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 
2

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-perticket 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 
3

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. 
4

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 
5

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

parties to a contract have not agreed on the applicable law, the 
6

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 
7

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-oflaw 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 
8

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. 
9

§ 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 
10

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. 
11

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. 
12

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 
13

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 
14

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 
15

# 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 
16

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 
17

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 
18

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. 
19

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 
20

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