                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


   PATTON BOGGS, LLP,

                          Plaintiff,

                         v.                                   Civil Action 10-01975 (HHK)

   CHEVRON CORPORATION,

                          Defendant.



                          MEMORANDUM OPINION AND ORDER

       On April 19, 2011, the Court dismissed this action, ruling that issuing a declaratory

judgment regarding plaintiff Patton Boggs, LLP’s ethical obligations in various other federal

proceedings would be improper, and that Patton Boggs could not amend its complaint to add tort

claims against defendant Chevron and its counsel, Gibson, Dunn & Crutcher, LLP. See Patton

Boggs, LLP v. Chevron Corp., 2011 WL 1474866 (D.D.C. Apr. 19, 2011). Before the Court is

Patton Boggs’s motion for reconsideration [#37], which argues that the Court erred in several

respects and asks the Court to reinstate this action and allow Patton Boggs to amend its

complaint to add new tort claims. Upon consideration of the motion, the opposition thereto, and

the record of this case, the Court concludes that the motion must be denied.


                                        I. BACKGROUND

       In the interests of brevity, the Court will not retread all of the events that gave rise to this

action, which are summarized in the Court’s prior opinion and elsewhere. See Patton Boggs,

2011 WL 1474866, at *1–2; Chevron Corp. v. Steven Donziger, 2011 WL 778052, at *3–25
(S.D.N.Y. Mar. 7, 2011) (chronicling the underlying environmental dispute and litigation). In

brief, Patton Boggs represents numerous parties in Ecuador (“the Lago Agrio plaintiffs”) who are

engaged in litigation with Chevron, both in Ecuador and in the United States. Patton Boggs

owns the Breaux Lott Leadership Group, a lobbying organization that previously worked for

Chevron on related issues. Patton Boggs filed this action in November 2010, seeking a

declaratory judgment that its ownership of the Breaux Lott Group did not create a conflict of

interest that would prevent it from representing parties adverse to Chevron. Chevron moved to

dismiss Patton Boggs’s claims on multiple grounds. Patton Boggs responded by moving to strike

Chevron’s motion to dismiss and seeking leave to amend its complaint to add claims of tortious

interference against Chevron and Gibson Dunn.

          On April 19, 2011, the Court issued a memorandum opinion and a judgment dismissing

the case in its entirety. The Court first denied Patton Boggs’s motion for leave to amend its

complaint, explaining that because Patton Boggs did not allege any facts suggesting that Chevron

and Gibson Dunn’s conduct had caused an actual breach of Patton Boggs’s contract with the

Ecuadorian plaintiffs, it had failed to state a claim of tortious interference under District of

Columbia law. See Patton Boggs, 2011 WL 1474866, at *2–4. The Court assumed that District

law applied because both parties did so, and “courts need not address choice of law questions sua

sponte.” In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475, 1495 (D.C. Cir.

1991).1



          1
                The Court also rejected a claim for tortious interference with an attorney-client
relationship (finding no indication that such a cause of action exists under District law) and a
civil conspiracy claim (which cannot lie absent a viable underlying tort claim). See Patton
Boggs, 2011 WL 1474866, at *4.

                                                   2
       The Court then granted Chevron’s motion to dismiss Patton Boggs’s declaratory

judgment claim.2 The Court concluded that Patton Boggs’s requested remedy — a declaratory

judgment that “the Breaux Lott Leadership Group’s prior non-legal work for Chevron does not

provide a basis for disqualifying Patton Boggs from representing the Ecuadorian Plaintiffs,”

Compl. at 10 (prayer for relief) — went well beyond any justiciable controversy created by

Chevron’s alleged threat to seek Patton Boggs’s disqualification from the actions that Chevron

had initiated under 28 U.S.C. § 1782 (which authorizes district courts to issue orders permitting

discovery for use in foreign proceedings). See Patton Boggs, 2011 WL 1474866, at *5–6.

