Thomaz v. It's My Party, Inc. et al

Filing 18

MEMORANDUM OPINION re: 4 MOTION to Dismiss Plaintiff's Complaint and/or Strike Plaintiff's Claim for Damages by Seth Hurwitz, It's My Party, Inc. (See Memorandum Opinion For Details). Signed by District Judge James C. Cacheris on 4/9/13. (nhall)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

CAMERON JIBRIL THOMAZ,
Plaintiff,
v.
IT’S MY PARTY, INC., d/b/a
I.M.P., Inc., et al.,
Defendants.

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1:13cv00009 (JCC/TRJ)

M E M O R A N D U M

O P I N I O N

This matter is before the Court on the Motion to
Dismiss Plaintiff’s Complaint and/or to Strike Plaintiff’s Claim
for Damages Resulting from Alleged Harm to Reputation and
Goodwill [Dkt. 4] of Defendants It’s My Party, Inc., d/b/a
I.M.P., Inc. (hereafter referred to as “I.M.P.”) and Seth
Hurwitz (hereafter referred to as “Hurwitz” or “Mr. Huritz”)
(collectively, the “Defendants”).

For the following reasons,

Defendants’ Motion to Dismiss will be granted.
I. Background
1. Factual Background
Defendant I.M.P. is a company engaged in the business
of concert promotion in markets including, but not necessarily

1

limited to, the Baltimore and Washington D.C. area. 1 (Defs. Mot.
2.)

Mr. Hurtiz serves as IMP’s Chief Executive Officer (“CEO”)

and is a principal in the Company.

(Id. at 4.)

Plaintiff

Cameron Jibril Thomaz (hereafter referred to as “Plaintiff,”
“Thomaz” or “Mr. Thomaz”) is a musical artist performing under
the name “Wiz Khalifa.”

(Pl. Compl. 1.)

Plaintiff performs

live concerts for fans in support of his albums as well as
between album releases. (Id.)
According to Defendants, “[s]ometime in the spring
[of] 2012, Mr. Thomaz ... began planning a new tour [and]
engaged The Agency Group to serve as booking agent for that
tour.” 2 (Defs. Mot. 3.)

It is clear from the representations of

the parties that a concert in the Baltimore/Washington area was
contemplated as a potential concert location. (Pl. Compl. 2;
Defs. Mot. 3.)

Defendants state that “The Agency Group entity

contacted I.M.P. to ascertain whether it was willing to promote
Mr. Thomaz’s appearance in the Baltimore/Washington area.”

1

According to Defendants, “[c]oncert promoters are generally responsible for
presenting the concert, assisting with the selection of a venue, marketing
and advertising the concert and financing the event by, inter alia,
guaranteeing at least a portion of the artists’ performance fee.” (Defs. Mot.
2.)
2
Defendants describe the concert tour and booking dynamic as such: “Artists’
concert performances are typically held as part of a tour, usually on a
nationwide or regional basis. When artists of [Plaintiff]’s level of
popularity decide to embark on a tour, they engage booking agents who,
working with the artist’s management, route and schedule the concert dates.
Booking agents contact promoters to negotiate the promotion of the artist’s
performance concert on the dates scheduled for the area in which the promoter
operates.” (Defs. Mot. 3.)

2

(Defs. Mot. 3.)

Defendants state that The Agency Group conveyed

to I.M.P. that Plaintiff would soon release a new album.

(Id.)

The record contains a October 2, 2012 e-mail from
Peter Schwartz, a representative of The Agency Group, to Seth
Hurwitz.

In the e-mail, Mr. Schwartz states that attached to

the message were four copies of a contract covering a December
6, 2012 concert at the Patriot Center.

The contract was deemed

by Mr. Schwartz to be “[s]ubject to the signature and approval
of the Artist...”

In the e-mail, Mr. Schwartz requests that Mr.

Hurwitz “[k]indly sign three copies and return them to this
office for counter[-]signature,” and stating that “[u]pon the
contracts’ counter-signature” Schwartz would “forward a fully
executed copy for your files.”

