Smith v. Exomod Concepts, LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
SAM SMITH,
Plaintiff,
v. 	CIVIL NO. 1:25-CV-21
(KLEEH)
EXOMOD CONCEPTS, LLC,
RICHARD ZEV KATZEFF,
JOHN CONNOLLY,
HDK OF BOWLING GREEN, LLC, and
DENNIS E. LAUBE,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART MOTION TO DISMISS [ECF NO. 5]
Pending 	before 	the 	Court 	is 	a 	motion 	to 	dismiss 	filed 	by
Defendants HDK of Bowling Green, LLC and Dennis E. Laube. 	For the
reasons discussed below, the motion is granted in part and denied
in part.
I. 	INTRODUCTION AND PROCEDURAL HISTORY
On February 14, 2025, Plaintiff Sam Smith (“Plaintiff”) filed
a complaint in the Circuit Court of Marion County, West Virginia,
against the Defendants, ExoMod Concepts, LLC, Richard Zev Katzeff,
John Connolly, HDK of Bowling Green, LLC d/b/a HDK Custom Mopar K-
Frames 	and/or 	HDK 	Suspension, 	and 	Dennis 	E. 	Laube 	(together,
“Defendants”). 	See 	ECF 	No. 	1-2. 	On 	March 	21, 	2025, 	Defendants
HDK 	of 	Bowling 	Green, 	LLC 	and 	Dennis 	E. 	Laube 	(the 	“HDK
Defendants”) removed the case to this Court. 	See ECF No. 1.
Case 1:25-cv-00021-TSK Document 48 Filed 12/02/25 Page 1 of 24 PageID #:
<pageID>

SMITH V. EXOMOD 	1:25-CV-21
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART MOTION TO DISMISS [ECF NO. 5]
2
Plaintiff alleges that Defendants engaged in wrongful conduct
relating 	to 	Plaintiff’s 	purchase 	of 	two 	custom-made 	vehicles: 	a
Dodge 	Charger 	(the 	“Charger”) 	and 	a 	Dodge 	Dart 	(the 	“Dart”). 	He
brings the following causes of action:
x 	Count One: Breach of Contract (Charger);
x 	Count 	Two: 	Breach 	of 	Express 	Warranty
(Charger);
x 	Count 	Three: 	Breach 	of 	Implied 	Warranties
(Charger);
x 	Count Four: Breach of Contract (Dart);
x 	Count 	Five: 	Breach 	of 	Express 	and 	Implied
Warranties (Dart);
x 	Count 	Six: 	Violation 	of 	Lemon 	Law
(Charger);
x 	Count 	Seven: 	Magnuson-Moss 	Warranty 	Act
(Charger);
x 	Count Eight: Unjust Enrichment;
x 	Count Nine: Fraud;
x 	Count Ten: Negligent Misrepresentation;
x 	Count Eleven: Conversion;
x 	Count Twelve: Civil Conspiracy; and
x 	Count 	Thirteen: 	Piercing 	the 	Corporate
Veil.
On 	March 	28, 	2025, 	the 	HDK 	Defendants 	filed 	a 	motion 	to 	dismiss
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
See 	ECF 	No. 	5. 	The 	motion 	to 	dismiss 	is 	fully 	briefed 	and 	ripe
for review.
Case 1:25-cv-00021-TSK Document 48 Filed 12/02/25 Page 2 of 24 PageID #:
<pageID>

SMITH V. EXOMOD 	1:25-CV-21
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART MOTION TO DISMISS [ECF NO. 5]
3
II. 	FACTUAL BACKGROUND
The 	following 	facts 	are 	taken 	from 	the 	complaint. 	For
purposes of deciding this motion, the Court assumes that they are
true.
ExoMod 	Concepts, 	LLC 	(“ExoMod”) 	is 	a 	company 	that 	builds
“Retromod” motor vehicles, or vehicles “that [have] been modified
or 	customized 	with 	modern 	features 	and 	technologies 	while
retaining 	a 	distinct 	retro 	or 	classic 	appearance.” 	Id. 	¶ 	13.
ExoMod also builds “Restomod” vehicles, or vehicles that have been
restored 	with 	modern 	modifications. 	Id. 	¶¶ 	14-15. 	ExoMod’s
website 	boasts 	“more 	than 	50 	years’ 	experience 	in 	the 	muscle 	car
industry, building some of the world’s finest and highest-scoring
concourse restorations and custom Restomods.” 	Id. ¶ 16. 	Richard
Zev Katzeff (“Katzeff”) is the CEO of ExoMod. 	Id. ¶ 17.
Two specific custom vehicles are at issue here. 	The first is
a “Retromod” custom car identified as “C68 Carbon – Midnight Train”
(the 	“Charger”). 	Id. 	¶ 	19. 	Plaintiff 	entered 	into 	a 	contract
with 	ExoMod 	for 	the 	build 	of 	the 	Charger 	on 	or 	about 	August 	17,
2023. 	Id. 	¶ 19-20. 	The 	second 	custom 	vehicle 	is 	a 	“Restomod”
1969 	Dodge 	Dart 	(the 	“Dart”). 	Id. 	¶¶ 	32, 	36. 	Plaintiff 	entered
into a contract with ExoMod for the build of the Dart on or about
October 	17, 	2023, 	while 	the 	Charger 	was 	still 	being 	built 	and
before 	Plaintiff 	had 	any 	knowledge 	of 	the 	defective 	condition 	of
Case 1:25-cv-00021-TSK Document 48 Filed 12/02/25 Page 3 of 24 PageID #:
<pageID>

