ROSEMARY M. COLLYER, District Judge.
Dr. Mark Geier and his son, David, brought suit seeking payment for consulting services rendered. Defendants are four law firms: Conway, Homer & Chin-Caplan; John H. Kim & Associates, P.C.; Lommen, Abdo, Cole, King & Stageberg, P.A.; and Williams, Kherkher, Hart & Boundas LLP (collectively, the Law Firms). The Geiers allege that a committee of attorneys, including the Law Firms, retained the Geiers to provide consulting services in support of petitions filed in the U.S. Court of Federal Claims under the National Childhood Vaccine Injury Compensation Act. The petitions filed under the Act alleged that petitioners suffered autism as a result of certain mandatory childhood vaccinations and sought compensation from a government fund. The Geiers contend that the Law Firms failed to pay for consulting services rendered by the Geiers. The Law Firms move to dismiss for lack of personal jurisdiction and for failure to state a claim. While the question of general personal jurisdiction might require discovery, it is not necessary to burden the parties or the Court because the Complaint must be dismissed for failure to state a claim. Certain Counts will be dismissed with prejudice, and others will be dismissed without prejudice.
The National Childhood Vaccine Injury Compensation Act, 42 U.S.C. §§ 300aa-1 — 34, established the National Vaccine Injury Compensation Program. The Program permits those who have suffered injury or death allegedly as a result of a compulsory childhood vaccine to petition the federal government for damages. Instead of filing suit against the vaccine manufacturer or administrator, an individual claiming injury can file a petition for "no-fault" compensation against the Secretary
Awards from Vaccine Court are payable from the Vaccine Injury Compensation Trust, funded by a federal tax on vaccines. A petitioner has a right to receive reasonable attorneys' fees and costs, even if the Vaccine Court declines to award compensation, so long as the claim was filed in good faith. "[T]he special master or court may award an amount of compensation to cover petitioner's reasonable attorneys' fees and other costs incurred in any proceeding on such petition if the special master or court determines that the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought." See id. § 300aa-15(e)(1)(B).
More than 5,000 petitions were filed in the Court of Federal Claims alleging that claimants suffered autism as a result of mandatory childhood vaccination. King v. Sec'y of HHS, No. 03-584V, 2010 WL 892296, at *5 (Fed.Cl.Spec.Mstr. Mar. 12, 2010). Because such a large group of cases involved a common factual issue, i.e. whether certain vaccines caused autism, the Office of Special Masters conducted a series of informal meetings to decide how to proceed. Id. at *6. As a result, the Chief Special Master entered "Autism General Order # 1," which created Omnibus Autism Proceedings. See Claims for Vaccine Injuries Resulting in Autism Spectrum Disorder v. Sec'y of HHS, 2002 WL 31696785 (Fed.Cl.Spec.Mstr. July 3, 2002) (Autism Master File, General Order # 1). In the Omnibus Autism Proceedings, the court established a Petitioners' Steering Committee (PSC). Id. at *3. Membership in the PSC was to be determined by agreement among counsel, but in the event of a dispute, membership would be resolved by the special master. Id.
The PSC obtained and presented evidence regarding the general issue of whether certain vaccines cause autism and under what circumstances. Id. Then the evidence was applied to six test cases, alleging two general causation theories: (1) that the MMR vaccine
On September 18, 2003, Dr. Geier and the PSC entered into a contract for consulting services. Notice of Removal [Dkt. 1], Compl. [Dkt. 1-1], Ex. 1 (Consulting Agreement). The Consulting Agreement provided:
Now therefore, Geier and Law Firm agree as follows:
Consulting Agreement at 1. While expert testimony was contemplated as a possibility, the PSC never called upon Dr. Geier to testify in Vaccine Court. Dr. Geier executed the Consulting Agreement, and Kathleen M. Dailey signed it as "Member NVICP
On October 8, 2004, the parties amended the Consulting Agreement. The Amendment added Dr. Geier's son, David Geier, as a consultant and altered the timing and terms of payment as follows:
Compl., Ex. 2 (Amendment) at 1.
