UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DANIEL BRINK, et al.,

Plaintiffs,

v. Civ. Action No. 11-1733 (EGS/ZMF) XE HOLDING, LLC et al.,

Defendants.

MEMORANDUM OPINION

I. Introduction

Nicky Pool (“Ms. Pool” or “Plaintiff”) brings this action

against Continental Insurance Company (“CNA” or “Defendant”),

alleging breach of contract and tortious breach of the covenant

of good faith and fair dealing. See Fourth Amended Compl. for

Damages & Declaratory & Injunctive Relief (“FAC”), ECF No. 214

¶¶ 1, 153-68. 1

Pending before the Court is CNA’s Motion to Dismiss for

lack of subject matter jurisdiction and for failure to state a

claim. See Def. Continental Insurance Company’s Mot. Dismiss

1 When citing electronic filings throughout this Opinion, the Court refers to the ECF page numbers, not the page numbers of the filed documents. 1 Counts VI & VII Fourth Am. Compl. (“Def.’s Mot.”), ECF No. 220.

On May 19, 2022, Magistrate Judge Zia M. Faruqui issued a Report

& Recommendation (“R. & R.”) recommending that the Court grant

in part and deny in part CNA’s motion, ECF No. 220. See R. & R.,

ECF No. 248 at 12.

Both parties raise several objections to Magistrate Judge

Faruqui’s R. & R. See generally Pl. Nicky Pool’s Mem. Supp.

Objs. R. & R. of Magistrate on CNA’s Mot. Dismiss Fourth Am.

Compl. (“Pl.’s Objs.”), ECF No. 250-1; Def. Continental

Insurance Company’s Objs. Magistrate Judge’s Proposed Findings &

Recommendations Def.’s Mot. Dismiss Counts VI & VII Fourth Am.

Compl. (“Def.’s Objs.”), ECF No. 252. Upon careful consideration

of the R. & R.; the objections, oppositions, and reply thereto;

the applicable law; and the entire record herein, the Court

hereby ADOPTS IN PART Magistrate Judge Faruqui’s R. & R., ECF

No. 248; and GRANTS IN PART and DENIES IN PART CNA’s Motion to

Dismiss, ECF No. 220.

II. Background

A. Factual

For the purposes of resolving CNA’s Motion to Dismiss, the

Court assumes the facts alleged in the Fourth Amended Complaint

to be true and construes them in Ms. Pool’s favor. See Baird v.

Gotbaum,

, 169 n.2 (D.C. Cir. 2015) (citation

omitted).

2 In 2007, CNA arranged for Ms. Pool to provide daily nursing

services in South Africa to Daniel Brink (“Mr. Brink”), a

contractor who had sustained several injuries from an explosion

in Iraq. See FAC, ECF No. 214 ¶¶ 86–87. Ms. Pool submitted a

series of invoices to CNA seeking payment for her services and

reimbursement for other services and supplies. See id. ¶ 88. CNA

initially paid some invoices but at some point, stopped. See id.

¶ 89. Because she had not been reimbursed for services and

supplies, medical companies and service providers later brought

collections actions totaling over $150,000 against Ms. Pool and

her company, Guardian Medical. See id. ¶¶ 90–91.

On September 26, 2011, Ms. Pool and other plaintiffs

(collectively, “Plaintiffs”) filed this class action against

various government contractors and their insurance carriers. See

Compl., ECF No. 1 ¶¶ 453–64. Plaintiffs alleged violations of

the Longshore and Harbor Workers’ Compensation Act,

et seq.; the Racketeer Influenced and Corrupt Organizations

Act,

et seq.; and the Americans with

Disabilities Act (“ADA”),

et seq.; along with

various state-law claims. See generally

The Court dismissed

all claims, see Brink v. XE Holding, LLC,

(D.D.C. 2012), aff’d in part, vacated in part, remanded sub

nom. Brink v. Cont’l Ins. Co.,

(D.C. Cir. 2015);

and the Court of Appeals for the District of Columbia Circuit

3 (“D.C. Circuit”) affirmed the ruling except the dismissal of the

ADA claims, see Brink,

, 1128–29. The D.C.