The e-mail also mentions a

“$42,500 US deposit to The Agency Group by certified check or
bank wire only due by: November 6, 2012” and provides bank wire
information for The Agency Group and instructions for deposit.
The terms of the alleged contract appear under a
document heading that in part consists of a logo reading “The
Agency Group Ltd.”

Wiz Khalifa Touring, Inc. is defined therein

as the “Artist,”, and this is the name that appears above the
intended party signature line. I.M.P. is defined in the document
as the Purchaser. I.M.P.’s name, in addition to that of Mr.
Hurwitz, appears above the appropriate party signature line. The
document also contains language expressly stating that “[t]his
3

contract shall not be binding unless signed by all parties
hereto provided however, that failure to sign this agreement
shall not subject The Agency Group to any liability.”

The image

of the alleged contract submitted by Plaintiff with their
Complaint, while ostensibly representing the terms of a
anticipated agreement, does not display signatures of any party. 3
Defendants assert that the document was never signed, and
Plaintiff has conceded that the contract was never signed.
The parties dispute the degree of I.M.P.’s commitment
to promote Plaintiff’s concert.

According to Defendants, I.M.P.

initially withheld their commitment to promote the concert until
after the release of Plaintiff’s new album.

Defendants frame

their interest in promoting Plaintiff’s concert as dependent
upon the release of the album and state that:
I.M.P. was interested in promoting Mr.
Thomaz after his album was released. The
album release was crucial to I.M.P. because
it did not believe Mr. Thomaz could attract
a sufficient number of fans to warrant his
appearance at the size venue being
contemplated - - the 7,000 seat Patriot
Center at George Washington University - without the support of a new album.
(Id.)

Defendants represent that the parties “tentatively agreed

upon a date in the early stages of Mr. Thomaz’s tour for his
3
The purported contract defines the purported agreement as an “[a]greement
made this date, Tuesday, October 2, 2012 by and between Wiz Khalifa Touring,
Inc. (hereafter referred to Artist) and IMP (hereafter referred to as
Purchaser). It is understood and mutually agreed that the Purchaser engages
the Artist to perform the following engagement upon all the terms and
conditions hereinafter set forth ...”

4

appearance at the Patriot Center and certain of the terms upon
which I.M.P. would promote this appearance.”

(Id.)

Defendants

deny, however, that I.M.P. committed to promote the concert at
issue.
According to Plaintiff, “[o]n or about October 2,
2012, Defendants entered into a contract with Plaintiff for
Plaintiff to perform a live concert at the Patriot Center at
George Mason University on December 6, 2012.”

(Pl. Compl. 2.)

Plaintiff states that, although there existed the opportunity to
perform another concert on the same date at an alternate venue,
using a different promoter, Plaintiff opted to use I.M.P “in
reliance of Defendants’ representations in the Contract and
Plaintiff’s prior experiences performing concerts promoted by
Defendants.” 4 (Id.)

Plaintiff represents that Defendants

thereafter “advertised, promoted, and marketed the Concert,”
actions that Plaintiff asserts constitute partial performance
“[i]n accordance with [Defendants’] obligations under the
Contract...” (Id. at 3.)

As the alleged contract required

Plaintiff to perform a concert, Plaintiff states that they
“partially performed under the Contract by taking the steps
necessary to prepare for the December 6, 2012 Concert,” although
the Complaint does not describe what those steps were. (Id.)

4

According to Plaintiff, the decision to utilize I.M.P. either entailed or
was contemporaneous with a “commit[ment] to the Concert date, time, and
venue...” (Id.)

5

Plaintiff states that thereafter, “on or about December 1, 2012,
the Defendants communicated to representatives for the Plaintiff
that they would not pay the Plaintiff any monies and would ...
cancel the Concert for which fans had already purchased
tickets.” (Id.)
According to Defendants, “I.M.P. declined to execute
the contract until the album was released.” (Defs. Mot. 4.)
Defendants state that the release of Plaintiff’s album was
delayed and that, “[a]s a result, I.M.P. and The Agency Group
mutually agreed to reschedule the tentative date for plaintiff’s
Patriot Center appearance at the end of the tour - specifically
December 6, 2012 - to afford [Thomaz] additional time to release
the album.”

(Defs. Mot. 3.)

