Blevins v. Booker

Filing 16

OPINION AND ORDER granting in part and denying in part 7 Motion to Dismiss for Failure to State a Claim. Signed by Judge James P. Jones on 6/1/2017. (lml)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
)
)
)
)
)
)
)
)
)
)
)

KYLE BLEVINS,
Plaintiff,
v.
WILLIAM BOOKER,
Defendant.

Case No. 1:17CV00012
OPINION AND ORDER
By: James P. Jones
United States District Judge

Steven R. Minor, Elliott Lawson & Minor, Bristol, Virginia, for Plaintiff;
Michael A. Bragg, Bragg Law, Abingdon, Virginia, for Defendant.
This is a diversity action under Virginia substantive law for breach of
contract and fraud arising from an alleged agreement to operate a drive-in movie
theater. The defendant has filed a Motion to Dismiss for failure to state a claim
upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). For the reasons that
follow, I will deny the defendant’s Motion to Dismiss as to the plaintiff’s claims
for breach of contract and grant the defendant’s Motion to Dismiss as to the claim
asserting fraud.
I. FACTUAL SUMMARY.
The Complaint alleges the following facts, which I must accept as true for
the purpose of deciding the present motion.

The defendant, William Booker, is the owner of the Moonlite Theater
(hereinafter “the Moonlite”), a drive-in movie theater located in this judicial
district. In September 2016,1 the plaintiff, Kyle Blevins, and Booker entered into a
handwritten agreement (hereinafter “the Handwritten Agreement”) that stated as
follows:
Agreement between William Booker & Kyle Blevins
We agree to together join in a partnership to restore and reopen the
Moonlite Theatre in Abingdon, VA.
Kyle Blevins will provide all funds to restore & refurbish all buildings
and grounds, & operate Business.
William Booker will provide property as his contribution to the
partnership.
As an act of good faith Kyle Blevins will begin construction and at the
point it is open for business and the first movie shown, William and
Kyle will execute a partnership agreement upon this.
Kyle Blevins will have 51% ownership and William Booker will have
49% of the real este [sic] & business.
Kyle will operate business and give William 49% of net profit.
Other considerations will be included in the formal agreement to
follow.
Compl. Attach. 1-2, ECF No. 1-1. Both Booker and Blevins signed the bottom of
the document.

1

The Handwritten Agreement is dated September 20, 2016, at the top of the
document, but the parties’ signatures at the bottom of the document are dated September
15, 2016. Compl. Attach. 1-2, ECF No. 1-1.
-2-

After the parties signed the Handwritten Agreement, Blevins began restoring
and refurbishing the Moonlite pursuant to the Agreement; eventually, the Moonlite
was opened to the public, and the first movie was shown. In performing this work,
Blevins purchased equipment, provided labor, and solicited donations of time and
money from members of the community. He also paid an attorney to draw up
documents for the formation of a new limited liability company named, “Historical
Moonlite LLC.” Ultimately, Blevins spent more than $20,000 on this endeavor.
Compl. ¶¶ 11-12, ECF No. 1.
After the Moonlite showed its first movie — the point at which the
Handwritten Agreement called for the execution of a “partnership agreement” —
Booker declined to sign the documents for “Historical Moonlite LLC.” He refused
to convey the real property on which Moonlite was located and later engaged a
realtor to sell the property.

Booker also forbade Blevins from entering the

property. Eventually, the Moonlite closed and was subsequently vandalized. Id. at
¶¶ 13-14.
On March 17, 2017, Blevins brought this action against Booker for breach of
contract and fraud.

Blevins seeks specific performance of the Handwritten

Agreement (Count One). He also seeks either money damages for breach of
contract or restitution under a theory of unjust enrichment (Count Two).

-3-

Alternatively, Blevins seeks compensatory and punitive damages for fraud in the
inducement (Count Three).
On April 28, 2017, Booker filed a Motion to Dismiss all three counts of the
Complaint.

ECF No. 7.

