The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
Plaintiff Fred Ladd ("Plaintiff" or "Ladd") brings the above-captioned lawsuit against his former employer, Defendant Chemonics International, Inc. ("Defendant" or "Chemonics"), alleging that Chemonics breached the parties' employment agreement ("Contract"). In October of 2003, shortly after Plaintiff began working for Chemonics, he sustained significant injuries in an on-the-job automobile accident, as a result of which he is no longer able to work. Plaintiff's complaint alleges that: (1) Chemonics' contractually agreed to continue to pay Plaintiff his salary in the event he was injured and no longer able to work, and that Chemonics breached the parties' Contract by failing to pay Plaintiff his salary after his automobile accident; (2) Chemonics agreed to provide Plaintiff with life insurance benefits and to pay Plaintiff's COBRA premiums after he was terminated from Chemonics, but has failed to do so and is therefore in breach of the parties' agreement; (3) Plaintiff is owed additional compensation and/or benefits under the relevant workers' compensation scheme-the Defense Base Act, 42 U.S.C. § 151 et. seq. ("DBA"); and (4) Plaintiff is entitled to recover for intentional infliction of emotional distress based upon Chemonics' breach of contract. Chemonics in turn has filed a counterclaim against Plaintiff, alleging that Plaintiff breached the forum selection clause in the parties' Contract and that Chemonics is therefore entitled to liquidated damages as provided for in the Contract.
Currently pending before the Court are Plaintiff's  Motion for Partial Summary Judgment, in which Plaintiff seeks judgment in its favor only as to his claim for breach of contract based upon Chemonics' failure to continue to pay his salary after he was injured and no longer able to work, and Defendant's  Cross-Motion for Summary Judgment, in which Chemonics seeks judgment in its favor as to all of Plaintiff's claims as well as to its own counterclaim. After thoroughly reviewing the parties' submissions, applicable case law, statutory authority, and the entire record of the case as a whole, the Court shall DENY Plaintiff's Partial Motion for Summary Judgment and shall GRANT Defendant's Motion for Summary Judgment, for the reasons that follow.
A. Plaintiff's Repeated and Inexcusable Failure to Comply with Local Civil Rules and this Court's Orders
As a preliminary matter, the Court shall address Plaintiff's continued and inexplicable failure to comply with the Local Civil Rules and this Court's orders, an issue which the Court has previously addressed in great detail in its September 4, 2008 Order, which is fully incorporated herein. See 9/4/08 Order, Docket No. . The Court therefore sets forth only those facts necessary to provide context for Plaintiff's failure-yet again-to adhere to the Local Civil Rules and this Court's directives.
Local Civil Rules 7(h)(1) and 56.1 set forth the requirements that parties must follow when filing or opposing a motion for summary judgment:
Each motion for summary judgment shall be accompanied by a statement of material facts as to which the moving party contends there is no genuine issue, which shall include references to the parts of the record relied on to support the statement. An opposition to such a motion shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement . . . In determining a motion for summary judgment, the court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.
LCvR 7(h)(1) & 56.1. The Court has repeatedly instructed the parties to comply with these local rules. See 10/15/07 Order, Docket No.  at 4-5 (requiring the parties "to comply fully with  LCvR 7(h)," and advising the parties that "[t]he Court assumes facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion"); 5/28/08 Order, Docket No.  (instructing the parties to "comply fully with  LCvR 7(h)," which requires the parties to "furnish precise citations to the portions of the record on which they rely").
Notwithstanding those instructions, and despite Plaintiff's Colorado counsel having sworn familiarity with the Local Civil Rules,*fn1 Plaintiff failed to include a statement of material facts not in dispute in his motion for partial summary judgment. See Docket No. . This error was immediately pointed out to Plaintiff by Chemonics in its cross-motion for summary judgment and opposition, filed in response to Plaintiff's motion. See Docket Nos. , . Chemonics' filings thus clearly placed Plaintiff's counsel on notice that the failure to submit a statement of material facts constituted a violation of the Local Civil Rules. Nonetheless, Plaintiff's combined opposition to Chemonics' motion for summary judgment and reply in support of his own motion for partial summary judgment neither specifically responded to Chemonics' factual assertions, as required by the Local Civil Rules and this Court's repeated orders, nor attempted to belatedly proffer a statement of material facts in support of Plaintiff's own motion for partial summary judgment. See Docket No. .
