                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

FLORENTINO RODRIGUEZ,

             Plaintiff,

     v.

LABORATORY CORPORATION OF                            Civil Action No. 13-675 (GK)
AMERICA HOLDINGS, d/b/a
LabCorp,

             Defendant.


                                      MEMORANDUM OPINION

     Plaintiff Florentino Rodriguez                      (~Rodriguez"     or "Plaintiff")

brings    this      action       against       Laboratory       Corporation       of    America

Holdings     ( "LabCorp"         or     "Defendant")      for      declaratory         judgment,

fraudulent        misrepresentation,                  negligent       misrepresentation,

negligence,      breach of            contract,      and breach of        the    covenant     of

good faith and fair dealing.

     This     matter        is    before       the    Court   on    LabCorp' s     Motion     to

Dismiss     [Dkt.     No.        16].         Upon    consideration       of     the    Motion,

Opposition       [Dkt.    No.     17],    and Reply       [Dkt.     No.   19],    the entire

record    herein,        and     for    the    reasons    stated      below,     Defendant's

Motion is granted.
I .     BACKGROUND

        A.      Factual Background1

        Rodriguez was employed by the District of Columbia as an

Urban        Park    Ranger.         FAC   ~   6.     During   his   eleven          years       of

employment in this capacity, he had "an exemplary record with no

history of           disciplinary problems            or personal    involvement             with

illegal drugs."          FAC    ~~    6, 7.

        In or about April 2010, Rodriguez was randomly selected to

submit a urine sample for drug testing pursuant to the District

of    Columbia's       Mandatory Drug           and Alcohol       Testing       Program          for

Safety-Sensitive Positions                  ("Drug Testing Program") .               FAC     ~    8;

see 6-B D.C.M.R.          §    3901 et seq.          Rodriguez's test results were

positive for the presence of marijuana metabolites,                              and he was

subsequently terminated from his employment.                       FAC    ~~    21, 23.

       Rodriguez        does     not       allege    that   his    test        results       were

inaccurate, or that he had not used marijuana prior to providing

his urine sample.              Instead, he alleges that LabCorp, who tested

his urine and reported the result,                     failed to follow government-

mandated procedures in doing so,                     thereby improperly causing his

positive result to be reported to his employer.                          Id.    ~~   9-23.

       Rodriguez relies on certain provisions                      in Title 6 of                 the

District        of    Columbia       Municipal       Regulations,        and     the     United

1
  Except where otherwise noted, the facts set forth herein are
taken from the First Amended Complaint ( "FAC") [Dkt. No. 15] and
accepted as true.
                                               -2-
States       Department          of      Transportation                regulations            incorporated

therein,          which        the     District             of     Columbia        has        adopted        in

connection          with         its        Drug         Testing        Program          (collectively,

"regulations"             or     "quality               control        regulations").            See        6-B

D.C. M. R.    §    3 9 01   et       seq. ;       4 9 C. F. R.     Part 4 0.           The regulations

require a testing laboratory to conduct both an initial screen

and    a     confirmatory              test         before        reporting       a      drug    test        as

positive.          6-B D.C.M.R.               §    3906.4;       see also 49 C.F.R.              §   40.87.

To    conduct       the        initial            screen,        the   laboratory         must       use     an

enzyme-multiplied                immunoassay              technique         ("EMIT")           test.        6-B

D.C.M.R.      §     3906.4.            If         the   initial        screen     is     positive,          the

laboratory must then use a gas chromatography/mass spectrometry

("GCMS")      test      to confirm the positive result                             and quantify the

precise concentration of drug metabolites.                                  Id.

       The        regulations               set         "cutoff         concentrations,"               which

determine         whether        the        initial           screen      and     confirmatory             test

should be reported as positive.                             See 49 C.F.R.         §    40.87(a).           If a

test result is below the cutoff,                              the laboratory must report it

as negative.            Id.      §    40.87(b)-(c).                If a    test       result is at or

above the cutoff concentration, the laboratory must report it as

positive.         Id.   §   40.87(b)-(c).                 In the case of a marijuana test,

the relevant cutoff concentrations are 50 ng/mL for the initial

screen and 15 ng/mL for the confirmatory test.                                     Id.    §    40.87 (a).



                                                        -3-
       Rodriguez contends that "there is absolutely no evidence or

information in the report provided to the District of Columbia

indicating that         he     had a        positive       initial         urine       screen,    i.e.

over 50 ng/mL."         FAC     ~    12.        Therefore, he argues LabCorp was not

legally permitted to conduct a confirmatory test,                                      or to report

his test results as positive to the District of Columbia's Human

Resources Department.               FAC     ~~   13, 14, 21. 2            Rodriguez also claims

that   LabCorp       performed        the        wrong    type       of    testing        because    it

administered a "qualitative test," and not the test specified in

6-B D.C.M.R.     §    3906.         FAC    ~~    15-16.    On these grounds, Rodriguez

maintains that        he     "was denied a               fair    test       in compliance with

District of Columbia government procedures."                                FAC    ~   17.

