AMERICAN CIVIL CONSTRUCTION, LLC v. FORT MYER CONSTRUCTION CORPORATION

Filing 32

MEMORANDUM OPINION denying 20 Defendant's Motion for Summary Judgment, granting 21 Defendant's Motion to Dismiss with leave for Plaintiff to file a supplemental complaint, denying 29 Plaintiff's Cross-Motion for Partial Summary Judgment, and denying 27 Defendant's Motion to Strike as moot. See document for details. Signed by Judge Rudolph Contreras on 3/29/2017. (lcrc3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN CIVIL CONSTRUCTION, LLC, :
:
Plaintiff,
:
:
v.
:
:
FORT MYER CONSTRUCTION
:
CORPORATION,
:
:
Defendant.
:

Civil Action No.:

15-0515 (RC)

Re Document Nos.:

20, 21, 27, 29

MEMORANDUM OPINION
DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT;
GRANTING DEFENDANT’S MOTION TO DISMISS; DENYING PLAINTIFF’S CROSS-MOTION FOR
PARTIAL SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION TO STRIKE AS MOOT
I. INTRODUCTION
This action arises from a dispute between two construction companies. Plaintiff
American Civil Construction, LLC (“ACC”) alleges that Defendant Fort Myer Construction
Corporation (“Fort Myer”) breached a subcontract for work related to the District of Columbia’s
new streetcar system. After a period of discovery, Fort Myer filed a motion to dismiss for lack
of subject matter jurisdiction and a motion for summary judgment. In response, ACC crossmoved for partial summary judgment on two discrete issues. Because the Court finds that ACC
brought suit despite failing to acquire the proper registration with the District, the District’s door
closing statute deprives the Court of subject matter jurisdiction. But the Court will permit ACC
an opportunity to file a supplemental complaint within thirty days to attempt to cure the
jurisdictional problem. Finally, the Court finds that genuine issues of material fact preclude
granting summary judgment to either party.

II. FACTUAL AND PROCEDURAL BACKGROUND
The Court will begin with a description of the allegations found in ACC’s Complaint
before turning to other relevant facts and the procedural history of this action.
A. Allegations of the Complaint1
According to the Complaint, American Civil Construction, LLC, is a limited liability
company organized under the laws of Maryland, with its principal place of business in Maryland.
Compl. ¶ 1, ECF No. 1. ACC is in the business of construction contracting. Compl. ¶ 1. Fort
Myer Construction Corporation is a corporation organized under the laws of Virginia, with its
principal place of business in the District of Columbia. Compl. ¶ 2. Fort Myer is also in the
business of construction contracting, and regularly does business in the District. Compl. ¶ 2.
ACC’s allegations are related to the construction of a streetcar project in the District.
Compl. ¶ 4. Specifically, Fort Myer entered into a contract with the D.C. Department of
Transportation (“DDOT”) referred to as the “Construction of Anacostia Initial Line Segment and
Operation and Maintenance Facility, and Reconstruction of Firth Sterling Avenue – Milestone
B” (“Anacostia Project”). Compl. ¶ 5. Fort Myer, the prime contractor, entered into a
subcontract with ACC for the construction of foundations and the installation of ground rods and
conduits. Compl. ¶ 6. Originally, the value of the work described in the subcontract was
$649,161, but change orders increased that figure to $1,052,878.17. Compl. ¶ 6.
In a letter dated October 26, 2012, Fort Myer stated that it was terminating the
subcontract with ACC “for convenience,” even though the subcontract work was not yet
completed. Compl. ¶ 8. ACC alleges that the terms of the subcontract only allow for

1

When considering a motion to dismiss for lack of subject matter jurisdiction, a court
“accepts the allegations of the complaint as true.” Banneker Ventures, LLC v. Graham, 798 F.3d
1119, 1129 (D.C. Cir. 2015).
2

termination “for convenience,” if DDOT also terminated its prime contract with Fort Myer “for
convenience” first. Compl. ¶ 9. ACC alleges, however, that the prime contract between DDOT
and Fort Myer was not terminated. Compl. ¶ 10.
ACC alleges that it wrote to Fort Myer and stated that the termination of the subcontract
was wrongful and that ACC was prepared to complete the work described in the subcontract.
Compl. ¶ 11. Fort Myer refused that offer, which ACC alleges was a breach of the subcontract.
Compl. ¶ 12. ACC alleges that it was entitled to overhead and profit on the work it performed
under the subcontract, but that Fort Myer has not made those payments. Compl. ¶¶ 9, 13.
ACC alleges that, before the termination of the subcontract, it performed work that was
outside of the scope of the subcontract. Compl. ¶ 14. All of that work was “performed at the
direction and with the knowledge and agreement of” Fort Myer. Compl. ¶ 14. Fort Myer had a
duty to process change orders related to that work, but Fort Myer refused to process and pay the
change order requests that ACC submitted. Compl. ¶ 15. ACC alleges that this refusal
constituted an additional breach of the subcontract. Compl. ¶ 15.
Finally, ACC alleges that retainage was withheld from Fort Myer’s payments to ACC.
Compl. ¶ 16. ACC alleges that the full amount of the withheld retainage has not been paid to
ACC. Compl. ¶ 17. In light of all of these allegations, ACC concludes that it has performed all
work available to it under the subcontract, and that Fort Myer’s breach has caused damages.
Compl. ¶¶ 18–19. ACC thus requests $300,000 in damages, as well as interest and costs.
Compl. at 4.
B. Facts in the Record
The parties have presented a range of evidence in connection to the motions for summary
judgment, including relevant documents and various declarations. ACC provides a letter dated

