*fn22,The opinion of the court was delivered by: Reggie B. Walton United States District Judge,IN THE MATTER OF THE FORT TOTTEN METRORAIL CASES ARISING OUT OF THE EVENTS OF JUNE 22, 2009 LEAD CASE: JENKINS v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, ET AL." />

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In the Matter of the Fort Totten Metrorail Cases v. Washington

August 16, 2012 *fn22

IN THE MATTER OF THE FORT TOTTEN METRORAIL CASES ARISING OUT OF THE EVENTS OF JUNE 22, 2009 LEAD CASE: JENKINS
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, ET AL.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

THIS DOCUMENT RELATES TO: ALL CASES

MEMORANDUM OPINION

This action was instituted on behalf of individuals who were killed or injured in a collision between two Washington Metropolitan Area Transit Authority ("WMATA") trains that occurred on June 22, 2009, near WMATA's Fort Totten Metrorail station. Currently before the Court are the following seven contested dispositive motions: (1) WMATA's motion to dismiss Alstom Signaling, Inc.'s ("Alstom") statute of repose affirmative defense, ECF No. 353;*fn1 (2) Ansaldo STS USA, Inc.'s ("Ansaldo") motion for judgment on Counts 7, 11, and 15 of the Second Amended Master Complaint, ECF No. 367; (3) WMATA's motion to dismiss the equitable indemnification cross-claims against it, ECF No. 424; (4) Alstom, Ansaldo, and ARINC Incorporated's ("ARINC") (collectively "corporate defendants") joint motion for summary judgment on all claims, ECF No. 425; (5) Ansaldo's motion for summary judgment, ECF No. 426; (6) Alstom's motion for summary judgment, ECF No. 427; and (7) ARINC's motion for summary judgment, ECF No. 428. Upon careful consideration of the parties' submissions, the Court concludes for the following reasons that (1) WMATA's motion to dismiss Alstom's statute of repose defense must be granted in part and denied in part; (2) Ansaldo's motion for judgment on Counts 7, 11, and 15 of the Second Amended Master Complaint must be granted; (3) WMATA's motion to dismiss the equitable indemnification cross-claims against it must be granted; (4) the corporate defendants' motion for summary judgment must be denied; (5) Ansaldo's motion for summary judgment must be denied; (6) Alstom's motion for summary judgment must be denied; and (7) ARINC's motion for summary judgment must be granted in part and denied in part.

I. Standards of Review

A. Motion to Dismiss under Rule 12(b)(1)

When a defendant moves for dismissal under Federal Rule of Civil Procedure 12(b)(1), "the plaintiff[] bear[s] the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction." Biton v. Palestinian Interim Self-Gov't Auth., 310 F. Supp. 2d 172, 176 (D.D.C. 2004); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). A court considering a Rule 12(b)(1) motion must "assume the truth of all material factual allegations in the complaint and 'construe the complaint liberally, granting [a] plaintiff the benefit of all inferences that can be derived from the facts alleged.'" Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). However, "the district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction." Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005) (citing Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992)).

B. Motion for Judgment on the Pleadings under Rule 12(c)

Federal Rule of Civil Procedure 12(c) permits "a party [to] move for judgment on the pleadings" so long as the motion is made "[a]fter the pleadings are closed-but early enough not to delay trial." "The standard for a motion for judgment under Rule 12(c) is essentially the same standard as a motion to dismiss under Rule 12(b)(6)." Rollins v. Wackenhut Servs., 802 F. Supp. 2d 111, 116 (D.D.C. 2011) (citing, among others, Schuchart v. La Taberna Del Alabardero, Inc., 365 F.3d 33, 35 (D.C. Cir. 2004)). Accordingly, when considering a Rule 12(c) motion, "the court must accept the non-movant's allegations as true and should view the facts in the light most favorable to the non-movant." Bowman v. District of Columbia, 562 F. Supp. 2d 30, 32 (D.D.C. 2008). "The court should grant a motion for judgment on the pleadings if the movant 'is entitled to judgment as a matter of law.'" Id. (quoting Burns Int'l Sec. Servs. v. Int'l Union, 47 F.3d 14, 16 (2d Cir. 1995)).

