Webb v. Paine

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

JASON WEBB,

Plaintiff,

v. Civil Action No. 2:19-cv-00447

STEVEN L. PAINE, State

Superintendent of Schools, in

his individual capacity and

official capacity; and JAN

BARTH, Assistant State

Superintendent of Schools, in

her individual capacity and

official capacity,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending are plaintiff Jason Webb’s motion for summary

judgment, filed August 20, 2020, ECF No. 68, and defendants

Steven L. Paine and Jan Barth’s motion for summary judgment,

filed August 21, 2020. ECF No. 70.

I. Background

Plaintiff is a registered lobbyist in West Virginia

who was hired by the national testing company ACT, Inc. (“ACT”)

to provide lobbying services in West Virginia, with the contract

being entered into on January 25, 2016 for a period of six

months. Webb Dep., ECF No. 68-8 at 196:13-197:13. The contract

between plaintiff and ACT was continually extended until July

2019. Id. at 218:3-10. Defendant Paine was Superintendent of

Schools, from March 27, 2017 until February 21, 2020. Paine

Dep., ECF No. 68-4 at 18:7-14, 202:9-13. Defendant Barth began

work as a special assistant in mid-April 2018, being promoted to

Assistant Superintendent of Schools on July 1, 2018. Barth

Dep., ECF No. 68-1 at 39:10-21.

In 2016, prior to defendants arriving at the West

Virginia Department of Education (“WVDE”), legislation was

introduced in both chambers of the legislature that would have

enshrined ACT as the chosen provider of educational assessments

in West Virginia. Prior to being replaced, the Smarter Balanced

test, an assessment of Common Core standards produced by a

partnership between the Smarter Balanced Assessment Consortium

and the American Institute of Research (“AIR”), was the

statewide assessment for students in West Virginia. ECF No. 68-

8 at 32:9-22; see also AIR, AIR Partners with Smarter Balanced

Assessment Consortium to Create an Online Test Delivery System

for States, https://www.air.org/resource/air-partners-smarter-

balanced-assessment-consortium-create-online-test-delivery-

system (Sep. 6, 2012). Senate Bill 676 would have expressly

made ACT the provider for students in grades 3-8 and the 11th

grade, and House Bill 4024 would have expressly made ACT the

provider for the 11th grade test only. ECF Nos. 70-5, 70-6.

Neither bill advanced from its respective chamber; however, a

similar bill, House Bill 4014, would have required West Virginia

to adopt a test with the exact testing structure of ACT’s

products by requiring that the test assess the five subject

matter areas contained in the ACT exam, consisting of English,

reading, writing, science, and mathematics. ECF No. 70-7. HB

4014 was passed by both chambers and vetoed by Governor Tomblin

in 2016. Id.

On February 27, 2017, a sweeping education bill, House

Bill 2711, was introduced in the House “by request of the

Executive,” i.e., by the request of newly elected Governor

Justice. ECF No. 70-10. The House Education Committee amended

the language of the bill to require the statewide 11th grade

assessment test for the five subject areas contained in the ACT

test. Id.; see also ECF No. 68-8 at 39. Senate Bill 18,

introduced around the same time as HB 2711, originally named ACT

as the assessment provider, but the Senate Educational Committee

determined it would be inappropriate to name a specific provider

and that the assessment should be decided through the normal

bidding process. Stewart Dep., ECF No. 70-11 at 47-48. The

amended language calling for the five components contained in

ACT’s products was removed when HB 2711 arrived in the Senate.

ECF No. 70-10. Plaintiff testified that Senator Kenny Mann, the

Chair of the Senate Education Committee, informed him that while

he wanted the ACT test to be the statewide assessment, Paine had

represented to him that removing the pro-ACT language would not

damage ACT’s chances of being selected. ECF No. 68-8 at 70:20-

71:20. Sarah Stewart, in-house counsel for WVDE, believes that

it was in fact the Governor’s request that the language be

removed that led the Senate to do so. ECF No. 70-11 at 42-44.

Regardless of the hearsay statements attributed to Mann and

Stewart’s belief, it is noted that HB 2711 was enacted into law

on April 26, 2017, opening a selection process for an assessment

for grades 3-8 and the 11th grade, without language that

specifically favored ACT. See 2017 W.V. HB 2711.

Subsequently, WVDE opened a public bidding process for

two statewide assessments: one for students in grades 3-8, and

one for students in the 11th grade. Rhudy Dep., ECF No. 70-17

at 24. ACT placed a bid to provide its “ACT Aspire” exam for

grades 3-8 and its ACT test for 11th grade students. Id. ACT’s

primary competitor, the College Board, submitted the only other

bid for the 11th grade assessment, with its SAT test. Id. at

32. AIR submitted a bid for grades 3-8, with the Smarter

Balanced test. ECF No. 68-8 at 132. After bids were submitted,

a blackout period began, in which communications between vendors

and WVDE were prohibited to maintain integrity in the bidding

process. Id. at 117. Plaintiff testified that despite the

blackout, Paine approached him at an event for school

administrators on June 20, 2017 and told him “we are not going

to use that – that 3-8 [test], that Aspire. That’s junk,” and

then walked away. Id. at 118-19. Paine testified that he did

not recall such an encounter and that he seriously doubted he

would say something to that effect. ECF No. 68-4 at 55-57.

In the late summer of 2017, both the ACT test and the

SAT test were disqualified in their initial bids with the WVDE,

as both vendors’ applications were missing mandatory portions in

order to be considered. ECF No. 70-17 at 31. Accordingly, the

WVDE opened a second bidding process, in which College Board and

ACT submitted applications again for consideration for the 11th

grade exam. Id. The College Board, with its SAT test, was

awarded the contract for the 11th grade assessment in the

rebidding. Id. ACT filed an official protest with the scoring

process, contending that (1) only the ACT adequately addressed

the WVDE’s requirement for a science assessment and (2) certain

points were improperly deducted from ACT and, if those

deductions were applied equally, it would have resulted in the

SAT being disqualified. ACT Protest, ECF No. 70-21. WVDE then

reanalyzed and rescored ACT’s bid, which resulted in ACT being

awarded an additional 15 points but still falling short of the

minimum score of 50 to be considered as an option. Hutchens

Dep., ECF No. 70-14 at 24. ACT did not exercise its right to

appeal this decision to the state circuit court. ECF No. 68-8

at 130. Thus, the College Board remained the winner of the

bidding process for the 11th grade test. ECF No. 70-14 at 24.

ACT lost the bid for the assessment of grades 3-8 to AIR. ECF

No. 68-8 at 132-33. ACT did not formally protest the award of

the bid to AIR. Id.

Even though ACT was not selected as the statewide

provider for either assessment, it still had the opportunity to

be selected as an assessment provider on the county-level under

a policy known as the “local option.” The local option

procedure is provided for under the Every Student Succeeds Act

(ESSA), a federal law passed in 2015. See Pub.L. No. 114–95.

