Relman, Dane & Colfax PLLC v. Fair Housing Council of San Fernando Valley

          REPORT AND RECOMMENDATION

          ROBIN M. MERIWEATHER, UNITED STATES MAGISTRATE JUDGE.

         This case arises from a contract dispute between Relman, Dane & Colfax PLLC (the “Relman Firm” or “Relman”), a civil rights law firm located in Washington D.C. (“D.C.” or “the District”), and its former clients, Defendant Fair Housing Council of San Fernando Valley (“FHC”) and Defendant Mei Ling (“Ms. Ling, ” and together with FHC, “Defendants”). The Relman Firm contends that Defendants terminated and voided the contracts pursuant to which they had retained the Relman Firm as counsel in a matter pending in a federal district court in California, thereby reneging on their contractual obligation to pay the Relman Firm a contingency fee equaling a percentage of Defendants' recovery. See generally Compl., ECF No. 1. The Relman Firm contends that Defendants' actions constitute an anticipatory breach of their respective contracts, and seeks a declaratory judgment and other relief. See Id. at 15^[1] (prayer for relief).

         Defendants each separately filed Motions to Dismiss, which are pending before the Court.^[2] See Mot. to Dismiss (“FHC MTD”), ECF No. 10; Mot. to Dismiss (“Ling MTD”), ECF No. 22. Both Defendants contend that this Court lacks subject matter jurisdiction because the claim is unripe for review. See FHC MTD at 23-32; Ling MTD 15-18. Defendants also both assert that they lacked sufficient contacts with D.C. for this Court to assert personal jurisdiction over them. See FHC MTD at 32-41, Ling MTD at 18-24. Defendants alternatively assert that venue is improper, and ask the Court to transfer the case to a proper venue in the Central District of California (CACD), where both Defendants reside, abstain from hearing the Declaratory Judgment Act claims, or stay the case. See FHC MTD at 29-32, 41-49; Ling MTD at 24-30. Ms. Ling also seeks dismissal under Rule 12(b)(6) for failure to state a claim, asserting that the Relman Firm failed to assert cognizable damages for its anticipatory breach claim. See Ling MTD at 30-32.

         BACKGROUND

         I. FACTUAL BACKGROUND

         A. Initial Meeting and Retention

         Plaintiff Relman Firm is a civil rights law firm based in Washington D.C. with a practice group dedicated to litigating fair housing matters. See Compl. ¶ 20. Defendant FHC is a three-employee non-profit that operates in Panorama City, CA and investigates housing discrimination complaints and finds fair housing solutions for disabled and low-income individuals in the Los Angeles area. See Kinlaw Decl. (“Kinlaw 1st Decl.”). ¶ 2, ECF No. 10-2.

         On February 11, 2010, Michael Allen, a Relman partner based in Washington D.C., travelled to an annual Fair Housing Laws and Litigation Conference (“2010 Fair Housing Conference”) in San Diego, CA to make a presentation about a successful False Claims Act (“FCA”) matter that the Relman Firm had initiated. See Allen Decl. (“Allen 1st Decl.”) ¶ 6, ECF No. 14-1. Defendant FHC's Executive Director, Sharon Kinlaw, was one of the principal organizers of the conference. See Id. During the conference, Mr. Allen met Ms. Kinlaw and Ms. Ling and discussed potential fair housing and disability rights violations and the nature of the Relman Firm's work. See Id. ¶ 9. The parties dispute who solicited whom at the conference. For several months after the conference, the parties communicated through telephone, email, and mail regarding investigations into potential violations of fair housing law by Los Angeles and its Community Redevelopment Agency. See Kinlaw 1st Decl. ¶¶ 8-10; Allen 1st Decl. ¶ 15.

         Eventually, via mail and telephone, the parties discussed forming an attorney-client relationship to litigate a FCA lawsuit. See Allen 1st Decl. ¶¶ 19-21, Kinlaw Decl. 10. On December 8, 2010, FHC and Ms. Ling retained the Relman Firm by signing separate, but identical retainer agreements (collectively, the “Agreements”). See Compl. ¶ 23. The Relman Firm mailed the Agreements to the parties, and neither FHC nor Ms. Ling traveled to the District to execute the Agreements. See Allen 1st Decl. ¶¶ 21, 25-26; Kinlaw 1st Decl. ¶ 13; Ling Decl. ¶ 15.

