Vila v. INTER-AMERICAN INVESTMENT CORPORATION

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 13, 2009 Decided June 19, 2009

No. 08-7042

JORGE VILA,

APPELLEE

v.

INTER-AMERICAN INVESTMENT CORPORATION,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:06-cv-02143-RBW)

Nancy L. Perkins argued the cause and filed the briefs

for appellant.

F. Douglas Hartnett argued the cause and filed the brief

for appellee.

Before: ROGERS and TATEL, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the court by Circuit Judge ROGERS.

Dissenting opinion by Senior Circuit Judge WILLIAMS.

2

ROGERS, Circuit Judge: The Inter-American Investment

Corporation (“IIC”) appeals the denial of its motion to dismiss

an independent consultant’s unjust enrichment claim on grounds

of immunity and untimeliness. Applying the well-settled test in

this circuit, we affirm the denial of immunity. By waiving

immunity from unjust enrichment claims of independent

consultants whom the IIC solicits to help negotiate the

commercial lending agreements that are central to its function,

the IIC gains a corresponding benefit that furthers its objectives.

Consultants would be more willing to negotiate with the IIC and

to enter into contracts with it if they had the reassurance that

should their agreement or formal contract fail for whatever

reason, they would be fairly compensated for any benefit they

have provided that the IIC has unjustly retained. Such a benefit

affords the IIC flexibility in using independent consultants,

allowing it, for instance, to establish and maintain relationships

with consultants whom it may want to engage without a formal

written agreement. Furthermore, underlying an unjust

enrichment claim are the same contract principles as the

promissory estoppel claim held not to be barred by immunity in

Osseiran v. Int’l Fin. Corp., 552 F.3d 836 (D.C. Cir. 2009). As

the IIC has not posited litigation costs that are distinguishable

from those involved in a claim for promissory estoppel, the IIC

suggests no principled basis on which to distinguish our

precedent involving international organizations with near-

identical waiver provisions. Accordingly, taking the allegations

of the complaint as true for purposes of the motion to dismiss,

because the unjust enrichment claim was timely filed we remand

the case to the district court.

I.

The IIC is an international organization formed by its

member nations under the Agreement Establishing the Inter-

American Investment Corporation, Nov. 19, 1984, T.I.A.S. No.

3

12087 (entered into force, March 23, 1986) (“IIC Charter”).

Currently, forty-three countries, including the United States, are

members of the IIC. See IIC Inter-American Investment

Corporation: Member Countries, http://www.iic.int/

membercountries. As stated in its Charter, the purpose of the

IIC is “to promote the economic development of its regional

member countries by encouraging the establishment, expansion,

and modernization of private enterprises.” IIC Charter art. I,

§ 1. Together with other international organizations, the IIC

fulfills this objective through commercial lending that is

directed to private enterprises in the member countries. IIC

Charter art. I, § 2. One way the IIC accomplishes this task is by

structuring and arranging loans jointly with other lenders to

finance projects in member countries.

Jorge Vila is an independent banking consultant in

emerging markets. On several occasions from early 2001 to

December 2002, the IIC engaged Vila’s services through formal

written contracts in connection with projects in Latin America

and the Caribbean. According to the complaint, from January

to August 2003, after Vila’s previous contracts had expired,

several of the IIC’s senior officers requested Vila’s consulting

services with regard to four new projects, verbally agreeing to

complete contractual documentation, including compensation,

“later.” Compl. ¶ 7. These projects related to the IIC’s loan

program and ranged from preparation of a marketing description

of the organization’s inter-bank loan program to assistance in

loan syndication for specific projects. For example, Vila

assisted IIC senior officers in obtaining a mandate from a

Brazilian bank, Banco Safra, to arrange a syndicated credit

facility for the bank. Vila identified potential participant banks,

negotiated terms and conditions of the agreement with them and

Banco Safra, and contributed to the draft, review, and

distribution of the relevant confidential documents. See Compl.

¶ 8. Attached to the complaint are approximately 270 emails

4

documenting Vila’s correspondence with the IIC’s officers and

clients and his services. These emails indicate that in addition

to having Vila gather “intelligence” on prevailing interest rates,

market conditions, and competitors, the IIC authorized Vila to

negotiate terms and conditions of the projects with the IIC’s

clients, requested his participation in internal discussions of

confidential financial information, and invited him to participate

on conference calls with IIC clients regarding the projects.

Vila discussed his expectation of compensation with the

IIC Regional Head Victor Moscoso between January and May

2003. According to the complaint, Moscoso acknowledged this

expectation by email of June 2, 2003. Further, the IIC

continued to solicit and accept Vila’s services afterwards. Yet

on August 4, 2003, while acknowledging Vila’s work, Moscoso

refused to compensate him and suggested new terms for his

work in the future. When Vila appealed to Stephen Reed, the

IIC’s Deputy General Manager, he too acknowledged Vila’s

work but expressed a different understanding of the agreement

between Vila and the IIC, noting the absence of a written

contract while stating he would ensure Vila’s work was

“clarified and documented” by the IIC and Vila would be

compensated “based on a success fee.” Compl. ¶ 15. Vila

rejected the notion of a success fee by email of September 10,

2003 to Reed, and on October 9, 2003, he emailed Jacques

Rogozinski, General Manager of the IIC, an invoice in the

amount of $89,909.00 for his services. On November 4, 2003,

Alejandra Vallejo, IIC Coordinator of Institutional Affairs,

advised Vila that the IIC could not process any payments for

consulting services unsupported by a formal agreement with

defined terms and conditions. Vila’s appeals, beginning

December 23, 2003 to Enrique Iglesias, then-President of the

IIC, were to no avail, as were his further entreaties to two

entities with oversight responsibilities over the IIC.

5

On October 26, 2006, Vila sued the IIC for breach of

implied contract, unjust enrichment, defamation, and tortious

interference with a prospective business advantage. Upon

removal to federal court, see 22 U.S.C. § 283gg (2000), the IIC

moved to dismiss the complaint on the grounds of immunity,

pursuant to Federal Rule of Civil Procedure 12(b)(1), and

because the statute of limitations had run, pursuant to Rule

12(b)(6). The district court dismissed all except the unjust

enrichment claim and ruled that the complaint was timely filed.

The IIC appeals, and the court has jurisdiction over this

interlocutory appeal. See Kirkham v. Societe Air Fr., 429 F.3d

288, 291 (D.C. Cir. 2005); Rendall-Speranza v. Nassim, 107

F.3d 913, 916 (D.C. Cir. 1997).1 Our review is de novo, see

Vann v. Kempthorne, 534 F.3d 741, 745-46 (D.C. Cir. 2008);

Kirkham, 429 F.3d at 291, and in reviewing the denial of the

motion to dismiss, we take the allegations of the complaint as

true, see Jerome Stevens Pharmaceuticals, Inc. v. Food & Drug

Admin., 402 F.3d 1249, 1253-54 (D.C. Cir. 2005); Browning v.

Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

II.

The International Organizations Immunities Act applies

to those organizations which the President designates as entitled

to the benefits of the Act. Section 2(b) of the Act provides that

such organizations “shall enjoy the same immunity from suit

and every form of judicial process as is enjoyed by foreign

governments, except to the extent that such organizations may

1

On January 26, 2009, the district court denied the IIC’s

motion for certification of the limitations issue pursuant to 28 U.S.C.

§ 1292(b). This court had previously denied the IIC’s motion to hold

the appeal in abeyance pending the district court’s ruling. Vila v.

Inter-Am. Investment Corp., Order No. 08-7042 (D.C. Cir. Oct. 7,

2008).

6

expressly waive their immunity for the purpose of any

proceedings or by the terms of any contract.” 22 U.S.C.