C. Motion for Summary Judgment under Rule 56

A motion for summary judgment will be granted "if 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." Fed. R. Civ. P. 56(a). The moving party bears the initial burden of showing the absence of a disputed material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party opposing a motion for summary judgment "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A material fact is one that "might affect the outcome of the suit under the governing law." Id. "The evidence is to be viewed in the light most favorable to the nonmoving party and the court must draw all reasonable inferences in favor of the nonmoving party." Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011) (citing Anderson, 477 U.S. at 255). "Although summary judgment is not the occasion for the court to weigh credibility or evidence, summary judgment is appropriate 'if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Id. (citations omitted). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a [reasonable] jury to return a verdict for that party." Anderson, 477 U.S. at 249. "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Id. at 252 (emphasis added).

II. WMATA's motion to dismiss Alstom's statute of repose affirmative defense*fn2

A. Introduction

Alstom asserts, as an affirmative defense, that WMATA's cross-claims for contribution and contractual indemnity are time-barred under the District of Columbia's ("District") statute of repose. WMATA moves to dismiss this affirmative defense, arguing that its cross-claims fall under two exceptions to the District's statute of repose: (1) the exception for claims asserted by the District of Columbia government, and (2) the exception for claims based on a contract.

The Court concludes that WMATA's cross-claim for contractual indemnity falls under the statute of repose's exception for claims based on a contract, but that its cross-claim for contribution does not. The Court also concludes that neither cross-claim falls under the statute of repose's exception for claims brought by the District. Accordingly, WMATA's motion is granted in part and denied in part.

B. Background

WMATA filed a cross-claim against Alstom containing two counts: Count I is for contribution, and Count II is for contractual indemnity. See ECF No. 140 ¶¶ 84-90. The contribution claim asserts that if WMATA is found liable to the plaintiffs, WMATA is entitled to contribution from Alstom with respect to damages proximately caused by Alstom's negligently and defectively designed automatic train control system. Id. ¶¶ 85-86. The contractual indemnity claim asserts that if WMATA is found liable to the plaintiffs, it is entitled to indemnification from Alstom pursuant to several provisions of a contract between the parties. Id. ¶ 88. In its Answer to WMATA's cross-claim, Alstom asserts that WMATA's cross-claims for contribution and indemnification are time-barred under the District's statute of repose. ECF No. 178 ¶ 10.

The District's statute of repose bars "any action" for "personal injury" or "wrongful death . . . resulting from the defective or unsafe condition of an improvement to real property" if the injury or death occurs more than ten years after the "improvement was substantially completed." D.C. Code § 12-310(a)(1)(A) (2001).*fn3 The statute also bars any action "for contribution or indemnity which is brought as a result of such injury or death" if the injury or death occurs more than ten years after the "improvement was substantially completed." Id. § 12-310(a)(1)(B). However, the statute's ten-year limitations period does not apply to, among other lawsuits, "any action based on a contract, express or implied," id. § 12-310(b)(1), or "any action brought by the District of Columbia government," id. § 12-310(b)(4).

WMATA now moves for judgment on the pleadings under Rule 12(c), contending that Alstom's statute of repose defense fails as a matter of law because WMATA's cross-claim falls under both of the foregoing exceptions to the statute of repose. First, WMATA argues that the statute's exception for "any action brought by the District of Columbia government," id. § 12-310(b)(4), applies because WMATA is an agency of the District under the terms of the interstate compact that created it, and thus should be treated as "the District of Columbia government" for the purposes of the statute of repose, ECF No. 353-1 at 5. It further contends that even if § 12-310(b)(4) is construed to apply only when the District is suing to vindicate public rights, the exception still applies here because WMATA's cross-claim against Alstom seeks to protect the public from negligent design defects in Alstom's train control system, and to replenish WMATA's treasury to enable it to perform a public function (i.e., rail transportation). See id. at 11-15. Second, WMATA maintains that the statute of repose's exception for "any action based on a contract, express or implied," D.C. Code § 12-310(b)(1), also applies because its cross-claim against Alstom is primarily based on the contract between the parties, ECF No. 353-1 at 16-18.

