UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
OWEN PARTRIDGE, :
:
Plaintiff, : Civil Action No.: 17-0248 (RC)
:
v. : Re Document Nos.: 7, 10, 15, 27
:
AMERICAN HOSPITAL MANAGEMENT :
COMPANY, LLC, et al., :
:
:
Defendants. :
MEMORANDUM OPINION
DENYING PLAINTIFF’S M OTION TO STRIKE; DENYING DEFENDANTS ’ M OTION TO DIS MIS S AND
TO COMPEL ARBITRATION; GRANTING IN PART AND DENYING IN PART PLAINTIFF’S M OTION
FOR SUMMARY J UDGMENT; GRANTING DEFENDANTS ’ COUNS EL’S M OTION TO WITHDRAW
I. INTRODUCTION
Plaintiff Owen Partridge brought this action, which seeks to recover unpaid wages
against American Hospital Management Company, LLC (“LLC”); American Hospital
Management Company, LMT (“LMT”); and Randall D. Arlett, who is President, Chief
Executive Officer, and Managing Director of both corporations. Before this Court considered a
motion to dismiss and to compel arbitration filed by Defendants or reached the merits of Mr.
Partridge’s claims, the parties entered into a settlement agreement, which the Court approved and
incorporated into a consent decree. Unfortunately, however, entry of the settlement agreement
and consent decree did not end this dispute. Several payment deadlines have passed but,
according to Mr. Partridge, no money has changed hands. Consequently, the Court has agreed to
revisit and rule on the parties’ three pre-settlement motions: (1) Plaintiff’s motion to strike an
errata sheet filed by Defendants, (2) Defendants’ motion to dismiss and to compel arbitration,
and (3) Plaintiff’s motion for summary judgment. Also before the Court is a motion by
Defendants’ counsel requesting permission to withdraw his representation. For the reasons
explained below, the Court denies Plaintiff’s motion to strike and denies Defendants’ motion to
dismiss and to compel arbitration. The Court grants Plaintiff’s motion for summary judgment
against Defendant LMT on the breach of contract count, but otherwise denies Plaintiff’s motion.
The Court also grants Defendants’ counsel’s motion to withdraw.
II. BACKGROUND
Mr. Partridge initiated this action against his former employers—LLC, LMT, and Mr.
Arlett—alleging that they have failed to pay him more than $107,000 in wages that he earned
managing a hospital facility on their behalf in Tbilisi, Georgia. Compl. ¶¶ 13–14, 23, 37, ECF
No. 2. In Count One of his Complaint, Mr. Partridge claims that Defendants breached two
separate employment agreements (collectively “the Agreements”)—a two-year agreement that he
had entered with LMT in December 2015 (“First Agreement”) and another agreement that he had
entered with either LCC or both LLC and Mr. Arlett in or about August 2016 (“Second
Agreement”) which purported to ensure strict compliance with the terms of the First Agreement. 1
Id. ¶¶ 14, 23, 25–26, 29, 41–43. Mr. Partridge also contends that Defendants violated the
District of Columbia Wage Payment and Collection Law by withholding wages (Count Two) and
committed fraud by misrepresenting their intent to perform under the Agreements (Count
Three). 2 Id. ¶¶ 44–57. In addition, Mr. Partridge seeks a judgment declaring that a non-
1 Defendants dispute that the Second Agreement constitutes a separate, enforceable
contract. See Defs.’ Resp. to Pl.’s Mot. Summ. J. at 9–10, ECF No. 18.
2 Mr. Partridge also advances unjust enrichment as an alternative theory of recovery
(Count Four) should Counts One, Two, and Three fail. Compl. ¶¶ 58–64.
competition provision in the First Agreement is invalid as an unreasonable restraint on trade
(Count Five). Id. ¶¶ 65–72. The relevant provisions state:
During the term of [the First Agreement], [Mr. Partridge] shall
devote his work efforts exclusively to the performance of this
Agreement and shall not, without [LMT’s] prior written consent,
render to others services of any kind for compensation, or engage
in any other business activity that would materially interfere with
the performance of his duties under this Agreement. [Mr.
Partridge] cannot work directly for Sayali Group D/B/A American
Hospital Tbilisi during this time.
………
During the [First Agreement] term, [Mr. Partridge] shall not, in
any fashion participate or engage in any activity or other business
competitive with [LMT]. In addition, [Mr. Partridge], while
engaged by [LMT] shall not take any action without [LMT’s] prior
written consent to establish, form, or become employed by a
competing business on termination of employment by [LMT].
[Mr. Partridge’s] failure to comply with the provisions of the
preceding sentence shall give [LMT] the right (in addition to all
other remedies [LMT] may have to terminate any benefits that
[Mr. Partridge] may be otherwise entitled to following termination
of this Agreement.
Compl., Ex. A. at 2–3, ECF No. 2.
“Defendants [LLC] and Randall Arlett” moved to dismiss the Complaint and to compel
arbitration. See Mem. Supp. Defs.’ Mot. Dismiss for Lack of Subject Matter Jurisdiction, to
Compel Arbitration and Failure to State a Claim at 5–8 (“Defs.’ Mot. Dismiss”), ECF No. 7.
Counsel for Defendants later filed an errata sheet, which clarified that the motion to dismiss had
been submitted on behalf of all three Defendants. See Defs.’ Erratta [sic] Sheet to Its Mot.
Dismiss (“Errata Sheet”) at 1, ECF No. 14. The motion to dismiss pointed to an arbitration
clause in the First Agreement, which states:
Any controversy or claim arising out of or relating to this
Agreement shall be settled by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration
Association, and Judgment on the award rendered by the
arbitrators may be entered in any court having jurisdiction. . . . An
arbitration hearing shall consist of three arbitrators, one to be
chosen directly by each party at will, and the third arbitrator to be
selected by the two arbitrators so chosen. Each party shall pay the
fees of the arbitrator he selects and of his own attorneys, and the
expenses of his witnesses and all other expenses connected with
presenting his case. Other costs of the arbitration, including the
cost of any record or transcripts of the arbitration, administrative
fees, the fees of the third arbitrator, and all other fees and costs,
shall be borne equally by the parties. Despite the forgoing, the
arbitrators may assign to one party or the other any and all fees and
costs as part of any arbitration award.
Compl., Ex. A at 5, ECF No. 2. Defendants also asked the Court to dismiss any claims asserted
against Mr. Arlett as an individual, arguing that Mr. Arlett had not signed any agreement with
Mr. Partridge in his personal capacity and that no pleading justified piercing the corporate veil to
hold Mr. Arlett liable for any actions taken by LLC and LMT. Defs.’ Mot. Dismiss at 4–5.
Soon after, Mr. Partridge asked the Court to strike counsel’s errata sheet, arguing that
LMT had purposely declined to join the motion to dismiss and that an errata sheet could not be
used to join a motion to dismiss. See Mot. to Strike Errata Sheet ¶¶ 4–7, ECF No. 15. Mr.
Partridge also opposed Defendants’ motion to dismiss and to compel arbitration and moved for
summary judgment on his claims. See Pl.’s Mem. in Opp’n to Mot. to Compel Arbitration and in
Support of Pl.’s Cross-Mot. Summ. J. (“Pl.’s Opp. Mot. Dismiss”), ECF No. 9; Cross-Motion for
Summ. J. (“Pl.’s MSJ”), ECF No. 10.
Before considering the pending motions—and at the request of the parties—this Court
referred the case for mediation so that the parties could explore the possibility of settlement. See
Order Referring Case to Magistrate Judge for Mediation, ECF No. 20; see also Rule 26(f) Report
and Joint Proposed Discovery Plan at 3, ECF No. 19 (requesting referral for mediation). While
settlement discussions were in progress, Defendants’ counsel moved to withdraw his
representation, explaining that “Defendant has been unable to abide by the terms of its agreement
with counsel.” Counsel Mot. To Withdraw ¶ 1, ECF No. 27. Specifically, according to counsel,
“Defendants have not fulfilled their obligation to communicate with Counsel.” Defs.’ Counsel
Reply Pl.’s Resp. to Its Motion to Withdraw at 1, ECF No. 32. The “lack of communication has
le[d] to a deteriorated attorney-client relationship,” counsel claims. Id. at 1–2. Moreover,
counsel asserts that Defendants have “outstanding legal bills in arrears.” Id. at 2. Counsel
maintains that his withdrawal can be accomplished with minimal prejudice. Id. at 3.
