ANDREA SLOAN , as Gua rdian a nd Conservator on be half of Ma ry J uerg ens, an Incapa citated Individual, in both Mary J uerg ens’ individual ca

pacity and as the sole member of

“1230 23 Street, L L C,”

rd Plaintif f/Count er-De

fendant , v. URBAN TITLE S ERVICES, INC. , et al. , Defendants/Counter-Plaintiffs
.

UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 06-01524 ( CKK)

MEMORAN DUM OP INION (Mar ch 21, 2011) Mary J uerg ens (“ J uerg ens”) commence d this action on August 29, 2006, challeng ing the leg ality of two loans extended to her , eac h of which w as sec ured on a condominium located at 1230 23 Street, N.W., Apartment 505, Washing ton, D.C. 20037 (the “Condo”) . Subsequently ,

rd J uerg ens wa s found to be an “ incapa citated individual” a nd Andre a Sloan (“ Sloan”), who w as appointed as Juerg ens’ Gua rdian a nd Conservator, w as substituted for Juerg ens as the pla intiff in this action. Over

the year s, the claims and de fenda nts in thi s action have been suc cessively 1 winnowed down by

order s of this Court and by the agree ment of the pa

rties. Today , the defe ndants include B rickshire Settlements, L L C (“B rickshire ”), F irst Mountain Vernon I ndustrial L oan Association, Inc. (“ FMVI LA”) , Dale D uncan ( “Dunc an”) , and Ar thur G. B ennett (collec tively , “De fenda

nts”). Prese ntly

befor e the Court is Br ickshire’ s [267] Supplemental Motion for Summary

J udg ment on Counts XXI , XXII , and XXIII (“Motion for Summary
The Court shall re fer

to J uerg ens and Sloan interc hang eably as “Plaintiff.” 1J udg ment”), pur suant to which B rickshire argues that the lawof the c ase doc trine wa rra nts summary judgme nt in its favor

on Plaintiff’s claims for br eac h of contra ct, bre ach of fiduciar y duty , and neg lige nce ( Counts XXI , XXII , and XXIII ). B ased upon the parties’ submissi ons, the rele vant authorities, and the rec ord as a whole, the Court shall GRANT- I N-PART and DEN YI N-PART Br ickshire’ s [267] Motion for Summary J udg ment. I. BACKG ROUND The Court assumes f

amiliarity with its prior opinions i n this action, which set for th in detail the history

of this case , and shall there fore only addre ss the fac tual and proc edura l background nec essar

y to addre ss the discrete issues curr ently befor e the Court. The only loan that re mains at issue in this action was extended by or with the assistance of De fenda

nts (the “L oan”) . The he art of Plaintiff’ s lawsuit is her alleg ation that the L oan wa s intended to be, or

should be construe d as, a pe rsonal re sidential loan—not a commer cial loan. See Sloan v. Urban Title Servs., Inc

. , 689 F. Supp. 2d 123, 127 (D.D .C. 2010) (her einaf ter,

“ Sloan I ”). The rele vant documents, take n at fa ce va lue, cha rac terize the L oan as a

$250,000
commerc ial loan extended by FMVI LA to 1220 23 Street, L L C (the “L L C”), a limited liability rd company of which Plaintiff is the sole membe r. Id. at 127-28. Plaintiff neve rtheless maintains that the L oan is, or should be c onstrued as, a persona l residential loan be cause (a) the documents relating to the L oan we re f raudule ntly

obtained by

forg ery and (b) the L oan is an illeg al consumer residential loan disguised as a c ommercia l loan in order to e vade f air lending

and disclosure require ments. See 4 Am. Compl., Docket No. [120] , ¶¶ 89- 92. Unsurprising ly , Def endants th deny Plaintiff’s alleg ations and asse rt that the L oan is a va lid commercia l loan extended to Plaintiff’s L L C. See id. ¶¶ 94- 96. By their ac count, Def

endants a ssisted Pl aintiff, at he r re quest,
2in establishing the L L C, the titl e to the Condo was tra nsfer red f rom Plaintiff to the L L C, and FMVI LA extended a law ful commerc ial loan for $250,000, se cure d by the Condo, to the L L C. See id. ¶ 96. Ther efor e, as pr esente d by the par ties, the ce ntral question underlying this lawsuit is whether the L oan is or is not a leg itimate commerc ial loan lawf ully extended to the L L C. As is releva

nt to the instant mot ion, the operative version of Plaintiff’s Complaint includes the followingcause s of ac tion ag ainst Br ickshire: Count XXI (B rea ch of Contra ct); Count XXII (B rea ch of F iduciary Duty ); Count XXIII (Ne g lige nce) ; and Count XXXI (CPPA 2 Violation). See4 Am. Compl. ¶¶ 375-398, 482-497. The fir st three of these c laims—breac h of t h 3 contra ct, bre ach of

fiduciar y duty , and neg lige nce—a

re pr emised on identica l fac tual alleg ations and esse ntially

state alter

native theor ies of re cover y for the sa me conduc t. Id. ¶¶ 375- 398. As descr ibed below, some of those fac tual alleg ations have a lrea dy been a ddresse d by

the Court, and others ar e the subjec t of the instant motion. On Marc h 6, 2009, Brickshire moved f or par tial summary

judgme nt in connection with
eac h of the four

above- descr ibed claims. SeeDef .’s Mots. for Partial Summ. J ., Docke t Nos. [177] -[178] . Plaintiff filed a timely opposition. SeePl.’s Opp’n to Def.’ s Mots. for Partial Summ. J ., Docke t Nos. [197] -[198] . Br ickshire f iled a re ply
. SeeDef

