Fiberlight, Llc v. Washington Metropolitan Area Transit Authority

MOTION to Dismiss for Lack of Jurisdiction Plaintiff's Amended Complaint

D.D.C.January 13, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FIBERLIGHT, LLC, ) 11700 Great Oaks Way, Suite 100 ) Alpharetta, Georgia 30022 ) ) Plaintiff, ) ) Civil Action No. 1:16-cv-02248 (ESH) v. ) ) WASHINGTON METROPOLITAN AREA ) TRANSIT AUTHORITY, ) 600 5th Street, NW ) Washington, D.C. 20001 ) ) Defendant. ) DEFENDANT WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY’S MOTION TO DISMISS UNDER FED. R. CIV. P. 12(b)(1), 12 (b)(6) & 9(b) Defendant Washington Metropolitan Area Transit Authority (“WMATA”), pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(6) and 9(b), hereby moves to dismiss Plaintiff FiberLight, LLC’s (“FiberLight”) first amended complaint based on the following reasons: 1. The applicable statute of limitations bars FiberLight’s claims; 2. Sovereign immunity bars FiberLight’s claims; 3. FiberLight’s complaint fails to state a claim for which relief can be granted; 4. FiberLight fails to assert claims that pass muster under the Twombly/Iqbal standard; and 5. FiberLight’s claims fail to satisfy the requirements of Fed. R. Civ. P. 9(b). In support of this motion, WMATA refers the Court to its memorandum of points and authorities, filed contemporaneously herewith. 1 Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 1 of 30 Respectfully submitted, WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY /s/ Gerard J. Stief Gerard J. Stief #925933 Chief Counsel, Appeals & Special Litigation /s/ Michael K. Guss Michael K. Guss #465171 Associate General Counsel WMATA-COUN 600 Fifth Street, N.W. Washington, D.C. 20001 (202) 962-1468 Attorneys for Defendant/Counter-Plaintiff WMATA CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 13th day of January 2017, a copy of the foregoing was electronically transmitted and served, via the Court’s ECF system, on: James C. Falvey Charles A. Zdebski Jeffrey P. Brundage Eckert Seamans Cherin & Mellott, LLC 1717 Pennsylvania Avenue, N.W. 12th Floor Washington, D.C. 20006 /s/ Michael K. Guss Michael K. Guss 2 Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 2 of 30 TABLE OF CONTENTS INTRODUCTION ....................................................................................................................... 1 FACTUAL BACKGROUND ..................................................................................................... 2 PROCEDURAL POSTURE .........................................................................................................4 ARGUMENT .............................................................................................................................. 4 I. FIBERLIGHT’S COMPLAINT SHOULD BE DISMISSED BECAUSE THE CLAIMS ARE TIME-BARRED BY THE STATUTE OF LIMITATIONS. ................. 4 A. The Applicable Statutes of Limitation Bar FiberLight’s Claims ............................... 5 B. FiberLight’s Declaratory Judgment Claim is Time-Barred. ...................................... 6 II. WMATA’S SOVEREIGN IMMUNITY BARS FIBERLIGHT’S DECLARATORY JUDGMENT CLAIM ....................................................................... 7 A. WMATA’s Sovereign Immunity ............................................................................... 8 B. Sovereign Immunity Applies Where WMATA Engages in Discretionary Acts ........8 C. WMATA’s Immunity Applies Whether FiberLight’s Claims Sound in Contract or Tort ........................................................................................................10 1. WMATA’s Sovereign Immunity Applies to Any Equitable or Quasi-Contractual Claims ................................................................................... 10 2. WMATA’s Sovereign Immunity Also Applies to Tort Claims. ......................... 12 3. WMATA is also Immune to Declaratory Judgment Actions...............................13 III. ALL COUNTS OF THE COMPLAINT FAIL TO STATE A CLAIM FOR WHICH RELIEF CAN BE GRANTED .........................................................................14 A. Counts I and II fail to allege the elements for a claim of misrepresentation ..................................................................................................... 14 B. Count III fails to state a claim because there is no independent cause of action for breach of the duty of good faith and fair dealing, and FiberLight cannot meet the standards for such an action as a matter of law ..............................16 i Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 3 of 30 IV. FiberLight’s Complaint Does Not Pass Muster under the Twombly/Iqbal Standard......17 V. FiberLight’s Allegations Regarding Breach of Contract by Misrepresentation Fails the Particularity Requirement of Rule 9(b). ............................ 19 CONCLUSION ......................................................................................................................... 22 ii Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 4 of 30 TABLE OF AUTHORITIES Cases Air Transport Ass’n, of America v. Lenkin, 711 F. Supp. 2d 25 (D.D.C. 1989) ..............................6 Allworth v. Howard Univ., 890 A.2d 194, 201 (D.C. 2006) ..........................................................17 Anderson v. USAA Cas. Ins. Co., 221 F.R.D. 250 (D.D.C. 2004) ................................................ 19 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ......................................................................................... 18 Barrer v. Women’s Nat. Bank, 761 F.2d 752 (D.C. Cir. 1985) ................................................... 10 Beebe v. WMATA, 129 F.3d 1283 (D.C. Cir. 1997) .................................................................... 8, 9 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................. 18 Burkhart v. WMATA, 112 F.3d 1207 (D.C. Cir. 1997) ............................................................... 8, 9 Cadet v. Draper & Goldberg, PLLC, Civil Action No. 05-2105, 2007 WL 2893418 (D.D.C. 2007) .............................................................................................15 C.B. Harris & Company, Inc. v. Wells Fargo & Co., 113 F. Supp. 3d 166 (D.D.C. 2015) ......... 18 C & E Services, Inc. v. Ashland Inc., 601 F.Supp.2d 262 (D.D.C. 2009.) ....................................16 Choharis v. State Farm Fire and Cas. Co., 961 A.2d 1080 (D.C. 2008) ..................................... 