Circuit stated that its ruling did “not preclude separate

proceedings for . . . Nicky Pool to allege a breach of

contract.”

. Ms. Pool thereafter filed an amended

complaint alleging breach of contract and tortious breach of the

covenant of good faith and fair dealing. See FAC, ECF No. 214 ¶¶

1, 153-68.

B. Procedural

On March 5, 2018, CNA filed this Motion to Dismiss Ms.

Pool’s state-law claims in the Fourth Amended Complaint. See

Def.’s Mot., ECF No. 220. Ms. Pool submitted her opposition

brief on April 8, 2018, see Pl.’s Resp. & Opp’n Def. CNA’s Mot.

Dismiss Counts V & VI Fourth Am. Compl. Pursuant Rules 12(b)(1)

& 12(b)(6) of Fed. R. Civ. P., ECF No. 227; and CNA filed its

reply brief on April 17, 2018, see Def. Continental Insurance

Company’s Reply Mem. P. & A. in Further Supp. Mot. Dismiss

Counts VI & VII Fourth Am. Compl., ECF No. 234.

On May 19, 2022, Magistrate Judge Faruqui issued his R. &

R. recommending that the Court grant in part and deny in part

CNA’s motion, ECF No. 220. See R. & R., ECF No. 248 at 12. Both

parties raise several objections to the R. & R., see Pl.’s

Objs., ECF No. 250-1; Def.’s Objs., ECF No. 252; and have

submitted briefs in opposition, see Pl. Nicky Pool’s Mem. Opp’n

4 Def. Continental Insurance Company’s Objs. Magistrate Judge’s

Proposed Findings & Recommendations (“Pl.’s Opp’n”), ECF No.

253; Def. Continental Insurance Company’s Resp. Pl. Nicky Pool’s

Objs. Magistrate Judge’s Proposed Findings & Recommendation

Def.’s Mot. Dismiss Counts VI & VII Fourth Am. Compl. (“Def.’s

Opp’n”), ECF No. 255. Ms. Pool also submitted a reply brief. See

Pl.’s Reply Mem. Objs. R. & R. CNA’s Mot. Dismiss Counts (“Pl.’s

Reply”), ECF No. 256. The motion is now ripe and ready for

adjudication.

III. Legal Standard

A. Objections to a Magistrate Judge’s Report and Recommendation

Pursuant to Federal Rule of Civil Procedure 72(b), a party

may file specific written objections once a magistrate judge has

entered a recommended disposition. Fed. R. Civ. P. 72(b)(1)-(2).

A district court “may accept, reject, or modify the recommended

disposition.” Fed. R. Civ. P. 72(b)(3); see also

(b)(1)(C) (“A judge of the court may accept, reject, or

modify, in whole or in part, the findings or recommendations

made by the magistrate judge.”). A district court “must

determine de novo any part of the magistrate judge’s disposition

that has been properly objected to.” Fed. R. Civ. P. 72(b)(3).

“If, however, the party makes only conclusory or general

objections, or simply reiterates his original arguments, the

5 Court reviews the [R. & R.] only for clear error.” Houlahan v.

Brown,

(D.D.C. 2013) (citation and

internal quotation marks omitted). “Under the clearly erroneous

standard, the magistrate judge’s decision is entitled to great

deference” and “is clearly erroneous only if on the entire

evidence the court is left with the definite and firm conviction

that a mistake has been committed.” Buie v. Dist. of Columbia,

No. CV 16-1920 (CKK),

, at *3 (D.D.C. Sept. 12,

2019) (citing Graham v. Mukasey,

(D.D.C.

2009)) (internal quotation marks omitted).

Objections must “specifically identify the portions of the

proposed findings and recommendations to which objection is made

and the basis for the objection[s].” LCvR 72.3(b). “[O]bjections

which merely rehash an argument presented and considered by the

magistrate judge are not ‘properly objected to’ and are

therefore not entitled to de novo review.” Shurtleff v. EPA,

(D.D.C. 2013) (quoting Morgan v. Astrue, No.