As to Counts One and Two, he argues that the

Handwritten Agreement is not an enforceable contract, but rather an unenforceable
“agreement to agree,” and that as a result, neither specific performance nor
damages for breach are available. Mem. Supp. Mot. to Dismiss 4-7, ECF No. 8.
As to Count Three, Booker argues that the Complaint fails to plead fraud with
sufficient particularity and must therefore be dismissed. Id. at 7-12. Booker does
not, however, seek to dismiss Blevins’ Count Two claim for restitution under a
theory of unjust enrichment. See id. at 7 n.1.
The Motion to Dismiss has been fully briefed and is ripe for decision.2 For
the reasons stated, I deny the motion as to the claims for breach of contract and
grant the motion as to the claim for fraud in the inducement.
II. APPLICABLE LAW.
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

2

I will dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court, and argument would not
significantly aid the decisional process.
-4-

550 U.S. 544, 570 (2007)). “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.” Id. at 678 (citing Twombly,
550 U.S. at 556). In ruling on a motion to dismiss, the court must accept as true all
of the factual allegations contained in the complaint, Twombly, 550 U.S. at 572,
and it must view those facts in the light most favorable to the plaintiff.
Christopher v. Harbury, 536 U.S. 403, 406 (2002).
Claims for fraud are subject to a higher pleading standard: “In alleging fraud
. . . a party must state with particularity the circumstances constituting fraud.” Fed.
R. Civ. P. 9(b). However, “[m]alice, intent, knowledge, and other conditions of a
person’s mind may be alleged generally.” Id.
III. DISCUSSION.
A. Breach of Contract.
Blevins requests specific performance (Count One) and monetary damages
(Count Two) for breach of express contract.

Compl. ¶¶ 17, 21, ECF No. 1.

Booker contends that Blevins’ claim for breach of express contract must be
dismissed because the Handwritten Agreement “fails to state the essential and
material terms” and “expressly provides that other unidentified considerations will
be incorporated into the future partnership agreement” and is therefore not an
enforceable contract. Mem. Supp. Mot. to Dismiss 7, ECF No. 8. Blevins asserts
-5-

in response that the Handwritten Agreement is an enforceable contract and that its
“simplicity . . . does not make it uncertain or unenforceable.” Mem. Opp’n Mot. to
Dismiss 2, ECF No. 9.
To state a valid claim for breach of contract under Virginia law, a plaintiff
must allege “(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.” Ramos v. Wells Fargo Bank, NA,
770 S.E.2d 491, 493 (Va. 2015) (quoting Filak v. George, 594 S.E.2d 610, 614
(Va. 2004)). Thus, if Blevins’ Complaint does not adequately plead the existence
of a “legally enforceable obligation” — that is, a contract — his claim for breach
of contract cannot be sustained, and must be dismissed. 3
1. Reasonably Certain Terms.
The “essential elements of a valid contract” are “a complete agreement
including acceptance of an offer as well as valuable consideration.” LongView
Int’l Tech. Sols., Inc. v. Lin, No. 160228, 2017 WL 1396062, at *2 (Va. Apr. 13,
2017) (quoting Snyder-Falkinham v. Stockburger, 457 S.E.2d 36, 39 (Va. 1995)).
However, an agreement may nevertheless be unenforceable if “a material term in

3

Booker does not contend that Blevins has failed to plead facts sufficient to
allege the second and third elements of his claim for breach of contract. As such, in
deciding the Motion to Dismiss, I consider only whether Blevins has sufficiently pleaded
the first element of his claim.
-6-

the agreement ‘is too vague and indefinite to be enforced.’” Id. at *3 (quoting
Allen v. Aetna Cas. & Sur. Co., 281 S.E.2d 818, 819 (Va. 1981)).
Booker asserts that the Handwritten Agreement cannot be specifically
enforced because it lacks the “essential elements of price and terms of sale.” Mem.
Supp. Mot. to Dismiss 5, ECF No. 8 (citing cases).

