Baker v. Elam
3:12-cv-00393
E.D. Va.Jul 24, 2012Background
- Baker sues Elam and EAH for breach of an agreement to collect, freeze, and store semen from two Labradors (Grady and Louie).
- In June 2008, Baker contracted to collect, freeze, and store semen from both dogs; the defendants allegedly failed to preserve the samples properly.
- Around April 11, 2011, semen destruction occurred due to a lab equipment failure, with initial reporting delayed for months.
- Baker alleges the defendants concealed the loss and encouraged further extractions to conceal the destruction.
- He claims substantial monetary loss (approximately $300,000) and seeks six counts, statutory fees under Va. Code § 59.1-204(B), and punitive damages.
- The court grants in part and denies in part the motions to dismiss, dismissing Counts III, IV, VI (constructive fraud, negligent misrepresentation, and VCPA claim) and the VCPA fees, but allowing punitive damages to proceed to summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| VCPA applicability to the transaction | Baker contends the semen sale/lease is a consumer transaction. | Elam argues the transaction is not consumer, merchant-to-merchant. | VCPA does not apply; transaction not a consumer transaction. |
| Constructive fraud viability | Baker asserts misrepresentation and concealment caused damage. | Defendants contend lack of particularized pleadings; no plausible claim. | Constructive fraud dismissed for failure to plead with particularity; Rule 9(b) not satisfied. |
| Negligent misrepresentation as a separate claim | Counts as misrepresentation independent of constructive fraud. | Virginia law does not recognize negligent misrepresentation as separate from constructive fraud. | Negligent misrepresentation dismissed as duplicate of constructive fraud. |
| Attorneys' fees under VCPA | Fees requested under the VCPA should be recoverable if prevailing. | American Rule generally bars such fees absent statutory/contractual provision. | VCPA statutory fees are dismissed; no fee recovery absent statute/contract. |
| Punitive damages scope | Punitive damages should be available given alleged recklessness. | Summary judgment not yet, but punitive damages require clear showing of egregious conduct. | Punitive damages survive for summary judgment consideration; not dismissed at this stage. |
Key Cases Cited
- Mortarino v. Consultant Eng'g Servs., 251 Va. 289 (1996) (constructive fraud requires knowledge or belief of falsity and causation; heightened pleading)
- Alequin v. Reliance, 247 Va. 143 (1994) (clear and convincing standard for constructive fraud; Rule 9(b) pleading)
- Richmond Metro. Auth. v. McDevitt St. Bovis, Inc., 256 Va. 553 (1998) (elements of constructive fraud; pleading requirements)
- Hillson Partners Ltd. Partnership v. Adage, Inc., 42 F.3d 204 (4th Cir. 1994) (Rule 9(b) specificity requirements for fraud claims)
- Bowers v. Westvaco Corp., 244 Va. 139 (1992) (reckless or conscious disregard for punitive damages standard)
- Mullins v. Richlands Nat'l Bank, 241 Va. 447 (1991) (fee-shifting generally absent without contract/statute)
- Lannon v. Lee Conner Realty Corp., 238 Va. 590 (1989) (attorney fees not recoverable absent contract/statute)
- Gilmore v. Basic Indus., 233 Va. 485 (1987) (traditional rule on attorney fees absence of statute/contract)