SMITH V. EXOMOD 	1:25-CV-21
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART MOTION TO DISMISS [ECF NO. 5]
4
the Charger. 	Id. ¶ 32. 	Plaintiff believed that Katzeff had begun
building 	the 	Dart 	and 	would 	finish 	it 	according 	to 	Plaintiff’s
“specs.” 	Id. ¶ 33. 	Plaintiff and Katzeff discussed that the build
would 	be 	completed 	in 	or 	around 	February 	2024 	and 	that 	the 	“all-
in” 	price 	was 	$150,000.00. 	Id. 	¶¶ 	37–38. 	Katzeff 	promised 	and
represented to Plaintiff that the Dart would be a “SEMA quality” 1
build 	and 	that 	the 	Dart 	would 	be 	worth 	between 	$250,000.00 	and
$300,000.00. 	Id. ¶¶ 39–41.
Katzeff 	advised 	Plaintiff 	that 	the 	Dart 	was 	being 	built 	at
“HDK 	Suspension” 	by 	“Denny 	Laube,” 	whom 	Katzeff 	contended 	“was
very 	well 	known 	and 	respected 	in 	the 	Midwest” 	and 	a 	“famous 	70s
and 	80s 	Super 	Stock 	race 	car 	driver 	from 	California.” 	Id. 	¶ 	34–
35. 	Katzeff directed Plaintiff “to issue certain payments directly
to 	purported 	subcontractors, 	including . . . Laube.” 	Id. 	¶ 43.
Katzeff 	instructed 	Plaintiff 	to 	pay 	Laube 	and 	another
subcontractor with cash because they wanted to be paid “under the
table.” 	Id. 	¶ 	44. 	Plaintiff 	followed 	up 	with 	Katzeff 	regarding
the status of the Dart, and Katzeff informed Plaintiff on multiple
1 	“SEMA 	is 	an 	annual 	auto 	industry 	only 	trade 	show 	for 	the
automotive 	aftermarket. 	It 	is 	one 	of 	the 	premier 	auto 	industry
trade 	shows 	and 	it 	features 	high-end 	custom 	cars.” 	Compl., 	ECF
No. 1-2, at ¶ 40.
Case 1:25-cv-00021-TSK Document 48 Filed 12/02/25 Page 4 of 24 PageID #:
<pageID>

SMITH V. EXOMOD 	1:25-CV-21
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART MOTION TO DISMISS [ECF NO. 5]
5
occasions 	that 	the 	build 	was 	running 	on 	time 	and 	within 	budget.
Id. ¶ 45.
Eventually, after Plaintiff had already spent $138,000.00 on
the 	Dart, 	Katzeff 	and 	a 	paint 	subcontractor 	informed 	Plaintiff
that 	the 	paint 	job 	would 	add 	$50,000.00 	to 	the 	total 	cost 	of 	the
build. 	Id. 	¶ 	46. 	Plaintiff 	asked 	“Defendants” 	to 	ship 	the 	Dart
to 	him 	so 	that 	he 	could 	have 	a 	local, 	trusted 	vendor 	paint 	it 	at
a 	lower 	cost. 	Id. 	¶ 	47. 	When 	the 	Dart 	arrived 	for 	painting, 	it
was obvious that the Dart was nowhere near complete and was wholly
inoperable, 	despite 	the 	fact 	that 	Plaintiff 	had 	already 	paid
$138,000.00 	of 	the 	$150,000.00 	“all 	in” 	price. 	Id. 	¶ 	48. 	After
receiving 	the 	Dart 	in 	this 	condition, 	Plaintiff 	again 	questioned
Katzeff about the status of the Dart build and its cost. 	Id. ¶ 49.
Plaintiff asserts that he revoked any acceptance of the Dart. 	Id.
¶ 50.
Katzeff 	and 	“Defendants” 	acknowledged 	that 	the 	Dart 	project
was “well over budget” and advised Plaintiff that it would cost an
additional 	$60,000.00 	to 	finish 	the 	Dart 	(in 	addition 	to 	the
$138,000.00 	that 	Plaintiff 	had 	already 	paid). 	Id. 	¶ 	51. 	The
additional 	$60,000.00 	did 	not 	include 	the 	$25,000.00 	that
Plaintiff had paid for paint from his local vendor. 	Id. 	Plaintiff
raised questions about whether the Dart would be of “SEMA quality”
Case 1:25-cv-00021-TSK Document 48 Filed 12/02/25 Page 5 of 24 PageID #:
<pageID>

SMITH V. EXOMOD 	1:25-CV-21
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART MOTION TO DISMISS [ECF NO. 5]
6
when it was finished. 	Id. ¶ 54. 	As delivered, the Dart does not
have a VIN plate, and it cannot be titled. 	Id. ¶ 55.
Plaintiff remained in contact with Katzeff “and certain other
Defendants” 	regarding 	the 	cost 	of 	the 	Dart 	build 	and 	Katzeff’s
instructions 	to 	pay 	other 	vendors 	directly. 	Id. 	¶ 	56. 	Katzeff
responded 	on 	one 	occasion 	that 	he 	had 	used 	Plaintiff’s 	payments
towards 	the 	Dart 	to 	purchase 	a 	Porsche 	for 	himself 	and 	that
Plaintiff’s payments had not gone toward the Dart. 	Id. ¶ 57. 	On
another 	occasion, 	Katzeff 	told 	Plaintiff 	that 	the 	project 	was
“overbudget,” 	but 	that 	it 	was 	“not 	just 	[Laube’s] 	oversight 	but
[Katzeff’s] 	as 	well” 	and 	that 	“[Laube] 	went 	over 	budget 	by 	10-
15k.” 	Id. 	¶ 	58. 	Katzeff 	and 	“Defendants” 	bought 	parts 	for 	the
Dart with money paid by Plaintiff, but the parts could not be used
on the Dart, so Katzeff and “Defendants” planned to “sell them on
eBay 	or 	other 	outlets 	at 	a 	steep 	discount.” 	Id. 	¶ 	59. 	ExoMod
shipped 	some 	Dart 	parts 	to 	Plaintiff, 	and 	Plaintiff 	learned 	that
some 	of 	the 	parts, 	for 	which 	Plaintiff 	had 	paid, 	“were 	actually
damaged, 	in 	poor 	condition, 	and/or 	were 	otherwise 	made 	for 	other
vehicles and were not compatible with the Dart.” 	Id. ¶ 60. 	ExoMod
shipped 	parts 	to 	Plaintiff 	in 	multiple 	shipments, 	and 	Plaintiff
incurred costs associated with the shipments. 	Id. ¶ 61. 	Katzeff
also 	told 	Plaintiff 	that 	“Defendants” 	were 	charging 	Plaintiff 	a
“project 	management 	fee” 	for 	Katzeff’s 	involvement 	in 	the 	Dart
Case 1:25-cv-00021-TSK Document 48 Filed 12/02/25 Page 6 of 24 PageID #:
<pageID>

