 

 

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

C.I. ENERGIA SOLAR S.A. E.S. )
WINDOWS, )
)
Plaimiff, )
)
v. ) Civil Case No. 18-503 (RJL)
)
RANGER SPECIALIZED GLASS, )
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Cour'is for the Diztrict ct Colua'nh`za
MEMORAND;lM OPINION

 

(March 2_§019) [Dkt. # 12]

Plaintiff C.I. Energia Solar S.A. E.S. Windows (hereinafter “CIES”), a Windows
manufacturer and distributer based out of Barranquilla, Columbia,l seeks to recover an
unpaid balance of $ l ,161,424.35 for materials supplied to the construction of the Art Place
at Fort Totten Project in Washington, D.C. (hereinafter “Project”). Plaintiff brought this
action in D.C. Superior Court against Ranger East Coast (“Ranger East”)_the
subcontractor responsible for providing Window systems for the Project, Ranger
Specialized Glass, Inc. (“Ranger Specialized Glass”)_an affiliate of Ranger East, and

others,2 alleging breach of contract, unjust enrichment, payment on bond, and violation of

 

l CIES has a Wholly-owned subsidiary-E.S. Windows LLC (“ESW”)-based in Florida.
Complaint (“Compl.”) [Dkt. # l-l] 1l 2.
2 Three of the defendants have filed answers and are therefore not parties to this motion to

 

 

 

the D.C. Prompt Payment Act, D.C. Code Ann., § 27-131, et seq. Defendants removed the
case on diversity grounds on March 5, 2018. Currently before the Court is Defendant
Ranger Specialized Glass’s Motion to Dismiss (“Def.’s Mot.”) [Dkt. # 12], for failure to
state a claim under Fed. R. Civ. P. lZ(b)(6). Upon review of the evidence in the record and
the relevant casleaw, defendant’s motion to dismiss [Dkt. # 12], for the following reasons,
will be GRANTED.

BACKGROUND

This case arises from the construction of the Art Place at Fort Totten Project located
in northeast Washington, D.C. (hereinafter “Project”). Complaint (Compl.) [Dkt. # l-l] 1
12. Ranger East signed on as a subcontractor in November of 2014, agreeing to provide
the windows systems for the Project, among other things. Id. ll 14. Meanwhile, Ranger
Specialized Glass executed a payment bond with Berkley lnsurance Company covering all
subcontractors who supplied labor and materials within the scope of that subcontract Ia’.
ll 15; see also id., Ex. 2 (“Payment Bond”).

ln October of 2015, CIES sent a quote to Ranger Specialized Glass’s address in
Houston, TX, offering to provide windows and doors for the entire Project. Id. 1l 16; see

also id., Ex. 3 (“Quotation”). Later that month, Ranger East executed a purchase order

 

dismiss: Foulger-Pratt Contracting Company, LLC (“Foulger-Pratt”)_the general
contractor on the Project, ia’. 1l 12, Travelers lnsurance Company (“Travelers”)_who
executed a payment bond for all subcontractors and sub-subcontractors who supplied labor
and materials to the Project, id. ll 30, and Berkley lnsurance Company (“Berkley”)-who
executed a payment bond for those supplying labor and materials to the Project. id. 1 15;
id., Ex. 2. Ranger East has not filed a response to the complaint.

2

 

 

 

with CIES in the amount of $4,430,291.000. Ia’. ll l7; see also z'a’., Ex. 4 (“Purchase
Order”), at 1-2. Of that amount, CIES alleges that it is still owed $l,161,424.35 for work
performed on the project between September 5, 2016 and July 29, 2017. Ia’. ll 19-21. CIES
sent Notice of Payment Bond Claim to Berkley trying to recover this outstanding amount
on August lO, 2017, Ia’. ll 23, but no payment has been remitted to date. Ia’. ll 22, 28.
Defendant Ranger Specialized Glass seeks to dismiss the claims against it for breach
of contract, unjust enrichment, payment on bond, and violation of the D.C. Prompt
Payment Act, on the grounds that plaintiff only has a contract with Ranger East, and has
therefore failed to state a claim against Ranger Specialized Glass under Rule 12(b)(6). See
generally Def.’s Mot. [Dkt. # 12]. Defendant also argues that the payment on bond and
unjust enrichment claims are inappropriate as to Ranger Specialized Glass. See ia’.
Plaintiff, in turn, argues that there are grounds for piercing the corporate veil and treating
Ranger Specialized Glass and Ranger East as the same company, and that its claims for
payment on bond and unjust enrichment are also appropriate vis-a-vis Ranger Specialized
Glass. See Plaintiff”s Opp. to Motion to Dismiss (“Pl.’s Opp.”) [Dkt. # 15], at 2. For the
following reasons, defendant’s motion to dismiss [Dkt. # 12] will be GRANTED.

