Andre Alexander v. Southeastern Wholesale Corp. et al

Filing 57

MEMORANDUM OPINION AND ORDER that the 45 Defendant's Motion toDismiss is DENIED. Signed by Chief District Judge Rebecca Beach Smith and filed on 10/17/2013. (rsim, )

FILED
UNITED

STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

OCT 1 7 2013

Norfolk Division

CLERK, US. DISTRICT COURT
NORFOLK. VA

ANDRE ALEXANDER,
v.

ACTION NO.

2:13cv213

SOUTHEASTERN WHOLESALE CORP.,

t/a Bay Auto Wholesale, and
JASON D.

ADAMS,

INC.,

t/a Autos by Choice,
Defendants.

MEMORANDUM OPINION AND

This

matter

comes

before

the

court

Plaintiff's Second Amended Complaint
stated herein,

ORDER

on

a

Motion

("Motion").

to

Dismiss

For the reasons

the Motion is DENIED.

I. Factual and Procedural Background

On or about August 16, 2010,
Inc.,

trading as

Autos

By Choice

the Defendant,

Jason D. Adams,

("Autos by Choice"),

purchased

a 2003 Dodge Ram pickup truck for approximately $6,000.

Compl.

1 5.

At

the time of

displayed 29,580 miles.

2d.

August

Southeastern

("Bay Auto"),

19,

2010,

Wholesale

for

the odometer incorrectly

Am.

18.

Compl.

Autos

Corp.,

$9,100

Am.

this sale,

had over 100,000 miles on it. 2d. Am. Compl.
On

2d.

by

Choice

trading

and certified

correct to the best of its knowledge.

as

the

2d. Am.

In

fact,

the

truck

SI 9.
sold
Bay

the
Auto

odometer
Compl.

truck

to

Wholesale

reading

SI 14.

as

Bay Auto

subsequently

sold

the

truck

to

the

Plaintiff,

Andre Alexander ("Alexander"). On August 24, 2010, the Plaintiff

made

a

down

payment

of

$5,000

on

the

truck,

and

on

August 27, 2010, the sale became final for a purchase price of
$13,994.09. 2d. Am. Compl. SISt 18, 21.

In late June or early July,
the

truck

discovered

inaccurate

to
that

and

2d. Am. Compl.
time

he

Impex
the

Auto

the

SI 26. The

discovered

Sales

mileage

required

the

2011,

the Plaintiff traded in

("Impex").

displayed

Plaintiff

to

on

the

take

Plaintiff alleges
odometer

Impex,

however,

odometer

back the

was

truck.

this was the first

discrepancy.

2d.

Am.

Compl.

SI 26. He attempted to rescind the transaction with Bay Auto but

Bay Auto refused to cancel the sale. 2d. Am. Compl. SIS! 27-28.
The

Plaintiff

April 22, 2013,

filed

his

Amended

30, 2013,

No.

complaint

on

against Bay Auto and Autos by Choice. After the

court granted two successive motions
Second

original

and is

Complaint

to amend,

("Complaint")

was

now the operative complaint

44.1 On August 20, 2013,

the Defendant,

the Plaintiff's
filed

on

in this case.

July
ECF

Autos by Choice,2

1 Bay Auto is no longer in business and has not filed a response
to the operative Complaint,

and default was entered by the Clerk

as to Bay Auto on October 4, 2013. ECF No. 55.

2 Throughout this opinion,

reference to "the Defendant" is to

Autos by Choice. See supra note 1.
2

filed

the

Motion

to

Dismiss.

ECF No.

45.

The

Motion

has

been

fully briefed, and is now ripe for review.
II.

Standard of Review

Federal Rule of Civil Procedure 8(a) provides,

in pertinent

part, "[a] pleading that states a claim for relief must contain
. . . a short and plain statement of the claim showing that the

pleader is entitled to relief."
detailed
labels

factual

and

allegations,

The complaint need not have

but

conclusions ....

Rule

[A]

8

"requires

formulaic

elements of a cause of action will not do."

v.

Twombly,

dismiss,

a

550

U.S.