08-2133,

, at *3 (E.D. Pa. Oct. 30, 2009)).

B. Rule 12(b)(1) Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(1) provides for

dismissal of an action for “lack of subject matter

jurisdiction.” Fed. R. Civ. P. 12(b)(1). On a Rule 12(b)(1)

motion to dismiss, the party asserting jurisdiction has the

burden of establishing that the Court has subject matter

6 jurisdiction over the case. See Logan v. Dep’t of Veterans

Affs.,

(D.D.C. 2004) (citing McNutt v.

Gen. Motors Acceptance Corp. of Ind.,

, 182–83,

(1936)). “Because Rule 12(b)(1) concerns a court’s ability to

hear a particular claim, the court must scrutinize the [party]’s

allegations more closely when considering a motion to dismiss

pursuant to Rule 12(b)(1) than it would under a motion to

dismiss pursuant to Rule 12(b)(6).” Schmidt v. U.S. Capitol

Police Bd.,

(D.D.C. 2011) (citations

omitted).

To assess whether a complaint sufficiently alleges subject

matter jurisdiction, the Court accepts as true the allegations

of the complaint, see Ashcroft v. Iqbal,

(2009); and liberally construes the pleadings in the plaintiff’s

favor, see Barr v. Clinton,

(D.C. Cir.

2004). The Court may also consider “undisputed facts evidenced

in the record” as well as its own “resolution of disputed

facts.” Herbert v. Nat’l Acad. of Scis.,

(D.C.

Cir. 1992).

C. Rule 12(b)(6) Motion to Dismiss

A motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6) tests the legal sufficiency of a complaint.

Browning v. Clinton,

(D.C. Cir. 2002). A

complaint must contain “a short and plain statement of the claim

7 showing that the pleader is entitled to relief, in order to give

the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.” Bell Atl. Corp. v. Twombly,

(2007) (citation and internal quotation marks

omitted).

Despite this liberal pleading standard, to survive a motion

to dismiss, a complaint “must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible

on its face.” Iqbal,

(citation and internal

quotation marks omitted). “In determining whether a complaint

fails to state a claim, [the court] may consider only the facts

alleged in the complaint, any documents either attached to or

incorporated in the complaint and matters of which [the court]

may take judicial notice.” EEOC v. St. Francis Xavier Parochial

Sch.,

(D.C. Cir. 1997). A claim is facially

plausible when the facts pled in the complaint allow the court

to “draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Iqbal,

. The

standard does not amount to a “probability requirement,” but it

does require more than a “sheer possibility that a defendant has

acted unlawfully.”

“[W]hen ruling on a defendant’s motion to dismiss [pursuant

to Rule 12(b)(6)], a judge must accept as true all of the

factual allegations contained in the complaint.” Atherton v.

8 D.C. Off. of the Mayor,

(D.C. Cir. 2009)

(citation and internal quotation marks omitted). In addition,

the court must give the plaintiff the “benefit of all inferences

that can be derived from the facts alleged.” Kowal v. MCI

Commc’ns Corp.,

(D.C. Cir. 1994).

IV. Analysis

A. The Court Has Diversity Jurisdiction Over Ms. Pool’s Claims

The Fourth Amended Complaint (“FAC”) alleges diversity of

citizenship as a basis for the Court’s jurisdiction. See FAC,

ECF No. 214 ¶ 3. Magistrate Judge Faruqui concluded that Ms.

Pool failed to establish diversity jurisdiction because she

provided no facts to support her legal conclusion that “there is

complete diversity of citizenship of the parties.” R. &. R., ECF

No. 248 at 4-5. Ms. Pool did not object to Magistrate Judge

Faruqui’s conclusion in her objections to the R. &. R., see

generally Pl.’s Objs., ECF No. 250-1; but did argue in her

response to CNA’s objections that CNA incorrectly argued that

there is no diversity jurisdiction, arguing that the FAC alleges

complete diversity of citizenship as to herself and CNA, Pl.’s

Opp’n, ECF No. 253 at 15-16.