       B.     Procedural Background

       On April 19,          2 013,       Rodriguez filed his original Complaint

in the      Superior Court            for       the District         of     Columbia,         bringing

claims      against    LabCorp         for       negligence,         gross        negligence,       and

breach of contract.             On May 10,              2013, LabCorp removed the case

to this Court pursuant                to 28 U.S. C.             §§   1332,        1441,      and 1446.


2
   LabCorp did not report Rodriguez's result directly to the
District of Columbia's Human Resources Department.    Instead, it
first forwarded the results to Dr. Charles Moorefield, a Medical
Review Officer ( "MRO"), whose responsibility it was to "verify
that the testing procedure was conducted properly."      FAC ~ 20;
see also 49 C.F.R. § 40.123.         Rodriguez alleges that Dr.
Moorefield   failed   to   properly   review   LabCorp's    testing
procedures.  FAC ~ 21.   However, he has not named Dr. Moorefield
as a defendant in the case.

                                                  -4-
    [Dkt .        No .        1] .        LabCorp        then        moved     to     dismiss         Rodriguez's

Complaint                 [Dkt.      No.     9] ,     but      subsequently withdrew                  its     motion

after         the         parties          stipulated          to     permit        Rodriguez       to      file     an

amended complaint.                          [Dkt. No. 13].

             On     August           2,     2013,      Rodriguez           filed      his    FAC,        asserting

claims              against               LabCorp        for        declaratory            judgment,          fraud,

negligent misrepresentation, negligence, breach of contract, and

breach of the implied covenant of good faith and fair dealing.

See generally FAC                         [Dkt. No.         15].      The FAC also includes claims

against "John Doe" Defendants for intentional interference with

prospective economic advantage and intentional interference with

business relations.                         FAC ~~ 64-85. 3

             On     August           23,     2013,       LabCorp        moved        to     dismiss         the     FAC

pursuant                 to      Rule      12(b) (6)         of      the      Federal       Rules        of       Civil

Procedure.                      [Dkt .     No.   16] .         On September           5,     2 013,      Plaintiff

filed his Opposition.                               [Dkt.    No.      17] .     On September 24,                  2013,

LabCorp filed its Reply.                            [Dkt. No. 19].



II.          STANDARD OF REVIEW




3
  The "John Does" are described as employees of LabCorp who were
involved in the testing and reporting of Rodriguez's drug test
results.   See FAC ~ 5.    Although Rodriguez identifies one of
these individuals in his Opposition as Kamlesh Patel, Pl.'s
Opp'n at 3, there is no indication that Rodriguez has attempted
to serve Mr. Patel, or any person other than LabCorp, with his
complaint.
                                                               -5-
         To survive a motion to dismiss,                          a complaint "must contain

sufficient factual matter,                    accepted as true,              to    'state a        claim

to relief that is plausible on its face.'"                                  Ashcroft v.        Iqbal,

556 U.S.       662,    678    (2009)     (citing Bell Atlantic Corp. v. Twombly,

550    u.s.     544,    570     (2007)).           "The plausibility standard is not

akin to a       'probability requirement,' but it asks for more than a

sheer possibility that a                  defendant has acted unlawfully."                              Id.

A     pleading        that    offers      mere          "labels     and     conclusions"           or     a

"formulaic recitation of the elements of a cause of action" will

not     suffice;        nor     will      "naked          assertions        devoid      of    further

factual       enhancement."             Id.    (quoting Twombly,             550     U.S.    at     557)

(internal       punctuation omitted).                      The   factual     allegations           "must

be     enough    to     raise       a   right       to     relief    above        the   speculative

level,"       Twombly,       550 U.S.         at    555,    and to permit           the Court           "to

draw the reasonable              inference that              the defendant          is liable for

the misconduct alleged."                 Iqbal, 556 U.S. at 678.

        "In    determining          whether         a    complaint        states    a   claim,          the

court may consider the facts alleged in the complaint, documents

attached thereto or incorporated therein,                                 and matters of which

it may take judicial notice."                       Stewart v. Nat'l Educ. Ass'n, 471

F.3d 169,       173     (D.C.   Cir.     2006)          (citation omitted).             A court may

also    consider        documents        of        undisputed       authenticity         that       "are

referred        to     in     the       complaint          and      are     integral         to"        the




                                                    -6-
plaintiff's claims.              Kaempe v.       Myers,       367 F.3d 958,          965     (D.C.

Cir. 2004)      (citation omitted).

         The court      is required to accept                 the complaint's            factual

allegations as         true and give a              plaintiff        "the benefit of all

inferences that can reasonably be drawn from such allegations."

Kaempe,      367 F.3d at 963           (citation omitted).                However,    the court

need not accept plaintiff's legal conclusions couched as factual

allegations.          Jacobs v.        Vrobel,      724    F.3d 217,         221     (D.C.    Cir.

