Verrett v. General Motors Automotive Group
Filing
19
MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 08/26/2016. (tjoh, )
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IN THE UNITED STATES DISTRICT COURT
AU3 2 6
;
•U
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
CLERK, U.S. DISTRICT COURT
RICHMOND. VA
JOSEPH W. VERRETT, SR.
Plaintiff,
Civil Action No. 3:15CV416-HEH
V.
GENERAL MOTORS
AUTOMOTIVE GROUP,
Defendant.
MEMORANDUM OPINION
(Dismissing Complaint Without Prejudice)
Joseph W. Verrett, Sr., a Virginia inmate proceeding pro se and informa pauperis,
filed this Complaint against General Motors Automotive Group ("GM"). The matter is
before the Court for evaluation pursuant to 28 U.S.C. § 1915(e)(2).
I.
PRELIMINARY REVIEW
Pursuant to the Prison Litigation Reform Act ("PLRA") this Court must dismiss
any action filed by a prisoner if the Court determines the action (1) "is frivolous" or (2)
"fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B). The
first standard includes claims based upon "an indisputably meritless legal theory," or
claims where the "factual contentions are clearly baseless." Clay v. Yates, 809 F. Supp.
417, 427 (E.D. Va. 1992) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). The
second standard is the familiar standard for a motion to dismiss under Fed. R. Civ. P.
12(b)(6).
"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;
importantly, it does not resolve contests surrounding the facts, the merits of a claim, or
the applicability of defenses." Republican Party ofN.C. v. Martin, 980 F.2d 943, 952
(4th Cir. 1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim,
a plaintiffs well-pleaded allegations are taken as true and the complaint is viewed in the
light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 1 F.3d 1130, 1134 (4th
Cir. 1993); see also Martin, 980 F.2d at 952. This principle applies only to factual
allegations, however, and "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." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
The Federal Rules of Civil Procedure "require[ ] only 'a short and plain statement
of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant
fair notice of what the ... claim is and the grounds upon which it rests.'" Bell AtI. Corp.
V. Twombly, 550 U.S. 544, 555 (2007) (second alteration in original) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). Plaintiffs cannot satisfy this standard with complaints
containing only "labels and conclusions" or a "formulaic recitation of the elements of a
cause of action." Id. (citations omitted). Instead, a plaintiff must allege facts sufficient
"to raise a right to relief above the speculative level," id. (citation omitted), stating a
claim that is "plausible on its face," id. at 570, rather than merely "conceivable." Id. "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."
Iqbal, 556 U.S. at 678 (citingBellAtl. Corp., 550 U.S. at 556). In order for a claim or
complaint to survive dismissal for failure to state a claim, the plaintiffmust "allege facts
sufficient to state all the elements of [his or] her claim." Bass v. E.L DuPont de Nemours
& Co., 324 F.3d 761, 765 (4th Cir. 2003) {citingDickson v. Microsoft Corp., 309 F.3d
193, 213 (4th Cir. 2002); lodice v. UnitedStates, 289 F.3d 270, 281 (4th Cir. 2002)).
Lastly, while the Court liberally construes pro se complaints, Gordon v. Leeke, 574 F.2d
1147, 1151 (4th Cir. 1978), it will not act as the inmate's advocate and develop, sua
sponte, statutory and constitutional claims that the inmate failed to clearly raise on the
face of his complaint. See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J.,
concurring); Beaudett v. City ofHampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
11.
SUMMARY OF ALLEGATIONS
In his Complaint, Verrett alleges:^
1. That on or about and throughout the year 2005 to the year 2013,
the Defendant was manufacturing and selling automobiles under the
company "General Motors" name and brand.
2. That in that same time period, the Plaintiff purchased a GM
automobile from a licensed GM dealer, namely Rosenthal Automotive in
Arlington, VA.
3. That under such purchase agreement all warranties to such
automobile were in place and no waiver of such occurred.
4. That on or about July 5, 2013 while Plaintiff was driving the
purchased automobile, a 2006 Chevrolet Cobalt the car/automobile shut
off/engine stopped working causing the Plaintiff to strike a guard rail
several times.
5. That Chevrolet is a brand under the GM company's ownership
and control.
6. That upon striking the guard rail due to loss of control due to the
engine stopping, the air bags did not deploy.
' The Court utilizes the pagination assigned to Verrett's Complaint bythe CM/ECF system. The
Court corrects the spelling and punctuation in quotations from Verrett's Complaint.
