JOHNSON v. WESTLAKE FLOORING COMPANY LLC (2024)

MEMORANDUM ORDER

(Granting in Part and Denying in Part Defendant Westlake's Motion to Dismiss)

This matter comes before the Court on Westlake Flooring Company's (“Defendant”) Motion to Dismiss for Failure to State a Claim, (ECF No. 30 (“Motion”)). Tierra Johnson (“Plaintiff”) has filed suit against Defendants, alleging that Defendants acted in concert to impermissibly repossess her 2016 Buick Verano. Accordingly, Plaintiff brings claims for negligence, violation of the Virginia Uniform Commercial Code (“UCC”), conversion and trespass to chattels. As relief, Plaintiff seeks actual and statutory damages for Defendants' alleged violation of the Virginia UCC, as provided for by Va. Code § 8.9A-625(c), and for actual damages related to the attendant common law claims. (Id. at 14.) She likewise moves the Court for punitive damages not to exceed $350,000, as well as attorney's fees. (Id.) In response, Defendant Westlake moves to dismiss Counts II, III, IV and V of the Amended Complaint, (ECF No. 18 (“Am. Compl.”)). For the reasons stated herein, the Court hereby GRANTS IN PART and DENIES IN PART Defendant's Motion, (ECF No. 30).

The facts of this case are straightforward. Plaintiff purchased her vehicle from Car Central LLC in Fredericksburg, Virginia, on February 24, 2023. (Am. Compl. at ¶ 8.) However, at around 2:30 a.m. on July 12, 2023, Plaintiff discovered that her car had gone missing. (Id. at ¶¶ 11–12.) She promptly called 911 to report what she believed was vehicular theft, only to be informed that her Buick had been repossessed even though she was current on her payments. (Id. at ¶¶ 17–23.) Ultimately, Plaintiff's vehicle was returned undamaged, but not before she spent hours on the phone trying to determine the whereabouts of her vehicle, missed work, and experienced mental and emotional distress. (Id. at 28–69.) Plaintiff claims — and Defendant Westlake does not dispute — that it ordered Defendant Select Recovery Agents to repossess her vehicle, despite Plaintiff being completely current on her loan obligations and having no security relationship with Defendant Westlake. (Id. ¶¶ at 12, 18, 42, 44 and 45.) Indeed, Plaintiff has never had an account with Defendant Westlake.¹ (Id. at ¶¶ 60, 77.)

I. STANDARD OF REVIEW

At this stage, the Court accepts as true the facts set forth in the Amended Complaint, (ECF No. 18). Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In considering a motion to dismiss, the Court views the facts in the light most favorable to Plaintiff's case. Mylan Lab'ys, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). Although “detailed factual allegations” are not required, the Amended Complaint's “[f]actual allegations must be enough to raise a right to relief above the speculative level,” rendering the claim “plausible on its face” rather than merely “conceivable.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). At this juncture, Rule 8 of the Federal Rules of Civil Procedure requires only that plaintiffs proffer a short and plain statement showing that they are entitled to relief. Moreover, defendants may raise affirmative defenses at the motion to dismiss stage, provided that the “complaint contains all the facts necessary to the defense.” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc).

II. DISCUSSION

A. Count II — Negligence

In Count II, Plaintiff brings a claim titled as “negligence.” (Am. Compl. at 10.) There, Plaintiff describes Defendant's misconduct as qualifying as “gross[ly] negligen[t]” and that Defendant conducted itself with “a willful and wanted disregard of the rights of Plaintiff.” (Id.) However, in Virginia, three levels of negligence exist: simple negligence, gross negligence and willful and wanton negligence.² Harris v. Harman, 253 Va. 336, 341, 486 S.E.2d 99 (1997). The wording of Plaintiff's complaint implicates all three, but the Court cannot conclusively discern from the complaint which species of negligence constitutes the basis for Plaintiff's claims. Plaintiff's briefings provide no further clarity, as she simply describes Count II as “negligence,” without specifying which of the three strains she refers to. However, she does note that she may plead claims in the alternative under Federal Rule of Civil Procedure 8(d)(2). (Am. Compl. at 4.) Because the Court must draw all inferences in Plaintiff's favor at the motion to dismiss stage, the Court construes Count II of Plaintiff's Amended Complaint to present a claim for each type of negligence, as Plaintiff is permitted to plead claims in the alternative “in a single count.” Mendoza v. Cederquist, 2009 WL 1254669, at *3 (E.D. Va. May 6, 2009). Given that assumption, the Court turns to whether Plaintiff's claims for ordinary, gross and willful and wanton negligence fail as a matter of law.

