Bennett et al v. Skyline Corporation et al

Filing 23

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT BELPRE'S MOTION 15 TO DISMISS. Signed by District Judge Irene M. Keeley on 10/7/2014. (tlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
GABRIEL BENNETT and TIFFANY
BENNETT,
Plaintiffs,

v.

//

CIVIL ACTION NO. 1:14CV129
(Judge Keeley)

SKYLINE CORPORATION, BOB’S
QUALITY HOMES, INC., and
BELPRE SAVINGS BANK,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANT
BELPRE’S MOTION TO DISMISS [Dkt. No. 15]
Pending before the Court is the motion to dismiss (dkt. no.
15) filed by defendant Belpre Savings Bank (“Belpre”).

For the

following reasons, the Court GRANTS IN PART and DENIES IN PART the
motion to dismiss Counts One, Two, Three, Four, Five, Six, Seven,
Eight, Nine, Ten, Eleven, and Twelve.
The Court incorporates by reference the factual and procedural
background outlined in its Memorandum Opinion and Order Granting in
Part and Denying in Part Defendant Skyline’s Motion to Dismiss
(dkt. no. 21).
On September 16, 2014, Belpre filed a motion to dismiss
plaintiffs Gabriel and Tiffany Bennetts’ (“the Bennetts”) complaint
because it was not a party to their contract to purchase the home.
It asserted in its motion that the complaint failed to state a

BENNETT v. SKYLINE CORPORATION

1:14CV129

MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANT
BELPRE’S MOTION TO DISMISS [Dkt. No. 15]
claim upon which relief can be granted, arguing that the complaint
failed to plead fraud with particularity, and that West Virginia
does not recognize a stand alone cause of action for breach of the
duty of good faith and fair dealing.

(Dkt. No. 15 at 1; Dkt. No.

16 at 2).
On September 30, 2014, the Bennetts filed a response opposing
Belpre’s motion to dismiss, or in the alternative, seeking leave to
amend their complaint to correct any deficiencies.

(Dkt. No. 18).

On October 6, 2014, Belpre filed a reply brief. (Dkt. No. 22).

The

motion is fully briefed and ripe for review.
I.
A.

LEGAL STANDARDS

Motion to Dismiss
In reviewing the sufficiency of a complaint, a district court

“‘must accept as true all of the factual allegations contained in
the complaint.’”

Anderson v. Sara Lee Corp., 508 F.3d 181, 188

(4th Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89, 94
(2007)).

While

a

complaint

does

not

need

detailed

factual

allegations, however, a plaintiff’s obligation to provide the
grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause
of action will not do.

Bell Atl. Corp. v. Twombly, 550 U.S. 544,
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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANT
BELPRE’S MOTION TO DISMISS [Dkt. No. 15]
555 (2007).

Indeed, courts “are not bound to accept as true a

legal conclusion couched as a factual allegation.”

Papasan v.

Allain, 478 U.S. 265, 286 (1986).
In considering whether the facts alleged are sufficient, “a
complaint must contain ‘enough facts to state a claim to relief
that is plausible on its face.’”
(quoting

Twombly,

550

U.S.

at

Anderson, 508 F.3d at 188

547).

“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.”

Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). This requires “more than a sheer possibility that
a defendant has acted unlawfully.”
B.

Id.

Motion to Amend the Complaint
The Bennetts seek leave to amend their complaint if it is

deficient.

(Dkt. No. 18 at 1).

A plaintiff can amend a pleading

one time, as a matter of course, before the defendant files a
responsive pleading.

Fed. R. Civ. Pro. 15(a).

After a responsive

pleading is filed, a party may amend its pleading “only with the
opposing party’s written consent or the court’s leave.
should freely give leave when justice so requires.”
Pro. 15(a)(2).

The court

Fed. R. Civ.

The Fourth Circuit interpreted 15(a) to require
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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANT
BELPRE’S MOTION TO DISMISS [Dkt. No. 15]
that “leave to amend a pleading should be denied only when the
amendment would be prejudicial to the opposing party, there has
been bad faith on the part of the moving party, or the amendment
would have been futile.”