12 Clayton v. District of Columbia, 931 F. Supp. 2d 192 (D. D.C. 2013) ........................................ 13 Dant v. District of Columbia, 829 F.2d 69 (D.C. Cir. 1987) .......................................................... 8 Dep't of the Army v. Blue Fox, Inc., 525 U.S. 255 (1999) .............................................................11 Diamond v. Davis, 680 A.2d 364 (D.C. 1996) ................................................................................6 DiLeo v. Ernest & Young, 901 F.2d 624 (7th Cir. 1990) ................................................................20 District–Florida Corp. v. Penny, 62 App. D.C. 268, 66 F.2d 794 (1933) .......................................6 Eastbanc, Inc. v. Georgetown Park Associates II, L.P., 940 A.2d 996 (D.C. 2008) ...................... 5 Estate of McKenney, 953 A.2d 336 (D.C.2008) ........................................................................... 10 Greenbelt Ventures, LLC v. WMATA, 481 F. App'x 833 (4th Cir. 2012) ..................................... 11 High v. McLean Fin. Corp., 659 F. Supp. 1561 (D.D.C. 1987) ................................................... 12 iii Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 5 of 30 Hodges v. Gov’t of District of Columbia, 975 F. Supp. 2d 33 (D.D.C. 2013) ...............................15 Jacobson v. Hofgard, 168 F. Supp. 3d 187 (D.D.C. 2016)........................................................... 19 Jacobson v. Oliver, 201 F. Supp.2d 93 (D.D.C. 1996.) ................................................................17 In re Johnson, 820 A.2d 535 (D.C. 2003) .....................................................................................10 Ins. Co. of N. Am. v. D.C., 948 A.2d 1181 (D.C. 2008) ................................................................11 Kingston Constructors, Inc. v. WMATA, 860 F. Supp. 2d 886 (1994) ......................................... 11 KiSKA Const. Corp. v. WMATA, 321 F.3d 1151 (D.C. Cir. 2003) ............................................. 8, 9 Kuwait Airways Corp. v. American Sec. Bank, N.A., 890 F.2d 456 (D.C. Cir. 1989) .................... 5 Lane v. Pena, 518 U.S. 187 (1996) ................................................................................................13 Morris v. WMATA, 781 F.2d 218 (D.D.C. 1986)............................................................................ 8 Mullin v. Washington Free Weekly, Inc., 785 A.2d 296 (D.C. 2001) ............................................. 5 Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342 (1944) ......................................4 Rails Corp. v. Comm. on Foreign Inv., 758 F.3d 296 (D.C. Cir. 2014) ....................................... 18 Resolution Trust Corp. v. District of Columbia, 78 F.3d 606 (D.C. Cir. 1996) ............... 10, 14, 15 Tri-State Hosp. Supply Corp. v. United States, 341 F.3d 571(D.C. Cir. 2003) ............................ 13 United States v. Kubrick, 444 U.S. 111 (1979) ................................................................................4 United States v. Neustadt, 366 U.S. 696 (1961) ........................................................................... 12 WMATA v. Quik Serve Foods, Inc., Civil Nos. 04-838 and 04-687, 2006 WL 1147933 (D.D.C. 2006) ............................................ 16 Watters v. WMATA, 295 F.3d 36 (D.C. Cir. 2002) ................................................................... 8, 11 Wright v. Howard Univ., 60 A.3d 749 (D.C. 2013) ..................................................................... 17 Z Street, Inc. v. Koskinen, 44 F. Supp. 3d 48 (D. D.C. 2014) ....................................................... 13 Statutes: D.C. CODE ANN. § 12-301(7) & (8) (2016) .................................................................................... 3 D.C. CODE ANN. § 9-1107.01(80) (2016) ....................................................................................... 6 iv Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 6 of 30 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FIBERLIGHT, LLC, ) ) Plaintiff, ) ) Civil Action No. 1:16-cv-02248 (ESH) v. ) ) WASHINGTON METROPOLITAN AREA ) TRANSIT AUTHORITY, ) ) Defendant. ) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF WMATA’S MOTION TO DISMISS UNDER FED. R. CIV. P. 12(b)(1), 12 (b)(6) & 9(b) WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY Gerard J. Stief #925933 Chief Counsel, Appeals & Special Litigation Michael K. Guss #465171 Associate General Counsel WMATA-COUN 600 Fifth Street, N.W. Washington, D.C. 20001 (202) 962-1468 Attorneys for Defendant/Counter-Plaintiff WMATA Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 7 of 30 INTRODUCTION FiberLight, LLC’s (“FiberLight”) first amended complaint (the “complaint” or “FAC”) is a transparent attempt to avoid paying more than one million dollars in contractually-obligated license fees to the financially-strapped Washington Metropolitan Transit Authority (“WMATA”). By filing suit, FiberLight seeks to gain through litigation what it otherwise has no right to – the continued use of and access to WMATA’s facilities for free, indefinitely. Even assuming, arguendo, that FiberLight has a right to use the D.C. rights-of-way as it alleges, that right does not mean that it has the concomitant right to use the WMATA System. FiberLight’s right to use the WMATA System only arose through the License Agreement, which FiberLight breached by refusing to pay WMATA the required license fees. FiberLight’s complaint should be dismissed for a host of reasons. First, it raises issues that could have been raised in 2006, when the parties first entered the License Agreement. But FiberLight failed to raise those issues until more than ten years later, and the first amended complaint provides no reasonable basis for that delay. Additionally, WMATA is immune from declaratory judgment actions, tort claims, and requests for equitable relief under its sovereign immunity. Moreover, FiberLight fails to plead sufficient facts to meet the requirements necessary for its breach of contract claim based upon what it alleges was WMATA’s misrepresentation – even though its first amended complaint has provided FiberLight with the proverbial second bite at the apple to do so. Finally, FiberLight’s claim of a misrepresentation fail to meet the standards set by the Twombly and Iqbal line of cases, as well as the requirements of Fed. R. Civ. P. 9(b). FiberLight’s complaint should be dismissed, for the following