O'Reilly Plumbing v. Lionsgate Disaster Relief

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Witt O'Brien ("WOB"). Dkt. No. 1-1. It asserted claims of negligent hiring and retention, breach of contract, taxpayer enforcement, tortious interference with contractual relations and fraud. Id. After AECOM removed the action to District Court, Dkt. No. 1, Defendants WOB, Lionsgate, and AECOM filed Motions to Dismiss under Fed. R. Civ. P. 12(b)(6). Dkt. Nos. 9, 17,

18. O'Reilly filed a First Amended Complaint in December 2020, and Defendants Lionsgate, WOB, and AECOM renewed their Motions to Dismiss. Dkt. Nos. 72, 73, 75. In September 2022, the District Judge held, inter alia, that Plaintiff adequately pleaded that it entered a contract with Lionsgate in October 2018 and Lionsgate breached that contract, Dkt. No. 101 at 10, but that Plaintiff failed to identify any facts to plausibly conclude that a contract existed between it and WOB and it and AECOM. Id. at 11. In particular, Plaintiff provided no allegations that it had any agreement to provide work for WOB or AECOM or that Lionsgate was working as an agent of WOB or AECOM in hiring subcontractors. Id. In doing so, the Court rejected Plaintiff's argument that it was a third-party beneficiary of the WOB contract with the Virgin Islands Government. Id. at 12, 15. The District Judge permitted Plaintiff to amend its complaint to address the deficiencies identified in the Memorandum Opinion. Id. at 36. Plaintiff filed the operative Second Amended Complaint in December 2022 alleging only one count against Defendants WOB, AECOM, and Aptim—that they were unjustly enriched by Plaintiff's work or, in the alternative, breached their contract with Plaintiff. Dkt. No. 112-2 (Count I). Plaintiff alleged that WOB executed a contract with the Virgin Islands

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Housing Finance Authority ("VIHFA")¹to assist VIHFA in managing federal funds allocated to the Virgin Islands for disaster recovery relief following Hurricane Maria. Dkt. No. 112-2 ¶¶ 7-14. WOB coordinated the construction activities of the two prime construction contractors, AECOM and Aptim, who assisted in running the disaster recovery program. WOB reviewed invoices submitted by AECOM and Aptim on behalf of themselves and their subcontractors for accuracy, eligibility for reimbursement, and cost reasonableness. Id. ¶¶ 13-14. Plaintiff met with a Lionsgate representative in October 2018 and agreed to provide services to Lionsgate as a subcontractor to deliver lumber to various worksites; Lionsgate agreed to pay a particular amount per square foot of lumber that Plaintiff delivered. Id. ¶¶ 18-19, 23. Plaintiff acquired a warehouse and a laydown yard for the lumber, hired workers, and acquired equipment to load and unload lumber. Id. ¶ 24.

At some point thereafter, Plaintiff found the agreed square foot rate insufficient to cover its costs; it and "the parties" agreed to increase the payment significantly. Id. ¶ 25. In November 2018, Plaintiff discovered discrepancies in the invoices it received from Lionsgate for its deliveries, complained to the Defendants that the invoices were incorrect, and that it was being defrauded by Lionsgate. Id. ¶¶ 28-30. In December 2018, a Lionsgate's representative told Plaintiff that its trucks were going to be loaded by Lionsgate's employees, not Plaintiff's, and Lionsgate unilaterally decreased its payments per square foot of lumber

