# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Submitted March 19, 2012 Decided June 22, 2012

No. 11

- 7082

P ATTON B OGGS LLP,
A PPELLANT

v.

C HEVRON C ORPORATION AND G IBSON
, D UNN & C RUTCHER LLP
A PPELLEE S

Consolidated with 11

- 708 9

Appeals from the United States District Court
for the District of Columbia (No. 1:10

- cv

- 01975)

James E. Tyrrell Jr.

, Anthony J. Laura

, Eric S. Westenberger , and Charles E. Talisman were on the briefs for appellant.

Theodore J. Boutrous Jr

., Tho mas H. Dupree Jr.

, and
John F. Bash were on the brief for appellee. Thomas G. Hungar and Andrea E. Neuman entered appearances.2

Before: S ENTELLE
, Chief Judge

, B ROWN and G RIFFITH
, Circuit Judges

.

Opinion for the Court filed by Circuit Judge G RIFFITH

.

G RI FFITH
, Circuit Judge : This case is but a small part of a long

- running and now sprawling international litigation battle in which various indigenous Ecuadorian groups claim that Chevron Corporation is liable for environmental harm caused
in the Amazon over three decades

. Patton Boggs LLP represents the plaintiffs and would like to continue to do so. The district court denied Patton Boggs both a declaratory judgment that it could not be disqualified from that representation and leave to amend its complaint wi th claims that Chevron and its counsel, G ibson

, Dunn & Crutcher LLP,
torti ou sly interfered with the firm ’s contract with its clients

. For the reasons set forth below, w e affirm the district court.

I

In 1993, indigenous Ecuadorian groups (the Ecuadorian Plaintiffs) filed suit against Chevron in the Southern District
of New York. That suit was eventually dismissed in 2001 on grounds of forum non conveniens

. I n February 2011, an
Ecuadorian court heari ng a successor suit entered a
multibillion dollar judgmen t against Chev ron. Chevron has appealed that ju dgment in Ecuador and sued in tribunals
around the world to prevent its enforcement

. See Chevron Corp. v. Donziger , 768 F. Supp. 2d 581 (S.D.N.Y. 2011) (discussing the underlying environmental dispute and the ensuing litigation)

.

T o aid its defense against the Ecuadorian suit

, beginning
in 2009 Chev ron filed multiple proceedings under 28 U.S.C. § 1782, which authorizes federal district courts to compel3

discovery for use in foreign litigation

. In November 2010

, Patton Boggs appeared on behalf of the Ecuadorian Plaintiffs
in one of those matters

. Patton Boggs h ad recently acquired
the Breaux Lott Leadership Group, a lobbying firm in Washington, D.C. that had provided services to Chevron on
issues related to the litigation in Ecuador. (The record does not disclose the precise nature of those services. ) Gibson

, Dunn & Crutcher LLP sent Patton Boggs a letter expressing “grave concerns that [ its ] appearance in this matter constitutes
a conflict of interest that could result in disqualification” because “Patton Boggs attorneys, former Senators Lott and Breaux, formerly represented Chevron in a substantially
related matter.” Def.’s Mot. to Dismiss Ex. A. D espite disavowing any intent to take immediate action

, Chevron an d
Gibson Dunn reserved “the right to take any action we deem appropriate ” in the future. Id.

The day after receiving Chevron’s letter, Patton Boggs
sued in the district court in Washington, D.C. seeking a
d eclaratory judgment that it could not be disqual ified from representing the Ecuadorian Plaintiffs in any current or future proceeding on the basis of Breaux Lott’s prior relat ionship with Chevron. Compl. 10

. C hevron moved to dismiss the suit

, arguing it was not ripe because no one had asked any court to disqualify Patton Boggs . Chevron also urged the district court

to use its discretion under the Declaratory Judgment Act and
decline to e xercise jurisdiction

.

