Case 1:17-cv-00736-TSE-IDD Document 128 Filed 08/29/18 Page 1 of 15 PageID# 6932

THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

EXPRESS HOMEBUYERS USA,LLC,
Plaintiff,

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V.

CaseNo. l:17-cv-736

)
)
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WBH MARKETING INC.,
Defendant.

)
ORDER

By Memorandum Opinion and initial Order dated August 14,2018, plaintiffs motion for
summary judgment was granted as to its claims seeking cancellation of defendant's two
trademarks,"We Buy Houses" and "We Buy Houses.com" on the ground that both marks are

generic. Express Homebuyers USA, LLC v. WBHMktg. Inc., _ F. Supp. 3d _(E.D. Va. 2018);
Order, Aug. 14,2018. Plaintiffs motion was also granted as to defendant's trademark

infringement and false designation of origin counterclaims because those claims are dependent
on the validity ofthe Marks.
Still to be resolved in this action are defendant's six additional counterclaims, which

allege various claims for false advertising, defamation, and conspiracy. Plaintiff seeks summary

judgment on these counterclaims,' and defendant has filed a cross-motion for summary judgment
on two counterclaims alleging false advertising based on plaintiffs statements about itself.
Because there are no disputed issues of material fact with respect to these counterclaims,
plaintiffs motion for summary judgment with respect to the remaining counterclaims—

'Also at issue is plaintiffs motion to dismiss the false advertising counterclaims—Counterclaim Counts III, VIII
and IX—for lack ofsubject matter jurisdiction pursuant to Rule 12(b)(1), Fed. R. Civ. P. Because the parties'
motions for summary judgment have addressed the arguments contained in plaintiffs motion to dismiss and because
the summary judgment record is extensive, it is appropriate here to deny plaintiffs motion to dismiss and to resolve
all ofthe counterclaims pursuant to the parties' cross-motions for summary judgment.
1

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Counterclaim Counts 111, V, VI, VII, and IX must be granted and defendant?s cross-
motion for summary judgment on Counterclaim Counts and IX must be denied.
1.

Given that summary judgment is appropriate only where there are no genuine disputes of
material fact, Fed. R. Civ. P. 56, the ?rst step in the analysis is to identify the record facts as to
which no genuine dispute exists. In this regard, Local Rule directs a movant for summary
judgment to include in its submission a separately captioned section listing in numbered-paragraph
form all material facts as to which the movant contends no genuine dispute exists. Local Civ. R.
See also Rule 16(b) Scheduling Order 1] 13, Oct. 19, 2017. The nonmovant must then
respond to each numbered paragraph, either admitting or contesting the putative undisputed fact
and citing admissible record evidence to establish a genuine dispute of material fact. The
nonmovant?s failure to respond to a fact listed by the movant constitutes an admission that the fact
is undisputed. Rule 16(b) Scheduling Order 1] 13, Oct. 19, 2017.

In this case, both parties essentially complied with the requirements. Accordingly, the facts
recited here are derived from the parties? lists of material facts that are not disputed and their
respective responses. These facts all occurred before the grant of summary judgment to the plaintiff
as to the invalidity of the defendant?s two trademarks.

0 Plaintiff Express Homebuyers (EHB) is a limited liability company
organized under Virginia law with its principal place of business in
Spring?eld, VA. EHB has been in the house-buying industry since 2003,
operating chie?y in the Washington, DC. metropolitan area. Lawrence
Bradford Chandler is CEO.

0 Defendant WBH Marketing (WBH) is a Texas corporation with its principal
place of business in Southlake, TX. WBH provides educational and
instructional materials to home buyers and sellers and conducts its

operations nationwide. Jeremy Brandt is a citizen of Texas and is 
founder and CEO.

