Sabre International Security v. Torres Advanced Enterprise Solutions, LLC ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
SABRE INTERNATIONAL SECURITY )
)
Plaintiff, )
)
v. )
)
TORRES ADVANCED ENTERPRISE )
SOLUTIONS, INC., ) Civil Action 11-806 (GK)
)
Defendant. )
)
______________________________)
MEMORANDUM OPINION
Plaintiff, Sabre International Security (“Sabre”), a private
Iraqi security company, brings this action against Defendant,
Torres Advanced Enterprise Solutions, Inc. (“Torres”), a Virginia
limited liability company, for equitable relief, breach of
contract, breach of fiduciary and trust obligations, unjust
enrichment, and tortious interference with prospective economic
advantage and business relations. This matter is presently before
the Court on Torres’ Motion for Dismissal of the Complaint and for
Partial Summary Judgment (“Torres MTD”) (May 27, 2011) [Dkt. No.
21]. Upon consideration of the Motion, Oppositions, Reply, and the
entire record herein, and for the reasons set forth below, Torres’
Motion is granted in part and denied in part.
I. Background
Sabre is a private security contractor providing security
services around the world to various entities, including the U.S.
Government. Complaint (“Compl.”) ¶ 1. On September 27, 2007, Sabre
won one of several U.S. Government Theater-wide Internal Security
Services Multiple Task Order Contracts, number W91GDW-07-D-4026
(“TWISS I Contract”) to provide security services to U.S. military
installations in Iraq. Id. ¶ 6. On November 8, 2007, in connection
with this Contract, Sabre entered into a subcontractor agreement
with Torres (“2007 Subcontractor Agreement”). Id. ¶ 7. Pursuant to
this Agreement, Torres agreed to provide personnel holding valid
U.S. Government security clearances to work on Sabre’s TWISS I
projects. Id.
In 2009, the U.S. Government amended its policies for TWISS I
contracts by requiring that prime contractors, like Sabre, possess
a U.S. Defense Department Industrial Security Program Facility
Security Clearance at the Secret Level (“Secret FCL”). Id. ¶ 11.
Sabre, as a non-U.S. company, was not eligible for a Secret FCL.
Id. Accordingly, to avoid termination of the TWISS I Contract,
Sabre and Torres entered into a novation of the TWISS I Contract on
December 30, 2009. Id. ¶¶ 12-13. Pursuant to the novation, known as
the Asset Purchase Agreement (“APA”), Torres became the prime
contractor and Sabre the subcontractor. Id.
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According to Sabre, the APA included two additional agreements
as annexes (or addendums): (1) “[a] form of subcontract between
Torres and Sabre for TWISS I security services that was to take
effect upon the U.S. Government’s approval of the novation” (the
“APA Sabre Services Subcontract”); and (2) “[a] form of equipment
lease agreement between Sabre and Torres for lease from Sabre to
Torres of all equipment necessary for performance of the TWISS I
Task Orders that was to take effect upon the U.S. Government’s
approval of the novation” (the “APA Sabre Lease Agreement”). Id. ¶
13.
Sabre alleges that, under these three “agreements,” Sabre was
entitled to payment of pre-novation rates and that Torres was
obligated to “issue priced [] TWISS I Subtask Orders to Sabre
promptly after the TWISS I Novation that would give effect to
[this] understanding[].” Id. ¶¶ 41-42. On February 5, 2010, the
U.S. Government approved the novation. Id. ¶ 3. According to Sabre,
after the novation, Torres breached its contractual obligations by
failing to pay Sabre’s TWISS I invoices at the rates established
under the APA and its accompanying annexes, and by failing to put
the TWISS I Subtask Orders in place. Id. ¶¶ 228-29.
On August 6, 2009, Sabre and Torres entered into a Teaming
Agreement to bid on one of several Government Theater-wide Internal
Security Services Multiple Task Order Contracts, number W91DGW-09-
D-4030 (“TWISS II Contract”), which would replace existing TWISS I
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contracts. Id. ¶¶ 53, 61. To be eligible for a TWISS II Contract,
the prime contractor was required to hold a Secret FCL as well as
a Private Security Company (“PSC”) License from the Iraqi Ministry
of the Interior. Id. ¶¶ 58-59. Under the Teaming Agreement, Torres,
which held a Secret FCL, was designated as the prime contractor and
Sabre, which held a PSC License, but did not hold a Secret FCL
License, was designated as the subcontractor. Id. ¶ 61.
The Sabre-Torres team (“Team”) then bid for a TWISS II
Contract, which they won on August 25, 2009. Id. ¶¶ 62, 86. In
accordance with TWISS II Contract procedures, the Team then
competed for several TWISS II Task Order Requests (“TWISS II
TORs”), which the Government issued for each military base that
required security services. Id. ¶¶ 90, 106. The Team competed for
these TWISS II TORs by submitting Task Order Proposals (“TWISS II
Task Order Proposals”) to the U.S. Government, and was ultimately
successful in obtaining several TWISS II TORs. Id. ¶¶ 91, 106, 108.
