UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JOHN W. BOYD, JR.,
Plaintiff,

Civil Case No. 14—00889 (RJL)

FILED
resuszms

Clerk, U.S. District & Bankruptcy
Courts tor the Districth Columbia

V.

KILPATRICK TOWNSEND
& STOCKTON, LLP et al.,

Defendants.

EVVVVVVVVVV

MEMORANDUM ORDER

(February§_, 2015) [Dkt. ##7, 11, 13]

Before the Court are three motions. The ﬁrst two motions, ﬁled by defendants
Dennis Gingold (“defendant Gingold") and Kilpatrick. Townsend & Stockton LLP
(“defendant Kilpatrick”), request dismissal under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim and Rule 12(b)(1) for lack of standing. See [Dkts #7,
1 1]. The third motion, ﬁled by plaintiff John W. Boyd Jr. (“Boyd” or “plaintiff”), argues
that the Court lacks subject matter jurisdiction and requests that this action be remanded
to the DC. Superior Court. See [Dkt #13]. Having reviewed the pleadings, supporting
documents, and relevant case law, the Court GRANTS plaintiff s motion for remand and

DENIES defendants’ motions to dismiss as moot.

BACKGROUND
Plaintiff Boyd, president of the National Black Farmers Association, fought for

more than two decades to remedy discrimination against minority farmers. See Compl.

W 1, 10 [Dkt #1]. The facts of this particular case stem from his lobbying efforts on

1

behalf of Native American class members in their discrimination suit against the federal
government, Cobell v. Salazar, Civil Action No. 1:96—cv-01285—TFH (D.D.C. Dec. 7,
2009) (“Cobell”). See Comp]. 1] 25. The class members in Cobell were represented by,
among others, defendants Gingold and Kilpatrick. Compl. W 12-14. In March 2010,
plaintiff was asked by John Loving, a government relationship advisor at defendant
Kilpatrick, to lobby in support of legislative funding for the Cobell settlement. Compl. W
25-26. Plaintiff agreed and continued his lobbying efforts. See Compl. j] 31. Later that
same month, the House of Representatives passed the Claims Resolution Act of 2010
(“CRA”), an appropriations bill that, if enacted, would provide settlement funds for
Cobell class members. Compl. ﬁ 30. In June 2010, plaintiff informed defendant Gingold
“that he expected to be paid for his efforts to secure funding.” Compl. f 43. Defendant
Gingold promised that “Mr. Boyd would be compensated,” but did not specify “how
much and when” plaintiff would be paid. Compl. 1] 43. The CRA became law in
December 2010. Compl. f 4.

On May 6, 2014, plaintiff, a Virginia resident, ﬁled suit against defendants in the
DC. Superior Court alleging unjust enrichment, breach ofimplied—in—fact contract, and
quantum meruz‘t. See generally Compl. On May 27, 2014, defendant Gingold, a

Maryland resident, removed the action to this Court, claiming that defendant Kilpatrick, a
Virginia resident, had been fraudulently joined to destroy diversity jurisdiction. See

generally Notice of Removal [Dkt. #1]

ANALYSIS

Federal courts are courts of limited jurisdiction and the law presumes that “a cause
lies outside” the Court’s jurisdiction unless otherwise established. Kokkonen v. Guardian
Life Ins. Co. 0f/1m., 51 1 US 375, 377 (1994). It is a plainti 11‘s prerogative, as master of
his case, to commence his action in state court. This right, however, is not inviolate, and
a defendant may remove to federal court any action, including a diversity action, that
might have originally been brought in federal court. 28 U.S.C. § 1441(a); see Busby 12.
Capital One, NA, 932 F. Supp. 2d 114, 126—27 (D.D.C. 2013). Diversityjurisdiction
exists when the amount in controversy exceeds $75,000 per plaintiff, exclusive of interest
and costs, and the controversy arises between citizens of different states. 28 U.S.C. §
1332(a). If diversity jurisdiction is incomplete, the federal court must remand the action
to state court. See 28 U.S.C. § 1447(C).

Here, it is undisputed that both plaintiff and defendant Kilpatrick are citizens of
Virginia, and that diversity is, accordingly, incomplete.I The defendants argue, however,
that removal on diversity grounds was proper because defendant Kilpatrick was
fraudulently joined to defeat federal jurisdiction. See generally Notice of Removal.

J oinder is fraudulent where either: (1) the plaintiff fraudulently pled jurisdictional facts to

bring the defendant into state court or (2) there is no possibility that the plaintiff can

 

1 Citizenship for limited liability partnerships like defendant Kilpatrick is based upon the
citizenship of each of its partner members. See C. T. Carden v. Arkoma Assoc, 494 US. 185,
189 (1990) (holding that limited partnerships do not follow the citizenship rules established for
corporations); Johnson-Brown v. 2200 M St. LLC, 257 F. Supp. 2d 175, 178 (D.D.C. 2003)
(partnerships carry the citizenship of each of their members). Because at least one ofdefendant
Kilpatrick’s partners resides in Virginia, defendant Kilpatrick, like Plaintiff Boyd, has Virginia
citizenship.

establish a cause of action against the resident defendant. In re T obacco/th ’1 Heath
Care Costs Ling, 100 F. Supp. 2d 31, 39 (D.D.C. 2000). In cases alleging fraudulent

joindcr, a federal court may assume jurisdiction in the ﬁrst instance to determine whether

joinder was proper. Hein Pbam v. Bank ofNew York, 856 F. Supp. 2d 804, 808 (ED. Va.
2010) (citing cases).