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WBH owns the two registered marks at issue: ?We Buy Houses? and
?Webuyhouses.com? (?the 

- Prior to the entry of the Order granting summary judgment to EHB on the
invalidity of the Marks, WBH directed real estate investors to remove the words
?we buy houses? from Facebook, websites, blogs, Twitter, YouTube, and other
marketing. CD, Ex. 122. WBH requested that YouTube remove 
marketing and advertising videos featuring the words ?we buy houses.? WBH told
real estate investors that by using ?we buy houses,? they were attempting to
confuse consumers and imitate WBH. Id. WBH told real estate investors that use
of ?we buy houses? in marketing content was trademark infringement. Brandt
told WBH executive Dev Horn, ?That?s how we roll. acebook page 
Id. Ex 120. Horn further stated that WBH needed to ?scare the sh*t? out of
investors using ?we buy houses? and that WBH should THOSE MOTHER



0 Real estate investors informed WBH of the time and money it would take to
remove ?we buy houses? from their marketing, and that actions disrupted
businesses.

0 EHB has published several statements concerning efforts to enforce its
trademark rights in the Marks. These include assertions that efforts to
enforce its trademark rights in the Marks are ?wrong? and that WBH is a
?trademark bully?; WBH is ?threatening everyone using [we buy houses] in any
way, shape or form with legal action?; WBH is ?attempting to force real estate
investors into giving up their websites, social media, and marketing materials?
and that efforts to enforce the WBH marks ?are disrupting investor?s
businesses? and ?undermining [their] WBH ?bullies,? ?threatens,?
?shakes down,? ?sabotages? and ?extorts? others in the home buying industry;
and an implied or express assertion that WBH did not have protectable rights in
the Marks.

0 has advertised on its website and other media that it ?Buy[s] Your House In
7 Days,? that it is the Homebuyer? in various localities, and that it has ?bought
hundreds of homes? in various cities.

0 CEO, Brandt, does not know of any potential licensees or homebuyers who
chose not to contact or do business with WBH because they encountered 
false advertising but believes that many ?may choose to do business with EHB
instead of Brandt Supp. Dec. 1] 4.

 

2 Because summary judgment has been granted in favor of plaintiff with respect to the invalidity of the Marks, the
analysis proceeds here on that basis.

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II.

The summary judgment standard, which the parties do not dispute, is too well-settled to
merit extended discussion. As Rule 56, Fed. R. Civ. P., makes clear, summary judgment is
appropriate where ?the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.? And it is settled that ?the burden on the
moving party may be discharged by ?showing??that is, pointing out to the district court?that
there is an absence of evidence to support the nonmoving party?s case.? Celotex Corp. v. Catrett,
477 US. 317, 325 (1986). On the other hand, if the record re?ects a genuine factual dispute,
summary judgment is precluded. A genuine factual dispute exists ?if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.? Anderson v. Liberty Lobby, Inc,
477 U.S. 242, 248 (1986). But importantly, the party opposing summary judgment may not rest
upon mere allegations and denials, but must instead ?set forth speci?c facts showing that there is
a genuine issue for trial.? Id. Moreover, these speci?c facts must be shown to exist in the record
in legally admissible form. Finally, ?[t]he mere existence of a scintilla of evidence in support of
the [non-moving party?s] position will be insuf?cient; there must be evidence on which the jury
could reasonably ?nd for the [non-moving party].? Id. at 252.



Counts and IX of First Amended Counterclaims allege that EHB is
liable for false advertising under the Lanham Act. See 15 U.S.C. 1125(a)(1). Count 111 claims
that EHB made numerous false statements about efforts to enforce its trademark rights in
the Marks. Counts and IX claim that EHB has falsely promoted and mischaracterized its
own services, thereby deceiving consumers.