Ordinary negligence occurs when an individual fails to use the degree of care demanded by a prudent person, taking into consideration the circumstances presented to that individual. Tubman v. Commonwealth, 3 Va. App. 267, 271, 348 S.E.2d 871 (1986). However, the Fourth Circuit has held that plaintiffs cannot predicate a claim of ordinary negligence on intentional acts. Smith v. Lusk, 533 F. App'x 280, 284 (4th Cir. 2013). When a party brings a claim for ordinary negligence, but pleads that the tortfeasor engaged in intentional, rather than unintentional conduct, the ordinary negligence claim must fail. Here, Plaintiff premises its claim entirely on Defendant's intentional, rather than negligent, misconduct. She claims that Defendant “request[ed]” the seizure of her vehicle and brings claims for intentional torts alongside the negligence claim. (Am. Compl. at 10.) These words and the concomitant intentional tort claims indicate that Plaintiff's ordinary negligence claim is predicated on intentional acts. Accordingly, the Court GRANTS IN PART Defendant's Motion to Dismiss to the extent that the Court dismisses Defendant's claim for ordinary negligence.

Gross negligence constitutes the second tier of negligence in Virginia. Gross negligence resembles “action which shows indifference to others, disregarding prudence to the level that the safety of others is completely neglected. [Such] negligence ․ shocks fair minded people but is less than willful recklessness.” Harris, 253 Va. at 341, 486 S.E.2d 99 (citing Griffin v. Shively, 227 Va. 317, 321, 315 S.E.2d 210 (1984)). “Several acts of negligence which separately may not amount to gross negligence, when combined may have a cumulative effect showing [that gross negligence exists].” Chapman v. City of Virginia Beach, 252 Va. 186, 190, 475 S.E.2d 798 (1996). However, “a claim for gross negligence must fail as a matter of law when the evidence shows that the defendants exercised some degree of care.” Elliott v. Carter, 292 Va. 618, 622, 791 S.E.2d 730 (2016) (emphasis added). Whether gross negligence has been established generally constitutes a factual question reserved for the jury. Elliott, 292 Va. at 622, 791 S.E.2d 730.

The Court begins the gross negligence analysis by considering whether Defendant Westlake stands immune from a gross negligence claim on account of exercising “some degree of care.” Elliott, 292 Va. at 622, 791 S.E.2d 730. The Court finds it has not, as the alleged facts of this case indicate a complete lack of care on Defendant Westlake's behalf when it decided to repossess Plaintiff's vehicle. First, Defendant Westlake has not provided any evidence that it conducted any due diligence before it directed Defendant Select Recovery Agents to repossess Plaintiff's vehicle. Had they done so, it may have discovered that Plaintiff has never had an account with Defendant that would give rise to seizing her vehicle. (ECF No. 31 at 2.)³ Or, de minimis due diligence could have revealed that the party with which Defendant Westlake does have a security relationship — the car dealer that sold Plaintiff her vehicle — no longer had any possessory interest in the vehicle, given that it had sold the vehicle many months earlier. (Id. at 2 n.3.) Defendant Westlake also fails to detail why it would repossess a vehicle in an individual's driveway when the cars with which it has security interests are the cars on the lot of the car dealership that it lends to, particularly given that seven months passed between Plaintiff purchasing the vehicle and Defendant Westlake's instruction to repossess the vehicle.

As Plaintiff notes, Defendant “should have known that [Defendant] had no security interest in [Plaintiff's] vehicle,” a fact that Defendant does not object to. (Am. Compl. at ¶ 80.) Moreover, “a quick review of the Virginia title records would have shown [Defendant Westlake] that the car was titled to [Plaintiff] with a lien [from a lender not named Westlake Flooring Services].” (Am. Compl. ¶ 62.) Crucial to this analysis, however, are not the hypothetical facts that may have been uncovered had Defendant Westlake conducted its due diligence before directing Defendant Select Recovery to repossess Plaintiff's vehicle; rather, the Court focuses on the allegation that Defendant Westlake engaged in no due diligence whatsoever. Such a failure to exercise care means that Plaintiff has made out a viable claim for gross negligence at this stage. See Howard v. Harris, 80 Va.App. 365, 383, 897 S.E.2d 742 (2024) (sustaining gross negligence claim when defendant “took no actions” to respond to potential harm).

