Tomlin v. International Business Machines Corp.
2012 Va. Cir. LEXIS 26
Fairfax Cir. Ct.2012Background
- Five-count complaint filed by three former IBM employees (Ms. Tomlin, Mr. Tomlin, Mr. Williams) against IBM and five IBM officers/agents.
- Employees were terminated Oct. 28, 2010 after IBM internal audit investigation prompted by an anonymous allegation that Ms. Tomlin hired her cousin/brother and set his salary.
- Plaintiffs seek declaratory relief, defamation/defamation per se, tortious interference with business expectancy, common law conspiracy, and negligent retention of employees.
- IBM moved to demur on all counts; the court's standard of review for demurrers is whether the pleading states a legally sufficient cause of action and may be amended.
- Court distinguishes Graves v. Ciraden and Yukon Pocahontas Coal Co. v. Ratliff in assessing declaratory relief standing and actual controversy; demurrers sustained with leave to amend in several counts.
- Plaintiffs’ allegations include various asserted defamatory statements and conspiratorial conduct, with specific words pled only for Minton-Package; publication and malice standards are addressed for each defendant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there is an actual controversy justiciable for declaratory relief | Tomlin asserts ongoing conflict between her non-compete and current practice; Graves supports standing. | IBM contends no actual controversy is pled or ascertainable. | Count I sustained with leave to amend to plead actual controversy. |
| Defamation and defamation per se against IBM and individual defendants | Plaintiffs allege false statements about credibility/unfitness; statements were made by IBM through agents | Defendants argue lack of exact words and improper publication/privilege defenses. | Count II sustained with leave to amend to plead exact words and publication to third parties. |
| Common law conspiracy among IBM and agents | Plaintiffs plead agency and outside-inside employment scope; conspiracy alleged | Intra-corporate immunity bars conspiracy where acts are within employer's scope | Count IV sustained with leave to amend to plead facts showing outside-scope conduct. |
| Tortious interference with business expectancy | Defendants allegedly used improper means to interfere with employment relations | Interference by employees of the same employer cannot constitute third-party interference; need outside-scope conduct | Count III sustained with leave to amend to plead outside-scope conduct. |
| Negligent retention of employees by IBM | IBM knew or should have known of employees posing risk; retention caused injuries | Plaintiffs fail to allege knowledge of risk prior to harms | Count V sustained with leave to amend to plead knowledge of risk. |
Key Cases Cited
- Yukon Pocahontas Coal Co. v. Ratliff, 175 Va. 366, 8 S.E.2d 303 (Virginia 1940) (establishes 'actual controversy' concept for declaratory judgments)
- Fuste v. Riverside Healthcare Assn., Inc., 265 Va. 127, 575 S.E.2d 858 (Va. 2003) (requires exact words; haec verba pleading standard for defamation)
- Gazette, Inc. v. Harris, 229 Va. 1, 325 S.E.2d 713 (Va. 1985) (‘of or concerning’ test for publication and identification)
- Hyland v. Raytheon Tech. Servs. Co., 273 Va. 292, 641 S.E.2d 84 (Va. 2007) (statements with factual connotation vs. opinion in defamation)
- Hyland v. Raytheon Tech. Servs. Co. (Hyland II), 277 Va. 40, 670 S.E.2d 746 (Va. 2009) (continuation on defamation—malice and publication considerations)
- Government Micro Resources, Inc. v. Jackson, 271 Va. 29, 624 S.E.2d 63 (Va. 2006) (defamation pleading standards and proof requirements)
- Commercial Bus. Sys., Inc. v. Bellsouth Servs., Inc., 249 Va. 39, 453 S.E.2d 261 (Va. 1995) (conspiracy/agency principles and intra-corporate immunity concepts)