A plaintiff asserting a false advertising claim under the Lanham Act must establish that:

Case Document 128 Filed 08/29/18 Page 5 of 15 Page D# 6936

(1) the defendant made a false or misleading description of fact or representation
of fact in a commercial advertisement about his own or another's product; (2) the
misrepresentation is material, in that it is likely to in?uence the purchasing
decision; (3) the misrepresentation actually deceives or has the tendency to deceive
a substantial segment of its audience; (4) the defendant placed the false or
misleading statement in interstate commerce; and (5) the plaintiff has been or is
likely to be injured as a result of the misrepresentation, either by direct diversion of
sales or by a lessening of goodwill associated with its products.

LLC v. Mead Johnson Co., 639 F.3d 111, 120 (4th Cir. 2011). Failure to
establish any one of these ?ve elements is fatal to a plaintiff? 3 claim. Id.
A.

EHB argues that Counts and IX should be dismissed because WBH has not
demonstrated injury, as required by element (5) of a false advertising claim under the Lanham
Act. See id.

The ?indispensable ?fth element of a Lanham Act claim? is that the claimant has been or
is likely to be injured as a result of the alleged false advertising, ?either by direct diversion of
sales or by a lessening of goodwill associated with its product.? Verisign, Inc. v. XYZ. COM LLC,
848 F.3d 292, 300 (2017). See Lexmark Int'l, Inc. v. Static Control Components, Inc, 572 US.
118, 131-32, (2014) (stating that a false advertising claimant must ?show economic or
reputational injury ?owing directly from the deception wrought by the defendant?s advertising?).
In other words, the claimant must demonstrate that it has suffered ?actual damages.? Verisign,
Inc., 848 .3d at 299. See PM Prods, LLC v. Mead Johnson C0., 639 F.3d 111, 122 (summary
judgment properly awarded to defendant in Lanham Act case because plaintiff could not prove
that allegedly false statements caused any damages); Xoom, Inc. v. Imageline, Inc., 323 F.3d 279,
286 (4th Cir. 2003) (stating that Lanham Act claimant must ?prove actual damages and a causal

link between those damages and the Lanham Act violation?).

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In Verisign, the plaintiff?s expert committed a ?fatal ?aw? in alleging false advertising
injury because she ?assume[d] rather than demonstrate[d]? that every customer that defendant
gained during the relevant time period was the result of the defendant?s allegedly false
statements. Verisign, 848 F.3d at 300. Although the expert?s report in Verisign ?show[ed] that
[the plaintiff] experienced a drop? in customers after the defendant made allegedly false
statements about the plaintiff, this did not demonstrate that the defendant?s statements caused the
plaintiff?s injury; it only demonstrated ?correlation,? not ?causation.? Id. 301. Moreover, despite
claiming a decrease in pro?ts, the expert failed ?to quantify any such effect, beyond establishing
a temporal connection.? Id.

Similarly, WBH here has claimed that alleged misstatements regarding 
services have improperly diverted sales from WBH to EHB but WBH has adduced no record
facts showing causation or actual damages. Speci?cally, WBH points to advertisements
that it ?Buy[s] Your House In 7 Days,? (ii) that it is the Homebuyer? in various localities,
and that it has ?bought hundreds of homes? in various cities. WBH argues that because EHB
is a direct competitor and the advertisements target markets in which WBH does business, the
advertising necessarily diverts potential home sellers. The analysis of experts mirrors
this understanding. See Hill Rebuttal at 4-5. dishonest and inaccurate statements made by
Chandler, EHB, and others is the only evidence necessary to establish damage to But
CEO, Brandt, admits that he does not ?know who chose not to contact or do business
with WBH because they encountered false advertising,? and states only that a potential
home seller or real estate investor may have chosen to do business with EHB instead of WBH.
Brandt Supp. Dec. ?l 4. Indeed, WBH acknowledges that it does not even have evidence that its

licensees or revenues have declined at all during the relevant time period: Dep. of WBH Mktg. at