544,

complaint

555

must

(2007).

contain

more

recitation

than

of

the

Bell Atlantic Corp.

"To survive

sufficient

a motion

factual

to

matter,

accepted as true, to 'state a claim to relief that is plausible
on

its

face.'"

Ashcroft

(quoting Twombly,

550 U.S.

that a "plaintiff pleads
to

draw

the

v.

reasonable

facts

is,

consist[ency]"
U.S.

at 557).

with

U.S.

Facial

662,

678

(2009)

plausibility means

factual content that allows the court
inference

therefore,

demonstrating

556

at 570).

for the misconduct alleged."
556) . It

Iqbal,

not
a

Id.

the

defendant

(citing Twombly,

enough

"sheer

unlawful

that

for

a

conduct.

Id.

liable

550 U.S.

plaintiff

possibility"

is

or

to

at

allege
"mere[]

(citing Twombly,

550

The Supreme Court,

in Twombly and Iqbal,

offered guidance

to courts evaluating a motion to dismiss:
In
keeping
with
these
principles
a
court
considering a motion to dismiss can choose to begin by
identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption
of truth. While legal conclusions can provide the
framework of a complaint, they must be supported by
factual
allegations.
When
there
are
well-pleaded
factual
allegations,
a
court
should
assume their
veracity and then determine whether they plausibly
give rise to an entitlement to relief.
Iqbal, 556 U.S. at 67 9. That is, the court accepts facts alleged

in the complaint as true and views those facts in the light most
favorable

to

418,

(4th

420

the

plaintiff.

Cir.

complaint states

2005).

Venkatraman

Overall,

v.

REI

Sys.,

"[d]etermining

a plausible claim for relief will

417

F.3d

whether

...

a

be a

context-specific task that requires the reviewing court to draw
Iqbal,

on its judicial experience and common sense."
at

556 U.S.

679.

Ill. Analysis

The Plaintiff has alleged four grounds
is

a

Cost

claim

based

Savings

Act

on

the

federal

("Odometer

Motor

Act").

for relief.

Vehicle

Count

II

Count I

Information

is

asserted

and

only

against Bay Auto,

which is in default,3 not against Autos by

Choice.

is

Count

Protection Act

III

a

("VCPA").

3 See supra note 1.

claim

based

on

the

Virginia

Consumer

Count IV is a Virginia common law fraud

claim.

III,

The

and

Defendant

IV

fail

asserts

to

state

that

a

the

claim.

pleadings

The

court

for

Counts

considers

I,

each

argument in turn.
A.

Statute of Limitations

The Defendant first argues that the Plaintiff has not filed
his

claims

under

limitations
Virginia

Counts

periods

Consumer

I,

for

III,

and

IV

within

claims based on

Protection

Act,

the

and

the

applicable

Odometer Act,

common

law

the

fraud,

respectively. Def.'s Mem. Supp. at 4, 10, 13.
1. Motor Vehicle Information and Cost Savings Act

The Odometer Act specifies that an "action must be brought
not

later

than

2

49 U.S.C. § 32710(b).
of action is

years

after

the

claim

accrues."

Both parties agree that because the cause

based on the fraudulent

intent of the seller,

the

federal "discovery rule" applies.

[W]here a plaintiff has been injured by fraud and
"remains in ignorance of it without any fault or want
of diligence or care on his part,
the bar of the
statute does not begin to run until the fraud is
discovered, though there be no special circumstances
or efforts on the part of the party committing the
fraud to
party."

conceal

it

Holmberg v. Armbrecht,
v.

Glover,

accrue

88

until

U.S.

the

342

time

from

the

327 U.S.
(1875)).

that

the

knowledge

392,
The

397

of

(1946)

cause

Plaintiff

of

the

other

(quoting Bailey
action

"discovered,

does

not

or

had

failed

in

reasonable

diligence

to

discover,

the

alleged

deception." Id.
In this case,

the Defendant first argues that the Plaintiff

should have known of the inaccuracy when he purchased the truck

from

Bay

Auto,

the

same

as

the

Plaintiff

alleges

in

the

Complaint that the Defendant should have known of the inaccuracy
when

it purchased

reasoning,

truck.