SMITH V. EXOMOD 	1:25-CV-21
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART MOTION TO DISMISS [ECF NO. 5]
7
project, which was allegedly included in the “all-in” price. 	Id.
¶ 62.
Plaintiff 	asserts 	that 	“certain 	Defendants 	have 	co-mingled
assets 	and/or 	comingled 	funds 	paid 	by 	[Plaintiff] 	for 	the 	Dart
project.” 	Id. 	¶ 	63. 	He 	asserts 	that 	“Defendants 	embarked 	upon
and are involved in a joint venture, joint enterprise, and/or civil
conspiracy 	regarding 	the 	Dart 	build 	project” 	and 	that 	“certain
Defendants 	have 	concealed 	their 	involvement 	in 	the 	Dart 	build
project for improper and/or wrongful purposes.” 	Id. ¶¶ 64-65.
III. 	LEGAL STANDARD
Rule 	12(b)(6) 	allows 	a 	defendant 	to 	move 	for 	dismissal 	upon
the 	ground 	that 	a 	complaint 	does 	not 	“state 	a 	claim 	upon 	which
relief can be granted.” 	In ruling on a 12(b)(6) motion to dismiss,
a 	court 	“must 	accept 	as 	true 	all 	of 	the 	factual 	allegations
contained in the complaint.” 	Anderson v. Sara Lee Corp., 508 F.3d
181, 188 (4th Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89,
94 	(2007)). 	A 	court 	is 	“not 	bound 	to 	accept 	as 	true 	a 	legal
conclusion 	couched 	as 	a 	factual 	allegation.” 	Papasan 	v. 	Allain,
478 U.S. 265, 286 (1986).
A 	court 	should 	dismiss 	a 	complaint 	if 	it 	does 	not 	contain
“enough facts to state a claim to relief that is plausible on its
face.” 	Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Plausibility 	exists 	“when 	the 	plaintiff 	pleads 	factual 	content
Case 1:25-cv-00021-TSK Document 48 Filed 12/02/25 Page 7 of 24 PageID #:
<pageID>

SMITH V. EXOMOD 	1:25-CV-21
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART MOTION TO DISMISS [ECF NO. 5]
8
that 	allows 	the 	court 	to 	draw 	the 	reasonable 	inference 	that 	the
defendant 	is 	liable 	for 	the 	misconduct 	alleged.” 	Ashcroft 	v.
Iqbal, 	556 	U.S. 	662, 	678 	(2009). 	A 	motion 	to 	dismiss 	“does 	not
resolve contests surrounding the facts, the merits of a claim, or
the 	applicability 	of 	defenses.” 	Republican 	Party 	of 	N.C. 	v.
Martin, 	980 	F.2d 	942, 	952 	(4th 	Cir. 	1992). 	Dismissal 	is
appropriate 	only 	if 	“it 	appears 	to 	be 	a 	certainty 	that 	the
plaintiff would be entitled to no relief under any state of facts
which 	could 	be 	proven 	in 	support 	of 	its 	claim.” 	Johnson 	v.
Mueller, 415 F.2d 354, 355 (4th Cir. 1969).
IV. 	DISCUSSION
The 	HDK 	Defendants 	move 	to 	dismiss 	all 	claims 	against 	them,
as well as Plaintiff’s request for punitive damages. 	In response,
Plaintiff concedes that the HDK Defendants were not involved with
the build of the Charger, so the only claims at issue against them
relate 	to 	the 	Dart. 	The 	remaining 	claims 	against 	the 	HDK
Defendants are Count Four (Breach of Contract – Dart), Count Five
(Breach 	of 	Express 	and 	Implied 	Warranties 	– 	Dart), 	Count 	Eight
(Unjust 	Enrichment), 	Count 	Nine 	(Fraud), 	Count 	Ten 	(Negligent
Misrepresentation), Count Eleven (Conversion), Count Twelve (Civil
Conspiracy), 	and 	Count 	Thirteen 	(Piercing 	the 	Corporate 	Veil),
along 	with 	Plaintiff’s 	request 	for 	punitive 	damages. 	For 	the
Case 1:25-cv-00021-TSK Document 48 Filed 12/02/25 Page 8 of 24 PageID #:
<pageID>

SMITH V. EXOMOD 	1:25-CV-21
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART MOTION TO DISMISS [ECF NO. 5]
9
reasons 	discussed 	below, 	the 	Court 	grants 	in 	part 	and 	denies 	in
part the motion to dismiss.
A. 	Count Four (Breach of Contract)
“In 	West 	Virginia, 	the 	elements 	of 	breach 	of 	contract 	are
(1) a contract exists between the parties; (2) a defendant failed
to 	comply 	with 	a 	term 	in 	the 	contract; 	and 	(3) 	damage 	arose 	from
the breach.” 	Nance v. Huntington W. Va. Hous. Auth., No. 16-0855,
2017 	WL 	2210152, 	at 	*5 	(W. 	Va. 	May 	19, 	2017) 	(unpublished)
(citation 	omitted). 	“It 	is 	a 	fundamental 	tenet 	of 	contract 	law
that 	the 	parties 	must 	enter 	into 	a 	meeting 	of 	the 	minds 	in 	order
to 	form 	an 	enforceable 	contract.” 	Chesapeake 	Appalachia, 	L.L.C.
v. Hickman, 781 S.E.2d 198, 216 (W. Va. 2015).
The 	HDK 	Defendants 	argue 	that 	the 	complaint 	fails 	to 	allege
the 	existence 	of 	a 	contract 	between 	Plaintiff 	and 	the 	HDK
Defendants. 	They argue that the complaint suggests, at most, that
they were subcontractors to ExoMod. 	Plaintiff points out that he
made allegations against “all Defendants.” 	Plaintiff also argues
that even if the HDK Defendants were not a party to the contract,
they 	should 	still 	be 	held 	responsible 	under 	a 	breach 	of 	contract
claim.
The 	Court 	agrees 	with 	the 	HDK 	Defendants. 	The 	complaint
explicitly 	states 	that 	“[o]n 	or 	about 	October 	17,
Case 1:25-cv-00021-TSK Document 48 Filed 12/02/25 Page 9 of 24 PageID #:
<pageID>

