Ellipso, Inc. v. Mann
| Decision Date | 02 November 2006 |
| Docket Number | Civil Action No. 05-1186(RCL). |
| Citation | 460 F.Supp.2d 99 |
| Parties | ELLIPSO, INC., Plaintiff, v. John B. MANN, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Natalie Olivia Ludaway, Matthew H. Goodman, Leftwich & Ludaway, Washington, DC, for Plaintiff.
Thomas A. Mauro, Mauro Law Offices, PC, Washington, DC, for Defendants.
Robert B. Patterson, Alexandria, VA, pro se.
This matter comes before the Court on plaintiff Ellipso's Motion [73] to Compel Discovery Against Defendant Robert Patterson, Ellipso's Emergency Motion [74] for Protective Order and to Compel Discovery, defendants Mann and Mann Tech's Motion [79] to Compel Discovery Responses to the Second Request for Production of Documents Against Plaintiff Ellipso, and plaintiff Ellipso's Motion [55] to Dismiss Counterclaims. Upon consideration of the motions, the oppositions thereto, the briefs in reply, the applicable law, and the entire record herein, the Court concludes that the motions to compel and the motion for protective order will be denied, and the motion to dismiss will be granted in part and denied in part.
As an initial matter, the Court has before it several outstanding discovery motions: Ellipso's Motion [73] to Compel Discovery Against Defendant Robert Patterson, Ellipso's Emergency Motion [74] for Protective Order and to Compel Discovery, and Mann and Mann Tech's Motion [79] to Compel Discovery Responses to the Second Request for Production of Documents Against Plaintiff Ellipso. Each motion contains a short "Certificate of Good Faith," which in each case amounts to a statement by the filing party that "I attempted to secure the discovery responses." See Motion [73] to Compel Discovery ("I attempted to secure the discovery responses from Defendant Paterson"); Emergency Motion [74] for Protective Order and to Compel Discovery ("I attempted to secure the discovery responses from Defendants, who do not consent"); Motion [79] to Compel Discovery ("I attempted to secure the discovery Responses").
This appears to be an attempt to comply with Local Civil Rule 7(m), which requires that "[b]efore filing any nondispositive motion in a civil action, counsel shall discuss the anticipated motion with opposing counsel, either in person or by telephone, in a good-faith effort to determine whether there is any opposition to the relief sought and, if there is opposition, to narrow the areas of disagreement." LCvR 7(m). The purpose of the Local Rule is to promote the resolution of as many litigation disputes as possible without court intervention, or at least to force the parties to narrow the issues that must be brought to the court. United States ex rel. Pogue v. Diabetes Treatment Centers of America, 235 F.R.D. 521, 529 (D.D.C. June 2, 2006). The Local Rule requires that the parties "try[ ] in good faith to achieve its objectives," which means they must take "real steps to confer." United States ex rel. K & R Limited Partnership v. Massachusetts Housing Fin. Agency, 456 F.Supp.2d 46, 52 (D.D.C.2006). If a party files a nondispositive motion without certifying its compliance with Rule 7(m), the motion will be denied. Alexander v. FBI, 186 F.R.D. 185, 187 (D.D.C.1999).
Each of the discovery motions in this case is denied for failure to comply with Local Rule 7(m). The "Certificate of Good Faith" executed by counsel on each side merely certifies that there is a discovery dispute and that both sides know about it. The Rule requires, however, at the absolute minimum, that counsel "discuss the anticipated motion" and that they do so "in person or by telephone." While counsel in this case have shown themselves to be capable of generating an abundance of paper in corresponding about the underlying discovery disputes, there is no indication that opposing counsel notified each other that they were filing these discovery motions, nor is there any hint that they have discussed the motions in person or by phone, as required. Because the parties have not complied with Local Civil Rule 7(m), their discovery motions are denied.
