UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FLORENTINO RODRIGUEZ,

Plaintiff,

v.

LABORATORY CORPORATION OF Civil Action No. 13-675 (GK) AMERICA HOLDINGS, d/b/a LabCorp,

Defendant.

MEMORANDUM OPINION

Plaintiff Florentino Rodriguez (~Rodriguez" or "Plaintiff")

brings this action against Laboratory Corporation of America

Holdings ( "LabCorp" or "Defendant") for declaratory judgment,

fraudulent misrepresentation, negligent misrepresentation,

negligence, breach of contract, and breach of the covenant of

good faith and fair dealing.

This matter is before the Court on LabCorp' s Motion to

Dismiss [Dkt. No. 16]. Upon consideration of the Motion,

Opposition [Dkt. No. 17], and Reply [Dkt. No. 19], the entire

record herein, and for the reasons stated below, Defendant's

Motion is granted. I . BACKGROUND

A. Factual Background1

Rodriguez was employed by the District of Columbia as an

Urban Park Ranger. FAC ~ 6. During his eleven years of

employment in this capacity, he had "an exemplary record with no

history of disciplinary problems or personal involvement with

illegal drugs." FAC ~~ 6, 7.

In or about April 2010, Rodriguez was randomly selected to

submit a urine sample for drug testing pursuant to the District

of Columbia's Mandatory Drug and Alcohol Testing Program for

Safety-Sensitive Positions ("Drug Testing Program") . FAC ~ 8;

see 6-B D.C.M.R. § 3901 et seq. Rodriguez's test results were

positive for the presence of marijuana metabolites, and he was

subsequently terminated from his employment. FAC ~~ 21, 23.

Rodriguez does not allege that his test results were

inaccurate, or that he had not used marijuana prior to providing

his urine sample. Instead, he alleges that LabCorp, who tested

his urine and reported the result, failed to follow government-

mandated procedures in doing so, thereby improperly causing his

positive result to be reported to his employer. Id. ~~ 9-23.

Rodriguez relies on certain provisions in Title 6 of the

District of Columbia Municipal Regulations, and the United

1 Except where otherwise noted, the facts set forth herein are taken from the First Amended Complaint ( "FAC") [Dkt. No. 15] and accepted as true. -2- States Department of Transportation regulations incorporated

therein, which the District of Columbia has adopted in

connection with its Drug Testing Program (collectively,

"regulations" or "quality control regulations"). See 6-B

D.C. M. R. § 3 9 01 et seq. ; 4 9 C. F. R. Part 4 0. The regulations

require a testing laboratory to conduct both an initial screen

and a confirmatory test before reporting a drug test as

positive. 6-B D.C.M.R. § 3906.4; see also

.

To conduct the initial screen, the laboratory must use an

enzyme-multiplied immunoassay technique ("EMIT") test. 6-B

D.C.M.R. § 3906.4. If the initial screen is positive, the

laboratory must then use a gas chromatography/mass spectrometry

("GCMS") test to confirm the positive result and quantify the

precise concentration of drug metabolites. Id.

The regulations set "cutoff concentrations," which

determine whether the initial screen and confirmatory test

should be reported as positive. See

(a). If a

test result is below the cutoff, the laboratory must report it

as negative.

§ 40.87(b)-(c). If a test result is at or

above the cutoff concentration, the laboratory must report it as

positive. Id. § 40.87(b)-(c). In the case of a marijuana test,

the relevant cutoff concentrations are 50 ng/mL for the initial

screen and 15 ng/mL for the confirmatory test. Id. § 40.87 (a).

-3- Rodriguez contends that "there is absolutely no evidence or

information in the report provided to the District of Columbia

indicating that he had a positive initial urine screen, i.e.

over 50 ng/mL." FAC ~ 12. Therefore, he argues LabCorp was not

legally permitted to conduct a confirmatory test, or to report

his test results as positive to the District of Columbia's Human

Resources Department. FAC ~~ 13, 14, 21. 2 Rodriguez also claims

that LabCorp performed the wrong type of testing because it

administered a "qualitative test," and not the test specified in

6-B D.C.M.R. § 3906. FAC ~~ 15-16. On these grounds, Rodriguez

maintains that he "was denied a fair test in compliance with

District of Columbia government procedures." FAC ~ 17.

