UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SABRE INTERNATIONAL SECURITY,
Plaintiff,
v. Civil Action No. 11-806 (GK)
TORRES ADVANCED ENTERPRISE
SOLUTIONS, LLC, et al.,
Defendants.
MEMORANDUM OPINION
Sabre International Security ("Sabre 11
) has sued its former
business partner, Torres Advanced Enterprise Solutions, LLC
("Torres 11
) and Torres officers, Jerry Torres, Scott Torres,
Rebekah Dyer, and Kathryn Jones (collectively, the "Individual
Defendants 11
), for breach of contract, tortious interference with
prospective economic advantage, fraud, and conversion of
property.
This matter is before the Court on the Individual
Defendants' Motions to Dismiss for Lack of Personal Jurisdiction
[Dkt. Nos. 260 & 276] . Upon consideration of the Motions,
Oppositions [Dkt. Nos. 273 & 284] and Replies [Dkt. Nos. 275 &
292], and the entire record herein, and for the reasons set
forth below, the Motions shall be denied.·
I . BACKGROUND
A. Factual Overview1
Sabre is an Iraqi limited liability company with its
principal place of business in Baghdad, Iraq. Torres is an
American limited liability company organized under the laws of
Virginia with its principal place of business in Arlington,
Virginia. Both companies are private security contractors
providing security services around the world to various
entities, including the United States Government.
From 2007 until 2010, Sabre and Torres partnered to perform
security services at United States military installations in
Iraq pursuant to two Theater-Wide Internal Security Services
("TWISS") Multiple Award Task Order Contracts with the United
States Government. 2 This relationship was governed by a Teaming
1
The factual allegations are taken from the First Amended
Complaint ( "FAC") [Dkt. No. 242] and the facts alleged in the .
parties' briefs and accompanying exhibits.
2
Under the TWISS framework, the Government initially issued a
competitive "Request for Proposals" which resulted in the award
of Multiple Award Task Order Contracts ("MATOCs") to a number of
contractors for a fixed period of performance. See FAC ~ 57.
The Government did not, however, "procure any specific work in
[a] TWISS [] MATOC itself." Id. ~ 94. Instead, a TWISS MATOC
simply required the Government to issue to each of the TWISS
MATOC awardees ("TWISS Contractors") TWISS Task Order Proposal
Requests ( "TOPRs") for each military installation in Iraq for
which it required TWISS services. Id. ~ 95. Each TWISS
Contractor was then permitted but not required to compete for a
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Agreement, which designated Torres as the "prime contractor" and
Sabre as the "subcontractor" vis a vis the United States
Government. According to Sabre, the Teaming Agreement required,
inter alia, that: (1) Sabre and Torres compete exclusively as a
team for any TWISS proposal submitted to the Government;
(2) both parties approve any such proposal prior to its
submission; and (3) Torres, as prime contractor, offer Sabre any
work awarded that fell within a defined "Scope of Work."
Sabre contends that, in the spring of 2010, the Individual
Defendants made a secret internal decision to terminate the
Teaming Agreement and enter into direct competition with Sabre.
Pursuant to this decision, the Individual Defendants allegedly
caused Torres to breach the Teaming Agreement by, among other
things·, (1) secretly reducing Sabre's prices in proposals
submitted to the Government; (2) refusing to pay Sabre in
accordance with previously agreed-upon pricing schemes;
(3) bidding on new Task Orders without Sabre's consent or
knowledge; and (4) usurping work that fell within Sabre's "Scope
of Work." It is further alleged that each of the Individual
Defendants fraudulently concealed these activities from Sabre.
TWISS Task Order by submitting a Task Order proposal in response
to the TOPR. Id. ~~ 96-97.
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B. Procedural Background
On April 29, 2011, Sabre filed its original Complaint
naming Torres as the sole defendant [Dkt. No. 1] . On July 5,
2013, Sabre moved to amend its Complaint to add a claim of fraud
against the Individual Defendants, as well as seven new tort
claims against Torres [Dkt. No. 197]. On October 3, 2013, the
Court granted Sabre's Motion [Dkt. No. 240], and on October 10,
2013, Sabre filed its FAC [Dkt. No. 242] . 3
On December 2, 2013, specially appearing Defendant Jerry
Torres filed his Motion to Dismiss the FAC for Lack of Personal
Jurisdiction ("J. Torres Mot.") [Dkt. No. 260]. On December 30,
2013, Sabre filed its Opposition ("Opp'n to J. Torres Mot.")
[Dkt. No. 273]. On January 9, 2014, Jerry Torres filed his
Reply ("J. Torres Reply") [Dkt. No. 275].
On January 10, 2 014, specially appearing Defendants Scott
Torres, Dyer, and Jones filed their Motion to Dismiss the FAC
for Lack of Personal Jurisdiction ( "Jt. Mot.") [Dkt. No. 276] .
