SABRE INTERNATIONAL SECURITY v. TORRES ADVANCED ENTERPRISE SOLUTIONS, LLC, No. 1:2011cv00806 - Document 441 (D.D.C. 2014)
Court Description: MEMORANDUM OPINION to the Motions for Summary Judgment. Signed by Judge Gladys Kessler on 10/30/14. (CL, )
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SABRE INTERNATIONAL SECURITY v. TORRES ADVANCED ENTERPRISE SOLUTIONS, LLC Doc. 441 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SABRE INTERNATIONAL SECURITY, Plaintiff, Civil Action No. 11-806 (GK) (sealed) v. TORRES ADVANCED ENTERPRrSE SOLUTIONS, LLC, et al., Defendants. MEMORANDUM OPINION Sabre International Security business partner, ("Torres") Torres Jones Advanced has sued its former Enterprise Solutions, and three of its current and former officers, ("Jerry ("Jones") breach Torres ("Sabre") of Torres"), Rebekah Dyer ("Dyer"), and LLC Jerry Kathryn (collectively, the "Individual Defendants"), contract, tortious interference with for business relations, and conversion of property. Individual Nos. 377, 407, [Dkt. matter Defendants' and 408]. the Upon consideration of the Motions, Oppositions This Motions is for before the on Court Summary Judgment [Dkt. Nos. 384, 431, & 432] and Replies [Dkt. Nos. 404, 435, and 436], and the below, entire Jones' record herein, and for Motion shall be granted, the reasons set forth and the Motions of Dyer and Jerry Torres shall be denied. Dockets.Justia.com I. BACKGROUND A. Factual Background1 For purposes briefly of stated. the Sabre contractors providing around world, the Individual and Jerry Motions, Torres security including Defendant Officer ("CEO") instant are services the Torres and sole shareholder. facts can be private security various to United is the entities States Torres' Government. Chief Executive Individual Defendant Dyer previously served as Torres' Vice President and Chief Operating Officer the Defendant ("COO") . Jones Officer ("CFO"). She left previously company served as in 2013. Torres' Chief Individual Financial She left the company in January 2011. 1 The factual and procedural background in this case has been set forth in great detail in the Court's Memorandum Opinions of January 30, 2014 [Dkt. No. 288], June 16, 2014 [Dkt. No. 359], and August 20, 2014 [Dkt. No. 373], and the Court's Memorandum Order of August 21, 2014 [Dkt. No. 376]. See generally Sabre Int'l Sec. v. Torres Advanced Enter. Solutions, LLC, No. 11-806, 2014 WL 341071 (D.D.C. Jan. 30, 2014) ("Sabre tii"), appeal dismissed, No. 14-7026, 2014 WL 1378771 (D.C. Cir. Apr. 3, 2014); Sabre Int'l Sec. v. Torres Advanced Enter. Solutions, LLC, No. 11-806, 2014 WL 3859164 (D.D.C. June 16, 2014) ("Sabre IV"); Sabre Int'l Sec. v. Torres Advanced Enter. Solutions, LLC, No. 11-806, 2014 WL 4162236 (D.D.C. Aug. 21, 2014) ("Sabre VI"). Familiarity with these prior decisions is assumed. The facts in this Memorandum Opinion are taken from the pleadings, the parties' briefs, and the parties' Statements of Undisputed Material Facts ("SOMFs") submitted pursuant to Local Civil Rule 7(h). The facts are undisputed unless otherwise stated. -2- Between 2007 and 2010, contractor and contracts subcontractor to perform site-specific security ' for installations Sabre and Torres partnered as prime the in United Iraq. States Each known as a "Task Order." of Government these military at security contracts was The parties' relationship in competing for and performing these Task Orders was governed by a series of contracts, the most relevant of which is known as the "Teaming Agreement." On December 2, 2009, the Government awarded the Torres- Sabre Team a Task Order at Joint Security Station ("JSS") Shield in Iraq. This Task Order had a base period of performance of one year - extending from January 1, 2010, 2010 periods. and two six-month option through December 31, The Government exercised both options and subsequently modified the Task Order to provide for an additional extension. extensions, the Team did not conclude As a its result of these performance at JSS Shield until March 31, 2012. Under the Teaming Agreement, the parties agreed that Sabre would provide "all Site materials, Site equipment, Site supplies and Site life support required for performance" of each Task Order and that, upon conclusion of each Task Order, Torres would "release and return to Member's -3- (Sabre['s]) possession and control all such equipment, supplies and facilities . same condition as originally excepted." Teaming Pursuant this to provided, Agreement provision, fair 6.1(B) (1) § Sabre wear [Dkt. provided . in the the and No. tear 22-2]. Team's "life support area" ("LSA") equipment at JSS Shield. The Court has already found in a separate Summary Judgment Opinion [Dkt. No. 373] and for purposes of the present Motions, it appears to be undisputed - that, upon the conclusion of the JSS Shield Task Order, Torres did equipment to Sabre but instead sold it to a Mohammed Hussan for $150,000, not return this third party named and retained the proceeds. See Jones' Mot. at 4-5; Dyer's Mot. at 6; J. Torres' Mot. at 4-7. Sabre claims that the three Individual Defendants directed, consented to, or otherwise participated in Torres' sell its property to Mr. Hussan. decision to The Individual Defendants deny any such involvement and claim that the decision to sell Sabre's property was made, without their knowledge or consent, by Robert Lewis, a Senior Program Manager working out of Torres' headquarters who left Torres' employment in Virginia January 2013. Dyer's Mot. at u-7, 8. 2 2 Sabre claims that Defendants never identified Lewis as a person with information about this lawsuit. Pl.'s Opp'n to Dyer's Mot. at 4 n. 3. Dyer counters that Defendants were not required to -4- B. Procedural Background On April 29, for breach of Sabre filed a 2011, Sabre filed this lawsuit against Torres contract and related In torts. First Amended Complaint ("FAC") October [Dkt. No. 2013, 242]. The FAC added seven new claims against Torres and the Individual Defendants, including, as relevant here, a claim for conversion of the life support equipment Sabre supplied at JSS Shield. On January 30, 2014, the Court granted Torres' Motion to Dismiss all of the new counts asserted in the FAC except for the conversion claim. *3-9. Sabre 2014 WL 341071, at On August 20, 2014, the Court granted summary judgment to against Torres dated Aug. 20, 2014 21, See generally Sabre III, 2014, on the conversion claim. ("Summ. J. Op.") See Mem. [Dkt. No. 373] . 3 Op., On August the Court granted judgment on the pleadings for the supplement their interrogatory responses with such information because Leggett testified about Lewis at his deposition (although he did not identify him by name) . The Court shall not address this dispute as it has not been squarely presented and its resolution is unnecessary for purposes of the present Motions. 3 In the same Opinion, the Court granted judgment in Torres' favor on Counts 3, 4, 7, 8, and 9, which asserted claims for breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, and tortious interference with prospective economic advantage, but declined to grant judgment for either party on Sabre's breach of contract claims in Counts 2 and 5, or its claim for tortious interference with business relations in Count 10. See generally Summ. J. Op. -5- Individual claim. Defendants as to all Counts except the Sabre VI, 2014 WL 4162236, at *2-5. On filed her Motion Judgment on the conversion claim [ Dkt. No. 3 7 7] . 8, conversion 2014, August 22, Sabre 2014, filed Jones its Opposition [Dkt. for Summary On September No. 384]. On September 12, 2014, Jones filed her Reply [Dkt. No. 404]. On September 18, Motions Nos. 407 for and Summary 408]. 2014, Jerry Torres and Dyer filed their Judgment On on the October 6, Oppositions [Dkt. Nos. 431 and 432]. conversion 2014, claim Sabre filed [Dkt. its On October 17, 2014, Jerry Torres and Dyer filed their Replies [Dkt. Nos. 435 and 436]. II. LEGAL STANDARDS A. Standard on Summary Judgment Summary judgment may be granted only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to law. a matter of See Fed. R. Civ. P. 56(c); Arrington v. United States, 473 F.3d 329, 333 (D.C. Cir. 2006). is judgment as 'genuine' if 'the evidence "A dispute over a material fact is such that a reasonable could return a verdict for the non-moving party.'" 473 F.3d at 333 (quoting Anderson v. -6- Liberty Lobby, jury Arrington, Inc., 477 u.s. the 242, 248 outcome (1986)). of the A fact is "material" if it might affect case under the substantive governing law. Liberty Lobby, 477 U.S. at 248. As the Supreme Court stated in Celotex Corp. v. Catrett, "the plain language of Rule 56(c) mandates the entry of summary judgment, against after a adequate party who time fails for to discovery make a and showing upon motion, sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." 