Wye Oak Technology, Inc. v. Republic of Iraq

UNITED STATES'DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)

WYE OAK TECHNOLOGY, INC., )
Plaintiff, )

)

v. ) Civil No. 1:10-cv-01182-RCL

)

REPUBLIC OF IRAQ et al., )
Defendants. )

)

)

MEMORANDUM OPINION

_ Wye Oak and the Republic of Iraq l(Ir_aq) and the Ministry of Defense of the Republic`of
Iraq (MoD) have dbeen engaged in this litigation based on an.alleged breach of contract for nearly
a decade. Tlie _Court now examines plaintiff Wye Oak’s motion for summary judgment, defendants
Iraq and MoD’s cross-motion for summary judgment, Wye Oak’s motion to strike Iraq and MoD’s
cross-motion for summary judgment, various motions to strike filings related to Wye Oak’s motion
for summary judgment and Iraq and MoD’ cross-motion for summary judgment, and multiple
motions for extension of time. Pl.’s Mot. Summ. J., ECF No. 234 [hereinafter ECF No. 234]; Defs.’
Opp’n & Cross-Mot. Summ J., ECF No. 242 [hereinafter ECF No. 242]; Defs.’ Cross-Mot. Summ
J., ECF No. 244 [hereinafter ECF No. 244]; Pl.’s Mot. Strike Defs.’ Cross-Mot. Summ J., ECF
No. 252 [hereinafter ECF No. 252]; Defs.’ Mot. Strike Pl.’s Two Statements Additional Facts,
ECF No. 290 [hereinafter ECF No. 290]; Defs.’ Mot. Extension of Time, ECF No. 282 [hereinafter
ECF No. 282]; Defs.’ Mot. Extension of Time, ECF No. 284 [hereinafter ECF No. 284]; Defs.’
Mot. Extension of Time, ECF No. 288 [hereinafter ECF No. 288]; Def. Iraq’s Am. Mot. Extension
of Time, ECF No. 294 [hereinafter ECF No. 294]; Pl.’s Mot. Strike Decls., ECF No. 327

[hereinafter ECF No. 327]. The Court Will GRANT IN PART and DENY IN PART Wye Oak’s

motion for summary judgment, ECF No. 234. The Court will DENY Iraq and MolD’s cross-motion
for summary judgment, ECF No. 244, and GRANT IN PART and DENY IN PART Wye Oak’s
motion to strike Iraq and MoD’s cross-motion for summary judgment, ECF No. 252, because Iraq
and MoD filed this motion after the deadline for filing dispositive motions set by this Court in its
scheduling order. Omnibus Order, ECF No. 191 [hereinaf`ter ECF No. 191]. The Court will only
treat Iraq and MoD’s cross-motion for summary judgment as an opposition to Wye Oak’s motion
for summary judgment The Court will DISMISS AS MOOT the motions to strike various filings
related to lraq and MoD’s cross-motion for summary judgment and DISMISS AS MOOT Iraq
` and MoD’s motions for extension of time to file their reply regarding Iraq and MoD’ s cross-motion
` for summary judgment because the Court will GRANT IN PART plaintiffs motion to strike
defendants’ cross-motion for summary judgment, ECF No. 290; ECF No. 282; ECF No. 284; ECF
No. 288; ECF No. 294; ECF No. 327.
I. Background

A. Factual Background

The parties dispute a significant portion of the relevant facts in this case. Wye Oak, entered
into the Broker Services Agreement (BSA) with MoD on August 16, 2004. Under the BSA, MoD
was required to “work exclusively with [Wye Oak] regarding furnishing of Military Refurbishment
Services, Scrap Sales and the sale of Refurbished Military Equipment with respect to all Military
Equipment.” Broker Services Agreement, ECF No. 122-2. The BSA contained a compensation
provision, which stated that ‘-‘[MoD] shall pay [Wye Oak] a commission of minimum often percent
(10%) based on the Contract Value set out in each Sales Contract entered into by the Ministry,
pursuant to this Agreement. With respect to Ref`urbished Military Equipment, the Ministry will

pay [Wye Oak] ten percent (10%) of such equipment’s refurbishment cost.” Ia'. The BSA declared

that the “Agreement shall not be amended or supplemented except in writing, signed by both
parties.” Id. The parties dispute whether the BSA was validly amended and supplemented by a
document signed by both parties.

On September 2`8, 2004, Wye Oak granted Mr. Raymond Zayna o`f General Investment
Group sal (GIG) a “limited power of attorney to arrange financing and the [sic] request banking
guarantees for and on behalf of the Wye Oak Iraqi Military Equipment Recovery Program
(‘IMERP Contract’)” signed between Wye Oak and MoD. Letter from Dale C; Stoffel (Sept. 28,
2004), ECF No. 122-5. In October 2004, Wye Oak presented three invoices to MoD regarding the
construction of military vehicle repair `facilities, purchasing parts for repairing military vehicles,
hiring and training maintenance workers, and repairing military vehicles. ECF _No. 122-7. On
October 19, 2004, there was a meeting between Dale Stoffel (Wye Oak’s president), Mr. Zayna of
GIG, and representatives of MoD. Talib Certificate Authenticity Business Records, Memorandum
from Mr. Patrick Marr, at Attachment B, ECF No. 242-5 [hereinafter Memorandum from Mr.
Patrick Marr, ECF No. 242-5]. The parties vigorously dispute what occurred at this meeting and
whether an agreement was reached to determine how MoD would pay Wye Oak for the three
invoices. MoD subsequently paid Mr. Zayna amounts mirroring the invoiced totals.

Dale Stoffel was killed while traveling in Iraq on December 8, 2004. Following Mr.
Stoffel’s death, Wye Oak at least temporarily recalled American personnel from Iraq, at least
temporarily. The invoiced work for repair and refurbishment of a sufficient number of armored
vehicles-to be effective leading up'to the Iraqi election was completed in January 2005. The parties

dispute whether it was Wye Oak or GIG who completed this work.

B. Procedural Back ground

Wye Oak filed its motion for summary judgment regarding selected affirmative defenses
proffered by Iraq and MoD on July 2, 2018. ECF No. 234. July 2, 2018 was the due date for
dispositive motions as set by this Court in its scheduling order. ECF No. 191. Iraq and MoD
subsequently filed a single document styled as an opposition to Wye Oak’s motion for summary
judgment and a cross-motion for summary judgment as to certain defenses raised by Iraq and MoD
on July 16, 2018. ECF No. 242; ECF No. 244. This cross-motion for summary judgment was
therefore filed after the Court’s due date for dispositive motions. Wye Oak filed a motion to strike
Iraq and MoD’s cross-motion for summary judgment based on the fact that Iraq and MoD did not
file this motion until after the .Iuly 2, 2018 deadline. Iraq and MoD filed a motion to strike Wye`
Oak’s statements of additional material facts`, which were filed in opposition to Iraq and MoD’s
cross-motion for summary judgment ECF ~No. 290. Iraq and MoD also filed several motio`ns for
extensions of time to file their reply to Wye Oak’s opposition to their cross-motion for summary
judgment, ECF. No. 282; ECF No. 284; ECF No. 288; ECF No. 294. Finally, Wye Oak filed a
motion to strike four declarations that accompany Iraq and MoD’s reply in support of defendants’
cross-motion for summary judgment. ECF No. 327.

II. Legal Standard for Summary Judgment

Summary judgment shall be granted when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). A material fact is a fact that might affect the outcome of the case. Ana’erson v. Liberly
Lobby, lnc. , 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” if “the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “A party seeking
summary judgment always bears the initial responsibility of informing the district court of the

basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any,’ Which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)).

In making a summary judgment determination, the court must believe the evidence of the
non-moving party and draw all justifiable inferences in its favor. Anderson, 477 U.S. at 255.
However, “the mere existence of a scintilla of evidence in support of the non-moving party” is
insufficient to create a genuine dispute of material fact. Ia'. at 252. Instead, evidence must exist on
which the decision-maker could reasonably find for the non-moving party. Id. Rule 56(c)
“mandates the entry of summary judgment, after adequate time for discovery and upon motion,
against a party who fails _to make a showing sufficient to establish the existence of`an element
essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex
Corp., 477 U.S. at 322.

III. Discussion

A. Defendants’ untimely filed cross-motion for summary judgment will not be
considered as a motion for summary judgment but will be considered as an
opposition to plaintiffs motion for summary judgment,

Iraq and MoD filed their cross-motion for summary judgment on July 16, 2018, which was
two weeks after this Court’s July 2, 2018 deadline for filing dispositive motions as set forth in the
scheduling order. ECF No. 191. District courts have broad discretion in deciding whether to
consider summary judgment filings that have been submitted in an untimely manner. Federal Rule
of Civil Procedure 6 provides that

when an act may or must be done within a specified time, the court may, for good

cause, extend the time:

(A) with or without motion or notice if the court acts, or if a request is made,
before the original time or its extension expires; or

(B) on motion made after the time has expired if the party failed to act
because of excusable neglect.

Fed. R. Civ. P. 6(b)'(1). Iraq and MoD did not seek leave to file their cross-motion for summary
judgment late, and they have not demonstrated good cause or excusable neglect to justify the
untimely filing of this motion, Federal Rule of Civil Procedure 16 permits a court to issue “any
just orders . . . if a party . . . fails to obey a scheduling or other pretrial order.” Fed. R. Civ. P. 16(f).
The Court will not consider Iraq and MoD’s untimely filing as a cross-motion for summary
judgment See Shekoya_n v. Sibley Int’l, 409 F.3d 414, 424-25 (D.C. Cir. 2005) (finding that a
district court did not abuse its discretion in denying a motion to allow plaintiff to file a motion for
summary judgment more than nine months after the district court’s scheduling order deadline for
filing dispositive motions had passed); see also B & JEnterprises, vLtd. v. Giorddno, 329 F. App’x
411, 415 (4th Cir. 2009) (“Altliough a district court possesses broad discretion on whether to
consider a tardy filing of summary judgment materials, see Fed. R. Civ. P. 6, a late filing should
be authorized ‘only if cause or excusable neglect has been shown by the party failing to comply
with the time provisions.”’) (quoting Orsi v. Kirkwood, 999 F.2d 86, 91 (4th Cir.1993)); Dedge v.
Kendrick, 849 F.2d 1398, 1398 (1 lth Cir. 1988) (holding that a district court properly denied a
motion for summary judgment as untimely because the motion was filed after the deadline set in
the scheduling order); U.S. Dominator, Inc. v. Factory Ship Robert E. Resojj‘, 768 F.2d 1099, 1104
(9th Cir. 1985) (holding that a district court properly denied a motion as untimely where it was
filed after the applicable scheduling order deadline and the movant “never requested a
modification” of the scheduling order), superseded by statute on other grounds as recognized in
Simpson v. Lear Astroru'cs Corp., 77 F.3d 1170 (9th Cir. 1996).

