MEMORANDUM OPINION
This case is before the Court after briefing and oral argument on Defendants’ motions to dismiss for failure to state a claim. Anthony Marcantonio (“Plaintiff’) filed this diversity action against former teammates on the University of Virginia (“UVA”) men’s swim team for several torts under Virginia law.
There are five defendants, all of whom have filed a motion to dismiss: Kyle Dud-zinski; Luke Papendick; Charles Rommel; David Ingraham; and Jacob Pearce. The Complaint alleges ten counts, all against each Defendant, for assault, battery, false imprisonment, hazing, tortious interference with contractual relations, intentional infliction of emotional distress, punitive damages, common law and statutory conspiracy, and negligence. For the reasons discussed below, the motions to dismiss will be granted in part and denied in part.
STANDARD OF REVIEW
A Rule 12(b)(6) motion to dismiss merely tests the legal sufficiency of a complaint to determine whether the plaintiff has properly stated a claim; “it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party of N.C. v. Martin,
FACTS AS ALLEGED
Plaintiffs Background and Matriculation to UVA
Plaintiff Anthony Marcantonio graduated high school in 2013 as an honor student. Compl. ¶ 11. During his high school days, he excelled in competitive swimming, devoting many morning, evenings, and weekends to practice and eventually developing a national reputation in the amateur swimming community - due to his exploits. Compl. ¶¶ 12-14. Consequently, several universities recruited him for their respective swim teams, and Plaintiff welcomed the opportunity to attend a top-flight academic institution with a swimming team he hoped could springboard him into the world of professional or Olympic swimming. Compl. ¶¶ 14-16.
The University of Virginia, Plaintiff believed, presented such an opportunity. UVA’s swimming coach impressed Plaintiff, who was particularly enamored with the supportive environment surrounding the team. Compl. ¶ 17. The “anti-hazing” policy in UVA’s Student Handbook — which forbade “any action ... by members of a student organization towards [another] member[ ] ... designed to or producing] mental or physical harassment, discomfort, or ridicule” — also appealed to Plaintiff, as did the provision of the UVA Standards of Conduct prohibiting hazing and “physical assault.” Compl. ¶ 18. These aspects, as well as the University’s stellar reputation generally and in academics specifically, led Plaintiff to matriculate to UVA in August 2014 to study and to swim.
Emails from “Mr. Mean”
After Plaintiff arrived on Grounds, Defendants Dudzinski and Papendick — up-perclass members of the swim team— called a meeting of the first-year swimmers and informed them that “team bonding” would take place during a so-called “welcome week.” Compl. ¶ 23. Shortly thereafter, on the evening of August 26, 2014, Plaintiff received an email from the aptly-named “Mr. Mean,” in actuality an email account persona created by Defendants Dudzinski, Papendick, Romniel, Ingraham, and Pearce. The email— “jointly] authored]” by “defendants”— was addressed to “[d]earrest [sic] shitcuts” (i.e., the first-year swimmers) who Mr. Mean was “fucking embarrassed” to welcome to ÚVA on account of their b.eing “gender-neutral dick sucks” (whatever that means). Compl. ¶¶ 24, 26(xliii). Mr. Mean emphasized that “what I say, goes,” announced that the first event of Welcome Week would commence the next day, and instructed the first-year swimmers to arrive at the appointed time at 1100 Wert-land Street, Charlottesville, Virginia. Id. True to his moniker, Mr. Mean closed by
Plaintiff was “unsure” whether the emails were a joke or whether he should be “concerned or fearful” due to them. Compl. ¶ 25. But he “did not want to appear squeamish” to his teammates, so he arrived at the appointed time to 1100 Wertland Street, known as the “Swim House” because upperclass swimmers lived there. Id. What happened next, Plaintiff alleges, “was instigated by the defendants who were the organizers [of] and who participated” in the events at the Swim House. Compl. ¶ 26.