Johnson v. Oroweat Foods Co., 785 F.2d

503, 509 (4th Cir. 1986) (citing Foman v. Davis, 371 U.S. 178, 182,
83 S.Ct. 227, 230 (1962)).
A court should deny leave to amend on the ground of futility
only “when the proposed amendment is clearly insufficient or
frivolous on its face.”

Johnson, 785 F.2d at 510.

Conjecture

about the underlying merits of the litigation should not enter into
the court’s decision as to whether to allow an amendment. Davis v.
Piper Aircraft, 615 F.2d 606, 613-14 (4th Cir. 1980).
II. ANALYSIS
A.

Counts One, Two, Three, Four, Five, Six, and Seven
Belpre argues that the first seven counts of the complaint

center around the contract for sale and installation of a mobile
home

between

Bob’s

Quality

Homes

and

the

Bennetts,

and

the

subsequent repair attempts by Skyline and Bob’s Quality Homes.
(Dkt. No. 16 at 3-7).

It contends that it was not a party to the

contract, and therefore should be dismissed from these counts. Id.

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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANT
BELPRE’S MOTION TO DISMISS [Dkt. No. 15]
The Bennetts counter Belpre’s motion to dismiss with two
separate arguments.

First, they argue that Belpre is an agent,

principal, or employee of Bob’s Quality Homes and/or Skyline, and
as such, is responsible for the acts and omissions of each of its
co-defendants.

(Dkt. No. 1-2 at 3; Dkt. No. 18 at 2).

Their

allegation that Belpre is an agent, principal, or employee of its
co-defendants is a legal conclusion that the Court need not
consider as true for purposes of a motion to dismiss. Papasan, 478
U.S. at 286.
The Bennetts’ allegations regarding Belpre differ in kind from
their factual allegations regarding an agency relationship between
Skyline and Bob’s Quality Homes. (Dkt. No. 1-2 at 2).

While those

must be taken as true for purposes of the defendants’ motions to
dismiss, the Bennetts have not alleged similar facts of any agency
relationship between Belpre and Skyline.
Nonetheless, they do assert that Belpre and Bob’s Quality
Homes have an “undisclosed personal and/or business relationship.”
Id. at 5. This vague allegation of “undisclosed personal and
or/business relationship” is insufficient to allege a plausible
agency relationship.

See John W. Lohr Funeral Homes, Inc. v. Hess

& Eisenhardt Co., 166 S.E.2d 141, 147 (W. Va. 1969) (stating that
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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANT
BELPRE’S MOTION TO DISMISS [Dkt. No. 15]
the law does not presume an agency relationship exists, and that
the burden of proving agency rests on the party alleging the
existence of the relationship); see also Wetzel v. Employers
Service Corp. of West Virginia, 656 S.E.2d 55, 61 (W. Va. 2007)
(defining

an

agent

as

“one

who

represents

another...one

who

undertakes some business or...manage[s] some affair for another by
authority of or on account of the latter....” (citing State ex rel
Clark v. Blue Cross Blue Shield of West Virginia, Inc., 510 S.E.2d
764, 788 (W. Va. 1998))). The Court thus is unable to infer an
agency

relationship

from

a

bare

allegation

of

a

secret,

“undisclosed personal and/or business” relationship.
In their second argument, the Bennetts assert that Belpre, as
a lender, is subject to all claims or defenses they, as the buyer,
have against Skyline and Bob’s Quality Homes under the West
Virginia Consumer Credit and Protection Act (“WVCCPA”).

(Dkt. No.

1-2 at 3; Dkt. No. 18 at 2). Under the WVCCPA, a lender “is subject
to all claims and defenses of the borrower against the seller
arising from that specific sale of goods or services if the lender
participates in or is connected with the sales transaction.”
Va. Code § 46A-2-103(a) (emphasis added).

6

W.