One of the test-case petitioners, Jordan King, petitioned the court for attorney fees, expert costs, and litigation costs. The special master ruled that the petitions were brought in good faith and awarded substantial fees and costs. King, 2011 WL 5926126 at *3-5. The Geiers, together with two other doctors, claimed that they were owed more than $447,000 as compensation for work on an original medical article regarding autism and vaccines. The Vaccine Court determined that the article was produced for the purpose of the litigation and thus was inherently biased. Id. at *8-9. Even more importantly, the court found that the article did not provide any value to the litigation because it was deeply flawed. The data was "dishonest and unacceptable, involving adding numbers which [were] completely invented." Id. at *9. Because "no rational `hypothetical paying client' of the PSC would have agreed to pay for the production of such a flawed study," the court declined to award compensation for any amounts related to the medical article. Id. at *10.
In April 2011, the Geiers, father and son, filed suit in the Circuit Court of Maryland for Montgomery County, naming as defendants: (1) the PSC; (2) the Law Firms; (3) Williams Love; (4) Williams Love partner Michael Williams; and (5) Williams Love partner Tom Powers. The Maryland complaint sought to recover the fees and costs that the Vaccine Court declined to award in the Omnibus Autism Proceedings. On May 22, 2012, the Montgomery County Circuit Court dismissed the four Law Firms that are Defendants here for lack of personal jurisdiction. On June 11, 2012, the Geiers filed the immediate suit against them. The Montgomery County suit remains pending against the PSC; Williams Love; Michael Williams; and Tom Powers.
As in the Montgomery County case, the Geiers here seek to recover fees and costs that the Vaccine Court declined to award in the Omnibus Autism Proceedings. They allege that the outstanding balance owed is $600,000. The Complaint sets forth eight causes of action:
Compl. ¶¶ 13-73. The Complaint does not allege any specific conduct by the Law Firms; it only alleges (1) that the Law Firms represented one or more individuals whose petitions were part of the Omnibus Autism Proceedings, and (2) that the Law Firms were members of, and agents or representatives for, the PSC. Id. ¶¶ 4-11. The Geiers assert that "the designation of `the PSC' on the [Consulting Agreement and Amendment] was merely an efficient way of referring to all of the members of the PSC...." Id. ¶ 19.
The Law Firms each move to dismiss for lack of personal jurisdiction and failure to state a claim; each Defendant joins in the other Defendants' briefs. The Law Firms are not residents of the District of Columbia. Conway, Homer & Chin-Caplan ("Conway") is located in Boston, Massachusetts; John H. Kim & Associates, P.C. ("Kim") is located in Houston, Texas; Lommen, Abdo, Cole, King & Stageberg, P.A. ("Lommen") is located in Minneapolis, Minnesota; and Williams, Kherkher, Hart & Boundas LLP ("Kherkher") is located in Houston, Texas.
On a motion to dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2), the plaintiff bears the burden of establishing a factual basis for the court's exercise of personal jurisdiction over the defendant. Crane v. N.Y. Zoological Soc'y, 894 F.2d 454, 456 (D.C.Cir.1990). The plaintiff must allege specific acts connecting the defendant with the forum. Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 524 (D.C.Cir.2001); see First Chicago Int'l v. United Exch. Co., 836 F.2d 1375, 1378 (D.C.Cir.1988) ("[T]he general rule is that a plaintiff must make a prima facie showing of the pertinent jurisdictional facts."). Bare allegations and conclusory statements are insufficient. Second Amendment Found., 274 F.3d at 524. Further, a plaintiff cannot aggregate factual allegations concerning multiple defendants in order to demonstrate personal jurisdiction over any single defendant. See Rush v. Savchuk, 444 U.S. 320, 332, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980).
In determining whether a factual basis for personal jurisdiction exists, the court should resolve factual discrepancies appearing in the record in favor of the plaintiff. Crane, 894 F.2d at 456. The court need not treat all of the plaintiff's allegations as true, however. Plesha v. Ferguson, 760 F.Supp.2d 90, 92 (D.D.C.2011). Instead, the court "may receive and weigh affidavits and any other relevant matter to assist it in determining the jurisdictional facts." Id. (internal quotation marks and citation omitted).