Case Document 128 Filed 08/29/18 Page 7 of 15 Page D# 6938

181:5-18, 223:24-224z3. Therefore, the record evidence in this case falls even farther short of
showing injury than did the evidence in Verisign. WBH has failed to demonstrate not only
causation, but also correlation of conduct with actual harm of any kind.3 Without any
evidence of actual damages, false advertising counterclaims regarding self-
promotion fail. Verisign, 848 F.3d at 299-300 (quoting Lexmark, 572 US. at 131-32) is the
core requirement that a plaintiff ?show economic or reputational injury ?owing directly from the
deception wrought by the defendant?s advertising . . . The Fourth Circuit has made clear that
?conclusory? theories of presumed damages are insuf?cient to meet the actual harm requirement
of a Lanham Act claim. Verisign, 848 .3d at 301 (?nding insuf?cient Lanham Act plaintiff?s
expert?s suggestion that defendant?s pro?ts were at least partially due to the alleged false
advertising and her opinion that market participants were likely to be enticed by the allegedly
in?ated representation of defendant?s services).

Seeking to avoid this conclusion, WBH argues that it is exempt from the actual harm
requirement because statements are ?literally false.? In support of this argument, WBH
cites two cases that pre-date Lexmark and Verisign for the proposition that the advertising
claim is literally false, the court may enjoin4 the use of the claim without reference to the
advertisement's impact on the buying public.? C. B. Fleet Co. v. SmithKline Beecham Consumer

Healthcare, L.P., 131 F.3d 430, 434 (4th Cir. 1997) (internal quotes omitted); Novartis

 

3 WBH argues that it has demonstrated injury because its experts have quanti?ed the relief that WBH seeks in this
case. That argument fails. Verisign makes clear that it is the ?effect? or economic injury that must be quanti?ed; it is
insuf?cient to merely calculate the damages the plaintiff wants. Verisign, 848 .3d at 301. In Verisign, the plaintiff?s
expert concluded that the plaintiff was entitled to $527,000 in lost pro?ts. However, the Fourth Circuit found that
the plaintiff had not adequately demonstrated a causal link between the plaintiff?s lost pro?ts and the defendant?s
statements. Id As discussed above, WBH has not even demonstrated any actual injury, much less a causal link to
conduct. The fact that that WBH has quanti?ed the relief it seeks does not change the fact that it has alleged
nothing more than presumed damages.

4 [t is also important to note that in this case WBH seeks damages and not an injunction. See Verisign, 848 F.3d at
299 recover damages under the Lanham Act, [the plaintiff] must show . . . actual damages?) (emphasis
added). .

Case Document 128 Filed 08/29/18 Page 8 of 15 Page D# 6939

Consumer v. Johnson Johnson, 290 F.3d 578, 586 (3d Cir. 2002). More recently, however, the
Fourth Circuit has unequivocally held that ?to recover damages under the Lanham Act, [the
plaintiff] must show not only false advertising by [the defendant], but also that [the defendant?s]
statements caused [the plaintiff] actual damages.? Verisign, 848 F.3d at 299. WBH also quotes
from Lexmark itself, which states that ?[e]ven when a plaintiff cannot quantify its losses with
suf?cient certainty to recover damages, it may still be entitled to . . . disgorgement of the
defendant's ill-gotten pro?ts under Lexmark, 572 US. at 135-3 6. But WBH misreads
this quote as permitting a claimant to escape or avoid the requirement to show that a defendant?s
false advertising proximately caused an injury. Lexmark does not eliminate this requirement.
Lexmark, 572 US. at 135-36 (explaining that only when a plaintiff has adequately shown injury
and causation may it recover disgorgement of defendant?s pro?ts under 1117(a)). And as
Verisign, which applies Lexmark, makes clear, ?it is the core requirement that a plaintiff ?show
economic or reputational injury ?owing directly from the deception wrought by the defendant's
advertising? . . . in Lanham Act cases.? Verisign, 848 F.3d at 300 (quoting Lexmark, 572 US. at
133). WBH has cited to no authority to relieve it of this burden, and this summary judgment
record does not disclose a factual basis for injury.

B.

