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Press v. United States

United States District Court, D. Maryland

May 15, 2018

RODERICK PRESS, Plaintiff
v.
UNITED STATES OF AMERICA, et al., Defendants.

          MEMORANDUM

          James K. Bredar, Chief Judge

         Plaintiff brought this lawsuit against the United States of America (“the Government”), and Knight Sky LLC (“Knight Sky”) and George Knizewski (together with Knight Sky “the Knight Sky Defendants”) on June 19, 2017. (Compl., ECF No. 1.) In an order dated March 8, 2018, the Court granted in part and denied in part the Government's motion to dismiss, and granted the Knight Sky Defendants' motion to dismiss. (See March 8 Order, ECF No. 27.) Plaintiff has moved to amend his complaint in response. (Mot. Amend, ECF No. 31.) The Knight Sky Defendants and the Government have responded in opposition (ECF Nos. 32-33) and Plaintiff has replied (ECF No. 34). Therefore, Plaintiff's motion is ripe for review. There is no need to hold a hearing to resolve the matter. See Local Rule 105.6 (D. Md. 2016). The Court will grant Plaintiff's motion for leave to amend because his amendments are not futile, nor were they brought in bad faith or in a manner that is prejudicial to the Defendants. The Court interprets the Government's opposition in part as a motion to strike portions of Plaintiff's proposed amended complaint, which the Court will deny without prejudice, and in part as a motion to vacate in part an earlier order of the Court (see March 20 Order, ECF No. 30), which the court will grant.

         I. Background[1]

         From 2006 to 2008 Plaintiff performed information technology and security work for Knight Sky, a company that contracts with the Federal Government. (Compl. ¶¶ 10, 14, 18.) Knight Sky used a system known as the Joint Personnel Adjudication Verification System (“JPAS”) in order to process security-related information for its employees. (See Id. ¶ 16; id. p. 1 (defining “JPAS”).) JPAS is an “electronic personnel database maintained by the Department of Defense [(“DoD”)] for the purpose of collecting reports touching on a person's ability to use and to handle classified information.” (Id. ¶ 16.) During Plaintiff's employment with Knight Sky, Knight Sky was allowed to post reports to JPAS that would affect Plaintiff's ability to handle classified information. (Id. ¶ 17.) Before leaving Knight Sky in 2008, Plaintiff “separated himself . . . from the JPAS system, ” such that “Knight Sky was no longer a servicing entity to Plaintiff's security clearance” and was no longer allowed to update his record. (Id. ¶ 19.)

         Apparently, Plaintiff and Knight Sky did not part ways amicably. After leaving Knight Sky, Plaintiff “activated” a corporation that he had formed a decade earlier, Astraeos Technologies, Inc. (“Astraeos”), and he began bidding on government contracts, including contracts that Knight Sky would bid on. (Id. ¶¶ 20, 22.) Plaintiff also took a job at Northrop Grumman. (Id. ¶ 21.) In March 2009, Knight Sky's CEO, George Knizewski, told attendees at a trade show that they should not do business with Astraeos. (Id. ¶ 23.) This led to Astraeos filing suit against the Knight Sky Defendants in Maryland state court in April 2009, to which the Knight Sky Defendants responded with several counterclaims. (Id. ¶¶ 24-25.) The Circuit Court granted both parties directed verdicts, finding that each failed to show damages, and further that Knight Sky failed to “present sufficient evidence as to liability.” (Id. ¶ 25.) The result was upheld by the Maryland Court of Special Appeals in September 2010. (Id.)

         In October 2010, one month after the Court of Special Appeals' decision and two years after Plaintiff had left Knight Sky, Knight Sky published a security incident report (the “Incident Report”) on Plaintiff's JPAS account. (Id. ¶ 26.) This report “contained falsehoods” and mostly included accusations that Plaintiff had mishandled sensitive data or misused various systems with the intent to harm Knight Sky financially. (Id. ¶¶ 26-28.) Knight Sky did not have proper authorization to post this largely, if not entirely, false report. (Id. ¶ 26.) As a result of the Incident Report, “a red flag was placed on Plaintiff's JPAS account.” (Id. ¶ 28.)

         The DoD “reassured Plaintiff that the Incident Report would be favorably adjudicated and removed from his JPAS account.” (Compl. ¶ 30.) As a result of the Incident Report (and red flag) being on Plaintiff's JPAS account, he lost his job at Northrop Grumman, and lost a five year contract with iWatch Security Solutions, LLC. (Id.¶¶ 31-32.) Despite repeated representations by the DoD that the Incident Report was adjudicated in Plaintiff's favor and that the red flag would be removed, the Incident Report remained on Plaintiff's JPAS account as of the commencement of this action in 2017. (Id. ¶ 42; see Id. ¶¶ 35, 41-43.) The red flag was removed in October 2015. (Id. ¶ 42.)

         On June 19, 2014, the Knight Sky Defendants posted an addendum (“the Addendum”) to Plaintiff's JPAS account. (Id. ¶ 36.) As printed in Plaintiff's complaint, the Addendum reads as follows:

Case against Astreos [sic] Mr. Press and his associates was brought inform to the Civil Courts of Frederick Maryland. Case was dismissed as to the actions of Mr. Press did nor [sic] result in a direct financial gain to Mr. Press. The case was appealed on the grounds that his inability to achieve personnel gains does not dismiss him wrongful conduct and illegal activities. As a direct result of Mr. Press's action, a $5 Million Dollar contact was terminated and put out on competitive bid. Loss of Revenue resulting in the loss of all employees and forced the company into near bankruptcy.