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by two-thirds. Id. ¶ 33. Plaintiff alleged that WOB, AECOM and Aptim approved and ratified Lionsgate's alleged retaliatory breaches of contract. Id. ¶ 34. Thereafter, Lionsgate allegedly locked Plaintiff out of its offices, moved to a new office, and obtained its own warehouse, equipment, and employees to move the lumber that Plaintiff had contracted to move, and hired away some of Plaintiff's employees. Id. ¶¶ 37-41. Plaintiff showed Aptim documents supporting its claims that its work was not correctly reflected in Lionsgate's invoices, and relied on Aptim's promise to investigate the claims and provide correct remuneration. Id. ¶¶ 41-46. Plaintiff asserted that Aptim "took over" the contract Plaintiff had with Lionsgate, and thereafter did business with Lionsgate instead of Plaintiff, id. ¶ 49. Plaintiff alleged Defendants either paid money over to Lionsgate that was never paid to Plaintiff or retained/refused to pay the funds owed to Plaintiff. Id. ¶ 67. Defendants WOB and AECOM again filed Motions to Dismiss. Dkt. Nos, 122, 125. In May 2024, the District Judge denied AECOM's motion in part, concluding that Plaintiff had sufficiently alleged a claim of unjust enrichment, and granted the motion in part by dismissing the breach of contract claim. Dkt. No. 150 at 15-17, 20-22. The District Judge ruled that Plaintiff failed to plead facts showing that it had a contract with AECOM or that it was an intended third-party beneficiary of the WOB contract with the V.I. Government. Id. at 21. Plaintiff did not remedy the defects of its initial breach of contract claim. Id. The District Judge added that Plaintiff had notice of the deficiencies in its pleadings

"through three iterations of motions to dismiss for failure to state a claim and an Order of the Court. Yet, the deficiencies remain." Id. at 23-24. Quoting Gasoline Sales Inc. v. Aero Oil Co.,

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39 F.3d 70, 74 (3d Cir. 1994) that "three attempts at a proper pleading is enough," the District Judge held that "further leave to amend would be inequitable and futile as to Plaintiff's breach of contract claim against Defendant AECOM," and dismissed that claim against AECOM with prejudice. Id. at 24. The District Judge also dismissed WOB from the case. Id. Following a status conference, the Court issued a Scheduling Order on October 4, 2024, nunc pro tunc to August 27, 2024 (the date of the status conference), in which it, inter alia, set a discovery deadline for March 28, 2025 and an amendment of pleadings deadline for April 11, 2025. Dkt. No. 161. On March 28, 2025, Plaintiff filed a Motion to Extend Deadlines, arguing that although it diligently attempted to meet the March 28, 2025 discovery deadline, it was unable to do so and good cause existed to extend the deadline. Dkt. No. 192 at 12. Defendants Aptim and AECOM opposed the motion. Dkt. Nos. 194, 195. On April 9, 2025, the Court denied the motion to extend, concluding that Plaintiff had not met the "due diligence" good cause standard under Rule 16(b)(4). Dkt. No. 197. Two days later, on the deadline for motions to amend, Plaintiff filed the instant motion. Dkt. No. 199.

B. Motion to Amend

Plaintiff moves to amend its Second Amended Complaint "to add additional allegations and damages as to events that have occurred since the service of filing the original Complaint," as discovery provided facts that further supported its allegations. Dkt. No. 199 at 1. According to Plaintiff, the causes of action in the proposed Third Amended Complaint ("TAC") remained the same "except for the reassertion of breach of contract claims against AECOM and APTIM based on details discerned during discovery that support the claims" and

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did not "add any new parties or new legal theories that were not pled from the outset of this litigation." Id. The motion set forth generic Rule 15 case law and the requirements for pleading a breach of contract claim and an unjust enrichment claim in the Virgin Islands. Id. at 2, 3. It did not specifically argue how the new allegations met those standards, only that

