Devine v. Pulte Home Corporation
Filing
21
MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 12/04/2015. (dvanm, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
PATRICK M. DEVINE,
)
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)
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Plaintiff,
v.
PULTE HOME CORPORATION,
Defendant.
M E M O R A N D U M
1:15cv1361(JCC/JFA)
O P I N I O N
This matter is now before the Court on a motion for
judgment on the pleadings [Dkt. 9] filed by Defendant Pulte Home
Corporation, as well as a motion for summary judgment [Dkt. 15]
and a motion to strike affirmative defenses [Dkt. 5] filed by
Plaintiff Patrick M. Devine.
For the reasons laid out below,
the Court grants Defendant’s Motion of Judgment on the
Pleadings, denies Plaintiff’s motion for summary judgment, and
denies Plaintiff’s motion to strike.
I. Background
When evaluating a motion for judgment on the
pleadings, the Court applies the same standard as when
evaluating a motion to dismiss under rule 12(b)(6).
City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).
Edwards v.
The Court
must read the complaint as a whole, construe the complaint in a
light most favorable to the plaintiff, and accept the facts
1
alleged in the complaint as true.
Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
The following facts are taken from the complaint and
the parties’ briefs.
Plaintiff Patrick M. Devine (“Plaintiff”
or “Devine”), is the purchaser, current owner, and resident of a
condominium located at 2211 Jefferson Davis Highway, unit 101,
in Alexandria, Virginia.
(Compl. [Dkt. 1-1], ¶ 5.)
Defendant,
Pulte Home Corporation (“Defendant” or “Pulte”), is a Michigan
corporation engaged in the construction and sales of residential
property including the development containing Plaintiff’s
current residence (the “Potomac Yard Development”).
6.)
(Id. at ¶
Defendant conducts its business regarding sales in the
Potomac Yard Development out of its office at 2400 Main Line
Boulevard, Alexandria, Virginia.
The Defendant advertised the
condominiums at the Potomac Yard Development as “luxury”
apartments.
(Id. at ¶ 13.)
Beginning in the fall of 2012,
Plaintiff and his wife visited the Defendant’s sales office and
toured a “Model home unit” at 2309 Main Line Boulevard,
Alexandria, Virginia.
(Id. at ¶¶ 11, 12.)
Several times,
Plaintiff inquired about the availability of the model unit, and
was advised that the model units would be the last units sold,
and would likely not be on the market for a couple of years.
(Id. at ¶ 14.)
Plaintiff was unwilling to wait several years,
and on November 4, 2012, he discussed purchase of similar unit,
2
preferably on Main Line Boulevard, with Defendant’s sales agent
Doug Richards.
(Id. at ¶ 16.)
Richards informed Plaintiff that
there were no longer any units available on Main Line Boulevard,
but that the next wave of construction included units on
Jefferson Davis Highway (Route 1) one block west of Main Line
Boulevard.
(Id. at ¶ 17.)
Although Plaintiff was initially
uninterested in a unit on Route 1 due to concerns about traffic
noise, Richards assured Plaintiff that the units on Route 1
would be of “airport quality” in blocking out traffic noise.
(Id. at ¶¶ 18-20.)
Richards also assured Plaintiff that if any
of the other units in the Potomac Yard Development not located
on Route 1 became unexpectedly available, Defendant would
contact Plaintiff.
(Id. at ¶ 21.)
That same day, November 4,
2012, Plaintiff signed a contract to purchase a three bedroom
condominium lower level unit to be constructed at 2211 Jefferson
Davis Highway and gave Defendant a $10,000 deposit towards that
unit.
(Id. at ¶ 22.; Def.’s Mem. in Supp. [Dkt. 10] at 2.)
Richards completed a job initiation order for construction with
a promised delivery of “July/August 2013.” (Compl. ¶ 23.)
On April 26, 2013 Richards sent Plaintiff an e-mail
stating that a unit had become available on Mackenzie Avenue but
that that unit would cost approximately an extra $80,000 above
the price of the unit on Route 1.
(Id. at ¶27.)
Plaintiff
responded on April 27 that he was unwilling to pay the higher
3
price, but was still concerned about the potential for road
noise from Route 1.
(Id. at ¶ 28.)
On September 24, 2013 at 10
a.m., Plaintiff took a “final walk-through” of the condominium
located at 2211 Jefferson Davis Highway.
(Id. at ¶ 29.)
Two
hours later the same day, Plaintiff purchased the condominium
located at 2211 Jefferson Davis Highway for $560,105.
