                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

LANDMARK HEALTH SOLUTIONS, LLC,                         :
                                                        :
                Plaintiff and Counter-Defendant,        :       Civil Action No.: 11cv456
                                                        :
                v.                                      :       Document Nos.:      14, 21
                                                        :
NOT FOR PROFIT HOSPITAL                                 :
CORPORATION, et al.,                                    :
                                                        :
                Defendant & Counter-Claimant.           :

                                   MEMORANDUM OPINION

 GRANTING THE PLAINTIFF LEAVE TO FILE A SUPPLEMENTAL COMPLAINT WITHIN THIRTY
DAYS; ORDERING SUPPLEMENTAL BRIEFING; DENYING THE PLAINTIFF’S CROSS-MOTION FOR
                             SUMMARY JUDGMENT

                                        I. INTRODUCTION

        The plaintiff, Landmark Health Solutions, LLC (“Landmark”) offers consulting services

to healthcare organizations. It entered into a contract to provide consulting services to the

defendant, Not For Profit Hospital Corporation (“NFPHC”). Landmark has now filed this action,

claiming that NFPHC has outstanding invoices for services rendered, in breach of the contract.

NFPHC has filed a counterclaim, alleging that Landmark failed to satisfy some of its contractual

obligations, resulting in monetary losses. NFPHC has filed a motion to dismiss, or in the

alternative, for summary judgment, and Landmark has filed a cross-motion for summary

judgment. Because Landmark obtained a certificate of registration to do business in the District

after initiating this action, the Court lacks subject matter jurisdiction to hear its claims, but

Landmark is granted leave to file a supplemental complaint pursuant to Federal Rule of Civil

Procedure 15(d) within thirty days. In addition, because the parties have not provided sufficient

information for the Court to determine whether Landmark’s trade name has been registered, and

                                                   1
also whether it has obtained the requisite business license to do business in the District, the

parties are required to provide supplemental briefing regarding these respective issues within

thirty days. Finally, because the Court prefers to evaluate Landmark’s challenge to NFPHC’s

expert witnesses at a Daubert hearing to be scheduled shortly after appropriate Daubert motions

are filed, Landmark’s cross-motion for summary judgment is denied.



                      II. FACTUAL & PROCEDURAL BACKGROUND

       In August of 2010, Landmark entered into two letter agreements to provide management

consulting and staffing services in connection with the transition of ownership and clinical

operations of NFPHC’s Skilled Nursing Facility (“SNF”). Def.’s Stmt. of Mat. Facts [Dckt. #

14-1] ¶¶ 2-3; Pl.’s Additional Stmt. of Mat. Facts [Dckt. # 21-1] ¶ 1. Landmark agreed to

perform services in compliance with all federal, state, and local requirements. Def.’s Stmt. of

Mat. Facts [Dckt. # 14-1] ¶ 4. The parties executed a letter contract in October of 2010, where

Landmark would provide further services. Id. ¶ 5; Pl.’s Additional Stmt. of Mat. Facts [Dckt. #

21-1] ¶ 2. A few months later, on December 17, NFPHC terminated the contract. Def.’s Stmt.

of Mat. Facts [Dckt. # 14-1] ¶ 6.

       During the life of the contract, Landmark was not registered with the District of

Columbia’s Department of Consumer and Regulatory Affairs Corporation Division (“DCRA”),

either as a domestic entity organized in the District, or as a foreign entity registered to transact

business. See Def.’s Stmt. of Mat. Facts [Dckt. # 14-1] ¶ 7; Pl.’s Stmt. of Mat. Facts [Dckt. # 15-

1] ¶ 7. On December 16, 2010, the day before NFPHC terminated the contract, Landmark

applied for a basic business license with the DCRA. Def.’s Stmt. of Mat. Facts [Dckt. # 14-1] ¶

11. In March of 2011, the DCRA sent a Deficiency Notice to Landmark. Id. ¶ 12. On



                                                   2
November 15, 2011, though, after this case was filed, Landmark received a certificate of

registration from the DCRA. Pl.’s Suppl., [Dckt. #16-1] at 4.

