Civil Action No. 3:05cv84


COUNSEL: For Carytown Jewelers, Inc., Plaintiff: Steven Scott Biss,
Richmond, VA.

For ADT Security Services, Inc., Defendant: Michael Scott Bucci, James W.
Morris, III, Michael Robert Ward, Morris & Morris, Richmond, VA; Charles
Carson Eblen, Shook Hardy & Bacon LLP, Kansas City, MO.

JUDGES: Robert E. Payne, United States District Judge.

OPINIONBY: Robert E. Payne


This matter is before the Court on ADT Security Services, Inc.'s ("ADT")
Motion To Dismiss or in the Alternative, for Summary Judgment (Docket No.
4). The motion is granted in part and is denied in part.


On January 7, 2005, Carytown Jewelers, Inc. initiated this action by filing
a Motion for Judgment in the Circuit Court for the City of Richmond against
ADT. The Motion for Judgment asserted claims for constructive fraud,
negligence, and breach of contract based upon ADT's alleged failure to
notify the Richmond Police within a reasonable time that a burglary was in
process at Carytown's place of business. On February 18, 2005 ADT filed [*2]
a timely Notice of Removal in the United States District Court for the
Eastern District of Virginia, based upon diversity of citizenship.

The facts as set forth in the Motion for Judgment aver that, on or about
February 9, 2001, Carytown Jewelers purchased a security system from ADT,
which included burglar alarm services. P3. ADT subsequently installed and
activity the system at Carytown Jewelers' place of business. P4. At a later
date, Carytown Jewelers was burglarized. P5. Although the system generated
an alarm signal, ADT failed to timely notify the appropriate authorities.
P6. As a result, the authorities did not arrive on the scene in time to
apprehend the perpetrators and Carytown Jewelers lost substantial valuable
jewelry. PP7-8.

Count I of the Motion for Judgment alleges constructive fraud based on ADT's
representations to Carytown Jewelers that ADT would take reasonable steps to
protect Carytown Jewelers' property. Carytown Jewelers claims that it relied
upon these representations in entrusting its property to ADT and that the
representations made by ADT induced Carytown Jewelers to act upon them.
Carytown Jewelers also claims that ADT knew that Carytown Jewelers kept
substantial [*3] valuable property at its place of business and that the
alarm system was being purchased to guard against the loss of this property.
Count II alleges negligence by ADT based upon ADT's failure to act
reasonably and prudently under the circumstances to provide burglar alarm
services. Count III alleges breach of contract based upon the agreement
between Carytown Jewelers and ADT that ADT would notify the Richmond Police
within a reasonable time of the burglary.

Carytown Jewelers demands $ 250,000 in compensatory damages, pre-judgment
and post-judgment interest, and costs and attorneys' fees.

On February 8, 2005 ADT filed a Motion to Dismiss or in the Alternative for
Summary Judgment, pursuant to Rule 12(b)(6) or Rule 56 of the Federal Rules
of Civil Procedure, because the Motion for Judgment fails to state a claim
upon which relief can be granted and because there is no genuine issue as to
any material fact.


ADT argues that the Court should dismiss Carytown Jewelers' Motion for
Judgment because each count fails to plead the requisite elements of that
cause of action and additionally that the Court should dismiss the
constructive [*4] fraud and negligence claims because the source of the
parties' duties arises from the contract, not common law. ADT also argues
that Carytown Jewelers failed to plead the construct fraud claim with
sufficient particularity. Finally, ADT argues that the entire action is
preempted by a valid and enforceable limitation-of-action clause which
renders the suit untimely as a matter of law.

When assessing a motion to dismiss under Rule 12(b)(6), the Court must
"accept the factual allegations of the complaint as true and must view the
complaint in the light most favorable to the plaintiff." GE Investment
Private Placement Partners II v. Parker, 247 F.3d 543, 548 (4th Cir. 2001).
A motion to dismiss should not be granted unless "it is clear that no relief
could be granted under any set of facts that could be proved consistent with
the allegations." Id. (quoting Hishon v. King & Spalding, 467 U.S. 69, 73,
81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984)). A "claimant need not set out in
detail all of the facts upon which the claim for relief is based; rather, he
need only provide a statement sufficient to put the opposing party on fair
notice of the claim and the grounds supporting it." Ostrzenski v. Seigel,
177 F.3d 245, 251 (4th Cir. 1999). [*5]

I. The Alleged Failure to Plead Sufficient Facts

ADT first argues that all of Carytown Jewelers' claims must be dismissed
because the Motion for Judgment does not set forth the date on which the
burglary occurred and therefore fails to state a cause of action. This
argument is entirely lacking in merit. The Federal Rules of Civil Procedure
require only a "short and plain" statement of the claim. Trulock v. Freeh,
275 F.3d 391, 405 (4th Cir. 2001) (quoting Fed. R. Civ. P. 8(a)). Carytown
Jewelers clearly met its burden under the Federal Rules and the failure to
set forth the precise date of the burglary does not warrant the dismissal of
any of its claims.

