COLLEEN KOLLAR-KOTELLY, District Judge.
Plaintiff Gary McIntosh ("McIntosh") brings the above-captioned action against Amanda Gilley, her parents David & Linda Gilley, and her brother and sister-in-law Jeff & Kristin Gilley (collectively "Defendants") pursuant to this Court's diversity jurisdiction under 28 U.S.C. § 1332. McIntosh's claims arise out of an alleged general partnership with his former girlfriend, Amanda Gilley, in a business known as AKG Photography ("AKG"). McIntosh asserts an unjust enrichment claim against Amanda Gilley, seeking to recover his investments in AKG and his share of AKG's profits. McIntosh also asserts a libel claim against David & Linda Gilley for an allegedly defamatory email that they sent to McIntosh's superior officer in the U.S. Navy. Finally, McIntosh named Jeff & Kristin Gilley as defendants in the Complaint because Amanda Gilley allegedly moved AKG's operations and equipment into their home.
Currently before the Court are Jeff & Kristin Gilley's [4] Motion to Dismiss under Rule 12(b)(6), which included a motion for sanctions under 28 U.S.C. § 1927 ("§ 1927"); David & Linda Gilley's [6] Motion to Dismiss under Rule 12(b)(2); Amanda Gilley's [17] Motion to Dismiss under Rule 12(b)(1) or, in the alternative, Motion for Summary Judgment, which also included a motion for sanctions under § 1927; and McIntosh's construed motion for sanctions under § 1927 included in his [5] Opposition to Jeff & Kristin Gilley's Motion to Dismiss.
For the reasons set forth below, the Court shall (1) GRANT Jeff & Kristin Gilley's motion to dismiss because the Complaint does not state a claim against them; (2) GRANT David & Linda Gilley's motion to dismiss because McIntosh has not alleged sufficient facts to establish personal jurisdiction under D.C.'s long-arm statute; (3) GRANT Amanda Gilley's motion to dismiss for lack of subject matter jurisdiction because the Court is very confident that, based on the facts presented, McIntosh will not recover in excess of $75,000 from Amanda Gilley under his unjust enrichment claim; and (4) DENY Amanda Gilley's, McIntosh's, and Jeff & Kristin Gilley's motions for sanctions.
McIntosh alleges that he and Amanda Gilley formed AKG as a general partnership, pursuant to the District of Columbia Uniform Partnership Act, on September 24, 2007. Compl. ¶¶ 6-7, 18-24, Docket No. [1].
In regard to the condominium, the parties disagree as to its use and purpose. According to McIntosh, he purchased the condominium, a month before beginning a three year deployment in Japan, with the understanding that it would function as AKG's "home office" and Amanda Gilley would also reside there. Id. at 3. McIntosh further avers that Amanda Gilley agreed to pay the condominium's expenses, including mortgage and utilities, as one of AKG's business expenses. Id. Amanda Gilley, in contrast, does not characterize the condominium as AKG's "home office," but rather as a residence for herself, McIntosh, and, at times, McIntosh's mother. See Amanda Gilley's Mot. to Dismiss ("Amanda Gilley's Mot."), Ex. A (Declaration of Amanda Gilley (hereinafter "First Amanda Gilley Decl.")), ¶ 14.
Despite the parties' disagreement as to the purpose of the condominium, several facts regarding the condominium are undisputed. First, the condominium's mortgage has always been exclusively in McIntosh's name. See First Amanda Gilley Decl. ¶ 14; McIntosh Decl. at 3. Second, when McIntosh purchased the condominium in May 2008, he initially placed Amanda Gilley's name, along with his own, on the condominium's title. See First Amanda Gilley Decl. ¶ 14; McIntosh Decl. at 3. Third, although Amanda Gilley paid the condominium's mortgage for the several months she resided there, in October 2008 she ceased paying the condominium's mortgage, vacated the premises, removed AKG's equipment from the premises, and ended her personal relationship with McIntosh. See Compl. ¶ 13, First Amanda Gilley Decl. ¶¶ 14-15; McIntosh Decl. at 3. Finally, Amanda Gilley's name was removed from the condominium's title in December 2008. First Amanda Gilley Decl. ¶ 19; McIntosh Decl. at 6.
McIntosh alleges that after vacating the condominium, Amanda Gilley moved all of AKG's equipment and files into Jeff & Kristin Gilley's residence in Silver Spring, Maryland. Compl. ¶¶ 13, 15. According to McIntosh, Jeff & Kristin Gilley allowed Amanda Gilley to move AKG into their home in order "to prevent [McIntosh]'s involvement in the AKG Partnership." Id. ¶ 17. McIntosh further avers that since Amanda Gilley moved AKG, she has refused to communicate with him, has failed to repay him for his investments in AKG, and that her retention of such investments constitutes unjust enrichment. See id. ¶¶ 15, 33-38.