Def's

Mem.

Supp.

at

the Defendant's constructive knowledge,

the Complaint,
had

the

5.

By

this

as alleged in

would necessarily imply that the Plaintiff also

constructive

knowledge,

to run on August 27,

causing

the

statute of

limitations

2012, two years from the date he purchased

the truck from Bay Auto.

This

equivalency

constitutes

is

"reasonable

incorrect.

diligence"

A

determination

would

account the situation of the party in question.
a

commercial

Plaintiff
the

is

Plaintiff

seller

not.
and

of

2d.
the

vehicles.

Am.

2d.

Compl.

f

Am.

1.

Defendant means

that

into

The Defendant is

Compl.

This

what

take

necessarily

of

SISI

3,

difference

what

is

14.

The

between

reasonable

to

expect the Defendant to have known is not necessarily reasonable

to

expect

the

Plaintiff

to

have

known.

Viewing all

facts

in a

light most favorable to the Plaintiff does not lead the court to
conclude,

at

this

juncture,

that

it

was

reasonable

for

the

Plaintiff,

as

an

individual

consumer,

to

have

known

of

the

odometer inaccuracy.4
The Defendant argues in the alternative that the statute of
limitations period should start against all future plaintiffs in
the chain of title when Bay Auto,
to the Plaintiff,

the direct seller of the truck

first had "knowledge of,

or duty to discover,

the inaccuracy of the odometer . . . ." Def's Mem.
The

issue

is

whether

the

statute

of

limitations

Supp. at 5.

begins

to

run

against a particular plaintiff when that plaintiff has knowledge
of

the

inaccuracy,

potential

or

whether

it

begins

to

run

against

all

plaintiffs whenever any plaintiff has knowledge of a

violation.

This

issue

is

a matter

of

first

impression

in

this

court.

The
Edens,

Defendant

Inc.,

the

court

run

as

to

plaintiffs

488

relies

F.

Supp.

primarily
276,

281

held that "the Act's
a

at

violation

the

of

time

Byrne

(N.D.

111.

statute of

the

any

on

Act

as

person

v.

Autohaus

1980).

having

all

of

fraudulent

concealment."

Id.

To

do

to

potential

standing

discovers or constructively discovers the violation,
act

In Byrne,

limitation begins

against

on

to

sue

absent some

otherwise,

the

court

4 This conclusion at this early stage of the litigation on a
motion
to
dismiss
does
not
mean
that
factually,
through
discovery, the Defendant cannot establish an earlier date, when
the

Plaintiff

either

knew

or

should

have

known

of

inaccuracy, than he alleges. See 2d. Am. Compl. SI 26.

the

odometer

held,

would

"subject

a

violation

of

the

Act

to

potential

liability throughout the life of a vehicle." Id.
The

court

theories.

in

First,

Byrne

the

based

court

held

its

reasoning

that

creates a single cause of action,

held

vehicle as

that

"knowledge

two

violation

of

legal

the

Act

not as many causes of action

as there might be subsequent owners."
court

"a

on

possessed

Id.
by

at 280. Second, the
an

owner

of

a

motor

to a previous owner's possible violation of the Act

should be imputed to all subsequent owners.
Under this theory,

..." Id. at 281.

the statute of limitations begins to run when

Bay Auto knew or should have known about the inaccuracy, which
would preclude the Plaintiff from pursuing this cause of action.
The Plaintiff points to other courts that have declined to
follow

Byrne.

Chevrolet,

1995),

the

PL's

Inc.

v.

court

Mem.

Willis,

examined

Opp'n
890

Byrne

at

F.

8-10.

Supp.

and

In

John

1004,

1010

determined

Watson

(D.

that

Utah

it

had

"wrongly assumed that a statute of limitations is the same thing

as a statute of repose,"5 and that interpreting the statute that
way would be "a ludicrous reading of the statute." 890 F.
at

1010

n.

11.

