Nashef v. AADCO Medical, Inc., 2013 U.S. Dist. LEXIS 76150

Background

Plaintiff Charles Nashef challenged Counts Two and Three of Defendants’ counterclaims and sought judgment on the pleadings, arguing these claims fail as a matter of law.
Defendants AADCO Medical, Inc., Marchione, and Skidmore moved to amend the counterclaim to add facts and three new claims (Counts Four–Six).
The case arises from Nashef’s termination as AADCO’s Director of Sales and related alleged performance deficiencies, including failure to provide reports and failure to secure FDA/UL certifications.
Defendants allege Nashef’s breach of contract and abuse of process claims; Nashef argues the breach claim is improper and seeks dismissal, while Defendants seek to add new tort/consumer‑protection claims.
The court applied Vermont law and analyzed Rule 12(c)/8 standards to determine which claims survive or need amendment.
The court granted judgment on the pleadings in part (Count Three) and denied it in part (Count Two); granted in part and denied in part Defendants’ motion to amend (Counts Five, Four, Six).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Count Two (breach of contract) survives the pleading standard	Nashef argues employer cannot claim breach by former employee and designation as breach is improper.	AADCO asserts conduct breached employment contract and supports damages/relief, including nominal damages possible.	Count Two survives; judgment on the pleadings denied.
Whether Count Three (abuse of civil process) is viable	Nashef contends filing suit cannot constitute abuse of process.	Defendants argue filing the lawsuit for harassment constitutes abuse of process.	Count Three is dismissed/GRANTED for Nashef; abuse claim fails.
Whether the proposed Count Four (malicious prosecution) may be added	Nashef argues plaintiff cannot be liable for malicious prosecution because the underlying proceeding has not terminated in plaintiff’s favor.	Defs contend maliciou sprosecution available with termination in plaintiff’s favor.	Denied; amendment to add malicious prosecution is futile.
Whether the proposed Count Five (negligent misrepresentation) may be added	Nashef argues heightened pleading under Rule 9(b) applies; misrepresentation during hiring may not require 9(b).	Defs assert Rule 9(b) not required for negligent misrepresentation; sufficient facts alleged.	Count Five is granted; leave to amend to include negligent misrepresentation is granted.
Whether the proposed Count Six (VCFA consumer protection) may be added	Nashef argues VCFA claim against employee‑employer context is inappropriate and requires specificity but Vermont law may not extend to typical employer‑employee relationship.	Defs argue VCFA applies to unfair/deceptive acts; claim justiciable here.	Count Six denied; VCFA claim not plausibly extended to employer‑employee relationship.

Key Cases Cited

Jacobsen v. Garzo, 149 Vt. 205, 542 A.2d 265 (1988) (Vt. 1988) (abuse of process requires more than mere filing; must show irregular steps and damage)
Holiday Magic, Inc. v. Scott, 4 Ill.App.3d 962, 282 N.E.2d 452 (1972) (Ill. App. Ct. 1972) (mere initiation of a suit does not constitute abuse of process)
Herrera v. Union No. 39 Sch. Dist., 2006 VT 83, 181 Vt. 198, 917 A.2d 923 (Vt. 2006) (nominal damages may be recoverable for breach of contract when no actual damages shown)
Omega Optical, Inc. v. Chroma Tech. Corp., 174 Vt. 10, 800 A.2d 1064 (2002) (Vt. 2002) (duty not to disclose confidential information; trade secrets context)
Poulin v. Ford Motor Co., 147 Vt. 120, 513 A.2d 1168 (1986) (Vt. 1986) (VCFA is remedial and does not require heightened proof to common law fraud)
Sards v. State, 772 A.2d 499 (Vt. 2000) (Vt. 2000) (misrepresentation during hiring can support contract relief)
Carter v. Gugliuzzi, 168 Vt. 48, 716 A.2d 17 (1998) (Vt. 1998) (VCFA definition of seller and consumer context)
Waterbury Feed Co. v. O’Neil, 2006 VT 126, 181 Vt. 535, 915 A.2d 759 (Vt. 2006) (nominal damages concept; breach without evidence of harm)