477 u.s. 317, 322 (1986). The Supreme Court has further explained, [w] hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Liberty Lobby, 477 U.S. at 247-48 and Matsushita Elec. Industrial Co. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) v. (internal quotation marks omitted)). However, the Supreme Court has also consistently emphasized that, not . "at the summary judgment stage, the judge's function is . to weigh the evidence and determine the truth of the -7- matter, but to determine whether there is a trial." Liberty u.s. 477 Lobby, at genuine issue for "Credibility 249. determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts, are jury functions, not those of a judge" deciding a motion for summary judgment. Id. at 255. In deciding a motion for summary judgment, "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not evidence." make Reeves v. 133, 150 the evidence to presents a determinations Sanderson Plumbing Prods., Ultimately, (2000). submission credibility a jury or or weigh Inc., the 530 U.S. the court must determine "whether sufficient whether it disagreement is party must prevail as a matter of law." so to one-sided require that one Liberty Lobby, 477 U.S. at 251-52. B. Standard Governing the Personal Liability of the Individual Defendants As the corporate personal Court has officers capacity recently are for not torts held in Sabre automatically committed by VI, liable the although in their corporation in which they serve, they also "cannot avoid personal liability for wrongs committed by the corporation with their consent or approval." -8- with their knowledge 2014 WL 4162236, at *3 and (citing Vuitch v. Furr, 482 A.2d 811, 821 (D.C. 1984)). Consequently, to hold the Individual Defendants personally liable for Torres' acts of conversion, Defendant - belonged to decisions Sabre must establish that each Individual acting with knowledge that the equipment at Sabre not "meaningfully to return such participated" equipment to in issue Torres' Sabre at conclusion of the JSS Shield Task and to sell it instead. VI, 2014 WL 4162236, at *3 the Sabre (citing Lawlor v. Dist. of Columbia, 758 A.2d 964, 977 (D.C. 2000)). "'Sufficient [meaningful] participation can exist when there is an act or omission by the officer which logically leads to the inference that he [or she] had a share in the wrongful acts of the corporation which constitute the offense.'" v. Mohammed, Lawlor, 7 58 precise 841 F. Supp. 2d 164, A. 2d at 977) . Where extent of an 179 (D.D.C. such evidence officer's responsibility for the alleged 2012) 2014 WL 4162236, at *3 "the in and a quintessential question of fact'" that must be submitted to the VI, (quoting exists, "'participation [conversion is] Harvey (quoting Luna v. A.E. jury. Sabre Eng'g Servs., LLC, 938 A.2d 744, 748 (D.C. 2007)). _ Conversely, if the record, taken as a whole, that each could not lead a reasonable jury to conclude Individual Defendant "had -9- a share of the wrongful acts," summary judgment is appropriate. Celotex Corp., 477 U.S. at 322 III. JONES' MOTION Jones contends that summary judgment must be granted in her favor because Torres' conversion of the life support equipment did not take place until mid-2012, more than one year after her employment with Torres ended. 4 She claims that this timeline demonstrates that she could not have "meaningfully participated" in Torres' tortious acts. Sabre does not dispute that Jones' employment with Torres ended in January 2011 or that the conversion of property did not occur until approximately June 2012. No. 384-12]. See Pl.'s SOMF <J[ 12 [Dkt. It claims, however, that the sale to Mr. Hussan in June 2012 was simply "the final act" of a long-running "scheme" 4 The Individual Defendants assert that the Court previously held that the conversion at issue first occurred in June 2012. This is incorrect. The Court previously held that Torres sold the equipment to Mr. Hussan "in or around June 2012." Summ. J. Op. at 61. This conclusion was based on Torres' undisputed Responses to Sabre's Rule 30(b) (6) Written Deposition Questions. See Pl.'s Opp'n to J. Torres Mot. Ex. 11, at 5-6 [Dkt. No. 38411]. The Court has never, however, identified a precise date on which the conversion first occurred, and it is unnecessary to do so for purposes of the pending Motions. What is both material and undisputed is that the JSS Shield Task Order did not conclude until March 31, 2012, and the conversion did not take place until after that date. -10- to convert its property, which Jones allegedly "inspired" during See generally Pl.'s Opp'n at 2-5. 