Moreover,

the

court

refused

to

read

an

Supp.

imputed

knowledge standard onto the federal discovery rule. Id. at 1010.
5 Statutes

of

limitations

are measured

from

the

violation

of

a

legal right, but statutes of repose are measured from a date
unrelated to the injury. John Watson, 890 F. Supp. at 1010 n.
11.
8

Similarly,
931

(D. Ariz.

belongs

to

in Carrasco v.
1997),

each

the

Fiore

court

purchaser,

Enterprises,

held

who

that

may

985

F.

"the cause

bring

a

of

of

cause

action

action

against all prior owners who violated the Act." 985 F.
938.

the

Supp.

Supp. at

The court in that case examined the legislative history of

act,

policy

which

against

described

odometer

being

victimized by

court

also

statute

looked

that

an

49

provides

to

create

"a

national

tampering

and

prevent

abuses."

Id.

(citation omitted).

such

to

intention

U.S.C.

for

§ 32710(a),

treble

damages.

consumers

the

Id.

portion

The

from

of

The
the

legislative

history and elevated damages provision led the court to conclude
that

"the

purpose

"rather than

of

simply to

the

statute

provide

is

a means

to
of

punish"

violators,

recovery of

damages

for a defrauded purchaser." Id.
The

rule

formulated

in

John

Watson

and Carrasco states

that

the statute of limitations "begins to run as against a potential

plaintiff,
of

the

only when that plaintiff,

automobile,

knows

or

and not any other purchaser

reasonably

should

know

that

violation of the Federal Act has occurred."

John Watson,

Supp.

at

at

adopts

1010;

see

Carrasco,

985

F.

the John Watson/Carrasco rule,

Supp.

because

with the purposes of the statute. Carrasco,
John

Watson,

890

F.

Supp.

at

1006.

939.

to

do

court

comports

985 F. Supp.

Moreover,

890 F.

This

it best

a

at 938;

otherwise

would,

in

the

words

of

the

court

in

Carrasco,

"permit

one

wrongdoer, by discovering a fraud and failing to report it,

to

insulate another wrongdoer from liability by running the statute
of limitations against him." Carrasco, 985 F. Supp. at 939.
Accordingly,
the

Plaintiff,

limitations.
Plaintiff s

viewing all facts in a light most favorable to
his

The

claim

is

court

allegation

not

barred

accepts,

that

he

at

first

by

this

discovered

the

statute

of

juncture,
the

the

inaccuracy

in late June or early July of 2011. 2d. Am. Compl. SI 26.6
2.

State Law Claims

The Defendant makes a similar argument with respect to the
state law claims in Counts III and IV the Complaint.

Supp.
cause

at 10 and 13. The VCPA statute of limitations requires a
of

accrues.
common
cause

Def.'s Mem.

action
Code

Va.
law

of

exercise

to
§

fraud

discovered."

same requirement

Va.

the

§

The

Code

when

it

diligence

Code
as

within

59.1-204.1.

accrues

due
Va.

brought

claim.

action

of

be

two

same

is

is

8.01-249(1).

III.A.l.

See supra note 4.
10

true

§ 8.01-248.

This

should
is

discovery rule.

of
of

when

it

any state

Either

"discovered

reasonably

federal

years

or

type
by

have

essentially
See supra

of
the

been
the
Part

The Defendant again asserts that the Plaintiff "is held to
the same standard he alleges applies to the defendants,
claim of

fraud therefore accrued at

which occurred more
Def.'s Mem. Supp.
III.A.l,

this

constitutes

the time of his purchase,"

than two years before

he filed his claim.

at 13-14. As this court addressed, supra Part

argument

due

and his

assumes

diligence

by

an

the

equivalency

Plaintiff

and

between
the

what

Defendant.

Viewing all facts in a light most favorable to the Plaintiff, he
filed his claim within two years of when he allegedly discovered

the inaccuracy, so at this juncture his state law claims are not
barred by the statute of limitations.
B. Preemption
The

Defendant

claims based on

the

Odometer

next

asserts

that

the

Plaintiff's

state

law

the VCPA and common law fraud are preempted by

Act

under

the

concept

of

"obstacle

preemption."