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim. Fed.R.Civ.P. 12(b)(6). A complaint must be sufficient "to give a 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) (internal citations omitted). Although a complaint does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. The facts alleged "must be enough to
The D.C. Circuit has adopted the doctrine of "pendent personal jurisdiction," whereby a court may assert personal jurisdiction over a defendant "with respect to a claim for which there is no independent basis of personal jurisdiction so long as it arises out of a common nucleus of operative facts with a claim in the same suit over which the court does have personal jurisdiction." Oetiker v. Jurid Werke GmbH, 556 F.2d 1, 5 (D.C.Cir.1977); Sisso v. Islamic Republic of Iran, 448 F.Supp.2d 76, 90-91 (D.D.C.2006).
The Geiers assert that this Court has personal jurisdiction over the Law Firms with regard to at least one of the claims presented in this suit. They ask the Court to recognize pendent personal jurisdiction with regard to all of the other claims.
The Geiers first claim that the Law Firms are subject to specific jurisdiction. Specific jurisdiction exists when the cause of action arises out of or relates to the defendant's contacts with the forum. They assert that personal jurisdiction over the Law Firms is proper under the "transacting business" and "causing tortious injury" portions of the D.C. long-arm statute, which provides:
(a) A District of Columbia court may exercise personal jurisdiction over any person, who acts directly or by an agent, as to a claim for relief arising from the person's —
D.C.Code § 13-423(a)(1) & (3). Subsection (b) of § 13-423 qualifies the reach of the statute by noting that "[w]hen jurisdiction over a person is based solely upon this section, only a claim for relief arising from acts enumerated in this section may be asserted against him." Id. § 13-423(b).
"To establish personal jurisdiction over a non-resident, a court must engage in a two-part inquiry: A court must first examine whether jurisdiction is applicable under the state's long-arm statute and then determine whether a finding of jurisdiction satisfies the constitutional requirements of due process." GTE New Media Servs. v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C.Cir.2000). In a diversity case such as this one, the federal district court's jurisdiction is coextensive with that of a District of Columbia court. Helmer v. Doletskaya,
Due process limits a court's power to assert jurisdiction over a nonresident defendant. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. at 413-14, 104 S.Ct. 1868 (1984). The due process clause of the Fifth and Fourteenth Amendments to the U.S. Constitution requires that the defendant has "purposely established minimum contacts with the forum State," Burger King, 471 U.S. at 476, 105 S.Ct. 2174, "such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (internal quotation marks and citation omitted). These minimum contacts must be grounded in "some act by which the defendant purposefully avails itself of the privilege of conducting activities with the forum State, thus invoking the benefits and protections of its laws." Burger King, 471 U.S. at 476, 105 S.Ct. 2174. In short, "the defendant's conduct and connection with the forum State [must be] such that he should reasonably anticipate being haled into court there." GTE New Media, 199 F.3d at 1347 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). This standard ensures that a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contact. Burger King, 471 U.S. at 475, 105 S.Ct. 2174.
With respect to interstate contractual obligations, due process demands that the Court examine whether the contract had a substantial connection with the forum by looking at where the contract was negotiated and formed as well as where contract performance was contemplated.
Helmer, 393 F.3d at 205 (internal quotation marks omitted) (citing Burger King, 471 U.S. at 479, 105 S.Ct. 2174).
The Geiers contend that the Law Firms transacted business in the District of Columbia, and thus this Court can exercise personal jurisdiction under D.C.Code § 13-423(a)(1). The Geiers assert that the Law Firms purposely established minimum contacts with the District of Columbia by litigating in the Vaccine Court and by participating in the PSC, especially since attorneys with the Law Firms were part of both PSC's executive committee and expert subcommittee. Opp. [Dkt. 15] at 16, 36. They also point out that the PSC listed Dr. Geier as a possible witness, and the PSC petitioned the Vaccine Court for payment of fees owed to the Geiers. Id.
The Geiers' argument does not comport with the D.C. long-arm statute, which expressly limits specific jurisdiction
The Geiers' suit arises from the Consulting Agreement and Amendment. The Consulting Agreement and Amendment did not have a substantial connection with the District of Columbia such that the Law Firms can be said to have purposely established minimum contacts here. See Helmer, 393 F.3d at 205. The Consulting Agreement and Amendment were negotiated and executed by the Geiers, at that time Maryland residents, and Ms. Daily and Mr. Williams, partners in an Oregon firm. See Compl. ¶ 17 (PSC members visited Dr. Geier in his home in Maryland
The Geiers also contend that the Consulting Agreement contemplated that PSC would petition the Vaccine Court for the payment of the Geiers' fee and that the PSC in fact did file multiple briefs in support of payment of the Geiers' fee. This allegation does not go to the negotiation, execution, or performance of the Consulting Agreement or Amendment and thus is not sufficient evidence of the contracting parties' substantial connection with District of Columbia.