Defendants represent that I.M.P.

emphasized at the time that “it would not finally commit to this
date until the album was released.” (Id. at 3-4.)
Defendants state that, as the November 6 deposit
deadline approached, “it became clear that Mr. Thomaz would not
release his album before it was necessary to put the show on
sale to afford adequate time to market and advertise it.” (Id.
at 4.)

According to Defendants,
Given the lead time required to maximize
potential ticket sales, I.M.P. and The
Agency Group agreed to put the show on sale
before finalizing the agreement to promote
the concert. The album still was not
released by the November 6 date set in the
form of contract agreement The Agency Group
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had forwarded to I.M.P. for a partial
payment of the contemplated guarantee.
I.M.P. declined to submit that partial
payment.
(Id.)

Defendants represent that I.M.P.’s assessment of the

concert’s anticipated ticket sales proved to be correct and that
sales “tanked” in the absence of the album release.

(Id.)

According to Defendants, I.M.P. “advised The Agency Group that
the economic terms the parties had discussed would have to be
revised if the concert were to proceed.” (Id.)

Defendants state

that the parties failed to come to mutually agreeable terms of
resolution and that I.M.P ultimately cancelled the concert for
the date scheduled.

(Id.)

Formal notice of Defendant I.M.P.’s

decision not to proceed with the concert was provided in the
form of a December 5, 2012 e-mail from Robert W. Hayes, an
attorney of Cozen O’Conner “represent[ing] It’s My Party, Inc.”
with regard to the matter (hereafter referred to as “Mr.
Hayes”).

The message, sent to Mr. Schwartz of The Agency Group,

states that “[a]s you know, IMP has withheld both its agreement
to a contract to promote this event and submitting the
contemplated deposit as a result of the delayed release of Wiz
Khalifa’s latest recording.”

As the recording had only recently

been released the previous day and advance tickets had sold
poorly, Mr. Hayes stated that Defendant I.M.P has elected not to
proceed and that “IMP hereby withdraws all pending offers to

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promote this concert.”

According to the message, the decision

was made by Defendant I.M.P. “only after unsuccessfully
attempting to negotiate acceptable terms.” (Compl. 13.)
Plaintiff represents that “Plaintiff’s representatives
attempted to negotiate economic concessions with the Defendants
in order to allow the Concert to proceed” between December 1 and
December 5, 2012 but those negotiations failed to produce an
amicable resolution.

According to Plaintiff, Defendants

furnished their final communication with Plaintiff in the form
of a letter stating that Defendants were cancelling the concert,
and communicated shortly thereafter to the public that the
concert had been cancelled.

(Id. at 4; Defs. Mot. 13.)

2. Procedural Background
On December 6, 2012, Plaintiff filed their Complaint
in the Circuit Court for the County of Fairfax, Virginia. [Dkt.
1-3.]

On January 3, 2013, Defendants filed a Notice of Removal

to the United States District Court for the Eastern District of
Virginia, Alexandria Division. [Dkt. 1.]

On January 18, 2013,

Defendants filed the instant Motion to Dismiss Plaintiff’s
Complaint and/or to Strike Plaintiff’s Claim for Damages
Resulting from Alleged Harm to Reputation and Goodwill.

On

February 22, 2013, Plaintiff filed a Reply and Brief in
Opposition to Defendants’ Motion to Dismiss Plaintiff Complaint
and/or to Strike. [Dkt. 15.]

On February 28, 2013, Defendants
8

filed a Reply to Plaintiff’s aforementioned Reply and Brief in
Opposition. [Dkt. 16.]
II. Standard of Review
Federal Rule of Civil Procedure 12(b) (6) allows a
court to dismiss those allegations which fail “to state a claim
upon which relief can be granted.”

Fed. R. Civ. P. 12(b)(6).

A

Rule 12(b)(6) motion tests the legal sufficiency of the
complaint.
2008).

Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.

A court reviewing a complaint on a Rule 12(b)(6) motion

must accept well-pleaded allegations as true and must construe
factual allegations in favor of the plaintiff.

See Randall v.