       Landmark has filed this action alleging that NFPHC violated the contract by failing to

pay $250,273.08 in outstanding invoices. Compl. ¶ 8. NFPHC has filed a counterclaim,

contending that Landmark did not properly fulfill its contractual obligations, including failing to:

provide an SNF manager; consult with NFPHC clinical staff about quality of care, regulatory

compliance, and the effectiveness of the SNF’s clinical function; ensure that the SNF

participated in NFPHC’s regulatory compliance programs; assist NFPHC with all aspects of the

SNF’s financial establishment; provide monthly reports; and ensure that the SNF was in

substantial compliance with the Department of Health and Human Services’ requirements for

skilled nursing facility services providers. Def.’s Ans. and Counterclaim ¶ 5. NFPHC has filed

a motion to dismiss, or in the alternative, for summary judgment, and Landmark has filed a

cross-motion for summary judgment. The court now turns to the parties’ arguments and the

applicable legal standards.



                                         III. ANALYSIS

                                       A. Legal Standards

                   1. Legal Standard for a Rule 12(b)(1) Motion to Dismiss

       Federal courts are courts of limited jurisdiction, possessing “only that power authorized

by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994).

Accordingly, a federal court should first determine whether it has jurisdiction over a case before

ruling on the merits. Al-Zahrani v. Rodriguez, 669 F.3d 315, 317-18 (D.C. Cir. 2012).

Landmark bears the burden of establishing the court's subject matter jurisdiction by a



                                                 3
preponderance of the evidence. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

Because subject matter jurisdiction focuses on the court’s power to hear the claim, the court must

give Landmark’s factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion than

would be required for a Rule 12(b)(6) motion for failure to state a claim. See Macharia v. United

States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003); Grand Lodge of Fraternal Order of Police v.

Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). Thus, the court is not limited to the allegations

contained in the complaint. Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated

on other grounds, 482 U.S. 64 (1987). Instead, “where necessary, the 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.” Herbert v. Nat’l

Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992) (citing Williamson v. Tucker, 645 F.2d 404,

413 (5th Cir. 1981)).

              2. Legal Standard for a Rule 56 Motion for Summary Judgment

       Summary judgment may be granted when "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 fact is "material" if it is capable of affecting the substantive outcome of the

litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is "genuine" if

sufficient evidence exists such that a reasonable jury could return a verdict for the non-moving

party. See Scott v. Harris, 550 U.S. 372, 380 (2007).

       The principal purpose of summary judgment is to streamline litigation by disposing of

factually unsupported claims or defenses and determining whether there is a genuine need for

trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The moving party bears the initial

responsibility of identifying those portions of the record which demonstrate the absence of any


                                                  4
genuine issue of material fact. Id. at 323; FED. R. CIV. P. 56(c)(1)(A) (noting that the movant

may cite to "depositions, documents, electronically stored information, affidavits or declarations,

. . . admissions, interrogatory answers, or other materials"). In response, the non-moving party

must similarly designate specific facts in the record that reveal a genuine issue that is suitable for

trial. Celotex, 477 U.S. at 324. On a motion for summary judgment, the court must "eschew

making credibility determinations or weighing the evidence," Czekalski v. Peters, 475 F.3d 360,

363 (D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the light most

favorable to the non-moving party, Anderson, 477 U.S. at 255. Nevertheless, conclusory

assertions offered without any evidentiary support do not establish a genuine issue for trial.

Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).

      B. NFPHC’s Motion to Dismiss, or in the Alternative, For Summary Judgment

                                  1. Registration with the DCRA

        NFPHC contends that because the District’s “door closing” statute prohibits a foreign

corporation from maintaining any action in the District unless it has obtained a certificate of

registration from the DCRA, Landmark’s failure to register to do business in the District

prevents it from maintaining this action. Def.’s Mot. at 1, 3. More specifically, NFPHC asserts

that Landmark’s failure to obtain this certificate is a jurisdictional bar to bringing suit. Id. at 6.

Landmark responds that since filing this action, it has registered with the DCRA, and that it can

therefore maintain this action. Pl.’s Opp’n at 3-4. Landmark further contends that the purpose

of the statute is not to absolutely deprive a corporation of access to the courts, but instead, to

only force it to pay whatever financial obligations it owes to the District. Id. at 4.