Events at the Swim House
When Plaintiff arrived, the Swim House’s interior was dark except for a strobe light, and “heavy-metal, satanic music” blared. Compl. ¶ 26(i). Once inside, Plaintiff saw another first-year who appeared frightened. Compl. ¶ 26(h). An upperclassman instructed him to sit down and to remove his tie and “anything else he didn’t want to get wet.” Compl. ¶ 26(iii). Defendant Rommel entered the room and yelled at Plaintiff, and Defendant Dudzin-ski appeared, asking the first-years if they were scared. Compl. ¶¶ 26(iv)-(v). Defendant Ingraham instructed the first-years to say “pussy,” and then “defendants” placed buckets on the first-years’ heads. Compl. ¶ 26(vii). “Defendants” taunted and insulted them. Compl. ¶ 26(vni). Plaintiff began to fear for his safety. Compl. ¶ 26(ix). “[Defendants” then removed the buckets, instructing the first-years to assemble in a line and placing them accordingly. Compl. ¶26^). Defendants Dudzin-ski and Ingraham came “menacingly close” to Plaintiff “with sudden and threatening movements and grunts” during this time. Compl. ¶ 26(xi).
“Defendants” then blindfolded the first-years, including Plaintiff, with dirty ties and cummerbunds and screamed at them to perform an “Elephant Walk” (ie., to reach between their legs to grab the genitals of the person behind them). Compl. ¶¶ 26(xii)-(xiii). This Elephant Walk procession ambled into a dark bathroom, where Plaintiff “felt closed in” and became disoriented and “more concerned.” Compl. ¶ 26(xv). Once inside, Defendant Pearce yelled that the first-years “had one hour” and slammed the door. Compl. ¶ 26(xvi). The first-years turned on the bathroom lights, which revealed several containers of alcohol and other liquids; all methods of pouring out the containers (the sink, toilet, windows, and shower drain) were blocked or duct-taped shut. Compl. ¶ 26(xvii). “Defendants” screamed at the first-years to turn off the lights and unidentified individuals yelled at them to drink all the liquids immediately, lest they “get the dry-ice dildo” treatment for pouring any out. Compl. ¶ 26(xviii). One first-year complained of an injury caused by Defendant Rommel when shards of a glass he shattered on the floor ricocheted into the first-year’s eye. Compl. ¶ 26(xix).
For roughly the next hour, “defendants” periodically opened the bathroom door to demand an empty bottle as proof of consumption. Compl. ¶ 26(xxi). “All first-years who drank the alcohol became intoxicated.” Compl. ¶ 26(xxii). Defendants Rommel and Pearce opened the door to shout in obscenities before slamming it closed.
Eventually, “defendants” removed the first-years from the bathroom and “made” them face a corner blindfolded. Compl. ¶ 26(xxix). Plaintiff became “more fearful,” believing that “defendants ... had become drunk and had lost all self-control.” Compl. ¶ 26(xxxi). Defendants again interrogated the first-years; Defendant Rommel badgered Plaintiff and instructed him that his name was “Anthony Fucking Weiner.” Compl. ¶ 26(xxxv). Meanwhile, “defendants were or were causing others to pour an unknown liquid over his head.” Compl. ¶ 26(xxxvi). Rommel asked Plaintiff for the most offensive term for a black person he could think of and, after Plaintiff responded, his blindfold was removed to reveal an African-American in front of him. Compl. ¶ 26(xxxvi). Defendant Rommel responded with jeering jubilation. Id. Plaintiff became “delirious and could no longer think clearly.” Compl. ¶ 26(xxxviii).
Defendants led the first-years to the back of the Swim House. Compl. ¶ 26(xliii). Plaintiff had previously insisted he did not drink alcohol and therefore was “forced” to drink a gallon of milk and four glasses of prune juice. Compl. ¶ 26(xliv). As a result, he vomited on the back porch while “defendants” taunted him. Id. Defendant Pearce produced a bucket of live goldfish, and “defendants” instructed each first-year to name and then eat them. Compl. ¶ 26(xlv). “[Fjearing for his safety,” Plaintiff complied, and “defendants” made him prove that he had chewed his goldfish rather than swallowed it whole. Id. Plaintiff then received another goldfish to name and to hold in a plastic cup. Compl. ¶ 26(xlvii). But the cup was knocked from Plaintiffs hand, and “defendants” “tried to stomp” the second goldfish to death while yelling at Plaintiff he must try to save it. Id. Alas, the goldfish suffered fatal injuries. Compl. ¶ 26(xlviii).
Finally, the first-years were given dirty ■ ties and cummerbunds, instructed that they must wear them for the rest of Welcome Week, and ordered to complete a scavenger list that required the performance of theft, in violation of UVA’s Honor Code. Compl. ¶ 26(xlix). After five hours, the Swim House soiree concluded in the early morning of August 28, 2014. Compl. ¶ 27. Plaintiff worried that Defendants “had the power to deprive him of his ability to swim for UVA.” Id.