reasons: 1 Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 8 of 30 1. The applicable statute of limitations bars FiberLight’s claims; 2. Sovereign immunity bars FiberLight’s claims 3. FiberLight’s complaint fails to state a claim for which relief can be granted; 4. FiberLight fails to assert claims that pass muster under the Twombly/Iqbal standard; and 5. FiberLight’s claims fail to satisfy the requirements of Fed. R. Civ. P. 9(b). FACTUAL BACKGROUND On October 23, 2006, FiberLight and WMATA entered into a License Agreement (hereinafter, the “Agreement”). (FAC ¶ 10 and FAC, Ex. 1.) In that Agreement, WMATA licensed to FiberLight the right to use the “WMATA System,” as defined in the Agreement, to run its fiber optic cables in exchange for license fee. (See, e.g., FAC, Ex. 1 at § 3.1.) The Agreement required Plaintiff to pay the agreed-to license fee annually in advance to WMATA. (See FAC, Ex. 1, Article 10.) From the inception of the Agreement until 2013, FiberLight paid WMATA the license fees it negotiated. (FAC ¶ 22.) At no point prior to 2014 did FiberLight express any concerns over WMATA’s authority to license the use of the WMATA System, or otherwise protest the license fee. (See id.) FiberLight has not paid the license fee since 2013. (Id.) On August 22, 2014, WMATA received a letter from FiberLight that included four questions regarding the Agreement (the “August 2014 Letter”). (FAC ¶ 29.) In November 2014, WMATA issued the annual invoice to FiberLight per the terms of Article 10 in the Agreement. FiberLight did not pay the invoice. (FAC ¶ 22.) On January 22, 2015, WMATA responded to FiberLight’s August 2014 Letter, providing answers to each of FiberLight’s questions. (FAC, Ex. 3.) 2 Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 9 of 30 On March 10, 2015, WMATA received a letter from FiberLight in which, for the first time since the execution of the Agreement over eight years prior, FiberLight questioned WMATA’s authority to charge the agreed to license fees. (See, e.g., FAC ¶ 58.) Since that time, the parties have had numerous written and verbal exchanges in which WMATA consistently reiterated its rejection of plaintiff’s interpretation of WMATA’s rights to own, control and lease its own property. (See, e.g., FAC, Exs. 2-6.) Yet FiberLight continues to use the WMATA System, without paying license fees, in violation of Article 10.3, which states, in pertinent part, “FiberLight shall remit the full amount of the invoice, without deduction, set-off or protest, to WMATA.” (FAC, Ex. 1 at § 10.3.) (Emphasis added.) On October 14, 2016, WMATA, per Article 20.1(a) of the Agreement, informed FiberLight it was in breach and that, unless it paid the past due amounts in full, WMATA would exercise its rights under the Agreement to: (i) terminate as set forth in Article 21.1; (ii) request an orderly termination plan from FiberLight as set forth in Article 23; and (iii) if necessary remove or take ownership of FiberLight’s fiber optic cables as provided for in Article 2.4. (See, e.g., FAC ¶ 89.) On November 2, 2016, WMATA terminated the License Agreement with FiberLight. (See FAC, Ex. 6.) FiberLight’s complaint alleges three counts: Count I alleges that WMATA breached the Agreement by making misrepresentations regarding ownership of the WMATA System. Count II seeks a declaratory judgment interpreting the Agreement in light of WMATA’s alleged misrepresentation and seeking equitable relief. Count III asserts a claim for an alleged breach of the duty of good faith and fair dealing, but the allegations of that claim repeat allegations made in Count I, and rely upon the alleged misrepresentation alleged in Count I. 3 Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 10 of 30 PROCEDURAL POSTURE On November 11, 2016, FiberLight filed its original complaint. (Docket No. 1.) On December 7, 2016, WMATA filed its answer and counterclaims, (Docket No. 7), as well as a motion to dismiss. (Docket No. 6.) On December 28, 2016, FiberLight filed its answer to WMATA’s counterclaim, (Docket No. 12), and its amended complaint. (Docket No. 13.) ARGUMENT I. FIBERLIGHT’S COMPLAINT SHOULD BE DISMISSED BECAUSE ITS CLAIMS ARE TIME-BARRED BY THE STATUTE OF LIMITATIONS Counts I and II of FiberLight’s complaint arise from the 2006 Agreement, and Count III relies upon the same misrepresentation alleged in Count I. Yet, FiberLight waited more than 10 years to bring its claims, and the complaint is bereft of any explanation for FiberLight’s delay in bringing those claims. Accordingly, the applicable statute of limitations bars them. Whether FiberLight’s claims sound in contract or tort is immaterial, because, under either theory, they should be dismissed as time-barred by the three-year statute of limitations period that governs both tort and contract claims under D.C. law. As the United States Supreme Court has noted, “[s]tatutes of limitations … represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and the ‘the right to be free of stale claims in time comes to prevail over the right to prosecute them.’” United States v. Kubrick, 444 U.S. 111, 116 (1979), citing Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 349 (1944). 4 Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 11 of 30 A. The Applicable Statutes of Limitation Bar FiberLight’s Claims Arising from the 2006 Agreement In the District of Columbia, a three-year statute of limitations governs both tort and contract claims. See D.C. CODE ANN. § 12-301(7) & (8) (2016); see also Kuwait Airways Corp. v. American Sec. Bank, N.A., 890 F.2d 456, 460 (D.C. Cir. 1989). For a breach of contract action, the statute of limitations begins to run at the time of the alleged breach. See, e.g., Eastbanc, Inc. v. Georgetown Park Associates II, L.P., 940 A.2d 996, 1004 (D.C. 2008) (cause of action for breach of contract accrues at the time of the alleged breach). For an action based in tort, the statute of limitations begins to run at the time of the alleged injury. See, e.g., Mullin v. Washington Free Weekly, Inc., 785 A.2d 296, 298-99 (D.C. 2001) (tort action accrues at the time the alleged injury actually occurs). FiberLight’s complaint alleges that WMATA misrepresented its authority to lease conduit rights in the WMATA System to plaintiff under Article 14.1 of the Agreement. (See, e.g., FAC ¶¶ 26-27.) The parties entered into that Agreement on October 23, 2006. The representation in Article 14.1 was made at the time of the execution of the Agreement, thereby giving rise at