The Court will not strike Iraq and MoD’s filing completely. Instead, the Court will consider
the arguments raised in this filing as part of an opposition to Wye Oak’s summary judgment

motion. Iraq and MoD’s opposition and cross-motion for summary judgment was filed in a timely

manner as an opposition to Wye Oak’s motion for summary judgment, L.Cv.R. 7(b) (opposing
points and authorities must be filed within 14 days of service of a motion). Iraq and MoD’s filing
also complied with the page limitation requirements for opposition filings. Id. 7(e). Therefore, the
Court will consider this filing as an opposition to Wye Oak’s motion for summary judgment `even
though the Court Will not consider the untimely filing as a cross-motion for summary judgment
See, e.g., Glenn v. Moss, No. 15-cv-l65, 2017 WL 8950429, at *1 (D. Utah Mar. l, 2017) (striking
a cross-motion for summary judgment as untimely, but still considering the arguments raised in
the cross-motion as part of an opposition to summary judgment); Fin. Res. Network, Inc. v. Brown
& Brown, Inc., 867 F. Supp. 2d 153, 176 (D. Mass. 2012).(same); Fdlk v. Wells Fargo Bank, No.
09-cv-678, 2011 WL_3702666, at *3 (N.D. Tex. Aug. 19, 2011), ajj"d sub nom. Estate of Falk v. l
` Wells Fargo Barzk, N.A.,` 541 F. App’x 481 (5th Cir. 2013) (same).

B. Defendants’ motions for extensions of time to file reply to plaintist opposition to
defendants’ cross-motion for summary judgment will bc dismissed as mootl

Iraq and MoD filed multiple motions requesting extensions of time to file replies to Wye
Oak’s opposition to their cross-motion for summary judgment ECF No. 282; ECF No. 284; ECF
No. 288; ECF No. 294. But, as discussed supra, the Court will not consider Iraq and MoD’s cross-
motion for summary judgment as a motion for summary judgment because it was filed after the
deadline set by this Court’s scheduling order for filing dispositive motions. See ECF No. 191. The
Court will only consider Iraq and MoD’s cross-motion for summary judgment as an opposition to
Wye Oak’s motion for summary judgment Therefore, the Court will not consider any of Iraq and
MoD’s reply filings that were made in response to Wye Oak’s opposition to their cross-motion for
summary judgment because the Court has struck their cross-motion for summary judgment and

such filings are not applicable to Wye Oak’s motion for summary judgment Accordingly, Iraq

and MoD’s motions for extensions of time to make reply filings in response to Wye Oak’s
opposition to their cross-motion for summary judgment will be dismissed as moot

C. Motions to strike various filings related to defendants’ cross-motion for summary
judgment Will be dismissed as moot

Both sides have filed motions to' strike various opposition and reply filings related to Iraq
and MoD’s cross-motion for summary judgment ECF No. 290; ECF No. 327. But, as discussed
supra, the Court will not consider Iraq and MoD’s cross-motion for summary judgment as a motion
for summary judgment because it was filed after the deadline set by this Court’s scheduling order
for filing dispositive motions. See ECF No. 191. The Court will only consider Iraq and MoD’s
cross-motion for summary judgment as an opposition to Wye Oak’s motion for summary
judgment Therefore, the Court will not consider any of Wye Oak’s filings made in opposition to
Iraq and MoD.’s cross-motion for`summary judgment; the Court will obviously still consider Wye
Oak’s reply, Pl’s Reply, ECF No. 249, in support of its own motion for summary judgment The
Court Will also not consider any of Iraq and MoD’s reply filings that were made in response to
Wye Oak’s opposition to their cross-motion for summary judgment because the Court has struck
their cross-motion for summary judgment and such filings are not applicable to Wye Oak’s motion
for summary judgment Accordingly, the Court will dismiss as moot Iraq and MoD’s motion to
strike Wye Oak’s statements of material facts filed as part of Wye Oak’s opposition to Iraq and
MoD’s cross-motion for summary judgment Further, the Court will dismiss as moot Wye Oak’s
motion to strike certain declarations submitted with Iraq and MoD’s reply in support of their cross-
motion for summary judgment j

D. Plainti'l`i"’$ motion for summary judgment is granted in part and denied in part

Wye Oak moved for summary judgment on a number of Iraq and MoD’s affirmative

defenses. ECF No. 234. Wye Oak argues that Iraq and MoD have not provided evidence to support

most of their proffered affirmative defenses. This argument is primarily based on Wye Oak’s belief
that Iraq and MoD provided insufficient Rule 26 disclosures. Wye Oak alleges that Iraq and MoD
are precluded from calling any witnesses and offering any evidence under Federal Rule of Civil
Procedure `37 because their failure to provide sufficient information or identify witnesses as
required by Rule 26 was not harmless or substantially justified.

Iraq and MoD answer that summary judgment is not an appropriate remedy for alleged
discovery failures. Iraq and MoD contend that the appropriate means to remedy the alleged
discovery failure would have been for Wye Oak to make a motion to compel during the discovery
period. They also point out that Wye Oak did not submit “a statement of material fact as to which
`the moving party`contend`s there is no genuine issue`,” as called for in _the local rules. L.Cv.R. 7(h).
Further, Iraq and MoD argue that their Rule 26 disclosures were_ad'equate and that evidence
supporting their affirmative defenses actually warrants summary judgment in their favor. As
discussed supra, although the Court will not treat Iraq and MoD’s cross-motion for summary
judgment as a motion for summary judgment, the Court will consider the arguments raised in this
filing as an opposition to Wye Oak’s motion for summary judgment

Wye Oak is correct that it was not required to produce evidence to support its motion for
summary judgment because this motion was based on the argument that Iraq and MoD had not
provided sufficient evidence in support of their proffered affirmative defenses to avoid summary
judgment determinations The Supreme Court in Celotex explained that

the plain language of Rule 56(c) mandates the~entry of summary judgment, after

adequate time for discovery and upon motion, against a party who fails to make a

showing sufficient to establish the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at trial. In such a

situation, there can be ‘no genuine issue as to any material fact,’ since a complete

failure of proof concerning an essential element of the nonmoving party’s case

necessarily renders all other facts immaterial. The moving party is ‘entitled_ to a
judgment as a matter of law’ because the nonmoving party has failed to make a

sufficient showing on an essential element of her case with respect to which she has
the burden of proof. ` ' '

Celotex Corp., 477 U.S. at 322-23. The Supreme Court did acknowledge that a party seeking
summary judgment still bears the responsibility of informing the district court of the basis for its
motion and identifying the materials that the party believes demonstrate the absence of a genuine
issue of material fact Id. at 323. This “burden on the moving party may be discharged by
‘showing’_th_at is, pointing out to the district court_that there is an absence of evidence to
support the nonmoving party’s case.” ]d. at 325. Rule 56(c) specifically states that a “party
asserting that a fact cannot be . .`. genuinely disputed must support the assertion by `. . . showing .
. . that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.
' 56(c). Wye Oak has met this requirement by alleging that the inadequacy of Iraq and MoD’s Rule
26 disclosures prevents them` from supporting their affirmative defenses with any evidence. ECF
No. 234; Def. Iraq Rule 26 Disclosures, ECF No. 234-2.

Wye Oak is not asking for a discovery sanction; instead, Wye Oak is arguing that there is
an absence of admissible evidence by which Iraq and MoD can prove their affirmative defenses.
The Court is not overly troubled by Wye Oak’s lack of a statement of material facts because Wye
Oak’s motion for summary judgment is solely premised on the argument that Iraq and MoD cannot
present admissible evidence to support their affirmative defenses, on which they bear the burden
of proof at trial. Therefore, the Court does not agree with Iraq and MoD’s argument that Wye Oak
did not adequately support its motion for summary judgment Cf Cray Commc ’ns, Inc. v. Novatel
Computer~ Sys., Inc., 33 F.3d 390, 393 (4th Cir. 1994) (approvingly citing Wright and Miller’s
Federal Practice & Procedure treatise’s conclusion that under Celotex, “the moving party on a
summary judgment motion need not produce evidence, but simply can argue that there is an

absence of evidence by which the nonmovant can prove his case”) (quoting Wright et al., 10A Fed.

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lPrac. & Proc. Civ. § 2720.1 (4th ed.)). Further, th_e D.C. Circuit in Grimes recognized that “‘a
district court must always determine for itself whether the record and any undisputed material facts
justify granting summary judgment’ . . . When such independent scrutiny confirms fatal shortfalls
in the evidence necessary to support a verdict in a nonmoving [party] ’s favor, the motion may be
granted.” Grimes v. D.C., 794 F.3d 83, 94-95 (D.C. Cir. 2015) (intemal citations omitted). Thus,
the Court will fully analyze Wye Oak’s motion for summary judgment on numerous affirmative
defenses proffered by Iraq and MoD.

The Court addresses whether the evidence submitted by Iraq and MoD is sufficient to be
considered at the summary judgment stage and whether summary judgment should be granted in '
Wye Oak’s favor in regards to each challenged affirmative defense below.