The majority of Alstom's opposition brief focuses on the merits of WMATA's cross-claim (i.e., WMATA's entitlement to contribution and indemnity from Alstom). These arguments, however, are irrelevant to the issues presented in WMATA's motion, and will be considered by the Court only in the context of Alstom's motion for summary judgment (which is discussed infra in this Memorandum Opinion). Alstom makes only one argument responsive to WMATA's motion: it contends that the statute of repose's exception for "any action brought by the District of Columbia government," id. § 12-310(b)(4), does not apply here because (1) WMATA is not "the District of Columbia government," and (2) even if it were, this statutory exception applies only when the District's lawsuit vindicates a public right, and WMATA's cross-claim to recover the costs of its own negligence vindicates no such right. See ECF No. 382 at 7-12.

C. Analysis

Notwithstanding the order in which WMATA presents it arguments, the Court finds that its strongest position is based on the statute of repose's exception for contract claims. The Court thus considers the applicability of that exception first, and then turns to the exception for claims asserted by the District.

1. Does the statute of repose's exception for "any action based on a contract," § 12-310(b)(1), apply to WMATA's cross-claim against Alstom?

As noted, WMATA's cross-claim asserts two counts: Count I for contribution, and Count II for contractual indemnity. See ECF No. 140 ¶¶ 84-90. Despite WMATA's misleading argument that its cross-claim against Alstom is "primarily" based on a contract, its contribution cross-claim plainly sounds in tort, not contract. See id. ¶ 85 (seeking contribution from Alstom insofar as its negligence proximately caused WMATA's liability, and not referencing any contract). And "[c]ontribution is one of several theories used to apportion damages among tortfeasors to an injured party." D.C. v. Wash. Hosp. Cent., 722 A.2d 332, 336 (D.C. 1998) (emphasis added). Thus, WMATA's contribution cross-claim is not exempt from the statute of repose under § 12-310(b)(1).

WMATA's contractual indemnity cross-claim is another story. This claim asserts that Alstom is contractually bound to indemnify WMATA for any damages it pays to the plaintiffs.

See ECF No. 140 ¶¶ 88-90. Because this claim is "based on a contract" between Alstom and WMATA, it is exempt from the statute of repose under § 12-310(b)(1).

2. Does the statute of repose's exception for "any action brought by the District of Columbia government," § 12-310(b)(4), apply to WMATA's cross-claim against Alstom?

Determining the applicability of this exception entails three, interrelated questions: First, should WMATA be considered "the District of Columbia government" within the meaning of § 12-310(b)(4)? Second, if WMATA is the District government for purposes of § 12-310(b)(4), does this provision exempt from the statute of repose any action filed by WMATA, or only those actions brought to enforce public rights? And third, if § 12-310(b)(4) only exempts those actions brought to enforce public rights, does WMATA's cross-claim against Alstom seek to enforce such a right?*fn4

i. Is WMATA "the District of Columbia government" within the meaning of § 12-310(b)(4)?

"WMATA was created by an interstate compact entered into by the District of Columbia and the states of Maryland and Virginia." Watters v. WMATA, 295 F.3d 36, 39 (D.C. Cir. 2002). The interstate compact establishes that WMATA is "an instrumentality and agency of each of the signatory parties," which includes the District. D.C. Code § 9-1107.01, art. III, § 4 (2001); see also id., art. II, § 2 ("The purpose of this Title is to create a regional instrumentality, as a common agency of each signatory party."). Nevertheless, "[s]ince WMATA's conception in 1981, the unique nature of the compact has spawned a great deal of litigation regarding the proper scope of WMATA's jurisdiction and liability," with many cases turning upon "whether WMATA can be considered an agency of the District of Columbia." Griggs v. WMATA, 66 F. Supp. 2d 23, 27 (D.D.C. 1999) (surveying caselaw where WMATA is treated as a District agency for some purposes, but not others). The determination of whether WMATA is part of the District government, in other words, varies depending on the particular circumstances of each case. See id.