288a(b) (2008). By executive order, President Reagan so

designated the IIC. Exec. Order No. 12,567, 51 Fed. Reg.

35,495 (Oct. 2, 1986). Article VII of the IIC’s charter provides:

Actions may be brought against the Corporation only in

a court of competent jurisdiction in the territories of a

member country in which the Corporation has an office,

has appointed an agent for the purpose of accepting

service or notice of process, or has issued or guaranteed

securities.

IIC Charter art. VII, § 3(a). This waiver provision is nearly

identical to that in the charter of the World Bank and is common

to the charters of other international financial institutions, such

as the Inter-American Development Bank and the International

Finance Corporation.2

In Mendaro v. World Bank, 717 F.2d 610, 617 (D.C. Cir.

1983), the court formulated a test to determine whether such

charter terms waive a specific type of lawsuit: “A nonspecific

waiver such as that [at issue here] should be more broadly

construed when the waiver would arguably enable the

organization to pursue more effectively its institutional goals.”

Put another way, the “[organization]’s immunity should be

construed as not waived unless the particular type of suit would

2

See Articles of Agreement of the International Bank For

Reconstruction and Development, art. VII, § 3, 27 Dec. 1945, 60 Stat.

1440, T.I.A.S. No. 1502, 2 U.N.T.S. 164, 180; Agreement

Establishing the Inter-American Development Bank, art. XI, § 3, Apr.

8, 1959, 10 U.S.T. 3068, 3095; Articles of Agreement of the

International Finance Corporation, art. VI, § 3, Dec. 5, 1955, 7 U.S.T.

2197, T.I.A.S. No. 3620.

7

further the [organization]’s objectives.” Atkinson v. Inter-Am.

Dev. Bank, 156 F.3d 1335 (D.C. Cir. 1998). Rejecting in

Mendaro the view that the type of waiver in the IIC’s Charter

provides a “blanket waiver of immunity from every type of suit

not expressly prohibited by reservations,” 717 F.2d at 615, the

court observed that if a lawsuit could “significantly hamper the

organization’s functions,” id. at 617, then it is “inherently less

likely to have been intended,” id. So too “when the benefits

accruing to the organization as a result of the waiver would be

substantially outweighed by the burdens caused by judicial

scrutiny of the organization’s discretion to select and administer

its programs, it is logically less probable that the organization

actually intended to waive its immunity.” Id. Contrasting the

employee lawsuits at issue, which could “significantly hamper”

the organization’s functions given its multiple member

countries, with claims related to “enhanc[ing] the marketability

of its securities and the credibility of its activities in the lending

markets,” id. at 618, the court concluded “[p]otential investors

would be much less likely to acquire the Bank’s own securities

if they could not sue the Bank to enforce its liabilities.

Similarly, the commercial reliability of the Bank’s direct loans

and private loan guarantees would be significantly vitiated if its

debtors and beneficiaries were required to accept the Bank’s

obligations without recourse to judicial process.” Id. The court

further concluded “[a] waiver of immunity with respect to the

World Bank’s commercial transactions with the outside world

is . . . evident under Article VII section 3 [of its Charter]. If this

immunity were not waived the Bank would be unable to

purchase office equipment or supplies on anything other than a

cash basis. . . . Such a restriction would unreasonably hobble its

ability to perform the ordinary activities of a financial institution

operating in the commercial marketplace.” Id.

Following the analysis in Mendaro, the court recently

held in Osseiran, 552 F.3d at 840, that the International Finance

8

Corporation (“IFC”) had waived its immunity from a promissory

estoppel claim concerning the IFC’s alleged representations

during negotiations for a sale of its investments to private

parties. The court again reasoned that “parties may hesitate to

do business with an entity insulated from judicial process;

promises founded on good faith alone are worth less than

obligations enforceable in court.” Id. (citing Atkinson, 156 F.3d

at 1338; Lutcher S.A. Celulose e Papel v. Inter-Am. Dev. Bank,

382 F.2d 454, 460 (D.C. Cir. 1967)). Observing that the IFC

had identified “no unique countervailing costs,” id., the court

concluded the broad terms of the waiver provision in the IFC’s

Charter were controlling and held the IFC was not immune from

a lawsuit for promissory estoppel and breach of confidentiality,

id. at 840-41.

It is a short step from this precedent to conclude that

Vila’s unjust enrichment claim, like Osseiran’s promissory

estoppel claim, is not barred by the IIC’s immunity. Promissory

estoppel provides a party with a remedy to enforce a promise

where the formal requirements of a contract have not been

satisfied, often serving as a substitute for one of these formal

requirements, usually consideration. Bender v. Design Store

Corp., 404 A.2d 194, 196 (D.C. 1979). Therefore, when a

contract fails for lack of consideration, courts will, in some

circumstances, enforce the promise where the promisee has

detrimentally relied. Id. The District of Columbia recognizes

unjust enrichment as a species of quasi contract that imposes,

“in the absence of an actual contract,” “a duty . . . upon one

party to requite another in order to avoid the former’s unjust

enrichment[,] . . . to permit recovery by contractual remedy in

cases where, in fact, there is no contract.” 4934, Inc. v. D.C.

Dep’t of Employment Servs., 605 A.2d 50, 55 (D.C. 1992). Like

promissory estoppel, unjust enrichment provides a party with a

remedy “to unwind entanglements” that may have arisen from

a failed agreement, for instance, “where [the agreement] does

9

not comply with the writing requirement, where one of the

parties is represented by an unauthorized agent,” 1-1 CORBIN,

CONTRACTS, § 1.20, or “where the agreement is too indefinite

to be enforced,” id. Underscoring the nature of promissory

estoppel and unjust enrichment as remedies for failed

agreements, courts tend not to allow either action to proceed in

the presence of an actual contract between the parties. See, e.g.,

Bloomgarden v. Coyer, 479 F.2d 201, 210 (D.C. Cir. 1973) ;

Walker v. KFC Corp., 728 F.2d 1215, 1220 (9th Cir. 1984);

Bldg. Servs. Co. v. Nat’l R.R. Passenger Corp., 305 F. Supp. 2d

85, 95-96 (D.D.C. 2004) (citing KFC Corp. and collecting

cases). And although unjust enrichment — like promissory

estoppel — is not a contract remedy, in quasi contract it “give[s]

rise to obligations more akin to those stemming from contract

than from tort.” Jordan Keys & Jessamy, LLP v. St. Paul Fire,

870 A.2d 58, 63 (D.C. 2005) (quoting Bradkin v. Leverton, 257

N.E.2d 643, 645 (N.Y. 1970)); see also CORBIN, supra, at §

1.20.

Like Osseiran, Vila seeks a remedy based on the failure

of his alleged agreement with the IIC to meet the requirements

of a formal contract. His claim, no less than Osseiran’s, exists

to prevent the injustice that would result if courts could not

enforce such obligations. And, much as Osseiran’s, Vila’s claim

arises out of commercial activity with the outside world that is

directly related to the IIC’s fulfillment of its chartered

objectives. By assisting IIC officers, at their request, in

identifying participant banks and negotiating with these banks

to provide an interbank loan from the IIC to a private enterprise

in a member country, Vila’s services were targeted at the type

of commercial lending that the IIC Charter describes as part of

the functions that “the Corporation shall undertake” “[i]n order

to accomplish its purpose.” IIC Charter art. I, § 2. The IIC

reaffirms on appeal that independent consultant services provide

important assistance in carrying out its functions. Reply Br. at

10

6-7, 11. Vila was thus neither volunteering his services nor

providing services unrelated to the IIC’s purpose. As Vila’s

services were related to the furtherance of the IIC’s stated

objectives in the commercial marketplace, Mendaro, 717 F.2d

at 618, the fact that his claim arises from an independent

contractor’s view of the credibility of the IIC’s promises, and

not a third party investor’s view of the credibility of the IIC’s

financial dealings, is a distinction of no significance. The

court’s reasoning in Osseiran about the hesitancy of parties to

do business with an organization insulated from judicial process,

552 F.3d at 840, is no less applicable here.3 The IIC’s attempts

to show to the contrary are unpersuasive.

