United States District Court, District of Columbia
C.I. ENERGIA SOLAR S.A. E.S. WINDOWS, Plaintiff,
RANGER SPECIALIZED GLASS, et al., Defendants.
Richard J. Leon, United States District Judge
C.I. Energia Solar S.A. E.S. Windows (hereinafter
"CIES"), a windows manufacturer and distributer
based out of Barranquilla, Columbia,  seeks to recover an unpaid
balance of $1, 161, 424.35 for materials supplied to the
construction of the Art Place at Fort Totten Project in
Washington, D.C. (hereinafter "Project"). Plaintiff
brought this action in D.C. Superior Court against Ranger
East Coast ("Ranger East")-the subcontractor
responsible for providing window systems for the Project,
Ranger Specialized Glass, Inc. ("Ranger Specialized
Glass")-an affiliate of Ranger East, and others,
alleging breach of contract, unjust enrichment, payment on
bond, and violation of the D.C. Prompt Payment Act, D.C. Code
Ann., § 27-131, et seq. Defendants removed the
case on diversity grounds on March 5, 2018. Currently before
the Court is Defendant Ranger Specialized Glass's Motion
to Dismiss ("Def's Mot.*') [Dkt. # 12], for
failure to state a claim under Fed.R.Civ.P. 12(b)(6). Upon
review of the evidence in the record and the relevant
casleaw, defendant's motion to dismiss [Dkt. # 12], for
the following reasons, will be
case arises from the construction of the Art Place at Fort
Totten Project located in northeast Washington, D.C.
(hereinafter "Project"). Complaint (Compl.) [Dkt. #
1-1] ¶ 12. Ranger East signed on as a subcontractor in
November of 2014, agreeing to provide the windows systems for
the Project, among other things. Id. ¶ 14.
Meanwhile, Ranger Specialized Glass executed a payment bond
with Berkley Insurance Company covering all subcontractors
who supplied labor and materials within the scope of that
subcontract. Id. ¶ 15; see also id.,
Ex. 2 ("Payment Bond").
October of 2015, CIES sent a quote to Ranger Specialized
Glass's address in Houston, TX, offering to provide
windows and doors for the entire Project. Id. ¶
16; see also id., Ex. 3 ("Quotation").
Later that month, Ranger East executed a purchase order with
CIES in the amount of $4, 430, 291, 000. Id. ¶
17; see also id., Ex. 4 ("Purchase
Order"), at 1-2. Of that amount, CIES alleges that it is
still owed $1, 161, 424.35 for work performed on the project
between September 5, 2016 and July 29, 2017. W.¶ 19-21.
CIES sent Notice of Payment Bond Claim to Berkley trying to
recover this outstanding amount on August 10, 2017,
Id. ¶ 23, but no payment has been remitted to
date. Id. ¶ 22, 28.
Ranger Specialized Glass seeks to dismiss the claims against
it for breach of contract, unjust enrichment, payment on
bond, and violation of the D.C. Prompt Payment Act, on the
grounds that plaintiff only has a contract with Ranger East,
and has therefore failed to state a claim against Ranger
Specialized Glass under Rule 12(b)(6). See generally
Def's Mot. [Dkt. #12]. Defendant also argues that the
payment on bond and unjust enrichment claims are
inappropriate as to Ranger Specialized Glass. See
Id. Plaintiff, in turn, argues that there are grounds
for piercing the corporate veil and treating Ranger
Specialized Glass and Ranger East as the same company, and
that its claims for payment on bond and unjust enrichment are
also appropriate vis-a-vis Ranger Specialized Glass.
See Plaintiffs Opp. to Motion to Dismiss
("PL's Opp.") [Dkt. # 15], at 2. For the
following reasons, defendant's motion to dismiss [Dkt. #
12] will be GRANTED.
to Federal Rule of Civil Procedure 12(b)(6), a court may
dismiss a complaint for failure to state a claim if it
appears, assuming the alleged facts to be true and drawing
all inferences in plaintiffs favor, that the "plaintiff
can prove no set of facts in support of [its] claim that
would entitle [it] to relief." Harris v.
Ladner, 127 F.3d 1121, 1123 (D.C. Cir. 1997) (internal
citation omitted). In evaluating a motion to dismiss, the
Court may consider "the facts alleged in the complaint
[and] any documents attached to or incorporated in the
complaint...." See Plesha v. Ferguson, 725
F.Supp.2d 106, 110 (D.D.C. 2010) (citing EEOC v. St.