5 her tenure as Torres' CFO. Sabre's s-ole evidence of such a "scheme" is a series of emails dated November 28, 2010, in which Jerry Torres, Dyer, and Torres' Program Manager, Jerald Barnes, discussed the life support equipment at issue in light of the Government's recent decision to additional extend the six months December 31, 2010. JSS Shield beyond the performance original See Pl.'s Opp'n, Ex. period completion for an date of The impetus for 8. this email was that Sabre - who had not yet been advised of the Government's removal 5 of decision its had equipment sent from an the inquiry Task regarding Order site. the In Jones correctly points out that she is not named as a defendant in Count 18, which is the conversion count. See Mot. at 4 n.1; FAC <JI<JI 452-457. Sabre's only attempt to plead that Jones was personally involved in the events alleged in that Count is its allegation in Count 19 that "[o]n or about early 2012, each of individual defendants Jerry Torres, Rebekah Dyer and Kathryn Jones, acting in concert and with common intent as principals and/or aiders and abetters, willfully and maliciously authorized and implemented the sale of Sabre['s] property at JSS Shield . . fully aware that the property and proceeds belonged to Sabre." Id. <JI 469 (emphasis added). Sabre styled Count 19, however, as a claim for "Fraud, Aiding and Abetting Fraud, [and] Unjust Enrichment," not a claim for conversion, and the Court dismissed that Count on the pleadings in Sabre VI. 2014 WL 4162236, at *4. Notwithstanding this lack of clarity in Sabre's pleadings, the parties have thus far generally proceeded on the assumption that Count 18 is asserted against the Individual Defendants. Consequently, the Court does the same. -11- discussing this inquiry with other Torres personnel, Jerry Torres wrote: If this is another option period and NOT A CONTRACT EXTENSION, THEN THE GOODS BELONG TO THE GOVERNEMNT [sic] UNTIL SHIELD IS CLOSED. Kathy [Jones] and Reb[ekah Dyer] - right? Id. Dyer responded: Yes, this. is the exercise of option 1. Nothing can be removed. The usg owns everything paid for under the mob [ilization] clin per the FAR [Federal Acquisition Regulations]. Id. These emails, taken alone, simply could not lead a ' I. I reasonable jury to conclude that its participants were engaged in a scheme to convert Sabre's property. Neither Jerry Torres nor Dyer denied that Sabre provided the equipment at issue, nor did they suggest that, once the Task Order was completed, To the intended to assert Torres' ownership over such property. contrary, they in an earlier email in the same email string, Jerry Torres wrote that "We may just want to do this ourselves and buy the stuff from [Sabre] or buy all -12- new stuff," id. (emphasis added), thereby expressly acknowledging Sabre's property rights in the equipment. Moreover, Jones had no fact that she was other than the passive 6 receipt of role emails in this exchange copied as stating a of emails, recipient. Her uncontroversial the proposition that life support equipment at Camp Shield could not be removed "UNTIL SHIELD IS CLOSED" simply does not "logically lead [] to the inference that "inspired," Torres' half (and later [she] ultimate more employed by Torres) than had a decision, one year share" in, more after than a she much less year was and no a longer to sell Sabre's equipment to a third party. Lawlor, 758 A.2d at 977. As mere our Court existence plaintiff's evidence on plaintiff." of of position which has scintilla a Appeals of will the Talavera v. be jury repeatedly evidence in insufficient; could Shah, observed, 638 6 reasonably F.3d 303, support find of the must there 308 "[t] he be for the (D.C. Cir. This comment appears to rBflect the fact that, in OctobBr 2010, for reasons disputed by the parties and not at issue in the pending Motions, Torres took over the life support services at JSS Shield, which previously had been performed by Sabre. See Decl. of Kevin Robinson, dated Feb. 17, 2014 ("Robinson DBcl. I") !! 