On April 29, 2011, Sabre filed its Complaint. On May 27, 2011,
Torres filed its Motion for Dismissal of the Complaint and for
Partial Summary Judgment. On July 25, 2011, Sabre filed its
Opposition to Defendant’s Rule 12(b)(6) Motion to Dismiss the
Complaint (“Sabre Opp’n to MTD”) [Dkt. No. 30]. On July 26, 2011,
Sabre filed its Opposition to Defendant’s Rule 56 Motion for
Partial Summary Judgment (“Sabre Opp’n to SMJ”) [Dkt. No. 32]. On
August 19, 2011, Torres filed its Reply in Support of its Motion
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for Dismissal of the Complaint and for Partial Summary Judgment
(“Torres Reply”)[Dkt. No. 34].
II. Standard of Review
To survive a motion to dismiss under Rule 12(b)(6), a
plaintiff need only plead “enough facts to state a claim to relief
that is plausible on its face” and to “nudge[] [his or her] claims
across the line from conceivable to plausible.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “[A] complaint [does not]
suffice if it tenders naked assertions devoid of further factual
enhancement.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)
(internal quotations omitted) (citing Twombly, 550 U.S. at 557).
Instead, the complaint must plead facts that are more than “merely
consistent with” a defendant’s liability; “the pleaded factual
content [must] allow[] the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. at
1940 (citing Twombly, 550 U.S. at 556). In deciding a Rule 12(b)(6)
motion, the court may consider any documents attached to or
incorporated into the complaint, matters of which the court may
take judicial notice, and matters of public record. EEOC v. St.
Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
“[O]nce a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the
allegations in the complaint.” Twombly, 550 U.S. at 563. Under the
standard set forth in Twombly, a “court deciding a motion to
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dismiss must . . . assume all the allegations in the complaint are
true (even if doubtful in fact) . . . [and] must give the plaintiff
the benefit of all reasonable inferences derived from the facts
alleged.” Aktieselskabet, 525 F.3d at 17 (citations and internal
quotations omitted). See also Tooley v. Napolitano, 586 F.3d 1006,
1007 (D.C. Cir. 2009) (declining to reject or address the
government’s argument that Iqbal invalidated Aktieselskabet).
Under Federal Rule of Civil Procedure 56, summary judgment may
be granted “only if” the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law. See Fed. R. Civ. P. 56(c), as
amended Dec. 1, 2007; Arrington v. United States, 473 F.3d 329, 333
(D.C. Cir. 2006). In other words, the moving party must satisfy two
requirements: first, that there is no “genuine” factual dispute
and, second, if there is, that it is “material” to the case. “A
dispute over a material fact is ‘genuine’ if ‘the evidence is such
that a reasonable jury could return a verdict for the non-moving
party.’” Arrington, 473 F.3d at 333 (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is “material” if it
might affect the outcome of the case under the substantive
governing law. Liberty Lobby, 477 U.S. at 248.
As the Supreme Court stated in Celotex Corp. v. Catrett, “the
plain language of Rule 56(c) mandates the entry of summary
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judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial.” 477 U.S.
317, 322 (1986). The Supreme Court has further explained,
[a]s we have emphasized, “[w]hen the moving
party has carried its burden under Rule 56(c),
its opponent must do more than simply show
that there is some metaphysical doubt as to
the material facts. . . . Where the record
taken as a whole could not lead a rational
trier of fact to find for the nonmoving party,
there is no ‘genuine issue for trial.’”
Matsushita Elec. Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct.
1348, 89 L.Ed.2d 538 . . . (1986) (footnote
omitted). “‘[T]he mere existence of some
alleged factual dispute between the parties
will not defeat an otherwise properly
supported motion for summary judgment; the
requirement is that there be no genuine issue
of material fact.’”
Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Liberty Lobby,
477 U.S. at 247-48) (emphasis in original).
However, the Supreme Court has also consistently emphasized
that “at the summary judgment stage, the judge’s function is
not . . . to weigh the evidence and determine the truth of the
matter, but to determine whether there is a genuine issue for
trial.” Liberty Lobby, 477 U.S. at 249. In both Liberty Lobby and
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150
(2000), the Supreme Court cautioned that “[c]redibility
determinations, the weighing of the evidence, and the drawing of
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legitimate inferences from the facts, are jury functions, not those
of a judge” deciding a motion for summary judgment. Liberty Lobby,
477 U.S. at 255.
III. Analysis
In its Complaint, Sabre brings two categories of claims. The
first set relates to the TWISS I Contract and seeks equitable
relief for Torres’ alleged failure to pay Sabre’s TWISS I invoices
and to issue TWISS I Subtask Orders in accordance with the APA
(“TWISS I claims”). See Compl., Counts 11-14. The second set
relates to the TWISS II Contract and involves various claims
relating to Torres’ alleged breach of the Teaming Agreement, as
well as claims for unjust enrichment and tortious interference with
prospective economic advantage and with business relations (“TWISS
II claims”). See id., Counts 1-10.1 Pursuant to Rule 12(b)(6),
Torres moves for dismissal of Sabre’s TWISS I claims and seeks
1
In Count 7, Sabre raises a claim for breach of the implied
covenant of good faith and fair dealing with regards to the Teaming
Agreement. Torres has not raised an explicit objection to this
claim, although some of its challenges to Sabre’s other TWISS II
claims could be construed as implicit objections to Count 7. Since
these objections to the TWISS II claims fail, the Court has no need
to determine whether Torres has properly challenged Count 7. In
Count 5, Sabre raises an unrelated breach of contract claim for
Torres’ alleged failure to pay Sabre for security services provided
to the Torres Villa in Baghdad, Iraq(Count 5). Torres offers no
objection to this claim.