On January 27, 2014, Sabre filed its Opposition ("Opp'n to Jt.
Mot . ") [Dkt . No.2 84] . On February 6, 2014, Scott Torres, Dyer,
and Jones filed their Reply ("Jt. Reply") [Dkt. No. 292].
3
On January 30, 2014, the Court granted Torres' Motion to
Dismiss Counts 15-17 and 20-22 of the FAC, but denied its Motion
to Dismiss Count 18 of the FAC. [Dkt. Nos. 287 & 288].
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II. LEGAL STANDARDS
A. Standard of Review Under Rule 12(b) (2)
"To prevail on a motion to dismiss for lack of personal
jurisdiction, a plaintiff must make a prima facie showing of
pertinent jurisdictional facts." United States v. Philip Morris
Inc., 116 F. Supp. 2d 116, 121 (D.D.C. 2000) (citing Edmond v.
U.S. Postal Serv. Gen. Counsel, 94.9 F.2d 415, 424 (D.C. Cir.
1991)). The "[p] laintiff must allege specific facts on which
personal jurisdiction can be based" and "cannot rely on
conclusory allegations." Moore v. Motz, 437 F. Supp. 2d 88, 91
(D.D.C. 2006) (internal citations omitted) . Nor may the
plaintiff aggregate factual allegations concerning multiple
defendants in order to demonstrate personal jurisdiction over
any individual defendant. See Rush v. Savchuk, 444 U.S. 320,
332 (1980) (rejecting aggregation of co-defendants' forum
contacts because "the [jurisdictional requirements] must be met
as to each defendant").
When considering personal jurisdiction, the Court is not
limited to the allegations in the complaint, but "may receive
and weigh affidavits and other relevant matter to assist in
determining the jurisdictional facts." Philip Morris, 116 F.
Supp. 2d at 120 n.4 (citations omitted); see also Novak-Canzeri
v. Al Saud, 864 F. Supp. 203, 206 (D.D.C. 1994) ("[T]he Court
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must accept Plaintiff's claims as true in ruling on a 12 (b) (2)
motion, unless they are directly contradicted by an
affidavit [.] ") . However, any "factual discrepancies appearing
in the record must be resolved in favor of the plaintiff."
Crane v. N.Y. Zoological Soc'y, 894 F.2d 454, 456 (D.C. Cir.
1990) .
B. Standard Governing Personal Jurisdiction
"Federal courts ordinarily follow state law in determining
the bounds of their jurisdiction over persons." Daimler AG v.
Bauman, 134 S. Ct. 746, 753 (2014). "To establish personal
jurisdiction over a non-resident, a court must engage in a two-
part inquiry: [It] 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. Inc. v.
BellSouth Corp., 199 F. 3d 1343, 1347 (D.C. Cir. 2000) (citation
omitted). "[A] State may authorize its courts to exercise
personal jurisdiction over an out-of-state defendant [only] if
the defendant has 'certain minimum contacts with [the State]
such that the maintenance of the suit does not offend
'traditional notions of fair play and substantial justice [.] '"
Daimler, 134 S. Ct. at 754 (citing International Shoe Co. v.
Washington, 326 U.S. 310 (1945)).
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There are two variants of personal jurisdiction: general
and specific. General jurisdiction is "'all purpose'
adjudicatory authority to entertain a suit against a defendant
without regard to the claim's relationship vel non to the
defendant's forum-linked activity [.]" Kopff v. Battaglia, 425
F. Supp. 2d 76, 81 (D.D.C. 2006) (citing Steinberg v. Int'l
Criminal Police Org., 672 F.2d 927,. 928 (D.C. Cir. 1981)) The
exercise of general jurisdiction is consistent with due process
only if the defendant's "'affiliations with the State are so
continuous and systematic as to render [it] essentially at home
in the forum State. '" Daimler, 134 s. Ct. at 761 (quoting
Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct.
2846, 2851 (2011)).
Specific jurisdiction is the power to "entertain
controversies based on acts of a defendant that touch and
concern the forum." Kopff, 425 F. Supp. 2d at 81. Courts in
the District of Columbia "may exercise specific jurisdiction
over a defendant if the plaintiff demonstrates that (1) the
District of Columbia's long arm statute, D.C. Code § 13-423,
authorizes jurisdiction, and (2) the exercise of jurisdiction
comports with the federal requirement of constitutional due
process." Nat'l Cmty. Reinv. Coal. v. NovaStar Fin., Inc., 631
F. Supp. 2d 1, 4 (D.D.C. 2009) (citation omitted). Due process
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is satisfied if the defendant has "purposefully direct [ed] his
[or her] activities toward forum residents such that he
[or she] should reasonably anticipate being haled into court
there" or has "'purposefully avail [ed]" himself or herself "of
the privilege of conducting activities within the forum State,
thus invoking the benefits and protections of its laws.'"