Indeed, it was only after briefing on the parties' instant cross-motions had been completed that Plaintiff belatedly filed a motion for leave to file a statement of material facts in support of his cross-motion and a statement responding to Chemonics' statement of material facts in support of its cross-motion. Plaintiff did not attach either statement, but requested more time to prepare and file them. See Docket No.  (filed 9/2/08). The only excuse offered by Plaintiff's Colorado counsel for this flagrant omission was to explain that he practices in a variety of federal jurisdictions and "inadvertently overlooked the specific Local Rules in question for this Court." Id. at 2. As the Court emphasized in its September 4, 2008 Order granting-in-part and denying-in-part Plaintiff's motion for leave, "[t]his excuse is altogether unavailing." 9/4/08 Order at 6. Consequently, the Court refused to grant the complete relief requested in Plaintiff's belated motion for leave, permitting Plaintiff to respond to Chemonics' statement of material facts, but denying Plaintiff's request to submit a statement of material facts in support of his own motion for partial summary judgment. Id. at 7-8. Specifically, given Chemonics' agreement that the material facts bearing on Plaintiff's motion for partial summary judgment are not in dispute, the Court concluded that there was no need to allow Plaintiff to file an extraordinarily belated statement of material facts in support of his motion at such a late date after the briefing had already been completed without reference to a statement of facts. Id. With respect to the facts underlying Chemonics' motion for summary judgment, however, the Court required Plaintiff to file a statement responding to Chemonics' statement. Id. at 8. The Court therefore struck Plaintiff's  initial opposition/reply and required Plaintiff to file a revised pleading that included appropriate citations to Chemonics' statement and/or his own responsive statement. Id. In addition, the Court mandated that Plaintiff's local counsel "carefully review all filings prepared by Plaintiff's Colorado counsel in order to ensure strict compliance with the Local Civil Rules and this Court's orders."
Id. Finally, the Court provided that Chemonics was permitted to file a revised reply, if it determined it was necessary in light of Plaintiff's revisions. Id. at 8. In the event Chemonics did so, the Court ordered that Plaintiff's Colorado counsel was required to pay all costs and attorney's fees incurred by Chemonics in connection with its revised reply.*fn2 Id. at 8.
Incredibly, despite the Court's repeated instructions that both Plaintiff's Colorado counsel and local counsel must ensure future pleadings are in "strict compliance with the Local Civil Rules and this Court's orders," id., Plaintiff's counsel once again disregarded both the Court's order and the Local Civil Rules, filing a revised pleading that blatantly fails to conform with this Court's clear directives, as set forth in its September 4, 2008 Order. Specifically, Plaintiff's revised effort to provide a response to Chemonics' statement of material facts suffers from three main defects. First, the response does not comply with the Court's repeated instructions that "a party responding to a statement of material facts must respond to each paragraph with a correspondingly numbered paragraph, indicating whether that paragraph is admitted or denied," and "should include any information relevant to its response in that paragraph." See, e.g., 5/28/08 Order at 2. Plaintiff's response does not indicate whether he admits or denies each of Chemonics' factual assertions and, as Chemonics notes in its revised reply, "[t]he numbering of Ladd's statement of material facts that he contends are genuinely disputed does not correspond to the numbered paragraphs of Chemonics' statement of material facts not in dispute," such that it is "not  possible to precisely identify what Ladd is attempting to respond to." Def.'s Rev. Reply at 2-3. Second, Plaintiff's response does not, "[a]t all points . . . furnish precise citations to the portions of the record on which [he] rel[ies]." See, e.g., 5/28/08 Order at 2. For example, Plaintiff states that he went to Chemonics' headquarters in Washington, D.C. for "the purpose of executing the agreement," and cites generally to Exhibit 3 of his revised response, which he states is a copy of his affidavit, as support for this assertion. See Pl.'s Resp. ¶ 3. Exhibit 3, however, is a copy of the parties' Contract, not Plaintiff's affidavit, and it does not provide any support for Plaintiff's assertion. See id., Ex. 3. Neither does Plaintiff's affidavit, which is correctly cited as Exhibit 4, provide any support for this assertion. See id., Ex. 4. Third, Plaintiff's response includes impermissible legal arguments dressed up as "facts." See, e.g., Pl.'s Resp. ¶ 6 ("It certainly must be undisputed as a material fact that Plaintiff did, indeed, perform his duties faithfully and to the best of his ability."). Accordingly, it is clear that Plaintiff's revised response to Chemonics' statement of material facts is wholly inadequate.
