere,      826 F.      Supp.   2d at 106-

07.

        Metz    has       made     no   such allegations.                 BAE    correctly asserts

that the only "fruit" of the Waiver and Settlement Agreement to

which     Metz       is     entitled          is        "Supplemental           Severance    Pay     and

Benefits." Am. Compl. Ex. 1 ~ 3 (b) . 6 Metz does not allege how BAE

has,    in any way,          "taken steps,               or refused to take steps,                 which

ultimately had the effect of destroying or injuring"                                        his right

to receive those benefits.

        Instead,       Metz        argues      that        BAE       is   interfering       with     his

obligation. to not               seek employment with BAE' s                     competitors.       Metz

insists       that    his        agreement         to    not     seek     employment      with     BAE' s

competitors          created       an    "implicit"            right      to    the   inverse        the

ability       to     seek        employment         with       any     non-competitor        of     BAE.

Opposition 26.

       This     argument          is    not   persuasive.            "[I]mplied covenants            are

disfavored," Amfac Resorts,                    L.L.C. v. Dep't of the Interior,                      142

F.    Supp.    2d 54,       73    (D.D.C.      2001),       and the contract between Metz

and BAE contains             no     right     to        seek future        employment with non-

6
  The Court can consider documents attached as exhibits to the
Complaint when resolving a motion to dismiss. See Daniels v.
United States, No. 12-0485, 2013 WL 2352106, at *5 (D.D.C. May
30, 2013).

                                                    -13-
competitors of BAE.                   It is clear that the non-compete provision

was      something            provided       by     Metz        to     BAE      in     exchange        for

supplemental pay and benefits.                       Thus,      it is not a           ~fruit"       of the

contract that entitles him to any particular benefit.

        Because the ability to work for ALION or any other employer

is    not    a    benefit       provided       to    Metz       under    the     agreement,          BAE' s

alleged       interference            with    that       benefit      cannot         give    rise    to   a

claim for breach of the implied covenant of good faith and fair

dealing.         See Ihebereme v.             Capital One,           N.A.,      No.    10-1106,       2013

WL     1248240 I         at     *10     (D.D.C.          Mar.    28,         2013)      (noting       that

~   [p] laintiffs were not              entitled to interest payments under the

contract,         so defendants could not have done anything to destroy

or injure the plaintiffs'                     right       to receive them")             (citing Paul

v.    Howard       Univ.,       754    A.2d       297,     310       (D.C.     2000));       B&H     Nat'l

Place,      Inc.    v.    Beresford,          850    F.    Supp.      2d 251,         260-61       (D.D.C.

2012)       (dismissing claim for breach of                          implied covenant of good

faith       and    fair       dealing    where        defendants         ~simply        had     no    duty

under the Covenants to disclose their business plans").

        Therefore,        Metz has failed to set forth a basic element of

a    claim for       breach of          the    implied covenant                of     good    faith    and

fair dealing, and, thus, Count IV shall be dismissed.




                                                    -14-
IV.   CONCLUSION

      Upon   consideration of   the   Motion,   Opposition,   Reply,   and

the entire record herein,   and for the reasons set forth in this

Memorandum Opinion, Defendant's Motion to Dismiss is granted. An

Order shall accompany this Memorandum Opinion.




September 30, 2013
                                        {~~Jihdb
                                        Gladys KesOer'           "----·
                                        United States District Judge



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                                 -15-