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12(b)(6) dismissal and/or summary judgment of Sabre’s TWISS II
claims.2
A. The TWISS I Claims (Counts 11-14)
With regard to the TWISS I claims, Sabre requests the
following relief: (1) that Torres specifically perform the APA, the
APA Sabre Services Subcontract, and the APA Sabre Lease Agreement
by issuing TWISS I Subtask Orders to Sabre and producing a true and
complete accounting (Counts 11-12); (2) a declaration of Sabre’s
rights under the APA, the APA Sabre Services Subcontract, and the
APA Sabre Lease Agreement (Count 13); and (3) a preliminary
injunction prohibiting Torres from destroying, concealing, or
altering any TWISS I-related documents, and appointment of a
qualified, independent auditor to examine all of Torres’ books and
records pertaining to the APA, including Sabre’s invoices to Torres
and Torres’ TWISS I communications and invoices to the U.S.
Government, to determine the unpaid amounts owed to Sabre (Count
14).
Torres moves to dismiss these claims on two grounds. First,
Torres argues that Sabre has no contractual right under the APA,
APA Sabre Services Subcontract, or the APA Sabre Lease Agreement to
2
With regard to the TWISS II claims, Torres fails to clearly
indicate at a number of points in its papers whether it is seeking
Rule 12(b)(6) dismissal, Rule 56 summary judgment, or both. Torres
MTD 1, 17; Torres Reply 2. Obviously, the legal standard to be
applied under these two Rules is very different, and Torres often
conflates the two.
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the pre-novation payments it claims under the TWISS I invoices.
Torres MTD 12-17. Second, Torres argues that Sabre is not entitled
to equitable relief because it has adequate remedies at law. Id. at
29 & nn. 10-11.
1. The APA, the APA Sabre Services Subcontract, and
the APA Sabre Lease Agreement
Torres argues that the terms of the APA itself provide “no
basis” for Sabre’s claim to pre-novation payment rates, and that
Sabre has failed to allege and cannot allege that the APA Sabre
Services Subcontract and the APA Sabre Lease Agreement were ever
executed by the parties.3 In response, Sabre argues that Torres has
challenged Sabre’s entitlement to money damages, that this
challenge is subject to the parties’ arbitration agreement under
3
As an alternative argument, Torres claims, separate and apart
from its arguments about the APA and the two subcontracts, that the
absence of TWISS I Subtask Orders demonstrates that the parties did
not agree to pre-novation pricing-levels. Torres MTD 12-17. To
support this argument, Torres argues that:
[b]oth the unexecuted subcontract and the general
practice in the industry contemplate that a subcontractor
will send a proposal to the prime contractor (including
the scope of work and the price to be charged for that
work), that the prime contractor will then bid to the
government to win the award of the task order, and that
after it is awarded to the prime contractor, the prime
evidences its acceptance of the subcontractor’s bid
through the issuance of a subtask order
Id. at 14.
Since all facts alleged by Plaintiff must be accepted as true
under a Rule 12(b)(6) motion, this argument is of no help to
Defendant, because it directly contests the accuracy of Plaintiff’s
allegations.
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the APA, and that the Court should, therefore, refrain from
considering Torres’ arguments.4 Sabre Opp’n to MTD 7-8.
Sabre’s argument is inconsistent with its request for
equitable relief. Whatever the merits of its arbitration claim,5
Sabre’s requested equitable remedies necessarily require this Court
to determine whether Sabre was entitled to pre-novation payment
rates under the APA, APA Sabre Services Subcontract, and the APA
Sabre Lease Agreement. See, e.g., Compl. ¶ 229, Count 11 (“The
failure of Torres to pay Sabre’s post-novation invoices in full
4
Paragraph 9.8 of the APA provides in relevant part that:
In case of any controversy or claim between [Sabre and
Torres] . . . the following procedures shall be
implemented:
(a) The Parties shall first attempt in good faith
to resolve such controversy or claim promptly by
negotiation . . . .
(b) If the negotiation process set forth [above],
does not resolve such controversy or claim, then
the Parties shall submit such controversy or claim
for mediation . . . in accordance with the
Commercial Mediation Procedures of the American
Arbitration Association (the “AAA”). . . .
(c) If such controversy or claim is not resolved
within thirty (30) days from the date of submission
of such controversy or claim to mediation (or such
later date as the Parties may mutually agree in
writing), such controversy or claim shall be
referred to and finally and exclusively resolved by
mandatory and binding arbitration. . . .
Ex. A to Torres MTD (May 27, 2011) [Dkt. No. 21-3].
5
Sabre is currently pursuing arbitration before the AAA of
its money damages claim against Torres. Sabre Opp’n to MTD 8 n.4.
Torres has submitted its objections to arbitration to the AAA. Ex.
3 to Sabre Opp’n to MTD (July 25, 2011) [Dkt. No. 30-3].
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constitutes a breach of the payment clauses of the APA and payment
commitment of Torres evidenced by the APA Sabre Services
Subcontract and APA Sabre Lease Agreement. . . . Sabre can only be
made whole if Torres is required to specifically perform the terms
of the APA, the APA Sabre Services Subcontract and the APA Sabre
Lease Agreement.”). If Sabre wanted this issue settled in
arbitration, it should have either moved to stay its claim for
equitable relief until arbitration was concluded, or have excluded
its TWISS I claims from this lawsuit.