He also notes that the

Agreement “does not . . . impose upon Blevins the obligation to invest an amount
certain”; “does not define the extent and limits of [Blevins’] obligation to ‘restore
and refurbish’” the Moonlite; “does not state whether Booker is to contribute the
real estate, equipment, or both”; and “does not define” what it means to “operate
the business.” Id. at 4. In short, Booker contends that the Handwritten Agreement
is not an enforceable contract because it fails to “set out [a] specific price” and is
uncertain and indefinite in its terms. Id. at 5. I disagree.
It is true that price is a “material term” in “all contracts of sale” and that
“[i]n the absence of [a] provision either stating it or furnishing a mode for fixing it,
the agreement would be plainly incomplete and could not be enforced.” Berry v.
Wortham, 30 S.E. 443, 444 (Va. 1898). However, the Handwritten Agreement is
not a contract of sale. Blevins emphasizes in his Complaint the provision of the
Agreement requiring Booker to convey real estate, but in reality, the Agreement
provides the basis for a partnership; Booker’s conveyance of real estate is only a
part of that partnership and of the Agreement itself. The Handwritten Agreement
-7-

is not a contract of sale, and thus, inclusion of a fixed price, or of a method for
fixing a price, is not a required material term.
Booker also relies on Allen v. Aetna Casualty and Surety Company, a nonsale case in which the court found an agreement unenforceable where “[n]o sum
was specified . . . nor was any method or formula alleged for determining the
amount payable in settlement.” 281 S.E.2d at 820. The facts of Allen, however,
are readily distinguishable. In Allen, the defendant, Aetna, “bargain[ed] for and
obtain[ed] plaintiff’s agreement not to retain counsel to prosecute his claim in
exchange for (Aetna’s) promise to effect full and final settlement with him. Aetna
subsequently breached this agreement.”

Id. at 819 (internal quotation marks

omitted). The court concluded the agreement was unenforceable, noting that the
agreement did not specify a dollar amount for the “full and final settlement” and
concluding that “[a] court should not determine the terms of the settlement upon
which the parties might ultimately agree.” Id. at 819-20.
The question of whether a contract is “void for indefiniteness and
uncertainty” depends on whether there is “mutual assent of the contracting parties
to terms reasonably certain under the circumstances.”

Id. at 820 (emphasis

added). In Allen, the agreement simply provided that the plaintiff would give up
his right to sue in exchange for a “full and final settlement.” Id. at 819. Under the
circumstances of that case, the term “full and final settlement” was far from
-8-

“reasonably certain”; indeed, an eventual settlement could have encompassed
virtually any amount. It would therefore have been impossible for the court to
“determine the terms of the settlement upon which the parties might ultimately
agree” and, thus, impossible for the court to “afford[ ] a remedy for . . . breach” of
the agreement. Id. at 820.
Here, by contrast, the Handwritten Agreement provides that Blevins will
provide restoration funds, that Booker will provide property, that the two will
execute a partnership agreement, that Blevins will own 51% and Booker will own
49% of the real estate and business, and that Blevins will operate the business and
give Booker 49% of the profits. Booker argues that because the Agreement does
not define “the exact parameters of Blevins’ obligation . . . to spend money” to
restore the Moonlite, it is therefore void for uncertainty. Mem. Supp. Mot. to
Dismiss 6, ECF No. 8. However, although these terms do not specify a particular
“sum” that Blevins must provide, they do specify that Blevins must provide “all
funds to restore & refurbish all buildings and grounds” — that is, they require that
Blevins provide the funds to accomplish a reasonably certain objective. Compl.
Attach. 1, ECF No. 1-1. These terms are in stark contrast to the unenforceable
terms in Allen, which merely stated the parties would reach some nebulous “full
and final settlement.” 281 S.E.2d at 819. The terms in the Handwritten Agreement
in this case provide the court with a “reasonable basis for affording a remedy for
-9-

. . . breach” of the agreement and are therefore “reasonably certain under the
circumstances” of this case. Id. at 820.
Moreover, “the law does not favor declaring contracts void for indefiniteness
and uncertainty.” LongView, 2017 WL 1396062, at *3 (quoting Reid v. Boyle, 527
S.E.2d 137, 143 (Va. 2000)). In order for a contract to be deemed unenforceable,
“[t]he indefiniteness must reach the point where construction becomes futile . . .
Invalidating a contract on the ground that it is indefinite should be a last resort.”
Id. (internal quotation marks and citation omitted). It is clear that construction of
the Handwritten Agreement is far from “futile”; on the contrary, as I note above,
its terms are reasonably certain, and are certainly not so murky as to require the
“last resort” of invalidation.

