UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
DANIEL BRINK, et al.,
Plaintiffs,
v. Civ. Action No. 11-1733 (EGS/ZMF) XE HOLDING, LLC et al.,
Defendants.
MEMORANDUM OPINION
I. Introduction
Nicky Pool (“Ms. Pool” or “Plaintiff”) brings this action
against Continental Insurance Company (“CNA” or “Defendant”),
alleging breach of contract and tortious breach of the covenant
of good faith and fair dealing. See Fourth Amended Compl. for
Damages & Declaratory & Injunctive Relief (“FAC”), ECF No. 214
¶¶ 1, 153-68. 1
Pending before the Court is CNA’s Motion to Dismiss for
lack of subject matter jurisdiction and for failure to state a
claim. See Def. Continental Insurance Company’s Mot. Dismiss
1 When citing electronic filings throughout this Opinion, the Court refers to the ECF page numbers, not the page numbers of the filed documents. 1 Counts VI & VII Fourth Am. Compl. (“Def.’s Mot.”), ECF No. 220.
On May 19, 2022, Magistrate Judge Zia M. Faruqui issued a Report
& Recommendation (“R. & R.”) recommending that the Court grant
in part and deny in part CNA’s motion, ECF No. 220. See R. & R.,
ECF No. 248 at 12.
Both parties raise several objections to Magistrate Judge
Faruqui’s R. & R. See generally Pl. Nicky Pool’s Mem. Supp.
Objs. R. & R. of Magistrate on CNA’s Mot. Dismiss Fourth Am.
Compl. (“Pl.’s Objs.”), ECF No. 250-1; Def. Continental
Insurance Company’s Objs. Magistrate Judge’s Proposed Findings &
Recommendations Def.’s Mot. Dismiss Counts VI & VII Fourth Am.
Compl. (“Def.’s Objs.”), ECF No. 252. Upon careful consideration
of the R. & R.; the objections, oppositions, and reply thereto;
the applicable law; and the entire record herein, the Court
hereby ADOPTS IN PART Magistrate Judge Faruqui’s R. & R., ECF
No. 248; and GRANTS IN PART and DENIES IN PART CNA’s Motion to
Dismiss, ECF No. 220.
II. Background
A. Factual
For the purposes of resolving CNA’s Motion to Dismiss, the
Court assumes the facts alleged in the Fourth Amended Complaint
to be true and construes them in Ms. Pool’s favor. See Baird v.
Gotbaum, 792 F.3d 166, 169 n.2 (D.C. Cir. 2015) (citation
omitted).
2 In 2007, CNA arranged for Ms. Pool to provide daily nursing
services in South Africa to Daniel Brink (“Mr. Brink”), a
contractor who had sustained several injuries from an explosion
in Iraq. See FAC, ECF No. 214 ¶¶ 86–87. Ms. Pool submitted a
series of invoices to CNA seeking payment for her services and
reimbursement for other services and supplies. See id. ¶ 88. CNA
initially paid some invoices but at some point, stopped. See id.
¶ 89. Because she had not been reimbursed for services and
supplies, medical companies and service providers later brought
collections actions totaling over $150,000 against Ms. Pool and
her company, Guardian Medical. See id. ¶¶ 90–91.
On September 26, 2011, Ms. Pool and other plaintiffs
(collectively, “Plaintiffs”) filed this class action against
various government contractors and their insurance carriers. See
Compl., ECF No. 1 ¶¶ 453–64. Plaintiffs alleged violations of
the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §
901 et seq.; the Racketeer Influenced and Corrupt Organizations
Act, 18 U.S.C. § 1961 et seq.; and the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; along with
various state-law claims. See generally id. The Court dismissed
all claims, see Brink v. XE Holding, LLC, 910 F. Supp. 2d 242,
258 (D.D.C. 2012), aff’d in part, vacated in part, remanded sub
nom. Brink v. Cont’l Ins. Co., 787 F.3d 1120 (D.C. Cir. 2015);
and the Court of Appeals for the District of Columbia Circuit
3 (“D.C. Circuit”) affirmed the ruling except the dismissal of the
ADA claims, see Brink, 787 F.3d at 1126, 1128–29. The D.C.
