Torres Advanced Enter. Solutions LLC v. Mid-Atl. Prof'ls Inc.
| Decision Date | 28 January 2013 |
| Docket Number | Case No.: PWG-12-3679 |
| Parties | TORRES ADVANCED ENTERPRISE SOLUTIONS LLC, Plaintiff, v. MID-ATLANTIC PROFESSIONALS INC., t/a SSI Defendant. |
| Court | U.S. District Court — District of Maryland |
This Memorandum Opinion addresses Plaintiff Torres Advanced Enterprise Solutions, LLC's ("Torres") Motion for Temporary Restraining Order, ECF No. 3; Defendant Mid-Atlantic Professionals, Inc.'s, t/a SSI ("SSI") Opposition to Plaintiff's Motion for a Temporary Restraining Order, ECF No. 11; and Plaintiff's Reply in Support of Plaintiff's Motion for Temporary Restraining Order, ECF No. 19. The Plaintiff's Motion is DENIED for the reasons specified on the record during the hearing held on January 15, 2013, the transcript of which is incorporated herein by reference.
Torres entered into a Subcontracting Agreement with SSI, the prime contractor, effective October 1 2012 to provide linguistic services to the U.S. Department of State's Office of Diplomatic Security, American Embassy in Baghdad. ECF No. 3-2. The Subcontract Agreement is valued at $34 million for a base period of one year, followed by four year-longoption periods. ECF No. 3-2. Under this Subcontract Agreement, SSI would provide 51% of the linguistic services while Torres would provide 49% of the linguistic services, as well as all of the housing and life support services for the linguists. ECF No. 3-2. After creating this subcontractor relationship, Torres and SSI submitted a bid proposal to address the bid requirements laid out by the U.S. Department of State. ECF No. 11-11.
Torres intended to house the linguists in a compound it already occupied within the International Zone, as outlined in the Torres/SSI joint bid proposal to the U.S. Department of State. ECF No. 11-10. However, due to unexpected changes in requirements to occupy buildings in the International Zone imposed by the Government of Iraq, eviction notices were served on the Torres/SSI linguists on November 7 and 26, 2012. ECF No. 11-4. While Torres worked on a plan to become compliant with the Subcontract Agreement and meet the expectations of the U.S. Department of State, ECF No. 11-5, the eviction from the Torres compound forced SSI to move the linguists into Prosperity, the American Embassy in Baghdad's housing facility on November 27, 2012. ECF No. 11-6.
On December 10, 2012, Torres submitted a proposal to the U.S. Department of State to house the linguists in an area called Jedraya, in what is known as the "Kurdish Zone" or "Red Zone " ECF No 11-7. However, the Bureau of Diplomatic Security at the U.S. Department of State informed SSI on December 10, 2012, that the proposal to house the linguists in the Red Zone was rejected at "unacceptable" due to serious safety and operational concerns that would put American citizens at "undue risks." ECF No. 11-12. The U.S. Department of State then requested an alternative solution. ECF No. 1-3. On December 11, 2012 Torres sent a comprehensive response to the U.S. Department of State, asking that the Red Zone proposal be reconsidered. ECF No. 1-4. It was around this time, although the exact date is in dispute, thatSSI entered into a Teaming Agreement with another company, IBS, for housing and life support services for the linguists. Def.'s Exs. 16, 17, 18. SSI characterizes the Teaming Agreement with IBS as a contingent arrangement necessary to prevent the U.S. Department of State from terminating the entire contract if Torres was unable to secure housing for the linguists in the International Zone. TRO Hr'g, Jan 15, 2013. Torres, however, characterizes the Teaming Agreement as an unjustified termination by SSI of Torres' subcontract obligations to provide housing for the linguists. Id.
On December 14th, 2012, Torres filed this lawsuit claiming breach of the Subcontract Agreement by SSI. PL's Compl, ECF No. 1. On the same day, Torres also filed a Motion for a Temporary Restraining Order under Fed. R. Civ. P. 65, seeking "an order (1) enjoining SSI from teaming up with any other company for the purposes of performing the services covered by the Subcontract agreement; and (2) to prevent SSI from taking any further action that is not consistent with the terms of the Subcontract Agreement." ECF No. 3.
On December 17th, SSI issued a cure notice to Torres for the housing and life servicjes portion of the Subcontract Agreement. ECF No. 11-9. The U.S. Department of State responded to Torres' December 12, 2012 reconsideration request on December 19, 2012, rejecting for a second time Torres' housing proposal due to safety concerns. ECF No. 11-13.