The parties agree that the Law Firms were not signatories to the Consulting Agreement or its Amendment. The Geiers, however, insist that the PSC was a joint venture. They argue that the contacts of the Williams Love partners and of the PSC with the forum should be imputed to the Law Firms who are defendants here, thus rendering the Law Firms subject to personal jurisdiction in this Court. See Opp. at 18-20 (citing Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 95 n. 1 (3d Cir.2004) (under partnership law, any act of a partnership binds all partners; thus, personal jurisdiction based on acts of a partnership constitutes jurisdiction over all individual partners); Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 290 F.3d 42 (1st Cir.2002) (the activities of a partner are generally attributed
In support of their claim that the minimum contacts of the Williams Love partners and the PSC should be "imputed" to other PSC members, the Geiers rely primarily on a First Circuit case, Daynard v. Ness, Motley, where two out-of-forum law firms acted in concert to retain an expert. In that case, a law professor sought to recover fees for services he performed as an expert in tobacco litigation. He brought suit in Massachusetts federal district court against the law firms that hired him to do the work — Ness Motley, a Mississippi law firm, and Scruggs Millette, a South Carolina firm. 290 F.3d at 44. While the professor was retained only by the Motley firm, he contended that the Scruggs firm also owed him fees. The Scruggs firm moved to dismiss for lack of personal jurisdiction, and the district court granted the motion. The First Circuit reversed, finding that personal jurisdiction was proper under the local long-arm statute's provision regarding "transacting business in the forum." 290 F.3d at 52. The First Circuit found that the law firms held themselves out as a joint venture, and most critically, that the Scruggs firm ratified the hiring of the plaintiff professor by communicating with him regularly about the litigation in person, by phone, and by fax. Id. at 58-59.
The Geiers fail to note that courts are split with regard to the theory that the act of one partner can be imputed to another for purposes of personal jurisdiction. See Sher v. Johnson, 911 F.2d 1357, 1366 (9th Cir.1990) (finding personal jurisdiction over a partnership but not its partners, even though partners are jointly liable for debts of the partnership; liability and jurisdiction are independent, and jurisdiction depends on each defendant's relationship with the forum); Lans v. Adduci Mastriani & Schaumberg L.L.P., 786 F.Supp.2d 240, n. 16 (D.D.C.2011) (noting without discussion that personal jurisdiction over the members of a partnership must be based on the individual actions of each partner). The D.C. Circuit has not ruled on this issue.
Moreover, the Geiers' argument that the acts of the PSC and the Williams Love firm should be imputed to the Law Firms for the purpose of personal jurisdiction is based on the faulty assumption that the PSC itself was a joint venture. District of Columbia law defines a joint venture as follows:
United States ex rel. Miller v. Bill Harbert Int'l Const., Inc., 505 F.Supp.2d 20, 30 (D.D.C.2007); see also Wash. Inv. Partners of Del., LLC v. The Sec. House, KSCC, 28 A.3d 566, 578 (D.C.2011) (equal right to direct and control is key to a joint venture). The PSC was not formed by contract or agreement between petitioners' counsel in Vaccine Court. Rather, the Geiers acknowledge the PSC was a "judicially created organization of attorneys and law firms." Compl. ¶ 3. Its membership was not in the control of the members.
Further, pursuant to statute, members of the PSC were paid by the Vaccine Court only for the value of the work they completed. See 42 U.S.C. § 300aa-15(e)(1). The Geiers make the valid point that attorneys profit by charging fees, but there was no agreement among the law firms to "share profits." In fact, there was no financial incentive for the law firms to take part in the PSC, as each firm would be able to charge fees (and make profits) if each litigated its own case on causation, rather than combining under court order. Again, the Vaccine Court created the PSC for the purpose of court efficiency, and not for the purpose of providing the law firms with a profit. Finally, the Law Firms did not have control over the existence of the PSC, the court did; when the test cases were concluded, the Vaccine Court disbanded the PSC.