First, the IIC maintains that allowing Vila’s unjust

enrichment claim to proceed is of no benefit to it because he

was a volunteer seeking compensation for unauthorized

services. To the extent this reaches the merits of Vila’s claim,

it is irrelevant. At this stage of the proceedings. the court takes

the allegations of the complaint as true, Jerome Stevens

Pharmaceuticals, 402 F.3d at 1253-54, and so views Vila as

seeking recovery for authorized services. Further, the IIC’s

position offers no response to Osseiran’s observation that

expectations of fair play are relevant to whether parties would

hesitate to do business with an international organization. 552

F.3d at 840. An independent consultant with or without a

formal contract would be similarly hesitant to do business with

3

We note that although unjust enrichment claims may

arise outside of the context of commercial transactions, because

waiver of immunity for such claims might not provide a similar

corresponding benefit to the organization, our holding does not

address whether the IIC has waived immunity in contexts that

neither involve contract negotiations nor implicate the contract

and quasi-contract principles on which the instant case turns.

11

the IIC if there would be no reassurance of fair compensation

for requested and received services unjustly retained by the IIC

if their agreement or formal contract failed. The reasonableness

of Vila’s reliance on alleged promises of compensation does not

militate against finding waiver. See Osseiran, 552 F.3d at 840

n.3. To the extent the IIC maintains it would receive no benefit

from engaging an independent contractor outside of a formal

written contractual agreement, the complaint alleges the

services at issue were viewed as being of benefit by IIC

officials. While the IIC offers that it has no need to waive its

immunity to suit for unjust enrichment claims in order to recruit

independent consultants, because it provides them with recourse

for possible grievances by including an arbitration clause in

their contracts, the merits of the IIC’s approach for contracted

consultants is beside the point at this stage of the proceedings.

Second, the IIC maintains that allowing Vila’s unjust

enrichment claim to proceed would deter the IIC from using

independent contractors as consultants because it would no

longer have assurance that the settlement of any disputes would

be handled through arbitration and be limited to the scope of the

contractual arrangement. If the IIC wants assurance that

consultant disputes will be bound by arbitration, however, it can

bar use of independent consultants who have not been engaged

through a formal agreement.

Finally, the IIC maintains that allowing Vila’s unjust

enrichment claim to proceed is tantamount to waiving immunity

for commercial activity claims generally and would be contrary

to Inversora Murten, S.A. v. Energoprojekt-Niskograndnja Co.,

264 Fed. App’x 13 (D.C. Cir. 2008), where the court held that

the International Organizations Immunities Act, despite later

amendments to the Foreign Sovereign Immunities Act,

preserves the immunity of international organizations for

“commercial activity.” However, drawing a distinction between

12

external activities and the internal management of international

organizations reflects well-established precedent, Mendaro, 717

F.2d at 618, without creating an artificial category of waived

claims. The court still is required to engage in a weighing of the

benefits and costs that a waiver may entail, id. at 617; see

Osseiran, 552 F.3d at 840-41, by focusing on the nature of the

parties’ relationship rather than the nature of the contested

transaction and inquiring as to the reasons why the IIC would

waive immunity for this type of suit.

Notably, the IIC has not identified countervailing costs

that are distinguishable from the costs associated with a claim

for promissory estoppel, see Osseiran, 552 F.3d at 840. Neither

has it identified countervailing costs of the nature discussed in

Mendaro, 717 F.2d at 618, whereby allowing unjust enrichment

claims by independent consultants whose services the IIC

requested and received in connection with its core functions

would open it to “disruptive interference with its [lending]

policies.” Quite the contrary. Allowing such claims would

mitigate possible hesitancies by independent consultants to

negotiating and entering into formal contracts with the IIC by

providing reassurance that if their agreement or formal contract

failed, for whatever reason, they would be fairly compensated

for any benefit they have provided that the IIC has unjustly

retained. The IIC, in turn, also would be afforded flexibility in

using independent consultants, including when time-sensitive

matters require such services before a formal contract can be

executed. These circumstances contrast sharply with the

harassing interference noted in Mendaro of allowing a type of

employee suit where an organization operates in many different

countries. Whether the costs of litigating this type of dispute

would make the IIC hesitant to use independent consultants is

less clear, but the IIC did not posit any such costs. The most it

stated was that “[c]onstruing the Charter provision as a waiver

of immunity would open the door to potentially protracted

13

litigation,” Appellant’s Br. at 37. This general statement could

be true of any lawsuit and offers no reason why these costs are

not indistinguishable from the costs that would arise in

promissory estoppel litigation, for which the court has found a

waiver of immunity. Nor is it apparent that allowing suits for

unjust enrichment that will enable the IIC to use consultants for

the types of high level banking transactions at issue —

syndicating loans for banks — could be characterized as

imposing the type of disruptive harassment of concern in

Mendaro.

Contrary to our dissenting colleague’s suggestion, the

posited “vagueness” of an unjust enrichment claim does not tilt

the balance against waiver. The premise that unjust enrichment

is “a cause of action so much vaguer and broader than

promissory estoppel,” Dis. Op. at 2, because a plaintiff in an

unjust enrichment action is required to demonstrate that the

recipient’s retention of the benefit would be “unjust,” is flawed.

Both doctrines potentially deal with the vagaries that may exist

in order to remedy the injustice that would result if courts failed

to enforce quasi-contractual obligations. The doctrine of

promissory estoppel specifically requires that courts not give

effect to reliance on a promise “unless necessary to avoid

injustice,” Granfield v. Catholic Univ. of America, 530 F.2d

1035, 1041 (D.C. Cir. 1976), and when evaluating this

“injustice” prong, courts properly consider, among other factors,

“the formality of the promise, whether there is a commercial

setting and its nature, and whether there is unjust enrichment.”

Id. (citing RESTATEMENT (SECOND) OF CONTRACTS § 90, Cmt.

(b)); see, e.g., Oates v. Teamster Affiliates Pension Plan, 482 F.

Supp. 481, 489 (D.D.C. 1979). That courts consider unjust

enrichment when evaluating claims for promissory estoppel

undermines any suggestion that unjust enrichment is, in general,

a vaguer cause of action than promissory estoppel.

14

Furthermore, the “vagueness” of a cause of action is an

unhelpful paradigm in which to balance costs and benefits. The

crux of the dissent is its assertion that the vaguer a cause of

action, the more expensive it will be to litigate. The dissent

cites no authority for this proposition and it is not “obvious[],”

Dis. Op. at 4, why this proposition would be true. To illustrate,

the dissent emphasizes in discussing why promissory estoppel

is less vague than unjust enrichment that promissory estoppel’s

requisite promise must be a “a promise with definite terms.”

Dis. Op. at 3 (emphases omitted) (quoting In re U.S. Office

Prods. Co. Secs. Lit., 251 F. Supp. 2d 77, 97 (D.D.C. 2003)).