.’s Reply in Supp. of Mots. for Par tial Summ . J ., Docke t Nos. [216] -[217]
. On Fe bruar

y 12, 2010, this Court i ssued a Me morandum Opinion and Or der a ddressinga series of motions and cross-motions raised by the par ties, including B rickshire ’s motion for
“CPPA” ref

ers to the District of

Columbi a’s Consumer Protec tion Procedure s Act, D.C. 2 Code § 28-3901 et seq. Plaintiff has asser

ted other c laims ag ainst Br ickshire that a re not re levant to the instant 3 motion. 3partial summary judgme nt. See ge nerally Sloan v. Urban Title Servs., I nc. , 689 F. Supp. 2d 123 (D.D.C. 2010) ( here inafter , “ Sloan II ”). In that decision, the Court addr essed a discrete fac tual component common to Plaintiff’s claims for brea ch of c ontrac t, brea ch of f iduciary duty , and neg lige nce ( Counts XXI , XXII , and XXIII )—name ly , Plaintiff’s alleg ation that Br ickshire “fa il[ ed] to promptly

fil[e] loan documents a

nd loan re lease s” with the Recor der of Dee ds. 4 th Am. Compl. ¶¶ 377, 384, 392. Whi le ce rtain docume nts admittedly wer e not filed in a timely
manner , Plaintiff suffer ed no dama g es fr om the delay and ther efor e the Court found that Br ickshire wa s entitled to summary judgme nt on Plainti ff’ s claims for br eac h of contra ct, bre ach of fiducia ry duty , and neg lige nce insofa r as those c laims were predic ated on the a lleg ation that Br ickshire f

ailed to promptly

file loan doc uments and loan re lease s. See Sloan II , 689 F. Supp. 2d at 133-35. Ac cording ly , that alleg ation is no longe r at issue. As is particular ly

rele vant to the instant motion, t he Court’s F ebrua ry 12, 2010 decision also addre ssed the merits of Plainti ff’ s CPP A claim ag ainst Br ickshire ( Count XXXI ), a c laim predic ated on the twin a lleg ations that Br ickshire ( a) “ fra udulently disguis[ed] the loan to [ ] J uerg ens as a

commerc ial loan rather than, what was in re ality , a per sonal consumer residential loan,” a nd (b) “ provid[ed] [] J uerg ens with a fa lse, incomplete a nd dece ptive HUD- 1 settlement [4 ] statement.” 4 Am. Compl. ¶¶ 487-88. The Court’s de cision in this reg ard f ocused on t h Br ickshire’ s limi ted role in the unde rlying tr ansac tion, the ext ent of its knowledg e, and the implications of these consider ations for the via bility of Plaintiff’s CPPA claim. Whil e the motion was shar ply disputed by

the par ties, there w as little ge nuine

The HU D-1 is a standa

rd for m used to itemiz e ser

vices a nd fee s char g ed to a bor

rowe r 4 by a lende r or br oker. 4disag ree ment about the under lying f acts. The parties a g ree d that Br ickshire ha d no role in the orig ination of the L oan or the cre ation of the L L C. See Sloan II , 689 F. Supp. 2d at 136. With the exception of the HU D-1 stateme nt, Bric kshire did not prepa re a ny of the doc uments relating to the L oan; rather, Dunc an dra fted the doc uments and later provided them to B rickshire
. Id. All the loan docume nts prepar ed by Dunca n and provide d to Bric kshire re fer red to the L oan as a
commerc ial loan; from the f ace of the doc uments, there w as no indication that the L oan wa s consumer in nature. Id. at 138. Succinctly stated, “B rickshire ’s role w as to order the title searc h, obtain the title insurance , prepa re the [] rele ase, disburse cer tain monies rec eived a fter se ttlement and . . . pre pare the HUD- 1.” Id. at 137. Even a s to the HUD-1 statement, B rickshire relied on information provided by