Further, the Court concluded that, insofar as the action was ripe for adjudication, abstention

under the Declaratory Judgment Act was appropriate, because the question of Patton Boggs’s

ability to appear in Chevron’s various collateral proceedings was one better settled by the courts

presiding over those cases. See Patton Boggs, 2011 WL 1474866, at *7. The Court noted that

for it “to inform all other federal courts that Patton Boggs is qualified to represent the Lago Agrio

plaintiffs before those courts would be incredibly intrusive.” Id.

       On April 27, 2011, Patton Boggs moved for reconsideration of the Court’s decision to

dismiss the case, and sought leave to amend its complaint to add new claims. Simultaneously, it

filed a new action in this Court, apparently presenting claims identical to those that it seeks

permission to reinstate or add here. See Patton Boggs, LLP v. Chevron Corp., No. 11-0799

(D.D.C. filed Apr. 27, 2011).




       2
               The Court denied Patton Boggs’s motion to strike Chevron’s motion to dismiss
because it found no material therein sufficiently prejudicial or scandalous to warrant striking the
motion. See Patton Boggs, 2011 WL 1474866, at *4–5.

                                                  3
                                    II. LEGAL STANDARD

       Patton Boggs suggests that the Court treat its motion for reconsideration as being made

under Federal Rule of Civil Procedure 60(b), which allows the Court to “relieve a party . . . from

a final judgment, order, or proceeding” for certain reasons. FED . R. CIV . P. 60(b). Patton Boggs

acknowledges, however, that the Court might conclude that Rule 59(e), which allows a party to

file a motion “to alter or amend a judgment” within 28 days thereof, FED . R. CIV . P. 59(e),

supplies the appropriate standard. See Pl.’s Mem. in Supp. of Mot. for Recons. (“Pl.’s Mem.”) at

1. Because Patton Boggs’s motion for reconsideration “calls into question the correctness of [the

Court’s] judgment” and was filed within Rule 59(e)’s time limit, the Court construes it as being

made pursuant to that provision. See MLC Automotive, LLC v. Town of Southern Pines, 532

F.3d 269, 277 (4th Cir. 2008); Johnson v. Penn Camera Exch., 583 F. Supp. 2d 81, 84–85

(D.D.C. 2008); Turner v. Dep’t of Interior, 2007 WL 2982722, at *1 (D.D.C. Oct. 12, 2007)

(citing Derrington-Bey v. D.C. Dep’t of Corr., 39 F.3d 1224, 1225–27 (D.C. Cir. 1994)). Thus,

Patton Boggs’s motion “need not be granted unless the district court finds that there is an

intervening change of controlling law, the availability of new evidence, or the need to correct

clear error or manifest injustice.” Anyanwutaku v. Moore, 151 F.3d 1053, 1057 (D.C. Cir. 1998)

(quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam)) (internal

quotation marks omitted). Rule 59(e) “does not provide a vehicle for a party to undo its own

procedural failures, and it certainly does not allow a party to introduce new evidence or advance

arguments that could and should have been presented to the district court prior to the judgment.”

Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996); accord Carter v. Wash. Metro. Area

Transit Auth., 503 F.3d 143, 145 n.2 (D.C. Cir. 2007).


                                                 4
                                         III. ANALYSIS

A.     Abstention under the Declaratory Judgment Act

       Patton Boggs first contends that the Court erred by declining to issue a declaratory

judgment resolving its ethical obligations vis-à-vis Chevron and the Lago Agrio litigation. It

argues that the Court appeared to overlook two salient facts: first, that any court deciding whether

a conflict precludes Patton Boggs from appearing opposite Chevron would turn on a threshold

question of District of Columbia law, which this Court is ideally suited to resolve; and second,

that one of Chevron’s § 1782 actions is proceeding in this district. These arguments are

unpersuasive.

       In granting Chevron’s motion to dismiss, the Court explained that because the declaratory

judgment sought by Patton Boggs — that it could represent the Lago Agrio plaintiffs — was

without geographical or jurisdictional limitation, Patton Boggs was effectively asking the Court

“to decipher and apply the law of every jurisdiction where Chevron might seek Patton Boggs’s

disqualification.” See Patton Boggs, 2011 WL 1474866, at *6. In so concluding, the Court

rejected Patton Boggs’s argument that, because the Breaux Lott Group’s lobbying for Chevron

took place in the District, District law would govern any disqualification motion based on a

putative conflict caused by that lobbying activity. See id.