"[t]he proposed TAC more than adequately pleads a breach of contract claim." Id. at 3. Plaintiff asserted that it tried to meet and confer with Defendants' counsel pursuant to LRCi 7.1(f), "but as of the filing of the motion did not hear back from [them]." Id. at 4. Plaintiff provided a redlined version of the proposed TAC that contained approximately 350 new allegations, many of which set out specific terms of AECOM's and Aptim's contracts with the Virgin Islands Government and subsequent amendments and changes. Id. ¶¶ 13-18, 20-21, 35, 38-40, 42-43, 46-52, 56-61, 81-84, 86-87, 180-182, 256, 280-284, 333-334, 352-353, 359-361, 364-366 (AECOM); ¶¶ 96-157, 251, 309, 321-322, 336-337, 372-383 (Aptim). A number of the allegations described Aptim's subcontract with Lionsgate. Id. ¶¶ 160-167, 220-222, 253, 257-258, 266, 323, 347-348. Count I of the proposed TAC asserted the same unjust enrichment/breach of contract claim against AECOM and Aptim that had been alleged in Count I of the Second Amended Complaint (removing only WOB from the Count). Dkt. No. 199-1 at 63. It added four new allegations (¶¶ 402-405) that Aptim and AECOM, "through Lionsgate," directed the Plaintiff to start up a warehouse, and were responsible for the warehouse; that Plaintiff incurred approximately $250,000 in expenses in obtaining equipment and supplies for the warehouse but had not been reimbursed; and the warehouse was an integral part of AECOM's and

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Aptim's logistical operations. Id. Count II of the TAC asserted a new claim against AECOM, entitled "breach of contract," in which Plaintiff alleged that it contracted directly with AECOM to provide transportation and storage services, AECOM had not paid its invoices, and Plaintiff suffered damages. Id. ¶¶ 408-409. Count III was a new "breach of contract/unjust enrichment" claim against Aptim, alleging that Plaintiff performed roofing repair and construction services pursuant to work orders issued by Aptim, it "submitted invoices to Aptim through Lionsgate but Aptim failed to pay [them] despite it being obligated to pay all monies owed to Plaintiff if Lionsgate failed to pay Plaintiff," and Plaintiff providing these services was integral to Aptim being paid from government funds. Id. ¶¶ 410-417.

C. Opposition by AECOM; Reply by Plaintiff; Sur-Reply by AECOM

In its opposition, AECOM argues that Plaintiff's breach of contract claim against it was barred by the law of the case doctrine and, alternatively, should be denied as futile because O'Reilly failed to state a claim. Dkt. No. 203. As to its first contention, because the District Judge dismissed the breach of contract claim against AECOM in the Second Amended Complaint with prejudice, the law of the case doctrine applied. Id. at 4-5. The newly discovered evidence exception to the law of the case doctrine comes into play only if evidence was fraudulently concealed or could not have been discovered with due diligence; where the moving party failed to establish the exception, a court will decline to reverse a dismissal with prejudice. Id. at 5. Here, the breach of contract claim was dismissed three times, the last time with prejudice, where the court held that further leave to amend would be inequitable and futile. Id. at 7. While reconsideration may be granted in extraordinary

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circumstances, none were present here, and Plaintiff's vague statement that it "obtained discovery that provides facts that further support [its] allegations" failed to establish that new evidence supported a breach of contract claim or that it could not have been obtained earlier with due diligence. Id. Plaintiff did not explain the nature of the new evidence, particularly any allegations that touched on a purported contract with AECOM. Id. at 8-9. Secondly, the proposed amendment should be denied as futile. Id. at 10-12. The sole allegation related to an "agreement" between the parties was that Robbie, a purported

"representative" of AECOM, texted "Mr. Hypolite—warehouse Manager" to coordinate Plaintiff moving materials for AECOM, and AECOM promised to pay for the service. Dkt. No. 199-1, ¶ 252. This allegation fell short of alleging a contract between the parties because an agreement between "artificial legal entities" must be executed by agents with legal authority, and nothing showed that "Robbie" had such authority to bind AECOM or that Mr. Hypolite was authorized to enter such a contract. Dkt. No. 203 at 11. Further, the agreement to move equipment for unspecified compensation fell short of showing mutual assent to a contractual agreement, as there were no terms or conditions other than that allegation. The allegations failed to give rise to any reasonable inference that Plaintiff contracted with AECOM and any claim for breach of contract must fail. Id. at 11-12.

