United States District Court, District of Columbia
RUDOLPH CONTRERAS, United States District Judge
Defendant's Motion for Summary Judgment; Granting
Defendant's Motion to Dismiss; Denying Plaintiff's
Cross-Motion for Partial Summary Judgment; Denying
Defendant's Motion to Strike as Moot
action arises from a dispute between two construction
companies. Plaintiff American Civil Construction, LLC
(“ACC”) alleges that Defendant Fort Myer
Construction Corporation (“Fort Myer”) breached a
subcontract for work related to the District of
Columbia's new streetcar system. After a period of
discovery, Fort Myer filed a motion to dismiss for lack of
subject matter jurisdiction and a motion for summary
judgment. In response, ACC cross-moved for partial summary
judgment on two discrete issues. Because the Court finds that
ACC brought suit despite failing to acquire the proper
registration with the District, the District's door
closing statute deprives the Court of subject matter
jurisdiction. But the Court will permit ACC an opportunity to
file a supplemental complaint within thirty days to attempt
to cure the jurisdictional problem. Finally, the Court finds
that genuine issues of material fact preclude granting
summary judgment to either party.
FACTUAL AND PROCEDURAL BACKGROUND
Court will begin with a description of the allegations found
in ACC's Complaint before turning to other relevant facts
and the procedural history of this action.
Allegations of the Complaint
to the Complaint, American Civil Construction, LLC, is a
limited liability company organized under the laws of
Maryland, with its principal place of business in Maryland.
Compl. ¶ 1, ECF No. 1. ACC is in the business of
construction contracting. Compl. ¶ 1. Fort Myer
Construction Corporation is a corporation organized under the
laws of Virginia, with its principal place of business in the
District of Columbia. Compl. ¶ 2. Fort Myer is also in
the business of construction contracting, and regularly does
business in the District. Compl. ¶ 2.
allegations are related to the construction of a streetcar
project in the District. Compl. ¶ 4. Specifically, Fort
Myer entered into a contract with the D.C. Department of
Transportation (“DDOT”) referred to as the
“Construction of Anacostia Initial Line Segment and
Operation and Maintenance Facility, and Reconstruction of
Firth Sterling Avenue - Milestone B” (“Anacostia
Project”). Compl. ¶ 5. Fort Myer, the prime
contractor, entered into a subcontract with ACC for the
construction of foundations and the installation of ground
rods and conduits. Compl. ¶ 6. Originally, the value of
the work described in the subcontract was $649, 161, but
change orders increased that figure to $1, 052, 878.17.
Compl. ¶ 6.
letter dated October 26, 2012, Fort Myer stated that it was
terminating the subcontract with ACC “for convenience,
” even though the subcontract work was not yet
completed. Compl. ¶ 8. ACC alleges that the terms of the
subcontract only allow for termination “for
convenience, ” if DDOT also terminated its prime
contract with Fort Myer “for convenience” first.
Compl. ¶ 9. ACC alleges, however, that the prime
contract between DDOT and Fort Myer was not terminated.
Compl. ¶ 10.
alleges that it wrote to Fort Myer and stated that the
termination of the subcontract was wrongful and that ACC was
prepared to complete the work described in the subcontract.
Compl. ¶ 11. Fort Myer refused that offer, which ACC
alleges was a breach of the subcontract. Compl. ¶ 12.
ACC alleges that it was entitled to overhead and profit on
the work it performed under the subcontract, but that Fort
Myer has not made those payments. Compl. ¶¶ 9, 13.
alleges that, before the termination of the subcontract, it
performed work that was outside of the scope of the
subcontract. Compl. ¶ 14. All of that work was
“performed at the direction and with the knowledge and
agreement of” Fort Myer. Compl. ¶ 14. Fort Myer
had a duty to process change orders related to that work, but
Fort Myer refused to process and pay the change order
requests that ACC submitted. Compl. ¶ 15. ACC alleges
that this refusal constituted an additional breach of the
subcontract. Compl. ¶ 15.
ACC alleges that retainage was withheld from Fort Myer's
payments to ACC. Compl. ¶ 16. ACC alleges that the full
amount of the withheld retainage has not been paid to ACC.