Because the PSC was not a joint venture, joint venture law does not apply. Even if this Court adopted the theory that the acts of a joint venturer could be imputed to others for purposes of personal jurisdiction, without the existence of a joint venture, the acts and contacts of the PSC and the Williams Love partners cannot be imputed to the Law Firms.
The Geiers also contend that the Law Firms are subject to personal jurisdiction because they caused "tortious injury in the District of Columbia by an act or omission in the District of Columbia" under D.C.Code § 13-423(a)(3). The Geiers argue that they were clients of the Law Firms and that the Law Firms committed malpractice in the District of Columbia when they failed to file adequate briefs or make adequate arguments in support of the Geiers' claim for fees in the Vaccine Court. The Geiers posit that because the PSC was required under the Consulting Agreement and Amendment to assist the Geiers in petitioning the Vaccine Court for payment of their fee, this obligation created an attorney-client relationship between the Geiers and the PSC's constituent law firms.
This argument too is based on a faulty assumption — that there was an attorney-client
In addition, D.C.Code § 13-423(a)(3) requires that any tortious injury occur in the District of Columbia. A corporation that suffers financial losses suffers such losses at its business location. See Exponential Biotherapies, Inc. v. Houthoff Buruma N.V., 638 F.Supp.2d 1, 10-11 (D.D.C.2009). The Geiers allege that they suffered a financial loss due to the Law Firms' malpractice, but the Geiers' business and residence were located in Maryland during the relevant time period. Thus, to the extent they suffered a financial loss, the loss occurred in Maryland and not in the District of Columbia. Therefore, the Law Firms are not subject to personal jurisdiction based on the allegation that they caused "tortious injury in the District of Columbia." See D.C.Code § 13-423(a)(3).
In sum, the Geiers have failed to present a factual basis for the Court's exercise of specific personal jurisdiction over the Law Firms. See Crane, 894 F.2d at 456; First Chicago, 836 F.2d at 1378.
Under the D.C.Code provision governing general jurisdiction, a District of Columbia court "may exercise personal jurisdiction over a person domiciled in, organized under the laws of, or maintaining his or its principal place of business in, the District of Columbia as to any claim for relief." D.C.Code § 13-422. "Continuous and systematic" contacts with a forum can give rise to general jurisdiction, which allows the court to exercise general personal jurisdiction over a defendant in a suit not arising out of the defendant's contacts with the forum. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-15 & n. 9, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984).
The Helicopteros case demonstrates the limits that due process places on general personal jurisdiction. There, the defendant was a nonresident corporation that did not have an office in the forum state of Texas and was not licensed to do business in that state. 466 U.S. at 416, 104 S.Ct. 1868. The defendant's contacts with Texas consisted of sending its CEO to Texas to negotiate a contract, purchasing equipment from a Texas company, and sending personnel to Texas for training. Id. The Supreme Court determined that these contacts were insufficient to satisfy the due process requirements that apply to the exercise of general jurisdiction. Id. at 418-19, 104 S.Ct. 1868.
A court in this district recently addressed the question of whether a law firm's representation of clients in another state was sufficient to satisfy due process in that state. In Klayman v. Barmak, 634 F.Supp.2d 56 (D.D.C.2009), a former employee of a non-profit government watchdog organization brought an action in Florida state court against an attorney and his
In order to determine whether D.C. law or Florida law applied to the case, the district court had to determine whether personal jurisdiction was proper over the attorney and his firm in Florida. The attorney was a Maryland resident who practiced in the District of Columbia, but who had also appeared in court in Florida. The firm had offices in the District of Columbia and some other cites, but had no offices in Florida. The firm had appeared pro hac vice in Florida from time to time. The court held that counsel and the firm's appearing on behalf of clients in isolated law suits in Florida did not constitute "continuous and systematic" contacts that satisfied due process. There was no evidence that the attorney or the law firm "sought business in Florida or sent staff there for any engagement beyond the scope of isolated lawsuits." 634 F.Supp.2d at 62. See also Snow v. DirecTV, Inc., 450 F.3d 1314, 1316 (11th Cir.2006) (general jurisdiction could not be exercised over a law firm that had no physical presence in the state, did not solicit clients in the state, and derived less than one percent of its business from matters connected with the state).
