                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



 THOMAS J. PERNICE, et al.,

         Plaintiffs,
                v.                                         Civil Action No. 15-541 (JEB)
 ERIC BOVIM, et al.,

         Defendants.


                                  MEMORANDUM OPINION

       Without the assistance of hindsight, ill-fated corporate combinations, like bad marriages,

may be as challenging to resist as they are unlikely to succeed. The coupling at the center of this

case is no different. At first so alluring, the union of two public-relations firms has now soured,

leaving one of the participants believing he was lured into formalizing the relationship with false

promises. That jilted partner, Thomas Pernice, and his holding company, Modena Holding

Corp., now seek relief from this Court. They have sued three defendants – McBee Strategic

Consulting, LLC; its former owner and Chief Executive, Steven McBee; and its current

employee (and Pernice’s former business partner), Eric Bovim – each for some combination of

breach of contract, fraud, civil conspiracy, and unjust enrichment. Defendants now move to

dismiss in part, contending that three of the five asserted counts are facially deficient. The Court

agrees and will grant the Motion.

I.     Background

       Although the Court must accept the facts as alleged in the Complaint as true at this stage,

the parties appear to agree on the rough contours of the case. Sometime in 2007 or 2008,

Thomas Pernice and Eric Bovim, both known players in the District’s strategic-communications

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industry, teamed up to start a public-relations firm named Gibraltar LLC. See Compl., ¶¶ 15–16,

19. Despite a rocky and often tumultuous relationship between the two principals, the business

survived its infancy, growing into an enterprise that, by 2011, had captured the attention of a

competitor: McBee LLC. Id., ¶¶ 26, 41.

        In the latter half of 2011, the two companies flirted with the idea of starting a formal

corporate relationship, bringing in a D.C. law firm to chaperone the negotiations. Id., ¶ 42. A

big sticking point was whether, if McBee LLC acquired Gibraltar and hired its two principals,

they would be entitled to an equity stake in their new corporate home. Id., ¶ 43. At the time,

McBee LLC did not have an equity-sharing program for its employees, but the firm’s head,

Steven McBee, represented to Pernice and Bovim that McBee LLC had been working to develop

one, and that, if it did, they would be among the first to receive an equity stake. Id.

        The negotiations resulted in a Letter of Intent indicating that the two firms “desire[d] to

enter into a business combination” subject to a five-page list of “non-binding terms.” See Mot.,

Declaration of Richard W. Smith, Exh. B (Letter of Intent) at 1. 1 As part of that plan, McBee

LLC proposed hiring Bovim and bringing on Pernice as an independent consultant through his

S-Corporation, Modena, for an 18-month term. Id. at 3–4. The letter also stated in non-

committal terms that McBee LLC “intends to implement a new compensation system, which will

contain an equity, profit sharing, or a similar component,” and that Modena “will be included in

such compensation system either directly or by some reasonable approximation as the plan may

allow.” Id. at 3.




1
  Defendants Bovim and McBee LLC move to dismiss separately from Defendant Steven McBee. This Opinion
cites only to Bovim and McBee LLC’s briefs, which largely subsume the arguments advanced by McBee in his
individual capacity, and to Plaintiffs’ Opposition to the Bovim/McBee LLC Motion.

                                                     2
       On January 1, 2013, the parties moved ahead with the combination, opting to join forces

with an asset purchase agreement (APA) in which McBee LLC agreed to buy Gibraltar’s

pipeline of contracts for a price of $100,000. See Compl., ¶¶ 57, 59; Smith Decl., Exh. A (APA)

at Schedule 1.2 (listing assets Gibraltar agreed to sell under APA). The agreement included

several key features relevant to this dispute.

       First, it provided that, as a prerequisite to closing, both sides had to ensure that a contract

for independent-consulting services (the IC Agreement) between McBee LLC and Modena was

fully executed. See APA at 12–13. That contract, which was attached to the purchase agreement

as a separate exhibit, id. at 2, largely mirrored the terms that had been agreed to in the Letter of

Intent. McBee LLC would pay Modena a monthly retainer of $80,166 for 18 months, and, if

McBee LLC fired Modena without cause before such term expired, McBee LLC would be on the

hook for the remainder of the payments. See Smith Decl., Exh. C (IC Agreement) at 1–2.

