MEMORANDUM OPINION AND ORDER
AMIT
P. MEHTA UNITED STATES DISTRICT JUDGE.
I.
INTRODUCTION
Dissatisfied
with Defendant Clark Nexsen, Inc.'s (“Clark
Nexsen” or “Defendant”) services related to
the construction of a $10 million tennis and education
facility in Southeast Washington, D.C., Plaintiff Washington
Tennis & Education Foundation, Inc. (“WTEF”
or “Plaintiff”) brought this lawsuit against
Clark Nexsen, asserting two claims: (1) breach of the
parties' contract, known as the “Architect
Agreement, ” and (2) breach of Clark Nexsen's
common law duty of professional care. WTEF also sought to add
as co-plaintiff Washington Tennis & Education Foundation
East, Inc. (“WTEF East”), a related but separate
entity to whom Plaintiff assigned “all of [its] right,
title and interest” in the Architect Agreement in order
to obtain certain federal tax credits. In response to
Plaintiff's two-count Complaint, Defendant counterclaimed
for breach of contract.
This
court initially granted Clark Nexsen's Motion for Summary
Judgment and denied WTEF's Motion to Add WTEF East as a
co-plaintiff. The court concluded that, by virtue of
WTEF's assignment of “all of [its] right, title,
and interest” in the Architect Agreement to WTEF East,
WTEF lacked standing to sue Defendant for claims arising from
the Agreement. The court therefore dismissed Plaintiff's
claims against Defendant and rejected WTEF's bid to add
WTEF East to the suit to cure the standing defect of its
original claims. The matter proceeded solely on
Defendant's counterclaim for breach of contract.
Plaintiff
now moves for reconsideration of the dismissal of its claims
or, in the alternative, for certification of an interlocutory
appeal. WTEF asserts that the court incorrectly concluded
that it assigned its breach of contract and professional
negligence claims to WTEF East and further erred by
prohibiting WTEF East from joining the suit. Upon
reconsideration, the court finds no error in its conclusion
that WTEF lacks standing to bring a breach of contract claim
against Defendant by virtue of assigning its rights and
interests in the Architect Agreement to WTEF East. The court
likewise upholds its ruling dismissing Plaintiff's tort
claim, but does so on a different ground: the professional
malpractice claim, whether advanced by WTEF or WTEF East, is
barred by the statute of limitations. In view of that ruling,
the court affirms its decision to disallow WTEF East from
joining this action because adding WTEF East would be futile.
The court also rejects WTEF's request to certify this
matter for interlocutory review.
Accordingly,
the court denies Plaintiff's Motion for Reconsideration,
or in the Alternative, for Certification of an Interlocutory
Appeal.
II.
BACKGROUND
The
court incorporates the relevant facts laid out in its
Memorandum Opinion and Order, dated September 13, 2017, and
recites here only the information necessary to resolve the
Motion for Reconsideration. See generally Mem. Op.
& Order, ECF No. 58 [hereinafter Sept. 13 Order].
A.
Factual Background
In
brief, Plaintiff WTEF, a nonprofit organization, and
Defendant Clark Nexsen, an architecture and engineering firm,
[1]
entered into what the parties refer to as the
“Architect Agreement” on October 6, 2010.
Pursuant to that contract, Clark Nexsen agreed to provide
architectural design and construction oversight services for
Plaintiff's new indoor tennis facility, known as the East
Capitol Campus. See Def.'s Mot. for Summ. J.,
ECF No. 46 [hereinafter Def.'s Summ. J. Mot.], Ex. N, ECF
No. 47 [hereinafter Architect Agreement]. The Architect
Agreement outlined the scope of Clark Nexsen's design
responsibilities, setting out the following sequential phases
of design: the Schematic Design Phase, the Design Development
Phase, and the Construction Document Phase. See
Architect Agreement, Art. 3, §§ 3.2-3.4. According
to the Agreement, each new phase of design began “based
on Owner's [i.e., WTEF's] approval” of the
prior phase of design. Id. §§ 3.2.5,
3.3.1, 3.4.1. The Agreement further set forth the scope of
Clark Nexsen's bidding phase and construction phase
responsibilities. Id. §§ 3.5-3.6.
In
December 2011, Plaintiff formed a new nonprofit entity, WTEF
East, as a wholly-controlled subsidiary of WTEF. Sept. 13
Order at 3. The express purpose of WTEF East's formation
was to take advantage of certain tax credits to finance the
East Capitol Campus project. Id. WTEF transferred
all property rights in the East Capitol Campus to WTEF East
to secure the tax benefits. Id. at 3-4. This
restructuring also caused WTEF, with the consent of Clark
Nexsen, to assign “all of [its] right, title, and
interest” in the Architect Agreement to WTEF East.
See Def.'s Summ. J. Mot., Ex. O, ECF No. 46-18
[hereinafter Assignment Agreement]. The assignment became
effective on December 30, 2011, see id., as did the
Sublease Agreement by which WTEF East subleased the East
Capitol Campus facility to WTEF, see Def.'s
Reply in Supp. of Def.'s Mot. for Summ. J., ECF No. 52
[hereinafter Def.'s Summ. J. Reply], Ex. AG, ECF No.
