United States District Court, E.D. Virginia, Norfolk Division
OLD DOMINION UNIV. RESEARCH FOUND., Plaintiff-Counterclaim Defendant,
AQUA TERRA INT'L, LLC, Defendant-Counterclaim Plaintiff.
OPINION AND ORDER
HENRY COKE MORGAN, Jr., District Judge.
This matter is before the Court on Plaintiff-Counterclaim Defendant Old Dominion University Research Foundation's ("ODURF") Motions to Dismiss Defendant-Counterclaim Plaintiff Aqua Terra International LLC's ("Aqua Terra") Counterclaim, Doc. 26, and Motion to Strike the First Affirmative Defense of the Amended Answer, Doc. 27. The issues are fully briefed, and a hearing will not aid the decisional process. For the reasons stated herein, the Court DENIES the Motions.
A complete background of the case can be found in the Court's November 5, 2014 Opinion and Order. Old Dominion Univ. Research Found. v. Aqua Terra Int'l, LLC, No. 2:14cv305. 2014 WL 5790944 (E.D. Va. Nov. 5, 2014). In this Opinion and Order, the Court denied a motion to dismiss, granted a motion for more definite statement, and granted in part a motion to strike. Id. at * 1.
On November 7, 2014, Aqua Terra filed its Amended Answer and Amended Counterclaim. The parties agree for the purposes of the instant Motions, the allegations concerning the counterclaim of fraud and the affirmative defense of fraud are identical. The amended pleadings sought to remedy the defects the Court found in the original answer and counterclaim, by more specifically identifying the alleged fraudulent statements, and removing post-contractual misrepresentations.
On November 18, 2014, ODURF filed the instant Motions, as well as an Answer to the Amended Counterclaim. Aqua Terra responded in opposition to the Motions on December 2, 2014. Doc. 30. ODURF filed its reply brief on December 8, 2014. Doc. 31.
II. LEGAL STANDARDS
a. Motion to Dismiss
A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint; "it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of North Carolina v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). "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, 550 U.S. 544, 570 (2007)). Although a court must accept as true all well-pleaded factual allegations, the same is not true for legal conclusions. Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
In deciding the motion, a court may consider the facts alleged on the face of the complaint, as well as "matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint." Moore v. Flagstar Bank, 6 F.Supp.2d 496, 500 (E.D. Va. 1997) (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (1990)). The court may look to documents attached to the Complaint and those incorporated by reference without converting a Rule 12(b)(6) motion into a Rule 56 motion for summary judgment. See Pueschel v. United States, 369 F.3d 345, 353 n.3 (4th Cir. 2004) (citations omitted).
b. Motion to Strike
"Whether to grant a motion to strike under Rule 12(f) is within the sound discretion of the district court." Grant v. Bank of America, N.A., No. 2:13cv342, 2014 WL 792119, at *2 (E.D. Va. Feb. 25, 2014) (internal quotation marks and citation omitted). "To grant a Rule 12(f) motion, the court must determine that the challenged allegations are so unrelated to the plaintiffs claims as to be unworthy of any consideration as a defense and that their presence in the pleading throughout the proceeding will be prejudicial to the moving party." Id. at *2 (internal quotation marks and citation omitted). "A plaintiff may demonstrate prejudice if the answer unclearly articulates to which claims the affirmative defenses apply." Francisco v. Verizon South, Inc., No. 3:09cv737, 2010 WL 2990159, at *5 (E.D. Va. July 29, 2010). When granted, the Court should generally grant leave to amend the stricken pleading. Grant, 2014 WL 792119, at *3.
Aqua Terra's Counterclaim alleges two counts in its Amended Counterclaim: the first for actual fraud, and the second for constructive fraud. ODURF moves to dismiss the Amended Counterclaim, and strike the Amended Answer, for the following reasons: (1) that the alleged misrepresentations are not actionable because they are opinions or promises of future performance; (2) Aqua Terra did not reasonably rely upon ODURF's statements; (3) a claim of constructive fraud cannot be based on a fraudulent omission or concealment of material facts; and (4) Aqua Terra has not complied with ...