McIntosh also alleges that Amanda Gilley's parents, David & Linda Gilley, committed libel by sending an email to McIntosh's commanding officer in the U.S. Navy, which claimed that McIntosh was
On January 21, 2010, McIntosh filed the instant Complaint, asserting diversity jurisdiction under 28 U.S.C. § 1332 and venue under 28 U.S.C. § 1391. Compl. at 1-2. The Complaint does not enumerate separate counts against the various Defendants. Rather, after alleging some introductory facts, the Complaint alleges additional facts under two headings: (1) "Libel," immediately under which is the additional heading "Defamation Against Parents of Defendant Amanda Gilley;" and (2) "Unjust Enrichment." Id. at 5-6. The Complaint seeks the following relief: (1) appraisal of AKG and award of McIntosh's share of AKG's profits; (2) appointment of a trustee to account for AKG's proceeds; (3) recovery of $272,000 in investments and profits in AKG for breach of the partnership agreement; (4) recovery of $272,000 under an unjust enrichment claim for benefits conferred to AKG; and (5) $500,000 in damages under his libel claim. Id. at 6-7.
In response to the Complaint, Jeff & Kristin Gilley filed a[4] Motion to Dismiss under Rule 12(b)(6) and for sanctions ("Defs. J. & K. Gilley's Mot."). McIntosh responded with an [5] opposition ("Pl.'s Opp'n to Defs. J. & K. Gilley's Mot."), which also included a motion for sanctions, and Jeff & Kristin Gilley filed a[7] reply ("Defs. J. & K. Gilley's Reply"). Subsequently, David & Linda Gilley filed a[6] Motion to Dismiss under Rule 12(b)(2) ("Defs. D. & L. Gilley's Mot."), attaching as exhibits thereto affidavits disavowing that they have any contacts with the District on which jurisdiction may be based. McIntosh then filed an [8] opposition ("Pl.'s Opp'n to Defs. D. & L. Gilley's Mot.") and David & Linda Gilley filed a[9] reply ("Defs. D. & L. Gilley's Reply"). Finally, Amanda Gilley filed a[17] Motion to Dismiss under Rule 12(b)(1) or, in the alternative, a Motion for Summary Judgment ("Def. A. Gilley's Mot."), which also included a motion for sanctions. Amanda Gilley attached various exhibits to her Motion to Dismiss, including a Declaration of Amanda Gilley ("First Amanda Gilley Decl."), Def. A. Gilley's Mot., Ex. A, and several email messages purportedly written by McIntosh after Amanda Gilley moved out of the condominium, id., Exs. C-E. McIntosh then filed an [19] opposition ("Pl.'s Opp'n to Def. A. Gilley's Mot."), attaching his own declaration ("McIntosh Decl.") responding to Amanda Gilley's declaration and detailing his alleged investments in AKG. Finally, Amanda Gilley filed a[20] reply ("Def. A. Gilley's Reply"), along with another Declaration of Amanda Gilley (hereinafter "Second Amanda Gilley Decl.") attesting to AKG's profits since its founding in 2007. The parties' briefing on the pending motions is now complete, and the matter is therefore ripe for review and resolution by this Court.
A plaintiff bears the burden of establishing that a federal court has subject
Nonetheless, "[w]hen the defendant challenges the jurisdictional amount, [the] plaintiff must come forward with some facts in support of her assertion that the jurisdictional amount has been met." Mace v. Domash, 550 F.Supp.2d 101, 104 (D.D.C.2008); see also Gomez v. Wilson, 477 F.2d 411, 420 (D.C.Cir.1973) ("[W]hen, as here, a formal allegation of jurisdictional amount ... is controverted, a factual issue emerges and the burden of establishing jurisdictional amount is thrust upon the claimant."). The Supreme Court has provided that:
St. Paul Mercury Indem. Co. v. Red Cab Co. ("St. Paul Mercury"), 303 U.S. 283, 288, 58 S.Ct. 586, 82 L.Ed. 845 (1938) (footnotes omitted). The D.C. Circuit has interpreted St. Paul Mercury as requiring courts to be "very confident that a party cannot recover the jurisdictional amount before dismissing the case for want of jurisdiction." Rosenboro v. Kim, 994 F.2d 13, 17 (D.C.Cir.1993).