Circuit stated that its ruling did “not preclude separate
proceedings for . . . Nicky Pool to allege a breach of
contract.” Id. at 1126. Ms. Pool thereafter filed an amended
complaint alleging breach of contract and tortious breach of the
covenant of good faith and fair dealing. See FAC, ECF No. 214 ¶¶
1, 153-68.
B. Procedural
On March 5, 2018, CNA filed this Motion to Dismiss Ms.
Pool’s state-law claims in the Fourth Amended Complaint. See
Def.’s Mot., ECF No. 220. Ms. Pool submitted her opposition
brief on April 8, 2018, see Pl.’s Resp. & Opp’n Def. CNA’s Mot.
Dismiss Counts V & VI Fourth Am. Compl. Pursuant Rules 12(b)(1)
& 12(b)(6) of Fed. R. Civ. P., ECF No. 227; and CNA filed its
reply brief on April 17, 2018, see Def. Continental Insurance
Company’s Reply Mem. P. & A. in Further Supp. Mot. Dismiss
Counts VI & VII Fourth Am. Compl., ECF No. 234.
On May 19, 2022, Magistrate Judge Faruqui issued his R. &
R. recommending that the Court grant in part and deny in part
CNA’s motion, ECF No. 220. See R. & R., ECF No. 248 at 12. Both
parties raise several objections to the R. & R., see Pl.’s
Objs., ECF No. 250-1; Def.’s Objs., ECF No. 252; and have
submitted briefs in opposition, see Pl. Nicky Pool’s Mem. Opp’n
4 Def. Continental Insurance Company’s Objs. Magistrate Judge’s
Proposed Findings & Recommendations (“Pl.’s Opp’n”), ECF No.
253; Def. Continental Insurance Company’s Resp. Pl. Nicky Pool’s
Objs. Magistrate Judge’s Proposed Findings & Recommendation
Def.’s Mot. Dismiss Counts VI & VII Fourth Am. Compl. (“Def.’s
Opp’n”), ECF No. 255. Ms. Pool also submitted a reply brief. See
Pl.’s Reply Mem. Objs. R. & R. CNA’s Mot. Dismiss Counts (“Pl.’s
Reply”), ECF No. 256. The motion is now ripe and ready for
adjudication.
III. Legal Standard
A. Objections to a Magistrate Judge’s Report and Recommendation
Pursuant to Federal Rule of Civil Procedure 72(b), a party
may file specific written objections once a magistrate judge has
entered a recommended disposition. Fed. R. Civ. P. 72(b)(1)-(2).
A district court “may accept, reject, or modify the recommended
disposition.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. §
636(b)(1)(C) (“A judge of the court may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.”). A district court “must
determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3).
“If, however, the party makes only conclusory or general
objections, or simply reiterates his original arguments, the
5 Court reviews the [R. & R.] only for clear error.” Houlahan v.
Brown, 979 F. Supp. 2d 86, 88 (D.D.C. 2013) (citation and
internal quotation marks omitted). “Under the clearly erroneous
standard, the magistrate judge’s decision is entitled to great
deference” and “is clearly erroneous only if on the entire
evidence the court is left with the definite and firm conviction
that a mistake has been committed.” Buie v. Dist. of Columbia,
No. CV 16-1920 (CKK), 2019 WL 4345712, at *3 (D.D.C. Sept. 12,
2019) (citing Graham v. Mukasey, 608 F. Supp. 2d 50, 52 (D.D.C.
2009)) (internal quotation marks omitted).
Objections must “specifically identify the portions of the
proposed findings and recommendations to which objection is made
and the basis for the objection[s].” LCvR 72.3(b). “[O]bjections
which merely rehash an argument presented and considered by the
magistrate judge are not ‘properly objected to’ and are
therefore not entitled to de novo review.” Shurtleff v. EPA, 991
F. Supp. 2d 1, 8 (D.D.C. 2013) (quoting Morgan v. Astrue, No.
08-2133, 2009 WL 3541001, at *3 (E.D. Pa. Oct. 30, 2009)).