7. That Plaintiff was injured in this accident and was treated for such
injuries at Duke University Hospital in North Carolina.
(Compl. 2, ECF No. 1.) Verrett seeks $6 million in damages, as well as "any other relief
that the Court deems just." {Id. at 8.)
In his Complaint, Verrett raises the following claims against GM:
Claim One:
Negligence
Claim Two:
Fraud
Claim Three: Intentional infliction of emotional distress; and
Claim Four: Breach of contract.
{Id. at 4-7.) The Court properly has "originaljurisdiction of all civil actions where the
amount in controversy exceeds the sum or value of $75,000, exclusive of interests and
costs, and is between—(1) citizens of different States ...." 28 U.S.C. § 1332(a)(1).
Here, according to Verrett, the parties are domiciles of two different states (Compl. 1),
and Verrett seeks $6 million in damages from GM {id. at 8). Thus, the Court has
jurisdiction over this matter pursuant to 28 U.S.C. § 1332.
III.
NEGLIGENCE
In Claim One, Verrett asserts a cause of action for negligence against GM. Verrett
contends that GM, "as an automotive manufacturer, owed a duty to those who
purchase[d] their automobiles that such car[s] will be safe and free of defects which may
cause serious injury." {Id. at 4.) According to Verrett, GM "breached this duty by
producing and selling a car that was defective." {Id.) Verrett alleges that GM "directly
caused damages and injuries" to him by breaching this duty and selling unsafe cars. {Id.)
"The essential elements of a negligence claim in Virginia, as elsewhere, are (1) the
identification of a legal duty of the defendant to the plaintiff; (2) a breach of that duty;
and, (3) injury to the plaintiff proximately caused by the breach." Talleyv. Danke Med.,
Inc., 179 F.3d 154, 157 (4th Cir. 1999) (citation omitted). With respect to a breach of a
legal duty, "[n]egligence, in law, involves the conception of a duty to act in a certain way
toward others, and a violation of that duty by acting otherwise." RGR, LLC v. Settle, 764
S.E.2d 8, 16 (Va. 2014) (quoting Cleveland v. Danville Traction & Power Co., 18 S.E.2d
915 (Va. 1942)). Therefore, "[a]n action for negligence only lies where there has been
failure to perform some legal duty which the defendant owes to the party injured."
Balderson v. Robertson, 125 S.E.2d 180, 183 (Va. 1962) (citations omitted) (internal
quotation marks omitted). Here, Verrett's Complaint is devoid of facts suggesting that
GM owed a legal duty to him, and that GM breached that duty. See Featherall v.
Firestone Tire and Rubber Co., 252 S.E.2d 358, 367 (Va. 1979) (concluding that
defendant manufacturer had no duty to the plaintiff when "there was no sufficient proof
that [the product] was dangerous or that any dangerous condition existed which may have
resulted from the manufacture of the piece").
With respect to proximate cause, "[i]n Virginia, an injury is proximately caused by
a defendant's negligence if the injury is the natural and probable consequence of the
negligence." Russo v. United States, 37 F. Supp. 2d 450,452 (E.D. Va. 1999) (citing
Wyatt V. Chesapeake & Potomac Tel. Co., 163 S.E.2d 370 (Va. 1932)). "[T]he concept
of proximate cause 'excludes from the scope of liability injuries that are too remote,
purely contingent, or indirect[].'" Manchanda v. Hays Worldwide, LLC, 142 F. Supp. 3d
465, 470 (E.D. Va. 2015) (alterations in original) (quoting Wagoner v. Commonwealth,
756 S.E.2d 165, 175 (Va. Ct. App. 2014)). Here, Verrett has failed to allege facts
suggesting that GM's actions were the proximate cause of his injuries. A problem with a
vehicle can be attributed to numerous causes, including how the vehicle is operated and
maintained by its owner. Cf.Logan v. Montgomery Ward& Co., 219 S.E.2d 685, 687
(Va. 1975) (noting the same for gas ranges).
Verrett's allegation of negligence against GM simply amounts to nothing more
than an "unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Accordingly, Claim One will be dismissed without prejudice.
IV.
FRAUD
In Claim Two, Verrett asserts that GM committed fraud. Specifically, Verrett
contends that GM "through its sales and representations of its car's safety did cause the
plaintiffto rely on such representations and believe that the plaintiff had purchased a safe
and drivable car." (Compl. 5.) Verrett alleges that he relied on these representations "to
his detriment."