EHB argues that Count 111 should be dismissed because allegedly disparaging
statements concerning commercial activity are not actionable as false statements, as
required by element (1) of a false advertising claim under the Lanham Act. See PBM Prods, 639
F.3d at 120.

The threshold element of a false advertising claim is a showing that the defendant made a

false or misleading representation of fact about his own or another person?s goods, services, or

Case Document 128 Filed 08/29/18 Page 9 of 15 Page D# 6940

commercial activities. 15 U.S.C. 1125(a)(1); PBM Prods., LLC v. Mead Johnson Co., 639
F.3d 111, 120 (4th Cir. 2011). In other words, (1) the contested statement must be false, and (2)
it must be a representation of fact. Design Res, Inc. v. Leather Indus. of Am., 789 F.3d 495, 501
(4th Cir. 2015). With respect to the falsity requirement, the statement, to be actionable, ?must be
either false on its face or, although literally true, likely to mislead and to confuse consumers
given the merchandising context.? PBM Products, 639 F.3d at 120 (quoting C. B. Fleet Co. v.
SmithKline Beecham Consumer Healthcare, L. P., 131 .3d 430, 434 (4th Cir.1997)). And to be a
statement of fact, it must be a ?speci?c and measurable claim, capable of being proved false or
of being reasonably interpreted as a statement of objective fact.? Design Resources, 789 F.3d at
502. Therefore, statements of opinion or puffery??exaggerated advertising, blustering, and
boasting??-cannot be the basis of a false advertising claim because they ?cannot be interpreted
as a veri?able statement of objective fact?. Verisign, Inc. v. XYZ. COM LLC, 848 F.3d 292, 302
(2017).

In Verisign, the Fourth Circuit rejected the plaintiff?s claim that certain statements made
by the defendant falsely disparaged the plaintiff?s product because the statements were not
actionable statements of fact. Id. at 303. For example, the court in Verisign found that the
statement that it is ?impossible to ?nd the domain name that you want? was mere puffery and
thus not actionable because the statement as a whole constituted an exaggerated, blustery
assertion of subjective value and an opinion about consumer preference. Id. Furthermore, the
Fourth Circuit in Verisign made clear that certain statements that might be read as a veri?able
factual statement must be read in context to determine how the consuming public would
understand the statement. Thus, the court in Verisign rejected the plaintiff?s argument that the

statement ?[t]he only thing that?s left is something with a dash or maybe three dashes and a

Case Document 128 Filed 08/29/18 Page 10 of 15 PagelD# 6941

couple of numbers in it? was actionable because it could be proven false. According to the
Verisign court, the statement needed to be read along with the statement ?[a]ll of the good real
estate is taken,? which showed that the overall message was a subjective opinion about the
quality of the available domain names. Id.

Here, it is evident that statements that efforts to enforce the WBH marks
are ?wrong? and that WBH is a ?trademark bully? are statements of opinion because they assert
subjective assessment of commercial activity. See Taylor v. CNA Corp., 782 F.
Supp. 2d 182, 202 n.12 (E.D. Va. 2010) . . conduct [is] indeed harassing, bullying,
or otherwise inappropriate . . . are matters of opinion?); Shipyard Brewing v. Logboat Brewing,
2017 WL 6733971, at *4 (W.D. Mo. Dec. 29, 2017) (holding that calling a competitor a
?trademark bully? was a non-actionable statement of opinion). These statements, therefore, are
non-actionable as false advertising.

