Brown et al v. Tompkins Builders, Inc. et al

Filing 13

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 12/6/2016. (jsmi, )

IN THE UNITED

STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

WILLIAM BROWN,
et al.,

JR.,

Plaintiffs,
Civil Action No.

V .

TOMPKINS BUILDERS,
et al.,

3:16cv599

INC.,

Defendants.

MEMORANDUM OPINION

This

THE

matter

COMPLAINT

Builders,

T.K.

Electrical

Brown
Jr.

(ECF

Inc.

("SBBC"),

is

before

No.

the

3),

(^'TBI") ,

Court

filed
S.B.

("Brown"),

("Allard").

Co.

LLC

David Collins

(ECF No.

the

Inc.

3)

MOTION

TO

Defendants,

DISMISS

Tompkins

Construction
(''Davis,

{"Watson

("Collins"),

For the reasons

DISMISS THE COMPLAINT

by

the

Ballard

Davis Construction,

Construction

on

Company

Inc."),

Watson

Electrical"),

David

and Richard Allard,

set forth below,

the MOTION TO

will be granted and the action

will be dismissed with prejudice.

BACKGROUND

A.

Procedural Background

On

July

Complaint
himself

29,

2015,

William

(Civil Action No.
and

B&M

Hitech

Brown,

Jr.

("Brown")

3:15cv447,

ECF No.

1)

Electric

("B&M")

against

filed

a

on behalf of
Watson

Electrical,
Complaint
against
fraud;
"the

Craig

Myers,

alleged

the

(3)

Collins,

following

Brown and B&M
and

Brown,

and
(1)

claims:

in violation

breach of contract.

of

42

Allard.

discrimination

U.S.C.

§

The

1981;

(2)

That case will hereafter be

First Action."

On January 15,
(ECF No.

4),

and the

2016,

a MOTION TO DISMISS the First Action

filed by the above-named Defendants,

was granted,

First Action was dismissed with prejudice

(ECF No.

14)

because all three claims were found to be legally insufficient.

Although

the

Plaintiffs

appealed

that

judgment

to

States Court of Appeals for the Fourth Circuit,

the

United

the Plaintiffs

filed in this Court a NOTICE OF WITHDRAWAL of the appeal
Action No.

appeal

3:15cv447,

was

ECF No.

dismissed

by

the

17)

on February 2,

Fourth

Circuit

2016,

for

{Civil
and the

failure

to

prosecute on May 10, 2016 {ECF No. 19).

On July 16,
action.

the

Brown,

for

himself and B&M,

filed

this

This time the Complaint alleges only a claim of fraud.

See Compl.
"the

2016,

{Title Page,

Second
same

as

Action."
the

defendants

in

Electrical,

Brown,

The

fraud

the

and p.

fraud

claim

Second

Collins,

2).

in

This case will hereafter be

claim
the

Action

in

First

are:

and Allard.

the

Second

Action

TBI,

Action
The

SBBC,

is

named

Watson

The only difference in

parties between the First Action and the Second Action is that.

in

the

Second Action,

defendant,
B.

and adds TBI,

the

Complaint

deletes

SBBC and Davis,

Inc.

Craig

Myers

as

a

as defendants.

Factual Background

The TBI/SBBC

the

general

{a/k/a the Tompkins/Ballard)

contractor

responsible

Joint Venture was

for

the

construction of the Richmond City Jail Project

Compl.

1-3.^

Project.

Watson Electrical was

design

and

(the ''Project") .

a subcontractor on the

B&M^ had a subcontract with Watson Electrical for work

related to the security system for the Project.

at 4;

Exs.

B&C.

A Contractor Controlled Insurance Program

insurance

for

subcontractors

the
on

operations

the

of

Project.

Compl.

completed the application to enroll
Ex. A.

enrolled

The CCIP Contract provides,

SISI

('"CCIP")

provided

contractors
1-3;

in the CCIP.
inter alia,

Ex.

and

A.

Compl.

B&M

f

3;

that ''[p]remiums

^ The- Complaint erroneously alleges that Davis, Inc. was a part
of the Joint Venture.
Plaintiff does not appear to dispute that
Davis, Inc. was simply a subcontractor.