Yet parties will often disagree over what constitutes a “definite

term,” see, e.g., Granfield, 530 F.2d at 1040, just as they can

disagree over any subjective element of a cause of action. In a

given case, such a disagreement may result in more protracted

litigation than a disagreement over whether retention of a

benefit is “unjust”; in another case, it may not. Either way, the

“vagueness” of the cause of action provides little assistance in

assessing beforehand whether litigation for this type of suit

would be protracted, especially given that the cost of litigation

is more directly affected by such factors as the number of

relevant documents that the case is likely to produce, the

contentiousness of the parties, and the complexity of particular

facts, all of which will vary from case to case and none of which

turns on the vagueness of the cause of action.4

4

The dissent is mistaken when it suggests the court is

dismissing, for determinations of immunity, the general costs of

litigation, Dis. Op. at 6-7. Atkinson, cited by the dissent,

described the costs of litigating wage garnishment suits, noting

that the court was “skeptical” that such costs would be

“minimal.” 156 F.3d at 1339. But because the court in that case

determined that garnishment suits would provide “no

conceivable benefit” – indeed would constitute a detriment in

attracting employees – the court had no need to balance those

15

III.

The IIC’s defense that Vila’s unjust enrichment suit fails

because it was untimely filed and therefore must be dismissed

for failure to state a claim pursuant to Rule 12(b)(6) is logically

antecedent to the merits of Vila’s claim. Killburn v. Socialist

People’s Libyan Arab Jamahiriya, 376 F.3d 1123, 1134 (D.C.

Cir. 2004); see also Rendall-Speranza v. Nassim, 107 F.3d 913,

917 (D.C. Cir. 1997). As a matter of judicial efficiency, we

exercise pendant jurisdiction over this threshold issue, see

Griggs v. WMATA, 232 F.3d 917, 919 n.2 (D.C. Cir. 2000);

Gilda-Marx, Inc. v. Wildwood Exercise, Inc., 85 F.3d 675, 678,

costs and thus gave no guidance as to what kind of benefit

would outweigh them. And, in any event, the litigation costs in

Atkinson were costs that “a stranger to the proceedings in which

a judgment has been obtained,” who was thus an “innocent third

party,” would have to bear to protect his relations with third

parties, id. (citing authorities on the burdens of garnishment

proceedings). Thus, conceivably a greater benefit would be

required to outweigh them than to outweigh costs in a suit in

which the organization was a direct participant, if for no other

reason than that an organization’s exposure to suits stemming

entirely from the independent actions of others is completely

beyond its own control. But however litigation costs might

factor into the balancing test in another case, the IIC has not

posited litigation costs distinguishable from those involved in

promissory estoppel suits for which the court found a waiver of

immunity in Osseiran. See IIC Rule 28(j) Letter, Feb. 10, 2009;

Oral Arg. at 14:20-15:48 (attempting to distinguish Osseiran

based not on costs, but rather on the lesser benefit that would

inure to the IIC as a result of exposure to this type of suit). Just

as those costs did not outweigh the benefit to the organization in

Osseiran, they do not outweigh the benefit to the IIC here.

16

679 (D.C. Cir. 1996) (per curiam), and affirm the denial of the

motion to dismiss.

Under District of Columbia law, which applies here,

unjust enrichment claims are subject to a three year statute of

limitations. See News World Commc’ns, Inc. v. Thompsen, 878

A.2d 1218, 1221 (D.C. 2005). Thus, if Vila’s claim accrued

prior to October 26, 2003, it would be time barred. Vila alleges

that his last service was performed, his request for

compensation was refused, and the benefit of his service had

been conferred at some date later than this date.

The D.C. Court of Appeals held in Thompsen that the

statute of limitations begins to run “when the plaintiff’s last

service has been rendered and compensation has been

wrongfully withheld.” Id. at 1219. The court relied on Zic v.

Italian Gov’t Travel Office, 149 F. Supp. 2d 473 (N.D. Ill.

2001), noting that Zic emphasized that “‘the essence of a

quantum meruit claim . . . is not the plaintiff’s expectancy of

payment, but the unjust enrichment of the defendant,’ and held

that the defendant was unjustly enriched when the services were

rendered and when payment was refused.” Thompsen, 878 A.2d

at 1223 (quoting Zic, 149 F. Supp. at 476). In Thompsen the

court emphasized that “[a] claim for unjust enrichment only

accrues . . . when the enrichment becomes unjust; the statute of

limitations starts to run upon the occurrence of the wrongful act

giving rise to a duty of restitution.” Id. (quotations omitted).

Applying this test to the plaintiff, the court focused on the date

when her last service had been performed, compensation had

been refused, and the benefit of her service had been conferred.

Id. at 1225. Although the court cited Baer v. Chase, 392 F.3d

609, 622-23 (3rd Cir. 2004), which applied a last-rendition test,

that case did not involve a communicated refusal to pay, a

question reserved in Thompsen, 878 A.2d at 1225 n.7.

17

Thus, contrary to the IIC’s contention, District of

Columbia law does not establish a last rendition of services test

for the accrual of an unjust enrichment claim, and its reliance on

August 2003 as the last month in which Vila provided services

is misplaced. The IIC’s alternative contention that Vila’s claim

accrued prior to October 26th, 2003, pointing to August 4, 2003,

the date on which Vila alleges that Regional Head Moscoso

acknowledged his work but refused to compensate it, fares no

better.

The limitations period on an unjust enrichment claim

does not begin until “enrichment becomes unjust,” Thompsen,

878 A.2d at 1223, which is a question of fact for the district

court to resolve, Diamond v. Davis, 680 A.2d 364, 370 (D.C.

1996). In resolving the question at this stage of the

proceedings, the court reviews the district court’s order denying

dismissal on limitations grounds de novo, accepting the

allegations in the complaint as true, Browning, 292 F.3d at 242,

and granting Vila “the benefit of all inferences that can be

derived from the facts alleged,” Kowal v. MCI Commc’ns Corp.,

16 F.3d 1271, 1276 (D.C. Cir. 1994). Contrary to the dissent,

Dis. Op. at 10-14, although the complaint does state that the

August 4th email from Moscoso “acknowledged his work but

refused to compensate it,” Compl. ¶ 14, the district court could

find, upon granting Vila the benefit of all reasonable inferences

arising from the allegations in his complaint, that enrichment

became unjust only on November 4. On that date Alejandra

Vallejo, the Coordinator of Institutional Affairs in the Personnel

and Administration Office of the IIC, advised Vila, after he had

submitted an invoice to the IIC’s General Manager Jacques

Rogozinski, that he would not be compensated for his services

in the absence of a formal contract. Compl. ¶ 5. That email

rejected Vila’s first request for a specific amount of

compensation for the various services at issue, after submission

of an invoice to a top official and by the office that handles such

18

personnel-related matters. A finding that this email, and not

Moscoso’s August 4 email, started the limitations period is

further supported by Vila’s allegations that he worked on four

different projects in 2003, only two of which involved Moscoso

(as indicated by the emails attached to his complaint). Vila’s

submission of an invoice to someone at the top of the chain of

command, therefore, was the first point in time the IIC would

have known the totality of the work – and its costs – that it was

being asked to pay; its subsequent refusal was the first

unequivocal refusal for all his work that year.

The dissent incorrectly suggests this case is

indistinguishable from Thompsen, Dis Op. at 14-15, which held

that the plaintiff’s cause of action had accrued no later than the

date that the advertising director of The Washington Times

advised her she would not be compensated for her work. The

facts here, however, are different in material ways. First, Vila

worked on four projects for several persons within the IIC,

while Thompsen presented only one proposal to the newspaper

and her relevant contact was the newspaper’s advertising

director, who conveyed to her the newspaper’s decisions about

her project. The district court could reason, therefore, that a

refusal to compensate by any one of the persons for whom Vila

worked would be less final than the refusal that Thompsen

received from the advertising director. Second, Vila’s

relationship with the IIC was different than Thompsen’s

relationship with the newspaper. Although Thompsen could

also be described as an independent contractor, Vila had a

longer history with the IIC, working on various projects with

the IIC for three years prior to 2003, and alleged the services for

which he now seeks compensation were requested by several

persons at the IIC, unlike the one-on-one relationship in

Thompsen where the advertising director was Thompsen’s point

of contact on her project. When Vila exchanged emails with

Moscoso and Reed concerning compensation, therefore, he

19

might reasonably have anticipated that he could go to their

superior, General Manager Rogozinski, if his requests for

compensation were rebuffed and that Rogozinski would make

the final decision, either directly or through appropriate

channels. The emails attached to Vila’s complaint indicate this

is what happened, as Rogozinski forwarded Vila’s invoice to the

Personnel and Administration Office, which then informed Vila

that based on the IIC’s policies it would not be able to

compensate him for his services.