Before the district court ruled on Chevron’s motion to dismiss, P atton Boggs sought leave to am end its complaint to
add cl aims against both Chevron and Gibson Dunn for

, among other things, tortious interference with contract

. 1

1 Patton Boggs also asserted claims for civil conspiracy and
tortious interf erence with an attorney

- client relationship. The4

Patton Boggs allege d t hat Chevron and its counsel had
undertaken a series of abusive litigation tactics and engaged
in a pub lic campaign of false accusations that Patton Boggs was complicit in fraud ulently obtaining the Ecuadorian judgment , all “ aimed at forcing Patton Boggs to breach its
contract with the Ecuadorian Plaintiffs with the ultimate aim to deprive the Ecuadorian Pl aintiffs of counsel.” Am. Compl. ¶ 75

.

The district court dismissed Patton Boggs’s declaratory judgment claim, holding it was premature. Patton Boggs, LLP v. Chevron Corp. ( Chevron I ) , 791 F. Supp. 2d 13 , 23

- 25 (D.D.C. 2011)

. And even if it were ripe, the court explained
that it would nevertheless use its ample discretion under the Declaratory Judgment Act to decline jurisdiction. Id. at 25.
The court also denied Patton Boggs leave to bring what the court concluded was a futile claim. Alleging conduct aime d at forcing but not actually causing a breach was simply not enough to make out a claim for tortious int erference with

contract

. Id. at 20

- 21

.

In response, Pat ton Boggs asked the court to reconsider
its decisions, which the court did under Federal Rule of Civil
Procedure 59(e). See i d. at 27. The court again concluded that the more prudent use of its discretion under the Declaratory Judgment Act was to leave the question of disqualification to
the various courts in which the § 1782 proceedings are pendin g

. Id. at 27

- 29. As for the tort claim, Patton Boggs asserted that the district court used the wrong analysis by assessing the claim under the Restatement (Second) of Torts

district court denied Patton Boggs leave to pursue these claims, see Patton Boggs, LLP v. Chevron Corp. ( Chevron I ) , 791 F. Supp. 2d 13, 21 (D.D.C. 2011), and the firm does not challenge those rulings

on app eal.5

§ 766

, which requires a br each of contract, rather than § 766A, which does not and requires only allegations that its performance was made “more expensive or burdensome.” But the court found that Patton Boggs had not, in fact, pled such a claim and held that its argument on reconsideration was new and therefore untimely. Id. at 30

- 31. Fi nally, as part of this same motion, Patton Boggs sought y et again to amend the complaint , this time expressly alleging a claim under § 766

. B ut the court ruled once again that it was too late in the day to advance new legal theories. Id. at 32.

At the sa me time that it filed its motion for reconsideration, P atton Boggs took the unusual step of f iling a

new, separate complaint asserting claims identic al to those in the original lawsuit. 2 T he district court dismissed this new complaint, explaining that the duplicate claims were barr ed by issue or claim preclusion and that Patton Boggs had also failed to properly state a cause of action with its new § 766 theory

. See Patton Boggs, LLP v. Chevron Corp. ( Chevron
II

)

, 825 F. Supp. 2d 35, 38

- 42 (D.D.C. 2011)

.

P atton Boggs appealed each of these orde rs.

2 Although Patton Boggs says it filed this duplicate complaint as a “protective m easure,” Appellant’s Br. 9, the district court was not impressed. In fact, the court noted its sympathy for the defendants’ argument that Patton Boggs had pursued the sec ond suit “unreasonably and vexatiously,” which would entitle the defendants to fees and costs under 28 U.S.C. § 1927, and stayed its hand “only because the b ar for the imposition of fees and costs under § 1927 is extremely high.” Patton Boggs, LLP v. Chevr on Corp. ( Chevron II ), 825 F. Supp. 2d 35, 42 (D.D.C. 2011)

.6

II

Patton Boggs argues on appeal that the district court
abused its discretion by failing to exercise jurisdiction and take up the request for a declaratory judgment that Patton Boggs cannot be disqualified f rom representing the
Ecuadorian Plaintiffs because of Breaux Lott’s prior work for
Chevron