In its reply, O'Reilly stated that the TAC sought to add additional allegations against AECOM in Count I for unjust enrichment or in the alternative, for breach of contract regarding setting up a warehouse at AECOM's direction for which O'Reilly was never paid, and in Count II for breach of contract/unjust enrichment for providing transportation and

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storage services at AECOM's direction for which was never paid. Dkt. No. 206 at 1-2. Plaintiff contends that AECOM did not argue in its opposition that its allegations were futile under an unjust enrichment theory; it took issue only with the breach of contract claim in Count II and thus waived any objection to the breach of contract alternative claim in Count I. Id. n.2. It also states, in a footnote, that Count II "inadvertently" did not allege "unjust enrichment" in its title describing that claim, as it did in Count I, but the Motion to Amend "clearly indicated that both claims (breach of contract/unjust enrichment) were being brought against both defendants," id., citing Dkt. No. 199 at 3.

O'Reilly asserted that it stated a claim for breach of contract (Count II) against AECOM, as it alleged that it "contracted directly with AECOM to provide transportation and storage services and invoiced AECOM who, to date, have [sic] not paid those invoices." Id. at 5 (quoting Dkt. No. 199-2 ¶ 404). It added that, in October 2018, it signed a "Master Service Agreement that was drafted by AECOM, approved by WOB, and required by APTIM to be signed by all subcontractors." Id. at 5-6 (quoting Dkt. No. 199-2 ¶¶ 187, 189); the "contract specifically crossed out the section where [Plaintiff] was to agree to work solely for Lionsgate" which implicitly demonstrated that the parties contemplated Plaintiff working for AECOM (quoting Dkt. No. 199-2, ¶ 192); and that Robbie and Mr. Hypolite communicated by text to coordinate Plaintiff moving materials at AECOM's request that AECOM had agreed to pay for but never did (quoting Dkt. No. 199-2, ¶ 252). Id. at 6. Plaintiff was not required to plead that Robbie was a Manager of AECOM. Id. The allegations supporting the breach of

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contract claim in Count II also supported an unjust enrichment claim, even if the Court determined the breach of contract claim was futile. Id. at 7. O'Reilly further argued that it did not unduly delay in seeking to amend because it filed its motion by the deadline in the Scheduling Order, and that Count II was not barred by the law of the case doctrine because it was "a different claim than the alternative pleading in Count I," and fell into the "new evidence" exception to the doctrine. Id. at 8-10. The District Judge's opinion dismissing the breach of contract claim in Count I did not bar Plaintiff from asserting a new breach of contract claim in Count II. Id. at 10-11. But even if the doctrine applied, the new evidence exception allowed the claim to go forward: the District Judge's opinion was entered on May 29, 2024, a Scheduling Order entered on October 4, 2024, and fact discovery closed on March 28, 2025. Id. at 10-11. It is "axiomatic" that Plaintiff obtained new evidence in the discovery process relevant to its claims by uncovering documents, correspondence, and records it did not have access to at the initial pleading stage. Id. at 11. AECOM filed a motion for leave to file a sur-reply, arguing that it did not have an opportunity to respond to certain legal points that Plaintiff raised for the first time in is reply. Dkt. No. 208. The Court granted the motion. Dkt. No. 211. In its sur-reply, AECOM argued that the TAC's allegations for breach of contract against it were barred by the law of the case and alternatively, should be denied as futile. Dkt. No. 208 at 1 (citing Dkt. No. 203). The most logical and fairest reading of the TAC was that it sought to allege a single breach of contract claim against AECOM only in Count II. Id. at 2. After the Court dismissed with prejudice the breach of contract claim against AECOM in Count I, that claim embodied only an unjust