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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANT
BELPRE’S MOTION TO DISMISS [Dkt. No. 15]
A lender is “connected with” the sales transaction if any one
of several facts are present:
(i) The lender and the seller have arranged for a
commission or brokerage or referral fee for the extension
of credit by the lender;
(ii) The lender is a person related to the seller
unless the relationship is remote or is not a factor in
the transaction;
(iii) The seller guarantees the loan or otherwise
assumes the risk of loss by the lender upon the loan
other than a risk of loss arising solely from the
seller’s failure to perfect a lien securing the loan;
(iv) The lender directly supplies the seller with
documents used by the borrower to evidence the
transaction or the seller directly supplies the lender
with documents used by the borrower to evidence the
transaction;
(v) The loan is conditioned upon the borrower’s
purchase of the goods or services from the particular
seller, but the lender’s payment of proceeds of the loan
to the seller does not in itself establish that the loan
was so conditioned;
(vi) The seller in such sale has specifically
recommended such lender by name to the borrower and the
lender has made ten or more loans to borrowers within a
period of twelve months within which period the loan in
question was made, the proceeds of which other ten or
more loans were used in consumer credit sales with the
seller or a person related to the seller, if in
connection with such other ten or more loans, the seller
also specifically recommended such lender by name to the
borrowers involved; or
(vii) The lender was the issuer of a credit card
other than a lender credit card which may be used by the
borrower in the sales transaction as a result of a prior
agreement between the issuer and the seller.
W. Va. Code § 46A-2-203(a)(I)-(vii).

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BENNETT v. SKYLINE CORPORATION

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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANT
BELPRE’S MOTION TO DISMISS [Dkt. No. 15]
The Bennetts argue that Belpre “participated in” the sales
transaction between themselves and Bob’s Quality Homes, even though
that fact was never pleaded in the complaint (Dkt. No. 18 at 8).
Unsurprisingly, Belpre disputes its involvement in the mobile home
sale transaction (Dkt. No. 16 at 5).
The Bennetts also argue that Belpre’s actions satisfy “at
least one” of the criteria necessary to be considered as “connected
with” the sale, and that they are “entitled to conduct discovery to
establish the relevant factual background.”

Id. at 8.

They fail,

however, to point to any facts in the complaint supporting their
allegation that Belpre is “connected with” the sales transaction,
as defined by § 46A-2-203(a).
While the complaint does allege that Belpre (1) “disbursed
funds

to

[Bob’s

Quality

Homes]

without

[the

Bennetts’]

authorization and against [their] specific instructions,” therefore
obligating them to repay Belpre; (2) “failed to protect [their]
interests by prematurely disbursing funds to [Bob’s Quality Homes]
because of an undisclosed personal and/or business relationship
between [them]”; and, (3) “breached its fiduciary duty to [the
Bennetts]” (dkt. no. 1-2 at 5), these allegations alone do not

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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANT
BELPRE’S MOTION TO DISMISS [Dkt. No. 15]
establish that Belpre “participated in” or is “connected with” the
sales transaction between Bob’s Quality Homes and the Bennetts.
Furthermore,

the

Bennetts

are

not

“entitled

to

conduct

discovery” when they are unable to plead sufficient facts to
establish a cause of action.

“[A] complaint must contain ‘enough

facts to state a claim to relief that is plausible on its face.’”
Anderson, 508 F.3d at 188 (quoting Twombly, 550 U.S. at 547).
Although the Bennetts seek leave to amend their complaint, the
Court need not grant leave when, as here, it would be futile to do
so.

Johnson, 785 F.2d at 509.

Therefore, the Court grants

Belpre’s motion to dismiss Counts One, Two, Three, Four, Five, Six,
and Seven.
B.

Count Eight: Common Law Negligence
The Bennetts claim that Belpre was negligent when it disbursed

loan funds to Bob’s Quality Homes without the Bennetts’ approval.
(Dkt. No. 1-2 at 10).

The Supreme Court of Appeals of West

Virginia describes negligence as “the violation of the duty of
taking care under the given circumstances. It is not absolute; but
is always relative to some circumstances of time, place, manner, or
person.”

Dicken v. Liverpool Salt & Coal Co., 23 S.E. 582 (1895).

Courts generally define negligence in terms of (1) whether the
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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANT
BELPRE’S MOTION TO DISMISS [Dkt. No. 15]
defendant owes a legal duty to the plaintiff; (2) whether the
defendant breached that duty; (3) whether the defendant’s breach
actually and proximately caused the plaintiff’s injury; and, (4)
whether the plaintiff suffered damages.

See, e.g., Marcus v.

Staubs, 736 S.E.2d 360, 370-74 (W. Va. 2012).
Whether a defendant owes a duty to the plaintiff is a question
of law to be decided by the Court, not a question of fact for the
jury.