Defendants claiming fraudulent joinder bear a “heavy” burden. Walter E.
Campbell Co. v. Hartford Fin. Servs. Grp. Inc, 959 F. Supp. 2d 166, 170 (D.D.C. 2013)
(citation and internal quotation marks omitted). If the Court concludes, after construing
all of the facts in a plaintiffs favor, that “there is even a possibility that a state court
would ﬁnd a cause of action stated against [the instate defendant] on the facts alleged by
the plaintiff,” diversity is incomplete and the case must be remanded. Id. (emphasis
added) (quoting 3., Inc. v. Miller Brewing Co, 663 F.2d 545, 550 (5th Cir. 1981)). As
such, the District Court’s role in this context is a limited one. The Court must not delve
“into the legal and factual thicket” of a merits analysis, but must instead confine its
inquiry to whether, on the basis of the claims pled, the plaintiff has shown even a slight
possibility of relief. Brown v. Brown & Williamson Tobacco Corp, 26 F. Supp. 2d 74,
77 (D.D.C. 1998) (citation and internal quotation marks omitted). Unless a plaintiff’s

claims are “wholly nonsensical, remand is the appropriate course of action.” Id. (quoting

Pulse One Comm ’cns, Inc. v. BellAtlantic Mobile Sys, Inc., 760 F. Supp. 82, 84 (D. Md.

1991)).

Defendants do not argue that plaintiff fraudulently pled jurisdictional facts. This

Court therefore confines its inquiry to whether plaintiff has shown a possibility of relief

4

as to the claims pled.2 To prove unjust enrichment under District of Columbia law, a
plaintiff must show that he conferred a beneﬁt that the defendant unjustly retained. Pearl
v. District ofColumbia Housing Audi, 972 A.2d 810, 813 (DC. 2009). A person confers
a beneﬁt if he “performs services beneﬁcial to or at the request of the other.” Bregman v.
Perles, 747 F.3d 873, 878 (DC. Cir. 2014) (quoting Restatement (First) of Restitution § 1
(1937), cmt. b). Retention of the beneﬁt is unjust when it ﬂows from “a wrongful act
giving rise to a duty of restitution.” News World Commc ’ns, Inc. v. Thompsen, 878 A.2d
1218, 1225 (DC. 2005) (citation and internal quotation marks omitted). Plaintiff here
alleges that, at defendant Kilpatrick’s urging, he expended time, money, and resources to

help the Cobell litigation team recoup attorneys’ fees. See Compl. W 26-28. Regardless
of whether plaintiffs efforts were crucial to the CRA’s enactment, his extensive lobbying

efforts to “move the ball forward” on the CRA legislation conferred a tangible beneﬁt on

2 Defendant Kilpatrick argues that the doctrine of defensive collateral estoppel precludes
plaintiffs action altogether. See Kilpatrick Opp’n at 11 [Dkt #27]. Defendant Kilpatrick asserts
that this Court’s decision in a related case brought by plaintiff, Boyd v. Farrin, 958 F. Supp. 2d
232 (D.D.C. 2013) (“Boyd 1’ ’) held that plaintiff “has no legally protected interest in settlement

proceeds authorized by the CRA.” Kilpatrick Opp’n at l 1. This misstates the Court’s holding in
Boyd 1. This Court ruled in Boyd 1 that plaintiff had no legally protected interest in either
plaintiff 'or attorneys ’ fees obtained directly from the settlement, not that he lacked any rights to
payment whatsoever. 958 F. Supp. 2d at 239. Defendant Kilpatrick’s alternate theory, that
defensive collateral estoppel bars plaintiff from asserting breach of contract and quantum meruil
claims arising from different circumstances and involving entirely separate defendants, is
similarly meritless. Although defensive collateral estoppel “allows defendants to prevent a
plaintiff from asserting a claim that the plaintiff has previously litigated and lost against other
defendant,” Mead v. Lindlaw, 839 F. Supp. 2d 66, 72 (D.D.C. 2012) (citation and internal
quotation marks omitted), it is equally true that “preclusion in the second case must not work a
basic unfairness to the party bound by the ﬁrst determination,” Marlin v. Dep ’t of Justice, 488
F.3d 446, 454 (DC. Cir. 2007) (citation and internal quotation marks omitted). To invoke the
doctrine of defensive collateral estoppel in this case, where the outcome depends on the
existence of nonexistence of an agreement unique to these parties, would be an extreme
application ofjudicial economy indeed.

defendant Kilpatrick. See Bregman, 747 F.3d at 878 (ﬁnding unjust enrichment
regardless of whether plaintiffs “labors got [defendants] across the goal line”). Plaintiff
further alleges that, in light of the effort he expended at defendants“ behest, see Compl.
W 27-28, defendant Kilpatrick’s refusal to pay him is unjust, see id. ii 101. Plaintiff has
therefore stated a cause of action under D.C. law that is not wholly unreasonable.3 The
Court’s inquiry ends there. Plaintiff s likelihood of success is not “terrain upon which a
court uncertain of its jurisdiction should tread” and is properly left to the judgment of the
DC. Superior Court on remand. See Brown, 26 F. Supp. 2d at 77.