Dunca n. Id. In its final form, it contained two pur ported inac cura cies, both of which Plaintiff’s own e x pert e ssentially descr ibed as ha

rmless. Id. at 137-38. Ba sed on the undisputed fa cts, the Court held in its Febr uary 12, 2010 decision that, eve n assuming that the L oan wa s actua lly a per sonal loan disguised as a c ommercia l transac tion, there
was no e vidence “sug g est[ing] that Brickshire knew or had re ason to know that the [] L oan wa s any thing but a c ommercia l loan.” Sloan II , 689 F. Supp. 2d at 138. The ref ore, the Court found that Plaintiff “ha[d] failed to proffe r any fac t from which a

rea sonable jury

could conc lude that Br ickshire ‘ fra

udulently disguis[ed]’ the [] L oan as a commerc ial loan.” Id. at 139. In addition, the Court held that no re asonable jury could find that the stateme nts or omissions in the HUD- 1 statement we re “ materia l with a tendenc y to misl ead.” Id. Ba sed on these c onclusions, the Court deter mined that Br ickshire wa s entitled to summary judgme nt under two of the three CPP A subsections relied upon by Plaintiff. Id. at 140. Plaintiff subsequently withdrew he r cla im as it perta ined to a third and f

inal subsection. SeeMin. Order (Mar . 13, 2010). Ac cording ly , 5Plaintiff’s CPP A claim is no long er at issue in this litigation. Nonethe less, in support of the

instant moti on, Br ickshire e ssentially argues that the Court’s re asoningas to the CPPA claim applies with equa l force to Plainti ff’ s claims for br eac h of contra ct, bre ach of fiduciar y duty , and neg lige nce. Duringthe pende ncy

of this liti g ation, Plaintiff sold the Condo to t hird-par ty purcha sers, prompting the Court to request supplementa l briefingfrom the pa rties as to whe ther the sa le had rende red moot a f

urther f actua l component of Plaintiff’s c laims for bre ach of contra ct, bre ach of fiduciar y duty , and neg lige nce ( Counts XXI , XXII , and XXIII )—name ly , Plaintiff’s alleg ation that Br ickshire “ fail[ed] t o notarize and a uthenticate loa

n documents by

a license d notary .” 4 t h Am. Compl. ¶¶ 377, 384, 393. On April 7, 2010, base d on Plaintiff’s expli cit conce ssion that the defe ctive notar ization i ssue was moot, the Court dismissed Plainti ff’ s claims for br eac h of contra ct, bre ach of

fiduciar y duty , and neg lige nce insofa r as those c laims were based on alleg ations that Br ickshire f ailed to prope rly

notarize and a

uthenticate loa

n documents by

a licensed nota

ry . See Sloan v. Urban Title Servs., LLC , 702 F. Supp. 2d 1, 4-5 (D .D.C. 2010) (her einaf ter, “ Sloan III

”). A ccor dingly , that alleg ation is no longe r at issue. On April 26, 2010, B rickshire moved to file a suppleme ntal motion for summary judgme nt on the limit ed issue of whether the law of

the ca se doctrine require s that judgme nt be enter ed in its favor on Plaintiff’s c laims for bre ach of contra ct, bre ach of

fiduciar y duty , and neg lige nce ( Counts XXI , XXII , and XXIII ). SeeDef

.’s Mot. for L eave to File a Suppl. Mot. for Summ. J ., Docke t No. [266] . As cha rac terized by

Br ickshire, the a

nticipated motion would “mer ely ask[] the Court to gr ant summary judgme nt reg ardingclaims which ha ve alr eady

been addre ssed by

this Court” in it s prior dec ision. SeeDef s.’ Mem. in Supp. of Mot. for L eave to 6File a

Suppl. Mot . for Summ. J ., Docke t No. [266-1] , at 2. Even though the motion was not contemplated by

any schedulingorder

in the case , the Court g rante d Br ickshire lea ve to file a motion for summary

judgme nt on this di scre te issue—spec ifically , the ef fec t of the law of

the
case doctrine on Plaintiff’s c laims for bre ach of contra ct, bre ach of

fiduciar y duty , and neg lige nce. SeeMin. Order (Apr. 23, 2010) ; Min. Order ( Apr. 27, 2010). On April 27, 2010, B rickshire filed its openingmemorandum. See Def .’s Mem. in Supp. of Suppl. Mot. for Summ. J . (“D ef.’ s Mem.”), D ocket No. [267]. P laintiff filed a timely opposition. SeePl.’s Opp’n to Def.’ s Suppl. Mot . for Summ. J . (“Pl.’s Opp’n” ), Doc ket No. [269] . Br ickshire f

iled a re ply
. SeeDef

.’s Reply in Supp. of Suppl . Mot. for Summ. J . (“D ef.’ s Reply”), D ocket No. [271]. The matter is there fore fully briefe d and ripe for a djudication. II. LEGAL STANDARDS & DISCUSSION The Court’s discussion her e proc eeds in two pa rts. First, the Court beg ins by identifying the fa ctual alleg ations that remain at issue in connection with Plaintiff’s claims ag ainst Br ickshire f

or bre ach of

contra ct, bre ach of

fiduciar y duty , and neg lige nce ( Counts XXI , XXII , and XXIII ); simplifying matters consider ably , Plaintiff, confiningher opposition to the viability of three discrete fac tual alleg ations, has expressly conce ded that seve ral a lleg ations are no longe r at issue. See infra Part I I .A. Second, a fter ide ntifying the alleg ations that remain at issue, the Court shall ex plain why