The Court has an “affirmative obligation to determine

whether it has subject matter jurisdiction over the action.”

Friends Christian High Sch. v. Geneva Fin. Consultants, 321

, 22 (D.D.C. 2017). Diversity jurisdiction exists when

the action involves citizens of different states, and the amount

in controversy exceeds $75,000.00 per plaintiff, exclusive of

interest and costs.

(a). Each plaintiff must be

diverse from each defendant for diversity jurisdiction to exist.

See In re Lorazepam & Clorazepate Antitrust Litig.,

(D.C. Cir. 2011). “[T]he party seeking the exercise of

diversity jurisdiction bears the burden of pleading the

citizenship of each and every party to the action.” Naartex

Consulting Corp. v. Watt,

(D.C. Cir. 1983). At

this time, the only parties that remain in this action are Ms.

Pool and CNA. Accordingly, Ms. Pool needs to allege complete

diversity between herself and CNA. For the reasons explained

below and liberally construing the pleadings in her favor, the

Court concludes that Ms. Pool has adequately alleged diversity

jurisdiction.

Ms. Pool alleges that she is a foreign national of South

Africa. The FAC alleges that “[o]ne of the Plaintiffs described

below is a foreign national from South Africa who was denied pay

under an agreement with Continental Insurance Company that

caused loss to her and her business as described below.” FAC,

ECF No. 214 ¶ 5. The only Plaintiff who alleges that she was

denied pay under an agreement with CNA is Ms. Pool. See id. ¶¶

153-167.

10 “[A] corporation shall be deemed to be a citizen of every

State and foreign state by which it has been incorporated and of

the State or foreign state where it has its principal place of

business.”

(c)(1). The FAC alleges that CNA’s

headquarters is in Chicago, Illinois. See FAC, ECF No. 214 ¶ 93.

With these allegations, Ms. Pool has adequately alleged complete

diversity between herself and CNA because she has alleged that

she is a citizen of South Africa and that CNA is a citizen of

Illinois. Ms. Pool also alleges damages in excess of $200,000.

. For these reasons, the Court concludes that Ms.

Pool has adequately alleged diversity jurisdiction.

The FAC does not allege that the Court has supplemental

jurisdiction over Ms. Pool’s claims against CNA. Ms. Pool

alleges claims for breach of contract, see

; and

tortious breach of covenant of good faith and fair dealing, see

. However, the FAC alleges only that “[t]he court

has supplemental jurisdiction over the federal common law or

state law claims for fraud, bad faith insurance practices,

outrage, and deception in trade practices.”

. Because the

Court has determined that it has diversity jurisdiction over Ms.

Pool’s claims, however, the Court need not address the parties’

arguments regarding supplemental jurisdiction.

11 B. The Court Adopts the Portion of the R. & R. Regarding the Statute of Limitations

Both parties object to Magistrate Judge Faruqui’s

conclusions as to whether the statute of limitations bars Ms.

Pool’s claims. For the reasons that follow, the Court agrees

with Magistrate Judge Faruqui that Ms. Pool’s invoices from June

30, 2008 to October 30, 2009 fall within the statute of

limitations and that her invoices preceding that period are

barred.

1. Ms. Pool’s Claims Relate Back to the Original Complaint

CNA objects to Magistrate Judge Faruqui’s conclusion that

Ms. Pool’s claims in the Fourth Amended Complaint relate back to

the original Complaint. See Def.’s Objs., ECF No. 252 at 18-20.

An amended complaint “relates back to the date of the

original pleading when[] . . . the amendment asserts a claim or

defense that arose out of the conduct, transaction, or

occurrence set out—or attempted to be set out—in the original

pleading.” Fed. R. Civ. P. 15(c)(1)(B). To determine whether the

amendment relates back, the court inquires “whether the original

complaint adequately notified the defendant[] of the basis for

liability the plaintiff[] would later advance in the amended

complaint.” Meijer, Inc. v. Biovail Corp.,

(D.C. Cir. 2008).