2013).       Nor must it accept              "inferences drawn by plaintiffs if

such     inferences     are     unsupported by the                 facts    set    out     in the

complaint,"       or      by    other        documents        properly        considered        in

connection with the motion to dismiss.                        Kaempe, 367 F.3d at 963

(citations omitted) .

III. ANALYSIS

        A.    Materials Considered in This Motion to Dismiss

        In support of its Motion, LabCorp has submitted excerpts of

the    Report    it    prepared        in    connection        with       Rodriguez's        test.

These    excerpts,      the     authenticity of            which      Rodriguez       does     not

dispute,        include        pages        labeled       "Specimen         Test      Results,"

"Specimen        Summary,"         "Initial           Test         Data      Section,"         and

"Confirmation         Test     Data     Section."            See    Decl.     of     Robert     I.

Steiner in Support of LabCorp' s Reply                       ("Steiner Decl. ") ,            Ex. A

[Dkt. No.     19-1].         Rodriguez refers to these pages repeatedly in

his FAC; indeed,          they provide the sole factual underpinning for

                                              -7-
his contention that LabCorp failed to comply with the quality

control     regulations.                See        FAC   ~~     12,    15,       16,        18     & n.1.

Accordingly,     they are both incorporated by reference in the FAC

and   central    to        Rodriguez's          claims.          The    Court      may           therefore

consider them in deciding the Motion.

      B.     Declaratory Judgment

      In     Count         1,     Rodriguez          asks       the     Court          to        enter      a

"declaratory judgment that defendant                            LabCorp was under a                      duty

and   obligation       to       fully     comply with            federal     and        District           of

Columbia     government           drug        testing     procedures         pursuant              to     its

contract with         [the]       District of Columbia government and failed

to do so."      FAC    ~    35.

      LabCorp seeks to dismiss this claim on the grounds that it

is duplicative of Rodriguez's other claims.                              Def.'s Mot. at 8-9.

Rodriguez     contends            that        dismissal        is     improper         because            the

Federal Rules of Civil Procedure "permit[] parties to 'set forth

two   or more    statements              of    a    claim or defense              alternately or

hypothetically,'            and    to         'state     as     many    separate             claims        or

defenses as the party has                      regardless of consistency. '"                            Pl. Is

Opp'n at 14-15 (citing Cleveland v. Policy Mgmt. Sys. Corp., 526

U.S. 795, 805 (1999)              (quoting Fed. R. Civ. P. 8 (e) (2))).

      The Declaratory Judgment Act,                           2 8 U.S. C.    §    2 2 01,         provides

that "[i]n a case of actual controversy within its jurisdiction

           any court of the United States,                            upon the         filing of an

                                                   -8-
appropriate         pleading,         may declare             the     rights    and other       legal

relations of any interested party seeking such a                                       declaration,

whether or not further relief is or could be sought."                                     28 U.S.C.

§    2201 (a).      This language "has long been understood 'to confer

on federal courts unique and substantial discretion in deciding

whether to declare the rights of litigants.'"                                    Medimmune,       Inc.

v. Genentech,          Inc., 549 U.S. 118, 136                      (2007)     (quoting Wilton v.

Seven Falls Co.,              515 U.S.       277,       286    (1995));        see also Green v.

Mansour,      474      U.S.     64,     72       (1985)       ("[T]he    declaratory          judgment

statute is an enabling Act,                        which confers a discretion on the

courts      rather       than     an       absolute           right     upon     the    litigant.")

(citation omitted) .

       Although Rodriguez is correct that he is allowed to plead

in    the    alternative,             he     has       not    articulated         any    reason     to

maintain the declaratory judgment claim as a separate cause of

action.          The    claim         does       not    present        any     legal    or     factual

theories that are not already subsumed in his other claims.                                        See

Swartz v.        KPMG LLP,       476 F. 3d 756,              766    (9th Cir. 2007)           ("To the

extent      [plaintiff]        seeks a declaration of defendants'                            liability

for damages sought for his other causes of action, the claim is

merely      duplicative         and        was     properly         dismissed.")             Further,

Rodriguez does not identify any way in which his future actions

are likely to be affected by the declaratory relief he seeks.

See Schulman v. J.P. Morgan Inv. Mgmt.,                               Inc.,     35 F.3d 799,       812

                                                   -9-
    (3d Cir.     1994)     ("Even if a declaratory judgment would clarify

the parties'            legal rights,                  it should ordinarily not be granted

unless 'the parties' plans of actions are likely to be affected

by a        declaratory judgment.                 11
                                                       )   •      Accordingly,               Count       1 shall    be

dismissed.

