Winmar Constr., Inc. v. Kasemir

233 F.Supp.3d 53

WINMAR CONSTRUCTION, INC., Plaintiff,

v.Theodore KASEMIR and Roger Greenfield, Defendants.

Theodore Kasemir, et al., Counter–Plaintiffs,

v.Winmar Construction, Inc., Counter–Defendant.

Winmar Construction, Inc., Counter–Plaintiff,

v.Townhouse DC, LLC and Roger Greenfield, Counter–Defendants.

Civil Action No. 14–2112 (RBW)

United States District Court, District of Columbia.

Signed February 2, 2017

Charles Henry Camp, Sr., Theresa Brownell Bowman, The Law Offices of Charles H. Camp, PC, Washington, DC, for Plaintiff/Counter–Defendant /Counter–Plaintiff.

Catherine A. Cooke, Robert M. Winter, Robbins, Saloman & Patt, Ltd., Chicago, IL, Laura Fraher, Shairpo, Lifschitz & Schram, PC, Washington, DC, for Defendants/Counter–Plaintiffs/Counter–Defendants.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

Winmar Construction, Inc. ("Winmar"), the plaintiff in this civil matter, asserts claims of breach of contract, unjust enrichment, and quantum meruit against defendants Theodore Kasemir and Roger Greenfield for their alleged "failure to pay Winmar for labor and materials provided" according to the terms of a construction contract for the "build-out of space in a large office building to be used as a restaurant [that would be operated as the] ‘Townhouse Kitchen & Bar’ " (the "Contract"). Complaint ("Compl.") ¶¶ 1, 9. Currently before the Court is the Defendants' Motion for Summary Judgment ("Defs.' Mot."). Upon careful consideration of the parties' submissions,¹ the Court concludes that it must deny the defendants' motion.

I. BACKGROUND

A. The Contract and the Various Parties

Winmar is a construction firm incorporated in the District of Columbia. See Compl. ¶ 6. On January 24, 2013, Winmar entered into the Contract with Restaurants America, see id. , Exhibit ("Ex.") A (Standard Form Agreement Between Owner and Contractor for a Small Commercial Project ("Contract")) at 21,² "for construction services to be performed for the build-out of a restaurant to be called ‘Townhouse Kitchen & Bar’ located at 700 6th Street, NW, in Washington, D.C.," Defs.' Mem. at 1; see also Compl. ¶ 9. On May 10, 2013, Winmar stopped its construction work on the premises "based on Restaurant America's failure to make payment to Winmar in accordance with the terms of the [Contract]." Def.'s Mot., Ex. 2 (Affidavit of Jason Wilt ("Wilt Affidavit")) ¶ 5.

Restaurants America³ was an "assumed corporate name" of Restaurants America Consulting Group, Inc., ("RACGI") from December 29, 2006, see Compl., Ex. D (Application to Adopt, Change or Cancel an Assumed Corporate Name dated Dec. 29, 2006) at 40, through June 1, 2009, see id. , Ex. E (Application to Adopt, Change or Cancel an Assumed Corporate Name dated June 1, 2009) at 43, and from July 18, 2013, through at least July 1, 2015, see id. , Ex. F (Illinois Application to Adopt an Assumed Corporate Name dated July 18, 2013) at 45. RACGI "was formed as an Illinois corporation on or about July 20, 2006[,] for purposes of providing various restaurant consulting services." Defs.' Mot., Ex. 8 (Affidavit of Roger Greenfield ("Greenfield Affidavit") ¶ 2.

Greenfield "is the sole shareholder, director, President, Secretary, and Treasurer of RACGI," Compl. ¶ 7; Defendants' Amended Answer to Plaintiff's Complaint and Counterclaim ("Am. Answer & Countercl.") at 3, and "Kasemir has, at various times, identified himself as the ‘Director of Finance’ for ... Restaurants[ ]America," Am. Answer & Countercl. at 4. Kasemir authorized the signing of the Contract on Restaurants America's behalf. Pl.'s Mot., Ex. A (Deposition of Theodore Kasemir ("Kasemir Deposition"), ECF No. 15–4 at 77:5–10.⁴

B. The Superior Court of the District of Columbia Lawsuit

On July 17, 2013, Winmar filed a complaint against "Restaurants[ ]America Consulting Group, Inc. d/b/a Restaurants America" in the Superior Court of the District of Columbia, seeking damages in the amount of $575,732.20 for breach of contract, quantum meruit, and unjust enrichment. See Defs.' Mot., Ex. 1 (Complaint filed in the Superior Court of the District of Columbia) at 4. After RACGI failed to respond to the complaint, the Superior Court granted Winmar's motion for a default judgment on December 13, 2013, and entered judgment against RACGI in the amount of $575,732.20, plus interest (the "Superior Court judgment"). See id. , Ex. 4 (Superior Court Order dated December 13, 2013) at 2. Thereafter, Winmar registered the Superior Court judgment in the Circuit Court of Cook County, Illinois. See id. , Ex. 6 (Filing of a Foreign Judgment dated Feb. 25, 2014) at 1.