B. Procedural Background

On April 19, 2 013, Rodriguez filed his original Complaint

in the Superior Court for the District of Columbia, bringing

claims against LabCorp for negligence, gross negligence, and

breach of contract. On May 10, 2013, LabCorp removed the case

to this Court pursuant to 28 U.S. C. §§ 1332, 1441, and 1446.

2 LabCorp did not report Rodriguez's result directly to the District of Columbia's Human Resources Department. Instead, it first forwarded the results to Dr. Charles Moorefield, a Medical Review Officer ( "MRO"), whose responsibility it was to "verify that the testing procedure was conducted properly." FAC ~ 20; see also

. Rodriguez alleges that Dr. Moorefield failed to properly review LabCorp's testing procedures. FAC ~ 21. However, he has not named Dr. Moorefield as a defendant in the case.

-4- [Dkt . No . 1] . LabCorp then moved to dismiss Rodriguez's

Complaint [Dkt. No. 9] , but subsequently withdrew its motion

after the parties stipulated to permit Rodriguez to file an

amended complaint. [Dkt. No. 13].

On August 2, 2013, Rodriguez filed his FAC, asserting

claims against LabCorp for declaratory judgment, fraud,

negligent misrepresentation, negligence, breach of contract, and

breach of the implied covenant of good faith and fair dealing.

See generally FAC [Dkt. No. 15]. The FAC also includes claims

against "John Doe" Defendants for intentional interference with

prospective economic advantage and intentional interference with

business relations. FAC ~~ 64-85. 3

On August 23, 2013, LabCorp moved to dismiss the FAC

pursuant to Rule 12(b) (6) of the Federal Rules of Civil

Procedure. [Dkt . No. 16] . On September 5, 2 013, Plaintiff

filed his Opposition. [Dkt. No. 17] . On September 24, 2013,

LabCorp filed its Reply. [Dkt. No. 19].

II. STANDARD OF REVIEW

3 The "John Does" are described as employees of LabCorp who were involved in the testing and reporting of Rodriguez's drug test results. See FAC ~ 5. Although Rodriguez identifies one of these individuals in his Opposition as Kamlesh Patel, Pl.'s Opp'n at 3, there is no indication that Rodriguez has attempted to serve Mr. Patel, or any person other than LabCorp, with his complaint. -5- To survive a motion to dismiss, a complaint "must contain

sufficient factual matter, accepted as true, to 'state a claim

to relief that is plausible on its face.'" Ashcroft v. Iqbal,

(2009) (citing Bell Atlantic Corp. v. Twombly,

550 u.s. 544, 570 (2007)). "The plausibility standard is not

akin to a 'probability requirement,' but it asks for more than a

sheer possibility that a defendant has acted unlawfully."

A pleading that offers mere "labels and conclusions" or a

"formulaic recitation of the elements of a cause of action" will

not suffice; nor will "naked assertions devoid of further

factual enhancement."

(quoting Twombly, 550 U.S. at 557)

(internal punctuation omitted). The factual allegations "must

be enough to raise a right to relief above the speculative

level," Twombly, 550 U.S. at 555, and to permit the Court "to

draw the reasonable inference that the defendant is liable for

the misconduct alleged." Iqbal,

.

"In determining whether a complaint states a claim, the

court may consider the facts alleged in the complaint, documents

attached thereto or incorporated therein, and matters of which

it may take judicial notice." Stewart v. Nat'l Educ. Ass'n,

(D.C. Cir. 2006) (citation omitted). A court may

also consider documents of undisputed authenticity that "are

referred to in the complaint and are integral to" the

-6- plaintiff's claims. Kaempe v. Myers,

(D.C.

Cir. 2004) (citation omitted).

The court is required to accept the complaint's factual

allegations as true and give a plaintiff "the benefit of all

inferences that can reasonably be drawn from such allegations."