17-18 [Dkt. No. 432-15]. -13- 2011) (citing Liberty Lobby, 477 U.S. at 252) . 7 Because the November 28, 2010, email is Sabre's only evidence that Jones was personally involved in the conversion of property at Camp Shield, 8 and because that email could not lead a reasonable jury to find Jones personally liable for Torres' acts of conversion, there is no genuine issue for trial. 9 Consequently, Jones' Motion for Summary Judgment shall be granted. 7 Sabre repeatedly quotes the Court's statement in Sabre VI that "the precise extent of an officer's 'participation in and responsibility for'" Torres' conversion is "a quintessential question of fact[.]" Pl.'s Opp'n at 1. However, Sabre conveniently omits the remainder of the Court's sentence, which is that such "question [ s] of fact cannot be answered at the pleading stage." Sabre VI, 2014 WL 4162236, at *3 (emphasis added) . As is well established, the standard of proof for judgment on the pleadings is considerably different than the standard of proof at summary judgment. 8 Sabre has also presented an April 26, 2012, email from Sabre's Head of Operations, Kevin Robinson, to Torres' Iraq Country Manager, Alfred Leggett, stating that, "[t] here has never been one comment made over the past 2 years and 6 months where Torres have [sic] claimed ownership of Sabre TWISS stores and equipment." Pl.'s Opp'n Ex 9 [Dkt. No. 384-9]. This email refutes, rather than supports, Sabre's claim of a long-running "scheme" to convert it equipment. Therefore, it too could not lead a reasonable jury to find in Sabre's favor. 9 For the same reason, there is no evidence on which a jury could reasonably find that Jones "aided and abetted" Torres' conversion, as Sabre alleges in the alternative. -14- DYER'S MOTION IV. Dyer argues that summary judgment must be granted in her favor on the conversion claim because "[t]here is simply nothing in the record which meaningfully a jury could participated Reply at 4 [Dkt. No. 436]. First, employed as unlike Jones, Torres' Vice in rely Torres' on" to find conversion of Furthermore, property. it is undisputed that Dyer was still President one of its two Dyer testified that, highest Hussan in as Vice President, was intimately involved in oversight of the TWISS program. Pl.'s Opp'n Ex. (Q: 6 she The Court disagrees. officers - when Torres sold Sabre's equipment to Mr. 2012. that (deposition tr. of Rebekah Dyer) she See at 99:11-14 Is the vice president typically on the phone with the other party . . discuss[ing] pricing? A: "At Torres, yes, you are. I do everything."). Second, Leggett testified that, upon the completion of a Task Order (a process the parties refer to as "demobilization"), Dyer was generally one of the three people who instructed him as to whether equipment located at the Task Order site belonged to Sabre or Torres, so as to enable him to return any equipment belonging to Sabre. Alfred Leggett) at See Pl.'s Opp'n Ex. 288:3-21) [Dkt. -15- No. 16 (deposition tr. 432-16]. of Dyer argues that this testimony pertains to a Task Order at First Operating Base Husayniyah, not JSS Shield. The deposition excerpt cited, however, does not make reference to any specific Task Order. any event, the ownership of inference that fact that equipment she Dyer at one did so advised Leggett Task Order at regarding site may other Task Order In the support sites as an well, including the one at JSS Shield. Third, the November connection with disposition of 28, Jones' Sabre's emails 2010, Motion discussed further equipment at the above demonstrate conclusion of in that a Task Order site was precisely the type of matter in which Dyer was directly which involved. was Moreover, forwarded responded is demobilization" an to email given purchased by to start that Sabre workforce Dyer Pl.'s Opp'n, Ex. 10 the for her email input, Sabre asking the "Life Support dismantling No. we would [them for] 432-10]. in and from [and] [Dkt. first to for a Units have to removal This that set which she "plan have send to of been in a Basra." is evidence that Dyer knew specifically that Sabre claimed ownership of the life support equipment at JSS Shield. Fourth Robinson, and has finally, submitted Sabre's a Head Declaratio-n -16- of Operations, stating that he Kevin visited the JSS Sabre's Shield site equipment, in to May 2012 which and Leggett demanded the responded return that he of had instructions from Torres' "corporate headquarters" not to return any equipment that was not registered as Sabre's with the Iraqi Ministry of Interior Robinson, dated Oct. No. 432-17]. ("MOI"). 