3

May 28, 2009, from Fort Myer to ACC’s then-Principal, Edward F. Hollander, that encloses a
copy of the subcontract at issue in this case. See Pl.’s Resp. Def.’s Mot. Summ. J. & Cross-Mot.
Partial Summ. J. (“Pl.’s Opp’n & Cross-Mot. Summ. J.”), Ex. 4 at 1, ECF No. 24-4.2 The
portions of the subcontract included in the record make clear that the subcontract related to a
prime contract between Fort Myer and DDOT for work on the Anacostia Project. See Pl.’s
Opp’n & Cross-Mot. Summ. J., Ex. 4 at 2. An addendum to the standard form agreement states
that “[t]he Contractor may at any time terminate Subcontractor upon reasonable notice, for
Contractor’s convenience.” Pl.’s Opp’n & Cross-Mot. Summ. J., Ex. 4 at 4–5, ¶ 7.3. But an
attachment listing modifications to the terms of the addendum states that paragraph 7.3 of the
addendum is struck, deleted, and replaced with: “The Contractor can only terminate the
Subcontractor for convenience if the Owner similarly terminates the Contractor.” Pl.’s Opp’n &
Cross-Mot. Summ. J., Ex. 4 at 7, ¶ 7.3.
On October 12, 2010, DDOT sent a letter to Fort Myer that set forth a significant change
to the scope of the prime contract. Def.’s Opp’n Cross-Mot. Partial Summ. J., Ex. A at 1, ECF
No. 28. The letter stated that “[t]he remaining scope of work on this Contract is limited to the
work identified in this Article 3 Letter, and the Contractor shall not perform any other work,
unless it receives written authorization.” Def.’s Opp’n Cross-Mot. Partial Summ. J., Ex. A at 1.
In turn, Fort Myer sent a letter to its subcontractor, ACC, dated October 26, 2010. Pl.’s
Opp’n & Cross-Mot. Summ. J., Ex. 2 at 1, ECF No. 24-2. Fort Myer stated that DDOT had

2

ACC has not used any specific numbers or letters to identify the exhibits attached to its
opposition to Fort Myer’s motion for summary judgment and cross-motion for partial summary
judgment. See generally Pl.’s Resp. Def.’s Mot. Summ. J. & Cross-Mot. Partial Summ. J. (“Pl.’s
Opp’n & Cross-Mot. Summ. J.”), ECF No. 24. For clarity, the Court’s citations to these exhibits
will refer to the document numbers and page numbers created by the Court’s Electronic Case
Filing system.
4

“suspended” the prime contract through its October 12 letter and “deleted portions of its scope.”
Pl.’s Opp’n & Cross-Mot. Summ. J., Ex. 2 at 1. Fort Myer explained that DDOT had since
directed Fort Myer to resume work on the Anacostia Project, but that, in light of the changed
scope of the contract, Fort Myer would terminate its subcontract with ACC “for convenience.”
Pl.’s Opp’n & Cross-Mot. Summ. J., Ex. 2 at 1. ACC responded by letter dated November 7,
2012. See Def.’s Statement of Undisputed Facts, Ex. A at 1, ECF No. 20. ACC’s letter was
drafted by Michael J. Jack, outside counsel who represents ACC in this litigation. Def.’s
Statement of Undisputed Facts, Ex. A at 1. The letter noted that when Mr. Hollander contacted
Kathi Muttart, a Fort Myer employee, she advised that all communications should be directed to
Christopher M. Kerns, the Vice President and General Counsel for Fort Myer. Def.’s Statement
of Undisputed Facts, Ex. A at 1. The letter also argued that the subcontract did “not give [Fort
Myer] the right to terminate for convenience, except where [Fort Myer] has been terminated by
the owner.” Def.’s Statement of Undisputed Facts, Ex. A at 1. The parties exchanged additional
letters through their counsel. See, e.g., Def.’s Opp’n Cross-Mot. Partial Summ. J., Ex. C at 1
(letter from Fort Myer’s Associate General Counsel to Mr. Jack dated November 9, 2012); Pl.’s
Opp’n & Cross-Mot. Summ. J., Ex. 2 at 4–5 (letter from Mr. Jack to Fort Myer’s Associate
General Counsel dated November 30, 2012).
On November 20, 2014, ACC and Fort Myer executed a two-page document titled
“Subcontractor’s Affidavit and Final Waiver of Lien.” Decl. of Thomas Mero, Ex. A (“Final
Waiver of Lien”) at 1, ECF No. 20. The document referred to the contract between Fort Myer
and ACC for work on the Otis Street Project.3 Final Waiver of Lien at 1. The release did not

3

Specifically, the contract refers to “the project known as the Pavement Restoration
(City-Wide) Streetscape of 12th Street, N.E. from Rhode Island Avenue to Michigan Avenue and
5

specifically mention the Anacostia Project. See generally Final Waiver of Lien. The release
called for Fort Myer to pay ACC $10,000. Final Waiver of Lien at 1. In consideration for the
payment, ACC promised to:
Release and forever discharge Fort Myer of and from all debts, claims, demands,
liabilities and causes of action of every character whatsoever arising out of or in
connection with subcontract or any other work performed by subcontractor on any
project except as follows: (there are no exceptions unless specific claims in stated
amounts are listed):
Final Waiver of Lien at 2. Following that paragraph, handwritten notes purportedly written by
Edward Hollander, the late owner of ACC, list “AS-BUILTS PURCHASE ORDER $4,000 –
(LESS APPROX $3,600 +/- OWED BY ACC ON ANOTHER PROJECT) FOR NET OF
ABOUT $400 +/- (SEPARATE MATTER).” Final Waiver of Lien at 2.
Pursuant to the release, Fort Myer made payments of $10,000 and $4,000 to ACC in
November 2014. Decl. of Thomas Mero ¶ 11. ACC made a payment of $3,600 to Fort Myer
around the same time. Decl. of Jennifer Lawson ¶ 8, ECF No. 20. Evidence provided by the
parties suggests that both ACC and Fort Myer accepted compromise payments when they agreed
to the release. A representative for ACC states that, “[a]s of November, 2014, the amount which
ACC considered outstanding and claimed on the Otis Street Project was $22,000.00.” 2d Decl.
of Irene Stephen ¶ 4, ECF No. 24-1. A representative for Fort Myer states that, “[i]n or around
November, 2014, [ACC] owed Fort Myer . . . the amount of $4,348.10 relating to various
project[s], but not related to [the Otis Street Project].” Decl. of Jennifer Lawson ¶ 8.