1. The evidence submitted by Iraq and MoD isl su]Yi`cient to be considered at
the summary judgment stage. ' '

a. The Court will not prohibit Iraq and MoD from calling any
witnesses or offering any evidence under Rule 37.

Wye Oak argues that Iraq and MoD provided insufficient Rule 26 disclosures and should
therefore be prohibited from calling any witnesses and offering any evidence. ECF No. 234.
Specifically, Wye Oak alleges that Iraq provided inadequate Rule 26 disclosures and MoD did not
provide any Rule 26 disclosures. Id. Under Rule 37, a party is not allowed to use information or
witnesses to supply evidence on a motion, at a hearing, or at trial if the party fails to provide the
information or identity of the witness as required by Rule 26(a) or (e), unless the failure was

- substantially justified or is harmless. Fed. R. Civ. P. 37(c). A court may also impose an alternative
sanction upon a motion for a party’s failure to disclose or supplement disclosure under Rule 26.
Iraq provided its Rule 26 disclosures on September 16, 2013. Def. Iraq Rule 26

Disclosures, ECF No. 234-2. Wye Oak has described this disclosure as “bare bones,” but has not

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described to the Court with particularity why this disclosure is insufficient warranting that Iraq be
“precluded from calling any witnesses and from offering any evidence.” ECF No. 234. Upon
examining Iraq’s disclosures, the Court does not believe that the disclosures were deficient Iraq
named individuals that were likely to have discoverable information and disclosed the subject
matter of that information that Iraq thought it might use to support its defenses. Further, the Court
believes that Iraq adequately described the categories of documents that it had in its possession,
custody, or control and may use to support its defenses. Although Wye Oak appears to take issue
with the fact that Iraq did not provide documents in their initial disclosures, a party is not required
to` provide documents under Rule 26_a party is solely required to describe the documents it has
in` its possession, custody,`or control that it may u`se to support its defenses by category and
location. Fed. R. Civ`. P. 26(ii). Thus, the Co`urt finds that Iraq submitted adequate Rule 26 ’
disclosures and will not prohibit Iraq from calling any witnesses or offering any evidence.

MoD was not added as a defendant until Wye Oak’s First Amended Complaint on March
5, 2015. MoD did not file Rule 26 disclosures and adopted Iraq’s Rule 26 disclosures on July 23,
2018 nunc pro tunc to April 29, 2015. Notice Def. MoD Joinder in Iraq Rule 26 Disclosures, ECF
No. 267-1. The Court must express its displeasure that MoD did not either file its own Rule 26
disclosures or expressly adopt Iraq’s disclosures at an earlier time. Iraq and MoD have both missed
various deadlines during this litigation and have skirted the Federal Rules of Civil Procedure’s
requirements However, the Court finds that any potential failure on the part of MoD to serve Rule
26 disclosures was harmless. The individuals likely to have discoverable information known to
MoD and documents in MoD’s possession that may be used to support its defenses are the same
as those put forward by Iraq in its Rule 26 disclosures. Therefore, the Court finds that any

deficiency on the part of MoD was harmless because Wye Oak had already been alerted to the

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relevant individuals,' subject matter, and documents that defendants may use to support theirl
defenses. Accordingly, the Court will not prohibit MoD from calling any witness or offering any

evidence.
b. The declarations submitted by Iraq and MoD from Mr. Ali Talib and
Ms. Wafaa Muneer are sufficient to be considered at the summary
judgment stage.
Rule 56 sets out the rules for summary judgment Specifically, Rule 56(c)(4)l states that
“[a]n affidavit or declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant or
' declarant is competent to testify on the matters stated.” Fed. R. Civ.`P.` 56(c)(4). Wye Oak argues
that Iraq and MoD submitted declarations`from Mr. Ali Talib and Ms. Wafaa Muneer that do` not
satisfy Rule 56 and should therefore `be disregarded Iraq and MoD rely heavily on the Talib and
Muneer declarations to authenticate documents and to qualify the documents as business records.
The documents submitted with these declarations are extremely important to many of Iraq and
MoD’s affirmative defenses at issue in Wye Oak’s summary judgment motion. Although these
declarations may not be sufficient to admit these documents as evidence at trial, the Court finds
that these declarations are sufficient to be considered at the summary judgment stage.

i. The Talib and Muneer declarations satisfy the low bar set
forth in Rule 56’s personal knowledge requirement

The D.C. Circuit has been clear that the personal knowledge requirement of Rule 56 “is
unequivocal, and cannot be circumvented.” Londrigan v. Fed. Bureau of Investigation, 670 F.2d
1164, 1174 (D.C. Cir. 1981). The D.C. Circuit in Londrigan elaborated that an “affidavit based
merely on_ information and belief is unacceptable.” Id. The Court in Londrigan found that a portion
of a Federal Bureau of lnvestigation (FBI) special agent’s affidavit that discussed “assumptions

made by persons interviewed by other FBI agents” could not possibly have been based on` personal

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knowledge Id. at 1175. This led the D.C. Circuit to order the district court to disregard the
impugned part of the affidavit upon remand. Id.

This Court has previously examined instances in which declarations did not establish that
they were based on adequate personal knowledge to satisfy Rule 56. In Govplace, one declaration
stated that the facts in the declaration were “true and correct to the best of [the declarant’s]
knowledge,” and did not state that the declarant had personal knowledge of the facts in the
declaration. U.S. ex rel. Folliard v. Govplace, 930 F. Supp. 2d 123, 128 (D.D.C. 2013), af’d sub
nom. U.S. ex rel. Folliard v. Gov’t Acquisitions, Inc., 764 F.3d 19 (D.C. Cir. 2014). This Court
` determined that this declaration did not satisfy Rule 56’s personal knowledge requirement and
therefore could not be considered at summary judgment In Judicial Watch, this Court held that
portions of a declaration that were opinion statements based on another person’s notes a`nd
admittedly concerned procedures the declarant was unaware of must be struck for lack of personal
knowledge. Judicial Watch, Inc. v. U.S. Dep ’t of Commerce, 224 F.R.D. 261, 264 (D.D.C. 2004).

Here, neither Mr. Talib nor Ms. Muneer specifically state that their declarations are based
on personal knowledge. See Talib Certificate Authenticity Business Records, ECF No. 242-5;
Muneer Certificate Authenticity Business Records, ECF No. 242-12. Instead, Mr. Talib states that
he is the Senior Legal Advisor in the MoD and that he is authorized and qualified to make the
declaration based on his position. Talib Certificate Authenticity Business Records, ECF No. 242-
5. Similarly, Ms. Muneer states that she is the Senior Manager of Foreign Litigation in the Ministry
of Justice (MoJ) and is authorized and qualified to make the declaration based on her position.
Muneer Certificate Authenticity Business Records, ECF No. 242-12. Further, they both declare
the documents included in their declarations

are true copies of original records which:

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A. Were made at or near the time of the occurrence of the matters set forth
therein, by (or from information transmitted by) a person with knowledge
of those matters;

B. Were kept in the course of regularly conducted business activity of the

Ministry of Defense;

C. Were made by the said business activity as a regular practice; and

D. if not original records, are duplicates of original records
Talib Certificate Authenticity Business Records, ECF No. 242-5; Muneer Certificate Authenticity
Business Records, ECF No. 242-12. Finally, Mr. Talib and Ms. Muneer both declare that
everything stated in their declaration is “true and correct” under the penalty of perjury under the
laws of Iraq and the U.S. Talib Certificate Authenticity Business Records, ECF No. 242-5; Muneer
Certificate Authenticity Business Records, ECF No_. 242-12.

Although the Talib and Muneer declarations are very sparse, these declarations are not as
deficient as the declarations that were held to not satisfy Rule 56’s personal knowledge
requirement in Londrigan, Govplace, and Judicial Watch. Mr. Talib and Ms. Muneer do not
speculate about the beliefs of others, caveat that their declarations were only true and correct to
the best of their knowledge, or give any type of opinion statements in their declarations Their
declarations do not readily demonstrate that they are not based on personal knowledge as was the
case in Lonfrigan, Govplace, and Judicial Watch. Therefore, even though the declarations do not
contain the specific phrase that they are based on personal knowledge, the Court believes that the
declarations satisfy the low bar set forth in Rule 56’s personal knowledge requirement

The Court also recognizes that Iraq and MoD submitted supplemental declarations from
Mr. Talib and Ms. Muneer as exhibits accompanying Iraq and MoD"s reply in support of its cross-
motion for summary judgment See Talib Supplemental Certificate Authenticity Business Records,

ECF No. 287-14; Muneer Supplemental Certificate Authenticity Business Records, ECF No. 287-

15. Although the Court has struck Iraq and MoD’s cross-motion for summary judgment and will

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not consider the reply filings made in support of that motion in making the present summary
judgment deterrninations, the Court will briefly comment on these declarations for the benefit of
the parties moving forward with this litigation. The supplemental Talib and Muneer declarations
contain much more robust explanations as to these individuals’ personal knowledge of the
documents attached to their original declarations See id. These supplemental declarations also
explicitly state that they are based on the declarants’ personal knowledge. Id.

ii. The evidence offered by Iraq and MoD is capable of being
admitted under the business records exception to the rule
against hearsay and will therefore be considered at the
summary judgment stage.

Rule 56’s directive about the admissibility of an`affidavit’s contents has been liberally
construed.' Rule 56 requires that affidavits “set out facts that would be admissible in evidence.”
Fed. R. Civ. P. 56(c)(4) (emphasis added). The word ‘would’ in this provision indicates that the
key question in analyzing the admissibility of evidence at the summary judgment stage is whether
the evidence would be capable of being admitted at trial_not whether the evidence presented
would be admissible in the exact same form as presented at the summaryjudgment stage. The D.C.
Circuit has declared that “[w]hile a nonmovant is not required to produce evidence in a form that
would be admissible at trial, the evidence still must be capable of being converted
into admissible evidence.” Gleklen v. Dernocratic Cong. Campaign Comm., Inc., 199 F.3d 1365,
1369 (D.C. Cir. 2000) (emphasis in original). In Gleklen, a former employee alleging employment
discrimination testified during deposition that someone informed her about a conversation that
occurred between two people and testified about the supposed contents of the alleged conversation.