A plaintiff bears the burden of establishing a factual basis for asserting personal jurisdiction over a defendant. See Crane v. N.Y. Zoological Soc'y, 894 F.2d 454, 456 (D.C.Cir.1990). "The plaintiff, however, cannot rest on bare allegations or conclusory statements and must allege specific facts connecting each defendant with the forum." GTE New Media Servs., Inc. v. Ameritech Corp., 21 F.Supp.2d 27, 36 (D.D.C.1998); see also Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 524
Under the Federal Rules of Civil Procedure, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R.Civ.P. (8)(a), "in order to `give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss for failure to state a claim, a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Id. "Nor does a complaint suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Rather, a complaint must contain sufficient factual allegations that if accepted as true, "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).
When considering a motion to dismiss for failure to state a claim, the court must construe the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Emp. Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994); see also Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir. 1979) ("The complaint must be liberally construed in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged.") (internal quotation omitted). However, a plaintiff must provide more than just "a sheer possibility that a defendant has acted unlawfully." Iqbal, 129 S.Ct. at 1950. When a complaint's well-pleaded facts do not enable a court, "draw[ing] on its judicial experience and common sense," "to infer more than the mere possibility of misconduct," the complaint has not shown that the pleader is entitled to relief. Id.
Jeff & Kristin Gilley move to dismiss the Complaint under Rule 12(b)(6),
The Court shall grant Jeff & Kristin Gilley's motion to dismiss because the Complaint fails to provide "a short and plain statement of the claim showing that [McIntosh] is entitled to relief" from Jeff & Kristin Gilley. Fed.R.Civ.P. 8(a)(2). Notably, the Complaint contains the following three allegations regarding Jeff & Kristin Gilley: (1) that they reside in Silver Spring, Maryland, Compl. ¶ 5; (2) that they allowed Amanda Gilley to move AKG's equipment into their residence, id. ¶ 13; and (3) that they allowed AKG to be moved into their home "to prevent Plaintiff's involvement in the AKG Partnership," id. ¶ 17. None of these allegations establish any legal claim against Jeff & Kristin Gilley.
Nonetheless, McIntosh argues that the Complaint states a claim against Jeff & Kristin Gilley because it alleges that they allowed Amanda Gilley to operate AKG from their home and that their "intent was to destroy Plaintiff's interest in AKG." See Pl.'s Opp'n to Defs. J. & K. Gilley's Mot. at 3-4. However, McIntosh has failed to present any legal authority indicating that Jeff & Kristin Gilley can be liable under D.C. law for allowing Amanda Gilley to operate AKG out of their home or for having the "intent to destroy" his interest in a general partnership. See id. Accordingly, the Court shall grant Jeff & Kristin Gilley's motion to dismiss for failure to state a claim.
David & Linda Gilley move to dismiss McIntosh's libel claim against them for lack of personal jurisdiction. Defs. D. & L. Gilley's Mot. at 1.
D.C.Code § 13-423. In this case, McIntosh does not assert that jurisdiction is proper under a specific subsection of the long-arm statute. Instead, McIntosh argues that jurisdiction is proper because David & Linda Gilley: (1) visited the District; (2) telephoned Amanda Gilley when she resided in the District from their Texas residence; (3) attempted to interfere with AKG while AKG was transacting business in the District; and (4) caused injury to McIntosh in the District through their allegedly libelous email. See Pl.'s Opp'n to Defs. D. & L. Gilley's Mot. at 3-4.
As a preliminary matter, the Court notes that McIntosh seeks to supplement the Complaint's allegations by claiming that, in addition to the libel claim, David & Linda Gilley had "the intention to destroy the partnership." Pl.'s Opp'n to Defs. D. & L. Gilley's Mot. at 5. The Court agrees, however, with David & Linda Gilley that the Complaint only alleges a libel claim against them and the Complaint does not otherwise claim that they were involved in
First, McIntosh's allegations that David & Linda Gilley visited the District, telephoned Amanda Gilley, and that AKG transacted business in the District do not pertain to McIntosh's libel claim. Therefore, under D.C.Code 13-423(b), such allegations cannot independently create personal jurisdiction over David & Linda Gilley.
Second, because McIntosh's libel claim is an allegation of tortious injury, subsections (a)(3) and (a)(4) of the long-arm statute would appear to be most relevant. See Moncrief v. Lexington Herald-Leader Co., 807 F.2d 217, 220-21 (D.C.Cir.1986) (upholding the district court's interpretation that the "act" in a libel claim is the creation and publication of the statement). However, as David & Linda Gilley indicate, the Complaint fails to meet either (a)(3) or (a)(4) because the Complaint does not allege, inter alia, where David & Linda Gilley created and sent the email at issue. See Defs. D. & L. Gilley's Mot. at 2-3, 5-6; Defs. D. & L. Gilley's Reply at 2; see generally Compl. Accordingly, the Court finds that the Complaint does not allege specific facts connecting David & Linda Gilley's allegedly libelous email to the District. See GTE New Media Servs., 21 F.Supp.2d at 36 ("The plaintiff ... must allege specific facts connecting each defendant with the forum.").