SMITH V. EXOMOD 	1:25-CV-21
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART MOTION TO DISMISS [ECF NO. 5]
10
2023, . . . [Plaintiff] 	entered 	into 	a 	second 	contract 	with
Defendant ExoMod to purchase a custom 1969 Dodge Dart[.]” 	Compl.,
ECF 	No. 	1-2, 	at 	¶ 	32. 	The 	complaint 	indicates 	that 	Plaintiff’s
constant point of contact was Katzeff (the CEO of ExoMod) and that
all communications involving the Dart came from Katzeff. 	Katzeff
told Plaintiff that Laube would be working on the Dart. 	Plaintiff
does not assert that he ever had contact with the HDK Defendants.
Rather, 	the 	complaint 	suggests 	that 	the 	HDK 	Defendants 	were
involved only through their relationship with ExoMod. 	The breach
of 	contract 	claim 	regarding 	the 	Dart 	must 	fail 	against 	the 	HDK
Defendants because the complaint fails to allege, plausibly, that
a contract existed between Plaintiff and the HDK Defendants. 	The
breach of contract claim is dismissed against the HDK Defendants.
B. 	Count 	Five 	(Breach 	of 	Express 	and 	Implied
Warranties - Dart)
1. 	Express Warranty
Under the West Virginia Code,
(1) 	Express 	warranties 	by 	the 	seller 	are
created as follows:
(a) Any affirmation of fact or promise made by
the 	seller 	to 	the 	buyer 	which 	relates 	to 	the
goods 	and 	becomes 	part 	of 	the 	basis 	of 	the
bargain 	creates 	an 	express 	warranty 	that 	the
goods 	shall 	conform 	to 	the 	affirmation 	or
promise.
Case 1:25-cv-00021-TSK Document 48 Filed 12/02/25 Page 10 of 24 PageID #:
<pageID>

SMITH V. EXOMOD 	1:25-CV-21
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART MOTION TO DISMISS [ECF NO. 5]
11
(b) Any description of the goods which is made
part 	of 	the 	basis 	of 	the 	bargain 	creates 	an
express warranty that the goods shall conform
to the description.
(c) Any sample or model which is made part of
the 	basis 	of 	the 	bargain 	creates 	an 	express
warranty 	that 	the 	whole 	of 	the 	goods 	shall
conform to the sample or model.
(2) It is not necessary to the creation of an
express 	warranty 	that 	the 	seller 	use 	formal
words such as “warrant” or “guarantee” or that
he 	have 	a 	specific 	intention 	to 	make 	a
warranty, 	but 	an 	affirmation 	merely 	of 	the
value 	of 	the 	goods 	or 	a 	statement 	purporting
to 	be 	merely 	the 	seller’s 	opinion 	or
commendation 	of 	the 	goods 	does 	not 	create 	a
warranty.
W. Va. Code § 46-2-313. 	To establish a breach of express warranty,
a plaintiff must “show the existence of an express warranty, breach
of 	the 	express 	warranty, 	and 	damages 	proximately 	caused 	by 	the
breach.” 	Bishop 	v. 	Triumph 	Motorcycles 	(Am.) 	Ltd., 	No. 	3:18-CV-
186, 	2021 	WL 	4316810, 	at 	*9 	(N.D.W. 	Va. 	Sept. 	22, 	2021), 	aff’d,
No. 	21-2113, 	2022 	WL 	17103710 	(4th 	Cir. 	Nov. 	22, 	2022) 	(citation
omitted).
The 	HDK 	Defendants 	argue 	that 	the 	complaint 	does 	not 	allege
that 	they 	directly 	communicated 	any 	warranty 	terms 	to 	Plaintiff.
They 	note 	that 	the 	complaint 	alleges 	that 	Katzeff, 	“on 	behalf 	of
himself 	and 	all 	Defendants,” 	made 	express 	promises 	about 	the
quality 	of 	the 	Dart 	and 	how 	much 	it 	would 	be 	worth. 	Plaintiff
argues 	that 	the 	complaint 	adequately 	alleges 	ExoMod 	and 	the 	HDK
Case 1:25-cv-00021-TSK Document 48 Filed 12/02/25 Page 11 of 24 PageID #:
<pageID>

SMITH V. EXOMOD 	1:25-CV-21
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART MOTION TO DISMISS [ECF NO. 5]
12
Defendants worked in tandem such that any warranties provided were
on behalf of all Defendants involved in the project.
The Court agrees with the HDK Defendants. 	The complaint does
not allege that the HDK Defendants made any express warranties or
that Katzeff had authority to make express warranties on behalf of
the 	HDK 	Defendants. 	The 	blanket 	allegation 	that 	Katzeff 	made
express 	warranties 	on 	behalf 	of 	“all 	Defendants” 	is 	conclusory.
The express warranty claim is dismissed against the HDK Defendants.
2. 	Implied Warranties
West 	Virginia 	law 	provides 	for 	two 	types 	of 	implied
warranties: 	(1) 	the 	implied 	warranty 	of 	merchantability, 	and
(2) the implied warranty of fitness for a particular purpose. 	See
W. Va. Code §§ 46–2–314, 46–2–315. 	The HDK Defendants argue that
Plaintiff has insufficiently pled both types.
a. 	Implied Warranty of Merchantability
Unless excluded or modified, a warranty that the goods shall
be 	merchantable 	is 	implied 	in 	a 	contract 	for 	their 	sale 	if 	the
seller is a merchant with respect to goods of that kind. 	See id.
§ 	46-2-314(1). 	The 	implied 	warranty 	of 	merchantability 	provides
that 	for 	goods 	to 	be 	merchantable, 	they 	must 	be 	fit 	for 	the
ordinary 	purposes 	for 	which 	they 	are 	sold. 	See 	id. 	§ 	46-2–
314(2)(c).
Case 1:25-cv-00021-TSK Document 48 Filed 12/02/25 Page 12 of 24 PageID #:
<pageID>