Otis Street, N.E. Washington, D.C., DC Contract No. SCKA-2009-C-0025.” Final Waiver of
Lien at 1.
6

The parties agree that Mr. Hollander died sometime after the release was executed. See
Pl.’s Opp’n & Cross-Mot. Summ. J. at 5; Def.’s Reply Supp. Mot. Summ. J., at 1 n.2, ECF No.
26.
C. Proceedings in this Court
ACC brought suit in this Court on April 8, 2015. See generally Compl. After Fort Myer
answered the Complaint, the Court entered a scheduling order to govern discovery in this case on
June 18, 2015. See generally Scheduling Order, ECF No. 8. The parties engaged in mediation,
but those efforts were fruitless. See Order Referring Case to Magistrate Judge for Mediation,
ECF No. 10. Upon the parties’ request, the Court entered a schedule for dispositive motions,
with any dispositive motions to be filed on or before August 1, 2016 and any oppositions to be
filed on or before August 30, 2016. See Min. Order (June 14, 2016).
On August 1, 2016, Fort Myer separately filed a motion to dismiss and a motion for
summary judgment. See generally Def.’s Mot. Summ. J., ECF No. 20; Def.’s Mot. Dismiss for
Lack of Subject Matter Jurisdiction (“Def.’s Mot. Dismiss”), ECF No. 21; see also Def.’s Mem.
P. & A. Supp. Mot. Dismiss (“Def.’s Mem. Supp. Mot. Dismiss”), ECF No. 22; Def.’s Mem. P.
& A. Supp. Mot. Summ. J. (“Def.’s Mem. Supp. Mot. Summ. J.”), ECF No. 20. In its response
to the motion for summary judgment, ACC included a cross-motion for partial summary
judgment. See generally Pl.’s Opp’n & Cross-Mot. Summ. J.4 Fort Myer filed a motion to strike
the cross-motion, arguing that the cross-motion was filed after the Court’s deadline for

4

For the purposes of clarity, the Court notes that ACC’s filing was originally docketed at
ECF No. 24 only as a response to Fort Myer’s motion for summary judgment. The filing was
subsequently docketed at ECF No. 29 as a cross-motion for summary judgment as well.
7

dispositive motions. See generally Def.’s Mot. Strike Pl.’s Cross-Mot. Partial Summ. J. (“Def.’s
Mot. Strike”), ECF No. 27. The Court now turns to those pending motions.5

III. DISCUSSION
The Court begins its analysis with Fort Myer’s motion to dismiss for lack of subject
matter jurisdiction. For the reasons set forth below, the Court will grant the motion to dismiss,
but permit ACC an opportunity to file a supplemental complaint to cure any jurisdictional defect.
The Court next considers Fort Myer’s and ACC’s motions for summary judgment in turn. The
Court finds that genuine questions of material fact preclude granting summary judgment to either
party.
A. Subject Matter Jurisdiction
The Court first turns to Fort Myer’s motion to dismiss. The motion to dismiss argues that
this Court lacks subject matter jurisdiction because ACC failed to obtain a certificate of
registration from the District of Columbia. Although the Court finds that it lacks subject matter
jurisdiction, ACC will have an opportunity to cure the jurisdictional defect with an appropriate
supplemental pleading.
1. Legal Standard
Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of an action for lack
of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). Federal courts are courts of limited
jurisdiction, and the law presumes that “a cause lies outside this limited jurisdiction.” Rasul v.
Bush, 542 U.S. 466, 489 (2004) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

5

After the close of briefing on the pending motions, Fort Myer filed a motion to compel
that sought an order requiring ACC to make a corporate designee available for a deposition and
to produce certain documents. See generally Def.’s Mot. Compel, ECF No. 30. The Court noted
the lack of any opposition and granted the motion to compel. See Min. Order (Nov. 14, 2016).
8

375, 377 (1994)); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a
court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction.”). It is
the plaintiff’s burden to establish that the court has subject matter jurisdiction. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992). To determine whether jurisdiction exists, a
court may “consider the complaint supplemented by undisputed facts evidenced in the record, or
the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.”
Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (quoting
Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)).
2. Analysis
Fort Myer’s motion to dismiss turns on the District of Columbia’s “door closing” statute,
which prohibits a foreign corporation from maintaining any action in the District unless it has
obtained a certificate of registration from the District’s Department of Consumer and Regulatory
Affairs (“DCRA”). See Def.’s Mem. Supp. Mot. Dismiss at 2. Fort Myer asserts that ACC
failed to register with the DCRA and argues that the failure to register is a jurisdictional bar to
this suit. See Def.’s Mem. Supp. Mot. Dismiss at 2. ACC makes two arguments in response.
First, ACC contends that the door closing statute only applies to entities that are doing business
in the District at the time they bring suit. See Pl.’s Resp. Mot. Dismiss at 2, ECF No. 23.
Second, ACC notes that it subsequently obtained a certificate from DCRA and requests leave to
file a supplemental pleading to cure any jurisdictional issue. See Pl.’s Resp. Mot. Dismiss at 2.
a. The Door Closing Statute
The District’s door closing statute provides that “[a] foreign filing entity or foreign
limited liability partnership doing business in the District may not maintain an action or
proceeding in the District unless it is registered to do business in the District.” D.C. Code

9

§ 29-105.02(b).6 Both parties acknowledge that this Court previously addressed the District’s
door closing statute in Landmark Health Solutions, LLC v. Not For Profit Hospital Corporation,
950 F. Supp. 2d 130 (D.D.C. 2013). See Def.’s Mem. Supp. Mot. Dismiss at 2; Pl.’s Resp. Mot.
Dismiss at 2. In Landmark Health, this Court noted “that a federal court sitting in diversity, such
as this one, ‘must apply the District’s door closing statute.’” 950 F. Supp. 2d at 134 (quoting
Tel. & Data Sys., Inc. v. Am. Cellular Network Corp., 966 F.2d 696, 699 (D.C. Cir. 1992) (per
curiam)).
Interpreting the door closing statute, the District of Columbia Court of Appeals has stated
that the failure to obtain a certificate is not “absolutely prohibitive,” but instead “merely
suspend[s] the power to continue with the suit until the corporation complie[s] with the laws of
the District.” York & York Const. Co. v. Alexander, 296 A.2d 710, 714 (D.C. 1972) (citing HillLanham, Inc. v. Lightview Dev. Corp., 163 F. Supp. 475 (D.D.C. 1957)). The court concluded
that “non-compliance is a mere temporary disability” that is “capable of obviation at any [stage]
of the proceedings.” York, 296 A.2d at 714 (quoting Hill-Lanham, 163 F. Supp. at 476). That
conclusion was based on the fact that the statute is not intended to “deprive a[n unregistered]
corporation of access to the courts, but only to force the corporations to pay whatever fees, taxes,
or other financial obligations are owing to the body politic.” York, 296 A.2d at 714; see
also Fed. Loose Leaf Corp. v. Woodhouse Stationery Co., 163 F. Supp. 482, 483 (D.D.C.
1958) (finding that the purpose of a statute like this is not to provide “a weapon of substantial
defense” for the opposing party, but rather to bring foreign entities under the control of state
officials).