ANALYSIS

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a
complaint for failure to state a claim if it appears, assuming the alleged facts to be true and
drawing all inferences in plaintiffs favor, that the “plaintiff can prove no set of facts in

support of lits] claim that would entitle [it] to relief.” Harrz's v. Laa'ner, 127 F.3d 1121,

 

 

 

1123 (D.C. Cir. 1997) (internal citation omitted). In evaluating a motion to dismiss, the
Court may consider “the facts alleged in the complaint [and] any documents attached to or
incorporated in the complaint….” See Plesha v. Ferguson, 725 F. Supp. 2d 106, 110
(D.D.C. 2010) (citing EEOC v. Sl. Francz`s Xavz`er Parochz'al Sch., l 17 F.3d 621, 624 (D.C.
Cir. 1997)). Here, plaintiff has attached to the complaint documents which are relevant to
the motion to dismiss, including the Payment Bond, Quotation, and Purchase Order. See
Compl., Exs. 2, 3, and 4. l may consider these “without converting the motion [to dismiss]
to one for summary judgment.” Plesha, 725 F. Supp. 2d at llO-ll (internal citation
omitted).

I. Breach of Contract

Plaintiff maintains that it has a contract with Ranger Specialized Glass. As
evidence, plaintiff points to the fact that Quotation for the window systems was sent to
“RangerGlass” at Ranger’s address in Houston, TX, not Ranger East’s address in Virginia.
Pl.’s Opp. at 4 (citing Compl., Ex. 3). Plaintiff also alleges that “Ranger” uses both names
interchangeably, Pl.’s Opp. at 2, 5, and that only Ranger Specialized Glass is registered to
do business in DC, whereas Ranger East is not. Icl. at 2 (citing Compl. at 3-4). Defendant
Ranger Specialized Glass moves to dismiss on the grounds that it cannot be held liable for
any contractual violations under Counts llI or V because (l) it had no contractual
relationship with CIES, and (2) it is not an alter ego of affiliate Ranger East. See Ranger
Specialized Glass’s Reply in Support of Motion to Dismiss (“Def.’s Reply”), at 2~3. For

the following reasons, I agree.

 

 

 

First, there is no direct contract with Ranger Specialized Glass. While it is true that
plaintiffs Quotation for materials was sent to Ranger Specialized Glass’s address in
Houston, TX, parties agree that the Purchase Order was placed by Ranger East. Ial.; Pl.’s
Opp. at 4. The Quotation price of $4,445,495.00 notably differs from the final amount of
$4,430,291.00, so at the very least it appears that the Purchase ()rder represented a counter-
offer that CIES apparently accepted. Compare, Compl., Ex. 3, with Compl., Ex. 4.3
Without a direct contract, plaintiff must pierce the corporate veil to bring any claim against
Ranger Specialized Glass.

Under D.C. law, “[g]enerally, the corporate entity will be respected, but a party may
be permitted to pierce the corporate veil upon proof, that there is (l) unity of ownership
and interest, and (2) use of the corporate form to perpetrate fraud or wrong, or other
considerations of justice and equity justify it.” Esz‘ate of Ralez`gh v. Mitchell, 947 A.2d 464,
470 (D.C. 2008) (internal citation omitted). Although no single factor controls, courts
generally inquire, “whether corporate formalities have been disregarded, (2) whether
corporate funds and assets have been extensively intermingled with personal assets, (3)
inadequate initial capitalization, and (4) fraudulent use of the corporation to protect

personal business from the claims of creditors.”4 Ia’. at 470_71. Ultimately, “[v]eil-

 

3 The Court declines to unnecessarily reach the merits of whether there is a valid contract
at this time, but suffice it to say that if any contract existed, it was with Ranger East, not
Ranger Specialized Glass.

4 “Although this test generally is used to reach an individual behind a corporation, this
same test has been applied to pierce the corporate veil between two corporations, such as
between parent-subsidiary corporations.” Shapz`ro, Lz'fschl'tz & Schram, P.C. v. Hazara’, 90

5

 

 

 

piercing is an extraordinary procedure that is not to be used lightly,” and the case must
“present[] the extreme circumstances that call for disregard of the corporate form.”
Schattner v. Gz'rard, Inc., 668 F.2d 1366, 1370 (D.C. Cir. 1981).

Plaintiff`s veil-piercing argument here boils down to one allegation: defendants
Ranger Specialized Glass and Ranger East “utilized both names at different times.” Pl.’s
Opp. at 5. Unfortunately for plaintiff, that mere allegation is insufficient to pierce the veil.
See Ivanov v. Sunset Pools Mgmt., Inc., 524 F. Supp. 2d 13, 15 (D.D.C. 2007) (granting
motion to dismiss where plaintiff failed to raise “any specific allegations of [defendant’s]
misuse of the corporate form”).