According to Dr. Vaughn Rhudy, Executive Director of the WVDE

Office of Assessment, the procedure provided for under ESSA is

lengthy and complicated, requiring interaction with federal

regulators and federal law, as well as a peer-review process and

required submissions. ECF No. 70-17 at 69-73. Paine testified

that ACT nonetheless expressed interest in pursuing the local

option, through Scott Frein, a national lobbyist for ACT and

Scott Montgomery, a Vice President of ACT. ECF No. 68-4 at 73.

Paine likewise expressed enthusiasm for working with ACT to

provide a local option. Id. A collaborative process between

ACT and WVDE to prepare for the peer-review process required by

ESSA ensued between May 11, 2018 and May 2, 2019. See ECF No.

70-52.

On February 13, 2018, Senate Bill 532 was introduced,

which would have required WVDE to develop a process for

providing a local option to counties of either the SAT or the

ACT for the 11th grade assessment. ECF No. 70-24. Plaintiff

testified that Chairman Mann informed him that Paine had met

with Chairman Mann and Senator Rucker to advise them that the

WVDE could and would give counties the power to opt for

whichever test they preferred in Spring 2019, and that SB 532

was thus unnecessary. ECF No. 68-8 at 155. Paine testified

that he did not recall this meeting, but if it happened, he

likely would have informed the senators that WVDE was already

seeking approval from the U.S. Department of Education for the

local option. ECF No. 68-4 at 73-74. Regardless of the hearsay

statement attributed by plaintiff to Chairman Mann, it is noted

that Mann pulled the bill and read a statement drafted by WVDE

on the floor of the Senate, stating that counties would have the

choice between the SAT and the ACT starting in 2019. ECF No.

68-4 at 76:15-77:5. In 2019, the legislature passed Senate Bill

624, which would have created a local option. ECF No. 70-41.

WVDE took the position that SB 624, like SB 532, was unnecessary

given the federal process for approving the local option. ECF

No. 70-11 at 89. Governor Justice vetoed the bill on March 27,

2019, reasoning that it conflicted with another statute that

required the statewide assessment selected in the 2017 bidding

process be used for at least four years. ECF No. 70-44.

Throughout the time he was under contract with ACT,

plaintiff utilized the social media platform Twitter to publicly

express his views about the policymaking process outlined above

and about testing policy in West Virginia. He criticized the

selection of the SAT multiple times, calling the SAT a “Common

Core” test1 and noting the fact that the test lacks a science

portion. ECF Nos. 70-27, 70-29, 70-30. He condemned the

College Board as scandal ridden. ECF No. 70-39, 79-40. Several

of his posts criticized WVDE and its members for supporting

Common Core standards, which he contended were failing students

and wasting money. ECF Nos. 70-33, 70-34, 70-35. Other posts

by him blamed low test scores in West Virginia on WVDE. ECF

1 The Common Core State Standards Initiative (CCSSI) is an

educational initiative to modify how English language arts and

mathematics are taught in grade school. See CCSSI, About the

Standards, http://www.corestandards.org/about-the-standards/

(last visited December 30, 2020). The Common Core standards are

controversial and reference to the SAT as a Common Core test was

ostensibly a criticism. See ECF No. 68-1 at 107.

Nos. 70-36, 70-37. These posts were generally satirical or

sarcastic in tone.

According to Barth, several employees within WVDE took

notice of the posts and expressed frustration with them, as they

considered the posts to be inflammatory, misleading, and

unfairly critical. ECF No. 68-1 at 141-42. Defendants

testified that they felt similarly about the posts. Id. at 107;

ECF No. 68-4 at 67. Plaintiff testified that Paine contacted

Scott Frein, ACT’s national lobbyist, in late 2017 to inform him

of plaintiff’s social media posts and to request that ACT “get a

handle on” plaintiff or they will “never get anything in West

Virginia.” ECF No. 68-8 at 99.

Plaintiff testified that Paine called ACT’s Scott

Montgomery on January 28, 2018 to complain about plaintiff’s

criticism of the bidding process. Id. at 150-51. According to

plaintiff, Paine stated that plaintiff was “getting under [his]

skin” and stating that ACT needed to “handle it or else.” Id.

Paine testified that he does not recall that phone call, though

a January 28, 2018 text message from Chris Kratzer, ACT’s Senior

Director of U.S. Government Relations, to plaintiff documents

that “Paine contacted Scott M late last week. You are severely

under his skin and making him nervous.” ECF No. 70-22 at 71,

ECF No. 70-23.

Barth sent an email on December 18, 2018 to ACT

containing another posting by plaintiff, indicating that she

wanted plaintiff “to be more accurate and tell both sides of the

story.” ECF No. 68-1 at 182. In late 2018, Paine directed

Barth to compile plaintiff’s social media posts, and numerous

WVDE personnel were involved in the compiling of the posts. ECF

No. 68-1 at 142. The compilations, running numerous pages, were

sent to ACT representatives. Id. at 160, 164—179. Barth

testified that they did not compile posts by any other lobbyists

or individuals, nor did they criticize any other lobbyists to

their employers. Id. at 127.

In December of 2018, ACT’s Kratzer informed plaintiff

via text message that “Jan and Steve are monitoring your tweets.

Congratulations!” ECF No. 70-25. Plaintiff asked Kratzer,

“Want me to stop? I will,” to which Kratzer replied “No your

views are your views. You bashed the SAT as a common core test.

You didn’t bash WVDOE . . . directly.” Id. Kratzer advised

plaintiff to “Make sure you continue to lay low. The dragon is

awake and he has you on his mind.” ECF No. 70-26. Kratzer also

advised plaintiff to tone down his social media posts,

particularly when posting about WVDE. Kratzer Dep., ECF No. 70-

2 at 41, 154. Kratzer believes he would have made this

suggestion even if he had not received frequent complaints from

defendants. Id. at 154-55.

In March 2019, WVDE’s counsel, Sarah Stewart, informed

Paine that a Delegate had told her that plaintiff had “stated or

implied” to the Delegate that Paine was receiving inappropriate

benefits from the College Board. ECF No. 68-4 at 110. Paine

demanded a call with the CEO of ACT, Marten Roorda, to discuss

plaintiff’s alleged conduct. Id. at 118-19. Paine did not

investigate the accuracy of the hearsay rumor by either

contacting the Delegate or plaintiff. Id. at 112-13. The call

with Roorda took place on or around March 5, 2019. Id. at 121.

On the morning before the call, Paine sent a series of text

messages to Montgomery and Frein, criticizing ACT for not

holding “Webb in check” and expressing frustration with Webb.

ECF No. 68-3.