The issue here is whether WMATA should be considered "the District of Columbia government" within the meaning of the statute of repose's exception for "any action brought by the District of Columbia government." D.C. Code § 12-310(b)(4). The Court concludes that it should for the following reasons.

D.C. Code § 12-310(b)(4) was enacted as part of the District of Columbia Statute of Limitations Amendment Act of 1986. D.C. Water & Sewer Auth. ("WASA") v. Delon Hampton Assocs., 851 A.2d 410, 414 (D.C. 2004). The D.C. Court of Appeals has recognized that this legislation codified the common law doctrine of nullum tempus ("no time runs against the sovereign"). See id. ("[A]n underlying aim of the [D.C.] Council" in enacting the law "was to ensure that the District received, at the least, the benefit of the common law principle of 'nullum tempus.'"). Under the doctrine of nullum tempus, "sovereigns enjoy a common-law immunity from the operation of statutes of limitations and repose . . . when [they] sue[] to vindicate public rights." D.C. v. Owens-Corning Fiberglas Corp., 572 A.2d 394, 401, 406 (D.C. 1989). Of particular relevance here, nullum tempus immunity is generally considered a type of sovereign immunity. See Solid Rock Church, Disciples of Christ v. Friendship Pub. Charter Sch., Inc., 925 A.2d 554, 559-60 (D.C. 2007) ("[T]he District . . . enjoys limited sovereign immunity from the operation of statutes of limitation under the common law doctrine of nullum tempus." (emphasis added)); Owens-Corning, 572 A.2d at 405 (noting that "[s]ince Congress is sovereign in the District, it enjoys the usual sovereign immunities, including the benefit ofnullum tempus" (emphasis added)); accord Shootman v. Dep't of Trans., 926 P.2d 1200, 1206 (Colo. 1996) ("[N]ullum tempus is simply an aspect of sovereign immunity."); New Jersey Educ. Facilities Auth. v. Gruzen, 592 A.2d 559, 561 (N.J. 1991) (same); Wash. Suburban Sanitary Comm'n v. Pride Homes, 435 A.2d 796, 801 (Md. 1981) (same). This point is significant because, in signing the interstate compact, Maryland, Virginia, and the District "conferred each of their respective sovereign immunities" on WMATA. Watters, 295 F.3d at 39. The Fourth Circuit has consequently interpreted the interstate compact's conferral of sovereign immunity on WMATA to include immunity from Virginia's statute of limitations. See Delon Hampton v. WMATA, 943 F.2d 355, 359 (4th Cir. 1991) (stating that, "[a]s a general proposition, an agency of the state shares the same privileges as that of the state, including sovereign immunity," and holding that WMATA, "as an agency and instrumentality of the Commonwealth of Virginia," was "exempt from application of the statute of limitations" pursuant to Virginia statute which codified nullum tempus). Employing similar reasoning here, this Court concludes that WMATA derives nullum tempus immunity from the District because it is an agency of the District that shares its sovereign immunity, and that WMATA consequently qualifies as the "District of Columbia government" within the meaning of § 12-310(b)(4).*fn5

Resisting this conclusion, Alstom relies upon the D.C. Court of Appeals' decision in WASA, 851 A.2d at 414. There, the court held that the "functions and activities of WASA [the D.C. Water and Sewer Authority], a separate corporate body distinct from the District of Columbia, are proprietary in nature and thus beyond the protection of nullum tempus" and, in turn, outside the exception to the statute of limitations for "actions brought by the District of Columbia government" codified at D.C. Code § 12-301 (2001). Id. at 416. To be sure, WASA and WMATA have many similarities-they are both public-private hybrid entities, they can both sue and be sued in their own names, and they can enter into contracts with the District. Compare D.C. Code §§ 43-1672, 43-1673 (2001) (WASA enabling legislation), with D.C. Code § 9-1107.1, Tit. III, Art. II, § 2; id., Art. V, §§ 12(a), 12(f) (2001) (WMATA Compact). However, whereas WASA's enabling legislation makes clear that it is "an independent authority of the District government" and a "corporate body . . . that has a separate legal existence within the District government," D.C. Code § 34-2202.02(a) (2001) (emphasis added), the interstate compact declares that WMATA is "an instrumentality and agency of each of the signatory parties," including the District. D.C. Code § 9-1107.01, art. III, § 4 (2001). And WMATA derives sovereign immunity from the District, see Watters, 295 F.3d at 39, which includes nullum tempus immunity. WASA apparently does not. Because of these key distinctions between WASA and WMATA, Alstom's reliance on WASA is misplaced.