that time – 2006 – to a putative claim for breach (contract) or an injury (tort) if, as FiberLight alleges, the representation was false. But FiberLight did not file its complaint until more than ten years later, on November 11, 2016. Significantly, FiberLight makes no claim that the facts underlying its alleged misrepresentation claim were either hidden by WMATA, or otherwise undiscoverable. Indeed, other than stating the conclusion that it somehow “first discovered” that WMATA “appeared not to have ‘the power and authority to lease conduit rights in the WMATA ROW’ to FiberLight” sometime in 2014, (id.), FiberLight fails to provide any support for how that discovery came 5 Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 12 of 30 about or why it only first “observed that much of the WMATA network lay directly beneath the public rights-of-way” more than ten years after the fact. (Id.) This is especially true where FiberLight could have, at any time – either prior to execution of the Agreement, or in the three-year period provided by the applicable statute of limitations after execution – availed itself of the public records and laws of the District of Columbia and Virginia, or otherwise examined the issue. See, e.g., Diamond v. Davis, 680 A.2d 364, 376 (D.C. 1996), citing District–Florida Corp. v. Penny, 62 App. D.C. 268, 269, 66 F.2d 794, 795 (1933) (holding that “information contained in the abstract [of title] was available to the plaintiff before the receipt of the abstract, and more than three years [the limitation period] before the filing of the suit, for it was all contained in the land records ... and consequently [was] all within the constructive notice of the purchaser”). FiberLight attempts, at ¶ 86 of the FAC, to imply that the statute of limitations should not apply because, somehow, the Agreement is an installment contract, and thus, each annual invoice constituted a “new breach of the License Agreement” causing the limitations period to begin anew. While WMATA fundamentally disagrees that the Agreement represents an installment contract, FiberLight’s argument is not valid in any event, because any claim it had accrued when all of the elements of that claim were present, which occurred, accepting the allegations of the complaint as true, in 2006. See, e.g., Air Transport Ass’n, of America v. Lenkin, 711 F. Supp. 2d 25, 27 (D.D.C. 1989). Because FiberLight brought its claims more than ten years after the date of execution of the License Agreement, they are time-barred and must be dismissed. 6 Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 13 of 30 B. FiberLight’s Declaratory Judgment and Good Faith and Fair Dealing Claims are also Time-Barred Similarly, FiberLight’s declaratory judgment claim (Count II) must also be dismissed as time-barred, or moot. The Declaratory Judgment Act does not provide an independent cause of action; rather, it provides a mechanism to have a court determine a controversy between the parties that otherwise has an independent basis for federal jurisdiction. See, e.g., 28 U.S.C. § 2201. Count II arises under the License Agreement, alleging the same misrepresentation asserted in Count I. (See, e.g., FAC ¶¶ 88, 89, and 92.) Thus, to the extent that the declaratory judgment claim arises under the Agreement, that claim is time-barred, for the same reasons set forth in Section I (A), supra. Similarly, FiberLight’s breach of the implied covenant of good faith and fair dealing claim (Count III) is also time-barred, because it relies on the same alleged misrepresentation as Counts I and II. Count III alleges that WMATA failed to prove its property rights, failed to follow the dispute resolution procedures of the Agreement, improperly sought to terminate the Agreement, and refused to comply with Article 21 of the Agreement. (See FAC ¶ 97.) All of those allegations assume the same alleged misrepresentation alleged in support of Counts I and II, because, if there was no such misrepresentation, then there would be no reason for WMATA to establish its property rights, adhere to dispute resolution procedures, terminate the Agreement, and refuse to comply with Article 21. Additionally, to the extent either claim seeks to determine prospective rights under the Agreement, they are moot, because on November 2, 2016, WMATA terminated that Agreement. 7 Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 14 of 30 II. WMATA’S SOVEREIGN IMMUNITY BARS FIBERLIGHT’S CLAIMS FiberLight’s claims must also be dismissed because they are barred by WMATA’s sovereign immunity. A. WMATA’s Sovereign Immunity WMATA is the product of an interstate compact entered into by Virginia, Maryland and the District of Columbia. See, e.g., KiSKA Const. Corp. v. WMATA, 321 F.3d 1151, 1159 (D.C. Cir. 2003). Maryland and Virginia successfully conferred their Eleventh Amendment immunity to WMATA as an instrumentality of both states. See, e.g., Morris v. WMATA, 781 F.2d 218, 219- 20 (D.C. 1986). Congress, because it has the power to legislate for the District of Columbia and to create an instrumentality that is immune from suit, also conferred sovereign immunity to WMATA. Id. Section 80 of the WMATA Compact provides a limited waiver of WMATA’s sovereign immunity for its contracts and torts “committed in the conduct of any proprietary function,” but not for torts occurring “in the performance of a governmental function.” Id.; see also Beebe v. WMATA, 129 F.3d 1283, 1287 (D.C. Cir. 1997) (quoting D.C. CODE ANN. § 9- 1107.01(80)). Unless the limited waiver of immunity applies, the court lacks jurisdiction to enter judgment against WMATA. See, e.g., Watters v. WMATA, 295 F.3d 36, 39 (D.C. Cir. 2002). B. Sovereign Immunity Applies where WMATA Engages in Discretionary Acts WMATA is immune from FiberLight’s claims because any actions taken by WMATA related to the complaint were discretionary. WMATA activities considered “discretionary” are shielded by WMATA’s sovereign immunity, while ministerial functions are not. Dant v. District of Columbia, 829 F.2d 69, 74 (D.C. Cir. 1987); see also Burkhart v. WMATA, 112 F.3d 1207, 1216 (D.C. Cir. 1997). To ascertain whether WMATA functions are governmental or proprietary, interpretation of 8 Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 15 of 30 WMATA’s Compact is a matter of federal common law. See, e.g., Beebe, 129 F.3d at 1288. Courts interpret Section 80 as incorporating the distinction between discretionary and ministerial functions. See, e.g., KiSKA, 321 