Id. This deposition testimony was t_he only evidence of the conversation in the record. Id. The D.C.

Circuit determined that the evidence about the conversation was “sheer hearsay” and was not

16

capable of being admitted at trial. Id. Therefore, the Court concluded that this evidence could not
be used at summary judgment Id.

In this case, Wye Oak argues that the evidence provided by Iraq and MoD in support of
their opposition to` Wye Oak’s summary judgment motion do not meet the requirements of the
business records exception to the rule against hearsay, Pl.’s Reply, ECF No. 249. Under Federal
Rule of Evidence 803, a “record of an act, event, condition, opinion, or diagnosis” is not excluded
by the rule against hearsay, regardless of whether the declarant is an available witness if:

(A) the record was made at or near the time by_or from information transmitted

by_someone with knowledge;

(B) the record was kept m the course of a regularly conducted activity of a business,

organization,' occupation, or calling, whether or not for profit;

(C) making the re_cord was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another

qualified witness, or by a certification that complies with Rule 902(11) or (12) or

with a statute permitting certi-fication; and

(E) the opponent does not show that the source of information or the method or

circumstances of preparation indicate a lack of trustworthiness
Fed. R. Evid. 803(6).' Under Federal Rule of Evidence 902, the foreign documents that Iraq and
MoD attempt to authenticate must be shown by “a certification of the custodian or another
qualified person” that is “signed in a manner that, if falsely made, would subject the maker to a
criminal penalty in the country where the certification is signed” to meet the requirements of Rule
803(6)(A)_(C). Fed. R. Evid. 902(11)-{12). Wye Oak alleges that the Talib and Muneer
declarations, which are used to authenticate numerous documents, do not establish that Mr. Talib
and Ms. Muneer would be qualified to introduce the records as evidence at trial. ECF No. 249.
Wye Oak contends that these declarations do not adequately demonstrate that Mr. Talib' and Ms.

Muneer “have any knowledge regarding the record-keeping procedures of either Ministry, that

they are the custodians of the documents, or even that they are familiar with the files.” Id.

17

The D.C. Circuit has held that a custodian or qualified witness “need not have personal
knowledge of the actual creation of the document.” United States v. Adefehinti, 510 F.3d 319, 325
(D.C. Cir. 2007). A “qualified witness” is solely someone who is familiar with the record-keeping
procedures of the organization and can explain the record-keeping system of the organization
United States v. Brown, 553 F.3d 768, 792 (5th Cir. 2008); Nadir v. Blair, 549 F.3d 953, 963 (4th
Cir. 2008); Dyno Const. Co. v. McWane, Inc., 198 F.3d 567, 576 (6th Cir. 1999); United States v.
Wables, 731 F.2d 440,`449 (7th Cir.1984); NLRB v. Firsr rermire Conirol`Co., 646 F.2d 424, 427
(9th Cir.l981).

Mr. Talib and -Ms. Muneer each` state that they are authorized and qualified to make the
declarations based on their positions, which are Senior ‘Legal Advisor in the MoD and Senior
Manager` of Foreign Litigation in the MoJ, respectively. Talib Certificate Authenticity Business
Records, ECF No. 242-5; Muneer Certificate Authenticity Business Records, ECF No. 242-12.
They both declare the documents included in their declarations

are true copies of original records which:

A. Were made at or near the time of the occurrence of the matters set forth

therein, by (or from information transmitted by) a person with knowledge

of those matters;

B. Were kept in the course of regularly conducted business activity of the

Ministry of Defense;

C. Were made by the said business activity as a regular practice; and

D. if not original records, are duplicates of original records
Talib Certificate Authenticity Business Records, ECF No. 242-5; Muneer Certificate Authenticity
Business _Records, ECF No. 242-12. Also, Mr. Talib and Ms.‘Muneer both assert that they declare
that everything stated in their declaration is “true and correct” under the penalty of perjury under
the laws of Iraq and the U.S., which meets Rule 902(12)’s requirements Talib Certificate

Authenticity Business Records, ECF No. 242-5; Muneer Certificate Authenticity Business

Records, ECF No. 242-12; Fed. R. Evid. 902(12).

18

These bare-bones declarations do not detail the declarant’s familiarity with the record-
keeping procedures of their respective ministries, the Office of the Prime Minister of Iraq, and the
Council of Ministries Nonetheless, the primary concern at the summary judgment stage is whether
the evidence is capable of being converted into admissible evidence, See Gleklen, 199 F.3d at
1369. Accordingly, the Court finds that the evidence offered by Iraq and MoD is capable of being
admitted under the business records exception to the rule against hearsay. Iraq and MoD will be
able to elicit testimony from Mr. Talib and Ms. Muneer to explain the record-keeping systems of
their organizations and their own familiarity with the record-keeping procedures of their
organizations The Court notes.that if Iraq and MoD cannot sufficiently establish that Mr. Talib
and Ms. Muneer are truly qualified witnesses to authenticate these records or that these documents
` were truly records of a regularly conducted activity, the Court will not admit these records as
evidence at trial.

Finally, the Court again recognizes that Iraq and MoD submitted supplemental declarations
from Mr. Talib and Ms. Muneer as exhibits accompanying Iraq and MoD’s reply in support of
their cross-motion for summary judgment Although the Court has struck their cross-motion for
summary judgment and will not consider these reply filings made in support of the cross-motion
for summary judgment in making the present summary judgment determinations the Court will
offer comments on these declarations for the benefit of the parties moving forward with this
litigation. The supplemental Talib and Muneer declarations contain more detailed statements as to
these individuals’ familiarity with the record-keeping systems of the respective organizations
However, these supplemental declarations still rely on largely conclusory statements that Mr. Talib
and Ms. Muneer are knowledgeable about the record-keeping systems of their respective

ministries, the Office of the Prime Minister of Iraq, and the Council of Ministries. The Court is

19

especially troubled by whether Muneer will be able to serve as a'qualified witness to adequately
authenticate the documents attached to her declaration as she is not employed by the relevant
offices that created and likely maintain those documents

Iraq and MoD will have to elicit more detailed explanations from these individuals to show
that they are qualified witnesses to authenticate these documents, or they will need to rely on
custodians of these records Iraq and MoD will also have to demonstrate that these documents
meet the requirements of the business records exception. .To ensure that Iraqi and MoD can indeed
fulfill these requirements to present admissible evidence at trial, the Court will ORDER that Iraq
and MoD `must present these documents in admissible form at the pretrial.hearing scheduled for
December 7, 2018.

2. Wye Oak’s summary judgment motion regarding Ira`q and MoD’s
affirmative defense 4 will be granted `

Wye Oak moved for summary judgment regarding Iraq and MoD’s affirmative defense
that “General Investment Group s.a.l. (‘GIG’) is a necessary party which should be joined to this
action and in whose absence complete relief cannot be afforded between the parties Accordingly,
this action should be dismissed and judgment should not be entered against [Iraq or MoD], because
Wye Oak has not joined all necessary parties.” ECF No. 129; ECF No. 139. Iraq and MoD stated
in their opposition to Wye Oak’s motion for summary judgment that they are no longer pursuing
this affirmative defense. ECF No. 242 (Iraq and MoD mis-numbered this affirmative defense as
affirmative defense 1 in their opposition). Therefore, the Court will grant Wye_ Oak summary
judgment on this affirmative defense. ~

3. Wye _Oak’s summary judgment motion regarding Iraq and MoD’s
ajj‘irmative defense 5 will be granted

20

Wye Oak moved for'summary judgment regarding Iraq and MoD’s affirmative defense
that “Wye Oak has brought this action in an inconvenient forum in the United States instead of an
adequate alternative forum in the courts of [Iraq or MoD]. Accordingly, this action should be
dismissed by this Court in favor of `the action being brought by Wye Oak before an Iraqi Court.”
Def. MoD Answer & Affirmative Defenses, ECF No. 129 [hereinafter ECF No. 129]; Def. Iraq
Answer & Affirmative Defenses, ECF No. 139 [hereinafter ECF No. 139]. Iraq and MoD stated
in their opposition to Wye Oak’s motion for summary judgment that they are no longer pursing
this forum non conveniens affirmative defense. ECF No. 242. Therefore, the Court will grant Wye
' Oak’s summary judgment motion on this affirmative defense.

4_. Wye Oak’s summary judgment motion regarding Iraq and MoD’s
a]firmative defense 6(c) will be denied

Wye Oak moved for summary judgment regarding Iraq and MoD’s affirmative defense '

that

Any obligation [Iraq or MoD] may have owed Wye Oak is barred and/or excused
by Wye Oak’s material breach and violation of its obligations under purported
contract between Wye Oak and the MoD, including but not limited to, Wye Oak’s
breach and/or violation of Wye Oak obligations . . . (c) to fully and satisfactorily
perform all of Wye Oak’s obligations under the alleged purported contract between
Wye Oak and the MoD, inclusive of recovery and rehabilitation of a sufficient
number of armored vehicles in sufficient time for such armored vehicles to be
deployed as part of the ISF supporting the January 2005 national legislative
elections

ECF No. 129; ECF No. 139. Iraq and MoD have established that a genuine issue of material fact
exists regarding this affirmative defense.