Additional Events and Fallout
■ In the afternoon of August 28th, Mr. Mean sent another email to Plaintiff and his fellow first-years, this one instructing them — in both profane and insulting language — to save seats at UVA’s amphithea-tre for an event the next day. Compl. ¶ 80. Plaintiff “felt compelled to comply out of fear” and thus camped out overnight. Compl. ¶ 31.
“[Djefendants” instructed Plaintiff that if he was asked about his teammate’s eye injury caused by Defendant Rommel breaking glass, he was to lie. Compl. ¶ 32. Defendant Ingraham interrupted a meeting between Plaintiff and an academic ad-
On September 6, 2014, UVA’s swim coach learned of potential hazing problems in the program. Compl. ¶ 36. He questioned all the first-years about the issue, including Plaintiff, who confirmed the events at the Swim House. Id. Plaintiff also described the affair to an administrator at UVA two days later. Id. Defendants — after learning Plaintiff had disclosed the events at the Swim House— “ostracized and threatened” Plaintiff, who was instructed by his coach to practice apart from his teammates out of concern for his safety. Compl. ¶¶ 37, 39. Plaintiff had to exit the pool whenever his teammates arrived to practice because UVA’s swim coach said he “could not guarantee[ ]” Plaintiffs safety. Compl. ¶ 37. This altered schedule affected Plaintiffs training regimen and, ultimately, he “left the school.” Compl. ¶¶ 38-40.
ANALYSIS
I. General Allegations Against “Defendants” and the Rule 12(b)(6) Standard
A common argument made by all Defendants is that the Complaint does not at times specifically identify which defendant (or any defendant) took certain actions, and thus fails to state a claim. This is a valid concern, as the Complaint — whether strategically or out of necessity — contains many vague or ambiguous allegations. There are at least three manifestations of this issue. First, the. Complaint often lumps together all “Defendants” without regard for which defendant actually did what. For instance, unspecified “defendants” are alleged to have “put buckets on” Plaintiffs head, taunted and insulted him, placed him in a line, and blindfolded him. Compl. ¶¶ 26(vii), (viii), (x), (xii). Second, the Complaint uses passive voice and omits the identity of the actor (e.g., first-years “were forced” to remain in the bathroom; Plaintiff “was again forced” to sit, “was pushed and shoved back” into his seat, and “was then made to stand up again”). Id. ¶¶ 26(xxi), (xxxii), (xxxvii)(xxxviii). Third, some allegations assert that “upperclassmen” took certain actions (such as telling Plaintiff to sit down and ordering him to memorize trivia answers, id. ¶¶ 26(iii), (xlvi)), an ambiguous term that could encompass Defendants, non-Defendant upperclassmen, or a mix of the two groups.
Although citing and generally discussing Twombly and Iqbal, the parties have not identified authorities specifically addressing the above pleading practices. In the Fourth Circuit and elsewhere, courts have interpreted Twombly and Iqbal to mean that generic or general allegations about the conduct of “defendants,” without more, fail to state a claim. E.g., Robbins v. Oklahoma,
As for Defendant Papendick, all but the common law conspiracy claim (Count VII) and punitive damages claim (Count IX) against him do not warrant further consideration insofar as they relate to his own personal actions. As Plaintiff admits (dkt. no. 47 at 16 n.5) and unlike with the other Defendants, there are only two substantive allegations against Defendant Papendick by name: he informed the first-year swimmers about Welcome Week, and he was co-creator of the “Mr. Mean” persona. Compl. ¶¶ 23-24. While these facts might support conspiracy and punitive damages claims, the other claims against him fall short based on the aforementioned authorities.
II. Count-by-COunt Analysis
1. Assault
Assault under Virginia law is “an act intended to cause either harmful or offensive contact with another person or apprehension of such contact, and that creates in that other person’s mind a reasonable apprehension of an imminent battery.” Koffman v. Garnett,
There is, however, more to the Complaint that the Mr. Mean emails. Defendants Rommel, Pearce, and Ingraham assert that the facts are insufficient to show an assault. But Rommel frequently screamed, yelled, and slammed doors at Plaintiff and others. Compl. ¶¶ 26(iv), (xxiii), (xxiv). He also shattered a glass bottle on the ground at the Swim House, causing shards to fly into another individual’s eye.