F.3d at 1158; see also Dant v. District of Columbia, 829 F.2d 69, 74 (D.C. Cir. 1987). Courts developed a two-part test to determine what WMATA activities are discretionary versus ministerial. See, e.g., Dant, 829 F.2d at 74. To determine what activities constitute a discretionary function, the Court must first determine whether any “statute, regulation, or policy specifically prescribes a course of action for an employee to follow.” Beebe, 129 F.3d at 1287. If so, sovereign immunity is unavailable. See, e.g., Burkhart, 112 F.3d at 1217. If the governing statutes or regulations leave room for the exercise of discretion, then the Court must make a second inquiry: “whether the exercise of discretion is grounded in social, economic or political goals. See, e.g., KiSKA at 1159. If the exercise of discretion is grounded in the above-mentioned goals, the activity is “governmental” and is thus shielded by WMATA’s sovereign immunity. Id., see also Beebe, 129 F.3d at 1287. The leasing of conduit rights to an outside party is a discretionary function of WMATA. There is no statute or regulation that requires WMATA to lease rights to its property to outside parties. WMATA’s decision to enter into an agreement with FiberLight was grounded purely in the economic goals and policies of WMATA to obtain revenues from its facilities. Any alleged misrepresentation by WMATA concerning its right to lease its conduit rights to FiberLight would have been made as part of WMATA’s discretionary decision to enter into an agreement with FiberLight in the first place. Therefore, because all of FiberLight’s claims relate to that alleged misrepresentation, WMATA’s actions are protected by its sovereign immunity. The representation at issue was 9 Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 16 of 30 made as part of a discretionary function of WMATA – negotiations with FiberLight to enter into the Agreement. In sum, sovereign immunity applies in this case because the leasing of the WMATA System to FiberLight was discretionary, and that discretionary action supported WMATA’s economic goals and policies. C. WMATA’s Immunity Applies Whether FiberLight’s Claims Sound in Contract or Tort The purported misrepresentation by WMATA is the fundamental factual predicate for all of FiberLight’s claims. To the extent that it is unclear whether FiberLight’s claims sound in contract, as an innocent misrepresentation, or in tort, as an intentional misrepresentation or fraud, does not matter, because under either theory, FiberLight’s claims should be dismissed as a result of WMATA’s sovereign immunity. 1. WMATA’s Sovereign Immunity Applies to Any Equitable or Quasi- Contractual Claims A claim of innocent misrepresentation, while related to contract, nonetheless “has its origins in equity,” the remedy for which is rescission and restitution. See, e.g., Barrer v. Women’s Nat. Bank, 761 F.2d 752, 757-758 (D.C. Cir. 1985), see also Resolution Trust Corp. v. District of Columbia, 78 F.3d 606, 608 (D.C. Cir. 1996). “The rescission of a contract is an action that we have concluded is equitable in nature because it is seeking to restore the aggrieved party to that party's position at the time the contract was made as opposed to seeking damages for breach of contract.” In re Estate of McKenney, 953 A.2d 336, 342 (D.C. 2008) quoting In re Johnson, 820 A.2d 535, 539 (D.C. 2003). In the complaint, FiberLight appears to seek some combination of rescission, restitution and/or reformation of the Agreement, effectively asking the Court to excise any obligation for FiberLight to pay WMATA, but retaining FiberLight’s alleged right to access the WMATA System for whatever purposes it chooses. (See, e.g., FAC, Prayer 10 Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 17 of 30 for Relief.). While reformation is not typically an available remedy for innocent misrepresentation1, it is nonetheless, like rescission, an equitable remedy. See, e.g. Ins. Co. of N. Am. v. D.C., 948 A.2d 1181, 1191 (D.C. 2008) (“the remedy of reformation is equitable in nature” quoting Restatement (Second) of Contracts § 155, cmt. d (1981)). Thus, assuming arguendo, that FiberLight’s claims relate to an innocent misrepresentation based in contract, that claim is barred by WMATA’s sovereign immunity, as a suit in equity not waived by Section 80 of the Compact. Cf. Watters v. WMATA, 295 F.3d 36 (D.C. Cir. 2002). The Compact states that WMATA “shall be liable for its contracts,” Compact § 80, but does not offer a specific waiver for equitable or quasi-contract remedies like rescission, restitution, or reformation. A waiver of sovereign immunity, like that contained in § 80, must be “‘unequivocally expressed’ in the statutory text and strictly construed, in terms of its scope, in favor of the sovereign.” Greenbelt Ventures, LLC v. WMATA, 481 F. App'x 833, 838 (4th Cir. 2012), quoting Dep't of the Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999). Moreover, a waiver of immunity is to be “construed strictly in favor of the sovereign and not enlarged beyond what the language requires.” Kingston Constructors, Inc. v. WMATA, 860 F. Supp. 2d 886, 888– 89 (1994). Here, while the Compact expressly waives WMATA’s sovereign immunity with respect to liability arising out of its contracts, it has not provided that WMATA is amenable to suit for equitable or quasi-contract remedies. See, e.g., Greenbelt Ventures, LLC, 481 F. App’x at 838 (finding that, without an “unequivocally expressed” intention to the contrary, WMATA 1 Reformation of a contract is an equitable remedy reserved for instances of mutual mistake. See, e.g. Ins. Co. of N. Am. v. D.C., 948 A.2d 1181, 1191 (D.C. 2008). FiberLight has not alleged mutual mistake, but rather some form of misrepresentation. 11 Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 18 of 30 had not waived its immunity with respect to the quasi-contract claims of part performance or promissory estoppel). Liability on the contract is not what FiberLight’s misrepresentation claim seeks to accomplish. Rather, FiberLight appears to be asking this Court for rescission and/or reformation of the contract (by requesting a finding that WMATA never had a right to charge FiberLight under the Agreement, and insisting that certain portions of the Agreement remain viable, except for FiberLight’s obligation to pay WMATA for rights to use the WMATA System (see FAC, Prayer for Relief.) WMATA has not waived its sovereign immunity with respect to this type of equitable or quasi-contractual claim, and, therefore, the complaint should be dismissed. 