52-2, at 18 (Sublease Agreement).
On
March 1, 2012, the D.C. Department of Consumer and Regulatory
Affairs (“DCRA”) issued a building permit to WTEF
East, and construction of the East Capitol Campus began
shortly thereafter. See Def.'s Summ. J. Mot. at
34; id., Ex. Z, ECF No. 46-29. Clark Nexsen then
issued a Certificate of Substantial Completion on November
13, 2012, certifying that the work performed under the
Architect Agreement was sufficiently complete so as to allow
occupancy or use of the facility. See Def.'s
Summ. J. Mot., Ex. AA, ECF No. 46-30. WTEF began conducting
its programming in the East Capitol Campus facility in
January 2013.
Dealings
between the parties went awry not long after, caused by a
host of perceived design and construction defects. By letter
dated July 14, 2014, Richard L. Aguglia, President of WTEF
East, submitted a request for mediation to Clark Nexsen
pursuant to section 8.2 of the Architect Agreement.
See Def.'s Summ. J. Mot., Ex. V, ECF No. 46-25
[hereinafter Mediation Demand]. When mediation proved
unsuccessful, WTEF, and WTEF alone, filed this action on
November 10, 2015. See Notice of Removal, ECF No. 1,
Compl., ECF No. 1-3, ¶ 9.
B.
Procedural History
Plaintiff
advances two theories of liability in its Complaint. In Count
I, WTEF alleges that Defendant breached the Architect
Agreement through errors and defects in its design of the
East Capitol Campus and its oversight of the construction
process. Id. ¶¶ 11-13. In Count II, WTEF
alleges that Defendant committed professional malpractice by
failing to perform its work with the skill and care
ordinarily provided by architects in this locality and by
violating industry standards. Id. ¶¶
14-17. In its Complaint, WTEF identifies eleven
“problems” with the East Capitol Campus facility
“for which Clark Nexsen bears sole responsibility, or
shares responsibility with [the general contractor, HITT],
” id. ¶ 9, and for which “WTEF
calculates the cost of remediating” to be in excess of
$750, 000, id. ¶ 10.
In
summary, as alleged by Plaintiff, the defects are as follows:
(a) Gutters and Downspouts: The roof drainage on the
East Capitol Campus is inadequate due to Clark Nexsen's
design errors. The gutters regularly overflow when it rains,
causing water to flood into the facility, and one of the
downspouts is not tied into the underground storm drainage
system. The gutters and downspouts show extraordinarily rapid
deterioration.
(b) HVAC System: Clark Nexsen's subcontractor
designed the HVAC system for the East Capitol Campus and
predicted the monthly utility bills WTEF would incur. Neither
the subcontractor nor Clark Nexsen, however, advised WTEF
that the predicted utility costs could be achieved only with
a mechanical building management system. WTEF has incurred
utility bills that exceed those predicted as a result. Major
components of the HVAC system are failing and show
extraordinarily rapid deterioration.
(c) Improper Storefront Location: The
“storefront wall” near the front end of the
facility was not built according to the Clark Nexsen-issued
design documents, and does not align with the exterior wall
of the facility. Adrian Lazaro, a Clark Nexsen architect,
learned of the improper location of the storefront wall and
yet issued a Certificate of Substantial Completion without
giving notice to WTEF.
(d) Condensate Line: The condensate line exiting
from the facility's mechanical room drains onto an
exterior sidewalk, creating a slip-and-fall hazard.
(e) Exterior Wall Detail: The Clark Nexsen-issued
design documents erroneously specified the type of block to
be used in the exterior walls of the facility, necessitating
the issuance of a change order.
(f) Exterior Columns: Despite repeated painting,
WTEF has experienced recurring improper venting and peeling
paint at the base of the exterior columns at the front of the
facility, indicating a design error by Clark Nexsen.
(g) Buckling Interior Floors: The vinyl tile
flooring buckles in a straight line across the hallway near
Room 128 due to Clark Nexsen's failure to specify
expansion joints in the floor to match expansion joints in
the underlying slab.
(h) Indoor Tennis Court Light Fixture Guards: Clark
Nexsen's original design for indoor tennis court light
fixtures called for exposed light bulbs. Plaintiff incurred
$8, 000 in costs to install guards to ensure the safety of
players below.
(i) Pilaster Adjustments: Clark Nexsen's
original design for the pilaster had incorrect dimensions,
requiring additional steel reinforcement at a cost of $2,
295.
(j) Added Column Footing: Clark Nexsen's
original design for the support columns was deficient,
leading to a cost of $1, 400 for additional structural
support.
(k) Storm Pipe from Tennis Court Drains: Clark
Nexsen's original design erroneously called for the
tennis court drains to be piped into the front bioretention
drain. The drains instead should have been connected to the
sewer. The cost of ...