Francis Xavier Parochial Sck, 117 F.3d 621, 624 (D.C.
Cir. 1997)). Here, plaintiff has attached to the complaint
documents which are relevant to the motion to dismiss,
including the Payment Bond, Quotation, and Purchase Order.
See Compl., Exs. 2, 3, and 4. I may consider these
"without converting the motion [to dismiss] to one for
summary judgment." Plesha, 725 F.Supp.2d at
110-11 (internal citation omitted).
Breach of Contract
Plaintiff maintains that it has a contract with Ranger
Specialized Glass. As evidence, plaintiff points to the fact
that Quotation for the window systems was sent to
"Ranger Glass" at Ranger's address in Houston.
TX, not Ranger East's address in Virginia. PL's Opp.
at 4 (citing Compl., Ex. 3). Plaintiff also alleges that
"Ranger" uses both names interchangeably, PL's
Opp. at 2, 5, and that only Ranger Specialized Glass is
registered to do business in DC, whereas Ranger East is not.
Id. at 2 (citing Compl. at 3-4). Defendant Ranger
Specialized Glass moves to dismiss on the grounds that it
cannot be held liable for any contractual violations under
Counts III or V because (1) it had no contractual
relationship with CIES, and (2) it is not an alter ego of
affiliate Ranger East. See Ranger Specialized
Glass's Reply in Support of Motion to Dismiss
("Def's Reply"), at 2-3. For the following
reasons, I agree.
there is no direct contract with Ranger Specialized Glass.
While it is true that plaintiffs Quotation for materials was
sent to Ranger Specialized Glass's address in Houston,
TX, parties agree that the Purchase Order was placed by
Ranger East. Id.; PL's Opp. at 4. The Quotation
price of $4, 445, 495.00 notably differs from the final
amount of $4, 430, 291.00, so at the very least it appears
that the Purchase Order represented a counteroffer that CIES
apparently accepted. Compare, Compl., Ex. 3,
with Compl., Ex. 4.Without a direct contract,
plaintiff must pierce the corporate veil to bring any claim
against Ranger Specialized Glass.
D.C. law, "[g]enerally, the corporate entity will be
respected, but a party may be permitted to pierce the
corporate veil upon proof, that there is (1) unity of
ownership and interest, and (2) use of the corporate form to
perpetrate fraud or wrong, or other considerations of justice
and equity justify it." Estate of Raleigh v.
Mitchell, 947 A.2d 464, 470 (D.C. 2008) (internal
citation omitted). Although no single factor controls, courts
generally inquire, "whether corporate formalities have
been disregarded, (2) whether corporate funds and assets have
been extensively intermingled with personal assets, (3)
inadequate initial capitalization, and (4) fraudulent use of
the corporation to protect personal business from the claims
of creditors." Id. at 470-71. Ultimately,
"[v]eil- piercing is an extraordinary procedure that is
not to be used lightly," and the case must
"present the extreme circumstances that call for
disregard of the corporate form.'' Schattnerv.
Girard, Inc., 668 F.2d 1366, 1370 (D.C. Cir. 1981).
veil-piercing argument here boils down to one allegation:
defendants Ranger Specialized Glass and Ranger East
"utilized both names at different times." PL's
Opp. at 5. Unfortunately for plaintiff, that mere allegation
is insufficient to pierce the veil. See Ivanov v. Sunset
Pools Mgmt, Inc., 524 F.Supp.2d 13, 15 (D.D.C. 2007)
(granting motion to dismiss where plaintiff failed to raise
"any specific allegations of [defendant's] misuse of
the corporate form").
in this district "ha[ve] specifically held that the
joint use of trademarks and a common marketing image, along
with shared executives between two companies, [are] 'not
sufficient to establish' alter ego status."
Gonzalez v. Internacional De Elevadores, S.A., 891
A.2d 227, 238 (D.C. 2006) (quoting Diamond Chemical Co.
v. Atofina Chemicals, Inc.,268 F.Supp.2d 1, 9 (D.D.C.
2003)). Beyond corporate branding, plaintiff has not alleged
that Ranger Specialized Glass and Ranger East used the
corporate form "to perpetuate a fraud or wrong" or
that "other considerations of justice and equity"
justify piercing the veil. Estate of Raleigh, 947
A.2d at 470. Indeed, there is no inequity here, as plaintiff
will still be able to recover for all of its claims against
other defendants-including Ranger East-even if its claims
against Ranger Specialized Glass are dismissed. As a
F.Supp.2d 15, 23 n. 6 (D.D.C. 2000). ...