Mark R. GEIER, et al., Plaintiffs, v. CONWAY, HOMER & CHIN-CAPLAN, P.C., et al., Defendants.
Civil Action No. 12-1171 (RMC).
United States District Court, District of Columbia.
Feb. 8, 2013.
ROSEMARY M. COLLYER, District Judge.
Keith M. Bonner, Mark Alden Schofield, Bonner, Kiernan, Trebach & Crociata, LLP, Elizabeth H. Mykytiuk, Pamela Anne Bresnahan, Vorys, Sater, Seymour and Pease LLP, Dennis John Quinn, Carr Maloney PC, Washington, DC, Robert W. Hesselbacher, Jr., Meighan G. Burton, Wright, Constable & Skeen, LLP, Baltimore, MD, for Defendants.
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.
I. FACTS
A. Petitions for Vaccine Injury
The National Childhood Vaccine Injury Compensation Act,
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
B. Petitions Alleging Autism Caused by Vaccines
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,1 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 and thimerosal-containing vaccines can combine to contribute substantially to the causation of autism; and (2) that thimerosal-containing vaccines alone can contribute substantially to the causation of autism. King v. Sec‘y of HHS, No. 03-584V, 2011 WL 5926126, *1-2 (Fed.Cl.Spec.Mstr. Sept. 22, 2011). The special masters uniformly rejected both causation theories, and the petitioners were denied compensation. Id.
C. Retention of the Geiers
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:
Whereas, Law Firm desires to retain Geier for consulting and/or other related
services (such as for providing expert testimony), and Geier is willing to be retained on the terms and conditions below, Now therefore, Geier and Law Firm agree as follows:
1. Recitals
The above recitals are made a substantial part hereof.
2. Services to be performed by Geier.
Obtaining and evaluating VSD [Vaccine Safety Datalink records], screening data, obtaining medical scientific literature as defined by client need.
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 NVICP2 PSC Executive Committee.” Id. at 2. At the time, Ms. Dailey was a member of Williams, Dailey, O‘Leary, a law firm based in Portland, Oregon. Id. at 1.
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:
The Geiers understand and agree that they will not be paid for their time on this project until the Vaccine Court has approved their fees, which may not be for two or more years. They are not working on a contingency fee basis but on a deferred fee basis. The PSC will support them in their fee petition and will help to get the Geiers paid fairly and fully at the appropriate time.
Compl., Ex. 2 (Amendment) at 1.3 The Amendment was signed by Michael L. Williams, “on behalf of the Petitioners’ Steering Committee.” Mr. Williams is a partner in the Oregon law firm mentioned above. That law firm is now known as Williams, Love, O‘Leary & Powers, P.C. (Williams Love).
D. Vaccine Court‘s Rejection of the Geiers’ Claim for Fees
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 *10.4
E. Maryland Lawsuit
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.
F. This Suit
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:
Count I—Breach of Contract;
Count II—Joint Venturer Liability for Breach of Contract;
Count III—Ratification;
Count IV—Implied Contract;
Count V—Unjust Enrichment;
Count VI—Joint and Several Liability for Professional Negligence (Malpractice);
Count VII—Civil Conspiracy for Fraud; and
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.
II. LEGAL STANDARD
A. Motion to Dismiss for Lack of Personal Jurisdiction
On a motion to dismiss for lack of personal jurisdiction pursuant to
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).
B. Motion to Dismiss for Failure to State a Claim
A motion to dismiss pursuant to
III. ANALYSIS
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.
A. Specific Jurisdiction
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—
(1) transacting any business in the District of Columbia;
[or]
(3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia;....
“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, 393 F.3d 201, 205 (D.C.Cir.2004).
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. 408, 413-14 (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, “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 (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. 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 (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.
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.
Because a contract is ordinarily but an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction, a court must evaluate the prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing to determine whether the defendant purposefully established minimum contacts within the forum. Helmer, 393 F.3d at 205 (citing Burger King, 471 U.S. at 479).