Thus, I decline to find that the Handwritten

Agreement is unenforceable for indefiniteness and uncertainty.
2. Intent to Be Bound.
Booker also asserts that the Handwritten Agreement is an unenforceable
“agreement to agree” because it states that the parties “will execute a partnership
agreement” and that “[o]ther considerations will be included in the formal
agreement to follow.” Compl. Attach. 1, ECF No. 1-1; Mem. Supp. Mot. to
Dismiss 4, ECF No. 8.

An agreement to agree, “without specifying more,

constitutes only an agreement to negotiate at a later date” and is unenforceable.
Allen, 281 S.E.2d at 819. However, “where . . . the parties are fully agreed upon
- 10 -

the terms of the settlement and intend to be bound thereby, the mere fact that a
later formal writing is contemplated will not vitiate the agreement.” LongView,
2017 WL 1396062, at *2 (internal quotation marks and citations omitted).
“In considering whether an agreement is an enforceable contract or merely
an agreement to agree, courts consider whether the document at issue includes the
requisite essential terms and also whether the conduct of the parties and the
surrounding circumstances evince the parties’ intent to enter a contract.”
Cyberlock Consulting, Inc. v. Info. Experts, Inc., 876 F. Supp. 2d 672, 678 (E.D.
Va. 2012) (citing High Knob, Inc. v. Allen, 138 S.E.2d 49, 53 (Va. 1964)). “[A]n
agreement to ‘negotiate open issues in good faith’ to reach a ‘contractual objective
within [an] agreed framework’ will be construed as an agreement to agree rather
than a valid contract.” Va. Power Energy Mktg., Inc. v. EQT Energy, LLC, No.
3:11CV630, 2012 WL 2905110, at *4 (E.D. Va. July 16, 2012) (quoting Beazer
Homes Corp. v. VMIF/Anden Southbridge Venture, 235 F. Supp. 2d 485, 491 (E.D.
Va. 2002)). However, where “it is clear that the parties intended to enter into a
binding contractual relationship and the agreement contains sufficient objective
criteria to enforce,” the agreement is enforceable. Cyberlock Consulting, 876 F.
Supp. 2d at 678 (quoting EG & G, Inc. v. Cube Corp., No. 178996, 2002 WL
31950215, at *7 (Va. Cir. Ct. Dec. 23, 2002)). I have already determined, see
supra, that the Handwritten Agreement contains “sufficient objective criteria to
- 11 -

enforce.” Cyberlock Consulting, 876 F. Supp. 2d at 678. I therefore turn now to
the question of whether the parties’ conduct and surrounding circumstances have
evinced an intent to enter into a binding contract.
“In determining whether there is mutual assent, courts look first to the
language of the agreement itself.” Va. Power Energy Mktg., 2012 WL 2905110, at
*5 (citations omitted); see also LongView, 2017 WL 1396062, at *2. Here, the
parties titled the document an “Agreement.” Compl. Attach 1, ECF No. 1-1. It
opens by stating that Booker and Blevins “agree to together join in a partnership.”
Id. It goes on to say that “[Booker] and [Blevins] will execute a partnership
agreement” and that “Blevins will provide all funds,” “Booker will provide
property,” “Blevins will begin construction,” “Blevins will have 51% ownership,”
“Booker will have 49% [ownership],” and that “[Blevins] will operate [the]
business and give [Booker] 49% of net profit.” Id. at 1-2 (emphasis added). The
Agreement closes by stating that “[o]ther considerations will be included in the
formal agreement to follow.” Id. at 2.
The Handwritten Agreement, on its face, evinces an intent to be bound. The
parties declared their document to be an “Agreement,” rather than a “Letter of
Intent” or other less-certain item. See Burbach Broad. Co. of Del. v. Elkins Radio
Corp., 278 F.3d 401, 406 (4th Cir. 2002) (noting that “[c]alling a document a
‘letter of intent’ implies . . . that the parties intended it to be a nonbinding
- 12 -