Marcus, 736 S.E.2d at 370.

Generally, tort liability “will

not arise for breach of contract unless the action in tort would
arise independent of the existence of the contract.”

Beattie v.

Skyline Corp., 906 F.Supp.2d 528, 543 (S.D.W. Va. 2012).
In Count Eight, the Bennetts allege that Belpre “disbursed
loan funds to [Bob’s Quality Homes] without [their] authorization
and before [Bob’s Quality Homes] completed the installation.”
(Dkt. No. 1-2 at 10).

That count, however, fails to allege any

duty Belpre owed to the Bennetts. Earlier in their complaint,
however, the Bennetts allege that Belpre “breached its fiduciary
duty to [them]” by prematurely disbursing funds against their
express

instructions,

allegedly

due

to

an

“undisclosed”

relationship between Belpre and Bob’s Quality Homes.

Id. at 5.

Thus, for the limited purpose of this motion, the Court will assume
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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANT
BELPRE’S MOTION TO DISMISS [Dkt. No. 15]
that it is this breach of fiduciary duty that forms the basis for
the negligence claim in Count Eight.
Ordinarily, a fiduciary duty does not exist between a lender
and a borrower as a matter of course. Knapp v. Am. Gen. Fin. Inc.,
111 F.Supp.2d 758, 766 (S.D.W. Va. 2000). Belpre asserts that “any
alleged duty owed to [the Bennetts] by [it] existed solely by
virtue of a construction loan agreement.”

(Dkt. No. 16 at 7).

Therefore, it argues that the Bennetts’ negligence claim should be
dismissed because tort liability generally does not arise from a
breach of contract claim.

See Beattie, 906 F.Supp.2d at 543.

Because the Bennetts have alleged that Belpre breached its
fiduciary duty to them, the Court must examine whether a “special
relationship” existed between the Bennetts and Belpre that created
a fiduciary duty. McFarland v. Wells Fargo Bank, N.A., __ F.Supp.2d
___, 2014 WL 1805480 at *8 (S.D.W. Va. May 7, 2014).

Whether a

“special relationship” exists is a question of law for the court.
White v. AAMG Const. Lending Center, 700 S.E.2d 791, 798 (W. Va.
2010).
Generally,

whether

a

“special

relationship”

exists

is

determined “largely by the extent to which the particular plaintiff
is affected differently from society in general. It may be evident
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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANT
BELPRE’S MOTION TO DISMISS [Dkt. No. 15]
from the defendant’s knowledge or specific reason to know of the
potential consequences of the wrongdoing, the persons likely to be
injured, and the damages likely to be suffered.

Such special

relationship may be proven through evidence of the foreseeability
of the nature of the harm to be suffered...and can arise from
contractual privity or other close nexus.”

Id. at 799 (quoting

Eastern Steel Constructors, Inc. v. City of Salem, 549 S.E.2d 266,
272 (W. Va. 2001)).
Within the construction loan context, a “special relationship”
is created only when the lender performs extraordinary services,
such

as

“maintaining

oversight

of,

or

intervening

in,

the

construction process,” and then failing to disclose information to
the borrower about the quality of the construction when it is
foreseeable that the borrower would be injured.

White, 700 S.E.2d

at 798 (quoting Glascock v. City Nat. Bank of W. Va., Syl. Pt. 6,
576 S.E.2d 540, 541 (W. Va. 2002)). See also Blackburn v. Consumer
Portfolio Serv., Inc., 2012 WL 1679796 at *2 (S.D.W. Va. May 14,
2012) (stating that a special relationship does not arise unless “a
lender performs services not normally provided by a lender to a
borrower.”).

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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANT
BELPRE’S MOTION TO DISMISS [Dkt. No. 15]
The Bennetts’ complaint fails to allege any facts to support
the existence of a “special relationship” between them and Belpre.
The closest it comes is the allegation that Belpre “knew or should
have known that the subject manufactured home was not properly
installed, was not fit for occupancy, did not conform to the
applicable warranties, and was otherwise damaged and/or defective.”
(Dkt. No. 1-2 at 5).