This approach does not, as the dissent suggests, create

a new rule that limitations periods can be extended with

“repeated appeals,” Dis. Op. at 16. Rather, the limitations

period on an unjust enrichment claim does not begin until

“enrichment becomes unjust.” Thompsen, 878 A.2d at 1223. In

resolving this fact-bound question, the district court could find

the operative accrual date to be the date of rejection of a

contractor’s bill for services, especially when several IIC

employees had requested Vila’s services and the presentment

and rejection of the invoice was not so far in time from the

rendition of the services. Our dissenting colleague would parse

individual allegations that support a November 4 accrual date,

rather than consider the allegations in their totality, see Dis. Op.

at 14-16, and tweak Vila’s allegations and the material

distinctions with Thompsen, see, e.g., Dis. Op. at 14, while

overlooking that at this stage of the proceedings Vila is entitled

to all favorable inferences in determining when the enrichment

became unjust. Viewed in their totality, and according Vila all

favorable inferences, Vila’s allegations “plausibly give rise to

an entitlement to relief,” Ashcroft v. Iqbal, 129 S. Ct. 1937,

1950 (2009), and we conclude that the district court properly

declined to dismiss the complaint as untimely pursuant to Rule

12(b)(6). On remand the IIC can present evidence to support its

limitations defense that August 4, 2003 was the actual date of

refusal, see Diamond v. Davis, 680 A.2d at 370.

20

Accordingly, we affirm the order denying the IIC’s

motion to dismiss Vila’s unjust enrichment claim pursuant to

Rules 12(b)(1) and 12(b)(6), and we remand the case to the

district court.

WILLIAMS, Senior Circuit Judge, dissenting: I

respectfully dissent from the court’s rejection of two defenses

posed by Inter-American Investment Corporation (“IIC”): its

claim of immunity to plaintiff’s unjust enrichment claim and

its invocation of the statute of limitations.

The immunity claim turns on the application of Article

VII, § 3(a) of IIC’s Charter, see Maj. Op. at 6, under the

International Organizations Immunities Act, 22 U.S.C.

§ 288a-k. Although the clause might seem to be either a

venue provision or an across-the-board waiver, we have, in

Mendaro v. World Bank, 717 F.2d 610 (D.C. Cir. 1983), and

later cases, construed such wording as waiving immunity only

insofar as “necessary to enable the [organization] to fulfill its

functions.” Id. at 617. We explained in Atkinson v. Inter-

American Development Bank, 156 F.3d 1335 (D.C. Cir.

1998), that Mendaro created a “default rule” under which the

organization’s “immunity should be construed as not waived

unless the particular type of suit would further the

[organization’s] objectives.” Id. at 1338. We explicitly

rejected plaintiff’s argument that the organization’s

“immunity should be construed as waived unless the particular

type of suit would impair [its] objectives.” Id.

Applying these concepts, in Mendaro we found no waiver

for a claim under Title VII of the Civil Rights Act of 1964 by

a member of the organization’s administrative staff. Any

benefits to the defendant from being subject to such suits, we

said, would be “outweighed by the burdens caused by judicial

scrutiny of the organization’s discretion to select and

administer its programs.” Mendaro, 717 F.2d at 617. By

contrast, we thought the immunity clearly covered suits

involving the Bank’s securities and its guarantees of others’

securities, saying that the guarantees would mean little, and

the Bank’s securities would be unappealing to investors,

2

unless the Bank’s obligations were enforceable in court. Id. at

618.

Our analysis, then, has been to consider whether the

defendant organization would, ex ante, have regarded its

subjection to the sort of suit in question as likely to provide

the organization a net benefit. As Atkinson made clear, ties go

to the organization.

After the briefing in this case we found in Osseiran v.

International Finance Corporation, 552 F.3d 836 (D.C. Cir.

2009), that the defendant should be deemed to have waived

immunity to a promissory estoppel claim based on alleged

promises made during negotiations over the entity’s sale of

securities to a private party. Noting that promises based on

good faith alone are worth less than ones enforceable in court,

we decided that a waiver of immunity “might help attract

prospective investors by reinforcing expectations of fair play.”

Id. at 840.

The court here extends Osseiran to unjust enrichment

claims arising in the context of commercial transactions, at

least if the case involves “contract negotiations [or]

implicate[s] the contract and quasi-contract principles on

which the instant case turns.” Maj. Op. at 10 n.3. Because

unjust enrichment is a cause of action so much vaguer and

broader than promissory estoppel, I believe the plausible

benefits are thinner and the likely costs fatter here than in

Osseiran—enough so that the Mendaro balance tilts against

waiver.

A successful promissory estoppel claim requires “a

promise which reasonably leads the promisee to rely on it to

his detriment, with injustice otherwise not being avoidable.”

N. Litterio & Co. v. Glassman Const. Co., 319 F.2d 736, 739

(D.C. Cir. 1963) (emphasis added). Though the promise

3

required for a promissory estoppel claim “need not be as

specific and definite as a contract, it must still be a promise

with definite terms.” In re U.S. Office Products Co. Securities

Lit., 251 F. Supp. 2d 77, 97 (D.D.C. 2003) (emphases added)

(citing Bender v. Design Store Corp., 404 A.2d 194, 196

(D.C. 1979)). Unjust enrichment, by contrast, requires only

that: “(1) the plaintiff conferred a benefit on the defendant; (2)

the defendant retains the benefit; and (3) under the

circumstances the defendant’s retention of the benefit is

unjust.” News World Communications v. Thompsen, 878

A.2d 1218, 1222 (D.C. 2005) (citing 4934, Inc. v. D.C. Dept.

of Employment Servs, 605 A.2d 50, 55 (D.C. 1992)). Thus

unjust enrichment dispenses with the need for a definite

promise, and requires in its place only a finding that the

recipient’s retention of the benefit would be “unjust,” as

determined by some fact-finder. The doctrine appears as

elastic as the proverbial chancellor’s foot.

While an organization’s exposure to promissory estoppel

claims may, at the margin, entice into negotiations people who

attach value to being able to reasonably rely on definite

promises by an organization’s agents, it is uncertain just who

might be heartened by unjust enrichment doctrine’s vague

assurances. Although the majority seeks to nudge this case

toward Osseiran by suggesting that it involves “the credibility

of the IIC’s promises,” Maj. Op. at 10, and thus perhaps the

comparatively hard-edged quality of promissory estoppel, in

fact Vila’s complaint makes no assertion whatever of

promises by IIC—indeed, he never mentions the term. Quite

rightly: unjust enrichment requires no evidence of promise.

See Jordan Keys & Jessamy, LLP v. St. Paul Fire & Marine

Ins., 870 A.2d 58, 64 (explaining that unjust enrichment is not

based on “a promise or agreement or intention of the person

sought to be charged,” but on “equity and good conscience”

(quoting Miller v. Schloss, 113 N.E. 337, 339 (N.Y. 1916))).

4

In finding the benefit from exposure to unjust enrichment

suits equal to that of exposure to promissory estoppel claims,

the majority asserts that independent consultants would be

“similarly hesitant to do business” absent the availability of

unjust enrichment claims. Maj. Op. at 11 (emphasis added).