       Patton Boggs now contends that the Court erred by overlooking the “fact” that a court in

another jurisdiction, before applying its own ethical rules, would have to determine whether the

Breaux Lott Group’s lobbying services for Chevron were legal in nature, a question that, Patton

Boggs avers, is governed by District of Columbia law. See Pl.’s Mem. at 3. To begin with, this

argument — like Patton Boggs’s original contention that District law would govern any


                                                 5
disqualification motion based on the Breaux Lott Group’s lobbying — is wholly unsupported.

Indeed, this assertion appears directly contrary to the Court’s prior holding that “the propriety of

Patton Boggs’s participation in Chevron’s various § 1782 proceedings . . . is governed by the

respective rules of the jurisdictions where those cases are pending.” Patton Boggs, 2011 WL

1474866, at *6.3 But more importantly, this proposition — even if true — is simply irrelevant to

the Court’s bottom-line determination that it would overreach by adjudicating the propriety of

Patton Boggs’s appearance before other courts. Even if District law would “inform the

disqualification analysis” under other courts’ rules of conduct, Pl.’s Mem. at 4, those courts

remain better suited to undertake that analysis. Patton Boggs, 2011 WL 1474866, at *7.

       The same is true of Patton Boggs’s second point: that Judge Kollar-Kotelly of this district

is currently presiding over one of Chevron’s § 1782 actions, in which Patton Boggs has appeared

as counsel. See In re Application of Chevron Corp., Misc. No. 11-0030 (D.D.C. filed Jan. 21,

2011) (Kollar-Kotelly, J.). Judge Kollar-Kotelly, no less than a judge sitting in another judicial

district, is “perfectly capable of resolving Patton Boggs’s ethical dilemma.” Patton Boggs, 2011

WL 1474866, at *7. The fact that she sits in the same courthouse does not change the fact that

“creat[ing] an alternate forum for the subsidiary issue of considering the disqualification of [a



       3
                For example, in New York, where Chevron filed one of its § 1782 proceedings,
see In re Chevron Corp., 709 F. Supp. 2d 283 (S.D.N.Y. 2010), “a party seeking disqualification
of its adversary’s lawyer [on the basis of a prior-client conflict] must prove,” inter alia, “the
existence of a prior attorney-client relationship between the moving party and opposing counsel.”
Tekni-Plex, Inc. v. Meyner & Landis, 89 N.Y.2d 123, 131 (N.Y. 1996). Patton Boggs offers no
authority to support the dubious proposition that a New York federal court, applying New York’s
Rules of Professional Conduct, must answer this question under District law, but adjudicate the
remaining two disqualification elements — that the matters involved in both representations are
substantially related, and that the interests of the present client and former client are materially
adverse, id. — under New York law.

                                                  6
law firm] would be tantamount to the proverbial tail wagging the dog.” Id. (quoting Airgas, Inc.

v. Cravath, Swaine & Moore LLP, 2010 WL 624955, at *4 (E.D. Pa. Feb. 22, 2010)) (internal

quotation marks omitted) (second alteration in original). Nor, of course, could the presence of

one of Chevron’s collateral actions in this district justify a ruling by this Court on Patton Boggs’s

ability to appear in all of them.4 In short, Patton Boggs has failed to demonstrate that the Court’s

abstention under the Declaratory Judgement Act — which was, after all, discretionary, see Wilton

v. Seven Falls Co., 515 U.S. 277, 282 (1995) — was improper.

B.     Denial of Leave to Add Claims of Tortious Interference and Civil Conspiracy

       Patton Boggs next argues that the Court erred in denying Patton Boggs leave to amend its

complaint to add claims of tortious interference and civil conspiracy against Chevron and Gibson

Dunn. Patton Boggs asserts that, in holding that adding these claims would be futile because

they could not survive a motion to dismiss for failure to state a claim, the Court may have applied

the wrong jurisdiction’s law, and definitely applied the wrong theory of tortious interference.

