                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
SABRE INTERNATIONAL SECURITY )
                               )
          Plaintiff,           )
                               )
     v.                        )
                               )
TORRES ADVANCED ENTERPRISE     )
SOLUTIONS, INC.,               )    Civil Action 11-806 (GK)
                               )
          Defendant.           )
                               )
______________________________)

                             MEMORANDUM OPINION

     Plaintiff, Sabre International Security (“Sabre”), a private

Iraqi security company, brings this action against Defendant,

Torres Advanced Enterprise Solutions, Inc. (“Torres”), a Virginia

limited liability company, for breach of contract, breach of

fiduciary and trust obligations, unjust enrichment, and tortious

interference    with     prospective    economic   advantage   and   business

relations. This matter is presently before the Court on Sabre’s

Motion   to    Dismiss     Torres’     Counterclaims(“Sabre’s    Motion   to

Dismiss”) (December 20, 2011). Upon consideration of the Motion,

Opposition, Reply, and the entire record herein, and for the

reasons set forth below, Sabre’s Motion is granted in part and

denied in part.
I.   Background

     A.   Factual Backgound

     Sabre is a private security contractor providing security

services around the world to various entities, including the U.S.

Government. Complaint (“Compl.”) ¶ 1. On September 27, 2007, Sabre

won one of several U.S. Government Theater-wide Internal Security

Services Multiple Task Order Contracts, number W91GDW-07-D-4026

(“TWISS I Contract”), to provide security services to U.S. military

installations in Iraq. Id. ¶ 6. On November 8, 2007, in connection

with this Contract, Sabre entered into a subcontractor agreement

with Torres (“2007 Subcontractor Agreement”). Id. ¶ 7. Pursuant to

this Agreement, Torres agreed to provide personnel holding valid

U.S. Government security clearances to work on Sabre’s TWISS I

projects. Id.

     In 2009, the U.S. Government amended its policies for TWISS I

contracts by requiring that prime contractors, like Sabre, possess

a U.S. Defense Department Industrial Security Program Facility

Security Clearance at the Secret Level (“Secret FCL”). Id. ¶ 11.

Sabre, as a non-U.S. company, was not eligible for a Secret FCL.

Id. Accordingly, to avoid termination of the TWISS I Contract,

Sabre and Torres entered into a novation of the TWISS I Contract on

December 30, 2009. Id. ¶¶ 12-13. Pursuant to the novation, known as

the Asset Purchase Agreement (“APA”), Torres became the prime

contractor and Sabre the subcontractor. Id.


                                -2-
      According to Sabre, the APA included two additional agreements

as annexes (or addendums): (1) “[a] form of subcontract between

Torres and Sabre for TWISS I security services that was to take

effect upon the U.S. Government’s approval of the novation” (the

“APA Sabre Services Subcontract”); and (2) “[a] form of equipment

lease agreement between Sabre and Torres for lease from Sabre to

Torres of all equipment necessary for performance of the TWISS I

Task Orders that was to take effect upon the U.S. Government’s

approval of the novation” (the “APA Sabre Lease Agreement”). Id. ¶

13.

      Sabre alleges that, under these three “agreements,” Sabre was

entitled to payment of pre-novation rates and that Torres was

obligated to “issue priced [] TWISS I Subtask Orders to Sabre

promptly after the TWISS I Novation that would give effect to

[this] understanding[].” Id. ¶¶ 41-42. On February 5, 2010, the

U.S. Government approved the novation. Id. ¶ 3. According to Sabre,

after the novation, Torres breached its contractual obligations by

failing to pay Sabre’s TWISS I invoices at the rates established

under the APA and its accompanying annexes, and by failing to put

the TWISS I Subtask Orders in place. Id. ¶¶ 228-29.

      On August 6, 2009, Sabre and Torres entered into a Teaming

Agreement to bid on one of several Government Theater-wide Internal

Security Services Multiple Task Order Contracts, number W91DGW-09-

D-4030 (“TWISS II Contract”), which would replace existing TWISS I


                                 -3-
contracts. Id. ¶¶ 53, 61. To be eligible for a TWISS II Contract,

the prime contractor was required to hold a Secret FCL as well as

a Private Security Company (“PSC”) License from the Iraqi Ministry

of the Interior. Id. ¶¶ 58-59. Under the Teaming Agreement, Torres,

which held a Secret FCL, was designated as the Leading Member and

Sabre, which held a PSC License, but did not hold a Secret FCL

License, was designated as a Member. Id. ¶ 61.