        The statutory section that NFPHC cites, D.C. Code § 29A-101.119, has been repealed

and replaced by D.C. Code § 29-105.02. See D.C. CODE § 29A-101.119, repealed by D.C.



                                                   5
Legis. 18-378 § 3(s) (2010); D.C. CODE § 29A-105.02. Under D.C. Code § 29-105.02, the

District’s door closing statute, a foreign entity doing business in the District may not maintain an

action in the District unless it obtains a certificate of registration. D.C. CODE § 29-105.02. Here,

Landmark did not have a certificate of registration during the life of the contract, nor when it

filed this action on March 1, 2011. See Def.’s Stmt. of Mat. Facts [Dckt. # 14-1] ¶ 11; Pl.’s Stmt.

of Mat. Facts [Dckt. # 15-1] ¶ 7. It only became registered on November 15, 2011. See Pl.’s

Suppl., [Dckt. #16-1] at 4. This Circuit held in Telephone & Data Systems, Inc. v. FCC that a

federal court sitting in diversity, such as this one, “must apply the District’s door closing statute.”

Tel. & Data Sys., Inc. v. Am. Cellular Network Corp., 966 F.2d 696, 699 (D.C. Cir. 1992). The

Circuit further noted that if a party does “business in the District without a certificate, then the

failure to comply with the District’s door closing statute [prevents] the exercise of diversity

jurisdiction . . . .” Id. This indicates that because Landmark was not registered when it filed suit,

the Court lacks diversity jurisdiction to hear its claim.

       Landmark contends that because it registered with the District in the midst of litigation, it

cured this defect, such that it can now maintain this action. Pl.’s Opp’n at 3-4. Landmark cites

York & York Construction Company v. Alexander, where the D.C. Court of Appeals 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 Hill-Lanham, Inc.

v. Lightview Dev. Corp., 163 F. Supp. 475 (D.D.C. 1957)). The court also noted that a party can

maintain an action after obtaining a certificate, as “non-compliance 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 475). Further, the court indicated that a statute like



                                                   6
this 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 713; see also Fed. Loose Leaf Corp. v. Woodhouse Stationary

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).

        Yet while the D.C. Court of Appeals has indicated that a plaintiff needs to be registered

to have the capacity to sue, as mentioned above, the D.C. Circuit went one step further in

Telephone & Data Systems by stating that when federal courts sit in diversity, the statutory

requirement to be registered functions as a jurisdictional bar. Tel. & Data Sys., Inc., 966 F.2d at

699; see also Hunter Innovations Co. v. Travelers Indem. Co. of Conn., 605 F. Supp. 2d 170, 172

(D.D.C. 2009). In other words, Landmark’s failure to register is not merely a matter of

Landmark’s capacity to sue, but instead, determines whether this Court has subject matter

jurisdiction to hear its claims.

        “It has long been the case” that subject matter jurisdiction “depends upon the state of

things at the time of the action brought.” Grupo Dataflux v. Atlas Global Grp., 541 U.S. 567,

571 (2004) (internal citation omitted). Stated otherwise, subject matter jurisdiction is tested at

the time the complaint is filed. Delfani v. United States Capitol Guide Bd., 2005 WL 736644, at

*2 (D.D.C. 2005), aff’d 198 Fed. App’x 9 (D.C. Cir. 2006). Further, if subject matter

jurisdiction does not exist at the outset of the litigation, it cannot automatically be created by

factual events that occur after the complaint is filed. See, e.g., Prasco, LLC v. Medicis Pharm.

Corp., 537 F.3d 1329, 1337 (Fed. Cir. 2008) (stating that “later events may not create

jurisdiction where none existed at the time of filing”) (internal quotation marks and citations



                                                  7
omitted). Landmark was not registered with the DCRA when it filed the complaint, and thus the

Court did not have diversity jurisdiction then. Landmark registering later could not

automatically cure the jurisdictional defect to subsequently confer subject matter jurisdiction

upon the Court.