6

This statute previously appeared in a different section of the D.C. Code. See D.C. Code
§ 29A–101.119, repealed by D.C. Legis. 18-378 § 3(j) (2010).
10

Despite this flexibility, the D.C. Circuit has held that, in the context of assessing federal
diversity jurisdiction, the statutory requirement to be registered functions as a jurisdictional bar.
See Tel. & Data Sys., 966 F.2d at 699; see also Landmark Health, 950 F. Supp. 2d at 134;
Hunter Innovations Co. v. Travelers Indem. Co. of Conn., 605 F. Supp. 2d 170, 172 (D.D.C.
2009). Simply put, a plaintiff’s “failure to register is not merely a matter of [its] capacity to sue,
but instead, determines whether this Court has subject matter jurisdiction to hear its claims.”
Landmark Health, 950 F. Supp. 2d at 134–35. A Court’s analysis must examine the state of
affairs at the time the plaintiff brought the action, see Grupo Dataflux v. Atlas Global Grp., 541
U.S. 567, 571 (2004), and “later events may not create jurisdiction where none existed at the
time of filing,” Landmark Health, 950 F. Supp. 2d at 135 (quoting Prasco, LLC v. Medicis
Pharm. Corp., 537 F.3d 1329, 1337 (Fed. Cir. 2008)).
Here, it is undisputed that ACC was doing business in the District pursuant to the
subcontract at issue in this case and that ACC continued to perform work on other projects in the
District through at least 2013. See Def.’s Mot. Dismiss, Ex. B at 1 (providing information on
ACC’s completed jobs as of December 31, 2013, including the state where each project was
located); 1st Decl. of Irene Stephen ¶ 5, ECF No. 23-2 (acknowledging the list of projects, but
stating that none were still being performed by ACC as of April 28, 2015). It is also undisputed
that ACC did not register with the DCRA until after it brought this action. See Def.’s Mot.
Dismiss, Ex. A, Pl.’s Resp. Def.’s First Admissions Requests ¶ 2 (admitting that ACC “is not
registered as a foreign corporation with the District of Columbia Department of Consumer and
Regulatory Affairs”); Certificate of Registration, ECF No. 23-1 (listing an effective date of
August 20, 2016 for ACC’s certification).

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These facts, considered in light of this Court’s decision in Landmark Health, suggest that
the District’s door closing statute prevents this Court from exercising subject matter jurisdiction.
But ACC attempts to distinguish this case from Landmark Health by arguing that the door
closing statute does not apply because ACC was no longer doing business in the District at the
time it filed this action. See Pl.’s Resp. Mot. Dismiss at 2. ACC argues that “the operative and
controlling date for determining subject matter jurisdiction is the date the action is filed.” Pl.’s
Resp. Mot. Dismiss at 2. In other words, ACC argues that the door closing statute does not apply
to an entity that fails to register with the DCRA, as long as the entity ceases operations in the
District before bringing suit.
The Court is not convinced by ACC’s reading of the door closing statute. To be sure,
ACC is correct that, in general, a court looks to the date a complaint was filed to determine
whether subject matter jurisdiction existed at that time. See Grupo Dataflux, 541 U.S. at 571.
As set forth above, courts have determined that the requisite registration must exist at the time
the complaint is filed. See, e.g., Tel. & Data Sys., 966 F.2d at 699; Landmark Health, 950
F. Supp. 2d at 134. But, aside from a citation to Landmark Health, ACC presents no authority
supporting the proposition that the door closing statute does not apply where a business
previously did business in the District, but ceased before filing suit. See Pl.’s Resp. Mot.
Dismiss at 2. In fact, this Court noted in Landmark Health that the plaintiff “did not have a
certificate of registration during the life of the contract, nor when it filed this action.” 950
F. Supp. 2d at 134 (emphasis added).
Crucially, accepting ACC’s reading would undermine the purpose of the door closing
statute. For more than fifty years, this court has recognized “that the real purpose and the aim of
such legislation was to bring such corporations under the supervision and the regulation of public

12

officials charged with such responsibility.” Hill-Lanham, 163 F. Supp. at 476. The District of
Columbia Court of Appeals similarly stated that the door closing statute is intended to “force the
corporations to pay whatever fees, taxes, or other financial obligations are owing to the body
politic.” York, 296 A.2d at 714. That objective would be thwarted if a foreign entity could
simply cease operations in the District, and then bring suit in the District’s courts without regard
to the door closing statute.
For these reasons, the Court rejects ACC’s reading of the District’s door closing statute.
Despite ACC’s cessation of business operations in the District, ACC previously conducted
business in the district, including the performance of the contract that is at issue in this case.
Because the Court finds that ACC did business in the District and failed to register with the
DCRA before bringing suit, the door closing statute applies and this Court lacks subject matter
jurisdiction. See Tel. & Data Sys., 966 F.2d at 699; Landmark Health, 950 F. Supp. 2d at 134.
Thus, the Court grants Fort Myer’s motion to dismiss for lack of subject matter jurisdiction.
b. Supplemental Pleading
The Court’s conclusion that the door closing statute applies to this case does not fully
resolve this issue. ACC asserts that it registered with the DCRA during the pendency of this case
and requests leave to file a supplemental complaint. See Pl.’s Resp. Mot. Dismiss at 2. This
Court approved of that procedure in Landmark Health.7 See 950 F. Supp. 2d at 135–36.