Def.'s Mem. Supp. at 6.
There are three ways in which federal law may preempt state

law:

(1)

by

implication
scheme

that

implication

express
from

the

"depth

occupies
because

Lorillard Tobacco

type,

language

"conflict

Co.

of
v.

the
a

in
and

a

federal

breadth

legislative
conflict

Reilly,

preemption,"

533

occurs
11

if

of

a

a
525

or

federal
(2001).

either

(2)

by

congressional

field";

with
U.S.

statute;

(1)

(3)

by

statute.
The

third

compliance

with

both

the

federal

impossibility," Barnett
517

U.S.

25,

31

and

state

laws

is

Bank of Marion County,

(1996);

or

(2)

the

state

"a

physical

N.A. v.

law

Nelson,

"stands

as

an

obstacle to accomplishment and execution of the full objectives

of Congress." Louisiana
355,

356

(1986);

see

Pub.

Serv. Comm'n

Hines

v.

(1941) . Under the second type

v.

Davidowitz,

of

conflict

F.C.C.,
312

476 U.S.

U.S.

52,

preemption,

67

known as

"obstacle preemption," "it is not enough [to prevent preemption]

to say that the ultimate goal of both federal and state law" is
the

same.

(1987).

with

A

Int'l

Paper

state

law

the methods by

meet its goal.

Co.

can

v.

still

which

Ouellette,

be

the

preempted

federal

law

fraud

accomplishment
Congress."

does

and

not

"stand

execution

Louisiana

stated objectives
"(1)

U.S.

if

statute

it

481,

494

"interferes

is designed"

to

Id.

Allowing a plaintiff to bring an
common

479

of

Pub.

of

Serv.

Congress

in

action under the VCPA or
as

the

Comm'n,

an

obstacle

full
476

to

objectives

U.S.

at

356.

the

of
The

enacting the Odometer Act are

to prohibit tampering with motor vehicle odometers;

and (2)

to provide safeguards to protect purchasers in the sale of motor
vehicles with altered or reset odometers." 49 U.S.C.

Allowing alternative causes

protection

statute

or

of action based on a

common

law

12

fraud

does

§ 32701(b).

state consumer

not

stand

as

an

obstacle to these objectives.

On the contrary,

it comports with

and furthers them.

Additionally,

the

state

laws

do

not

methods by which the federal statute
goal.

Int' 1 Paper Co. , 479 U.S.

interfere

with

"the

is designed" to meet

at 494.

its

The examples cited by

the Defendant involve state laws that directly conflict with the

methods mandated by
Solid Wastes Mgmt.

federal
Ass'n,

statutes.

505 U.S.

See,

e.g.,

103

(1992)

88,

Gade v.

Nat'l

(holding that

a federal law restricts ways in which a state can promote worker
safety since the federal statute requires that state regulations

be approved by the Secretary of Labor); Geier v. Am. Honda Motor
Co.,

Inc.,

claim

529 U.S.

against

a

861,

car

874

(2000)

manufacturer

(finding that

for

failure

a common law

to

include

an

airbag in a vehicle was preempted because it directly conflicted
with

a

Department

of

Transportation

standard

that

did

not

require the airbag); see also Michigan Canners & Freezers Ass'n,
Inc.

v.

Aqric.

Mktg.

& Bargaining Bd.,

467 U.S.

461,

477

(1984)

(finding that although a Michigan law and a federal act shared
the

same

goal

of

increasing

producer's

bargaining

power,

the

method of establishing accredited associations was preempted by
the

federal

alternate

statute).

cause

of

In

action,

interfere with the methods

contrast,
the

state

of the

13

by

merely

laws

at

allowing

issue

federal statute.

here

for
do

an
not

A separate question is whether the treble damages provision
of

the

Odometer

Act

limits

damages

for fraud

under

because

the

state

law

forming

the

basis

of

posit

alternative

any

state

claims

the

law.
"(1)