Turning to Torres’ first argument, Torres is correct that the
express terms of the APA are silent as to whether Sabre was
entitled to pre-novation payment rates. With regard to its second
argument, Torres is also correct that the Complaint does not allege
that the parties executed the APA Sabre Services Subcontract and
the APA Sabre Lease Agreement. Torres MTD 13-14. However, in the
Complaint, Sabre has alleged that the APA Sabre Services Agreement
and the APA Sabre Lease Agreement “were included as Annexes to the
APA.” Compl. ¶ 13. Taking all reasonable inferences in Sabre’s
favor, Sabre has adequately alleged that the parties intended the
two subcontracts to be a part of their agreement under the APA.
“Under D.C. law, as is generally true, for an enforceable contract
to exist, there must be both (1) agreement as to all material
terms; and (2) intention of the parties to be bound.”). See Jack
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Baker, Inc. v. Office Space Dev. Corp., 664 A.2d 1236, 1238 (D.C.
1995).
Consequently, Sabre has adequately alleged the existence of a
contractual basis for its claim to pre-novation payment rates.
2. Adequate Remedy at Law
Torres argues that Sabre is not entitled to equitable relief
on the TWISS I claims because “Sabre’s claims are contract-based
[and][,] as such, Sabre has a complete and adequate damages remedy
that obviates any need for equitable relief.” Torres MTD 29 & nn.
10-11. Sabre has failed to respond to this argument as it relates
to the TWISS I claims and has, therefore, conceded the issue. CSX
Transp., Inc v. Commercial Union Ins., Co., 82 F.3d 478, 482-83
(D.C. Cir. 1996); Maib v. FDIC, 771 F. Supp. 2d 14, 20 (D.D.C.
2011).
Consequently, Torres’ motion to dismiss Counts 11-14 is
granted because Sabre has an adequate remedy at law.
B. The TWISS II Claims
1. Counts 1-26
In Count 1, Sabre requests two forms of equitable relief: (1)
a constructive trust, which is an equitable remedy that arises
“where money or property identified as belonging in good conscience
to the plaintiff could clearly be traced to particular funds or
6
Sabre has not sought equitable relief under Count 2.
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property in the defendant’s possession,” Great-West Life & Annuity
Ins. Co v. Knudson, 534 U.S. 204, 213, 122 S. Ct. 708 (2002); and
(2) injunctive relief. In Count 2, Sabre seeks damages for Torres’
failure to pay the full amount of Sabre’s TWISS II invoices under
the Teaming Agreement.
Torres raises two challenges to these Counts. First, Torres
challenges Count 1 on the ground that Sabre has an adequate remedy
at law and is not, therefore, entitled to equitable relief. Torres
MTD 29-30. Second, Torres challenges both Counts 1 and 2 on the
ground that Sabre has no right under the Teaming Agreement to
receive the pricing levels reflected in its TWISS II invoices to
Torres. Id. at 18-19.
a. Count 1: Equitable Relief
Under D.C. law, which governs the parties’ claims under the
Teaming Agreement,7 it is “axiomatic that equitable relief will not
be granted where the plaintiff has a complete and adequate remedy
at law.” Kakaes v. George Washington Univ., 790 A.2d 581, 581 (D.C.
2002).
Torres argues that because Sabre’s claims are “principally
contract-based” Sabre has an adequate remedy at law and has no need
for equitable relief. Id. at 29. In response, Sabre claims the
“equitable remedies sought are necessary to prevent Torres’
7
Teaming Agreement ¶ 3, Ex. 2 to Torres MTD (May 27,
2011)[Dkt. No. 22-2].
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violation of fiduciary and trust obligations, to determine whether
Sabre’s monies have been deposited and how they have been used, and
to ensure those monies are frozen to prevent Torres’ use of them
for its self-dealing and the financing of its direct competition
with Sabre.” Sabre Opp’n to MTD 10.
Sabre’s claims for equitable relief are based on Torres’
failure to pay Sabre under the Teaming Agreement. As demonstrated
infra, the Court concludes that Sabre has stated a claim for breach
of the Teaming Agreement. If Sabre prevails on this claim, it will
have a complete and adequate remedy at law. Plaintiff’s request for
a constructive trust may be satisfied by the money damages,
including pre- and post-judgment interest, it seeks on its breach
of contract claim. With regard to Plaintiff’s request for
injunctive relief, this extraordinary remedy, which is typically
sought by separate motion to the Court, is awarded only upon a
clear showing that Plaintiff is entitled to such relief.8 Plaintiff
has neither raised allegations that would support such a showing,
8
In order to obtain a preliminary injunction, plaintiff must
establish “[1] that he is likely to succeed on the merits, [2] that
he is likely to suffer irreparable harm in the absence of
preliminary relief, [3] that the balance of the equities tips in
his favor, and [4] that an injunction is in the public interest.”
Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011).