         The Agreements state that the Relman Firm “is entitled to its reasonable attorney's fees” and certain costs, “[i]n the event relief is obtained.” FHC Retainer Agreement 2, ECF 10-3; Ling Retainer Agreement at 2. If the litigation is resolved by settlement or an offer of judgment that does not separately address the provision of fees, the Agreements entitle the Relman Firm to one-third of a monetary award, or its actual fees and costs, whichever is greater. See Id. If the litigation is resolved by a summary judgment ruling or a trial at which FHC or Ms. Ling prevails, the Relman Firm is entitled to one-third of the monetary award, plus costs, or the court's award of fees and costs, whichever is greater. See Id. If FHC or Ms. Ling does not prevail in the litigation, the clients are not responsible for the Relman Firm's fees, and are responsible only for costs. See Id. The Agreements define reimbursable costs to include “duplicating costs, telephone charges, postage, travel, computer research, filing fees, deposition costs, and the like.” See Id. at 3.

         B. The Relman Firm's Representation of FHC and Ms. Ling

         Upon being hired, the Relman Firm investigated the City of Los Angeles's and a California agency's alleged failure to comply with Section 504 of the Rehabilitation Act and the Fair Housing Act. See Compl. ¶ 29. The Relman Firm memorialized its investigation in a disclosure statement to the U.S. Department of Justice on January 28, 2011. See Id. ¶ 30. Subsequently, the Relman Firm filed a FCA suit (“the FCA Litigation”) on behalf of the Defendants on February 1, 2011 in the CACD. Id. ¶ 31. Four Relman attorneys - two of whom were not barred in Washington D.C. - represented the Defendants and entered their appearances in the FCA Litigation. See FHC MTD at 11 n.1, 13; id., Ex. 3 (ECF Docket, No. 11-cv-00974 (CACD) (“FCA CACD Docket”). The case remained under seal for more than six years, but the Relman Firm regularly consulted with government counsel regarding legal analysis and factual evidence including architectural site surveys, expert reports, and deposition transcripts. See Compl. ¶¶ 32-33. During that six-year period, the Relman Firm developed the evidence and legal theories to support the claims against Los Angeles and the California agency and prepared to litigate the matter if DOJ declined to intervene in the case. See Id. ¶ 5.

         C. FHC's and Ms. Ling's Termination of the Relman Firm

         On December 18, 2016, Ms. Kinlaw terminated the Relman Firm as counsel for FHC in the FCA Litigation via email and accused the Relman Firm of unethical conduct. See Compl. ¶ 35; Pl.'s Opp'n to FHC, Ex. E (FHC Termination Email), ECF No. 14-6. Later, FHC's lawyers emailed the Relman Firm's lawyers to void FHC's Agreement with the Relman Firm. See Compl. ¶ 36; Pl.'s Opp'n to FHC, Ex. F (FHC Void Letter), ECF No. 14-7.

         Ms. Ling also terminated the Relman Firm via email and subsequently mailed a letter to void the Agreement. See id., Ex. D (Dec. 19, 2016 Email from Mei Ling), ECF No. 14-5; id., Ex. G (April 30, 2018 Letter from Mei Ling's Counsel “Voiding” Contract), ECF No. 14-8. Ms. Ling contended that her termination of the relationship with the Relman Firm terminated “any contingency agreement with Relman, Dane and Colfax.” Compl. ¶ 48. In a filing in the FCA Litigation, Ms. Ling asserted that the Relman Firm had “forfeited any fee to which it may have been entitled by breaching its fiduciary duty to Ms. Ling.” Id. ¶ 9.