Though Paine had insisted that Roorda be alone on the

call, Paine had in-house counsel, Heather Hutchens and Sarah

Stewart, on the call. ECF No. 68-4 at 118, 123-24. On the

call, Paine told Roorda that plaintiff “had a bad reputation”

and that Paine was insulted by plaintiff saying he had received

a kickback. ECF No. 68-6. Roorda indicated that he had not

heard any complaints regarding plaintiff and that Paine should

bring his concerns to the Ethics Board. Id. According to

Roorda, Paine said that “WV may be doing business with ACT in

the future and indicated that the issue with Webb could have

implications.” Id. Hutchens then stated that purchasing

regulations could affect the selection of vendors in future

business with ACT and that Webb’s conduct “may come close to

actual slander.” Id. Roorda interpreted the conversation as “a

sort of a threat” and that he thought such a threat might be

illegal. Id. Heather Hutchens testified that no threat was

made on the call and that the accusation against Paine was the

substance of the call. ECF No. 70-14 at 72, 77-78. She stated

that Paine informed ACT that they would be doing business in the

future and that it would be made “more uncomfortable if there

were someone who was conveying false information about the state

superintendent or the Department of Education.” Id. at 67.

Plaintiff learned of the call through Montgomery sometime after

the call but could not remember when. ECF No. 68-8 at 179-80.

Even after Governor Justice’s veto on March 27, 2019

of SB 624, which would have required a local option, ACT

continued to work into early May of 2019 on a local option with

WVDE. ECF No. 70-52. ACT eventually determined that it would

be unlikely to meet the requirements set out in WVDE’s plan for

federal peer-review and terminated their administrative efforts

to provide a local option, signaling that decision to WVDE on

May 2, 2019 by an email from Gretchen Guffy of ACT to Rhudy.

ECF No. 70-53. ACT stated in the email that (1) a

“comparability study between the ACT Science test and the SAT

science cross-test score is not possible given the two

completely dissimilar constructs” and (2) ACT was “unwilling to

absorb the additional costs of standard setting, achievement

level descriptors and customized score reports,” which was some

of the additional evidence required by the U.S. Department of

Education. Id. The email concluded, “[g]iven this decision, we

don’t believe a call is necessary,” being in response to Rhudy’s

request for a conference call. Id. Rhudy testified that the

peer-review process generally takes “a couple of years.” 70-17

at 73.

Plaintiff filed this action on June 12, 2019. Compl.,

ECF No. 1. Kratzer testified as ACT’s corporate deponent that

ACT decided to terminate its lobbying contract with plaintiff in

the week between June 12 and June 19, 2019. ECF No. 70-2 at 56.

On June 19, 2019, ACT notified plaintiff by letter that it was

exercising its right to terminate the lobbying contract with

plaintiff, effective thirty days thereafter. ECF No. 70-54.

Kratzer stated in his deposition that ACT based its

determination to terminate the contract on three considerations:

the filing of this lawsuit by Webb, the “political landscape”

changing in the West Virginia legislature, and the fact that ACT

was “getting nowhere” with regard to the local option. ECF No.

68-7 at 60-61. Kratzer testified that nothing the defendants

may have communicated to ACT regarding plaintiff had a part in

ACT’s determination to terminate the contract. Id. at 57.

Plaintiff brought three causes of action in his

complaint: Section 1983 – First Amendment Retaliation (Count I),

Tortious Interference with Business Relations (Count II), and

Civil Conspiracy (Count III). ECF No. 1. Both parties move for

summary judgment on all three counts.

II. Standard of Review

Summary judgment is appropriate only “if the movant

shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “Material” facts are those necessary to

establish the elements of a party’s cause of action. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also News

& Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d

570, 576 (4th Cir. 2010). A “genuine” dispute of material fact

exists if, in viewing the record and all reasonable inferences

drawn therefrom in a light most favorable to the non-moving

party, a reasonable fact-finder could return a verdict for the

non-moving party. Anderson, 477 U.S. at 248.

Inferences that are “drawn from the underlying facts

. . . must be viewed in the light most favorable to the party

opposing the motion.” United States v. Diebold, Inc., 369 U.S.

654, 655 (1962). A party is entitled to summary judgment if the

record, as a whole, could not lead a rational trier of fact to

find for the non-moving party. Williams v. Griffin, 952 F.2d

820, 823 (4th Cir. 1991). Conversely, summary judgment is

inappropriate if the evidence is sufficient for a reasonable

fact-finder to return a verdict in favor of the non-moving

party. Anderson, 477 U.S. at 248.

III. Discussion

A. Count I: Violation of Plaintiff’s First Amendment Rights

1. First Amendment Violation

Plaintiff alleges that defendants engaged in a

continuous retaliatory campaign against plaintiff for exercising

his First Amendment free speech rights on social media. ECF No.

1 at ¶113. He also alleges that defendants threatened to

blackball ACT and to increase scrutiny on any future bids by ACT

if they did not either curtail plaintiff’s speech in relation to

education issues and vendors or terminate him as their lobbyist.

Id. A claim for First Amendment §1983 retaliation requires that

the plaintiff demonstrate: (1) that the speech was protected,

(2) “that the defendant's alleged retaliatory action adversely

affected the plaintiff's constitutionally protected speech,” and

(3) “that a causal relationship exists between [plaintiff’s]

speech and the defendant's retaliatory action.” Suarez Corp.

Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000).

a. Whether Plaintiff’s Speech Was Protected

There is no genuine dispute of material fact that

Webb’s social media posts or his lobbying activities generally

are protected by the First Amendment. While defendants

highlight the derisive tone and allegedly misleading nature of

plaintiff’s social media posts, Defs.’ Mot. Summ. J., ECF No. 71

at 12, they never contest that the posts fall within First

Amendment protection. The posts at issue all involved matters

of public concern, relating to issues of education policy and

policymakers. Such commentary falls squarely within the

protections of the First Amendment. N.Y. Times Co. v. Sullivan,

376 U.S. 254, 270 (1964) (There is “a profound national

commitment to the principle that debate on public issues should

be uninhibited, robust, and wide-open, and that it may well

include vehement, caustic, and sometimes unpleasantly sharp

attacks on government and public officials.”); see Brinkman v.

Budish, 692 F. Supp. 2d 855, 862 (S.D. Ohio 2010) (“Lobbying

the government falls within the gambit of protected First

Amendment activity.”) (citing F.T.C. v. Superior Court Trial

Lawyers Ass'n, 493 U.S. 411, 426 (1990), Roberts v. U.S.

Jaycees, 468 U.S. 609, 622 (1984)). Plaintiff has established

the first element of the claim.

b. Whether Defendants’ Conduct Adversely Affected

Plaintiff’s Right to Free Speech / Standing

Both motions for summary judgment center on the second

element, whether defendants’ conduct “adversely affected”

plaintiff’s First Amendment rights. Defendants cast their

argument for summary judgment in terms of the merits of the

claim, as well as a claimed lack of Article III standing. ECF

No. 71 at 22 (“In short, it is undisputed that there was no

concrete, particular injury-in-fact to Plaintiff’s First

Amendment rights caused by Drs. Paine’s and Barth’s alleged

complaints to ACT.”); see also id. at 20 (“Plaintiff is

attempting to pursue claims for which he has no standing.”).

Defendants appear to both move the court to dismiss the case for

lack of subject matter jurisdiction because plaintiff lacks

standing and to address the merits of the second Suarez element.

As it relates to the merits of the second Suarez

element, the Fourth Circuit has explained that “a plaintiff

suffers adverse action if the defendant's allegedly retaliatory

conduct would likely deter a person of ordinary firmness from

the exercise of First Amendment rights,” an objective test.

