Marcus v. Dennis
| Decision Date | 13 May 2022 |
| Docket Number | Civil Action 1:21-cv-01085 (RDA/TCB) |
| Parties | GREGORY H. MARCUS, et al., Plaintiffs, v. MARLENE DENNIS, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Virginia |
This matter comes before the Court on the Defendants Marlene Dennis (“Dennis”) and Marlene Dennis Design LLC's (“MDD”) Motion to Dismiss for Failure to State a Claim (Dkt. 9). The Court dispenses with oral argument as it would not aid in the decisional process. See Fed. R. Civ. P. 78(b); E.D. Va. Loc. Civ. R 7(J). The Motion is now fully briefed and ripe for disposition. Considering the Motion together with Defendants' Memorandum in Support (Dkt. 10) Plaintiffs' Opposition (Dkt. 14), Defendants' Reply (Dkt. 17), Defendants' supplemental choice-of-law brief (Dkt. 19), and Plaintiff's supplemental choice-of-law brief (Dkt. 20), the Court GRANTS in part and DENIES in part Defendants' Motion to Dismiss for Failure to State a Claim for the reasons that follow.
Plaintiffs Gregory H. Marcus and Jaime N. Marcus (“Plaintiffs”) filed a Complaint against Defendants alleging four counts: (1) breach of contract solely against MDD; (2) breach of fiduciary duty; (3) violation of the Virginia Consumer Protection Act of 1977, Va. Code § 59.1-196, et seq.; and (4) piercing the corporate veil against Dennis via MDD.
Plaintiffs are married and reside together in Bethesda, Maryland. Dennis is a professional interior designer who resides in and operates MDD out of The Plains, Virginia. On October 15, 2018, Plaintiffs and MDD entered into a contract for design services, incorporated into the Complaint as an exhibit, for the purpose of constructing and furnishing a new home in Bethesda, Maryland. According to the contract, Dennis would act as the “Designer” of Plaintiffs' new home in “arrang[ing] and oversee[ing] the procurement and installation” of “flooring, wall coverings, finishes, furniture, and fixtures” after establishing a design concept. Dkt. 1 ¶ 12. Once Plaintiffs approved of the “Conceptual Design, ” Dennis and MDD would then “coordinate with Thomson & Cooke [Architects]” and Plaintiffs' builder in designing the space. Dkt. 1-1 at 2. Per the contract:
[Plaintiffs] agree[] to compensate Designer $175 per hour, not to exceed $50, 000, for design consultation and $50, 000 for furniture selection and procurement. Designer will invoice client monthly. Furniture invoices will be saved in an orderly manner, tied to the furniture spreadsheet and placed in a shared drop box . . . . [Plaintiffs] will be invoiced monthly for expenses directly related to [Plaintiffs'] Project. Such expenses may include, but are not limited to: courier, express delivery, postage, and storage of any items that cannot be delivered due to construction. Furnishings, rugs, artwork, decorative lighting and accessories not to exceed $250, 000. Assumes [Plaintiffs] will use and/or re-purpose much of what they currently own. Designer and [Plaintiffs] to review Furniture Plan and agree on the items to be repurposed and to confirm that $250, 000 is an appropriate amount given the items required.
In July of 2020, Dennis allegedly began work on a multimillion-dollar project, which precipitated a decline in Dennis' performance on Plaintiffs' project. Dennis allegedly exhibited dilatory behavior and she did not perform consistent with previously agreed-upon target dates.
In November of 2020, more than two years after the contract had been signed, Dennis allegedly sent Plaintiffs an invoice reflecting her charges from July 15, 2019 through November 2, 2020, which, at the contractually agreed-upon rate of $175 per hour, totaled nearly $68, 000. Dennis informed Plaintiffs that after paying that invoice, the total “Contract Fees” would exceed the $100, 000 Designer consulting fee cap imposed in the original agreement. Dkt. 1 ¶ 16; Dkt. 1-1 at 2. Plaintiffs nevertheless paid the invoice, in addition to other invoices, allegedly amounting to $124, 722.41. Dkt. 1 ¶¶ 18-19.
In January of 2021, Dennis allegedly invoiced the Plaintiffs for an additional $255, 560.72 for the materials purchased to facilitate the design plan. Id. ¶ 21. Dennis then successfully convinced Plaintiffs to wire her $255, 000 in order to expedite the furniture order and delivery process rather than pay the vendors directly. Despite Plaintiffs' repeated requests that Dennis provide copies of the invoices from vendors for these materials, Dennis allegedly dodged the requests. But when Plaintiffs threatened litigation in August of 2021, Dennis allegedly provided copies of the vendor invoices. After examining these documents, Plaintiffs realized Dennis had “dramatically inflated the cost of these items before charging them” to Plaintiffs in order to allegedly collect the surplusage for her personal gain. Id. ¶¶ 30, 32.
