                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA


                               )
TEMITAYO FAWEHINMI,            )
                               )
               Plaintiff,      )
                               ) Civil Action No. 11-2085 (EGS)
          v.                   )
                               )
LINCOLN HOLDINGS, LLC          )
d/b/a MONUMENTAL SPORTS AND    )
ENTERTAINMENT, et al.,         )
                               )
               Defendants.     )
                               )

                       MEMORANDUM OPINION

     Plaintiff Temitayo Fawehinmi brings this action against

Lincoln Holdings, LLC d/b/a Monumental Sports and Entertainment

(“MSE”), Centre Group Limited Partnership (“Centre Group”), and

DC Arena LP (“DC Arena”) (collectively, “Defendants”), alleging

claims of breach of contract, breach of the covenant of good

faith and fair dealing in a contract, negligent

misrepresentation, and intentional misrepresentation.   Pending

before the Court is Defendants’ Motion for Partial Summary

Judgment on Count II (breach of the covenant of good faith and

fair dealing in a contract), Count III (negligent

misrepresentation), Count IV (intentional misrepresentation),

and Plaintiff’s claim for punitive damages.   In addition,

Defendants Centre Group and DC Arena move for summary judgment

as to Count I (breach of contract), arguing that they were not
parties to the contract at issue.     Upon consideration of the

motion, the oppositions and replies thereto, the relevant law,

the entire record in this case, and for the reasons set forth

below, the Court will GRANT IN PART AND DENY IN PART Defendants’

Motion for Partial Summary Judgment.

I.     BACKGROUND

       Plaintiff alleges that on May 23, 2011, he entered into an

exclusive licensing agreement (the “Agreement”) with Defendants

to rent the Patriot Center (the “Arena”) for a fundraising

concert to be held on July 30, 2011.    Compl. ¶ 13; see also

Defs.’ Statement of Material Facts Not In Dispute (“Defs.’ SMF”)

¶ 1.   The Agreement consisted of two documents titled “Basic

Information Sheet” and “Standard Provisions.”    Defs.’ SMF ¶ 2;

see also Defs.’ Mot. for Summ. J. (“Defs.’ MSJ”), Ex. A.     The

Agreement permitted Plaintiff to use the premises from 7:30 p.m.

through 11:00 p.m. on July 30, 2011 for an agreed fee of

$40,000, plus the costs of stagehands and rigging and a $4-per-

ticket parking fee.    See Compl. ¶¶ 15, 18; Defs.’ SMF ¶ 7.

Plaintiff was required to pay an advance deposit of $6,000 and

then an additional deposit of $15,000, both of which he paid

prior to the event date.   Compl. ¶ 16; Defs.’ SMF ¶¶ 8, 10.

       On July 26, 2011, Plaintiff met with the General Manager of

the Arena, Barry Geisler, to pay the required $15,000 deposit.

Plaintiff alleges that Geisler suggested that Plaintiff cancel

                                  2
 
the event and used expletives when referring to Plaintiff.

Compl. ¶ 17.    According to Plaintiff, on July 30, 2011, most of

the performing artists scheduled to perform at the event

appeared at 3:00 p.m. for the sound check.    At about 7:30 p.m.,

the doors to the Arena were opened and a disc jockey began

entertaining the crowd.    Compl. ¶ 19.   However, at about 9:00

p.m., Geisler appeared on the stage, without obtaining

authorization or consent from Plaintiff, and announced that the

event was terminated and that the guests and event participants

must leave the Arena.    Compl. ¶ 20; see also Defs.’ SMF ¶ 21.

Plainitff alleges that Geisler’s announcement brought the event

to a premature end.    Compl. ¶ 21; see also Defs.’ SMF ¶ 21.

        Plaintiff filed his Complaint in this action on November

21, 2011.    Plaintiff subsequently consented to the dismissal of

named Defendants Barry Geisler, DC Arena Associates,

Commonwealth of Virginia, and George Mason University.    The

remaining Defendants, MSE, Centre Group, and DC Arena, filed an

Answer and Counterclaim on January 23, 2012.    Defendants then

filed a Motion for Partial Summary Judgment on February 13,

2012.    Plaintiff filed a request for discovery pursuant to Rule

56(d), and then subsequently, Plaintiff filed an Opposition to

the Motion for Partial Summary Judgment.    The motion is ripe for

determination by the Court.



