Hendry, Jr. et al v. The Georgelas Group, Inc. et al
Filing
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MEMORANDUM OPINION Re: Defts' Motions to Dismiss and Motion for Summary Judgment. Signed by District Judge James C. Cacheris on 01/21/15. (Copy mailed to pltfs') (pmil, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
ERNEST S. HENDRY, JR. &
JUDITH V. HENDRY,
Plaintiffs,
v.
THE GEORGELAS GROUP, INC. &
FRANCIS J. PELLAND,
Defendants.
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M E M O R A N D U M
1:14cv1455 (JCC/TCB)
O P I N I O N
This matter is before the Court on Defendant Francis
J. Pelland’s Motion to Dismiss [Dkt. 9], Defendant The Georgelas
Group, Inc.’s Motion to Dismiss [Dkt. 15], and Defendant The
Georgelas Group, Inc.’s Motion for Summary Judgment [Dkt. 17].
For the reasons discussed below, the Court will grant the
Motions to Dismiss and dismiss this matter with prejudice.
I. Background
Beginning in 1927, pro se Plaintiffs’ ancestors, the
Hendry family, owned a twenty-acre parcel of real property in
Arlington County, Virginia until 1994, when it was sold to
Arlington County.
(Compl. [Dkt. 1] ¶¶ 6-7.)
This lawsuit --
similar to the many lawsuits that have come before it -concerns events that occurred in the late 1980s and early 1990s
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surrounding this sale of real property.1
Defendant Francis J. Pelland (“Pelland”) offers an
accurate description of the Complaint now before the Court:
The complaint . . . is a confusing,
wandering narrative of events starting with
an alleged offer to purchase a twenty-acre
parcel of land in Arlington County by
defendant Georgelas & sons to Anne P. Hendry
(mother and mother-in-law of plaintiffs) in
1977 (Compl. ¶¶ 9-10), leading to litigation
between Georgelas and the Hendrys that was
settled (Compl. ¶¶ 121-123), and ending with
protracted litigation between the Hendrys
and Pelland [the Hendry family’s former
attorney].
(Pelland’s Mem. in Support [Dkt. 10] at 2.)
In liberally construing pro se Plaintiffs’ Complaint,
it appears to raise the following three “counts” or claims:
Count One: Coram Non Judice against only Defendant
Georgelas & Sons (“Georgelas”), claiming the settlement in
Chancery No. 87-671 in Arlington County Circuit Court was void
because none of the judges had jurisdiction to rule due to their
alleged failure to follow the appropriate legal standards.
1
In this Court alone, pro se Plaintiffs have been a party to at
least five other lawsuits. See Vercoe v. Hendry, 1:92-CV-1239TSE (settled on February 2, 1993); see also Hendry v. Georgelas
& Sons, Inc., 1:93-CV-746-TSE (motion to dismiss granted on
August 13, 1993); Hendry v. Vercoe, 1:93-CV-830-AVB (settled on
November 5, 1993); Agnew v. Hendry, 1:94-CV-559-TSE (jury
returned verdict against Hendrys on May 8, 1995, affirmed on
appeal); Hendry v. Charles Terrence Tate Householder, 1:97-CV430-TCB (after a bench trial, judgment entered in defendants’
favor on March 23, 1998).
2
(Compl. ¶¶ 121-123.)
Count Two: Collusion and Fraud against Pelland and
Georgelas, claiming the Hendrys were never able to properly
enter into the settlement contract because of various breaches
of fiduciary duties, extreme duress, and incredible
misrepresentations by two attorneys and three judges.
(Compl.
¶¶ 124-247.)
Count Three: Punitive Damages, claiming Defendants’
behavior at issue was intentional and reckless.
249.)
(Compl. ¶¶ 248-
Plaintiffs request $18,765,297.99 in compensatory and
punitive damages.
(Id. at 35.)
The two Defendants, Pelland and Georgelas, now move
separately to dismiss the Complaint for a variety of reasons.2
[Dkts. 9, 15.]
In opposition, Plaintiffs filed the following
memoranda: “Memorandum Detailing How the Hendrys Were Denied Due
Process In Chancery No. 89-969” [Dkt. 20], “Material Facts
Affidavit” [Dkt. 22], “Memorandum in Opposition to Motion to
Dismiss and Rule 56 Motion” [Dkt. 23], and “Memorandum in
Opposition to Motion to Dismiss” [Dkt. 25].
