American Civil Construction, LLC v. Fort Myer Construction Corp.

246 F. Supp. 3d 309, 2017 WL 1185167, 2017 U.S. Dist. LEXIS 46421
CourtDistrict Court, District of Columbia
DecidedMarch 29, 2017
DocketCivil Action No.: 15-0515 (RC)
StatusPublished
Cited by8 cases

This text of 246 F. Supp. 3d 309 (American Civil Construction, LLC v. Fort Myer Construction Corp.) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Civil Construction, LLC v. Fort Myer Construction Corp., 246 F. Supp. 3d 309, 2017 WL 1185167, 2017 U.S. Dist. LEXIS 46421 (D.D.C. 2017).

Opinion

MEMORANDUM OPINION

Denying Defendant’s Motion for Summary Judgment; Granting Defendant’s Motion to Dismiss; Denying Plaintiff’s Cross-Motion for Partial Summary Judgment; Denying Defendant’s Motion to Strike as Moot

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

This action arises from a dispute between two construction companies. Plaintiff American Civil Construction, LLC (“ACC”) alleges that Defendant Fort Myer Construction Corporation (“Fort Myer”) breached a subcontract for work related to the pistrict of Columbia’s new streetcar system. After a period of discovery, Fort Myer filed a motion to dismiss for lack of subject matter jurisdiction and a motion for summary judgment. In response, ACC cross-moved for partial summary judgment on two discrete issues. Because the Court finds that ACC brought suit despite failing to acquire the proper registration with the District, the District’s door closing statute deprives the Court of subject matter jurisdiction. But the Court will permit ACC an opportunity to file a supplemental complaint within thirty days to attempt to cure the jurisdictional problem. Finally, the Court finds that genuine issues of material fact preclude granting summary judgment to either party.

II. FACTUAL AND PROCEDURAL BACKGROUND

The Court will begin with a description of the allegations found in ACC’s Complaint before turning to other relevant facts and the procedural history of this action.

A. Allegations of the Complaint1

According to the Complaint, American Civil Construction, LLC, is a limited liability company organized under the laws of Maryland, with its principal place of business in Maryland. Compl. ¶ 1, ECF No. 1. ACC is in the business of construction contracting. Compl. ¶ 1. Fort Myer Construction Corporation is a corporation organized under the laws of Virginia, with its principal place of business in the District of Columbia. Compl. ¶ 2. Fort Myer is also in the business of construction contracting, and regularly does business in the District. Compl. ¶ 2.

ACC’s allegations are related to the construction of a streetcar project in the District. Compl. ¶ 4. Specifically, Fort Myer entered into a contract with the D.C. Department of Transportation (“DDOT”) referred to as the “Construction of Anacostia Initial Line Segment and Operation and Maintenance Facility, and Reconstruction of Firth Sterling Avenue — Milestone B” (“Anacostia Project”). Compl. ¶ 5. Fort Myer, the prime contractor, entered into a subcontract with ACC for the construction of foundations and the installation of ground rods and conduits. Compl. ¶ 6. Originally, the value of the work described in the subcontract was $649,161, but change orders increased that figure to $1,062,878.17. Compl. ¶ 6.

In a letter dated October 26, 2012, Fort Myer stated that it was terminating the [313]*313subcontract with ACC “for convenience,” even though the subcontract work was not yet completed. Compl. ¶8. ACC alleges that the terms of the subcontract only allow for termination “for convenience,” if DDOT also terminated its prime contract with Fort Myer “for convenience” first. Compl. ¶ 9. ACC alleges, however, that the prime contract between DDOT and Fort Myer was not terminated. Compl. ¶ 10.

ACC alleges that it wrote to Fort Myer and stated that the termination of the subcontract was wrongful and that ACC was prepared to complete the work described in the subcontract. Compl. ¶ 11. Fort Myer refused that offer, which ACC alleges was a breach of the subcontract. Compl. ¶ 12. ACC alleges that it was entitled to overhead and profit on the work it performed under the subcontract, but that Fort Myer has not made those payments. Compl. ¶¶ 9, 13.