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nor has it pursued its earlier motion for injunctive relief against
the Defendant.9
Consequently, the Court grants Torres’ motion to dismiss Count
1.
b. Counts 1-2: TWISS II Invoices
Torres also argues that Counts 1 and 2 should be dismissed for
failure to state a claim and/or summary judgment. Torres MTD 18-19.
i. Dismissal for Failure to State a Claim
Express contracts are those whose terms are stated by the
parties. Richardson v. J.C. Flood Co., 190 A.2d 259, 261 (D.C.
1963). An implied-in-fact contract arises “from a mutual agreement
and promise not set forth in words.” Id. It is “founded upon a
meeting of the minds, which, although not embodied in an express
contract is inferred, as a fact, from conduct of the parties
showing, in the light of the surrounding circumstances, their tacit
understanding.” Barrett Refining Corp. v. United States, 242 F.3d
1055, 1059 (Fed. Cir. 2001) (quoting Baltimore & O.R. Co. v. United
States, 261 U.S. 592, 597, 43 S. Ct. 425 (1923)).
To make out a claim for breach of an implied-in-fact contract,
plaintiff must demonstrate “(1) that the services were carried out
under such circumstances as to give the recipient reason to
9
Although Plaintiff initially intended to seek a preliminary
injunction, it has yet to request such relief from the Court. See
Plaintiff’s Unopposed Motion to Amend Scheduling Order (May 27,
2011) [Dkt. No. 20].
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understand (a) that they were performed for him and not for some
other person, and (b) that they were not rendered gratuitously, but
with the expectation of compensation from the recipient.”
Bloomgarden v. Coyer, 479 F.2d 201, 208-09 (D.C. Cir. 1973).
Torres argues that Sabre “has not alleged that Torres accepted
Sabre’s bid for the performance of [the TWISS II] work, and
therefore has not established the existence of an enforceable
agreement that Torres would pay Sabre the pricing for that work
that is reflected in Sabre’s [TWISS II] invoice[s].” Torres MTD 18.
In response, Sabre argues it has sufficiently alleged the existence
of an enforceable agreement, under either an express or implied-in-
fact theory of contract.11 Sabre Opp’n to MTD 18-20.
In its Complaint, Sabre alleges that, between December 31,
2009 and September 25, 2010, the U.S. Government issued TWISS II
TORs to Torres requesting pricing proposals for at least seven
military bases,12 and that Sabre provided Torres with its scope of
work and its pricing terms for these projects (“Sabre’s TWISS II
Scope of Work”). Sabre also alleges that Torres included Sabre’s
11
Sabre also argues that its allegations establish the
existence of a contract under theories of estoppel and promissory
estoppel. Sabre Opp’n to MTD 19. Because the Court concludes that
Sabre’s Complaint adequately alleges the existence of an implied-
in-fact contract, there is no need to consider Sabre’s additional
theories.
12
These military bases included: (1) Camp Shield; (2) Forward
Operating Base (“FOB”) Husaniyah; (3) FOB Warrior; (4) FOB Loyalty;
(5) FOB Kalsu; (6) FOB Hammer; and (7) FOB Shocker. Compl. ¶ 106.
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pricing proposals in its TWISS II Task Order Proposals to the U.S.
Government. Id. On the basis of these TWISS II Task Order
Proposals, the U.S. Government purportedly awarded Torres firm
fixed price TWISS II Task Orders for seven military bases. Id.Sabre alleges that, after receiving the TWISS II Task Orders,
Torres issued Notices to Proceed to Sabre “on the strength of
Sabre’s detailed pricing and technical proposal to Torres for which
Torres took no exception.” Id. ¶ 109. Sabre goes on to claim that:
[w]ithout regard to whether Torres ever issued a subtask
order to Sabre for any TWISS II Task Order, by issuing
each such [Notice to Proceed] Torres de facto accepted
Sabre’s proposal and became legally bound to pay Sabre
for the Sabre TWISS II Scope of Work at the prices quoted
by Sabre which Torres included in the TWISS II Task Order
Proposal upon which the U.S. Government awarded Torres
the respective TWISS II Task Order, without regard to []
whether Torres ever issued a Subtask Order to Sabre.
In detrimental reliance on each such respective [Notice
to Proceed], Sabre commenced performance of the Sabre
TWISS II Scope of Work for each respective TWISS II Task
Order, with Torres’ full knowledge and consent. To date,
Sabre has continued performance of each TWISS II Task
Order. . . .
Id. ¶¶ 110-11.
By alleging that Sabre submitted its TWISS II Scope of Work to
Torres, that Torres used this Scope of Work to submit proposals for
TWISS II Task Orders, that Torres did not at any time object to
Sabre’s TWISS II Scope of Work, and that, once the Government
awarded the TWISS II Task Orders to the Team, Sabre began work on
the TWISS II Task Orders with Torres’ knowledge and consent, Sabre
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has adequately alleged the existence of an implied-in-fact
contract.
Consequently, Torres’ motion to dismiss Counts 1 and 2 is
denied.
ii. Summary Judgment
Torres argues that summary judgment should be awarded on
Counts 1 and 2 because the parties never, in fact, agreed to price
terms for Sabre’s TWISS II invoices. Id. at 18-19; Torres Reply 6.
