SABRE INTERNATIONAL SECURITY v. TORRES ADVANCED ENTERPRISE SOLUTIONS, LLC

Filing 359

MEMORANDUM OPINION to the Motions to Dismiss. Signed by Judge Gladys Kessler on 6/16/14. (CL, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SABRE INTERNATIONAL SECURITY,
Plaintiff,

v.

Civil Action No. 11-806 (GK)

TORRES ADVANCED ENTERPRISE
SOLUTIONS, LLC, et al.,
Defendants.

MEMORANDUM OPINION

Sabre International Security
business
("Torres

partner,
11

and

)

Rebekah Dyer,
Defendants

11

prospective

Torres

Torres

("Sabre

Advanced

officers,

and Kathryn Jones

11

)

has sued its former

Enterprise

Jerry

Solutions,

Torres,

(collectively,

Scott
the

LLC

Torres,

"Individual

for breach of contract, tortious interference with

),

economic

advantage,

fraud,

conversion

and

of

property.
This

matter

is

before

the

Court

on

the

Individual

Defendants' Motions to Dismiss for Lack of Personal Jurisdiction
[Dkt.

Nos.

Oppositions
292],

260

&

276] .

[Dkt. Nos.

and the

entire

Upon

273 & 284]

consideration
and Replies

record herein,

and

forth below, the Motions shall be denied.·

for

of

the

Motions,

[Dkt. Nos.
the

275 &

reasons

set

I .

BACKGROUND

Factual Overview1

A.

Sabre
principal

is

an

place

Iraqi

of

limited

business

liability

in Baghdad,

company

with

Torres

Iraq.

is

its
an

American limited liability company organized under the laws of
Virginia

with

its

principal

Virginia.

Both

companies

providing

security

services

place
are

of

business

private

around

in Arlington,

security

the

world

contractors
to

various

entities, including the United States Government.
From 2007 until 2010, Sabre and Torres partnered to perform
security
Iraq

services

pursuant

("TWISS")

to

at
two

United

States

Theater-Wide

military
Internal

installations
Security

in

Services

Multiple Award Task Order Contracts with the United

States Government. 2

This relationship was governed by a Teaming

1

The factual allegations are taken from the First Amended
Complaint ( "FAC") [Dkt. No. 242] and the facts alleged in the .
parties' briefs and accompanying exhibits.
2

Under the TWISS framework, the Government initially issued a
competitive "Request for Proposals" which resulted in the award
of Multiple Award Task Order Contracts ("MATOCs") to a number of
contractors for a fixed period of performance.
See FAC ~ 57.
The Government did not, however, "procure any specific work in
[a] TWISS [] MATOC itself."
Id. ~ 94.
Instead, a TWISS MATOC
simply required the Government to issue to each of the TWISS
MATOC awardees ("TWISS Contractors") TWISS Task Order Proposal
Requests ( "TOPRs") for each military installation in Iraq for
which it required TWISS services.
Id. ~ 95. Each TWISS
Contractor was then permitted but not required to compete for a
-2-

Agreement, which designated Torres as the "prime contractor" and
Sabre

as

the

Government.

for

that:
any

(2) both

vis

a

vis

the

United

States

According to Sabre, the Teaming Agreement required,

inter alia,
team

"subcontractor"

(1)

Sabre and Torres compete exclusively as a

TWISS

parties

proposal

approve

submitted

any

such

to

the

proposal

Government;

prior

to

its

submission; and (3) Torres, as prime contractor, offer Sabre any
work awarded that fell within a defined "Scope of Work."
Sabre contends that,
Defendants

made

a

in the spring of 2010,

secret

internal

decision

to

the Individual
terminate

the

Teaming Agreement and enter into direct competition with Sabre.
Pursuant to this decision,

the Individual Defendants allegedly

caused Torres to breach the Teaming Agreement by,
things·,

secretly

(1)

submitted

to

with

(3) bidding

on

Sabre's

prices

Government;

(2)

previously

the

accordance

reducing

agreed-upon

new

Task

Orders

refusing

without

to

among other
in

proposals

pay

pricing
Sabre's

Sabre

in

schemes;
consent

or

knowledge; and (4) usurping work that fell within Sabre's "Scope
of Work."

It

is

further alleged that each of the

Individual

Defendants fraudulently concealed these activities from Sabre.

TWISS Task Order by submitting a Task Order proposal in response
to the TOPR. Id. ~~ 96-97.
-3-

B.

On

Procedural Background

April

29,

2011,

Sabre

filed

naming Torres as the sole defendant

its

[Dkt.

original
No.

Complaint
On July 5,

1] .

2013, Sabre moved to amend its Complaint to add a claim of fraud
against

the

Individual

claims against Torres

Defendants,
[Dkt. No.

as well

197].

as

seven new tort

On October 3,

2013,

the

Court granted Sabre's Motion [Dkt. No. 240], and on October 10,
2013, Sabre filed its FAC [Dkt. No. 242] . 3
On December 2,

2013,

specially appearing Defendant

Jerry

Torres filed his Motion to Dismiss the FAC for Lack of Personal
Jurisdiction ("J. Torres Mot.")
2013,

Sabre

[Dkt.

No.

filed

273].

its

Opposition

On January 9,

Reply ("J. Torres Reply")
On January 10,
Torres,

Dyer,

[Dkt. No. 260].

2 014,

Mot . ")

2014,

J.

Torres Mot.")

Jerry Torres

filed his

[Dkt. No. 275].
specially appearing Defendants Scott

and Jones filed their Motion to Dismiss the FAC

for Lack of Personal Jurisdiction
On January 27,

("Opp'n to

On December 30,

2014,

[Dkt . No.2 84] .