On July 10, 2017, with Defendants’ counsel’s withdrawal motion still under advisement,
Mr. Partridge filed a motion with the Court, which supplied the parties’ settlement agreement
and asked the Court to incorporate its terms into a consent decree. 3 See Mot. to Enter Settlement
Agreement, ECF No. 28. The settlement agreement—which, per its terms, became enforceable
when Mr. Arlett signed it on June 19, 2017—specified that the Defendants would provide Mr.
Partridge an initial payment of $50,000 by July 19, 2017. Consent Decree ¶¶ 1, 11, ECF No. 31.
“Upon receipt of the Initial Payment,” the parties would “release and covenant not to sue each
other” and would “lodge a consent decree memorializing these terms and, except as necessary to
enforce the decree, dismiss the litigation.” Id. ¶¶ 4–5. Thereafter LLC and LMT would pay Mr.
Partridge $10,000 each month until the initial and monthly payments totaled $150,000. Id. ¶ 2.
If LLC and LMT failed to make a monthly payment on time and failed to cure the default within
five calendar days, the agreement established that “the Court shall enter judgment against [the
corporations] for the entire unpaid balance plus all costs of collection, including attorney’s fees
3 At that same time, Mr. Partridge’s counsel sought sanctions against Mr. Arlett or Mr.
Arlett’s counsel or both for a purported discovery violation. See Mot. for Sanctions, ECF No.
29. The parties subsequently resolved the dispute, and Plaintiff’s counsel withdrew the motion.
See Pl.’s Notice of Withdrawal of His Motion for Sanctions (Dkt. 29), ECF No. 42.
pursuant to D.C. Code § 32-1308.” Id. ¶ 6. The parties explicitly “consent[ed] to the continuing
jurisdiction of the United States District Court for the District of Columbia unless and until
Plaintiff receives Initial and Monthly Payments totaling $150,000.” Id. ¶ 10. On July 12, 2017,
this Court entered a consent decree, which fully incorporated the parties’ settlement agreement.
See id. That same day, the Court denied as moot Defendants’ motion to dismiss and Plaintiff’s
motion for summary judgment. See Minute Order (July 12, 2017). Defendants’ counsel’s
motion to withdraw remained under advisement.
A little more than a month later, Mr. Partridge moved for an order requiring Defendants
to show cause why they should not be held in contempt for allegedly violating the consent
decree. App. for a Rule to Show Cause Why Defs. Should Not Be Held in Contempt of Court,
ECF No. 35. According to Mr. Partridge, “despite [Mr.] Arlett’s representations that he would
make payments, that he already had made payments, and that he would provide confirmation of
payments,” no payments—not even the initial payment of $50,000—have been made. Id. at 1 &
¶ 11. At the first of two status conferences held shortly after Mr. Partridge filed his show cause
motion, the Court explained that it had viewed Defendants’ payment of the initial $50,000 as a
condition precedent to the parties’ filing of the consent decree. Having heard for the first time
through Plaintiff’s show cause motion that no initial payment had been made, this Court thought
it unwise to merely enforce the terms of the consent decree. Rather, the Court agreed to revisit
the parties’ pre-settlement motions.
The Court ordered Mr. Arlett to appear for a second status conference to be held the next
month. See Order, ECF No. 36 (“[T]he parties, including individual Defendant Randall Arlett,
shall appear for a status conference on September 19, 2017. . . .”). Mr. Arlett belatedly notified
Plaintiff’s counsel and this Court that he was “not able to appear today in person” because he
resides and works in Saudi Arabia. Letter from Randall Arlett (“Arlett Letter”), ECF No. 41
(time-stamped September 19, 2017 at 7:40 A.M.); see also Letter (Fax) from Steve Oster, ECF
No. 39. In that same message, Mr. Arlett affirmed that Defendants “do not oppose” their
counsel’s motion to withdraw. Arlett Letter, ECF No. 41. He asked, however, for “a 30 day
continuance to seek new counsel and allow the new counsel adequate time to prepare and
respond in this matter.” Id. He also represented that Defendants “have already started to seek
new counsel and expect to have retained by the end of this week.” Id. Although that
representation was made on September 19, 2017, more than three months have elapsed without
any new counsel entering an appearance on Defendants’ behalf.
Presently before the Court are Mr. Partridge’s motion to strike Defendants’ errata sheet,
Defendants’ motion to dismiss, Mr. Partridge’s motion to summary judgment, and Defendants’
counsel’s motion to withdraw from this case.
III. ANALYSIS 4
A. Plaintiff’s Motion to Strike is Denied
The Court first considers Mr. Partridge’s motion to strike Defendants’ counsel’s errata
sheet. See Mot. to Strike Errata Sheet, ECF No. 15. Mr. Partridge argues that the errata sheet,
which clarified that Defendants’ counsel had intended to submit the motion to dismiss on behalf
4 The parties apparently agree that, except in considering arbitrability questions under the
Federal Arbitration Act, this Court should assess the issues and claims presented in this case
under District of Columbia law. See, e.g., Defs.’ Mot. Dismiss (analyzing issues of District of
Columbia law); Pl.’s MSJ (arguing that District of Columbia law should apply and analyzing
issues under District of Columbia law). As no party disputes the choice of substantive law, the
Court will not belabor its choice-of-law analysis. See Piedmont Resolution, LLC v. Johnston,
Rivlin & Foley, 999 F. Supp. 34, 39 (D.D.C. 1998) (“The parties have not raised any choice of
law issues and, in their arguments in support of and in opposition to [the] motion for summary
judgment, all parties have relied solely on District of Columbia law. Accordingly, the Court will
resolve the motion under District of Columbia law.”).
of all three defendants, is not the appropriate means through which to join a motion to dismiss.
See id. at 1. “The use of errata sheets,” he contends, “is restricted to correcting typographic,
stenographic, or other inconsequential errors.” Id. ¶ 1. Furthermore, he asserts that Defendants’
counsel made a strategic decision to leave LMT off of the motion to dismiss. See id. ¶¶ 5–6.
And he argues that “if permitted Plaintiff will be prejudiced by having already responded to a
Motion that subsequently was substantively altered without leave of Court.” Id. ¶ 7. The Court
disagrees.
“The decision to grant or deny a motion to strike is vested in the trial judge’s sound
discretion.” Canady v. Erbe Elektromedizin GmbH, 307 F. Supp. 2d 2, 7 (D.D.C. 2004). Courts
generally disfavor such motions. See Stabilisierungfonds Fur Wein v. Kaiser Stuhl Wine
Distributors Pty. Ltd., 647 F.2d 200, 201 (D.C. Cir. 1981) (per curiam). A court may, however,
strike an untimely filing or decline to allow a party to supplement a filing when doing so
promotes the fair and efficient administration of justice. See Jackson v. Finnegan, Henderson,
Farrabow, Garrett & Dunner, 101 F.3d 145, 150–53 (D.C. Cir. 1996) (affirming district court’s
denial of motion to supplement summary judgment filings); cf. Randolph v. ING Life Ins. &
Annuity Co., 486 F. Supp. 2d 1, 9 n.5 (D.D.C. 2007) (striking a surreply submitted without leave
of court).
The Court concludes that, under the circumstances of this case, it would be imprudent to
strike Defendants’ counsel’s errata sheet. True enough, errata sheets are typically—and,
perhaps, appropriately—used only to correct inconsequential errors. And instead of filing an
errata sheet, Defendants’ counsel likely should have sought leave to amend his motion to dismiss
or requested an extension to permit him to file a separate motion to dismiss on behalf of LMT.
But it is difficult to gather why the styling of Defendants’ counsel’s filing should predominate
the Court’s analysis. In all cases, the Court has substantial discretion to permit the filing. See
Cohen v. Bd. of Trustees of the Univ. of the Dist. of Columbia, 819 F.3d 476, 479–80 (D.C. Cir.