Kaempe,

(citation omitted). However, the court

need not accept plaintiff's legal conclusions couched as factual

allegations. Jacobs v. Vrobel,

(D.C. Cir.

2013). Nor must it accept "inferences drawn by plaintiffs if

such inferences are unsupported by the facts set out in the

complaint," or by other documents properly considered in

connection with the motion to dismiss. Kaempe,

(citations omitted) .

III. ANALYSIS

A. Materials Considered in This Motion to Dismiss

In support of its Motion, LabCorp has submitted excerpts of

the Report it prepared in connection with Rodriguez's test.

These excerpts, the authenticity of which Rodriguez does not

dispute, include pages labeled "Specimen Test Results,"

"Specimen Summary," "Initial Test Data Section," and

"Confirmation Test Data Section." See Decl. of Robert I.

Steiner in Support of LabCorp' s Reply ("Steiner Decl. ") , Ex. A

[Dkt. No. 19-1]. Rodriguez refers to these pages repeatedly in

his FAC; indeed, they provide the sole factual underpinning for

-7- his contention that LabCorp failed to comply with the quality

control regulations. See FAC ~~ 12, 15, 16, 18 & n.1.

Accordingly, they are both incorporated by reference in the FAC

and central to Rodriguez's claims. The Court may therefore

consider them in deciding the Motion.

B. Declaratory Judgment

In Count 1, Rodriguez asks the Court to enter a

"declaratory judgment that defendant LabCorp was under a duty

and obligation to fully comply with federal and District of

Columbia government drug testing procedures pursuant to its

contract with [the] District of Columbia government and failed

to do so." FAC ~ 35.

LabCorp seeks to dismiss this claim on the grounds that it

is duplicative of Rodriguez's other claims. Def.'s Mot. at 8-9.

Rodriguez contends that dismissal is improper because the

Federal Rules of Civil Procedure "permit[] parties to 'set forth

two or more statements of a claim or defense alternately or

hypothetically,' and to 'state as many separate claims or

defenses as the party has regardless of consistency. '" Pl. Is

Opp'n at 14-15 (citing Cleveland v. Policy Mgmt. Sys. Corp.,

(1999) (quoting Fed. R. Civ. P. 8 (e) (2))).

The Declaratory Judgment Act, 2 8 U.S. C. § 2 2 01, provides

that "[i]n a case of actual controversy within its jurisdiction

any court of the United States, upon the filing of an

-8- appropriate pleading, may declare the rights and other legal

relations of any interested party seeking such a declaration,

whether or not further relief is or could be sought."

(a). This language "has long been understood 'to confer

on federal courts unique and substantial discretion in deciding

whether to declare the rights of litigants.'" Medimmune, Inc.

v. Genentech, Inc.,

(2007) (quoting Wilton v.

Seven Falls Co.,

(1995)); see also Green v.

Mansour,

(1985) ("[T]he declaratory judgment

statute is an enabling Act, which confers a discretion on the

courts rather than an absolute right upon the litigant.")

(citation omitted) .

Although Rodriguez is correct that he is allowed to plead

in the alternative, he has not articulated any reason to

maintain the declaratory judgment claim as a separate cause of

action. The claim does not present any legal or factual

theories that are not already subsumed in his other claims. See

Swartz v. KPMG LLP,

(9th Cir. 2007) ("To the

extent [plaintiff] seeks a declaration of defendants' liability

for damages sought for his other causes of action, the claim is

merely duplicative and was properly dismissed.") Further,

Rodriguez does not identify any way in which his future actions

are likely to be affected by the declaratory relief he seeks.

See Schulman v. J.P. Morgan Inv. Mgmt., Inc.,

, 812

-9- (3d Cir. 1994) ("Even if a declaratory judgment would clarify

the parties' legal rights, it should ordinarily not be granted

unless 'the parties' plans of actions are likely to be affected

by a declaratory judgment. 11 ) • Accordingly, Count 1 shall be

dismissed.

