CHARLESTON — Circuit Judge Carrie Webster has sent a notice that she will dismiss the case if the plaintiff does not explain why it has never served the complaint to the defendant.
Webster wrote that pursuant to Rule 4(k) of the West Virginia Rules of Civil Procedure, the court may enter a dismissal order of a case where service of the summons and complaint is not made upon the defendant within 120 days of filing, according to the March 2 notice.
"Inasmuch as service of the summons and complaint has not been made upon the defendant in this action within 120 days after the filing of the complaint, the plaintiff(s) shall have five (5) days from the receipt of this Notice to file evidence showing good cause for the failure to perfect service," the notice states. "Thereupon, the Court may, at its discretion, dismiss the matter or extend the time for service for an appropriate period."
Alto Real Vinedos SA and Alto Real Vinedos LLC originally filed the lawsuit against Vidalco International LLC and Constantin George Zamifirescu on Nov. 1 in Kanawha Circuit Court.
Alto encountered the defendants at a wine-tasting event in the summer of 2020 and the defendants represented themselves as skilled and experienced importers of wines and spirits with access to distributors.
Alto claims the defendants did this to induce the plaintiffs to ship cargos of wine with a net purchase price of $78,862.18.
"Plaintiff was diligent in shipping Defendants the wine they purchased from its Argentinian vineyard," the complaint states. "There was never a dispute that Plaintiff delivered to Defendants quality wine, free from defects."
Nevertheless, the defendants did not keep up their end of the bargain and made only small payments for the product over the course of the next two years, according to the suit.
The plaintiff claims the defendants made valuable use of the plaintiffs' wine, reselling it for a profit.
The defendants not only refused to pay the plaintiffs what they were owed but then emailed a fraudulent invoice on July 12, 2022, claiming the plaintiffs owed the defendants $4,000 for "consulting services," according to the suit.
"This invoice is a complete fiction," the complaint states. "Plaintiff did not receive any such services from Defendants, nor did it agree to pay for such services. Defendants merely contrived this claim in order to defraud Plaintiff out of the money it owed."
The plaintiffs are seeking compensatory and punitive damages. They are represented by Robert P. Lorea of Lorea Law Office in Charleston.
Kanawha Circuit Court case number: 22-C-909