. “Since its inception, the Declaratory Judgment Act has been understood to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants.” Wilton v. Seven Falls Co. , 515 U.S. 277, 286 (1995) . As a result, in declaratory judgment actions “the normal principle that federal courts should adjudicate claims within their jurisdiction yields to considerations of practicalit y and wise judicial administration.” Id. at 288. 3

Urging that “it would be impracticable

. . . to resist disqualification in the numerous jurisdictions in which § 1782 proceedings are now pending and any future jurisdictions
where Chevron continues to fil e these proceedings,” Compl. ¶ 41, Patton Boggs seeks a declaration from the district court in Washington

, D.C. that it is qualified to represent the
Ecuadorian Plaintiffs in every jurisdiction where Chevron has or mig ht initiate a § 1782 proceeding. But t he district court thought that considerations of practicality cut the other way

.

3 We also note it is likely the district court lacked jurisdiction over this broad declaratory judgment request on ripeness grounds.
See Chevron I , 791 F. Supp. 2d at 23

- 24. However, we need not address that question because we find no error in the decision of the district court to refuse to exercise jurisdiction even if it could. Had the district court instead agreed to exercise jurisdiction, we would of course be required to assess these other jurisdictional questions
before reaching the merits of the dispute. See Dominguez v. UAL Corp. , 666 F.3d 1359, 1361

- 62 (D.C. Cir. 2012).7

Deciding whether the declaratory judgment is warranted would be complex and difficult because the applicable law
varies from jurisdiction to jurisdiction

. Chevron I , 791 F.
Su pp. 2d at 24 (“[T]he Court would need to decipher and apply the law of every jurisdiction where Chevron might seek Patton Boggs’s disqualification

— potentially every single state.”). The resolution of the issue would turn on the law of
the jurisdiction in which the § 1782 proceeding is brought and for that reason would be better resolved by the court where the proceeding is pending. See also Groper v. Taff , 717 F.2d 1415, 1418 (D.C. Cir. 1983) (explaining that a district court has primary responsibility fo r “supervising the members of its bar” and enforcing the ethical rules of its jurisdiction ). Given this, the district court concluded that “to inform all other federal courts that Patton Boggs is qualified to represent the [Ecuadorian Plaintiffs] before th ose courts would be incredibly intrusive

. ” Chevron I , 791 F. Supp. 2d at 25.

P atton Boggs argues that the district court’s concerns were misguided, but w e think they were spot on. All agree that any jurisdiction considering a motion to disqualify Patton Boggs would first determine whether the services Breaux Lott provided Chevron could be considered “legal” in nature. Patton Boggs contends that each jurisdiction would apply the law of the District of Columbia, which the district court here is uniquely qu alified to apply, to decide that question. But Patton Boggs provides no support for its assertion that courts sitting in other jurisdictions would apply D.C. law, and not their own governing ru les, and we see no reason to think they
would. See M ODEL R ULES OF P ROF ’ L C ONDUCT R. 8.5( b )(1) ( explaining that the rules to be applied to assess “conduct in connection with a matter pending before a tribunal” are “the rules of the jurisdiction in which the tribunal sits”) ; accord
D.C. R ULES OF P ROF ’ L C ONDUCT R. 8.5( b ) (1); MD. L AWYER ’ S R ULES OF P ROF ’ L C ONDUCT R. 8.5( b )(1); N.Y. R ULES OF8

P ROF ’ L C ONDUCT R. 8.5( b )(1)

. Further, even if Patton Boggs
were correct that each court would need to ask first whether
B r eaux Lott provided Chevron legal services as defined under
D.C. law, the ultimate determination “whether an attorney is competent to appear in a particular proceeding is properly a question for the presiding court to resolve. ” Chevron I , 791 F. Supp. 2d at 25. We agree with the district court “that it would
overreach b y adjudicating the propriety of Patton Boggs’s appearance before other courts. ” Id. at 28.