4, 2014 Again, See generally ("Robinson Decl. based on Dyer's high Decl. II") of Kevin 7-9 [Dkt. level position and past involvement in such matters, a jury could reasonably infer that she took part in this instruction from "corporate headquarters. " 10 Based on all of this evidence, a reasonable jury could find that Dyer consented to, approved of, or otherwise "meaningfully participated" in the events giving rise to Torres' conversion of 10 Dyer objects that this Declaration is "double-hearsay and inadmissible." See Def. 's Reply to Pl.'s Rebuttal SOMF H ( 14) . To survive summary judgment, however, Sabre need only produce evidence that is "capable of being converted into admissible evidence." Greer v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007) (citation omitted). The statements in Robinson's Declaration are capable of being converted into admissible, nonhearsay, evidence when he testifies at trial, as Sabre has indicated that he will do. See Pl.'s SOMF in Opp'n to J. Torres Mot. 17 [Dkt. No. 431-27]. Consequently, Dyer is incorrect that the Declaration must be disregarded for purposes of summary judgment. -17- Sabre VI, 2014 WL 4162236, at *3. 11 property. Therefore, Dyer's Motion for Summary Judgment shall be denied. V. JERRY TORRES' MOTION Last, Jerry Torres argues that summary judgment a Declaration stating that he be Like Dyer, he has granted in his favor on the conversion claim. submitted must did not "participate in," "consent to," or "approve of" the sale of property at JSS Shield. 3] . Mot. Ex. A (Decl. of Jerry Torres) 2-3 [Dkt. No. He argues that there "is not a single fact in the record" that contradicts these facts. Jerry Torres' Mot. at 5. Motion shall be denied for largely the same First, reasons stated above in connection with Dyer's Motion. he 408- was the highest officer at Torres and had intimate involvement in the TWISS program, including oversight of the JSS Shield Task Order. Torres) 11 at See Mot., 49:19-50:16 Ex. C (deposition tr. (testifying that he of visited the Jerry Shield Dyer has submitted a Declaration stating that the decision to sell Sabre's equipment at JSS Shield was made by former Torres Senior Program Manager Robert Lewis, and that she neither "directed" nor "discussed" that decision. See generally Decl. of Rebekah Dyer 3-7. Even if a jury believed these statements, Dyer's Declaration does not foreclose the possibility that she had a role in the conversion. It refers only to the sale of the property to Mr. Hussan and is completely silent as to her involvement in any prior decisions regarding who owned the property and/or whether to return it to Sabre. -18- Task Order site and had general knowledge regarding the equipment supplied there) . Second, Leggett testified that Jerry Torres was, along with Dyer, one of the three individuals who instructed him regarding the ownership of the Team's onsi te equipment at the conclusion of a Task Order. Alfred Leggett) See Pl.'s Opp'n, at 288:3-21 [Dkt. Ex. No. 16 (deposition tr. 432-16]. Third, of as discussed above, the November 28, 2010, emails - on which Jerry Torres was copied and to which he responded - demonstrate both that he knew Sabre claimed ownership of the JSS Shield equipment and that responding to such a claim was the type of matter in which he was generally involved. Fourth, Sabre's Head of Operations, attested in his Declaration asked that, when he Leggett to Kevin Robinson, October 4, 2014, identify which individual at "corporate headquarters" told him not to return Sabre's equipment, Leggett specifically identified Jerry Torres. Jerry Torres points to Leggett's deposition testimony, which than Leggett Jerry Torres. [Dkt. No. stated Torres, that told Torres' him Operations that the Manager, property See Mot. Ex. B (deposition tr. of Leggett) 408-4]. in rather belonged to at 292:7-19 Even if Leggett's testimony is inconsistent with Robinson's October 4, 2014, -19- Declaration, that fact would not warrant summary judgment. As our Court of