Reply memorandum.
[Dkt. 24.]
Georgelas filed a
Accordingly, the motions are
fully briefed and ripe for disposition.
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Georgelas also moves for summary judgment. [Dkt. 17.] The
Court need not consider this motion, however, because it will
dismiss this matter with prejudice.
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II. Standard of Review
“The purpose of a Rule 12(b)(6) motion is to test the
sufficiency of a complaint; importantly, [it] does not resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses.”
Butler v. United States, 702 F.3d
749, 752 (4th Cir. 2012) (citations and internal quotation marks
omitted).
A court reviewing a complaint on a Rule 12(b)(6)
motion must accept well-pleaded allegations as true, and must
construe all allegations in favor of the plaintiff.
See Randall
v. United States, 30 F.3d 518, 522 (4th Cir. 1994).
However,
the court need not accept as true legal conclusions disguised as
factual allegations.
(2009).
Ashcroft v. Iqbal, 556 U.S. 662, 679-81
The plaintiff’s facts must “be enough to raise a right
to relief above the speculative level.”
Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
III. Analysis
Both Pelland and Georgelas move to dismiss the
Complaint under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, relying at least in part3 on the affirmative defense
that Plaintiffs’ claims are time barred by the statute of
limitations.
(See Pelland’s Mem. at 6; Georgelas’s Mem. [Dkt.
3
Defendants also raise other apparently viable defenses, such as
failure to state a claim upon which relief can be granted,
settlement and release, and res judicata, which the Court need
not address because it finds Plaintiffs’ claims are time barred.
4
19] at 8-9, 14-17.)
“The purpose of a Rule 12(b)(6) motion is
to test the sufficiency of a complaint; importantly, [it] does
not resolve contests surrounding the facts, the merits of a
claim, or the applicability of defenses.”
752 (emphasis added).
Butler, 702 F.3d at
“Such an affirmative defense has no
bearing on whether Plaintiff has adequately stated a claim for
relief.”
Manchanda v. Hays Worldwide, LLC, No. 1:14CV1339
JCC/TCB, 2014 WL 7239095, at *2 (E.D. Va. Dec. 17, 2014).
Thus,
typically, a statute of limitations affirmative defense must be
raised under Rule 8(c) of the Federal Rules of Civil Procedure,
and the burden of establishing the affirmative defense rests on
the defendant.
Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th
Cir. 2007).
However, where the facts as alleged in the Complaint
are sufficient to rule on a statute of limitations affirmative
defense, the Court may reach this defense “by a motion to
dismiss filed under Rule 12(b)(6).”
Id.
“This principle only
applies, however, if all facts necessary to the affirmative
defense ‘clearly appear[] on the face of the complaint.’”
Id.
(quoting Richmond, Fredericksburg & Potomac R.R. v. Forst, 4
F.3d 244, 250 (4th Cir. 1993)) (additional citation omitted).
Accordingly, in ruling on Defendants’ Motions to Dismiss, this
Court, liberally construing the Complaint in favor of
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Plaintiffs, must find all of the facts necessary to establish
Defendants’ statute of limitations defense on the face of the
Complaint.
The Court will grant both Motions to Dismiss and
dismiss this case with prejudice because it is clear from the
face of the Complaint that Plaintiffs’ claims are time barred.
Plaintiffs’ Complaint attempts to allege two causes of
action: (1) Coram Non Judice, and (2) Collusion and Fraud.
(Compl. ¶¶ 121-123, 124-247.)
Plaintiffs also request punitive
damages as a separate and third “count.”
(Id. at ¶¶ 248-249.)
In this diversity action, the substantive law of Virginia, the
forum state, applies to Plaintiffs’ claims, including the
statute of limitations.
Guaranty Trust Co. v. York, 326 U.S.
99, 110 (1945) (“[I]f a plea of the statute of limitations would
bar recovery in a State court, a federal court ought not to
afford recovery.”).
Assuming for purposes of this Motion only
that Virginia law recognizes a cause of against based on Coram
Non Judice, a two-year statute of limitation applies.
See Va.
Code § 8.01-248 (“Every personal action accruing on or after
July 1, 1995, for which no limitation is otherwise prescribed,
shall be brought within two years after the right to bring such
action has accrued.”).