2016) (describing the discretion afforded to district courts to determine whether to extend a
deadline even after the time to act has expired); Canady, 307 F. Supp. 2d at 7 (explaining that the
decision whether to grant a motion to strike is vested in the district court’s discretion). The
Court is simply not persuaded that Defendants’ counsel acted in bad faith in neglecting to
include LMT in the motion to dismiss. Nor is the Court convinced that Plaintiff has suffered
substantial prejudice due to the clarification. Mr. Partridge seemingly hopes that the Court will
strike counsel’s errata sheet, find that LMT failed to timely answer the complaint, declare LMT
in default, and proceed toward a default judgment. As the Court explained in Canady, “[s]uch a
result . . . would contravene the established policies disfavoring motions to strike, and favoring
the resolution of cases on their merits.” 307 F. Supp. 2d at 8 (citation omitted). Accordingly, the
Court denies Plaintiff’s motion to strike.
B. Defendants’ Motion to Dismiss and to Compel Arbitration is Denied
The Court next considers Defendants’ motion to dismiss and to compel arbitration. First,
Defendants argue that the Court should dismiss any claims asserted against Mr. Arlett in his
personal capacity under Federal Rule of Civil Procedure 12(b)(6). Defs.’ Mot. Dismiss at 4–5.
Second, Defendants ask the Court to compel arbitration of claims asserted against LLC and LMT
pursuant to an arbitration clause in the First Agreement. Id. at 5–8. For the reasons set forth
below, the Court denies both requests.
1. The Court Denies Defendants’ Motion to Dismiss Mr. Arlett as a Defendant
The Court begins with Individual Defendant Arlett’s argument that the complaint fails to
allege facts sufficient to support liability against him on any claim. Given the liberal pleading
standard of Rule 12, the Court concludes that Mr. Partridge’s allegations against Mr. Arlett are
sufficient to survive a motion to dismiss.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal
sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). To
survive a 12(b)(6) motion, a complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (quoting Fed. R. Civ. P. 8(a)(2)). Detailed factual allegations are not required, but the
plaintiff must plead facts sufficient to “raise a right to relief above the speculative level on the
assumption that all of the complaint’s allegations are true.” Id. When ruling on a Rule 12(b)(6)
motion, “the Court may only consider the facts alleged in the complaint, documents attached as
exhibits or incorporated by reference in the complaint, and matters about which the Court may
take judicial notice.” Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002). The
Court must construe the complaint liberally in the plaintiff’s favor and grant the plaintiff the
benefit of all reasonable inferences. Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.
Cir. 1994). The Court may not, however, accept inferences that are “unsupported by the facts set
out in the complaint,” and may need not “accept legal conclusions cast in the form of factual
allegations.” Id.
i. Plaintiff’s Allegations Are Sufficient to Support a Plausible Inference That Defendant
Arlett is An Alter Ego of LLC and LMT and Thus Personally Liable for Their Contractual
Obligations
Count One of the complaint alleges that the Defendants—including Mr. Arlett—owe Mr.
Partridge $107,000 for breaching two employment agreements. See Compl. ¶¶ 39–43.
Defendants argue that Mr. Arlett is not liable for such a claim because he did not personally enter
either agreement at issue in this case; rather, Mr. Arlett signed the Agreements as an officer of
LLC and LMT. See Defs.’ Mot. Dismiss at 4–5. Defendants contend that there is no pleading
that justifies piercing the corporate veil to hold Mr. Arlett personally liable for the contractual
obligations of LLC and LMT. See id. Again, the Court disagrees.
“A corporation is ordinarily to be viewed as a distinct entity, even when it is wholly
owned by a single individual.” Quinn v. Butz, 510 F.2d 743, 757 (D.C. Cir. 1975) (footnote
omitted). “This concept, however, is designed to serve normal, inoffensive uses of the corporate
device, and is not to be stretched beyond its reason and policy.” Id. “In breach of contract
actions, piercing the corporate veil allows individual corporate owners [and officers] to be held
liable for breaching contracts between their corporations and third parties, even though they were
not personally in privity with the third parties.” World Class Constr. Mgmt. Grp. v. Baylor, 962
F. Supp. 2d 296, 300 n.5 (D.D.C. 2013); see also, e.g., McWilliams Ballard, Inc. v. Level 2 Dev.,
697 F. Supp. 2d 101, 105–06 (D.D.C. 2010) (concluding that breach of contract claims asserted
against corporate officers in their personal capacity survived a motion to dismiss where plaintiff
alleged sufficient facts to support the piercing of the corporate veil); McWilliams Ballard, Inc. v.
Broadway Mgmt. Co., 636 F. Supp. 2d 1, 7–8 (D.D.C. 2009) (same).
District of Columbia law provides that “a party may be permitted to pierce the corporate
veil upon proof, ‘that there is (1) unity of ownership and interest, and (2) use of the corporate
form to perpetrate fraud or wrong,’ or ‘other considerations of justice and equity’ justify it.”
Broadway Mgmt. Co., 636 F. Supp. 2d at 8 (quoting Estate of Raleigh v. Mitchell, 947 A.2d 464,
470 (D.C. 2008)). “Individuals or other entities may be held liable for the activities of a
corporation when it is demonstrated that ‘the corporation is not only controlled by those persons
who are alleged alter egos of the corporation, but also that the separateness of the persons and the
corporation has ceased and . . . an adherence to the fiction of the separate existence of the
corporation would sanction a fraud or promote injustice.’” Shapiro, Lifschitz & Schram, P.C. v.
Hazard, 90 F. Supp. 2d 15, 23 (D.D.C. 2000) (quoting Camacho v. 1440 Rhode Island Ave.
Corp., 620 A.2d 242, 249 (D.C. 1993)).
Courts also consider such factors as, “(1) whether corporate formalities have been
disregarded, (2) whether corporate funds and assets have been extensively intermingled with
personal assets, (3) inadequate initial capitalization, and (4) fraudulent use of the corporation to
protect personal business from the claims of creditors.” Broadway Mgmt. Co., 636 F. Supp. 2d
at 8 (quoting Estate of Raleigh, 947 A.2d at 470–71). The District of Columbia Court of Appeals
has explained that the inquiry is flexible; “since piercing the corporate veil is a doctrine of
equity, ‘the factor which predominates will vary in each case.’” Camacho, 620 A.2d at 249
(quoting Vuitch v. Furr, 482 A.2d 811, 816 (D.C. 1984)); see also Lawlor v. District of
Columbia, 758 A.2d 964, 975 (D.C. 2000) (“No single factor is dispositive, and ‘considerations
of justice and equity may justify piercing the corporate veil.’” (quoting Bingham v. Goldberg,
Marchesano, Kohlman, Inc., 637 A.2d 81, 93 (D.C. 1994))). Furthermore, courts stress that at
the pleading stage a plaintiff need only allege sufficient facts to support a plausible inference of
alter ego liability and need not show all that would be required to prevail at trial. See Broadway
Mgmt. Co., 636 F. Supp. at 8; Lopes v. JetsetDC, LLC, 994 F. Supp. 2d 135, 147 (D.D.C. 2014).
Plaintiff claims that Defendant Arlett “maintained operational control over LMT, [LLC],
and Plaintiff”; had the power to approve the hiring of Plaintiff; had the power to approve
Plaintiff’s rate and method of compensation; had the power to directly and indirectly supervise
Plaintiff’s work; and had “control over all material aspects of LMT’s and [LLC]’s business.”
Compl. ¶¶ 15–17, 19–21. Plaintiff also asserts that Defendant Arlett “converted to his own use
the funds received from the facility in Tbilisi, Georgia on account of the services Plaintiff
performed on Defendants’ behalf.” Id. ¶ 33. These allegations amount to quite a bit more than
the sparse or conclusory statements regarding the piercing of the corporate veil that courts have
rejected as insufficient to survive a motion to dismiss. See, e.g., Kelleher v. Dream Catcher,
L.L.C., 221 F. Supp. 3d 157, 160 (D.D.C. 2016) (dismissing action asserted against owners of a
corporation where the only fact to support alter ego theory was that the corporation and the
individual defendant-owners shared the same address); Motir Servs., Inc. v. Ekwuno, 191 F.
Supp. 3d 98, 109–11 (D.D.C. 2016) (dismissing action against sole owner of a corporation where
plaintiff relied only on the conclusory allegation that the corporation served as an alter ego for
the individual defendant); Ruffin v. New Destination, LLC, 773 F. Supp. 2d 34, 40–41 (D.D.C.
