CONSTEL LATION NEWE NERG Y,

INC., P laintif f,

v. F EDERAL DEPOSIT INSURANCE CORP ORATION, in i ts capacity as rec eiverfor Washi ngton Mutual B ank,

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

Civil Action 10-00310 (HHK )

MEMORAN DUM OP INION AND ORDER Plaintiff Constellation NewEnergy , I nc. (“NewE nerg y ”) br ings this ac tion ag ainst the Fe dera l Deposit Insuranc e Corporation (“F DI C”), in its capa city as the Rec eiver

of Washington Mutual Ba

nk, asser ting c laims of brea ch of c ontrac t, unjust enrichment, and pr omissory estoppel arising out of the F DI C’s repudiation of c ontrac ts with NewEner g y . Be fore the Court is the FDI C’s motion t o dismiss NewE nerg y ’s complaint pursuant to Rule 12(b) (6) of the Fe dera l Rules of Civil P roce dure [#16]. Upon consideration of the motion, the opposition thereto, and the re cord of

the ca se, the Court conc ludes that the motion should be denied. I. BACKG ROUND NewE nerg y

is an ene rg y

company that supplied elec tric powe r to Washington Mutual Ba nk at var ious locations. On September 25, 2008, the Offic e of Thr ift Supervision ordere d Washington Mutual B ank close d, and the F DI C was appointed a s its R ece iver. As the Re ceive r, the FD I C disaffirmed c erta in of Washington Mutual B ank’s c ontrac ts, including its elec tric power contra cts with NewEne rg y . See12 U.S.C. § 1821(e) (g iving a n appointed re ceive r theauthority

to repudiate or disaff

irm contrac ts determined to be bur densome whe re r epudiation or disaffirma

nce pr omotes the order ly

administration of the instituti on’s af fairs) ; Am. Compl ., Ex

. 4. NewE nerg y

timely asser ted an a dminist rative c laim for costs and da mag es ar ising out of this 1 alleg ed bre ach of

contra ct. Am. Compl., Ex . 5. The F DI C rejec ted New Energy ’s claim on the g round that liability

for the c laim had passed to JP Morg an Chase, which purc hased Washing ton Mutual Ba

nk’s assets fr om the FDI C. Id ., Ex . 6. NewE nerg y subsequently

filed this action. II. ANALYSIS The F DI C moves to dism iss NewEne rg y ’s complaint under Rule 12(b)(6) of the F eder al Rules of Civil P roce dure, on the g rounds that New Energy was in privity

with Washington Mutual, I nc., not Washington Mutual B ank, and ther efor e the F DI C, as Rece iver for the latter, 2 cannot be held liable for

brea ch of c ontrac t. The F DI C’s position cannot be sustained for the 3

rea sons that follow.

Ex hibit 4 contains letters dated June 1, 2009 and Jul y 27, 2009 from the F DI C 1 informing NewE nerg y

of its decision to disaffirm Washing ton Mutual Bank’ s elec tric powe r contra cts with NewEne rg y “to the full extent, if any , that [each c ontrac t] repr esents an enfor cea ble obligation of [W ashing ton Mutual Bank] or the Rec eiver .” Am. Compl., Ex . 4 at 1, 3. Washington Mutual B ank wa s a subsidiary of Washington Mutual, Inc. prior to its 2 closure by

the Off ice of Thrift Supervision. Under Rule 12(b)(6) , a cour

t must di smiss a complaint or any portion thereof

that 3 fails to state a c laim upon which re lief may be g rante d. F E D . R. C I V . P. 12(b)( 6). To survive a Rule 12(b)(6) motion, a complaint must “state a cla im to relief that is plausible on its face .” Bell Atl. Corp. v. Tw ombly , 550 U.S. 544, 570 (2007). “A claim has fa cial plausibility when the plaintiff pleads f

actua l content that allows the c ourt to draw the rea sonable infe renc e that the defe ndant is liable for the misconduct alleg ed.” Ashcroft v. Iqbal , 129 S.Ct . 1937, 1949 (2009). I n assessing the suffic iency of the c omplaint, a court may treat exhi bits attached to a complaint as part of that pleading . F E D . R. C I V . P. 10(c) ( “A c opy of a written instrument that is an exhibi t to a plea ding is a