Third, although McIntosh's opposition does contain some allegations that may be relevant under either subsection (a)(3) or (a)(4) of the long-arm statute, these allegations are nonetheless an insufficient basis for this Court to exercise personal jurisdiction over David & Linda Gilley. See Crane, 894 F.2d at 456. McIntosh claims that the allegedly libelous email "ruined [his] Naval career from the District of Columbia," Pl.'s Opp'n to Defs. D. & L. Gilley's Mot. at 4, and that "injury was caused by emails sent from D.C. that stated Plaintiff was harassing the Gilley family which forced Plaintiff to resign from the U.S. Navy at an early date[,]" id. at 4-5. Although the Court may consider the jurisdictional allegations raised in McIntosh's opposition, see Philip Morris, Inc., 116 F.Supp.2d at 120 n. 4, McIntosh's allegations are merely conclusory and do not satisfy his burden of alleging specific facts that create personal jurisdiction, see GTE New Media Servs., 21 F.Supp.2d at 36 ("The plaintiff ... cannot rest on bare allegations or conclusory statements and
To the extent that McIntosh relies on subsection (a)(4) because the allegedly libelous email was sent from outside of the District, McIntosh has failed to allege that David & Linda Gilley satisfy any of subsection (a)(4)'s so-called "plus factors": "regularly do[ing] or solicit[ing] business, engag[ing] in any other persistent course of conduct, or deriv[ing] substantial revenue from goods used or consumed, or services rendered, in the District of Columbia." D.C.Code § 13-423(a)(4); see also Crane v. Carr, 814 F.2d 758, 763 (D.C.Cir. 1987) (explaining that D.C.Code § 13-423(a)(4)'s "plus factors" "serve to filter out cases in which the inforum impact is an isolated event and the defendant otherwise has no, or scant, affiliations with the forum."). McIntosh has not alleged that David & Linda Gilley rendered services or derived revenue from goods used or consumed in the District. Additionally, McIntosh has not alleged that David & Linda Gilley themselves regularly conduct or solicit business in the District. See Pl.'s Opp'n to Defs. D. & L. Gilley's Mot. at 4 (alleging that David & Linda Gilley "attempt[ed] to destroy the AKG Partnership that was transacting business in D.C."). Moreover, David & Linda Gilley did not create a "persistent course of conduct" through occasional travel to the District, see, e.g., FINCON Servs., 681 F.Supp.2d at 47-48 (finding three trips to solicit business in the District did not create a persistent course of conduct), or by telephone calls to the District from their Texas residence, regardless of the calls' frequency or nature, see, e.g., Tavoulareas v. Comnas, 720 F.2d 192, 194 (D.C.Cir.1983) (finding calls to the District are not acts "in the District" as required under subsection (a)(4)) (emphasis in the original). Therefore, even if the allegedly tortious email was sent from outside the District, McIntosh has not alleged sufficient facts to satisfy subsection (a)(4) of the long-arm statute.
In conclusion, after considering the jurisdictional allegations in the Complaint, McIntosh's opposition, and David & Linda Gilley's affidavits, the Court holds that McIntosh has failed to allege specific, non-conclusory allegations that establish personal jurisdiction over David & Linda Gilley under the District's long-arm statute. Therefore, for the foregoing reasons, the Court shall grant David & Linda Gilley's motion to dismiss for lack of personal jurisdiction.
Amanda Gilley moves to dismiss the Complaint, arguing that the Court lacks subject matter jurisdiction over McIntosh's unjust enrichment claim because the amount in controversy is less than $75,000—the threshold amount for diversity jurisdiction. Def. A. Gilley's Mot. at 10-11; see also 28 U.S.C. § 1332 ("The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of different
As a threshold matter, the Court notes that despite scattered references to Amanda Gilley's breach of an alleged partnership agreement, McIntosh has only claimed in his filings to this Court that he has alleged an unjust enrichment claim against Amanda Gilley. Notably, after recounting how McIntosh and Amanda Gilley created a general partnership under the District of Columbia Uniform Partnership Act, McIntosh's opposition cites to case law reciting the elements of an unjust enrichment claim under D.C. law and provides that "[Amanda] Gilley's abandonment of the partnership without proper accounting of the finances with Plaintiff has resulted in unjust enrichment." Pl.'s Opp'n to Def. A. Gilley's Mot. at 7. McIntosh does not argue that his allegations against Amanda Gilley constitute another cause of action. See generally id.; see also Compl. at 5-6 (containing headings for only "Libel" and "Unjust Enrichment"). Therefore, consistent with McIntosh's representation's to this Court, the Court concludes that McIntosh has asserted only an unjust enrichment claim against Amanda Gilley, and the Court shall consider only damages that are recoverable under an unjust enrichment theory.