As the D.C. Circuit has emphasized, "[LCvR 56.1] places the burden on the parties and their counsel, who are most familiar with the litigation and the record, to crystallize for the district court the material facts and relevant portions of the record." Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996) (citing Twist v. Meese, 854 F.2d 1421, 1425 (D.C. Cir. 1988); Guarino v. Brookfield Township Trustees, 980 F.2d 399, 406 (6th Cir. 1992)). Because of the significance of this task and the potential hardship placed on the court if the parties are derelict in their duty, courts require strict compliance with LCvR 56.1. See id. at 150 (citations omitted). As this Court has repeatedly advised the parties, it "may strike pleadings not in conformity with these rules." See, e.g., 10/15/07 Order at 4; 5/28/08 Order at 3. Plaintiff has nonetheless failed to comply with the Local Civil Rules and this Court's orders, despite the fact the Court permitted Plaintiff yet another opportunity to do so even after principal briefing on the parties' cross-motions had been completed. Given Plaintiff's counsel's inexcusable and repeated failure to adhere to the Local Civil Rules, the Court, in its discretion, shall disregard all assertions contained in Plaintiff's response to Chemonics' statement that are in violation of LCvR 7(h)(1) and LCvrR 56.1. Accordingly, where Chemonics' factual assertions are properly supported by the record, as confirmed by the Court's own independent review, the Court shall treat such facts as admitted. Thus, in setting forth the relevant factual background below, the Court cites primarily to Chemonics' statement of material facts, with direct citations to the record where appropriate.
Chemonics is an international development consulting firm that provides technical assistance and support in a variety of disciplines (including private financial sector development, health, environmental management, agriculture and governance), to governments and businesses in developing countries. Def.'s Stmt. ¶ 1. Chemonics frequently works in developing countries under contract to the U.S. Agency of International Development ("USAID"). Id. ¶ 2. In 2003, Chemonics entered into a subcontract with the Research Triangle Institute ("RTI"), general contractor on the USAID's Iraq Local Governance Project Civic Institution Support Program ("LGP Program"), to provide personnel to work on the LGP Program in Iraq under RTI's control. Id. ¶¶ 3-5. Chemonics was responsible for locating, screening and hiring the necessary personnel and was also responsible for administering the pay and benefits of those hired. See Def.'s CrossMSJ/Opp'n, Ex. 1 (Decl. of Peter Bittner) (hereinafter "Bittner Decl.") ¶¶ 5-6. In addition, pursuant to Chemonics' subcontract with RTI, Chemonics was required to procure workers' compensation insurance for the employees pursuant to the DBA, the applicable workers' compensation statute. Def.'s Stmt. ¶ 5.
In March of 2003, Chemonics contacted Plaintiff, a civil engineer, to see whether he would be interested in working for Chemonics in Iraq. Id. ¶¶ 6-7. Plaintiff indicated that he was interested in the position. Id. ¶ 8. Thereafter, in September of 2003, Plaintiff and Chemonics entered into the Contract,*fn3 under which Plaintiff was hired by Chemonics as a Municipal Utility Specialist for the LGP in Iraq. Id. ¶ 10. As the Contract's language is key to the instant litigation, the Court sets forth the relevant passages at issue, which provide, inter alia:
The base salary for the employee for the first year of the project work has been proposed at US $131,250 per year, or a monthly rate of US $10,937.50. Salary is pending approval by RTI/USAID. Annual salary increases may be granted in accordance with Chemonics' customary policy and are subject to the approval of USAID. Neither the rate nor amount of salary increase is guaranteed under the terms of this agreement. Salary increases are also subject to company guidelines, individual performance, and client approvals.
The employee shall be considered an employee at will for the duration of employment covered under this agreement. Employment may be terminated by the employmee or by Chemonics at any time and for any reason. . . .
VII. Termination of Employment
Employment may be terminated at any time by Chemonics or by the employee for any reason. Should the employee be terminated for misconduct, dereliction of duty, or gross failure to perform satisfactorily, or should the employee voluntarily resign without obtaining prior written consent of Chemonics' home office, Chemonics will not be liable for salary or related costs beyond the date of employment termination. When terminated for reasons listed here in [section] VII, the employee shall also be liable for any relocation costs not allowable for U.S. government reimbursement, as stated in [section] VIII.5 of this agreement. * * *
XII. Legal agreement . . . . This agreement shall be interpreted and construed under and in accordance with the laws of the District of Columbia. The parties hereby expressly agree and acknowledge that the courts of the District of Columbia shall have sole and exclusive jurisdiction over any dispute arising under or otherwise relating to this agreement. The parties agree that any such disputes shall not be brought before any foreign court, administrative agency, or other legal body, but shall be under the sole and exclusive jurisdiction of the courts of the District of Columbia as stated above. Should either party breach this clause by bringing a dispute before a foreign court, administrative agency, or other legal body, the parties agree as follows: the non-breaching party shall be entitled to liquidated damages at a sum equal to three (3) months salary of the employee's last wage under this agreement and preceding the breach. Contract, §§ IV, VI-VII & XII.