2011) (dismissing action against individual owner/corporate officer where plaintiff’s only
allegations pertaining to that individual concerned her ownership of the corporation and status as
an officer). Rather, taking Mr. Partridge’s allegations as true and drawing all reasonable
inferences in his favor, as the Court must at the motion to dismiss stage, these amount to, at least,
assertions that Mr. Arlett excessively intermingled corporate funds with his personal assets and
dominated and controlled the corporations in a manner that might amount to unity of interest and
ownership. Allegations of this sort have been deemed sufficient in past cases. See, e.g.,
Broadway Mgmt. Co., 636 F. Supp. 2d at 9 (deeming allegations that individual defendants
dominated a corporation, disregarded corporate formalities, commingled corporate and personal
assets sufficient to survive a motion to dismiss). The fact that the First and Second Agreement
were entered into by different corporate entities at Mr. Arlett’s direction seems to support this
conclusion. The Court concludes that Mr. Partridge has sufficiently stated a claim for piercing
the corporate veil, thus it will deny Defendants’ motion to dismiss this count.
ii. Plaintiff States a Claim Against Defendant Arlett as an Employer Under the DCWPCL
Mr. Partridge’s second cause of action is for violation of the D.C. Wage Payment and
Collection Law (“DCWPCL”), D.C. Code §§ 32–1301 et seq. At the time Mr. Partridge initiated
this suit, the DCWPCL provided that “[e]very employer shall pay all wages earned to his
employees at least twice during each calendar month, on regular paydays designated in advance
by the employer.” 5 D.C. Code § 32–1302. Mr. Arlett apparently seeks dismissal of this count on
the basis that he was a mere corporate officer and not Mr. Partridge’s “employer” under the
DCWPCL. See Defs.’ Mot. Dismiss at 5.
The DCWPCL defines employer as “every individual, partnership, firm, general
contractor, subcontractor, association, corporation, the legal representative of a deceased
individual, or the receiver, trustee, or successor of an individual, firm, partnership, general
contractor, subcontractor, association, or corporation, employing any person in the District of
Columbia.” D.C. Code § 32–1301. This Court has explained that the definition of employer is
to be broadly construed, that an employee may have more than one employer under the law, and
that, in some circumstances, corporate officers are employers under the statute. See Ventura v.
Bebo Foods, Inc., 738 F. Supp. 2d 1, 5–6 (D.D.C. 2010) (defining “employer” under the Federal
Labor Standards Act and noting that the DCWPCL is construed consistently with that Act). To
determine whether an individual or entity is an employer under the law, courts apply an
“economic reality test,” under which they consider “the totality of the circumstances of the
relationship between the plaintiff/employee and defendant/employer to determine whether the
putative employer has the power to hire and fire, supervise and control work schedules or
5 The DCWPCL has since been amended. See Wage Theft Prevention Clarification and
Overtime Fairness Amendment Act of 2016, D.C. Law 21-266 § 2(b), 64 DCR 2140.
conditions of employment, determine rate and method of pay, and maintain employment
records.” Id. (quoting Del Villar v. Flynn Architectural Finishes, 664 F. Supp. 2d 94, 96 (D.D.C.
2009)). Stated otherwise, courts look to whether a corporate officer has operational control over
the corporation. Id.
As the Court described in detail above, Mr. Partridge claims that Mr. Arlett “maintained
operational control over LMT, [LLC], and Plaintiff”; had the power to approve the hiring of
Plaintiff; had the power to approve Plaintiff’s rate and method of compensation; had the power
to directly and indirectly supervise Plaintiff’s work; and had “control over all material aspects of
LMT’s and [LLC]’s business.” Compl. ¶¶ 15–17, 19–21. These allegations amount to a claim
that Mr. Arlett had operational control over the corporations and, thus, these allegations are
sufficient at the pleading stage to show that Mr. Arlett may be Mr. Partridge’s “employer” under
the DCWPCL. Consequently, the Defendants’ motion to dismiss Count Two is denied.
iii. Defendant Arlett Can Be Held Liable for His Own Tortious Conduct
In addition to breach of contract and District of Columbia statutory claims, Mr. Partridge
asserts that all three Defendants committed fraud by entering into the Agreements without
intending to perform. Compl. ¶¶ 51–57. Mr. Arlett seeks dismissal of this count on the sole
basis that he is not personally liable for the actions of the corporations. See Defs.’ Mot. Dismiss.
at 4–5. Mr. Arlett neglects to appreciate, however, that under District of Columbia law,
“corporate officers ‘are personally liable for torts which they commit, participate in, or inspire,
even though the acts are performed in the name of the corporation.’” Perry ex rel. Perry v.
Frederick Inv. Corp., 509 F. Supp. 2d 11, 18 (D.D.C. 2007) (quoting Lawlor, 758 A.2d at 974).
Importantly though, “an officer’s liability is not based merely on the officer’s position in the
corporation; it is based on the officer’s behavior and whether that behavior indicates that the
tortious conduct was done within the officer’s area of affirmative official responsibility and with
the officer’s consent or approval.” Id. (quoting Lawlor, 758 A.2d at 977). “Liability must be
premised upon a corporate officer’s meaningful participation in the wrongful acts.” Id. (quoting
Lawlor, 758 A.2d at 977). “Sufficient participation can exist when there is an act or omission by
the officer which logically leads to the inference that he had a share in the wrongful acts of the
corporation which constitute the offense.” Lawlor, 758 A.2d at 975 (quoting Vuitch, 482 A.2d at
821).
The Court must determine whether Mr. Partridge’s allegations are sufficient to sustain a
claim that Mr. Arlett meaningfully participated in the acts and omissions on which the fraud
claim is based or, alternatively, failed to act to prevent those acts or omissions despite an
affirmative responsibility to do so. 6 The complaint asserts that the Defendants—including Mr.
Arlett—entered into the Agreements without intending to pay Mr. Partridge the wages he would
earn. Compl. ¶¶ 52–53. It also alleges that the Defendants—including Mr. Arlett—“failed to
disclose to Plaintiff their intention not to pay him his earned wages.” Id. ¶ 53. And, as explained
above, Plaintiff claims that Mr. Arlett asserted “control over all material aspects of LMT’s and
[LLC’s] business” and that he “had the power to approve Plaintiff’s rate and method of
compensation.” Compl. ¶¶ 17, 20. Indeed, Mr. Arlett signed both agreements. See Compl., Ex.
A at 6; Compl., Ex. B. To the extent a fraud occurred, the Court can draw the reasonable
inference from Mr. Partridge’s pleading that Mr. Arlett meaningfully participated in it. Cf.
Cooper v. First Gov’t Mortg. & Inv’rs Corp., 206 F. Supp. 2d 33, 36 (D.D.C. 2002) (denying
motion to dismiss claims against corporate officer-defendant and noting that “[a]lthough
6Because Defendants have not sought dismissal on any other basis, the Court declines to
consider whether Plaintiff’s allegations are otherwise sufficient to state a claim for fraud.
[plaintiffs] have not proven [defendant’s] involvement in the alleged violations, the plaintiffs are
entitled to offer evidence at a later time to support these claims”). Accordingly, Defendants’
motion to dismiss is denied.
2. Defendants LMT and LLC Forfeited Their Right to Compel Arbitration By Actively
Participating in this Litigation
Having rejected Defendants’ contention that Mr. Arlett should be dismissed from this
matter, the Court next considers Defendants’ remaining arguments for dismissal. Citing a
provision in the First Agreement, Defendants move to compel arbitration of claims asserted
against LMT and LLC pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq.
See Defs.’ Mot. Dismiss at 5–8. Mr. Partridge resists arbitration, arguing that (1) the Second
Agreement features no arbitration clause and thus claims stemming from that Agreement should
not be subject to arbitration; (2) Defendants waived their right to compel arbitration by asking
the Court to dismiss Mr. Arlett as a defendant in this matter; and (3) the Court should decline to
enforce the arbitration provision in the First Agreement because it imposes prohibitive fees on
Plaintiff. 7 See Pl.’s Opp. Mot. Dismiss at 12–19. The Court concludes that Defendants waived
any right to compel arbitration by actively participating in this litigation.