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enrichment claim, and the redlined pleading added only additional allegations. Id. Plaintiff's motion to amend asserted that its causes of action "remain the same except for the reassertion of breach of contract claims against AECOM and APTIM based on details discerned during discovery. . . . This motion does not add any . . . new legal theories that were not pleaded from the outset of this litigation." Dkt. No. 199 at 1. Plaintiff cannot opt out of that averment by saying that its claim for breach of contract in Count II "is different than the factual basis that forms the alternative pleading for breach of contract in Count I." Id. at 3. Count II vaguely asserted a breach of contract claim for transportation and services which overlapped with allegations of these type of services in Count I. Id. at 5. Further, any breach of contract claim in Count I was subject to dismissal based on futility. The allegation that "APTIM and AECOM, through Lionsgate, also directed the Plaintiff to mobilize and start up an entire warehouse" or that "APTIM and AECOM were responsible for the warehouse, but they were unable to get it up and running and asked the Plaintiff to do so" failed to establish a contractual relationship between AECOM and Plaintiff. The fact that Plaintiff incurred $250,000 in expenses to obtain equipment and supplies for the warehouse operations did not establish an agreement by an agent with authority from AECOM to enter a contract with Plaintiff. Id. at 7. Finally, Count II of the TAC did not include an alternative pleading for unjust enrichment. The allegation that "Plaintiff contracted directly with Defendant AECOM to provide transportation and storage services an invoiced AECOM" is inconsistent with a pleading for unjust enrichment. Id. (quoting 199-2 ¶ 404).

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D. Opposition by Aptim; Reply by Plaintiff

In its Opposition, Aptim observes that the Second Amended Complaint already contained a hybrid unjust enrichment/breach of contract claim against it. Dkt. No. 204 at 2; see Dkt. No. 112-2 at 10. Notwithstanding the 349 new paragraphs, Plaintiff added next to nothing to support the already existing hybrid claim. Dkt. No. 204 at 3. Most of the amendments consisted of excerpts from contracts between VIPFA and WOB, VIHFA and AECOM, and VIHFA and Aptim that were not attached as exhibits to the complaint, and to which Plaintiff was not a party. Id. The VIHFA-Aptim contract (that it attached) expressly provided that it did not create any third-party beneficiaries. Id., citing 204-2, § N. Plaintiff possessed all of these documents since December 2024 and delayed four months to file the motion to amend. Id. Plaintiff admitted in the TAC that there was no contract between it and Aptim. Id. at 4 (quoting Dkt. No. 199-2 ¶ 195: "This failure by APTIM to contract directly with Plaintiff was in violation of the Programs requirement to give preference to local workers and companies."). Thus, the motion to amend should be denied as a result of undue delay and futility. Id. Plaintiff had no legal right to enforce the VIHFA-Aptim contract. Id. at 7-8. The proposed amendments would prejudice Aptim as discovery has closed, limiting its ability to defend against the claims. Id. at 7. Plaintiff was attempting an end run around the Court's ruling that denied Plaintiff's motion to extend the discovery deadline by forcing the Defendants to seek discovery on the new allegations.²Id.

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In its Reply, Plaintiff asserts that the TAC alleged a new claim against Aptim for unjust enrichment or, in the alternative, for breach of contract (Count III). Dkt. No. 207 at 1. Aptim claims that Plaintiff delayed in seeking the amendment and that it would be prejudiced. Id. at 1-2. It did not unduly delay in seeking to amend: discovery closed on March 28, 2025 and it had to process hundreds of documents from Defendants beginning in December 2024. The motion to amend was timely filed by the April 11, 2025 Scheduling Order deadline. Id. at 6. Further, the motion to amend was not futile. The new claim—Count III—was for unjust enrichment or, in the alternative, breach of contract; because Aptim did not object to the unjust enrichment part, it conceded that it was not futile and Plaintiff should be permitted to amend the Second Amended Complaint. Id. at 7. Plaintiff alleged that it performed roofing repair and construction services pursuant to orders issued by Aptim; it submitted invoices to Aptim through Lionsgate, which Aptim promised to pay. Id., citing Dkt. No. 199-2 ¶¶ 407, 408, 409-10, 411-12. In addition, Plaintiff alleged that under the contract, if Aptim failed to timely pay the subcontractors, Aptim was responsible. Id at 8, citing Dkt. concurrence in filing the motion to amend. Dkt. No. 204 at 5-6. When counsel returned to his office at 6:30 p.m., Plaintiff had already filed the motion. Id. at 6. He had no opportunity to review the 349 new paragraphs, discuss them with his client, or to meet and confer with Plaintiff as required by the rule. Id. Since Plaintiff was clearly working on the proposed TAC for weeks, it had ample opportunity to meaningfully comply with LRCi 7.1(f) as opposed to firing off an email at the eleventh hour. Accordingly, the TAC should be stricken. Id. Plaintiff responds that it complied with LRCi 7.1(f) to the best of its abilities given the time constraints: once it completed the TAC and motion to amend, it provided the documents to Aptim's counsel. Dkt. No. 207 at 5. The Court gives no credence to Plaintiff's rationale but will not strike the Motion to Amend on that ground.