2. Battery
“The tort of battery is an unwanted touching which is neither consented to, excused, nor justified.” King v. McMillan,
Defendant Dudzinski argues that Plaintiff consented to the alleged touching. He points out that Plaintiff arrived at the Swim House due to his own desire to fit in. Compl. ¶ 25. Nor is there any indication, Dudzinski notes, that Plaintiff objected to the Swim House happenings or at any time tried to leave. Dudzinski argues that Plaintiffs supposed “voluntary participation” in the activity was tantamount to consent. But this argument falters when confronted with the Complaint’s allegations that Plaintiff “was delirious and could no longer think clearly,” “was afraid for his life,” “felt compelled to comply out of fear,” and “felt captive and not free to leave.” “If consent is coerced or obtained by fraud, the touching is unlawful.” Gnadt v. Commonwealth.,
Lack of consent vis-a-vis battery is an element Plaintiff must prove. In “the ease of battery, the plaintiffs burden is to show that the defendant intended to and did cause either harm or ‘offense,’ a burden that ordinarily requires the plaintiff to
Construing the facts and inferences in Plaintiffs favor, the Court is not convinced that Plaintiffs arrival at the Swim House establishes as a matter of law that he consented to all the subsequent touching. Even if his appearance manifested consent to some activities, the scope of that consent is clearly at issue. Further, to the extent his continued presence at the Swim House was consent in a colloquial sense, numerous allegations (see, e.g., Compl. ¶¶ 26 (ix), (xxxi), 31) show it was coerced and thus not legal consent under Gnadt and King.
3. False Imprisonment
“False imprisonment is the restraint of one’s liberty without any sufficient legal excuse.” Lewis v. Kei,
Only Defendant Rommel provides extended argument on this Count, although Pearce and Ingraham adopt Rommel’s position by reference. In addition to arguing the facts are insufficient, Rommel asserts that the “Complaint sets out no real reason that Plaintiff believed he could not leave, and certainly no reason attributable to Rommel.” But the Complaint does allege — in addition to many, more general allegations that constitute false imprisonment by Defendants — that Defendant Rommel “slammed the door shut” of the bathroom that Plaintiff was in and which had all other methods of escape closed off. Compl. ¶¶ 26(xvii), (xviii), (xxiii). Plaintiff also rightly responds to Rommel’s argument by citing Zaklit for the proposition that submission in the face of a reasonable apprehension of force suffices for imprisonment. Whether based on Zaklit, the fact that Plaintiff was shut in the bathroom, or any of the other allegations suggesting that Plaintiff felt he could not freely leave the Swim House on account of Defendants’ actions, the Complaint states a claim for false imprisonment.
4. Hazing
In Virginia, it is “unlawful to haze so as to cause bodily injury, any student at any school, college, or university.” Va. Code § 18.2-56. Hazing means:
to recklessly or intentionally endanger the health or safety of a student or students or to inflict bodily injury on a student or students in connection .with or for the purpose of initiation, admission into or affiliation with or as a condition for continued membership in a club, organization, association, fraternity, sorority, or student body regardless of whether the student or students so endangered or injured participated voluntarily in the relevant activity.
Id. Hazing is a criminal misdemeanor, but “[a]ny person receiving bodily injury by hazing shall have a right to sue, civilly, the person or persons guilty thereof.” Id. (emphasis added).
Defendants’ central argument— made most comprehensively by Defendant Pearce — is that Plaintiff did not suffer any “bodily injury.”
Defendant Pearce contends that any emotional trauma, fear, humiliation, or disorientation Plaintiff felt did not constitute bodily injury, and the Court agrees. He further asserts that vomiting — which Plaintiff endured after being forced by Defendants to drink copious amounts of milk and prune juice — is merely a bodily “reaction,” not a bodily injury. Despite its initial appeal, this view is incorrect.
Courts give “bodily injury” its “everyday, ordinary meaning,” including “’any detriment hurt, loss, impairment’ that could fairly be considered an injury to the human body.” English v. Virginia,
[The victim] neither sought nor required medical attention, displayed no evidence of visible bruising or cuts, suffered no residual effects following the altercation, did not take or require medication, and did not testify to suffering any type of pain or stiffness at the time of the altercation.
Id. at *4 (emphasis added). This conclusion comports with the statement in English that suffering contemporaneous bodily pain or hurt constitutes bodily injury. Read liberally, then, one can infer from the Complaint that Plaintiff “suffered pain” and thus sustained bodily injury when he vomited.