           C.    Fraudulent Misrepresentation

           In   Count     2,      Rodriguez                     brings          a     claim    for        fraudulent

misrepresentation.                To plead a prima facie claim for fraudulent

misrepresentation,                a        plaintiff                   must          allege     " ( 1)     a     false

representation            (2)     in reference                        to    a    material      fact,       (3)   made

with knowledge of its falsity,                                   (4)       with intent to deceive,                 and

    (5)    action               taken       in         reliance             upon       the    representation.        11




Atraqchi v. GUMC Unified Billing Servs., 788 A.2d 559, 563                                                       (D.C.

2002) . 4       A false representation "is an assertion that is not in

accord with the facts.                11
                                              Saucier v.                    Countrywide Home Loans,                 64

A.3d 428, 438-39 (D.C. 2013)                               (citations and internal punctuation

marks omitted) .

           Because fraud claims are subject to a heightened pleading

standard         under     Rule            9(b)            of     the           Federal       Rules       of     Civil

Procedure,          a plaintiff "must state the time,                                        place and content

of        the   false    misrepresentations,                           the          fact   misrepresented          and


4
  The parties agree that District of Columbia substantive law
applies to Plaintiff's claims.  See Def.'s Mot. at 10 (citing
District of Columbia law as source of applicable standard);
Pl.'s Opp'n at 5 (same).
                                                               -10-
what was obtained or given up as a consequence of the fraud."

United States                 ex rel.    Joseph v.      Cannon,        642    F.2d 1373,       1385

    (D.C.    Cir.     1981).            However,      "intent,        knowledge,     and     other

conditions of a person's mind may be alleged generally."                                       Fed.

R. Civ. P. 9(b).

            Rodriguez's fraud claim is deficient                       in several respects.

First, he fails to identify any particular misrepresentation by

LabCorp.        His sole allegation pertaining to this element is that

LabCorp's employees "failed to disclose accurate information and

made false representations to the District of Columbia and the

plaintiff        regarding results and procedures used in                            [his]     drug

test."          FAC       ~    39.      This    allegation       is    too     generalized      and

conclusory            to        satisfy        Rule     9(b)'s         heightened        pleading

requirement.              It fails to specify the time, place, or content of

LabCorp's           employees'          misrepresentations.           As     previously      noted,

Rodriguez does not allege that his test results were factually

inaccurate. 5             Instead, his theory is that LabCorp used improper

testing         procedures.                However,      as      discussed        below,       this

contention           is        premised     entirely      on     LabCorp's         own     Report.

5
    In its Motion to Dismiss Rodriguez's original Complaint,
LabCorp pointed out that "Plaintiff does not allege that his
test results were inaccurate or that he had not engaged in
marijuana use prior to providing his urine sample; he simply
claims that LabCorp should not have performed the confirmatory
test arid then reported the results to the MRO." See Def.'s Mot.
to Dismiss [Original Compl.] at 2 [Dkt. No. 9].    Rodriguez had
the opportunity to address this point in his FAC, but did not do
so.
                                                 -11-
Accordingly,          it is entirely unclear what specific statement or

other communication by LabCorp was false or misleading.

        Second,        " [a]    plaintiff         may    recover       for        a    defendant's

fraudulent statement only if the plaintiff took some action in

reliance       on     that     statement."         Aktieselskabet            AF       21.   November

2001 v.        Fame    Jeans        Inc.,   525    F. 3d 8,    22-23     (D.C.          Cir.     2008)

    (citing Va. Acad. of Clinical Psychologists v. Grp. Hosp. & Med.

Servs.,     Inc.,      878 A.2d 1226,             1237-38     (D.C.    2005)).              Rodriguez

does     not    claim        that     he    himself     relied    on    LabCorp's             Report.

Instead, he contends that he may recover for fraud based on the

District of Columbia's reliance.                        However, he cites no District

of Columbia case to support this contention,                             and our Court of

Appeals has rejected the argument that a third party's reliance

satisfies the reliance element of common-law fraud.                                     See id. at

23      (affirming       dismissal          of    common-law       fraud          claim        because

"[r] ather than suggesting its own reliance,                          [plaintiff] says the

PTO      relied        on      [defendant's]            alleged       misrepresentation")

The~efore,      Rodriguez has not made out the element of reliance. 6


6
  Plaintiff cites Bridge v. Phoenix Bond & Indem. Co., 553 U.S.
639, 655-57 (2008) for the proposition that third-party reliance
satisfies the reliance element of fraud.   Pl.'s Opp'n at 17-18.
In Bridge, the Supreme Court considered third-party reliance in
the context of a civil RICO claim premised on violations of the
federal mail fraud statute.  The Court observed that "it may be
that first-party reliance is an element of a common-law fraud
claim," but emphasized that the case before it concerned a
"statutory offense that is distinct from common-law fraud."   Id.
at 656 (both emphases added) .   Since Rodriguez brings a claim
                                                 -12-
       Third,   beyond      a    formulaic       recitation of          the   elements     of

fraud,      Rodriguez      has   not   alleged       any       facts    suggesting       that

LabCorp or any of its employees knew or believed the Report was

inaccurate, or intended to deceive Rodriguez, or anyone else, by

providing false information.