SMITH V. EXOMOD 	1:25-CV-21
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART MOTION TO DISMISS [ECF NO. 5]
13
The 	HDK 	Defendants 	argue 	that 	the 	complaint 	fails 	to 	allege
that 	Plaintiff 	and 	the 	HDK 	Defendants 	had 	a 	buyer-seller
relationship 	and 	that 	the 	work 	of 	the 	HDK 	Defendants 	was 	not
merchantable. 	Plaintiff 	argues 	that 	West 	Virginia 	has 	abolished
the 	privity 	of 	contract 	requirement. 	Plaintiff 	relies 	on 	his
allegations that the HDK Defendants were the builders of the Dart
and that the Dart is inadequate and inoperable.
The Court agrees with the HDK Defendants that the claim should
be 	dismissed. 	The 	complaint 	does 	not 	allege 	that 	the 	HDK
Defendants 	are 	merchants 	with 	respect 	to 	goods 	of 	this 	kind
(custom-built 	cars). 	Without 	question, 	it 	alleges 	that 	ExoMod
markets itself as a dealer and merchant of custom cars. 	There is
no 	allegation, 	however, 	that 	the 	HDK 	Defendants 	regularly 	build
vehicles 	like 	the 	Dart. 	The 	implied 	warranty 	of 	merchantability
claim is dismissed against the HDK Defendants.
b. 	Implied 	Warranty 	of 	Fitness 	for 	a 	Particular
Purpose
Under 	West 	Virginia 	law, 	“[w]here 	the 	seller 	at 	the 	time 	of
contracting 	has 	reason 	to 	know 	any 	particular 	purpose 	for 	which
the 	goods 	are 	required 	and 	that 	the 	buyer 	is 	relying 	on 	the
seller’s 	skill 	or 	judgment 	to 	select 	or 	furnish 	suitable 	goods,
there is . . . an implied warranty that the goods shall be fit for
such purpose.” 	See id. § 46-2-315. 	The HDK Defendants argue that
Case 1:25-cv-00021-TSK Document 48 Filed 12/02/25 Page 13 of 24 PageID #:
<pageID>

SMITH V. EXOMOD 	1:25-CV-21
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART MOTION TO DISMISS [ECF NO. 5]
14
the complaint does not allege a buyer-seller relationship and that
it 	fails 	to 	state 	any 	particular 	purpose 	for 	the 	Dart 	beyond 	its
ordinary purpose as a custom-built car. 	Plaintiff argues that the
complaint 	adequately 	alleges 	that 	the 	Dart 	was 	supposed 	to 	be 	a
“Restomod” 	of 	SEMA 	quality, 	“above 	and 	beyond 	the 	particular
purpose of a normal custom build.”
The 	Court 	agrees 	with 	the 	HDK 	Defendants. 	The 	applicable
statute states that the warranty runs from the seller of a product
to 	the 	buyer. 	The 	complaint 	does 	not 	suggest 	that 	the 	HDK
Defendants are sellers of any product. 	It states that Laube helped
with 	the 	build 	of 	the 	Dart 	but 	does 	not 	allege 	the 	extent 	of 	his
assistance or that he or his company sold any items or parts. 	The
claim for implied warranty of fitness for a particular purpose is
dismissed against the HDK Defendants.
C. 	Eight (Unjust Enrichment)
The 	elements 	of 	an 	unjust 	enrichment 	claim 	in 	West 	Virginia
are as follows:
(1) a benefit conferred upon the [defendant],
(2) 	an 	appreciation 	or 	knowledge 	by 	the
defendant 	of 	such 	benefit, 	and 	(3) 	the
acceptance 	or 	retention 	by 	the 	defendant 	of
the 	benefit 	under 	such 	circumstances 	as 	to
make 	it 	inequitable 	for 	the 	defendant 	to
retain 	the 	benefit 	without 	payment 	of 	its
value.
Case 1:25-cv-00021-TSK Document 48 Filed 12/02/25 Page 14 of 24 PageID #:
<pageID>

SMITH V. EXOMOD 	1:25-CV-21
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART MOTION TO DISMISS [ECF NO. 5]
15
Richards 	v. 	Octane 	Env’t, 	LLC, 	No. 	1:18-CV-158, 	2019 	WL 	6528595,
at *4 (N.D.W. Va. Dec. 4, 2019) (quoting Barker v. Naik, No. 2:17-
cv-04387, 	2018 	WL 	3824376, 	at 	*5 	(S.D.W. 	Va. 	Aug. 	10, 	2018)).
“[U]njust 	enrichment . . . is 	but 	the 	equitable 	reason 	for
requiring 	payment 	for 	value 	of 	goods 	and 	services 	received.”
Realmark Devs., Inc. v. Ranson, 588 S.E.2d 150, 153 (W. Va. 2003)
(citation and emphasis omitted).
The 	HDK 	Defendants 	argue 	that 	the 	complaint 	fails 	to 	allege
facts establishing that the retention of the payments paid directly
to 	the 	HDK 	Defendants 	would 	be 	inequitable 	or 	unconscionable.
Plaintiff points to his allegations that he paid the HDK Defendants
directly and did not receive a high quality, fully functional, and
safe Dart.
The 	Court 	agrees 	with 	Plaintiff. 	The 	complaint 	plausibly
alleges 	that 	Plaintiff 	made 	payments 	to 	the 	HDK 	Defendants, 	that
the HDK Defendants knew about the payments, that the HDK Defendants
retained 	the 	money, 	that 	the 	HDK 	Defendants 	were 	$10,000.00 	to
$15,000.00 	over 	budget, 	and 	that 	Plaintiff 	was 	not 	met 	with 	his
expected performance. 	The Court denies the motion to dismiss the
unjust enrichment claim.
Case 1:25-cv-00021-TSK Document 48 Filed 12/02/25 Page 15 of 24 PageID #:
<pageID>