        Instead, Landmark would have to file a supplemental complaint pursuant to Federal Rule

of Civil Procedure 15(d) that properly alleges this Court’s jurisdiction, in order to cure the

jurisdictional defect. Prasco, 537 F.3d at 1337 (“Supplemental pleadings can be used to cure

subject matter jurisdiction deficiencies.”). This is because under Federal Rule of Civil Procedure

15(d), the Court is “authorized . . . to permit a party to serve a supplemental pleading setting

forth events which have happened since the date of the original complaint.” Fund for Animals v.

Hall, 246 F.R.D. 53, 54 (D.D.C. 2007) (citing FED. R. CIV. P. 15(d)); Hall, 246 F.R.D. at 385

(“the court has broad discretion in determining whether to allow supplemental pleadings in the

interests of judicial economy and convenience”). 1 Thus, Landmark shall have thirty days to file

the supplemental complaint. See United States v. Hicks, 283 F.3d 380, 385-86 (D.C. Cir. 2002)

(reasoning that the court can order supplemental pleadings that outline events that have

1
         Landmark asserts that under Federal Rules of Civil Procedure 9 and 12, respectively, a defendant
must raise a lack of capacity argument in the responsive pleading, or else the defense is waived. Pl.’s
Opp’n at 8-9. Landmark contends that because NFPHC argues in its motion to dismiss that Landmark
cannot maintain this action for failure to comply with the door-closing statute—instead of raising it in its
answer to the complaint—that this argument is waived. Id. Under Rule 9(a)(2), a party must allege by
specific denial that the opposing party lacks the capacity to sue or to be sued. FED. R. CIV. P. 9(a)(2).
Under Rule 12(b), every defense to a claim for relief in a pleading must be asserted in the responsive
pleading if such pleading is required, but a party may assert by motion a defense of a lack of subject
matter jurisdiction. FED. R. CIV. P. 12(b). As set forth above, this Circuit has held that when federal
courts sit in diversity, the statutory requirement to be registered is a jurisdictional bar. Tel. & Data Sys.,
Inc., 966 F.2d at 699. Thus, because NFPHC’s argument here is ultimately that of a lack of subject matter
jurisdiction, its having raised this contention in its motion to dismiss is appropriate. NFPHC’s argument
is therefore not waived. See CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE §
1393 (2013), available at Westlaw FPP (“a question of subject matter jurisdiction may be presented by
any interested party at any time throughout the course of the lawsuit, either by motion or in the answer”).
In any event, Landmark’s contention that NFPHC did not timely raise the defense is unnecessary, because
filing a supplemental complaint will render NFPHC’s defense moot anyway.


                                                      8
transpired since the date of the party’s most recent pleading); CHARLES ALAN WRIGHT ET AL.,

FEDERAL PRACTICE AND PROCEDURE § 1350 (2013), available at Westlaw FPP (stating that when

there is evidence indicating that the nonmoving party can amend to allege jurisdiction, the

district court may deny the motion to dismiss and direct the plaintiff to amend the complaint, or

may dismiss with leave to amend within a prescribed period of time). 2

                                    2. Landmark’s Trade Name

        In addition, NFPHC contends that because Landmark has failed to register “Landmark

Health Solutions” as a trade name with the DCRA, it cannot maintain an action in this Court.

Def.’s Mot. at 6, n.4. Under D.C. Code § 47-2855.02(a)(3), “[a] person who carries on,

conducts, or transacts business in the District of Columbia under any trade name shall register

that trade name with the Department[, where a] foreign or domestic limited liability company

shall register by setting forth the limited liability company name as filed with the Mayor.” D.C.

CODE § 47-2855.02(a)(3). This indicates that a foreign LLC, like Landmark, which transacts

business in the District under a trade name must register with the DCRA the same LLC name

that it filed with the Mayor’s office. Further, under D.C. Code § 47-2855.03(d), “[n]o person

carrying on, conducting, or transacting business under any trade name shall be entitled to

maintain any suit in any of the courts of the District of Columbia until the person has properly

completed the registration as provided for in this section.” D.C. CODE § 47-2855.03(d).

        Neither party has provided sufficient documentation for the Court to determine the name

that Landmark filed with the Mayor, and if that name was also registered with the DCRA. The

parties must therefore provide supplemental briefing to enable the Court to determine this issue.