12 CNA asserts that Magistrate Judge Faruqui erred for two

reasons. See Def.’s Objs., ECF No. 252 at 18-20. First, CNA

contends that Magistrate Judge Faruqui failed to consider that

“a new claim cannot relate back to claims that were eliminated

from the prior complaint.”

at 18 (citing Halldorson v. Sandi

Grp.,

(D.D.C. 2013); Wagner v.

Georgetown Univ. Med. Ctr.,

(D.C. 2001)).

Second, CNA argues that Magistrate Judge Faruqui erroneously

limited his inquiry to whether CNA was on notice of Ms. Pool’s

claims and “did not undertake the necessary analysis of whether

[Ms.] Pool’s new individual claim for breach of contract arises

from the ‘same conduct’ that forms the basis of” the claims that

remain in the case. Id. at 19 (citations omitted). Here, CNA

concludes that Ms. Pool’s claims in the Fourth Amended Complaint

cannot relate back to the claims in the original Complaint

because: the Court dismissed the Second Amended Complaint “in

its entirety”; the only claims that remain now are the ADA

claims by other plaintiffs in the case; and the ADA claims do

not pertain to Mr. Brink, Ms. Pool, or CNA. Id.

As to CNA’s first point, Ms. Pool argues that CNA has

misinterpreted the caselaw and that the caselaw limits relation

back only when the older claim was voluntarily dismissed. See

Pl.’s Opp’n, ECF No. 253 at 14 (citing Halldorson, 934 F.2 at

158). The Court agrees with Ms. Pool that the caselaw does not

13 support CNA’s position. In Halldorson, the Court held that the

state-law retaliation claims in the third amended complaint did

not relate back to previous allegations because the second

amended complaint “eliminated” the state-law retaliation claims

and the settlement agreement preceding the second amended

complaint otherwise barred common-law theories of recovery.

Halldorson, 934 F.2 at 158. Here, by contrast, previous

litigation “eliminated” only the class claims alleged by Ms.

Pool and other plaintiffs against CNA and other defendants but

“d[id] not preclude separate proceedings for . . . [Ms.] Pool to

allege [an individual claim for] breach of contract” against

CNA. Brink,

. Halldorson is therefore

distinguishable from the instant case.

Ms. Pool does not address CNA’s second point that

Magistrate Judge Faruqui failed to consider whether her new

claim arose from the same conduct as the original claim. See

Pl.’s Opp’n, ECF No. 253 at 12-14. She instead defends

Magistrate Judge Faruqui’s conclusion that CNA had notice of Ms.

Pool’s claims, see id.; an issue that CNA does not dispute in

its Objections, see generally Def.’s Objs., ECF No. 252 at 18-

20. Despite her silence, the Court is persuaded that Magistrate

Judge Faruqui undertook the necessary Rule 15 analysis here.

“[B]oth elements [of Rule 15]—same conduct and adequate notice—

must be satisfied before relation back of new claims is

14 permitted.” Constr. Interior Sys., Inc., 813 F. Supp. at 37. The

district court there held that the new claim did not relate back

to the original pleadings in part because the “factual

underpinnings” of the new claim were “entirely different” from

those in the original complaint. Id. at 36-37. Here, as

Magistrate Judge Faruqui explained in the R. & R., see R. & R.,

ECF No. 248 at 6; the factual underpinnings of Ms. Pool’s new

claims are the same as those of her previous class claim,

compare FAC, ECF No. 214 ¶¶ 86-97, with Compl., ECF No. 1 ¶¶

453-64. Stated differently, the new individual claim arose from

the same conduct as the original pleading. See United States v.

Hicks,

(D.C. Cir. 2002).

Finally, CNA argues that Ms. Pool’s claims do not relate

back because the D.C. Circuit “did not remand the case with

directions to allow amending the complaint to include Pool’s

individual claims.” Def.’s Objs., ECF No. 252 at 20. This

argument ignores, however, that the D.C. Circuit did not

prohibit Ms. Pool from seeking leave to amend the complaint to

allege individual claims. Cf. Brink,

(explaining that the decision “does not preclude separate

proceedings for . . . [Ms.] Pool to allege a breach of

contract”); Fed. R. Civ. P. 15(a)(2) (“The court should freely

give leave [to amend the complaint] when justice so requires.”).