Br ickshire ha s failed to esta blish that the law of the c ase doc trine bar s Plaintiff from sec uringrelief as to those alleg ations. See infra Part I I .B. Be fore proce edingto the merits of the instant motion, the Court pauses to make a few
overa rchingobservations about the nature of the par ties’ brief ing. T o put it mi ldly , both parties’ submissi ons leave much to be desire d. On the one ha nd, Brickshire’ s moving pa pers c onsist of
7littl e more than extensive quotes from this Court’s prior dec isions coupled with wholly

conclusory

asser tions that those decisions prec lude Plaintiff from re covering in c onnection with her c laims for bre ach of

contra ct, bre ach of

fiduciar y duty , and neg lige nce ba sed on the lawof the
case doctrine. SeeDef

.’s Mem.; Def

.’s Reply . Br ickshire simply offe rs no meaning ful explanation or leg al ar gument in support of its posit ion. See Def .’s Mem.; Def

.’s Reply . On the other ha nd, Plaintiff offer s nothing in the wa y of a dire ct re sponse to the only arg ument that Br ickshire ha s tendere d in support of the instant motion—namely , that the law of the ca se doctrine pr eclude s cer

tain relief
. See Pl.’s Opp’n. Indeed, Plaintiff’ s opposition papers inexpl icably

do not even mention the law of the c ase doc trine. See id. Instead, a s has bec ome a
rec urringtheme in this action, Plaintiff muddles the rec ord by introducingextraneous fa cts that simply have no be aring

on Br ickshire’ s pure leg al ar gument. The Court shall not belabor the point. I t is the lit iga

nts’ burden to c ry stalliz e the pe rtinent fac tual and leg al landsca pe for the district court. Herbe rt v. Architec t of Capi tol , __ F. Supp. 2d __, 2011 WL637549, at *1 (D.D.C. F eb. 23, 2011). In this case, the pa rties have fallen w oefully short of discharg ing that burden. A. Plaint

iff Has Conceded that Certain Factual A llegations Are No Longer at Issue in this Action The Court beg ins by

identifying the fac tual alleg ations that remain at issue in connection with Plainti ff’ s claims ag ainst Br ickshire f or bre ach of

contra ct, bre ach of

fiduciar y duty , and neg lige nce ( Counts XXI , XXII , and XXIII ). The pa

rties ar e in agree ment that these thre e claims are based on the same nine discr ete f actua l alleg ations. SeeDef .’s Mem. at 1-2; Pl.’s

8Opp’n at 2-3. The nine a lleg ations are as follows: 5 (a) Plaintiff’s alleg ation that Br ickshire “ fail[ed] t o use a pr oper a nd acc urate acc ounting state ment,” 4 Am. Compl. ¶¶ 377, 385, 393; t h (b) Plaintiff’s alleg ation that Br ickshire “ fail[ed] t o ensure that the loan documents complied with all re levant laws a nd statutes,” 4 Am. Compl.

t h ¶¶ 377, 385, 393; (c) Plaintiff’s alleg ation that Br ickshire “ fail[ed] t o notarize and a uthenticate loan documents by

a license d notary ,” 4 Am. Compl. ¶¶ 377, 385, 393; t h (d) Plaintiff’s alleg ation that Br ickshire “ fail[ed] t o promptly disburse funds associate d with the loan,” 4 Am. Compl. ¶¶ 377, 385, 393; t h (e) Plaintiff’s alleg ation that Br ickshire “ fail[ed] t o promptly fil[e] loan documents and loa

n rele ases,” 4 Am. Compl. ¶¶ 377, 385, 393;

t h (f) Plaintiff’s alleg ation that Br ickshire “ fail[ed] t o conduct the se ttlement in a manner in acc ordanc e with all re levant laws a nd statutes,” 4 Am. Compl.

t h ¶¶ 377, 385, 393; (g ) Plaintiff’s alleg ation that Br ickshire “ us[ed] a HUD -1 statement that did not acc urate ly

ref lect the nature of the transac tion,” 4 Am. Compl. ¶¶ t h 378, 386, 394; (h) Plaintiff’s alleg ation that Br ickshire “pa[id] ‘transf er’ and ‘r ecor dation’ taxes to t he District of Columbia Recor der of Dee ds with reg ard to the transfe r of title betwe en” Juerg ens and the L L C, 4 Am. Compl. ¶¶ 379, t h 387, 395; and (i) Plaintiff’s alleg ation that Br ickshire “ allowed [FMVILA] to fraudulently disguise the loan . . . as a

commerc ial loan,” 4 Am. Compl. ¶¶ 380, 388, t h 396. Two of the nine alleg ations—alleg ations (c) and (e )—havealre ady been dir ectly considere d and dismissed by the Court in the context of Pl aintiff’s c laims ag ainst Br ickshire f or brea ch of c ontrac t, brea ch of f iduciary duty , and neg lige nce, a

nd there fore are no longe r at issue.