Wye Oak presented 'l\/IoD with three invoices 'in October 2004, MoD contends that these
invoices constituted Wye Oak’s proposal and offer to perform the items listed in the invoices ECF
No. 242; see Wye Oak Invoices Nos. l\/lUQ001, TAJIOOl, MUQ002, ECF No. 122-7. MoD alleges

that it accepted Wye Oak’s offer to perform the services listed on the invoices However, MoD

21

contends that Wye Oak did not perform the invoiced work,. which needed to be completed by
January 2005 for the Iraqi elections, because Wye Oak recalled its American employees and
contractors from Iraq after Wye Oak’s president, Dale Stoffel, Was killed on December 8, 2004,
Iraq and MoD support their assertion that Wye Oak recalled its American employees and
contractors from Iraq by pointing to an email from Bill Felix, who took over as president and CEO
of Wye Oak, sent on `January 25, 2005 that explained “given the tragic and very suspicious
circumstances during the week of December 6, 2004, management of Wye Oak recalled all
American employees and contractors from the Iraqi theater for the obvious reasons of personal
safety. We are now prepared to` resume direct management of IMERP [Iraqi Military Equipment
Reco`very Program].” E_l-mail from William J. Felix & E-r`nail from LTG David Petr`aeus, ECF No.
242-17. General David Pe`traeus responded to this email by stating he hoped to see Wye Oak back
in operation soon. ld. Iraq and MoD contend that these emails demonstrate that Wye Oak has
admitted it abandoned the invoiced work, which constituted a material breach of the contract
between Wye Oak and MoD and excused any further MoD performance ECF No. 242.

As discussed supra, the Court must believe the evidence of the non-moving party and draw
all justifiable inferences in the non-moving party’s favor in making a summary judgment
determination Anderson, 477 U.S. at 255. Although the evidence presented by Iraq and MoD is
not substantial, a decision-maker could reasonably find for Iraq and MoD that Wye Oak indeed
abandoned Iraq and breached its contract obligations which excused any obligation MoD may
have owed Wye Oak. This-is especially the case because the Court must draw all inferences in Iraq
and Moli’s favor at this stage, and Wye Oak has not presented any evidence accompanying its

motion for summary judgment that it did not abandon Iraq and was responsible for the completion

22

l of the invoiced work. Therefore, the Court will deny Wye Oak’s motion for summary judgment

on this issue.

5. Wye Oak’s summary judgment motion regarding Iraq and MoD’s
ajj‘irmative defense 7 will be denied

Wye Oak moved for summary judgment regarding Iraq and MoD’s affirmative defense
that “[e]ach and every of Wye Oak’s alleged rights claims and obligations that Wye Oak seeks to
enforce against [Iraq or MoD] are, by Wye Oak’s conduct agreement or otherwise, barred by the
doctrine of estoppel.” ECF No. 129; ECF No. 139. Iraq and MoD present evidence that they allege
shows Wye Oak is deemed to have accepted a financial arrangement in which MoD paid Raymond
Zayna of GIG for the three invoices This evidence is sufficient to defeat Wye Oak’s summary
judgment motion on this issue.

Iraq and MoD argue that the three invoices submitted by Wye Oak to MoD fall outside of
the compensation provision of the BSA. Section 5(a) of the BSA states: "‘The Ministry shall pay
Broker [Wye Oak] a commission of minimum of ten percent (10%) based on the Contract Value
set out in each Sales Contract entered into by the Ministry, pursuant to this Agreement With
respect to Refurbished Military Equipment, the Ministry will pay Broker ten percent (10%) of such
equipment’s refurbishment cost.” Broker Services Agreement, § 5(a), ECF No. 122-2. Iraq and
MoD interpret this provision as only applying to Wye Oak’s invoices for 10% commissions on
Sales Contracts. ECF No. 242. This interpretation is bolstered by Wye Oak’s own statement in its
First Amended Complaint regarding the negotiations leading up to the BSA that “Stoffel’s
proposal was accepted, namely that the cost of refurbishing the producing Iraqi military equipment
for use by the new Iraqi security forces would be financed entirely by salvaging and selling abroad
as scrap metal the unusable Iraqi military equipment and infrastructure.” ECF No. 122 at 1[ 15. At

the summary judgment stage, the Court must draw all justifiable inferences in Iraq and MoD’s

23

favor.and therefore finds that evidence exists for a reasonable decision-maker to determine that
the BSA’s compensation provision only covered invoices regarding commission on sales
contracts The three invoices submitted by Wye Oak to MoD are not for sales contracts and
therefore could reasonably be found to fall outside of the BSA. Wye Oak Invoices, ECF No. 122-
7.

Iraq and MoD allege that MoD was therefore allowed to demand a different payment
arrangement from the one set forth in the BSA. Iraq and MoD allege that an arrangement was
reached at a meeting on October 19, 2004, in which MoD would receive a bank guarantee from a
third party, GIG, to protect`MoD from the possibility that Wye Oak could accept the payment and
then not adequately perform the work. To support these assertions Iraq and MoD present the Court
with a report from Patrick Marr, then-Counselo`r to MoD, documenting that a meeting was held on `
October 19, 2004 between Dale Stoffel (Wye Oak’s president), Raymond Zayna of GIG, and
representatives of MoD. Memorandum from Mr. Patrick Marr, ECF No. 242-15 . Marr stated that
“[i]n summary of the meeting, Mr. Bruska [Shaways] [the Secretary General of MoD] ratified the
three invoices and the financial plan.” Id Iraq and MoD contend that Marr was referring to a
payment mechanism in which GIG presented MoD with a bank guarantee to secure payment to
Wye Oak, which occurred via three MoD checks made payable to Raymond Zayna. This
contention appears to be supported by the “Contract of Financial Agreement” that was reached
between MoD and GIG on October 19, 2004, Talib Certificate Authenticity Business Records,
Contract of Financial Agreement at Attachment A, ECF No. 242- 5 [hereinafter Contract of l
Financial Agreement, ECF No. 242- -5]. The Contract of Financial Agreement declared that MoD
had “signed contract with Wye Oak Technology Inc. to implement the program of rehabilitation

and repair of military equipment” and GIG had “committed to funding this program of (Wye Oak

24

Technology Inc.).” id The Contract of Financial Agreement stated that “[MoD] gives to [GIG]'
several payments under the bank guarantees as far as the amount of such payments for purposes
of implementation of the contract.” Id Iraq and MoD appear to be making a circumstantial
connection based on the fact that the Contract of Fi`nancial Agreement was reached on the same
day as the meeting referred to in Marr’s memorandum to allege that this Contract of Financial
Agreement was the “financial plan” that Marr reported was ratified during the meeting.

Further, Iraq and MoD state that Mr. Stoffel did not object to this financial arrangement
Iraq and MoD argue that under Iraqi law, Mr. Stoffel’s presence at the October 19, 2004 meeting
and failure to express disagreement with`the financial arrangement that was allegedly agreed to
constitutes acceptance on his par_t. Article 81 of the Iraqi C_ivil Code declares: “No statement will
be attributed to a silent person but silence in the course of need for expression will be deemed to
be an acceptance.” Iraqi Civil Code (Law No. 40 of 1951), ECF No. 242-7. Iraq and MoD’s Iraqi
law expert, Fakhri Kadhum, contends that

there was need for Wye Oak expression to MoD of any disagreement with payment

by MoD of the Three Wye Oak Pro Forma Invoices to GIG because the MoD

payment was being made (in accordance with the Financial Services Agreement)

to a person other than Wye Oak. A party who is present when an agreement is being

made to pay the party’s money to a third person, without the party’s consent is

need of immediate expression of disagreement Thus, under Article 81(1), Mr.

Stoffel’s silence is deemed to be Wye Oak’s acceptance of the Financial Services

Agreement and MoD’s payment of the Three Wye Oak Pro Forma Invoices to

GIG/Raymond Zayna in accordance with the Financial Services Agreement
Expert Report of Fakhri Abdul Hussain Kadhum, at III-9, ECF No. 242-9. Iraq and MoD also cite
Supreme Court precedents for the proposition that a party is estopped by silence when there is an
obligation to speak and such duty to speak arises when “the party maintaining silence knew that

someone else was relying upon that silence, and either acting or about to act as he would not have

done, had the truth been told.” Wiser v. Lawler, 189 U.S. 260, 270-72 (1903) (citation omitted).

25

Iraq and MoD therefore posit that Wye Oak should be estopped from refuting that it approved the
financial arrangement allegedly reached at the October 19, 2004 meeting because MoD relied on
Mr. Stoffel’s silence during the meeting and Mr. Stoffel knew that if he did not object to the
financial arrangement that MoD and GIG would finalize the agreement
The Court finds that Iraq and MoD have presented enough evidence to avoid summary
judgment on this affirmative defense because the Court must draw all reasonable inferences in
their favor at this stage. The evidence presented by Iraq and MoD indeed raises a genuine issue of
material fact such that a reasonable decision-maker could determine that Mr. Stoffel’s failure to
n express disagreement with the financial arrangement allegedly reached at the October 19, 2004
meeting estopped Wye Oak from refuting that it approved the agreement Therefore, the Court will `
deny Wye Oak’s'motion for summary judgment on this affirmative defense.

6. Wye Oak’s summary judgment motion regarding Iraq and MoD’s
ajj’irmative defense 9 will be granted

Wye Oak moved for summary judgment regarding Iraq and MoD’s affirmative defense
that “The claims asserted in the FAC are barred, in whole or in part, because, at all times Wye
Oak failed to take reasonable efforts to mitigate its damages if any.” ECF No. 129; ECF No. 139.
Iraq and MoD have not presented any evidence regarding this affirmative defense in their
opposition to Wye Oak’s motion for summary judgment This means that Iraq and MoD are
inherently unable to raise a genuine issue of material fact on this issue. Therefore, the Court will
grant Wye Oak’s motion for summary judgment on this affirmative defense.

7. Wye Oak’s summary judgment motion regarding Iraq and MoD’s
ajj‘irmative defense 10 will be granted

Wye Oak moved for summary judgment regarding Iraq and MoD’s affirmative defense

that “Wye Oak is precluded from obtaining the asserted remedies because Wye Oak has come

26

before the Court with unclean hands.” ECF No. 129; ECF No. _139. Iraq and MoD have not
presented any evidence regarding this affirmative defense in their opposition to Wye Oak’s motion
for summary judgment This means that Iraq and MoD are unable to raise a genuine issue of
material fact on this issue. Therefore, Wye Oak is entitled to judgment as a matter of law on this
issue as Iraq and MoD have failed to make any showing to establish the existence of any element
of this affirmative defense, which is a claim that Iraq and MoD bear the burden of proof on at trial.
See Celotex Corp., 477 at 322-23. Accordingly, the Court will grant Wye Oak’s motion for
summary judgment on this affirmative defense.