United States, 30 F.3d 518, 522 (4th Cir. 1994). In addition to
the complaint, the Court may consider documents integral to and
explicitly relied on in the complaint if the plaintiff does not
challenge their authenticity.

Am. Chiropractic Ass’n v. Trigon

Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004).

The Court

may also take judicial notice of matters of public record.
Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir.
2009).
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, 556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
9

“A claim has facial

plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”

Id.

To meet

this standard, a plaintiff must provide “more than labels and
conclusions, and a formulaic recitation of a cause of action’s
elements will not do.”

Twombly, 550 U.S. at 555.

“Factual

allegations must be enough to raise a right to relief above the
speculative level . . . .”

Id.

Moreover, a court “is not bound

to accept as true a legal conclusion couched as a factual
allegation.”

Iqbal, 556 U.S. at 678.
III. Analysis

1. Choice of Law
There exists a dispute as to the law applicable to the
alleged contract and breach of contract action.

Consistent with

their position that a binding contract exists in this case,
Plaintiff argues that the alleged contract contains a choice-oflaw provision that states that “[t]he validity, construction and
effect of this contract shall be governed by the laws of the
State of New York, regardless of the place of performance” and
that, therefore, this Court should apply New York law in ruling
on Defendants’ Motion to Dismiss.

Defendants argue that that

such a position assumes the existence of a contract and that
“[D]efendants could only be bound by that choice of law if the

10

contract in which it was included were binding.”

(Defs. Rep.

2.)
The Court notes that this case presents the question
of whether to enforce a choice of law provision when the parties
dispute whether there actually exists an enforceable contract.
Plaintiff does not provide any authority to support their
position upon that the choice of law provision should be
enforced and New York law should apply in such a situation.

The

Court believes that such a position presupposes the existence of
an enforceable contract, thereby presuming an affirmative answer
to the very question that is before this Court.

See, e.g.,

Excel Laminates, Inc. v. Lear Corp., 2003 U.S. Dist. LEXIS
19377, at *9 (D.Kan 2003); Mortgage Plus, Inc. v. DocMagic,
Inc., 03-2582-GTV-DJW, 2004 WL 2331918 (D.Kan. Aug. 23,
2004)(unreported); Capital Assoc. Int’l, Inc. v. Knoll Int’l,
Inc., 1991 U.S. Dist. LEXIS 11285, at *1 n.1 (E.D.Pa. 1991).
This Court does not believe that the choice of law provision of
the alleged contract mechanically binds to New York law the
resolution of the instant dispute over the existence of the
contract itself.

In short, Plaintiff’s choice of law analysis

is inherently flawed in that it incorrectly assumes the
existence of a contract.
In an action arising under the Court's diversity
jurisdiction, the Court must apply the choice of law rules of
11

the state where the Court sits. Equitable Trust Co. v.
Bratwursthaus Management Corp., 514 F.2d 565, 576 (4th Cir.
1975). “In Virginia, while questions of breach are determined by
the law of the place of performance, the validity,
interpretation, or construction of a contract is governed by the
substantive law of the lex loci contractus – the place of
contracting.” O’Ryan v. Dehle Mfg. Co., 99 F. Supp. 2d 714, 718
(E.D.Va. 2000). Plaintiff relies on the notion that, in
Virginia, the place of contracting is determined by the place
“where the last act necessary for a binding contract took
place.” Western Branch Holding Co. v. Trans Marketing Houston,
722 F. Supp. 1339, 1341 (E.D.Va. 1989). However, there is little
in the Complaint detailing the place in which the contract was
supposed to be negotiated or executed by either party to the
proposed contract. Indeed, there is a dearth of information in
the record useful in describing the location and circumstances
under which the parties attempted to negotiate an agreement.
Furthermore, there is little definitive factual evidence in the
record that suggests that the location would have been New York.
In short, it is not clear under the facts before this Court
where “the last act necessary for a binding contract took
place.” Id.
In addition to the aforementioned considerations,
Plaintiff has asserted only one cause of action, breach of
12

contract, and the intended place of performance was Virginia.
The Court believes that these considerations lend credence to
the notion that Virginia law should apply here. “Virginia
adheres to the principle that the law of the place of
performance governs questions arising in connection with the
performance of a contract.” Equitable Trust Co. v. Bratwursthaus
Management Corp., 514 F.2d 565, 567 (4th Cir. 1975) (citing
Arkla Lumber and Mfg. Co. v. West Virginia Timber Co., 132 S.E.
840, 842 (1926)).