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No. 199-2 at ¶¶ 141, 149. Plaintiff added that third-party beneficiary status was not the basis for its breach of contract claim. Rather, any subcontractor agreements by Aptim had to include all the requirements from Aptim's contract with VIHFA, id. (citing Dkt. No. 199-2 ¶ 146), such that "any subsequent agreements by APTIM had to guarantee that APTIM would pay even if Lionsgate did not pay." Id. (citing ¶¶ 158(c), 383). Aptim was also a guarantor for the payments that Lionsgate failed to make to Plaintiff. Id. at 9. Even if the Court agreed that the TAC failed to plead a breach of contract claim, it must assess whether Plaintiff adequately pleaded an alternative claim for promissory estoppel. It set out the factors for pleading such a claim and asserts that the TAC's allegations stated such a claim. Id. at 10. Moreover, the allegations supporting Count III also stated a claim for unjust enrichment because Plaintiff performed services for Aptim at Aptim's request and Aptim was enriched. Id. at 11. Plaintiff complained that Aptim attaching its contract with the Virgin Islands Government was "inappropriate," requiring conversion of a motion to dismiss to a motion for summary judgment. Id. at 11-12. Plaintiff concludes by arguing that Aptim failed to identify how it would suffer prejudice by allowing the amendment. Id. at 12. While it claimed discovery had closed and it could not defend against the claims, it failed to specify what discovery would be necessary. According to Plaintiff, no additional discovery would be necessary because the new allegations stemmed from documents produced by Aptim and Plaintiff in discovery. Id.

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DISCUSSION

I. Legal Standards A. Rule 15 Standard

Rule 15(a) of the Federal Rules of Civil Procedure allows a party to amend its pleading and directs the Court to grant such leave "when justice so requires." As the United States Supreme Court has declared:

In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failures to cure deficiencies by amendments previously allowed, undue prejudice to the other party by virtue of allowance of the amendment, futility of amendment, etc.— the leave sought should, as the rules require, be 'freely given.' Foman v. Davis, 371 U.S. 178, 182 (1962). "Prejudice means undue difficulty in prosecuting [or defending] a lawsuit as a result of a change in tactics or theories on the part of the other party. More specifically, courts consider whether allowing an amendment would result in additional discovery, cost, and preparation to defend against new facts or new theories."

Heraeus Med. GmbH v. Esschem, Inc., 321 F.R.D. 215, 217 (E.D. Pa. 2017) (internal quotation marks and footnotes omitted).