The FAA provides that most written agreements to arbitrate “shall be valid, irrevocable,
and enforceable, save upon such grounds as exist at law or in equity for the revocation of any
contract.” 9 U.S.C. § 2. If a dispute is referable to arbitration, a district court “shall direct the
parties to proceed to arbitration on issues as to which an arbitration agreement has been signed.”
7 Plaintiff also argues that LMT failed to appear or answer in this matter and that the
other Defendants cannot enforce the arbitration clause in an agreement to which they were not
parties. See Pl.’s Opp. Mot. Dismiss at 13. As the Court has declined to strike the errata sheet
that clarified that the motion dismiss had been submitted on LMT’s behalf, the Court need not
address this argument.
Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985). Generally, a party seeking to
compel arbitration must show that a valid arbitration clause exists, that the movant is entitled to
invoke the clause, that the other party is bound by the clause, and that the clause covers the
asserted dispute. See PCH Mutual Ins. Co. v. Casualty & Surety, Inc., 750 F. Supp. 2d 125, 141–
42 (D.D.C. 2010). Because the FAA “strongly favors the enforcement of agreements to arbitrate
as a means of securing ‘prompt, economical and adequate solution of controversies,’” Rodriguez
de Quijas v. Shearson/Am. Express Inc., 490 U.S. 477, 479–80 (1989) (quoting Wilko v. Swan,
346 U.S. 427, 438 (1953)), the Supreme Court has instructed courts to resolve doubts in favor of
arbitrability. See Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25
(1983); see also AT & T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 650 (1986)
(“[A]n order to arbitrate [a] particular grievance should not be denied unless it may be said with
positive assurance that the arbitration clause is not susceptible of an interpretation that covers the
asserted dispute.” (internal quotation marks and notations omitted)).
Federal policy notwithstanding, a party opposing arbitration can set out defenses to
arbitrability such as waiver and delay. 8 See Moses H. Cone Mem’l Hosp., 460 U.S. at 24–25.
Our Circuit Court has explained that “consistent with arbitration’s contractual basis, a party may
waive its right to arbitration by acting ‘inconsistently with the arbitration right.’” Khan v.
Parsons Global Servs., Ltd., 521 F.3d 421, 424–25 (D.C. Cir. 2008) (quoting Nat’l Found. for
8 As the D.C. Circuit explained in Zuckerman Spaeder, LLP v. Auffenberg, 646 F.3d 919
(D.C. Cir. 2011), forfeiture—“the ‘failure to make a timely assertion of a right,” id. at 922
(quoting United States v. Olano, 507 U.S. 725, 733 (1993))—is the appropriate standard for
evaluating a late-filed motion under Section 3 of the FAA. Id. The waiver standard, on the other
hand, applies when a party intentionally relinquishes or abandons a known right. Zuckerman,
646 F.3d at 922 (citing Olano, 507 U.S. at 733). In the arbitration context, the waiver inquiry
examines whether, during the course of litigation, a party “acted in a manner ‘inconsistent with
any intent to assert the right to arbitrate.’” Zuckerman, 646 F.3d at 922 (quoting Nat’l Found.
for Cancer Research v. A.G. Edwards & Sons, Inc., 821 F.2d 772, 775 (1987)).
Cancer Research v. A.G. Edwards & Sons, Inc., 821 F.2d 772, 774 (D.C. Cir. 1987)). Courts in
this jurisdiction consider “the totality of the circumstances in deciding whether the defaulting
party has acted inconsistently with the right. . . . One example of such conduct . . . is active
participation in a lawsuit.” Khan, 521 F.3d at 425 (quoting Nat’l Found. for Cancer Research,
821 F.2d at 774–75 (alterations in original) (brackets omitted)). This inquiry is “inherently fact-
bound.” Zuckerman Spaeder, LLP v. Auffenberg, 646 F.3d 919, 922 (D.C. Cir. 2011). Courts
assess, among other things, whether a party timely sought arbitration; whether the party now
moving for arbitration engaged in litigation activity that induced the other party and “the district
court to expend time and effort on disputes, the resolution of which would not” move the dispute
toward arbitration; and whether the party opposing arbitration would suffer prejudice from the
movant’s delay in seeking arbitration. See id. at 922–24. Prejudice is not necessary to
demonstrate waiver. Nat’l Found. for Cancer Research, 821 F.2d at 777.
Not all participation in litigation is treated equally. For example, courts in this
jurisdiction do not fault parties for seeking to compel arbitration in an answer that also asserts
counterclaims and defenses. See, e.g., Gordon-Maizel Constr. Co., Inc. v. Leroy Prods., Inc.,
658 F. Supp. 528, 531 (D.D.C. 1987) (“The mere fact that [defendants] answered the complaint,
rather than risk a default judgment, in no way constitutes the degree of ‘active participation’ in
litigation necessary to establish waiver.”). Nor do they fault “merely removing [an] action [to
federal court], without attempting to engage in discovery or to dispute plaintiff’s claims on the
merits.” Martin v. Citibank, Inc., 567 F. Supp. 2d 36, 41 (D.D.C. 2008). Likewise, a party’s
refusal to settle a matter informally—rather than through either litigation or arbitration—is not
regarded as intrinsically inconsistent with the right to arbitration such that it constitutes waiver.
See Shorts v. Parson Trans. Grp., Inc., 679 F. Supp. 2d 63, 67 (D.D.C. 2010) (finding that a
party who refused attempts to engage in informal dialogue concerning an employment dispute
did not waive the right to compel arbitration). Furthermore, in some cases, parties have even
initiated litigation without being found to have waived the right to compel arbitration. See Davis
Corp. v. Interior Steel Equip Co., 669 F. Supp. 32, 33–34 (D.D.C. 1987) (concluding that
subcontractor who filed an action in federal court to protect against the running of a statute of
limitations and conducted minimal discovery did not waive arbitration because it “consistently
maintained that the dispute should be submitted to arbitration”).
Conversely, courts have deemed the right to compel arbitration waived where “[t]he
litigation machinery had been substantially invoked and the parties were well into the
preparation of the lawsuit by the time . . . an intention to arbitrate was communicated.” Cornell
& Co. v. Barber & Ross Co., 360 F.2d 512, 513 (D.C. Cir. 1966) (party had waived arbitration
by moving for a transfer of venue; filing an answer to the complaint and a counterclaim; and
filing notice of depositions, taking a deposition, and procuring documents and records in
discovery); see also, e.g., Khan, 521 F.3d at 428 (“[I]rrespective of other indicators of
involvement in litigation, filing a motion for summary judgment based on matters outside the
pleadings is inconsistent with preserving the right to compel arbitration” even when the summary
judgment is accompanied by a motion to compel arbitration in the alternative). The right is
likewise waived when a party has “made a conscious decision to exploit the benefits of pretrial
discovery[,] motion practice,” and other aspects of litigation and now seeks “a second bite at the
very questions presented to the court for disposition.” Nat’l Found. for Cancer Research, 821
F.2d at 288.
Considering the totality of circumstances here, the Court has no difficulty concluding that
Defendants have waived any right to compel arbitration by actively participating in this
litigation. Though Defendants timely invoked the right to arbitrate in their earliest filings in this
matter, their subsequent conduct cannot possibly be squared with an intent to preserve that right.
Namely, after Defendants filed their motion to compel arbitration and their response in
opposition to Plaintiff’s request for summary judgment, they consented to the filing of a
settlement agreement for entry by this Court as a consent decree. In that agreement, the parties
claimed to have resolved matters that would otherwise be heard through arbitration. And, most
tellingly, Defendants “consent[ed] to the continuing jurisdiction of the United States District
Court for the District of Columbia unless and until Plaintiff received Initial and Monthly
Payments totaling $150,000.” Consent Decree, ¶ 10. If Defendants had wanted to maintain the
right to pursue arbitration, they needed only wait for the Court to rule on their motion to dismiss
and to compel arbitration. Moreover, they could have reached an out-of-court settlement which
did not subject them to this Court’s jurisdiction. Instead, by their own conduct, Defendants
mooted their motion to compel arbitration and prolonged resolution of this matter. At this stage
in this litigation, given the substantial resources expended by the Court and both parties, the
Court would be remiss to offer Defendants a second bite at the proverbial apple. Accordingly,
Defendants’ motion to compel arbitration is denied.