2. WMATA’s Sovereign Immunity Also Applies to Tort Claims In the alternative, if FiberLight’s misrepresentation claim is based in tort, it is also barred by WMATA’s sovereign immunity, as it was committed, if at all, during conduct of a discretionary activity by WMATA. A misrepresentation, whether by fraud or negligence, is a tort. United States v. Neustadt, 366 U.S. 696, 705 (1961); see also High v. McLean Fin. Corp., 659 F. Supp. 1561, 1566 n.4 (D.D.C. 1987) (“Intentional misrepresentation is … an essential element of the tort of fraud, not a separate tort in itself.”) FiberLight’s complaint alleges that WMATA misrepresented its right to lease conduit rights “in the WMATA ROW” to FiberLight. (FAC ¶ 79.) Even treating FiberLight’s complaint in the light most favorable to it, FiberLight is essentially claiming tortious conduct by WMATA in order to induce plaintiff to enter into the Agreement; therefore, any claim of fraudulent inducement, fraudulent and/or negligent misrepresentation, stands on its own outside the contractual relationship between the parties as a tort. See, e.g., Choharis v. State Farm Fire and Cas. Co., 961 A.2d 1080, 1089 (D.C. 2008). 12 Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 19 of 30 Therefore, whether innocent, negligent or fraudulent, because FiberLight’s claims all rely on a purported misrepresentation, they must be dismissed, because they barred by WMATA’s sovereign immunity. 3. WMATA is also Immune to Declaratory Judgment Actions Although Section 80 of the WMATA Compact is a limited waiver of WMATA’s immunity, WMATA has not waived its sovereign immunity for declaratory judgment actions. It is well-established that if sovereign immunity for a particular claim is not waived, a federal court lacks subject-matter jurisdiction to hear that claim and it is, therefore, subject to dismissal under Rule 12(b)(1). See, e.g., Clayton v. District of Columbia, 931 F. Supp. 2d 192, 200 (D. D.C. 2013); see also Z Street v. Koskinen, 44 F. Supp. 3d 48, 63 (D. D.C. 2014). A waiver of sovereign immunity must be unequivocal and will not be implied. See, e.g., Clayton, 931 F. Supp. 2d at 200 (citing Lane v. Pena, 518 U.S. 187, 192 (1996)). A plaintiff bears the burden of establishing that sovereign immunity has been waived or abrogated. See, e.g., Tri-State Hosp. Supply Corp. v. United States, 341 F.3d 571, 575 (D.C. Cir. 2003). FiberLight has not pled a single fact or allegation that WMATA waived or abrogated its sovereign immunity for declaratory judgment claims. The WMATA Compact does not waive or abrogate WMATA’s immunity from declaratory judgment claims. This result is consistent with prior precedent of this Court. For example, in Z Street, Inc. v. Koskinen, 44 F. Supp. 3d 48 (D. D.C. 2014), a defendant raised a sovereign immunity defense to a declaratory judgment action seeking to resolve constitutional issues. The Court found that sovereign immunity did not apply to that declaratory judgment claim, because the Administrative Procedures Act expressly waived “sovereign immunity with respect to suits for nonmonetary damages that allege wrongful action by an agency or its officer or employees.” Id. at 63. But 13 Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 20 of 30 FiberLight’s complaint alleges no grounds for a waiver of sovereign immunity by WMATA for declaratory judgment actions. Because FiberLight “bears the burden of establishing that sovereign immunity has been waived or abrogated,” id., and it has not done so, its declaratory judgment claim, Count II, must be dismissed for this additional reason as well. III. ALL COUNTS OF THE COMPLAINT FAIL TO STATE A CLAIM FOR WHICH RELIEF CAN BE GRANTED The heart of Counts I and II, as set forth supra, allege a misrepresentation by WMATA. Count III of the complaint asserts a breach of the duty of good faith and fair dealing. None of these counts state a claim upon which relief may be granted. First, the misrepresentation claims of Counts I and II fail to allege the essential elements of a misrepresentation claim. Second, the good faith and fair dealing claim of Count III alleges a purported obligation to provide information contained nowhere in the Agreement, and also relies on the same misrepresentation claim. A. Counts I and II fail to allege the elements for a claim of misrepresentation Under D.C. law, the essential elements of a claim for fraudulent misrepresentation are: (1) a false representation; (2) in reference to a material fact; (3) the plaintiff relied upon the assertion; (4) plaintiff was justified in its reliance; and (5) plaintiff relied to its detriment. See e.g., Resolution Trust Corp. v. District of Columbia, 78 F.2d 606, 609 (D.C. Cir. 1996.) At the very least, the complaint fails to plead a false representation and justifiable reliance by FiberLight. Although the complaint makes the conclusory allegation that WMATA’s claim to own the WMATA System is “materially untrue”, (see, e.g., FAC ¶ 79), it alleges no facts that support that legal conclusion. Even on a motion to dismiss, the Court is not compelled to accept legal 14 Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 21 of 30 conclusions as true. See, e.g., Hodges v. Gov’t of District of Columbia, 975 F. Supp. 2d 33, 42, (D.D.C. 2013) (“[T]he Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff’s legal conclusions.”). FiberLight’s complaint also fails to allege that any purported reliance on WMATA’s representation in Article 14.1 of the Agreement was justifiable. In order to satisfy the justifiable reliance element of the claim, D.C. law requires a plaintiff to “make . . . a reasonable investigation” into the subject matter of an alleged assertion’s falsity. Cadet v. Draper & Goldberg, PLLC, Civil Action No. 05-2105, 2007 WL 2893418, *12 (D.D.C. 2007), citing Resolution Trust Corp. v. District of Columbia, 78 F .3d 606, 609 (D.C.Cir.1996). FiberLight’s complaint does not allege that FiberLight conducted any due diligence prior to the execution of the Agreement in 2006, and fails to explain the reason that it took over 8 years for FiberLight to “discover” that WMATA allegedly did not have the power or right to lease rights to the use of the WMATA System. (FAC ¶ 27.) Incredibly, the complaint alleges that FiberLight – again, 8 years after entering into the Agreement – first “realized”, in 2014, that “the WMATA network lay directly beneath the public rights-of-way”, (FAC ¶ 28), but does not even attempt to explain how its claim was not obvious before and at the time of the execution of the Agreement in 2006. There is no allegation that the D.C. public rights-of-way somehow changed after 2006, or that the WMATA System changed during that same time period. Moreover, it is demonstrably inaccurate for FiberLight to maintain that the D.C. rights-of-way are co-extensive with portions of the WMATA System licensed by FiberLight, based upon facts on which this Court can take judicial notice, such as the fact that the licensed portions of the WMATA System include areas outside of the District of Columbia, in Virginia. 