^ In the First Action, the parties determined that B&M was a sole
proprietorship owned by William Brown,
Jr.
This issue was
disputed between the parties and resolved.
This issue is
important because Brown is bringing the lawsuit on behalf of
himself and B&M.
In the previous case, this Court explained
that because B&M is a sole proprietorship owned by Brown, he may
represent B&M in a pro se capacity.
See Roberts v. UXB Int'l,
Inc. , 2014 WL 4187335, *3 (W.D. Va. 2014); RZS Holdings AW
PDVSA Petroleo S.A., 506 F.3d 350, 354 n.4 (4th Cir. 2007).
3

v.

for
Inc.

this
.

Program

.

Ex.

The
Ex.

are

After

responsibility

subcontract

for

reconciliation,

B&M

the

Tompkins

for CCIP deductions,

was

for

Builders,

$1,875,000.00.

Final Subcontract

a balance due to B&M for $5,833.00.
$66, 208.00

of

A.

original

C.l.

the

reflected

The reconciliation included

as well

as deductions

that were

made for problems that occurred during construction.

The

Complaint

alleges

that

''Watson

Electric

and

Dave

Collins committed an act of fraud by issuing deductions to the
Plaintiffs

[]

Plaintiffs'
deduction

Further,

of $66,208 when they had no legal authority in the

Contract
in

the

or any documentation whatsoever

name

of

the

CCIP

Program."

the Complaint alleges that Allard,

Electrical

created

Reconciliation",

a

false

and

listing

fraudulent

fraudulent

Compl.

Collins,
''Final

of

Plaintiffs

$81,312

Defendant.

and

request

deductions

punitive

compensatory damages

damages

Defendants

COMPLAINT

First,

4.

and Watson

of

$11,584,

Id. at 5.

in the

$5,000,000

amount

against

each

Id.

POSITIONS

All

of

H

a

Subcontractor

$66,208, $3,000, $520, for a gross total of $81,312.
The

to make

(ECF No.

relying

on

filed

3).

the

OF

the

PARTIES

pending

MOTION

TO

DISMISS

THE

They base their motion on two grounds.

judgment
4

in

the

First

Action,

the

Defendants

contend

judicata.

Plaintiffs'

judgment

the

arises

First
from

Action.

is

(1)

barred

in

the

First

Action;

Action;

the

same

Second,

the

the

claim made

as

did the

in

fraud

res

valid and

parties

or in privity with,

fraud

conduct

(2)

by

there was a prior

relief for fraud decided on the merits by a

Second Action are identical to,
in

claim

In the view of the Defendants,

claim for

final

that

the

in

the

the parties

Second Action

claim in

the

First

they argue that the Complaint fails to allege a

claim of fraud with particularity as required by Fed.

R.

Civ.

P.

9.

Plaintiffs take
Action

is

not

because:

(1)

defendants

the view that

identical
the

entities

to

the

Complaint
that

were

the

Complaint

Complaint

in
not

the
in

in

the

Second
the

in the Second
First

Action

First

names

Action;

the Complaint in the Second Action does not contain a
contract

or

PLANTIFFS'
DISMISS

[sic]

THE

Plaintiffs

9.

discrimination

do

Instead,

MOTION

COMPLAINT

not

TO

OF

address

claim.

DENY

THE

the

they re-assert,

MEMORANDUM

THE

and

(2)

breach of

SUPPORT

OF

DEFENDANTS'

MOTION

TO

(ECF

failure

in conclusory form,

of fraud presented in the Complaint.

as

IN

PLAINTIFFS

asserted

Action

No.

to

5).

satisfy

The

Rule

the allegations

DISCUSSION

A.

Res

Judicata

""Res
claim."

judicata prohibits relitigation of an identical legal
In re Ansari,

claim preclusion

state

law

is

controls

a

113 F.3d 11,

substantive

the

res

23

(4th Cir.

issue,

judicata

not

a

argument

1997).

Because

procedural

here

one,

presented.

Under Rule 1:6 of the Rules of the Supreme Court of Virginia,

claim for res
claim

for

relief

judgment;
other;

judicata is valid where:

{2}

and

WL3,

29,

No.

2013),

on

the

merits

by

there was a prior
a

valid

and

final

the parties are identical or in privity with each

(3)

the claim made in the later suit arises from the

same conduct,
the first

decided

"(1)

a

transaction,

suit."

Blick v.

3:13-CV-00002,

aff^d,

or occurrence as the claim filed in

539 F.

seeking to assert

Long Beach Mortgage Loan Trust 2005-

2013

WL

1319369,

App'x 126

the doctrine has

at

(4th Cir.