After Winmar concluded that RACGI was unable to satisfy the Superior Court judgment, Winmar filed in Superior Court a Motion to Hold Roger Greenfield T/A Restaurants America and Theodore Kasemir Jointly and Severally Liable on Judgment, see id. , Ex. 7 (Superior Court Order dated Oct. 22, 2014) at 2, "on the same theories [as those in this case]: that Greenfield is liable on the judgment where he is an alter ego of judgment debtor RACGI d/b/a ‘Restaurants America,’ and in the alternative, that Kasemir is liable on the Winmar Contract he signed on behalf of a non-existent entity," Pl.'s Opp'n at 7. The Superior Court denied Winmar's Motion on October 22, 2014, stating in its Order:

If [Winmar] wishes to seek relief from [ ] Greenfield and [ ] Kasemir on the theory that they harmed [Winmar] while acting under the cover of a sham corporation, it must file and serve each of them with a complaint containing such allegations and naming them individually as a defendant.

Defs.' Mot., Ex. 7 (Superior Court Order dated Oct. 22, 2014) at 3.

C. The Current Lawsuit

Winmar originally filed this action against Greenfield and Kasemir in the Superior Court on November 12, 2014, see Compl. at 1, and the defendants timely removed the case to this Court, see Notice of Removal (Dec. 12, 2014) at 1. In its Complaint, Winmar asserts three claims: (1) breach of contract as to Kasemir on the theory that "Kasemir is personally liable on the Contract he signed in his name on January 24, 2013[,] on behalf of ‘Restaurants America,’ an unregistered trade name," Compl. ¶ 28; (2) quantum meruit as to both Kasemir and Greenfield on the grounds that they benefitted from Winmar's construction work, see id. ¶ 37; and (3) an alternative action to hold Greenfield liable on the Superior Court judgment against RACGI, see id. ¶ 41. The defendants have raised the affirmative defenses of judicial estoppel and, in the alternative, mistake, see Am. Answer & Countercl. at 16–18, and have filed an alternative counterclaim requesting that the Court "enter an order reforming the Contract to reflect that the Tenant, Townhouse DC, LLC[,] is the party that contracted with Winmar," id. at 19–20. In response, Winmar filed its own additional, alternative counterclaims for unjust enrichment against Townhouse, see Winmar Construction, Inc.'s Answer to (Alternative) Counterclaim and Supplemental Pleading to Assert Alternative Counterclaims Against Counter–Plaintiffs ¶¶ 13–19, and to hold Greenfield liable for all of the debts that Townhouse owes to Winmar, id. ¶¶ 20–25.

II. STANDARD OF REVIEW

Courts will grant a motion for summary judgment under Federal Rule of Civil Procedure 56(c) if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). When ruling on a Rule 56(c) motion, the Court must view the evidence in the light most favorable to the nonmoving party. Holcomb v. Powell , 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ). The Court must therefore draw "all justifiable inferences" in the non-moving party's favor and accept the non-moving party's evidence as true. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The non-moving party, however, cannot rely on "mere allegations or denials." Burke v. Gould , 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson , 477 U.S. at 248, 106 S.Ct. 2505 ), and "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted). Accordingly, the non-moving party must not rely on "mere allegations or denials ... but ... must set forth specific facts showing that there [are] genuine issue[s] for trial." Anderson , 477 U.S. at 248, 106 S.Ct. 2505 (second omission in original) (citation and internal quotation marks omitted). "[T]here is no [genuine] issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," id. at 249, 106 S.Ct. 2505 (citation omitted), and if the Court concludes that the evidence adduced by the non-moving party "is merely colorable ... or is not significantly probative," id. (citations omitted), or if the non-moving party has otherwise "failed to make a sufficient showing on an essential element of h[is] case with respect to which [ ]he has the burden of proof," Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), then a genuine issue for trial does not exist.

III. ANALYSIS

A. Judicial Estoppel

The defendants argue that Winmar's claims of breach of contract against Kasemir and quantum meruit against Kasemir and Greenfield are barred by the equitable doctrine of judicial estoppel. See Defs.' Mem. at 8–14. The doctrine of judicial estoppel "generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase." New Hampshire v. Maine , 532 U.S. 742, 749, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (quoting Pegram v. Herdrich , 530 U.S. 211,...