ii. Does § 12-310(b)(4) exempt from the statute of repose any action filed by the District/WMATA, or only those actions brought to enforce public rights?

Even though WMATA may be treated as the District government for purposes of § 12-310(b)(4), that does not end the Court's inquiry. According to Alstom, § 12-310(b)(4) merely codifies the doctrine of nullum tempus, and thus only exempts lawsuits from the statute of repose when the District is seeking to enforce a public right. ECF No. 382 at 8-9. WMATA, on the other hand, emphasizes that the plain language of § 12-310(b)(4) applies to "any action brought by the District of Columbia government," regardless of whether the suit is brought to enforce a public right. ECF No. 396 at 11-12. In support of this position, WMATA highlights a passage from WASA where the court of appeals stated that § 12-310 was designed "to ensure that the District received, at the least, the benefit of the common law principle of 'nullum tempus.'" 851 A.2d at 414 (emphasis added). The court's inclusion of the phrase "at the least," WMATA contends, suggests that § 12-310 extends beyond nullum tempus immunity. ECF No. 396 at 11. The Court disagrees.

While WMATA's position may find support in stray phrases from WASA, the actual reasoning of that decision indicates that § 12-310(b)(4) only codifies nullum tempus and extends no further.*fn6 Indeed, the WASA court did not simply analyze whether WASA was an agency of the District and therefore within the scope of § 12-301's exemption to the statute of limitations. It instead surveyed legislative history which showed that "a purpose of the draft bill was to 'make clear that the limitations provisions of § 12-301 and § 12-310 of the D.C. Code do not apply to the District government when it sues to enforce public rights.'" Id. at 414 (citation omitted). Accordingly, "in deciding what juridical entities the [D.C.] Council intended to encompass within the phrase 'District of Columbia government,'" the court deemed it "useful to determine whether th[e] action brought by WASA was brought to enforce a public right." Id. (emphasis added). After discussing District of Columbia case law concerning the application of nullum tempus immunity, the court found that the "functions and activities of WASA, a separate corporate body distinct from the District of Columbia are proprietary in nature and thus beyond the protection of nullum tempus," which, in turn, led the court to "hold that the phrase 'District of Columbia government' in § 12-301 does not encompass the separate juridical entity of which WASA consists." Id. at 416. This analysis indicates that the D.C. Court of Appeals construes §§ 12-301 and 12-310 as merely coextensive with, but no broader than, the principle of nullum tempus. Subsequent decisions confirm this view. See, e.g., Solid Rock Church, 925 A.2d at 559-60 ("The law is settled that the District of Columbia, as a municipality, enjoys limited sovereign immunity from the operation of statutes of limitation under the common law doctrine of nullum tempus, and under D.C. Code § 12-301 (2001), while in the performance of public functions." (emphasis added)); D.C. Housing Auth. v. D.C. Office of Human Rights, 881 A.2d 600, 609 (D.C. 2005) (noting that § 12-301 was amended "in 1986 to ensure that the statute of limitations does not prevent the District government from bringing suit to enforce public rights" (emphasis added)).*fn7

iii. Does WMATA's cross-claim against Alstom seek to enforce a public right?

Having found that WMATA qualifies as the District government for purposes of § 12-310(b)(4), and that § 12-310(b)(4) only applies to claims brought to enforce a public right, the question now becomes whether WMATA's cross-claim against Alstom seeks to enforce a public right. The Court concludes that it does not.