15 Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 22 of 30 Thus, the complaint, on its face, does not support any inference that FiberLight justifiably relied upon an alleged material misrepresentation by WMATA. “Consequently, plaintiffs' failure to make such an investigation precludes their recovery on misrepresentation grounds because they cannot satisfy the detrimental reliance component that is required to establish an actionable claim.” Cadet at *12, Accordingly, Counts I and II must be dismissed, because the complaint fails to allege the essential elements of a misrepresentation claim. B. Count III fails to state a claim because there is no independent cause of action for breach of the duty of good faith and fair dealing, and FiberLight cannot meet the standards for such an action as a matter of law. Count III alleges that WMATA breached the Agreement because it failed the “provide a detailed explanation of its legal authority and property rights, but failed to do so.” (FAC ¶ 97.) But there is no citation to a provision of the Agreement requiring WMATA to provide that information. The duty of good faith and fair dealing “is not a means to add new terms to the agreement.” C & E Services, Inc. v. Ashland Inc., 601 F.Supp.2d 262, 275 (D.D.C. 2009.) To the extent Count III alleges a cause of action arising outside of the contract between the parties, it fails to state a viable cause of action because there is no independent cause of action for a breach of the duty of good faith and fair dealing outside of a contract. Id. (“What is clear is that the duty must arise out of a contract between the parties.”). Independently, Count III should be dismissed because other counts of the complaint incorporate that claim. Count III alleges that WMATA breached the covenant of good faith and fair dealing by failing to provide information sought by counsel for FiberLight and failed to follow the dispute resolution procedures in the Agreement. (See FAC ¶ 97.) But those allegations are also made in support of Count I. (See, e.g., FAC ¶¶ 78 and 83.) 16 Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 23 of 30 This Court directly addressed this issue in a previous case involving WMATA, holding that a claim for the breach of the duty of good faith and fair dealing is not an independent cause of action because other counts incorporate that claim. In Washington Metropolitan Area Transit Authority v. Quik Serve Foods, Inc., Civil Nos. 04-838 and 04-687, 2006 WL 1147933 (D.D.C. 2006), the Court held that “breach of the implied covenant is not an independent cause of action when the allegations are identical to other claims for relief under [an] established cause of action.” Id. at *5, citing Jacobson v. Oliver, 201 F. Supp.2d 93, 98 n. 2 (D.D.C. 1996.) The Curt in Quik Serve also stated that “[s]ince Quik Serve’s allegation of bad faith is identical to other established causes of action within the complaint, the claim for breach of the implied covenant of good faith and fair dealing cannot survive.” Id. at 4. Thus, because the allegations in Count III are identical to the allegations of Count I, FiberLight cannot maintain Count III under the rule set forth in Quik Serv, and Count III should be dismissed. The D.C. Court of Appeals has set strict standards for a claim of breach of the duty of good faith and fair dealing. In Wright v. Howard Univ., 60 A.3d 749, 754 (D.C. 2013), the Court affirmed summary judgment for the university in a claim by a professor for breach of contract and breach of the implied covenant of good faith and fair dealing, stating that “[t]o state a claim for breach of the implied covenant of good faith and fair dealing, a plaintiff must allege either bad faith or conduct that is arbitrary and capricious.” See also Allworth v. Howard Univ., 890 A.2d 194, 201 (D.C. 2006) (affirming summary judgment because the professor did not establish that the university breached its duty of good faith and fair dealing.) FiberLight has not, and cannot, meet the stringent standards for such a claim as a matter of law. 17 Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 24 of 30 IV. FIBERLIGHT’S COMPLAINT DOES NOT PASS MUSTER UNDER THE TWOMBLY/IQBAL STANDARD The complaint also fails to state a claim under the Twombly/Iqbal standard, because FiberLight’s allegations amount to little more than a collection of legal conclusions and conjecture, unsupported by any facts, or even factual allegations, indicating that FiberLight’s claims are plausible on their face. A plaintiff who fails to plead in his or her complaint “enough facts to state a claim to relief that is plausible on its face” and to “nudge” the claim “across the line from conceivable to plausible” is subject to dismissal by a Rule 12(b)(6) motion. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Under Twombly, a “court deciding a motion to dismiss must not make any judgment about the probability of the plaintiff’s success … [,] 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.” C.B. Harris & Company, Inc. v. Wells Fargo & Co., 113 F. Supp. 3d 166, 170 (D.D.C. 2015) (quoting Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008)). However, the Court should not accept as true legal conclusions or inferences unsupported by the facts alleged. Rails Corp. v. Comm. on Foreign Inv., 758 F.3d 296, 315 (D.C. Cir. 2014). A complaint which “tenders naked assertion[s] devoid of further factual enhancement” will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557). FiberLight’s allegation is nothing more than an unsupported belief that WMATA misrepresented its right to lease conduit rights in subway tunnels it controls. The allegation that WMATA made a material misrepresentation appears to be based upon FiberLight’s 18 Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 25 of 30 unsupportable assertion that WMATA, ten years