expression in contemplation of a future contract”). They also state that they “agree
to . . . join in a partnership” and that they “will” do certain things in furtherance of
this goal. Compl. Attach. 1-2, ECF No. 1-1. Such language unambiguously
indicates an intent to perform and be bound. See LongView, 2017 WL 1396062, at
*1, 3 (finding that the parties intended to be bound where the agreement stated they
“shall” make certain payments); Cyberlock Consulting, 876 F. Supp. 2d at 679
(finding that the parties intended to be bound where the agreement stated they
“will” perform certain obligations). In addition, although Booker and Blevins
expressly contemplate a “formal agreement to follow,” Compl. Attach 2, ECF No.
1-1, they do not “contemplate[ ] the possibility that the future transaction . . . might
not ever come to fruition.” Va. Power Energy Mktg., 2012 WL 2905110, at *6
(finding agreement unenforceable where “the parties indicated,” via the language
of the agreement, that “the transaction might not take place”).

There is no

language in the Agreement indicating any doubt as to whether the formal
agreement will be executed; on the contrary, the parties states that any “[o]ther
considerations will be included in the formal agreement to follow.”

Compl.

Attach. 2, ECF No. 1-1 (emphasis added).
Moreover, the Handwritten Agreement is not made contingent on the
execution of, or on the inclusion of any specific terms within, the “formal
agreement to follow.” Where a preliminary agreement is expressly made “subject
- 13 -

to execution of a formal agreement,” the inclusion of that “subject to” clause
“evince[s] an intent by the parties to avoid being bound until a formal contract
ha[s] been prepared, approved, and executed.” LongView, 2017 WL 1396062, at
*3 (citing Golding v. Floyd, 439 S.E.2d 735, 737 (Va. 2001)). By contrast, where
a preliminary agreement “does not contain such a clause,” it is “not dependent for
its efficacy upon the execution of a formal contract,” and the fact that the parties
“express[ly] . . . contemplate[d] that [they] would draft a more comprehensive
agreement” does not preclude enforcement of the preliminary agreement. Id. at
*2-3. In LongView, the preliminary agreement “ma[de] clear that the contemplated
formal contract was to set forth ‘more fully’ the ‘terms of settlement’ identified in
the [agreement] — not diverge from those terms.” Id. at *2. The Handwritten
Agreement is similar: it is clear from its language — “[o]ther considerations will
be included” — that the contemplated “formal agreement to follow” would merely
expand on the terms of the partnership, rather than alter the terms already set forth.
Compl. Attach. 2, ECF No. 1-1.
In addition to considering the language of an agreement, in determining
whether there was mutual assent, courts may also look to the conduct of the parties
and other surrounding circumstances. Cyberlock Consulting, 876 F. Supp. 2d at
678; see also LongView, 2017 WL 1396062, at *2 n.3 (noting that the defendant’s
conduct was also a relevant consideration). A preliminary agreement has been
- 14 -

held enforceable where its terms were “clear and definite” and the parties “clear[ly]
inten[ded] . . . to establish a close working relationship” and subsequently
“operated under the agreement[ ].” EG & G, Inc., 2002 WL 31950215, at *7-13.
Taking the facts alleged in the Complaint as true, it appears that the actions
of both parties indicate an intention to be bound. To begin, they both signed the
Handwritten Agreement 4 and, in so doing, agreed to enter a business partnership
together. Such an agreement is analogous to the exclusive working relationship
underlying the agreement found enforceable in EG & G. In addition, the parties’
conduct following the signing of the Agreement suggests they both, at least
initially, intended to perform their respective obligations. Blevins began working
to restore and refurbish the theater and its grounds, and through his efforts, the
Moonlite opened to show its first movie. Compl. ¶ 11, ECF No. 1. During the
restoration process, Booker permitted Blevins and other members of the
community to enter the property to perform this work. Id. Booker does not allege
that he was unaware of Blevins’ activities on the Moonlite’s property, and he
banned Blevins from the property only after he refused to sign the papers Blevins
had drawn up. Had Booker not intended to be bound by the Agreement, common
sense suggests he would have evicted Blevins from the property at the outset of the
4