SMITH V. EXOMOD 	1:25-CV-21
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART MOTION TO DISMISS [ECF NO. 5]
16
D. 	Count Nine (Fraud)
Under West Virginia law, the elements of fraud are “(1) that
the 	act 	claimed 	to 	be 	fraudulent 	was 	the 	act 	of 	the 	defendant 	or
induced by the defendant; (2) that it was material and false; (3)
that the party relied upon it; and (4) that the party was damaged
because 	he 	relied 	upon 	it.” 	Univ. 	of 	W. 	Va. 	Bd. 	of 	Trustees 	v.
VanVoorhies, 84 F. Supp. 2d 759, 769 (N.D.W. Va. 2000), aff’d, 278
F.3d 1288 (Fed. Cir. 2002). 	Fraud includes “all acts, omissions,
and 	concealments 	which 	involve 	a 	breach 	of 	legal 	duty, 	trust 	or
confidence justly reposed, and which are injurious to another, or
by which undue and unconscientious advantage is taken of another.”
Watkins 	by 	& 	through 	Chapman 	v. 	Judy, 	No. 	1:22CV64, 	2022 	WL
17813704, 	at 	*3 	(N.D.W. 	Va. 	Dec. 	19, 	2022) 	(citing 	Stanley 	v.
Sewell Coal Co., 285 S.E.2d 679, 682 (W. Va. 1981)).
Rule 	9(b) 	of 	the 	Federal 	Rules 	of 	Civil 	Procedure 	provides
that 	“[i]n 	alleging 	fraud 	or 	mistake, 	a 	party 	must 	state 	with
particularity 	the 	circumstances 	constituting 	fraud 	or 	mistake.
Malice, intent, knowledge, and other conditions of a person’s mind
may be alleged generally.” 	Fed. R. Civ. P. 9(b). 	This Court has
interpreted 	Rule 	9(b) 	to 	mean 	that 	a 	“plaintiff 	alleging 	fraud
must make particular allegations of the time, place, speaker, and
contents 	of 	the 	allegedly 	false 	acts 	or 	statements.” 	Ayers 	v.
Case 1:25-cv-00021-TSK Document 48 Filed 12/02/25 Page 16 of 24 PageID #:
<pageID>

SMITH V. EXOMOD 	1:25-CV-21
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART MOTION TO DISMISS [ECF NO. 5]
17
Cont’l Cas. Co., No. Civ.A. 5:05CV95, 2006 WL 278540, at *4 (N.D.W.
Va. 	Feb. 	2, 	2006) 	(citing 	Adams 	v. 	NVR 	Homes, 	Inc., 	193 	F.R.D.
243, 249–50 (2000)).
The 	HDK 	Defendants 	argue 	that 	the 	complaint 	lumps 	all
Defendants 	together 	in 	the 	fraud 	claim 	and 	fails 	to 	identify 	a
specific 	false 	statement 	made 	by 	the 	HDK 	Defendants. 	Plaintiff
argues 	that 	the 	complaint 	articulates 	that 	the 	ExoMod 	Defendants
were operating with and on behalf of the HDK Defendants. 	Plaintiff
further 	states 	that 	he 	believed, 	and 	has 	set 	forth 	in 	his
allegations, 	that 	the 	HDK 	Defendants 	were 	essentially 	one 	in 	the
same with the ExoMod Defendants for purposes of the Dart build.
The Court agrees with the HDK Defendants. 	The complaint fails
to cite any specific fraudulent acts or statements attributable to
the HDK Defendants. 	Instead, it posits that Plaintiff thought the
HDK 	Defendants 	were 	the 	same 	as 	the 	ExoMod 	Defendants. 	The
particularity requirements of Rule 9 are not satisfied here. 	The
fraud claim is dismissed against the HDK Defendants.
E. 	Ten (Negligent Misrepresentation)
Under West Virginia law,
To 	state 	a 	claim 	for 	negligent
misrepresentation . . . , a 	plaintiff 	must
establish 	(1) 	that 	a 	defendant 	represented 	a
matter 	as 	being 	true, 	(2) 	that 	the 	defendant
had 	no 	knowledge 	of 	the 	truth 	of 	his
representation, 	(3) 	that 	the 	representation
Case 1:25-cv-00021-TSK Document 48 Filed 12/02/25 Page 17 of 24 PageID #:
<pageID>

SMITH V. EXOMOD 	1:25-CV-21
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART MOTION TO DISMISS [ECF NO. 5]
18
was 	false, 	and 	(4) 	that 	the 	plaintiff 	relied
on the false representation to his detriment.
Kerns 	v. 	Range 	Res. 	– 	Appalachia, 	LLC, 	No. 	1:10CV23, 	2011 	WL
3753117, 	at 	*7 	(N.D.W. 	Va. 	Aug. 	23, 	2011) 	(citations 	omitted 	and
numbers added). 	The Supreme Court of Appeals of West Virginia has
also 	held 	that 	a 	plaintiff 	must 	allege 	a 	“sufficient 	special
relationship or duty” toward a defendant. 	Kidd v. Mull, 595 S.E.2d
308, 317 (W. Va. 2004).
The 	HDK 	Defendants 	argue 	that 	the 	complaint 	does 	not 	allege
facts 	establishing 	that 	there 	was 	a 	special 	relationship 	or 	duty
between 	them 	and 	Plaintiff. 	They 	also 	argue 	that 	it 	does 	not
identify 	any 	specific 	misrepresentations 	made 	by 	them, 	but,
rather, 	cites 	misrepresentations 	made 	by 	Katzeff. 	Plaintiff
asserts 	that 	he 	has 	alleged 	sufficient 	facts 	to 	set 	forth 	a 	duty
“above 	and 	beyond” 	that 	of 	a 	typical 	vehicle 	purchase. 	He 	cites
Katzeff’s 	representation 	that 	the 	HDK 	Defendants 	were 	“very 	well
known and respected” and argues that the HDK Defendants had a duty
to 	provide 	information 	to 	Plaintiff 	regarding 	the 	status 	of 	the
build and the budget.
The Court agrees with the HDK Defendants that the claim should
be 	dismissed. 	The 	complaint 	does 	not 	allege 	that 	the 	HDK
Defendants 	made 	any 	representations 	to 	Plaintiff. 	Rather, 	the
representations 	made 	to 	Plaintiff 	were 	made 	by 	Katzeff. 	The
Case 1:25-cv-00021-TSK Document 48 Filed 12/02/25 Page 18 of 24 PageID #:
<pageID>