B. Rule 12(b)(1) Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(1) provides for
dismissal of an action for “lack of subject matter
jurisdiction.” Fed. R. Civ. P. 12(b)(1). On a Rule 12(b)(1)
motion to dismiss, the party asserting jurisdiction has the
burden of establishing that the Court has subject matter
6 jurisdiction over the case. See Logan v. Dep’t of Veterans
Affs., 357 F. Supp. 2d 149, 153 (D.D.C. 2004) (citing McNutt v.
Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 182–83,
(1936)). “Because Rule 12(b)(1) concerns a court’s ability to
hear a particular claim, the court must scrutinize the [party]’s
allegations more closely when considering a motion to dismiss
pursuant to Rule 12(b)(1) than it would under a motion to
dismiss pursuant to Rule 12(b)(6).” Schmidt v. U.S. Capitol
Police Bd., 826 F. Supp. 2d 59, 65 (D.D.C. 2011) (citations
To assess whether a complaint sufficiently alleges subject
matter jurisdiction, the Court accepts as true the allegations
of the complaint, see Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); and liberally construes the pleadings in the plaintiff’s
favor, see Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir.
2004). The Court may also consider “undisputed facts evidenced
in the record” as well as its own “resolution of disputed
facts.” Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C.
Cir. 1992).
C. Rule 12(b)(6) Motion to Dismiss
A motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) tests the legal sufficiency of a complaint.
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A
complaint must contain “a short and plain statement of the claim
7 showing that the pleader is entitled to relief, in order to give
the 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 (2007) (citation and internal quotation marks
Despite this liberal pleading standard, to survive a motion
to dismiss, a complaint “must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible
on its face.” Iqbal, 556 U.S. at 678 (citation and internal
quotation marks omitted). “In determining whether a complaint
fails to state a claim, [the court] may consider only the facts
alleged in the complaint, any documents either attached to or
incorporated in the complaint and matters of which [the court]
may take judicial notice.” EEOC v. St. Francis Xavier Parochial
Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). A claim is facially
plausible when the facts pled in the complaint allow the court
to “draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678. The
standard does not amount to a “probability requirement,” but it
does require more than a “sheer possibility that a defendant has
acted unlawfully.” Id.
“[W]hen ruling on a defendant’s motion to dismiss [pursuant
to Rule 12(b)(6)], a judge must accept as true all of the
factual allegations contained in the complaint.” Atherton v.
8 D.C. Off. of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009)
(citation and internal quotation marks omitted). In addition,
the court must give the plaintiff the “benefit of all inferences
that can be derived from the facts alleged.” Kowal v. MCI
Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
IV. Analysis
A. The Court Has Diversity Jurisdiction Over Ms. Pool’s Claims
The Fourth Amended Complaint (“FAC”) alleges diversity of
citizenship as a basis for the Court’s jurisdiction. See FAC,
ECF No. 214 ¶ 3. Magistrate Judge Faruqui concluded that Ms.
Pool failed to establish diversity jurisdiction because she
provided no facts to support her legal conclusion that “there is
complete diversity of citizenship of the parties.” R. &. R., ECF
No. 248 at 4-5. Ms. Pool did not object to Magistrate Judge
Faruqui’s conclusion in her objections to the R. &. R., see
generally Pl.’s Objs., ECF No. 250-1; but did argue in her
response to CNA’s objections that CNA incorrectly argued that
there is no diversity jurisdiction, arguing that the FAC alleges
complete diversity of citizenship as to herself and CNA, Pl.’s
Opp’n, ECF No. 253 at 15-16.
The Court has an “affirmative obligation to determine
whether it has subject matter jurisdiction over the action.”
Friends Christian High Sch. v. Geneva Fin. Consultants, 321
9 F.R.D. 20, 22 (D.D.C. 2017). Diversity jurisdiction exists when
the action involves citizens of different states, and the amount
in controversy exceeds $75,000.00 per plaintiff, exclusive of
interest and costs. 28 U.S.C. § 1332(a). Each plaintiff must be
diverse from each defendant for diversity jurisdiction to exist.