Such allegations, however, provide no facts

about any extraordinary services Belpre provided, or about services
not usually provided by a lender to a borrower. Their negligence
claim thus fails as a matter of law because the Bennetts allege no
duty arising out of a special relationship Belpre owed to them.
The Court therefore grants Belpre’s motion to dismiss Count Eight.
C.

Count Nine: Unfair or Deceptive Acts or Practices
The Bennetts allege that Belpre committed acts that were per

se unfair and deceptive in the sale, installation, financing, and
repair of their newly manufactured home.

(Dkt. No. 1-2 at 11).

They allege general, unspecified unfair or deceptive acts pursuant
to W. Va. Code § 46A-6-104, as well as specifically enumerated
instances of deceptive acts.

Id.

Under the West Virginia Consumer Credit and Protection Act
(“the WVCCPA”), a consumer who suffers a monetary loss as a result
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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANT
BELPRE’S MOTION TO DISMISS [Dkt. No. 15]
of an unfair or deceptive act may bring an action to recover
damages.

W. Va. Code § 46A-6-106(a).

The elements of a cause of

action under § 46A-6-106(a) include “unlawful conduct by the
seller, an ascertainable loss on the part of the consumer, and a
causal connection between the ascertainable loss and the conduct
forming the basis of the lawsuit.”

Stanley v. Huntington Nat’l

Bank, 2012 WL 254135 at *7 (N.D.W. Va. Jan. 27, 2012) (citing White
v. Wyeth, 705 S.E.2d 828, 835 (W. Va. 2010)).
Belpre argues that the only allegation applicable to it in
Count Nine concerns the disbursal of loan funds before the home
installation was complete, and without the Bennetts’ approval.
(Dkt. No. 16 at 8; Dkt. No. 1-2 at 12).

It also argues, however,

that it was authorized to disburse loan proceeds under the terms of
the loan agreement.

(Dkt. No. 16 at 8).

attach the loan agreement to the complaint.

The Bennetts did not
Belpre provided the

loan agreement as an attachment to its motion to dismiss, and the
Court may consider the agreement because “it [is] integral to and
explicitly relied on in the complaint,” and the plaintiffs do not
challenge its authenticity.

Phillips v. LCI Intern., Inc., 190

F.3d 609, 618 (4th Cir. 1999).

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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANT
BELPRE’S MOTION TO DISMISS [Dkt. No. 15]
Under the terms of the loan agreement, Belpre could make
future advances “subject to inspections by a certified appraiser;
draws based on percent complete.” (Dkt. No. 15-2). This provision
bolsters the Bennetts’ argument that Belpre needed authorization
from an appraiser before disbursing loan funds, and failed to
receive it.

(Dkt. No. 18 at 12).

The Court therefore agrees that

the Bennetts’ allegations in the complaint regarding Belpre’s
premature disbursal of funds are sufficient at this stage.
The Bennetts also assert that Belpre is liable for all claims
under this Count as a “lender” under W. Va. Code § 46A-2-203.
(Dkt. No. 18 at 12).

Their argument fails for the reasons

discussed earlier regarding Counts One through Seven. Nonetheless,
for the reasons discussed above, the Court denies Belpre’s motion
to dismiss Count Nine.
D.

Count Ten: Common Law Fraud and Misrepresentation
The Bennetts claim that Belpre falsely promised to protect

their interests, and to disburse loan funds only when the home
installation was completed.

(Dkt. No. 1-2 at 13).

In addition,

they claim that Belpre concealed the existence of a business or
personal relationship with Bob’s Quality Homes, thereby creating a
conflict

of

interest.

Id.

The
15

Bennetts

state

that

they

BENNETT v. SKYLINE CORPORATION

1:14CV129

MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANT
BELPRE’S MOTION TO DISMISS [Dkt. No. 15]
justifiably

relied

upon

the

defendants’

representations

when

deciding to purchase and finance their home, and that they were
damaged by the misrepresentations.

Id. at 13-14.

The elements of a cause of action for fraud include:

“‘(1)

that the act claimed to be fraudulent was the act of the defendant
or induced by him; (2) that it was material and false; that
plaintiff relied upon it and was justified under the circumstances
in relying upon it; and (3) that he was damaged because he relied
upon it.’”