Booker specifically “denies that he signed the purported agreement,” Mem.
Supp. Mot. to Dismiss 2, ECF No. 8, but Blevins’ Complaint, which I must accept as true
for the purpose of deciding this motion, alleges that Booker did sign the agreement.
Compl. ¶ 7, ECF No. 1.
- 15 -

restoration, rather than waiting until the work was completed. Booker’s actions
therefore suggest that he intended to be bound by the terms of the Handwritten
Agreement.
Based on the language of the Handwritten Agreement, the parties’ actions,
and the circumstances of the case, I decline to find, at this early stage of the
litigation, that the parties did not intend to be bound. Thus, because I find that the
Handwritten Agreement contains reasonably certain terms and is therefore not
unenforceable for uncertainty, and because I find that Blevins has plausibly
demonstrated that the parties intended to be bound by the Handwritten Agreement,
I conclude that Blevins has sufficiently alleged a breach of contract claim for
purposes of surviving a motion to dismiss. I therefore deny the motion as to
Counts One and Two.
B. Fraud in the Inducement.
Blevins alternatively raises a claim for fraud in the inducement and requests
compensatory and punitive damages (Count Three). Compl. ¶¶ 23-26. He alleges
that “by signing the Handwritten Agreement, . . . Booker misrepresent[ed] his
willingness to” perform and that “Booker’s representation that he intended to
perform . . . was false and intended to mislead . . . Blevins into making
improvements to the Moonlite.”

Id. ¶ 24.

Booker contends in response that

Blevins’ “mere naked allegation that Booker misrepresented his willingness to
- 16 -

perform when he allegedly executed the Handwritten Agreement is insufficient . . .
to state a claim for fraud.” Mem. Supp. Mot. to Dismiss 10, ECF No. 8. I agree.
To state a valid claim for fraud in the inducement under Virginia law, a
plaintiff must allege that the defendant (1) falsely represented a material fact (2)
for the purpose of procuring the contract, and that the plaintiff (3) relied on that
representation and (4) was induced by it to enter the contract. George Robberecht
Seafood, Inc. v. Maitland Bros. Co., 255 S.E.2d 682, 683 (Va. 1979); Brame v.
Guarantee Fin. Co., 124 S.E. 477, 481 (Va. 1924). Fraud in the inducement is
“ground for rescission of the contract” as well as “for an action for damages.” AbiNajm v. Concord Condo., LLC, 699 S.E.2d 483, 489 (Va. 2010) (quoting George
Robberecht Seafood, 255 S.E.2d at 683). Importantly, a claim for fraud in the
inducement requires more than a mere allegation that the defendant failed to fulfill
his promises under the contract; “otherwise, every breach of contract could be
made the basis of an action in tort for fraud.” Id. at 490 (quoting Lloyd v. Smith,
142 S.E. 363, 365 (Va. 1928)); see also Out of Chaos, Ltd. v. AON Corp., 15 F.
App’x 137, 142 (4th Cir. 2001) (unpublished) (noting that where “the allegations
of fraud . . . are nothing more than allegation[s] of negligent performance of
contractual duties, such alleged breaches of duty are not actionable in tort”)
(internal quotation marks and citation omitted). Instead, the plaintiff must allege
facts demonstrating that the defendant, at the time the contract was entered into,
- 17 -

never intended to abide by its terms.

Id. (citing Richmond Metro. Auth. v.