A contract breach is a performance issue and

thus, is regulated by the law of the place of performance. Sneed
v. Am. Bank Stationary Co., Div. of ABS Corp., 764 F. Supp. 65,
66-67 (W.D. Va. 1991)(citing Arkla Lumber & Mfg. Co. v. West
Virginia Timber Co., 146 Va. 641, 132 S.E. 840 (1926);
Restatement of Conflicts § 370 (1934); 16 Am.Jur.2D, Conflict of
Laws § 96 (1979).

Furthermore, in cases in which a contract is

made in one state, but is to be performed in another, the law of
the place of performance governs. Poole v. Perkins, 126 Va. 331,
101 S.E. 240 (1919); see also Roberts v. Aetna Cas. & Sur. Co.,
687 F.Supp. 239 (W.D.Va. 1988) (citing Poole with approval).
Finally, Plaintiff has not demonstrated that New York
law differs from Virginia law in any manner relevant to the
resolution of the instant dispute.

To the extent that Plaintiff

does make a comparison between the two regimes, it is not to
distinguish New York and Virginia as different as to a given
13

issue or point of law, but rather to discuss the manner in which
they are similar.

Unconvinced that Virginia and New York law

differ appreciably with regard to the disposition of the instant
case, and in the absence of authority that New York law should
apply, the Court will apply Virginia law to the instant
proceeding.
2. Breach of Contract
Plaintiff has alleged a single cause of action, breach
of contract, against Defendants to the instant matter.

Under

Virginia law, a party claiming breach of contract must establish
three elements to prevail: “(1) a legally enforceable obligation
of a defendant to a plaintiff, (2) the defendant's violation or
breach of that obligation, and (3) injury or damage to the
plaintiff caused by the breach of obligation.”

Mcinnis v. BAC

Home Loan Servicing, LP, 2:11CV468, 2012 WL 383590 (E.D.Va. Jan.
13, 2012) report and recommendation adopted, McInnis v. BAC Home
Loan Servicing, LP, 2:11CV468, 2012 WL 368282 (E.D. Va. Feb. 3,
2012) (citing Sunrise Continuing Care, LLC v. Wright, 671 S.E.2d
132, 135 (Va. 2009)).
It is clear that that the complexion of the instant
dispute hinges in large part on the first element.

In essence,

the crux of the present dispute is whether a legally enforceable
obligation existed.

According to Defendants, Plaintiff is

unjustly attempting to enforce a contract that was never
14

executed.

According to Plaintiff, the parties had a valid

enforceable contract pursuant to which Plaintiff agreed to
perform a concert at a specified date, time and venue and, in
turn, Defendants agreed to promote the concert, sell tickets,
and compensate Plaintiff for his performance.
a. Motion to Dismiss as to Seth Hurwitz
At hearing upon Defendants’ Motion to Dismiss,
Plaintiff moved to dismiss Mr. Hurwitz as a Defendant to the
instant matter.

The Court granted Plaintiff’s request in open

court, and Mr. Hurwitz has been dismissed as a Defendant.
b. Motion to Dismiss as to I.M.P.
Throughout their Complaint, Plaintiff maintains that
there was a valid, enforceable contract between the parties that
was supported by consideration.

Plaintiff argues that

Defendants’ “refusal to pay Plaintiff the amounts due under the
Contract and their cancellation of the Concert is without excuse
or justification and constitutes a material and/or anticipatory
breach of the Contract.” (Pls. Compl. 4.)
As to Defendant I.M.P., Defendants argue that “not
only do the actions of the parties in the present case not
reflect a meeting of the minds regarding the terms of the
proposed concert, they exhibit just the opposite: that at no
point had I.M.P. accepted Plaintiff’s offer.” (Defs. Mot. 7.)
Defendants have previously stated at length that declined to
15

execute and finalize the contract with Plaintiff.