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473, 475 (1985)
(citations omitted) .
III. Jurisdictional Facts
A. Defendant Jerry Torres
Defendant Jerry Torres is Torres' Chief Executive Officer
and sole shareholder. Opp'n to J. Torres Mot. at 1-2. He is a
resident of the State of Florida, where he has lived for the
past ten years. Decl. of Jerry Torres ("J. Torres Decl.") ' 2
[Dkt. No. 260] . He does not maintain an office in the District
of Columbia. Id. ' 4. Other than for depositions taken in this
case, he has not visited the District of Columbia in
approximately four years. Id. ' 5.
Jerry Torres did not sign the Teaming Agreement on Torres'
behalf. [Supplemental] Decl. of Jerry Torres ( "J. Torres Supp.
4
Decl . ") ' 3. Sabre alleges, however, that he "reviewed,
4
The Teaming Agreement was signed on Torres' behalf by John R.
Smith, Torres' Director of Operations. See Teaming Agreement
-8-
approved, signed and submitted" a TWISS proposal to the
Government that included the Teaming Agreement. Opp' n to J.
Torres Mot. at 1. Sabre further alleges that he had "extensive
and direct" involvement in and influence over multiple aspects
of Torres' performance under the Teaming Agreement. Id. at 9.
For example, Jerry Torres allegedly directed Torres' former
Chief Financial Officer Kathryn Jones and former Vice President
Rebekah Dyer to reduce Sabre's prices in the team's TWISS
proposals and supervised the submission of these proposals to
the Government. S.ee, e.g., FAC ~~ 99, 271, 273, 292. He also
is alleged to have overseen the implementation of unauthorized
reductions from Sabre's invoices and to have tightly controlled
Torres' communications with Sabre personnel regarding such
reductions. Id. ~~ 271, 304, 315. There is no indication,
however, and Jerry Torres expressly denies, that any of his
TWISS-related activities took place in the District of Columbia.
J. Torres Decl. ~ 6.
B. Defendant Scott Torres
Scott Torres is Jerry Torres' brother. During the time
period at issue, he served as a project manager, project
coordinator, and program and security contracts manager for the
[Dkt . No. 2 2-2] . Smith is not named as a defendant in this
case.
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TWISS program. Decl. of Scott Torres ( "S. Torres Decl. ") ~~ 5
[Dkt. No. 2 76-2]
Scott Torres lives in the State of Kansas, where he has
been a resident for more than 29 years. Id. ~ 2. He has never
worked or lived in the District of Columbia, and has "not
personally transacted any business or committed any acts in the
District of Columbia that would give rise to the allegations" in
the FAC. Id. ~~ 8I 10. The last time he visited the District
of Columbia was more than three years ago, for leisure purposes.
Id. ~ 9.
Scott Torres is not an owner, member or manager of Torres
under its corporate documents and does not have authority to
direct or control its corporate policies, procedures, or
operations. Id. ~~ 6-7. In his capacity as a project manager,
project coordinator, and program and security contracts manager
for the TWISS program, he "recruited personnel, built pricing
models and calculated manning requirements." Id. ~ 9.
C. Defendant Kathryn Jones
Kathryn Jones ("Jones") was Torres' Chief Financial Officer
( "CFO") from January 2009, through January 2011, during which
time she worked out of Torres' headquarters in Arlington,
Virginia. Decl. of Kathryn Jones ("Jones Decl. ") ~ 6 [Dkt. No.
-10-
276-3]. She has been a resident of the Commonwealth of Virginia
for more than fifteen years. Id. ~ 2.
The parties disagree as to whether Jones had "authority to
direct or control the creation of [Torres'] corporate policies,
procedures or operations" in her capacity as CFO. Jones
declares that she did not. Id. ~ 8. Sabre claims she did.
Opp'n to Jt. Mot. at 15. More specifically, Sabre contends that
Jones "was one of only a few Torres personnel who Jerry Torres
claimed had the authority to bind [Torres] by signing official
documents." Id. Sabre further alleges that Jones had
"extensive and direct" participation in the price reductions at
the heart of this case as well as efforts to conceal such
reductions from Sabre. Id. at 15-18. Sabre does not contend,
however, that Jones performed these activities in the District
of Columbia, and Jones has attested that she did "not personally
transact[] any business or commit[] any acts in the District of
Columbia that would give rise to the allegations" in the FAC.
Jones Decl. ~ 11.
Jones has never lived in the District of Columbia, although
she visits occasionally for leisure purposes. Id. ~~ 9-10.
From February 1, 2011, through November 18, 2013, she was
employed in the District of Columbia as Vice President of
Finance and. Administration for TSyrnmetry, Inc. Id. ~ 4. On
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November 18, 2013, her employment for TSymmetry was terminated
and, since then, she has been unemployed. Id. ~~ 4-5.