Next, the statement that WBH is ?threatening everyone using [we buy houses] in any
way, shape or form with legal action? is also not an actionable disparaging statement. The record
contains an abundance of examples of WBH directing third parties to cease using ?we buy
houses? in a variety of manifestations on acebook, websites, blogs, Twitter, YouTube, and
physical signs, and communications were largely accompanied by warnings about the
legal consequences of trademark infringement. Ugo Colella Dec., Ex. 121 three words
together ?We Buy Houses? with anything before or after is an infringement?); id., BX. 122
(WBH CEO Brandt stating, ?We contact hundreds of people who are perhaps unknowingly
crossing the line?; member of WBH legal team communicating, ?The best practice is to not have
?We Buy Houses? anywhere on your marketing?). Therefore, even if WBH did not threaten

literally ?everyone? using the Marks in ?any way, shape or form,? there clearly was a factual

10

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basis for statement, and the statement at most constitutes a non-actionable, blustery
exaggeration. See Verisign, 848 F.3d at 303.

Likewise, statements that WBH is ?attempting to force real estate investors into
giving up their websites, social media, and marketing materials? and that efforts to
enforce the WBH marks ?are disrupting investor?s businesses? and ?undermining [their]
livelihood[s]? have a factual basis in the circumstances of this dispute. See, e. Ugo Colella
Dec., Ex. 120 (WBH CEO Brandt stating, ?That?s how we roll. acebook page id,
BX. 122 (an affected real estate investor emailing Brandt, reinstate me on [Facebook].
This is Day three that I can not [sic] interact with people . . . . I have clients who rely on me for
marketing their homes . . . Therefore, the remarks at most constitute ?an exaggerated,
blustery assertion.? See Verisign, 848 F.3d at 303. In the same vein, assertions that WBH
?bullies,? ?threatens,? ?shakes down,? ?sabotages? and ?extorts? others in the home buying
industry would be understood by a consumer to be a blustery, subjective characterization of how
efforts to enforce its purported Marks have affected its competitors.

Finally, WBH challenges implied and express assertions by EHB that WBH did not have
protectable rights in the Marks. While at ?rst glance it may appear that an assertion about
whether WBH owned the trademark rights to the Marks could be proven true or false, the
statements must be viewed in context. Id. Here, in the context of campaign to raise funds
to ?nance a lawsuit seeking cancellation of Marks, it is clear that any statements
suggesting the Marks were invalid as a matter of fact clearly should be interpreted to
communicate subjective opinion?that it was unjust for a commonly used phrase to be

trademarked and that the PTO had erred when it found the Marks were not generic.

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IV.

Count of First Amended Counterclaims allege that EHB is liable under
Virginia common law for defaming business reputation.5 Speci?cally, WBH takes issue
with the same allegedly false statements about efforts to enforce its trademark rights in
the Marks that were the basis of its false advertising claim in Count EHB repeats its
argument that Count should be dismissed because its allegedly disparaging statements are not
actionable as false statements about commercial activity.

Under Virginia law, the elements of defamation are publication about the plaintiff,
(2) an actionable statement, and (3) the requisite intent.? Chopin v. Greve, 787 F. Supp. 557, 562
(ED. Va. 1992). An actionable statement must be both false and defamatory. Id To be false, the
statements must ?contain a provably false factual connotation,? Yeagle v. Collegiate Times, 255
Va. 293, 295 (1988). Moreover, the statements must be interpreted by assessing how a
reasonable third party would understand ?the plain language of the statement and the context and
general tenor of its message.? Snyder v. Phelps, 580 F.3d 206, 219 (4th Cir. 2009). In this regard,
the Fourth Circuit has held that ?[t]he general tenor of rhetorical speech, as well as the use of
?loose, ?gurative, or hyperbolic language? suf?ciently negates any impression that the speaker is
asserting actual facts.? Snyder v. Phelps, 580 .3d 206, 220 (4th Cir. 2009) (citing Milkovich v.

