United States District Court, District of Columbia
Rosemary M. Collyer United States District Judge.
Michael Seibert and his attorney, Timothy Hyland, move to
dismiss counterclaims brought by Precision Contracting
Solutions, LP (PCS) and its sole owner and partner, Derrick
Sieber, against Messrs. Seibert and Hyland in connection with
a construction contract dispute. Mr. Seibert brought several
tort and contract claims against PCS and Mr. Sieber
concerning a PCS construction project performed on Mr.
Seibert's residential property. Defendants answered and
counterclaimed, alleging breach of contract and fraud against
Mr. Sieber and defamation against Messrs. Seibert and Hyland.
Both have moved to dismiss any fraud and defamation
counterclaims brought against them. Because the Court finds
that Defendants have failed to plead a fraud claim under D.C.
law and have conceded their defamation claims, the Court will
grant Messrs. Seibert's and Hyland's motions to
Seibert and PCS signed a contract on December 8, 2017, by
which PCS agreed to make certain upgrades to Mr.
Seibert's residential property in Washington, D.C.
See Ex. 1, Compl., Precision Construction Contract
(Contract) [Dkt. 1-1]. Mr. Seibert paid for most of the work
but refused to make the last payment because the work was
allegedly shoddy, incomplete, and performed without the
necessary permits. PCS initiated arbitration to collect the
unpaid balance of the Contract, and Mr. Seibert sued PCS,
Derrick Sieber, and Stephen Sieberon April 10, 2018, seeking
a declaratory judgment that the arbitration clause is
unenforceable and raising claims of fraud in the inducement,
reformation, breach of contract, and unlawful trade
practices. Mr. Seibert moved to stay the arbitration
initiated by PCS and Defendants separately moved to dismiss
for lack of subject matter jurisdiction. On February 26,
2019, the Court issued a Memorandum Opinion and Order
granting Mr. Seibert's Motion to Stay and denying
Defendants' Motions to Dismiss. See Mem. Op.
[Dkt. 35]; Order [Dkt. 36].
March 19, 2019, PCS and Mr. Sieber filed their Answer and
Counterclaim. The Counterclaim advances three counts: Count I
alleges breach of contract against Mr. Seibert; Count II
alleges common law fraud against Mr. Seibert; and Count III
alleges defamation against Mr. Seibert and Mr. Seibert's
counsel, Timothy Hyland. Mr. Seibert filed his Answer to
Count I and moved to dismiss Counts II and III on March 26,
2019. See Michael Seibert's Corrected Answer to
Count I of the Countercl. [Dkt. 42]; Michael Seibert's
Partial Mot. to Dismiss the Countercl. [Dkt. 41]. Mr. Hyland
moved to dismiss Count III shortly thereafter. See
Countercl. Def. Timothy Hyland's Mot. to Dismiss the
Countercl. [Dkt. 43]. The matter is ripe for
motion to dismiss for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6) challenges the
adequacy of a complaint on its face. Fed.R.Civ.P. 12(b)(6).
To survive a motion to dismiss, the complaint must contain
sufficient factual information, accepted as true, to
“state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). A court must assume the truth of all
well-pleaded factual allegations and construe reasonable
inferences from those allegations in favor of the plaintiff.
Sissel v. Dep't of Health & Human Servs.,
760 F.3d 1, 4 (D.C. Cir. 2014). A court need not accept
inferences drawn by a plaintiff if such inferences are not
supported by facts set out in the complaint. Kowal v. MCI
Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
Further, a court need not accept as true legal conclusions
set forth in a complaint. Iqbal, 556 U.S. at 678. In
deciding a motion under Rule 12(b)(6), a court may consider
the facts alleged in the complaint, documents attached to the
complaint as exhibits or incorporated by reference, and
matters about which the court may take judicial notice.
Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052,
1059 (D.C. Cir. 2007). The same standards govern a motion to
dismiss a counterclaim. Kevin S. Bennett Trust U/A Dated
August 2, 1989 v. Bennett, 561 F.Supp.2d 22, 26 (D.D.C.
essential elements of common law fraud under District of
Columbia law are: “(1) a false representation (2) in
reference to material fact, (3) made with knowledge of its
falsity, (4) with the intent to deceive, and (5) action is
taken in reliance upon the
representation.” Va. Acad. of Clinical
Psychologists v. Grp. Hospitalization & Med. Servs.,
Inc., 878 A.2d 1226, 1233 (D.C. 2005) (quoting
Atraqchi v. GUMC Unified Billing Servs., 788 A.2d
559, 563 (D.C. 2002)).
claims are subject to a heightened pleading standard.
See Fed. R. Civ. P. 9(b). “In alleging fraud .
. . a party must state with particularity the circumstances
constituting fraud, ” though “conditions of a
person's mind may be alleged generally.”
Id. To satisfy Rule 9(b), a plaintiff must
“set[ ] forth in sufficient detail the time, place, and
manner” of the alleged fraudulent scheme, so as
“to guarantee all defendants sufficient information to
allow for preparation of a response.” United States
ex rel. Heath v. AT&T, Inc., 791 F.3d 112, 123 (D.C.
Cir. 2015) (internal quotation marks and citation omitted).
Such information often includes “specific fraudulent
statements, who made the statements, what was said, when or
where these statements were made, and how or why the alleged
statements were fraudulent.” Brink v. Cont'l
Ins. Co., 787 F.3d 1120, 1127 (D.C. Cir. 2015) (citation
“[u]nder D.C. law, for a plaintiff to recover in tort
for conduct that also constitutes a breach of contract,
‘the tort must exist in its own right independent of
the contract, and any duty upon which the tort is based must
flow from considerations other than the contractual
relationship.'” Attias v. Carefirst, Inc.,
365 F.Supp.3d 1, 18 (D.D.C. 2019) (quoting Choharis v.
State Farm Fire & Cas. Co., 961 A.2d 1080, 1089
(D.C. 2008)). “[T]he injury to the plaintiff must be an
independent injury over and above the mere disappointment of
plaintiff's hope to receive his contracted-for
benefit.” Choharis, 961 A.2d at 1089 (internal
quotation marks omitted). Therefore, the viability of
Defendants' fraud counterclaim depends on whether
Defendants have plausibly alleged sufficient facts that
Plaintiff owed them an independent duty beyond the
parties' contractual obligations.
fraud claim is based on allegations that, “[i]n
consummating the Contract [between PCS and Plaintiff],
Plaintiff represented to [Defendants that] Plaintiff bore
full responsibility for obtaining all required permits for
PCS's work under the Contract.” Countercl. ¶
8. Defendants note that neither the December 2017 Contract
nor its January 2018 Modification addressed the issue of
permitting; rather, Defendants claim that Plaintiff orally
committed to obtain permits. Defendants assert that
Plaintiff “had no intention of obtaining the required
permits, ” id. ¶ 39, and “never
obtained the required permits” as promised.
Id. ¶ 12.
further allege that in early 2018, a PCS construction
superintendent observed a D.C. Department of Consumer and
Regulatory Affairs (DCRA) vehicle “stopped in front of
Plaintiff's domicile.” Id. ¶ 14.
Defendants claim that the PCS superintendent informed
Plaintiff that the construction required a permit, and
Plaintiff asked PCS “to obtain a permit as soon as
possible on Plaintiff's behalf” and at
Plaintiff's expense. Id. ¶¶ 15, ...