C. Fraudulent Misrepresentation

In Count 2, Rodriguez brings a claim for fraudulent

misrepresentation. To plead a prima facie claim for fraudulent

misrepresentation, a plaintiff must allege " ( 1) a false

representation (2) in reference to a material fact, (3) made

with knowledge of its falsity, (4) with intent to deceive, and

(5) action taken in reliance upon the representation. 11

Atraqchi v. GUMC Unified Billing Servs.,

(D.C.

2002) . 4 A false representation "is an assertion that is not in

accord with the facts. 11 Saucier v. Countrywide Home Loans,

(D.C. 2013) (citations and internal punctuation

marks omitted) .

Because fraud claims are subject to a heightened pleading

standard under Rule 9(b) of the Federal Rules of Civil

Procedure, a plaintiff "must state the time, place and content

of the false misrepresentations, the fact misrepresented and

4 The parties agree that District of Columbia substantive law applies to Plaintiff's claims. See Def.'s Mot. at 10 (citing District of Columbia law as source of applicable standard); Pl.'s Opp'n at 5 (same). -10- what was obtained or given up as a consequence of the fraud."

United States ex rel. Joseph v. Cannon,

(D.C. Cir. 1981). However, "intent, knowledge, and other

conditions of a person's mind may be alleged generally." Fed.

R. Civ. P. 9(b).

Rodriguez's fraud claim is deficient in several respects.

First, he fails to identify any particular misrepresentation by

LabCorp. His sole allegation pertaining to this element is that

LabCorp's employees "failed to disclose accurate information and

made false representations to the District of Columbia and the

plaintiff regarding results and procedures used in [his] drug

test." FAC ~ 39. This allegation is too generalized and

conclusory to satisfy Rule 9(b)'s heightened pleading

requirement. It fails to specify the time, place, or content of

LabCorp's employees' misrepresentations. As previously noted,

Rodriguez does not allege that his test results were factually

inaccurate. 5 Instead, his theory is that LabCorp used improper

testing procedures. However, as discussed below, this

contention is premised entirely on LabCorp's own Report.

5 In its Motion to Dismiss Rodriguez's original Complaint, LabCorp pointed out that "Plaintiff does not allege that his test results were inaccurate or that he had not engaged in marijuana use prior to providing his urine sample; he simply claims that LabCorp should not have performed the confirmatory test arid then reported the results to the MRO." See Def.'s Mot. to Dismiss [Original Compl.] at 2 [Dkt. No. 9]. Rodriguez had the opportunity to address this point in his FAC, but did not do so. -11- Accordingly, it is entirely unclear what specific statement or

other communication by LabCorp was false or misleading.

Second, " [a] plaintiff may recover for a defendant's

fraudulent statement only if the plaintiff took some action in

reliance on that statement." Aktieselskabet AF 21. November

2001 v. Fame Jeans Inc.,

(D.C. Cir. 2008)

(citing Va. Acad. of Clinical Psychologists v. Grp. Hosp. & Med.

Servs., Inc.,

(D.C. 2005)). Rodriguez

does not claim that he himself relied on LabCorp's Report.

Instead, he contends that he may recover for fraud based on the

District of Columbia's reliance. However, he cites no District

of Columbia case to support this contention, and our Court of

Appeals has rejected the argument that a third party's reliance

satisfies the reliance element of common-law fraud. See id. at

23 (affirming dismissal of common-law fraud claim because

"[r] ather than suggesting its own reliance, [plaintiff] says the

PTO relied on [defendant's] alleged misrepresentation")

The~efore, Rodriguez has not made out the element of reliance. 6

6 Plaintiff cites Bridge v. Phoenix Bond & Indem. Co.,

(2008) for the proposition that third-party reliance satisfies the reliance element of fraud. Pl.'s Opp'n at 17-18. In Bridge, the Supreme Court considered third-party reliance in the context of a civil RICO claim premised on violations of the federal mail fraud statute. The Court observed that "it may be that first-party reliance is an element of a common-law fraud claim," but emphasized that the case before it concerned a "statutory offense that is distinct from common-law fraud."

(both emphases added) . Since Rodriguez brings a claim -12- Third, beyond a formulaic recitation of the elements of

fraud, Rodriguez has not alleged any facts suggesting that

LabCorp or any of its employees knew or believed the Report was

inaccurate, or intended to deceive Rodriguez, or anyone else, by

providing false information.