But promissory estoppel enables one to reasonably rely on

actual, definite promises; unjust enrichment protects the party

only in scenarios where his sense of injustice happens to be

shared by a jury. Apart from the likely difference in number

of persons whose hesitancy may be relieved, promissory

estoppel protection seems likely to draw in a more careful,

businesslike set of counterparties.

On the cost side, unjust enrichment’s malleable nature

means that being subject to such suits will expose IIC both to

a much broader class of cases, and ones where the controlling

issues are less sharply defined. The most obvious costs, of

course, are the expenses of litigation itself, both out-of-pocket

costs and the inevitable diversion of management focus. In

Atkinson, though we didn’t need to “consider the cost side of

the balance,” 156 F.3d at 1339, we expressly cited the

“inconvenience, hazards, or expense of extended litigation” as

a reason to doubt that the costs of a waiver of immunity in that

case were minimal. Id. As the murkiness of the cause of

action expands, so too, obviously, do the “inconvenience,

hazards, or expense” of litigation.”

The majority suggests that because courts also “consider

unjust enrichment when evaluating claims for promissory

estoppel,” promissory estoppel must be every bit as vague as

unjust enrichment. Maj. Op. at 13. But in the presence of

promissory estoppel’s requirement of a definite promise and

reasonably foreseeable reliance, “unjust enrichment” seems

unlikely to do much work in promissory estoppel cases; juries

who find those two discrete points seem unlikely to worry

much over elusive concepts of “injustice.”

5

Without some sort of empirical work it may be hard to

calculate the exact effect of unjust enrichment’s vagueness.

At a minimum, however, it would seem to increase the

variance in outcomes, i.e., to quote Atkinson’s term, the

“hazards” of litigation. For risk-averse litigants, variance is a

material cost, even if plaintiffs win the same proportion of

litigated unjust enrichment cases and enjoy the same average

recovery as in promissory estoppel ones.

Besides, the majority’s claim that promissory estoppel

requires a consideration of unjust enrichment in addition to its

other elements entirely confirms the point that unjust

enrichment claims reach a broader class of cases. That is

why, in many cases, an unjust enrichment claim will survive

after the court has thrown out promissory estoppel—even in

the context of the commercial negotiations to which the

majority tries to restrict its holding. See, e.g., Trianco, LLC v.

IBM, 271 Fed. Appx. 198, 203, 205 (3d Cir. 2008) (allowing

an unjust enrichment claim to proceed, but dismissing a

promissory estoppel claim because there was no “clear and

unambiguous promise” (internal quotation marks omitted));

Lindquist Ford, Inc. v. Middleton Motors, Inc., 2007 WL

3287848, at *8, *11 (W.D. Wis.), rev’d on other grounds, 557

F.3d 469 (7th Cir. 2009) (denying a motion for “summary

judgment on plaintiff’s unjust enrichment claim,” but

dismissing the plaintiff’s promissory estoppel claim because

“plaintiffs have failed to adduce any evidence that defendant

ever promised . . . .”). Thus, the majority’s own reasoning

illustrates why a waiver of unjust enrichment claims—

untethered to a need for proof of a definite promise and

reasonable reliance—exposes the IIC to a wider range of cases

that would be costly to litigate.

Of course the majority is correct in saying that factors

other than a cause of action’s protean character may

complicate a case and generate high litigation costs, such as

6

the volume of documents and the contentiousness of the

parties. Maj. Op. at 14. But until the majority’s decision

here, we have measured costs and benefits in terms of the

cause of action and the type of plaintiff, not specifics of the

case, presumably in order to achieve some measure of

predictability. If I understand the majority correctly, its

thought is that because there are cost factors that “vary from

case to case,” we cannot meaningfully estimate the cost

ranges associated with a particular cause of action. That

seems a non sequitur.

In a similar vein, the court says that even though Atkinson

clearly considered litigation expenses on the cost side of the

equation, we cannot weigh them in this case because the

Atkinson court gave “no guidance as to what kind of benefit

would outweigh them.” Maj. Op. at 15 n.4. To be sure,

Atkinson did not need to weigh litigation costs; it found that

subjection to wage garnishment proceedings would provide

“no conceivable benefit” and ties go to the organization

claiming immunity. Atkinson, 156 F.3d at 1338. But the fact

that the Atkinson court did not explain how we are to weigh

litigation costs cannot absolve us of the need to do so today.

The majority dismisses the IIC’s arguments regarding

litigation expenses on several additional grounds. First,

though it recognizes that the IIC pointed to litigation costs,

see Maj. Op. at 12-13, 15 n.4, it appears to chide IIC for

failing to differentiate the litigation costs likely to be

associated with unjust enrichment claims from those

associated with promissory estoppel suits. Maj. Op. at 13, 15

n.4. But, as I mentioned before, Osseiran was decided only

after the close of briefing in this case, and there we appeared

to have no need to assess litigation costs at all; the defendant’s

theory was apparently little more than that it was right on the

merits. Moreover, as we are basically comparing causes of

7

action, we should be perfectly able to do the comparison on

our own.

The majority also seems to dismiss the IIC’s arguments

regarding litigation costs on the grounds that these costs

“could be true of any lawsuit.” Maj. Op. at 13. Of course, if

litigation costs alone were enough to overcome all potential

benefits from a waiver of immunity, then courts could never

find a waiver. But under Mendaro and Atkinson we are

obliged to weigh the reality of litigation costs, which are after

all typically substantial, against the hypothetical benefit of the

institution’s being subject to suit. Otherwise we jettison

Atkinson’s understanding that Mendaro created a “default

rule” under which the organization’s “immunity should be

construed as not waived unless the particular type of suit

would further the [organization’s] objectives.” 156 F.3d at

1338.

And, though acknowledging that Atkinson makes the

relevance of litigation costs plain, the court suggests that

because that case involved costs from an organization’s

indirect participation in a wage garnishment proceeding, “a

greater benefit would be required to outweigh them.” Maj.

Op. at 15 n.4. I do not understand the relevance of this point

(let alone its justification), for in the end the majority either

believes IIC’s litigation costs should be disregarded altogether

(because they are “true of any lawsuit”), or simply rests on its

conclusion that they are likely to be no greater than in

promissory estoppel cases.

Apart from litigation costs, the IIC identifies an added

element on the “cost” side of the balance, saying that without

the “assurance” of arbitration, for which it provides when

engaging independent consultants, see Agreement 2002, Joint

Appendix (“J.A.”) 37, it would be “deterred from seeking to

use independent contractors as consultants.” Appellant’s Br.

8

36. Although the utility of such consultants to IIC is

undisputed (indeed, is the basis for the majority finding of a

“benefit”), the court’s holding plainly makes its use of them

more expensive. Any initial employee contact with a

potential consultant will carry a risk of litigation, not to

mention deny IIC the benefit of the arbitration provision that

it insists on in its contracts. The court notes the impact, but

offers IIC a strange solution. If IIC truly values arbitration, it

says, “it can bar use of independent consultants who have not

been engaged through a formal agreement.” Maj. Op. at 11.

The court does not explain just how such an internal IIC

policy could prevent third parties from bringing unjust

enrichment suits. Perhaps the panel means that by living a

completely virtuous life IIC can avoid litigation. But apart

from the naiveté of the implied assumption about the filing of

lawsuits, the argument has no place in our precedents, which

have always focused on the costs that would come from

particular types of claims, and has never inquired into whether

or not an organization could prevent others from bringing

such claims in the first instance. Indeed, this new factor

sounds very like the merits, which we so roundly (and rightly)

ruled off-limits in Osseiran. 552 F.3d at 840. Finally,

however effective a policy aimed at reducing the risk of this

sort of litigation might prove, it would itself come at a cost—

that of increased monitoring of employees’ compliance. The

court’s ruling generates these costs all in order to give IIC the

“benefit” of attracting consultants who do not bother to clarify

their contractual status before proceeding to work.