To assert an unjust enrichment claim under D.C. law, McIntosh must allege that: (1) he conferred a benefit on Amanda Gilley; (2) she retained the benefit conferred, and (3) under the circumstances, her retention of the benefit is unjust. News World Commc'ns, Inc. v. Thompsen, 878 A.2d 1218, 1222 (D.C.2005) (citing 4934, Inc. v. Dist. of Columbia Dep't of Emp't Servs., 605 A.2d 50, 55 (D.C.1992)); see also 4934, Inc., 605 A.2d at 55 ("Unjust enrichment occurs when a person retains a benefit (usually money) which in justice and equity belongs to another."). "The modern law of unjust enrichment and restitution has its roots in the common law concept of quasi-contract." Id. Whether termed a quasi-contract, implied-in-law contract, or an unjust enrichment claim, these synonymous legal theories "ha[ve] been openly acknowledged to be a `[l]egal fiction invented by common law courts to permit recovery by contractual remedy in cases where, in fact, there is no contract....'"). Id. (quoting Black's Law Dictionary 324 (6th ed.1990) (second alteration in the original); see also Emerine v. Yancey, 680 A.2d 1380, 1383 (D.C. 1996) (explaining the various labels for the same legal claim). As an unjust enrichment claim arises in the absence of a contract, one is unable to recover under an unjust enrichment theory when a contract governs the parties' relationship. Emerine, 680 A.2d at 1383.
In this case, Amanda Gilley argues that the actual benefit McIntosh conferred to her was $16,000, Def. A. Gilley's Mot. at 10, or, at most, $63,905.36, Def. A. Gilley's Reply at 4, neither of which exceeds
Although McIntosh asserts some damages recoverable under an unjust enrichment theory,
In addition to the $144,914.36 that McIntosh claims to have invested in AKG, McIntosh claims that he has lost hundreds of thousands of dollars in earning potential, lost pay, and retirement benefits as a result of false claims made by the Gilley family. See McIntosh Decl. at 8-9. The Court concludes that McIntosh may not include these damages in his unjust enrichment claim's amount in controversy. As a general principle, a plaintiff may aggregate multiple claims against a single defendant to satisfy the jurisdictional amount requirement. See, e.g., Snyder v. Harris, 394 U.S. 332, 335, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969). However, McIntosh may not aggregate his claims in this case because he has asserted his libel claim against only David & Linda Gilley—not Amanda Gilley. Def. A. Gilley's Reply at 3; see also Compl. ¶ 25 ("Defendant Linda and David Gilley made a false written statement ..."); id. at 5 (labeling McIntosh's libel claim as "Defamation Against
Moreover, even if the Court had not dismissed McIntosh's libel claim against David & Linda Gilley for lack of personal jurisdiction, McIntosh may not aggregate separate and distinct claims against multiple Defendants. See Rogers v. Nathan, 721 F.Supp. 1393, 1394 (D.D.C.1989) ("Claims against two or more defendants can be aggregated for the purpose of attaining the jurisdictional amount, as a general proposition, if they are jointly liable to plaintiff.") (emphasis added) (internal quotation marks and citations omitted); see also Motorists Mut. Ins. Co. v. Simpson, 404 F.2d 511, 513 (7th Cir.1968) ("[J]urisdiction under section 1332(a) can only be sustained against those defendants whose respective controversies individually involve matters exceeding the jurisdictional amount."). Accordingly, the Court concludes that McIntosh may not rely on his alleged $500,000 in damages from his libel claim to satisfy his unjust enrichment claim's amount in controversy. See McQueen, 672 F.Supp.2d at 88-90 (excluding "benefit of the bargain" damages from plaintiff's amount in controversy because they are not recoverable under a fraudulent misrepresentation claim).
The Court also agrees with Amanda Gilley that McIntosh may not rely on his various condominium-related expenses to bolster his unjust enrichment claim's amount in controversy because it is legally certain that such expenses are not recoverable under an unjust enrichment theory. See Def. A. Gilley's Mot. at 10-11; Def. A. Gilley's Reply at 3; see also News World Commc'ns, Inc., 878 A.2d at 1222 ("Unjust enrichment occurs when: (1) the plaintiff conferred 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."). McIntosh includes the following four condominium-related expenses in his unjust enrichment claim's amount in controversy: (1) the purchase price of the condominium ($172,500), as well as McIntosh's down payment and closing costs ($10,000); (2) the amount that the condominium has depreciated since it was purchased in 2008 ($50,000); (3) McIntosh's payment of the condominium's monthly expenses for the twenty-four months after Amanda Gilley vacated the condominium ($36,000); and (4) McIntosh's costs in removing Amanda Gilley's name from the condominium's title ($5000). See Compl. ¶ 12; Pl.'s Opp'n to Def. A. Gilley's Mot. at 9; McIntosh Decl. at 6. The Court shall address each expense in turn.