part of the pleadingfor a ll purposes.”). 2There are three ag ree ments that are at issue in this case. First, ther e is an a g ree ment 4 betwee n Washington Mutual, Inc. (“ WMI ”) a nd NewE nergy

that is “intended to be a

master ag ree ment betwee n the Parties pursua nt to which from time to time the Parties execute a nd deliver se parate elec tricity supply ag ree ment(s) (e ach a

n ‘ESA’) a

nd related pricingschedule (s) (ea ch, a ‘ PricingSchedule’ ), with such ESAs and PricingSchedules de emed incor porate d here in and constituting a

part of this Ag ree ment.” Am. Compl., Ex . 1 (“Ma ster Ag ree ment”) at 1. 5 Additionally , there are two Pricing Schedules e x ecute d betwee n Washington Mutual B ank and NewE nerg y , eac h dated Ma rch 20, 2008, that set forth the spec ific cha rg es and te rms under which Ne wEner g y

will provide elec tric powe r. Id ., Ex . 2 (“PricingSchedule 1” ); Id. , Ex . 3 (“PricingSchedule 2” ). Eac h Pricing Schedule state s that it was “ente red into pursua nt to and in

acc ordanc e with the . . . Master Ag ree ment . . . and is subject to all of the pr ovisions, terms and conditions of such Master Ag ree ment.” PricingSchedule 1 at 1; Pricing Sche dule 2 at 1. The F DI C argues that the thre e agree ments comprise a single contra ct. Consequently , beca use the only

parties to the Ma ster Ag ree ment are NewE nergy and WMI , the prope r par ty to any contra ct ac tion broug ht by NewE nerg y

is W MI . I n support of its argument, the FD I C points to Parag raph 24 of

the Master

Ag ree ment. Parag raph 24( a) state s that NewEne rg y “will provide the servic e conte mplated by this Agr eeme nt to W ashing ton Mutual, I nc. and a ny other membe r of the Washing ton Mutual Group desig nated by Customer, irrespe ctive of its cor porate

These thr ee a g ree ments were filed under seal a s attachme nts to NewEner g y ’s 4 Amended Complaint. The Court quotes fr om the ag ree ments only wher e the pa

rties have alre ady done so in their public filing s.

The Maste r Ag ree ment is to be interpre ted ac cordingto the laws of the State of 5 New Y ork. See Master A g ree ment ¶ 16. 3structure [.] ” Master Ag ree ment ¶ 24(a ). The F DI C asserts that the membe r of the Washing ton Mutual Group so desig nated unde r the Pricing Schedules in Exhibi ts 2 and 3 is Washington Mutual Ba

nk. Parag raph 24( d) of the Ma ster Ag ree ment provides: I t is here by ag ree d and acknow ledg ed by the Parties that the obligations of Customer under this Ag ree ment are the obligations only of Customer and that none of the other Washington Mutual Group companies, including Washington Mutual Ba nk, Washington Mutual Ba

nk FA and Washington Mutual Ba nk fsb, will be responsible for the obligations of Customer under this Ag ree ment. Eac h repr esenta tion, war ranty and covena

nt ma de by Customer under this Agree ment is made by , or on behalf of, and with re s p ec t t o, Customer only , and not any other Washington Mutual Group Company

. Master A g ree ment ¶ 24(d) . Thus, the FD I C reads the Master A g ree ment to indicate that NewE nerg y

ag ree d to provide ser

vice to member s of the Washing ton Mutual Group, including Washington Mutual B ank, but to look only to WM Ifor pa

y ment for those se rvice s. The F DI C

asser ts that any

other re ading would rende r par ag raph 24 of the Master

Ag ree ment nug atory

. NewE nerg y

responds that it does not asser t its breach of

contra ct claim under

the Master Ag ree ment, but instead under the PricingSchedules. Ne wEner g y points out t hat it and Washington Mutual B ank ar e the sig natories to the two PricingSchedules. These Sche dules 6 define the “Customer” as Washington Mutual B ank, and e ach one is signed by a re prese ntative of Washington Mutual B ank. PricingSchedule 1 at 1, 6; Pricing Sche dule 2 at 1, 6. The se