1. Transacting Business in the District of Columbia
The Geiers contend that the Law Firms transacted business in the District of Columbia, and thus this Court can exercise personal jurisdiction under
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 Maryland6 and told him they wanted to hire him as a consultant for Vaccine Court litigation). While the record does not reflect where the Consulting Agreement or Amendment were executed, no one suggests that either was executed in the District of Columbia. Further, the services required under the Consulting Agreement—“[o]btaining and evaluating VSD [Vaccine Safety Datalink records], screening data, obtaining medical scientific literature as defined by client need“—contemplated that Dr. Geier would perform consulting work in Maryland where he maintained his home and place of business. See Consulting Agreement at 1. Although the Consulting Agreement and Amendment anticipated that the PSC might seek Dr. Geier‘s expert testimony in Vaccine Court in the District of Columbia, the PSC never did so. The mere possibility of expert testimony in the District of Columbia reveals only a tenuous connection with this forum and is insufficient on these facts to establish specific jurisdiction.
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:
A joint venture is an association of persons with intent, by way of express or implied contract, to engage in and carry out a single business venture for joint profit, for which purpose they combine their efforts, property, money, skill, and knowledge, without creating a partnership or a corporation, pursuant to an agreement that there shall be a community of interest among them as to the purpose of the undertaking, and that each participant shall stand in the relation of principal as well as agent as to each of the other coadventurers, with an equal right of control of the means employed to carry out the common purpose of the venture.
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 mem
Further, pursuant to statute, members of the PSC were paid by the Vaccine Court only for the value of the work they completed. See
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.7 The Geiers have not presented a factual basis for the exercise of jurisdiction under the “transacting business” provision of the long-arm statute.
2. Causing Tortious Injury In The District Of Columbia
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
This argument too is based on a faulty assumption----that there was an at
In addition,
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.
B. General Jurisdiction
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.”
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. 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.
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 repre
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.”8 This question need not be an
C. Failure to State a Claim
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.
1. Breach of Contract
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 nonexistent 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).
2. Joint Venture Breach of Contract
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.9 Id. ¶¶ 29-36. As explained above, the Geiers do not allege facts sufficient to demonstrate the existence of a joint venture. The Vaccine Court ordered the creation of the PSC for the purposes of efficient discovery and presentation of evidence on the shared issue of causation, and the Vaccine Court explicitly retained authority to appoint its members. See Autism General Order # 1. There was no agreement among the Law Firms to share profits. Because the PSC was not a joint venture, the Law Firms cannot be liable as purported joint venturers. Count II, joint venture breach of contract, will be dismissed.
3. Ratification
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.
4. Implied Contract
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 Williams 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.
5. Unjust Enrichment
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:
There can be no doubt that the Hospital‘s bankruptcy significantly altered the legal terrain insofar as Jordan Keys was concerned. Jordan Keys had expected to be fully compensated by the Hospital, and its client‘s bankruptcy shattered these expectations. Nevertheless, in the absence of some unanticipated and unjust enrichment of St. Paul, the loss resulting from the Hospital‘s inability to meet its obligations must be borne by the party that contracted with the Hospital, namely, Jordan Keys.
The Geiers may have expected to be paid by the Williams Love partners who had signed the Consulting Agreement and Amendment.11 They have not alleged facts showing that they could have reasonably expected non-signatories to pay them. Also, from the outset, the Geiers contemplated that their work would benefit all of the petitioners’ counsel in Vaccine Court, whether or not such counsel were members of the PSC, and thus the Law Firms were not unjustly enriched. Further, given the reaction of Vaccine Court to the Geiers it is doubtful that the Law Firms were particularly benefitted by the Geiers’ services.12 The Court will dismiss Count V for unjust enrichment.13
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. Count VI (Malpractice) will be dismissed for failure to state a claim.
7. Civil Conspiracy for Fraud
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
[This means that the pleader must state the time, place and content of the false misrepresentations, the fact misrepresented and what was obtained or given up as a consequence of the fraud. The rule serves to discourage the initiation of suits brought solely for their nuisance value, and safeguards potential defendants from frivolous accusations of moral turpitude.... And because “fraud” encompasses a wide variety of activities, the requirements of Rule 9(b) guarantee all defendants sufficient information to allow for preparation of a response.
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, let alone meet the heightened pleading standard required by
8. Breach of Implied Warranty
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.
IV. CONCLUSION
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.
ROSEMARY M. COLLYER
United States District Judge