The Geiers claim that the Law Firms regularly represent petitioners in Vaccine Court and that this is sufficient to demonstrate "continuous and systematic" contacts with the District of Columbia. They assert that (1) the Kim firm represents itself as being involved with vaccine litigation in the District of Columbia; (2) the Conway firm's website advertises that it represents 1200 people from all 50 states who have filed for compensation under the Vaccine Act, and that the firm is "solely dedicated" to vaccine injury cases; (3) the Lommen firm advertises itself as vaccine litigators; and (4) the Kherkher firm holds itself out as committed to vaccine cases in the District of Columbia. Opp. at 30-31. The Geiers seek discovery to determine the actual extent of the Law Firms' contacts with the District of Columbia and whether general jurisdiction is proper. Whether to permit jurisdictional discovery rests in the discretion of the district court. Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1089 (D.C.Cir.1998). The plaintiff must demonstrate that he can supplement his jurisdictional allegations via discovery. GTE New Media, 199 F.3d at 1351.
The Law Firms are not organized under the laws of the District of Columbia and do not maintain their principal places of business here. Conway is located in Massachusetts; Lommen is located in Minnesota; and both Kim and Kherkher are located in Texas. Compl. ¶¶ 4-10; see also Kherkher Mot. [Dkt. 6] at 7 (Kherkher does not maintain an office in the District of Columbia and its lawyers are not members of the District of Columbia bar). While it is clear that the law firms have represented petitioner(s) in Vaccine Court, the record does not contain sufficient evidence to determine whether the Law Firms' contacts with the forum were "continuous and systematic."
Even if the Court has personal jurisdiction over the Law Firms due to their continuous and systematic contacts with the District of Columbia, it is necessary to dismiss the Complaint for failure to state a claim.
The Geiers allege breach of contract in Count I of the Complaint. A breach of contract claim necessarily depends on the formation of a contract. The essential elements of a contract are "competent parties, lawful subject matter, legal consideration, mutuality of assent and mutuality of obligation." Henke v. U.S. Dep't of Commerce, 83 F.3d 1445, 1450 (D.C.Cir. 1996) (citations omitted). For an enforceable contract to exist under D.C. law, there must be agreement as to all material terms — subject matter, price, payment terms, quantity, quality, and duration — and an intention of the parties to be bound. Virtual Defense & Dev. Intern., Inc. v. Republic of Moldova, 133 F.Supp.2d 9, 17-18 (D.D.C.2001) (citation omitted). To state a claim for breach of contract, a complaint must allege facts from which the necessary "meeting of the minds with respect to the material terms" can be found or reasonably inferred. Segar v. Mukasey, 508 F.3d 16, 21 (D.C.Cir. 2007) (citation and internal quotation mark omitted).
Count I alleges that Ms. Dailey executed the Consulting Agreement for the PSC and that the Law Firms were part of the PSC, see Compl. ¶¶ 16-19, and that Mr. Williams executed the Amendment as a "representative of the PSC and all Defendants herein." Id. ¶ 24; see also Compl., Exs. 1 & 2. The Geiers argue that even if the PSC was not a joint venture or other type of legal entity, see Compl. ¶ 16, the Law Firms are liable as "promoters." Opp. at 32-34.
Generally, when a promoter signs a contract on behalf of a nonexistent principal, the promoter renders himself liable on the contract. See Robertson v. Levy, 197 A.2d 443, 447 (D.C.1964) (when an individual purports to act on behalf of a corporation and the corporation has not yet been formed, the individual is liable for the debts he incurred). While a promoter can be held liable when he acts for a non-existent entity, he does not by his actions bind others. For example, in Shoreham Hotel Ltd. Partnership v. Wilder, 866 F.Supp. 1, 4 (D.D.C.1994), a hotel sued members of an unincorporated association for the cost of the association's conference at the hotel. The hotel sought to hold liable the person who actually signed the contract in D.C. Superior Court. It also filed a claim in federal district court against members of the association's steering committee. The district court refused to find the steering committee members liable simply because they were involved in planning the conference or simply because one committee member purported to act on behalf of the organization. Id. The court distinguished cases finding association members liable because in those cases the members had themselves negotiated
Here, the individuals who signed the Consulting Agreement and Amendment on behalf of the PSC may or may not be liable on the contract, but they could not bind others. There is no allegation that the Law Firms negotiated the contract or authorized the Geiers' services. Thus, Count I (breach of contract) will be dismissed under Rule 12(b)(6).