First, Torres argues that the Notices to Proceed do not
constitute an agreement between the parties on pricing because: (1)
they were issued by the U.S. Government, and not by Torres; (2)
they simply constituted notice that the TWISS II Task Orders had
been awarded to Torres; and (3) they do not evidence acceptance by
Torres of Sabre’s proposed prices. Torres MTD 19. Even if Torres’
description of the content of the Notices to Proceed is accurate,13
there is a genuine issue of material fact as to the precise role
the Notices to Proceed played in the parties’ course of conduct.14
13
Torres has submitted the Notices to Proceed in conjunction
with its Motion Dismiss and for Partial Summary Judgment. See Ex.
5(a)-(g) to the Affidavit of Rebekah L. Dyer (“Dyer Affidavit”)
(May 27, 2011) [Dkt. Nos. 5-14]
14
For example, in his affidavit, Sabre CEO Sumeet Mehta states
that
Torres issues a notice to Sabre to proceed . . . [which]
consists of an email or other notice to Sabre that Torres
has received the U.S. Government’s notice to proceed, and
is providing direction to Sabre . . . that Sabre must
commence work” and that “[t]his is the Torres ‘Notice to
(continued...)
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Second Torres argues that the absence of TWISS II Subtask
Orders establishes that Torres did not accept Sabre’s TWISS II
pricing proposals. Torres Reply 6-7. Although it is undisputed that
Torres did not issue Subtask Orders to Sabre, as required under the
Teaming Agreement, there is a genuine issue of material fact as to
whether Torres’ failure to issue these Subtask Orders put Sabre on
notice that Torres did not agree to its proposed pricing. See,
generally, Dyer Affidavit; Mehta Affidavit.
For the foregoing reasons, the Court denies Torres’ motions to
dismiss and for summary judgment on Counts 1 and 2.
2. Counts 3-4: Violations of Management Provisions
In Count 3, Sabre alleges that Torres failed to convene the
Management Committee after learning that the Government intended to
take adverse action against the Team for delays relating to a TWISS
II Task Order. Instead, Sabre alleges, Torres breached the Teaming
Agreement by “unilaterally” acting to waive the Team’s right to
14
(...continued)
Proceed’ that is referenced in the Complaint (the “Torres
NTP”)[.] As a matter of course of conduct between the
Members of the Team, the Torres’ issuance of the Torres
NTP in Torres’ capacity as Leading Member of the Team,
without communicating any disagreement, objection or
dispute as to Sabre’s pricing submitted to the Team
constituted the Team’s binding acceptance of the pricing.
Declaration of Sumeet Mehta in Support of Plaintiff’s Opposition to
Defendants’ Motion to Dismiss and for Partial Summary Judgment, ¶
9(I) (“Mehta Affidavit”) (July 26, 2011) [Dkt. No. 32-2].
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dispute the Government’s action and accepting the Government’s $1.1
million penalty against the Team. Compl. ¶¶ 180-81.
In Count 4, Sabre alleges that Torres breached the “management
provisions” of the Teaming Agreement by failing to adequately
notify Sabre of Government inquiries into Sabre’s request for an
equitable adjustment.15 Id. ¶ 191. Sabre had requested an equitable
adjustment from the U.S. Government, in the amount of $400,000,
because of costs incurred as a result of a Government stop work
order on one of the Team’s TWISS II Task Orders. Id. ¶ 190. Sabre
also alleges that, after the Government denied Sabre’s equitable
adjustment request, Torres failed to respond to Sabre’s demand that
Torres appeal the denial. Id. ¶ 192.
Torres argues that Counts 3 and 4 should be dismissed for
failure to state a claim because Sabre has failed to allege
proximate cause.16 Torres MTD 21. To plead proximate cause,
15
In Count 4 of the Complaint, Sabre alleges that Torres
breached the “management provisions” of the Teaming Agreement, but
does not specifically allege that Torres should have, but failed,
to convene the Management Committee. Compl. ¶¶ 187-94.
Nevertheless, Torres treats this Count as alleging that a
Management Committee should have been convened. Sabre has not
objected to this characterization and has, in fact, adopted it in
its Opposition brief. Sabre Opp’n to MTD 27-29. Consequently, the
Court shall treat Count 4 as alleging that Torres breached the
Teaming Agreement by failing to convene the Management Committee.
16
Torres also argues that Sabre has failed to state a claim
under Count 3 and 4 because there was, in fact, no breach of the
Teaming Agreement. Torres MTD 20. That argument addresses the
merits of Sabre’s claim, and, therefore, cannot be considered on a
Rule 12(b)(6) motion.
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plaintiff must allege “some reasonable connection between the act
or omission of the defendant and the damages which the plaintiff
has suffered.” Brewer v. Islamic Republic of Iran, 664 F. Supp. 2d
43, 54 (D.D.C. 2009).
With regard to Count 3, Sabre alleges that, but for Torres’
failure to convene the Management Committee and its decision to
waive an appeal and accept the $1.1 million penalty, Sabre would
have used its expertise to negotiate a better arrangement with the
U.S. Government. Compl. ¶¶ 178-85. With regard to Count 4, Sabre
alleges that but for Torres’ failure to communicate the
Government’s queries about Sabre’s equitable adjustment request and
to appeal the request’s denial, Sabre would have prevailed on its
claim. Id. ¶¶ 190-94. In raising these claims, Sabre has adequately
alleged the existence of proximate cause.
For the foregoing reason, the Court denies Torres’ motion to
dismiss Counts 3 and 4 for failure to state a claim. Torres has not
requested summary judgment on these Counts.