Constantine v. Rectors and Visitors of George Mason University,

411 F. 3d 474, 500 (4th Cir. 2005) (citations omitted). A

retaliation “cause of action targets conduct that tends

to chill such activity, not just conduct that freezes it

completely.” Id. (emphasis in original). Still, “[n]ot every

restriction is sufficient to chill the exercise of First

Amendment rights, nor is every restriction actionable, even if

retaliatory.” DiMeglio v. Haines, 45 F.3d 790, 806 (4th Cir.

1995); see also The Baltimore Sun v. Ehrlich, 437 F.3d 410, 416

(4th Cir. 2006) (contrasting actionable adverse impacts with de

minimis inconvenience).

A plaintiff may make out a claim for retaliation based

on the defendant’s speech alone, but he bears a heavy burden in

doing so. See Page v. Lexington, 531 F.3d 275, 287 (4th Cir.

2008) (“The needs of effective governance command that the bar

limiting government speech be high”) (quoting Kidwell v. City of

Union, 462 F.3d 620, 626 (6th Cir. 2006)); see also Int’l Ass’n

of Machinists & Aerospace Workers v. Haley, 482 F. App'x 759,

765 (4th Cir. 2012). Thus,

[w]hen the challenged government action is government speech,

there is no retaliation liability — even if the plaintiff can

demonstrate a substantial adverse impact — unless the

government speech concerns “private information about an

individual” or unless it was “threatening, coercive, or

intimidating so as to intimate that punishment, sanction, or

adverse regulatory action will imminently follow.”

Baltimore Sun, 437 F.3d at 417. Here, the court considers

whether (1) defendants’ communications with ACT officials were

threatening, coercive, or intimidating as to intimate that

punishment, sanction, or adverse regulatory action would

imminently follow and (2) whether such a threat would deter a

person of ordinary firmness from exercising his First Amendment

rights.

Plaintiff contends that the complaints lodged by Paine

and Barth amounted to threats of punishment, sanction, or

adverse regulatory action against ACT, in what he calls a

“pressure campaign against Mr. Webb via his client ACT,

comprised of a series of acts — the admitted calls, the emails,

and the text messages to ACT personnel — all highly critical of

Mr. Webb and constantly implying that ACT (as a prospective WVDE

vendor) needed to take action against him.” Pl.’s Reply, ECF

No. 75 at 5. Paine’s communications with ACT, when taken

together, could be fairly construed as a threat of imminent

punishment, sanction, or coercion against ACT if it failed to

discipline or terminate plaintiff. Paine contacted

representatives of ACT on numerous occasions to complain about

plaintiff, allegedly informing Scott Montgomery on a January 28,

2018 phone call that Webb was “getting under his skin” and that

ACT needed to “handle it or else.” ECF No. 68-8 at 223-225. In

a text message to Montgomery and Scott Frein on the morning of

March 5, 2019, Paine stated that WVDE “have also complied [sic,

compiled] tweets and social media posts where Webb has sought to

discredit the WVDE.” ECF No. 68-3. In that same message, Paine

complained of plaintiff’s personal attacks against him,

describing plaintiff as a “very shady dishonest lobbyist,” and

“as a constitutional officer I take [the personal attacks] very

seriously. I suggest you take them seriously as well.” Id.

Paine testified that these comments were in response both to

plaintiff’s social media posts and to the hearsay rumor that

plaintiff had accused Paine of receiving kickbacks. ECF No. 68-

4 at 158-59. In another message, he said “I asked you on at

least two occasions to work collaboratively with us and to hold

Webb in check. To date that has not happened.” ECF No. 68-3.

Of particular importance is the March 5, 2019 call

between Paine and Marten Roorda, the CEO of ACT, in which

Paine’s comments could reasonably be understood as threats that

ACT’s status as a vendor could be impacted by plaintiff’s social

media posts and comments made while lobbying. In an email sent

by Roorda to Scott Montgomery shortly after the call, Roorda

summarized the conversation as follows:

I had a 20 min call with Mr. Paine, and his general counsel

was also on the call. Which surprised me, but was OK. After

going through some history he came to the issue. He only

addressed the role of Jason Webb, who he said has a bad

reputation and insulted him for receiving a kickback fee from

the CB [College Board]. I said I heard no complaints about

Jason’s behavior and from my position was not able to assess

the situation. I advised him to file a complaint with the

Ethics Board. Mr. Paine said he was still considering what

action to take. He also said that WV may be doing business

with ACT in the future and indicated that the issue with Webb

could have implications. His counsel said that regulations

for purchase practicing could effect the way they chose

vendors and that Jason Webb’s behavior may come close to

actual slander. I thought this was a sort of a threat. And

I don’t like it. I even think such a threat is illegal

practice.

ECF No. 68-6. ACT confirmed through Kratzer in its corporate

deposition that the email was generated shortly after the call

and that it has no reason to doubt the accuracy of the email.

Kratzer Dep., ECF No. 68-7 at 168:1-168:8.

Throughout these communications, Paine appears to

connect his grievances respecting plaintiff’s speech with his

official capacity in selecting vendors. Importantly, these

communications occurred while ACT was engaged in an ongoing and

continuous attempt to have WVDE implement a local option.

Though the threat is not made explicit, a reasonable fact finder

could find that these messages were intended to convey the

message to ACT that if they did not “hold Webb in check,” as

Paine demanded, possibly by pressuring Webb to delete posts or

by terminating their contract with him, then ACT would face

adverse administrative consequences. At the same time, these

communications are such that a reasonable fact finder could find

Paine’s complaints to be mere expressions of frustration, stated

adjacently to statements regarding ACT’s status as vendor and

WVDE’s status as buyer, but nevertheless without the threatening

intent that plaintiff contends they contain. Indeed, Sarah

Stewart testified that Paine was not making a threat on the call

with Roorda, but instead just relating plaintiff’s conduct to

his employer. Whether defendants’ communications were a threat

of imminent harm is disputed and material, precluding summary

judgment. This is the case even if there is no evidence that

ACT yielded to such a threat.

The fact that defendants’ communications, viewed in a

light most favorable to plaintiff, were in the form of a demand

to a third-party does not deprive plaintiff of “standing” to

raise the communications, as defendants argue. ACT kept

plaintiff consistently apprised of these communications and the

reasonable inference drawn by plaintiff was that he might suffer

injury indirectly if he did not modify his speech, either by

being fired or by his client losing its ability to provide

services within the state. See Webb Decl., ECF No. 72-1 at ¶¶

7,8. Thus, while defendants are correct in arguing that

plaintiff could not establish standing based on threats to ACT’s

pecuniary interests alone, he is free to assert his own injuries

that flow from such threats, as he does here.