2
        NFPHC also argues that failing to register with the DCRA precludes Landmark from having
standing to sue, pursuant to the door closing statute. Def.’s Reply at 4-5. As noted above, Landmark is
now registered. NFPHC’s argument is thus moot, because when Landmark files the supplemental
complaint, it will have standing to bring suit.

                                                    9
Landmark should bear in mind that if it has not registered with the DCRA the same name that it

filed with the Mayor—if it fulfills this registration requirement before refiling the complaint—

that it will cure this deficiency. The parties will thus submit supplemental briefing addressing

this issue (including documentation confirming the name that Landmark filed with the Mayor)

within thirty days. See Hunter, 605 F. Supp. 2d at 174 n.6.

                            3. Obtaining a General Business License

       NFPHC also contends that under D.C. Code § 47-2851.02, because Landmark does not

possess a “basic business” license to do business in the District, it may not recover on the

contract. Def.’s Mot. at 7-9. Landmark responds that the authority that NFPHC cites requiring a

basic business license to recover on a contract does not apply to Landmark. Pl’s Opp’n at 5.

Under D.C. Code § 47-2851.03(d), a General Business License is required “for all businesses

engaging in any business transaction in the District that have a business tax identification number

and who are not otherwise required to obtain an endorsement under a license endorsement

category.” D.C. CODE § 47-2851.03(d). Further, under D.C. Code § 47-2851.02, if an entity is

“required under law to obtain a license” to do business in the District, that entity “shall not

engage in such business in the District” without having obtained a license. D.C. CODE § 47-

2851.02. It appears that Landmark would be required to obtain a license under these provisions.

The parties have not offered sufficient information, though, for the Court to determine whether

Landmark has obtained this business license. The parties should therefore provide supplemental

briefing for the Court to resolve this issue, within thirty days.

                                       4. Breach of Contract

       Finally, NFPHC cites its contract with Landmark, which states that Landmark shall

comply with all federal, state, and local statutes, codes, regulations and guidelines. Def.’s Mot.



                                                  10
at 10. NFPHC claims that because Landmark did not comply with the District’s requirement to

be registered and to obtain a license, it breached the contract. Id. NFPHC contends that because

of this alleged material breach, it should be excused from performing on the contract, and that it

should also be granted partial summary judgment on its counterclaim. Id. at 10-11.

       A “material breach” is a failure to do something that is so fundamental to a contract, that

not performing that obligation defeats the essential purpose of the contract, or makes it

impossible for the other party to perform under the contract. See 3511 13th St. Tenants’ Ass’n v.

3511 13th St., N.W. Residences, LLC, 922 A.2d 439, 445 (D.C. 2007) (“For a breach to be

material, it must be so serious [as] to destroy the essential object of the agreement.”) (internal

citation omitted); WILLISTON ON CONTRACTS § 63:3 available at Westlaw WILLSTN-CN. In

other words, for a breach to be material, it must “go to the root” or “essence” of the agreement

between the parties. WILLISTON ON CONTRACTS § 63:3.

       In this case, the parties entered into the contract for the purpose of providing management

consulting and staffing services to NFPHC’s SNF, or a nursing facility. Def.’s Stmt. of Mat.

Facts [Dckt. # 14-1] ¶¶ 2-3. The parties’ dispute is over whether such services were sufficiently

rendered, and whether Landmark was appropriately compensated. See generally Compl. and

Answer & Counterclaim. Landmark’s initial failure to register with the DCRA does not go to

the essence of the parties’ agreement, nor does a failure to register defeat the essential purpose of

the contract, which is to provide consulting and staffing services. Indeed, NFPHC claims that it

terminated the contract because Landmark failed to offer proper services—such as providing an

SNF manager, consulting with NFPHC, and generating monthly summary reports—not because

Landmark did not register with the District. Answer & Counterclaim ¶¶ 5-6. NFPHC does not

offer any arguments or evidence that indicate that Landmark’s failure to register deprived



                                                 11
NFPHC of the benefit that it reasonably expected when entering into the contract. See Campbell

v. Fort Lincoln New Town Corp., Inc., 55 A.3d 379, 386 (D.C. 2012) (reasoning that because the

appellees’ failure to disclose certain information did not deprive the appellants of the benefits of

entering into the contract, the non-disclosure was not a material breach); RESTATEMENT

(SECOND) OF CONTRACTS § 241 (1981) (noting that “in determining whether a failure to offer

performance is material[,]” one of the significant factors that a court considers is “the extent to

which the injured party will be deprived of the benefit [that] he reasonably expected”). NFPHC

has thus failed to demonstrate that, as a matter of law, Landmark not being registered constitutes

a material breach of the contract, and partial summary judgment on the counterclaim is therefore

denied.