D. Defendant Rebekah Dyer
Rebekah Dyer was employed by Torres from 2008 through 2013,
most recently in the positions of Vice President and Chief
Operating Officer ("COO"). Decl. of Rebekah Dyer ("Dyer Decl.")
~~ 6-7. She has resided in the Commonwealth of Virginia for the
last fourteen years and, while employed by Torres, worked out of
its headquarter offices in Virginia. Id. ~~ 2, 6.
The parties again disagree as to whether Dyer had the
authority to direct or control Torres' corporate policies,
procedures or operations. Dyer claims she did not, id. ~ 9;
Sabre claims she did. Opp'n to Jt. Mot. at 9-11. In
particular, Sabre contends that Dyer collaborated with Jerry
Torres in making key decisions; could bind Torres by signing
official Government documents; and had "extensive and direct"
involvement in the TWISS price reductions at issue as well as
efforts to conceal them from Sabre. Id. at 9-13. There is no
indication, however, that Dyer performed any of these activities
in the District of Columbia. See Dyer Decl. ~ 12.
Dyer is currently self -employed in Virginia and obtaining
her Ph.D. from Georgetown University. Id. ~ 5. She visits the
District of Columbia approximately one time per week for school-
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related reasons and also occasionally for leisure purposes. Id.
~~ 5, 11.
IV. ANALYSIS
Sabre's primary argument in support of jurisdiction over
the Individual Defendants is that the forum selection clause in
the Teaming Agreement, and Torres' other forum contacts, may be
"attributed" to them for purposes of assessing their minimum
contacts because they held high level positions within Torres'
corporate hierarchy and were closely involved in the events
giving rise to this lawsuit. Sabre further claims that Jones is
subject to general jurisdiction based on her employment for
TSymmetry, Inc. in the District of Columbia.
A. The Court Does Not Have General Jurisdiction over
Jones
Under District of Columbia law, courts can exercise general
personal jurisdiction over a "person domiciled in, organized
under the laws of, or maintaining his [or her] or its principal
place of. business in, the District of Columbia [.]" D.C. Code §
13-422. Sabre contends that Jones' approximately three-year
employment with TSymmetry. · Inc. in the District of Columbia
satisfies the "principal place of business" clause of Section
13-422 and thus gives rise to general jurisdiction over Jones.
Opp'n to Jt. Mot. at 5-7. Jones counters that mere employment
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in a subordinate capacity for another does not satisfy the
"principal place of business" clause of Section 13-422 and thus
cannot support general jurisdiction. Jt. Reply at 2-6.
The Court need not resolve whether employment satisfies
Section 13-422 because there is a more basic defect to Sabre's
theory. Sabre's case for general jurisdiction is based on the
fact that Jones was employed for TSymmetry, Inc. at the time
"the Complaint and First Amended Complaint were filed." Opp'n
to Jt. Mot. at 5 (emphasis added) . It is "uniformly held,"
however, that "jurisdiction is to be determined by examining the
conduct of the defendants as of the time of service of the
complaint." Brandir Int'l, Inc. v. Cascade Pac. Lumber Co., No.
84-1411, 1988 WL 78382, at *1 (S.D.N.Y. July 18, 1988) (emphasis
added) (citations omitted); see, e.g., Wego Chern. & Mineral
Corp. v. Magnablend Inc., 945 F. Supp. 2d 377, 386 (E.D.N.Y.
2013) ("[I] t is well-settled that the Court looks to
whether it could assert personal jurisdiction over the defendant
at the time jurisdiction is sought to be asserted.") ( citation
omitted); Clark v. Meijer, Inc., 376 F. Supp. 2d 1077, 1085
(D.N.M. 2004) (same).
Jones' employment for TSymmetry, Inc. was terminated on
November 18, 2013, due to a loss of business. Jones Decl. ~ 5.
Sabre did not send her waiver of service form until two days
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later on November 20, 2013. See Waiver of the Service of
Summons for Kathryn Jones [Dkt. No. 255]. Thus, Jones was not
employed in the District of Columbia at the time Sabre sought to
assert the Court's jurisdiction over her by serving her with the
FAC. As Jones' District-based employment is the only basis on
which Sabre argues that general jurisdiction is proper, and that
employment had ceased when Sabre sought to invoke the Court' s
jurisdiction, the Court does not have general jurisdiction over
Jones.
B. The Court Does Not Have Jurisdiction over the
Individual Defendants Under a uMinimum Contacts"
Analysis
As to the remaining Individual Defendants, and as an
alternative basis for jurisdiction over Jones, Sabre argues that
jurisdiction is proper based on Torres' contacts with the
District of Columbia, which Sabre seeks to impute to the
Individual Defendants for purposes of the Court's minimum
contacts analysis. Opp'n to J. Torres Mot. at 7-20; Opp'n to
Jt. Mot. at 8-25.
