United States District Court, District of Columbia
THOMAS J. PERNICE, et al., Plaintiffs,
ERIC BOVIM, et al., Defendants.
BOASBERG UNITED STATES DISTRICT JUDGE.
As the Court explained in its prior Opinion in this case, the dispute here concerns the ill-fated union of two public-relations firms. See Pernice v. Bovim, No. 15-541, 2015 WL 5063378, at *1 (D.D.C. Aug. 26, 2015). After McBee Strategic Consulting, LLC terminated its relationship with Thomas Pernice and his holding company, Modena Holding Corp., Pernice and Modena sued for breach of contract, fraud, and other claims. McBee responded with a Counterclaim of its own, similarly contending that Modena had breached their contract. Having previously granted McBee’s Motion to Dismiss all but the Complaint’s contract claims, the Court now denies Modena’s Motion to Dismiss the Counterclaim. It believes that McBee has sufficiently pled a contract cause of action.
While for purposes of the prior Motion to Dismiss, the Court considered the facts alleged in the Complaint as true, it now must assume as true the facts alleged in McBee’s Counterclaim. See Int’l Union v. Clark, 412 F.Supp.2d 138, 144 (D.D.C. 2006). In December 2012, McBee, a Washington lobbying and communications firm, acquired the assets and liabilities of Gibraltar Associates LLC, a public-relations firm founded by Thomas Pernice and Eric Bovim. See Countercl., ¶¶ 5-6. In connection with this acquisition, McBee hired Bovim as an employee and Pernice as an Independent Contractor through his holding company, Modena. Id., ¶¶ 8-9. McBee and Pernice (via Modena) formalized their relationship in an Independent Contractor Services Agreement (IC Agreement), executed on January 1, 2013. Id., ¶¶ 9-10. The IC Agreement listed Modena’s general responsibilities and provided that McBee would pay a monthly retainer of $80, 166.67 over an 18-month period. Id., ¶ 11; Opp., Exh. A (IC Agreement) at 1-2, 11-12. On July 6, 2013, McBee terminated the Agreement for cause, citing Modena’s failure to cure deficiencies listed in a notice dated June 5, 2013. See Countercl., ¶¶ 17, 19. The notice informed Modena that it “had failed to perform satisfactorily under the Agreement” in several areas: “[t]ransitioning former clients”; “[a]ssisting with business development”; and “[c]ross-selling services and offerings between business units to existing clients.” Id., ¶ 18.
Following termination of the IC Agreement, Pernice and Modena sued McBee, its owner and chief executive, and Bovim - “each for some combination of breach of contract, fraud, civil conspiracy, and unjust enrichment.” Pernice, 2015 WL 5063378, at *1. This Court granted McBee’s Motion to Dismiss the latter three causes of action, leaving only Modena’s breach-of-contract claim. Id. Accompanying its subsequent Answer to the Amended Complaint, McBee filed a Counterclaim, contending that Modena, too, had breached the IC Agreement by “fail[ing] to perform many, if not all, of the as signed tasks.” Countercl., ¶ 35. Modena now moves to dismiss this Counterclaim.
II. Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), a court must dismiss a claim for relief when the complaint “fail[s] to state a claim upon which relief can be granted.” In evaluating a motion to dismiss, the Court must “treat the complaint’s factual allegations as true and must grant plaintiff the benefit of all inferences that can be derived from the facts alleged.” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (citation and internal quotation marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court need not accept as true, however, “a legal conclusion couched as a factual allegation, ” nor an inference unsupported by the facts set forth in the complaint. Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), “a complaint must contain sufficient factual matter, [if] accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal quotation omitted). A plaintiff may survive a Rule 12(b)(6) motion even if “recovery is very remote and unlikely, ” but the facts alleged in the complaint “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555-56 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
A motion to dismiss under Rule 12(b)(6) must rely solely on matters within the pleadings, see Fed.R.Civ.P. 12(d), which includes statements adopted by reference as well as copies of written instruments joined as exhibits. See Fed.R.Civ.P. 10(c). Documents that a defendant attaches to a motion to dismiss are “part of the pleadings” under Rule 10(c) if they are integral to its claim, they are referred to in the complaint, and their authenticity is undisputed. See Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004); Hinton v. Corrs. Corp. of Am., 624 F.Supp.2d 45, 46-47 (D.D.C. 2009). The Court may thus consider those materials on a motion to dismiss without treating the motion “as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d); Marshall v. Honeywell Tech. Solutions, Inc., 536 F.Supp.2d 59, 65 (D.D.C. 2008).
McBee initially advanced two causes of action against Modena: breach of contract and fraud. See Countercl., ¶¶ 32-42. It has now withdrawn the latter, leaving only the contract dispute. See Opp. at 4 n.2. In the District of Columbia, “[t]o prevail on a claim of breach of contract, a party must establish (1) a valid contract between the parties; (2) an obligation or duty arising out of the contract; (3) a breach of that duty; and (4) damages caused by breach.” Francis v. Rehman, 110 A.3d 615, 620 (D.C. 2015) (internal citation and quotation marks omitted). “However, to state a claim for breach of contract so as to survive a Rule 12(b)(6) motion to dismiss, it is enough for the plaintiff to describe the terms of the alleged contract and the nature of the defendant’s breach.” Id. In moving to dismiss, Modena contends that McBee has failed to meet this standard, first by failing to sufficiently plead a breach and second, by seeking a damages remedy that Modena believes is expressly unavailable under the terms of the contract. The Court considers each argument in turn.
Modena’s challenge to McBee’s allegation of breach focuses on two issues: the minimal performance it claims McBee acknowledges and the factual sufficiency of the Counterclaim.
1. Minimal Performance
Modena first contends that McBee has not sufficiently alleged that Modena breached the contract because McBee’s allegation that Modena engaged in “minimal client pitches” and “minimal activity, ” Countercl., ¶ 18, constitutes an acknowledgment of satisfactory, albeit minimal, performance. See Mot. at 4, 7-8; Reply at 4-6. Such an argument misreads McBee’s position. While Modena apparently interprets McBee to imply that Modena fulfilled its contractual obligations - i.e., that its performance was minimally sufficient - McBee uses the word “minimal” to mean that Modena did not hold up its end of the bargain. See ...