See In re Lorazepam & Clorazepate Antitrust Litig., 631 F.3d
537, 541 (D.C. Cir. 2011). “[T]he party seeking the exercise of
diversity jurisdiction bears the burden of pleading the
citizenship of each and every party to the action.” Naartex
Consulting Corp. v. Watt, 722 F.2d 779, 792 (D.C. Cir. 1983). At
this time, the only parties that remain in this action are Ms.
Pool and CNA. Accordingly, Ms. Pool needs to allege complete
diversity between herself and CNA. For the reasons explained
below and liberally construing the pleadings in her favor, the
Court concludes that Ms. Pool has adequately alleged diversity
jurisdiction.
Ms. Pool alleges that she is a foreign national of South
Africa. The FAC alleges that “[o]ne of the Plaintiffs described
below is a foreign national from South Africa who was denied pay
under an agreement with Continental Insurance Company that
caused loss to her and her business as described below.” FAC,
ECF No. 214 ¶ 5. The only Plaintiff who alleges that she was
denied pay under an agreement with CNA is Ms. Pool. See id. ¶¶
153-167.
10 “[A] corporation shall be deemed to be a citizen of every
State and foreign state by which it has been incorporated and of
the State or foreign state where it has its principal place of
business.” 28 U.S.C. § 1332(c)(1). The FAC alleges that CNA’s
headquarters is in Chicago, Illinois. See FAC, ECF No. 214 ¶ 93.
With these allegations, Ms. Pool has adequately alleged complete
diversity between herself and CNA because she has alleged that
she is a citizen of South Africa and that CNA is a citizen of
Illinois. Ms. Pool also alleges damages in excess of $200,000.
Id. ¶ 97, 156. For these reasons, the Court concludes that Ms.
Pool has adequately alleged diversity jurisdiction.
The FAC does not allege that the Court has supplemental
jurisdiction over Ms. Pool’s claims against CNA. Ms. Pool
alleges claims for breach of contract, see id. ¶¶ 153-164; and
tortious breach of covenant of good faith and fair dealing, see
id. ¶¶ 165-168. However, the FAC alleges only that “[t]he court
has supplemental jurisdiction over the federal common law or
state law claims for fraud, bad faith insurance practices,
outrage, and deception in trade practices.” Id. ¶ 3. Because the
Court has determined that it has diversity jurisdiction over Ms.
Pool’s claims, however, the Court need not address the parties’
arguments regarding supplemental jurisdiction.
11 B. The Court Adopts the Portion of the R. & R. Regarding the Statute of Limitations
Both parties object to Magistrate Judge Faruqui’s
conclusions as to whether the statute of limitations bars Ms.
Pool’s claims. For the reasons that follow, the Court agrees
with Magistrate Judge Faruqui that Ms. Pool’s invoices from June
30, 2008 to October 30, 2009 fall within the statute of
limitations and that her invoices preceding that period are
barred.
1. Ms. Pool’s Claims Relate Back to the Original Complaint
CNA objects to Magistrate Judge Faruqui’s conclusion that
Ms. Pool’s claims in the Fourth Amended Complaint relate back to
the original Complaint. See Def.’s Objs., ECF No. 252 at 18-20.
An amended complaint “relates back to the date of the
original pleading when[] . . . the amendment asserts a claim or
defense that arose out of the conduct, transaction, or
occurrence set out—or attempted to be set out—in the original
pleading.” Fed. R. Civ. P. 15(c)(1)(B). To determine whether the
amendment relates back, the court inquires “whether the original
complaint adequately notified the defendant[] of the basis for
liability the plaintiff[] would later advance in the amended
complaint.” Meijer, Inc. v. Biovail Corp., 533 F.3d 857, 866
(D.C. Cir. 2008).
12 CNA asserts that Magistrate Judge Faruqui erred for two
reasons. See Def.’s Objs., ECF No. 252 at 18-20. First, CNA
contends that Magistrate Judge Faruqui failed to consider that
“a new claim cannot relate back to claims that were eliminated
from the prior complaint.” Id. at 18 (citing Halldorson v. Sandi
Grp., 934 F. Supp. 2d 147, 158 (D.D.C. 2013); Wagner v.