(Id. (alteration in the original).) As with the 2010 Incident Report, the Knight Sky Defendants did not have authorization to post this information to Plaintiff's JPAS account. But unlike the 2010 Incident Report, this Addendum does not seem to allege information that (regardless of its accuracy) relates to Plaintiff's ability to use or handle sensitive information. It appears to be an irrelevant complaint about Plaintiff's prior litigious activity and its purported impact on Knight Sky. “Upon [Plaintiff's] information and belief, [the Knight Sky Defendants] filed the Addendum intending that it would cause the security clearance to continue to be red flagged in the JPAS system.” (Id. ¶ 37.)

         Three years to the day after the Knight Sky Defendants posted the Addendum, Plaintiff brought suit in this Court against the Knight Sky Defendants and the United States. Plaintiff brought a claim of tortious interference with prospective economic and business relations against the Knight Sky Defendants and a claim of negligence against the United States, brought under the Federal Tort Claims Act (“FTCA”). The Knight Sky Defendants and the United States brought motions to dismiss, and the Court granted the Knight Sky Defendants' motion, and granted in part and denied in part the Government's motion. (See Mem., ECF No. 26.)

         The Knight Sky Defendants made four arguments in their motion to dismiss. First, the Knight Sky Defendants argued that Maryland's three-year statute of limitations barred Plaintiff's action, as it was based on the 2010 Incident Report but brought in 2017. Second, the Knight Sky Defendants argued that they were entitled to the “federal contractor privilege, ” which, generally speaking, protects contractors from liability arising out of communications that they are required to make to an agency of the United States. (See Mem. at 12-13 (discussing Becker v. Philco Corp., 372 F.2d 771 (4th Cir. 1967).) Third, they argued that Plaintiff was required to plead a “predicate tort, ” i.e., a separate tort, to demonstrate wrongful conduct in a tortious interference action. Finally, the Knight Sky Defendants argued that Plaintiff had not sufficiently alleged a specific business relationship that was harmed by the Knight Sky Defendants' alleged tortious conduct, and therefore, under Maryland law, could not state a claim for tortious interference with prospective business relations.

         The Court found these arguments largely unavailing. Maryland's three year statute of limitations did bar Plaintiff's action insofar as it was based on harms that he suffered due to the 2010 Incident Report, but it would not bar an action based on harms suffered due to the 2014 Addendum, which was posted three years prior to Plaintiff bringing suit. The Court found that the Knight Sky Defendants' reports to JPAS were not privileged because, at least given the record before the Court and the standard of review, it did not appear that the Knight Sky Defendants were “required” to make these communications to an agency of the United States. Third, under Maryland law Plaintiff only needed to plead that the conduct undergirding his tortious interference claim was wrongful or improper; not an entirely separate tort. Plaintiff alleged that the Knight Sky Defendants had uploaded injurious information to Plaintiff's JPAS account without proper authorization, and that was sufficiently “improper” to assert a claim of tortious interference.

         Finally, with respect to the Knight Sky Defendants' contention that Plaintiff had not identified specific business relationships that had been harmed by their alleged tortious conduct, the Court noted that Plaintiff had alleged several such relationships, including his lost job at Northrop Grumman, and a lost $1 million contract. But, Plaintiff alleged that these economic opportunities were harmed as a result of the 2010 Incident Report-Plaintiff lost his job and the contract in 2011, three years before the Addendum was even posted. Given the Court's earlier finding that the statute of limitations had run on claims arising out of the 2010 Incident Report, the Court explained that Plaintiff needed to allege some “specific business relationship that ha[d] been harmed as a result of the 2014 Addendum.” (Mem. at 17.) Plaintiff had not done so. He had alleged that his Security Management Officer warned him that “he may encounter difficulties” as a result of the Addendum, and he conclusorily alleged that he “lost contract and employment opportunities” as a result of both the Incident Report and Addendum (Compl. ¶¶ 39, 43), but he nowhere alleged a particular business relationship that was “damaged because of the 2014 Addendum alone.” (Mem. at 17.) The Court therefore granted the Knight Sky Defendants' motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), but noted that Plaintiff could seek leave to amend his complaint to include allegations of relationships that were harmed specifically due to the 2014 Addendum, should he believe he can prove such allegations at trial.

         The Government argued that Plaintiff's claim was barred by sovereign immunity because it was not a type of claim permitted under the FTCA, nor was it brought in accordance with the FTCA's administrative process. The Court found that the claim was at heart a negligence claim, which may be brought under the FTCA, but it agreed with the Government that Plaintiff had not followed the FTCA's administrative process with respect to his claim arising out of the 2010 Incident Report. Therefore, the Court granted the Government's motion in part, but denied it in part and permitted Plaintiff to proceed with his claim insofar as it was based on the 2014 Addendum.

         The Court entered its order granting the Knight Sky Defendants' motion to dismiss and granting in part and denying in part the Government's motion on March 8, 2018. The Court ordered the Government to answer Plaintiff's complaint within the time allotted under Federal Rule of Civil Procedure 12(a)(4). Plaintiff, however, indicated that he was going to move to amend his complaint. The Government therefore moved the Court to grant the Government additional time to respond, so that, should the Court grant Plaintiff's motion to amend, the Government would only have to answer a single complaint. The Court granted the Government's motion by an order issued on March 20. In that order, the Court stated that if Plaintiff moved to amend his complaint by March 30, and if the Court granted that motion to amend, the Government would be ordered to answer that amended complaint in the time set forth under Federal Rule of Civil Procedure 12(a)(4).

         Plaintiff did move to amend his complaint by March 30. Plaintiff moved for leave to file an amended complaint, and styled his motion as one for leave to amend and to vacate a judgment. That motion is now ...


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