     The   Sabre-Torres     team    (“Team”)   then   bid    for    a    TWISS II

Contract, which they won on August 25, 2009. Id. ¶¶ 62, 86. In

accordance   with   TWISS   II     Contract    procedures,    the       Team   then

competed for several TWISS II Task Order Requests (“TWISS II

TORs”), which the Government issued for each military base that

required security services. Id. ¶¶ 90, 106. The Team competed for

these TWISS II TORs by submitting Task Order Proposals (“TWISS II

Task Order Proposals”) to the U.S. Government, and was ultimately

successful in obtaining several TWISS II TORs. Id. ¶¶ 91, 106, 108.

     According to Torres, in May 2010, Sabre breached the Teaming

Agreement by failing to provide timely substantive responses to

Torres’ questions for additional information, which Torres needed

to prepare a competitive task order proposal for Forward Operating

Base (“FOB”) Adder.    Torres Answer and Counterclaims ¶¶ 20-25, 46

(“Torres Counterclaims”) [Dkt. No. 42].           Torres alleges that, on

May 21, 2010, Torres notified Sabre that it was in breach of the

Teaming Agreement. Id ¶ 26. According to Torres, Sabre did not


                                      -4-
respond to the notice or attempt to cure its breach, and therefore,

the Teaming Agreement terminated effective June 20, 2010. Id. ¶ 27.

Torres also alleges that Sabre deliberately decided to no-bid

certain FOB task order requests. Id. ¶ 48. Torres further alleges

that, instead of attempting to resolve the dispute in accordance

with the conflict-resolution provisions of the Teaming Agreement,

Sabre complained directly to the Defense Contract Management Agency

(“DCMA”), causing reputational harm to Torres, which had an adverse

impact    on     Torres’   ability   to      compete   for   other   government

contracts. Id. ¶¶ 52-57.

     B.        Procedural Background

     On April 29, 2011, Sabre filed its Complaint. On May 27, 2011,

Torres filed its Motion for Dismissal of the Complaint and for

Partial Summary Judgment [Dkt. No. 21]. On July 25, 2011, Sabre

filed its Opposition to Defendant’s Rule 12(b)(6) Motion to Dismiss

the Complaint [Dkt. No. 30]. On July 26, 2011, Sabre filed its

Opposition to Defendant’s Rule 56 Motion for Partial Summary

Judgment [Dkt. No. 32]. On August 19, 2011, Torres filed its Reply

in Support of its Motion for Dismissal of the Complaint and for

Partial Summary Judgment [Dkt. No. 34]. On October 27, 2011, the

Court granted in part and denied in part Torres’ Motion for

Dismissal of the Complaint and for Partial Summary Judgment [Dkt.

No. 39].




                                       -5-
      On   November       15,   2011,    Torres      filed      its   Answer     and

Counterclaims [Dkt. No. 42]. On December 20, 2011, Sabre filed its

Motion to Dismiss Sabre’s Counterclaims [Dkt. No. 45].                 On January

9, 2012, Torres filed its Opposition to Sabre’s Motion to Dismiss

its Counterclaims (“Torres’ Opposition”) [Dkt. No. 48]. On January

27, 2012, Sabre filed its Reply in Support of its Motion to Dismiss

Torres’ Counterclaims (“Sabre’s Reply”) [Dkt. No. 51].

II.   Standard of Review

      To   survive    a   motion   to   dismiss      under   Rule     12(b)(6),   a

plaintiff need only plead “enough facts to state a claim to relief

that is plausible on its face” and to “nudge[] [his or her] claims

across the line from conceivable to plausible.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). “[A] complaint [does not]

suffice if it tenders naked assertions devoid of further factual

enhancement.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)

(internal quotations omitted) (citing Twombly, 550 U.S. at 557).