3. Count 6: Declaratory Relief
In Count 6, Sabre requests a declaration of its rights and
obligations under the Teaming Agreement. Torres argues that this
request should be dismissed on summary judgment because the Teaming
Agreement was terminated on June 20, 2010. Torres MTD 30. According
to Torres, this termination stemmed from Sabre’s breach of the
Teaming Agreement by failing to respond to Torres’ questions
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regarding Sabre’s proposed pricing on a TWISS II TOR. Dyer
Affidavit ¶ 9. Sabre disputes Torres’ claim that the Teaming
Agreement has been terminated and argues that genuine issues of
material fact preclude granting summary judgment on this issue.
Sabre Opp’n to SMJ 7.
It is clear that there is a material dispute as to whether the
Teaming Agreement required production of Torres’ requested
information. Resolution of that factual dispute is necessary in
order to decide whether the Teaming Agreement was terminated on
June 20, 2010. See Mehta Affidavit ¶ 8(A).
For the foregoing reasons, Torres’ motion for summary judgment
on Count 6 must be denied. Torres has not requested Rule 12(b)(6)
dismissal of this Count.
4. Count 8: Unjust Enrichment
In Count 8, Sabre raises a claim for unjust enrichment. Under
D.C. law, a plaintiff states a claim for unjust enrichment when:
(1) the plaintiff confers a benefit on the defendant; (2) the
defendant retains the benefit; and (3) under the circumstances, the
defendant’s retention of the benefit is unjust. Armenian Assembly
of Am., Inc. v. Cafesjian, 597 F. Supp. 2d 128, 134 (D.D.C.
2009)(citing to News World Commc’ns, Inc. v. Thompsen, 878 A.2d
1218 (D.C. 2005)).17
17
“A claim of unjust enrichment may survive a motion to
dismiss . . . when the validity of the contract is in doubt or
(continued...)
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Torres argues that Sabre has failed to state a claim for
unjust enrichment because the “Complaint does not allege that Sabre
conferred a benefit on Torres in connection with the Camp Shield
Task Order, FOB Cruz-Morris [Task Order] or [FOB] Gary Owen [Task
Order], much less that Torres retained any such benefit under
circumstances making retention unjust.” Torres MTD 26 (emphasis in
original).
Sabre responds that: (1) Torres has mistakenly limited the
scope of Count 8 to the TWISS II TORs for Camp Shield, FOB
Cruz-Morris and FOB Gary Owen, when in fact Sabre’s claim for
unjust enrichment also includes the other TWISS II TORs awarded to
the Team; and (2) the Complaint adequately alleges that Sabre
conferred a benefit on Torres with respect to the Camp Shield, FOB
Cruz-Morris, and FOB Gary Owen Task Orders. Sabre Opp’n to MTD 35.
With regard to scope, Count 8 alleges that
Sabre is entitled to a full payment of the revenue
received by Torres for work withheld from Sabre and
procured by Torres to itself in violation of the Teaming
Agreement. Such work includes, but is not limited to the
positions and equipment that are defined as Sabre’s Scope
of Work . . . that Torres has filled with its own
personnel and provided its own equipment at the following
site:
A. Camp Shield
. . . .
B. FOB Cruise Morris
17
(...continued)
uncertain or where an express contract exists that does not govern
exclusively the obligations or rights of the parties at issue.”
Armenian Assembly of Am., Inc., 597. F. Supp. 2d at 135.
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C. FOB Gary Owen18
Compl. ¶ 211.
Count 8 also “hereby re-alleges and incorporates by reference
the allegations in Paragraphs 1 through 209 as though fully set out
herein.” Id. ¶ 210. Taking all these allegations in the light most
favorable to Sabre, the Court concludes that Count 8 is not limited
to the Camp Shield, FOB Cruz-Morris, and FOB Gary Owen Task Orders.
Rather, Count 8 may reasonably be understood to include Sabre’s
allegations about the other military installations for which the
Team was awarded TWISS II TORs. Id. ¶¶ 124-28.
With regard to the Camp Shield, FOB Cruz-Morris, and FOB Gary
Owen Task Orders, Sabre alleges that Torres was able to obtain the
Task Orders for Camp Shield, FOB Cruz-Morris, and FOB Gary Owen
because Sabre possessed a valid PSC license from the Iraqi Ministry
of the Interior. Compl. ¶ 120. Without this license, Sabre alleges
Torres would have been unable to obtain Task Orders for these
projects. Id. Sabre also alleges that Torres breached the Teaming
Agreement by preventing Sabre from fully participating in these
projects and “by fail[ing] to remit to Sabre any of the payments
for withholding work from Sabre.” Id. ¶¶ 212-13. Consequently,
18
Torres also argues that the Court should award Torres summary
judgment on all claims based on Torres’ failure to offer the FOB
Cruz-Morris and FOB Gary Owen TOR to Sabre because these TORs were
issued after the alleged termination of the Teaming Agreement.
Torres MTD 24. For the reasons discussed, supra, there are genuine
issues of material fact as to the Teaming Agreement’s termination
which preclude summary judgment.
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Sabre has adequately alleged that it conferred a benefit that was
unjustly retained by Torres with respect to the Camp Shield, FOB
Cruz-Morris, and FOB Gary Owen Task Orders.
