United States District Court, W.D. Virginia, Charlottesville Division
Glen E. Conrad Chief United States District Judge.
diversity action, Steven Golia claims that David Thomas and
David Buoncristiani committed legal malpractice in the course
of representing him in the case of American Demolition
and Nuclear Decommissioning. Inc. v. IBCS Group, Inc.,
No. 3:11CV00078 (W.D. Va. filed Dec. 9, 2011) ("the
ADND case"). Thomas and Buoncristiani
(collectively, "the attorneys") have moved to
dismiss Golia's second amended complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. For the
reasons set forth below, the motions will be granted in part
and denied in part.
following facts, taken from Golia's second amended
complaint, are accepted as true for purposes of the
attorneys' motions to dismiss. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007).
a New Jersey resident, worked for IBCS Group, Inc.
("IBCS"), a Florida corporation based in
Charlottesville, Virginia, from February of 2008 until
February of 2012. IBCS is owned and controlled by Edmund
Scarborough, an individual surety who resides in Earlysville,
September 2008 and September 2009, IBCS distributed a
marketing brochure to American Demolition and Nuclear
Decommissioning, Inc. ("ADND"). The brochure, which
was located on the IBCS website, indicated that IBCS
"would 'reverse the transaction' if a bond
issued by IBCS was rejected by a Contracting Officer."
2d Am. Compl. ¶ 16. The brochure also indicated that
Scarborough's bonds were '"good enough to be
approved by the federal government, '" and that they
'"may be backed by cash, cash equivalents or readily
marketable assets.'" Id. ¶ 17.
March 19, 2009, ADND retained IBCS to supply a bond in
support of a bid for the performance of demolition work at a
federal government project in Aiken, South Carolina
("the Aiken Project"). ADND executed a General
Agreement of Indemnity, which "contained the following
language concerning the refund of bond premiums: '[t]he
full initial fee is fully earned upon execution of the bond
and will not be refunded, waived or cancelled for any
reason.'" Id ¶ 19.
December 10, 2009, ADND paid the required bond premium in the
amount of $138, 005.00. Prior to paying the premium, William
Schaab, an ADND representative, had a personal conversation
with Scarborough. Consistent with the representations in the
marketing brochure, Scarborough advised Schaab that the bond
premium would be refunded in the event that the bond was
rejected by the Contracting Officer.
presented the bond to ADND on December 16, 2009. The
Contracting Officer at the Aiken Project ultimately rejected
the bond. The Contracting Officer determined that the bond
failed to meet certain security and collateral requirements
set forth in the Federal Acquisition Regulations
notified IBCS of the Contracting Officer's decision. IBCS
was unable to supply a replacement bond that would satisfy
the FAR requirements. Consequently, ADND was forced to
purchase another bond from a different surety.
subsequently requested a refund of the $138, 005.00 bond
premium paid to IBCS. However, IBCS, through Scarborough,
refused to provide a refund.
December 9, 2011, ADND filed suit in this court against IBCS,
Scarborough, and Golia, asserting a claim of false
advertising under Virginia law. The case was assigned to the
undersigned district judge.
after IBCS was served with the complaint, IBCS
representatives sought the legal services of Thomas and
Buoncristiani. The attorneys agreed to represent IBCS,
Scarborough, and Golia. They subsequently filed ajoint answer
on behalf of all three defendants. The answer did not assert
any individual defenses on behalf of Golia.
January 10, 2014, ADND moved for summary judgment against
IBCS, Scarborough, and Golia. Golia claims that the attorneys
did not advise him of the filing of the motion, or consult
with him regarding any potential individual defenses or