Instead, the complaint must plead facts that are more than “merely

consistent with” a defendant’s liability; “the pleaded factual

content [must] allow[] the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id. at

1940 (citing Twombly, 550 U.S. at 556). In deciding a Rule 12(b)(6)

motion, the    court      may   consider      any   documents    attached   to    or

incorporated into the complaint, matters of which the court may

take judicial notice, and matters of public record. EEOC v. St.


                                        -6-
Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).

       “[O]nce    a    claim    has   been     stated   adequately,    it   may   be

supported    by       showing   any   set    of   facts   consistent    with      the

allegations in the complaint.” Twombly, 550 U.S. at 563. Under the

standard set forth in Twombly, a “court deciding a motion to

dismiss must . . . assume all the allegations in the complaint are

true (even if doubtful in fact) . . . [and] must give the plaintiff

the benefit of all reasonable inferences derived from the facts

alleged.” Aktieselskabet, 525 F.3d at 17 (citations and internal

quotations omitted). See also Tooley v. Napolitano, 586 F.3d 1006,

1007   (D.C.     Cir.    2009)    (declining      to    reject   or   address     the

government’s argument that Iqbal invalidated Aktieselskabet).

III. Analysis

       A.   The Plain Language of the Teaming Agreement Does Not
            Support Dismissal of Torres’ Counterclaims

       Sabre argues that Torres’ counterclaims for breach of contract

and tortious interference fail as a matter of law because Torres

has not exhausted mandatory alternative dispute resolution (“ADR”)

as provided in Section 7 of the Teaming Agreement.1               Sabre contends

that the plain language of “Section 7.0 is so broad and inclusive

as to clearly and unambiguously establish satisfaction of the

requirements of Section 7.0 as a condition precedent to any party



     1
       Sabre notes, and Torres concedes, that Torres did not plead
factual allegations in its Answer and Counterclaims that Torres
engaged in ADR pursuant to Section 7.

                                         -7-
to the Teaming Agreement commencing formal litigation as to ‘any

dispute or disagreement between the Members (Torres and Sabre)

concerning, arising out of or related to the [Teaming] Agreement.’”

Sabre’s Motion to Dismiss at 20-21 (quoting Teaming Agreement § 7.1

[Dkt. No. 22-2]). Sabre concludes that because Torres has not

complied with Section 7’s ADR requirement, it is barred from

proceeding on its counterclaims in this Court.

     Torres disputes Sabre’s construction of Section 7 and argues

that the plain language of the “unambiguous provision establishes

that the requirement for informal dispute resolution is a condition

precedent prior to the initiation of formal litigation.” Torres

Opposition at 7. Torres further argues that, “[e]ven if the meaning

of Section 7 were not clear [] any ambiguity that Section 7 could

be said to have would preclude dismissal under Rule 12(b)(6)”

because under District of Columbia law, “Torres is entitled to a

reasonable inference that Section 7 does not, and was not intended

to, apply with respect to compulsory counterclaims asserted after

one party has already turned to the courts for relief.” Id. at 8.

     In interpreting contractual terms, the Court must adhere to

the objective law of contracts, “whereby the written language

embodying the terms of an agreement will govern the rights and

liabilities of the parties, irrespective of the intent of the

parties at the time they entered the contract, unless the written

language is not susceptible of a clear and definite undertaking, or


                                -8-
unless   there   is   fraud,   duress        or    mutual      mistake.”     Marra    v.

Papandreou, 59 F. Supp. 2d 65, 76 (D.D.C.1 999), aff'd 216 F.3d

1119 (D.C. Cir. 2000); see also Patterson v. District of Columbia,

795 A.2d 681, 683 (D.C. 2002). Whether a contract is ambiguous is

a question of law to be determined by the court. Dist. No. 1-Pac.

Coast Dist. v. Travelers Cas. & Sur. Co., 782 A.2d 269, 274 (D.C.

2001); Holland v. Hannan, 456 A.2d 807, 815 (D.C. 1983).

     A contract is not ambiguous merely because the parties dispute

its meaning or could have drafted clearer terms. Dist. No. 1-Pac.