7

After the defendant in Landmark Health moved to dismiss the supplemental complaint,
this Court reaffirmed its holding that the plaintiff could cure jurisdictional infirmities caused by
the door closing statute by filing a supplemental complaint showing that the plaintiff had
registered with the DCRA. See Landmark Health Sols., LLC v. Not for Profit Hosp. Corp., No.
11-0456, 2014 WL 685553, at *1 (D.D.C. Feb. 24, 2014) (“Landmark is now registered with the
DCRA; it has paid its dues to the sovereign, as is the District’s goal. It has filed a supplemental
complaint that properly alleges this Court’s jurisdiction. That is sufficient.”).
13

As previously stated, failure to register with the DCRA is “a mere temporary disability
and, therefore, capable of obviation at any [stage] of the proceedings.” York, 296 A.2d at 714
(quoting Hill-Lanham, 163 F. Supp. at 476)). Federal Rule of Civil Procedure 15(d) gives courts
the authority “to permit a party to serve a supplemental pleading setting forth events which have
happened since the date of the original complaint.” Landmark Health, 950 F. Supp. 2d at 135
(quoting Fund for Animals v. Hall, 246 F.R.D. 53, 54 (D.D.C. 2007)); see also Fed. R. Civ. P.
15(d) (“On motion and reasonable notice, the court may, on just terms, permit a party to serve a
supplemental pleading setting out any transaction, occurrence, or event that happened after the
date of the pleading to be supplemented.”). Thus, ACC may attempt to cure the jurisdictional
defect by filing a supplemental complaint pursuant to Rule 15(d) that properly alleges this
Court’s jurisdiction. See Prasco, 537 F.3d at 1337 (“Supplemental pleadings can be used to cure
subject matter jurisdiction deficiencies.”). Therefore, the Court will dismiss for lack of subject
matter jurisdiction, but grant leave for ACC to file a supplemental complaint within thirty days.
See Landmark Health, 950 F. Supp. 2d at 135 (granting leave to amend in thirty days); cf. 5B
Charles Wright & Arthur Miller, Federal Practice and Procedure § 1350 (3d ed. 2017) (“When
the pleader’s affidavits or other evidence show either that the court actually has subject matter
jurisdiction over the case or that the nonmoving party might be able to amend to allege
jurisdiction, the district court may deny the motion and direct the pleader to amend the
pleading or it may dismiss with leave to amend within a prescribed period of time.”).
B. Summary Judgment
The Court next turns to the parties’ motions for summary judgment. Fort Myer argues
that summary judgment should be granted in its favor because ACC agreed to a global release of
all claims against Fort Myer. See Def.’s Mem. Supp. Mot. Summ. J. at 3–6. ACC argues that it

14

is entitled to partial summary judgment on two issues—first, that ACC is entitled to retainage
purportedly withheld by Fort Myer, and second, that Fort Myer breached the subcontract by
terminating for convenience. See Pl.’s Opp’n & Cross-Mot. Summ. J. at 7. Fort Myer moves to
strike ACC’s cross-motion, arguing that it was filed out of time and fails to comply with the
Local Rules of this Court. See Def.’s Mot. Strike ¶¶ 3–4. For the reasons set forth below, the
Court will deny summary judgment to both parties. Because the Court denies ACC’s crossmotion for partial summary judgment on the merits, Fort Myer’s motion to strike is denied as
moot.
1. Legal Standard
Under Rule 56 of the Federal Rules of Civil Procedure, a court must grant summary
judgment if “the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A “material” fact is
one capable of affecting the substantive outcome of the litigation. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is enough evidence for a
reasonable jury to return a verdict for the non-movant. See Scott v. Harris, 550 U.S. 372, 380
(2007). The inquiry under Rule 56 is essentially “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Anderson, 477 U.S. at 251–52.
The principal purpose of summary judgment is to determine whether there is a genuine
need for trial by disposing of factually unsupported claims or defenses. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323–24 (1986). 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); Celotex, 477 U.S. at 323. In response, the non-movant must point to

15

specific facts in the record that reveal a genuine issue that is suitable for trial. See Fed. R. Civ. P.
56(c)(1); Celotex, 477 U.S. at 324. The non-movant may not rest upon mere allegations or
denials but must instead present affirmative evidence. See Laningham v. U.S. Navy, 813 F.2d
1236, 1241 (D.C. Cir. 1987).
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). All underlying facts and inferences must be analyzed in the light most favorable to the
non-movant. See Anderson, 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).
2. Fort Myer’s Motion for Summary Judgment
Fort Myer’s motion for summary judgment relies on the release executed between Fort
Myer and ACC in November 2014. See Def.’s Mem. Supp. Mot. Summ. J. at 3. Fort Myer
contends that the release was global in scope and that it unambiguously applied to all claims
between Fort Myer and ACC, including claims related to the Anacostia Project, even though the
release did not specifically mention the Anacostia Project. See Def.’s Mem. Supp. Mot. Summ.
J. at 4. ACC argues that the parties did not intend for the release to apply to claims arising from
the Anacostia Project. See Pl.’s Opp’n & Cross-Mot. Summ. J. at 4–6.
The release in question is a two-page document titled “Subcontractor’s Affidavit and
Final Waiver of Lien.” Final Waiver of Lien at 1. The document, dated November 20, 2014,
referred to the contract between Fort Myer and ACC for work on the Otis Street Project. Final
Waiver of Lien at 1. The release did not specifically mention the Anacostia Project. See
generally Final Waiver of Lien.

16

The release called for Fort Myer to pay ACC $10,000. Final Waiver of Lien at 1.
In consideration for the payment, ACC promised to:
Release and forever discharge Fort Myer of and from all debts, claims, demands,
liabilities and causes of action of every character whatsoever arising out of or in
connection with subcontract or any other work performed by subcontractor on any
project except as follows: (there are no exceptions unless specific claims in stated
amounts are listed):
Final Waiver of Lien at 2. Following that paragraph, handwritten notes purportedly written by
Edward Hollander, the late owner of ACC, list “AS-BUILTS PURCHASE ORDER $4,000 –
(LESS APPROX $3,600 +/- OWED BY ACC ON ANOTHER PROJECT) FOR NET OF
ABOUT $400 +/- (SEPARATE MATTER).” Final Waiver of Lien at 2.
Fort Myer argues that the “language of the release is clear and unambiguous,” and that
the release is global in scope. Def.’s Mem. Supp. Mot. Summ. J. at 4. Fort Myer notes that the
release states that it applies to “all debts, claims, demands, liabilities and cause of action of every
character whatsoever arising out of or in connection with . . . any other work performed by
subcontractor on any project.” Def.’s Mem. Supp. Mot. Summ. J. at 4 (quoting Final Waiver of
Lien at 2). Fort Myer also notes that the release included space for ACC to list any exceptions,
and that ACC’s representative did list claims related to certain projects, but not claims related to
the Anacostia Project.8 See Def.’s Mem. Supp. Mot. Summ. J. at 4.