The Court addresses each argument in turn.




       4
                Patton Boggs suggests that the Court may have wrongly assumed that Patton
Boggs has appeared in all of Chevron’s § 1782 actions, rather than just six. Pl.’s Mem. at 4 n.3.
This distinction is irrelevant because Patton Boggs’s requested declaratory judgment was not
limited to those actions in which it had already appeared. Patton Boggs requested, without
qualification, a declaration that “the Breaux Lott Leadership Group’s prior non-legal work for
Chevron does not provide a basis for disqualifying Patton Boggs from representing the
Ecuadorian Plaintiffs.” Compl. at 10 (prayer for relief) (emphasis added). As the Court has
already explained, this request by its terms reaches any and all litigation, in any forum, where
Patton Boggs might appear on behalf of the Lago Agrio plaintiffs. Patton Boggs, 2011 WL
1474866, at *6. And, as the Court made clear, that fact also poses constitutional ripeness
problems for Patton Boggs’s requested relief, see id., an issue that Patton Boggs’s motion for
reconsideration entirely fails to address.

                                                  7
       1.      Choice of Law

       Patton Boggs’s proposed amended complaint did not specify the body of law under which

Patton Boggs sought to bring its tortious interference and civil conspiracy claims.5 Chevron, in

opposing the addition of Patton Boggs’s tort claims, assumed that those claims would be

governed by District of Columbia law. See Def.’s Opp’n to Pl.’s Mot. for Leave to Amend [#22]

at 20–21. In its reply brief, Patton Boggs did the same. See Pl.’s Reply in Supp. of Pl.’s Mot. for

Leave to Amend [#23] at 17–19. In light of both parties’ unquestioning reliance on District law,

the Court concluded that it need not raise the choice-of-law issue sua sponte, and analyzed Patton

Boggs’s tort claims under District law. Patton Boggs, 2011 WL 1474866, at *2–4.

       Patton Boggs now suggests that, by “citing to law within the District of Columbia to

counter Chevron’s arguments,” it “did not intend to concede that District of Columbia law would

apply.” Pl.’s Mem. at 6. In fact, Patton Boggs now avers, New Jersey law “may well” govern,

because New Jersey is where Patton Boggs performs the services with which Chevron and

Gibson Dunn have allegedly interfered. But the time for this argument has passed. A motion for

reconsideration “is not an appropriate forum for . . . arguing matters that could have been heard

during the pendency of the previous motion.” Carter, 503 F.3d at 145 n.2 (quoting Caisse

Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996)) (internal

quotation marks omitted); see also Kattan ex rel. Thomas v. District of Columbia, 995 F.2d 274,

276 (D.C. Cir. 1993) (“[A] losing party may not use a Rule 59 motion to raise new issues that




       5
              Nor was it required to — “[c]omplaints ‘need not plead law or match facts to
every element of a legal theory.’” Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000)
(quoting Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998)).

                                                 8
could have been raised previously.”). Patton Boggs had ample opportunity to argue that New

Jersey law governed its tort claims; it did not. It may not do so now.6

       2.      The Applicable Theory of Tortious Interference

       Patton Boggs next contends that, even under District of Columbia law, the Court erred by

holding that Patton Boggs’s tortious interference claim was deficient because it failed to allege an

actual breach of Patton Boggs’s contract with the Lago Agrio plaintiffs. Pl.’s Mem. at 5. Patton

Boggs points out that the Court relied on a formulation of tortious interference that involves the

defendant inducing a third party to breach a contract with the plaintiff. See Patton Boggs, 2011

WL 1474866, at *3 (citing Murray v. Wells Fargo Home Mortg., 953 A.2d 308, 325–26 (D.C.

2008)). This formulation, employed by the District’s courts, stems from § 766 of the Second

Restatement of Torts. See Sorrells v. Garfinckel’s, Brooks Bros., Miller & Rhoads, Inc., 565

A.2d 285, 290 (D.C. 1989) (citing RESTATEMENT (SECOND ) OF TORTS § 766 (1979)). Patton

Boggs, however, avers that its complaint states a claim for relief under a different formulation of

tortious interference, as codified in § 766A of the Restatement:

       One who intentionally and improperly interferes with the performance of a contract
       . . . between [the plaintiff] and a third person, by preventing the [plaintiff] from
       performing the contract or causing his performance to be more expensive or
       burdensome, is subject to liability to the [plaintiff] for the pecuniary loss resulting to
       him.