The D.C. Court of Appeals discussed the "public function requirement" of nullum tempus immunity at length in Owens-Corning:

The government enjoys immunity from the running of time only when it sues to vindicate public rights. Thus, our task will not be complete until we have determined whether, with respect to the particular issue on appeal, the District is suing to vindicate a public or a proprietary right. This question is by no means an easy one. The line between rights that accrue to the public's benefit and those that are ultimately proprietary to the government is a fine one, especially since any financial loss to the government is ultimately a loss to the public fisc.

In [D.C. v. Weiss, 263 A.2d 638 (D.C. 1970)], where we held that the District's suit to recover fees [from a patient treated for tuberculosis at] a public hospital was not barred by the statute of limitations, we said:

The District of Columbia is seeking to replenish its treasury of money expended by a public instrumentality in the exercise of a public function. Recovery of the funds, which will benefit the public as a whole when applied to the continued operation of Glenn Dale Hospital, should not be made contingent on the diligence of public servants. 263 A.2d at 640. This passage emphasizes the expenditure of the disputed monies by a public instrumentality, its application to a public function, and the policy against allowing the laxity of public servants to erect a bar to suit. We stress, however, that while all monies the District sues upon affect the public fisc, it does not follow that every time the District sues for money it performs a public function. While the line is hard to draw, it can fairly be stated that something more is required than a naked financial interest; thus in Weiss we spoke of replenishing the treasury of funds earmarked for the performance of a particular public function. Where the District acquires a right of action directly related to its duty to perform a service to the public, or to vindicate an overwhelmingly public interest or right, a suit to recover money damages to enable the District to perform that service is public rather than proprietary. Of course, there may be other considerations, unique to each case, which must guide future courts in determining whether the public function test is met. 572 A.2d at 406-407. Applying these principles, the court in Owens-Corning held that the District's lawsuit seeking to recover costs for the removal of asbestos from roughly 2,400 public buildings was brought "to vindicate a public right" because the public "[u]nquestionably" had "a profound interest in the elimination of a danger so extreme and widespread." Id. at 396, 407.

Drawing on Owens-Corning, WMATA maintains that its cross-claim against Alstom "seeks to protect the public at large from the negligent design defects in Alstom's automatic train control system." ECF No. 353-1 at 13. WMATA also contends that this case is analogous to Weiss because its cross-claim "seeks to replenish the public treasures of money expended, and potential liabilities incurred, in the exercise of a public function, i.e., providing rail transportation in the Washington, D.C. metropolitan area." Id. at 15. Alstom responds by arguing that, in contrast to the District's lawsuits in Owens-Corning and Weiss, WMATA's cross-claim "does not seek to recover any costs incurred by the District of Columbia in eliminating a public hazard such as asbestos or tuberculosis. Rather, WMATA seeks to recover the costs which WMATA caused [the p]laintiffs to incur as a result of its own negligence-assuming it is found liable to [the p]laintiffs at trial-through equitable contribution as a joint tortfeasor and contractual indemnity of tort liability." ECF No. 382 at 10 (emphasis in original). Noting that WMATA's recovery for contribution and indemnity necessarily depends on WMATA being found liable in the first instance, Alstom argues that "WMATA's suit to recover the costs of its own wrongdoing is plainly not a public function." Id. at 11 (emphasis in original).