8

Fort Myer also asserts that Fort Myer and ACC have executed numerous other lien
releases from 2009 to 2012. Def.’s Mem. Supp. Mot. Summ. J. at 5. The other lien releases
purportedly applied to “any other work performed by subcontractor on said project” instead of
“any other work performed by subcontractor on any project.” Def.’s Mem. Supp. Mot. Summ. J.
at 5. Fort Myer states that it has produced these releases to ACC in discovery, but the Court will
not consider them here because they have not been introduced into the record by either party.
However, the Court notes that, to the extent extrinsic evidence of “the course of dealing between
the parties” can be admitted to understand what a reasonable person in the position of the parties
understood the contract to mean, this deviation might cut against Fort Myer’s argument.
Abdelrhman v. Ackerman, 76 A.3d 883, 889 (D.C. 2013) (quoting Ozerol v. Howard Univ., 545
A.2d 638, 642 (D.C. 1988)).
17

Fort Myer’s argument presents a question of contract interpretation. Under District of
Columbia law, “[a] release is a form of contract, and the rules of contract construction govern its
interpretation.”9 GLM P’ship v. Hartford Cas. Ins. Co., 753 A.2d 995, 998 (D.C. 2000) (quoting
District of Columbia v. Wash. Hosp. Ctr., 722 A.2d 332, 342 (D.C. 1998)); see also Noonan v.
Williams, 686 A.2d 237, 241 (D.C. 1996). The interpretation of an unambiguous contract is a
question of law, as is the determination whether the contract is ambiguous. See Abdelrhman v.
Ackerman, 76 A.3d 883, 887–89 (D.C. 2013). A contract, “is not rendered ambiguous merely
because the parties disagree over its proper interpretation.” Parker v. U.S. Trust Co., 30 A.3d
147, 150 (D.C. 2011) (quoting Gryce v. Lavine, 675 A.2d 67, 69 (D.C. 1996)). “[T]he written
language embodying the terms of an agreement will govern the rights and liabilities of the parties
[regardless] of the intent of the parties at the time they entered into the contract, unless the
written language is not susceptible of a clear and definite undertaking.” Abdelrhman, 76 A.3d at
888 (second alteration in original) (quoting Dyer v. Bilaal, 983 A.2d 349, 354–55 (D.C. 2009)).
Nevertheless, the District of Columbia Court of Appeals has acknowledged that its “cases
have not been a model of clarity” when it comes to whether extrinsic evidence can guide a
court’s assessment of a contract’s meaning. Id.; see also N.W. v. District of Columbia, 107
F. Supp. 3d 141, 147–48 (D.D.C. 2015) (“The District of Columbia Court of Appeals has not
definitely resolved the precise scope of this exception.”). The Court of Appeals has
acknowledged a line of cases that allows extrinsic evidence to be considered, not for the

9

Without specifically briefing the issue, the parties appear to implicitly agree that District
of Columbia contract law governs this issue. See Def.’s Mem. Supp. Mot. Summ. J. at 4; Pl.’s
Opp’n & Cross-Mot. Summ. J. at 3. Therefore, the Court will apply District of Columbia law.
See Beach TV Properties, Inc. v. Solomon, No. 15-1823, 2016 WL 6068806, at *9 n.9 (D.D.C.
Oct. 14, 2016); cf. In re Korean Air Lines Disaster, 932 F.2d 1475, 1495 (D.C. Cir.
1991) (Mikva, J., dissenting) (“Unlike jurisdictional issues, courts need not address choice of law
questions sua sponte.”).
18

purposes of establishing the parties’ subjective intent, but for guiding a court’s objective analysis
of what a reasonable person would understand the contract to mean. See Abdelrhman, 76 A.3d at
888–89.
In other words, the Court of Appeals has “recognized that ‘confusion sometimes arises
because of a failure to distinguish clearly between direct evidence as to what a particular party
intended the language to mean, a subjective question, and evidence of the general situation, the
relations of the parties, the subject matter of the transaction, preliminary negotiations and
statements made therein, usages of trade, and the course of dealing between the parties, all of
which may be useful aids in determining whether objectively the meaning of the contract
language is not susceptible of a clear and definite undertaking.’” Id. at 889 (quoting Ozerol, 545
A.2d at 642). The Court of Appeals has also held that “an evaluation of the surrounding
circumstances is to be applied whether the contract’s language appears ambiguous or not.”
Patterson v. District of Columbia, 795 A.2d 681, 683 (D.C. 2002), amended on denial of reh’g
by 819 A.2d 320 (D.C. 2003); see also Debnam v. Crane Co., 976 A.2d 193, 197 (D.C.
2009) (“Extrinsic evidence may be used to ‘determine the circumstances surrounding the making
of the contract,’ however, it may not be relied upon to show the subjective intent of the parties
absent ambiguity in the contract’s language.” (quoting 1010 Potomac Assocs. v. Grocery Mfrs. of
America, Inc., 485 A.2d 199, 205–06 (D.C. 1984))); Christacos v. Blackie’s House of Beef, Inc.,
583 A.2d 191, 194 (D.C. 1990) (“[E]xtrinsic evidence may be considered to determine the
circumstances surrounding the making of the contract so that it may be ascertained what a
reasonable person in the position of the parties would have thought the words meant.” (quoting
1010 Potomac Assocs., 485 A.2d at 205–06)).

