United States District Court, E.D. Virginia, Richmond Division
E. PAYNE, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on the MOTION TO DISMISS THE
COMPLAINT (ECF No. 3), filed by the Defendants, Tompkins
Builders, Inc. ("TBI"), S.B. Ballard Construction
Company ("SBBC"), T.K. Davis Construction, Inc.
("Davis, Inc."), Watson Electrical Construction Co.
LLC ("Watson Electrical"), David Brown
("Brown"), David Collins ("Collins"), and
Richard Allard, Jr. ("Allard"). For the reasons set
forth below, the MOTION TO DISMISS THE COMPLAINT (ECF No. 3)
will be granted and the action will be dismissed with
29, 2015, William Brown, Jr. ("Brown") filed a
Complaint (Civil Action No. 3:15cv447, ECF No. 1) on behalf
of himself and B&M Hitech Electric ("B&M")
against Watson Electrical, Craig Myers, Brown, Collins, and
Allard. The Complaint alleged the following claims: (1)
discrimination against Brown and B&M in violation of 42
U.S.C. § 1981; (2) fraud; and (3) breach of contract.
That case will hereafter be "the First Action."
January 15, 2016, a MOTION TO DISMISS the First Action (ECF
No. 4), filed by the above-named Defendants, was granted, and
the First Action was dismissed with prejudice (ECF No. 14)
because all three claims were found to be legally
insufficient. Although the Plaintiffs appealed that judgment
to the United States Court of Appeals for the Fourth Circuit,
the Plaintiffs filed in this Court a NOTICE OF WITHDRAWAL of
the appeal (Civil Action No. 3:15cv447, ECF No. 17) on
February 2, 2016, and the appeal was dismissed by the Fourth
Circuit for failure to prosecute on May 10, 2016 (ECF No.
16, 2016, Brown, for himself and B&M, filed this action.
This time the Complaint alleges only a claim of fraud.
See Compl. (Title Page, and p. 2) . This case will
hereafter be "the Second Action." The fraud claim
in the Second Action is the same as the fraud claim in the
First Action The named defendants in the Second Action are:
TBI, SBBC, Watson Electrical, Brown, Collins, and Allard. The
only difference in parties between the First Action and the
Second Action is that, in the Second Action, the Complaint
deletes Craig Myers as a defendant, and adds TBI, SBBC and
Davis, Inc. as defendants.
TBI/SBBC (a/k/a the Tompkins/Ballard) Joint Venture was the
general contractor responsible for the design and
construction of the Richmond City Jail Project (the
"Project"). Compl. ¶¶ 1-3.Watson Electrical
was a subcontractor on the Project. B&M had a subcontract
with Watson Electrical for work related to the security
system for the Project. Id. at 4; Exs. B&C.
Contractor Controlled Insurance Program ("CCIP")
provided insurance for the operations of enrolled contractors
and subcontractors on the Project. Compl. ¶¶ 1-3;
Ex. A. B&M completed the application to enroll in the
CCIP. Compl. ¶ 3; Ex. A. The CCIP Contract provides,
inter alia, that "[p]remiums for this Program
are the responsibility of Tompkins Builders, Inc. . . ."
original subcontract for B&M was for $1, 875, 000.00. Ex.
C.l. After reconciliation, the Final Subcontract reflected a
balance due to B&M for $5, 833.00. The reconciliation
included $66, 208.00 for CCIP deductions, as well as
deductions that were made for problems that occurred during
Complaint alleges that "Watson Electric and Dave Collins
committed an act of fraud by issuing deductions to the
Plaintiffs  of $66, 208 when they had no legal authority in
the Plaintiffs' Contract or any documentation whatsoever
to make a deduction in the name of the CCIP Program."
Compl. ¶ 4. Further, the Complaint alleges that Allard,
Collins, and Watson Electrical created a false and fraudulent
"Final Subcontractor Reconciliation", listing
fraudulent deductions of $11, 584, $66, 208, $3, 000, $520,
for a gross total of $81, 312. Id. at 5.
Plaintiffs request compensatory damages in the amount of $81,
312 and punitive damages of $5, ...