after the execution of the License Agreement, somehow has an affirmative duty to provide FiberLight proof of ownership of its own subway tunnels and facilities. FiberLight’s allegation is little more than an attempt to shift its own burden of proof to WMATA. FiberLight claims that WMATA made a misrepresentation, (see, e.g., FAC ¶ 79), but fails to explain anything else related to this legal conclusion, which is not entitled to any presumption of veracity. The spurious nature of the complaint is demonstrated in its internal inconsistency. FiberLight alleges that WMATA does not have the right to lease its conduit rights, yet it still appears to pursue a continued contractual relationship with WMATA, just at a lower rate of payment. (See, e.g., FAC ¶¶ 79 and 83.) If the allegation is that WMATA does not own or have the right to lease use of its subway tunnels or facilities, then, WMATA is incapable of being in a contractual relationship with FiberLight to lease rights it does not have. V. FIBERLIGHT’S ALLEGATIONS REGARDING BREACH OF CONTRACT BY MISREPRESENTATION FAILS THE PARTICULARITY REQUIREMENT OF RULE 9(B) To the extent that FiberLight’s complaint is more accurately characterized as asserting claims for fraudulent inducement, fraudulent misrepresentation or negligent misrepresentation, it should be dismissed because FiberLight failed to satisfy the heightened-pleading requirements for fraud and mistake under Rule 9(b). Fed. R. Civ. P. 9(b); see also Jacobson v. Hofgard, 168 F. Supp. 3d 187, 206 (D.D.C. 2016) (citing Jefferson v. Collins, 905 F. Supp. 2d 269, 286 (D.D.C. 2012) (Rule 9(b)’s particularity requirements apply to claims for fraudulent and negligent misrepresentation). “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). Rule 9(b) ensures “that the opponent has 19 Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 26 of 30 notice of the claim,” prevents an attack on a party’s reputation where the fraud claim is unsubstantiated and protects a party against a suit “brought solely for its settlement value.” Anderson v. USAA Cas. Ins. Co., 221 F.R.D. 250, 253 (D.D.C. 2004). Rule 9(b) requires the plaintiff to plead with particularity “matters such as the time, place, and content of the false misrepresentations, the misrepresented fact, and what the opponent retained or the claimant lost as a consequence of the alleged fraud.” Id. at 253. “In other words, Rule 9(b) requires that the pleader provide the ‘who, what, when, where, and how’ with respect to the circumstances of the fraud.” Id. at 253 (quoting DiLeo v. Ernest & Young, 901 F.2d 624, 627 (7th Cir. 1990)). FiberLight’s complaint fails the particularity requirement of Rule 9(b), alleging only that: 27. In 2014, FiberLight first discovered that WMATA appeared not to have “the power and authority . . . to lease conduit rights in the WMATA ROW” to FiberLight under the License Agreement. FiberLight observed that much of the WMATA network lay directly beneath the public rights-of-way, an area that FiberLight already had the right to occupy as a certificated public utility. 28. FiberLight had to that point in time reasonably relied upon the representation by WMATA, reasonably assuming it would not attempt to license real or personal property rights that it did not possess. However, the realization that the WMATA network lay directly beneath the public rights-of-way led FiberLight to inquire whether WMATA had some form of independent ownership of such real property beneath the public rights-of-way. 29. This case came about because, by letter dated August 22, 2014, FiberLight inquired of WMATA as to WMATA’s right, vel non, to lease the real or personal property in the rights- of-way occupied by FiberLight. In that letter, FiberLight made some basic inquiries as to WMATA’s authority… (FAC ¶¶ 27-30.). FiberLight’s complaint is devoid of any particulars whatsoever, and is little more than conjecture and legal conclusions, unsupported by any facts. FiberLight fails to plead any facts supporting FiberLight’s legal conclusion that WMATA made a misrepresentation at all. FiberLight simply states a legal conclusion based entirely its attempt to shift the burden of proof 20 Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 27 of 30 concerning the alleged misrepresentation. Although FiberLight derides WMATA’s argument as “novel”, that “argument” simply states the appropriate burden of proof. FiberLight claims that WMATA made a misrepresentation, but fails to make a single allegation supporting its legal conclusion that WMATA’s statement is false. Moreover, FiberLight has not pled, with any particularity, what losses it suffered as a result of WMATA’s alleged misrepresentation or facts supporting any link between its business losses and the alleged misrepresentation. To the contrary, the indisputable history between the parties demonstrates that FiberLight earned revenue from its customers since 2014, yet has refused to pay WMATA the fees it was supposed to pay to provide that service. Because the complaint lacks the “who, what, when, where and how” required of a misrepresentation allegation, the complaint must be dismissed under Rule 9(b). 21 Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 28 of 30 CONCLUSION For the forgoing reasons, WMATA respectfully requests that the Court dismiss FiberLight’s complaint, with prejudice. Respectfully submitted, WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY /s/ Gerard J. Stief Gerard J. Stief #925933 Chief Counsel, Appeals & Special Litigation /s/ Michael K. Guss Michael K. Guss #465171 Associate General Counsel WMATA-COUN 600 Fifth Street, N.W. Washington, D.C. 20001 (202) 962-1468 Attorneys for Defendant/Counter-Plaintiff WMATA 22 Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 29 of 30 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FIBERLIGHT, LLC, ) ) Plaintiff, ) ) v. ) Civil Action No. 1:16-cv-02248 (ESH) ) WASHINGTON METROPOLITAN AREA ) TRANSIT AUTHORITY ) ) Defendant ) ORDER UPON CONSIDERATION of the foregoing Motion to Dismiss filed by WMATA, and any opposition thereto, it is this ___ day of January 2017. ORDERED, that the Motion to Dismiss is GRANTED, and that FiberLight’s First Amended Complaint is dismissed, with prejudice. __________________________ United States District Judge Cc (electronically): James C. Falvey Charles A. Zdebski Jeffrey P. Brundage Eckert Seamans Cherin & Mellott, LLC Gerard J. Stief WMATA Case 1:16-cv-02248-ESH Document 16 Filed 01/13/17 Page 30 of 30