The next step in the gross negligence analysis requires determining whether the ultimate outcome of Defendant's conduct would “shock fair-minded people.” Harris, 253 Va. at 341, 486 S.E.2d 99. Discovering that one's vehicle has gone missing in the dead of night, despite having no history of delinquency nor any past due accounts, would shock a fair-minded person, evinced by Plaintiff calling 911 immediately upon discovering her vehicle was nowhere to be found. (Am. Compl. ¶¶ 14–17.) This is not a circumstance where the defendant made a poor choice amid a fast-moving situation. See Community Motor Bus. v. Windley, 224 Va. 687, 691, 299 S.E.2d 367 (1983) (finding bus driver not grossly negligent when he drove chaotically after believing the bus had been shot at, despite the projectile merely being a rock); Carr v. Patram, 193 Va. 604, 611, 70 S.E.2d 308 (1952) (finding driver not grossly negligent when she pressed the accelerator rather than the brake). Nor does this circumstance entail Defendant taking one of two reasonable paths. Cf Commonwealth v. Giddens, 295 Va. 607, 615, 816 S.E.2d 290 (2018) (finding that individual was not grossly negligent for relying on corroborated evidence over uncorroborated evidence).

Rather, Defendant created a situation where the company acted imprudently by temporarily stealing Plaintiff's vehicle without engaging in any verification of whether Plaintiff was delinquent on her payments, or if Defendant had any security relationship with Plaintiff's vehicle whatsoever. These actions, reflecting a disregard for Plaintiff's interest in their vehicle and utter carelessness, would shock a fair-minded person. See Koffman v. Garnett, 265 Va. 12, 16, 574 S.E.2d 258 (2003) (finding that when football coach slammed player to ground, his actions were “imprudent,” which meant that the gross negligence claim did not fail as a matter of law). As such, the claim for gross negligence does not fail as a matter of law. Accordingly, the Court DENIES Defendant's Motion to Dismiss to the extent that it moves the Court to dismiss Plaintiff's claim for gross negligence.

Willful and wanton negligence constitutes the final species of negligence at issue here. “[A]cting consciously in disregard of another person's rights or acting with reckless indifference to the consequences, with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another” qualifies as willful and wanton negligence. Griffin, 227 Va. at 321, 315 S.E.2d 210. For instance, when an unlicensed pesticide technician applied commercial pesticides to a residential building, such conduct did not amount to willful and wanton negligence, as the defendant did not have knowledge-in-fact that doing so would cause injury to others. Kaltman v. All American Pest Control, Inc., 281 Va. 483, 494, 706 S.E.2d 864 (2011). However, leaving a truck broken down in the middle of the highway without placing warning flares or reflectors indicating that it was broken down did constitute willful and wanton negligence, as the driver knew that his conduct would probably injure others. Alfonso v. Robinson, 257 Va. 540, 547, 514 S.E.2d 615 (1999).

This case does not reflect the type of conscious disregard for Plaintiff's rights, akin to the truck driver leaving his vehicle stopped on the highway without warning other drivers. This case more closely resembles a mistake that could have been avoided had Defendant engaged in due diligence but does not represent the type of conscious disregard for the rights of others that can sustain a claim for willful and wanton negligence. Accordingly, the Court GRANTS IN PART Defendant's Motion to Dismiss to the extent that it moves the Court to dismiss Plaintiff's claim for willful and wanton negligence.

B. Count III — Virginia Uniform Commercial Code

In Count III, Plaintiff brings a claim under Virginia's UCC, § 8.9A-609. (Am. Compl. at ¶¶ 92, 95.) Under this part of the Virginia UCC, an aggrieved debtor, like Plaintiff, can bring suit against a secured party, like Defendant Westlake, when the secured party impermissibly retakes possession of the underlying collateral. Neither party disputes as much, as Defendant Westlake concedes that it is a secured party and that Plaintiff is a debtor, as defined by the UCC. However, the parties disagree about whether Plaintiff must plausibly allege that Defendant Westlake knew that Plaintiff was a debtor, knew Plaintiff's identity and knew how to communicate with her. See Va. Code § 8.9A-628(a)(1) (“Unless a secured party knows that a person is a debtor or obligor, knows the identity of the person, and knows how to communicate with the person ․ the secured party is not liable to the person ․ for failure to comply with this title.”).