On October 23, 2003, shortly after he was hired by Chemonics, Plaintiff was injured in an automobile accident while working in Al Kut, Iraq. Def.'s Stmt. ¶¶ 17-18. Plaintiff sustained a number of injuries as a result of the accident, and has been unable to work since the October 23, 2003 accident. Id. All parties agree that Plaintiff remains totally disabled because of his injuries. Id. ¶ 19.
As it is required to do, Chemonics immediately reported Plaintiff's injury to the Department of Labor, Office of Workers' Compensation Programs ("OWCP"), in order to ensure that Plaintiff received the appropriate benefits under the DBA.*fn4 Id. ¶ 21. On November 7, 2003, the OWCP District Office of New York sent Plaintiff a notice advising him that the OWCP had received Chemonics' First Report of Injury, and advising him of the workers' compensation benefits available to him under the DBA. Id. ¶ 22. It is undisputed that Plaintiff has been receiving temporary total disability compensation pursuant to the DBA since the date of his accident. Id. ¶ 26; see also Pl.'s MSJ at 4 (admitting that Plaintiff has received benefits under the DBA). Specifically, he receives $1,030.78 per week, which is paid on a bi-weekly basis and which is the maximum compensation rate available under the DBA for Ladd's injury. Id. ¶¶ 26-27.
Plaintiff also receives medical care for his work-related injury under the DBA.*fn5 Id. ¶ 28.
Chemonics also decided to keep Plaintiff on its employment roll following his injury, in part to ensure that Plaintiff and his family would remain covered by Chemonics' group health insurance and to enable Chemonics to continue to pay the employer's portion of the premium. Id. ¶ 29; Bittner Decl. ¶¶ 9-10. As a Chemonics' employee, the total health insurance premium for Plaintiff and his family was $674.74 per month, with Plaintiff contributing $158.00 of the monthly premium. Id. ¶ 30. Between October 2003 and December 2004 (when Plaintiff was officially terminated from Chemonics' employment, as discussed below), Plaintiff remained enrolled in Chemonics' group health insurance and Chemonics continued to pay its portion of the health insurance premiums for Plaintiff and his family.*fn6 Id.
On November 23, 2004, more than a year after Plaintiff's accident, Peter Bittner, Chemonics' Senior Vice President, Middle East Region, had a telephone conversation with Plaintiff concerning his employment status with Chemonics. Id. ¶ 31. Bittner avers that, by that date, "it was apparent that Mr. Ladd would not return to work at Chemonics." Bittner Decl. ¶ 11. Accordingly, Bittner states that, "[b]ecause he had not worked for more than one year and it was unclear when he would be able to return to work," Bittner advised Plaintiff that his employment with Chemonics would be terminated effective December 23, 2004. Id. ¶ 13; see also Def.'s Stmt. ¶ 31. Bittner further advised Plaintiff that he could apply for COBRA coverage to extend his health insurance coverage for 29 months beyond his termination date at a cost of approximately $735.00 per month, and that Chemonics would pay Plaintiff's COBRA payments for that time period if Plaintiff signed a release agreeing not to sue Chemonics. Def.'s Stmt. ¶ 32; see also Bittner Decl. ¶¶ 14-15, 17.*fn7
Bittner subsequently sent a letter to Plaintiff, dated December 8, 2004, in which Bittner confirmed the substance of their November 23, 2004 telephone. See Def.'s Stmt. ¶ 31; see also Ex. B. to Bittner Decl. (12/8/04 Letter from Bittner to Ladd) (hereinafter "December 8, 2004 Letter"), at 1 ("This letter serves to summarize your discussion on November 23, 2004, regarding your end of assignment and employment with Chemonics International."). In particular, the letter confirmed that Plaintiff's employment with Chemonics would be terminated effective December 23, 2004, as Bittner and Plaintiff had discussed. Def.'s Stmt. ¶ 33. The letter also advised Plaintiff that,"[a]lthough you will no longer be employed with Chemonics, so long as you are disabled and you continue to satisfy the terms and conditions under DBA, the DBA insurance provider, CNA, will continue to pay you this benefit." Id. In addition, Plaintiff was informed that his "remaining group insurances of health, company paid and (additional) optional