United States District Court, D. South Carolina, Greenville Division
OPINION AND ORDER
Howe Hendricks United States District Judge
matter is before the Court on Defendant Advanced Commercial
Credit International (ACI) Limited, doing business as ACI
Capital Partners' (“ACI”), Motion to Dismiss
the Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). (ECF No. 10.) The motion is granted without
opposition; all causes of action are dismissed without
prejudice, and the case is closed.
CitiSculpt (“CitiSculpt”) is under contract with
the owner of certain real property located in the State of
South Carolina, County of Greenville, to purchase said
property (“10 S Academy Street”). CitiSculpt and
ACI entered into an agreement, entitled “Letter of
Interest / Term Sheet, ” regarding a potential
financing arrangement for the real estate purchase (the
“Agreement”). (Ex. B, Compl., ECF No. 1-2.) In
the Complaint, CitiSculpt alleged that ACI engaged in fraud
in the inducement by representing that it was “ready,
willing and able to fund . . . $7, 770, 000.00 in [an] escrow
account” to finance the real estate purchase, when in
actual fact ACI “knew that it did not possess the
monies, but represented it did.” (ECF No. 1
¶¶ 25-35.) CitiSculpt further claimed that ACI
engaged in negligent misrepresentation by “falsely
represent[ing] that it, or its assigns, would fund the escrow
with the $7, 770, 000.00 loan to [CitiSculpt] on or before
December 15, 2016.” (Id. ¶¶ 36-44.)
Finally, CitiSculpt alleged that the Agreement was a
contract, and that ACI breached the contract both by failing
to fund the escrow account and by acting as a
“broker” in that it attempted to find alternate
financing sources in contravention of a “Fee
Agreement” CitiSculpt maintained with third-party,
M&T Realty Capital Corporation, of which ACI had
knowledge. (Id. ¶¶ 45-51.)
filed its Motion to Dismiss on January 31, 2017. (ECF No.
10.) The deadline for CitiSculpt's response, if any, was
February 14, 2017. That date has come and gone without any
response from CitiSculpt. Accordingly, this matter is ripe
for review on the Motion to Dismiss.
plaintiff's complaint should set forth “a short and
plain statement . . . showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). Rule 8 “does not
require ‘detailed factual allegations, ' but it
demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Id. (quoting Twombly, 550
U.S. at 570)). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (quoting
Twombly, 550 U.S. at 556)). In considering a motion
to dismiss under Fed.R.Civ.P. 12(b)(6), a court
“accepts all well-pled facts as true and construes
these facts in the light most favorable to the plaintiff. . .
.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com,
Inc., 591 F.3d 250, 255 (4th Cir. 2009). A court should
grant a Rule 12(b)(6) motion if, “after accepting all
well-pleaded allegations in the plaintiff's complaint as
true and drawing all reasonable factual inferences from those
facts in the plaintiff's favor, it appears certain that
the plaintiff cannot prove any set of facts in support of his
claim entitling him to relief.” Edwards v. City of
Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).
previously noted, to survive a Rule 12(b)(6) motion to
dismiss a complaint must state “a plausible
claim for relief.” Iqbal, 556 U.S. at 679
(emphasis added). “The plausibility standard is not
akin to a ‘probability requirement, ' but it asks
for more than a sheer possibility that a defendant has acted
unlawfully. Where a complaint pleads facts that are
‘merely consistent with' a defendant's
liability, it ‘stops short of the line between
possibility and plausibility of entitlement to
relief.'” Id. at 678 (quoting
Twombly, 550 U.S. at 557). Stated differently,
“where the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not
‘show[n]'-‘that the pleader is entitled to
relief.'” Id. at 679 (quoting Fed.R.Civ.P.
8(a)(2)). Still, Rule 12(b)(6) “does not countenance .
. . dismissals based on a judge's disbelief of a
complaint's factual allegations.” Colon Health
Centers of Am., LLC v. Hazel, 733 F.3d 535, 545 (4th
Cir. 2013) (quoting Neitzke v. Williams, 490 U.S.
319, 327 (1989)). “A plausible but inconclusive
inference from pleaded facts will survive a motion to dismiss
. . . .” Sepulveda-Villarini v. Dep't of Educ.
of Puerto Rico, 628 F.3d 25, 30 (1st Cir. 2010).
Rule of Civil Procedure 10 states, “A copy of a written
instrument that is an exhibit to a pleading is a part of the
pleading for all purposes.” Fed.R.Civ.P. 10(c). The
Fourth Circuit has recognized the general rule that the
“exhibit prevails in the event of a conflict between an
attached exhibit and the allegations of a complaint.”
See, e.g., Goines v. Valley Cmty. Servs.
Bd., 822 F.3d 159, 164 (4th Cir. 2016) (citing S.
Walk at Broadlands Homeowner's Ass'n v. OpenBand at
Broadlands, LLC, 713 F.3d 175, 182 (4th Cir. 2013).
Civil Rule 7.06 states, “If no memorandum in opposition
is filed within fourteen (14) days of the date of service,
the court will decide the matter on the record and such oral
argument as the movant may be permitted to offer, if
CitiSculpt has not seen fit to respond to ACI's Motion to
Dismiss, the Court would say very little by way of analysis.
In short, CitiSculpt's allegations center around the
formation and supposed breach of the Agreement, but in so
doing seem to ignore the express terms of the Agreement.
negligent misrepresentation claim is dismissed for failure to
state a plausible claim for relief. The Agreement contains a
choice of law provision indicating that it “shall be
governed by Virginia laws.” (ECF No. 1-2 at 4.)
Negligent misrepresentation claims are generally viewed as a
hybrid of tort and contract claims. “South Carolina
generally respects choice of law provisions, . . . and
appears to recognize that a contract's choice of law
provision can extend to tort claims.” Charleston
Marine Containers Inc. v. Sherwin-Williams Co., 165
F.Supp.3d 457, 468-69 (D.S.C. 2016) (internal citation
omitted). CitiSculpt has not challenged the applicability of
the choice of law provision, and the Court applies Virginia
law accordingly. Virginia law does not recognize an
independent cause of action for negligent misrepresentation.
See, e.g., Baker v. Elam, 883 F.Supp.2d
576, 581 (E.D. Va. 2012). Therefore, ACI's Motion to
Dismiss is granted and the negligent misrepresentation claim
is dismissed for failure to state a plausible claim.
cause of action for fraudulent inducement also fails to state
a plausible claim for relief. “To state a cause of
action for fraudulent inducement of contract under Virginia
law, a plaintiff must allege that the defendant made
misrepresentations that were positive statements of fact,
made for the purpose of procuring the contract; that they are
untrue; that they are material; and that the party to whom
they were made relied upon them, and was induced by them to
enter into the ...