NewE nerg y

points to t he F DI C’s letters disaff irming the contra cts betwe en 6 Washington Mutual B ank and N ewEne rg y to argue that the F DI C has admitted that Washington Mutual Ba

nk is a party

to the disaffirme d Schedules. The letters identify the Pricing Schedules in Ex hibits 2 and 3 as the contra cts beingdisaffirme d. Am. Compl., Ex . 4 at 1, 3. The le tters, howeve r, state that “ the Rece iver ha s elec ted to disaffirm the a bove re fer ence d contra ct to the full extent, if any , that it repre sents an enf orce able oblig ation of the I nstitut ion or the Rece iver.” Id. (empha sis added). Thus, the letters expressly speak to the possibility

that Washington Mutual Ba nk had no enf

orce able inter est in the identified contr acts. Ac cording ly , the FD I C’s letters disaffirmingthe contra cts betwe en Washing ton Mutual Bank a nd NewE nerg y

do not constitute a conce ssion that W ashing ton Mutual Bank w as a pa rty to the contra cts. 4Schedules provide that Washington Mutual B ank, as the Customer, is liable for the f inancial obligations of the Schedule, statingthat “[u] tilit y char g es for

distribution s ervic es and a ny applicable taxes or surchar g es . . . shall be the sole financ ial responsibility of Customer[.] ” Pricing Schedule 1 at 1; Pricing Sche dule 2 at 1. The Schedules fur ther state tha

t the “Customer shall pay the New Energy

Electric ity

Charg e. In addition to the NewEne rg y Electric ity

Charg e, Customer shall pay

and be r esponsible for a ll such other amounts re lated to the purc hase a nd delivery of ele ctricity [.] ” PricingSchedule 1 at 2; Pricing Sche dule 2 at 2. The Court ag ree s 7 with NewEne rg y

that the ag ree ment embodied in ea ch PricingSchedule is an oblig ation enfor cea ble ag ainst Washington Mutual Ba nk. The languag e in the Master Ag ree ment and the PricingSchedules indicates that these ag ree ments should be rea d toge ther. Doingso, howeve r, pre sents challeng es. WMIis the desig nated “ Customer” and sig natory to the Master A g ree ment, while Washington Mutual B ank is the “Customer” a

nd signatory

to the PricingSchedules. The Master A g ree ment appea rs to contemplate a

n ag ree ment wher ein WMI is responsible for pa y ment for Ne wEner g y ’s servic es provided to all member s of the Washing ton Mutual Group, including Washington Mutual B ank. The PricingSchedules, howe ver, a ssign sole r esponsibility for pa y ment for Ne wEner g y ’s service s to W ashing ton Mutual Bank. Under other c ircumstance s, the Court might have more diff iculty deter mining how to enfor ce the se inconsistent provisions so as to effe ctuate the parties’ intent. But her e, the pa rties have e x pressly

provided for

this situation. Both the Ma ster Ag ree ment and the PricingSchedules

This latter statement tec hnically comes fr om the part of the Pricing Schedule 7 deeme d the elec tricity

supply ag ree ment (“ESA” ). The distinction betwe en the ESA a nd the Pricing Schedule is not rele vant to the adjudication of the FD I C’s motion t o dismiss

. 5state that, in the eve nt of any conflict be tween the Master A g ree ment and the PricingSchedule, the terms of the Pricing Schedule will g overn. See Master A g ree ment § 19 (“In the ca se of a ny conflict among the documents comprisingthe Ag ree ment, they will control in the following or der of priority : first, the applica ble Schedule A[P ricingSchedule] . . . ; second, the a pplicable ESA; third, these Ge nera l Terms and Conditions [ of the Maste r Agree ment].”); Pricing Sche dule 1 at 1 (“[A]ny conflict be tween this PricingSchedule a nd the Master