On December 27, 2012, Torres responded to SSI's cure notice, accusing SSI of having a pretext to break the contract in order to get rid of Torres as the subcontractor, requesting a withdrawal of the cure notice, and informing SSI of a new housing proposal. ECF No. 19-2. This new proposal, which SSI sent on to the U.S. Department of State for approval, outlined a two-phase solution where the linguists first would be kept at Prosperity in the short term, then moved to long-term housing in the International Zone, which would be ready "in approximatelyone month." ECF No. 19-2. This proposal was rejected by the U.S. Department of State on January 9, 2013, as the additional time the linguists would have to be housed in Prosperity, as well as the lack of pricing in the proposal, was found to be unacceptable. ECF No. 22-1, Ex. C. As housing the linguists at Prosperity adversely impacted their agreement to turn that compound over to the Government of Iraq, the U.S. Department of State informed SSI that they would start the termination process for the prime contract if they did not receive an acceptable solution to the housing situation within 24 hours. ECF No. 22-1, Ex. A. Later, on January 9, 2013, SSI sent a letter terminating the housing and life support services portion of the Subcontract Agreement with Torres, but not the portion of the subcontract allowing Torres to provide 49% of linguistic services. ECF No. 22-1, Ex. D.
The purpose of a temporary restraining order ("TRO") or a preliminary injunction is to "protect the status quo and to prevent irreparable harm during the pendency of a lawsuit, ultimately to preserve the court's ability to render a meaningful judgment on the merits." In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 525 (4th Cir. 2003). A preliminary injunction is distinguished from a TRO only by the difference in notice to the nonmoving party and by the duration of the injunction. U.S. Dep't of Labor v. Wolf Run Mining Co., 452 F.3d 275, 281 n. 1 (4th Cir. 2006) (comparing Fed.R.Civ.P. 65(a) with Fed.R.Civ.P. 65(b)). The substantive standards for a TRO and a preliminary injunction are identical; therefore a district court can consider a motion for a TRO as a request for a preliminary injunction, so long as the opposing party was given notice sufficient to allow for a fair opportunity to oppose it. Id. at 283 (citing Ciena Corp. v. Jarrard, 203 F.3d 312, 319 (4th Cir. 2000)).
To obtain a TRO or a preliminary injunction, the plaintiff must "establish that [1] he islikely to succeed on the merits, [2] he is likely to suffer irreparable harm in the absence of preliminary relief, [3] the balance of equities tips in his favor, and [4] an injunction is in the public interest." Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 374-76, 172 L.Ed.2d 249 (2008); see Dewhurst v. Century Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011). As a preliminary injunction is Winter, 555 U.S. at 22.
Prior to 2009, the Fourth Circuit followed a "balance of hardship" approach to preliminary injunctions considering all four Winter factors, but "allowed[ing] each requirement to be conditionally redefined" in a "flexible interplay" depending on how the other requirements were met. Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 347 (4th Cir. 2009) (citing Blackwelder Furniture Co. of Statesville v. Seilig Manufacturing Co., 550 F.2d 189, 196 (4th Cir. 1977)). However, Real Truth invalidated this approach, and it "may no longer be applied" in the Fourth Circuit. Id. at 347. As a result, the plaintiff must satisfy each requirement as articulated. Id. at 347.
To meet the first requirement, the plaintiff must "clearly demonstrate that he will likely succeed on the merits", rather than present a mere "grave or serious question for litigation." Id. at 346-347 (). Only "providing sufficient factual allegations to meet the [Fed. R. Civ. P.] 12(b)(6) standard of Twombly and Iqbal" does not meet the rigorous standard required under the Winter and Real Truth decisions. Allstate Ins. Co. v. Warns, Civil Action No. CCB-11-1846, 2012 WL 681792, at *14 (D. Md. 2012).
Relevant to the present case is that post-Real Truth courts have "declined to issue a preliminary injunction when there are significant factual disputes" in breach of contract cases.Chattery Intern., Inc. v. JoLida, Inc., Civil Action No. WDQ-10-2236, 2011 WL 1230822 (D. Md. 2011) ().
In the present case, the record highlights multiple unresolved factual disputes. As the resolution of these disputes is central to the determination of a breach of contract claim, Plaintiff is prevented from making a clear showing of a likelihood of success on the merits. These disputes include, but are not limited to: [1] whether there was a...
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