Plaintiff has likewise shown a possibility of relief as to his alternate claims: breach
of implied-in-fact contract and quantum meruz’t. Under District of Columbia law, an
implied-in-fact contract is “a true contract, containing all necessary elements of a binding

agreement” that “is inferred from the conduct of the parties in the milieu in which they

dealt.” Steuart Inv. CO. v. Meyer Grp. Ltd, 61 A.3d 1227, 1233 (DC. 2013) (quoting
Vereen v. Clayborne, 623 A.2d 1190, l 192 (DC. 1993)). Although the terms ofthe

agreement need not be “fixed with complete and perfect certainty,” they must reﬂect, at

3 Nor are plaintiffs claims time barred. Unjust enrichment is governed by a three—year statute of
limitations, which runs from the date plaintiff“has been made aware that the [defendant] is
refusing to perform.” LoPiccolo v. Am. Univ, 840 F. Supp. 2d 71, 78 (D.D.C. 2012). Although
defendant Kilpatrick claims that this clock has run because plaintiff was made aware in June
2010 that defendants were “refusing to perform,” see Kilpatrick Opp’n at 19, this argument
misconstrues plaintiffs complaint. Plaintiff states that in June 2010, he was told by defendant
Gingold that he “would be compensated,” but not “how much and when.” See Compl. 11 43.
Accepting this allegation as true, this Court finds that defendant Gingold did not repudiate any
duty to compensate plaintiff at that point. Nor will this Court use a “last—rendition—of-service”
test—which has not been formally adopted by the District of Columbia—to assess the timeliness
of plaintiffs claims. See Bregmcm, 747 F.3d at 878 n.4 (“The District of Columbia Court of

Appeals has not adopted the last rendition of services test”).

base, a quantum of mutual assent. Rosenthal v. Nal’l Produce C0., 573 A.2d 365, 370
(DC. 1990). To recover in quantum meruz‘t, a plaintiff must show that: (l) valuable
services were rendered; (2) for the person sought to be charged; (3) the services were
accepted, used, and enjoyed by the person sought to be charged; (4) under circumstances
that reasonably notiﬁed the person sought to be charged that the person rendering
services expected to be paid. New Economy Capital, LLC, v. New Markets Capital Grp.,
881 A.2d 1087, 1095 (DC. 2005) (quoting FredEzra Co. v. Pedas, 682 A.2d 173, 176
(DC. 1996)).

Plaintiff has, as an initial matter, stated a cause of action for breach of implied-in-
fact contract. 4 Defendant Kilpatrick asked plaintiff for assistance in procuring funding
for the Cobell settlement, a task that plaintiff readily engaged in until the CRA’s
enactment in December 2010. See Compl. W 26-28, 30, 39. Plaintiff’s allegations,
which this Court must accept as true, evidence a mutual understanding with defendant
Kilpatrick that he would lobby Congress until the enactment of suitable appropriations
legislation. Defendant Kilpatrick’s failure to provide quid pro quo for his services
constitutes breach of this agreement. Plaintiff has therefore stated a cause of action
against defendant Kilpatrick that is neither unreasonable nor “wholly nonsensical.”

Whether the contours of this agreement are sufﬁciently deﬁnite for plaintiff to prevail is

beyond the scope of this Court’s inquiry.

4 For the same reasons discussed in note 3, supra, plaintiffs breach of implied-in—fact contract
and quantum meruit claims are not time barred.

The same is true of plaintiff“ s quantum meruil claim. Plaintiff rendered valuable
lobbying services, the fruits of which defendant Kilpatrick “accepted and enjoyed.”
Moreover, by alleging that he informed defendant Gingold, who, routinely worked from
defendant Kilpatrick’s ofﬁce during the pendency of the Cobell action, of his expectation
for payment, plaintiffhas pled “circumstances that reasonably notified” defendant
Kilpatrick of his expectation. See Compl. W 14, 43. Because plaintiff has advanced a
cognizable claim, this Court ventures no further into the thickets of a merits analysis. It
is the province of the DC. Superior Court to determine whether plaintiff’s allegations

actually do have merit.

Based on the forgoing. the Court concludes that defendant Kilpatrick was not
fraudulently joined and that the DC. Superior Court is the proper forum for this action.
Accordingly, it is hereby

ORDERED that plaintiffs Motion to Remand [#13] is GRANTED and it is

further

ORDERED that defendants’ Motions to Dismiss [#7, 11] are DENIED as moot.

SO ORDERED.

  

l

RICHARD . 7
United States District Judge

 

