United States District Court, S.D. New York
OPINION AND ORDER
G. SCHOFIELD UNITED STATES DISTRICT JUDGE.
Herman Ortiz brings this action under the retaliation
provisions of the False Claims Act (“FCA”), 31
U.S.C. § 3730(h). Plaintiff alleges that he was fired by
his former employer, Defendant Todres & Company, LLP
(“Todres & Co.”), for pursuing a qui
tam action against it. Defendant asserts counterclaims
for tortious interference with prospective economic
advantage, malicious prosecution and prima facie tort.
Plaintiff moves to dismiss the counterclaims in the Amended
Answer (“Counterclaims”) under Federal Rule of
Civil Procedure 12(b)(6). For the reasons stated below,
Plaintiff's motion to dismiss is granted in part and
denied in part.
following facts are taken from the Counterclaims and assumed
to be true for the purposes of this motion. See Trs. of
Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt,
843 F.3d at 566 (2d Cir. 2016).
worked for Todres & Co., a public accounting firm, from
October 2009 to May 2013. Ortiz was a difficult employee. He
repeatedly demanded salary increases, complained that he was
not reimbursed for certain incidental costs, violated client
confidences, and performed work for his own clients without
the permission or knowledge of his employer. Ortiz quit his
job in May 2013 when he requested and was denied a salary
March 2015, Ortiz filed a qui tam complaint against
Todres & Co., its managing partner, Michael Todres
(“Todres”) and Todres & Co.'s audit
client, the New York College of Health Professions
(“NYCHP”), alleging that the three had engaged in
financial fraud, made false statements and material
misrepresentations, and engaged in other misconduct in order
to obtain federal education funds for NYCHP. The qui
tam complaint also alleges that Ortiz confronted Todres
about anomalies in NYCHP's financial statements in early
2013, and dissociated himself from work with NYCHP when
Todres attempted to silence him. Ortiz knew these allegations
were false and lacked any evidentiary basis, but made them
anyway “for the sole purpose of causing harm, damage
and injury to” his former employer. While investigating
the allegations, the government served a Civil Investigative
Demand (“CID”) on Todres & Co. and NYCHP.
NYCHP was forced to retain attorneys and respond to the CID,
which caused NYCHP to fire Todres & Co. after a
seven-year business relationship.
March 2017, the government declined to intervene in the
qui tam claims. In July 2017, Ortiz voluntarily
dismissed the qui tam claims without prejudice.
Ortiz now alleges only that he was wrongfully terminated by
Todres & Co. in retaliation for making allegations of
misconduct concerning the NYCHP audit.
& Co. asserts three counterclaims against Ortiz: tortious
interference with prospective economic advantage, malicious
prosecution and prima facie tort. Ortiz moves to dismiss
motion to dismiss a counterclaim is evaluated under the same
standard as a motion to dismiss a claim in a
complaint.” Dentsply Int'l Inc. v. Dental
Brands for Less LLC, No. 15 Civ. 8775, 2016 WL 6310777,
at *2 (S.D.N.Y. Oct. 27, 2016) (citing Keep on Kicking
Music, Ltd. v. Hibbert, No. 15 Civ. 7464, 2016 WL
4386047, at *2 (S.D.N.Y. Aug. 17, 2016)). On a motion to
dismiss, a court accepts as true all well-pleaded factual
allegations and draws all reasonable inferences in favor of
the non-moving party, Trs. of Upstate N.Y. Eng'rs
Pension Fund, 843 F.3d at 566, but gives “no
effect to legal conclusions couched as factual allegations,
” Stadnick v. Vivint Solar, Inc., 861 F.3d 31,
35 (2d Cir. 2017). To withstand a motion to dismiss, a
pleading “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
deciding a Rule 12(b)(6) motion, the court is limited to
reviewing the relevant pleading, any documents attached to
that pleading or incorporated in it by reference, any
documents heavily relied upon by the pleading as to their
“terms and effect” and which are therefore
integral to the plaintiffs allegations even if not explicitly
incorporated by reference, and facts of which the court may
take judicial notice. Goel v. Bunge, Ltd., 820 F.3d
554, 559 (2d Cir. 2016).
motion to dismiss is denied as to Todres & Co.'s
counterclaim for tortious interference with prospective
economic advantage and granted as to the company's
counterclaims for malicious prosecution and prima facie tort.