SMITH V. EXOMOD 	1:25-CV-21
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART MOTION TO DISMISS [ECF NO. 5]
19
negligent 	misrepresentation 	claim 	is 	dismissed 	against 	the 	HDK
Defendants.
F. 	Count Eleven (Conversion)
Under 	West 	Virginia 	law, 	“[t]he 	tortious 	or 	unlawful 	taking
of 	personal 	property, 	and 	the 	exercise 	of 	ownership 	and 	dominion
over it, against the consent of the owner is . . . a conversion of
the 	property[.]” 	Mountaineer 	Fire 	& 	Rescue 	Equip., 	LLC 	v. 	City
Nat’l 	Bank 	of 	W. 	Va., 	854 	S.E.2d 	870, 	886 	(W. 	Va. 	2020) 	(citing
Syl. pt. 1, Arnold v. Kelly, 4 W. Va. 642 (1871)). 	“Any distinct
act 	of 	dominion 	wrongfully 	exerted 	over 	the 	property 	of 	another,
and 	in 	denial 	of 	his 	rights, 	or 	inconsistent 	therewith, 	may 	be
treated as a conversion and it is not necessary that the wrongdoer
apply 	the 	property 	to 	his 	own 	use.” 	Syl. 	Pt. 	17, 	Rodgers 	v.
Rodgers, 399 S.E.2d 664 (W. Va. 1990) (citation omitted). 	Of note,
“[b]ad 	faith 	or 	evil 	motive” 	is 	not 	an 	element 	of 	proof. 	Id. 	at
677.
The 	HDK 	Defendants 	argue 	that 	the 	complaint 	does 	not 	allege
that 	they 	wrongfully 	withheld 	any 	of 	his 	property. 	They 	further
argue 	that 	Plaintiff 	only 	provides 	one 	factually 	specific
allegation: that Katzeff used funds from the Dart build to purchase
a Dart for himself. 	The HDK Defendants acknowledge the allegation
that Laube went over budget by $10,000.00 to $15,000.00 but claim
Case 1:25-cv-00021-TSK Document 48 Filed 12/02/25 Page 19 of 24 PageID #:
<pageID>

SMITH V. EXOMOD 	1:25-CV-21
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART MOTION TO DISMISS [ECF NO. 5]
20
that the alleged overage does not constitute conversion. 	Plaintiff
argues 	that 	the 	complaint 	adequately 	alleges 	that 	all 	Defendants
were 	paid 	by 	Plaintiff 	and 	that 	all 	Defendants 	intentionally 	and
improperly 	used 	those 	funds 	because 	the 	money 	did 	not 	go 	toward
the Dart build.
The Court agrees with Plaintiff. 	The factual support for the
conversion 	claim 	is 	sparse, 	but 	taken 	as 	a 	whole, 	Plaintiff 	has
plausibly 	stated 	a 	claim. 	Plaintiff 	has 	alleged 	that 	he 	made
payments to the HDK Defendants, that the HDK Defendants worked on
the 	Dart, 	that 	the 	Dart 	was 	not 	completed 	as 	promised 	with
Plaintiff’s 	money, 	that 	the 	HDK 	Defendants 	went 	over 	budget, 	and
that 	Plaintiff 	was 	ultimately 	asked 	to 	pay 	more 	money 	for
completion 	of 	the 	Dart. 	Plaintiff 	alleges 	that 	Katzeff 	and
“Defendants” 	bought 	parts 	for 	the 	Dart 	with 	money 	paid 	by
Plaintiff, 	but 	the 	parts 	could 	not 	be 	used 	on 	the 	project, 	so
Katzeff 	and 	“Defendants” 	planned 	to 	“sell 	them 	on 	eBay 	or 	other
outlets 	at 	a 	steep 	discount.” 	Compl., 	ECF 	No. 	1-2, 	at 	¶ 	59.
Katzeff told Plaintiff on one occasion that he had used Plaintiff’s
payments 	towards 	the 	Dart 	to 	purchase 	a 	Porsche 	for 	himself 	and
that Plaintiff’s payments had not gone toward the Dart. 	Id. ¶ 57.
Plaintiff 	has 	alleged 	facts 	to 	support 	a 	claim 	that 	the 	HDK
Defendants possessed Plaintiff’s money and did not use it for its
intended purpose, which would be an exercise of wrongful dominion
Case 1:25-cv-00021-TSK Document 48 Filed 12/02/25 Page 20 of 24 PageID #:
<pageID>

SMITH V. EXOMOD 	1:25-CV-21
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART MOTION TO DISMISS [ECF NO. 5]
21
over 	Plaintiff’s 	property. 	Accordingly, 	the 	Court 	denies 	the
motion to dismiss with respect to the conversion claim.
G. 	Count Twelve (Civil Conspiracy)
Under West Virginia law, a civil conspiracy is “a combination
of 	two 	or 	more 	persons 	by 	concerted 	action 	to 	accomplish 	an
unlawful 	purpose 	or 	to 	accomplish 	some 	purpose, 	not 	in 	itself
unlawful, 	by 	unlawful 	means.” 	Syl. 	Pt. 	8, 	Dunn 	v. 	Rockwell, 	689
S.E.2d 	255 	(W. 	Va. 	2009). 	“A 	civil 	conspiracy 	is 	not 	a 	per 	se,
stand-alone cause of action; it is instead a legal doctrine under
which liability for a tort may be imposed upon people who did not
actually commit a tort themselves but who shared a common plan for
its 	commission 	with 	the 	actual 	perpetrator(s).” 	Id. 	at 	Syl. 	Pt.
9. 	In 	addition 	to 	pleading 	an 	underlying 	tort, 	a 	plaintiff
proceeding 	on 	a 	civil 	conspiracy 	claim 	must 	plead 	sufficient
factual 	support 	for 	the 	existence 	of 	a 	shared 	conspiratorial
objective 	and 	mutual 	agreement. 	Jane 	Doe-1 	v. 	Corp. 	of 	Pres. 	of
the 	Church 	of 	Jesus 	Christ 	of 	Latter-day 	Saints, 	801 	S.E.2d 	443,
476 (W. Va. 2017) (citation omitted). 	The “agreement need not be
express but may be based upon evidence of a course of conduct from
which the agreement to act in concert may be implied.” 	Id. at 477
(citations 	omitted). 	Additionally, 	“not 	every 	member 	of 	a
Case 1:25-cv-00021-TSK Document 48 Filed 12/02/25 Page 21 of 24 PageID #:
<pageID>