       For each of these reasons, Rodriguez fails to state a claim

for fraudulent misrepresentation.                  Count 2 shall be dismissed.

       D.    Negligent Misrepresentation

       In    Count    3,    Rodriguez        brings       a     claim     for     negligent

misrepresentation.          The elements of negligent misrepresentation

are similar to the elements of                   fraud,       but do not        include the

element of fraudulent            intent.     Thus,        "[t] o establish negligent

misrepresentation by a defendant, a plaintiff must show that:

       1.    The   defendant           negligently               communicated           false
             information [,]

       2.    The defendant intended or should have recognized that
             the plaintiff would likely be imperiled by action
             taken in reliance upon     [the] misrepresentation[,]
             [and]

       3.    The  plaintiff   reasonably  relied    upon                         the    false
             information to his [or her] detriment.

Hall   v.    Ford    Enters.,      Ltd.,     445    A.2d       610,    612      (D.C.   1982)

(citing Restatement of Torts 2d              §    311 (1965); W. Prosser, Torts,

§   107, at 704-10 (4th ed. 1971)).




for common law fraud under District of Columbia law, not a claim
under the civil RICO provisions, Bridge is inapposite.
                                           -13-
        Rodriguez         fails    to    make      out     the    elements     of    negligent

misrepresentation for largely the same reasons that he fails to

state a claim for fraud,                 namely,     that he has not identified any

false    information communicated by LabCorp,                         and does not claim

that he himself relied on such information.                            Therefore, Count 3

shall be dismissed.

        E.        Negligence

        In Count 4,        Rodriguez brings a claim for negligence.                          The

elements of negligence are                   the existence of              "a duty of care,

breach       of    that    duty,       and   injury       proximately       caused     by   that

breach."          Odemns v.       Dist. of Columbia,             930 A.2d 137, 143          (D.C.

2007)    (citation and quotations marks omitted) .

        The parties address a significant portion of their papers

to the issue of whether LabCorp owed Rodriguez a duty of care.

See Def.'s Mem.           at 12-14; Pl.'s Opp'n at 6-14; Def.'s Reply at

3-7.     Whether a defendant owed the plaintiff a duty of care is a

question of          law to       be    decided by the            court,    with an eye        to

whether "injury to [the plaintiff] was reasonably foreseeable to

the defendant" at the time of the accident.                           Haynesworth v. D.H.

Stevens Co.,         645 A.2d 1095,           1098       (D.C.    1994).     The court must

also    consider       whether         any   applicable          statutes    or     regulations

create such a duty.               Odemns,     930 A. 2d at 143         (citing Jarrett v.

Woodward Bros., Inc., 751 A.2d 972, 980 (D.C. 2000)).



                                              -14-
        Although the District of Columbia Court of Appeals has not

addressed whether a commercial laboratory owes a duty of care to

drug-testing          subjects,          many         other        courts       have     recognized         the

existence of such a                duty.         See,        e.g.,       Cooper v.          Lab.    Corp.       of

Am.     Holdings,      Inc.,           150     F.3d     376,       379        (4th    Cir.    1998)        ("The

overall      trend     is        for    courts         to    recognize          the     existence          of    a

limited duty on the part of the laboratory to employees who are

the     subject       of    the        tests.") ;       Quisenberry              v.    Compass        Vision,

Inc.,    618 F.       Supp.      2d 1223,        1230        (S.D.       Cal.    2007)       ("To    [decline

to     recognize      such a           duty]     would mean              to    deprive       thousands          of

individuals        from       an       opportunity            to    challenge           or    receive       any

recourse        for        the     repercussions                   they       may      suffer        due        to

negligently        performed            laboratory            tests       producing          erroneous          or

inaccurate test            results.");           Chapman v.              LabOne,       460    F.    Supp.       2d

989,     1001   (S.D.       Iowa        2006)         (finding       a    duty        because       defendant

laboratory        "was      aware        it     was         testing       employee           samples,       and

accordingly,          could        anticipate               that     harm       could        come     to    the

employee as a          result of              [its]    negligent behavior in processing

the sample").

        In   fact,     although              LabCorp        contends          that     it    did     not    owe

Rodriguez a duty of care, .at least two of the cases it cites to

support its position hold that drug testing laboratories do owe

such a duty.          See Nehrenz v. Dunn,                     593 So.          2d 915,      918     (La. Ct.

App.    1992)     (sustaining negligence                       claim of          terminated employee

                                                      -15-
against laboratory); Elliott v.                           Lab.       Specialists,        Inc.,    588 So.

2d       175,    176       (La.    Ct.   App.          1991)       ("The     risk   of    harm    in   our

society to an individual because of a false-positive dr:ug test

is so significant that any individual wrongfully accused of drug

usage by his employer is within the scope of protection under

the law."), writ denied, 592 So. 2d 415 (La. 1992).