Courts in this district “ha[ve] specifically held that the joint use of trademarks and
a common marketing image, along with shared executives between two companies, [are]
‘not Sufficient to establish’ alter ego statuS.” Gonzalez v. Intemacl`onal De Elevaa’ores,
S.A., 891 A.2d 227, 238 (D.C. 2006) (quoting Dl`amond Chemical Co. v. Atofma
Chemicals, Inc., 268 F. Supp. 2d 1, 9 (D.D.C. 2003)). Beyond corporate branding, plaintiff
has not alleged that Ranger Specialized Glass and Ranger East used the corporate form “to
perpetuate a fraud or wrong” or that “other considerations of justice and equity” justify
piercing the veil. Estate ofRaleigh, 947 A.2d at 470. Indeed, there is no inequity here, as
plaintiff will still be able to recover for all of its claims against other defendants_including

Ranger East-even if its claims against Ranger Specialized Glass are dismissed. As a

 

F. supp. 2d 15, 23 n. 6 (D.D.C. 2000).

 

 

 

result, the Court finds no basis to pierce the corporate veil and hold Ranger Specialized
Glass liable for plaintiffs alleged contractual harms. 1 therefore dismiss Counts 111 and V
as to Ranger Specialized Glass.5
II. Unjust Enrichment

While there is no contract with Ranger Specialized Glass, there likely is a contract
with Ranger East. Yet plaintiff contends that it can nevertheless pursue alternative theories
of relief in the form of unjust enrichment Plaintiff is mistaken. Where a contract exists,
an unjust enrichment claim generally is not appropriate because it requires a court to
“displace the terms of that contract and impose some other duties not chosen by the
parties.” Emerine v. Yancey, 680 A.2d 1380, 1384 (D.C. 1996) (internal citation omitted);
see also Harrington v. Trotman, 983 A.2d 342, 346 (D.C. 2009) (“[T]here can be no claim
for unjust enrichment when an express contract exists between the parties.”) (internal
citation omitted). D.C. courts consider “promissory estoppel and unjust enrichment as
remedies for failed agreements,” and “tend not to allow either action to proceed in the
presence of an actual contract between the parties.” Vila v. Inter-Am. Inv., Corp., 570 F.3d
274, 279 (D.C. Cir. 2009); see also Plesha, 725 F. Supp. 2d at 112 (quoting Bloomgarden
v. Coyer, 479 F.2d 201, 210 (D.C. Cir. 1973)) (“There is, of course, no need to resort to [a
quasi~contract] when the evidence sustains the existence of a true contract, either express

or implied in fact.”). lt follows that the claim for unjust enrichment against Ranger

 

5 By plaintiff’ s own admission, Count V_violation of the D.C. Prompt Payment Act-
presupposes a contract between parties. See Pl.’s Opp. at 8.

7

 

 

 

Specialized Glass, Count IV, should also be dismissed
III. Payment on Bond

Finally, while Ranger Specialized Glass is perhaps a proper party to plaintiffs suit
to recover on the surety bond with Berkley, it not a necessary one. Defendant is correct
that courts generally find that a bond principal is not a necessary party where complete
recovery is possible without the bond principal See, e.g., Ficl. & Deposl`t Co. of Maryland
v. Je]jferson Cty. Comm'n, Civil No. 09-247, 2009 WL 10688424, at *3 (N.D. Ala. Apr. 13,
2009) (“[T]herefore, although El\/IR may be a pr_o@ party to this action, it is not an
indispensable party because the rights and liabilities between F&D and the JCC can be
determined without affecting the rights and liabilities between El\/[R and the JCC.”)
(internal citations omitted, emphasis in original); Atl. Refz`nz'shing & Restoration, Inc. v.
Travelers Cas. & Sur. Co. ofAm., 272 F.R.D. 26, 30 (D.D.C. 2010) (“courts now presume
that the principal is adequately represented by its surety because they both have the ‘same
ultimate objective,’ i.e., to avoid liability on the payment bond.”) (internal citation
omitted). In the context of this suit, the bond provides that CIES may maintain
“independent actions upon this Bond” against either the Principal (Ranger Specialized
Glass) or the Surety (Berkley). Compl., Ex. 2. Therefore, Ranger Specialized Glass is not

a necessary party for relief and 1 will dismiss Count 11 as to Ranger Specialized Glass.

 

 

 

CONCLUSION

For the foregoing reasons, the Court GRANTS Defendant Ranger Specialized
Glass’s Motion to Dismiss [Dkt. # 12] for failure to state a claim under Rule l2(b)(6). An

Order consistent with this decision accompanies this l\/Iemorandum Opinion.

RiCHARIQg-§izoi\r
United State istrict Judge

 

 