Whether defendants’ conduct would have chilled a

person of ordinary firmness in exercising their First Amendment

rights is necessarily a fact-intensive inquiry, as the court

must analyze “the status of the speaker, the status of the

retaliator, the relationship between the speaker and the

retaliator, and the nature of the retaliatory acts.” Suarez,

202 F.3d at 686. The person we consider for the purposes of

this analysis is a lobbyist of ordinary firmness whose client

relies heavily on the contracting and regulatory decisions of a

government agency. See Blankenship v. Manchin, 471 F.3d 523

(4th Cir. 2006) (considering a “president of a company in a

highly regulated industry” of ordinary firmness); Baltimore Sun,

437 F.3d at 419 (considering “reporters of ordinary firmness”).

Defendants point the court to Baltimore Sun, in which

the Fourth Circuit found that that the Governor of Maryland's

directive ordering his employees not to speak to two reporters

was a de minimis injury to the reporters’ First Amendment

rights. 437 F.3d at 420. The court reasoned that because of

the “rough and tumble” nature of the political arena, a reporter

of ordinary firmness would not be chilled by a politician's

decision to “den[y] the reporter access to discretionary

information.” Id. at 419-20. In reaching this conclusion, the

court observed that reporters are generally used to currying

favor with sources and that officials frequently seek out

reporters who they believe will effectively deliver their

messages to the public. Id. at 417-18. The court noted the

plaintiffs’ concession that the “daily successes and failures in

obtaining [journalistic] access have an insignificant effect on

reporting,” and that the Governor’s directive had not “created a

chilling effect any different from or greater than that

experienced by The [Baltimore] Sun and by all reporters in their

everyday journalistic activities.” Id. at 419-20. The court

also observed that the plaintiffs had not presented evidence

that they had themselves been chilled from exercising their

rights. Id. at 419.

The present case is somewhat more analogous to

Blankenship v. Manchin, which the Fourth Circuit handed down the

year after Baltimore Sun. 471 F.3d 523. The Fourth Circuit

found, in affirming the district court, that a governor’s threat

to exercise greater administrative scrutiny over the plaintiff’s

coal company in retaliation for his public criticism of the

governor’s bond proposal amounted to an actionable chilling of

free speech. Id. at 525-27. The Fourth Circuit emphasized that

the governor’s statements implied that plaintiff’s company would

be treated differently from similarly situated companies despite

the “presumption of regularity [that] attaches to administrative

actions.” Id. at 530. Distinguishing the case from a Tenth

Circuit opinion, the court observed that the plaintiff “remained

free” to criticize the governor, “but that would do little to

minimize the damage from any actual adverse action taken

against” his company. Id. at 532 (distinguishing Eaton v.

Meneley, 379 F.3d 949, 956 (10th Cir. 2004)). The court also

distinguished the case from Baltimore Sun, inasmuch as the

plaintiff Blankenship had alleged that he had actually curtailed

his speech in response to the threat, a relevant but non-

dispositive factor in the objective analysis. Id. at 532.

If defendants’ communications in this case presented

ACT with the ultimatum of silencing plaintiff’s criticism or

losing future opportunities as a vendor with the WVDE, then that

would rise above a de minimis injury to plaintiff’s free speech

rights. While it is expected that a lobbyist be tougher than an

ordinary citizen in relation to the “rough and tumble” nature of

politics, the threat of unfavorable treatment to a client in

providing services within the state would chill a lobbyist of

ordinary firmness. The WVDE, as a potential buyer of ACT’s

services on the statewide level and as regulator of ACT as a

county-level service provider, had a great deal of power over

ACT directly and, consequently, plaintiff, indirectly. A

presumption of regularity attached to WVDE’s decisions in

exercising that power and that regularity is disturbed if an

official utilized that power to punish a lobbyist for his speech

or to get him to modify his commentary. Paine, as a

decisionmaker within the WVDE, invoked his status as

“constitutional officer” and “customer” in communications with

ACT’s leadership about plaintiff’s social media activity. Given

the substantial but indirect power defendants exercised over

plaintiff, as well as the potential severity of the alleged

threat to ACT, the adverse effect on plaintiff’s First Amendment

rights is not de minimis as a matter of law.

While the actions of plaintiff and of ACT after the

allegedly threatening communications are relevant to the

analysis, they are not dispositive of the ordinary firmness

inquiry. Constantine, 411 F.3d at 500; Blankenship, 471 F.3d at

532 (“A chilling effect need not result in a total freeze of the

targeted party's speech.”). Plaintiff concedes that nobody from

ACT asked him to limit his Twitter posts on topics about

“education policy or education issues.” ECF No. 72-1 at ¶7.

However, plaintiff avers that in a phone conversation with

Kratzer, he was instructed to not specifically identify the WVDE

or its officials, including defendants, in those posts. Id. at

¶6. He indicates that out of fear for how ACT would be treated

as a vendor, he agreed to not identify or mention the WVDE or

its officials in social media posts on Twitter and deleted

certain posts that he believed had upset defendants. Id. at ¶¶

7, 8. Plaintiff indicates that he took Kratzer’s entreaties to

limit his social media posts as solely professional in nature

rather than personal. Id. at ¶¶ 9-11.

In sum, the challenged conduct here — the

communications made by Paine to officials at ACT — could amount

to a retaliatory action that adversely affected the plaintiff's

constitutionally protected speech. Whether that conduct

amounted to a threat of unfair treatment to ACT as a vendor

(and, in turn, the plaintiff), thereby making the conduct

actionable, depends on the interpretation of those

communications, which must be resolved by the trier of fact,

rather than the court on summary judgment. Moreover, whether

the harm to plaintiff’s free speech rights was more than de

minimis similarly hinges on whether those communications

amounted to a threat.

Standing

For reasons largely overlapping with the analysis of

the second Suarez element, plaintiff has sufficiently

demonstrated that he has standing. To meet the Article III

standing requirement, “the party invoking federal court

jurisdiction must show that (1) it has suffered an injury in

fact, (2) the injury is fairly traceable to the defendants'

actions, and (3) it is likely, and not merely speculative, that

the injury will be redressed by a favorable decision.” Long

Term Care Partners, LLC v. United States, 516 F.3d 225, 230–31

(4th Cir. 2008) (citing Lujan v. Defenders of Wildlife, 504 U.S.

555, 560–61, (1992)); see also Friends of the Earth, Inc. v.

Gaston Copper Recycling Corp., 204 F.3d 149, 154 (4th Cir. 2000)

(en banc). The rigid Article III standing requirements are

“somewhat relaxed in First Amendment cases” and “[t]he leniency

of First Amendment standing manifests itself most commonly in

the doctrine's first element: injury-in-fact.” Cooksey v.

Futrell, 721 F.3d 226, 235 (4th Cir. 2013).

