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Brown v. Tompkins Builders, Inc.

United States District Court, E.D. Virginia, Richmond Division

December 6, 2016

WILLIAM BROWN, JR., et al., Plaintiffs,
v.
TOMPKINS BUILDERS, INC., et al., Defendants.

          MEMORANDUM OPINION

          ROBERT E. PAYNE, SENIOR UNITED STATES DISTRICT JUDGE

         This 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 prejudice.

         BACKGROUND

         A. Procedural Background

         On July 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."

         On 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. 19).

         On July 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.

         B. Factual Background

         The 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.[1]Watson Electrical was a subcontractor on the Project. B&M[2] had a subcontract with Watson Electrical for work related to the security system for the Project. Id. at 4; Exs. B&C.

         A 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. . . ." Ex. A.

         The 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 construction.

         The 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.

         The Plaintiffs request compensatory damages in the amount of $81, 312 and punitive damages of $5, ...


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