For each of these reasons, Rodriguez fails to state a claim

for fraudulent misrepresentation. Count 2 shall be dismissed.

D. Negligent Misrepresentation

In Count 3, Rodriguez brings a claim for negligent

misrepresentation. The elements of negligent misrepresentation

are similar to the elements of fraud, but do not include the

element of fraudulent intent. Thus, "[t] o establish negligent

misrepresentation by a defendant, a plaintiff must show that:

1. The defendant negligently communicated false information [,]

2. The defendant intended or should have recognized that the plaintiff would likely be imperiled by action taken in reliance upon [the] misrepresentation[,] [and]

3. The plaintiff reasonably relied upon the false information to his [or her] detriment.

Hall v. Ford Enters., Ltd.,

(D.C. 1982)

(citing Restatement of Torts 2d § 311 (1965); W. Prosser, Torts,

§ 107, at 704-10 (4th ed. 1971)).

for common law fraud under District of Columbia law, not a claim under the civil RICO provisions, Bridge is inapposite. -13- Rodriguez fails to make out the elements of negligent

misrepresentation for largely the same reasons that he fails to

state a claim for fraud, namely, that he has not identified any

false information communicated by LabCorp, and does not claim

that he himself relied on such information. Therefore, Count 3

shall be dismissed.

E. Negligence

In Count 4, Rodriguez brings a claim for negligence. The

elements of negligence are the existence of "a duty of care,

breach of that duty, and injury proximately caused by that

breach." Odemns v. Dist. of Columbia,

(D.C.

2007) (citation and quotations marks omitted) .

The parties address a significant portion of their papers

to the issue of whether LabCorp owed Rodriguez a duty of care.

See Def.'s Mem. at 12-14; Pl.'s Opp'n at 6-14; Def.'s Reply at

3-7. Whether a defendant owed the plaintiff a duty of care is a

question of law to be decided by the court, with an eye to

whether "injury to [the plaintiff] was reasonably foreseeable to

the defendant" at the time of the accident. Haynesworth v. D.H.

Stevens Co.,

(D.C. 1994). The court must

also consider whether any applicable statutes or regulations

create such a duty. Odemns,

(citing Jarrett v.

Woodward Bros., Inc.,

(D.C. 2000)).

-14- Although the District of Columbia Court of Appeals has not

addressed whether a commercial laboratory owes a duty of care to

drug-testing subjects, many other courts have recognized the

existence of such a duty. See, e.g., Cooper v. Lab. Corp. of

Am. Holdings, Inc.,

(4th Cir. 1998) ("The

overall trend is for courts to recognize the existence of a

limited duty on the part of the laboratory to employees who are

the subject of the tests.") ; Quisenberry v. Compass Vision,

Inc.,

(S.D. Cal. 2007) ("To [decline

to recognize such a duty] would mean to deprive thousands of

individuals from an opportunity to challenge or receive any

recourse for the repercussions they may suffer due to

negligently performed laboratory tests producing erroneous or

inaccurate test results."); Chapman v. LabOne,

(S.D. Iowa 2006) (finding a duty because defendant

laboratory "was aware it was testing employee samples, and

accordingly, could anticipate that harm could come to the

employee as a result of [its] negligent behavior in processing

the sample").

In fact, although LabCorp contends that it did not owe

Rodriguez a duty of care, .at least two of the cases it cites to

support its position hold that drug testing laboratories do owe

such a duty. See Nehrenz v. Dunn,

(La. Ct.

App. 1992) (sustaining negligence claim of terminated employee

-15- against laboratory); Elliott v. Lab. Specialists, Inc.,

(La. Ct. App. 1991) ("The risk of harm in our

society to an individual because of a false-positive dr:ug test

is so significant that any individual wrongfully accused of drug

usage by his employer is within the scope of protection under

the law."), writ denied,

(La. 1992).