( "Jt. Mot.")

Sabre filed its Opposition

[Dkt.

No.

276] .

("Opp'n to Jt.

On February 6, 2014, Scott Torres, Dyer,

and Jones filed their Reply ("Jt. Reply")

3

[Dkt. No. 292].

On January 30, 2014, the Court granted Torres' Motion to
Dismiss Counts 15-17 and 20-22 of the FAC, but denied its Motion
to Dismiss Count 18 of the FAC. [Dkt. Nos. 287 & 288].
-4-

II.

LEGAL STANDARDS
A.

Standard of Review Under Rule 12(b) (2)

"To prevail
jurisdiction,

a

on a

motion

plaintiff

to

must

make

pertinent jurisdictional facts."
Inc.,

116 F.

U.S.

Supp.

Postal

Serv.

2d 116,
Gen.

1991)).

The

personal

conclusory allegations."
(D.D.C.

2006)

aggregate

defendants

in

any individual
(1980)

to

"the

424
facts

aggregation

Supp.

Cir.

rely

on

2d 88,

91

Nor

may

the

multiple

jurisdiction over

Savchuk,

of

of

on which

concerning

personal

See Rush v.

(D.C.

"cannot

437 F.

allegations

showing

Philip Morris

omitted) .

demonstrate

(rejecting

contacts because

and

personal

(citing Edmond v.

specific

based"

citations

defendant.

facie

F.2d 415,

allege

be

factual

order

94.9

2000)

Moore v. Motz,

(internal

plaintiff

332

must

can

lack of

prima

(D.D.C.

Counsel,

jurisdiction

a

for

United States v.

121

"[p] laintiff

dismiss

444

U.S.

co-defendants'

[jurisdictional requirements]

320,
forum

must be met

as to each defendant").
When

considering

limited to
and

weigh

determining
Supp.
v.

Al

the

allegations

affidavits
the

864

and

F.

jurisdiction,

in the
other

jurisdictional

2d at 120 n.4
Saud,

personal

complaint,

relevant

facts."

(citations omitted);
Supp.

203,

206
-5-

the
but

matter
Philip

Court

is

not

"may receive
to

assist

Morris,

116

in
F.

see also Novak-Canzeri

(D.D.C.

1994)

("[T]he Court

must accept Plaintiff's claims as true in ruling on a
motion,

unless

they

affidavit [.] ") .
in

the

Crane

However,

record

v.

are

must

N.Y.

be

directly

any

by

contradicted

"factual

discrepancies

resolved

Zoological

12 (b) (2)

in

favor

of

the

Soc'y,

894

F.2d

454,

an

appearing

plaintiff."

456

(D.C.

Cir.

1990) .

B.

Standard Governing Personal Jurisdiction

"Federal courts ordinarily follow state law in determining
the bounds of their jurisdiction over persons."
Bauman,

134

S.

Ct.

746,

753

(2014).

jurisdiction over a non-resident,
part

inquiry:

[It]

must

first

"To

Daimler AG v.

establish

personal

a court must engage in a two-

examine

whether

jurisdiction is

applicable under the state's long-arm statute and then determine
whether a

finding

requirements

of

BellSouth Corp.,
omitted).
personal
the
such

due

jurisdiction satisfies
process."

GTE

199 F. 3d 1343,

"[A]

State

may

New

1347

Media

(D.C.

authorize

the

Cir.

its

constitutional
Servs.
2000)

courts

that

'traditional
134

has

the

'certain

maintenance

notions
S.

Ct.

minimum
of

contacts

the

suit

Inc.

v.

(citation

to

jurisdiction over an out-of-state defendant

defendant

Daimler,

of

exercise
[only]

if

with

[the

State]

does

not

offend

of

fair

play and substantial

justice [.] '"

at

754

(citing

Shoe

Washington, 326 U.S. 310

(1945)).
-6-

International

Co.

v.

There
and

are

two

specific.

variants

of

General

personal

jurisdiction

adjudicatory authority to entertain a
without

regard

defendant's
F.

Supp.

to

the

2d

76,

81

exercise of general
if

the

2006)

672 F.2d 927,. 928

the

Goodyear

to

the
425

Steinberg v.

(D.C.

"'affiliations

Daimler,

State. '"

Dunlop

non

Cir.

Int'l

1981))

The

jurisdiction is consistent with due process

defendant's

forum

defendant

Battaglia,

Kopff v.

(citing

a

vel

general
purpose'

"'all

relationship

continuous and systematic as to render
in

is

suit against

activity [.]"

(D.D.C.

Criminal Police Org.,

only

claim's

forum-linked

jurisdiction:

Tires

[it]

s.

134

Operations,

with

the

v.

are

so

essentially at home
Ct.

S.A.

State

at

761

Brown,

(quoting

131

S.

Ct.

2846, 2851 (2011)).
Specific

jurisdiction

controversies

based

on

concern the forum."
the

District

over

a

of

authorizes
comports
process."
Supp.

acts

Kopff,

Columbia

defendant

District

F.

of

if

the

2d 1,

4

arm

and

(2)

Supp.

2009)

that

2d at

the

Coal. v.

D.C.

exercise
of

jurisdiction

Code
of

and

Courts in

that

(1)
§

the

13-423,

jurisdiction

constitutional

NovaStar Fin.,

(citation omitted).

-7-

touch

81.

specific

statute,

"entertain

to

demonstrates

requirement

Reinv.

