Walker v. Intelli-heart Servs., Inc.

• Decision Date: 04 March 2020
• Docket Number: Case No. 3:18-cv-00132-MMD-CLC
• Parties: TERRANCE WALKER, Plaintiff, v. INTELLI-HEART SERVICES, INC., et al., Defendants.
• Court: U.S. District Court — District of Nevada

TERRANCE WALKER, Plaintiff, v. INTELLI-HEART SERVICES, INC., et al., Defendants.

Case No. 3:18-cv-00132-MMD-CLC

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

March 4, 2020

ORDER

I. SUMMARY

Pro Se Plaintiff Terrance Walker primarily alleges that Defendants Intelli-heart Services, Inc. ("IHS"), Danny Weisburg, Vanessa Parsons, and Daniel Germain tortiously interfered with his contract with non-party James Winters. (ECF No. 136.) Before the Court are Defendants' special motions to dismiss Plaintiff's claims against them under Nevada's anti-SLAPP statute and, alternatively, Federal Rule of Civil Procedure 12(b)(6) (ECF Nos. 159, 169),¹ and two of Plaintiff's motions for partial summary judgment (ECF Nos. 158, 171).² As further explained below, because the Court agrees with Defendants that Plaintiff's claims must be dismissed under Nevada's anti-SLAPP statute, the Court will grant those motions, decline to address Defendants' 12(b)(6) arguments, and deny Plaintiff's motions for partial summary judgment as moot.

II. BACKGROUND

Defendant IHS is a California corporation that provides outpatient, remote heart monitoring services to hospitals and other medical institutions, so they can monitor theirpatients' hearts while those patients are, say, at home. (ECF No. 136 at 3-4.) "Defendant Vanessa Parsons is the Chief Executive Officer of IHS, and Defendant Danny Weisberg is the President of IHS." (ECF No. 169 at 2.) Defendant Daniel Germain represented IHS as its attorney as relevant to this case. (ECF No. 159 at 2.)

Plaintiff runs his own business based in Reno, Nevada. (ECF No. 136 at 3.) He "provides a variety of professional services such as consulting, market research, registering companies to qualify for federal contracts, finding relevant solicitations, reviewing federal solicitations, preparing bids, compliance advising, advising on procurement regulations, and contract dispute resolution for U.S. government procurements." (Id.)

IHS entered into a contract with non-party James Winters in which Winters would act as a regional sales distributor for IHS. (ECF No. 169 at 2; see also ECF No. 169-1 ("Distributor Agreement").) In pertinent part, the Distributor Agreement prohibited Winters in entering into any contracts on IHS's behalf:

Distributor's Inability to Contract for IHS: In spite of anything contained in this Agreement to the contrary, Distributor shall not have the right to make any contracts or commitments for or on behalf of IHS without first obtaining the express written consent of IHS.

(ECF No. 169-1 at 8 (the "No Contracting Clause"); see also ECF No. 136 at 36 (same).) The Distributor Agreement further gave IHS the right to terminate the Distributor Agreement for cause, on 30 days' notice, if Winters violated certain terms of the agreement including the No Contracting Clause. (ECF No. 169-1 at 9.)

Despite the No Contracting Clause, Winters entered into a second contract with Plaintiff where Plaintiff basically agreed to help Winters win government contracts for IHS if Winters paid him 50% of the commission Winters made on any contracts Winters won with Plaintiff's help. (ECF No. 136 at 8; see also id. at 25-28.) According to Plaintiff, Plaintiff helped Winters win "about a dozen" contracts for remote heart-monitoring services for IHS from U.S. Department of Veterans Affairs ("VA") hospitals. (Id. at 8.) Plaintiff defines the VA as a "federal Cabinet-level agency that provides near-comprehensive healthcare services to eligible military veterans at VA medical centers and outpatient clinics located throughout the country." (Id. at 4.)

Plaintiff alleges that IHS was paying Winters the commissions he earned from contracts with VA hospitals too slowly. (Id. at 8.) Plaintiff complained to Winters about these allegedly late payments, and Plaintiff was under the impression that Winters was, in turn, complaining to IHS. (Id.) In the fall of 2017, Plaintiff complained to Defendant Parsons by email that the payments to Winters—and therefore to him—were too slow. (Id. at 9.) In December 2017 and January 2018, Plaintiff says he threatened all Defendants by email with legal action if they did not pay Winters more quickly. (Id.)

Around this time, Plaintiff also began contacting employees at the VA, alleging that IHS was violating federal regulations by not paying Winters quickly enough. (Id. at 9-10.) This prompted IHS to terminate its agreement with Winters on February 8, 2018. (ECF No. 169 at 3.) In the termination letter sent to Winters by Defendant Parsons on behalf of IHS, she wrote in part:

Most egregiously, without the knowledge or consent of IHS, you engaged a subcontractor to work on your accounts in direct violation of the terms of the Distributor Agreement. In that regard, recently, an individual named [Plaintiff] Terrance Walker, contacted both IHS and then various Veteran Administration officials claiming that he is a "2nd subcontractor under James Winter (a 1st tiered small business subcontractor)" and demanding payment for his purported services under the Distributor Agreement. When [Defendant] Mr. Weisberg confronted you about this breach, you admitted that you had employed Mr. Walker as a subcontractor.