         D. The Government's Intervention in the FCA Litigation

         In May 2017, the federal government intervened in the FCA Litigation. See Id. ¶¶ 38- 39. The Relman Firm contends that the evidence it uncovered factored into the government's decision to intervene. See Id. ¶¶ 39-41. Once the government intervened and took control over the litigation, little work remained for the Relman Firm to perform. See Id. ¶ 41 (citing Boese, John T., The Department of Justice's Role, in Civil False Claims and Qui Tam Actions § 4.05). In the FCA Litigation, the government seeks damages exceeding $2 billion, and the relators (FHC and Ms. Ling) would be entitled to 15-25% of the proceeds in the action. See Compl. ¶ 44 (citing 31 U.S.C. § 3730(d)(1)).

         II. PROCEDURAL HISTORY

         The Relman Firm filed its Complaint in this Court on March 1, 2018. See id. The complaint seeks to enforce the Agreements. See Id. ¶ 1. Specifically, the Relman Firm alleges that Defendants' repudiation of their relationship with the Relman Firm while the FCA Litigation remained pending constituted an anticipatory breach of the Agreements, thereby depriving the firm of the legal fees due under the Agreements' contingency fee arrangement. See Id. ¶¶ 67-68. The complaint seeks a declaratory judgment that Defendants have anticipatorily breached their contract with the Relman Firm and that Defendants' “payment obligations under the retainer agreements with the Relman Firm remain in full force and effect.” Id. ¶ 11.

         FHC filed a Motion to Dismiss on April 10, 2018. See FHC MTD. On May 9, 2018, District Judge Trevor N. McFadden referred this matter to Magistrate Judge Robin M. Meriweather for full case management up to but excluding trial. See 05/09/2018 Min. Order. Subsequently, Ms. Ling filed a Motion to Dismiss on June 26, 2018. See Ling MTD.

         On June 20, 2018, FHC filed a notice related to a jurisdictional challenge to “mandatory fee arbitration proceedings” between FHC and the Relman Firm before the Los Angeles Bar Association Dispute Resolution Services, Inc. Fee Arbitration Program. See Notice of Related Ruling, ECF No. 21. The arbitrator's June 8, 2018 ruling overruled the Relman Firm's jurisdictional challenges, finding that the arbitration program had jurisdiction to hear the matter. See id., Ex. A (Ruling by Los Angeles Co. Bar Ass'n) 4-7, ECF No. 21-1.

         The FCA Litigation continues to be litigated in the Central District of California. See generally Docket, United States v. City of Los Angeles, No. 2:11-cv-00974-PSG-JC (CACD). On July 25, 2019, the Relman Firm filed a supplemental notice advising the Court that the City of Los Angeles had unsuccessfully moved to dismiss the Government's amended complaint, and that the Community Redevelopment Agency of the City of Los Angeles (“CRACLA”), a defendant in the FCA Litigation, had reached an agreement to settle with the Government which was being finalized. See Pl.'s Not. Supp. Auth. at 2; United States v. City of Los Angeles, No. 2:11-cv-00974, 2019 WL 3213581, *3-4 (C.D. Cal. July 15, 2019). In response, FHC advised the Court that Ms. Ling did not join the settlement with CRACLA and has challenged the proposed settlement. See Def. FHC's Resp. Supp. Auth. ¶ 4.

         LEGAL STANDARD

         A. Subject Matter Jurisdiction - Rule 12(b)(1)

         Courts review challenges to the ripeness of a case under Federal Rule of Civil Procedure 12(b)(1), which requires courts to dismiss claims over which they lack subject-matter jurisdiction. See Sierra Club v. U.S. Dep't of Energy, 825 F.Supp.2d 142, 154 (D.D.C. 2011); see also Fed. R. Civ. P. 12(b)(1). The party invoking federal jurisdiction bears the burden of establishing by a preponderance of the evidence that the court has subject matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). “Because Rule 12(b)(1) concerns a court's ability to hear a particular claim, the court must scrutinize the plaintiff's allegations more closely . . . than it would under a motion to dismiss pursuant to Rule 12(b)(6).” Barry Farm Tenants v. D.C. Housing Auth., 311 F.Supp.3d 57, 63 (D.D.C. 2018). The Court may resolve a Rule 12(b)(1) motion based on the complaint, or, “where necessary, the court may consider the complaint supplemented by the undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Coalition for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir 2003); see also Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C .Cir. 1992) (noting that district courts may consider materials outside the pleadings when reviewing motions to dismiss for lack of jurisdiction). The Court must nonetheless “treat the complaint's factual allegations as true . . . and must grant plaintiff[s] 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) (internal citations omitted); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).