5. Tortious Interference with Contractual Relations
This tort requires showing “(1) the existence of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferor; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted.” Chaves v. Johnson,
a. Contract or business expectancy
Defendant Dudzinski argues that Plaintiff has not pled the existence of a contract or its terms. In response, Plaintiff claims “he had a contract to attend UVA, swim on its Varsity swim team, and study.”
As a threshold matter, courts in Virginia are hesitant to find that the sorts of documents on which the Complaint relies— student handbooks, university policies, and codes of conduct — create a contract. Doe v. Washington & Lee Univ., No. 6:14-CV-00052,
b. Intentional interference causing breach
Defendant Dudzinski challenges causation, observing that “there are no allegations that allow one to infer how the defendants’ actions caused or induced plaintiff to be unable to continue to study and swim at UVa” or “identifying which party to the contract — UVa or [Plaintiff] — may have actually breached the contract, or which provision(s) may have been breached.” As the Complaint alleges at Paragraph 40, Plaintiff “left the school,” not that UVA breached any alleged contract due to any actions by Defendants. In Defendant Rommel’s words, “[njothing in the Complaint indicates that [UVA] barred [Plaintiff] from swimming or competing;” rather, Plaintiff “chose to leave the UVA Swim Team.” Because “a plaintiff cannot interfere with [his] own contract,” CVLR Performance Horses, Inc. v. Wynne,
c. Resulting damage
Plaintiff does not respond to Defendants’ contention that the Complaint lacks allegations about how or to what degree he suffered damages. (Compare dkt. no. 35 at 9 and dkt. no. 39 at 11 with dkt. no. 47 at 10-12). The Complaint, in Paragraph 55, contains only a recital that “Plaintiff has suffered damages” from the conduct at issue.
6. Intentional Infliction of Emotional Distress
The elements of intentional infliction of emotional distress (“IIED”) are: “[1] the wrongdoer’s conduct is intentional or reckless; [2] the conduct is outrageous and intolerable; [3] the alleged wrongful conduct and emotional distress are causally connected; and, [4] the distress is severe.” Russo v. White,
In Russo, plaintiffs allegations that she suffered stress, nervousness, and sleeplessness did not qualify as severe distress.
7. Punitive Damages
Count VII is for punitive damages, which are “awarded only in cases of the most egregious conduct.” Philip Morris, Inc. v. Emerson,
“Under Virginia law, the elements of a common law civil conspiracy are (i) an agreement between two or more persons (ii) to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means, which (iii) results in damage to plaintiff’ through an overt action done pursuant to the agreement. William v. AES Corp.,
The Complaint specifically alleges that all Defendants, by name, conspired together to draft and send the Mr. Mean emails regarding Welcome Week. The content of those emails is then recounted in detail. Not coincidentally, Defendants Dud-zinski and Papendick earlier mentioned to Plaintiff and the other first-years that Welcome Week would take place. And when Plaintiff arrived at the Swim House for Welcome Week as instructed by Mr. Mean, Defendants behaved in a manner one would expect from the creators of that crass persona, even making unique threats — e.g., the “dry-ice dildo” treatment — contained in the emails that would only have been known to its authors. All of this shows that, as alleged, Defendants worked together to send the Mr. Mean emails, knew their content and plan, and orchestrated and directly participated in the Swim House ritual. Furthermore, the Complaint alleges that Defendants “were the organizers” of the Swim House event who “instigated” a slew of allegedly tor-tious activity, described in detail. Compl. ¶ 26. And the events inside the Swim House were not “spontaneous, parallel action” caused by partygoers who “got out of hand,” as Rommel claims. Rather, it took significant time, effort, and planning for Defendants to, among other things, procure buckets to place on the first-years’ heads; obtain large containers of alcohol and other liquids to be consumed; duct-tape shut or block all exits or drains of the bathroom in which Defendants would falsely imprison Plaintiff; draft detailed and embarrassing questionnaires; compile a scavenger hunt list; and purchase goldfish ignominiously condemned to death-by-mastication. Compl. ¶¶ 26(vii), (xvii), (xxv)(xxvii), (xlv)-(xlvi), (xlvii); see Dante Alighieri, Inferno, canto XXXIV: All told, the facts alleged are sufficient to establish a common law civil conspiracy.