On September 25, 2020, Neal Thomson, Plaintiffs' architect, allegedly received quotes from The Urban Electric Company for certain electrical fixtures to be installed in Plaintiffs' new home. Dkt. 1-2 ¶ 3. On September 30, 2020, Thomson provided that pricing information to Dennis, and on October 1, 2020, Dennis allegedly asked Thomson to withhold any of the pricing information from Plaintiffs. Id. ¶¶ 4-5. In a subsequent phone call between Dennis and The Urban Electric Company, Dennis also allegedly “instructed the representative not to share any pricing information, or any information about what had been ordered, with anyone associated with the [] project other than Dennis herself.” Dkt. 1 ¶ 38; Dkt. 1-2 ¶ 6. Plaintiffs further allege that Dennis conveyed the same concerns to other vendors. Of the roughly two hundred expenses Dennis listed for Plaintiffs' review, The Urban Electric fixture was allegedly one of two items she “did not actually mark-up.” Id. ¶ 40. But for other items for which Dennis could hide the actual price, she allegedly “dramatically overinflated the cost.” Id. ¶¶ 41, 47. For instance, she allegedly purchased a dining table for $2, 878.80 but charged Plaintiffs $4, 750-before reducing it to $3, 455 “under the threat of litigation”-and a $14, 000 piece of artwork but charged Plaintiffs $18, 000-before reducing it to $16, 800 “under threat of litigation.” Id. ¶¶ 42-45.
Moreover, Plaintiffs allege that when they moved into their new home on April 10, 2021, it was “almost completely empty.” Id. ¶¶ 51-54. That evening, Dennis allegedly visited the home and promised Plaintiffs that she would provide a revised spreadsheet outlining the status of all pieces of furniture in delay by the morning of April 12, 2021. Id. ¶ 56. But Dennis allegedly never followed through and went silent despite Plaintiffs' best efforts to connect. Id. ¶ 57-58.
On April 14, 2021, Plaintiff Jaime Marcus allegedly emailed Dennis:
Marlene, We moved in 5 days ago and we have not heard from you. I have reached out many times via text, phone, and email. We have a lot of questions and we are still waiting for an installation schedule. In addition, we are missing basic items that should have been here when we moved in (bath accessories, shower curtains, bedding, etc.). If I do not hear from you this morning, we plan to terminate our relationship and finish the project with another designer.
Id. ¶ 59. This email prompted Dennis to call and allegedly state that she would not be performing under the contract and that Plaintiffs should look elsewhere. Id. ¶ 60. Moreover, Dennis had allegedly informed them that she had cancelled numerous previously agreed-upon orders, which further “substantially delayed” the project. Id. ¶¶ 61-62. Plaintiffs then hired another design team and at the time of filing the Complaint, had allegedly paid them $85, 114.50 “to finish the work that Dennis had been hired-and paid-to perform under the original contract.” Id. ¶ 64. The work remains unfinished.
On September 24, 2021, Plaintiffs filed their Complaint with the contract in question and a declaration of Neal Thomson as attachments. Dkt. 1. Defendants then filed the instant Motion with an accompanying written brief on November 5, 2021 after obtaining leave of Court to extend the time to file an answer to the Complaint. Dkt. Nos. 7-10. Plaintiffs filed their Opposition on November 19, 2021. Dkt. 14. And after the Court granted Defendants' motion for a filing extension, Defendants filed their Reply on December 1, 2021. Dkt. 17. On March 30, 2022, this Court ordered supplemental briefing on the contract and tort claims. Both parties filed their briefs on April 15, 2022. Dkt. Nos. 19; 20.
A Rule 12(b)(6) motion tests the sufficiency of a complaint. Brockington v. Boykins, 637 F.3d 503, 506 (4th Cir. 2011). “[T]he reviewing court must determine whether the complaint alleges sufficient facts ‘to raise a right to relief above the speculative level[, ]'” and dismissal of the motion is appropriate only if the well-pleaded facts in the complaint “state a claim that is plausible on its face.” Goldfarb v. Mayor & City Council of Baltimore, 791 F.3d 500, 508 (4th Cir. 2015) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
At the motion-to-dismiss stage, a plaintiff need only “allege facts sufficient to state all the elements of her claim ” Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir.2003), and “the district court must ‘accept as true all well-pled facts in...
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