*2

(W.D.

2013).

Va.

Mar.

^^The party

the burden of establishing

that the issue in contention has already been adjudicated and a

final
Va.,

judgment
Inc.

V.

has

been

Richardson^

entered."
40 Va.

Cir.

Cherokee
162

(Va.

Corp.
Cir.

of
Ct.

Linden,
1996).

Each facet of the controlling rule will be addressed in turn.
1.

Prior Decided Claim For Relief

To begin,

the dismissal of the First Action with prejudice

was a final adjudication on the merits.

See Harrison v.

Edison

Bros.

Apparel

(''Dismissal

Stores,

of

an

adjudication of the
bar

to

a

further

924

F.2d

action

530,

with

534

(4th

prejudice

Cir.

is

a

1991)

complete

issues presented by the pleadings and is

action

between

the

parties.").

a

That

final

satisfied.

The

judgment disposed of the claim for fraud therein made.
2.

Identity of Parties

The

identity

Plaintiffs

same.

in

The

Allard

those

the

of

parties

First

Defendants,

were

all

Defendants,

in

the

TBI,

defendants

Action

in

and

First

the

is

Second

Electrical,
the

identity

SBBC,
the

and

Watson

defendants

Defendants,

requirement

First

Brown,

Inc.

Action;

are

the

Collins,

and

Action.

requirement

Davis,

Action

is

Thus,

as

satisfied.

were

however,

not

The

listed

the

to

as

Complaint

establishes that these parties are clearly in privity with the
other Defendants who secured the judgment in the First Action.
"In Virginia,

purposes

is

another

that

the

other's

David N.
Va.

2011)

that

the touchstone

one

party's

representation
legal

right."

interest

by

one

citations

is

party

Columbia

Martin Revocable Trust,
(internal

for privity for

Gas

833 F.

so

is

judicata

identical

with

representation

Transmission,

Supp.

omitted).

res

2d 552,

"[P]rivity

LLC

557
is

of
v.

(E.D.
most

often found among parties that share a contractual relationship,
owe some kind of legal duty to each other, or have another legal
7

relation such as co-ownership,"
Dismiss,

Id. at 559.

In their Motion to

Defendants state:

[T]he Tompkins/Ballard Joint Venture was the
general contractor for the Project. Watson
and

T.K.

Davis

were

both

subcontractors

on

the
Project.
Watson
had
a
contractual
relationship with the Joint Venture, as did
T.K.
Davis.
See Compl. SI 1
(referencing
Watson's

contract).

All

Defendants

were

involved in the construction of the Project,
and all Defendants have identical positions
concerning the CCIP deduction referenced by
the Plaintiffs in both Complaints.
With
regard to the operation of the CCIP,
the
interests

The

of

Tompkins,
aligned.

S.B.

Complaint

Plaintiffs

in

do

the

not

the

Watson

Ballard,

Section
contend

and

Action

Defendants,

T.K.

Davis

alleges

otherwise.

In

as

are

much,

this

and

the

case,

the

additional Defendants listed in the Second Action are in privity
with the

Defendants

3.
The

in the

First Action.

Arising Ou-b of the Same Conduct
fraud

claim

in

the

Second

Action

arises

from

the

same

transaction as the fraud claim on which judgment was entered in
the
each

First

Action.

action

shows

Indeed,
that

a

the

comparison
two

fraud

of

the

claims

Complaints
are

in

virtually

identical.

For the

foregoing

reasons,

the

record establishes

that the

fraud claim asserted in the Complaint is barred by res

judicata

and the action therefore will be dismissed with prejudice.

B.

The Inadequacy of Pleading

It

is

grounds.
(E.D.

in

preferable
Amato

Va.

this

1994),

case,

v.

not

City

aff^d,

of

78

judicial

to

motion

sufficiency
Twombly,

550

12(b) (6)

F.3d

most

States,

947

12(b) (6)

matter,

of

dismiss

the

544,

under

555

factual

motion,

to

1169,

''a

(2009)

plausibility
allows

the

defendant

is

when
court

the
to

liable

1996).

by

Rule

12(b) (6)

e.g..

1139

However,

addressing

tests

Bell

When

the

Atl.

the

legal

Corp.

considering

to

viewing

(4th

Cir.

must

a

^state a

plaintiff

the

the

Sole

1991).

v.