C. Motion for Summary Judgment
The Court next turns to Plaintiff’s motion for summary judgment. Mr. Partridge seeks
summary judgment on three of his claims: (1) breach of contract, (2) violation of District of
Columbia statutory wage laws, and (3) his request for a judgment declaring the non-competition
clause in the First Agreement invalid. As set forth below, the Court grants Mr. Partridge’s
motion with respect to Count One against LMT, but otherwise denies it.
Summary judgment is appropriate 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). “A fact
is ‘material’ if a dispute over it might affect the outcome of a suit under governing law; factual
disputes that are ‘irrelevant or unnecessary’ do not affect the summary judgment determination.”
Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting Liberty Lobby, 477 U.S. at
248). An issue is “genuine” if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380; Liberty Lobby, 477 U.S. at 248;
Holcomb, 433 F.3d at 895.
The movant bears the initial burden of identifying portions of the record that demonstrate
the absence of any genuine issue of material fact. See Fed. R. Civ. P. 56(c)(1). In response, the
non-movant must point to specific facts in the record that reveal a genuine issue that is suitable
for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “In order to establish that a
fact is or cannot be genuinely disputed, a party must (a) cite to specific parts of the record—
including deposition testimony, documentary evidence, affidavits or declarations, or other
competent evidence—in support of its position, or (b) demonstrate that the materials relied upon
by the opposing party do not actually establish the absence or presence of a genuine dispute.”
United States v. Dynamic Visions, Inc., 220 F. Supp. 3d 16, 19–20 (D.D.C. 2016) (citing Fed. R.
Civ. P. 56(c)(1)).
In considering a motion for summary judgment, a court must “eschew making credibility
determinations or weighing the evidence,” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir.
2007), and all underlying facts and inferences must be analyzed in the light most favorable to the
non-movant, see Liberty Lobby, 477 U.S. at 255. Nevertheless, conclusory assertions offered
without any evidentiary support do not establish a genuine issue for trial. See Greene v. Dalton,
164 F.3d 671, 675 (D.C. Cir. 1999). Where “a party fails to properly support an assertion of fact
or fails to properly address another party’s assertion of fact,” the district court may “consider the
fact undisputed for the purposes of the motion.” Fed. R. Civ. P. 56(e)(2). The court must,
however, “always determine for itself whether the record and any undisputed material facts
justify granting summary judgment.” Winston & Strawn, LLP v. McLean, 843 F.3d 503, 505
(D.C. Cir. 2016) (quoting Grimes v. District of Columbia, 794 F.3d 83, 97 (D.C. Cir. 2015)
(Griffith, J., concurring)). That is, “[o]nce the court has determined the set of facts—both those
it has chosen to consider undisputed for want of a proper response or reply and any that cannot
be genuinely disputed despite a procedurally proper response or reply—it must determine the
legal consequences of these facts and permissible inferences from them.” Winston & Strawn,
LLP, 843 F.3d at 508 (quoting Fed. R. Civ. P. 56 Advisory Committee’s Note to 2010
Amendment).
1. Plaintiff’s Motion for Summary Judgment is Not Premature
Before turning to the merits of Plaintiff’s motion for summary judgment, the Court will
address Defendants’ contention that the motion is premature because the parties have not yet
engaged in discovery. See Defs.’ Resp. to Pl.’s Mot. for Summ. J. at 8–9, ECF No. 18. While
summary judgment is often inappropriate when parties have not yet conducted discovery, see
First Chicago Int’l v. United Exch. Co., 836 F.2d 1375, 1380 (D.C. Cir. 1988), this is not always
true and a party cannot oppose summary judgment by simply declaring that it wishes to conduct
further discovery. Rather, under Federal Civil Rule 56(d), a party opposing summary judgment
must “show[] by affidavit or declaration that, for specified reasons, it cannot present facts
essential to justify its opposition.” Fed. R. Civ. P. 56(d). The D.C. Circuit has established “three
criteria that the affidavit must satisfy: (1) ‘It must outline the particular facts the non-movant
intends to discover and describe why those facts are necessary to the litigation’; (2) ‘it must
explain why the non-movant could not produce the facts in opposition to the motion for
summary judgment’; and (3) ‘it must show the information is in fact discoverable.’” U.S. ex rel.
Folliard v. Gov’t Acquisitions, Inc., 764 F.3d 19, 26 (D.C. Cir. 2014) (internal citations and
brackets omitted) (quoting Convertino v. U.S. Dep’t of Justice, 684 F.3d 93, 99–100 (D.C. Cir.
2012)). “The rule was not created to act as a shield that can be raised to block a motion for
summary judgment without even the slightest showing by the opposing party that his opposition
is meritorious.” Greenberg v. FDA, 803 F.2d 1213, 1223 (D.C. Cir. 1986) (internal quotation
marks omitted). Accordingly, district courts should deny a request for a continuance in order to
obtain discovery when “the discovery sought appears irrelevant, or if discovery would be wholly
speculative.” Id. at 1224.
Defendants have submitted neither affidavits nor declarations in support of their request
that the Court delay consideration of Plaintiff’s summary judgment motion. In any event, failure
to file affidavits or declarations aside,9 Defendants’ request fails on the merits. In support of
their request for delay or denial of Plaintiff’s motion, Defendants assert that affidavits submitted
along with Plaintiff’s motion for summary judgment come from individuals “who may have a
bias against the Defendants.” Defs.’ Resp. to Pl.’s Mot. for Summ. J. at 8. Defendants declare
9 In this jurisdiction, such a failure does not automatically doom a request for additional
discovery. See First Chicago Int’l, 836 F.2d at 1380 (holding that appellant’s failure to file an
affidavit specifically outlining the facts that it hoped to uncover with additional discovery did not
preclude it from challenging the summary judgment order because other filings were sufficient to
notify the district court of the need for further discovery). The D.C. Circuit has reasoned that a
“more flexible approach” to the affidavit requirement is appropriate when other filings “serve[]
as the functional equivalent of an affidavit.” Id. at 1380. But given Defendants’ sparse
explanation for why the Court should permit additional discovery, this is not a case where other
filings suffice.
that, through discovery, they hope to scrutinize the “motivation[s]” of these individuals. Id. at 8.
Furthermore, they contend that other evidence offered by Plaintiff “does not necessarily show
[that] LLC had a duty to pay Plaintiff, Arlett had a duty to play Plaintiff[,] or that LMT was in
breach of its duty.” Id. at 9. This request is far too vague to justify denying or deferring action
on Plaintiff’s motion for summary judgment. First, Defendants’ contention about what sort of
evidence discovery might produce is utterly speculative. Defendants have provided this Court
with no reason to believe that discovery may produce statements that undermine the credibility
of the affidavits Plaintiff has submitted. Second, Defendants have not made clear to this Court
why the facts they intend to discover might be necessary to this litigation. For example,
Defendants state only that they generally mistrust a declaration submitted by Jacquelyn Martin.
See Defs.’ Resp. to Pl.’s Mot. for Summ. J. at 8. But they fail to specifically deny any assertion
made in that declaration.
Furthermore, it is readily apparent that Defendants are in a position to challenge many of the
material factual allegations critical to this dispute. For example, Defendants have said nothing to
dispute that at least some of them owe Mr. Partridge unpaid wages. Nor have they disputed the
amount of unpaid wages owed. The Court struggles to imagine why Defendants would lack
access to information that might enable them to show whether they have paid Mr. Partridge at all
and, if so, how much they have paid him. Accordingly, it is not apparent to the Court how
discovery might better enable Defendants to oppose Plaintiff’s motion, when much of the
information at issue in this case is already in their possession. As Defendants have not shown
why they might need additional discovery, the Court has no reason to delay resolving the motion
until after discovery is taken.
2. Mr. Partridge is Entitled to Summary Judgment Against Defendant LMT for Its
Breach of the First Agreement, But Genuine Issues of Material Fact Preclude Summary
Judgment Against the Other Defendants
Mr. Partridge moves for summary judgment on his breach of contract claims against all
three defendants. Because the First Agreement unambiguously created a duty for LMT to pay
Mr. Partridge and because LMT does not dispute that it breached that duty, the Court will enter
judgment against LMT on this claim. However, as there are genuine issues of material fact
concerning the obligations undertaken by Defendants LLC and Mr. Arlett, the Court will deny
summary judgment as to them.