                                   3
 
II.    STANDARD OF REVIEW

       Summary judgment should be granted only if the moving party

has shown that there are no genuine issues of material fact and

that the moving party is entitled to judgment as a matter of

law.    See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477

U.S. 317, 325 (1986).   “A fact is material if it ‘might affect

the outcome of the suit under the governing law,’ and a dispute

about a material fact is genuine ‘if the evidence is such that a

reasonable jury could return a verdict for the nonmoving

party.’”    Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)).   The moving party bears the initial burden of

demonstrating the absence of genuine issues of material fact.

See Celotex, 477 U.S. at 323.    In determining whether a genuine

issue of material facts exists, the Court must view all facts in

the light most favorable to the non-moving party.    See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986); Keyes v. Dist. of Columbia, 372 F.3d 434, 436 (D.C.

Cir. 2004).   The non-moving party’s opposition, however, must

consist of more than mere unsupported allegations or denials;

rather, it must be supported by affidavits or other competent

evidence setting forth specific facts showing that there is a

genuine issue for trial.    See Fed. R. Civ. P. 56(c)(1); Celotex,

477 U.S. at 324.   “The mere existence of a scintilla of evidence

                                  4
 
in support of the [non-movant]’s position will be insufficient;

there must be evidence on which the jury could reasonably find

for the [non-movant].”      Anderson, 477 U.S. at 252.

III. ANALYSIS

      A.    Choice of Law

      As an initial matter, neither party disputes that Virginia

law applies to all of Plaintiff’s claims.     In a diversity case,

a federal court follows the choice-of-law rules of the

jurisdiction in which it sits.      See Klaxon Co. v. Stentor

Electric Mfg. Co., 313 U.S. 487, 496-97 (1941).     District of

Columbia courts give effect to contractual choice-of-law

provisions “as long as there is some reasonable relationship

with the state specified.”      Elemary v. Philipp Holzmann A.G.,

533 F. Supp. 2d 144, 153-54 n.3 (D.D.C. 2008) (citation

omitted).   Here, the Agreement explicitly provides: “The

Agreement shall be construed and enforced under the laws of the

State in which the Arena is located.”     Defs.’ MSJ, Ex. A, at ¶

38.   The Patriot Center is located in Fairfax, Virginia.       Defs.’

MSJ at 7; see also Compl. ¶¶ 4, 8.      There is a reasonable

relationship between a contract for the use of an arena in

Virginia and the application of Virginia law.

      Even if the Agreement did not contain an explicit choice-

of-law provision, under District of Columbia law, where the

parties to a contract have not agreed on the applicable law, the

                                    5
 
court uses a “constructive blending” of the “governmental

interest” analysis and the “most significant relationship” test,

to determine which state’s laws apply.    Stephen A. Goldberg Co.

v. Remsen Partners, Ltd., 170 F.3d 191, 194 (D.C. Cir. 1999)

(citing Hercules & Co., Ltc. v. Shama Rest. Corp., 566 A.2d 31,

41 n.18 (D.C. 1989)).   Under that test, courts must “evaluate

the governmental policies underlying the applicable laws and

determine which jurisdiction’s policy would be more advanced by

the application of its law to the facts of the case under

review.”    Dist. of Columbia v. Coleman, 667 A.2d 811, 816 (D.C.

1995).   In so doing, courts also consider certain relevant

factors enumerated in the Restatement (Second) of Conflict of

Laws.    For contract claims, District of Columbia Courts consider

the five factors listed in the Restatement (Second) of Conflict

of Laws § 188: (1) the place of contracting; (2) the place of

negotiation; (3) the place of performance; (4) the location of

the contract’s subject matter; and (5) the domicile, residence,

nationality, place of incorporation and place of business of the

parties.    Stephen A. Goldberg Co., 170 F.3d at 194.   For tort

claims, District of Columbia courts consider the four factors

set forth in the Restatement (Second) of Conflict of Laws § 145:

(1) the place where the injury occurred; (2) the place where the

conduct causing the injury occurred; (3) the domicile,

residence, nationality, place of incorporation and place of

                                  6
 
business of the parties; and (4) the place where the

relationship is centered.     Coleman, 667 A.2d at 816.