The Court finds that WMATA's cross-claim against Alstom does not enforce a public right.*fn8 First, WMATA's cross-claim bears no similarity to the claims asserted by the District in Owens-Corning and Weiss. In both of those cases, the District took actions to secure the public health first (i.e., removing asbestos in Owens-Corning and paying for a hospital patient's tuberculosis treatment in Weiss), and then filed suit to recover the costs of those actions from the responsible parties. WMATA took no similar actions here. This is not a case, for instance, where WMATA first expended resources on fixing Alstom's allegedly faulty automatic train control system, and then brought suit to recover the costs of those remedial efforts. Rather, WMATA took no action in the first instance, the train collision occurred, and it now seeks reimbursement from Alstom in the event that WMATA is itself found liable at trial. In other words, rather than seeking reimbursement from a wrongdoer for proactive actions taken to prevent public harm, WMATA seeks reimbursement for Alstom's alleged share of the fault if WMATA itself is deemed a wrongdoer. It is difficult to discern how the public's rights are vindicated by such a claim. Second, the Court views as tenuous WMATA's argument that its cross-claim is necessary to protect the public from the alleged defects in Alstom's automatic train control system. WMATA could (and should) independently evaluate the adequacy of Alstom's equipment, and if it is defective, take any necessary remedial steps. Its cross-claim against Alstom is not necessary to achieve that end. At most, WMATA's cross-claim will mitigate its own tort liability in this case, and thus will further a proprietary rather than a public interest. While it is true that "any financial loss to the government is ultimately a loss to the public fisc," WMATA's cross-claim vindicates the type of "naked financial interest" that is not protected by nullum tempus. Owens-Corning, 572 A.2d at 406-407. Thus, because WMATA's cross-claim against Alstom does not enforce a public right, it does not fit the statute of repose's exception for claims brought by the District of Columbia government.

In sum, WMATA's cross-claim for contractual indemnity (Count I) falls under the statute of repose's exception for claims based on a contract, but its cross-claim for contribution (Count II) does not. And neither count of WMATA's cross-claim fits the statute of repose's exception for claims brought by the District. Accordingly, WMATA's motion to dismiss Alstom's statute of repose affirmative defense is granted in part and denied in part.

III. Ansaldo's motion for judgment on Counts 7, 11, and 15 of the plaintiffs' Second Amended Master Complaint*fn9

This motion warrants only brief discussion. In their briefings, the parties agree to the dismissal of Count 14 (Negligent Train Traffic Control) of the plaintiffs' Second Amended Master Complaint because it is duplicative of Count 7. See ECF No. 390 at 1; ECF No. 394 at 1. The Court will therefore dismiss Count 14 of the Second Amended Master Complaint.

Ansaldo also moves for judgment on Count 11 (Breach of the Implied Warranty of Merchantability), and Count 15 (Breach of Warranty & Implied Warranty of Fitness for a Particular Purpose) of the Second Amended Master Complaint. The Court previously dismissed these counts as to Alstom, holding that "where a plaintiff alleges claims for both strict products liability and breach of implied warranties based on allegedly defective products against a party not in privity with the plaintiff, the implied warranty claims must be dismissed because the actions are the same." In re Fort Totten Metrorail Cases, 793 F. Supp. 2d 133, 152 (D.D.C. 2011). In their opposition to Ansaldo's motion, the plaintiffs merely reincorporate the arguments that the Court previously rejected. See ECF No. 390 at 2. Accordingly, consistent with its prior ruling, the Court will dismiss Counts 11 and 15 of the Second Amended Master Complaint as to Ansaldo.

IV. WMATA's motion to dismiss the equitable indemnification cross-claims against it*fn10

A. Introduction

In this motion, WMATA asserts that the corporate defendants' cross-claims against it for equitable indemnification must be dismissed because the interstate compact does not waive WMATA's sovereign immunity for equitable indemnification claims. The Court agrees with WMATA and concludes that its motion must therefore be granted.

B. Background

The three corporate defendants, ARINC, Ansaldo, and Alstom, have all asserted cross-claims for equitable indemnification against WMATA.*fn11 WMATA now moves to dismiss these cross-claims for lack of subject matter jurisdiction under Rule 12(b)(1), arguing that the interstate compact's waiver of sovereign immunity is limited to liability for contractual breaches or tortious conduct occurring as a result of the performance of its non-governmental functions. WMATA asserts that because equitable indemnity is a distinct legal claim for which immunity was not waived, the corporate defendants' equitable indemnification claims are barred by sovereign immunity and must be dismissed for lack of subject matter jurisdiction.*fn12 The cross-plaintiffs, however, maintain that equitable indemnity sounds in tort under District law and the cross-claims concern tortious conduct stemming from WMATA's proprietary functions. WMATA replies that the cross-plaintiffs' argument that their indemnity claims sound in tort blurs the lines between the parties and their respective positions in this litigation.