For purposes of c larity , the Court shall use the letter desig nations adopted by

the 5 parties. SeeDef

.’s Mem. at 1-2; Pl.’s Opp’n at 3. 9See Sloan II , 689 F. Supp. 2d at 133-35; Sloan III , 702 F. Supp. 2d at 4-5. A s for the r emaining
seven a lleg ations—alleg ations (a) , (b), ( d), (f ), (g ), (h) , and (i)—B rickshire argues in its opening memorandum that fur

ther re lief on those alleg ations is effe ctively prec luded by

virtue of the Court’s Fe bruar

y 12, 2010 decision. See Def .’s Mem. at 1-4. Spec ifically , Br ickshire’ s argument is essentially

that the Court’s conc lusions, although tec hnically made in the c ontextof resolvingthe merits of Plaintiff’s CPPA claim, apply with equal for ce to Plaintiff’s c laims for brea ch of c ontrac t, brea ch of f iduciary duty , and neg lige nce. In opposition, P laintiff does not conte st Bric kshire’s a rgument that she may

not secure relief in connec tion with four of the seve n alleg ations identified by Brickshire—a lleg ations (d), (f) , (h), a nd (i)—in light of

the Court’s Fe bruar

y 12, 2010 decision. See Pl.’s Opp’n. Indeed, under the heading“Claims Sti ll at I ssue with Reg ard to B rea ch of Contra ct, B rea ch of F iduciary Duty and Ne g lige nce Counts,” Plaintiff cle arly states that the only

claims at issue ar e alleg ations (a) , (b), a nd (g ). Id. Ba sed on this expl icit conce ssion, the Court shall treat as c oncede d Br ickshire’ s argument that rec overy under a lleg ations (d), (f

), (h) , and (i) is pre cluded in light of the Court’s prior de cision. See Lewis v. District of Columbia , No. 10-5275, 2011 WL321711, at *1 (D.C. Cir. Fe b. 2, 2011) (“ ‘It is well understood in this C ircuit that when a plaintiff files an opposition t o a dispositive motion and addresse s only cer tain arguments raised by

the def endant,
a cour t may treat those arguments that the plaintiff fa iled to addre ss as conc eded.’ ”) ( quoting Hopkins v. W

omen’ s Div., Ge n. Bd. of Global Ministri es , 284 F. Supp. 2d 15, 25 (D.D .C. 2003), aff’d , 98 F. App’ x 8 (D.C. Cir. 2004)); see also Sloan I , 689 F. Supp. 2d at 121-22; Sloan II , 689 F. Supp. 2d at 134. The ref ore, the Court shall GRANT Brickshire’ s [267] Motion for Summary J udg ment as to Plaintiff’s claims ag ainst Br ickshire f or bre ach of

contra ct, bre ach of

fiduciar y
10duty , and neg lige nce ( Counts XXI , XXII , and XXIII ) insofar

as such c laims are ba sed on Plaintiff’s alleg ations that Br ickshire “ fail[ed] t o promptly disburse funds a ssociated with the loan,” “ fail[ed] t o conduct the se ttlement in a manner in acc ordanc e with all re levant laws a nd statutes,” “pa [i d] ‘transfer ’ and ‘ rec ordation’ taxes to the District of Columbia Recorde r of De eds with reg ard to the tra

nsfer of title betwee n” Juerg ens and the L L C, and “a llowed [FMVI LA] to fra udulently disguise the loan . . . as a commerc ial loan.” 4 Am. Compl. ¶¶ 377, 379-80, 385, t h 387-88, 393, 396. B. Brickshire Has Failed to Es tablish that t he Law of the Case Doctrine Applies to the Rem ainin g Three Allegations In light of Plaintiff’s e x plicit concession, only three alleg ations remain at issue in
connec tion with P laintiff’s cla ims ag ainst Br ickshire f or bre ach of

contra ct, bre ach of

fiduciar y duty , and neg lige nce ( Counts XXI , XXII , and XXIII ). Prese rvingthe par ties’ orig inal letter desig nations, those alleg ations are as follows:

(a) Plaintiff’s alleg ation that Br ickshire “ fail[ed] t o use a pr oper a nd acc urate acc ounting state ment,” 4 Am. Compl. ¶¶ 377, 385, 393; t h (b) Plaintiff’s alleg ation that Br ickshire “ fail[ed] t o ensure that the loan documents complied with all re levant laws a nd statutes,” 4 Am. Compl.