Coast Dist., 782 A.2d at 274. Rather, a contract is ambiguous when

it or its provisions are reasonably or fairly susceptible of

different constructions or interpretations, or of two or more

different   meanings.    Holland,      456        A.2d    at   815.    Conversely,    a

contract is unambiguous when a court can ascertain the contract's

meaning by merely looking at the contract. Id. If the language is

unambiguous, “the court may interpret it as a matter of law.”

America First Inv. Corp. v. Goland, 925 F.2d 1518, 1520 (D.C. Cir.

1991).

     The Court concludes that the Teaming Agreement is unambiguous

and that the plain language of Section 7 does not support dismissal

of Torres’ counterclaims. Section 7.1 of the Teaming Agreement

states   that,   “[i]n   the   event    of        there    being      any   dispute   or

disagreement between the Members to this Agreement concerning,

arising out of or related to Agreement [] [it] shall be first


                                       -9-
referred to non-binding alternative dispute resolution in the

manner set out in Subsections 7.1(A) and 7.2. . . .” Teaming

Agreement § 7.1 (emphasis added). Section 7.1 expressly provides

that Sections 7.1(A) and 7.2 will set out the specific manner in

which ADR is to be conducted. Section 7.2 goes on to unambiguously

state    that   “[p]rior    to     the   initiation    of   formal   litigation

procedures . . . the parties shall first attempt . . . to resolve

their dispute informally. . . .” Teaming Agreement § 7.2 (emphasis

added).

     Section 7 of the Teaming Agreement clearly requires the

parties to pursue ADR only if formal litigation procedures have not

yet commenced, i.e., “prior to the initiation of formal litigation

procedures.”2 Obviously, the matter presently before the Court is

a “litigation procedure[]” within the meaning of Section 7 of the

Teaming    Agreement.      There    is    also   no   question   that   Torres’

counterclaims arise out of the same operative set of facts at issue

in Sabre’s TWISS II claims against Torres, and that both Sabre’s

claims and Torres’ counterclaims implicate the Teaming Agreement.

Accordingly, Torres’ counterclaims are not subject to Section 7's


     2
       From a common-sense standpoint, the purpose of a pre-
litigation ADR clause would not be served by requiring the
defendant to pursue informal resolution of his counterclaims before
asserting those counterclaims in ongoing litigation. Generally, the
purpose of an ADR clause is to promote efficient resolution of
disputes by, if possible, avoiding the considerable costs of
litigation. Sabre’s construction of the Teaming Agreement would
increase the cost of resolving this dispute by requiring piecemeal
litigation; a result that runs contrary to the purpose of ADR.

                                         -10-
requirement for informal dispute resolution. Therefore, Sabre’s

Motion to Dismiss as to Torres’ Counterclaim for Breach of Contract

is denied.

     B.      Torres Fails to State a Claim for Tortious Interference

     Sabre     argues     that     Torres’     counterclaim     for    tortious

interference with existing or prospective business relations is

“fatally defective because the counterclaim[] fails to allege facts

that, if proven, would establish Sabre[’s] intentional interference

with any such purported relationships.” Sabre’s Motion to Dismiss

at 23.    More specifically, Sabre contends that Torres’ tortious

interference claim is predicated entirely upon two alleged breaches

of the Teaming Agreement by Sabre and that “the only inference that

can be drawn from such factual allegations is that Torres is

alleging that Sabre intended to breach the Teaming Agreement.” Id.3

     In response to Sabre’s argument that Torres has not alleged

facts that would support an inference that Sabre intentionally

interfered     with     Torres’    existing     and    prospective     business

relations,    Torres    contends    that     “Sabre   ignores   a   fundamental

premise for this Court’s analysis under Rule 12(b)(6): the Court

must assume that all allegations in the counterclaim are true, even



     3
       Sabre also argues that Torres’ counterclaim for tortious
interference fails as a matter of law for other, independent
reasons. Given the Court’s conclusion, infra, that Torres’
counterclaim for tortious interference fails as a matter of law
because Torres failed to properly allege tortious intent, it is not
necessary to address the merits of Sabre’s additional arguments.