Georgetown Univ. Med. Ctr., 768 A.2d 546, 559 (D.C. 2001)).
Second, CNA argues that Magistrate Judge Faruqui erroneously
limited his inquiry to whether CNA was on notice of Ms. Pool’s
claims and “did not undertake the necessary analysis of whether
[Ms.] Pool’s new individual claim for breach of contract arises
from the ‘same conduct’ that forms the basis of” the claims that
remain in the case. Id. at 19 (citations omitted). Here, CNA
concludes that Ms. Pool’s claims in the Fourth Amended Complaint
cannot relate back to the claims in the original Complaint
because: the Court dismissed the Second Amended Complaint “in
its entirety”; the only claims that remain now are the ADA
claims by other plaintiffs in the case; and the ADA claims do
not pertain to Mr. Brink, Ms. Pool, or CNA. Id.
As to CNA’s first point, Ms. Pool argues that CNA has
misinterpreted the caselaw and that the caselaw limits relation
back only when the older claim was voluntarily dismissed. See
Pl.’s Opp’n, ECF No. 253 at 14 (citing Halldorson, 934 F.2 at
158). The Court agrees with Ms. Pool that the caselaw does not
13 support CNA’s position. In Halldorson, the Court held that the
state-law retaliation claims in the third amended complaint did
not relate back to previous allegations because the second
amended complaint “eliminated” the state-law retaliation claims
and the settlement agreement preceding the second amended
complaint otherwise barred common-law theories of recovery.
Halldorson, 934 F.2 at 158. Here, by contrast, previous
litigation “eliminated” only the class claims alleged by Ms.
Pool and other plaintiffs against CNA and other defendants but
“d[id] not preclude separate proceedings for . . . [Ms.] Pool to
allege [an individual claim for] breach of contract” against
CNA. Brink, 787 F.3d at 1126. Halldorson is therefore
distinguishable from the instant case.
Ms. Pool does not address CNA’s second point that
Magistrate Judge Faruqui failed to consider whether her new
claim arose from the same conduct as the original claim. See
Pl.’s Opp’n, ECF No. 253 at 12-14. She instead defends
Magistrate Judge Faruqui’s conclusion that CNA had notice of Ms.
Pool’s claims, see id.; an issue that CNA does not dispute in
its Objections, see generally Def.’s Objs., ECF No. 252 at 18-
20. Despite her silence, the Court is persuaded that Magistrate
Judge Faruqui undertook the necessary Rule 15 analysis here.
“[B]oth elements [of Rule 15]—same conduct and adequate notice—
must be satisfied before relation back of new claims is
14 permitted.” Constr. Interior Sys., Inc., 813 F. Supp. at 37. The
district court there held that the new claim did not relate back
to the original pleadings in part because the “factual
underpinnings” of the new claim were “entirely different” from
those in the original complaint. Id. at 36-37. Here, as
Magistrate Judge Faruqui explained in the R. & R., see R. & R.,
ECF No. 248 at 6; the factual underpinnings of Ms. Pool’s new
claims are the same as those of her previous class claim,
compare FAC, ECF No. 214 ¶¶ 86-97, with Compl., ECF No. 1 ¶¶
453-64. Stated differently, the new individual claim arose from
the same conduct as the original pleading. See United States v.
Hicks, 283 F.3d 380, 388 (D.C. Cir. 2002).
Finally, CNA argues that Ms. Pool’s claims do not relate
back because the D.C. Circuit “did not remand the case with
directions to allow amending the complaint to include Pool’s
individual claims.” Def.’s Objs., ECF No. 252 at 20. This
argument ignores, however, that the D.C. Circuit did not
prohibit Ms. Pool from seeking leave to amend the complaint to
allege individual claims. Cf. Brink, 787 F.3d at 1126
(explaining that the decision “does not preclude separate
proceedings for . . . [Ms.] Pool to allege a breach of
contract”); Fed. R. Civ. P. 15(a)(2) (“The court should freely
give leave [to amend the complaint] when justice so requires.”).
15 Accordingly, the Court concludes that Ms. Pool’s individual
claims relate back to the original Complaint and ADOPTS that
portion of the R. & R.