(D.D.C.

defendant

exercise

plaintiff

federal

Nat'l Cmty.

a

425 F.

long

jurisdiction,

power

the

of

"may

the

Columbia's

with

is

Inc.,

due
631

Due process

is

satisfied if the defendant

[or her]
[or

"purposefully direct [ed]

activities toward forum residents

she]

there"

has

should

or has

reasonably

anticipate

"'purposefully avail [ed]"

his

such that he

being

haled

into

court

himself or herself

"of

the privilege of conducting activities within the

forum State,

thus

its

invoking

the

Burger King Corp.

benefits
v.

and

Rudzewicz,

protections
471

U.S.

of

462,

473,

475

laws.'"
(1985)

(citations omitted) .

III. Jurisdictional Facts
A.

Defendant Jerry Torres

Defendant

Jerry Torres

is

Torres'

Chief

Executive Officer

and sole shareholder.

Opp'n to J. Torres Mot.

resident

of

of

the

State

Florida,

where he

He is a

at 1-2.

has

lived

for

the

past ten years.

Decl.

[Dkt. No.

He does not maintain an office in the District

260] .

of Columbia.
case,

he

Id.
has

'
not

of Jerry Torres

("J.

Torres Decl.")

'

2

Other than for depositions taken in this

4.

visited

approximately four years.

the

Id. '

District

of

Columbia

in

5.

Jerry Torres did not sign the Teaming Agreement on Torres'
behalf.
Decl . ")

4

[Supplemental]
'

3.

4

Sabre

Decl.

of Jerry Torres

alleges,

however,

( "J.

that

Torres Supp.

he

"reviewed,

The Teaming Agreement was signed on Torres' behalf by John R.
Smith, Torres' Director of Operations.
See Teaming Agreement
-8-

approved,

signed

Government

that

and

included the

Torres Mot. at 1.
and direct"
of Torres'
For

submitted"

a

TWISS

to

proposal

Teaming Agreement.

Opp' n

the

to J.

Sabre further alleges that he had "extensive

involvement in and influence over multiple aspects
performance under the Teaming Agreement.

example,

Jerry

Torres

allegedly

directed

Id.

at 9.

Torres'

former

Chief Financial Officer Kathryn Jones and former Vice President
Rebekah

Dyer

to

reduce

Sabre's

proposals and supervised the
the Government.

S.ee, e.g.,

prices

in

the

team's

TWISS

submission of these proposals to

FAC

~~

99,

271,

273,

He also

292.

is alleged to have overseen the implementation of unauthorized
reductions from Sabre's invoices and to have tightly controlled
Torres'

communications
~~

reductions.

Id.

however,

Jerry

and

with

271,
Torres

Sabre

304,

personnel

315.

There

expressly denies,

regarding

is

no

that

such

indication,
any

of

his

TWISS-related activities took place in the District of Columbia.
J. Torres Decl.
B.

~

Defendant Scott Torres

Scott Torres
period

at

issue,

coordinator,

[Dkt .
case.

6.

No.

is
he

Jerry Torres'
served

as

brother.
a

project

During
manager,

the

time

project

and program and security contracts manager for the

2 2-2] .

Smith is not named as a
-9-

defendant

in this

TWISS program.

Decl. of Scott Torres

( "S. Torres Decl. ")

~~

5

[Dkt. No. 2 76-2]
Scott Torres

lives

in the

State of Kansas,

been a resident for more than 29 years.
worked

or

lived

in

the

District

of

Id.

~

where he has
He has never

2.

Columbia,

and

has

"not

personally transacted any business or committed any acts in the
District of Columbia that would give rise to the allegations" in
the FAC.

Id.

~~

8I

The last time he visited the District

10.

of Columbia was more than three years ago, for leisure purposes.
Id.

~ 9.

Scott Torres is not an owner,
under

its

direct

corporate documents

or

operations.

control
Id.

for

the

not

policies,

he

or

Id.

built pricing
~

9.

Defendant Kathryn Jones

Kathryn Jones

time

procedures,

"recruited personnel,

models and calculated manning requirements."

( "CFO")

authority to

and program and security contracts manager

TWISS program,

C.

have

In his capacity as a project manager,

6-7.

project coordinator,

and does

corporate

its

~~

member or manager of Torres

("Jones") was Torres' Chief Financial Officer

from January 2009,

she

Virginia.

worked

out

of

through January 2011,
Torres'

Decl. of Kathryn Jones

-10-

during which

headquarters

in

("Jones Decl. ")

~

Arlington,
6

[Dkt. No.

276-3].

She has been a resident of the Commonwealth of Virginia

for more than fifteen years.

~

Id.

2.

The parties disagree as to whether Jones had "authority to
direct or control the creation of
procedures
declares

or

that

operations"

in

she did not.

Opp'n to Jt. Mot. at 15.

[Torres']

her

Id.

corporate policies,

capacity

~

as

Jones

CFO.

Sabre claims she did.

8.

More specifically, Sabre contends that

Jones "was one of only a few Torres personnel who Jerry Torres
claimed had the authority to bind
documents."

Sabre

Id.

[Torres]

further

by signing official

alleges

that

Jones

had

"extensive and direct" participation in the price reductions at
the

heart

of

this

case

reductions from Sabre.
however,

as

well

as

efforts

to

conceal

such

Sabre does not contend,

Id. at 15-18.

that Jones performed these activities in the District

of Columbia, and Jones has attested that she did "not personally
transact[]

any business or commit[]

any acts in the District of

Columbia that would give rise to the allegations"
Jones Decl.

~

in the FAC.

11.

Jones has never lived in the District of Columbia, although
she
From

visits

occasionally

February

employed

in

1,

the

for

2011,
District

leisure

through
of

purposes.