     Here, the Court finds that the factors weigh in favor of

Virginia.   It is not explicit in the record whether the

negotiation and contracting occurred in Virginia.     Defendants

imply that both of these factors weigh in favor of Virginia, see

Defs.’ MSJ at 7, and Plaintiff does not address the choice-of-

law issue, instead assuming that Virginia law applies to all of

his claims.   The domicile, residence, and place of business of

the remaining parties is split between Maryland, Virginia, and

the District of Columbia.     See Compl. ¶¶ 2, 4-6.   However, the

place of performance of the contract and the location of the

contract’s subject matter were both the Patriot Center in

Virginia.   Moreover, the place where the injury and conduct

causing the injury occurred was also the Patriot Center in

Virginia.   Therefore, the Court finds it appropriate to apply

Virginia law to Plaintiff’s contract and tort-based claims.

     B.     Contract Claims Against Centre Group and DC Arena
            (Counts I and II)

     Defendants argue that because it is clear from the face of

the Agreement that Centre Group and DC Arena are not parties to

the contract, there is no basis for either the breach of

contract claim or the breach of covenant of good faith and fair

dealing claim against them.    Defs.’ MSJ at 8.   Plaintiff argues


                                   7
 
for the first time in his Opposition that Centre Group and DC

Arena are partners of MSE, and are thus liable for its actions.

Pl.’s Opp’n at 5 (citing Virginia Uniform Partnership Act, Va.

Code Ann. § 50-73.91).1                                        Plaintiff bases this assertion upon

Plaintiff’s own affidavit, which states that Barry Geisler told

Plaintiff that the Defendants were partners.                                        See Pl.’s Opp’n,

Ex. B, Affidavit of Temitayo Fawehinmi (“Fawehinmi Aff.”) ¶ 7

(“Mr. Geisler also told me that there are two additional

partners of [MSE], namely DC Arena LP and Centre Group Limited

Partnership that are involved in my leasing of the Arena.”).

Plaintiff further alleges that Barry Geisler required Plaintiff

to name Centre Group and DC Arena as additional insured parties

as a condition precedent to leasing the Arena.                                        See id. ¶ 8.

Plaintiff therefore argues that there is a genuine issue of

material fact as to whether these two Defendants are liable as

agents of the partnership.                                        See Pl.’s Opp’n at 5.

              The Virginia Uniform Partnership Act (“VUPA”) defines a

“partnership” as “an association of two or more persons to carry

on as co-owners a business for profit.”                                        Va. Code Ann. § 50-

73.79; see also Walker, Mosby & Calvert, Inc. v. Burgess, 151

S.E. 165, 167 (Va. 1930).                                        Under the VUPA, a partner is an agent

of the partnership for purposes of its business.                                          Va. Code Ann.
                                                            
              1
       Plaintiff’s Opposition contains no page numbers, so the
Court refers to the page of the entire docket entry listed as
Plaintiff’s Opposition, see Docket No. 19.
                                                                      8
 
§ 50-73.91(1).   The VUPA provides guidance for determining

whether a partnership is formed, including, but not limited to,

joint tenancy by the partners, sharing of profits, or gross

returns.   Id. § 50-73.88(C).

     Even viewing the facts in the light most favorable to

Plaintiff, he does not plausibly suggest the existence of a

partnership between the Defendants, nor does he allege that

Centre Group and DC Arena had any rights or obligations under

the Agreement.   As Defendants assert, “[a] person is not liable

as a partner merely because the person is named by another in a

statement of partnership authority.”   Va. Code Ann. § 50-

73.98(C); see also Perry v. Scruggs, 17 F. App’x 81, 90-91 (4th

Cir. 2001); Dulien v. St. Lewis, 198 F.2d 301, 302 (D.C. Cir.

1952) (holding that reported statements of one party that

another individual was his partner was inadmissible to show

partnership as against the latter individual, at least in the

absence of a prima facie showing of partnership established by

other evidence).   Therefore, Plaintiff cannot rely solely on the

statement made by Geisler as evidence of the alleged

partnership.