The Supreme Court has held that an individual defendant's
"contacts with [a forum] are not to be judged according to their
employer's activities there." Calder v. Jones, 465 U.S. 783,
790 (1984); see also Keeton v. Hustler Magazine, Inc., 465 U.S.
770, 781 n.13 (1984) ("Jurisdiction over an employee does not
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automatically follow from jurisdiction over the corporation
which employs him [or her.]") (citations omitted) . While
conceding this general principle, Sabre points to a handful of
decisions in this District holding that the rule does not apply
where an individual is "more than an employee" of a company and
that it is proper, under certain circumstances, to exercise
jurisdiction over high-level employees based on the forum
contacts ·of their employers. See, e.g., Nat'l Cmty. Reinv.
Coal., 631 F. Supp. 2d at 8 (holding that company contacts could
be imputed to their founder and president because s/he exerted
"significant influence" over their "policies, procedures, and
operations"). Sabre invokes this doctrine as a basis to impute
Torres' jurisdictional contacts to the Individual Defendants.
As previously mentioned, Torres is a Virginia limited
liability company with its principal place of business in
Virginia. Sabre has identified only three forum contacts of
Torres, none of which, as discussed below, support jurisdiction
over the Individual Defendants under a minimum. contacts
analysis. 5
5
Because the Court concludes that Torres' jurisdictional
contacts are insufficient to satisfy the minimum contacts
requirement in any event, it need not fully consider the
applicability of the "more than an employee doctrine," which has
its genesis in a single unreported Superior Court decision,
Covington and Burling v. Int' l Marketing & Research, Inc. , No.
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1. Torres' Work for the Far.m Services Agency
First, Sabre contends that in 2009, seven Torres employees
worked in the District of Columbia. Opp'n to J. Torres Mot. at
7. Jerry Torres has clarified in a sworn declaration that these
seven employees "worked in the United States Department of
Agriculture South Building . under [an unrelated] contract
with the Farm Services Agency [ 'FSA']" which provided that
performance could occur "in up to 150 FSA county offices
nationwide; FSA Headquarters in Washington D.C. and the location
where [contracting officer's technical representative] resides."
See J. Torres Supp. Decl. ~ 2 & Ex. 2 at 2.
The District of Columbia-based work of the seven Torres
employees was unrelated to the 'TWISS program and is, therefore,
irrelevant to specific jurisdiction. Furthermore, a limited,
contract-based arrangement for Torres employees to perform work
at United States Government facilities nationwide, including in
the District of Columbia, does not render Torres "at home" in
the District of Columbia and is also insufficient to support
general jurisdiction. Daimler, 134 S. Ct. at 761; see, e.g.,
Saudi v. Marine Atlantic, Ltd., 306 F. App'x 653, 655 (D.C. Cir.
01-4360, 2003 WL 21384825, at *6 (D.C. Super. Ct. Apr. 17,
2003), and has not been endorsed by either the Court of Appeals
for the District of Columbia or our Court of Appeals for the
D.C. Circuit.
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2009) (company that had no office, bank account, property, or
employees "permanently stationed" in forum could not be subject
to general jurisdiction despite small amount of time employees
spent there) .
In sum, even if Torres' contract work for the FSA was
"attributed" to the Individual Defendants for purposes of the
minimum contacts analysis, it would not support either general
or specific jurisdiction over them.
2. Torres' Retention of a District of Columbia Fir.m
Second, Sabre relies on the fact that Torres contracted
with a law firm located in the District of Columbia to provide
representation related to the TWISS program and that it did so
"independent of and before this suit was filed." Opp'n to Jt.
Mot. at 8; see also Opp' n to J. Torres Mot. at 7. Sabre has
not, however, made any argument related to the nature of ·this
contractual relationship or why it should give rise to personal
jurisdiction over Torres under the District of Columbia's long
arm statute and the Due Process Clause. As our Court of Appeals
recently held, a nonresident's "mere retention of attorneys in
the District of Columbia is insufficient" to establish
jurisdiction, even where such retention relates to the subject
matter of the case. Thompson Hine, LLP v. Taieb, 734 F.3d 1187,
1194 (D.C. Cir. 2013) (citations omitted) Consequently, even
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if Torres' retention of a District of Columbia law firm to
perform work related to this case was "attributed" to the
Individual Defendants for purposes of the minimum contacts
analysis, it too is insufficient to support general or specific
jurisdiction over them.
3. The Forum Selection Clause
The third and final jurisdictional "contact" of Torres that
Sabre seeks to impute to the Individual Defendants for purposes
of the Court's minimum contacts analysis is the forum selection
clause in the Teaming Agreement, which provides that:
Should any dispute arise under, relating to or
concerning this Agreement, each party shall submit to
the jurisdiction and venue of any court of competent
jurisdiction located in the District of Columbia,
United States of America, and shall not obj ec.t to the
exercise of jurisdiction and venue by any such court.