` 8. Wye Oak’s summary judgment motion regarding Iraq and MoD’s
` affirmative defense 11 will be granted '

` Wye Oak moved for summary judgment regarding Iraq and MoD’s affirmative defense
that “Any claims for damages that Wye Oak has against [Iraq or MoD], if valid, are offset by
claims against Wye Oak.” ECF No. 129; ECF No. 139. Iraq and MoD stated in their opposition to
Wye Oak’s motion for summary judgment that they are no longer pursing this offset affirmative
defense. Therefore, the Court will grant Wye Oak’s summary judgment motion on this affirmative

defense.

9. Wye Oak’s summary judgment motion regarding Iraq and MoD’s
ajj‘irmative defense 12 will be denied

Wye Oak moved for summary judgment regarding Iraq and MoD’s affirmative defense
that “The claims asserted in the FAC [First Amended Complaint] are barred, in whole or in part,
by the doctrines of release and payment~.” ECF No. 129;'ECF No. 139. Iraq and MoD have put
forward sufficient evidence to defeat Wye Oak’s summary judgment motion on this issue. l

As discussed supra in the Court’s analysis of affirmative defense 7, evidence exists for a

reasonable decision-maker to determine the three invoices submitted by Wye Oak to MoD fall

27

outside of the BSA. Further, Iraq and MoD have presented evidence that-creates a genuine issue
of material fact as to whether a financial arrangement-the Contract of Financial Agreement_
was reached at the meeting on October 19, 2004, in which MoD would receive a bank guarantee
from a third party, GIG, to protect MoD from the possibility Wye Oak could accept the payment
and then not adequately perform the work stated in the three invoices The Contract of Financial
Agreement declared MoD had “signed contract with Wye Oak Technology Inc. to implement the
program of rehabilitation and repair of military equipment” and GIG had “committed to funding
this program of (Wye Oak Technology Inc.).” Contract of Financial Agreement ECF No. 242-5.
This contract stated “[MoD] gives to [GIG]`several payments under the.bank guarantees as far as
the amount of such payments for purposes of implementation.of the contract.” Id Finally, Iraq and
MoD present MoD’s internal check issuance authorizations for amounts that are equivalent to the
amounts in the three invoices submitted by Wye Oak paid to Mr. Zayna. Talib Certificate
Authenticity Business Records at Attachments C-H, ECF No. 245-5.

Iraq and MoD argue that this demonstrates MoD fulfilled its obligations by paying Mr.
Zayna and is therefore released from any further obligations that may be owed to Wye Oak. Given
that the Court must believe the evidence of the non-moving parties and draw all justifiable
inferences in their favor at the summary judgment stage, the Court finds that Iraq and MoD have
indeed presented sufficient evidence to demonstrate there is a genuine dispute as to material facts
such that a reasonable decision-maker could find for Iraq and MoD regarding this affirmative
defense. Therefore, the Court will deny Wye Oak’s motion for summary judgment on this-issue.

10. Wye Oak’s summary judgment motion regarding Iraq and MoD’s
ajj‘irmative defense 13 will be denied

Wye Oak moved for summary judgment regarding Iraq and MoD’s affirmative defense

that “Any damage Wye Oak suffered was a direct and proximate result of its own misconduct and

28

actions.” ECF No. 129; ECF No. 139. Iraq and MoD have put forward several theories regarding
this affirmative defense that apply differently to the two types of damages that Wye Oak seeks

Wye Oak seeks damages of “payment of all amounts due under the invoices submitted to
the Defendants in October 2004 and repeatedly thereafter, plus accrued interest.” Pl.’s First Am.
Compl., ECF No. 122 [hereinafter ECF No. 122]. In response to this requested relief, Iraq and
MoD present two theories as to why they have an affirmative defense.

First, Iraq and MoD posit that Wye Oak materially breached its obligations to MoD to
continue performance of invoiced work when Wye Oak abandoned the invoiced work, which
permitted MoD to substitute GIGfor Wye Oak. The evidence that supports this argument has
q already been analyzed supra regarding affirmative defense 6(C). As with affirmative defense 6(c),
although the evidence presented by Iraq and MoD` is not substantial, a decision-maker could
reasonably find for Iraq and MoD that Wye Oak indeed abandoned Iraq and breached its contract
obligations which excused any obligation MoD may have owed Wye Oak.

Second, Iraq and MoD argue that Wye Oak failed to receive permission from the Ministry
of Trade to act as a broker and therefore could not have consummated sales contracts Iraq and
MoD present evidence under Iraq’s Law of Trade, “A non-Iraqi person can exercise a commercial
activity in accordance with the requirements of the national plan by permission from the
Concemed' Entity.” Article 8 of the Law of Trade (Law No. 30 of 1984), ECF No. 253-2. They
allege that even if Wye Oak is correct that the invoices fall under the BSA, the compensation
provision of the BSA consists of a commission of at least ten percent of any sales contract brokered
by Wye Oak and entered into by MoD and ten percent of equipment refurbishment cost Broker
Services Agreement,A § 5(a), ECF No. 122-2. Iraq and MoD conclude that Wye Oak’s damage

claims stemming from the three invoices are “broker fees” that Wye Oak claims are due from MoD

29

for MoD’s alleged breach of the BSA, but that Wye Oak has failed to produce any evidence it ever
applied for and received permission to act as a broker from the Ministry of Trade. Iraq and MoD
therefore argue that Wye Oak cannot claim any damages because Wye Oak failed to obtain
permission to act as a broker from the Iraqi government They cite several Iraqi court cases in
which a plaintiffs failure to prove the plaintiff applied for and received the required permission
necessitated that the court deny any claims for broker fees and dismiss the lawsuit ECF No. 242-
11; ECF No. 253-3. 'fhus, Iraq and MoD contend that Wye Oak is unable to obtain relief on this
claim as a result of its omission to obtain the required permission. Because the Court must believe
the evidence of the non-moving party and draw all justifiable inferences in its favor at this` stage, -
the C_ourt that finds that Iraq and MoD`have raised a genuine issue of material fact regarding this
affirmative defense.

Also, Wye Oak seeks damages of “the loss of profits and fees plus accrued interest, which
the Plaintiff reasonably expected to earn through full performance of the Contract by refurbishment
work and the sale of military scrap materials.’~’ ECF No. 122. Iraq and MoD argue that any “lost'
commission” on potential future sales contracts are a result of Wye Oak’s own failure to perfonn.
Iraq and MoD rely on David Stoffel’s Wye Oak’s president, deposition testimony that indicated
Wye Oak did not consummate any sales contracts ECF No. 242-15. Wye Oak has not produced
any evidence that it ever entered into any sales contracts Iraq and MoD contend that this shows
that Wye Oak cannot reasonably expect to have earned profits and fees and should not be able to
recover such damages because Wye Oak did not actually have any sales contracts from which it
could have earned such profits and fees. Because the Court must believe the evidence of the non-
moving party and draw all justifiable inferences in its favor at this stage, the Court that finds that

Iraq and MoD have raised a genuine issue of material fact regarding this affirmative defense to

30

Wye Oak’s claim for damages of the loss of profits and fees that Wye Oak expected to earn through
performance of the contract

Accordingly, the Court will deny Wye Oak’s motion for summary judgment regarding this
affirmative defense

11. Wye Oak’s summary judgment motion regarding Iraq and MoD’s
affirmative defense 14 will be denied

Wye Oak moved for summary judgment regarding Iraq and MoD’s affirmative defense
that “[Iraq and MoD] did not breach any lawful duty owed to Plaintiff for the transaction and
events that are the subject matter of the FAC [First Amended Complaint].” ECF No. 129; ECF No.
139. Wye Oak argues that this is actually a denial and_not an affirmative defense However, Iraq’s
argument on this issue is that Iraq was not alparty to any contract between MoD and Wye Oak'.
This is an affirmative defense Separately, MoD’s argument on this issue is that the Iraqi Prime
Minister prohibited the export of scrap from Iraq and thus MoD lacked the legal authority to enter
into any sales contracts for scrap sales after December 2004, This is an affirmative defense that
the contents of the BSA were legally prohibited The Court will address Iraq and MoD’s separate

arguments on these issues

a. The Court will deny Wye Oak’s motion for summary judgment
regarding Iraq’s affirmative defense that it was not a party to any
contract with Wye Oak.

Iraq was not a signatory to any contract with Wye Oak. Iraq argues that MoD was not Iraq’s
agent and therefore Iraq was not a party to the.BSA or any contract with Wye Oak that MoD
entered into. Iraq alleges that MoD entered into all contracts with Wye Oak on its 'own authority

as a separate juridical person from Iraq. Accordingly, Iraq contends that any breach of contract by

MoD cannot be attributable to Iraq.

'31

This Court has previously held in this case that MoD and Iraq are separate juridicial entities
as a matter of Iraqi law. Wye Oak Tech, Inc. v. Republic of Iraq, 72 F. Supp. 3d 356, 360 (D.D.C.
2014). The Supreme Court has held that the FSIA does not “affect the substantive law determining
the liability of a foreign state or instrumentality, or the attribution of liability among
instrumentalities of a foreign state.” First Nat ’l City Bank v. Banco Para El Comercio Exterior de
Cuba, 462 U.S. 611, 620 (1983) (Bancec). This conclusion is rooted in the FSIA’s provision that
a foreign state against which suit is brought under the statute “shall be liable in the same manner
and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 1606. Thus
“where state law provides a rule of liability governing private individuals the FSIA requires the
application of that rule to foreign states in like circumstances” Bancec, 462 U..S at 622 n.l l.

