United States District Court, W.D. Virginia, Abingdon Division
R. FRANCIS DiPRETE, Plaintiff,
950 FAIRVIEW STREET, LLC, ET AL., Defendants.
P. Jones United States District Judge R. Francis DiPrete, Pro
Se Plaintiff; Robert T. Copeland
Copeland Law Firm, P.C., Abingdon, Virginia, for Defendants
Michael Stramiello and 950 Fairview Street, LLC.
OPINION AND ORDER
P. Jones, United States District Judge.
contractual dispute, defendants Michael Stramiello and 950
Fairview Street, LLC, have moved to dismiss pursuant to Rules
12(b)(1), (2), and (6) of the Federal Rules of Civil
Procedure. For the following reasons, I will dismiss one of
the plaintiff’s claims entitled “Bad Faith
Breach, ” but I will otherwise deny the
following facts are taken from the plaintiff’s pro se
Complaint and attached documents, which facts I am bound at
this point to accept as true.
plaintiff alleges that he entered into a consulting agreement
with the defendants for the purpose of redeveloping real
property located at 950 Fairview Street in Bristol, Virginia.
He asserts that defendant Michael Cosola is the owner of that
property, while defendant Stramiello has “a beneficial
ownership in the property.” (Compl. ¶ 7, ECF. No
1.) Defendant 950 Fairview Street, LLC (“950
Fairview”) is an entity that appears to have existed
for the purpose of advancing the business interests
associated with the property.
plaintiff claims that the consulting agreement began on June
1, 2011, and continued until July 31, 2013. While the
plaintiff attached a copy of a written agreement to his
Complaint, he agrees that it was never signed by the parties.
The plaintiff alleges that he nonetheless fulfilled his
duties under the agreement.
plaintiff says that the consulting agreement mandated that he
was to be paid $6, 000 per month for his consulting services
during each month of the contractual period. He also claims
that he accrued $18, 170.82 in expenses while working for the
defendants, and that the consulting agreement required him to
be reimbursed for those expenses. Lastly, he alleges that he
was promised a 15 per cent ownership stake in the property to
compensate for the defendants’ failure to timely pay
him the other amounts due.
plaintiff filed his Complaint on June 29, 2015, asserting
separate claims for breach of contract, bad faith breach of
contract, and establishment of a constructive trust on the
subject property and its proceeds.
defendants previously moved for dismissal under Rule
12(b)(5); they argued that there had been insufficient
service of process and a failure to timely effectuate
process. The pro se plaintiff admitted that proper service
had not been effected in a timely manner, so I granted him an
extension until February 15, 2016, to effect such service. I
later extended the deadline for effecting service to February
29, 2016. The record shows that defendant Stramiello was
served on February 24, 2016 with two summonses. One of these
summonses was addressed to him, while the other was addressed
to 950 Fairview.
and 950 Fairview separately argue that dismissal is
appropriate under Rules 12(b)(1), (2), and (6) of the Federal
Rules of Civil Procedure. ...