Vilcek v. Uber USA, LLC

• Decision Date: 30 August 2018
• Docket Number: No. 17-2724,17-2724
• Citation: 902 F.3d 815
• Parties: Aaron VILCEK; Douglas A. Uchendi; Jeffrey Hamilton ; Robert Glynn, Plaintiffs - Appellants v. UBER USA, LLC, Defendant Uber Technologies, Inc., Defendant - Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

902 F.3d 815

Aaron VILCEK; Douglas A. Uchendi; Jeffrey Hamilton ; Robert Glynn, Plaintiffs - Appellants

v. UBER USA, LLC, DefendantUber Technologies, Inc., Defendant - Appellee

No. 17-2724

United States Court of Appeals, Eighth Circuit.

Submitted: April 11, 2016

Filed: August 30, 2018

Gary A. Growe, GROWE & EISEN, Clayton, MO, Joe David Jacobson, Matthew B. Vianello, JACOBSON & PRESS, Saint Louis, MO, for Plaintiffs - Appellants.

James F. Bennett, Sheena Hamilton, DOWD & BENNETT, Saint Louis, MO, Erik J. Clark, Douglas R. Cole, ORGAN & COLE, Columbus, OH, for Defendant - Appellee.

Before BENTON, MELLOY, and GRASZ, Circuit Judges.

BENTON, Circuit Judge.

Four taxicab drivers sued Uber Technologies, Inc., in Missouri state court, individually and for a putative class. They alleged tortious interference with a valid business expectancy and sought damages. After Uber removed the case, the district court dismissed for failure to state a claim. Vilcek v. Uber USA, LLC , No. 4:15CV1900 HEA, 2016 WL 8674064, at *4 (E.D. Mo. Sept. 30, 2016). The drivers appeal. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

In September 2015, Uber began offering rides for hire in St. Louis.¹ About two months later, the drivers sued. The drivers are all licensed by the St. Louis Metropolitan Taxicab Commission (MTC), and the class would be defined as all drivers licensed by the MTC. The MTC was "created for the public purposes of recognizing taxicab service as a public transportation system, improving the quality of the system, and exercising primary authority over the provision of licensing, control and regulations of taxicab services" in St. Louis. § 67.1804.² It has the power to "[a]dopt a taxicab code to license and regulate taxicab companies and individual taxicabs, and to provide for the enforcement of such code ...." § 67.1808(8).

The MTC Code says, "No person shall operate a vehicle for hire in [St. Louis] without first obtaining a MTC driver’s license ...." MTC, Vehicle for Hire Code § 401(A) (rev. 5/31/2017). A driver must have a valid Missouri "chauffer’s license" to be eligible for a MTC license. § 401(B)(4). Prospective MTC drivers are subject to a "background check." § 401(B)(5). See § 67.1819 (requiring MTC to request background checks). When Uber entered the St. Louis market, this background check required "fingerprint identification" of drivers. Vehicle for Hire Code § 401(B)(5) (rev. 8/22/2011). See § 67.1819 (requiring fingerprinting).

The Amended Complaint alleges the following facts, which this court assumes to be true, construing all reasonable inferences most favorably to the drivers. See Ray v. ESPN, Inc. , 783 F.3d 1140, 1142 (8th Cir. 2015). Uber’s services are "indistinguishable from the incumbent taxicab services." In September 2015, the MTC "voted ... to allow Uber to operate in St. Louis." "The MTC directed, however, that Uber drivers be fingerprinted and possess a Class E Missouri chauffeur’s license, the same as all other taxicab drivers." Uber immediately began providing services in St. Louis. However, "with intentional ... disregard for the MTC’s authority and rules," it "us[ed] drivers who do not comply with the [MTC Code’s] licensing requirements." Uber’s violation "continues to this day."³ "A significant portion of the rides provided by Uber in St. Louis ... would have gone to plaintiffs and the class but for Uber’s entry." The drivers and other MTC drivers—who previously had a "steady" business—saw "decreases in revenue of 30-40%" resulting from a "decrease in passenger calls."

The district court dismissed the Amended Complaint, reasoning that the taxicab drivers had not alleged a valid business expectancy. This court reviews "de novo a district court’s grant of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)," and "may affirm the judgment below on any ground supported by the record ...." Wartman v. United Food and Comm. Workers Local 653 , 871 F.3d 638, 640 (8th Cir. 2017) ; Christiansen v. West Branch Cmty. Sch. Dist. , 674 F.3d 927, 934 (8th Cir. 2012).

II.

To state a claim for tortious interference with a business expectancy, the taxicab drivers must properly allege: "(1) a valid business expectancy; (2) defendant’s knowledge of the relationship; (3) a breach induced or caused by defendant’s intentional interference; (4) absence of justification; and (5) damages." Stehno v. Sprint Spectrum, L.P. , 186 S.W.3d 247, 250 (Mo. banc 2006). A valid business expectancy is a "reasonable expectation of economic advantage or commercial relations." Sloan v. Bankers Life & Cas. Co. , 1 S.W.3d 555, 565 (Mo. App. 1999) (internal quotation marks omitted). "[M]ere hope" is not enough. Stehno , 186 S.W.3d at 250. The expectancy must be "reasonable and valid under the circumstances presented." Western Blue Print Co., LLC v. Roberts , 367 S.W.3d 7, 19 (Mo. banc 2012).

