United States District Court, N.D. West Virginia
LANDMARK COLLEGIATE ACQUISITIONS, LLC; and THE STANDARD AT MORGANTOWN, LLC, Plaintiffs/Counter-Defendants,
CYNTHIA SOLOMON; GARY SOLOMON; VICTOR SOLOMON, II; VIC'S GARAGE, INC.; and STEVEN SOLOMON, Defendants/Cross-Defendants/ Counterclaimants/Crossclaimants.
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS'
MOTION TO DISMISS [DKT. NO. 26]
M. KEELEY UNITED STATES DISTRICT JUDGE.
February 28, 2017, the plaintiffs, Landmark Collegiate
Acquisitions, LLC (“Landmark”), and The Standard
at Morgantown, LLC (“The Standard”), filed this
action against siblings Cynthia Solomon, Gary Solomon, Victor
Solomon, II, and Steven Solomon, as well as Vic's Garage,
Inc. (“Vic's Garage”) (Dkt. No. 1). Acting
pro se, defendant Steven Solomon answered the
complaint and filed a three-count counterclaim (Dkt. No. 21).
Now pending is the plaintiffs' motion to dismiss the
counterclaim for failure to state a claim upon which relief
can be granted (Dkt. No. 26). For the reasons that follow,
the Court GRANTS the plaintiffs' motion.
considering the plaintiffs' motion to dismiss, the Court
is obligated to accept as true the well-pleaded facts in the
counterclaim, and view them in the light most favorable to
Steven Solomon. De'Lonta v. Johnson, 708 F.3d
520, 524 (4th Cir. 2013).
The Plaintiffs' Complaint
and The Standard are affiliated entities that sought to
construct a large student housing development called
“The Standard at Morgantown” in downtown
Morgantown, West Virginia (“the Project”) (Dkt.
No. 1 at 1). The Project involved planning the development,
acquiring property, and seeking approvals and variances from
the local government. Id. at 1, 3-4. The plaintiffs
allege that they ultimately were forced to abandon the
Project because of the defendants' breaches of contract,
misrepresentations, and interference. Id. at 2.
April 16, 2015, Landmark entered into a contract with Cynthia
Solomon, Gary Solomon, Victor Solomon, II, and Vic's
Garage (“the Seller Defendants”) to
purchase three parcels of real estate for the Project
(“the Solomon Contract”). Id. at 4.
These three parcels of real estate comprise two tracts. The
First Tract is identified as Tax Map 26A, Parcel 13. Gary
Solomon owns a one-fourth interest in this tract, and the
remaining three-fourths is owned by the Estate of Lena
Solomon that is anticipated to pass to defendants Cynthia
Solomon, Gary Solomon, and Victor Solomon, II. Vic's
Garage owns the Second Tract, identified as Tax Map 26A,
Parcels 14 and 15. Id. at 4-6.
Solomon Contract, the individual Seller Defendants warranted
that they had marketable title to the First Tract, including
the right to deliver it at closing. Id. at 5-6. They
further represented that they had obtained all necessary
corporate consents and permissions to sell the Second Tract,
and agreed to keep the terms of the contract confidential.
Id. at 6-7.
execution of the Solomon Contract, the parties became
involved in a number of legal actions. On July 2, 2015,
Steven Solomon filed a complaint in the Circuit Court of
Monongalia County, West Virginia (“Circuit
Court”), against the Estate of Lena Solomon, in which
he alleged that a 1975 deed conveying his interest in the
First Tract to Lena Solomon had been forged (“fraud
suit”). Id. at 7. On September 29, 2015,
Landmark and the Seller Defendants, with the exception of
Vic's Garage, filed a complaint for partition in the
Circuit Court, seeking to clear title to the property at
issue (“partition suit”). Id. at 7-8. On
November 25, 2015, Steven Solomon filed a second complaint,
this time against the Seller Defendants, in the Circuit Court
(“contract suit”), alleging that the Solomon
Contract was not enforceable, in part because it had not been
properly executed on behalf of Vic's Garage
(“contract suit”). Id. at 8.