As these cases have recognized, it is entirely foreseeable

that an employee who submits a specimen for drug testing will

suffer adverse effects to his or her employment if the

laboratory erroneously reports a positive result. The District

of Columbia's regulations expressly provide for termination of

employment following a positive drug test. See 6- B D. C. M. R. §

3907.1 ("The following shall be grounds for termination of

employment . (a) A confirmed positive drug test result .

. ") . Moreover, the District of Columbia and the United States

Department of Transportation have both enacted regulations

requiring drug testing laboratories to implement quality control

procedures, presumably to protect against the danger of a false

positive. See 6-B D.C.M.R. § 3901 et seq.; 49 C.F.R. Part 40,

Subpart F. Thus, it is fully consistent with general tort

principles and the tendency of the courts to hold, and this

Court does hold, that commercial laboratories, such as LabCorp,

owe a duty of care to drug testing subjects, such as Rodriguez.

-16- However, as discussed, Rodriguez has not alleged that his

test results were inaccurate, only that LabCorp' s violation of

certain procedural requirements caused the results to be

erroneously reported to his employer. Whether LabCorp's duty to

Rodriguez included strict compliance with these procedural

requirements, and whether a plaintiff, such as Rodriguez, can

demonstrate proximate causation where he does not allege that

his test results were inaccurate, are open questions. 7 However,

the Court need not reach these questions because there is a more

fundamental problem with Rodriguez's negligence claim, namely

that the FAC does not support the "reasonable inference," Iqbal,

556 u.s. at 678, that LabCorp violated any procedural

requirement.

As previously discussed, Rodriguez alleges that LabCorp

breached its duty to comply with the quality control regulations

in two respects, first, by not obtaining a positive initial

screen prior to conducting a confirmatory test, and second, by

not using the immunoassay methodology required by 6-B D.C.M.R. §

3906. With respect to the first theory, the sole factual

7 The Court notes that the quality control regulations require a laboratory to store a urine specimen, and if the specimen is confirmed positive, to notify the employee of his or her right to send the stored sample to another certified laboratory for confirmation of the positive result. See 6-B D.C.M.R. § 3906.5. There is no evidence Rodriguez ever availed himself of this right. -17- allegat.ion to support it is in paragraph 12 of the FAC, which

contends:

[T] here is absolutely . no evidence or information in the report provided to the District of Columbia indicating that [Rodriguez] had a positive initial screen, i.e., over 50 ng/mL. No where [sic] in the report from LabCorp is it indicated that the initial test met or exceeded the 50 ng/mL cutoff level.

FAC ~ 12.

However, the Report states in two separate places that

LabCorp did conduct an initial screen of Rodriguez's specimen,

and that such screen exceeded the concentration cutoff of 50

ng/mL. First, on a page titled "Specimen Test Results," the

Report lists both a "screening" and a "confirm" test, defines

the "Screening Cutoff" as 50 ng/mL, and indicates that the

collective results of the "screening" and "confirm" tests

conducted on Rodriguez's specimen were "POSITIVE." See Steiner

Decl., Ex. A at 6. Second, on a page titled "Specimen Summary,"

the Report states:

Initial Test Results (Immunoassay) Presumptive positive for Cannabinoid

Confirmation Test Results (GC/MS) Positive for Marijuana Metabolite: 48 ng/ml

Id. at 1.

In short, Rodriguez's contention that "[t]here is

absolutely no evidence or information in the report" that his

specimen had a positive initial screen is squarely contradicted

-18- by the Report itself. Consequently, the Court cannot accept the

allegations in Paragraph 12 of the FAC as true.

With respect to Rodriguez's second theory as to how LabCorp

breached its duty of care, he contends:

It is clear that LabCorp performed the wrong kind of test, i.e., it did not administer the enzyme multiple immunoassay technique (EMIT) test as required by D.C. municipal regulation 6-B D.C.M.R. § 3906. The test administered by LabCorp, in its own words, was a 'qualitative' test which 'should not be used to determine the concentration of drug or drug metabolite present in specimens.'

FAC ~ 16. Rodriguez quotes directly from the "Initial test Data

Section" of the Report to support this allegation. See FAC ~

16, n.l.