          In addition, a party is not automatically excused from the future performance of contract

obligations every time the other party commits a breach. WILLISTON ON CONTRACTS § 63:3 (“if

a breach is relatively minor and not of the essence, the [other party] is still bound by the contract

and may not abandon performance”). Rather, if the breach has not contributed materially to the

contract being terminated, it does not excuse performance. See Executive Sandwich Shoppe, Inc.

v. Carr Realty Corp., 749 A.2d 724, 737 n.19 (D.C. 2000) (noting that because the appellees’

breach of a contract clause did not contribute materially to the contract falling through, the

breach did not excuse performance). Here, NFPHC has not indicated how Landmark’s failure to

register contributed to its terminating the contract for Landmark not providing proper

management and consulting services. NFPHC’s claim that it is excused from performing on the

contract is thus incorrect.




                                                  12
                     C. Landmark’s Cross-Motion for Summary Judgment

        1. Landmark’s Challenge to the Sufficiency of NFPHC’s Expert Testimony

       In its cross-motion for summary judgment, Landmark contends that three of the witnesses

that NFPHC has indicated will testify at trial lack the sufficient qualifications and foundation

required for their opinions for their expert testimony to be admissible. Pl.’s Mot. at 15. NFPHC

responds that a motion for summary judgment is not the proper vehicle to challenge the

admissibility of expert testimony, and that the preferred vehicle is instead a motion in limine.

Def.’s Opp’n at 4.

       Under Federal Rule of Evidence 702, expert testimony is admissible at trial if it is based

upon sufficient facts or data, is the product of reliable principles and methods, and if the witness

has applied such principles and methods reliably to the facts of the case. FED. R. EVID. 702.

Rule 702 requires trial judges to act as “gatekeepers” to ensure that the methodology underlying

the expert testimony is valid and the expert’s conclusion is based on “good grounds.” Daubert v.

Merrell Dow Pharm., Inc., 509 U.S. 579, 590 (1993); see also Meister v. Medical Eng’g Corp.,

267 F.3d 1123, 1127 (D.C. Cir. 2001).

       Trial courts are afforded “substantial latitude in deciding” the procedure necessary to test

the sufficiency of a potential expert, and the Court prefers to evaluate this argument in a motion

in limine and at a Daubert hearing, instead of while resolving a motion for summary judgment.

Sloan v. Urban Title Serv., Inc., 770 F. Supp. 2d 227, 237-38; Estate of Gaither ex rel. Gaither v.

District of Columbia, 771 F. Supp. 2d 5, 13 (D.D.C. 2011); see also Buzzerd v. Flagship

Carwash of Port St. Lucie, Inc., 2009 WL 105501, at *2 (M.D.P.A. Jan. 16, 2009) (determining

that arguing for the exclusion of expert testimony at the summary judgment stage is premature).

In addition, even if the Court were to evaluate the merits of Landmark’s arguments at this stage,



                                                 13
without knowing what the fourth expert witness will testify to, the Court cannot dismiss the

claim for lack of supporting expert testimony. Thus, Landmark’s arguments challenging

NFPHCs’ expert witnesses will not be considered at this juncture, but can be raised via a

Daubert motion followed by the Daubert hearing, to be scheduled shortly thereafter.