Compl. ¶ 17. In light of all of these allegations, ACC
concludes that it has performed all work available to it
under the subcontract, and that Fort Myer's breach has
caused damages. Compl. ¶¶ 18-19. ACC thus requests
$300, 000 in damages, as well as interest and costs. Compl.
Facts in the Record
parties have presented a range of evidence in connection to
the motions for summary judgment, including relevant
documents and various declarations. ACC provides a letter
dated May 28, 2009, from Fort Myer to ACC's
then-Principal, Edward F. Hollander, that encloses a copy of
the subcontract at issue in this case. See Pl.'s
Resp. Def.'s Mot. Summ. J. & Cross-Mot. Partial Summ.
J. (“Pl.'s Opp'n & Cross-Mot. Summ.
J.”), Ex. 4 at 1, ECF No. 24-4. The portions of the
subcontract included in the record make clear that the
subcontract related to a prime contract between Fort Myer and
DDOT for work on the Anacostia Project. See
Pl.'s Opp'n & Cross-Mot. Summ. J., Ex. 4 at 2. An
addendum to the standard form agreement states that
“[t]he Contractor may at any time terminate
Subcontractor upon reasonable notice, for Contractor's
convenience.” Pl.'s Opp'n & Cross-Mot.
Summ. J., Ex. 4 at 4-5, ¶ 7.3. But an attachment listing
modifications to the terms of the addendum states that
paragraph 7.3 of the addendum is struck, deleted, and
replaced with: “The Contractor can only terminate the
Subcontractor for convenience if the Owner similarly
terminates the Contractor.” Pl.'s Opp'n &
Cross-Mot. Summ. J., Ex. 4 at 7, ¶ 7.3.
October 12, 2010, DDOT sent a letter to Fort Myer that set
forth a significant change to the scope of the prime
contract. Def.'s Opp'n Cross-Mot. Partial Summ. J.,
Ex. A at 1, ECF No. 28. The letter stated that “[t]he
remaining scope of work on this Contract is limited to the
work identified in this Article 3 Letter, and the Contractor
shall not perform any other work, unless it receives written
authorization.” Def.'s Opp'n Cross-Mot. Partial
Summ. J., Ex. A at 1.
turn, Fort Myer sent a letter to its subcontractor, ACC,
dated October 26, 2010. Pl.'s Opp'n & Cross-Mot.
Summ. J., Ex. 2 at 1, ECF No. 24-2. Fort Myer stated that
DDOT had “suspended” the prime contract through
its October 12 letter and “deleted portions of its
scope.” Pl.'s Opp'n & Cross-Mot. Summ. J.,
Ex. 2 at 1. Fort Myer explained that DDOT had since directed
Fort Myer to resume work on the Anacostia Project, but that,
in light of the changed scope of the contract, Fort Myer
would terminate its subcontract with ACC “for
convenience.” Pl.'s Opp'n & Cross-Mot.
Summ. J., Ex. 2 at 1. ACC responded by letter dated November
7, 2012. See Def.'s Statement of Undisputed
Facts, Ex. A at 1, ECF No. 20. ACC's letter was drafted
by Michael J. Jack, outside counsel who represents ACC in
this litigation. Def.'s Statement of Undisputed Facts,
Ex. A at 1. The letter noted that when Mr. Hollander
contacted Kathi Muttart, a Fort Myer employee, she advised
that all communications should be directed to Christopher M.
Kerns, the Vice President and General Counsel for Fort Myer.
Def.'s Statement of Undisputed Facts, Ex. A at 1. The
letter also argued that the subcontract did “not give
[Fort Myer] the right to terminate for convenience, except
where [Fort Myer] has been terminated by the owner.”
Def.'s Statement of Undisputed Facts, Ex. A at 1. The
parties exchanged additional letters through their counsel.
See, e.g., Def.'s Opp'n Cross-Mot. Partial
Summ. J., Ex. C at 1 (letter from Fort Myer's Associate
General Counsel to Mr. Jack dated November 9, 2012);
Pl.'s Opp'n & Cross-Mot. Summ. J., Ex. 2 at 4-5
(letter from Mr. Jack to Fort Myer's Associate General
Counsel dated November 30, 2012).
November 20, 2014, ACC and Fort Myer executed a two-page
document titled “Subcontractor's Affidavit and
Final Waiver of Lien.” Decl. of Thomas Mero, Ex. A
(“Final Waiver of Lien”) at 1, ECF No. 20. The
document referred to the contract between Fort Myer and ACC
for work on the Otis Street Project. Final Waiver of Lien at 1.