       Second, unlike the Letter of Intent, the APA made no mention of an equity-sharing or

other compensation program. The IC Agreement, in contrast, did, albeit in wholly conditional

terms – stating that, “[i]f McBee [LLC] implements an equity incentive program in which

[Modena] is offered participation, [Modena’s] Retainer Fee may be replaced or adjusted” should

Modena participate in the program. Id. at 1 (emphasis added).

       Third, under the APA, McBee LLC did not assume Gibraltar’s debt. See APA at 3–4.

To help Gibraltar pay its obligations, however, the APA provided that Gibraltar could keep its

receivables for any work it had done prior to closing. See Compl., ¶ 57; see also APA at

Schedule 1.3 (listing Gibraltar’s assets excluded from APA).




                                                  3
       Finally, both agreements included nearly identical integration or “merger” clauses

disclaiming any other oral or written commitments that were made prior to those contracts’

execution, but were not included in the final agreements. See APA at 17; IC Agreement at 9.

       Notwithstanding the auspicious New Year’s timing of the deal (“Hope smiles from the

threshold of the year to come,” 10 ALFRED LORD TENNYSON, WORKS, The Foresters 33 (1894)),

things went south – and fast. In the early months of 2013, Pernice was given the cold shoulder

by his new boss, McBee, and was “systematically cut out of communications, meetings, [and

other] contact with McBee or other senior leader[s] . . . .” Compl., ¶ 65. Pernice also found that

his former partner, Bovim, made himself scarce and, ostensibly in cahoots with McBee, took

“affirmative action to isolate Pernice from participation in the new joint company . . . and ma[d]e

the performance of the [IC Agreement] difficult or impossible . . . .” Id., ¶ 66. Despite Pernice’s

efforts to perform according to his (or, rather, Modena’s) contractual obligations, he was handed

a pink slip on June 5, 2013, which informed him that the IC Agreement had been terminated “for

cause.” Id., ¶ 75.

       Adding insult to injury, the following month Pernice filed, on behalf of Gibraltar, a

voluntary petition for Chapter 7 bankruptcy. See In re Gibraltar Assocs., LLC, No. 13-14937,

ECF No. 1 (Bankr. C.D. Cal., Jul. 26, 2013). During those proceedings, he articulated his

suspicions that the present Defendants had committed a number of wrongs against Gibraltar,

including acts of “fraud, breach of contract, and other . . . wrongdoings.” Id., ECF No. 27, at 2.

Believing that the soon-to-be-liquidated LLC had a number of meritorious claims against

Defendants, Pernice proposed to the bankruptcy Trustee that he be assigned all of the estate’s

legal claims arising from that wrongdoing in exchange for returning one third of any recovery he

obtained. Id. But Defendants had a different idea. They proposed that, instead of assigning the



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estate’s litigation interests to Pernice, they would buy a release of all of the estate’s claims

against them for a flat $25,000. Id., ECF No. 40, at 2. Pernice consented to that settlement,

making clear, however, that he reserved “all of his individual claims, if any, against” Defendants.

Id., ECF No. 42, at 3–4.

       With the bankruptcy case closed, Pernice and Modena filed the present suit. Counts I and

II of the Complaint, neither of which Defendants currently seek to dismiss, consist of contract

claims by Modena against McBee LLC for breach of the IC Agreement. In Count III, Plaintiffs

allege that McBee and McBee LLC fraudulently induced Pernice to sign the APA, causing harm

to both Plaintiffs by making promises that these two Defendants knew at the time they would not

keep. Count IV consists of a civil-conspiracy claim by Pernice against Bovim, who is accused of

making agreements with McBee to commit the fraud alleged in Count III. And finally, Count V

alleges that all three Defendants were unjustly enriched by Pernice through their retaining the

benefits of the deal. Defendants now move to dismiss the last three causes of action.