         B. Personal Jurisdiction - Rule 12(b)(2)

         Rule 12(b)(2) “authorizes a motion to dismiss based upon the traditional defense that the court lacks jurisdiction over the defendant's person, which raises a question as to whether the controversy or defendant has sufficient contact with the forum to give the court the right to exercise judicial power over defendant.” Wiggins v. Equifax Inc., 853 F.Supp. 500, 501 (D.D.C. 1994) (citation omitted); see also Fed. R. Civ. P. 12(b)(2).

         The plaintiff bears the burden of establishing personal jurisdiction over each defendant “by the preponderance of the evidence.” Shapiro, Lifschitz & Schram, P.C. v. Hazard, 90 F.Supp.2d 15, 20 (D.D.C. 2000); see also Crane v. N.Y. Zoological Soc'y, 894 F.2d 454, 455-56 (D.C. Cir. 1990). The plaintiff “must allege specific acts connecting the defendant with the forum.” Thompson Hine LLP v. Smoking Everywhere Inc., 840 F.Supp.2d 138, 141 (D.D.C. 2012) (citing Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001)). When reviewing a 12(b)(2) motion, the court may consider materials outside of the pleadings, including declarations and evidence produced during jurisdictional discovery. See Frost v. Catholic Univ. of Am., 960 F.Supp.2d 226, 231 (D.D.C. 2013); see also Artis v. Greenspan, 223 F.Supp.2d 149, 152 (D.D.C. 2002). Factual discrepancies should be resolved in favor of the plaintiff. See Crane, 894 F.2d at 455-56. However, the Court need not treat all of the plaintiff's jurisdictional allegations as true. See United States v. Philip Morris Inc., 116 F.Supp.2d 116, 120 n. 4 (D.D.C. 2000). “Instead, the court may receive and weigh affidavits and any other relevant matter to assist it in determining the jurisdictional facts.” In re Papst Licensing, 590 F.Supp.2d at 98 (internal quotation marks and citation omitted).

         C. Failure to State A Claim - Rule 12(b)(6)

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a plaintiff's complaint.” Herron v. Fannie Mae, 861 F.3d 160, 173 (D.C. Cir. 2017); see also Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). To survive such a motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Fed. R. Civ. P. 8(a)(2). A complaint states a facially plausible claim if the facts alleged “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “[L]abels and conclusions, ” or “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

         When reviewing a Rule 12(b)(6) motion, “the complaint is construed liberally in plaintiff's favor, and the Court should grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.'” Redding v. District of Columbia, 828 F.Supp.2d 272, 278 (D.D.C. 2011) (quoting Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)). The Court does not, however, accept “inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint.” Browning, 292 F.3d at 242 (quoting Kowal, 16 F.3d at 1275); see also Redding, 828 F.Supp.2d at 278. Further, the presumption of truth accorded to the complaint applies only to factual allegations, not legal conclusions. See Iqbal, 566 U.S. at 678 (“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”); see also Harris v. D.C. Water and Sewer Auth., 791 F.3d 65, 68 (D.C. Cir. 2015) (quoting Iqbal, 566 U.S. at 678). As part of its review, the Court may consider documents attached to the complaint and “matters of which we may take judicial notice.” Parks v. Giant of Md., LLC, 295 F.Supp.3d 5, 8 (D.D.C. 2018) (quoting EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)).