III

Patton Boggs argues that its original effort to amend the complaint s tated a claim for tortious interference with
contract under Restatement § 766A. Of course

, if Patton Boggs is right about that, then the district court was wrong to say the claim was late because first brought in the Rule 59(e) motion. Our review of this issue proceeds in two steps. We
first review de novo the district court’s decision that Pat ton Boggs failed to plead a cause of action under § 766A

. Rudder
v. Williams , 666 F.3d 790, 794 (D.C. Cir. 2012). If the § 766A argument is in fact “new

, ” we then ask whether the
district court abused its discretion under Rule 59(e) by refusing to permit i t to become part of the complaint. See Ciralsky v. CIA , 355 F.3d 661, 671 (D.C. Cir. 2004). 4

4 Patton Boggs is correct that had the district court excused its lateness and rejected the § 766A argument on the meri ts, we would
review that decision de novo . But abuse of discretion is appropriate
to review a decision about “ whether to consider ” a new argument.
Connors v. Hallmark & Son Coal Co.

, 935 F.2d 336, 341 n.9 (D.C. Cir. 1991)

. Here, t he district court ’s explan ation that it would reject the new argument on the merits “ [e]ven if [it] were not untimely ” is merely an alternate holding; it does not excuse Patton Boggs’s
untimeliness. See Chevron I , 791 F. Supp. 2d at 31; see also GSS Group Ltd. v. Nat’l Port Auth.

, 2012 WL 1889384 , at *5 (D.C. Cir.9

The pro posed amendment expressly stated that Patton Boggs was proceeding on a theory of breach of contr act

, and

not on a claim of expense and burden. See Am. Com pl. ¶ 75 (“The Defendants have engaged in improper offensive tactics aimed at forcing Patton Boggs to breach its contract with the Ecuadorian Plaintiffs.” (emphasis added)); cf. Barefoot
Architect , Inc. v. Bunge

, 632 F.3d 822, 834 (3d Cir. 2011) (findin g a § 766A claim adequately ple d where, unlike here, the pleading s made clear that the claimants “were attempting to invoke expense and delay, rather than nonperformance, as the origin of their damages”). 5

May 25, 2012) (“A district court does not open the door to further consideration of a forfeited claim by giving an alternative, merits

based reason for rejecting it.”). Furthermore, Patton Boggs dispelled any doubts regard ing what claim it raised when its

“ own reply brief laid out the precise formulation of tortious interference that it now argues the Court erred by employing.”
Chevron I , 791 F. Supp. 2d at 30

- 31. When Chevron argued that allegations of breach were required , Patton Boggs’s re ply was not to urge the contrary but instead to argue that it need only allege that Chevron was attempting t o cause a breach

. Id. at 31. Indeed, Patton Boggs cited the breach requirement and argued entirely within that framework. See Pl. ’s Reply in Supp. of Mot. for Leave to Amend 12 (“Under D.C. law,
tortious interference with contract has four elements . . . [ one of which is ] intentional procurement of [the contract’s] breach by the defendant

. . . . ” (quoting Sturdza v. United Arab

5 In that case, the complaint alleged that the defen dant had “engaged in a course of action” that “was designed and calculated to delay and interfere with the permitting process for the construction” project the plaintiff sought to perform. Barefoot
Architect , 632 F.3d at 834. Here, Patton Boggs alleged a c ourse of action “aimed at forcing Patton Boggs to breach its contract .” Am. Compl. ¶ 75 (emphasis added). The con trast is clear.10

Emi rates , 281 F. 3d 1287, 1305 (D.C. Cir. 2002) ) (internal quotation marks omitted ) )

. N o one

— not the district court, not Chevron, not even Patton Boggs

— suggested the complaint invoked § 766A u ntil after the district court
rendered its judgment and Patton B oggs recognized its
mistake

.