Federal

forms

potential

of

The
stem

award

of

Defendant
from

Odometer

punishment

the

Act

punitive

argues
same

claim,

{such

as

that

conduct

and

(2)

punitive

damages)" the state laws employ a different method of achieving
the

goals

of

the

statute,

and

are,

therefore,

preempted

by

obstacle preemption. Def.'s Mem. Supp. at 9. The Defendant cites
Perez v. Z Frank Oldsmobile,

where

in

federal

dicta

the

Odometer

Act

court

Inc.,

223 F.3d 617

suggested

provision

for

it

(7th Cir.

would

treble

find

2000),

the

limited

damages

that

any

punitive damages based on common law fraud. Id. at 624.
It is not necessary for the court to decide at this time if

the treble damages provision of the

federal Odometer Act limits

the amount of punitive damages that are allowed pursuant to any
state claim for odometer-related fraud.
Yemm

Chevrolet,

{"The

claims.
plead

Perez

211

F.

decision

Supp.

2d

concerns

1036,

multiple

See,

e.g.,

1041

Strohmaier v.

(N.D.

remedies,

111.
not

2001)

multiple

It is too early in the process to disallow plaintiffs to
multiple

recoveries").

claims

The

based

amount

of

on

the

damages

possibility
available

to

claimant does not affect the validity of the claim.

14

of
a

multiple
successful

Accordingly,

this

court

finds

that

the

Plaintiff's

claims

based

on

the

VCPA

and common law fraud are not preempted by the Odometer Act.
C.

"Consumer Transaction" Under the VCPA

The VCPA makes

misrepresentations
Va.

it

unlawful

sold the truck to

consumer,"

as

lease,

The

Defendant

Bay Auto,

to make

asserts

that

and not directly to

consequently
defined

The VCPA defines a

sale,

supplier

by

it

the

"cannot

VCPA."

be

Def.'s

a

Mem.

license or offering for

as

"a

sale,

'consumer
Supp.

licenses

or

goods

Va.

Code

seller,

licensor
or

at

lease or license,

§ 59.1-198.

lessor

or

The

licensor

solicits or engages in consumer transactions,
distributor

involve a

9.

"consumer transaction" as the "advertisement,

purposes."

"supplier"

it

the Plaintiff,

goods or services to be used primarily for personal,
household

certain

because

sale between suppliers," and "did not

so

transaction'

a

"in connection with a consumer transaction."

Code § 59.1-200(A).

the sale was "a

for

who

services

advertises

to

be

and

resold,

family or

statute
who

of

defines

advertises,

or a manufacturer,
sells,

leased or

leases

or

sublicensed

by other persons in consumer transactions." Id.
Virginia courts

a

transaction

appear to be split on the issue of whether

between

suppliers

is

covered

by

Defendant cites Eubank v.

Ford Motor Credit Co.,

(Va.

which

Cir.

Ct.

2000),

in

a

15

Virginia

court

the
54

VCPA.

The

Va.

Cir.

170

held

that

the

VCPA did not

cover transactions

between

two car dealers.

Id.

at

172 (finding that because the vehicle sale at issue was between
merchants,

rather than with a consumer,

transaction") .

Another

Virginia

result by examining the
Merriman

Cir.

v.

Auto

Ct. 2001),

court

text of

Excellence,

it was not a "consumer
reached

the

the statute more

Inc.,

55

Va.

Cir.

opposite

closely.

330,

331

In
(Va.

the court wrote that the language "in connection

with a consumer transaction" does not "limit protection only to

those
the

transactions
ultimate

emphasized

that

occur

consumer."

the

directly

Id.

definition

at

of

between

330.

a

supplier

Moreover,

"supplier,"

the

which

and

court

explicitly

includes "a manufacturer or distributor" who sells goods "to be

resold

...

implying

by

that

and included.

Federal

Supp.

courts,

of

See,

2d 646,

only need be

in

between

consumer

suppliers

were

in

the

contrast,

VCPA,

required for
e.g.,

650

Branin

(W.D.Va.

have

holding

the
v.

been

anticipated

that

consistent

a

direct

transaction to
TMC

in

the

in their

sale

to

a

covered by

LLC,

832

F.