First, McIntosh may not include the value of the condominium, including the down payment, in his unjust enrichment claim because it is undisputed that Amanda Gilley has not retained an interest in the condominium. See Pl.'s Opp'n to Def. A. Gilley's Mot. at 8 (indicating that McIntosh removed Amanda Gilley from the condominium's title); Def. A. Gilley's Reply at 3 (indicating that it is undisputed that Amanda Gilley currently has no legal interest in the condominium). Therefore, as Amanda Gilley has not retained a benefit in the condominium that McIntosh can recover from her under an unjust enrichment theory, McIntosh may not include the condominium's value in the amount in controversy.
Third, the Court agrees with Amanda Gilley that McIntosh's payment of $36,000 for the condominium's mortgage, fees, utilities, and maintenance for the twenty-four months after she vacated the condominium are not recoverable under an unjust enrichment claim. See Def. A. Gilley's Reply at 3; see also McIntosh Decl. at 6. It is undisputed that the condominium's mortgage was solely in McIntosh's name, see First Amanda Gilley Decl. ¶ 14; McIntosh Decl. at 3, and that Amanda Gilley retains no legal interest in the condominium, see Pl.'s Opp'n to Def. A. Gilley's Mot. at 8; Def. A. Gilley's Reply at 3. McIntosh's payment of his own mortgage for a condominium he now exclusively owns during a time Amanda Gilley no longer resided there cannot be said to have benefitted Amanda Gilley. See Def. A. Gilley's Reply at 3. Therefore, these expenses are not recoverable under an unjust enrichment theory.
McIntosh's erroneous inclusion of this $36,000 under an unjust enrichment theory is likely attributable to McIntosh's mingling of the two distinct doctrines of contracts and quasi-contracts, or unjust enrichment claims. It is undisputed that Amanda Gilley paid the expenses on the condominium, including the mortgage, for the several months while she alone occupied the premises. See First Amanda Gilley Decl. ¶ 14, McIntosh Decl. at 3. McIntosh appears to claim that such activity evidences how Amanda Gilley breached the parties' contract that she was to pay the condominium's expenses. See, e.g., McIntosh Decl. at 3 ("It was also agreed that Ms. Gilley would pay the [condominium's] monthly mortgage and utilities as a business expense from the profits and revenue from AKG Photography."). Under D.C. law, however, an unjust enrichment claim may not be asserted when a contract governs the parties' relationship. Emerine, 680 A.2d at 1383. Additionally, the costs McIntosh incurred in paying the condominium's expenses after Amanda Gilley vacated the condominium is not the proper measure of the restitution interest recoverable under an unjust enrichment claim. See, e.g., Peart v. D.C. Housing Auth., 972 A.2d 810, 820 (D.C.2009) (explaining that in an unjust enrichment claim, the plaintiff's "restitution interest is to be measured by reference to the value of her services to [the defendant], not by reference to the actual costs [the plaintiff] incurred in providing them."). Accordingly, for the aforementioned reasons, McIntosh cannot recover the $36,000 in condominium expenses under an unjust enrichment claim, and therefore the Court shall exclude this amount from the unjust enrichment claim's amount in controversy.
Finally, McIntosh has also included $5000 in his unjust enrichment claim's amount in controversy for costs he incurred in removing Amanda Gilley's name from the condominium's title. See Pl.'s Opp'n to Def. A. Gilley's Mot. at 9; McIntosh Decl. at 6. These costs, however, were not paid to Amanda Gilley and there is no indication that Amanda Gilley somehow unjustly retained a benefit from having her name removed from the condominium's title. Therefore, McIntosh may not include
In conclusion, the Court shall exclude the foregoing condominium-related expenses from the unjust enrichment claim's amount in controversy. Based on the facts presented, such expenses are not recoverable under an unjust enrichment claim because McIntosh did not confer them to Amanda Gilley, she did not retain them, or D.C. law precludes their recovery as they are governed by a contract. See McQueen, 672 F.Supp.2d at 88-90 (excluding "benefit of the bargain" damages from plaintiff's amount in controversy because they are not recoverable under a fraudulent misrepresentation claim).