                          2. The Contract’s Indemnification Clause

       Landmark also asserts that the parties’ contract contains an indemnification clause that

holds Landmark harmless with respect to any loss or damage that NFPHC suffered in relation to

Landmark’s performance of its services, and that indemnifies Landmark for any loss, liability or

damage that it suffered. Pl.’s Mot. at 24. Landmark contends that this clause therefore bars any

of NFPHC’s potential recovery on its counterclaim. Id. In response, NFPHC argues that the

indemnification clause only applies to property damage and personal injury or death, not to

breach of contract money damages. Def.’s Opp’n at 19. NFPHC further asserts that the clause is

also intended to protect Landmark against claims made by third parties outside of the contract,

not claims made by the parties, themselves. Id. at 20.

       The D.C. Court of Appeals has held that “[w]hen interpreting a contract, the document

must be “examine[d] . . . on its face, giving the language used its plain meaning. Dyer v. Bilaal,

983 A.2d 349, 355 (D.C. 2009) (internal citation omitted). Indeed, “[t]he meaning of words . . .

commonly depends on their context.” RESTATEMENT (SECOND) OF CONTR. § 202 cmt. b (1981).

Here, the indemnification clause in the parties’ agreement states:




         Client shall hold harmless and indemnify Landmark, its directors, officers,
         employees, agents and representatives, and Consultant from and against all
         loss, liability, penalty, damage, expense, and cost, including attorneys’ fees, of
         any kind, to person and property relating in any way to the performance of

                                                14
         Consultant’s services under this Agreement, whether or not suit is brought.
         Client assumes all risk of property loss or damage and of personal injury or
         death which its officers, directors, employees, agents and representatives may
         sustain in connection with this Agreement.

Pl.’s Mot., Ex. 1, at 2-3. The clause appears to “hold” Landmark “harmless” for any loss,

liability, or damage to “person or property,” if such loss relates to NFPHC’s performance of

services. Id. A plain reading of the clause indicates that it does indeed hold Landmark harmless

for only NFPHC’s property loss, personal injury, or death, and nothing further. See id. This is

further evidenced by the subsequent sentence that states that NFPHC assumes the risk for any

“property loss or damage” or “personal injury or death” that it experiences. Id. Because

NFPHC’s counterclaims relate to damages for Landmark’s alleged breach of the contract, and

not to any property damage or personal injury, they do not fall under the purview of this clause

and thus do not shield Landmark from liability for such claims. See Holland v. Hannan, 456

A.2d 807, 816-17 (D.C. 1983) (interpreting contract terms by deciphering their “unambiguous,

plain meaning and usage . . in the context of [the] general purposes and intent of [the p]aragraph”

in which they were contained).

        In addition, NFPHC is correct in asserting that a contract clause that states that it

“indemnif[ies]” a party means that it protects that party from liability when third parties outside

of the contract bring suit. See 42 C.J.S. Indemnity § 1 (2013) (“An indemnity provision

generally does not apply to claims between the parties to the agreement, but obligates the

indemnitor to protect the indemnitee against claims brought by third parties.”); Arnold Oil

Props., LLC v. Schlumberger Tech. Corp., 672 F.3d 1202, 1206-07 (10th Cir. 2012) (“While the

terms indemnity and exculpatory are often used interchangeably, they are, in fact, different. An

exculpatory clause releases in advance the second party for any harm the second party might

cause the first party after the contract is entered[, while an] indemnification clause . . . protects

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against claims made by parties outside the contract.”) (internal quotation marks and citations

omitted). In this context, the term “indemnif[ies]” appears to shield Landmark from liability if a

third party brings a claim alleging property damage, personal injury, or death against Landmark,

not if NFPHC asserts a breach of contract claim. Accordingly, because the indemnification

clause in the contract does not shield Landmark from liability for breach of contract claims,

Landmark’s cross-motion for summary judgment is denied.



                                        IV. CONCLUSION

       For the foregoing reasons, the Court grants Landmark leave to file a supplemental

complaint to cure the jurisdictional defect within thirty days. In addition, the parties shall file

within thirty days supplemental briefing regarding whether Landmark’s trade name has been

registered, and also whether it has obtained the requisite business license to do business in the

District. Finally, the Court denies Landmark’s cross-motion for summary judgment. An order

consistent with this Memorandum Opinion is separately and contemporaneously issued this 18th

day of June, 2013.



                                                                RUDOLPH CONTRERAS
                                                                United States District Judge




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