With respect to the contract claim, ADT additionally argues that Carytown
Jewelers has failed to plead facts suggesting a breach of the alleged
contractual obligation and injury or damages caused by the alleged breach.
The Motion for Judgment alleges that there was an agreement between Carytown
Jewelers and ADT for ADT to provide burglar alarm services and that ADT
breached that agreement for failure to timely notify authorities of a
burglary, which resulted in substantial [*6] loss of valuables for Carytown
Jewelers. All that is required of a plaintiff by the Federal Rules is that
the pleaded claim afford "the opposing party fair notice of the nature and
basis or grounds of the claim and a general indication of the type of
litigation involved." Labram v. Havel, 43 F.3d 918, 920 (4th Cir. 1995). The
Motion for Judgment satisfies this standard. Dismissal is only proper when
the plaintiff "can prove no set of facts that would entitle her to relief."
Id. Carytown Jewelers is not required to set forth additional facts under
the liberal pleading requirement of the Federal Rules.

ADT similarly argues that the negligence claim requires dismissal for
failure to allege any well-pleaded facts suggesting that that ADT owed
Carytown Jewelers a duty when the burglary occurred. The Motion for Judgment
claims that ADT failed to perform its duty as an alarm service provider at
the time of the burglary, which resulted in a substantial loss for Carytown
Jewelers. This is sufficient for a negligence claim. For the same reasons
that the contract claim does not require dismissal on these grounds, the
negligence claim is also sufficiently pleaded.

[*7] II. The Negligence and Contractual Fraud Claims (Counts II and III)

The negligence claim in Count II is simply that ADT negligently performed
the contract. That is simply a recasting of the breach of contract claim.
Because the duty allegedly performed in a negligent way was created by
contract, there is no negligence claim available under Virginia law.
Richmond Metropolitan Authority v. McDevitt Street Bovis, 256 Va. 553, 507
S.E.2d 344, 348 (Va. 1998).

The constructive fraud claim in Count III is legally insufficient for a like
reason. Notwithstanding Carytown's assertion to the contrary, it, in
reality, seeks to recover for enormous loss caused by a breach of contract.
n1 Under settled Virginia law, tort remedies are not available for such
purposes. Filak v. George, 594 S.E. 2d 610, 615 (Va. 2004) (holding that
"losses suffered as a result of the breach of a duty assumed only by
agreement, rather than a duty imposed by law, remain solely in the province
of the law of contracts"); Sensenbrenner v. Rust, Orling & Neale,
Architects, Inc., 374 S.E. 2d 55, 58 (Va. 1988) (same).

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n1 Nor does it appear that an independent tort is alleged.

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III. The Contractual Limitation of Action Claims

On this set of pleadings, the affirmative defense arising out of the alleged
contract limitation of actions period cannot be presented by motion to
dismiss under Rule 12(b)(6). Nor can it be entertained on summary judgment
because, at this stage of the case, there has been no discovery, and there
is an issue as to the validity of the clause on which the defense is based.


For the foregoing reasons, Count II is dismissed with prejudice; Count III
is dismissed with leave to replead an independent tort if one exists; and
the motion for summary judgment is denied.

The Clerk is directed to send a copy of this Memorandum Opinion to all
counsel of record.

It is so ORDERED.

Richmond, Virginia
Date: 5-17-05


For the reasons set forth in the accompanying Memorandum Opinion, it is
hereby ORDERED that ADT's Motion To Dismiss or in the Alternative, for
Summary Judgment (Docket No. 4) is granted in part, and denied in part.
Count II is dismissed with prejudice; Count III is dismissed with leave to
replead an independent tort if one exists, and the motion for summary
judgment is denied.

The Clerk [*9] is directed to send a copy of this Order t all counsel of

It is so ORDERED.


Robert E. Payne

United States District Judge

Richmond, Virginia
Date: 5-17-05