McDevitt St. Bovis, Inc., 507 S.E.2d 344, 348 (Va. 1998)); see also Abi-Najm, 699
S.E.2d at 489 (citing Boykin v. Hermitage Realty, 360 S.E.2d 177, 178-79 (Va.
1987)).
In addition, “[i]n alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b);
see also, e.g., McCauley v. Home Loan Inv. Bank, F.S.B., 710 F.3d 551, 559 (4th
Cir. 2013) (applying Rule 9(b)’s pleading requirement to state law claims); Vess v.
Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103 (9th Cir. 2003) (noting that “[i]t is
established law . . . that Rule 9(b)’s particularity requirement applies to state-law
causes of action”). “[L]ack of compliance with Rule 9(b)’s pleading requirements
is treated as failure to state a claim under Rule 12(b)(6).” Dunn v. Borta, 369 F.3d
421, 426 (4th Cir. 2004) (quoting Harrison v. Westinghouse Savannah River Co.,
176 F.3d 776, 783 n.5 (4th Cir. 1999)).
Blevins fails to sufficiently plead the first element of his claim for fraud in
the inducement. As I note above, a plaintiff must “allege facts that demonstrate the
defendant’s intent . . . never to abide by the terms of the contract.” Out of Chaos,
15 F. App’x 142. A court should “dismiss a complaint under Rule 9(b)” if it is not
satisfied that the “plaintiff has substantial prediscovery evidence of [the] facts” that
supposedly constitute fraud. Smith v. Clark/Smoot/Russell, 796 F.3d 424, 432 (4th
- 18 -

Cir. 2015) (quoting Harrison, 176 F.3d at 784); see also Fed. R. Civ. P. 9(b)
(requiring plaintiffs to “state with particularity the circumstances constituting
fraud”). Blevins has not sufficiently demonstrated that he has any evidence of
such facts.
Blevins fails to allege any facts supporting his assertion that Booker did not
intend to fulfill his obligations at the time he entered into the Agreement. The
Complaint states only that “by signing the Handwritten Agreement, . . . Booker
misrepresent[ed] his willingness to do the things that were required under the terms
of that Agreement” and that “Booker’s representation that he intended to perform
under the Handwritten Agreement was false.”

Compl. ¶¶ 23-24, ECF No. 1.

These are merely conclusory allegations and are insufficient to state a claim for
fraud in the inducement. See McDevitt St. Bovis, 507 S.E.2d at 348 (affirming trial
court’s dismissal of claim for fraud in the inducement on the ground that
“[n]othing in the record suggests that [the defendant] did not intend to fulfill its
contractual duties at the time it entered into the [contract]” (citation omitted)).
Thus, I conclude that Blevins’ claim for fraud in the inducement must be dismissed
for failure to state a claim upon which relief can be granted. 5

5

Because I find that Blevins has not sufficiently pleaded the first element of his
claim, I need not consider whether he has sufficiently pleaded the remaining elements.
However, I will note that because a plaintiff may make “conclusory allegations . . . of [a]
defendant’s intent to deceive,” Harrison, 176 F.3d at 784 (citing, inter alia, Fed. R. Civ.
P. 9(b)), Blevins has sufficiently pleaded the second element by alleging that Booker
- 19 -

IV. CONCLUSION.
For the foregoing reasons, it is ORDERED as follows:
1. The defendant’s Motion to Dismiss (ECF No. 7) is DENIED in part and
GRANTED in part;
2. The Motion to Dismiss is DENIED as to Counts One and Two (breach of
express contract); and
3. The Motion to Dismiss is GRANTED as to Count Three (fraud in the
inducement). 6

ENTER: June 1, 2017
/s/ James P. Jones
United States District Judge

“intended to mislead [him] into making improvement to the Moonlite.” Compl. ¶ 24,
ECF No. 1.
6

The plaintiff requests in his reply to the Motion to Dismiss that he be granted
leave to amend “if the Court finds necessary elements missing from the Complaint.”
Mem. Opp’n Mot. to Dismiss 4, ECF No. 9. Because the case is not dismissed, a future
motion to amend setting forth the proposed amendment may be available to the plaintiff
under Rule 15 so long as not untimely and accordingly I find that granting leave to amend
now is unnecessary.
- 20 -