Defendants

also state that Plaintiff has alleged that the partial payment
of the guarantee was to have been due on November 6, 2013 was
never paid by Defendants, and that Plaintiff declined to take
action against Defendants at that point.

Plaintiff also has not

alleged that Defendants ever returned draft agreement to The
Agency Group and, furthermore, in light of the express terms of
the Agreement, “if [P]laintiff believed a contract had been
formed, he would have executed the draft agreement.” (Id. at 78.)
Defendants also argue that because the Plaintiff
claims that the written document represents and constitutes the
operative agreement, then the only way for Defendants to have
objectively manifested assent to the written contract would have
been to have signed the document.

Defendants note that the

document that Plaintiff claims to be the operative agreement
does not display the signatures of either party above the
respective signature blocks, and that, as a matter of law, no
contract was formed.

Defendants also contend that while it is

true that parties may bind themselves orally in a situation
where they contemplate the execution of subsequent written
document that memorializes the terms of their agreement,
Defendants state that is not the scenario that Plaintiff claims
to be the case here.

In this case, Defendants state that
16

because Plaintiff argues that the written document constitutes
the purported contract, that it is unenforceable because
“parties cannot be bound by oral understandings where they have
conditioned the effectiveness of those understandings upon the
execution of a written agreement” and that such an “intention is
conclusively established where a draft contract provides that
the parties shall not be bound until it is executed.” (Id. at
7.)
i. Terms of the Contract
It is axiomatic that, when the terms of a contract are
clear and unambiguous, a court is required to construe the terms
according to their plain meaning. Bridgestone/Firestone v.
Prince William Square, 250 Va. 402, 407 (1995); Foods First,
Inc. v. Gables Associates, 244 Va. 180, 182 (1992); Winn v.
Aleda Const. Co., 227 Va. 304, 307 (1984). “The guiding light
... is the intention of the parties as expressed by them in the
words they have used, and courts are bound to say that the
parties intended what the written instrument plainly declares.”
Magann Corp. v. Electrical Works, 203 Va. 259, 264 (1962). Thus,
if the intent of the parties can be determined from the language
they employ in their contract, parol evidence respecting their
intent is inadmissible. Amos v. Coffey, 228 Va. 88, 91-92
(1984). “‘An ambiguity exists when language admits of being
understood in more than one way or refers to two or more things
17

at the same time.’” Id. at 92 (quoting Renner Plumbing v.
Renner, 225 Va. 508, 515 (1983)).
If the Court finds that the agreement is unambiguous
after examining only the language of the agreement itself and
reading it as a whole, then the Court must disregard extrinsic
evidence from before or after the agreement’s formation.

“[I]f

the intent of the parties can be determined from the language
they employ in their contract, parol evidence respecting their
intent is inadmissible.”

Golding, 539 S.E. 2d at 737.

In

addition to communications and representations prior to the
agreement’s execution, the Court must “exclude[e] from its
consideration as well either party's conduct under the
contract.”

Wuxi Letotech Silicon Material Tech. Co., Ltd., v.

Applied Plasma Technologies, 2010 WL 2340260, at *3 (E.D. Va.
June 7, 2010).

If the agreement is unambiguous, “the court is

not at liberty to search for [an agreement’s] meaning beyond the
instrument itself . . . because the writing is the repository of
the final agreement of the parties.”
201, 207 (1983).

Berry v. Klinger, 225 Va.

Ultimately, “where the contractual language is

clear,” a “court may not . . . invite or accept the submission
of extrinsic evidence, ‘find’ ambiguity in the contractual text
based upon that evidence, and resolve the found ambiguity by
resort to that extrinsic evidence.”

Schneider v. Cont’l Cas.

Co., 989 F.2d 728, 731 (4th Cir. 1993).
18

The absence of an authorized signature does not defeat
the existence of a contract if the actions of the parties yield
an objective manifestation of an intent to enter into an
agreement. Galloway Corp. v. S.B. Ballard Construction Co., 464
S.E.2d 349, 356 (Va. 1995) (holding that an apparent
administrative "oversight" resulting in a failure of one party
to sign the contract would not defeat the parties' intentions).
See generally 17 Am. Jur. 2d Contracts § 96 (2006) (discussing
acceptance by performance).