IHS hereby demands that you (and your agents—including Mr. Walker) immediately discontinue all communications with IHS customers or prospective customers. . . .

(ECF No. 169-2 at 2.)

Around the time IHS terminated Winters's Distributor Agreement, and for some time thereafter, Plaintiff sent emails to the VA employees assigned to the contracts he expected to be paid on, alleging that IHS's slow payments to Winters violated federal regulations. (ECF No. 136 at 10-13.) Plaintiff also filed related formal protests with the U.S. Government Accountability Office ("GAO"). (Id. at 16; see also ECF Nos. 169 at 4; ECF Nos. 169-3, 169-4 (formal protests).) Defendants Parsons, Weisburg, and Germainsent emails to the various VA employees and GAO officials who investigated Plaintiff's allegations to the effect that: (1) Plaintiff never worked for, or represented, IHS in any capacity; (2) nobody at IHS had heard of Plaintiff until he began complaining about IHS's slow payments; and (3) IHS terminated its contract with Winters once IHS learned Winters had subcontracted with Plaintiff. (ECF Nos. 159 at 3-4, 169 at 3-7.)

These communications, and IHS's termination of its contract with Winters, form the basis of Plaintiff's primary claim for tortious interference in his operative Second Amended Complaint ("SAC"). (ECF No. 136 at 16; see also id. at 16-19.) Plaintiff's theory appears to be that Defendants interfered with Plaintiff's contract with Winters by terminating the Distributor Agreement once Defendants learned Winters had entered into the impermissible side contract with Plaintiff. Plaintiff includes other claims, also for tortious interference, but against Defendants Weisburg, Parsons, and Germain in their personal capacities. (Id. at 19-21.) Plaintiff also includes a claim for unjust enrichment against Defendants IHS and Parsons. (Id. at 21.)

III. LEGAL STANDARD

The Nevada anti-SLAPP statute ("the Statute") permits defendants to gain early dismissal of civil claims through a special motion to dismiss. See NRS § 41.660. A party³ engaging in communication, as defined by the Statute, "is immun[ized] from any civil action for claims based upon the communication." NRS § 41.650. Anti-SLAPP statutes are available to litigants in federal court. Compare U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., Inc., 190 F.3d 963, 972-73 (9th Cir. 1999) (noting, as a matter of first impression, that California's anti-SLAPP statute may be applied in federal diversity suits as the statute would not result in a direct collision with the Federal Rules, despite commonality of purpose in weeding out unmeritorious claims) with Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010) (stating "a federal court can only entertain anti-SLAPP special motions . . . in connection with state law claims"). But here there is no doubt the Court can entertain Defendants' anti-SLAPP motions because Plaintiff only asserts state law claims. (ECF No. 136.)

"A strategic lawsuit against public participation, SLAPP for short, is a meritless lawsuit that a plaintiff initiates to chill a defendant's freedom of speech and right to petition under the First Amendment." Pope v. Fellhauer, 437 P.3d 171 (Table), 2019 WL 1313365, at *2 (Nev. 2019). "The purpose of a special motion to dismiss a SLAPP lawsuit . . . is to filter out unmeritorious claims in an effort to protect citizens from costly retaliatory lawsuits arising from their right to free speech under both the Nevada and Federal Constitutions." Haack v. City of Carson City, Case No. 3:11-cv-00353-RAM, 2012 WL 3638767, at *3 (D. Nev. Aug. 22, 2012) (internal quotation marks and citation omitted). Though called "motion[s] to dismiss," federal courts treat anti-SLAPP motions as a species of motion for summary judgment. See, e.g., id., at *3-*5; Las Vegas Sands Corp. v. First Cagayan Leisure & Resort Corp., Case No. 2:14-cv-424-JCM-NJK, 2016 WL 4134523, at *3 (D. Nev. Aug. 2, 2016).

Evaluating a Nevada anti-SLAPP motion is a two-step process. The moving party bears the burden on the first step, and the non-moving party bears the burden on the second. See Pope, 2019 WL 1313365, at *2. The Statute provides:

[T]he court shall: (a) [d]etermine whether the moving party has established, by preponderance of the evidence, that the claim is based upon a good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern; (b) [i]f the court determines that the moving party has met the burden pursuant to paragraph (a), determine whether the plaintiff has demonstrated with prima facie evidence a probability of prevailing on the claim[] . . .

NRS § 41.660(3)(a), (b) (emphasis added). As noted above, the Court is required to consider evidence...