2. Magistrate Judge Faruqui Correctly Assumed an Installment Contract with a Three-month Payment Term
Both parties object to Magistrate Judge Faruqui’s analysis
and conclusion as to when Ms. Pool’s claims accrued. See Pl.’s
Objs., ECF No. 250-1 at 7-12; Def.’s Objs., ECF No. 252 at 20-
21.
CNA argues that Magistrate Judge Faruqui incorrectly
assumed the existence of an installment contract. Def.’s Objs.,
ECF No. 252 at 20. CNA asserts that this assumption is erroneous
because it is based on information in Ms. Pool’s Opposition to
CNA’s Motion to Dismiss and not any allegations in the FAC. See
id. (citing Afram v. United Food & Commercial Workers Unions &
Participating Emp’rs Health & Welfare Fund, 958 F. Supp. 2d 275,
279 n.1 (D.D.C. 2013), appeal dismissed, No. 13–7136, 2014 WL
1378304 (D.C. Cir. Feb. 21, 2014); Briscoe v. Costco Wholesale
Corp., 61 F. Supp. 3d 78, 83 n.2 (D.D.C. 2014)). Ms. Pool does
not respond to this objection. See generally Pl.’s Objs., ECF
No. 250-1; Pl.’s Opp’n, ECF No. 253; Pl.’s Reply, ECF No. 256.
The Court is not persuaded that Magistrate Judge Faruqui
erred by considering the exhibits Ms. Pool filed with her
Opposition to CNA’s Motion to Dismiss. Although a court may not
16 consider new allegations raised in response to a motion to
dismiss, see Briscoe, 61 F. Supp. 3d at 83 n. 2 (citing Sloan v.
Urban Title Servs., Inc., 689 F. Supp. 2d 94, 114 (D.D.C.
2010)); it also “may consider . . . any documents either
attached to or incorporated in the complaint,” EEOC, 117 F.3d at
624. Here, the FAC discusses the “regular invoices [Ms. Pool
sent to CNA] for services she provided, and for the services,
supplies and medical providers whom she engaged to care for Mr.
Brink’s various needs from hospitalizations, wound care,
operations, therapy, and transportation and medical supplies” as
well as CNA’s payment of “some of those invoices.” FAC, ECF No.
214 ¶¶ 88-89. Because the FAC incorporates those invoices and
payment records by reference, Magistrate Judge Faruqui
appropriately considered Ms. Pool’s exhibits. See Gerlich v.
U.S. Dep’t of Just., 659 F. Supp. 2d 1, 5 n.2 (D.D.C. 2009).
In the alternative, CNA contends that Magistrate Judge
Faruqui did not imply a reasonable time for performance under an
installment contract. See Def.’s Objs., ECF No. 252 at 21.
Specifically, CNA argues that Magistrate Judge Faruqui “erred in
disregarding [Ms.] Pool’s own declaration, which concedes that
‘CNA stopped paying invoices in 2007.’” Id. (quoting Pool Decl.,
ECF No. 227-2 ¶ 8). The Court disagrees with this assessment. In
her declaration, Ms. Pool references documentation of CNA’s
payment history. See Pool Decl., ECF No. 227-2 ¶ 8 (“attached
17 spread sheet, attachment 3 hereto, showing invoicing and
payments with interest, to today’s date that have been
incurred”). In that exhibit, Ms. Pool states that CNA paid her
in three-month intervals. See Ex. 3, ECF No. 227-2 at 21-22. The
Court therefore concludes that Magistrate Judge Faruqui fairly
implied a three-month payment term. See R. & R., ECF No. 248 at
8 (discussing Exhibit 3).
Ms. Pool also objects to Magistrate Judge Faruqui’s
analysis as to whether CNA repudiated the contract. See Pl.’s
Objs., ECF No. 250-1 at 7-12. However, as CNA states in its
Opposition, see Def.’s Opp’n, ECF No. 255 at 9; her objection
merely repeats her Opposition to CNA’s Motion to Dismiss
verbatim, compare Pl.’s Objs., ECF No. 250-1 at 7-12, with Pl.’s
Opp’n & Resp. Def. CNA’s Mot. Dismiss Fourth Am. Compl., ECF No.