9. Statutory Conspiracy under Va. Code §§ 18.2-499 & -500
By statute, “two or more persons who combine, associate, agree, mutually undertake or concert together for the purpose of ... willfully and maliciously injuring another in his reputation, trade, business or profession by any means whatever” are jointly and severally guilty of a misdemeanor. Va. Code § 18.2-499(A)(i). “Any person ... injured in his reputation, trade, business or profession by reason of [such] a violation of § 18.2-499” has a private right of action for treble damages and the costs of the suit, including reasonable attorneys’ fees. Va. Code § 18.2-500.
■ “Despite its broad language, it is well-settled that this statute applies only to injuries ‘to business and property interests, not to personal or employment interests.’” Shirvinski v. U.S. Coast Guard,
In an unbroken line of federal district cases, ... the federal district courts in Virginia have consistently held that a right of action is afforded [under these statutes] only when malicious conduct is directed at one’s business, not one’s person, and that the statute focuses upon conduct directed at property, i.e., one’s business and applies only to conspiracies resulting in business-related damages.
Buschi v. Kirven,
Perhaps for this reason, federal district courts in Virginia have required that a conspiracy under this statute be pled, like fraud, with particularity (which has not been done here). E.g., Schlegel v. Bank of Am., N.A.,
Plaintiff alleges that Defendants’ actions injured him in “his business and property” by causing the “destruction of [his] valuable swim contract with UVA.” Compl. ¶ 69. But Plaintiff fails to respond to Defendants’ arguments that this allegation is legally insufficient.
Dudzinski also contends that “an athletic financial aid agreement is not a business or property interest” under the statute. Cases widely hold that college athletic scholarships and participation in collegiate athletics are not cognizable property interests.
Finally, Defendant Pearce builds on his co-Defendants’ positions by arguing that Plaintiffs so-called “swim contract with UVA” was, at most, a future business interest that is not cognizable under the statute. Warner,
10. Negligence
Defendant Rommel seeks dismissal of the negligence count. His sole argument is the assertion that the Complaint provides no facts showing he “violated some common law duty as to Plaintiff so as to constitute negligence.” This passing mention of Count X is insufficient to place the issue before the Court, and in any event the Complaint contains ample facts to state a negligence claim.
III. Plaintiff’s Request for Leave to Amend
At the end of his response brief, Plaintiff appended a request for leave to amend his
Ordinarily, Rule 15(a)(2) would permit amendment upon “the court’s leave,” which should freely be given “when justice so requires.” However, the Court’s pretrial order of July 29, 2015 provides that any such motion must be filed within 45 days from that date “[ejxcept for good cause shown.” (Dkt. no. 14 ¶ 24). That deadline expired over three months ago, on September 14, 2015.
When a motion to amend the complaint is filed “after the deadline set by the scheduling order for amending pleadings, Federal Rule of Civil Procedure 16(b) applies [not Rule 15(a)(2) ]. Under Rule 16(b) a motion to amend a complaint filed after a scheduling order deadline shall be granted only upon a showing of ’good cause.’” Montgomery v. Anne Arundel Cnty., Md.,
Because Plaintiff has filed neither (1) a proposed amended complaint which the Court could assess for futility nor (2) a formal motion attempting to make the required showing under Rule 16(b), leave to amend will not be given as a matter of course. The Court will not speculate whether a hypothetical amended complaint would be futile, or'whether the good cause standard is met. The former point is especially salient given that some of Plaintiffs claims have been found to rest on faulty legal grounds and not mere pleading defects. Regardless, without prejudging the matter should Plaintiff subsequently submit a formal motion and proposed amended complaint, the instant request for leave to amend will be denied.
CONCLUSION
For the foregoing reasons, Defendants’ motions to dismiss will be granted in part and denied in part. Plaintiffs request for leave to amend will be denied without prejudice to his right to seek amendment through a formal motion and proposed amended complaint. An appropriate order will issue. The Clerk is requested to circulate a copy of this opinion to all counsel of record.
Notes
. Subject matter jurisdiction is proper. The amount in controversy is alleged to exceed $75,000.00. Plaintiff is a citizen of Massachusetts, while Defendants are alleged to be citizens of the following other states: Pennsylvania, Michigan, New Jersey, Virginia, New York, South Carolina, and Oklahoma. Compl. ¶¶ 2-8.
. According to Plaintiff, he "entered into a contract with UVA" to do so. This is a legal conclusion subject to analysis below.