November

Columbia

as

Finance and. Administration for TSyrnmetry,
-11-

18,
Vice
Inc.

Id.

~~

2013,

9-10.

she

President
Id.

~

4.

was
of
On

November 18,

her employment for TSymmetry was terminated

2013,

and, since then, she has been unemployed.
D.

~~

Id.

4-5.

Defendant Rebekah Dyer

Rebekah Dyer was employed by Torres from 2008 through 2013,
most

recently

in

the

positions

Vice

President

and

Chief

Decl. of Rebekah Dyer ("Dyer Decl.")

Operating Officer ("COO").
~~ 6-7.

of

She has resided in the Commonwealth of Virginia for the

last fourteen years and, while employed by Torres, worked out of
its headquarter offices in Virginia.
The

parties

authority

to

again

direct

disagree

or

Sabre

claims

particular,
Torres

she

Sabre

did.
contends

Government

~~ 2,

to

6.

whether

Torres'

Dyer

corporate

Opp'n
that

documents;

to

Jt.

Dyer

Mot.

at

collaborated

could bind Torres

and had

had

the

policies,

Dyer claims she did not,

in making key decisions;

official

as

control

procedures or operations.

Id.

id.

~

9;

9-11.

In

with

Jerry

by signing

"extensive and direct"

involvement in the TWISS price reductions at issue as well as
efforts to conceal them from Sabre.

Id. at 9-13.

There is no

indication, however, that Dyer performed any of these activities
in the District of Columbia.

~

See Dyer Decl.

12.

Dyer is currently self -employed in Virginia and obtaining
her Ph.D. from Georgetown University.

Id.

~

5.

She visits the

District of Columbia approximately one time per week for school-12-

related reasons and also occasionally for leisure purposes.
~~ 5,

IV.

Id.

11.

ANALYSIS

Sabre's primary argument

in support

of

jurisdiction over

the Individual Defendants is that the forum selection clause in
the Teaming Agreement, and Torres' other forum contacts, may be
"attributed"

to

them

for

purposes

of

assessing

their minimum

contacts because they held high level positions within Torres'
corporate

hierarchy

and

were

closely

giving rise to this lawsuit.
subject

to

general

involved

in

the

events

Sabre further claims that Jones is

jurisdiction

based

on

her

employment

for

TSymmetry, Inc. in the District of Columbia.
A.

The Court
Jones

Does

Not

Have

General

Jurisdiction

over

Under District of Columbia law, courts can exercise general
personal

jurisdiction

over

a

"person

under the laws of, or maintaining his

domiciled
[or her]

in,

or its principal
D.C. Code

place of. business in, the District of Columbia [.]"
Sabre

13-422.

employment
satisfies
13-422

contends

with
the

that

Jones'

TSymmetry. · Inc.

in

approximately
the

District

"principal place of business"

organized

§

three-year

of

clause of

Columbia
Section

and thus gives rise to general jurisdiction over Jones.

Opp'n to Jt. Mot.

at 5-7.

Jones counters that mere employment
-13-

in

a

subordinate

capacity

for

another

does

not

satisfy

the

"principal place of business" clause of Section 13-422 and thus
cannot support general jurisdiction.
The

Court

need

not

resolve

Jt. Reply at 2-6.

whether

employment

satisfies

Section 13-422 because there is a more basic defect to Sabre's
theory.
fact

Sabre's case for general jurisdiction is based on the

that

Jones was

employed for TSymmetry,

Inc.

at

the

Opp'n

"the Complaint and First Amended Complaint were filed."
to Jt.

Mot.

at

5

(emphasis

added) .

It

is

time

"uniformly held,"

however, that "jurisdiction is to be determined by examining the
conduct

of

the

complaint."

defendants

as

of

the

time

of

service

Corp.
2013)

(citations
v.

the

Brandir Int'l, Inc. v. Cascade Pac. Lumber Co., No.

84-1411, 1988 WL 78382, at *1 (S.D.N.Y. July 18, 1988)
added)

of

omitted);

Magnablend Inc.,

("[I] t

is

see,

945

well-settled

F.

e.g.,

Wego

Supp.

2d 377,

that

Chern.

the

386
Court

(emphasis
& Mineral

(E.D.N.Y.
looks

to

whether it could assert personal jurisdiction over the defendant
at the time jurisdiction is sought to be asserted.")
omitted);

Clark v.

(D.N.M. 2004)
Jones'

Meijer,

Inc.,

376

F.

Supp.

( citation

2d 1077,

1085

(same).
employment

for

TSymmetry,

Inc.

November 18, 2013, due to a loss of business.
Sabre did not

was

terminated

Jones Decl.

send her waiver of service form until
-14-

~

on
5.

two days

later

on

November

20,

2013.

Summons for Kathryn Jones

See

Waiver

[Dkt. No.

255].

of

the

Thus,

Service

of

Jones was not

employed in the District of Columbia at the time Sabre sought to
assert the Court's jurisdiction over her by serving her with the
FAC.

As Jones'

District-based employment is the only basis on

which Sabre argues that general jurisdiction is proper, and that
employment had ceased when Sabre sought to invoke the Court' s
jurisdiction,

the Court does not have general jurisdiction over

Jones.
B.

