Guttenberg v. Emery
2014 WL 1989564
D.C. Cir.2014Background
- Plaintiffs Dr. Guttenberg and his professional corporation (D.C.-based) allege defendants Dr. Robert Emery and his wife Kathy Borg-Emery engaged in a campaign of disparagement that diverted referrals from Guttenberg to Emery, harming plaintiffs’ D.C. business. Plaintiffs rely on a 2008 Settlement Agreement between Guttenberg and Emery that contained a non‑disparagement clause.
- Plaintiffs filed in D.C. Superior Court; defendants removed to federal court and moved to dismiss for lack of personal jurisdiction over Borg‑Emery and for failure to state claims; defendants also sought attorneys’ fees under the settlement agreement.
- Key factual allegations: Borg‑Emery (a Virginia resident) allegedly made specific disparaging statements in Virginia; plaintiffs allege the injury occurred in D.C. because referrals and reputational harm affected their D.C. practice. Plaintiffs also allege a broader, joint campaign by Emery and Borg‑Emery.
- Procedural posture: court considered personal jurisdiction (D.C. long‑arm §13‑423(a)(4)), breach of contract (against Emery and Borg‑Emery), injunctive relief request, a Virginia Business Conspiracy Statute claim, tortious interference with prospective economic advantage (under D.C. law), and defendants’ fee motion.
- Outcome summary: court denied dismissal for lack of personal jurisdiction over Borg‑Emery; dismissed breach‑of‑contract claim against Borg‑Emery (non‑party to contract) but permitted breach claim to proceed against Emery; dismissed injunctive‑relief count as a standalone cause; dismissed Virginia conspiracy claim and tortious interference claim; denied fee motion without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Personal jurisdiction over Borg‑Emery (D.C.) | Borg‑Emery’s role as Emery’s comptroller and connection to Emery’s D.C. practice, plus alleged injury in D.C., support specific jurisdiction under D.C. long‑arm §13‑423(a)(4). | Borg‑Emery is a Virginia resident who works from home in Virginia and does not transact business in D.C.; no sufficient D.C. contacts. | Denied dismissal: prima facie showing met under §13‑423(a)(4) because Borg‑Emery derives substantial revenue from services in D.C. via employment and alleged tortious injury occurred in D.C. |
| Breach of contract claim against Borg‑Emery | Borg‑Emery caused disparaging statements and so breached the 2008 Settlement Agreement (non‑disparagement clause). | Borg‑Emery is not a signatory or party to the Settlement Agreement and cannot be bound by it. | Granted dismissal: non‑party cannot be held liable for breach of a contract she did not assent to. |
| Breach of contract claim against Emery | Emery caused or directed disparaging statements (including indirectly via Borg‑Emery), violating the non‑disparagement clause. | Plaintiffs’ allegations insufficiently specific under Twombly/Iqbal; mostly conclusory and “on information and belief.” | Denied dismissal: complaint plausibly alleges Emery indirectly caused the disputed statements (agency/joint campaign theory) and identifies the contract and clause. |
| Injunctive‑relief count pleaded as standalone claim | Plaintiffs request injunctive relief to stop disparagement. | Injunctive relief is a remedy, not an independent cause of action. | Dismissed: Count II is not a freestanding claim and is dismissed. |
| Virginia Business Conspiracy Statute claim | Plaintiffs invoke Va. Code §18.2‑499 for alleged concerted scheme to divert referrals. | D.C. choice‑of‑law applies; plaintiffs’ injury and relationship center in D.C., so Virginia statute does not apply. | Dismissed: court applies D.C. choice‑of‑law analysis and rejects application of Virginia statute. |
| Tortious interference with prospective economic advantage | Defendants intentionally caused loss of referrals and business expectancy. | Plaintiffs fail to plead specific prospective business relationships or concrete expectancies. | Dismissed: allegations are too general; D.C. law requires specific anticipated transactions or opportunities. |
| Attorneys’ fees under the Settlement Agreement | Defendants seek fees under the non‑disparagement provision. | Fees premature because no prevailing party yet; the full agreement is not in the record. | Denied without prejudice: cannot award fees now; only one defendant (Emery) remains a party and no party has prevailed. |
Key Cases Cited
- Mwani v. bin Laden, 417 F.3d 1 (D.C. Cir.) (prima facie showing suffices for personal jurisdiction before jurisdictional discovery)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (complaint must plead facts plausibly showing entitlement to relief)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard for federal complaints; two‑pronged Iqbal analysis)
- EEOC v. Waffle House, Inc., 534 U.S. 279 (2002) (contract cannot bind a nonparty)
- Crane v. Carr, 814 F.2d 758 (D.C. Cir.) (‘‘plus factors’’ under long‑arm filter out isolated in‑forum impacts)
- Jankovic v. Int’l Crisis Group, 593 F.3d 22 (D.C. Cir.) (tortious interference requires specific anticipated transactions or business expectancies)