Teaming Agreement § 3.2 [Dkt. No. 22-2] See Opp' n to J.
Torres Mot. at 7; Opp'n to Jt. Mot. at 8.
Sabre has not cited any provision of the District of
Columbia's long arm statute that authorizes jurisdiction over an
individual employee or officer based on a forum selection clause
executed by its employer. Nor has it cited a single case
treating a forum selection clause as a juri·sdictional contact
for purposes of a minimum contacts analysis, much less one
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attributing such a contact to a defendant under the "more than
an employee" exception.
The reason for the apparent absence of any case law to
support Sabre's theory is that a forum-selection clause is not
typically treated as a forum "contact" but ·rather is "a distinct
contract between the parties to settle disputes in a
particular forum [.]" Marra v. Papandreou, 216 F. 3d 1119, 1123
(D.C. Cir. 2000) (emphasis added). As such, a forum selection
clause is generally considered to be a consent to the exercise
of personal jurisdiction in a particular forum and is governed
by contract principles rather than the minimum contacts
framework. See Holland Am. Line Inc. v. Wartsila N. Am., Inc.,
485 F.3d 450, 458 (9th Cir. 2007) ("Under general contract
principles, a forum selection clause may give rise to waiver of
objections to personal jurisdiction[.]") (emphasis added);
Hadley v. Shaffer, No. 99-144, 2003 WL 21960406, at *3 (D. Del.
Aug. 12, 2003) (valid forum selection clause renders "an
analysis of minimum contacts unnecessary") (citations
omitted) . Consequently, the Court shall not consider the forum
selection clause in its assessment of minimum contacts but shall
consider it separately in determining whether the Individual
Defendants have consented to the Court's exercise of
jurisdiction.
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In sum, even if the Court was to attribute Torres'
jurisdictional contacts to the Individual Defendants under the
so-called "more than an employee" doctrine, those contacts would
still be insufficient to subject them to general or specific
jurisdiction. Therefore, Sabre has not demonstrated that the
Individual Defendants are subject to either general or specific
jurisdiction under the "minimum contacts" framework.
C. The Individual Defendants Are Deemed to Have Consented
to Jurisdiction Under the Forum Selection Clause
Although there is no authority for attributing a forum
selection clause to a nonparty for purposes of a minimum
contacts analysis, there is ample authority for binding the
Individual Defendants to the forum selection clause as a matter
of contract law.
As a threshold matter, forum selection clauses are
presumptively enforceable. Marra, 216 F.3d at 1124. The
Individual Defendants do not argue that the clause is either
unenforceable or inapplicable to this case. Instead, they rely
solely on the fact that they were not parties to the Teaming
Agreement and contend that "[t] here is no precedent for binding
a non-signatory and non-party to a forum selection clause for
purposes of establishing personal jurisdiction." J. Torres
Reply at 8; see also Jt. Reply at 7.
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Contrary to this assertion, the Second, Seventh, Ninth, and
Eleventh Circuits have all agreed that, "where the alleged
conduct of the nonparties is closely related to the contractual
relationship, 'a range of transaction participants, parties and
non-parties, should benefit from and be subject to forum
selection clauses. '" Holland Am. Line Inc., 485 F. 3d at 456
(citations omitted); accord Lipcon v. Underwriters at Lloyd's
London, 148 F.3d 1285, 1299 (11th Cir. 1998). These courts have
reasoned that "[w]ere it not for judicial willingness in
appropriate circumstances to enforce forum selection clauses
against [non-parties] , such clauses often could easily be
evaded." Adams v. Raintree Vacation Exch., LLC, 702 F.3d 436,
441 (7th Cir. 2012), cert. denied, 133 S. Ct. 2862 (2013); see
also Magi XXI, Inc. v. Stato della Citta del Vaticano, 714 F.3d
714, 722 (2d Cir. 2 013) (noting that "[a] literal approach to
interpreting forum selection clauses" could "undermine the
contribution that clauses have been praised for making to
certainty in commercial transactions") (citations and quotation
marks omitted) .
In their Joint Reply, Scott Torres, Dyer, and Jones attempt
to distinguish this case law by arguing that it only applies to
third-party beneficiaries of a contract. Jt. Reply at 9. This
too is incorrect. See, e.g., Hugel v. Corp. of Lloyd's, 999
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F.2d 206, 209 n.7 (7th Cir. 1993) ("While it may be true that
third-party beneficiaries of a contract would, by definition,
satisfy the 'closely related' and 'foreseeability' requirements,
a third party beneficiary status is not required.")
(citation omitted); Leviton Manufacturing Co. v. Reeve, 942 F.
Supp. 2d 244, 258 (E.D.N.Y. 2013) ("The 'closely related' test
is necessarily satisfied where the defendant is a third-party
beneficiary of the agreement, but that situation is not
required.").
