Cominelli v. The Rector and Visits. of Univ. Of Va

• Decision Date: 09 December 2008
• Docket Number: Civil No. 3:08CV00048.
• Parties: Fabio COMINELLI, Plaintiff, v. THE RECTOR AND VISITORS OF THE UNIVERSITY OF VIRGINIA, and Robert M. Strieter in his official and individual capacity, Defendants.
• Court: U.S. District Court — Western District of Virginia

Page 706

589 F.Supp.2d 706

Fabio COMINELLI, Plaintiff, v. THE RECTOR AND VISITORS OF THE UNIVERSITY OF VIRGINIA, and Robert M. Strieter in his official and individual capacity, Defendants.

Civil No. 3:08CV00048.

United States District Court, W.D. Virginia, Charlottesville Division.

December 9, 2008.

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Edward Bennett Lowry, Michie Hamlett Lowry Rasmussen & Tweel PC, Charlottesville, VA, for Plaintiff.

Margaret Alice Browne, Office of the General Counsel, Richard Croswell Kast, University of Virginia, Charlottesville, VA, Peter Robert Messitt, Office of the Attorney General, Richmond, VA, for Defendants.

MEMORANDUM OPINION

NORMAN K. MOON, District Judge.

This matter is before the Court on Defendants' Motion to Dismiss (docket no. 2) pursuant to Federal Rule of Civil Procedure 12(b)(6) and Plaintiff's subsequent Motion to Amend (docket no. 18). For the reasons that follow, I will DENY Plaintiff's Motion to Amend Counts 1 and 4 of the Complaint and GRANT Defendants' Motion to Dismiss Counts 1, 2, 3, 5, 6, and 7 of the Complaint.

I. BACKGROUND

Fabio Cominelli ("Plaintiff") first began working at the University of Virginia ("UVA") Hospital in 1995 as the Chief of the Division of Gastroenterology and Hepatology ("Division"). He later founded the Digestive Health Center of Excellence ("Center") and served as its Director while continuing to serve as Chief of the Division. According to Plaintiff, the Division and the Center both achieved immense success under his leadership and guidance. During his tenure as Chief, Plaintiff claims that the Division grew in size, received substantial funding from the National Institutes of Health, and maintained significant profits—amounting to more than $5 million over a twelve-year period, all of which was distributed to other less profitable divisions within the Department of Medicine at UVA. Plaintiff also claims that, under his leadership, the Center reaped over $37 million in profits for the Medical Center over a six-and-a-half year period.

Plaintiff maintains that he had an excellent relationship with his superiors at the Hospital until 2006, when Defendant, Dr. Robert Strieter, became Chairman of the Department of Medicine and thus Plaintiffs superior. In the fall of that year, the School of Medicine and the Audit Department conducted an audit of Plaintiffs Division, which Plaintiff alleges was targeted at him to collect evidence to eventually remove him from his position. In early 2007, Plaintiff alleges that he expressed concerns about the audit to the School of Medicine's Dean and Director of Faculty and Staff Employee Relations, but no action was taken to address his concerns.

As the audit continued, Plaintiff applied for the position of Chair of the Department of Medicine at the University of Maryland ("UMD"). Plaintiff alleges that, after several interviews, he was eventually invited to come to Maryland on June 25-26, 2007 to meet others in the School of Medicine and sign an employment agreement. He also claims that the Dean of the UMD Medical School scheduled a conference call for June 12, 2007 to review an electronic copy of an offer letter that the Dean was supposed to send to Plaintiff later that day.

On June 11, 2007, Plaintiff alleges that he was scheduled to meet with the auditor for the School of Medicine to review and discuss a draft of the audit report but was instead directed to meet with Strieter and the Dean of the UVA Medical School. At the meeting, Plaintiff was given a letter informing him that Strieter was choosing to exercise his discretion as Chair of the Department to remove Plaintiff from his positions in response to significant concerns about Plaintiff's leadership, "including a high rate of faculty departures, repeated reports of unfair allocation of financial resources, failure to make funds available as committed in start up packages, inappropriate restrictions on access to research materials, and numerous instances of poor management practices and violations of University policies as documented in a recent University Internal Audit investigation." Plaintiff claims that he was never given an opportunity to review the draft audit report until well after he was removed from his positions as Director and Chief, and that he was never given an opportunity to discuss the allegations and the reasons for his termination with the Dean and Strieter.