(Id. at ¶
30.)
On September 28, 2013, Plaintiff and his wife moved
into the unit at 2211 Jefferson Davis Highway, and began
noticing that they could hear traffic noise and the
conversations of passersby from Route 1 while in the
condominium.
(Id. at ¶¶ 31, 32.)
The Plaintiff claims that the
level of noise from Route 1 makes it difficult for him and his
wife to sleep in either of the unit’s upstairs bedrooms
overlooking Route 1.
(Id. at ¶ 33.)
In late October 2013, Jon
and Ann West moved into the unit directly above the Plaintiff’s
unit, and the Plaintiff and his wife began to hear noises from
the upstairs apartment.
(Id. at ¶¶ 34-35.)
Plaintiff claims
that from early November 2013 to the present, he hears someone
walking on the floor above him every night at approximately 11
pm while he is in the master bedroom with the television turned
on. (Id. at ¶ 36.)
In January, 2014, Plaintiff sent an e-mail message to
Defendant’s construction manager Marco Scarzella complaining
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about noise issues inside the unit and the noise caused by
traffic on Route 1.
(Id. at ¶ 39.)
On January 22, 2014,
Scarzella responded, stating that Plaintiff’s unite had been
tested for sound and had passed its test, so no further action
would be taken on Plaintiff’s complaint. (Id. at ¶ 40.)
in
early September 2014, Lisa Hamlin, a warranty service manager
for Defendant, performed a one-year inspection on Plaintiff’s
unit, at which time Plaintiff raised several concerns, including
the noise from upstairs and Route 1.
(Id. at ¶ 41.)
After the
one-year inspection, Hamlin sent Plaintiff a copy of a sound
test indicating that the unit had passed the test.
(Id. at ¶
42.)
On September 23, 2015, Plaintiff filed this suit in
Virginia’s Circuit Court for the City of Alexandria.
Removal [Dkt. 1] ¶ 1.)
the case to this Court.
(Notice of
On October 19, 2015, Defendant removed
(Id.)
On October 20, 2015, Defendant
filed their Answer to Plaintiff’s complaint, asserting that
Defendant had failed to state a claim upon which relief can be
granted, and asserting the affirmative defenses of waiver,
estoppel, the statute of limitations, the statute of frauds, a
contractual exclusive remedy provision, the economic loss
doctrine, contributory negligence, and assumption of the risk.
(Answer [Dkt. 3], ¶¶ 53-60.)
On October 30, 2015, Plaintiff
filed a motion to strike Defendant’s affirmative defenses of the
5
statute of limitations and the contractual exclusive remedy.
(Pl.’s Mot. to Strike [Dkt. 5].)
Plaintiff waived oral argument
on the Motion to Strike, and Defendant filed its opposition on
November 6, 2015.
(Def.’s Opp’n. to Mot. to Strike [Dkt. 12].)
On November 2, 2015, Defendant filed a motion entitled “Motion
to Dismiss for Failure to State a Claim”, in which Defendant
actually requests a judgment on the pleadings pursuant to
Federal Rule of Civil Procedure Rule 12(c).
Dismiss [Dkt. 9].)
(Pl.’s Mot. to
On November 20, 2015, Plaintiff filed what
he titled a “Motion to Dismiss re: Defendant’s Motion to
Dismiss” [Dkt. 13] and a brief in support of that motion [Dkt.
14] which the Court takes to be Plaintiff’s opposition to
Defendant’s Motion for Judgment on the Pleadings.
Finally,
Plaintiff also filed his “Cross Motion for Summary Judgment”
[Dkt. 15] requesting summary judgment in his favor.
On December
3, 2015, the Court heard oral arguments on Defendant’s Motion
for Judgment on the Pleadings and Plaintiff’s Cross Motion for
Summary Judgment.
All three motions have therefore been fully
briefed and argued, and are ripe for decision.
II. Legal Standard
Defendant moves for judgment on the pleadings on the
grounds that Plaintiff’s complaint fails to state a claim upon
which relief can be granted pursuant to Federal Rule of Civil
6
Procedure 12(c).1
A motion for judgment on the pleadings for
failure to state a claim is evaluated under the same standard as
a Rule 12(b)(6) motion to dismiss.
Edwards, 178 F.3d at 243.
“The purpose of a Rule 12(b)(6) motion is to test the
sufficiency of a complaint; importantly, [a Rule 12(b)(6)
motion] does not resolve contests surrounding the facts, the
merits of a claim, or the applicability of defenses.”