Rule

To

in

v.

the

United

survive

sufficient

Iqbal,

pleads

556 U.S.

a

factual

claim to relief that

at 570).

662,

is
678

'''A claim has facial
factual

reasonable

misconduct

complaint

De

contain

Ashcroft v.

draw

the

plaintiff.

550 U.S.

for

1124,

the Court should accept as true all

complaint

(quoting Twombly,

Cir.

served

(2007).

1171

plausible on its face.'"

alternative

F.Supp.

See,

the

accepted as true,

(4th

is

allegations,

favorable

875

on

the inadequacy of the pleading.

pleadings.

U.S.

F.2d

578

efficiency

motion to dismiss,

well-pleaded
light

to

cases

Richmond,

alternate ground for dismissal:
A

decide

content

inference

that

that

alleged."

at

the

663.

While'a pro se plaintiff must state facts to support a plausible
claim,

Giarratano v.

Johnson,

pro se ''litigants cannot,

521 F.3d 298,

of course,

305

(4th Cir.

be expected to frame

2008),

legal

issues

with

the

clarity

and

precision

work of those trained in law."

F.2d 1274,

1276

(4th Cir.

ideally

in

the

City of Hampton,

Beaudett v.

775

1985).

Plaintiffs must plead with particularity,
surrounding
Failure

allegations

to

do

Fraud is a

so

evident

of

renders

state law claim.

fraud.

a

fraud

Fed.
claim

To succeed,

R.

the circumstances
Civ.

legally

insufficient.

by clear and convincing evidence:

representation;

2)

knowingly;
misled;

4)

v.

3)

with intent to mislead;

and 6)

Montreal

fact;

damages

Signet

made

5)

193

F.3d

'"1)

a

false

intentionally and

reliance by the party

resulting from that

Bank,

9(b).

plaintiffs must allege,

and then prove,

of material

P.

818,

reliance."

826

(4th

Bank of

Cir.

1999).

Plaintiffs ''must plead with particularity the time and place the

misrepresentations

were

misrepresentations,

the

misrepresentation,

made,
identity

what

the
of

the

contents
individual

the

of

making

individual

those

making

the
the

misrepresentation gained from making it,

and the aggrieved party

reasonably

relied

and

detrimentally

misrepresentations."

Va.
*7

2011)
(W.D,

(quoting Scott v.
Va.

Nguyen,

2011 WL 201487,

GMAC Mortgage, LLC,

those
*8

(E.D.

2010 WL 3340518,

2010)).

The Complaint
Indeed,

Sewraz v.

on

in this

case

lacks

all

of these

requisites.

all the Complaint says is that Defendants ''committed an
10

act

of

fraud

by

creating

a

Subcontractor Reconciliation .
pleading

fraud

with

false

.

.

evidence

particularity,

permissible.

showing

("The

why

the

f 5.

Final

Rather than

Plaintiffs,

in

their

rely on the Defendants to

the

Plaintiffs

fraudulent

Compl.

Complaint and in their response brief,
produce

and

Defendants'

charges

actions

that

all

were

of

the

Defendants in this Lawsuit cannot produce one shred of evidence

that

will

give

Documentation
deductions

them

giving

listed

Exhibit C1 and D."
Thus,
The

the

claim.

to

on

the

Justification

right

Final

for

all

or
of

Subcontractor

any

the

form

of

fraudulent

Reconciliation,

Compl. ^ 6).

Complaint

what

Legal

them the

Memorandum Opinion

Plaintiffs

fails

issued

they

must

both
in

Rule

the

allege

12(b) (6)

First

to

Action

state

a

and

Rule

alerted

viable

9.
the

fraud

The Complaint in the Second Action utterly fails to heed

that warning,

the

the

putative

thereby signaling that no amendment could salvage

fraud

claim.

Therefore,

the

Complaint

fails

for

the alternative reason that it fails adequately to state a claim

for fraud.

And, because the Plaintiffs have put forth no ground

for amendment to cure the defect,

the Complaint is dismissable

with prejudice on the alternative ground posited by Defendants'
motion.

11

CONCLUSION

For the reasons set forth above,

COMPLAINT

(ECF No.

3)

the MOTION TO DISMISS THE

will be granted and the Complaint will be

dismissed with prejudice.
It

is

so ORDERED.

/s/

Robert E. Payne
Senior United States District Judge

Richmond, Virginia
Date:

December

,

2016

12