Allowance of unjust enrichment claims thus generates

greater costs and fewer benefits than the promissory estoppel

claims permitted in Osseiran. I see no basis for concluding

that a waiver of immunity is “necessary to enable [IIC] to

fulfill its functions.” Mendaro, 717 F.2d at 617.

9

* * *

As to Part III of the majority opinion, concerning IIC’s

statute of limitations defense, I agree with the majority that we

should exercise pendant jurisdiction over the statute of

limitations issue. See Maj. Op. at 15. I also agree that under

District of Columbia law the statute is triggered not solely by

the plaintiff’s last rendition of services, but by defendant’s

refusal of compensation for those services. See Maj. Op. at

17. Thus, if prior to October 26, 2003, Vila’s “last service has

been rendered and compensation has been wrongfully

withheld,” News World Communications Inc. v. Thompsen,

878 A.2d 1218, 1219 (D.C. 2005) (emphasis added), Vila’s

claim is barred. But I disagree with the court’s conclusion

that Vila’s suit is not barred.

Vila argues that we should review the district court’s

determination in his favor under a clearly erroneous standard,

see Appellee’s Br. 15-16, but this is clearly wrong. The

district court correctly observed that “[o]n a motion to dismiss

for failure to state a claim upon which relief can be granted

pursuant to Federal Rule of Civil Procedure 12(b)(6), [the

court] must construe the allegations and facts in the complaint

in the light most favorable to the plaintiff. ” Vila v. Inter-

American Investment Corp., 536 F. Supp. 2d 41, 45-46

(D.D.C. 2008) (“District Court Opinion”). We review such

rulings de novo. Kaemmerling v. Lappin, 553 F.3d 669, 676

(D.C. Cir. 2008); see also, Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007) (conducting a de novo review of

plaintiffs’ 12(b)(6) motion). The panel today grants that we

must apply the traditional de novo standard of review to

Vila’s 12(b)(6) claim and that the determination of when

Vila’s enrichment claim became unjust is based upon

“granting Vila the benefit of all reasonable inferences.” Maj.

Op. at 17 (emphasis added). Yet the court also says that when

enrichment becomes unjust “is a question of fact for the

10

district court to resolve.” Id. at 17. Insofar as this may imply

that we should adopt the clearly erroneous standard of review

urged by Vila, it runs directly contrary to our precedent and

the Supreme Court’s practice. Hence, I will proceed under the

traditional de novo standard: if Vila’s claimed date of the first

legally relevant refusal is not plausibly supported by “the facts

alleged” and “the allegations in the complaint,” we must

reverse. Id.

Vila’s complaint alleges that his “[s]ervices were

performed . . . and accepted by Defendant’s senior officers

and senior management from January to August 2003.”

Compl. 11. Hence, there can be no doubt that Vila’s “last

service ha[d] been rendered” prior to October 26, 2003. The

only remaining issue then is whether IIC had refused to

compensate Vila before that date.

As the court points out, Vila alleges at the outset of his

complaint that he was refused payment on November 4, 2003.

Maj. Op. at 17. The IIC does not contest that a refusal took

place on November 4, 2003. What the IIC does contest,

however, is Vila’s inference that the November 4, 2003, e-

mail was the first legally relevant refusal to take place. And

while the pleading standards required by Rule 12(b)(6) are

extremely liberal, “the court need not accept inferences drawn

by plaintiffs if such inferences are unsupported by the facts set

out in the complaint[, nor must it] accept legal conclusions

cast in the form of factual allegations.” Kowal v. MCI

Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)

(emphases added).

Vila’s complaint itself specifically alleges facts and

inferences contradicting his claim that the first legally relevant

refusal occurred on November 4, 2003. “On August 4, 2003,

in an e-mail replying to Plaintiff’s further compensation

claims . . . [Victor] Moscoso acknowledged Plaintiff’s work,

11

but refused to compensate it.” Compl. ¶ 14 (emphasis added).

Victor Moscoso was the IIC Regional Head with whom Vila

had discussed his compensation expectations for all of his

services and who, according to Villa, had acknowledged

Vila’s compensation expectation on IIC’s behalf on a prior

occasion. See Compl. ¶ 11-13. But on August 4, 2003, again

in Vila’s own words, “Mr. Moscoso attempted to justify the

refusal to pay for Plaintiff’s Services and suggested entirely

new terms for future work by Plaintiff.” Compl. ¶ 14

(emphases added). Thus Vila clearly characterizes his e-mail

contacts with Victor Moscoso as establishing that by August

4, 2003 Vila had provided his work to IIC and that IIC

“refused” payment for that work, as opposed to “future work.”

And since an unjust enrichment claim accrues “when its

elements are present, so that the plaintiff could maintain a

successful suit,” Thompsen, 878 A.2d at 1222, Vila’s own

words establish that his claim had accrued before October 26,

2003.

Vila’s assertions about the Moscoso correspondence are

enough to show that IIC should prevail, but his complaint

contains further allegations contradicting his view that

payment was first refused on November 4, 2003. “Following

Mr. Moscoso’s refusal, Plaintiff appealed to Steven Reed,

Defendant’s Deputy General Manager, in an attempt to obtain

compensation.” Compl. ¶ 14 (emphases added). Of course,

Vila’s unilateral decision to appeal Moscoso’s “refusal” could

not extend the limitations period, regardless of how Reed

responded: “Otherwise, a party could indefinitely extend the

accrual date for the statute of limitations by simply making

periodic requests of another party to enter an agreement.”

GIV, LLC v. Int’l Bus. Machines Corp., 2007 WL 1231443, at

*3 (E.D. Va. Apr. 24, 2007). See also Del. State College v.

Ricks, 449 U.S. 250, 261 n. 15 (1980) (“Mere requests to

reconsider . . . cannot extend the limitations period[]”). In any

event, Reed, like Moscoso before him, “acknowledged

12

Plaintiff’s considerable amount of work, but refused to pay for

Plaintiff’s Services, alleging . . . a different understanding of

the agreement between Plaintiff and Defendant and the

absence of a written contract.” Compl. ¶ 15 (emphasis added)

(internal quotation marks omitted). Thus, according to Vila’s

allegations, IIC twice refused to pay him before October 26,

2003.

The district court declined to give these refusals legal

effect, saying that “none of the emails that predate the

November 4, 2003 email . . . were sufficiently unequivocal to

cause the unjust enrichment claim to accrue.” District Court

Opinion, 536 F. Supp. 2d at 51. Specifically, the district

court pointed to the fact that in both an August 28, 2003 e-

mail and a September 12, 2003 e-mail Reed had alluded to the

possibility that Vila could receive a “success fee for some of

his work.” Id. This argument fails for numerous reasons.

First and foremost, under Vila’s own characterization of the

prior correspondence, Moscoso “refused to compensate”

Vila’s work, and after “attempt[ing] to justify the refusal . . .

suggested entirely new terms for future work.” Compl. ¶ 14

(emphasis added). Rule 12(b)(6) of course requires us to draw

all reasonable inferences in favor of the plaintiff, but it surely

doesn’t require us to disregard factual allegations that flatly

undermine a complaint.

Second, the district court was mistaken in its theory that

Reed’s mention of a success fee somehow qualified the

refusal. To be sure, Reed said in an August 28, 2003 e-mail

that IIC “expect[ed] to sign the Safra agreement [on which

Vila had worked] soon,” and that he would have a contract on

the Safra matter prepared “so that when Safra instructs us to

go to market, an agreement with you will be in place.” E-mail

262, J.A. 167. This needed confirmation from another IIC

official, he said, but “I don’t see a problem. You will be

compensated based on a success fee.” Id. But the possibility

13

of some future compensation, which the district court

recognized would only have been for “some work” Vila

completed, District Court Opinion, 536 F. Supp. 2d at 52,

could not toll the statute of limitations because there is no

reasonable basis for thinking that the success fee operated as

any sort of substitute for the compensation Vila requested.