227 at 15-19. Accordingly, the Court reviews this objection only
for clear error, see Houlahan, 979 F. Supp. 2d at 88; and
concludes that Magistrate Judge Faruqui did not err with respect
to his analysis in this portion of the R. & R.
In sum, the Court concludes that Magistrate Judge Faruqui
appropriately assumed the existence of an installment contract
and implied a three-month payment term.
18 3. Magistrate Judge Faruqui Correctly Disregarded Ms. Pool’s Equitable Tolling Arguments
Ms. Pool objects to Magistrate Judge Faruqui’s failure to
apply the doctrine of equitable tolling to her claims. See Pl.’s
Objs., ECF No. 250-1 at 12-15. As with her repudiation argument,
see supra, her objection largely restates her Opposition to
CNA’s Motion to Dismiss verbatim, compare id., with Pl.’s Opp’n
& Resp. Def. CNA’s Mot. Dismiss Fourth Am. Compl., ECF No. 227
at 20-23. The Court therefore reviews Ms. Pool’s objection only
for clear error. See Houlahan, 979 F. Supp. 2d at 88. Finding no
error, the Court ADOPTS the portion of the R. & R. pertaining to
the statute of limitations.
C. Ms. Pool Adequately Pleaded a Claim for Breach of Contract
Ms. Pool adequately pleaded her claim for breach of contract.
See Def.’s Objs., ECF No. 252 at 21-25. In particular, CNA
argues that: (1) Magistrate Judge Faruqui incorrectly considered
evidence Ms. Pool submitted with her Opposition to its Motion to
Dismiss; (2) Ms. Pool has not alleged the existence of a
contract; and (3) Magistrate Judge Faruqui erred by not
considering its documentary evidence. See id. For the reasons
that follow, the Court concludes that Ms. Pool has properly
pleaded her breach of contract claim.
19 CNA first contends that the Court should reject Magistrate
Judge Faruqui’s recommendation because it “is based, in large
part, on new allegations and documentation proffered by [Ms.]
Pool in her opposition.” Id. at 21. As the Court explained
supra, it was appropriate for Magistrate Judge Faruqui to
consider Ms. Pool’s exhibits because they are incorporated into
the FAC by reference. See EEOC, 117 F.3d at 624.
CNA next argues that Magistrate Judge Faruqui should have
recommended dismissal because Ms. Pool has not alleged the
existence of a contract. See Def.’s Objs., ECF No. 252 at 22-24.
Indeed, a plaintiff alleging a breach of contract must plead,
inter alia, a valid contract between the parties. Tsintolas
Realty Co. v. Mendez, 984 A.2d 181, 187 (D.C. 2009). Looking
only at the FAC and not the documents incorporated by reference,
CNA argues that Ms. Pool has failed to allege material terms of
a contract, including: whether Ms. Pool had a contract, when the
contract was executed, when Ms. Pool submitted invoices, the
details of her invoices, or the payment terms. See Def.’s Objs.,
ECF No. 252 at 22-23. CNA further contends that Ms. Pool’s
allegations in the FAC suggest only: that CNA had a contractual
relationship with other entities; and that Ms. Pool had a
relationship with Mr. Brink. See id. at 23-24.
Ms. Pool counters that she has alleged the existence of a
contract. See Pl.’s Opp’n, ECF No. 253 at 16-18. Citing the FAC,
20 she argues that she alleged: “[t]here was an agreement, CNA
acted as if there was, [she] performed services in reliance on
such, [and] CNA paid for some of the invoices (accounts
stated).” Id. at 18. The Court agrees that Ms. Pool has
“sufficiently allege[d] the existence of a contract, its general
terms, and the contractual obligation that [CNA] purportedly
violated (i.e. failing to pay [her]).” Burnett v. Am. Fed’n of
Gov’t Emps., 102 F. Supp. 3d 183, 193 (D.D.C. 2015) (explaining
that “[w]hen those elements are pled, . . . courts have held
that plaintiffs have adequately stated a claim, despite the
otherwise imprecise or vague nature of the complaint”). In the
FAC, she alleges an agreement—for her “to perform nursing
services and nurse case management services for [CNA]” and for
CNA “to pay her for her services.” FAC, ECF No. 214 ¶¶ 154-55.