life insurance, and accidental death and dismemberment will terminate as of midnight December 23, 2004." Id. However, Bittner reiterated that Plaintiff could continue his Chemonics' health insurance coverage by applying for the coverage through COBRA, and indicated that he should fill out and return the appropriate forms attached to the letter to apply for COBRA benefits, if he wished to do so. Id.; see also Def.'s Stmt. ¶ 33. In addition, Bittner advised Plaintiff that his "company paid life insurance may be converted to individual policies," and that Plaintiff should contact Chemonics if he "wish[ed] to pursue insurance conversions." December 23, 2004 Letter at 1. Finally, although the letter itself did not specifically reference the release agreement that Bittner had discussed during the November 23, 2004 telephone conversation-stating only that "Chemonics has agreed to pay for the cost of the premium (both the employee and the employer portions) during your entire COBRA eligibility"-Bittner attached a copy of the release to the letter (hereinafter, "Release"). See Def.'s Stmt. ¶ 35; see also December 8, 2004 Letter and Att. In relevant part, the release provides that Chemonics would agree to pay for Plaintiff's COBRA premiums in exchange for Plaintiff's agreement not to sue Chemonics:
2. If you sign and do not revoke this agreement, you will receive twenty-nine months of COBRA coverage beginning on January 1, 2005.
3. In this agreement, in exchange for the payments and benefits described in paragraph 2, you are agreeing not to sue [Chemonics] and waiving and releasing claims and causes of action you may have, on the day you sign this agreement, against [Chemonics] arising out of your employment.
See Att. to December 8, 2004 Letter (hereinafter "Release"). The Release was signed by Bittner and dated December 8, 2004. See id.
On that same day (December 8, 2004), Bittner also provided Plaintiff with copies of the December 8, 2004 Letter and Release via e-mail. Def.'s Stmt. ¶ 37; see also Ex. A to Bittner Decl. (12/8/04 e-mail from Bittner to Ladd) (hereinafter "December 8, 2004 E-mail"). Bittner explained in the e-mail that he was attaching a "letter . . . that summarizes our November 23rd discussion" as well as "a release agreement for you to sign, should you agree with the terms listed in the letter." Id. Bittner further instructed Plaintiff to "[p]lease sign and send back one copy of the release to [Chemonics]" and to "keep the other for your file." Id. Bittner further advised Plaintiff that he should "also fill out the attached COBRA notification and application and send [the forms] back with the release agreement." Id.
Plaintiff, for his part, denies that he was told by Bittner that Chemonics' offer to pay his COBRA premiums was contingent on Plaintiff's agreement not to sue Chemonics. See Pl.'s Rev. Opp'n/Reply at 4-5, ¶ 8. Rather, Plaintiff contends that he was instead told that Chemonics "[was] going to continue paying his COBRA premiums because of his good service and injuries." Id. Plaintiff, however, has not provided any affirmative evidence contradicting Chemonics' factual assertions and supporting evidence. Rather, Plaintiff's only support for his claim that Chemonics gratuitously agreed to pay his COBRA premiums is a single citation to his own deposition testimony. See Pl.'s Rev./Opp'n/Reply at 4-5, ¶ 8 (citing Ex. 6 (Ladd Dep.) at 142-43). But upon closer review of the cited testimony, it is clear that the cited testimony does not actually provide support for Plaintiff's assertion. Indeed, in the cited portion of Plaintiff's deposition testimony, he testifies only that: (1) he "believe[s] [he has] seen" the December 8, 2004 Letter, but does not know when exactly he saw or whether he received it via U.S. mail or e-mail; (2) he remembers seeing the Release "[a]t some time in there," at which point he "questioned it and sent it to [his counsel in Colorado]; and (3) that he "understood before [he saw the Release] that they [i.e., Chemonics] were paying for it [i.e., his COBRA preimiums] . . . because I was injured on their projects on the job." See Def.'s Cross-MSJ/Opp'n, Ex. 3 (Ladd's Depo.) at 142:4-144:21. Thus, at most, Plaintiff's testimony provides only that he does not remember receiving the Release ...