As an alternative to their claim that the PSC was not a legal entity, Count II of the Complaint alleges that the PSC was a joint venture and the Law Firms are liable as joint venturers.
The Geiers also claim that the Law Firms are liable under a theory of ratification, i.e., that they affirmed the Consulting Agreement and Amendment and thus should be held liable as if they had originally authorized the contract. See Monument Realty LLC v. WMATA, 535 F.Supp.2d 60, 71 (D.D.C.2008). Ratification is "the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account, whereby the act, as to some or all persons, is given effect as if originally authorized by him." Id. "Ratification requires that a party intend to affirm the contract with full knowledge of all material facts and circumstances." Avianca, Inc. v. Corriea, Civ. No. 85-3277(RCL), 1992 WL 93128, at *8 (D.D.C. Apr. 13, 1992). The doctrine of ratification applies only if the intent to ratify was "crystal clear" and "unequivocal." Id. The Geiers allege that the Law Firms knew about the contract with the Geiers, took no steps to disavow it, and paid funds to the PSC so that the PSC could pay its bills. There is no allegation that the Law Firms reviewed the Consulting Agreement and Amendment, had full knowledge of the contract terms, or clearly intended to be bound. Thus, Count III (ratification) will be dismissed without prejudice.
The Geiers allege in Count IV that the Law Firms are liable on an "implied contract" between the parties. "An implied-in-fact contract is a true contract, containing all necessary elements of a binding agreement; it differs from other contracts only in that it has not been committed to writing or stated orally in express terms, but rather is inferred from the conduct of the parties in the milieu in which they dealt." Vereen v. Clayborne, 623 A.2d 1190, 1193 (D.C.1993). To recover under an implied contract, a plaintiff must show that (1) valuable services were rendered; (2) for the person sought to be charged; (3) which services were accepted, used, and enjoyed by the person sought to
A similar case was decided by the District of Columbia Court of Appeals in Jordan Keys & Jessamy, LLP v. St. Paul Fire and Marine Ins. Co., 870 A.2d 58 (D.C.2005). The Jordan Keys law firm entered into an express contract with a hospital to provide legal services in defending a malpractice claim filed by a former patient. Id. at 60. St. Paul Fire & Marine Insurance Company provided excess liability insurance to the hospital that would cover the hospital's malpractice liabilities in excess of $1,000,000. The hospital filed for bankruptcy protection without having paid its legal bills, and Jordan Keys sued St. Paul to recover fees for legal services provided in the malpractice case. Jordan Keys acknowledged that its contract required the hospital to pay its fees. Id.
Nonetheless, Jordan Keys alleged that St. Paul was liable for its fees under an implied contract theory. The trial court rejected this claim and the court of appeals affirmed, finding that Jordan Keys failed to allege the fourth element of an implied contract claim. "At the time Jordan Keys provided services to the Hospital, St. Paul was not placed on notice that Jordan Keys expected to be paid for those services by St. Paul. On the contrary, as Jordan Keys acknowledges, it contracted to be paid by its client, the Hospital, and not by the Hospital's excess carrier, a party with which Jordan Keys had no agreement at all." Id. at 62.
As in Jordan Keys, the Geiers provided services to the PSC and the William Love firm under an express contract, the Consulting Agreement and Amendment. The Law Firms were not parties to the Consulting Agreement or the Amendment. The Geiers do not allege that they had any direct contact with the Law Firms in connection with the cases in Vaccine Court. See, e.g., Kim Mot. to Dismiss [Dkt. 7] at 13 n. 2 (the Kim firm had no contact with the Geiers in connection with the Omnibus Autism Proceeding). Instead, in support of the implied contract claim they allege that the Law Firms knew the PSC was not a legal entity and that each firm implicitly entered into a contract with the Geiers on its own behalf. Compl. ¶ 41. In opposition to the motions to dismiss, the Geiers make the additional allegation that the Law Firms were on the "expert subcommittee" for the PSC and that "[i]t is difficult to imagine that the parties occupying these positions were not aware of the retention and payment of these expert witnesses." Op. at 36-37. These allegations are too tenuous to allege notice to the Law Firms that the Geiers expected to be paid by them. Absent such notice, the Geiers' implied contract claim is untenable. See Jordan Keys, 870 A.2d at 62. Because the Geiers have failed to state a necessary element of a claim for breach of implied contract, the claim (Count IV) will be dismissed without prejudice.