For the foregoing reasons, the Court denies Torres’ motion to
dismiss Count 8. Torres has not requested summary judgment on this
Count.
5. Count 9: Tortious Interference with Prospective
Economic Advantage
In Count 9, Sabre alleges that Torres has tortiously
interfered with its prospective economic advantage. To make out a
claim for tortious interference under D.C. law, plaintiff must
show: “(1) the existence of a valid business relationship or
expectancy, (2) knowledge of the relationship or expectancy on the
part of the interferer, (3) intentional interference inducing or
causing a breach o[r] termination of the relationship or
expectancy, and (4) resultant damage.” Bennet Enters., Inc v.
Domino’s Pizza, Inc., 45 F.3d 493, 499 (D.C. Cir. 1995). To survive
a motion to dismiss, “a plaintiff must allege business expectancies
not grounded in present contractual relationships, but which are
commercially reasonable to expect.” Democratic State Comm. of the
District of Columbia v. Bebchick, 706 A.2d 569, 572 (D.C. 1998)
(citation and internal quotations omitted).
Torres argues that Sabre has failed to state a claim for
tortious interference with prospective economic advantage because:
(1) for “task orders issued before the June 20, 2010, termination,
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those expectations of prospective economic advantage were grounded
in a then-existing contract – namely the Teaming Agreement;” (2)
“to the extent Sabre had an expectation of economic benefit with
respect to task orders issued after the June 20, 2010 termination
for cause, Sabre’s expectations were not commercially reasonable as
a matter of law;” and (3) Sabre’s allegations do not make “a strong
showing of intent on Torres’ part to disrupt its reasonable
expectations.” Torres MTD 27-28.
As reflected in the Complaint, Sabre’s claim is based not on
the Teaming Agreement, but on its expectation of successfully
competing in the future for U.S. Government contracts in the
private security field and of working with its current suppliers on
those contracts. Carr v. Brown, 395 A.2d 79, 84 (D.C.
1978)(defining “expectancies” as “future contractual relations,
such as the prospect of obtaining employment or employees, or the
opportunity to obtain customers”).
For example, Sabre alleges that Torres made “an internal
corporate decision, which Torres concealed from Sabre, to become a
direct competitor to Sabre in the Private Security Industry in Iraq
and elsewhere.” Compl. ¶ 131. By making and implementing this
decision, Sabre alleges that Torres interfered with its
relationships with its labor and logistical support suppliers and
withheld payments to Sabre so that Sabre could not pay these
suppliers. Id. ¶¶ 132-33, 135-37. In light of these allegations,
-27-
which must be taken as true for purposes of a Motion to Dismiss,
Sabre has also adequately alleged that Torres had a “strong
intention” to interfere with Sabre’s reasonable, expectations for
the future. Sheppard v. Dickson, Shapiro, Morin & Oshinsky, 59 F.
Supp. 2d 27, 34 (D.D.C. 1999) (“Motive or purpose to disrupt
ongoing business relationships is of central concern in a tortious
interference case . . . . [C]onduct must be more egregious, for
example, it must involve, libel, slander, physical coercion, fraud,
misrepresentation, or disparagement.”) Consequently, Sabre has
stated a claim for tortious interferences with prospective economic
advantage.
For the foregoing reasons, the Court denies Torres’ motion to
dismiss Count 9. Torres has not requested summary judgment on this
Count.
6. Count 10: Tortious Interference with Business
Relations
In Count 10, Sabre alleges that Torres tortiously interfered
with its business relations. The elements of a claim for tortious
interference with business relations are identical to those of
tortious interference with economic relations. Casco Marina Dev.,
LLC v. District of Columbia Redev. Land Agency, 834 A.2d 77, 84
(D.C. 2003).
Torres argues that Sabre has failed to state a claim for
tortious interference with business relations because it has not
-28-
specifically identified the business relations with which Torres
allegedly interfered. Torres MTD 28.
In fact, Sabre’s Complaint contains specific allegations
identifying these business relationships. In relevant part, Sabre
alleges that Torres interfered with Sabre’s business relationships
with Third Country National (“TCN”) labor suppliers in Africa that
“Sabre had contracted [in order] to be provided [with] qualified
TCNs who would become TWISS II guards,” as well as with “Camp
Shield TWISS II Task Order logistical support services by directly
encouraging the Camp Shield logistics support services work forces,
as a group, to en masse terminate their contractual relationship
with Sabre . . . .” Compl. ¶¶ 133, 137. These allegations
sufficiently identify the “third parties with which [Sabre] had a
business relationship . . . .” Williams v. Fed. Nat’l Mortg. Ass’n,
No. 05-1483, 2006 WL 177452, at *8 (D.D.C. June 26, 2006).
Consequently, Sabre has adequately stated a claim for tortious
interference with business relations.
For the foregoing reasons, the Court denies Torres’ motion to
dismiss Count 10. Torres has not requested summary judgment on this
Count.
IV. CONCLUSION
For all the reasons stated herein, Torres’ Motion to Dismiss
and for Partial Summary Judgment is granted as to Counts 1 and 11-
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14 and denied as to all other Counts. An Order will accompany this
Memorandum Opinion.
/s/
October 27, 2011 Gladys Kessler
United States District Judge
Copies via ECF to all counsel of record
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