t h ¶¶ 377, 385, 393; and (g ) Plaintiff’s alleg ation that Br ickshire “ us[ed] a HUD -1 statement that did not acc urate ly

ref lect the nature of the transac tion,” 4 Am. Compl. ¶¶ t h 378, 386, 394. SeePl.’s Opp’n at 4; Def .’s Reply at 10. B rickshire arg

ues that these a lleg ations “we re r uled on” by this Court i n its Februa

ry 12, 2010 decision. De f.’s Reply at 10. I n support of this contention, Br ickshire r elies principa lly upon the Court’s finding s, made in the c ontextof addr essingthe merits of Plaintiff’s CPPA claim ag ainst Br ickshire, that no r easona ble fa ct finder

could conc lude

11(i) that “B rickshire knew or had re ason to know that the [] L oan wa s any thing but a c ommercia l loan,” or (ii) that the stateme nts or omissions in the HUD- 1 statement we re “ materia l with a tendenc y to misl ead.” Sloan II

, 689 F. Supp. 2d at 138-39. F rom this foundation, Br ickshire posits—withoutany

explanation—that Pl aintiff’s br eac h of contra ct, bre ach of fiduciar y duty , and neg lige nce c laims conce rningalleg ations (a) , (b), a nd (g ) ar e “unsuppor

ted” a nd that, “pursua nt to the law of the c ase doc trine, these c laims have a lrea dy been de cided in fa

vor of Br ickshire.” Def

.’s Reply at 4. Br ickshire’ s argument fails for at least two rea sons. First, B rickshire misapprehe nds the nature of the lawof the c ase doc trine, which, stric tly speaking , does not eve n apply in this context. See infra Part I I .B.1. Sec ond, and more importantly , Br ickshire make s no meaning ful attempt to expl ain how the Court’s prior dec ision applies to Pl aintiff’s c laims for bre ach of contra ct, bre ach of

fiduciar y duty , and neg lige nce, a

nd there fore Br ickshire ha s failed to ca rry its burden of establishing that it is entitled to judgment a s a matter of law. See infra Part I I .B.2. 1. The Law of the Case Doct rine Does N ot Apply The lawof the c ase doc trine “posits that when a court de cides upon a

rule of la w, that decision should continue to g overn the same issues in subsequent stag es in the same c ase.” Peppe r v. United States , __ U.S. __, 131 S. C t. 1229, 1250 (2011) (inter nal quotation marks omitted). The doctr ine’s re ach e x tends to “issues dec ided both expli citly and by nece ssary implication.” PNC Fin. Servs. Grp., Inc. v . C.I.R. , 503 F.3d 119, 126 ( D.C. Cir. 2007) (interna l quotation marks omitted). “Although failure to adher e to the law of the ca se doctrine may

in
some ca ses constitute abuse of discretion, adhe renc e to the doctr ine is not mandatory .” Moore v

. Hartman , 332 F. Supp. 2d 252, 256 n.6 (D.D .C. 2004). That is, while the doctr ine “dire cts a
12court’s discr etion, it does not lim it the tribunal’s power .” Arizona v. Califor nia , 460 U.S. 605,

618 (1983). How ever , strictly speaking , the doctrine has no direc t applicability wher e, as he re, the under lying de cision is interlocutory , as such a decision “ma

y be re vised at any

time before the entry of a judgment adjudicatingall the claims and a ll the parties’ r ights a nd liabiliti es.” F ed. R. Civ. P . 54(b). Simply

put, under the w ell-established pr ece dent of this Circuit, “[i] nterlocutory order s are not subject to the law of the case doctrine.” Langevine v . District of Columbia , 106 F.3d 1018, 1023 ( D.C. Cir. 1997); accord Filebark v. U .S. Dep’ t of Transp. , 555 F.3d 1009, 1013 (D.C. Cir.), cert. de nied, __ U.S. __, 130 S. C t. 487 (2009). The ref ore, to the e x tent Br ickshire’ s argument rests on the c ontention that the application of the law of the case doctrine is somehow mandatory

or oblig atory

in this contex t, the argument is without m erit. 2. Brickshire Has Failed to Establish that Plaintiff ’s Live Claim s P rese nt the “Sam e Issue” Counselin g in Favorof the “Same Result” Even though the law of

the ca se doctrine does not apply with all its force in the pr esent context, itis nonetheless true tha t “[i] nconsistency

is the antithesis of the rule of law,” a nd “the same issue pre sented a

second time in the same casein the same c ourt should lead to the same result.” LaShawn A. v. Barry , 87 F.3d 1389, 1393 ( D.C. Cir. 1996) (en ba nc), cert. de nied, 520 U.S. 1264 (1997). The ref ore, a district court, whe n prese nted with a par allel issue later in the same litigation, if not bound thereby , should neverthe less be guided by the g ener al principles underlying the doctrine of the law of

the ca se. See, e .g. , Malewicz v. City of Amsterdam , 517 F. Supp. 2d 322, 328 (D.D.C. 2007); EAW Grp., Inc. v . Republic of Gambia , No. 02 Civ. 2425, 2007 WL1297180, at *2 (D.D .C. May 1, 2007). This is particular ly true whe re, a s here , the underlying de cision is one resolvinga motion for summary judgme nt. Were it otherwise, motions for summary

judgme nt “could not per form their f unction of simplifying a

nd narr owing 13disputed issues.” Cruz v. Am. Airlines, Inc. , 356 F.3d 320, 330 ( D.C. Cir. 2004).