The Geiers' claim for unjust enrichment fails as well. A claim for "unjust enrichment" is also known as a claim for "quantum meruit recovery." Such a claim may arise from an implied-in-law contract
In Jordan Keys, the District of Columbia Court of Appeals held that Jordan Keys could not recover on a theory of quantum meruit because the St. Paul Insurance Company was not unjustly enriched. Rather, "it was contemplated from the outset of the malpractice suit ... against the Hospital that St. Paul would receive the benefits of Jordan Keys' representation of the Hospital." Id. at 65. The court explained:
Id. at 66.
The Geiers may have expected to be paid by the Williams Love partners who had signed the Consulting Agreement and Amendment.
As explained above, to state a claim for attorney malpractice, a plaintiff must allege an attorney-client relationship. See Taylor, 859 A.2d at 147. There is no plausible allegation that the Geiers consulted the Law Firms for legal advice or that the Law Firms agreed to represent the Geiers as their attorneys. The Geiers' malpractice claim is based on the disingenuous assertion that the agreement to assist the Geiers in petitioning the Vaccine Court for fee payment created an attorney-client relationship between the Geiers and the Law Firms. This allegation is not "plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955. Count VI (Malpractice) will be dismissed for failure to state a claim.
The Geiers allege in Count VII of the Complaint that the Law Firms are liable for civil conspiracy to commit fraud. The elements of civil conspiracy are: "(1) an agreement between two or more persons; (2) to participate in an unlawful act, or in a lawful act in an unlawful manner; and (3) an injury caused by an unlawful overt act performed by one of the parties to the agreement (4) pursuant to, and in furtherance of, the common scheme." Exec. Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724, 738 (D.C.2000) (citing Griva v. Davison, 637 A.2d 830, 848 (D.C.1994)). There is no independent action in the District of Columbia for civil conspiracy; it is a means for establishing vicarious liability for an underlying tort. 749 A.2d at 738.
Here, the alleged underlying tort alleged is fraud, a claim that must meet a heightened pleading requirement. Under Federal Rule of Civil Procedure 9(b), a party must "state with particularity" the circumstances constituting the alleged fraud.
United States ex rel. Joseph v. Cannon, 642 F.2d 1373, 1385 (D.C.Cir.1981) (internal quotation marks and citations omitted). Further, one who alleges a conspiracy must allege an event, conversation, or document showing that there was an agreement among the alleged conspirators. Acosta Orellana v. CropLife Int'l, 711 F.Supp.2d 81, 113-14 (D.D.C.2010).
The Geiers' civil conspiracy allegations are threadbare accusations that fail to state a claim, see Iqbal, 556 U.S. at 678, 129 S.Ct. 1937, let alone meet the heightened pleading standard required by Rule 9(b). The Complaint alleges that the Williams Love partners "convinced the Geiers to agree to defer their fees for several years until such time as the PSC could file a fee application" and that they "intended to and did deceive the Geiers into performing hundreds of hours of consulting services with no realistic or feasible means of recovering their fees." Compl. ¶¶ 66-67. The Complaint alleges that Ms. Dailey and Mr. Williams acted as representatives for the Law Firms and that the Law Firms colluded with Mr. Williams. Id. ¶¶ 68-69. The Geiers fail to allege the time, place, and content of the false representations. Further, the Complaint does
The Law Firms also moved to dismiss Count VIII (Breach of Implied Warranty). The Geiers failed to address this issue in their response brief. "It is well understood in this Circuit that when a plaintiff files an opposition to a motion to dismiss addressing only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded." Hopkins v. Women's Div., General Bd. of Global Ministries, 238 F.Supp.2d 174, 178 (D.D.C.2002) (citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C.Cir.1997)). Accordingly, the motion to dismiss the breach of implied warranty claim (Count VIII) will be granted, and that Count will be dismissed as conceded.
For the reasons stated above, the motions to dismiss filed by the Law Firms: Conway, Homer & Chin-Caplan; John H. Kim & Associates, P.C.; Lommen, Abdo, Cole, King & Stageberg, P.A.; and Williams, Kherkher, Hart & Boundas LLP [Dkt. 6, 7, 8, 9] will be granted, and this case will be dismissed. A memorializing Order accompanies this Opinion.