Similarly, a two-year statute of
limitation applies to Plaintiffs’ fraud claim.
8.01-243.
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See Va. Code §
Here, in Count One, Plaintiffs claim that the
settlement they entered into with Georgelas in Chancery No. 87671 in the Arlington Circuit Court is void based on misconduct
by the judges.
(Compl. ¶¶ 121-123.)
on May 26, 1988.
(Id. at ¶ 128.)
This settlement occurred
Any alleged cause of action
arising from this settlement would have also accrued on the same
day, meaning the two-year statute of limitations expired on May
27, 1990, almost twenty-five years ago.
Even if the Court
assumes Count One states a claim upon which relief can be
granted, this claim still must be dismissed as well outside the
applicable statute of limitation period.
Count Two must be dismissed for the same reason.
Plaintiffs allege collusion and fraud against Pelland, the
Hendry family’s former attorney, and Georgelas.
247.)
(Compl. ¶¶ 124-
Based on the face of Plaintiffs’ Complaint, any cause of
action for fraud against Defendants accrued at the very latest
in 1996, when the United States Court of Appeals for the
District of Columbia Circuit issued its ruling on Plaintiffs’
legal malpractice lawsuit against Pelland.
Pelland, 73 F.3d 397 (D.C. Cir. 1996).
See Hendry v.
The statute of
limitations on Plaintiffs’ fraud claim expired seventeen years
ago in 1998.
Accordingly, this claim must also be dismissed as
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outside the applicable statute of limitation period.4
Lastly, Plaintiffs raise a claim for punitive damages
in Count Three.
(Compl. ¶¶ 248-249.)
As discussed above, the
Court will dismiss Counts One and Two as time barred and thus,
Plaintiffs do not state a proper claim for compensatory damages.
“The general rule is that a plaintiff cannot maintain an action
to recover mere punitive or exemplary damages, and that a
finding of compensatory damages is a prerequisite to an award of
exemplary damages.”
Zedd v. Jenkins, 74 S.E.2d 791, 793 (Va.
1953) (citations omitted).
Punitive damages can be awarded
under Virginia law under certain circumstances if a plaintiff
pleads and proves an intentional tort.
See, e.g., Shaw v. Titan
Corp., 498 S.E.2d 696, 701 (Va. 1998).
Here, Plaintiffs have
failed to sufficiently plead a cause of action that is not
barred by the relevant statute of limitation that would entitle
them to an award of punitive damages, and therefore cannot
maintain a sole claim for punitive damages.
Accordingly, the
Court will dismiss this third “count” as well.
To conclude, without reaching the question of whether
4
Plaintiffs question whether it is “even possible to have an
applicable statute of limitations in the instant case,” and cite
instances where they previously filed lawsuits within the
applicable statute of limitations period. (Pls.’ Mem. [Dkt. 25]
at 4-5.) There is a statute of limitations period in this case,
and Plaintiffs have not shown why it is “inapplicable,” other
than summarily concluding that the case in Arlington County was
“void ab initio and in toto.” (Id. at 5.)
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Plaintiffs state a valid claim for relief, it is readily
apparent and clear to the Court based on the facts alleged on
the face of the Complaint that Plaintiffs’ claims are time
barred.
See Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th
Cir. 2007).
The events surrounding Plaintiffs’ allegations
occurred between twenty and thirty years ago.
Their legal
malpractice claim against Pelland was fully litigated in the
federal courts of the District of Columbia.
Pelland, 73 F.3d 397 (D.C. Cir. 1996).
See Hendry v.
And it appears
Plaintiffs’ other claims were fully litigated in this Court, and
other Virginia state courts, throughout the 1990s.
The Court
will dismiss the Complaint with prejudice because Plaintiffs
have not sought leave to amend, and regardless, the Court finds
any amendment would be futile and prejudicial to the opposing
parties.
See, e.g., Steinburg v. Chesterfield Cnty. Planning
Comm’n, 527 F.3d 377, 390 (4th Cir. 2008).
Accordingly, under
the relevant statutes of limitation discussed above, Plaintiffs
are barred from bringing these claims many years later.
IV. Conclusion
For the foregoing reasons, the Court will grant
Pelland’s and Georgelas’s Motions to Dismiss.
The remaining
pending motions for summary judgment will be denied as moot.
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An appropriate Order shall issue.
January 21, 2015
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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