The drivers allege that before Uber entered the St. Louis market, they expected that the "public seeking ride-for-hire services" would continue to ride with MTC drivers in steady numbers. The district court held this insufficient, partly because it does not identify specific passengers. Vilcek , 2016 WL 8674064, at *3. The drivers argue they need not identify specific passengers, citing Missouri cases. See, e.g. , Bell v. May Dept. Stores Co. , 6 S.W.3d 871, 877 (Mo. banc 1999) ("valid credit expectancy" exists where "plaintiff expect[s] to apply for credit" and has "a reasonable chance of obtaining credit" (emphasis in original) ); Carter v. St. John’s Reg’l Med. Ctr. , 88 S.W.3d 1, 13 (Mo. App. 2002) (plaintiff "did not have to plead ... a business relationship ...; proof of expectancy, i.e., proof of prospective contractual relations, was enough."). The taxicab drivers say their expectancy was reasonable because the public had consistently sought rides for hire and—but for Uber—had no alternative to MTC drivers.

This court need not decide whether this is a valid business expectancy, because the drivers have not alleged the absence of justification. "Absence of justification refers to the absence of a legal right to justify actions taken." Western Blue Print , 367 S.W.3d at 20. "If the defendant has a legitimate interest, economic or otherwise, in the expectancy the plaintiff seeks to protect, then the plaintiff must show that the defendant employed improper means in seeking to further only his or her own interests." Bishop & Assocs., LLC v. Ameren Corp. , 520 S.W.3d 463, 472 (Mo. banc 2017). "Improper means are those that are independently wrongful, such as threats, violence, trespass, defamation, misrepresentation of fact, restraint of trade, or any other wrongful act recognized by statute or the common law." Id.

Uber has a legitimate economic interest in the drivers’ expectation of continuing to provide rides for hire to the public, because Uber and the drivers are direct competitors in the ride-for-hire market. See Central Trust and Inv. Co. v. Signalpoint Asset Mgmt., LLC , 422 S.W.3d 312, 324 (Mo. banc 2014) ("[The plaintiff] concedes ... that [the defendant] has a legitimate economic interest in [the plaintiff’s] expectation of continuing to do business with its former clients because the two companies are direct competitors."). The issue is whether Uber used improper means. Id. See Briner Elec. Co. v. Sachs Elec. Co. , 680 S.W.2d 737, 743 (Mo. App. 1984) (competition is a legitimate economic interest and valid justification for interference with a business expectancy as long as the defendant did not employ improper means).

The drivers argue that Uber used improper means by disregarding MTC licensing requirements in violation of the MTC Code and the statutes creating and enabling the MTC, sections 67.1800-67.1822. They emphasize that improper means include "any wrongful act recognized by statute." Bishop , 520 S.W.3d at 472.

But Missouri does not allow private causes of action for damages based solely on the violations of a statute unless the legislature intended the violations to be privately actionable. See Dierkes v. Blue Cross and Blue Shield , 991 S.W.2d 662, 667-68 (Mo. banc 1999) (distinguishing claims based on a breach of defendant’s promise to comply with all applicable law, from claims "created solely by the statute"); Egan v. St. Anthony’s Med. Ctr. , 244 S.W.3d 169, 173 (Mo. banc 2008) (affirming the general rule for actions for damages). This general rule applies even if a theory of relief applies to "unlawful" acts or "violation[s] of a statute." See Greene v. Schneider , 372 S.W.3d 887, 890-91 (Mo. App. 2012) (no cause of action for civil conspiracy—"agreement ... to do an unlawful act"—based on violation of a statute that creates no private cause of action); Imperial Premium Fin. v. Northland Ins. , 861 S.W.2d 596, 599 (Mo. App. 1993) (no cause of action for negligence per se—"the violation of a statute ... shown to be the proximate cause of [ ]injury"—based on violation of a statute that creates no private cause of action); Bradley v. Ray , 904 S.W.2d 302, 314 (Mo. App. 1995) ("Because this Court finds no private cause of action can be implied under the [ ]Act, ... the alleged breach of the Act also does not amount to negligence per se ."); Noss v. Abrams , 787 S.W.2d 834, 837-38 (Mo. App. 1990) (no cause of action for fraudulent concealment based on violating a regulation requiring disclosure of information, where the legislature did not authorize private causes of action and the regulation did not "purport to make the violation fraudulent concealment"); Neighbors Against Large Swine Operations v. Continental Grain Co. , 901 S.W.2d 127, 132 (Mo. App. 1995) (although the Declaratory Judgment Act says, "[a]ny person whose rights are affected by a statute may obtain a declaration of rights," "the [ ]Act cannot serve as a basis for relief when the party seeking to invoke [it] does not have a direct cause of action concerning the matter," because it would amount to an "end run around the lack of...