Cordial v. Ernst & Young, Syl. Pt. 3, 483 S.E.2d 248,

259 (W. Va. 1996) (quoting Lengyel v. Lint, Syl. Pt. 1, 280 S.E.2d
66 (W. Va. 1981), and Muzelak v. King Chevrolet, Inc., Syl. Pt. 2,
368 S.E.2d 737 (1927)).
Under Federal Rule of Civil Procedure 9(b), a plaintiff
alleging fraud must “state with particularity the circumstances
constituting fraud or mistake.”

The circumstances that must be

pleaded with particularity include “the time, place, and contents
of the false representations, as well as the identity of the person
making

the

misrepresentation

and

what

he

obtained

thereby.”

Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th
Cir. 1999).

“Malice, intent, knowledge, and other conditions of a

person’s mind may be alleged generally.”
16

Fed. R. Civ. Pro. 9(b).

BENNETT v. SKYLINE CORPORATION

1:14CV129

MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANT
BELPRE’S MOTION TO DISMISS [Dkt. No. 15]
Belpre argues, and the Court agrees, that the Bennetts’
complaint is largely devoid of facts regarding the “time, place,
and contents” of the alleged fraud and misrepresentations.

The

complaint merely states that Belpre disbursed funds to Bob’s
Quality Homes “without [their] authorization and against [their]
specific instructions, thus obligating [them] to repay Belpre, when
Belpre knew or should have known that the subject manufactured home
was not properly installed, was not fit for occupancy, did not
conform to the applicable warranties, and was otherwise damaged
and/or defective.”

(Dkt. No. 1-2 at 5).

The Bennetts do plead that Belpre had an “undisclosed personal
and/or business relationship” with Bob’s Quality Homes, but, as
noted earlier, their complaint provides no detail about the alleged
relationship.

Id.

Moreover, the Bennetts freely admit that

“without discovery” they “are unable to state any more details”
about the alleged misrepresentations, and seek leave to amend their
pleading if their allegations in Count Ten are deficient.

(Dkt.

No. 18 at 13).
“The

standard

set

forth

by

Rule

9(b)

aims

to

provide

defendants with fair notice of claims against them and...prevent
fraud actions in which all the facts are learned only following
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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANT
BELPRE’S MOTION TO DISMISS [Dkt. No. 15]
discovery....”

McCauley v. Home Loan Inv. Bank, F.S.B., 710 F.3d

551, 560 (4th Cir. 2013).

Thus, in the Court’s view, it would be

futile to grant the Bennetts’ motion to amend in the face of their
admission that they cannot state any more facts at this stage.

It

therefore denies the Bennetts’ request for leave to amend the
complaint and grants Belpre’s motion to dismiss Count Ten.
E.

Count Eleven:

Civil Conspiracy

The Bennetts claim that Skyline, Bob’s Quality Homes, and
Belpre were engaged in a civil conspiracy.

(Dkt. No 1-2 at 14).

West Virginia recognizes a cause of action for civil conspiracy,
Kessel v. Leavitt, 511 S.E.2d 720, 753 (W. Va. 1998), which is
defined as “a combination of two or more persons by concerted
action to accomplish an unlawful purpose or to accomplish some
purpose, not in itself unlawful, by unlawful means.”

Dunn v.

Rockwell, 689 S.E.2d 255, 268 (W. Va. 2009) (quoting Dixon v.
American Indus. Leasing Co., 253 S.E.2d 150, 152 (W. Va. 1979)).
Importantly, “[t]he cause of action is not created by the
conspiracy but by the wrongful acts done by the defendants to the
injury of the plaintiff.”

Id.

Thus, civil conspiracy is not a

stand alone cause of action, but is “a legal doctrine under which
liability for a tort may be imposed on people who did not actually
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MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANT
BELPRE’S MOTION TO DISMISS [Dkt. No. 15]
commit a tort themselves but who shared a common plan for its
commission with the actual perpetrator(s).”

Id. at 269.

Courts have granted summary judgment or dismissal as to claims
of civil conspiracy when there is no underlying tort to support the
claim. See, e.g., Long v. M&M Transp., LLC, __ F.Supp.2d ___, 2014
WL 4388337 at *13 (N.D.W. Va. Sept. 5, 2014).