(citation omitted) (internal quotation marks omitted).
Id.
“While
the court must accept well-pleaded allegations as true when
ruling on a Rule 12(b)(6) motion, the court need not accept as
true legal conclusions disguised as factual allegations.
Ashcroft v. Iqbal, 556 U.S. 662, 679-81 (2009).
Therefore, a
pleading that offers only a “formulaic recitation of the
elements of a cause of action will not do.”
Iqbal, 556 U.S. at
678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).
Nor
will a complaint that tenders mere “naked assertion[s]” devoid
of “further factual enhancement.”
Iqbal, 556 U.S. at 678;
Twombly, 550 U.S. at 557.
Allegations of fraud must also meet the more stringent
requirements of Federal Rule of Civil Procedure 9(b).
U.S. ex
rel. Ahumada v. NISH, 756 F.3d 268, 280 (4th Cir. 2014).
1
Rule
Defendant also requests dismissal under Federal Rule of Civil
Procedure 12(b)(6). However, as Defendant has already filed an
answer in this case, they can no longer seek dismissal for
failure to state a claim pursuant to Rule 12(b)(6), but may
still move for judgment on the pleadings pursuant to Rule 12(c).
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9(b) requires that when “alleging fraud or mistake, a party must
state with particularly the circumstances constituting fraud or
mistake.” Fed. R. Civ. P. 9(b).
Specifically, there must be
allegations of fraudulent misrepresentations of fact.
Hamilton
v. Boddie-Noell Enter., Inc., No. 2:14CV00051, 2015 WL 751492,
at *2 (W.D. Va. Feb. 23, 2015) (citations omitted).
Plaintiff moves to strike the affirmative defenses of
the statute of limitations and a contractual exclusive remedy
provision from the Defendant’s Answer pursuant to Federal Rule
of Civil Procedure 12(f).
Rule 12(f) allows the Court to strike
from a pleading “an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.”
However,
motions to strike pursuant to Rule 12(f) are “generally viewed
with disfavor because striking a portion of a pleading is a
drastic remedy.”
Waste Management Holdings, Inc. v. Gilmore,
252 F.3d 316, 247 (4th Cir. 2001).
Therefore, “even where
technically appropriate and well-founded, motions to strike
defenses as insufficient are often denied in absence of a
showing of prejudice to the moving party.”
F.R.D. 66, 70 (S.D.W.Va. 1993).
Clark v. Milam, 152
In reviewing a motion to
strike, “the court must view the pleading under attack in a
light most favorable to the pleader.”
Id. at 71.
Finally, Plaintiff has filed a cross motion for
summary judgment.
Summary judgment is appropriate when the
8
pleadings and the record demonstrate that “there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.”
56(c).
Fed. R. Civ. P.
“Generally speaking, ‘summary judgment [must] be refused
where the nonmoving party has not had the opportunity to
discover information that is essential to his opposition.’”
Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244
(4th Cir. 2002)(quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250(1986)).
III. Analysis
The Court first addresses Defendant’s Motion for
Judgment on the Pleadings before turning to Plaintiff’s Motion
to Strike and then to Plaintiff’s Motion for Summary Judgment.
A.
Defendant’s Motion for Judgment on the Pleadings
Plaintiff brings suit under a common law theory of
fraud and under the Virginia Consumer Protection Act (“VCPA”).
(Compl. ¶ 1.)
Because Plaintiff’s claims both involve
allegations of fraud, such claims must be pled with heightened
particularity.
See, e.g., Fravel v. Ford Motor, Co., 973 F.
Supp. 2d 651, 656 (W.D. Va. 2013); Myers v. Lee, No. 1:10cv131
(AJT/JFA), 2010 WL 2757115, at *6 (E.D. Va. July 12, 2010)
(citing Nahigian, 684 F. Supp. 2d at 741).
Rule 9(b) requires
that when “alleging fraud or mistake, a party must state with
particularly the circumstances constituting fraud or mistake.”
9
Fed. R. Civ. P. 9(b).
Specifically, there must be allegations
of fraudulent misrepresentations of fact, which must include: “a
false representation, or material fact, made intentionally and
knowingly, with intent to mislead, reliance by the party misled,
and resulting damage.”
Hamilton v. Boddie-Noell Enter., Inc.,
No. 2:14CV00051, 2015 WL 751492, at *2 (W.D. Va. Feb. 23, 2015)
(citations omitted).
