United States District Court, W.D. Virginia, Charlottesville Division
FRED T. CAPERTON, III, et al., Plaintiffs,
VIRGINIA DEPARTMENT OF TRANSPORTATION, et al., Defendants.
Glen E. Conrad Chief United States District Judge.
Caperton, Thirty Three, Inc., and Appearance Landscaping
& Maintenance, Inc. filed this action in the Circuit
Court of Culpeper County against the Virginia Department of
Transportation ("VDOT") and two VDOT employees,
Emmet Heltzel and Angelica Babb, asserting claims under 42
U.S.C. § 1983 and Virginia law. The defendants removed
the case to this court on the basis of federal question
jurisdiction, and then moved to dismiss the complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6).
Following a hearing on the defendants' motion, the court
dismissed the plaintiffs' federal claims under §
1983 and remanded the state-law claims. The plaintiffs have
since filed a motion to amend the judgment and for leave to
file an amended complaint. For the reasons that follow, the
plaintiffs' motion will be denied.
following facts, taken from the plaintiffs' proposed
amended complaint, are accepted as true for purposes of the
pending motion. See Hall v. Greystar Mgmt. Servs.,
L.P., 637 F.App'x 93, 94 (4th Cir. 2016) (citing
Ridpath v. Bd. of Governors Marshall Univ.. 447 F.3d
292, 300 n.3 (4th Cir. 2006)).
Caperton, who resides in Culpeper, Virginia, operates two
companies that provide "hauling, site maintenance . . .,
winter weather preparation[, ] snow and ice removal, and
landscaping" services. Proposed Am. Compl. ¶¶
9-11. One of those companies, Appearance Landscaping, Inc.
("Appearance"), was formed in January of 2006. The
other, Continental Land Development, Inc.
("Continental"), was formed in July of 2006.
its incorporation, Continental successfully bid on a number
of contracts with VDOT for the performance of snow removal
services. Continental also entered into snow removal
equipment agreements ("M-7B Agreements") with VDOT,
pursuant to which Continental provided equipment on an
was awarded snow removal contracts for three routes during
the winter of 2013-2014 (the "2013-2014 Route Bid
Contracts"). In January of 2014, VDOT personnel
complained about the work performed by Continental. That same
month, VDOT issued Notices of Contract Deficiencies. Although
Continental disputed the validity of VDOT's complaints
and attempted to remedy the alleged deficiencies, VDOT issued
Notices of Contract Termination to Continental on February 10
and 11, 2014, which terminated two of the 2013-2014 Route Bid
Contracts for cause and the third for convenience.
Continental received no further communication from VDOT after
these notices were issued.
March of 2014, Caperton's wife, Lauren Caperton
("Lauren"), formed Thirty Three, Inc. ("Thirty
Three") for the purpose of providing hauling, site
maintenance, winter weather preparation, and snow and ice
removal services. A few months later, Heltzel, a state
maintenance engineer for VDOT, "issued internal
correspondence to VDOT Maintenance Managers, Infrastructure
Managers, and Assistant District Administrators [advising]
that VDOT would not do business with either Continental Land
Development, Inc. or Thirty Three, Inc., " and that the
companies '"had been placed in default from the
competitive bid process.'" Id. ¶ 33.
Neither Caperton nor his wife was notified of this decision.
September 17, 2014, Caperton submitted a proposed M-7B
Agreement to VDOT on behalf of Thirty Three. Twelve days
later, Caperton submitted a proposed M-7B Agreement to VDOT
on behalf of Appearance. The plaintiffs allege that Babb, a
procurement manager for VDOT, "instructed other VDOT
personnel not to accept any M-7B Agreement proposals signed
by Mr. Caperton, or any other agreements indicating that any
portion of the work would be performed by Mr. Caperton or by
vehicles or equipment owned by Mr. Caperton."
Id. ¶ 43.
Thirty Three's proposed M-7B Agreement was rejected by
VDOT, Lauren emailed Babb and requested an explanation.
In.response, Babb indicated that "VDOT cannot and does
not prohibit any vendor from submitting a bid."
Id. ¶ 46 (internal quotation marks omitted).
Babb went on to indicate that the reason Thirty Three's
M-7B Agreement was rejected was because of Caperton's
association with the business.
October 1, 2014, Caperton emailed a VDOT contracts
administrator and asked whether his vehicles could be leased
to other vendors that perform snow removal services for VDOT.
In response, a VDOT infrastructure manager advised Caperton
that "the decision not to accept a proposal from . . .
Caperton was based on an investigation of the bidder's
qualifications." Id. ¶ 49.
October 10, 2014, counsel for Thirty Three sent Babb a letter
rebutting the "facts and findings" in her earlier
correspondence. Id. ¶ 50. Babb sent a response
to counsel on October 20, 2014. In her response, Babb
indicated that Thirty Three "had been determined a
Non-Responsible Bidder by VDOT as that term is used in the
[Virginia Public Procurement Act (VPPA)], specifically
finding that Thirty Three, Inc. 'lacks business integrity
and reliability that will ensure good faith
performance.'" Id. ¶ 51. The
plaintiffs allege that, in making the non-responsibility
determination, VDOT did not comply with the applicable
provisions of the VPPA. See id ¶ 52 (citing Va. Code
plaintiffs also allege that "[a] finding of
'non-responsibility' or 'ineligibility' by a
Commonwealth purchasing entity may affect a bidder's
qualification to bid on other public procurement contracts in
the future under the [Virginia Vendor's] Manual."
Id. ¶ 40. The plaintiffs emphasize that the
Vendor's Manual, which is "published by the
Commonwealth's Department of General Services and
utilized by VDOT and other Virginia public bodies and
agencies, specifically requires the consideration of a
vendor's past performance, " and that "the VPPA
permits inspection of a vendor's 'record of
integrity' as [a] factor in determining whether a
bidder is a 'responsible bidder.'" Id.
at 64. Consequently, the plaintiffs allege that "[t]he
stain of a determination of non-responsibility may likely
follow both Caperton and Thirty Three as Commonwealth agency
procurers subject to the Virginia Vendor's Manual are
required to investigate into past non-responsibility and
eligibility status." Id. at 65.