Defendant Westlake suggests that, because Plaintiff has demonstrated that it did not have the requisite knowledge, it may avail itself of the affirmative defense, rendering Plaintiff's Virginia UCC claim null. (ECF No. 31 at 5.) Plaintiff's argument in response boils down to suggesting that Defendant Westlake had constructive knowledge of Plaintiff's identity and how to communicate with her, as she notes that “had [Defendant Westlake] simply performed a quick review of the Virginia title records, it would have known Plaintiff was the owner.” (ECF No. 33 at 6.) Thus, the dispositive issue for Count III is whether constructive knowledge, such as that described by Plaintiff, renders the affirmative defense codified at Va. Code § 8.9A-628(a)(1) unavailable to Defendant Westlake. As noted above, Defendant Westlake may avail itself of that affirmative defense, even at the motion to dismiss stage, provided that all facts necessary to support it exist on the face of the complaint. Goodman, 494 F.3d at 464.

Because Plaintiff provides no case law supporting her position, the Court begins and ends its analysis with the text of both Virginia's UCC and the default UCC. Section 8.9A-628 of the Virginia UCC instructs the Court to interpret its exculpatory provisions in conjunction with the default UCC — specifically, with reference to UCC § 9-605. That section of the default UCC stands materially identical to § 8.9A-628 of the Virginia UCC, rendering it highly probative to the Court's interpretation of the Virginian provision. Interpreting § 9-605 of the default UCC requires consulting the default UCC's definitional section, which contains various provisions defining what constitutes “knowledge,” the term of art forming the crux of Count III.⁴ The default UCC notes that “when [it] requires knowledge, the requirement is not satisfied by proving the existence of notice. That is, knowledge means actual knowledge, and is not notice or constructive knowledge.” UCC § 1-201:286 (emphasis added). Because the Virginia legislature, upon codifying the Virginia UCC, instructed those interpreting it to be guided by the default UCC, the Court must import its definition of “knowledge” when interpreting the Virginia UCC. Adopting that definition of knowledge renders Plaintiff's theory that constructive knowledge renders her claim viable a step too far. Because Plaintiff has not properly pled that Defendant Westlake had knowledge-in-fact of (1) Plaintiff's status as a debtor, (2) Plaintiff's identity, and (3) how to communicate with that her, Defendant Westlake may avail itself of the affirmative defense provided for in Va. Code § 8.9A-628. As such, Plaintiff's claim under the Virginia UCC fails as a matter of law, and the Court GRANTS Defendant Westlake's Motion to Dismiss Count III.

Lastly, the Court addresses Plaintiff's “request [for] leave to amend her complaint” through her responsive pleading, wherein she moves to amend her complaint to include facts that further substantiate that Defendant Westlake had constructive knowledge of Plaintiff's identity and had the ability to communicate with her. (ECF No. 33 at 6–7.) However, when a party so desires to amend their complaint, or amend an already amended complaint as is the case here, they must file a motion outlining the requested relief and provide a memorandum in support describing the legal basis for such relief, in accordance with the local rules. It goes without saying that moving to amend a complaint in a responsive pleading does not comport with the local rules. Nor may the Court take notice of exhibits or facts not appended to the complaint or properly incorporated by reference thereto. See Silverman v. Town of Blackstone, 843 F.Supp.2d 628, 631 (E.D. Va. 2012) (noting that when considering a motion to dismiss, the court may only consider the facts alleged on the face of the complaint, exhibits attached to the complaint and documents incorporated by reference). Even if the Court did take notice of the facts and exhibits that Plaintiff requests to include, it would not alter the Court's analysis, as none of the facts demonstrate that Defendant had knowledge-in-fact of the required elements. Thus, even if the Court took full consideration of those facts, Defendant Westlake would nevertheless be able to avail itself of the affirmative defense provided for by the Virginia UCC. As such, the Court DENIES Plaintiff's request for leave to amend her complaint, as it was improperly filed and because amendment would be futile.