As

The Court Does Not Have Jurisdiction over the
Individual Defendants Under a uMinimum Contacts"
Analysis

to

the

remaining

Individual

Defendants,

and

as

an

alternative basis for jurisdiction over Jones, Sabre argues that
jurisdiction

is

District

Columbia,

Individual

of

proper

Defendants

contacts analysis.

based
which
for

on

Torres'

Sabre

purposes

Opp'n to J.

contacts

seeks
of

to

the

Torres Mot.

impute
Court's

at 7-20;

with

the

to

the

minimum
Opp'n to

Jt. Mot. at 8-25.
The Supreme Court has held that an individual defendant's
"contacts with [a forum] are not to be judged according to their
employer's activities there."
790
770,

Calder v.

Jones,

(1984); see also Keeton v. Hustler Magazine,
781 n.13

(1984)

465 U.S.

783,

Inc., 465 U.S.

("Jurisdiction over an employee does not
-15-

automatically
which

follow

employs

him

from
[or

jurisdiction

her.]")

over

(citations

conceding this general principle,

the

corporation
While

omitted) .

Sabre points to a handful of

decisions in this District holding that the rule does not apply
where an individual is "more than an employee" of a company and
that

it

is

proper,

under

certain

jurisdiction

over

high-level

contacts ·of

their

employers.

circumstances,

employees
See,

based

e.g.,

to

on

Nat'l

exercise

the

Cmty.

forum
Reinv.

Coal., 631 F. Supp. 2d at 8 (holding that company contacts could
be imputed to their founder and president because s/he exerted
"significant

influence"

operations").

over

their

"policies,

procedures,

and

Sabre invokes this doctrine as a basis to impute

Torres' jurisdictional contacts to the Individual Defendants.
As

previously

liability
Virginia.

company

mentioned,
with

Sabre has

Torres, none of which,
over

the

Individual

its

Torres

is

principal

a

place

identified only three
as discussed below,
Defendants

under

Virginia
of

limited

business

in

forum contacts of

support jurisdiction
a

minimum.

contacts

analysis. 5

5

Because the Court concludes that Torres'
jurisdictional
contacts are insufficient to satisfy the minimum contacts
requirement in any event, it need not fully consider the
applicability of the "more than an employee doctrine," which has
its genesis in a single unreported Superior Court decision,
Covington and Burling v. Int' l Marketing & Research, Inc. , No.
-16-

1.

First,

Torres' Work for the Far.m Services Agency

Sabre contends that in 2009,

worked in the District of Columbia.
7.

seven Torres employees

Opp'n to J. Torres Mot. at

Jerry Torres has clarified in a sworn declaration that these

seven

employees

"worked

in

the

United

States

Agriculture South Building .

under

with

[ 'FSA']"

the

Farm

performance

Services

could

Agency

occur

"in

up

to

Department

[an unrelated]

150

which
FSA

of

contract

provided
county

that

offices

nationwide; FSA Headquarters in Washington D.C. and the location
where

[contracting officer's technical representative]
~

See J. Torres Supp. Decl.
The

District

of

resides."

2 & Ex. 2 at 2.

Columbia-based work of

the

seven Torres

employees was unrelated to the 'TWISS program and is, therefore,
irrelevant

to

specific

jurisdiction.

Furthermore,

a

limited,

contract-based arrangement for Torres employees to perform work
at United States Government facilities nationwide,

including in

the District of Columbia,

"at home"

the District
general

of

does not render Torres

Columbia and is

jurisdiction.

Daimler,

also
134

S.

insufficient

to

Ct.

see,

at 761;

in

support
e.g.,

Saudi v. Marine Atlantic, Ltd., 306 F. App'x 653, 655 (D.C. Cir.

01-4360, 2003 WL 21384825, at *6 (D.C. Super. Ct. Apr. 17,
2003), and has not been endorsed by either the Court of Appeals

for the District of Columbia or our Court of Appeals
D.C. Circuit.
-17-

for the

2009)

(company that

had no office,

employees "permanently stationed"
to general

bank account,

property,

or

in forum could not be subject

jurisdiction despite small amount of

time employees

spent there) .
In

sum,

"attributed"

even
to

if

the

Torres'

contract

Individual

minimum contacts analysis,

work

Defendants

it would not

for

for

the

FSA

purposes

was

of

the

support either general

or specific jurisdiction over them.
2.

Torres' Retention of a District of Columbia Fir.m

Second,
with a

Sabre

relies

on

the

fact

that

Torres

contracted

law firm located in the District of Columbia to provide

representation related to the TWISS program and that
"independent of and before this suit was filed."
Mot.

at

8;

see also Opp' n

not,

however,

made

to J.

any argument

Torres Mot.

at

it did so

Opp'n to Jt.
7.

Sabre has

related to the nature of ·this

contractual relationship or why it should give rise to personal
jurisdiction over Torres under the District of Columbia's long
arm statute and the Due Process Clause.
recently held,
the

a

District

jurisdiction,

nonresident's

of

(D.C.

"mere retention of attorneys
is

insufficient"

even where such retention relates

matter of the case.
1194

Columbia

As our Court of Appeals

Cir.

Thompson Hine, LLP v. Taieb,

2013)

(citations omitted)
-18-

to

in

establish

to the subject
734 F.3d 1187,

Consequently,

even

if

Torres'

perform

retention

work

Individual

of

related

Defendants

analysis,

a

to

District

this

for

case

purposes

of
was
of

Columbia

law

"attributed"
the

minimum

firm
to

to
the

contacts

it too is insufficient to support general or specific

jurisdiction over them.
3.

The Forum Selection Clause

The third and final jurisdictional "contact" of Torres that
Sabre seeks to impute to the Individual Defendants for purposes
of the Court's minimum contacts analysis is the forum selection
clause in the Teaming Agreement, which provides that:
Should any dispute arise under,
relating to or
concerning this Agreement, each party shall submit to
the jurisdiction and venue of any court of competent
jurisdiction located in the District of Columbia,
United States of America, and shall not obj ec.t to the
exercise of jurisdiction and venue by any such court.
Teaming Agreement

§

3.2

[Dkt. No.