Br ickshire’ s argument, distil led to its essence , is that the Court’s rea soning a s to the merits of Plaintiff’s CPPA claim applies with equal for ce to Plaintiff’s c laims for bre ach of contra ct, bre ach of

fiduciar y duty , and neg lige nce. SeeDef .’s Mem.; Def

.’s Reply . Whil e ther e may or may not be merit behind the a rgument, the problem is that B rickshire offe rs no meaning ful explanation or leg al ar gument in support of its posit ion—none—and its chosen approa ch is patently

inadequate to establish its claimed “e ntitle[ ment] t o judgme nt as a matter of law.” F ed. R. Civ. P. 56(a). In support of its positi on, Br ickshire of fer s litt le more tha

n lengthy quotes from this Court’s Fe bruar y 12, 2010 decision couple d with its ipse dixit that the Court’s previous dec ision sim ilarly prec ludes Plaintiff from re covering in c onnection with her claims for brea ch of c ontrac t, brea ch of f iduciary duty , and neg lige nce unde r the lawof the c ase doc trine. SeeDef .’s Mem.; Def

.’s Reply . In order

to preva il on its position t hat the princ iples underlying the law of the ca se doctrine have some bearing he re, B rickshire must, at the bare minimum , show that the issues prese nted when the Court resolved the me rits of Plaintiff’s CPP A claim and the issues now rele vant to the re maining thr ee f actua l alleg ations supporting Plaintiff’s c laims for brea ch of c ontrac t, brea ch of f iduciary duty , and neg lige nce a

re “ the same,” such that would counsel in favor of r eac hing “ the same r esult.” LaShawn A. , 87 F.3d at 1393. This Brickshire does not eve n attempt to do. Indeed, B rickshire does not eve n bother to identify the essential elements of the three cause s of ac tion at issue, let alone cor relate the Court’s prior r easoningwith a spec ific ele ment essential to supportingPlaintiff’s claims. SeeDef .’s Mem.; Def

.’s Reply
. 6
Nor doe s Br ickshire pr ovide any choice -of- law ana ly sis such that would allow the 6 Court to discern whe ther the la ws of the District of

Columba or Virg inia would apply
. SeeDef .’s Mem.; Def.’ s Reply
. 14To the extent Bric kshire conside rs the conne ction obvious, it i s mistaken. Simpl y by way of example, to state a c laim for bre ach of contra ct, a plaintiff must alleg e (i) a valid contra ct betwee n the par

ties, (ii) an oblig ation or duty arisingout of the contra ct, (iii) a br eac h of that duty , and (iv) da

mag es ca used by that brea ch. Tsint olas Realty Co. v. Me ndez , 984 A.2d 181, 187 (D.C. 2009); see also Sunrise Continui ng Care, LLC v. W right , 277 Va. 148, 154 ( Va. 2009) (identifying substantially

the same e lements in articulatingthe standar d for br eac h of contra ct under V irg inia law). The three fac tual alleg ations that remain a t issue in connection with Plaintiff’s claim for br eac h of contra ct, taken tog ether , essentially provide that B rickshire failed to prepa re a HUD- 1 statement ac cura tely ref lectingthe nature of the tra nsaction. 4 Am. Compl.

t h ¶¶ 377- 78, 385-96, 393-94. The two prior holding s of this Court upon which Br ickshire r elies in support of the instant motion are that no rea sonable fa ct finder could conc lude (i) that B rickshire “knew or had r eason to know” that the L oan wa s any thing but a c ommercia l loan or (ii) that the statements in the HUD- 1 statement we re “ materia l with a tendenc y to misl ead.” See Sloan I I , 689 F. Supp. 2d at 138-39. D oes B rickshire intend to sugg est that the for mer findingprec ludes Plaintiff from establishingthat Br ickshire br eac hed a c ontrac tual duty to Plainti ff? I f so, Plaintiff independe ntly

alleg es that the c ontrac t she enter ed into with Bric kshire, inter alia , flatly require d Br ickshire to pre pare “a pr oper a nd acc urate acc ounting state ment.” 4 Am. Compl. ¶ 376. I t is t h at least theor etically

possible that Bric kshire could still be liable for brea ch of c ontrac t even though it had no r eason to know that the L oan wa s any thing but a c ommercia l loan—if providing
an ac curate HUD- 1 statement wa s in fact pa rt of the pa

rties’ a gree ment, then B rickshire ’s state of mind may be irre levant. Or , alternatively , does B rickshire intend to sugg est that the Court’s conclusion that the inac cura cies in the HU D-1 stateme nt were not “mater ial with a tendenc y to
15mislead” pre cludes Plaintiff fr om establishing that B rickshire brea ched a contra ctual duty