1. Plaintiff’s Claim for Fraud
Plaintiff alleges that he was fraudulently induced
into purchasing the condominium by the Defendant’s statements
that the condominiums would be of “airport quality” and that the
condominiums were “luxury” or “luxurious”.
14] at 1; Compl. ¶¶ 46, 48.)
(Pl.’s Opp’n. [Dkt.
Defendant argues that the words
“airport quality” and “luxurious” are mere puffery, too
indefinite to be considered misrepresentations of fact.
To state a cause of action for either actual or
constructive fraud, a plaintiff must allege at least that there
has been a false misrepresentation of a material fact, that the
injured party relied upon by this misrepresentation, and that
the injured party was damaged as a result of this reliance.
Richmond Metropolitan Authority v. McDevitt Street Bovis, Inc.,
256 Va. 553, 557-58 (1998)(See also State Farm Mut. Auto Ins.
Co. v. Remley, 270 Va. 209, 219-20)).
To state a cause of
action for fraudulent inducement of contract, “a plaintiff must
10
allege that the defendant made misrepresentations that were
positive statements of fact, made for the purpose of procuring
the contract; that they are untrue; that they are material; and
that the party to whom they were made relied upon them, and was
induced by them to enter into the contract.”
Enomoto v. Space
Adventures, Ltd., 624 F. Supp. 2d 443, 452 (E.D.Va.
2009)(citations and internal quotation marks omitted).
In order
to state a cause of action for any of these varieties of fraud,
a plaintiff must allege the misrepresentation of an existing
fact rather than the expression of an opinion.
“The mere
expression of an opinion, however strong and positive the
language may be, is no fraud.” Yusefovsky v. St. John’s Wood
Apartments, 261 Va. 97, 110-11 (2001)(quoting Saxby v. Southern
Land Co., 109 Va. 196, 198 (1909)).
On determining whether a
particular statement is a matter of fact or opinion, the Supreme
Court of Virginia has offered the following guidance:
We have not, however, established a bright line test
to ascertain whether false representations constitute
matters of opinion or statements of fact. Rather each
case must in a large measure be adjudged upon its own
facts, taking into consideration the nature of the
representation and the meaning of the language used as
applied to the subject matter and as interpreted by
the surrounding circumstances.
Mortarino v. Consultant Eng’g. Servs., Inc., 251 Va. 289, 293
(1996)(internal quotation marks and citations omitted).
It is
settled, however, that “[c]ommendatory statements, trade talk,
11
or puffing, do not constitute fraud because statements of this
nature are generally regarded as mere expressions of opinion
which cannot rightfully be relied upon.”
Tate v. Colony House
Builders, 257 Va. 78, 84 (1999).
Generally, when a statement involves absolutes or
objectively provable (or falsifiable) claims, courts have held
the statement to be a representation of fact.
See Yusefovsky v.
St. John’s Wood Apartments 261 Va. 97 (2001)(holding that
statements that “the development was crime free, that police
officers lived there, and that police vehicles patrolled the
development” were actionable statements of fact); Tate v. Colony
House Builders, Inc., 257 Va. 78, 83-84 (1999)(holding that a
statement that “the new dwelling house was free from structural
defects” was an actionable statement of fact).
However, when a
statement has involved only subjective value judgments, the
statement has generally been held to be an opinion or puffery.
See Henning v. Kyle, 190 Va. 247 (1949) (holding that statements
that a house “was a substantial, well-built house. . . that it
was easy to heat and that [the buyer] wouldn’t have to worry
about a thing, all [the buyer] would have to do was move in,
that it was in good repair in every way. . . it was in excellent
condition and it was a substantial, well-built house” were not
statements of fact, but rather expressions of opinion by the
seller); Lambert v. Downtown Garage, 262 Va. 707 (holding that
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statements that a previously repaired car was in “excellent
condition” and had never been “seriously damaged” were nonactionable sales talk). What one person considers substantial or
serious is often considered flimsy or minimal by another.
In
short, where a statement about the quality of a good cannot be
reduced to a definable, legally cognizable standard, the
statement will likely be an opinion rather than a statement of
fact.
Here, Plaintiff argues that Pulte misrepresented a
fact when its agent assured him that the soundproofing in the
condominiums built on Route 1 would be of “airport quality” and
that the apartments would be “luxurious”.
12.)
(Pl.’s Opp’n. at 8,
The representation of a condominium as “luxury” or
“luxurious” is classic puffery, and is therefore not an
actionable misrepresentation of fact.