The release did not specifically mention the Anacostia
Project. See generally Final Waiver of Lien. The
release called for Fort Myer to pay ACC $10, 000. Final
Waiver of Lien at 1. In consideration for the payment, ACC
Release and forever discharge Fort Myer of and from all
debts, claims, demands, liabilities and causes of action of
every character whatsoever arising out of or in connection
with subcontract or any other work performed by subcontractor
on any project except as follows: (there are no exceptions
unless specific claims in stated amounts are listed):
Waiver of Lien at 2. Following that paragraph, handwritten
notes purportedly written by Edward Hollander, the late owner
of ACC, list “AS-BUILTS PURCHASE ORDER $4, 000 - (LESS
APPROX $3, 600 OWED BY ACC ON ANOTHER PROJECT) FOR NET OF
ABOUT $400 (SEPARATE MATTER).” Final Waiver of Lien
to the release, Fort Myer made payments of $10, 000 and $4,
000 to ACC in November 2014. Decl. of Thomas Mero ¶ 11.
ACC made a payment of $3, 600 to Fort Myer around the same
time. Decl. of Jennifer Lawson ¶ 8, ECF No. 20. Evidence
provided by the parties suggests that both ACC and Fort Myer
accepted compromise payments when they agreed to the release.
A representative for ACC states that, “[a]s of
November, 2014, the amount which ACC considered outstanding
and claimed on the Otis Street Project was $22,
000.00.” 2d Decl. of Irene Stephen ¶ 4, ECF No.
24-1. A representative for Fort Myer states that, “[i]n
or around November, 2014, [ACC] owed Fort Myer . . . the
amount of $4, 348.10 relating to various project[s], but not
related to [the Otis Street Project].” Decl. of
Jennifer Lawson ¶ 8.
parties agree that Mr. Hollander died sometime after the
release was executed. See Pl.'s Opp'n &
Cross-Mot. Summ. J. at 5; Def.'s Reply Supp. Mot. Summ.
J., at 1 n.2, ECF No. 26.
Proceedings in this Court
brought suit in this Court on April 8, 2015. See
generally Compl. After Fort Myer answered the Complaint,
the Court entered a scheduling order to govern discovery in
this case on June 18, 2015. See generally Scheduling
Order, ECF No. 8. The parties engaged in mediation, but those
efforts were fruitless. See Order Referring Case to
Magistrate Judge for Mediation, ECF No. 10. Upon the
parties' request, the Court entered a schedule for
dispositive motions, with any dispositive motions to be filed
on or before August 1, 2016 and any oppositions to be filed
on or before August 30, 2016. See Min. Order (June
August 1, 2016, Fort Myer separately filed a motion to
dismiss and a motion for summary judgment. See
generally Def.'s Mot. Summ. J., ECF No. 20;
Def.'s Mot. Dismiss for Lack of Subject Matter
Jurisdiction (“Def.'s Mot. Dismiss”), ECF No.
21; see also Def.'s Mem. P. & A. Supp. Mot.
Dismiss (“Def.'s Mem. Supp. Mot. Dismiss”),
ECF No. 22; Def.'s Mem. P. & A. Supp. Mot. Summ. J.
(“Def.'s Mem. Supp. Mot. Summ. J.”), ECF No.
20. In its response to the motion for summary judgment, ACC
included a cross-motion for partial summary judgment. See
generally Pl.'s Opp'n & Cross-Mot. Summ.
Fort Myer filed a motion to strike the cross-motion, arguing
that the cross-motion was filed after the Court's
deadline for dispositive motions. See generally
Def.'s Mot. Strike Pl.'s Cross-Mot. Partial Summ. J.
(“Def.'s Mot. Strike”), ECF No. 27. The Court
now turns to those pending motions.
Court begins its analysis with Fort Myer's motion to
dismiss for lack of subject matter jurisdiction. For the
reasons set forth below, the Court will grant the motion to
dismiss, but permit ACC an opportunity to file a supplemental
complaint to cure any jurisdictional defect. The Court next
considers Fort Myer's and ACC's motions for summary
judgment in turn. The Court finds that genuine questions of
material fact preclude granting summary judgment to either