Indeed, Vila’s complaint treats Reed’s position as a

refusal and rejects the notion of a success fee as a basis for

payment. Vila points out “that there was no reference to

compensation on a success fee basis in any of the numerous e-

mails received from [IIC] senior officers, or in any other

documentation exchanged between Defendant and Plaintiff

from January to August 2003.” Compl. ¶ 17, J.A. 18.

Consequently, Vila “reiterated his compensation claim” to

Reed, which Reed again rejected, and Vila then submitted an

invoice for $ 89,909.00. Compl. ¶¶ 17-18 (emphasis added).

As the district court correctly found, this invoice amount,

which Vila now requests as damages, “is based on

calculations using a daily consulting fee,” not on a success fee

calculation. District Court Opinion, 536 F. Supp. 2d at 50.

As Reed stated after Vila reiterated his claim for

compensation following Reed’s initial rejection, “I don’t

understand how you expected compensation on any basis

other than a success fee.” E-mail 264, J.A. 168. Given that

Vila sought compensation for all of his work, on an entirely

different mode of compensation, we should interpret Reed’s e-

mail as Vila did—as a clear refusal of the compensation he

requested and which he now requests in the current suit.

Accord, Phillips v. Scott, 446 F. Supp. 2d 70, 82 (D. Conn.

2006) (unjust enrichment action accrued when mother refused

to turn over proceeds of a property sale to son, even though

mother mentioned “she might, at some unspecified time in the

future, pay him some small portion of those proceeds”).

14

Oddly enough, though the district court regarded IIC’s

November 4, 2003 e-mail as an unequivocal refusal on the

theory that it did not include the possibility of “some

compensation,” District Court Opinion, 536 F. Supp. 2d at 52,

that e-mail in fact did not rule out the possibility of a success

fee. According to the complaint, once Vila “reiterate[d]” his

invoice based on a daily consulting fee, IIC refused the

requested payment on precisely the same grounds as Reed’s

earlier e-mails—“the absence of a contract under ‘defined

terms and conditions.’” Compl. ¶ 19. There is simply no

meaningful differentiation between this e-mail and any of its

predecessors.

The court today crafts an entirely new theory for the

accrual of Vila’s unjust enrichment claim—one not found in

Vila’s briefs, the district court opinion, or any relevant case

law. The court seems to base its conclusion that “the district

court could find . . . that enrichment became unjust only on

November 4,” on three arguments, none of which is

persuasive. Maj. Op. at 17. First, the court claims that this

was the first time Vila had submitted an invoice for a “specific

amount of compensation.” Id. at 17. The prior e-mails to

Moscoso and Reed, however, rejected the notion of any

payment on Vila’s requested basis. Thus, whether Vila later

asked for $1 or $1,000,000 was irrelevant, as he was aware he

would not be getting any money without a written contract.

Additionally, in News World Communications, Inc. v.

Thompsen, 878 A. 2d 1218 (D.C. 2005), which governs here,

the court found the plaintiff was refused payment not when

she submitted an invoice, but when she received a phone call

simply stating that “she would not be paid for her ideas or for

the work she had done.” Id. at 1220. Thompsen explicitly

held that it was enough that this phone call “informed [the

plaintiff] that she would not be compensated.” Id. at 1222.

Thus, there is simply no reason to think an invoice for a

specific amount is necessary to start the statute running.

15

Second, the court argues that the e-mails to Moscoso did

not cause the statute of limitations to accrue because only two

of Vila’s projects involved Moscoso, and hence Moscoso

would not have “known the totality of the work,” as the

Personnel Office did. Maj. Op. at 18. The court argues that

this makes the case distinguishable from Thompsen because

there the plaintiff had a “one-on-one” relationship with the

advertising director, who worked with the plaintiff on all the

work she performed. Id. But Vila explicitly alleges that he

spoke with Moscoso at the outset about compensation for the

entirety of his services. See Compl. ¶ 13 (using the defined

term “Services,” which referred to all services, when

explaining that “Plaintiff’s compensation expectation for the

Services was discussed with Victor Moscoso” ). There is also

no reason to believe the rejection from Reed, Moscoso’s

superior, was for fewer than all the projects. Additionally, in

Thompsen the plaintiff had contacts with “several other

representatives” besides the advertising director. Thompsen,

878 F.2d at 1220. The advertising director in Thompsen was

the “relevant contact,” Maj. Op. at 18, only because he was

the person who had confirmed the plaintiff’s compensation

expectations on a prior occasion, just as Vila alleges Moscoso

had done. And the refusal in Thompsen did not come from the

personnel department. The court offers no explanation why

an e-mail from a personnel department official should be

regarded as anything other than a reiteration of the refusal

already communicated by a high-level official of the IIC, the

Deputy General Manager, Steven Reed.

Third and finally, the court claims that because Vila

worked for several people he could “have anticipated that he

could go to their superior, General Manager Rogozinski, if his

request for compensation were rebuffed”; the court claims the

e-mails “indicate this is what happened.” Maj. Op. at 19. Not

only does this argument seem entirely inconsistent with the

precedent limiting a plaintiff’s ability to extend limitations

16

deadlines with repeated appeals, but, as already mentioned,

Vila had previously discussed his compensation expectation

for all services with both Moscoso and Reed (only one level

below Rogozinski in the corporate hierarchy). Moreover, the

e-mails hardly reveal the “appeals” process that the court

dreams up. Rogozinski’s only response to Vila asked Vila not

to contact him any more, but instead to pass his written

consultant agreements on to the Personnel Office. E-mail

268, J.A. 175. Of course, Vila did not have such written

agreements and already knew from his correspondence with

Steven Reed that without such agreements he would not be

paid, so it was hardly surprising when the personnel

department then reiterated the exact same denial that Reed had

already communicated.

The court’s readiness to treat any rejection as non-final

has puzzling implications. If the refusal by the Deputy

General Manager (Reed) was not enough because there was

someone higher up in the chain, then it is entirely unclear why

that of Rogozinski would start the statute of limitations

running. After all, even after hearing from the Personnel

Department, Vila “reiterated his claim” to the IIC’s President

over the course of the next nine months. Compl. ¶¶ 20-21.

Since a claim for unjust enrichment accrues only when all of

its elements are present, the implication of the majority’s

position is that Vila could not have brought a claim after the

Moscoso or Reed e-mails refusing to pay him the very

compensation he now claims he is owed, and perhaps cannot

do so now—unless IIC’s President has actually rejected the

claim.

The court faults all of the above arguments on the

grounds that I “parse” Vila’s allegations instead of

considering them in their “totality” and giving Vila the benefit

of all favorable inferences. Maj Op. at 19. But one allegation

with zero relevance, added to a dozen similar allegations, still

17

results in allegations with zero relevance. In reality, my

opinion gives Vila the benefit of all reasonable inferences, as

it accepts Vila at his word: his complaint states he was

“refused” compensation long before November 4, and

characterizes all his subsequent contacts as “reiterat[ions]”

and “appeal[s].” The court, by contrast, goes out of its way to

find inferences flatly contradicted by the allegations in Vila’s

complaint, based on a theory that has no foundation in our

case law or that of the District of Columbia. Accordingly,

were it necessary to go beyond IIC’s immunity defense, which

it is not, I would reverse on the ground of its statute of

limitations argument, just as the court did in Thompsen, 878

A.2d at 1226.