II.    Legal Standard

       Under Federal Rule of Civil Procedure 12(b)(6), a court must dismiss a claim for relief

when the complaint “fail[s] to state a claim upon which relief can be granted.” In evaluating a

motion to dismiss, the Court must “treat the complaint’s factual allegations as true and must

grant plaintiff the benefit of all inferences that can be derived from the facts alleged.” Sparrow

v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (citation and internal quotation

marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court need not accept as

true, however, “a legal conclusion couched as a factual allegation,” nor an inference unsupported

by the facts set forth in the complaint. Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006)

(quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Although “detailed factual allegations”



                                                   5
are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007), “a complaint must contain sufficient factual matter, [if] accepted as true, to

state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal quotation

omitted). A plaintiff may survive a Rule 12(b)(6) motion even if “recovery is very remote and

unlikely,” but the facts alleged in the complaint “must be enough to raise a right to relief above

the speculative level.” Twombly, 550 U.S. at 555–56 (quoting Scheuer v. Rhodes, 416 U.S. 232,

236 (1974)).

         A motion to dismiss under Rule 12(b)(6) must rely solely on matters within the

pleadings, see Fed. R. Civ. P. 12(d), which includes statements adopted by reference as well as

copies of written instruments joined as exhibits. See Fed. R. Civ. P. 10(c). Documents that a

defendant attaches to a motion to dismiss are “part of the pleadings” under Rule 10(c) if they are

integral to its claim, they are referred to in the complaint, and their authenticity is undisputed.

See Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004); Hinton v. Corrs. Corp. of Am., 624

F. Supp. 2d 45, 46–47 (D.D.C. 2009). The Court may thus consider those materials on a motion

to dismiss without treating the motion “as one for summary judgment under Rule 56.” Fed. R.

Civ. P. 12(d); Marshall v. Honeywell Tech. Solutions, Inc., 536 F. Supp. 2d 59, 65 (D.D.C.

2008).

III.     Analysis

         The Court separately addresses each of the challenged counts: fraud, civil conspiracy, and

unjust enrichment.

         A. Count III – Fraud

         From a distance, Plaintiffs’ fraud theory appears deceptively simple. They contend that,

in order to convince Gibraltar to sell its assets, McBee LLC and its then owner, Steve McBee,



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made a number of false promises to Pernice, whose approval was necessary to close the deal.

But for those lies, Plaintiffs claim, Pernice would never have signed the APA, and thus the deal

would never have gone through. As is often the case, however, the devil is in the details, which

prove fatal to Plaintiffs’ claim.

                1. Governing Law

        Before getting to the merits, the Court needs to clear up some confusion regarding which

jurisdiction’s laws apply to the fraud claim. The uncertainty stems in large part from the fact that

a cause of action for “fraud in the inducement,” which Plaintiffs allege here, may arise in both

tort and contract. See In re Estate of McKenney, 953 A.2d 336, 341 (D.C. 2008) (“[A] person

who [is] induced to enter into a contract by a misrepresentation has several common law causes

of action, including fraud in the inducement sounding in tort and rescission sounding in

contract.”). The distinction between these two claims is important “because each action requires

a different level of proof and allows for different remedies.” Id. When the claim sounds in tort,

“the defrauded party ‘does not seek to undo the fraudulent transaction’” through rescission, a

contract remedy, “‘but [rather] claims sufficient compensation to make his position as good as it

would have been had he not entered into the transaction at all.’” United Sec. Corp. v. Franklin,

180 A.2d 505, 510 (D.C. 1962) (quoting 5 WILLISTON ON CONTRACTS § 4264).

        Here, Plaintiffs claim only a tortious harm, seeking damages stemming from Defendants’

misrepresentations, see Compl., ¶ 97; id. at Prayer for Relief, rather than the undoing of the APA

itself. Although the parties appear to agree on this point – and also that the laws of the District

of Columbia “govern[] the tort claim,” see Opp. at 10 n.2; Mot. at 12 – Plaintiffs muddy the

waters by arguing that, because the contracting parties chose Delaware law to govern

interpretation of the “[APA] and the rights and obligations of the parties [t]hereunder,” APA at



                                                  7
18, ¶ 7.18, Delaware law must also control “issues arising under the contract” that are related to

Plaintiffs’ fraud claim. See Opp. at 10 n.2.