       6
                 Turkmani v. Republic of Bolivia, 273 F. Supp. 2d 45 (D.D.C. 2002), is not to the
contrary. Although the Turkmani court exercised its discretion to address a choice-of-law issue
raised first in a motion for reconsideration, it acknowledged that it “would be justified in
denying” that portion of the motion because such motions are not vehicles for presenting theories
or arguments that could have been advanced earlier. Id. at 52.

                                                   9
RESTATEMENT (SECOND ) OF TORTS § 766A (emphasis added). Patton Boggs asserts that it has

stated a claim for relief under this formulation of tortious interference, which does not require an

actual breach of contract.7 Patton Boggs is incorrect.

        The first problem here is that Patton Boggs had ample opportunity to present this

argument in support of its motion for leave to amend, and failed to do so. In fact, Patton Boggs’s

own reply brief laid out the precise formulation of tortious interference that it now argues the

Court erred by employing. See Pl.’s Reply in Supp. of Mot. for Leave to Amend at 12 (“Under

D.C. law, tortious interference with contract has four elements: ‘(1) existence of a contract, (2)

knowledge of the contract, (3) intentional procurement of its breach by the defendant, and (4)

damages resulting from the breach.’” (quoting Sturdza v. United Arab Emirates, 281 F.3d 1287,

1305 (D.C. Cir. 2002)) (internal quotation marks omitted) (emphasis added)). Indeed, Patton

Boggs’s response to Chevron’s argument that allegations of breach were required was not to

assert the contrary, but rather to argue that it had alleged that Chevron and Gibson Dunn were

attempting to cause a breach, which was sufficient. At no time did Patton Boggs mention the

form of tortious interference contained in § 766A.

        Second, it is not wholly clear that § 766A’s cause of action is viable in the District.

DeKine v. District of Columbia, 422 A.2d 981 (D.C. 1980), the only case in which a D.C. court

has even cited § 766A, did not, as Patton Boggs contends, “adopt” that provision. See Pl.’s

Mem. at 6. The question before the DeKine court was when the plaintiffs’ cause of action


        7
               The Third Circuit recently explained the difference between the two causes of
action as follows: “§ 766 allows a plaintiff to recover if a third party fails entirely to perform . . . ,
while § 766A allows the plaintiff to recover if he himself was forced either to fail to perform
under a contract or to perform under more expensive or burdensome circumstances . . . .”
Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 834 (3d Cir. 2011).

                                                   10
accrued for the purposes of a statute requiring notice to the District’s Mayor of tort claims against

the District within a certain time after the underlying injury. See id. at 983, 988. In resolving

that question, the court stated broadly that damage is an essential element of tort claims “that fall

under the general rubric of ‘interference with contractual relations.’” Id. at 988 (quoting W.

PROSSER, THE LAW OF TORTS §§ 129–130 (4th ed. 1971)). The DeKine court had no occasion to

“adopt” the specific cause of action championed by Patton Boggs here.8 And the only federal

decision to apply § 766A under D.C. law involved a breach of contract; thus, it did not consider

whether a plaintiff can sue a third party for impeding the plaintiff’s performance where no breach

has occurred. See Park v. Hyatt Corp., 436 F. Supp. 2d 60, 64–65 (D.D.C. 2006).9

       But the uncertain status of § 766A need not detain the Court here. Even if Patton Boggs’s

argument were not untimely, and even if the Court were to apply § 766A precisely as written,

Patton Boggs’s proposed amended complaint would still fail to state a claim for tortious

interference. As noted above, damages are an essential element of any tortious interference

claim. DeKine, 422 A.2d at 988. Section 766A itself states that it creates liability for “pecuniary

loss.” RESTATEMENT (SECOND ) OF TORTS § 766A. But Patton Boggs’s proposed amended

complaint identified no such loss resulting from defendants’ conduct. Patton Boggs alleged that