     Furthermore, Plaintiff offers nothing more than unsupported

speculation that the fact that he was required to insure Centre

Group and DC Arena renders them partners with MSE.     See Pl.’s

Opp’n at 5 (“The rational question is why do they need to be

                                 9
 
insured if they have nothing to do with the agreement?”).

Plaintiff’s conclusory allegations, without more, fail to create

a material issue of fact sufficient to defeat summary judgment.

See Network Computing Servs. Corp. v. Cisco Sys., 152 F. App’x

317, 320 (4th Cir. 2005); Exxon Corp. v. FTC, 663 F.2d 120, 127

(D.C. Cir. 1980) (“[C]onclusory allegations unsupported by

factual data will not create a triable issue of fact.” (citation

omitted)).   In addition, Plaintiff offers no legal authority for

the proposition that where a contract requires one to insure

additional entities, those entities become parties to the

contract, even where not specified in the contract.

     It is undisputed that the Agreement is unambiguous.     See

Defs.’ MSJ at 8-9; Pl.’s Opp’n at 5.   “When contract terms are

clear and unambiguous, a court must construe them according to

their plain meaning.”   Bridgestone/Firestone, Inc. v. Prince

William Square Assocs., 463 S.E.2d 661, 664 (Va. 1995).     The

Agreement lists only Plaintiff and MSE as parties, not Centre

Group or DC Arena.   See Defs.’ MSJ, Ex. A, at 2, 5.   Plaintiff’s

conclusory allegations, unsupported by any competent evidence or

legal authority, are insufficient to create a genuine issue of

material fact to defeat summary judgment.   Accordingly, the

Court will grant Defendants’ motion as to the breach of contract

and breach of covenant of good faith and fair dealing claims

against Centre Group and DC Arena.

                                10
 
              C.             Breach of Covenant of Good Faith and Fair Dealing
                             Claim against MSE (Count II)

              Defendants argue that Plaintiff’s claim for breach of the

covenant of good faith and fair dealing is unsupported by

Virginia law.                               Defs.’ MSJ at 9-10.       According to Defendants,

here, where it is conceded that there is a valid and enforceable

Agreement and the alleged wrongdoing is the termination of that

Agreement, Plaintiff’s claim is solely for breach of contract,

not for breach of the covenant of good faith and fair dealing.

Defendants further argue that because Plaintiff defaulted under

the contract, Defendants terminated the Agreement based upon its

terms.                 See id.                    By contrast, Plaintiff argues that Defendants’

agent terminated the event in violation of the contract, and

therefore that there is a genuine issue of material fact in

dispute barring summary judgment.                                    Pl.’s Opp’n at 6-7.2

              Under Virginia law, contracts contain an implied covenant

of good faith and fair dealing.                                   See Charles E. Brauer Co. v.

NationsBank of Va., N.A., 466 S.E.2d 382, 385 (Va. 1996); Va.

Vermiculite, Ltd. v. W.R. Grace & Co., 156 F.3d 535, 542 (4th


                                                            
              2
       Plaintiff also argues that Defendants’ attempt to
introduce evidence of the show schedule to vary the terms of the
Agreement is barred by the parole evidence rule. See Pl.’s
Opp’n at 5-6. Plaintiff provided the show’s schedule to
Defendants’ agents in advance of the concert. However,
Defendants’ reliance on the schedule, whether proper or not, is
not material to the resolution of the instant motion, and the
Court need not address it at this time.


                                                                11
 
Cir. 1998) (interpreting Virginia contract law); SunTrust

Mortg., Inc. v. United Guar. Residential Ins. Co., 806 F. Supp.

2d 872, 893-95 (E.D. Va. 2011).    However, no implied duty arises

with respect to activity governed by express contractual terms.

Ward’s Equip. v. New Holland N. Am., 493 S.E.2d 516, 520 (Va.