C. Analysis

1. What is the nature of the cross-claims asserted against WMATA?

In addressing whether the corporate defendants' cross-claims against WMATA are barred by sovereign immunity, it is first necessary to explore the nature of an equitable indemnification claim. "Although the right to indemnify may arise by contract, '[the District of Columbia Court of Appeals has] recognized that the obligation to indemnify may be implied in fact (on an implied contract theory) or implied in law in order to achieve an equitable result.'" District of Columbia v. Wash. Hosp. Ctr., 722 A.2d 332, 340 (D.C. 1998) (quoting R. & G. Orthopedic Appliances v. Curtin, 596 A.2d 530, 544 (D.C. 1991)). In such situations, "[a]n obligation to indemnify exists where the equities of the case and the relationship of the parties support shifting responsibility from one party to another." Howard Univ. v. Good Food Servs., 608 A.2d 116, 122 (D.C. 1992); Quandrangle Dev. Corp. v. Otis Elevator Co., 748 A.2d 432, 434, n.2 (D.C. 2000) (noting the parties' concession that their contract "did not contain any express indemnification provision," and concluding that "[t]herefore, their claim is one of implied indemnification, based on equitable principles"). Stated differently, "[i]n the absence of an express contractual duty to indemnify, a right to indemnify exists where a duty to indemnify may be implied out of a relationship between the parties to prevent a result which is unjust." Howard, 608 A.2d at 123; see also Johnson v. Mercedes-Benz, USA, LLC, 182 F. Supp. 2d 58, 65 (D.D.C. 2002) ("When based on equitable principles, indemnity may be granted to an indemnitee if there is a 'significant difference in the kind and quality' between the indemnitee's and the indemnitor's wrongdoing." (quoting Quandrangle Dev. Corp., 748 A.2d at 435)).

WMATA maintains that the "[c]ross-claimaints' causes of action for indemnification against WMATA are expressly based on equity, and do not rely on a contract." ECF No. 424-1 at 5. The corporate defendants disagree, claiming that "equitable indemnity sounds in tort under controlling D.C. law." ECF No. 478 at 1. The corporate defendants are incorrect. Equitable indemnification is premised on "the equities of the case and the relationship of the parties." Howard Univ., 608 A.2d at 122. While the corporate defendants may be correct that determining the equities in a given case will often require an examination of the "kind and quality," Quandrangle Dev. Corp., 748 A.2d at 435, of the tortious conduct at issue, this does not mean that equitable indemnification sounds in tort. Rather, this examination of the tortious conduct provides the basis from which to assess the equities. Thus, although "the [c]ross-plaintiffs' equitable indemnification cross-claims concern WMATA's [allegedly] tortious misconduct," ECF No. 478 at 10 (emphasis added), they are not tort claims. The cross-plaintiffs' equitable indemnification claims are based on equitable principles-not tort or contract law.

2. Has WMATA waived its sovereign immunity as to equitable indemnification claims?

WMATA asserts that "[t]he cross-claimants cannot show the existence or applicability of any waiver of sovereign immunity that would make WMATA amenable to suit for implied indemnification." ECF No. 424-1 at 7. The Court agrees.

"In signing the WMATA Compact, Maryland, Virginia, and the District of Columbia conferred upon WMATA their respective sovereign immunities." Beebe v. WMATA, 129 F.3d 1283, 1287 (D.C. Cir. 1997). "Although [section 12(a) of] the WMATA Compact provides that WMATA may '[s]ue and be sued,' [the Circuit has] held that provision to extend only as far as the more specific (and partial) waiver of sovereign immunity contained in section 80 of the Compact." Watters, 295 F.3d at 40. In relevant part, Section 80 of the interstate compact provides:

The Authority shall be liable for its contracts and for its torts and those of its Directors, officers, employees and agent[s] committed in the conduct of any proprietary function, in accordance with the law of the applicable signatory (including rules on conflict of laws), but shall not be ...


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