See Gricco v. Carver Boat
Corp., LLC, No. CIV. JFM-04-1854, 2005 WL 3448038, at *3 (D.Md.
Dec. 15, 2005) aff’d sub nom. Gricco v. Carver Boat Corp., 228
F. App’x 347 (4th Cir. 2007); Demarco v. Avalonbay Communities,
Inc., No. CV 15-628 (JLL), 2015 WL 6737025, at *4 (D.N.J. Nov.
3, 2015).
The statement that the soundproofing on the
condominiums would be of “airport quality” is less clear cut.
Defendant argues that “airport quality” is not a meaningful
standard in residential soundproofing, and notes that Plaintiff
has conceded in his complaint that the level of soundproofing in
13
his house meets the applicable housing code requirements.
(Def.’s Mem. in Supp. [Dkt. 10] at 9.)
As support for its position that “airport quality”
soundproofing is not a meaningful standard but an unfalsifiable
opinion, Defendant points to language in the sales contract
signed by Plaintiff explicitly stating that “[w]hile the Home is
built to meet or exceed all applicable regulations regarding
sound and vibration transmission, condominium living is more
susceptible to the transmission of noise and vibration from
adjoining units.”
(Def.’s Ex. B [Dkt. 10-2] ¶ 29.)
The
contract further states, “Seller is required to construct units
within the Condominium that comply with the minimum requirements
of the applicable building code for sound transmission. . . .
However, those standards do not require that units be
soundproof, and they are not.”
(Def.’s Ex. C [Dkt. 10-3] ¶ 19.)
Finally, the contract states “[t]he Home is located near
transportation facilities including Reagan National Airport,
active railroad tracks and major roadways. As a result the Home
is subject to aircraft over flights, the noise generated by
aircraft over flights, and the noise generated by the nearby
transportation facilities.”
(Def.’s Ex. A [Dkt. 10-1] ¶ 20.)
Defendant argues, and the Court agrees, that the definite
promises in the written contract are the only statements of fact
made by the Defendant or its agents regarding the standard of
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the soundproofing in Plaintiff’s condominium.
Supp. at 6.)
(Def.’s Mem. in
Plaintiff concedes in his Complaint that the
results of an objective sound test performed on his unit “were
that the unit had passed” and the unit is therefore in
compliance with the applicable building codes for sound
transmission.
(Compl. ¶ 42.)
Nowhere in Plaintiff’s Complaint
does he allege that his unit does not comply with the applicable
building code standard for sound transmission.
The written contract signed by Plaintiff the same day
as the Defendant’s alleged misrepresentation sheds light on “the
nature of the representation and the meaning of the language
used as applied to the subject matter and as interpreted by the
surrounding circumstances.”
Mortarino, 251 Va. 289 at 293
(internal quotation marks and citations omitted).
While the
phrase “airport quality” may bring to mind a certain level of
soundproofing, it is ultimately no more definite than “excellent
quality” or “luxurious quality”.
In light of the written
contract’s explicit promises regarding the level of and limits
on the soundproofing provided in the condominiums, it is clear
that the “airport quality” statement was puffery.
While the
language used to express the opinion is more creative than
merely stating that the soundproofing would be excellent, “the
mere expression of an opinion, however strong and positive the
language may be, is no fraud.”
Yusefovsky, 261 Va. at 110.
15
Plaintiff does not allege a misrepresentation of fact and
therefore fails to state a cause of action for fraud.
2. Plaintiff’s VCPA Claim
Plaintiff’s claim for a violation of the VCPA is
similarly doomed.
The Supreme Court of Virginia recently held
that a plaintiff need not allege a common law fraud to state a
cause of action under the VCPA, specifically holding that “[t]he
VCPA clearly does not require the consumer to prove in every
case that misrepresentations were made knowingly or with the
intent to deceive.”
Owens v. DRS Automotive Fantomworks, Inc.,
764 S.E.2d 256, 260 (2014).
However, Owens does nothing to
alter the VCPA’s requirement that a plaintiff must “allege a
fraudulent misrepresentation of fact.”
Hamilton v. Boddie-Noell
Enter., Inc., No. 2:14CV00051, 2015 WL 751492, at *2 (W.D. Va.
Feb. 23, 2015) (quoting Nationwide Mut. Ins. Co. v. Overlook,
LLC, 785 F. Supp.2d 502, 533 (E.D.Va. 2011)).
As it would
considerably expand the scope of liability if puffery and
opinions were considered actionable misrepresentations under the
VCPA, this Court will not read that intent into the Supreme
Court of Virginia’s opinion in Owens.