22-2]

See Opp' n to J.

Torres Mot. at 7; Opp'n to Jt. Mot. at 8.
Sabre

has

not

cited

any

provision

of

the

District

of

Columbia's long arm statute that authorizes jurisdiction over an
individual employee or officer based on a forum selection clause
executed

by

treating a
for

its

employer.

Nor

has

it

forum selection clause as a

purposes

of

a

minimum

contacts

-19-

cited

a

single

case

juri·sdictional contact

analysis,

much

less

one

attributing such a contact to a defendant under the "more than
an employee" exception.
The

reason

for

the

apparent

absence

of

any

case

law to

support Sabre's theory is that a forum-selection clause is not
typically treated as a forum "contact" but ·rather is "a distinct
contract

between

particular forum [.]"
(D.C.

Cir.

2000)

the

parties

Marra v.

to

settle

Papandreou,

216 F. 3d 1119,

As such,

(emphasis added).

disputes

in

a

1123

a forum selection

clause is generally considered to be a consent to the exercise
of personal jurisdiction in a particular forum and is governed
by

contract

framework.
485

principles

rather

than

the

minimum

contacts

See Holland Am. Line Inc. v. Wartsila N. Am.,

F.3d

450,

458

(9th

Cir.

2007)

("Under

general

Inc.,

contract

principles, a forum selection clause may give rise to waiver of
objections

to

12,

analysis

2003)
of

omitted) .

added);

99-144, 2003 WL 21960406, at *3

Hadley v. Shaffer, No.
Aug.

(emphasis

(D. Del.

personal

(valid

minimum

jurisdiction[.]")

forum

selection

contacts

clause

renders

unnecessary")

"an

(citations

Consequently, the Court shall not consider the forum

selection clause in its assessment of minimum contacts but shall
consider

it

Defendants

separately
have

in

consented

determining
to

jurisdiction.
-20-

the

whether
Court's

the

Individual

exercise

of

In

sum,

even

if

the

Court

was

to

attribute

Torres'

jurisdictional contacts to the Individual Defendants under the
so-called "more than an employee" doctrine, those contacts would
still be

insufficient

jurisdiction.

to

subject

Therefore,

them to general

Sabre has not

or specific

demonstrated that

the

Individual Defendants are subject to either general or specific
jurisdiction under the "minimum contacts" framework.
C.

The Individual Defendants Are Deemed to Have Consented
to Jurisdiction Under the Forum Selection Clause

Although
selection

there

clause

contacts

analysis,

is

to

no

a

authority

nonparty

there

is

for

for

ample

attributing

purposes

authority

of

for

a

a

forum

minimum

binding

the

Individual Defendants to the forum selection clause as a matter
of contract law.
As

threshold

a

presumptively
Individual

matter,

forum

selection

clauses

are

F.3d

1124.

The

enforceable.

Marra,

216

Defendants do not

argue

that

the

unenforceable or inapplicable to this case.
solely on the fact

at

clause

is

either

Instead, they rely

that they were not parties to the Teaming

Agreement and contend that "[t] here is no precedent for binding
a non-signatory and non-party to a

forum selection clause for

purposes

jurisdiction."

of

establishing

personal

Reply at 8; see also Jt. Reply at 7.
-21-

J.

Torres

Contrary to this assertion, the Second, Seventh, Ninth, and
Eleventh

Circuits

have

all

agreed

that,

"where

the

alleged

conduct of the nonparties is closely related to the contractual
relationship,

'a range of transaction participants, parties and

non-parties,

should

benefit

Holland Am.

selection clauses. '"
(citations

omitted);

from

and

be

Line

subject

Inc.,

accord Lipcon v.

485

that

appropriate
against
evaded."
441

[non-parties] ,
Adams v.

(7th Cir.

722

not

for

enforce

forum

such

clauses

often

Raintree Vacation Exch.,
denied, 133 S.

at

456

Lloyd's

These courts have

judicial

to

2012), cert.

willingness

selection
could
LLC,

Ct.

in

clauses

easily

be

702 F.3d 436,

2862

(2013);

see

Inc. v. Stato della Citta del Vaticano, 714 F.3d

(2d Cir.

interpreting forum
contribution

it

circumstances

also Magi XXI,
714,

"[w]ere

forum

F. 3d at

Underwriters

London, 148 F.3d 1285, 1299 (11th Cir. 1998).
reasoned

to

that

2 013)

(noting that

selection
clauses

"[a]

clauses"
have

could

been

certainty in commercial transactions")

literal approach to

praised

the

"undermine
for

making

to

(citations and quotation

marks omitted) .
In their Joint Reply, Scott Torres, Dyer, and Jones attempt
to distinguish this case law by arguing that it only applies to
third-party beneficiaries of a contract.

Jt. Reply at 9.

too is incorrect.

Corp.

See,

e.g.,

Hugel v.

-22-

of Lloyd's,

This
999

F.2d 206,

209 n.7

(7th Cir.

1993)

third-party beneficiaries of a

("While it may be true that

contract would,

by definition,

satisfy the 'closely related' and 'foreseeability' requirements,
a

third

party

(citation omitted);
Supp.

2d 244,

beneficiary

status

is

Leviton Manufacturing Co.

258

(E.D.N.Y.

2013)

("The

v.

of

the

agreement,

but

required.")