The injury-in-fact prong is met by the showing of “an

invasion of a legally protected interest which is (a) concrete

and particularized and (b) actual or imminent, not conjectural

or hypothetical.” Lujan, 504 U.S. at 560. “In First Amendment

cases, the injury-in-fact element is commonly satisfied by a

sufficient showing of self-censorship, which occurs when a

claimant is chilled from exercising h[is] right to free

expression.” Cooksey, 721 F.3d at 235 (internal quotation marks

omitted). Plaintiff has demonstrated sufficiently at the

summary judgment stage that his speech was chilled and thus has

suffered an injury-in-fact. He avers that conduct attributable

to defendants caused him to fear how his client would be treated

by WVDE and because of that concern, he decided to not identify

or mention the WVDE or its officials in social media posts on

Twitter and deleted certain posts that he believed had upset

defendants. ECF No. 72-1 at ¶¶ 7,8. This kind of chilling, for

which plaintiff has shown a triable issue, represents an actual,

particularized, and concrete invasion into his First Amendment

rights. The injury is fairly traceable to the allegedly

retaliatory threats made by defendants and is likely to be

redressed by a favorable decision of the court.

c. Whether Plaintiff’s Speech Caused Defendants’

Allegedly Retaliatory Conduct

Finally, the third element of the claim is whether

there was a causal connection between plaintiff’s First

Amendment activity and the defendants’ conduct. To demonstrate

the causal connection, a plaintiff “must show, at the very

least, that the defendant was aware of [plaintiff’s] engaging in

protected activity.” Constantine, 411 F.3d at 501 (citing Dowe

v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653,

657 (4th Cir. 1998). Additionally, ”[t]here must also be some

degree of temporal proximity to suggest a causal connection.”

Id.

The causal connection here, that is, whether

defendants’ communications with ACT officials were caused by

plaintiff’s protected activity, is plain and uncontroverted in

the evidence. Defendants collected plaintiff’s social media

posts and sent those posts to ACT with the apparent purpose of

having ACT do something about it. Defendants also directly

contacted agents of ACT on other occasions to complain of

plaintiff’s comments. Moreover, the actions were close in time

to the protected activity. Defendants have not raised an

argument that there is not a causal connection between

plaintiff’s speech and defendants’ conduct. Therefore, summary

judgment in favor of plaintiff is appropriate with regard to the

third element.

2. Qualified Immunity

Defendants argue that they are entitled to dismissal

of plaintiff’s claim of First Amendment retaliation based on

qualified immunity. Given that the facts viewed in a light most

favorable to plaintiff establish the violation of a

constitutional right for purposes of defendants’ motion for

summary judgment, the court now addresses whether that right was

clearly established at the time defendants allegedly violated

it. The Supreme Court has instructed that “[t]he relevant,

dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confronted.”

Saucier v. Katz, 533 U.S. 194, 201 (2001). “[I]n determining

whether a right has been specifically adjudicated or is

manifestly apparent from broader applications of the

constitutional premise in question, we may consider decisions of

the Supreme Court, this Court, and the Supreme Court of Appeals

of West Virginia.” Blankenship, 471 F.3d at 533 (citation

omitted). “The burden of proof and persuasion with respect to a

defense of qualified immunity rests on the official asserting

that defense.” Meyers v. Baltimore County, Md., 713 F.3d 723,

731 (4th Cir. 2013).

Defendants argue that they are entitled to summary

judgment as “it was entirely reasonable for Drs. Paine and Barth

to believe it necessary to advise ACT of Plaintiff’s conduct as

it was misinformative and potentially detrimental to West

Virginia students, teachers, and the WVDE’s relationship with

the state legislators, where schools receive their funding.”

ECF No. 71 at 29. They support this position solely with

Barth’s testimony that she subjectively believed she had an

“obligation” and “responsibility” to inform plaintiff’s

supervisor of what she considered to be misleading posts. Id.

(citing ECF No. 70-4 at 224:19-225:1). They do not cite

supporting testimony by Paine.

Defendants have not met their burden in showing that

plaintiff’s rights were not clearly established at the time of

injury. The relevant inquiry on the “clearly established” prong

is an objective one, whether plaintiff’s right, found to have

been violated, was clearly established based on applicable,

binding precedent. Defendants do not explain how their supposed

responsibility to correct these social media posts might

overcome plaintiff’s First Amendment rights and they present no

argument as to why it can be said that those First Amendment

rights were not clearly established at the time of the injury.

The Fourth Circuit has held that “[i]t is well

established that a public official may not misuse his power to

retaliate against an individual for the exercise of a valid

constitutional right.” Blankenship, 471 F.3d at 533 (quoting

Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001) (citing

Suarez, 202 F.3d at 685)). The court in Blankenship found that

a plaintiff’s First Amendment right to be free from adverse

regulatory action in retaliation for speech is violated by a

threat, coercion, or intimidation, intimating that punishment,

sanction, or adverse regulatory action will imminently follow.

Id. “The specific right at issue here, the right to be free of

threats of imminent, adverse regulatory action due to the

exercise of the right to free speech, was clearly established by

this Court in Suarez.” Id. Defendants are not entitled to

summary judgment based on qualified immunity.

B. Count II: Tortious Interference with Business Relations

Plaintiff alleges in Count II that defendants

tortiously interfered with his business relations with ACT. ECF

No. 1, ¶¶ 120-129. To establish tortious interference with a

contract or business relationship, a plaintiff must show (1) the

existence of a contractual or business relationship or

expectancy; (2) an intentional act of interference by a party

outside that relationship or expectancy; (3) proof that the

interference caused the harm sustained; and (4) damages. Syl

Pt. 5, Hatfield v. Health Mgmt. Assocs. of W. Va., 672 S.E.2d

395, 403 (W.Va. 2008) (quoting Syl. Pt. 2, Torbett v. Wheeling

Dollar Sav. & Trust Co., 314 S.E.2d 166 (W.Va. 1983)). As the

Supreme Court of Appeals of West Virginia has explained:

If a plaintiff makes a prima facie case, a defendant may prove

justification or privilege, affirmative defenses. Defendants

are not liable for interference that is negligent rather than

intentional, or if they show defenses of legitimate

competition between plaintiff and themselves, their financial

interest in the induced party's business, their

responsibility for another's welfare, their intention to

influence another's business policies in which they have an

interest, their giving of honest, truthful requested advice,

or other factors that show the interference was proper.

Id. (quoting Syl. Pt. 2, Torbett, 314 S.E.2d 166).

Defendants argue principally that they are entitled to

summary judgment because there is no evidence of a causal

connection between defendants’ conduct and plaintiff’s loss of a

business relationship or expectancy. Defendants emphasize the

portion of ACT’s corporate testimony in which it testified

through Kratzer that Paine never requested that plaintiff be

disciplined. See Kratzer Dep., ECF No. 70-2 at 142:6-12.

Defendants also contend that the communications that defendants

had with ACT played no part in ACT’s decision to terminate the

consulting agreement or to terminate its activities within West

Virginia. See id. at 57:14-23.

Plaintiff, in his own summary judgment motion and in

his response to defendants’ motion, advances two arguments in

relation to the third prong, that defendants’ interference

caused his loss. First, he argues that ACT’s testimony is not

conclusive of causation and that there is “circumstantial

evidence” that defendants’ conduct caused his loss of business

with ACT.2 Plaintiff points to the conduct considered above in

2 The court notes that, though not argued by defendants, the

operative complaint, ECF No. 1, does not plead plaintiff’s loss

resulting from ACT’s decision to terminate the contract, which

occurred after the filing of the complaint.

relation to the second element of Count I, including Paine’s

text messages to ACT’s leadership criticizing their failure “to

hold Webb in check,” Paine’s call to the CEO of ACT, and Barth’s

email to ACT disparaging Webb. Second, plaintiff argues that

defendants’ “pressure campaign” burdened his ability to perform

on the contract, so that even if ACT’s declination to continue

the contractual relationship was unrelated to the pressure

campaign, Paine and Barth still successfully impaired his

contractual relationship. In relation to this argument, he

claims that he suffered added day-to-day burdens on his

contractual performance prior to termination, damage to his

reputation, and emotional distress and mental anguish because of

defendants’ allegedly tortious interference.