          As these cases have recognized,                            it is entirely foreseeable

that an employee who submits a                            specimen for drug testing will

suffer          adverse       effects         to       his      or     her     employment         if   the

laboratory erroneously reports a positive result.                                         The District

of Columbia's regulations expressly provide for termination of

employment following a positive drug test.                                     See 6- B D. C. M. R.       §

3907.1          ("The      following      shall          be     grounds       for    termination         of

employment .                  (a) A confirmed positive drug test result .

. ") .     Moreover,          the District of Columbia and the United States

Department           of      Transportation              have        both     enacted      regulations

requiring drug testing laboratories to implement quality control

procedures, presumably to protect against the danger of a false

positive.            See 6-B D.C.M.R.              §    3901 et seq.;          49 C.F.R.         Part 40,

Subpart         F.        Thus,     it   is     fully          consistent       with     general       tort

principles           and     the    tendency of              the     courts    to    hold,       and   this

Court does hold,              that commercial laboratories,                         such as LabCorp,

owe a duty of care to drug testing subjects, such as Rodriguez.



                                                       -16-
        However,      as discussed,        Rodriguez has not alleged that his

test results were inaccurate,                  only that LabCorp' s violation of

certain        procedural       requirements          caused     the     results        to   be

erroneously reported to his employer.                      Whether LabCorp's duty to

Rodriguez        included       strict     compliance       with       these     procedural

requirements,         and whether a           plaintiff,    such as          Rodriguez,      can

demonstrate proximate causation where he does not                               allege that

his test results were inaccurate, are open questions. 7                                However,

the Court need not reach these questions because there is a more

fundamental         problem with        Rodriguez's        negligence         claim,     namely

that the FAC does not support the "reasonable inference," Iqbal,

556     u.s.     at     678,     that      LabCorp       violated        any     procedural

requirement.

        As   previously        discussed,       Rodriguez      alleges        that      LabCorp

breached its duty to comply with the quality control regulations

in    two    respects,    first,      by      not    obtaining     a   positive         initial

screen prior to conducting a confirmatory test,                              and second,      by

not using the immunoassay methodology required by 6-B D.C.M.R.                                 §

3906.        With     respect    to     the    first    theory,        the    sole      factual



7
   The Court notes that the quality control regulations require a
laboratory to store a urine specimen, and if the specimen is
confirmed positive, to notify the employee of his or her right
to send the stored sample to another certified laboratory for
confirmation of the positive result.  See 6-B D.C.M.R. § 3906.5.
There is no evidence Rodriguez ever availed himself of this
right.
                                              -17-
allegat.ion to support it is in paragraph 12 of the FAC,                                     which

contends:

           [T] here is absolutely . no evidence or information in
          the report provided to the District of Columbia
          indicating that [Rodriguez] had a positive initial
          screen, i.e., over 50 ng/mL.      No where [sic] in the
          report from LabCorp is it indicated that the initial
          test met or exceeded the 50 ng/mL cutoff level.

FAC   ~    12.

          However,        the    Report     states      in    two   separate    places         that

LabCorp did conduct an initial screen of Rodriguez's specimen,

and that          such screen exceeded the                   concentration cutoff of             50

ng/mL.           First,    on a     page titled         "Specimen Test Results,"                the

Report      lists both a           "screening"         and a    "confirm"      test,    defines

the       "Screening       Cutoff"     as       50   ng/mL,     and    indicates       that     the

collective          results       of      the    "screening"          and   "confirm"         tests

conducted on Rodriguez's specimen were "POSITIVE."                               See Steiner

Decl., Ex. A at 6.               Second, on a page titled "Specimen Summary,"

the Report states:

      Initial   Test   Results                       (Immunoassay)          Presumptive
      positive for Cannabinoid

      Confirmation  Test   Results   (GC/MS)                            Positive       for
      Marijuana Metabolite: 48 ng/ml

Id. at 1.

      In         short,         Rodriguez's          contention        that    "[t]here          is

absolutely no evidence or information in the report"                                   that his

specimen had a positive initial screen is squarely contradicted


                                                 -18-
by the Report itself.             Consequently, the Court cannot accept the

allegations in Paragraph 12 of the FAC as true.

       With respect to Rodriguez's second theory as to how LabCorp

breached its duty of care, he contends:

       It is         clear that LabCorp performed the wrong
       kind of test, i.e., it did not administer the enzyme
       multiple immunoassay technique (EMIT) test as required
       by D.C. municipal regulation 6-B D.C.M.R. § 3906.  The
       test administered by LabCorp, in its own words, was a
       'qualitative'  test which 'should not be used to
       determine the concentration of drug or drug metabolite
       present in specimens.'

FAC    ~ 16.     Rodriguez quotes directly from the "Initial test Data

Section" of the Report to support this allegation.                               See FAC       ~

16, n.l.