19

Fort Myer’s argument fails to account for these sources of extrinsic evidence, which the
Court can consider to determine whether a release is truly unambiguous on its face. Here, it is
undisputed that the release did not specifically mention the Anacostia Project. See Final Waiver
of Lien at 1–2. According to the declaration of Ms. Stephen, ACC believed Fort Myer owed
$22,000 for the Otis Street Project, see 2d Decl. of Irene Stephen ¶ 4, and ACC ultimately
accepted $10,000 in the release, see Final Waiver of Lien at 1. According to the declaration of
Ms. Lawson, Fort Myer believed that ACC owed $4,348.10 for projects other than the Otis Street
Project, and Fort Myer ultimately accepted $3,600 in the release.10 See Decl. of Jennifer Lawson
¶¶ 7–8; see also Final Waiver of Lien at 2. The original value of the Anacostia Project
subcontract was $649,161, and that figure increased to nearly $1 million following change
orders.11 See Def.’s Opp’n Cross-Mot. Partial Summ. J., Ex. B, attached Payment Estimate.
This disparity is relevant to whether a reasonable person in the position of the parties would have
understood the release to apply to the Anacostia Project. See Abdelrhman, 76 A.3d at 888.
Furthermore, counsel for the parties exchanged a series of letters regarding Fort Myer’s
decision to terminate the Anacostia Project subcontract with ACC. See e.g., Pl.’s Opp’n &
Cross-Mot. Summ. J., Ex. 2 at 2, 4–5; Def.’s Statement of Undisputed Facts, Ex. A at 1; Def.’s
Opp’n Cross-Mot. Partial Summ. J., Ex. C at 1. During the course of those communications, a
letter drafted by ACC’s outside counsel stated that Mr. Hollander had been directed to
communicate with Fort Myer’s inside counsel. See Def.’s Statement of Undisputed Facts, Ex. A
at 1. All subsequent communications in the record regarding the Anacostia Project were sent

10

No declarations address the separate $4,000 payment that Fort Myer made to ACC for
the “AS-BUILTS PURCHASE ORDER.” Final Waiver of Lien at 2.
11

In its Complaint, ACC alleges that the value of the subcontract following change
orders was $1,052,878.17. Compl. ¶ 6
20

through counsel. District of Columbia Rule of Professional Conduct 4.2 prohibits an attorney
from communicating “about the subject of the representation with a person known to be
represented by another lawyer in the matter, unless the lawyer has the prior consent of the lawyer
representing such other person or is authorized by law or a court order to do so.” D.C. RPC
4.2(a). Rule 4.2 does not apply, however, to communications between the parties regarding a
separate matter. See D.C. RPC 4.2, comt. 2. There is no indication that ACC was represented by
counsel with regard to the Otis Street Project. This extrinsic evidence is relevant to whether a
reasonable person would understand the release to apply to the Anacostia Project.12
Fort Myer presents a straightforward argument that the release’s reference to “work
performed by subcontractor on any project” extends to claims related to the Anacostia Project.
Def.’s Mem. Supp. Mot. Summ. J. at 4 (quoting Final Waiver of Lien at 2). But the release is
styled as a final waiver of lien related to the Otis Street Project, and extrinsic evidence, including
the disparate values at issue and counsel’s previous involvement, shows that a reasonable person
would have reason to believe that the release did not extend to the Anacostia Project. The Court
concludes that the release does not clearly and unambiguously apply to the Anacostia Project.
The District of Columbia Court of Appeals has made clear that, “‘[b]ecause consideration of
such extrinsic evidence is for the fact finder,’ once a contract is determined to be ambiguous,
summary judgment generally is improper.” Aziken v. District of Columbia, 70 A.3d 213, 219
(D.C. 2013) (quoting District of Columbia v. D.C. Pub. Serv. Comm’n, 963 A.2d 1144, 1156
(D.C. 2009)). Therefore, the Court will deny Fort Myer’s motion for summary judgment.

12

ACC also urges the Court to consider purported instances where counsel for Fort Myer
conceded that retainage is due to ACC. See Pl.’s Opp’n & Cross-Mot. Summ. J. at 6. For the
reasons set forth more fully below, the Court finds that those communications are inadmissible,
and the Court does not rely on them here. See infra Part III.B.3.a.
21

3. ACC’s Cross-Motion for Partial Summary Judgment
In its opposition to Fort Myer’s motion for summary judgment, ACC includes a brief
cross-motion for partial summary judgment. See Pl.’s Opp’n & Cross-Mot. Summ. J. at 7. ACC
raises two issues in its cross-motion. First, ACC contends that it is entitled to retainage
purportedly withheld by Fort Myer. Pl.’s Opp’n & Cross-Mot. Summ. J. at 7. Second, ACC
argues that Fort Myer breached the subcontract through its termination for convenience. Pl.’s
Opp’n & Cross-Mot. Summ. J. at 7. The Court will address the two issues in turn.13
a. Retainage
The entirety of ACC’s argument regarding the retainage consists of two sentences. ACC
argues: “The retainage is subcontract money, earned by ACC prior to the termination, which Fort
Myer has conceded is due, but which has not been paid. The retainage is in the amount of
$4,764.38. See affidavit of Irene Stephen and email correspondence attached.” Pl.’s Opp’n &
Cross-Mot. Summ. J. at 7.
Upon considering the supporting materials, the Court notes that Ms. Stephen’s
declaration simply states: “The amount of the retainage held by Fort Myer and due and owing on
this project is $4,764.38.” 2d Decl. of Irene Stephen ¶ 3. The email that ACC refers to is found
in a communication between Michael J. Jack, counsel to ACC in this litigation, and Christopher

13

Fort Myer moves to strike ACC’s cross-motion. See Def.’s Mot. Strike. Fort Myer
correctly notes that the Court issued an order requiring all dispositive motions to be filed on or
before August 1, 2016. See Def.’s Mot. Strike ¶ 2 (citing Scheduling Min. Order (June 14,
2016)). That deadline reflected the exact briefing schedule proposed by the parties. See Parties’
Meet and Confer Statement, ECF No. 19. Despite the Court’s order, ACC filed its cross-motion
for partial summary judgment on August 30, 2016. See Pl.’s Opp’n & Cross-Mot. Summ. J.
Fort Myer also notes that ACC did not present a statement of material facts that it contends are
not in dispute, as required by this Court’s Local Rules. See Def.’s Mot. Strike ¶¶ 4–5 (citing
LCvR 7(h)). The Court acknowledges Fort Myer’s concerns. However, because the Court will
deny ACC’s cross-motion for partial summary judgment on the merits, Fort Myer’s motion to
strike is denied as moot.
22