In addition, the

court should grant a motion to dismiss a civil conspiracy charge
when the plaintiffs claim that the defendants “engaged in a civil
conspiracy” and “individually and collectively” committed wrongs,
but fail to allege facts to support that allegation.

Tucker v.

Thomas, 853 F.Supp.2d 576, 594 (N.D.W. Va. 2012).
The Bennetts do not allege a specific tort underlying their
civil

conspiracy

charge

in

Count

Eleven,

and

the

Court

has

dismissed both the negligence claim1 in Count Eight and also the
common law fraud and misrepresentation claim in Count Ten. The
civil conspiracy claim therefore fails as a matter of law based on
the absence of an underlying tort, and the Court grants Belpre’s
motion to dismiss Count Eleven.

1

The Bennetts’ negligence claim, in point of fact, is not an
actionable underlying tort for purposes of the civil conspiracy
claim. See generally 15A C.J.S. Conspiracy § 4 (2014). The Court
merely includes it here for completeness.
19

BENNETT v. SKYLINE CORPORATION

1:14CV129

MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANT
BELPRE’S MOTION TO DISMISS [Dkt. No. 15]

F.

Count Twelve:

Joint Venture

The Bennetts’ final claim is that Belpre was engaged in a
joint

venture

with

Skyline

and

Bob’s

Quality

manufactured homes to West Virginia consumers.
14).

Homes

to

sell

(Dkt. No. 1-2 at

A joint venture is “an association of two or more persons to

carry out a single business enterprise for profit, for which
purpose they combine their property, money, effects, skill, and
knowledge.”

Armor v. Lantz, Syl. Pt. 5, 535 S.E.2d 737, 742 (W.

Va. 2000) (citing Price v. Halstead, Syl. Pt. 2, 355 S.E.2d 380
(1987)).
A

joint

relationship.

venture
Id.

generally

arises

out

of

a

contractual

Members of a joint venture are jointly and

severally liable for the obligations arising out of the venture,
and actions of the joint venture bind individual venturers. Id. at
743. The distinguishing characteristics of a joint venture were
outlined by the Supreme Court of Appeals of West Virginia in
Pownall v. Cearfoss, 40 S.E.2d 886, 893-94 (W. Va. 1946). Although
an exact definition does not exist, “a contract, written or verbal,
is essential to create the relation of joint adventurers.”
893.
20

Id. at

BENNETT v. SKYLINE CORPORATION

1:14CV129

MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANT
BELPRE’S MOTION TO DISMISS [Dkt. No. 15]
In addition, the joint venturers “must combine their property,
money, efforts, skill, or knowledge, in some common undertaking of
a

special

or

particular

nature....”

Id.

A

profit-sharing

agreement, whether express or implied, is also essential to create
a joint venture.

Id.

An agreement to share losses is not

essential, especially “if the nature of the undertaking is such
that no losses...are likely to occur.”

Id. at 894.

Had the Bennetts sufficiently alleged the elements of a joint
venture, their claim would still fail for failure to plead an
adequate factual basis. All they allege is that Skyline, Bob’s
Quality Homes, and Belpre are engaged in a joint venture to sell
manufactured homes in West Virginia (dkt. no. 1-2 at 14); they
never assert how that relationship, if it does exist, is illegal or
tortious. The Bennetts must “plead[] factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678.
This requires “more than a sheer possibility that a defendant has
acted unlawfully.” Id. Here, because they have not alleged any
joint misconduct, the Bennetts have failed to nudge their claims
“across the line from conceivable to plausible.” Twombly, 550 U.S.
at 570.

The Court therefore dismisses Count Twelve.
21

BENNETT v. SKYLINE CORPORATION

1:14CV129

MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANT
BELPRE’S MOTION TO DISMISS [Dkt. No. 15]
III.

CONCLUSION

For the reasons discussed, the Court GRANTS IN PART and DENIES
IN PART Belpre’s motion to dismiss, DISMISSES Counts One, Two,
Three, Four, Five, Six, Seven, Eight, Ten, Eleven, and Twelve
WITHOUT PREJUDICE, and DENIES Belpre’s motion to dismiss Count
Nine.
It is so ORDERED.
The Court directs the Clerk to transmit copies of this order
to counsel or record.
DATED: October 7, 2014.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

22