Lorain Journal Co., 497 US. 1, 21 (1990)). Likewise, a statement of opinion is only actionable

 

5 In its First Amended Counterclaims, WBH refers to the tort of ?trade libel.? First Am. Countercls. Count V.
However, trade libel (or ?product disparagement?) applies to ?[s]tatements which discredit the quality or utility of a
producer's goods,? Gen. Prod. Co. v. Meredith Corp., 526 F. Supp. 546, 553 (ED. Va. 1981), whereas claim
deals with statements about commercial activity that have allegedly damaged business
reputation. First Am. Countercls. 110, 113. And WBH appears to acknowledge that defamation is the relevant tort
because it sets out the elements for defamation, not trade libel, in its response to summaryjudgment brief.
WBH Marketing, lnc.?s Opposition to Countercl. De??s Mot. for Sum. J. at 25.

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if it ?can be reasonably interpreted to declare or imply untrue facts.? Biospherics, Inc. v. Forbes,
Inc., 151 F.3d 180, 184 (4th Cir. 1998) (citing Milkovich, 497 US. at 20).

Here, WBH claims that it has been defamed by a variety of statements regarding
efforts to enforce its trademark rights in the Marks. These statements include assertions
that, for example, WBH is a ?trademark bully?; WBH is ?threatening everyone using [we buy
houses] in any way, shape or form with legal action?; WBH ?bullies,? ?threatens,? ?shakes

99 ?6

down, sabotages? and ?extorts? others in the home buying industry; and an implied or express

assertion that WBH did not have protectable rights in the Marks. As explained in part 

supra, a reasonable consumer would interpret these statements to consist of subjective

opinions or rhetorical exaggerations that have a grounding in the facts in the record. Therefore,

under Virginia defamation law, as under the Lanham Act, these statements are not actionable.
V.

Finally, Counts VI and VII of First Amended Counterclaims allege that EHB is
liable for common law and statutory conspiracy for conspiring to harming business by
misrepresenting efforts to enforce its trademark rights in the Marks. EHB argues that
Counts VI and VII should be dismissed because no actionable tort was committed.

Business conspiracy under Virginia Code 18.2-499 requires concerted action; (2)
legal malice; and (3) causally related injury.? Livia Properties, LLC v. Jones Lang LaSalle
Americas, Inc., No. CIV.A. 5214-00053, 2015 WL 4711585, at *9 (W.D. Va. Aug. 7, 2015). And
the elements of common law conspiracy are an agreement between two or more persons (ii)
to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means, which
results in damage to plaintiff.? Taylor v. CNA Corp., 782 F. Supp. 2d 182, 204 (ED. Va.

2010).

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Under Virginia law, a claim of either statutory or common law conspiracy requires proof
that the underlying tort or a violation of a legally protected interest was committed. Virginia
Vermiculite, Ltd. v. Historic Green Springs, Inc, 307 F.3d 277, 284 (4th Cir. 2002) (citing
Citizens for auquier County v. SPR Corp, 37 Va. Cir. 44 (1995) (?Where there is no actionable
claim for the underlying alleged wrong, there can be no action for civil conspiracy based on that
Taylor, 782 F. Supp. 2d at 204-05 (citing Almy v. Grisham, 273 Va. 68, 80 (2007). As
discussed above and in the earlier Memorandum Opinion, Express Homebuyers USA, LLC v.
WBH Marketing, Inc, F. Supp. (E.D. Va. 2018), each of counterclaims fails as a
matter of law. Therefore, without any actionable underlying claim, conspiracy
counterclaims do not survive.

VI.

For the reasons discussed above and for good cause,

It is hereby ORDERED that plaintiff?s motion for summary judgment (Doc. 63) must be
GRANTED, and therefore Counterclaims V, VI, VII, and IX are dismissed.

It is further ORDERED that plaintiff? motion to dismiss for lack of subject matter
jurisdiction (Doc. 60) must be DENIED as Counts and IX are resolved on plaintiff?s
summary judgment motion.

It is further ORDERED that defendant?s motion for summary judgment (Doc. 81) must

be DENIED as to Counts and IX.

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The Clerk is directed to send a copy of this Order to all counsel of recurd.

Alexandria, Virginia
August 29, 2018

 

T. S. Ellis, 
United Smtes Dis ct Judge

15