In Virginia, the elements of common law fraud are: "'[A] false representation of a
material fact; made intentionally, in the case of actual fraud, or negligently, in the case of
constructive fraud; reliance on that false representation to [plaintiffs] detriment; and
resulting damage.'" Shuler v. Partner JD, No. 3:15CV170-HEH, 2015 WL 5020898, at
*4 (E.D. Va. Aug. 20, 2015) (alterations in original) (quoting Capterton v. A.T. Massey
Coal Co., 740 S.E.2d 1, 9 (Va. 2013)). Moreover, "[t]he heightened pleading standard of
Fed. R. Civ. P. 9(b) applies" to Verrett's claim for fraud. Blount v. Greenbrier Pontiac
Oldsmobile-GMC Trucks Kia, Inc., No. 3:08CV622, 2009 WL 2431587, at *6 (E.D. Va.
Aug. 7, 2009). Rule 9(b) provides that when "alleging fraud or mistake, a party must
state with particularity the circumstances constituting fraud or mistake." Fed. R. Civ. P.
9(b). Specifically, Verrett "must plead with particularity the time and place the
misrepresentations were made, the contents of those misrepresentations, the identity of
the individual making the misrepresentation, what the individual making the
misrepresentation gained from making it, and thatthe aggrieved party reasonably and
detrimentally relied on those representations." Sewraz v. Nguyen, No. 3:08CV90, 2011
WL 201487, at *8 (E.D. Va. Jan. 20, 2011) (quoting Scott v. GMACMortg, LLC, No.
3:10CV24, 2010 WL 3340518, at *7 (W.D. Va. Aug. 25, 2010); Fed. R. Civ. P. 9(b)).
Here, Verrett's claim fails to meet the heightened pleading standard of Rule 9(b).
Verrett fails to allege any particulars regarding the misrepresentations GM allegedly
made concerning the vehicle Verrett purchased. See Blount, 2009 WL 2431587, at *6
(finding that the "[p]laintiff has failed to allege with the requisite specificity that [the
defendant] intentionally or negligently made a false representation of fact on which
Plaintiff relied"); see also Sewraz, 2011 WL 201487, at *8. Like his allegation of
negligence, Verrett's claim of fraud simply amounts to nothing more than an "unadorned,
the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Accordingly, Claim Two will be dismissed without prejudice.
V.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
In Claim Three, Verrett alleges that GM is liable for intentional infliction of
emotional distress. Specifically, Verrett claims that "by causing, through willfiil and
wanton negligence constituting a complete disregard for the plaintiffs safety, severe and
intentional damages and injuries, [GM] did cause intentional emotional distress such as
recurrent mental trauma, nightmares, phobias and other mental disorders." (Compl. 6.)
To state a claim for intentional infliction of emotional distress under Virginia law,
a plaintiffmust allege that "1) the wrongdoer's conduct was intentional or reckless; 2) the
conduct was outrageous or intolerable; 3) there was a causal connection between the
wrongdoer's conduct and the resulting emotional distress; and 4) the resulting emotional
distress was severe." Almy v. Grisham, 639 S.E.2d 182, 186 (Va. 2007) (citations
omitted). "Because the tort of intentional infliction of emotional distress is 'not favored'
under Virginia law, a high standard for pleading such a claim exists." Blount v.
Greenbrier Pontiac Oldsmobile-GMC Trucks Kia, Inc., No. 3:08CV622, 2009 WL
2431587, at *7 (E.D. Va. Aug. 7, 2009). Thus, an individual "alleging a claim for
intentional infliction of emotional distress must allege ... all facts necessary to establish
the cause of action in order to withstand challenge on [a motion to dismiss]." Almy, 639
S.E.2d at 187 (citations omitted). As discussed below, Verrett satisfies none of the above
elements required to state a claim for intentional infliction of emotional distress with his
vague allegations.
Verrett's failure to specifically identify the conduct in which GM allegedly
engaged is fatal to his claim for relief Because of this failure, Verrett has not alleged
sufficient facts to meet the first three elements set forth above. First, Verrett fails to
suggest that GM's conduct "was intentional or reckless." Almy, 639 S.E.2d at 186. The
Complaint is simply devoid of facts alleging that GM "engage[d] in conduct for the
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specific purpose of causing emotional distress" or acted "recklessly ... without regard to
the risk of causing emotional distress to [Verrett] when [it] knew or could have been
expected to know of the risk." Williams v. Agency, Inc., 997 F. Supp. 2d 409, 414 (E.D.