After meeting with Plaintiff on June 11, 2007, Strieter sent an email to the Division announcing that Plaintiff had been removed from his positions as Director and Chief "in response to an ongoing personnel matter." Plaintiff claims that Strieter sent the email with full knowledge that it would be interpreted as a statement that Plaintiff was guilty of some "grievous personal wrongdoing" and that it would be re-published in the broader academic and medical community, likely affecting Plaintiffs pending appointment at UMD. On June 13, 2007, the email was forwarded to eighty-one other people within the Department of Medicine. Plaintiff further alleges that Strieter removed him on June 11, 2007 because he was under the impression that Plaintiff was going to announce his departure to UMD on June 12, 2007 and was "anxious to engineer his termination from his positions" as Chief and Director. According to Plaintiff, Strieter's scheme worked, because the Dean of UMD called to express his concern about the situation the day after Strieter's email was sent and withdrew UMD's offer a few days later.

After being removed from his positions as Director and Chief, Plaintiff maintained his position as a faculty member at UVA. He eventually received a copy of the draft audit report, which he claims focused on the expenses related to several of the 130 trips he took in his capacities as Director and Chief. He claims that the majority of mistakes and irregularities uncovered by the audit were related to the fact that the trips he took were financed by other entities in addition to UVA. He alleges that he provided a detailed response for every item questioned and reimbursed UVA for any expenses the auditor believed were incorrectly accounted for. He also complains that he never received evaluations as a faculty member during Strieter's tenure as Chair, with the sole exception of an evaluation of his position as Chief in 2006. He claims that the University's failure to provide these evaluations violated several Department policies and procedures.

In light of these facts, Plaintiff alleges seven different counts in his Complaint: (i) tortious interference with business expectancy (against all Defendants); (ii) tortious interference with business expectancy (against the individual Defendant Strieter); (iii) defamation (against the individual Defendant Strieter); (iv) denial of due process under 42 U.S.C. § 1983 (against UVA and against Defendant Strieter in his representative capacity); (v) denial of due process under the Virginia Constitution (same); (vi) wrongful termination—breach of contract (against UVA); and (vii) and punitive and exemplary damages (against all Defendants). Defendants filed a Motion to Dismiss on September 30, 2008.

In response to several pleading deficiencies identified by Defendants in the Motion to Dismiss, Plaintiff filed a Motion to Amend on October 30, 2008, alleging six separate counts. In an Order (docket no. 20) dated November 5, 2008, this Court granted Defendants' Motion to Dismiss Plaintiff's § 1983 due process claim against the University and Strieter in his representative capacity (Count 4) while reserving judgment on the Motion to Amend and the Motion to Dismiss the remaining counts of the Complaint.

II. STANDARD OF REVIEW

A. MOTION TO DISMISS

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint to determine whether the plaintiff has properly stated a claim; "it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.1992). Although a complaint "does not need detailed factual allegations, a plaintiff's obligation to provide the `grounds' of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (internal citations omitted). Instead, the "[f]actual allegations must be enough to raise a right to relief above the speculative level," id. at 1965, with all allegations in the complaint taken as true and all reasonable inferences drawn in the plaintiff's favor. Chao v. Rivendell Woods, Inc., 415 F.3d 342, 346 (4th Cir.2005); Warner v. Buck Creek Nursery, Inc., 149 F.Supp.2d 246, 254-55 (W.D.Va.2001). Rule 12(b)(6) does "not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Twombly, 127 S.Ct. at 1974. A plaintiff's complaint must therefore be plausible, not merely conceivable, in order to avoid dismissal. Id.

B. MOTION TO AMEND

Under Federal Rule of Civil Procedure 15(a), a party may amend its complaint after a responsive pleading has been served with the court's leave, which "shall be freely given when justice so requires." A court should deny leave to amend "only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would be futile." Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir.1986) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). "[D]elay alone is not sufficient reason to deny leave to amend" and "must be accompanied by prejudice, bad faith, or futility." Id. (citations omitted). An amendment may properly be found futile where, as a matter of law, it...