. Some claims also fail for additional reasons discussed below.
. At oral argument and in response to questioning from the Court, counsel for Defendant Rommel conceded that all Defendants were present at the Swim House. That statement is not binding on Defendant Papendick.'
. In discussing his common law civil conspiracy claim, Plaintiff cites precedent stating that a conspiracy makes co-conspirators liable for each others' torts. Defendants did not respond to this argument, and the Court will not decide it in their favor at this juncture. Thus, the claims against Papendick will be dismissed only to the extent they are made against him as a principal actor, but not to the extent he was an agent or member of the conspiracy to whom co-conspirator liability attaches.
. The Complaint does not specifically allege that Plaintiff was nearby when this occurred, although it is reasonable to infer he witnessed it.
. Plaintiff goes further in relying on King, urging that the “voluntary participation'Vcoerced-consent issue is one for the jury. While King observed that the "question of whether a touching was consented to is for the jury,” id. at 312, it is inapplicable at this stage. The Fourth Circuit made the statement in King when reviewing a defendant's unsuccessful Rule 50(b) motion after an adverse jury verdict. Thus, the issue was whether a jury’s findings should be disturbed and were supported by the evidence. King did not say that consent is an affirmative defense or that it is exempted from Rule 12(b)(6) scrutiny and must always proceed to the jury.
. Defendants Rommel, Pearce, and Ingraham assert that there are no facts against them by name showing they touched Plaintiff. But the Complaint contains allegations that "defendants” harmfully or offensively touched Plaintiff, and — unlike Defendant Papendick — those Defendants are clearly alleged to have been at the Swim House and intricately involved in orchestrating the event. Accordingly, it is reasonable to infer that those Defendants did indeed touch Plaintiff.
. At oral argument, counsel for Defendant Pearce made two arguments for the first time, i.e., whether the “guilty thereof” language requires as a precondition to suit that the civil defendant be previously convicted of the offense, and whether a swim team is a “club, organization, association, fraternity, sorority, or student body” within the statutory definition. Although interesting, these arguments were not briefed, Plaintiff had no opportunity to respond to them, and Defendants have provided no citation to authority in support of them. Hence the Court will not pass on them at this time. See W.D. Va. L. Civ. R. 11(c)(1).
. Defendant Rommel asserts there are no allegations suggesting he "acted in such a way as to 'recklessly or intentionally endanger the health or safety' of Plaintiff, so as to constitute hazing.” The contention is not supported by the allegations or the law. The Complaint contains allegations from which one could infer Rommel and the other Defendants were intentionally endangering Plaintiff's health or safety by, e.g., shutting him in a sweltering bathroom, shattering glass near him, and forcing him to drink large volumes of liquid and eat live goldfish. Also, the argument ignores that hazing is defined in the disjunctive to include "inflict[ing] bodily injury” and that only the harm of "receiving bodily injury” (not reckless or intentional endangerment) gives rise to a civil action. Hence, the proposed rationale would not by itself provide a ground for decision.
. Similarly, and contrary to Defendant Pearce’s assertion (dkt. no. 39 at 9), the facts alleged create a reasonable inference that Defendants caused this bodily injury by forcing Plaintiff to drink large quantities of liquid.
. At oral argument, the Court asked Plaintiff's counsel to identify what allegations could be made in an amended complaint that would show severe emotional distress. Counsel responded that Plaintiff suffered nightmares, is undergoing therapy, and has had difficulty swimming. Yet these are precisely the types of distress found not to be severe as a matter of law. Although the IIED claim will not be dismissed with prejudice at this early stage, and Plaintiff may seek leave to amend the Complaint, see infra, Plaintiff might take into consideration the authorities discussed above when considering whether to replead Count VI.
. In Virginia, punitive damages are not a cause of action, but a remedy, and thus the request should not have been styled as a freestanding count. Augustin v. SecTek, Inc.,
.Arguing a fortiori, Defendant Rommel points to Green v. Ingram,
. After reciting the elements, his brief asserts in a single sentence and without any supporting authority that he "has a property interest in the athletic scholarship that he was awarded by the University of Virginia.” (Dkt. no. 47 at 20).
. Moreover, that amateurism — as opposed to a participant’s pecuniary business interest — is at the heart of college athletics has been established since the Supreme Court ruled in NCAA v. Bd. of Regents of Univ. of Okla.,
. See also Fluitt v. Univ. of Nebraska,