Although "delay alone is an insufficient ground to deny leave to amend," Cureton v. Nat'l Collegiate Athletic Ass'n, 252 F.3d 267, 273 (3d Cir. 2001) (internal quotation marks omitted), "a motion to amend should be made as soon as the necessity for altering the pleading becomes apparent. A delay in amending becomes 'undue' when it places an unfair burden on the opposing party. . . . A plaintiff must, therefore, offer a 'colorable excuse' for the delay. Courts in this district have found undue delay and/or prejudice where the proposed

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amendments assert new claims, where new discovery would be necessary, and where the motion for leave to amend was filed months after the factual basis of the amendment was discovered by the moving party." Special Risk Ins. Servs., Inc. v. GlaxoSmithKline, LLC, No. 19- cv-3002, 2021 WL 6075892, at *1 (E.D. Pa. Mar. 11, 2021) (internal quotation marks omitted). Delay can also be undue "when a movant has had previous opportunities to amend a complaint." Cureton, 252 F.3d at 273; see also Cyril v. Pereira, No. 16-cv-0017, 2022 WL 2806712, at *12 (D.V.I. July 14, 2022) (denying plaintiffs leave to amend their complaint a third time considering they were on notice of potential deficiencies in their pleadings).

"Futility" means that the complaint, as amended, would fail to state a claim upon which relief could be granted. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). The grant or denial of an opportunity to amend "is within the discretion of the District Court[.]" Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Cureton, 252 F.3d at 272.

B. Law of the Case Doctrine

"The law of the case doctrine prevents reconsideration of legal issues already decided in earlier stages of a case." Home Depot USA, Inc. v. Lafarge N. Am., Inc., 59 F.4th 55, 61 (3d Cir. 2023) (internal quotation marks omitted). "The doctrine is designed to protect traditional ideals such as finality, judicial economy and jurisprudential integrity." In re Phila. Litig., 158 F.3d 711, 717-18 (3d Cir. 1998). It "does not restrict a court's power but rather governs its exercise of discretion." In re Pharm. Benefit Managers Antitrust Litig., 582 F.3d 432, 439 (3d Cir. 2009) (internal quotation marks omitted). In exercising that discretion,

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however, courts should "be loath to [reverse prior rulings] in the absence of extraordinary circumstances such as where the initial decision was clearly erroneous and would make a manifest injustice." Id. (internal quotation marks omitted). In addition to the narrow class of cases where the prior ruling was manifestly unjust, the type of "extraordinary circumstances" that warrant a court's exercising its discretion in favor of reconsidering an issue decided earlier in the course of litigation typically exist only where (1) new evidence is available, or (2) a supervening new law has been announced. Id. New evidence has been described as "differ[ing] materially from the evidence of record when the issue was first decided and if it provides less support for that decision," Speeney v. Rutgers, The State Univ.,

369 F. App'x 357, 361 (3d Cir. 2010), or applying where "such evidence was fraudulently concealed or it could not have been discovered with due diligence," Bosley v. The Chubb Instit.,

516 F. Supp. 2d 479, 485 (E.D. Pa. 2007) (internal quotation marks omitted).

II. Application

A. AECOM

The Court will deny Plaintiff's motion to amend as to AECOM for two reasons. First, the breach of contract claim was dismissed with prejudice by the District Judge in a May 2024 Order, Dkt. No. 149; Dkt. No. 150 at 21-22 & nn. 9,10. Reassertion of such a claim here is barred by the law of the case doctrine. Second, the new breach of contract claim presented in Count II of the TAC fails to state a claim and therefore amendment would be futile. The District Judge concluded that Plaintiff's breach of contract cause of action, set forth in its First Amended Complaint, failed to state a claim, and permitted Plaintiff an

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opportunity to amend to cure the claim's deficiencies. Dkt. No. 100. Plaintiff filed its Second Amended Complaint, Dkt. No. 112, in which it asserted an alternative claim for unjust enrichment and breach of contract against AECOM. In yet another Memorandum Opinion, the District Judge concluded that Plaintiff had "not pleaded any non-conclusory facts from which one can plausibly conclude that it had a contract with . . . AECOM," and that the Second Amended Complaint suffered from the same deficiencies as the First Amended Complaint. Dkt. No. 150 at 21. The District Judge observed that the Plaintiff had had notice of those deficiencies through "three iterations of motions to dismiss for failure to state a claim and an Order of the Court," and explicitly held that "further leave to amend would be inequitable and futile as to Plaintiff's breach of contract claim against Defendant AECOM." The District Judge dismissed that claim with prejudice. Id. at 24.