She also alleges the terms of the contract by describing how
both parties performed pursuant to that agreement. See id. ¶¶
156-59 (describing the services Ms. Pool was bound to provide
and the payments CNA was bound to make). The Court concludes
based on these allegations that Ms. Pool has adequately pleaded
the existence of a contract. See Burnett, 102 F. Supp. 3d at
192-93.
Finally, CNA objects to Magistrate Judge Faruqui’s failure
to consider the settlement agreement it entered into with Mr.
Brink. See Def.’s Objs., ECF No. 252 at 24-25. The Court agrees
21 with CNA that it may take judicial notice of this record. See
Venable LLP v. Overseas Lease Grp., Inc., No. CV 14-02010 (RJL),
2015 WL 4555372, at *3 n.7 (D.D.C. July 28, 2015) (taking
judicial notice of a settlement agreement in the public record).
However, this settlement agreement does not alter the Court’s
analysis because, as with its briefing on its Motion to Dismiss,
CNA cites no legal authority to explain why Ms. Pool is bound by
its agreement with Mr. Brink. See generally Def.’s Objs., ECF
No. 252 at 24-25.
Accordingly, the Court concludes that Ms. Pool has stated a
claim for breach of contract and ADOPTS this portion of the R. &
R.
D. Ms. Pool Has Not Pleaded a Claim for Breach of the Covenant of Good Faith and Fair Dealing
Finally, Ms. Pool objects to Magistrate Judge Faruqui’s
conclusion that she has not pleaded a claim for breach of the
implied covenant of good faith and fair dealing. See Pl.’s
Objs., ECF No. 250-1 at 15-18.
Under District of Columbia law, all contracts contain an
implied covenant of good faith and fair dealing. Nugent v. Unum
Life Ins. Co. of Am., 752 F.Supp.2d 46, 56 (D.D.C. 2010) (citing
Allworth v. Howard Univ., 890 A.2d 194, 201 (D.C. 2006)). A
plaintiff alleging a claim for a breach of this implied covenant
“must allege either bad faith or conduct that is arbitrary and
22 capricious.” Wright v. Howard Univ., 60 A.3d 749, 754 (D.C.
2013). “Bad faith requires more than mere negligence,” such as
“lack of diligence, purposeful failure to perform, and
interference with the other party’s ability to perform.” Id.
Ms. Pool argues that CNA’s actions “were malicious and
intended to deceive and deprive [her] of” payment for the
services she rendered. See Pl.’s Objs., ECF No. 250-1 at 16.
Citing the Restatement (Second) of Contracts, she contends that
the following constitutes bad faith: evasion; agreement and
subsequent refusal to meet; delay of payment; and refusal to
negotiate with her attorney. See id. at 17.
CNA defends Magistrate Judge Faruqui’s determination that
Ms. Pool’s allegations are vague, conclusory, and otherwise
duplicative of her breach of contract claim. See Def.’s Opp’n,
ECF No. 255 at 13-15. The Court agrees with CNA. Ms. Pool’s
allegations of “evasion” and “refusal” are vague and conclusory.
See Ruiz v. Millennium Square Residential Ass’n, No. 1:19-cv-
3765, 2022 WL 296200, at *8 (D.D.C. Feb. 1, 2022), appeal
docketed, No. 22-7024 (D.C. Cir. Mar. 10, 2022). Other
allegations merely repeat the allegations she made in connection
with her breach of contract claim. See generally FAC, ECF No.
214. The Court therefore is persuaded that Ms. Pool has failed
to state a claim for a breach of the implied covenant of good
faith and fair dealing and ADOPTS this portion of the R. & R.
23 V. Conclusion
For the foregoing reasons, the Court ADOPTS IN PART
Magistrate Judge Faruqui’s R. & R., ECF No. 248; and GRANTS IN
PART and DENIES IN PART CNA’s Motion to Dismiss, ECF No. 220. An
appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge September 11, 2023