When asked why ACT exercised its contractual

termination option, Kratzer, as ACT’s corporate representative,

testified, as earlier noted, that ACT decided to not continue

its engagement in West Virginia for three reasons: the filing of

this lawsuit by Webb, the “political landscape” changing in the

West Virginia legislature, and the fact that ACT was “getting

nowhere with the [WVDE] with regard to District Choice.” ECF

No. 68-7 at 61:1-6. Kratzer added, “[s]o when you take all

those three things together, the decision was made not to move

forward with our engagement in West Virginia.” Id. at 61:7-9.

Kratzer specifically testified that nothing Paine or Barth may

have communicated with ACT regarding plaintiff had any part in

ACT’s decision to terminate the contract. ECF No. 70-2 at 57.

The evidence plaintiff presents, viewed in a light most

favorable to him, does not show that defendants caused ACT to

end the business relationship with plaintiff, even if it be

found that defendants’ communications were a threat of imminent

harm. Rather, it simply shows that defendants were frustrated

with plaintiff’s social media activity and repeatedly shared

that fact in discussions with ACT representatives, with the aim

of having ACT caution or temper plaintiff, or perhaps even

terminate its contract with plaintiff. While this may be

evidence of an intentional act of interference by defendants, it

is not evidence that such interference caused the termination of

plaintiff’s contract.

Plaintiff’s claim that ACT’s difficulty in getting the

local option approved by WVDE, a stated reason for ACT’s

termination of the contract, may have been based on defendants’

disapproval of his social media posts is not substantiated by

any evidence presented. Moreover, defendants have produced

uncontroverted evidence that WVDE was engaged in a cooperative

process with ACT to achieve local choice and that the process

was voluntarily terminated by ACT through its email notice on

May 2, 2019, after running into obstacles in meeting U.S.

Department of Education requirements. ECF Nos. 70-17 at 69-73,

70-53. ACT’s decision to withdraw came just five weeks after

Governor Justice’s March 27, 2019 veto of SB 624, the local

option bill, and its decision to terminate its lobbying contract

with plaintiff came within one week of plaintiff’s filing of

this action. Indeed, Kratzer testified that ACT has not

employed an outside lobbyist in West Virginia since terminating

plaintiff. ECF No. 70-2 at 70. Thus, plaintiff has not shown a

material issue of fact supporting his claim that defendants

caused the termination of his relationship with ACT. Rather,

ACT, having chosen to withdraw, had no further need for

plaintiff’s lobbying services.

Plaintiff’s second argument, that defendants caused

not just the termination of the contract but also smaller,

continual injuries, is premised on §766A of the Restatement

(Second) of Torts, which has not been adopted by the West

Virginia Supreme Court of Appeals. A number of courts, citing

to §766A, have recognized recovery of damages against a

defendant who makes plaintiff’s performance of the contract more

burdensome or expensive. Section 766A provides:

One who intentionally and improperly interferes with the

performance of a contract (except a contract to marry) between

another and a third person, by preventing the other from

performing the contract or causing his performance to be more

expensive or burdensome, is subject to liability to the other

for the pecuniary loss resulting to him.

Comment g of §766A explains that interference can be effected in

numerous ways, including performance being “made more expensive

to [the plaintiff], so that he loses all or part of the profits

that he would otherwise have obtained, or is subjected to a

financial loss.” This is in contrast with §766 of the

Restatement (Second), which requires that the improper

interference induce or cause the third party to not perform or

to breach the contract with plaintiff. As the Third Circuit has

characterized it, §766 claims are “inducement torts,” in that

the defendant induces a third party to act in a manner

detrimental to the plaintiff. Windsor Securities, Inc. v.

Hartford Life Ins. Co., 986 F.2d 655, 660 (3d Cir. 1993).

Claims based on §766A are “hinder[ance] torts,” meaning the

defendant hinders the plaintiff’s performance of its obligations

to the third party. Id. The Windsor court explained that the

two Restatement sections embody “different effects and

justifications.” Id. at 661.

The West Virginia Supreme Court of Appeals has not had

occasion to address whether a tortious interference claim may be

based on a theory of hinderance, rather than a theory of

inducement. The Supreme Court of Appeals has “relied upon the

Restatement for guidance in outlining elements of and defenses

to improper interference but, of course, [is] not tied to its

categories and definitions.” Torbett, 314 S.E.2d at 172-73

(referencing Restatement (Second) §§766B, 766C, 767-772). The

Supreme Court of Appeals has also selectively relied on §766.

See Tiernan v. Charleston Area Medical Center, Inc., 506 S.E.2d

578, 591 n.20 (W.Va. 1998); but see Ferrell v. Rose, 2011 WL

13364564 at *2 (W.Va. May 27, 2011) (declining to adopt

Restatement (Second) §766 cmt. j).

Liability based on a hinderance theory has been

recognized by a number of courts. E.g., Herman v. Endriss, 446

A.2d 9, 10 (Conn. 1982); Shafir v. Steele, 727 N.E.2d 1140,

1143-44 (Mass. 2000); Wilspec Technologies, Inc. v. Dunan

Holding Group, Ltd., 204 P.3d 69, 70 (Okla. 2009); Magnum Radio,

Inc. v. Brieske, 577 N.W.2d 377, 379 (Wis. 1998). Still,

several courts and commentators have expressed skepticism about

such liability. Price v. Sorell, 784 P.2d 614, 616 (Wy. 1989);

Koehler v. County Grand Forks, 658 N.W.2d 741, 748 (N.D. 2003);

White v. Ransmeier & Spellman, 950 F.Supp. 39, 41 n.2 (D.N.H.

1996); CMI, Inc. v. Intoximeters, Inc., 918 F.Supp. 1068, 1079–

80 (W.D.Ky.1995); 2 Dan B. Dobbs, Law of Torts § 448 (2001). In

Price, the Wyoming Supreme Court declined to extend liability to

hinderance torts as provided for in §766A, even though the court

had previously relied on §§ 766 and 766B, finding that the mere

requirement to show performance became more “expensive or

burdensome” would allow a plaintiff to recover where proof of

damages is “too speculative and subject to abuse to provide a

meaningful basis for a cause of action.” 784 P.2d at 616. The

court contrasted §766A with §§ 766 and 766B, in which “breach or

non-performance of a contract, or the loss of a prospective

contractual relation, is a reasonably bright line that reduces

the potential for abuse of the causes of action.” Id.