1997) (“[W]hen parties to a contract create valid and binding

rights, an implied covenant of good faith and fair dealing is

inapplicable to those rights.”); see also Brauer, 466 S.E.2d at

386 (holding that a party cannot breach an implied covenant of

good faith if it “did nothing more than exercise its rights

provided in the [contract] and under the applicable law”).    As

explained by the Fourth Circuit, “although the duty of good

faith [under Virginia law] does not prevent a party from

exercising its explicit contractual rights, a party may not

exercise contractual discretion in bad faith, even when such

discretion is vested solely in that party.”    Vermiculite, 156

F.3d at 542.

     Here, construing the facts in the light most favorable to

Plaintiff, the Court concludes that there is a genuine issue in

dispute as to whether Plaintiff defaulted, and if not, whether

MSE terminated the Agreement in bad faith.    Plaintiff alleges

that he contracted for the exclusive use of the Arena between

7:30 p.m. and 11:00 p.m. on July 30, 2011.    See Compl. ¶ 18;

Pl.’s Opp’n at 7.   According to Plaintiff, Geisler terminated

                                  12
 
the event at approximately 9:00 p.m., in violation of the

Agreement and without consent or authorization from Plaintiff.

Compl. ¶ 20.   Thus, Plaintiff is alleging more than simply a

claim that MSE exercised an explicit contractual right, but

rather that Geisler, on behalf of MSE, unreasonably terminated

the concert in bad faith.   See Enomoto v. Space Adventures,

Ltd., 624 F. Supp. 2d 443, 450-51 (E.D. Va. 2009) (finding that

plaintiff properly pled claim for breach of the implied covenant

where plaintiff alleged more than just defendant’s unfavorable

exercise of its contractual rights but also bad faith and unfair

dealing in the contractual relationship).

     Defendants argue that MSE terminated the contract on its

explicit terms, relying on Paragraph 26 of the Agreement.     That

provision states:

     If before or during the term of the Agreement . . . (v)
     Licensee defaults in the performance or observance of any
     of its obligations . . ., then, in any such event, the
     Agreement shall, at MSE’s option, expire as fully and
     completely as if such date and time of expiration were the
     date and time definitely fixed in the Agreement for the
     expiration of the Period, and Licensee shall then quit and
     surrender its rights to the Premises to MSE . . . .

Defs.’ MSJ, Ex. A, at ¶ 26(a).   Based upon the clear terms of

that provision, MSE only had a contractual right to terminate

the concert in the event of Plaintiff’s default.   However,

whether default occurred is a disputed issue of material fact.

Plaintiff thus alleges claims that fall outside of the rights


                                 13
 
explicitly provided by the Agreement.    Accordingly, at this

early stage of the litigation, summary judgment is inappropriate

as to Count II against MSE.

     D.   Negligent and Intentional Misrepresentation Claims
          against All Defendants (Counts III and IV)

     Defendants argue that because Plaintiff fails to allege a

violation of any common law duty, his negligent and intentional

misrepresentation claims must fail.     See Defs.’ MSJ at 10-13.

According to Defendants, the duties alleged by Plaintiff exist

solely by virtue of the Agreement, and therefore these claims

are not proper bases for a cause of action in tort.     Id.

Plaintiff contends that his negligent and intentional

misrepresentation claims arose from Defendants’ fraudulent

inducement of Plaintiff into the contract.    Pl.’s Opp’n at 7-8.

Plaintiff alleges that because this conduct is separate from the

subsequent breach of contract, he can maintain claims for both

breach of contract and fraud under Virginia law.     See id.

     “[A] party can, in certain circumstances, show both a

breach of contract and a tortious breach of duty. . . . However,

‘the duty tortiously or negligently breached must be a common

law duty, not one existing between the parties solely by virtue

of the contract.’”   Richmond Metro. Auth. v. McDevitt St. Bovis,

Inc., 507 S.E.2d 344, 347 (Va. 1998) (quoting Foreign Mission

Bd. v. Wade, 409 S.E.2d 144, 148 (Va. 1991)); see also Station


                                14
 
# 2, LLC v. Lynch, 695 S.E.2d 537, 540 (Va. 2010).    As Plaintiff

notes, “Virginia law recognizes the separate tort of fraud, even

where the parties have agreed to a contract.”   Hitachi Credit

Am. Corp. v. Signet Bank, 166 F.3d 614, 628 (4th Cir. 1999)

(citation omitted).   In Station # 2, the Virginia Supreme Court

recently addressed when an intention not to perform a contract

can serve as a basis for a fraud claim.   “In general, ‘if a

defendant makes a promise that, when made, he has no intention

of performing, that promise is considered a misrepresentation of

present fact and may form the basis for a claim of [] fraud.’”