A wrinkle in this general rule that state substantive law governs FSIA claims arises in the
context of attribution of liability among state entities with separate juridical status The Court
observed in Bancec that the FSIA is silent “concerning the rule governing the attribution of liability
among entities of a foreign state.” Id (emphasis in original). The Court was considering whether
a juridical entity separate from Cuba under Cuban law could be held liable for actions taken by the
state Id at 621_22. After concluding that the FSIA did not govern the matter, the Court held that
“principles . . . common to both international law and federal common law” should be applied to
determine the instrumentality’s liability for the state’s actions Id at 621, 623. Thus, under FSIA
causes of action arising out of state substantive law, federal courts apply federal common law to
the attribution of liability among state entities Courts of appeals including the D.C. Circuit, have
interpreted the Supreme Court’s opinion in Bancec similarly. See, e. g., GSS Grp. Ltd v. Nat ’l Port
Auth., 680 F.3d 805, 814 (D.C. Cir. 2012) (“Bancec addressed the liability of a foreign, state-

owned firm for the acts of its sovereign parent.”); Frontera Res. Azerbaijan Corp. v. State Oil Co.

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of the Azerbaijan Republic,| 582 F.3d 393, 400 (2d Cir. 2009) (describing Bancec as “ask[ing]
when a state instrumentality can be treated like its state for ‘the attribution of liability”’).

Under Bancec, “government instrumentalities established as juridical entities distinct and
independent from their sovereign should normally be treated as such.” Bancec, 462 U.S. at 626-
28 (describing this as a “presumption” of respect for separate legal status). This presumption may
be triggered by an “unequivocal statement in [an entity’s] enabling law establishing its independent
juridical identity.” DRC, Inc. v.. Republic of vHonduras, ,71 F. Supp. 3d 201, 212 (D.D.C. 2014);
see also Compagnie Noga D’Importation et D’Exportation S.A. v. Russian Fed’n, 361 F.3d 676,
' 686 (2d Cir. 2004) (holding that, under Russian law, the Russian Government was not a‘separate
` party from the_ Russian Federation, in _part, because the Federation had not shown that the
“Government is a`separate juridical entity that can sue and be sued in Russian courts . . . for any
legal obligations”).

Ultimately, this Court held that MoD and Iraq are separate juridical entities as a matter of
Iraqi law. According to an expert opinion provided to the Court, the Law of Executive Authority
(Law Number 50 of 1964) establishes the “legal structure of the State of Iraq and the Ministries of
the Government of Iraq.” Dr. Ali Kadhum Aziz Decl. 11 9, ECF No. 103-1. That law states that
“[t]he Cabinet and each Ministry of the Ministries has a legal personality to exercise the rights
stipulated in the Civil Code and other Laws and each of them shall be regarded as the meaning of
the word ‘Govemment”’ Id , Ex. 1 at 17. The Civil Code at Article 47 states that “juristic persons”
include the State_i.e., Iraq-_and the “administrations and the public institutions which by virtue
of the law are granted a juristic personality independent of the State’s personality in accordance
with the conditions laid down herein.” 1 Law in Iraq.' A Document Companion 267 (Chibli Mallat

& Hiram Chodosh eds., 2012). Article 48 of the Civil Code sets forth the rights of juristic persons

33

including that each such person has its own patrimoniuml and the right of litigation 'Id at 268.
These provisions demonstrated to the Court that MoD is a separate juridical entity from Iraq, by
operation of the Law of Executive Authority, and that this law sets out that MoD has the right to
exercise rights accruing to juridical persons under the Civil Code Civil Code Article 47 confirms
the effect of the Law of Executive Authority-it states that juridical persons include “public
institutions which by virtue of the law [the Law of Executive Authority] are granted a juristic
personality independent of the State’s personality.” Id
Although MoD is presumed to be a legally separate entity from Iraq for purposes of
determining liability in this case, the separate status accorded by the.foreign state’s own laws is
not the last word on the matter.` The presumption of separate status_and therefore the presumption t
' of non-attribution of liability_will yield “if a foreign ‘~corporate entity is so extensively controlled
by its owner that a relationship of principal and agent is created’ . . . or when ‘broader equitable
principle[s]’ dictate that separate treatment ‘would work fraud or injustice.”’ GSS Grp. Ltd, 680
F.3d at 814 (quoting Bancec, 462 U.S. at 629). In general, the test for determining when the
presumption of separateness will give way is not a “mechanical formula;” instead, it involves an
“equitable” determination in light of the facts presented by the particular case See Bancec, 462
U.S. at 632-34.
Under the agency exception to the presumption of separate status a sovereign may assert
“complete domination of the subsidiary” such that the entities are not distinct in reality, but instead
act as one DRC, Inc., 71 F. Supp. 3d at 214-15 (quoting Transamerica Leasing,~ Inc. v. La

Republica de Venezuela, 200 F.3d 8.43, 848 (D.C. Cir. 2000)). The exception can also be met when

1 Black’s LaW Dictionary defines patrimony-.identified as a synonym of patrimonium_as within civil law. systems
“All of a person’s assets and liabilities that are capable of monetary valuation and subject to execution for a creditor’s
benefit.” Black's Law Dictionary (10th ed. 2014).

34

the sovereign exercises sufficient control over the other entity to allow it t_o be held liable under
ordinary principles of agency law. Id (quoting Transamerica Leasing, Inc., 200 F.3d at 849).
Circumstances that might warrant a disregard for the separate juridical status of an entity under
the exception for instances of fraud or injustice include, for example, instances where the “foreign
sovereign intentionally seeks to gain a benefit while using the legally separate status of its
instrumentality as a shield to guard against concomitant costs or risks;” situations where the
“sovereign otherwise unjustly enriches~itself through the instrumentality;” or cases where the
“instrumentality has been cloaked with the apparent authority of the sovereign, and the
complaining party reasonably relies upon that manifestation of authority.” Id at 217-18 (citing
Transamerica Leasing, Inc., 200 F.3d at 850; 854 and Bancec,_ 462 U.S. at 630-33).

The inquiry into whether the `presumption of separate status has been overcome is
necessarily fact dependent Although Iraq has presented this affirmative defense, Wye Oak bears
the burden of presenting sufficient evidence to establish that the agency exception or exception for
instances of fraud or injustice to the presumption of separate status exists Wye Oak has not
presented sufficient evidence at this stage for the Court to be able to make the determination as a
matter of law that the presumption should yield. As discussed supra, Wye Oak did not produce
evidence to support its motion for summary judgment and the record at the time Wye Oak filed its
motion for summary judgment did not contain evidence to show there is no genuine dispute
regarding the factual circumstances of the relationship between MoD and Iraq.2 Therefore, the

Court will deny Wye Oak’s motion for summary judgment regarding this affirmative defense

2 The Court notes that Wye Oak presented evidence to support its claim that the agency exception and exception for
instances of fraud or injustice to the presumption of separate status applies in its opposition to Iraq and MoD’s cross-
motion for summary judgment and Wye Oak’s accompanying statements of facts to that opposition filing. See ECF
No. 262; ECF No. 263; ECF No. 264; ECF No. 265; ECF No. 266. As discussed previously in this opinion, the Court
will not consider these filings for the purposes of deciding the issues in this opinion because the Court has struck Iraq
and MoD’s cross-motion for summary judgment as untimely. Wye Oak’s response and accompanying statements of

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b. The Court will deny Wye Oak’s summary judgment motion
regarding MoD’s affirmative defense that the contents of the BSA
were legally prohibited

Iraq and MoD argue that Wye Oak failed to receive permission from the Ministry of Trade
to act as a broker and therefore could not have consummated sales contracts Iraq and MoD present
evidence that under Iraq’s Law of Trade, “A non-Iraqi person can exercise a commercial activity
in accordance with the requirements of the national plan by permission from the Concemed
Entity.” Article 8 of the Law of Trade (Law No. 30 of 1984), ECF No. 253-2. They allege that
even if Wye Oak is correct that the invoices fall under the BSA, the compensation provision of the
BSA consists of a commission of at least ten percent of any sales contract brokered by Wye Oak
and entered into.by MoD and ten percent of equipment refurbishment co`st. Broker Services
Agreement, § 5(a), ‘ECF No. 122-2. Iraq and MoD conclude that W`ye Oak’s damage claims`
stemming from the three invoices are “broker fees” that Wye Oak claims are due from MoD for
MoD’s alleged breach of the BSA, but that Wye Oak has failed to produce any evidence that it
ever applied for and received permission to act as a broker from the Ministry of Trade Iraq and
MoD therefore argue that Wye Oak cannot claim any damages because Wye Oak failed to obtain
permission to act as a broker from the Iraqi government They cite several Iraqi court cases in
which a plaintiff’s failure to prove the plaintiff applied for and received the required permission
necessitated that the court deny any claims for broker fees and dismiss the lawsuit ECF No. 242-
11; ECF No. 253-3. Thus, Iraq and MoD contend that Wye Oak is unable to obtain relief on this
claim as a result of its omission to obtain the required permission Because the Court must believe
the evidence of the non-moving party and draw all justifiable inferences in its favor at this stage,

the Court that finds that Iraq and MoD have raised a genuine issue of material fact regarding this

facts were not filed as part of Wye Oak’s original motion for summary judgment and were not part of the record at
the time that Wye Oak’s motion for summary judgment was filed

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affirmative defense. Accordingly, the Court will deny Wye Oak’s motion for summary judgment
regarding this affirmative defense.

