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Golia v. Thomas

United States District Court, W.D. Virginia, Charlottesville Division

June 14, 2016

STEVEN GOLIA, Plaintiff,
v.
DAVID W. THOMAS and DAVID M. BUONCRISTIANI, Defendants.

          MEMORANDUM OPINION

          Hon. Glen E. Conrad Chief United States District Judge.

         In this 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.

         Background

         The 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).

         Golia, 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, Virginia.

         Between 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.

         On 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.

         On 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.

         IBCS 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 ("FAR").

         ADND 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.

         ADND subsequently requested a refund of the $138, 005.00 bond premium paid to IBCS. However, IBCS, through Scarborough, refused to provide a refund.

         On 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.

         Immediately 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.

         On 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 ...


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