to Plaintiff? I f that is the ca se, it is ag ain at lea st theoretica lly possible that an inacc urac y that is “immateria l” for pur

poses of e stablishing liability under the CPP A may

never theless be sufficie ntly

“mater ial” to establish a br eac h of contra ct. Stated somewhat differ ently , Brickshire has made no attempt to show that the issues decide d in the context of resolvingPlaintiff’s CPP A claim and the issues e ssential to Plainti ff’ s claim for br eac h of contra ct ar e coe x tensive, such that would war

rant a pplication of the g ener al principles unde rlying the law of the case doctrine. This same def

ect c arr ies throughout Bric kshire’s motion. Despite the f act that its motion is predicated upon the doctr ine of the la w of the c ase, B rickshire inexpl icably makes no e ffor

t to show that the issues pre viously resolved by

the Court and the issues re levant to Plaintiff’s claims for br eac h of contra ct, bre ach of fiduciar y duty , and neg lige nce a

re “ the same,”such that would counsel in favor of r eac hing “ the same r esult.” LaShawn A. , 87 F.3d at 1393. Whatever its ultimate merits, the Court is left to gue ss as to the basis for B rickshire ’s motion. Given that the application of the law of the case doctrine is discre tionary even where it applies with full force , see Arizona , 460 U.S. at 618, the Court is disinclined to ex erc ise its discretion in this case to hold that Plaintiff is precluded f rom rec overingon the merits of thre e of he r cla ims where B rickshire itself has fa iled to supply

a basis for

doing so. In the final a

naly sis, Brickshirehas simply failed to establish its “entitle[ ment] t o judgme nt as a matter of law.” Fe d. R. Civ. P . 56(a) . As a re sult, the Court shall DENY B rickshire ’s [267] Motion for Summary J udg ment as to Plaintiff’s claims for br eac h of contra ct, bre ach of fiduciar y duty , and neg lige nce ( Counts XXI , XXII , and XXIII ) insofar a s those claims are based on a lleg ations that Br ickshire “ fail[ed] t o use a pr oper a nd
acc urate acc ounting state ment,” “f ail[ed] to ensure that loan documents complied with all

16rele vant laws a nd statutes,” and “ us[ed] a HUD -1 statement that did not ac curately ref lect the nature of the tra

nsaction.” 4 Am. Compl. ¶¶ 377-78, 385-86, 393-94.

t h Be fore concluding , the Court pauses to make a fina l observation. While the inadequa cy of the re cord c rea

ted by the par ties in connec tion with the inst ant motion has preve nted the Court from truly

probingthe merits of the sur viving a spects of Plaintiff’s c laims ag ainst Br ickshire f or brea ch of c ontrac t, brea ch of f iduciary duty , and neg lige nce, w ithout opini ngon their ultimate merits, it is nevertheless e vident from the limited rec ord that has be en pre sented to the Court to date that ther e ar e sig nificant we aknesse s in eac h of these c laims. Bar ringsettlement, the par

ties will now be proc eedingalongthe path to pre trial proce eding s. At this st ag e in the proc eeding s, Plaintiff would be well-a dvised to take stock of the evidenc e she c an expect to marsha l in support of her claims in the eve nt this action ulti mately proce eds to trial. III. CONCLUSION The Court has c onsidered the rema ining a rguments tendere d by

the par ties and has conclude d that they

are without merit. There fore , and for the re asons set for

th above, the Court shall GRANT-I

N-PART and DEN Y-I

N-PART Br ickshire’ s [267] Motion for Summary J udg ment. Specifica lly , the Court shall GRANT B rickshire ’s motion as to Pl aintiff’s c laims ag ainst Br ickshire f

or bre ach of

contra ct, bre ach of

fiduciar y duty , and neg lige nce ( Counts XXI , XXII , and

XXIII ) insofar

as such c laims are ba sed on Plaintiff’s alleg ations that Brickshire ( i) failed to promptly

disburse funds a ssociated with the L oan, (ii) f ailed to conduc t the settlement in
a manne r in ac corda

nce w ith all releva

nt laws and statutes, (iii) pa id “transf er” and “r ecordation” taxes to t he Rec order

of De eds with reg ard to the tra nsfer of title betwee n J uerg ens and the L L C, and (iv) a llowed FMV I LA to fra udulently disguise the L oan as a

commerc ial loan. The Court
17shall DENY the motion insofar as such c laims are ba sed on Plaintiff’s alleg ations that Br ickshire (v) f ailed to use a

proper and ac curate ac countingstatement, (vi) f ailed to ensurethat the L oan documents complied with all re levant laws a nd statutes, and (vii) use d a HUD -1 statement that did not accur ately

ref lect the nature of the transac tion. An appropriate Orde r ac companies this Memorandum Opinion.

Date: Marc h 21, 2011 /s/ COLLE EN KOLLAR-K OTEL LY United States District J udg e

18