2011)("The allegedly fraudulent acts

'in connection with'

inclusion,

be

Enterprises,

a consumer transaction,

encompasses more than direct sales to consumers,

the

transactions,"

Id.

consumer is not
VCPA.

persons

transactions

interpretation

the

other

definition

16

of

which

as evidenced by

'supplier,'

of

'a

manufacturer,

leases

or

distributor or

licenses

sublicensed by

other

also Harris v.

Dist.

LEXIS

Greenbrier

cv-622,

goods

or services

persons

Universal

8913,

licensor who advertises and sells,

at

in consumer

Ford,

*3-4

to be

Inc.,

No.

{E.D.Va.

Pontiac Oldsmobile

-

resold,

transactions'");
3:00-cv-693,

Feb.

GMC Trucks

5,

2001);

Kia,

2009 WL 2431587, at *5-6 (E.D.Va. Aug.

The plain

language

of the VCPA,

the

Accordingly,
the VCPA,

Blount
No.

v.

3:08-

and the majority of the

transactions

at

see

2001 U.S.

Inc.,

support the conclusion that
one

or

7, 2009).

relevant precedent,
like

leased

issue

in

Count III of the Complaint,

the VCPA covers

the

present

case.

alleging a violation of

has sufficiently stated a claim.
D. Virginia Common Law

A party alleging fraud must prove "by clear and convincing
evidence:
(3)

made

mislead,

(1)

a

false

representation,

intentionally

(5)

reliance

and

by

(2)

knowingly,

the

party

of

a

(4)

misled,

material

with

and

Remley,
v.

270 Va.

Bershader,

209,

258 Va.

218

intent

(6)

damage to the party misled." State Farm Mut. Auto.

fact,
to

resulting

Ins. Co. v.

(2005)(quoting Prospect Development Co.

75,

85

(1999)).

The Defendant asserts that

Count IV of the Complaint fails to state a claim for common law
fraud

because

"there

was

no

misrepresentation

17

from

Autos

by

Choice

to

Alexander

upon

which

Alexander

could

rely."

Def.'s

direct

Mem. Supp. at 12.

In
contact

Virginia,
or

Mortarino

a

claim

privity

v.

of

between

Consultant

fraud

the

does

not

require

defendant

and

the

Engineering

Services,

(1996). A complaint must merely allege
or

had

reason

to

know

that

the

251

plaintiff.

Va.

289,

295

that the defendant

plaintiff

would

rely

knew

on

the

misrepresentation. Id. at 296.
This

rule

has

been

sellers of vehicles.

See

applied

Branin v.

to

cases

involving

TMC Enterprises,

remote

LLC,

832

F.

Supp. 2d 646 (W.D.Va. 2011) ("Plaintiff responds that [the remote
seller]

misrepresented

the mileage

misrepresentation would be
believing

the

Plaintiff

is

actual

car

had

correct

fraud

under

these

Ford Motor Credit Co.,

the

mileage

Virginia

than

law

Va.

Cir.

170

it

that

actually

recognizes

circumstances");

54

knowledge

the

repeated to induce a purchaser into

less

that

with

see

(Va.

a

also

Cir.

Ct.

did.

claim

of

Eubank

v.

2000) ("the

Supreme Court of Virginia has allowed an amendment of a pleading
to

allege

fraud

representation to

against

of fraud be alleged");
2001

U.S.

defendant

who

made

no

direct

the plaintiff and with whom the plaintiff had

no direct relationship.

cv-693,

a

It is merely necessary that the elements
Harris v. Universal Ford,

Dist.

LEXIS

8913,

18

at

*3-4

Inc.,
(E.D.Va.

No.

3:00-

Feb.

5,

2001)(holding
sum,

in

that

cases

no

"special

where

a

relationship"

plaintiff

against a remote seller,

is

is

asserting

required).
a

fraud

In

claim

a pleading is sufficient to sustain a

claim for fraud if it alleges that a remote seller knew or had
reason

to

know

that

a

subsequent

purchaser

would

rely

on

the

misrepresentation.