Again, Rodriguez's allegations about the Report are

directly contradicted by the Report itself. The Report states

in at least three different places that LabCorp first used an

immunoassay test, which is a qualitative test, to conduct the

initial screen, and then used a GCMS test, which is a

quantit'ative test, to confirm the positive result and measure

the precise concentration of drug metabolites present in

Rodriguez's sample. See Steiner Decl., Ex. A at 1, 2, 7, 16.

This is what the regulations require. See 6-B D.C.M.R. 3906.4

("[T]he vendor shall split each sample and perform enzyme-

multiplied immunossay [sic] (EMIT) testing A positive

EMIT test shall be confirmed using the gas

-19- chromatography/mass spectrometry (GCMS) methodology."); see also

Skinner v. Ry. Labor Execs. Ass'n,

(1989)

("While drug screens may be conducted by immunoassays

positive drug findings are confirmed by gas chromatography/mass

spectrometry. These tests, if properly conducted, identify the

presence of drugs in the biological samples tested with

great accuracy.") (quoting United States Dep' t of Transp. Field

Manual: Control of Alcohol and Drug Use in Railroad Operations

B-12 (1986) (quotation marks and brackets omitted)); Nat'l

Treasury Employees Union v. U.S. Customs Serv.,

(D.C. Cir. 1994) ("The laboratory to which specimens are sent

will first employ an immunoassay test; any sample identified as

positive will then be tested using gas chromatography/mass

spectrometry (GC/MS) techniques.") (citation omitted) . 8

While the Court would ordinarily be required to accept

Plaintiff's factual allegations as true at this stage of the

proceedings, his allegations rely on a document that expressly

contradicts the conclusions he draws from it. Therefore, the

Court is not required to accept such allegations as true. See

Kaempe,

(citing Veney v. Wyche,

(4th Cir. 2002)). Further, without any other factual

8 The Report does not specify that LabCorp used an "enzyme- multiplied" immunoassay technique, as opposed to a different type of immunoassay. However, Rodriguez does not allege that LabCorp performed the wrong type of immunoassay test, and the Report does not suggest as much. -20- allegations to support his claim that LabCorp breached its duty

of care, or any contention that the test result was erroneous or

inaccurate, Rodriguez's negligence claim does not satisfy the

plausibility standard of Twombly and Iqbal. Accordingly, Count

4 shall be dismissed.

F. Intentional Interference Claims

In Counts Five and Six, Rodriguez brings claims for

intentional interference with prospective advantage and

intentional interference with business relations.

LabCorp did not address these claims in its moving papers,

and Rodriguez contends, therefore, that such claims may not be

dismissed. P l . ' s Opp' n at 5-6 . LabCorp counters in its Reply

brief that it was not required to seek dismissal of Counts 5 and

6 because the FAC brings them against the "John Doe" Defendants

only, and not against LabCorp. Def. 's Reply at 12. LabCorp

further argues that even if it was named as a defendant in

Counts 5 and 6, the claims should be dismissed for failure to

state a cause of action. Id. at 13-15. The Court agrees.

LabCorp is correct that the intentional interference claims

state that they are brought against the "John Does" and do not

mention LabCorp. Rodriguez now contends (in his Opposition to

LabCorp' s Motion) that LabCorp is vicariously liable for the

conduct of the John Does, none of whom have been served with the

FAC. Pl.'s Opp'n at 5-6. The FAC does not assert this theory

-21- in Counts 5 and 6, and therefore LabCorp was not required to

address those counts in its moving papers.

Even if Rodriguez had named LabCorp as a defendant in

Counts 5 and 6, he has not stated a cause of action for

intentional interference with prospective economic advantage or

intentional interference with business relations. To establish

either claim, a plaintiff must allege facts setting forth: (1)

the existence of a valid business relationship or expectancy;

(2) the defendant's knowledge of the relationship or expectancy;

( 3) the defendant's intentional interference with the

relationship or expectancy; and (4) resulting damages. See

NCRIC, Inc. v. Columbia Hosp. for Women Med. Ctr., Inc.,

, 900 & n.l8 (D.C. 2008); Casco Marina Dev., L.L.C. v.