15 Accordingly, the Court concludes that Ms. Pool’s individual

claims relate back to the original Complaint and ADOPTS that

portion of the R. & R.

2. Magistrate Judge Faruqui Correctly Assumed an Installment Contract with a Three-month Payment Term

Both parties object to Magistrate Judge Faruqui’s analysis

and conclusion as to when Ms. Pool’s claims accrued. See Pl.’s

Objs., ECF No. 250-1 at 7-12; Def.’s Objs., ECF No. 252 at 20-

21.

CNA argues that Magistrate Judge Faruqui incorrectly

assumed the existence of an installment contract. Def.’s Objs.,

ECF No. 252 at 20. CNA asserts that this assumption is erroneous

because it is based on information in Ms. Pool’s Opposition to

CNA’s Motion to Dismiss and not any allegations in the FAC. See

(citing Afram v. United Food & Commercial Workers Unions &

Participating Emp’rs Health & Welfare Fund,

,

279 n.1 (D.D.C. 2013), appeal dismissed, No. 13–7136,

(D.C. Cir. Feb. 21, 2014); Briscoe v. Costco Wholesale

Corp.,

, 83 n.2 (D.D.C. 2014)). Ms. Pool does

not respond to this objection. See generally Pl.’s Objs., ECF

No. 250-1; Pl.’s Opp’n, ECF No. 253; Pl.’s Reply, ECF No. 256.

The Court is not persuaded that Magistrate Judge Faruqui

erred by considering the exhibits Ms. Pool filed with her

Opposition to CNA’s Motion to Dismiss. Although a court may not

16 consider new allegations raised in response to a motion to

dismiss, see Briscoe,

n. 2 (citing Sloan v.

Urban Title Servs., Inc.,

(D.D.C.

2010)); it also “may consider . . . any documents either

attached to or incorporated in the complaint,” EEOC,

. Here, the FAC discusses the “regular invoices [Ms. Pool

sent to CNA] for services she provided, and for the services,

supplies and medical providers whom she engaged to care for Mr.

Brink’s various needs from hospitalizations, wound care,

operations, therapy, and transportation and medical supplies” as

well as CNA’s payment of “some of those invoices.” FAC, ECF No.

214 ¶¶ 88-89. Because the FAC incorporates those invoices and

payment records by reference, Magistrate Judge Faruqui

appropriately considered Ms. Pool’s exhibits. See Gerlich v.

U.S. Dep’t of Just.,

, 5 n.2 (D.D.C. 2009).

In the alternative, CNA contends that Magistrate Judge

Faruqui did not imply a reasonable time for performance under an

installment contract. See Def.’s Objs., ECF No. 252 at 21.

Specifically, CNA argues that Magistrate Judge Faruqui “erred in

disregarding [Ms.] Pool’s own declaration, which concedes that

‘CNA stopped paying invoices in 2007.’”

(quoting Pool Decl.,

ECF No. 227-2 ¶ 8). The Court disagrees with this assessment. In

her declaration, Ms. Pool references documentation of CNA’s

payment history. See Pool Decl., ECF No. 227-2 ¶ 8 (“attached

17 spread sheet, attachment 3 hereto, showing invoicing and

payments with interest, to today’s date that have been

incurred”). In that exhibit, Ms. Pool states that CNA paid her

in three-month intervals. See Ex. 3, ECF No. 227-2 at 21-22. The

Court therefore concludes that Magistrate Judge Faruqui fairly

implied a three-month payment term. See R. & R., ECF No. 248 at

8 (discussing Exhibit 3).

Ms. Pool also objects to Magistrate Judge Faruqui’s

analysis as to whether CNA repudiated the contract. See Pl.’s

Objs., ECF No. 250-1 at 7-12. However, as CNA states in its

Opposition, see Def.’s Opp’n, ECF No. 255 at 9; her objection

merely repeats her Opposition to CNA’s Motion to Dismiss

verbatim, compare Pl.’s Objs., ECF No. 250-1 at 7-12, with Pl.’s

Opp’n & Resp. Def. CNA’s Mot. Dismiss Fourth Am. Compl., ECF No.

