OPINION
PAUL
L. FRIEDMAN UNITED STATES DISTRICT JUDGE.
Pending
before the Court in these consolidated actions is the motion
[Dkt. No. 135 in Civil Action No. 10-0022 and Dkt. No. 136 in
Civil Action No. 10-0023] of defendant Council on
American-Islamic Relations Action Network, Inc.
("CAIR") for partial summary judgment on
plaintiffs' claim under the Virginia Consumer Protection
Act ("VCPA"), Va. Code Ann. § 59.1-196, et
seq. Upon careful consideration of the parties' papers,
the relevant legal authorities, and the entire record in this
case, the Court will deny the motion.[1]
I.
BACKGROUND
The
Court's prior Opinions summarize the factual and
procedural history of this case. See Lopez v. CAIR,
741 F.Supp.2d 222 (D.D.C. 2010); Saiyed v. CAIR, 742
F.Supp.2d 84 (D.D.C. 2010); Saiyed v. CAIR, 78
F.Supp.3d 465 (D.D.C. 2015), rev, and remanded by Lopez
v. CAIR, 826 F.3d 492 (D.C. Cir. 2016). Briefly, CAIR is
a national "Muslim advocacy group." See Statement
of Facts ¶ 4. Between 2007 and 2008, plaintiffs sought
legal assistance from Morris Days, an individual who was
hired to "act as resident attorney" of CAIR's
Virginia chapter, CAIR-VA. See Id. at 4-5. In
particular, Mr. Days allegedly promised to assist plaintiffs
with claims relating to "immigration status, divorce
proceedings, hostile work environment, and employment
discrimination." See Lopez Am. Compl. ¶
14; Saiyed Am. Compl. ¶¶ 54-55. Mr. Days
purportedly took money and other forms of payment from at
least some of the plaintiffs in exchange for these promises
of representation, despite CAIR's policy to provide legal
services pro bono. See Statement of Facts ¶ 5;
Saiyed Am. Compl. ¶ 6. Mr. Days, however, was
not a licensed attorney and "did not provide the
services he represented he would provide Plaintiffs."
Statement of Facts ¶ 5. CAIR-VA was dissolved in 2008.
See Statement of Facts ¶ 4; Def MSJ at 12.
In
2010, plaintiffs filed two separate lawsuits against CAIR
based on Mr. Days' misrepresentations. The Court
subsequently granted CAIR's motion to consolidate the
cases. See Saiyed v. CAIR, 742 F.Supp.2d at 89;
Lopez v. CAIR, 741 F.Supp.2d at 239. Plaintiffs
filed their first amended complaints in 2010 asserting five
causes of action: (1) violations of the District of Columbia
Consumer Protection Procedures Act (Count One); (2)
violations of the VCPA (Count Two); (3) common law fraud and
conspiracy to commit fraud (Count Three); (4) breach of
fiduciary duties (Count Four); and (5) infliction of
emotional distress (Count Five). See Saiyed Am.
Compl. ¶¶ 84-129; Lopez Am. Compl.
¶¶ 127-172.
In
2010, the Court granted CAIR's motion to dismiss
plaintiffs' claim brought under the District of Columbia
Consumer Protection Act (Count One), holding that
"Virginia's consumer protection law, not the
District of Columbia's . . . controls the plaintiffs'
claims." See Lopez v. CAIR, 741 F.Supp.2d at
235; Saiyed v. CAIR, 742 F.Supp.2d at 88. In 2015,
the Court granted summary judgment in favor of CAIR and
dismissed the remaining claims. See Saiyed v. CAIR,
78 F.Supp.3d 465. In 2016, the D.C. Circuit reversed this
Court's grant of summary judgment on the ground that
plaintiffs had "presented sufficient evidence in this
case to raise a genuine issue of material fact" as to
whether an "actual agency relationship existed between
Days and CAIR National." See Lopez v. CAIR, 826
F.3d at 497.
On
remand, this Court ruled that three causes of action would
proceed to trial: (1) common law fraud under Virginia law
(Count Three); (2) common law breach of fiduciary duty under
Virginia law (Count Four); and (3) violation of the VCPA
(Count Two). See Oct. 7, 2016 Mem. Op. & Order at 2. CAIR
moved for partial summary judgment on the VCPA claim (Count
Two) in January 2018. See Mot. at 1.
II.
LEGAL STANDARD
Summary
judgment is appropriate only if "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); see Baumann v. District of Columbia, 795
F.3d 209, 215 (D.C. Cir. 2015); Fed.R.Civ.P. 56(a), (c). In
making that determination, the Court must view the evidence
in the light most favorable to the nonmoving party and draw
all reasonable inferences in its favor. Baumann v.
District of Columbia, 795 F.3d at 215; see Tolan v.
Cotton, 134 S.Ct. 1861, 1866 (2014) (per curiam);
Anderson v. Liberty Lobby, Inc., 477 U.S. at 255;
Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir.
2011).
A
disputed fact is "material" if it "might
affect the outcome of the suit under the governing law."
Talavera v. Shah, 638 F.3d at 308 (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). A
dispute over a material fact is "genuine" if it
could lead a reasonable jury to return a verdict in favor of
the nonmoving party. See Scott v. Harris. 550 U.S.
372, 380 (2007); Grimes v. District of Columbia, 794
F.3d 83, 94-95 (D.C. Cir. 2015); Paige v. DEA, 665
F.3d 1355, 1358 (D.C. Cir. 2012). "Credibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions,
not those of a judge at summary judgment. Thus, [the Court]
do[es] not determine the truth of the matter, but instead
decide[s] only whether there is a genuine issue for
trial." Barnett v. PA Consulting Grp., Inc.,
715 F.3d 354, 358 (D.C. Cir. 2013) (quoting
Pardo-Kronemann v. Donovan, 601 F.3d 599, 604 (D.C.
Cir. 2010)). See also Tolan v. Cotton, 134 S.Ct. at
1866; Baumann v. District of Columbia, 795 F.3d at
215; Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir.
2015).
III.
DISCUSSION
In its
motion, CAIR contends that the legal services at issue do not
qualify as "consumer transactions" under the VCPA.
See Mot. at 7. CAIR further argues that even if the legal
services at issue qualify as "consumer
transactions," they are excluded under the terms of the
statute. See Id. at 10. For the reasons that follow,
the Court disagrees. Concluding that CAIR is not entitled to
judgment as a matter of law, it therefore will deny the
motion for summary judgment.
A.
Preliminary Matters
As a
preliminary matter, plaintiffs argue that the motion is
untimely under Rule 56 of the Federal Rules of Civil
Procedure. See Opp'n at 11. The Court disagrees. Rule 56
provides that "[u]nless a different time is set by local
rule or the court orders otherwise, a party may file a motion
for summary judgment at any time until 30 days after the
close of all discovery." Fed.R.Civ.P. 56(b). In December
2017, Magistrate Judge Deborah A. Robinson - to whom this
case was referred for the management of discovery - issued an
order permitting plaintiffs to take a "follow-on
deposition" of CAIR's legal expert on February 12,
2018. See Dec. 14, 2017 Minute ...