MEMORANDUM AND ORDER
TREVOR
N. MCFADDEN United States District Judge
Vantage
Commodities Financial Services I, LLC (“Vantage”)
alleged that reinsurance companies breached their contract
with Vantage to reimburse its losses under a reinsurance
arrangement. The reinsurance companies moved to dismiss, and
the Court granted that motion, finding that Vantage failed to
establish the Court's jurisdiction over them. See
Vantage Commodities Fin. Servs. I, LLC v. Assured Risk
Transfer PCC, LLC, et al., 321 F.Supp.3d 49, 60 (D.D.C.
2018). Vantage now seeks leave to file an amended complaint
and to perfect service. Because some-but not all- of
Vantage's claims in its Proposed Amended Complaint would
survive a motion to dismiss, the Court will grant in part and
deny in part Vantage's motion.
I.
BACKGROUND
Assured
Risk Transfer PCC, LLC (“ART”) sold Vantage a
credit insurance policy, covering Vantage's losses up to
$22 million after Vantage extended $44 million of credit to
an energy company. Id. at 54. Then Willis Limited,
Willis Re Inc., and Willis Towers Watson Management
(Vermont), Ltd. (“Willis Defendants”) helped ART
reinsure 90% of its own liability by brokering reinsurance
contracts with the Reinsurer Defendants. Id.
But
when the energy company defaulted, ART refused to pay Vantage
based on Vantage's purported failure to comply with a
collateralization requirement in the credit insurance policy.
Id. Vantage eventually won a multi-million dollar
arbitration award against ART. Id. The arbitration
award represented the proceeds of the credit insurance
policy, but ART says that it cannot pay by itself.
Id. The Reinsurer Defendants have paid nothing
because they claimed that they did not receive prompt notice
of Vantage's losses. Id. So Vantage sued ART and
the Reinsurer Defendants.[1] Id. It also sued the Willis
Defendants, which Vantage claims offered ART their services
in captive insurance management and as reinsurance brokers
and intermediaries. Id.
This
Court granted the Reinsurer Defendants' Motions to
Dismiss because it determined that Vantage failed to
establish the Court's jurisdiction over the Reinsurer
Defendants. Id. The Court then ordered Vantage to
show cause why its Complaint should not be dismissed as to
ART. August 6, 2018 Order, ECF 72.
Vantage
filed a response to the show-cause order, see Resp.
to Order to Show Cause (“Resp.”), ECF 74, and a
motion for leave to amend its Complaint, see Mot. to
Amend/Correct, ECF 75. It now seeks to amend its Complaint
and perfect service of process on the Reinsurer Defendants.
See Mem. in Supp. of Pl.'s Mot. 1, ECF 75-24
(“Pl.'s Mem.”). The Proposed Amended
Complaint again asserts a breach of contract claim against
the Reinsurer Defendants and requests a declaratory judgment
establishing their contractual obligations. Id. at
2. It also adds three alternative claims against the
Reinsurer Defendants based on the same conduct.[2] Id. The
Reinsurer Defendants oppose Vantage's motion.
See Defendants Hannover Rückversicherung AG,
Partner Reinsurance Europe PLC, and Caisse Centrale de
Reassurance's Mem. in Opp'n, ECF 76 (“Hannover
Opp'n”); Reinsurers' Opp'n to Pl.'s
Mot., ECF 77 (“Reinsurers Opp'n”).
II.
LEGAL STANDARDS
A
plaintiff can amend its complaint “once as a matter of
course within 21 days” of service. Fed.R.Civ.P.
15(a)(1). In “all other cases, ” it may amend
“only with the opposing party's written consent or
the court's leave.” Fed.R.Civ.P. 15(a)(2). The
“grant or denial of an opportunity to amend is within
the discretion” of the Court. Foman v. Davis,
371 U.S. 178, 182 (1962). “Courts may deny a motion to
amend a complaint as futile . . . if the proposed claim would
not survive a motion to dismiss.” James Madison
Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir.
1996).
To
survive a motion to dismiss for failure to state a claim
under Rule 12(b)(6), a complaint must contain sufficient
factual allegations that, if true, “state a claim to
relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plausibility
requires that a complaint raise “more than a sheer
possibility that a defendant has acted unlawfully.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Pleading facts that are “merely consistent with”
a defendant's liability “stops short of the line
between possibility and plausibility.”
Twombly, 550 U.S. at 545-46. Thus, a court does not
accept the truth of legal conclusions or “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements.” Iqbal, 556 U.S.
at 678. Still, courts must construe a complaint in the light
most favorable to the plaintiff and accept as true all
reasonable factual inferences drawn from well-pleaded
allegations. See In re United Mine Workers of Am. Emp.
Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.
1994).
III.
ANALYSIS
In the
Proposed Amended Complaint, Vantage claims again that the
Reinsurer Defendants breached a contract with Vantage. Prop.
Am. Compl. ¶¶ 161-72. In the alternative, it
asserts (1) an implied-in-fact contract claim; (2) a
promissory estoppel claim; and (3) an unjust enrichment
claim. Id. at ¶¶ 198-215.
A.
Vantage Has Not Stated a Claim for Breach of
Contract
In its
original Complaint, Vantage alleged that the Reinsurer
Defendants entered into “valid and binding contractual
agreements” to pay Vantage “on the same terms,
conditions, and settlements as the” Credit Insurance
Policy. Compl. ¶ 152, ECF 1. Now, Vantage seeks to
clarify that the Reinsurer Defendants created this
contractual relationship when ART and the Willis
Defendants-as agents for the Reinsurer Defendants-gave
Vantage the Credit Insurance Binders, which “provided
confirmation that the reinsurance that backed up the Credit
Insurance Policy.” Prop. Am. Compl. ¶¶ 44;
65.
“For
an enforceable agreement to exist there must be both (1)
agreement as to all material terms and (2) intention of the
parties to be bound.” Mawakana v. Bd. of Trustees
of Univ. of D.C., 113 F.Supp.3d 340, 346 (D.D.C. 2015)
(quoting Cambridge Holdings Grp., Inc. v. Fed. Ins.
Co., 357 F.Supp.2d 89, 94 (D.D.C. 2004)). And “the
plain and unambiguous meaning of a written agreement is
controlling, in the absence of some clear evidence indicating
a contrary intention.” Vogel v. Tenneco Oil
Co., 465 F.2d 563, 565 (D.C. Cir. 1972).
Even if
ART and the Willis Defendants were agents for the Reinsurer
Defendants, Vantage fails to allege facts showing that the
Credit Insurance Binders created a contractual relationship.
The Binders disclose the existence of the reinsurance policy
and its terms, but that description alone does not create a
contractual relationship with the Reinsurer Defendants. The
Binders do not include an offer but rather merely a
description. As before, “the allegations in the
Complaint do not overcome the general rule that a reinsurer
does not have a direct contractual ...