Reeve,

942 F.

'closely related'

is necessarily satisfied where the defendant
beneficiary

not

that

is a

test

third-party

situation

is

not

required.").
Shaheen v. Smith, No. 12-1168, 2013 WL 5995619 (D.D.C. Nov.
13,

2013),

a

case

from

this

District

which

the

Individual

Defendants cite for the broad proposition that a forum selection
clause can never bind a non-party,

is also inapposite.

Shaheen

did not consider the "closely related" test nor even whether a
non-party

can

be

selection

clause.

significance of a

bound

by

an

Instead,

it

otherwise
addressed

applicable
the

forum

jurisdictional

statement on the website of the plaintiff's

law firm, Burke & Reedy, designating the District of Columbia as
the proper venue "for any and all actions between the user of
the website and Burke & Reedy."

Id. at *3.

The court held that

this clause.was "inapplicable in this matter" because "Burke &
Reedy

is

not

a

party

in

this

action"

and

"there

is

indication" that the defendants had ever used its website.
-23-

no
Id.

(emphasis added) .
the

Here,

by contrast,

forum selection clause

is

binding at

Defendants

are

applicable

"in this

matter"

and

The only question is whether the

least on Torres.

Individual

there is no dispute that

Shaheen does not

also bound by it.

speak to that question.
The

Individual

case within
test

to

this

confer

Defendants

district
personal

has

also

are

applied

jurisdiction

incorrect

th [e]
over

that

"[n] o

'closely related'
a

non-party,

non-

signatory to a forum selection clause."

J. Torres Reply at 10.

In

in

fact,

at

least

expressly

held

selection

clause

two

that
if

dispute such that

(Urbina,

(D.C.

Cir.

Supp.

2d 44,

related"

he

49

or

she

Papandreou,

(citations

J.)

2000);

non-party

issued
may
"is

be

this

'closely

59 F.

omitted),

see also Kotan v.
(D.D.C.

2005)

Supp.

a

2d 65,
216

77

to

the
will

(D.D.C.

F.3d

Inc.,

have
forum

[he or she]

aff'd,

J.)

to

related

Pizza Outlet,

(Lamberth,

District

subject

it becomes foreseeable that

Marra v.

be bound . ' "
1999)

a

decisions

1119

400 F.

(applying "closely

test to bind non-parties to forum selection clause in

franchise agreement) .
Consequently,

the Individual Defendants are subject to the

forum selection clause in the Teaming Agreement if they were so
"closely related to the contractual relationship"

-24-

between Sabre

and Torres that it was foreseeable they would be bound by such
clause.

Holland Am. Line Inc., 485 F.3d at 456.
1.

As

Defendant Jerry Torres

discussed,

shareholder.

Jerry

Torres

is

CEO

Torres'

and

Sabre alleges that he "reviewed, approved,

sole
signed

and submitted the TWISS II Contract proposal to the Government
Opp'n to

in August 2009, which included the" Teaming Agreement.
J.

Sabre also points to evidence that Jerry

Torres Mot. at 5.

Torres was extensively involved in determining the terms of the
team's

proposals

to

the

Government,

price reductions at issue.
~

& Ex. 15; FAC
facie

case,

deposition
Sabre's

is

evidence,

accounts

the

purported

See Opp'n to J. Torres Mot. at 10-11

In addition, Sabre has made a strong prima

292.

which

including

supported
that

under

the

by

Jerry

specific

Torres

documentary

personally

Teaming Agreement,

and

tracked

controlled high

level communications with Sabre personnel regarding payments to
Sabre under the Agreement, and expressly sought to terminate the
contractual relationship between Sabre and Torres.
271-73,
Mot.,

293,

Ex.

304,

34

315,

316,

414;

See FAC

see also Opp'n to J.

(email of Jerry Torres stating that

~~

Torres

"[r] ight now

the priority is giving the complete boot to Sabre").
Based
Torres

was

on

this

evidence,

the

so

"closely related"
-25-

to

Court
the

concludes

that

Jerry

Teaming Agreement

and

this dispute that it was foreseeable he would be bound by the
forum

selection

clause.

As

a

result,

he

is

deemed

to

have

consented to the Court's jurisdiction.
2.

Defendant Dyer

As discussed,

Dyer was Torres'

Vice President and is also

alleged to have had extensive authority over the company as well
as

an intimate

case.

involvement

in the events giving rise

to this

There is evidence that she: strategized with Jerry Torres

and Jones regarding what they perceived as mark-ups in Sabre's
pricing;

directly

oversaw

the

preparation

of

the

Task

Order

proposals in which Sabre's prices were reduced; and attempted to
conceal these reductions from Sabre.
315, 373, 375.

See FAC

~~

273,

277,

301,

On November 29, 2010, she sent an internal email

to Jerry Torres stating that "we need to get our ducks in a row
and proceed smartly

[regarding our dispute with Sabre] .

have no idea of the

[price]

[r] eductions we have made and think

we are just arbitrarily shorting them."
31.

They

Opp'n to Jt. Mot., Ex.

Furthermore, when Sabre began to complain that its invoices

had not been fully paid, Dyer and Jones met with Sabre personnel
to discuss the issue and gave

(allegedly false)

full payment would be forthcoming.

assurances that

Id., Ex. 27.

Consequently, the Court concludes that Dyer was so "closely
related"

to

the

Teaming Agreement
-26-

and

this

dispute

that

she

should

reasonably

selection

have

clause.

As

anticipated
a

result,

being

she

bound

too

is

by

the

deemed

forum

to

have

consented to the Court's jurisdiction.
3.