         DISCUSSION

         Both defendants contend that the complaint should be dismissed for lack of subject matter and personal jurisdiction. Defendants' challenge to the Court's subject matter jurisdiction concerns the ripeness of Relman's claims. See FHC MTD at 23-32; Ling MTD 15-18. Defendants base their challenge to the Court's personal jurisdiction on their assertion that they lack sufficient contact with the District to be subject to suit in this Court. See FHC MTD at 32- 41; Ling MTD at 18-24. As an alternative to dismissing the action for lack of subject matter jurisdiction, Defendants ask the Court to abstain from hearing, stay, or transfer the case to the Central District of California (CACD), where both Defendants reside. See FHC MTD at 29-32, 41-49; Ling MTD at 24-30. Ms. Ling also seeks dismissal under Rule 12(b)(6) for failure to state a claim, asserting that Relman failed to assert cognizable damages for its anticipatory breach claim. See Ling MTD at 30-32. The Court will analyze each argument in turn below.

         I. THE RELMAN FIRM'S CLAIMS ARE RIPE FOR ADJUDICATION

         Defendants contend that the Court should dismiss the complaint for lack of subject matter jurisdiction because the Relman Firm's claims are unripe. See FHC MTD at 14-20; Ling MTD 15-18. Defendants admit that they terminated their respective Agreements with the Relman Firm, but state that this suit is premature because the fees are contingent upon future events that have not occurred and may never occur, and thus the Relman Firm is not currently entitled to recover any fees or costs under the Agreements. See FHC MTD at 15-19; Ling MTD at 9-10, 17. The Relman Firm counters that its claims are ripe because Defendants have unequivocally expressed their intent to repudiate the Agreements, and that the parties' dispute regarding the enforceability of the Agreements presents a live and justiciable controversy. See Pl.'s Opp'n to FHC at 16-19; Pl.'s Opp'n to Ling at 16-19. In a supplemental filing, the Relman Firm further asserts that a pending settlement between FHC and one defendant in the FCA Litigation confirms the ripeness and non-speculative nature of the claims the Relman Firm has raised here. See Pl.'s Supp. Auth. at 1-2.

         “Ripeness is a justiciability doctrine . . . drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction . . .” Nat'l Park Hospitality Ass'n v. Dep't of the Interior, 538 U.S. 803, 807-08 (2003) (internal citations and quotation marks omitted). The constitutional component of ripeness requires that the party seeking judicial review demonstrate that there is “an injury in fact [that is] certainly impending.” Perry Capital LLC v. Mnuchin, 864 F.3d 591, 632 (D.C. Cir. 2017). Thus, a claim is “not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998) (citations omitted). “The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests . . . It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-241 (1937). In essence, “if a plaintiff's claim . . . depends on future events that may never come to pass, or that may not occur in the form forecasted, then the claim is unripe.” Devia v. Nuclear Regulatory Comm'n, 492 F.3d 421, 425 (D.C. Cir. 2007). The prudential aspect of ripeness requires courts to evaluate “(1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration.” Perry Capital LLC, 864 F.3d at 632; accord Kaufman v. Nielsen, 896 F.3d 475, 483 (D.C. Cir. 2018); Conservation Force v. Jewell, 733 F.3d 1200 (D.C. Cir. 2013).

         The fact that the Relman Firm seeks relief under an anticipatory breach of contract theory affects the application of the ripeness doctrine to this case. “[I]f a performing party unequivocally signifies its intent to breach a contract, the other party may seek damages immediately under the doctrine of anticipatory repudiation.” Jankins v. TDC Management Corp., 21 F.3d 436, 443 (D.C. Cir. 1994). Essentially, “anticipatory breach is ‘a doctrine of accelerated ripeness' because ‘it gives the plaintiff the option to have the law treat the promise to breach [or the act rendering performance impossible] as a breach itself.” Perry Capital, 864 F.3d at 632-33 (D.C. Cir. 2017) (citing Homeland Training Ctr., LLC v. Summit Point Auto. Research Ctr., 594 F.3d 285, 294 (4th Cir. 2010) (citing Franconia Assocs. v. U.S., 536 U.S. 129, 143 (2002)). See generally New York State Teamsters Conf. Pension & Retirement Fund, 591 F.2d 953, 957 (D.C. Cir. 1979) (“Under traditional doctrine, repudiation constitutes a breach of contract even though made in advance of the time performance is due.”). Thus, an anticipatory breach claim becomes prudentially ripe “immediately upon repudiation.” Perry Capital, 864 F.3d at 633.