                                      -11-
if doubtful in fact, and draw all reasonable inferences in favor of

the non-moving party.”       Torres Opposition at 13.         Torres argues

that its allegations, taken as true, support an inference that

Sabre acted improperly to interfere with Torres’ existing and

prospective business relationships.

     To establish a claim for tortious interference with existing

or prospective business relations under District of Columbia law,

the alleging party must plead (1) the existence of a valid business

relationship or expectancy, (2) knowledge of the relationship or

expectancy on the part of the alleged interferer, (3) intentional

interference inducing or causing a breach or termination of the

relationship or expectancy, and (4) resultant damage. Bennett

Enters., Inc. V. Domino’s Pizza, Inc., 45 F.3d 493, 499 (D.C. Cir.

1995).

     Sabre   is   correct    that   Torres’   counterclaim     for   tortious

interference is fatally defective.          A thorough review of Torres’

Answer and Counterclaims reveals no allegations sufficient to

establish a legally-cognizable claim for tortious interference.

Torres   does   adequately    allege   that   it   had   a   valid   business

relationship or expectancy with the Government, that Sabre had

actual knowledge of Torres’ relationship or expectancy, and that

Sabre’s complaints to the Government about Torres resulted in




                                     -12-
damage to Torres.4 However, Torres’ allegations with respect to

Sabre’s intent cannot withstand Sabre’s motion to dismiss. Torres

alleges   that    “Sabre   violated     the   Teaming   Agreement      when   it

complained   to    the   Government     about   Torres”   and   that    “Sabre

intentionally     breached    the     Teaming     Agreement’s    provisions

concerning conflict resolution and alternative dispute resolution.”

Id. ¶¶ 55, 57.

     As a case relied upon by both Sabre and Torres demonstrates,

in order to survive a motion to dismiss, a claimant must allege far

more than a “general intent to interfere or knowledge that the

conduct will injure [its] business dealings.” Sheppard v. Dickson,

Shapiro, Morin & Oshinsky, 59 F. Supp. 2d 27, 34 (D.D.C. 1999).

“‘Motive or purpose to disrupt ongoing business relationships is of

central concern in a tortious interference case. . . .[C]onduct

must be more egregious, for example, it must involve libel, slander

physical coercion, fraud, misrepresentation, or disparagement.’”

Id. (quoting Genetic Sys. Corp. v. Abbott Labs., 691 F. Supp. 407,

423 (D.D.C. 1998)).


     4
       Torres alleges that it had “several business relationships
with different Government agencies and is constantly preparing new
proposals   for   submission  on   various   Government   contract
opportunities.” Torres Counterclaim ¶ 53. Torres also alleges that
Sabre had actual knowledge of Torres’ existing and prospective
business relationships with the Government and that Sabre had
actual knowledge that Torres’ reputation and past performance
history are important for retaining existing contracts and
competing for future contracts. Id ¶ 54. Torres further alleges
that as a direct result of Sabre’s conduct, Torres suffered
damages. Id ¶ 57.

                                      -13-
      Even viewing Torres’ allegations as true, they cannot be read

to reasonably infer intent on the part of Sabre to tortiously

interfere with Torres’ business relationships or expectancies.

Torres’ Answer and Counterclaims is silent as to Sabre’s intent to

interfere with Torres’ business relations, and does not cite any

statements that constitute slander, libel, misrepresentations or

disparagement. Torres alleges only that “Sabre complained to the

Government about Torres” and intentionally breached the Teaming

Agreement’s   ADR   provision   by    alerting    the   Government   to   the

parties’ payment dispute. Torres Counterclaim ¶¶ 55, 57. Sabre is

correct that, at most, Torres alleges that Sabre intended to breach

the Teaming Agreement, which is insufficient for purposes of

stating a claim for tortious interference.              Therefore, Sabre’s

Motion to Dismiss Torres’ Counterclaim for Tortious Interference is

granted.

IV.   CONCLUSION

      For all the reasons stated herein, Sabre’s Motion to Dismiss

Torres’ Counterclaims is granted in part and denied in part. An

Order will accompany this Memorandum Opinion.



                                             /s/
April 30, 2012                              Gladys Kessler
                                            United States District Judge


Copies via ECF to all counsel of record



                                     -14-