Ag ree ment will be resolved in favor of this Pricing Sche dule.”) ; Pricing Sche dule 2 at 1 (same). The Pricing Schedules indicate that Washington Mutual B ank ente red into an e x press a g ree ment with NewEne rg y to be liable for pay ment for e lectric power

supplied by

NewE nerg y

under the Schedules. To the e x tent that such an agree ment conflicts with the limitation of liabili ty provision in parag raph 24( d) of the Ma ster Ag ree ment, the terms of the Pricing Schedules c ontrol. There fore , the FD I C’s argument that NewE nerg y should have sued WMIinstead of Washington Mutual B ank must be re jected. By

signingthe Pricing Schedules, Washing ton 8 Mutual Ba

nk ag ree d to be bound by their terms. Da Silva v. M usso , 428 N.E.2d 382, 386 (N.Y

. 1981) (“ Under

long a cce pted principles[,] one who signs a doc ument is . . . bound by its contents.”) . Fur

ther, the pa

rties’ c onduct conf

orms to this understanding ; NewEne rg y billed

Notably , the FD I C rejec ted New Energy ’s orig inal claim ag ainst the FD I C as the 8 rec eiver for Washing ton Mutual Bank on the g rounds that “[t] his is a liabilit y that has passe d to J PMorga n Chase pursua

nt to the Purchase a

nd Assumption Agr eeme nt.” Am. Compl., Ex . 6. Although this statement wa s not a binding a dmission t hat a c ontrac t exi sted betwe en Washing ton Mutual Ba

nk and Ne wEner g y , it indicates that a judicial de termination to that eff ect would not be contr ary

to the rea sonable e x pecta tions of Washington Mutual Ba nk and the F DI C. Cf. Brown Bros. Elec. Contractors, Inc. v . Beam Constr. Corp. , 361 N.E.2d 999, 1001 (N.Y . 1977) (“G ener ally , the aim is a pra ctical inter pretation of the expressions of the par ties to the end that there be a ‘ rea liz ation of [their] reasonable e x pectations.’” (quoting 1 A R T H U R L

. C O R B I N , C O R B I N O N C O N T R A C T S § 1) (a lteration in orig inal). 6Washington Mutual B ank, not WMI , acc ording to the terms of the PricingSchedules. See Am.

Compl., Ex . 5; Ahlstrom Mach. Inc . v. Associated Airfreight, Inc

. , 272 A.D.2d 739, 741 (N .Y. 9 App. Div. 2000) (“ I n deter mining whe ther a

party enter ed into a binding contra ct, cour ts . . . look to objective manife stations of intent as established by words and de eds.”) (interna l quotation marks, citation, and e mphasis omitt ed). A ccor dingly , the FD I C’s motion t o dismiss will be denied. 1 0 III. CONCLUSION For the fore g oing r easons, it is t his 24th day of Mar ch 2011 her eby ORDERED that defe ndant’s Motion to Dismis s Plainti ff’ s Amended Complaint [#16] is DENIED

. Henr y H. Kenne dy , J r. United States District J udg e

Ex hibit 5 contains NewEne rg y ’s letters to the F DI C assertingits administ rative 9 claims for da

mag es. Am. Compl., Ex . 5. Copies of outstanding invoice s are attache d, which confirm that Ne wEner g y

billed Washington Mutual Ba nk for its servic es. Be cause the Court finds that a contr act e x isted betwee n Washington Mutual B ank 1 0 and Ne wEner g y , the Court does not addre ss the parties’ arguments reg ardingNewE nerg y ’s alternative claims for r elief unde r theorie s of quasi-c ontrac t. Under N ew Yor k law, “[w]here the parties e x ecute d a valid and e nforc eable written contra ct g overninga par ticular subjec t matter, rec overy on a theor

y of unjust enrichme nt for eve nts arising out of that subject matter is ordinarily prec luded.” IDT Corp. v. Morgan Stanley D ean W itter & Co. , 907 N.E.2d 268, 274 (N.Y. 2009)

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