ACC alleges that, before the termination of the subcontract, it performed work that was outside of the scope of the subcontract. Compl. ¶ 14. All of that work was “performed at the direction and with the knowledge and agreement of’ Fort Myer. Compl. ¶ 14. Fort Myer had a duty to process change orders related to that work, but Fort Myer refused to process and pay the change order requests that ACC submitted. Compl. ¶ 15. ACC alleges that this refusal constituted an additional breach of the subcontract. Compl. ¶ 15.

Finally, ACC alleges that retainage was withheld from Fort Myer’s payments to ACC. Compl. ¶ 16. ACC alleges that the full amount of the withheld retainage has not been paid to ACC. Compl. ¶ 17. In light of all of these allegations, ACC con-eludes that it has performed all work available to it under the subcontract, and that Fort Myer’s breach has caused damages. Compl. ¶¶ 18-19. ACC thus requests $300,000 in damages, as well as interest and costs. Compl. at 4.

B. Facts in the Record

The parties have presented a range of evidence in connection to the motions for summary judgment, including relevant documents and various declarations. ACC provides a letter dated May 28, 2009, from Fort Myer to ACC’s then-Principal, Edward F. Hollander, that encloses a copy of the subcontract at issue in this case. See Pl.’s Resp. Def.’s Mot. Summ. J. & Cross-Mot. Partial Summ. J. (“Pl.’s Opp’n & Cross-Mot. Summ. J.”), Ex. 4 at 1, ECF No. 24-4.2 The portions of the subcontract included in the record make clear that the subcontract related to a prime contract between Fort Myer and DDOT for work on the Anacostia Project. See PL’s Opp’n & Cross-Mot. Summ. J., Ex. 4 at 2. An addendum to the standard form agreement states that “[t]he Contractor may at any time terminate Subcontractor upon reasonable notice, for Contractor’s convenience.” PL’s Opp’n & Cross-Mot. Summ. J., Ex. 4 at 4-5, ¶ 7.3. But an attachment listing modifications to the terms of the addendum states that paragraph 7.3 of the addendum is struck, deleted, and replaced with: “The Contractor can only terminate the Subcontractor for convenience if the Owner similarly terminates the Contractor.” PL’s Opp’n & Cross-Mot. Summ. J., Ex. 4 at 7, ¶ 7.3.

On October 12, 2010, DDOT sent a letter to Fort Myer that set forth a significant [314]*314change to the scope of the prime contract. Def.’s. Opp’n Cross-Mot. Partial Summ. J., Ex. A at 1, ECF No. 28. The letter stated that “[t]he remaining scope of work on this Contract, is limited to the work identified in this Article 3 Letter, and the Contractor shall not perform any other work, unless it receives written authorization.” Def.’s Opp’n Cross-Mot. Partial Summ. J., Ex. A at 1.

In turn, Fort Myer sent a letter to its subcontractor, ACC, dated October 26, 2010. Pl.’s Opp’n & Cross-Mot. Summ. J., Ex. 2 at 1, ECF No. 24-2. Fort Myer stated that DDOT had “suspended” the prime contract through its October 12 letter and “deleted portions of its scope.” Pl.’s Opp’n & Cross-Mot. Summ. J., Ex. 2 at 1. Fort Myer explained that DDOT had since directed Fort Myer to resume work on the Anacostia Project, but that, in light of the changed scope of the contract, Fort Myer would terminate its subcontract with ACC “for convenience.” PL’s Opp’n & Cross-Mot. Summ. J., Ex. 2 at 1. ACC responded by letter dated November 7, 2012. See Def.’s Statement of Undisputed Facts, Ex. A at 1, ECF No. 20. ACC’s letter was drafted by Michael J. Jack, outside counsel who represents ACC in this litigation. Def.’s Statement of Undisputed Facts, Ex. A- at 1. The letter noted that when Mr.

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246 F. Supp. 3d 309, 2017 WL 1185167, 2017 U.S. Dist. LEXIS 46421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-civil-construction-llc-v-fort-myer-construction-corp-dcd-2017.