“To prevail on a clear of breach of contract,’ under District of Columbia law, ‘a party
must establish (1) a valid contract between the parties; (2) an obligation or duty arising out of the
contract; (3) a breach of that duty; and (4) damages caused by the breach.’” Aspire Channel,
LLC v. Penngood, LLC, 139 F. Supp. 3d 382, 388 (D.D.C. 2015) (quoting Brown v. Sessoms,
774 F.3d 1016, 1024 (D.C. Cir. 2014)). The District of Columbia adheres to the objective law of
contract under which “the written language embodying the terms of an agreement will govern the
rights and liabilities of the parties, irrespective of the intent of the parties at the time they entered
the contract” unless the Court cannot gather the clear and definite meaning of the agreement.
Potomac Elec. Power Co. v. Mirant Corp., 251 F. Supp. 2d 144, 148 (D.D.C. 2003) (quoting
Marra v. Papandreou, 59 F. Supp. 2d 65, 76 (D.D.C. 1999)). “In deciding whether contract
language is susceptible of a clear meaning, the court conducts a reasonableness inquiry.” Id. at
149. It “looks beyond the language itself and determines what a reasonable person in the
position of the parties would have thought the disputed language meant.” Id.
If a contract is unambiguous, courts can and should interpret it as a matter of law. See
Horn & Hardart Co. v. Nat’l R.R. Passenger Corp., 793 F.2d 356, 359 (D.C. Cir. 1986). If a
contract is ambiguous—that is, if “provisions in controversy are, reasonably or fairly susceptible
of different constructions or interpretations,” Wharf, Inc. v. District of Columbia, 133 F. Supp.
3d 29, 40–41 (D.D.C. 2015) (quoting Joyner v. Estate of Johnson, 36 A.3d 851, 856 (D.C.
2012))—summary judgment may still be appropriate “so long as there is no evidence that would
support a conflicting interpretation of the agreement.” Am. First Inv. Corp. v. Goland, 925 F.2d
1518, 1522 (D.C. Cir. 1991). But, “[a] court generally will not grant summary judgment where a
contract is ambiguous because its interpretation inevitably would ‘depend[] on the credibility of
extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic
evidence.’” Potomac Elec. Power Co., 251 F. Supp. 2d at 149 (quoting Holland v. Hannan, 456
A.2d 807, 815 (D.C. 1983)).
i. First Agreement
Mr. Partridge contends that all three Defendants are jointly and severally liable for
breaching the First Agreement. See Pl.’s MSJ, ECF No. 10. In support of his claim, he supplies
the agreement he entered with Defendant LMT. See Pl.’s MSJ, Ex. 2, ECF No. 10-4; Pl.’s
Statement of Undisputed Material Facts, ECF No. 10-1 ¶ II.A. He contends that the First
Agreement required LMT to pay him $11,000 per month from December 2015 through March
31, 2016 and $11,500 per month from April 2016 through November 2016. See Pl.’s SMF ¶
II.B, ECF No. 10-1. Mr. Partridge asserts that, though he performed all duties required of him
by the First Agreement, LMT breached the Agreement by failing to pay him. Id. ¶¶ II.C–D. Mr.
Partridge also argues that Defendant Arlett is liable under the First Agreement because he had
control over payment of wages under the Agreement. Id. ¶ II.K.
Mr. Partridge has shown that a valid contract existed between him and Defendant LMT.
The First Agreement plainly states that Defendant LMT had a duty to pay Mr. Partridge $11,000
per month for services that he would render from December 2015 through March 2016 and
$11,500 per month for services that he would render from April 2016 through November 2016.
See Pl.’s MSJ, Ex. 2 at 4. Mr. Partridge has also supported his claim that Defendant LMT
breached that duty by failing to pay him despite his performance. See Pl.’s MSJ, Exs. 2, 17–19,
23. Indeed, Defendant LMT does not dispute that Mr. Partridge performed as required by the
agreement or that it failed to pay Mr. Partridge according to the agreement. See Defs.’ Resp. to
Pl.’s Mot. for Summ. J. at 2. Furthermore, Mr. Partridge has shown that he sustained damages as
a result of the breach, in the form of $92,432 in unpaid wages. 10 Thus, the Court finds that there
is no genuine dispute as to any material fact concerning plaintiff’s claim that LMT breached the
First Agreement and that Mr. Partridge is entitled to summary judgment.
However, neither LLC nor Mr. Arlett were parties to the First Agreement. Mr. Partridge
asserts that they are nonetheless liable for breach of that agreement because they are alter egos of
LMT. See Pl.’s MSJ at 21–23. He provides insufficient support, however, to justify summary
judgment in his favor. Viewing the record in the light most favorable to the nonmovants,
genuine issues of material fact remain regarding whether Mr. Arlett and LLC are alter egos of
LMT such that they can be held liable for LMT’s breach of contract. See TAC-Critical Sys., Inc.
v. Integrated Facility Sys., Inc., 808 F. Supp. 2d 60 (D.D.C. 2011). Indeed, Mr. Partridge’s own
argument that LMT alone failed to join a motion to dismiss submitted by the other Defendants
seems to undermine his argument that the three parties are essentially one and the same. The
Court denies Plaintiff’s motion to the extent that it seeks judgment against LLC and Mr. Arlett
for obligations under the First Agreement.
10 Mr. Partridge’s complaint alleges that Defendant LMT owed him a total of $137,409
under the First Agreement, but it explains that LMT has already paid him $44,977 of the amount
owed under the agreement. Compl. ¶ 23; see also Compl., Ex. A at 4 (specifying payments
owed for Mr. Partridge’s services).
ii. Second Agreement
Mr. Partridge contends that even if LLC and Mr. Arlett are not liable for breach of the
First Agreement, they are liable for breach of the Second Agreement in which they offered Mr.
Partridge “iron clad assurance[s]” that future payments would be made in a timely manner,
consistent with the terms of the First Agreement. See Pl.’s Statement of Undisputed Material
Facts ¶ II.E. Defendants dispute whether the Second Agreement constitutes a separate
enforceable contract. See Defs.’ Resp. to Pl.’s Mot. Summ. J. at 9–10. Both parties present
reasonable arguments to support their respective understandings of the contractual provision.
The Court cannot say that the terms of the Second Agreement are unambiguous, and in view of
the ambiguity, the Court will deny Plaintiff’s motion and permit the parties to submit extrinsic
evidence to support their interpretations.
3. Summary Judgment on Count Two is Denied
Mr. Partridge also moves for summary judgment on Count Two, which asserts that
Defendants violated the DCWPCL, D.C. Code §§ 32–1301 et seq., by failing to pay Plaintiff
wages in accordance with the Agreements. See Pl.’s MSJ at 22. Defendants scarcely engage
with Plaintiff’s argument that they are liable for violating District of Columbia statutory law. As
best the Court can tell, however, they dispute that Defendants LMT and Mr. Arlett are District of
Columbia employers under the Law. See Defs.’ Resp. to Pl.’s Mot. Summ. J. at 3, 11–12 (noting
that LMT is registered under the jurisdiction of Antigua and Barbados and disputing whether Mr.
Arlett is an employer of Mr. Partridge). Because the only unambiguous wage agreement before
the Court is the First Agreement, which Mr. Partridge entered with LMT, and because it is not
clear whether LMT is a District of Columbia employer under the DCWPCL, the Court denies
Plaintiff’s motion for summary judgment on Count Two.
The DCWPCL applies to “every individual, partnership, firm, general contractor,
subcontractor, association, corporation, the legal representative of a deceased individual, or the
receiver, trustee, or successor of an individual, firm, partnership, general contractor,
subcontractor, association, or corporation, employing any person in the District of Columbia.”
D.C. Code § 32–1301. The Law dictates how and when employers in the District must pay their
employees and permits employees to pursue civil actions against employers for violations. See
D.C. Code § 32–1302. Mr. Partridge contends that the DCWPCL applies to Mr. Arlett, LMT,
and LLC. According to Mr. Partridge, all three defendants employed him in the District of
Columbia under the Law because the Defendants are each headquartered in the District of
Columbia and Mr. Arlett’s and LMT’s communications concerning the First Agreement were
transmitted to Plaintiff from the District of Columbia. See Pl.’s MSJ at 24. He also cites a
handful of cases, which he contends counsel in favor of an interpretation of the DCWPCL that
reaches employers outside of the District of Columbia. Pl.’s MSJ at 24 n.18 (citing Lincoln-
Odumu v. Med. Faculty Assoc., Inc., 2016 WL 6427645 (D.D.C. July 8, 2016)).