       8
               In fact, the DeKine court did not even cite § 766A itself; it cited comment i
thereto, which is simply a cross-reference to comments to § 766 that deal with damages and
remedies. See RESTATEMENT (SECOND ) OF TORTS § 766 cmts. t, u; id. § 766A cmt. i.
       9
                It is not a foregone conclusion that the District’s courts would, if they recognized
§ 766A, allow suits where the plaintiff’s performance had been made more burdensome or
expensive, but where no breach had occurred; they do not allow such claims in traditional, third-
party tortious-interference cases, even though other jurisdictions do. See Murray, 953 A.2d at
326 (“Unlike in some jurisdictions, courts in the District of Columbia have held that ‘a breach of
contract is an essential element’ of the tort [of tortious interference with a contract].” (quoting
Edmondson & Gallagher v. Alban Towers Tenants Ass’n, 48 F.3d 1260, 1266 (D.C. Cir. 1995)).

                                                 11
Chevron and Gibson Dunn were “seeking to sully Patton Boggs’ reputation,” Am. Compl. ¶ 54

(emphasis added), but it did not allege that they had succeeded, let alone that “pecuniary loss”

resulted. Patton Boggs also alleged, in conclusory fashion, that it and its relationship with the

Lago Agrio plaintiffs had suffered irreparable injury, Am. Compl. ¶¶ 78, 88, but did not explain

how, or identify any resulting pecuniary harm. To state a cognizable claim for relief, a complaint

must present “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

Ashcroft v. Iqbal, —U.S.—, 129 S. Ct. 1937, 1949 (2009). Even under § 766A, Patton Boggs’s

proposed amended complaint did not do so.

       Simply put, Patton Boggs’s argument is a day late and a dollar short. Patton Boggs failed

to make this argument while its motion for leave to amend was pending; it now fails to provide

adequate support for the contention that its preferred formulation of tortious interference is

employed by the District’s courts; and its proposed amended complaint fails to state a claim

thereunder anyway. No “clear error or manifest injustice” occurred here. Anyanwutaku, 151

F.3d at 1057.

C.     Patton Boggs’s Request for Leave to Amend

       In addition to challenging the Court’s dismissal of this action, Patton Boggs seeks to add

an additional claim of tortious interference based on the traditional formulation employed in

§ 766 of the Restatement. But, while Patton Boggs is correct that leave to amend should be

“freely given when justice so requires,” FED . R. CIV . P. 15(a), a party seeking to add new claims

under Rule 15 after a judgment dismissing the underlying action “must first satisfy Rule 59(e)’s

more stringent standard.” Firestone, 76 F.3d at 1208. As described above, Patton Boggs has

failed to do so. Accordingly, this action remains terminated and the Court will not consider


                                                 12
Patton Boggs’s request for leave to amend under Rule 15(a). See id. (denial of leave to amend in

such a case cannot be an abuse of discretion unless District court “abused its discretion in failing

to vacate the original dismissal”).


                                        IV. CONCLUSION

        For the foregoing reasons, the Court concludes that Patton Boggs has failed to establish

the “clear error or manifest injustice” that is required to justify the relief it seeks. See

Anyanwutaku, 151 F.3d at 1057. The Court will not at this time address the fact that Patton

Boggs has taken the unusual step of filing, along with its motion for reconsideration, a new

complaint in a separate action presenting the same claims that were dismissed in this case, along

with another tortious interference claim. See Patton Boggs, No. 11-0799. Although Chevron

suggests that the Court would be within its power to dismiss that case sua sponte, see Def.’s

Opp’n to Pl.’s Mot. for Recons. at 1. n.1, the Court believes that the proper course is to give full

consideration to the arguments made by the parties regarding Chevron’s pending motion to

dismiss that action.

        Accordingly, it is this 8th day of July 2011 hereby

        ORDERED that plaintiff’s motion for reconsideration and for leave to file a second

amended complaint [#37] is DENIED.



                                                        Henry H. Kennedy, Jr.
                                                        United States District Judge




                                                   13