After excluding the aforementioned expenses from McIntosh's declaration, there remains only $43,914.36
Disgorgement of profits is a well recognized remedy for unjust enrichment. See, e.g., Griffith v. Barnes, 560 F.Supp.2d 29, 35 (D.D.C.2008) (noting that under D.C. law, "[w]hen there is unjust enrichment, disgorgement is an appropriate remedy"); United States v. Philip Morris, Inc., 310 F.Supp.2d 58, 63 (D.D.C.2004) ("Disgorgement of ill-gotten gains is ... remedial, serving to deprive a wrongdoer of unjust enrichment."). Accordingly, McIntosh's share of AKG's $19,991 in profits may be included in his unjust enrichment claim's amount in controversy. However, even when construing the facts in McIntosh's favor by assuming that all of $19,991 in profits are recoverable under his unjust enrichment claim, McIntosh's
Moreover, the Court is very confident that McIntosh will in fact recover far less than $63,905.36 given that only a portion of the expenses he alleges to have given Amanda Gilley actually benefitted her exclusively. For example, McIntosh has included expenses for paying rent, utilities, and groceries for the seven months Amanda Gilley resided with him in his apartment in Fort Belvoir. See McIntosh Decl. at 6-7; Decl. A. Gilley ¶ 11. While McIntosh had previously requested proportional reimbursement from Defendants for these expenses, presumably because such expenses benefitted him as well, McIntosh included the full amount of these expenses when attempting to satisfy the jurisdictional amount requirement. See, e.g., Def. A. Gilley's Mot., Ex. E, at 4 (Email from McIntosh to various Defendants (Dec. 12, 2008)) (seeking "proportional reimbursement" from Defendants for certain expenses, including rent and groceries). Therefore, the Court is very confident that McIntosh is not entitled to recover the entire amount of several of his expenses comprising the aforementioned $63,905.36 amount; thereby further solidifying the Court's conclusion that the actual amount in controversy for McIntosh's unjust enrichment claim is less than $75,000.
In conclusion, for the reasons set forth above, the Court is very confident that McIntosh will be unable to recover in excess of $75,000 from Amanda Gilley under an unjust enrichment theory. Therefore, the Court lacks jurisdiction over this action pursuant to 28 U.S.C. § 1332, and the Court shall grant Amanda Gilley's motion to dismiss the Complaint for lack of subject matter jurisdiction.
Finally, the Court turns to the various motions for sanctions asserted by the parties under 28 U.S.C. § 1927 ("§ 1927"). Section 1927 provides that:
The purpose of § 1927 is to allow the Court "to assess attorney's fees against an attorney who frustrates the progress of judicial proceedings." United States v. Wallace, 964 F.2d 1214, 1218 (D.C.Cir. 1992). Before imposing sanctions on an attorney, the Court must evaluate whether the attorney's conduct was "at least reckless[.]" Id. at 1217. For an action to be considered reckless, there must be a "conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man." Id. at 1220 (quoting Restatement (Second) of Torts § 500 cmt. g (1964)). Although "[t]he law of this Circuit... is unsettled over whether a court must find an attorney's actions to be in bad faith before imposing sanctions," "`at a minimum ... unintended, inadvertent, and negligent acts will not support an imposition of sanctions under section 1927.'"
Once the moving party has met its burden, the Court may then award sanctions under § 1927. As the D.C. Circuit has instructed, however, "the power to assess costs on the attorney involved is a power which the courts should exercise only in instances of serious and studied disregard for the orderly process of justice." Wallace, 964 F.2d at 1220 (quoting Overnite Transp. Co. v. Chicago Indus. Tire Co., 697 F.2d 789, 795 (7th Cir.1983)) (internal quotation marks omitted); see also Dreiling v. Peugeot Motors of Am., Inc., 768 F.2d 1159, 1165 (10th Cir.1985) ("The power to assess costs against an attorney under § 1927 ... is a power that must strictly be construed and utilized only in instances evidencing a `serious and standard disregard for the orderly process of justice.'" (quoting Kiefel v. Las Vegas Hacienda, Inc., 404 F.2d 1163, 1167 (7th Cir. 1968))). Accordingly, the D.C. Circuit has upheld the imposition of § 1927 sanctions when "the attorney's behavior has been repeated or singularly egregious." Wallace, 964 F.2d at 1220.
In this case, Amanda Gilley and Jeff & Kristin Gilley have moved for sanctions against McIntosh under § 1927. McIntosh has, in turn, filed a parallel motion for sanctions against Jeff & Kristin Gilley. For the reasons set forth below, the Court shall deny Amanda Gilley's, Jeff & Kristin Gilley's, and McIntosh's motion for sanctions.