Accordingly, as Plaintiff
alleges only puffery and fails to allege a misrepresentation of
fact, he fails to properly state a cause of action under the
VCPA.
Because Plaintiff has failed to allege a
misrepresentation of fact by Defendant, he has failed to state a
16
cause of action under either fraud or the VCPA and the Court
grants Defendant’s Motion for Judgment on the Pleadings.
B.
Plaintiff’s Motion to Strike
Plaintiff requests that the Court strike paragraphs 55
and 57 of the Defendant’s Answer.
to Strike [Dkt. 6] at 2.)
(Pl.’s Mem. in Supp. of Mot.
In paragraph 55 of their Answer,
Defendant raises the affirmative defense of the statute of
limitations, and in paragraph 57 of their Answer, Defendant
raises the existence of a contractual exclusive remedy
provision.
With respect to paragraph 55, raising the statute of
limitations, Plaintiff argues that it is clear from the facts
admitted in Defendant’s Answer that the cause of action did not
accrue until September 24, 2013.
to Strike at 4.)
(Pl.’s Mem. in Supp. of Mot.
As this action was initially filed on
September 23, 2015, that would bring the action within the
statute of limitations by one day.
Defendant responds by
arguing that Plaintiffs claim may in fact have accrued prior to
September 24, 2013, the day Plaintiff moved into his
condominium.
(Def.’s Opp’n. to Mot. to Strike at 2.)
The Court
need not evaluate the merits of either party’s arguments
regarding the applicability of the statute of limitations in
order to resolve Plaintiff’s Motion to Strike.
It is
sufficient, at this point, to note that Plaintiff has failed to
17
demonstrate how he is prejudiced by the Defendant’s raising a
potential statute of limitations defense in their Answer.
See
Clark 152 F.R.D. at 70 (S.D.W.Va. 1993)(“even where technically
appropriate and well-founded, motions to strike defenses as
insufficient are often denied in absence of a showing of
prejudice to the moving party.”).
With respect to paragraph 57, raising the existence of
a contractual exclusive remedy provision, Plaintiff argues that
as Defendant had previously “agreed to waive any/all application
of the arbitration clause in the sales agreement as it applies
to this dispute,” via telephone conversation and e-mail,
Defendant should be prevented from raising the existence of a
contractual exclusive remedy provision.
Mot. to Strike at 4.)
(Pl.’s Mem. in Supp. of
Defendant responds by pointing out that
while the parties have waived application of the contract’s
arbitration clause, the exclusive remedy clause raised in
paragraph 57 of the Answer is an entirely separate clause.
(Def.’s Opp’n. to Mot. to Strike at 2.)
As Defendant points
out, while the arbitration clause dealt with the appropriate
venue for resolution of any disputes, the exclusive remedy
clause “collapses the universe of plaintiff’s potential remedies
. . . down into a smaller list of pre-agreed remedies.”
(Id.)
Plaintiff does not claim that Defendant has waived the
application of this separate exclusive remedy clause.
18
Because
the Plaintiff has not shown how the presence of either paragraph
55 or paragraph 57 of Defendant’s Answer would prejudice him in
any way and motions to dismiss pursuant to Rule 12(f) are
generally viewed with disfavor, the court denies Plaintiffs
motion to strike.
C.
Plaintiff’s Motion for Summary Judgment
Summary judgment is appropriate when the pleadings and
the record demonstrate that “there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law.”
Fed. R. Civ. P. 56(c).
“Generally
speaking, ‘summary judgment [must] be refused where the
nonmoving party has not had the opportunity to discover
information that is essential to his opposition.’”
Harrods
Ltd., 302 F.3d at 244 (quoting Anderson, 477 U.S. at 250).
In
fact, in his own brief in support of his Motion for Summary
Judgment, Plaintiff declares, “[a]s a general rule, summary
judgment is not appropriate prior to the completion of
discovery.”
(Pl.’s Mem. in Supp. of Mot. for Summary Judgment
[Dkt. 16] at 7.)(citing Anderson, 477 U.S. at 250.)
The Court
agrees, and denies Plaintiff’s Motion for Summary Judgment.
IV. Conclusion
For the foregoing reasons, the Court grants
Defendant’s Motion to Dismiss, denies Plaintiff’s Motion to
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Strike, and denies Plaintiff’s Motion for Summary Judgment. An
appropriate Order shall issue.
December 4, 2015
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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