         Defendants' motions ignore the accelerated ripeness of anticipatory breach claims, mistakenly presuming that the Relman Firm's claims would only ripen when fees are due, i.e. at the conclusion of the FCA Litigation if Defendants prevail and obtain monetary relief. To the contrary, the fact that the FCA Litigation remains pending, and no attorney's fees or costs are yet due, does not render the Relman Firm's anticipatory breach of contract claim unripe. Defendants' repudiation of the Agreement is the alleged breach, thereby providing the requisite tangible injury-in-fact. See Perry Capital, 864 F.3d at 632-33.

         FHC incorrectly asserts that the Relman Firm has abandoned its anticipatory breach claim and that the Court must therefore evaluate ripeness solely by reference to the Relman Firm's request for declaratory relief in Count I of the complaint, which seeks relief under the Declaratory Judgment Act. See FHC MTD at 28-29. Although the Relman Firm focuses on its claims for declaratory relief in its response to FHC's ripeness arguments, the complaint expressly raises an anticipatory breach of contract claim and alleges that FHC and Ms. Ling have repudiated the Agreement. See Compl. ¶¶ 66-68. The Relman Firm invokes those claims in its opposition to the motion to dismiss, and thus cannot be said to have abandoned that theory of relief. See Pl.'s Opp'n to FHC at 17-19; Opp'n to Ling at 22-23.

         The parties' dispute about the continued enforceability of the Agreements, and the effect of Defendants' alleged repudiation of the Agreements, presents a live controversy for the court to resolve. The Relman Firm asserts that it “has fully performed or tendered all performance required under the Agreements, and [Defendants] have unequivocally repudiated, without basis, their obligations to pay the Relman Firm . . . [which will and has caused the Relman Firm to] suffer general and consequential damages . . .” Compl. ¶¶ 66-68. Defendants disagree. FHC admits that it terminated its contract with the Relman Firm, see FHC MTD at 12, but asserts that the Relman Firm's alleged misconduct voided the entire Agreement. See FHC MTD 17-18. Ms. Ling also accuses the Relman Firm of misconduct and contends that the Relman Firm has suffered no damages and thus has no viable claim because the Agreement can only be enforced once a contingency fee could be collected (i.e., if Ms. Ling prevails and recovers a monetary award in the California litigation). See Ling MTD at 16-17, 30-31. If the pending settlement between FHC and CRCLAC is implemented, the parties likely will dispute whether the Relman Firm is entitled to receive a portion of the settlement as compensation for its prior representation of FHC. See Pl.'s Not. Supp. Auth. at 1-2. These disagreements present legal disputes regarding whether FHC and Ms. Ling improperly breached their contracts or were justified, whether the contract was voided, when the Relman Firm's entitlement to fees arises and whether the entitlement to fees survives the termination of the Agreements. Thus, there is a live controversy regarding the enforceability of the Agreements that requires judicial interpretation and application of contract law.

         Defendants appear to merge their merits defense into the ripeness arguments, suggesting that the Court lacks jurisdiction because the Relman Firm has no viable anticipatory breach claim as the conditions that would trigger payment of the contingent fee have not yet arisen and Relman has not yet suffered damages. See FHC MTD at 28-29; Ling MTD at 16-17, 30-31. However, the 12(b)(1) jurisdictional analysis does not turn on the merits of the Plaintiff's allegations. See Best v. Kelly,39 F.3d 328, 331 (D.C. Cir. 1994) (“Dismissals under Rule 12(b)(1) are not adjudications on the merits, dismissals under 12(b)(6) are.”) (citing Fed.R.Civ.P. 41(b)); see Perry, 864 F.3d at 633 (noting that the Court's “holding that the claims are ripe sheds no light on the merit of ...