Amanda Gilley argues that § 1927 sanctions are appropriate against McIntosh because McIntosh filed the Complaint in bad faith, as evidenced by his failure to mention that he and Amanda Gilley were once romantically involved, his inflation of the unjust enrichment claim's amount in controversy by including the value of the condominium that he owns, and his frivolous claims against her family members that were intended to harass them into a settlement. See Def. A. Gilley's Mot. at 12-13. Although McIntosh offers no rebuttal to these charges in his opposition, see generally Pl.'s Opp'n to Def. A. Gilley's Mot., the Court nevertheless finds that McIntosh's assertion of an unjust enrichment claim against Amanda Gilley does not meet the "high threshold" of recklessness. Wallace, 964 F.2d at 1219-20 ("[R]ecklessness... requires deliberate action in the face of a known risk, the likelihood or impact of which the actor inexcusably underestimates or ignores.").
Significantly, Amanda Gilley appears to acknowledges that McIntosh has asserted a non-frivolous unjust enrichment claim against her when she argues that the actual amount in controversy for McIntosh's unjust enrichment claim is less than the jurisdictional amount. See Def. A. Gilley's Mot. at 10 ("Though Plaintiff pleads for damages exceeding the threshold, contemporaneous documents establish that the amount in controversy ... is merely $16,000."). Although Amanda Gilley may dispute the ultimate value of McIntosh's unjust enrichment claim, there is no indication that McIntosh has asserted a frivolous unjust enrichment claim, as opposed to one that is below the jurisdictional threshold. The Court finds that, on the present record, there is insufficient evidence to prove that McIntosh counsel's decision to include those additional expenses in the amount in controversy was caused by something other than "unintended, inadvertent, [or] negligent act[s]." Wallace, 964 F.2d at 1219. Also, in light of McIntosh's unjust enrichment claim being non-frivolous, the Court finds that the Complaint's omission of McIntosh and Amanda Gilley's former romantic relationship
Jeff & Kristin Gilley also move for sanctions in the amount of the attorney fees and costs they incurred in defending the Complaint. Defs. J & K. Gilley's Mot. at 6-7. Specifically, they argue that their inclusion in the Complaint was unreasonable and vexatious because the Complaint does not state a claim against them, other than allowing their sister Amanda Gilley to move in with them, and the Complaint was filed in bad faith as it omits reference to McIntosh's former romantic relationship with Amanda Gilley. Id. For the reasons set forth below, the Court shall deny Jeff & Kristin Gilley's motion for sanctions.
"[T]he power to assess costs on the attorney involved is a power which the courts should exercise only in instances of serious and studied disregard for the orderly process of justice." Wallace, 964 F.2d at 1220 (quoting Overnite Transp. Co. v. Chicago Indus. Tire Co., 697 F.2d 789, 795 (7th Cir.1983)) (internal quotation marks omitted). The attempt by McIntosh's counsel to state a claim against Jeff & Kristin Gilley, while ultimately unsuccessful, does not rise to the level of "serious and studied disregard for the orderly process of justice." Id. As the D.C. Circuit in Wallace explained, § 1927 sanctions are appropriate when "the attorney's behavior has been repeated or singularly egregious." Id. (citing, inter alia, Fritz v. Honda Motor Co., 818 F.2d 924, 925 (D.C.Cir.1987) (upholding § 1927 sanctions when counsel "repeatedly took actions which required [the defendant] to expend unnecessary time and money, even though he had no intention of pursuing this litigation.")). The Court finds that, at this early stage of the litigation, the actions of McIntosh's counsel, although not endorsed by the Court, are not repeated or singularly egregious so as to warrant the imposition of § 1927 sanctions.
Finally, McIntosh moves for sanctions against Jeff & Kristin Gilley's attorney, arguing that their attorney prevented service of process on Amanda Gilley while she resided in their home. See Pl.'s Opp'n to Defs. D. & L. Gilley's Mot. at 4. In response, Jeff & Kristin Gilley argue that these allegations are meritless, irrelevant, and without factual support, and the Court should deny the motion. Defs. J. & K. Gilley's Reply at 4. The Court agrees with Jeff & Kristin Gilley and shall deny McIntosh's motion for sanctions because, absent some factual support other than the bare allegations in McIntosh's opposition, the Court is unable to conclude whether the actions of Jeff & Kristin Gilley's counsel are sanctionable under § 1927.
In conclusion, the Court shall deny Amanda Gilley's, Jeff & Kristin Gilley's, and McIntosh's motion for sanctions under 28 U.S.C. § 1927.
For the foregoing reasons, the Court shall GRANT Jeff & Kristin Gilley's [4] Motion to Dismiss. Additionally, the Court shall GRANT David & Linda Gilley's