After Ellipso moved to dismiss the counterclaim, Mann and Mann Tech filed an amendment to the counterclaim. They did so without seeking leave of court, since a party may amend its pleading one time as a matter of right "at any time before a responsive pleading is served," Fed. R.Civ.P. 15(a), and a motion to dismiss is not a responsive pleading. Fed.R.Civ.P. 7(a). Counterclaim-plaintiffs did not follow the normal and preferred method of amending their complaint by filing one single new document. Instead they filed a document which purported to delete two paragraphs from the original counterclaim, replacing them with five new paragraphs. The clear intent of this was to incorporate the rest of the original counterclaim into the amended counterclaim by reference. The Court will give effect to this obvious intent and deems the document an effective amendment to the original counterclaim, which is adopted by reference.1
Where a party amends its complaint, a pending motion to dismiss the original complaint is ordinarily denied without prejudice so that the movant can re-file the motion based on the amended pleading. See, e.g., Anderson v. USAA Casualty Ins., 218 F.R.D. 307, 311 (D.D.C. 2003); Baltierra v. West Virginia Bd. of Medicine, 253 F.Supp.2d 9, 14 (D.D.C. 2003). But where, as here, the amended pleading suffers from the same defects as the original and does not change the legal theories underlying the motion to dismiss, courts have the discretion to "consider the motion as being addressed to the amended pleading," because "[t]o hold otherwise would be to exalt form over substance." 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1476 (2d ed.1990); see also Rasul v. Bush, 215 F.Supp.2d 55, 58 n. 3 (D.D.C.2002); Nix v. Hoke, 62 F.Supp.2d 110, 115 (D.D.C.1999) (citing cases). Because the amendments to the counterclaim do not change the legal issues underlying the motion to dismiss and do not alter the outcome, the Court will consider the motion as one to dismiss the amended counterclaim.
A motion to dismiss pursuant to Rule 12(b)(6) will not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). "Given the Federal Rules' simplified standard for pleading, [a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)). While the Court must construe the factual allegations in the complaint in the light most favorable to the plaintiff and must grant the plaintiff the benefit of factual inferences that can be derived from the facts alleged, Conley, 355 U.S. at 45-46, 78 S.Ct. 99; Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994), the Court will not accept conclusory allegations or draw inferences not supported by the facts alleged in the complaint. Kowal, 16 F.3d at 1276.
Mann Tech alleges that it was a party to a contract whereby it agreed to loan money to Ellipso, and that Ellipso breached this contract by failing to make interest payments and otherwise defaulting on the loan. See, e.g., Counterclaim ¶¶ 21, 28, 31. Mann Tech has therefore stated a claim for breach of that contract.
It bears noting that many allegations in the counterclaim appear to involve payments made by Mann or one of his companies to Ellipso under a contract between Ellipso and The Registry Solutions Company (the "TRSC Contract"). See, e.g., Counterclaim ¶¶ 16, 26, 38. Any claim under that contract would be dismissed because neither Mann nor Mann Tech was a party to it, and because the contract contains a binding arbitration clause which commits the actual parties to the contract to arbitrate their disputes. See Ellipso, Inc. v. Mann, 2006 WL 229894 (D.D.C. Jan. 30, 2006).
C. Quantum Meruit & Unjust Enrichment
Both Mann and Mann Tech assert equitable claims for restitution in the form of quantum meruit and unjust enrichment. The allegations in the counterclaim fail to put Ellipso on notice as to what benefits Mann and Mann Tech provided — other than those called for under written contracts — to whom those benefits were provided, and what circumstances justify the expectation that Ellipso pay Mann and Mann Tech. For those reasons Mann and Mann Tech fail to state claims for relief.2
An action in quantum meruit is an action on a contract implied in fact, and consists of four elements: "1) valuable services rendered by the plaintiff; 2), for the person from whom recovery is sought; 3) which services were accepted and enjoyed by that person; and 4) under circumstances which reasonably notified the person that the plaintiff, in performing such services, expected to be paid." United States ex rel. Modern Electric, Inc. v. Ideal Electronic Security Co., 81 F.3d 240, 246-47 (D.C.Cir.1996) (quoting Providence Hospital v. Dorsey, 634 A.2d 1216, 1219 n. 8 (D.C.1993).
An unjust enrichment action, on the other hand, involves a quasi-contract, a contract implied in law. "Unjust enrichment occurs when a person retains a benefit (usually money) which in justice and equity belongs to another." 4934, Inc. v. District of Columbia Dep't of Employment Servs., 605 A.2d 50, 55 (D.C.1992). The elements are similar to those for quantum meruit, with the added element that the plaintiff must show "that it would be unjust for the recipient of a...
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