C. Count IV — Conversion

In Count IV, Plaintiff brings a claim for conversion, stating that “Defendants' actions in seizing Plaintiff's car when they had no right to do so and not returning it as demanded constituted the tort of conversion, entitling Plaintiff to recover, among other things, the value of her vehicle at the time and the place of the taking.” (Am. Compl. ¶ 99.) Defendant Westlake argues that, because the vehicle was returned within 24 hours of it being impermissibly repossessed and Plaintiff has not alleged that it was damaged, she cannot sustain an action for conversion, as the complete mitigation of damages amounts to an affirmative defense. (ECF No. 31 at 11.) Defendant also posits that Plaintiff's reference to “other things” — suggesting damages related to mental and emotional distress — likewise fails to salvage her conversion claim. (ECF No. 31 at 7.) Plaintiff responds that, even if the alleged conduct gives rise to only de minimis actual or emotional damages, she may nevertheless maintain her conversion claim, as mitigation of damages only implicates an affirmative defense — not the legal vitality of the underlying claim. (ECF No. 33 at 7–8.) Plaintiff further notes that even if Defendant may raise this affirmative defense, the Court may not consider it when ruling on a motion brought under Federal Rule of Civil Procedure 12(b)(6). (Id. at 8.) As the Court noted above, however, the Fourth Circuit plainly permits Defendant Westlake to raise affirmative defenses provided that the defense is cognizable based on the face of the complaint. Goodman, 494 F.3d at 464. Thus, the Court faces two interrelated questions: (1) whether Plaintiff has pled any damages cognizable in a conversion claim; and (2) if Defendant Westlake indeed completely mitigated damages, whether that constitutes an affirmative defense that terminates Plaintiff's claim.

Under Virginia law, “conversion requires proof of a wrongful exercise or assumption of authority ․ over another's goods, depriving him of their possession.” Condo. Servs., Inc. v. First Owners'Ass'n of Forty Six Hundred Condo., Inc., 281 Va. 561, 574, 709 S.E.2d 163 (2011). Compensatory damages provide the remedy for conversion actions, and punitive damages are available when a defendant's conduct is willful and wanton. Gordon v. Pete's Auto Service of Denbigh, Inc., 637 F.3d 454, 460 (4th Cir. 2011). Moreover, “in cases involving intentional torts, recovery of damages for emotional suffering, such as humiliation and embarrassment, is permissible.” Kovari v. Brevard Extraditions, LLC, 461 F.Supp.3d 353, 389 (W.D. Va. 2020) (citing Sea-Land Serv., Inc. v. O'Neal, 224 Va. 343, 354, 297 S.E.2d 647 (1982)).

Here, Plaintiff has pled damages that qualify as cognizable in a claim for conversion. While Defendant Westlake is correct that Plaintiff will be unable to include the diminution of value to the vehicle as part of the damage calculus, given that this figure amounts to zero, there is more to conversion than the state of the property at issue. For instance, even when property is returned, “there may be recovery for the loss of use during the period of detention” if the plaintiff cannot use the property during that period. Restatement (Second) of Torts § 927(o) (1979). Just that occurred here, as Plaintiff discovered in the early hours of the morning that her vehicle was missing and then spent the next 24 hours ascertaining its whereabouts, a series of events that also caused her to miss work. (Am. Compl. ¶¶ 12–21.) Second, as noted, Virginia law provides for distress damages in conversion actions, provided that the conversion action exists independent of the distress damages. Kovari, 461 F.Supp.3d at 389. Here, Plaintiff has made a plausible claim for compensatory damages related to her inability to use her vehicle, which means that her distress damages are also legally cognizable.

Considering that Plaintiff has plausibly pled damages for conversion, the Court now turns to Defendant Westlake's contention that the complete mitigation of damages would constitute an affirmative defense. However, to put it simply, no such affirmative defense exists under Virginia law. As the Court has recently noted, “where a person is liable for conversion, the return of the property at issue is not a defense, only a way of mitigating damages.” Chmura Economics & Analytics, LLC v. Lombardo, 2021 WL 3234607, at * 19 (E.D. Va. July 29, 2021) (emphasis added). So too here.