A. Coppula, Counsel to Fort Myer. See Pl.’s Opp’n & Cross-Mot. Summ. J., Ex. 3 at 1, ECF No.
24-3. As a part of that exchange, counsel for ACC mentions that “[t]here is a small [amount] of
retainage owed. I assume that is not in dispute.” Pl.’s Opp’n & Cross-Mot. Summ. J., Ex. 3 at 1.
In response, counsel for ACC writes, “The retainage is not in dispute.”14 Pl.’s Opp’n & CrossMot. Summ. J., Ex. 3 at 1.
First, the Court notes that ACC cannot rely on the email exchange to establish that
summary judgment is appropriate. This discussion between counsel relates to attempts to clarify
the value of the claims at issue and constitutes inadmissible compromise negotiations. See Fed.
R. Evid. 408(a). A party asserting that a fact cannot be genuinely disputed must support that
assertion with admissible evidence. See Fed. R. Civ. P. 56(c)(2). Thus, the Court will disregard
the email exchange for the purposes of evaluating ACC’s cross-motion for partial summary
judgment on the issue of retainage.
Second, the Court previously determined that there was a genuine issue of material fact
as to whether ACC waived all claims against Fort Myer, including the retainage, by executing
the release related to the Otis Street Project. See supra Part III.B.2; see also Def.’s Opp’n CrossMot. Partial Summ. J. at 2 n.2, ECF No. 28 (incorporating Fort Myer’s argument “that ACC
waived its rights to all amounts due and owing by its execution of a full release”). That dispute
alone provides a sufficient basis for the Court to find that ACC has failed to carry its burden
here. See Fed. R. Civ. P. 56(a). At the very least, “the evidence presents a sufficient

14

The Court notes that a portion of the email exchange appears to be cut off in the exhibit
filed with the Court. The older of the two messages included in the exhibit appears to be cut off
mid-sentence. Pl.’s Opp’n & Cross-Mot. Summ. J., Ex. 3 at 1 (concluding last sentence of
message without a period or any signature). It also appears that the same message was
responding to an earlier message that is not included in the exhibit. Pl.’s Opp’n & Cross-Mot.
Summ. J., Ex. 3 at 1 (beginning message “Chris – This is very helpful. I will pass along to
ACC.” and listing subject line as “Re: ACC/FMCC”).
23

disagreement to require submission to a jury,” Anderson, 477 U.S. at 251–52, and the Court will
therefore deny ACC’s cross-motion for partial summary judgment on the issue of the retainage.
b. Breach
The Court next turns to ACC’s argument that Fort Myer breached the subcontract when it
terminated for convenience. Pl.’s Opp’n & Cross-Mot. Summ. J. at 7. ACC contends that “[t]he
subcontract permits termination for convenience only if Fort Myer’s contract is terminated by the
owner,” meaning DDOT, and that “[i]t is undisputed that Fort Myer’s contract was not
terminated.” Pl.’s Opp’n & Cross-Mot. Summ. J. at 7. ACC concludes that Fort Myer’s
decision to terminate the subcontract, to refuse to rescind the decision, and to permit another
subcontractor to perform the work originally subcontracted to ACC all constitute a breach of the
subcontract entitling ACC to recover damages. Pl.’s Opp’n & Cross-Mot. Summ. J. at 7.
Again, ACC presents scant support for its argument. Aside from one sentence stating
that “[r]elevant portions of the subcontract are attached,” ACC presents no direct citations to the
record and no citations to legal authority. Pl.’s Opp’n & Cross-Mot. Summ. J. at 7. Federal Rule
56 makes clear that “[a] party asserting that a fact cannot be . . . genuinely disputed must support
the assertion by . . . citing to particular parts of materials in the record.” Fed. R. Civ. P.
56(c)(1)(A). ACC’s vague references to “[r]elevant portions of the subcontract” do not carry
that burden. Cf. Twist v. Meese, 854 F.2d 1421, 1425 (D.C. Cir. 1988) (finding that the district
court is not “obliged to sift through hundreds of pages of depositions, affidavits, and
interrogatories in order to make [its] own analysis and determination of what may, or may not, be
a genuine issue of material disputed fact”); Robertson v. Am. Airlines, Inc., 239 F. Supp. 2d 5, 9
(D.D.C. 2002) (striking movant’s statement of facts for “liberally mix[ing] facts with argument”

24

which “does nothing to assist the court in isolating the material facts, distinguishing disputed
from undisputed facts, and identifying the pertinent parts of the record”).
But even if ACC had presented a cognizable argument, the Court still finds that Fort
Myer has presented evidence purporting to show that DDOT, in fact, constructively terminated
the prime contract. See Def.’s Opp’n Cross-Mot. Partial Summ. J. at 4–5. For instance, Fort
Myer presents evidence purporting to show that DDOT’s amendment was so significant that it
constituted a new contract. See Def.’s Opp’n Cross-Mot. Partial Summ. J., Ex. E (setting forth
extensive changes to the prime contract). Taking the facts in the light most favorable to Fort
Myer, ACC has failed to show that Fort Myer breached the subcontract when Fort Myer
terminated the subcontract for convenience. For the reasons set forth above, the Court will deny
ACC’s cross-motion for partial summary judgment on this issue.

IV. CONCLUSION
For the foregoing reasons, Fort Myer’s Motion for Summary Judgment (ECF No. 20) is
DENIED; Fort Myer’s Motion to Dismiss (ECF No. 21) is GRANTED with leave for ACC to
file a supplemental complaint within thirty days; ACC’s Cross-Motion for Partial Summary
Judgment (ECF No. 29) is DENIED; and Fort Myer’s Motion to Strike (ECF No. 27) is
DENIED AS MOOT. An order consistent with this Memorandum Opinion is separately and
contemporaneously issued.
Dated: March 29, 2017

RUDOLPH CONTRERAS
United States District Judge

25