SMITH V. EXOMOD 	1:25-CV-21
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART MOTION TO DISMISS [ECF NO. 5]
22
conspiracy 	must 	be 	aware 	of 	every 	action 	taken 	in 	furtherance 	of
it.” 	Id. at 473.
The HDK Defendants argue that the conspiracy allegations are
conclusory 	and 	fail 	as 	a 	matter 	of 	law 	because 	there 	is 	no
underlying tort. 	Plaintiff argues that the facts in the complaint,
alongside 	the 	allegations 	highlighted 	by 	Defendants, 	support 	the
claim for civil conspiracy.
The 	Court 	agrees 	with 	Plaintiff. 	Plaintiff 	sufficiently
alleges 	two 	underlying 	torts: unjust 	enrichment 	and 	conversion
(discussed above). 	The complaint alleges that all Defendants acted
in concert or according to a common plan regarding the Dart build.
The plan to build the Dart was not unlawful, but the alleged means
(comingling 	and 	misusing 	funds) 	are. 	Plaintiff 	alleges 	that
Katzeff and “Defendants” bought parts for the Dart with money paid
by 	Plaintiff, 	but 	the 	parts 	could 	not 	be 	used 	on 	the 	project, 	so
Katzeff 	and 	“Defendants” 	planned 	to 	“sell 	them 	on 	eBay 	or 	other
outlets 	at 	a 	steep 	discount.” 	Compl., 	ECF 	No. 	1-2, 	at 	¶ 	59.
Katzeff told Plaintiff on one occasion that he had used Plaintiff’s
payments 	towards 	the 	Dart 	to 	purchase 	a 	Porsche 	for 	himself 	and
that Plaintiff’s payments had not gone toward the Dart. 	Id. ¶ 57.
It 	is 	plausible, 	based 	on 	these 	allegations, 	that 	the 	HDK
Defendants were involved in a civil conspiracy with Katzeff. 	The
Case 1:25-cv-00021-TSK Document 48 Filed 12/02/25 Page 22 of 24 PageID #:
<pageID>

SMITH V. EXOMOD 	1:25-CV-21
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART MOTION TO DISMISS [ECF NO. 5]
23
Court 	denies 	the 	motion 	to 	dismiss 	with 	respect 	to 	the 	civil
conspiracy claim.
H. 	Count Thirteen (Piercing the Corporate Veil)
“Under 	West 	Virginia 	law, 	piercing 	the 	corporate 	veil 	does
not 	constitute 	an 	independent 	cause 	of 	action; 	rather, 	the 	alter
ego 	doctrine 	is 	an 	equitable 	remedy 	invoked 	to 	disregard 	the
corporate entity in order to find the shareholders liable for the
debts 	of 	the 	corporation.” 	Fluharty 	v. 	Stewart, 	No. 	1:16CV136,
2018 WL 4656412, at *4 (N.D.W. Va. Sept. 27, 2018). 	Accordingly,
“a party seeking to pierce the corporate veil must have a separate
cause 	of 	action 	for 	which 	it 	seeks 	to 	recover 	damages 	from 	the
corporation.” 	Id. 	To the extent that piercing the corporate veil
is 	asserted 	as 	an 	independent 	cause 	of 	action, 	it 	is 	dismissed
against the HDK Defendants. 	This ruling has no effect on whether
Plaintiff will be permitted to pierce the corporate veil.
I. 	Punitive Damages
West Virginia law allows for an award of punitive damages in
the following circumstances:
if 	a 	plaintiff 	establishes 	by 	clear 	and
convincing evidence that the damages suffered
were 	the 	result 	of 	the 	conduct 	that 	was
carried 	out 	by 	the 	defendant 	with 	actual
malice 	toward 	the 	plaintiff 	or 	a 	conscious,
reckless 	and 	outrageous 	indifference 	to 	the
health, safety and welfare of others.
Case 1:25-cv-00021-TSK Document 48 Filed 12/02/25 Page 23 of 24 PageID #:
<pageID>

SMITH V. EXOMOD 	1:25-CV-21
MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART MOTION TO DISMISS [ECF NO. 5]
24
W. 	Va. 	Code 	§ 	55-7-29(a). 	At 	this 	stage, 	the 	Court 	finds 	that
Plaintiff 	has 	adequately 	pled 	facts 	that 	could 	entitle 	him 	to
punitive damages under the law. 	Accordingly, the motion to dismiss
the request for punitive damages is denied.
V. 	CONCLUSION
For the reasons discussed above, the Court ORDERS as follows:
x 	The 	HDK 	Defendants’ 	motion 	to 	dismiss 	is
GRANTED IN PART and DENIED IN PART [ECF No.
5];
x 	The motion is GRANTED with respect to Counts
One, 	Two, 	Three, 	Four, 	Five, 	Six, 	Seven,
Nine, Ten, and Thirteen;
x 	Counts 	One, 	Two, 	Three, 	Four, 	Five, 	Six,
Seven, 	Nine, 	Ten, 	and 	Thirteen 	are
DISMISSED 	as 	they 	pertain 	to 	the 	HDK
Defendants; and
x 	The motion is DENIED with respect to Counts
Eight, 	Eleven, 	and 	Twelve, 	as 	well 	as 	the
request for punitive damages.
The 	Clerk 	is 	directed 	to 	transmit 	copies 	of 	this 	Memorandum
Opinion and Order to counsel of record.
DATED: December 2, 2025
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
Case 1:25-cv-00021-TSK Document 48 Filed 12/02/25 Page 24 of 24 PageID #:
<pageID>