227 at 15-19. Accordingly, the Court reviews this objection only

for clear error, see Houlahan,

; and

concludes that Magistrate Judge Faruqui did not err with respect

to his analysis in this portion of the R. & R.

In sum, the Court concludes that Magistrate Judge Faruqui

appropriately assumed the existence of an installment contract

and implied a three-month payment term.

18 3. Magistrate Judge Faruqui Correctly Disregarded Ms. Pool’s Equitable Tolling Arguments

Ms. Pool objects to Magistrate Judge Faruqui’s failure to

apply the doctrine of equitable tolling to her claims. See Pl.’s

Objs., ECF No. 250-1 at 12-15. As with her repudiation argument,

see supra, her objection largely restates her Opposition to

CNA’s Motion to Dismiss verbatim, compare id., with Pl.’s Opp’n

& Resp. Def. CNA’s Mot. Dismiss Fourth Am. Compl., ECF No. 227

at 20-23. The Court therefore reviews Ms. Pool’s objection only

for clear error. See Houlahan,

. Finding no

error, the Court ADOPTS the portion of the R. & R. pertaining to

the statute of limitations.

C. Ms. Pool Adequately Pleaded a Claim for Breach of Contract

CNA objects to Magistrate Judge Faruqui’s conclusion that

Ms. Pool adequately pleaded her claim for breach of contract.

See Def.’s Objs., ECF No. 252 at 21-25. In particular, CNA

argues that: (1) Magistrate Judge Faruqui incorrectly considered

evidence Ms. Pool submitted with her Opposition to its Motion to

Dismiss; (2) Ms. Pool has not alleged the existence of a

contract; and (3) Magistrate Judge Faruqui erred by not

considering its documentary evidence. See

For the reasons

that follow, the Court concludes that Ms. Pool has properly

pleaded her breach of contract claim.

19 CNA first contends that the Court should reject Magistrate

Judge Faruqui’s recommendation because it “is based, in large

part, on new allegations and documentation proffered by [Ms.]

Pool in her opposition.” Id. at 21. As the Court explained

supra, it was appropriate for Magistrate Judge Faruqui to

consider Ms. Pool’s exhibits because they are incorporated into

the FAC by reference. See EEOC,

.

CNA next argues that Magistrate Judge Faruqui should have

recommended dismissal because Ms. Pool has not alleged the

existence of a contract. See Def.’s Objs., ECF No. 252 at 22-24.

Indeed, a plaintiff alleging a breach of contract must plead,

inter alia, a valid contract between the parties. Tsintolas

Realty Co. v. Mendez,

(D.C. 2009). Looking

only at the FAC and not the documents incorporated by reference,

CNA argues that Ms. Pool has failed to allege material terms of

a contract, including: whether Ms. Pool had a contract, when the

contract was executed, when Ms. Pool submitted invoices, the

details of her invoices, or the payment terms. See Def.’s Objs.,

ECF No. 252 at 22-23. CNA further contends that Ms. Pool’s

allegations in the FAC suggest only: that CNA had a contractual

relationship with other entities; and that Ms. Pool had a

relationship with Mr. Brink. See id. at 23-24.

Ms. Pool counters that she has alleged the existence of a

contract. See Pl.’s Opp’n, ECF No. 253 at 16-18. Citing the FAC,

20 she argues that she alleged: “[t]here was an agreement, CNA

acted as if there was, [she] performed services in reliance on

such, [and] CNA paid for some of the invoices (accounts

stated).” Id. at 18. The Court agrees that Ms. Pool has

“sufficiently allege[d] the existence of a contract, its general

terms, and the contractual obligation that [CNA] purportedly

violated (i.e. failing to pay [her]).” Burnett v. Am. Fed’n of

Gov’t Emps.,

(D.D.C. 2015) (explaining

that “[w]hen those elements are pled, . . . courts have held

that plaintiffs have adequately stated a claim, despite the

otherwise imprecise or vague nature of the complaint”). In the

FAC, she alleges an agreement—for her “to perform nursing

services and nurse case management services for [CNA]” and for

CNA “to pay her for her services.” FAC, ECF No. 214 ¶¶ 154-55.