As the Court explained above, the First Agreement is clearly and definitely an
employment agreement promising certain wages to Mr. Partridge and obligating Defendant LMT
to pay those wages. LMT employed Mr. Arlett. The Second Agreement, however, does not
unambiguously outline any obligation for any defendant. And while Mr. Partridge has supplied
enough evidence to show that LMT employed him, issues of fact remain regarding whether LLC
or Mr. Arlett are alter egos of LMT. Therefore, issues remain regarding whether LLC and Mr.
Arlett are Mr. Partridge’s employers under the First Agreement. In light of the ambiguity, the
Court will only consider whether LMT is Mr. Partridge’s employer under the DCWPCL.
On this record, the Court cannot say that Defendant LMT was Mr. Partridge’s employer
under the DCWPCL because Mr. Partridge has not demonstrated that LMT employed him in the
District of Columbia. Mr. Partridge asserts that LMT is headquartered in the District of
Columbia, but LMT appears to dispute that fact. See Defs.’ Resp. to Pl.’s Mot. Summ. J. at 3
(asserting that “LMT is an Antigua & Barbados Company”). Mr. Partridge also asserts that
communications sent from LMT were transmitted from the District of Columbia. Even assuming
that such a tenuous connection to the District of Columbia might suffice to say that an entity
employed someone “in the District of Columbia,” Mr. Partridge, who performed his duties in
Tbilisi, Georgia, supplies no evidence to support his claim. Because issues of material fact
remain regarding whether any defendant employed Mr. Partridge in the District of Columbia,
this Court denies Mr. Partridge’s motion with respect to Count Two.
4. Summary Judgment on Count Five is Denied
Mr. Partridge argues that he is entitled to a declaration that he is not bound by restrictions
on his prospective employment found in the First Agreement. Specifically, he argues that the
Court should release him from any restrictions on his employment because LMT breached the
First Agreement and, therefore, his performance is excused. See Pl.’s MSJ at 28. Mr. Partridge
relies upon only one case, which interprets and applies Massachusetts law, to support his
argument. Pl.’s MSJ at 28 (citing L.G. Balfour Co. v. McGinnis, 759 F. Supp. 840, 845 (D.D.C.
1991)). As Massachusetts law does not apply to the interpretation of any agreement in this case
and Mr. Partridge has not demonstrated that he is entitled to judgment as a matter of law under
applicable law, his motion is denied.
C. Defendants’ Counsel’s Motion to Withdraw is Granted
Finally, the Court considers whether Defendants’ counsel should be permitted to
withdraw from this case. In support of his request, counsel cites his “deteriorating relationship”
with his clients, his clients’ purported failure to pay for legal services he has provided, and
counsel’s belief that withdrawal can be accomplished without prejudice to the parties. See
Counsel Mot. to Withdraw at 1–2, ECF No. 27; Defs.’ Counsel Reply to Pl.’s Resp. to Mot. to
Withdraw at 2–3, ECF No. 32. Per Mr. Arlett’s e-mail communication to the Court on
September 19, 2017, Defendants do not oppose counsel’s motion. See Arlett Letter, ECF No. 41.
On the other hand, Plaintiff asks the Court to deny the motion, arguing that he will be prejudiced
if Defendants’ counsel is permitted to withdraw “at this time.” 11 Pl.’s Opp’n to Defs.’ Counsel’s
Mot. to Withdraw at 1.
Local Rule 83.6(c) bars an attorney from withdrawing except by court order when a trial
date has been set, a party’s written consent has not been obtained, or the party is not represented
by another attorney. Local Civ. R. 83.6(c). The present motion to withdraw falls within the
ambit of Local Rule 83.6(c) because no successor counsel has appeared to represent Defendants.
A court has discretion to grant or deny an attorney’s motion to withdraw. See Sabre Int’l Sec. v.
Torres Advanced Enter. Sols., LLC, 219 F. Supp. 3d 155, 158 (D.D.C. 2016). Generally, a court
will deny a motion if “withdrawal would unduly delay trial of the case”—a factor inapplicable
here because no trial date has been set—or if withdrawal would “be unfairly prejudicial to any
party, or otherwise not be in the interest of justice.” Local Civ. R. 83.6(d). Courts consider,
among other things and as relevant, “the length of time the case and dispositive motions have
been pending, the time it would take for the unrepresented party to search for and secure new
11 Plaintiff filed his opposition on July 12, 2017.
legal representation, and that degree of financial burden that counsel would suffer if the court
required him to remain in the case.” Laster v. District of Columbia, 460 F. Supp. 2d 111, 113
(D.D.C. 2006).
Three primary factors militate in favor of permitting counsel to withdraw at this time.
First, the Court takes note that, according to counsel, Defendants are in arrears on payments due
for legal services already provided in this case. This Court recognizes that “an attorney should
not be in a position where he or she has not been paid, and yet must continue to work for the
client at his or her own expense.” Honda Power Equip. Mfg., Inc. v. Woodhouse, 219 F.R.D. 2,
6 (D.D.C. 2003); see also Barton v. District of Columbia, 209 F.R.D. 274, 277 (D.D.C. 2002)
(“It simply expects too much of counsel to expend the additional energy necessary to go to trial,
and to front the necessary expenses, without any real assurance that he will be paid for any of it,
especially where he already is owed a substantial sum.” (quoting Lieberman v. Polytop Corp., 2
Fed. App’x 37, 39–40 (1st Cir. 2001))). Second, the Court will take into account the deteriorated
relationship between counsel and Defendants. See, e.g., Sabre Int’l Security, 219 F. Supp. 3d at
158–59; Honda Power Equip. Mfg., Inc., 219 F.R.D. at 6 (reasoning that interests of justice do
not favor ordering counsel to continue representing a client who “does not respond to . . .
attempts to contact him and has not paid his bills”). The record reveals little about when and
why the attorney-client relationship broke down, and neither counsel nor Defendants express a
view about whether any conflicts might be reconcilable. But it stands to reason that, should
current counsel remain in this case, there may be difficulties ahead for both counsel and
Defendants if they are unable to communicate and to agree on how to proceed in this litigation.
Third, more than three months have passed since Defendants represented that they needed thirty
days to secure new counsel. Despite having had plenty of time, no new counsel has appeared on
their behalf. The Court cannot permit Defendants to bring this litigation to a standstill by
keeping current counsel in limbo. Accordingly, the Court grants Defendants’ counsel’s motion
to withdraw.
While allowing Defendants’ counsel to withdraw resolves one problem, it raises another.
It is well-established that “[a] corporation cannot represent itself and cannot appear pro se. It
must be represented by counsel.” Alexian Bros. Med. Ctr. v. Sebelius, 63 F. Supp. 3d 105, 108
(D.D.C. 2014) (quoting Lennon v. McClory, 3 F. Supp. 2d 1461, 1462 n.1 (D.D.C. 1998)). In
addition, this Court’s Local Rules do not permit appointment of counsel to corporations in civil
matters. See Local Civ. R. 83.11(b)(3) (limiting appointment of counsel to pro se litigants, a
status denied to corporations). Accordingly, now that counsel has withdrawn, although Mr.
Arlett may proceed pro se, LLC and LMT cannot. Defendants LLC and LMT must immediately
seek new counsel—if counsel has not already been retained—and have new counsel appear in
this matter within 30 days. If no counsel appears by such date, Plaintiff may seek appropriate
relief.
IV. CONCLUSION
The Court denies Plaintiff’s motion to strike and denies Defendants’ motion to dismiss
and to compel arbitration. The Court grants Plaintiff’s motion for summary judgment against
Defendant LMT on the breach of contract count, but otherwise denies Plaintiff’s motion. The
Court also grants Defendants’ counsel’s motion to withdraw. The parties, including Defendant
Mr. Arlett, if proceeding pro se, must appear for a status hearing on January 31, 2018 at 11:00
AM in Courtroom 14. An order consistent with this Memorandum Opinion is separately and
contemporaneously issued.
Dated: December 29, 2017 RUDOLPH CONTRERAS
United States District Judge