        They are wrong. Because Plaintiffs’ claim sounds in tort, it is not, by its nature, an

“issue[] arising under the contract.” Id. Instead, the tort claim is “collateral to the terms of the

contract itself,” Longview Dev. LP v. Great Atl. & Pac. Tea Co., Inc., No. 02-7422, 2004 WL

1622032, at *3 (E.D. Pa. July 20, 2004), and thus Delaware law has no bearing on the question

of whether Plaintiffs have stated a claim for the tort of fraud in the inducement. In sum, District

of Columbia law governs this count in all respects.

                2. Merits

        On to the pith. To state a claim for common-law fraud under D.C. law, Plaintiffs must

allege: “(1) a false representation (2) made in reference to a material fact, (3) with knowledge of

its falsity, (4) with the intent to deceive, and (5) an action that is taken in reliance upon the

representation.” Hercules & Co., Ltd. v. Shama Restaurant Corp., 613 A.2d 916, 923 (D.C.

1992). For commercial entities dealing with each other at arm’s length, any such reliance must

also be (6) “objectively reasonable.” Id. at 933. Finally, Plaintiffs must show (7) that they “have

suffered some injury as a consequence of [their] reliance on the misrepresentation.” Chedick v.

Nash, 151 F.3d 1077, 1081 (D.C. Cir. 1998) (citing Dresser v. Sunderland Apartments Tenants

Ass’n, Inc., 465 A.2d 835, 839 (D.C. 1983)).

        At the heart of Plaintiffs’ fraud claim is a set of false promises made by agents of McBee

LLC, which purportedly lured Pernice into signing away Gibraltar. But because fraud is a rather

protean species of liability, the content and timing of those promises, along with their

relationship to the contract at issue, are critical in determining whether Plaintiffs have stated an

actionable claim in tort. More specifically, the Court must decide whether Plaintiffs can



                                                   8
demonstrate that any of the promises were material misrepresentations and that their reliance on

those statements was objectively reasonable. Under the facts as alleged, they can show neither

as a matter of law.

         Plaintiffs highlight seven false promises that collectively induced Pernice’s signature. 2

Some consist of general commitments regarding how McBee LLC would handle the acquisition,

including that it would: (1) create a “combined corporate culture”; (2) continue to market

Gibraltar’s brand and market the company as “McBee Strategic-Gibraltar”; and (3) establish an

equity fund for making strategic investments. See Compl., ¶ 92. Others are more specific to

Pernice, such as guarantees that he would be entitled to: (4) a minimum of 18 months’ worth of

payments; (5) a leadership role in the new company; and (6) an equity interest in the new

company within six to nine months. See id. Finally, Plaintiffs allege that (7) McBee stated that

he “never intended to sell” the firm, see id. (emphasis added), albeit without asserting that he

ever made a firm commitment to that effect.

         The promises share two complementary features that bear on the elements of materiality

and objective reasonableness. See Hercules, 613 A.2d at 923, 933. First, all were made in

negotiations or discussions – e.g., in the Letter of Intent – conducted before the parties executed

the purchase agreement. See Compl., ¶ 92. Second, not one of these terms ultimately made its

way into the APA. As a result, they fall squarely within the ambit of the APA’s integration

clause, which states, “This Agreement and the documents and instruments and other agreements

specifically referred to herein . . . constitute the entire agreement among the parties . . . and




2
 Plaintiffs actually allege eight statements, not seven, see Compl., ¶ 92, but the last of those (subparagraph “h”)
cannot form the basis of a fraud claim: Plaintiffs merely describe certain actions taken by McBee after the
combination without alleging that either a false statement or promise was made.

                                                           9
supersede all prior agreements and understandings, both written and oral . . . .” APA at 17,

¶ 7.13 (emphasis added). Plaintiffs are thus out of luck.

       “When a written contract contains an [integration] clause, any alleged prior

representations that a party will or will not do something in the future that are not included in

that written contract generally do not support a fraud-in-the-inducement claim.” Drake v.