       Again,      Rodriguez's        allegations         about        the   Report          are

directly contradicted by the Report itself.                            The Report states

in at     least three different places that LabCorp first used an

immunoassay test,          which is a      qualitative test,              to conduct the

initial        screen,     and    then    used     a     GCMS     test,      which      is     a

quantit'ative      test,    to confirm the positive result                   and measure

the    precise      concentration         of     drug     metabolites           present       in

Rodriguez's sample.              See Steiner Decl.,         Ex. A at 1,          2,   7,     16.

This is what the regulations require.                      See 6-B D.C.M.R.            3906.4

("[T]he    vendor        shall    split   each     sample        and    perform       enzyme-

multiplied immunossay             [sic]   (EMIT)       testing                  A positive

EMIT     test      shall     be     confirmed                           using     the        gas


                                          -19-
chromatography/mass spectrometry                      (GCMS)    methodology.");            see also

Skinner       v.    Ry.     Labor     Execs.       Ass'n,    489      U.S.     602,     610    (1989)

    ("While   drug        screens    may    be     conducted       by    immunoassays

positive drug findings are confirmed by gas chromatography/mass

spectrometry.             These    tests,    if     properly conducted,               identify the

presence of                       drugs    in the biological             samples tested with

great accuracy.")             (quoting United States Dep' t                    of Transp.       Field

Manual:       Control of Alcohol and Drug Use in Railroad Operations

B-12      (1986)          (quotation       marks     and     brackets          omitted));       Nat'l

Treasury Employees Union v. U.S. Customs Serv., 27 F.3d 623,                                        625

(D.C.     Cir.      1994)     ("The       laboratory to which specimens                   are      sent

will first employ an immunoassay test;                          any sample identified as

positive        will       then     be     tested     using     gas       chromatography/mass

spectrometry (GC/MS) techniques.")                       (citation omitted) . 8

        While       the     Court    would       ordinarily        be    required       to    accept

Plaintiff's          factual       allegations       as     true    at    this     stage      of    the

proceedings,         his     allegations         rely on a         document      that    expressly

contradicts         the     conclusions        he    draws     from      it.     Therefore,         the

Court is not required to accept such allegations as true.                                           See

Kaempe,       367 F.3d at           963    (citing Veney v.             Wyche,    293    F.3d 726,

730      (4th      Cir.     2002)).         Further,        without       any     other       factual

8
  The Report does not specify that LabCorp used an "enzyme-
multiplied" immunoassay technique, as opposed to a different
type of immunoassay.    However, Rodriguez does not allege that
LabCorp performed the wrong type of immunoassay test, and the
Report does not suggest as much.
                                                  -20-
allegations to support his claim that LabCorp breached its duty

of care, or any contention that the test result was erroneous or

inaccurate,      Rodriguez's      negligence          claim does      not    satisfy the

plausibility standard of Twombly and Iqbal.                      Accordingly,          Count

4 shall be dismissed.

        F.    Intentional Interference Claims

        In   Counts     Five    and     Six,       Rodriguez     brings       claims     for

intentional       interference           with         prospective      advantage         and

intentional interference with business relations.

        LabCorp did not address these claims in its moving papers,

and Rodriguez contends,           therefore,          that such claims may not be

dismissed.       P l . ' s Opp' n at 5-6 .         LabCorp counters in its Reply

brief that it was not required to seek dismissal of Counts 5 and

6 because the FAC brings them against the "John Doe" Defendants

only,    and not against LabCorp.                  Def. 's Reply at         12.   LabCorp

further      argues   that     even    if   it     was   named   as   a     defendant     in

Counts 5 and 6,         the claims should be dismissed for failure to

state a cause of action.              Id. at 13-15.        The Court agrees.

        LabCorp is correct that the intentional interference claims

state that they are brought against the "John Does" and do not

mention LabCorp.         Rodriguez now contends              (in his Opposition to

LabCorp' s    Motion)    that    LabCorp         is    vicariously     liable     for    the

conduct of the John Does, none of whom have been served with the

FAC.     Pl.'s Opp'n at 5-6.            The FAC does not assert this theory

                                            -21-
in Counts 5 and 6,                      and therefore LabCorp was not required to

address those counts in its moving papers.

       Even    if        Rodriguez          had    named     LabCorp    as    a        defendant     in

Counts     5   and        6,       he    has     not   stated    a    cause       of     action     for

intentional interference with prospective economic advantage or

intentional interference with business relations.                                      To establish

either claim, a plaintiff must allege facts setting forth:                                          (1)

the existence of a valid business relationship or expectancy;

(2) the defendant's knowledge of the relationship or expectancy;

( 3)     the     defendant's                   intentional       interference               with    the

relationship         or        expectancy;         and     (4)   resulting        damages.          See

NCRIC,    Inc.      v.       Columbia Hosp.            for Women Med.         Ctr.,         Inc.,   957

A.2d 890,      900       &    n.l8       (D.C.    2008); Casco Marina Dev.,                 L.L.C. v.