She also alleges the terms of the contract by describing how

both parties performed pursuant to that agreement. See id. ¶¶

156-59 (describing the services Ms. Pool was bound to provide

and the payments CNA was bound to make). The Court concludes

based on these allegations that Ms. Pool has adequately pleaded

the existence of a contract. See Burnett,

.

Finally, CNA objects to Magistrate Judge Faruqui’s failure

to consider the settlement agreement it entered into with Mr.

Brink. See Def.’s Objs., ECF No. 252 at 24-25. The Court agrees

21 with CNA that it may take judicial notice of this record. See

Venable LLP v. Overseas Lease Grp., Inc., No. CV 14-02010 (RJL),

, at *3 n.7 (D.D.C. July 28, 2015) (taking

judicial notice of a settlement agreement in the public record).

However, this settlement agreement does not alter the Court’s

analysis because, as with its briefing on its Motion to Dismiss,

CNA cites no legal authority to explain why Ms. Pool is bound by

its agreement with Mr. Brink. See generally Def.’s Objs., ECF

No. 252 at 24-25.

Accordingly, the Court concludes that Ms. Pool has stated a

claim for breach of contract and ADOPTS this portion of the R. &

R.

D. Ms. Pool Has Not Pleaded a Claim for Breach of the Covenant of Good Faith and Fair Dealing

Finally, Ms. Pool objects to Magistrate Judge Faruqui’s

conclusion that she has not pleaded a claim for breach of the

implied covenant of good faith and fair dealing. See Pl.’s

Objs., ECF No. 250-1 at 15-18.

Under District of Columbia law, all contracts contain an

implied covenant of good faith and fair dealing. Nugent v. Unum

Life Ins. Co. of Am.,

(D.D.C. 2010) (citing

Allworth v. Howard Univ.,

(D.C. 2006)). A

plaintiff alleging a claim for a breach of this implied covenant

“must allege either bad faith or conduct that is arbitrary and

22 capricious.” Wright v. Howard Univ.,

(D.C.

2013). “Bad faith requires more than mere negligence,” such as

“lack of diligence, purposeful failure to perform, and

interference with the other party’s ability to perform.”

Ms. Pool argues that CNA’s actions “were malicious and

intended to deceive and deprive [her] of” payment for the

services she rendered. See Pl.’s Objs., ECF No. 250-1 at 16.

Citing the Restatement (Second) of Contracts, she contends that

the following constitutes bad faith: evasion; agreement and

subsequent refusal to meet; delay of payment; and refusal to

negotiate with her attorney. See id. at 17.

CNA defends Magistrate Judge Faruqui’s determination that

Ms. Pool’s allegations are vague, conclusory, and otherwise

duplicative of her breach of contract claim. See Def.’s Opp’n,

ECF No. 255 at 13-15. The Court agrees with CNA. Ms. Pool’s

allegations of “evasion” and “refusal” are vague and conclusory.

See Ruiz v. Millennium Square Residential Ass’n, No. 1:19-cv-

3765,

, at *8 (D.D.C. Feb. 1, 2022), appeal

docketed, No. 22-7024 (D.C. Cir. Mar. 10, 2022). Other

allegations merely repeat the allegations she made in connection

with her breach of contract claim. See generally FAC, ECF No.

214. The Court therefore is persuaded that Ms. Pool has failed

to state a claim for a breach of the implied covenant of good

faith and fair dealing and ADOPTS this portion of the R. & R.

23 V. Conclusion

For the foregoing reasons, the Court ADOPTS IN PART

Magistrate Judge Faruqui’s R. & R., ECF No. 248; and GRANTS IN

PART and DENIES IN PART CNA’s Motion to Dismiss, ECF No. 220. An

appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge September 11, 2023

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