The

Defendant

relies

dismissed claims

for

In

court

Blount,

because

the

the

a

did

not

fraud.

court

representation

identify

any

Motorcars,

concluded that

reason to know"

This

that

to

was

WL

44

Va.

the

with

relied

who

Cir.

vehicles.

fraud

the

or

have

claim

requisite

negligently

upon,

and

further

perpetrated

the

alleged

2431587

remote

that

plaintiff's

intentionally

that

2009

cases

sellers of

allege

individual

3:08-cv-622,

of the car.

the

defendant

the

Virginia

remote

dismissed

that

Fredericksburg
the

fraud against

"failed

false

No.

two

complaint

specificity"
made

on

98

at

*6.

(Va.

In

Cir.

seller "did not

the plaintiff would be

Samuels

Ct.

v.

1997),

know or have

a future purchaser

Id.

case

is

distinguishable

Unlike the facts in those cases,

from

Blount

and

Samuels.

here the Complaint specifically

alleges that the Defendant had actual or constructive knowledge
about

(1)

the inaccuracy,

would

rely

on

that

and

(2)

the likelihood that consumers

misrepresentation.
19

2d.

Am.

Compl.

SI 31.

Accepting

the

viewing

facts

those

Plaintiff,

alleged

facts

in

in

the

the

Complaint

light

most

as

true,

favorable

and

to

the

establish that the Complaint has not failed to state

a claim for common law fraud.
E.

Ad Damnum Clause

Lastly, the Defendant argues that the Plaintiff's state law
claims in Counts III and IV of the Complaint should be dismissed

because

they

do

amount

of

rules.

Def.'s

not

damages

contain

sought,

Mem.

Supp.

an

as
at

ad

damnum

required
14.

The

by

clause

stating

Virginia

Plaintiff

the

procedural

asserts

that

a

specific ad damnum clause is not required by the Federal Rules
of Civil Procedure. PL's Mem. Opp'n at 17-18.
When

there

is

conflict

of Civil Procedure,

unless

it

is

Associates,
see

also

(1987);

there
point.

is

v.

a

or

Northern

R.

Co.

Plumer,

380

valid

Federal

Rule

of

8(a)(3).

or

This

a

Federal

Shady Grove

599 U.S.
v.

U.S.

Rule

Woods,

460,

Civil

Orthopedic

393,

398

480

U.S.

469-71

(2010);
1,

(1965).

Procedure

4-5

Here,

directly on

states that a claim for relief must contain

"a demand for the relief sought,
alternative

Co.,

v.

Rule 8(a) (3)

law and

invalid."

Allstate Ins.

Burlington

Hanna

state

federal courts always apply the federal rule

"inapplicable

P.A.

between

different

demand

does

types

not

20

which may include relief in the
of

have

relief."

to

be

Fed.

for

R.

a

Civ.

P.

particular

amount,

and

can

be

made

in

Siddig, 810 F. Supp. 2d 127,

general

terms.

See,

137 (D.D.C. 2011)

e.g.,

Doe

v.

(finding no need

to plead with particularity damages that would be expected to
flow from the plaintiff's

claims).

Complaint do request relief,
therefore

do

not

violate

in at

Rule

Counts

III and

IV of the

least general terms,

8(a)(3).

2d.

Am.

Compl.

SI

and
44-

45, 49.1
IV.

For

Dismiss

the

is

reasons

DENIED.

set

The

Conclusion

forth

Clerk

above,

is

the

DIRECTED

Defendant's

to

forward

Motion to

a

copy

of

this Memorandum Opinion and Order to counsel for the parties.
IT

IS

SO ORDERED.

JsL

Rebecca Beach Smith

.. .

Chief

r\r\^\

United States District Judge w&

REBECCA

BEACH

SMITH

CHIEF UNITED STATES

October

t1 <20

7 Moreover,

DISTRICT

JUDGE

13

a demand for relief is not part of a plaintiff's

statement of the claim. See, e.g., Bontkowski v. Smith, 305 F.3d
757,
762 (7th Cir.
2002) . Consequently,
failure to meet the
requirement of Rule 8(a) (3) is not grounds for a dismissal of
the claim under Rule 12(b) (6) . Id. Accordingly, even if the

Complaint failed to meet the requirements of Rule 8(a) (3), which
in fact it did not,

it would not fail to state a claim.

21