12. Wye Oak’s summary judgment motion regarding Iraq and MoD’s
ajj'irmative defense 15 will be denied.

Wye Oak moved for summary judgment regarding Iraq and MoD’s affirmative defense
that “During the period for performance of the alleged contract, Wye Oak failed to perform;
accordingly, any claim for payment by Wye Oak constitutes a claim for.unjust enrichment and
payment in whole or in part on any Wye Oak claim in this action would constitute unjust
enrichment of Wye Oak.” ECF No. 129;` ECF No. 139. Iraq and MoD rely on the same evidence
for this affirmative defense that has _been presented to support other affirmative defenses
previously analyzed in this opinion. Iraq and MoD use the same evidence presented inl support of
affirmative defense 6(c) to allege that Wye Oak abandoned Iraq and did not perform the invoiced
work that needed to be completed by January 2005 for the Iraqi elections. Bill Felix, Wye Oak’s
president and CEO, sent an email on January 25, 2005, that indicated Wye Oak recalled its
American employees and contractors from Iraq after Dale Stoffel was killed in December 2004,
E-mail from William J. Felix & E-mail from LTG David Petraeus, ECF No. 242-17. General
Petraeus responded by saying he hoped to see Wye Oak back in operations soon, which Iraq and
MoD argue further indicates Wye Oak had abandoned its obligations to perform the invoiced work
in Iraq. Id. Iraq and MoD also rely on David Stoffel’s deposition testimony as evidence Wye Oak
did not consummate any sales contracts, just as Iraq and MoD did to support their affirmative
defense l3. David~Stoffel Dep., ECF 242-15.. s s

In addition, Iraq and MoD contend that MoD already fulfilled any obligations owed to Wye
Oak by paying Raymond Zayna under the Contract of Financial Agreement. The evidence

presented to support this argument was analyzed supra in discussing affirmative defense 12. Iraq

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land MoD therefore posit that because any obligations were already fulfilled by paying Mr. Zayna,
any further award to Wye Oak would constitute unjust enrichment

Given that the Court must believe the evidence of the non-moving parties and draw all
justifiable inferences in their favor in making a summary judgment determination, the Court finds
that Iraq and MoD have indeed presented sufficient evidence to demonstrate there is a genuine
dispute as to material facts regarding this affirmative defense. Iraq and MoD have presented
sufficient evidence to show that a decision-maker could reasonably find that Wye Oak abandoned
Iraq and did not perform the invoiced work. This would mean that any award to Wye Oak for the
invoiced work would`constitute unjust enrichment Also, Iraq and MoD have presented sufficient `
evidence that a decision-maker could reasonably find that Iraq and M`oD already fulfilled any `
obligations owe`d to Wye Oak by paying 'Mr. Zayna under the Con`tract of Financial Agreement.
This Would mean that any further award to Wye Oak would constitute unjust enrichment Thus,
the Court will deny Wye Oak’s motion for summary judgment regarding this affirmative defense.

13. Wye Oak’s summary judgment motion regarding Iraq and MoD’s
ajj‘irmative defense 16 will be denied

Wye Oak moved for summary judgment regarding Iraq and MoD’s affirmative defense
that “During the period for performance of the alleged contract, Wye Oak failed to perform;
accordingly, Wye Oak: failed to provide consideration for any payment Wye Oak claims.” ECF
No. 129; ECF No. 139. Iraq and MoD rely on the same evidence for this affirmative defense that
has been presented to Support other affirmative defenses previously analyzed in this opinion. lIraq
and MoD use the same evidence presented in support of affirmative defense 6(c) to allege that
Wye Oak abandoned Iraq and did not perform the invoiced work that needed to be completed by
January 2005 for the Iraqi elections. Bill Felix, Wye Oak’s president and CEO, sent an email on

January 25, 2005, that indicated Wye Oak recalled its American employees and contractors from

38

Iraq after Dale'Stoffel was killed in December 2004. E-mail from William J. Felix & E-mail' from
LTG David Petraeus, ECF No. 242-17. General Petraeus responded to this email by saying he
hoped to see Wye Oak back in operation soon, which Iraq and MoD argue further indicates Wye
Oak had abandoned its obligations to perform the invoiced work in Iraq.'ld. The Court examined
this evidence when analyzing affirmative defense 6(c), Iraq and MoD also rely on David Stoffel’s
deposition testimony as evidence that Wye Oak did not consummate any sales contracts. David
Stoffel Dep., ECF 242-15. Iraq and MoD used this evidence to support its affirmative defense 13,
and the Court analyzed this evidence when discussing that affirmative defense. Ultimately, the
Court finds that Iraq and MoD have presented sufficient evidence at this stage to create `a genuine
dispute of material fact as t_o whether Wye Oak performed the work in the contract and therefore
provided consideration Thus,` the Court will deny Wye Oak’s motion for summary judgment

regarding affirmative defense l6.

l4. Wye Oak’s summary judgment motion regarding Iraq and MoD’s
a]j‘irmative defense 1 7 will be granted

Wye Oak moved for summary judgment regarding Iraq and MoD’s affirmative defense

that:

Each Wye Oak claim for payment is fraudulent, and, therefore, can provide no basis
whatsoever for any recovery in this action, by virtue of each of the following:
A. Wye Oak failed to perform during the period for performance of the
alleged contract;
B. Wye Oak thereby failed to satisfy all conditions precedent for each
payment Wye Oak claims;
C. Wye Oak failed to provide consideration for each payment Wye Oak
' claims; ~ - -
D. In making the claims for payments in this action, Wye Oak knowingly
and intentionally made the following materially false statements and
materially false representations of fact:
(i) Wye Oak had performed during the period of performance of the
alleged contract;
(ii) Wye Oak had satisfied all conditions precedent for each payment
Wye Oak claims;

39

(iii) Wye Oak had provided consideration for each payment Wye
' Oak claims; and ' '
E. Wye Oak premised its claims for payment on each of the foregoing
materially false statements and materially false representations of fact
ECF No. 129; ECF No. 139. Iraq and MoD have not presented sufficient evidence such that a
reasonable decision-maker could return a verdict for them on this issue. As previously discussed
supra when analyzing affirmative defenses 6(c), 13, 14, 16, Iraq and MoD have presented evidence
to create a genuine dispute of material fact as to whether Wye Oak failed to perform, Wye Oak
failed to satisfy all conditions precedent, and Wye Oak failed to provide consideration for the
payments Wye Oak claims. However, Iraq and MoD have not presented any evidence to support
their allegation that Wye Oak knowingly and intentionally made materially false statements and
made any materially false representations of the facts in this case. Iraq and MoD have simply not
provided any reason for the Court to believe Wye Oak’s claim is fraudulent Therefore, the Court

will grant Wye Oak’s motion for summary judgment regarding this affirmative defense.

15. Wye Oak’s summary judgment motion regarding Iraq and MoD’s
affirmative defense 18 will be granted

Wye Oak moved for summary judgment regarding Iraq and MoD’s affirmative defense
that “[Iraq and MoD] hereby gives notice that [Iraq or MoD] intends to rely upon any other defense
that may become available or appear during the discovery proceedings in this case.” Iraq and MoD
do not identify any other affirmative defenses that they intend to rely upon. Therefore, the Court
will grant Wye Oak’s motion for Summary judgment on affirmative defense 18.

IV. Conclusion -

Accordingly, the Court will DENY defendants’ cross-motion for summary judgment and

GRANT IN PART and DENY IN PART plaintiff’s motion to strike defendants’ cross-motion

for summary judgment because defendants filed this motion after the deadline for filing dispositive

40

motions set by this Court in its scheduling order. Iraq and MoD’s untimely filed cross-motion for
summary judgment will not be considered as a motion for summary judgment, but will be
considered as an opposition to Wye Oak’s motion for summary judgment The Court will
DISMISS AS MOOT Iraq and MoD’s motion to strike Wye Oak’s statements of material facts
filed as part of Wye Oak’s opposition to Iraq and MoD’s cross-motion for summary judgment,
The Court will DISMISS AS MOOT Wye Oak’s motion to strike certain declarations submitted
with Iraq and MoD’s reply in support of their cross-motion for summary judgment The Court will
DISMISS AS MOOT Iraq and MoD’s motions for extension of time to file their reply regarding
their cross-motion for summary judgment This is because the Court Will not consider Iraq and
MoD’s untimely fil_ed cross-motion for summary judgment as a motion for summary judgment._
The Court will GRANT IN PART ` and DENY IN PART plaintiff’s` motion for summary
judgment The Court will: .
0 GRANT Wye Oak’s summary judgment motion regarding Iraq and MoD’s affirmative
defense 4;
¢ GRANT Wye Oak’s summary judgment motion regarding Iraq and MoD’s affirmative
defense 5;
~ DENY Wye Oak’s summary judgment motion regarding Iraq and MoD’s affirmative

defense 6(c) Will not be granted
0 DENY Wye Oak’s summary judgment motion regarding Iraq and MoD’s affirmative

defense 7;

0 GRANT Wye Oak’s summary judgment motion regarding Iraq and MoD’s affirmative
defense 9;

0 GRANT Wye Oak’s summary judgment motion regarding Iraq and MoD’s affirmative
defense 10;

0 GRANT Wye Oak’s summary judgment motion regarding Iraq and MoD’s affirmative
defense ll; . 4

¢ DENY Wye Oak’s summary judgment motion regarding Iraq and MoD_’s affirmative
defense 12;

» DENY Wye Oak’s summary judgment motion regarding Iraq and MoD’s affirmative
defense 13;

0 DENY Wye Oak’s Summary judgment motion regarding Iraq and MoD’s affirmative
defense 14;

0 DENY Wye Oak’s summary judgment motion regarding Iraq and MoD’s affirmative
defense 15;

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0 DENY Wye Oak’s summary judgment motion regarding Iraq and MoD’s affirmative
defense 16; ' ' '
0 GRANT Wye Oak’s summary judgment motion regarding Iraq and MoD’s affirmative
defense 17; and
¢ GRANT Wye Oak’s summary judgment motion regarding Iraq and MoD’s affirmative
defense 18.
Finally, to ensure that Iraq and MoD can indeed fulfill the requirements to present admissible
evidence at trial, the Court ORDERS that Iraq and MoD must present the documents attached to

Mr. Talib and Ms. Muneer’s declarations in admissible form at the pretrial hearing scheduled for

December 7, 2018. A separate order will issue on this date.

` _ ¢4. .
sIGNEDthis "/ day ofNoyember, 2018. _
gm (' ' %M
Royce C. Lamberth

United States District Judge

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