The Third Circuit, interpreting Pennsylvania law,

predicted, without holding, that the Pennsylvania Supreme Court

would likely decline to adopt §766A, characterizing it as an

“amorphous” expansion of liability that is “ill-conceived,

threatening both fairness and efficiency.” Windsor, 986 F.2d at

663 (citing numerous commentators); see also CMI, Inc., 918

F.Supp. at 1079 (“The actual language of §766A is so all

encompassing and vague that to adopt it directly would cause

tremendous confusion without creating a clear societal

benefit.”). The Third Circuit subsequently affirmed a trial

court’s dismissal of a §766A claim, reasoning that it is “too

speculative and subject to abuse to provide a meaningful basis

for a cause of action.” Gemini Phys. Therapy & Rehab., Inc. v.

State Farm Mut. Auto. Ins. Co., 40 F.3d 63, 66 (3d Cir.1994).3

This court can only speculate as to whether the West

Virginia Supreme Court of Appeals would follow the tort theory

embodied in §766A of the Restatement (Second). “A federal court

acting under its diversity jurisdiction should respond

conservatively when asked to discern governing principles of

state law.” Rhodes v. E.I. du Pont de Nemours & Co., 636 F.3d

88 (4th Cir. 2011) (declining to predict whether the West

Virginia Court of Appeals would adopt certain Restatement

(Second) provisions); see Time Warner Entertainment v. Cavaret–

Craven Elec. Membership Corp., 506 F.3d 304, 315 (4th Cir. 2007)

(“[A]s a court sitting in diversity, we should not create or

extend [state] common law.”); see also Anderson v. Marathon

Petroleum Co., 801 F.2d 936, 942 (7th Cir.1986) (“[F]ederal

court is not the place to press innovative theories of state

law.”). When federal courts are “faced with opposing plausible

interpretations of state law, we generally choose the narrower

interpretation which restricts liability, rather than the more

3 The lower state courts of Pennsylvania have not uniformly

followed the Third Circuit’s reasoning. Compare Biofeedback

Grp., Inc. v. State Farm Mut. Auto. Ins. Co., 1996 WL 1358442

(Pa.Ct.Com.Pl. 1996) (agreeing with the Third Circuit’s

rationale) with P.V.C. Realty ex rel. Zamias v. Weis Markets,

2000 WL 33406981, at *16–17 (Pa.Ct.Com.Pl. Dec. 19, 2000)

(recognizing a claim under §766A).

expansive interpretation which creates substantially more

liability.” Birchler v. Gehl Co., 88 F.3d 518, 522 (7th Cir.

1996). Plaintiff’s second argument for surviving summary

judgment is predicated on a broad expansion of liability under

West Virginia state law and there are few, if any, indications

given by the Supreme Court of Appeals that it would take that

path if presented with the question. Consequently, plaintiff’s

second argument fails, and summary judgment should be granted as

to Count II – Tortious Interference with Contract.4

C. Count III: Civil Conspiracy

In Count III, plaintiff claims that defendants were

engaged in a conspiracy to violate his First Amendment rights

and tortiously interfere with his business relationship with

ACT. ECF No. 1 at ¶¶ 130-36. “A civil conspiracy is a

combination of two or more persons by concerted action to

accomplish an unlawful purpose or to accomplish some purpose,

not in itself unlawful, by unlawful means.” Syl. Pt. 3, Jane

Doe-1 v. Corp. of President of The Church of Jesus Christ of

Latter-day Saints, 801 S.E.2d 443 (W. Va. 2017) (quoting Syl.

4 Defendants also argue that they are entitled to summary

judgment on Count II based on the affirmative defenses that

their conduct was legally justified or privileged, as well as

the application of state qualified immunity. The court need not

reach these arguments.

Pt. 8, Dunn v. Rockwell, 689 S.E.2d 255 (2009)). Civil

conspiracy is not an independent basis for recovery but instead

a doctrine for assigning liability to “people who did not

actually commit a tort themselves but who shared a common plan

for its commission with the actual perpetrator(s).” Syl. Pt. 4,

Id. (quoting Syl. Pt. 9, in part, Dunn, 689 S.E.2d 255).

Because the right to recover for civil conspiracy is

derivative of the underlying claim, summary judgment in favor of

defendants is warranted insofar as it relates to civil

conspiracy to tortiously interfere with plaintiff’s business

relations. See Bennett v. Skyline Corp., 52 F.Supp.3d 796, 814

(N.D. W.Va. 2014) (“Courts have granted summary judgment or

dismissal as to claims of civil conspiracy when there is no

underlying tort to support the claim.”). Similarly, as it

relates to civil conspiracy to violate plaintiff’s First

Amendment rights, there remains a genuine issue of material fact

regarding the underlying First Amendment retaliation claim, and

thus neither party is entitled to summary judgment on the issue

of whether the underlying conduct was unlawful.

Thus, the sole remaining inquiry is whether there is a

genuine issue of material fact as to whether defendants’

underlying conduct giving rise to the First Amendment claim was

concerted. Plaintiff argues that Barth was a “partner and

conduit through which Paine directed and implemented the

campaign of retaliation and interference against Webb.”

Communications between Paine and Barth show that they discussed

their mutual feeling that plaintiff’s posts were frustrating and

duplicitous, and that he was undermining their work at WVDE.

Paine testified that he met with Barth to discuss Webb’s “tweets

and posts” and he directed her to have someone compile those

posts. Those posts were discussed in Paine’s communications

with ACT representatives and the CEO of ACT.

Defendants do not contest the above evidence or

present an argument for why it would not amount to concerted

action, except to deem these facts “mere speculation,

relationship, or association.” ECF No. 74 at 15 (quoting Brown

v. Kerkhoff, 504 F.Supp.2d 464, 526 (S.D. Ia. 2007)) (internal

modifications omitted). A reasonable trier of fact which found

that defendants’ conduct amounted to First Amendment retaliation

could also find that defendants’ conduct was done in concert.

The evidence demonstrates that Paine and Barth felt similarly

about the social media posts and Barth’s acts of collecting

social media posts and contacting ACT officials furthered the

alleged retaliation against Webb. Therefore, neither party is

entitled to summary judgment as to whether the defendants acted

in concert as charged in Count III insofar as it relates to the

First Amendment retaliation claim.

IV. Conclusion

It is accordingly ORDERED that:

1. Plaintiff’s motion for summary judgment be, and it

hereby is, granted as to the first and third

elements of Count I.

2. Plaintiff’s motion for summary judgment, be and it

hereby is, denied as to Counts II and III, as well

as the second element of Count I.

3. Defendants’ motion for summary judgment be, and it

hereby is, granted as to Count II, and to Count III

to the extent Count III is based on civil conspiracy

to tortiously interfere with plaintiff’s business

relationship.

4. Defendants’ motion for summary judgment be, and it

hereby is, denied as to Count I, and Count III to

the extent Count III is based on civil conspiracy to

violate plaintiff’s First Amendment rights.

The Clerk is directed to transmit this memorandum

opinion and order to all counsel of record.

ENTER: January 26, 2021

De,

Jo . Copenhaver, Jr.

Senior United States District Judge

46