However, if the parties intended to

sign a formal writing but did not, this creates a presumption
that no contract exists. See Atlantic Coast Realty Co. v.
Robertson, 116 S.E. 476, 478 (Va. 1923). That presumption can be
overcome only with "strong evidence." Andrews v. Sams, 233 Va.
55, 353 S.E.2d 735, 737, 3 Va. Law Rep. 1900 (Va. 1987).
ii. Mutual Assent
The base-line requirement for finding the existence of
a contract, written, oral, implied, or otherwise, is a showing
of mutual assent at the time of agreement, i.e., the proverbial
"meeting of the minds." Hertz Corp. v. Zurich American Ins. Co.,
496 F. Supp. 2d 668, 676 (E.D.Va. 2007) (citing Snyder-Falkinham
v. Stockburger, 249 Va. 376, 379 (Va. 1995)). “‘It is elementary
that mutuality of assent — the meeting of the minds of the
parties — is an essential element of all contracts.’” Lacey v.
Cardwell, 216 Va. 212, 223, 217 S.E.2d 835, 843 (1975) (quoting
19

Green's Ex'rs v. Smith, 146 Va. 442, 452 (1926)).

For a

contract to be enforceable, “there must be mutual assent of the
contracting parties to terms reasonably certain under the
circumstances.”

Allen v. Aetna Cas. & Sur. Co., 281 S.E. 2d

818, 820 (Va. 1981).

Indeed, “[u]ntil the parties have a

distinct intention common to both and without doubt or
difference, there is a lack of mutual assent and, therefore, no
contract.” Persinger & Co. v. Larrowe, 252 Va. 404, 408
(1996)(citing Progressive Constr. Co. v. Thumm, 209 Va. 24, 30
(1968)).

Mutual assent is determined "exclusively from those

expressions of [the parties'] intentions which are communicated
between them." 3 North, PLLC v. Corp. of the Presiding Bishop of
The Church of Jesus Christ of Latter-Day Saints, 2009 U.S. Dist.
LEXIS 115360 (E.D.Va. Dec. 10, 2009)(citing Lucy v. Zehmer, 196
Va. 493, 503 (Va. 1954)). This question of fact is determined
objectively, from a third-person perception of the words and
actions of the parties, without regard to the subjective intent
or assumptions of the parties. Id.; see also Phillips v. Mazyck,
273 Va. 630, 636 (Va. 2007) (A court may "ascertain whether a
party assented to the terms of a contract from that party's
words or acts, not from his or her unexpressed state of mind.")
In determining whether there was mutual assent to be
bound, a court first must examine the language of the agreement
itself.

Virginia Power, 2012 WL 2905110, at *5; see also
20

Burbach Broad. Co. v. Elkins Radio Corp., 278 F.3d 401, 406 (4th
Cir. 2002); Schafer, 493 S.E. 2d at 515; Boisseau v. Fuller, 30
S.E. 457, 457 (Va. 1898).

“The guiding light . . . is the

intention of the parties as expressed by them in the words they
have used, and courts are bound to say that the parties intended
what the written instrument plainly declares.”

Golding v.

Floyd, 539 S.E. 2d 735, 737 (Va. 2001) (citing Magann Corp. v.
Electrical Works, 123 S.E. 2d 377, 381 (Va. 1962)).
iii. Discussion
The parties agree that the contract document was never
signed.

Regarding the representations of the Plaintiff, there

has been no assertion that Plaintiff was relying upon the oral
assent of the Defendants, no assertion that that Defendants’
oral assent preceded the written contract, and no assertion that
the written contract merely represents the later memorialization
of prior oral assent between the parties. In this case,
Plaintiff contends that the purported contract document is proof
positive of the agreement between the parties. The express terms
of the document, however, hold that “[t]his contract shall not
be binding unless signed by all parties hereto provided however,
that failure to sign this agreement shall not subject The Agency
Group to any liability.” The Court believes that the terms of
the alleged contract are unambiguous in the sense that, by its
express terms, the agreement was not intended to have been
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binding until it was signed by both parties. This has created a
presumption that no contract exists. Atlantic Coast, 116 S.E. at
478.
Having established the presumption that no contract
exists in this case, the Court will examine whether “strong
evidence” exists as to whether actions of the parties yielded an
objective manifestation of intent to enter into an agreement.
Defendants have represented that they explicitly
avoided assenting to the terms of any agreement Plaintiff and
actively avoided the execution of any contract between the
parties with regard to the contemplated concert.