D.C. Redevelopment Land Agency, 834 A.2d 77, 84 (D.C. 2003).

       There     is          not     a    single       factual    allegation           in     the   FAC

plausibly suggesting that LabCorp                          (or anyone else)             intended to

interfere      with           Rodriguez's          employment        relationship            with   the

District of Columbia.                     The mere awareness that Rodriguez could

be adversely affected by a positive test result is insufficient.

As our Court of Appeals has observed:

       As its name would suggest; intentional interference
       requires an element of intent.            [A] general
       intent to interfere or knowledge that conduct will
       injure    the   plaintiff's    business dealings   is
       insufficient to impose liability.



                                                   -22-
Bennett Enterprises,             Inc. v. Domino's Pizza,                     Inc., 45 F.3d 493,

499   (D.C.       Cir.        1995)     (emphasis          in    original)            (citation        and

quotation marks omitted) .                  Because there are no facts suggesting

that LabCorp,          or any of its employees,                      acted with a desire or

purpose     to    interfere           with       Rodriguez,s          employment,          the     Court

shall dismiss the              intentional          interference claims at                     Counts     5

and 6. 9

      G.      Breach of Contract

      In    Count        7,     Rodriguez          brings        a    claim       for     breach         of

contract.          A     claim        for        breach    of        contract         includes         four

elements:     "(1)       a     valid    contract          between       the      parties;        (2)     an

obligation or duty arising out of the contract;                                   (3)   a breach of

that duty;       and     (4)    damages caused by breach.                   11
                                                                                  Tsinolas Realty

Co. v. Mendez, 984 A.2d 181, 187 (D.C. 2009)                                (citation omitted).

Rodriguez contends that LabCorp s contract with the District of
                                                    1




Columbia         required         compliance              with        the        quality         control

regulations.        He further claims that he has standing as a third-

party beneficiary to enforce this aspect of the contract, which

LabCorp disputes.              See Def. s Mot. at 14-17; Pl. s Opp n at 20-
                                             1                                    1        1




22.

9
   Having so concluded, the Court does not reach LabCorp,s
alternate contention that an "at-will employment contract, such
                                                            11


as the one between Rodriguez and the District of Columbia,
cannot, as a matter of law, satisfy the first element of an
intentional interference claim.    Def., s Reply at 14 (citing
Zelaya v. UNICCO Serv. Co., 587 F. Supp. 2d 277, 286-87 (D.D.C.
2008)) .
                                                  -23-
        Whatever the merits of Rodriguez's third-party beneficiary

theory, his breach of contract claim,                               like his other claims,                   is

predicated on the contention that LabCorp violated the quality

control        regulations.               As     already          noted,        he    pleads       no    facts

plausibly suggesting LabCorp violated any of these provisions.

Accordingly, even assuming that the contract between LabCorp and

the      District           of         Columbia           required         compliance             with      the

regulations,              and that       a     drug       testing subject              has    standing to

enforce        this       requirement,           Rodriguez          still        would       not    state     a

claim        for    breach        of    contract.            Therefore,              Count    7    shall    be

dismissed.

        H.         Breach of the Covenant of Good Faith and Fair Dealing

        Finally, at Count 8, Rodriguez brings a claim for breach of

the covenant of good faith and fair dealing.                                         "Under District of

Columbia           law,     every       contract          contains        within        it    an        implied

covenant of both parties to act in good faith and damages may be

recovered           for     its        breach     as       part     of      a        contract      action."

Choharis v.           State       Farm Fire           &    Cas.     Co.,    961 A. 2d 1080,                1087

(D.C.        2008)        (citation          omitted) .            This     covenant          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)                   (citations omitted).                 "To state a claim for

breach of the implied covenant of good faith and fair dealing, a

                                                      -24-
plaintiff      must     allege     either    bad       faith   or    conduct        that    is

arbitrary and capricious."             Wright v. Howard Univ., 60 A.3d 749,

754 (D.C. 2013)

        Rodriguez      was   not   a   party      to    the    contract      between       the

District of Columbia and LabCorp.                      The mere fact         that he may

have    been    one    of    thousands      of    beneficiaries         of     a    specific

quality control provision contained in that                         contract does not

mean that LabCorp generally owed him a contractual duty of good

faith and fair dealing.             Further, there are no facts in the FAC

suggesting that LabCorp or any of its employees operated in bad

faith    or    in an    arbitrary and capricious               manner     at       any time.

Accordingly, Count 8 shall be dismissed.

IV.     CONCLUSION

        For the foregoing reasons,               Defendant's Motion is granted,

and the FAC shall be dismissed.                   An Order shall accompany this

Memorandum Opinion.




February 4, 2014
                                                  United States District Judge


Copies to: attorneys on record via ECF




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