T he district court committed no error in concluding th at Patton Boggs failed to raise the § 766A argument until its Rule 59(e) motion. Rule 59(e) motions “need not be granted
unless the district court finds that there is an ‘ intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.’” Firestone v. Firestone , 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam) (quoting Nat’l Trust v. Dep’t of State

, 834 F. Supp. 453, 455 (D.D.C. 1993)). Patton Boggs does not argue that any of these grounds applies, and none does.
Because R ule 59(e) is not a vehicle to present a new legal theory that was available prior to judgment, s ee Fox v. Am. Airlines, Inc. , 389 F .3d 1291, 1296 (D.C. Cir. 2004)

, t he district court did not abuse its discretion in denying the
motion

.

IV

In its new complaint, Patton Boggs sought relief based on allegations that Chevron and Gibson Dunn forced the
Ecuadorian Plaintiffs to breach th eir contract with Patton Boggs. Again, w e review the district court’s dismissal for
failure to state a claim de novo

. Rudder

, 666 F.3d at 794

. To survive a motion to dismiss, the complaint must “plead[]
factual content that allows the court to draw the rea sonable
inference that the defendant is liable for the misconduct alleged

, ” Ashcroft v. Iqbal

, 556 U.S. 662, 678 (2009) , and “must suggest a plausible scenario that shows that the pleader11

is entitl ed to relief, ” Jones v. Horne , 634 F.3d 588, 595 (D.C.
Cir. 2011) (quoting Atherton v. D.C. Office of the Mayor , 5 67 F.3d 672, 681 (D.C. Cir. 2009 )) (alterations and internal quotation marks omitted)

. Patton Boggs’s complaint fails to
do so.

D.C. law, which both parties assume applies, see Chevron I , 791 F. Supp. 2d at 20 (citing In re Korean Air
Lines Disaster , 932 F.2d 1475, 1495 (D.C. Cir. 1991) (“[C]ourts need not address choice of law questions sua sponte .”) )

, requires a plaintiff making a claim of tortious
interference to establish “(1) the existence of a co ntract, (2) defendant’s knowledge of the contract, (3) defendant’s intentional procurement of the contract’s breach, and (4)
da mages resulting from the breach, ” Cooke v. Griffiths

Garcia Corp. , 612 A.2d 1251, 1256 (D.C. 1992)

. As to the requirement of inte ntional procurement of breach, t he new complaint states only that “ D efendants have engaged in further misconduct by undertaking efforts to cut off the Ecuadorian Plaintiffs’ source of funds, causing the
Ecuadorian Plaintiffs to breach their contract with P atton Boggs by non

- payment of Patton Boggs’ legal fees and expenses.” Compl. ¶ 90

, Chevron II

, 825 F. Supp. 2d 35

. This is much too vague. It is unclear who Patton Boggs asserts
breached what obligation. The claim that the Ecuadorian
Plaintiffs breached th e ir contract by “non

- payment” is contradicted by the admission that Patton Boggs “ never alleged that the Ecuadorian Plaintiffs were responsible for paying their litigation costs directly out of their own pockets.” Appellant’s Reply Br. 26. Furthermore

, we do not know what Patton Boggs is alleging the defendants did to cut off the supposed “source of funds.” And as the district court explained, “ [T] he fact that Patton Boggs is no longer being paid does not establish that Chevron and Gibson Dunn are responsib le for that outcome, let alone that they intentionally12

caused it.” Chevron II

, 825 F. Supp. 2d at 42

. W e are left in the dark as to who breached what obligati on and how, and the manner in which the defendants intentionally caused that
breach. The complaint does not allege the requisite “plausible
scenario” that could show Patton Boggs is entitled to relief.
Jones , 634 F.3d at 595. W e agree with the district court th at the allegation is nothing but “an unadorned , the

- defendant

unlawfully

- harmed

- me accusation .” Chevron II

, 825 F. Supp.
2d at 42 (quoting Iqbal

, 556 U.S. at 678 ) (internal quotation marks omitted)

.

V

For the foregoing reasons, the district court’s orders are

Affirmed.