Appeals has repeatedly emphasized: the 'Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge at summary judgment.' Thus, [the court must] not 'determine the truth of the matter,' but instead decide only 'whether there is a genuine issue for trial.' Pardo-Kronemann v. 2010) Donovan, (quoting Liberty Lobby, 601 F.3d 477 U.S. 599, 604 at 249). (D.C. Cir. Because Sabre has presented evidence that Jerry Torres was directly involved in the the events related to conversion claim, there is a genuine issue for trial, despite the fact that contrary evidence also exists. Finally, 2014, Jerry Declaration Torres is claims inconsistent that with Robinson's his October February 17, 4, 2014, Declaration and should therefore be disregarded under the "sham affidavit rule." Def.' s Reply at This 7. rule "precludes a party from creating an issue of material fact by contradicting prior sworn persuasive testimony reasons unless for the believing 'shifting the party supposed Galvin v. Co., 2007) F.3d 1026, 1030 quotation marks omitted). (D.C. Cir. offer correction' more accurate than the prior testimony." 488 can is Eli Lilly & (citations and Our Court of Appeals has made clear, -20- however, that " [ i] f the supplemental does affidavit not contradict but instead clarifies the prior sworn statement, then it is usually considered admissible." Robinson's October Id. (citations omitted). 4 Declaration shall not be disregarded because it is not inconsistent with his February 17 Declaration. In the later Declaration, Robinson attested that "[o]n or about Tuesday, went Shield 15 May 2012, to assess I what of to Joint Sabre's Security Station (JSS) Torres property was required to return to Sabre" and observed that "[m] ost of the facilities of the Sabre camp . II <JI<JI :3, 6. He stated further that, happened to the equipment, Robinson Decl. . were gone. " when he inquired what had he was told that it "had been sold off by Torres over the previous four months[.]" the earlier May 2012, Declaration, that "Torres Robinson had attested that sold the Id. he <JI 6. In learned in LSA and other equipment" without Sabre's consent but, "[s]ince Sabre had not been allowed on the the site, I Robinson Decl. I Jerry never saw condition of this equipment." 19. <JI Torres claims that these Declarations are inconsistent because in the later one, Robinson reports visiting the JSS Shield site, whereas he previously stated that Sabre had not been allowed access to the -21- site. The Declarations can, however, also be read, perfectly consistently, to mean that Sabre was not allowed access to the JSS Shield site prior to May 2012, when Robinson visited and first learned that much of the equipment had been sold. This is a plausible reading in light of evidence that Torres shut Sabre out of the JSS Shield Task Order during the performance 17-18 (attesting essentially taken <JI<JI Moreover, from over October by the Robinson Team to Leggett, [May 5, and we current/outstanding LSA which 2012], can I Robinson "Torres 2010, services Decl. at JSS have a It Pl.'s Opp'n to Jones' Mot., Ex 9 Robinson's stated that I had Shield"). "[i]f email you are will travel to Shield with the issues. because See this reading is supported by an April 26, 2012, available on Sabre that, period. supplemental "contradict but instead clarifies face will to face be chast good to [Dkt. No. does catch [his] on up." Therefore, 384-9]. affidavit [sic] not clearly prior sworn statement," it shall not be disregarded. 12 For all of the foregoing reasons, there is a genuine issue of fact as to whether Jerry Torres meaningfully participated in, and thus can be held personally liable for, 12 Torres' convers.ion the October· 14, 2014, Jerry Torres also claims that Declaration is hearsay. The Court has addressed that objection in connection with Dyer's Motion, above. See supra note 10. -22- of property. Consequently, his Motion reasons, Jones' for Summary Judgment shall be denied. VI. CONCLUSION For Judgment the shall foregoing be granted, shall be denied, Dyer's Motion and Jerry Torres' shall also be denied. Motion for for Summary Summary Judgment Motion for Summary Judgment An Order shall accompany this Memorandum Opinion. October Jo , 2014 United States District Judge Copies to: attorneys on record via ECF -23-
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