McNair, 993 A.2d 607, 624 (D.C. 2010). The reason is simple: if the party claiming fraud

“‘considered th[o]se assurances important enough to induce it to agree to the contract . . . [,] it

could have conditioned its agreement on the explicit inclusion of those representations in the

contract.’” Id. at 623 (quoting Hercules, 613 A.2d at 932). For the same reason, a party’s

reliance on such assurances in the face of an integration clause is also objectively unreasonable.

Hercules, 613 A.2d at 934 (“[T]he reasons for holding that [plaintiff’s] complaint was deficient

as to the element of materiality apply equally to the question whether [its] reliance was

reasonable.”).

       Under nearly identical circumstances, the court in In re U.S. Office Products Co.

Securities Litigation, 251 F. Supp. 2d 77 (D.D.C. 2003), dismissed a fraudulent-inducement

claim by former owners of a corporation who sold their shares as part of a merger agreement.

The plaintiffs alleged that they were induced to sign the agreement in reliance on the defendants’

false promises (concerning the acquiring corporation’s future behavior) made during the

negotiations leading up to the final sales contract. See id. at 85. But none of those promises was

included in the final contract. See id. at 101. Because the parties were negotiating at arm’s

length, and thus were perfectly capable of “condition[ing] their contractual agreement on the

inclusion of representations that each side deems material,” any promises made prior to the

contract – but ultimately excluded from its written terms – could not plausibly be statements of



                                                 10
“material” importance to the parties. Id. at 102. Nor, for that matter, did the parties act

reasonably in relying on them. See id.

       Although it is true that “an integration clause does not provide a blanket exemption to

claims of fraud in the inducement,” McNair, 993 A.2d at 624 (emphasis added), the exceptions

to the general rule detailed above are inapplicable here. For example, where certain contract

terms should have been included in the agreement but were “omitted from the contract by fraud,”

an integration clause is not a complete bar to suit. Hercules, 613 A.2d at 929. Here, however,

the Complaint is devoid of any allegation that Defendants induced Pernice’s signature by

misrepresenting the agreement or concealing its key terms. And the Court is unwilling to

indulge Plaintiffs’ belated and conclusory assertion, made only in its Opposition, that the

Defendants “fraudulently omitted” certain unspecified promises by “surreptitiously changing the

agreement.” Opp. at 17; see Arbitraje Casa de Cambio, S.A. de C.V. v. U.S. Postal Serv., 297 F.

Supp. 2d 165, 170 (D.D.C. 2003) (“It is axiomatic that a complaint may not be amended by the

briefs in opposition to a motion to dismiss.”) (citations and quotation marks omitted).

       Finally, the Court rejects Plaintiffs’ farfetched argument that neither Pernice nor Modena

is a “sophisticated business entity,” thus rendering the cases requiring “objectively reasonable”

reliance inapposite. The argument is as inaccurate as it is immaterial. The D.C. Court of

Appeals in Hercules did not hold that only “sophisticated business institutions,” as a subset of all

corporate entities generally, were held to the higher standard of objective reasonableness, but

instead used the phrase as a proxy for “commercial dealings” in which parties bargain “at arm’s

length.” 613 A.2d at 933. The Complaint identifies nothing to suggest that the deal was

anything but an arm’s-length commercial transaction between capable agents of unrelated

corporate entities. See, e.g., Pepper v. Litton, 308 U.S. 295, 307 & n.14 (1939); PRINCIPLES OF



                                                 11
CORP. GOVERNANCE, Pt. V Introductory Note (1994) (describing duties and obligations owed a

corporation when an influencer or decisionmaker in a given corporate transaction acts “with an

interest in [the] matter”). At all stages of the negotiation, moreover, the parties were assisted by

counsel, see Compl., ¶¶ 42–43, 49, and Plaintiffs repeatedly emphasized the business acumen

possessed by both Pernice and Modena. See id., ¶¶ 9, 11.

         As the Court will dismiss Plaintiffs’ fraud claim on these grounds, it need not address

Defendants’ separate argument that Plaintiffs suffered no injury from the fraud on account of

McBee LLC’s purchase of Gibraltar’s claims in Bankruptcy.