Plaintiff has made out a claim for conversion at this stage. She has pled compensatory damages related to the period during which she was deprived from using her vehicle, which thus also renders her emotional damages viable at this stage of litigation. Defendant Westlake's assertion that the prompt return of her vehicle shields it from liability contravenes this Court's precedent and finds no support from other sources of authority. Accordingly, the Court DENIES Defendant Westlake's Motion to Dismiss Count IV of the Amended Complaint.

D. Count V — Trespass to Chattels

Lastly, Plaintiff brings a trespass to chattels claim against Defendant Westlake. As the Court has recently stated, “trespass to chattels occurs when a person has ‘illegally seized the personal property of another and converted it to his own use.’ ” Michael Pellis Architecture PLC v. M.L. Bell Constr. LLC, 693 F.Supp.3d 594, 607 (E.D. Va. 2023) (quoting Vines v. Branch, 244 Va. 185, 190, 418 S.E.2d 890 (1992)). Defendant Westlake focuses on the fact that Plaintiff's vehicle sustained no damage when it was repossessed, which it contends renders Plaintiff's claim invalid as a matter of law. (ECF No. 31 at 7–8.) In response, Plaintiff focuses on the nonpecuniary harm that befell her during the 24-hour period of repossession, including not being able to work, and contends that such damage permits her to bring a trespass to chattels claim. (ECF No. 33 at 9.)

To be sure, the Court has acknowledged that case law on Virginia trespass to chattels is few and far between. America Online, Inc. v. IMS, 24 F.Supp.2d 548, 550 (E.D. Va. 1998). However, when it has taken the opportunity to review claims of this sort, it has repeatedly relied on the Second Restatement of Torts. See, e.g., id.; Michael Pellis Architecture PLC, 693 F.Supp.3d at 607–08. The Second Restatement of Torts provides four different avenues to establish a claim for trespass to chattels, which includes (1) dispossessing the other of the chattel, (2) impairing the chattel's condition, quality or value, (3) depriving the possessor of the chattel for a substantial period of time, or (4) causing bodily harm to the possessor or to some person or thing with which the possessor has a legally protected interest. Restatement (Second) of Torts § 218(a–d) (1979). Thus, Defendant Westlake can be liable for trespass to chattels even if it did not diminish the value of Plaintiff's vehicle, as there are three other routes to liability, and Plaintiff plausibly pleads two of them. Plaintiff has pled that she was dispossessed of her vehicle and unable to use it for 24 hours, which constitutes a “substantial period of time.” (Am. Compl. ¶¶ 102–05.) Such facts plausibly satisfy § 218(a) and (c) of the Second Restatement of Torts, rendering her claim viable as a matter of law. See AMF Bowling Centers, Inc. v. Thomas Tanase, 2023 WL 9503452, at *2 (E.D. Va. Nov. 27, 2023) (permitting trespass to chattels claim to proceed even though the chattel did not lose value). Accordingly, the Court DENIES Defendant's Motion to Dismiss Count V of the Amended Complaint.

III. CONCLUSION

For the foregoing reasons, the Court GRANTS Defendant Westlake's Motion to Dismiss Count III of the Amended Complaint, (ECF No. 30). However, the Court DENIES the Motion to Dismiss to the extent it moves the Court to dismiss Count II in its entirety, as Plaintiff makes out a plausible claim for gross negligence. It likewise DENIES Defendant's Motion to Dismiss Counts IV and V of the Amended Complaint.

It is so ORDERED.

FOOTNOTES

1.   Defendant Westlake does have a security relationship with the car dealership that Plaintiff purchased her vehicle from seven months earlier, which is why the company states that it thought it had the authority to repossess Plaintiff's vehicle in the first instance. (ECF No. 31 at 2 n.3.)

2.   Because the alleged torts occurred in Virginia, and Virginia applies lex loci delicti for tort choice-of-law, Virginia state law shall govern Plaintiff's state-based claims. Dreher v. Budget Rent-A-Car System, Inc., 272 Va. 390, 395, 634 S.E.2d 324 (2006).

3.   When citing to (ECF No. 31), the Court refers to the page numbers listed on the filing itself, not the PDF pagination.

4.   While the Virginia UCC does contain a section that defines various key terms, it does not define what constitutes “knowledge.” See generally Va. Code § 8.9A-102.

David J. Novak, United States District Judge