Station # 2, 695 S.E.2d at 540 (quoting SuperValu, Inc. v.

Johnson, 666 S.E.2d 335, 342 (Va. 2008)).   Virginia law

“distinguishes between a statement that is false when made and a

promise that becomes false only when the promisor later fails to

keep his word.   The former is fraud, the latter is breach of

contract.”   Lissmann v. Hartford Fire Ins. Co., 848 F.2d 50, 53

(4th Cir. 1988).

     In Richmond Metropolitan Authority, the Virginia Supreme

Court indicated that, “[i]n determining whether a cause of

action sounds in contract or in tort, the source of the duty

violated must be ascertained.”   507 S.E.2d at 347.   Here,

Plaintiff alleges that “Defendants owed a duty of care to

Plaintiff.   This duty required the transmittal of accurate

information from Defendants to Plaintiff and the disclosure of

                                 15
 
material facts.”    Compl. ¶ 30.   However, as Plaintiff’s

Complaint makes clear, the sole source of this duty was the

Agreement.    Plaintiff states: “Defendants represented to

Plaintiff that [he] would have exclusive use of the Patriot

Center for the[] concert, without any interruption from 7:30

P.M. until 11:00 P.M. on July 30, 2011.”       Compl. ¶ 29; see also

id. at ¶ 37.    Plaintiff’s negligent and intentional

misrepresentation claims are premised entirely on Defendants’

purported failure to provide Plaintiff exclusive use of the

Arena during the times specified.       For example, in Plaintiff’s

negligent misrepresentation claim, he alleges that Defendants

knew they would not permit Plaintiff to hold the event, and they

negligently made false statements and misrepresentations that

the event would be held on July 30, 2011 from 7:30 p.m. until

11:00 p.m.     See Compl. ¶¶ 31-32.     With respect to his claim for

intentional misrepresentation, Plaintiff alleges that

“Defendants misrepresented that they were granting Plaintiff an

exclusive licensing right to use the Patriot Center for [his]

event,” but that “Defendants knew and/or should have known that

the representation was false at the time it was made.”       Compl.

¶¶ 37-38.    These claims relate only to duties and obligations

required by the Agreement, not any duties arising out of the

common law.    Whether or not MSE breached those duties, such

actions do not give rise to a cause of action for negligent or

                                   16
 
intentional misrepresentation “because no duty apart from

contract to do what is complained of exists.”                                         Richmond Metro.

Auth., 507 S.E.2d at 347 (citation omitted).                                         Without the

Agreement, Defendants owed no duty to Plaintiff to permit him to

use the Arena or to transmit accurate information and disclose

material facts to him.                                         Therefore, under Virginia law, Plaintiff

cannot maintain a claim in tort, but only in contract.

              Moreover, Plaintiff offers nothing more than a conclusory

allegation that at the time he contracted with MSE for use of

the Arena, MSE had no intention of performing its duties under

the Agreement.                                 Indeed, this allegation is belied by the record,

and in particular by Plaintiff’s Affidavit.                                        The evidence

provided by both parties demonstrates that MSE’s agents and

Plaintiff exchanged numerous emails in preparation for the

event.                 See Defs.’ MSJ, Ex. B; Pl.’s Opp’n, Ex. D.                          Plaintiff

alleges that Geisler’s suggestion on July 26, 2011 that

Plaintiff cancel the event is “indicative of a predisposition by

Defendant not to abide by the terms of the contract.”                                        Compl.

¶ 31.               This statement, made months after the formation of the

contract, is insufficient to plausibly suggest that at the time

the contract was made, Defendants had no intention of performing

it.3              Without any assertion that MSE’s promise to use the Arena


                                                            
              3
       Moreover, Plaintiff’s own Affidavit states that after July
26, 2011, Geisler and Defendants’ agents made the Arena
                                                                      17
 
was false when made, Plaintiff cannot bring a separate claim in

tort for actions that form a claim for breach of contract.