         B. Count IV – Conspiracy

         Seeking to saddle his erstwhile partner with liability for fraud, Pernice also alleged that

Bovim committed civil conspiracy by working with McBee and his firm to “perpetrate the fraud

on Pernice and Modena . . . .” Compl., ¶ 100. But “D.C. law does not provide an independent

cause of action for [civil] conspiracy; instead, ‘it is a means for establishing vicarious liability for

[an] underlying tort’” – here, Plaintiffs’ fraud claim. Kenley v. D.C., --- F. Supp. 3d ----, 2015

WL 1138274, at *11 (D.D.C. Mar. 13, 2015) (quoting Exec. Sandwich Shoppe, Inc. v. Carr

Realty Corp., 749 A.2d 724, 738 (D.C. 2000)). Because Pernice does not dispute that if the fraud

claim fails, so does his action for conspiracy, see Opp. at 19, the Court need not belabor the

point.

         C. Count V – Unjust Enrichment

         The final count challenged here is Pernice’s claim for unjust enrichment against all three

Defendants. He contends that Defendants were unjustly enriched because McBee LLC retained

the assets it had acquired from Gibraltar under the APA. See Compl., ¶ 103. Despite the fact

that Pernice was not himself a party to that transaction, he nevertheless asserts that the benefit



                                                  12
McBee LLC received under the APA “in justice and equity belong to Pernice.” Id., ¶ 104

(emphasis added). Under D.C. law, which governs such a claim, “[u]njust enrichment occurs

when: (1) the plaintiff conferred a benefit on the defendant; (2) the defendant retains the benefit;

and (3) under the circumstances, the defendant’s retention of the benefit is unjust.” Peart v. D.C.

Hous. Auth., 972 A.2d 810, 813 (D.C. 2009) (citation and quotation marks omitted). “Unjust

enrichment is a common law equitable claim, available only where there is no adequate remedy

at law.” In re G-Fees Antitrust Litig., 584 F. Supp. 2d 26, 46 (D.D.C. 2008).

       Pernice’s unjust-enrichment claim faces three hurdles, which, taken together, prove an

insuperable barrier. First, although it appears that the corporate Defendant, McBee LLC, did

receive a benefit from Gibraltar under the APA, Pernice has not pled any facts suggesting that

the individual Defendants retained a benefit from the deal. Second, and more fundamentally,

Pernice fails to allege that whatever benefit was conferred by the APA belonged to him, rather

than Gibraltar. Finally, even if the Court reads the Complaint to allege unjust enrichment by

McBee LLC based on its retention of benefits conferred under the IC Agreement, Pernice is not

the proper party to bring that claim either.

       As an initial matter, Pernice has failed to allege that any benefit (regardless of where it

came from) was conferred on the two individual Defendants, McBee and Bovim. As noted, the

challenged transaction consists of a benefit belonging to Gibraltar – its assets purportedly

“valued at $10–12 million” as “a successful going concern,” Compl., ¶ 103 – which flowed to

McBee LLC in exchange for $100,000. Pernice has not alleged that any of that benefit flowed to

McBee or Bovim, and, given the sparseness of his allegations, the Court is unwilling to invent

inferences that the individual Defendants invariably benefited from the transaction by virtue of

their roles as either an equity owner or an employee of McBee LLC. See, e.g., Sabre Int’l Sec. v.



                                                 13
Torres Advanced Enter. Solutions, LLC, 60 F. Supp. 3d 36, 41–42 (D.D.C. 2014) (dismissing

unjust-enrichment claim against individual defendants who worked for corporation where

plaintiff failed to allege that “it conferred any benefit on the Individual Defendants directly” but

only that it “conferred a benefit on [the defendant corporation], who subsequently paid salaries

and bonuses to the Individual Defendants”); U.S. ex rel. Purcell v. MWI Corp., 520 F. Supp. 2d

158, 173 (D.D.C. 2007) (“[P]laintiff may only rely on an inference that a stockholder by means

of his corporate equity received a benefit if the plaintiff shows that the stockholder abused the

corporate form . . . .”). The claim thus cannot proceed against the individual Defendants.