Defendant Jones

As previously discussed,

Jones was Torres'

CFO during the

relevant time period and also is alleged to have had substantial
involvement
example,

in

Sabre

preparation

of

the

events

alleges

giving

that

"internal

she

rise

to

prepared

spreadsheets

415, 416.

the

or

case.

For

supervised

the

showing

price reductions to Sabre's final prices"
proposals.

this

planned

in the team's TWISS

Opp'n to Jt. Mot. at 15; see also FAC

~~

274,

276,

She also is alleged to have been directly involved in

efforts

of

Jerry

Torres

and

See,

e.g. ,

reductions from Sabre.

Dyer

to

conceal

Opp' n to Jt.

the

Mot. ,

price
Ex.

38

(email from Jones to Jerry Torres stating that she told another
employee "to never disclose costing details to Sabre under any
circumstances");

FAC

~

277.

Finally,

when

Sabre

began

to

complain that its invoices had not been paid, Jones accompanied
Dyer to the meeting with Sabre personnel and thereafter sent a
follow-up

email

stating

that

Torres

was

"fully

committed

to

paying all of Sabre's invoices promptly [,]" which Sabre alleges
was knowingly false.
FAC

~

Opp'n to Jt. Mot. at 17 & Ex. 28; see also

275.
-27-

Based

on

these

particularized

evidence supporting them,

allegations

and

the

record

the Court concludes that Jones was so

"closely related" to the Teaming Agreement and this dispute that
she

too

forum

should reasonably have anticipated being bound by the

selection

clause.

As

a

result,

she

is

deemed

to

have

consented to the Court's jurisdiction as well.
4.
Scott

Defendant Scott Torres

Torres

was

a

project

manager,

project

coordinator,

and program and security contracts manager for the TWISS program
and,

according to Sabre,

"the primary [Torres]

corporate contact
Id.

for day-to-day operations on the TWISS II Program."
As

with

the

others,

significant role

there

is

evidence

in the contractual

that

he

at 19.

played

a

relationship with Sabre as

well as the events giving rise to this case.
For

example,

Scott Torres did
with
See

"de

facto"

Opp' n

to

Herman at 112)

two
"all

Jt.

Mot.,

[Dkt. No.

individuals

Torres

the pricing"

day-to-day

John Gillespie at 31)
primary

former

Ex.

employees

for and was

authority
49

TWISS

(deposition

tr.

of

id.

Ex.

for

50

that

individual

the

[Dkt. No. 284-50].

work on specific Task Orders,

the

over

284-49];

responsible

testified

program.

Christopher

(deposition tr.

of

He was also one of the

directing

Sabre

to

begin

including the Task Orders in which

-28-

Sabre's prices are alleged to have been secretly reduced.

See

id., Exs. 24, 53, 54.
There

is

also

evidence

that

calculating the price reductions
reductions

from

Sabre.

For

Scott
at

Torres

was

involved in

issue and concealing those

example,

Order at Contingency Operating Site

with

respect

("COS")

Irbil,

to

a

Task

Jerry Torres

emailed Scott Torres and asked him to review Sabre's pricing "so
that we know what goes into mobilization."

Scott

Id., Ex. 52.

Torres responded and noted that he had "adjusted a couple of the
rates

that

suggests

looked

that,

out

after

of

line."

Torres

submitted

Order at First Operating Base
for

Sabre' s

scope of

("FOB")

the work,

The

Id.
a

evidence

proposal

for

further
a

Task

Hammer with reduced prices

Scott Torres worked with Sabre

executive Sumeet Mehta to develop responses to a list of followup questions from the Government,

all while carefully concealing

the fact that Sabre's prices had been reduced.
(emails of March 24,
these

[questions]

2010,

and get

asking Scott Torres
Sumeet

on the phone"

"that we dropped the prices significantly");
of March 25,

2010,

See id.,

id.,

the

20

"to go through
but

not

Ex.

reveal

21

(email

from Scott Torres to Dyer attaching Mehta's

responses to Government's questions and noting that
change

Ex.

pricing portion of

the

original MOB numbers").
-29-

document

so

it

"I need to
matches

our

Finally,
United

the

there is evidence that,
States

withholding

after Sabre complained to

Government
due

payments

that
the

under

improperly

was

Torres
Teaming

Agreement,

Scott

Torres and his staff were tasked with developing a "reasonable
market value"
the

United

Sabre

the

of Sabre's services for the purpose of assuring

States
proper

Government
amount

that

for

it

its

had

"consistently paid
Id.,

services."

Ex.

17

(deposition tr. of Jerry Torres at 112)

[Dkt. No. 284-17]; id.,

Ex.

Capt.

18

(letter

from

Jerry

Torres

to

Administrative Contracting Officer,

John

dated Jan.

11,

P.

Turner,

2011)

[Dkt.

that

Scott

No. 284-18]
Based

on

this

evidence,

the

Torres was

so

"closely related"

Court

to

concludes

the Teaming Agreement

and

this dispute that he reasonably should have anticipated being
bound by the forum selection clause.

Consequently,

he is also

deemed to have consented to the Court's jurisdiction.
In

sum,

the

Court

jurisdiction over all

of

concludes
the

that

Individual

it

has

Defendants

personal
under

the

forum selection. clause in the Teaming Agreement. 6

6

Having so concluded, Sabre's
discovery is denied as moot.

request

-30-

to take

jurisdictional

IV. CONCLUSION
For the foregoing reasons,
of

Personal

Jurisdiction

the Motions to Dismiss for Lack

shall

be

accompany this Memorandum Opinion.

June 16, 2014

Copies to: attorneys on record via ECF

-31-

denied.

An

Order

shall