Va. 2014) (citations omitted). Second, Verrett fails to allege any conduct by GM that
was "so outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community." Almy, 639 S.E.2d at 187; see Blount, 2009 WL 2431587, at *7 (citation
omitted). Third, because Verrett has failed to identify GM's conduct, he fails to allege,
facts that suggest a connection between that conduct and Verrett's resulting distress, as
the Complaint is devoid of facts alleging that GM's "outrageous conduct was the actual
cause of his distress." Williams, 997 F. Supp. 2d at 414 (citation omitted).
Finally, Verrett fails to allege any facts suggesting that the "resulting emotional
damage was severe." Almy, 639 S.E.2d at 186 (citations omitted). While Verrett does
allege that he suffered injuries such as "recurrent mental trauma—nightmares, phobias
and other mental disorders," (Compl. 6), these emotional damages do not rise to the
requisite level of severity. See Almy, 639 S.E.2d at 188 (finding that allegations of
professional counseling and incapability of performing work or family responsibilities
were insufficient to state a claim for intentional infliction of emotional distress).
While Verrett does allege that GM acted "willful[ly] and wanton[ly]", such "labels
and conclusions" are insufficient to "raise a right to relief above the speculative level."
BellAtl Corp. v. Twombly, 550 U.S. 544, 555 (2007). Because Verrett has not alleged a
plausible claim for intentional infliction of emotional distress by GM, Claim Three will
be dismissed without prejudice.
VL
BREACH OF CONTRACT
In Claim Four, Verrett asserts a breach of contract claim against GM. Verrett
contends that he and GM "entered into a written and understood contract when the
plaintiff purchased in Virginia an automobile from a licensed dealer of the defendant."
(Compl. 7.) Verrett further alleges that GM "default[ed] on this contract by selling to the
plaintiff a car it knew to be unsafe and defective." {Id.)
"Under Virginia law, "[t]he elements of a breach of contract action are (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.'" Eplus Tech., Inc. v. Nat'I R.R. Passenger Corp., 407 F. Supp. 2d 758,
761 (E.D. Va. 2005) (alteration in original) (quoting Filakv. George, 594 S.E.2d 610
(Va. 2004)). To survive dismissal, a complaint alleging breach of contract must contain
facts supporting each element set forth above. See Bell Atl Corp. v. Twombly, 550 U.S.
544, 563 n.8 (2007).
Here, Verrett fails to allege the existence of a contract between himself and GM.
Instead, he claims that GM was somehow a party to the contract between himself and the
licensed dealer where he purchased the vehicle. Verrett simply fails to allege facts
plausibly suggesting that GM was a party to a contract with him and the licensed dealer,
thereby creating a legally enforceable obligation. See Salehi v. Wells Fargo Bank, N.A.,
No. 1:11-CV-1323, 2012 WL 2119333, at *4 (E.D. Va. June 11, 2012) (granting a
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motion to dismiss a breach of contract claim because the plaintiffs amended complaint
"never allege[d] that there [was] a direct contractual relationship between" the plaintiff
and defendant). Moreover, even if a contract somehow existed between Verrett and GM,
Verrett has failed to allege how GM breached the contract or that his injury was caused
by an alleged breach.^ Accordingly, Verrett fails to state a claim for breach ofcontract.
Therefore, Claim Four will be dismissed without prejudice.
VIL
CONCLUSION
For the foregoing reasons, Verrett's claims will be dismissed without prejudice.
The action will be dismissed without prejudice.
An appropriate Order will accompany this Memorandum Opinion.
Is/
HENRY E. HUDSON
Date:
UNITED STATES DISTRICT JUDGE
Richmond, Virginia
^Verrett does not allege the purchase price ofthe vehicle inhis Complaint. The Statute of
Frauds and section 8.2-201(1) of the Virginia Code require that for a contract involving an
amount greater than $500.00 to be enforceable, "the Plaintiff must produce a writing 'signed by
the party against whom enforcement is sought.'" PC-Expanders Inc. v. Subsystem Techs. Inc.,
No. 110558, 28 Va. Cir. 231, 1992 WL 884721, at *2 (Va. Cir. Ct. June 8, 1992). The Court
doubts that a contract between GM and Verret exists. Even assuming that such a contract exists,
if Verrett purchased the vehicle for more than $500.00, his failure to produce the alleged contract
between himself and GM renders it unenforceable in the instant action.
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