Sabre International Security v. Torres Advanced Enterprise Solutions, LLC

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

-7-
 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
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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.
-9-
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.

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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
-14-
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
-15-
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.
-17-
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
-22-
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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