D.C. Redevelopment Land Agency,

(D.C. 2003).

There is not a single factual allegation in the FAC

plausibly suggesting that LabCorp (or anyone else) intended to

interfere with Rodriguez's employment relationship with the

District of Columbia. The mere awareness that Rodriguez could

be adversely affected by a positive test result is insufficient.

As our Court of Appeals has observed:

As its name would suggest; intentional interference requires an element of intent. [A] general intent to interfere or knowledge that conduct will injure the plaintiff's business dealings is insufficient to impose liability.

-22- Bennett Enterprises, Inc. v. Domino's Pizza, Inc.,

,

499 (D.C. Cir. 1995) (emphasis in original) (citation and

quotation marks omitted) . Because there are no facts suggesting

that LabCorp, or any of its employees, acted with a desire or

purpose to interfere with Rodriguez,s employment, the Court

shall dismiss the intentional interference claims at Counts 5

and 6. 9

G. Breach of Contract

In Count 7, Rodriguez brings a claim for breach of

contract. A claim for breach of contract includes four

elements: "(1) a valid contract between the parties; (2) an

obligation or duty arising out of the contract; (3) a breach of

that duty; and (4) damages caused by breach. 11 Tsinolas Realty

Co. v. Mendez,

(D.C. 2009) (citation omitted).

Rodriguez contends that LabCorp s contract with the District of 1

Columbia required compliance with the quality control

regulations. He further claims that he has standing as a third-

party beneficiary to enforce this aspect of the contract, which

LabCorp disputes. See Def. s Mot. at 14-17; Pl. s Opp n at 20- 1 1 1

22.

9 Having so concluded, the Court does not reach LabCorp,s alternate contention that an "at-will employment contract, such 11

as the one between Rodriguez and the District of Columbia, cannot, as a matter of law, satisfy the first element of an intentional interference claim. Def., s Reply at 14 (citing Zelaya v. UNICCO Serv. Co.,

(D.D.C. 2008)) . -23- Whatever the merits of Rodriguez's third-party beneficiary

theory, his breach of contract claim, like his other claims, is

predicated on the contention that LabCorp violated the quality

control regulations. As already noted, he pleads no facts

plausibly suggesting LabCorp violated any of these provisions.

Accordingly, even assuming that the contract between LabCorp and

the District of Columbia required compliance with the

regulations, and that a drug testing subject has standing to

enforce this requirement, Rodriguez still would not state a

claim for breach of contract. Therefore, Count 7 shall be

dismissed.

H. Breach of the Covenant of Good Faith and Fair Dealing

Finally, at Count 8, Rodriguez brings a claim for breach of

the covenant of good faith and fair dealing. "Under District of

Columbia law, every contract contains within it an implied

covenant of both parties to act in good faith and damages may be

recovered for its breach as part of a contract action."

Choharis v. State Farm Fire & Cas. Co.,

(D.C. 2008) (citation omitted) . This covenant means that

"neither party shall do anything which will have the effect of

destroying or injuring the right of the other party to_ receive

the fruits of the contract." Allworth v. Howard Univ.,

(D.C. 2006) (citations omitted). "To state a claim for

breach of the implied covenant of good faith and fair dealing, a

-24- plaintiff must allege either bad faith or conduct that is

arbitrary and capricious." Wright v. Howard Univ.,

(D.C. 2013)

Rodriguez was not a party to the contract between the

District of Columbia and LabCorp. The mere fact that he may

have been one of thousands of beneficiaries of a specific

quality control provision contained in that contract does not

mean that LabCorp generally owed him a contractual duty of good

faith and fair dealing. Further, there are no facts in the FAC

suggesting that LabCorp or any of its employees operated in bad

faith or in an arbitrary and capricious manner at any time.

Accordingly, Count 8 shall be dismissed.

IV. CONCLUSION

For the foregoing reasons, Defendant's Motion is granted,

and the FAC shall be dismissed. An Order shall accompany this

Memorandum Opinion.

February 4, 2014 United States District Judge

Copies to: attorneys on record via ECF

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