Shaheen v. Smith, No. 12-1168, 2013 WL 5995619 (D.D.C. Nov.
13, 2013), a case from this District which the Individual
Defendants cite for the broad proposition that a forum selection
clause can never bind a non-party, is also inapposite. Shaheen
did not consider the "closely related" test nor even whether a
non-party can be bound by an otherwise applicable forum
selection clause. Instead, it addressed the jurisdictional
significance of a statement on the website of the plaintiff's
law firm, Burke & Reedy, designating the District of Columbia as
the proper venue "for any and all actions between the user of
the website and Burke & Reedy." Id. at *3. The court held that
this clause.was "inapplicable in this matter" because "Burke &
Reedy is not a party in this action" and "there is no
indication" that the defendants had ever used its website. Id.
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(emphasis added) . Here, by contrast, there is no dispute that
the forum selection clause is applicable "in this matter" and
binding at least on Torres. The only question is whether the
Individual Defendants are also bound by it. Shaheen does not
speak to that question.
The Individual Defendants also are incorrect that "[n] o
case within this district has applied th [e] 'closely related'
test to confer personal jurisdiction over a non-party, non-
signatory to a forum selection clause." J. Torres Reply at 10.
In fact, at least two decisions issued in this District have
expressly held that a non-party may be subject to a forum
selection clause if he or she "is 'closely related to the
dispute such that it becomes foreseeable that [he or she] will
be bound . ' " Marra v. Papandreou, 59 F. Supp. 2d 65, 77 (D.D.C.
1999) (Urbina, J.) (citations omitted), aff'd, 216 F.3d 1119
(D.C. Cir. 2000); see also Kotan v. Pizza Outlet, Inc., 400 F.
Supp. 2d 44, 49 (D.D.C. 2005) (Lamberth, J.) (applying "closely
related" test to bind non-parties to forum selection clause in
franchise agreement) .
Consequently, the Individual Defendants are subject to the
forum selection clause in the Teaming Agreement if they were so
"closely related to the contractual relationship" between Sabre
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and Torres that it was foreseeable they would be bound by such
clause. Holland Am. Line Inc., 485 F.3d at 456.
1. Defendant Jerry Torres
As discussed, Jerry Torres is Torres' CEO and sole
shareholder. Sabre alleges that he "reviewed, approved, signed
and submitted the TWISS II Contract proposal to the Government
in August 2009, which included the" Teaming Agreement. Opp'n to
J. Torres Mot. at 5. Sabre also points to evidence that Jerry
Torres was extensively involved in determining the terms of the
team's proposals to the Government, including the purported
price reductions at issue. See Opp'n to J. Torres Mot. at 10-11
& Ex. 15; FAC ~ 292. In addition, Sabre has made a strong prima
facie case, which is supported by specific documentary and
deposition evidence, that Jerry Torres personally tracked
Sabre's accounts under the Teaming Agreement, controlled high
level communications with Sabre personnel regarding payments to
Sabre under the Agreement, and expressly sought to terminate the
contractual relationship between Sabre and Torres. See FAC ~~
271-73, 293, 304, 315, 316, 414; see also Opp'n to J. Torres
Mot., Ex. 34 (email of Jerry Torres stating that "[r] ight now
the priority is giving the complete boot to Sabre").
Based on this evidence, the Court concludes that Jerry
Torres was so "closely related" to the Teaming Agreement and
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this dispute that it was foreseeable he would be bound by the
forum selection clause. As a result, he is deemed to have
consented to the Court's jurisdiction.
2. Defendant Dyer
As discussed, Dyer was Torres' Vice President and is also
alleged to have had extensive authority over the company as well
as an intimate involvement in the events giving rise to this
case. There is evidence that she: strategized with Jerry Torres
and Jones regarding what they perceived as mark-ups in Sabre's
pricing; directly oversaw the preparation of the Task Order
proposals in which Sabre's prices were reduced; and attempted to
conceal these reductions from Sabre. See FAC ~~ 273, 277, 301,
315, 373, 375. On November 29, 2010, she sent an internal email
to Jerry Torres stating that "we need to get our ducks in a row
and proceed smartly [regarding our dispute with Sabre] . They
have no idea of the [price] [r] eductions we have made and think
we are just arbitrarily shorting them." Opp'n to Jt. Mot., Ex.
31. Furthermore, when Sabre began to complain that its invoices
had not been fully paid, Dyer and Jones met with Sabre personnel
to discuss the issue and gave (allegedly false) assurances that
full payment would be forthcoming. Id., Ex. 27.
Consequently, the Court concludes that Dyer was so "closely
related" to the Teaming Agreement and this dispute that she
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should reasonably have anticipated being bound by the forum
selection clause. As a result, she too is deemed to have
consented to the Court's jurisdiction.