              For these reasons, the Court finds that summary judgment is

appropriate as to Claims III and IV against all Defendants.

              E.             Punitive Damages against All Defendants

              Finally, Defendants argue that the allegations in the

Complaint do not support the requisite basis for a punitive

damages claim.                                According to Defendants, absent proof of an

independent, willful tort beyond merely breaching a duty imposed

by contract, punitive damages are not allowed in breach of

contract cases.                                  Defs.’ MSJ at 13-14.                                            Plaintiff argues that he

has alleged an independent, willful tort of intentional

misrepresentation, and therefore that he can maintain a claim

for punitive damages.                                              Pl.’s Opp’n at 8-9.                                          Plaintiff further

asserts that Geisler’s name-calling and insults are sufficient

factual allegations of malice in fact.                                                                              See id.

              Virginia law allows an award of punitive damages in

contract cases only under very limited circumstances, when there


                                                                                                                                                                                               
                                                                                                                                                                                               
available to Plaintiff. In particular, Plaintiff affirms that
MSE provided him access to the Arena between 2:30 p.m. and 4:00
p.m. on July 30, 2011 for a sound check. See Fawehinmi Aff.
¶ 21. Plaintiff additionally alleges that MSE opened the doors
to the Arena at 7:30 p.m. on July 30, 2011, as provided in the
Agreement. See Compl. ¶ 19; Fawehinmi Aff. ¶ 22. According to
Plaintiff, it was only at about 9:00 p.m. that Geisler
improperly terminated the concert. Fawehinmi Aff. ¶ 23. These
additional facts contradict Plaintiff’s argument that Defendants
had no intention of performing the Agreement when it was made.
                                                                                            18
 
is proof of an “independent, willful tort, beyond the mere

breach of a duty imposed by contract.”   Kamlar Corp. v. Haley,

299 S.E.2d 514, 518 (Va. 1983) (citing Goodstein v. Weinberg,

245 S.E.2d 140, 143 (Va. 1978); Wright v. Everett, 90 S.E.2d

855, 860 (Va. 1956)).   This serves as a narrow exception to the

general rule in Virginia that punitive damages are not allowed

in breach of contract cases and damages are limited to the

pecuniary loss sustained.   See Kamlar, 299 S.E.2d at 517; see

also A & E Supply Co. v. Nationwide Mut. Fire Ins. Co., 798 F.2d

669, 671-72 (4th Cir. 1986).   A claim for punitive damages must

demonstrate that the defendant’s misconduct was willful and

wanton, involving “some type of egregious conduct . . . going

beyond that which shocks fair-minded people.”   Harris v. Harman,

486 S.E.2d 99, 102 (Va. 1997); see also Woods v. Mendez, 574

S.E.2d 263, 268 (Va. 2003); Giant of Va., Inc. v. Pigg, 152

S.E.2d 271, 277 (Va. 1967) (“Punitive or exemplary damages are

allowable only where there is misconduct or actual malice, or

such recklessness or negligence as to evince a conscious

disregard of the rights of others.”).

     Because the Court has determined that summary judgment is

appropriate as to Plaintiff’s intentional and negligent

misrepresentation claims, Plaintiff has failed to allege a

separate, willful tort that would support a claim for punitive

damages.   Moreover, Plaintiff has not pointed to any authority

                                19
 
that supports his argument that Geisler’s insults, combined with

his termination of the concert at 9:00 p.m., constituted

egregious conduct or malice in fact.   Accordingly, the Court

finds that summary judgment is appropriate with respect to the

claim for punitive damages.

IV.   CONCLUSION

      For the foregoing reasons, the Court hereby GRANTS IN PART

AND DENIES IN PART Defendants’ Motion for Partial Summary

Judgment.   In addition, the Court DENIES AS MOOT Plaintiff’s

request for discovery under Rule 56(d).    An appropriate Order

accompanies this Memorandum Opinion.


SIGNED:     Emmet G. Sullivan
            United States District Judge
            September 29, 2012




                                 20
 