Defendants

also represent that they repeatedly expressed to Plaintiff their
intent not to be bound by an agreement.

Such a representation

is consistent with the December 5, 2012 e-mail from Mr. Hayes,
Defendant I.M.P.’s legal counsel to the matter.

Plaintiff has

done little to shed light upon the parties’ conduct throughout
negotiations, and has presented little factual support
describing a different or countervailing version of the manner
in which contractual discussions proceeded.

Rather, Plaintiff

almost wholly relies upon the October 2, 2012 e-mail from Mr.
Schwartz and unsigned contract document itself.

It is

Plaintiff’s position that the agreement became binding on
October 2, 2012, and that any subsequent negotiations were

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efforts by Plaintiff’s representatives to negotiate economic
concessions to the benefit of Defendants.

(Compl. 3.)

The Court notes that, in the October 2, 2012 e-mail
from Mr. Schwartz to Mr. Hurwitz, Mr. Schwartz states that the
contract was still subject to “signature and approval of the
Artist...” Thus, on the date upon which Plaintiff asserts that
Defendants entered into a binding agreement, it appears that the
agreement was still expressly conditioned upon the approval by
the Plaintiff. Rather than demonstrating the assent of the
parties, the e-mail from Mr. Schwartz ostensibly demonstrates
that Plaintiff had not even approved the contract at that time.
Furthermore, the e-mail states that “[u]pon the contracts’
counter-signature, [Mr. Schwartz would] forward a fully executed
copy for [Mr. Hurwitz’] files.]”

Such a statement seemingly

infers that the contract would not be fully executed until it
was signed, a notion that would be in accord with the terms of
the contract itself. If it is the contention of the Plaintiff
that assent occurred at the time of the e-mail, that argument
must clearly fail based upon the mere text of the message.

If

it is the contention of Plaintiff that further actions were
taken on that date that bound the parties to an agreement, those
actions have been insufficiently delineated.
Furthermore, Defendants’ subsequent actions do not by
themselves present strong evidence of intent to enter into an
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agreement. At most, Plaintiff is able to point to the fact that
tickets to a concert were sold.

However, there is significant

countervailing evidence of intent not to enter into an
agreement, including Defendants’ failure to pay the November 6,
2012 deposit required by the terms of the contract and
emphasized in the e-mail from Mr. Schwartz to Mr. Hurwitz.
Indeed, despite the contention of Plaintiff that the parties
entered into a contract on October 2, 2012, there is no record
of Plaintiff having lodged any contemporaneous objection to
Defendants’ failure to pay the $42,500.00 deposit that was due
more than a month after the date on which Plaintiff asserts the
contract became enforceable.
Finally, the Court notes that the purported contract
contains an arbitration clause, entitled “Dispute Resolution
Provision,” requiring the resolution of any dispute arising out
of or relating to the agreement to be submitted to and resolved
through arbitration.

If Plaintiff truly considered the

purported contract to be binding as they have asserted, it is
curious that they would not attempt to submit this dispute for
arbitration in accordance with provisional requirements of the
alleged contract prior to bringing a suit for breach of contract
against Defendants.
In any event, based upon the evidence that is
currently in the record, the Court believes that insufficient
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evidence exists capable of defeating the presumption of the nonexistence of the contract.
IV. Conclusion
For the foregoing reasons, Defendants’ Motion to
Dismiss is granted. 5
An appropriate Order will issue.
/s/
April 9, 2013
Alexandria, Virginia

James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

5

As the Court has dismissed Plaintiff’s cause of action for breach of
contract as to both Defendants, Defendants’ Motion to Strike Plaintiff’s
Claim for Damages Resulting from Alleged Harm to Reputation and Goodwill need
not be addressed.

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