3. Defendant Jones
As previously discussed, Jones was Torres' CFO during the
relevant time period and also is alleged to have had substantial
involvement in the events giving rise to this case. For
example, Sabre alleges that she prepared or supervised the
preparation of "internal spreadsheets showing planned
price reductions to Sabre's final prices" in the team's TWISS
proposals. Opp'n to Jt. Mot. at 15; see also FAC ~~ 274, 276,
415, 416. She also is alleged to have been directly involved in
the efforts of Jerry Torres and Dyer to conceal the price
reductions from Sabre. See, e.g. , Opp' n to Jt. Mot. , Ex. 38
(email from Jones to Jerry Torres stating that she told another
employee "to never disclose costing details to Sabre under any
circumstances"); FAC ~ 277. Finally, when Sabre began to
complain that its invoices had not been paid, Jones accompanied
Dyer to the meeting with Sabre personnel and thereafter sent a
follow-up email stating that Torres was "fully committed to
paying all of Sabre's invoices promptly [,]" which Sabre alleges
was knowingly false. Opp'n to Jt. Mot. at 17 & Ex. 28; see also
FAC ~ 275.
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Based on these particularized allegations and the record
evidence supporting them, the Court concludes that Jones was so
"closely related" to the Teaming Agreement and this dispute that
she too should reasonably have anticipated being bound by the
forum selection clause. As a result, she is deemed to have
consented to the Court's jurisdiction as well.
4. Defendant Scott Torres
Scott Torres was a project manager, project coordinator,
and program and security contracts manager for the TWISS program
and, according to Sabre, "the primary [Torres] corporate contact
for day-to-day operations on the TWISS II Program." Id. at 19.
As with the others, there is evidence that he played a
significant role in the contractual relationship with Sabre as
well as the events giving rise to this case.
For example, two former Torres employees testified that
Scott Torres did "all the pricing" for and was the individual
with "de facto" day-to-day authority over the TWISS program.
See Opp' n to Jt. Mot., Ex. 49 (deposition tr. of Christopher
Herman at 112) [Dkt. No. 284-49]; id. Ex. 50 (deposition tr. of
John Gillespie at 31) [Dkt. No. 284-50]. He was also one of the
primary individuals responsible for directing Sabre to begin
work on specific Task Orders, including the Task Orders in which
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Sabre's prices are alleged to have been secretly reduced. See
id., Exs. 24, 53, 54.
There is also evidence that Scott Torres was involved in
calculating the price reductions at issue and concealing those
reductions from Sabre. For example, with respect to a Task
Order at Contingency Operating Site ("COS") Irbil, Jerry Torres
emailed Scott Torres and asked him to review Sabre's pricing "so
that we know what goes into mobilization." Id., Ex. 52. Scott
Torres responded and noted that he had "adjusted a couple of the
rates that looked out of line." Id. The evidence further
suggests that, after Torres submitted a proposal for a Task
Order at First Operating Base ("FOB") Hammer with reduced prices
for Sabre' s scope of the work, Scott Torres worked with Sabre
executive Sumeet Mehta to develop responses to a list of follow-
up questions from the Government, all while carefully concealing
the fact that Sabre's prices had been reduced. See id., Ex. 20
(emails of March 24, 2010, asking Scott Torres "to go through
these [questions] and get Sumeet on the phone" but not reveal
"that we dropped the prices significantly"); id., Ex. 21 (email
of March 25, 2010, from Scott Torres to Dyer attaching Mehta's
responses to Government's questions and noting that "I need to
change the pricing portion of the document so it matches our
original MOB numbers").
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Finally, there is evidence that, after Sabre complained to
the United States Government that Torres was improperly
withholding payments due under the Teaming Agreement, Scott
Torres and his staff were tasked with developing a "reasonable
market value" of Sabre's services for the purpose of assuring
the United States Government that it had "consistently paid
Sabre the proper amount for its services." Id., Ex. 17
(deposition tr. of Jerry Torres at 112) [Dkt. No. 284-17]; id.,
Ex. 18 (letter from Jerry Torres to Capt. John P. Turner,
Administrative Contracting Officer, dated Jan. 11, 2011) [Dkt.
No. 284-18]
Based on this evidence, the Court concludes that Scott
Torres was so "closely related" to the Teaming Agreement and
this dispute that he reasonably should have anticipated being
bound by the forum selection clause. Consequently, he is also
deemed to have consented to the Court's jurisdiction.
In sum, the Court concludes that it has personal
jurisdiction over all of the Individual Defendants under the
forum selection. clause in the Teaming Agreement. 6
6
Having so concluded, Sabre's request to take jurisdictional
discovery is denied as moot.
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IV. CONCLUSION
For the foregoing reasons, the Motions to Dismiss for Lack
of Personal Jurisdiction shall be denied. An Order shall
accompany this Memorandum Opinion.
June 16, 2014
Copies to: attorneys on record via ECF
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