       Nor has Pernice pled facts showing that he, in his individual capacity, conferred any

benefit on any of the Defendants, or that any benefit they received “in justice and equity

belong[ed] to” Pernice. See 4934, Inc. v. D.C. Dep’t of Emp’t Servs., 605 A.2d 50, 55 (D.C.

1992). “[T]o recover on a [theory of unjust enrichment] . . . the plaintiff must show that [the

defendant] was unjustly enriched at his expense . . . .” News World Commc’ns, Inc. v.

Thompsen, 878 A.2d 1218, 1222 (D.C. 2005) (citation and quotation marks omitted) (emphasis

added); see also 26 R. Lord, WILLISTON ON CONTRACTS § 68:1 (4th ed. 2003) (“[C]ourts have

generally allowed quasi-contractual recovery for services rendered when a party confers a

benefit” on another party.) (emphasis added). Pernice alleges only that Gibraltar conferred a

benefit on Defendants. The Delaware Limited Liability Company Act, under which Gibraltar

was organized, moreover, provides that “[a] member has no interest in specific [LLC] property.”

Del. Code Ann. tit. 6, § 18-701. Instead, a member’s interest comprises “a member’s share of

the profits and losses of [an LLC] and a member’s right to receive distributions of the [LLC’s]

assets.” Id., § 18-101(8). To the extent Pernice once possessed a derivative interest in




                                                 14
Gibraltar’s assets, that interest has since been extinguished by its bankruptcy. See In re Gibraltar

Assocs., LLC, No. 13-14937, ECF No. 49, at 1–2.

       Pernice also appears to allege that McBee LLC unjustly retained benefits conferred by

virtue of the IC Agreement between it and Modena. See Compl., ¶ 103 (contending that “other

consideration [was] contemplated by the parties,” such as “future revenues to Pernice and

Modena, long term growth potential, and equity in the combined company”). But once again,

Pernice fails to allege that he conferred any benefit on McBee LLC. The Complaint makes clear

that the exchange was governed by an express agreement between Modena and McBee LLC, the

breach of which is alleged in Counts I and II of the Complaint. While Modena might have

pleaded unjust enrichment as an alternative to breach of contract, see ABA, Inc. v. D.C., 40 F.

Supp. 3d 153, 172 & n.24 (D.D.C. 2014) (noting that “a plaintiff may plead unjust enrichment in

the alternative” to a breach-of-contract theory unless the plaintiff fails to “challenge the validity

or enforceability of the[] contract[]”), it has not done so here. Pernice, in sum, is simply not the

proper party to bring suit on that basis. See Fladeboe v. Am. Isuzu Motors Inc., 150 Cal. App.

4th 42, 55 (2007), as modified (Apr. 24, 2007) (even where plaintiff is sole shareholder of a

corporation, it lacks “standing to assert corporate claims, except in a derivative action”); Compl.,

¶ 3 (noting that Modena “is a California S-Corporation”).

                                          *       *       *

       Finally, the Court will deny Plaintiffs’ request in their Opposition for leave to amend the

Complaint. See Opp. at 28–29 (“[I]f the Court grants [Defendants’] motion[s] in whole or in

part, any claims should be dismissed without prejudice, and Plaintiffs should be granted leave to

amend its Complaint.”) (citing Fed. R. Civ. P. 15(a)). “[A] bare request in an opposition to a

motion to dismiss – without any indication of the particular grounds on which amendment is



                                                  15
sought – does not constitute a motion within the contemplation of Rule 15(a).” Rollins v.

Wackenhut Servs., Inc., 703 F.3d 122, 130 (D.C. Cir. 2012) (citation and internal quotation

marks omitted) (brackets in original).

IV.    Conclusion

       For the foregoing reasons, the Court will issue a contemporaneous Order granting

Defendants’ Motion to Dismiss.


                                                           /s/ James E. Boasberg
                                                           JAMES E. BOASBERG
                                                           United States District Judge
       Date: August 26, 2015




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