Circuit Court dismissed the contract suit on March 4, 2016,
primarily on the basis that Steven Solomon was not a party to
the Solomon Contract and therefore lacked standing to
challenge its enforceability. The Circuit Court then
dismissed the fraud suit on March 9, 2016, finding that
Steven Solomon had failed to sufficiently plead a cause of
action for fraud, and that, in any case, his claims were
barred by the statute of limitations. Id. at
March 10, 2016, Morgantown's Planning Commission held a
hearing on The Standard's Application for a Type III Site
Plan Review for Developments of Significant Impact, which it
had filed on October 2, 2015. Id. at 9. Steven
Solomon appeared at the hearing and spoke in opposition to
the application. In his remarks, he accused the plaintiffs of
providing fraudulent statements to the Planning Commission,
questioned the authenticity of studies the plaintiffs had
submitted, alleged that the plaintiffs had filed a partition
suit despite having no legal interest in the property,
accused the plaintiffs of organizing an unlawful meeting of
Vic's Garage, and stated that the plaintiffs had coerced
Gary Solomon into signing an extension of the Solomon
Contract. Id. at 10-11.
28, 2016, as a result of alleged breaches by the Seller
Defendants, Landmark notified them that it was terminating
the Solomon Contract and demanded the return of $230, 000 in
earnest money. On August 4, 2016, the Seller Defendants
disputed termination of the Solomon Contract and directed the
escrow agent not to release the earnest money to Landmark.
Id. at 11. Thereafter, on February 28, 2017, the
plaintiffs filed the instant suit, seeking compensatory and
punitive damages for breach of contract, defamation, and
tortious interference with business and contractual
relationships. Id. at 11-17.
Steven Solomon's Counterclaim
March 28, 2017, Steven Solomon filed a counterclaim against
the plaintiffs (Dkt. No. 21). In the first count, entitled
“refusal to comply with order, ” he alleges that,
on December 15, 2015, Monongalia County Circuit Judge Philip
Gaujot ordered the parties in the partition suit to
“appear at mediation and negotiate in good
faith.” Id. at 9. According to Solomon's
counterclaim, Landmark appeared at the mediation but
“refused to engage in any good faith negotiations with
[him], refused to put any offer in writing, continually
threaten [sic] to bury him with more legal action, tried to
intimate [sic] him with Landmarks [sic] unlimited resources
and high price lawyers.” Id. Although Landmark
produced a 60-page proposed settlement agreement the next
day, Steven Solomon contends it was a one-sided document that
would have given Landmark “an unfair, unlawful
advantage.” He alleges that Landmark refused to
negotiate the contents of the agreement, and failed to
mediate in good faith. Id. at 9-10.
second count, Steven Solomon contends that Landmark
tortiously interfered with the “internal business
process” of Vic's Garage, and more particularly
with Steven Solomon's rights as a one-third owner.
Id. at 10-11. He alleges that Landmark, by its
attorneys, orchestrated and conducted a special shareholder
meeting for Vic's Garage. He further contends that the
purpose of the meeting was to suppress his opposition to
breaches of fiduciary duties by Cynthia Solomon and Gary
Solomon, and to “attempt to legitimize the
infamous” Solomon Contract seven months after it had
been signed without the requisite corporate resolution.
Id. at 10. As a result, Steven Solomon contends that
Landmark removed him “from the purchasing process,
removed his ability to protect his interest in Vic's,
[and] removed his ability to stop corporation actions not in
the best interest of the corporation and the
Shareholders.” Id. at 11.
construed, the third count alleges that the plaintiffs
engaged in three acts of fraud. Id. at 11-14. First,
The Standard filed its application with the Planning
Commission, indicating it was the “owner, ”
although it did not yet own the properties at issue.
Id. at 12. Second, The Standard submitted a traffic
study to the Planning Commission, that concluded the Project
would result in a decrease in traffic. According to Steven
Solomon, this was fraudulent because “[n]o unbiased
person would believe that a development of the magnitude of
Standard's project would result in a net decrease in the