Now, a year later, Plaintiff is attempting to reassert a breach of contract claim against AECOM. Whether it is a new breach of contract claim or a reassertion of the old claim (a confusion prompted by Plaintiff's reply brief) or both does not matter because the dismissal of that claim on the merits with prejudice and without leave to amend bars further assertion of the breach of contract claim against AECOM. In its moving brief, Plaintiff blithely provided generic Rule 15 caselaw, without any acknowledgment that the motion to amend was set against the backdrop of the breach of contract claim being dismissed with prejudice, and without any argument or legal authority that might demonstrate why such a claim was permissible now. It merely made a broad, passing reference that the new allegations resulted

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from discovery Plaintiff obtained since filing the original complaint (in April 2019), without detailing what the discovery had, in fact, revealed, or exactly when. Dkt. No. 199 at 1. Case law on this issue is crystal clear: "[r]epleading is futile when the dismissal is on the merits. A dismissal is on the merits when it is with prejudice[.]" United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 516 (3d Cir. 2007). To the extent that [plaintiff] reasserts claims previously dismissed with prejudice, they are subject to the law of the case doctrine. ACLU v. Mukasey, 534 F.3d 181, 187 (3d Cir. 2008) (holding that under the law of the case doctrine, "when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." (internal quotation marks omitted)). Warden v. Woods Servs., No. 19-cv-5493, 2020 WL 1289194, at *2 (E.D. Pa. Mar. 17, 2020); see also Remlinger v. Lebanon Cnty., No. 18-cv-984, 2020 WL 13924447, at *5 (M.D. Pa. Mar. 27, 2020) (reasserted punitive damages claim against county (previously been dismissed with prejudice) was again dismissed with prejudice under the law of the case doctrine); Natividad v. Raley, No. 22-cv-5061, 2024 WL 1549295, at *4-5 (E.D. Pa. Apr. 5, 2024). In its reply brief, Plaintiff asserts that (1) the law of the case does not apply because the Memorandum Opinion addressed only Plaintiff's pleading in the alternative of Count I, AECOM objected only to Count II of the TAC, and the factual bases of the two claims were different; (2) even if the law of the case doctrine applied, Plaintiff presented new evidence. Dkt. No. 206 at 9-11. Neither argument carries any weight.

First, whether the breach of contract claim was pleaded in its own count or as an alternative cause of action to unjust enrichment is not significant. The District Judge addressed the breach of contract claim on the merits and dismissed it on the merits. The only

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legal authority Plaintiff provides for its position that it may reassert a claim that had been dismissed with prejudice relates to its argument that the "new evidence" exception to the law of the case doctrine permits its breach of contract claim or claims in the TAC to go forward. The Third Circuit has cautioned that courts should be loath to reverse its prior rulings "in the absence of extraordinary circumstances." In re Pharm. Benefit Mgrs. Antitrust Litig., 582 F.3d at 439. This is an "exacting standard." Farkas v. Rich Coast Corp., No. 14-cv- 272, 2017 WL 10311283, at *3 (M.D. Pa. Dec. 29, 2017).

In Plaintiff's view, the TAC contains "new evidence" revealed in discovery, which was not available when it filed its Second Amended Complaint; it makes a sweeping generalization that it is "axiomatic that Plaintiff obtained new evidence in the process of discovery that is relevant to Plaintiff's claims against AECOM." Dkt. No. 206 at 11. But if that were the case, any amendment offered at any time after discovery commenced, based on that

"new" discovery, would fit the "new evidence" exception, completely undercutting the requirement that the exceptions to the law of the case doctrine apply only in "extraordinary circumstances" and would permit a party to easily circumvent a previous decision on the merits. Andresen v. Pennsylvania, No. 20-cv-989, 2021 WL 9273954, at *5 (M.D. Pa. July 7, 2021) (noting that plaintiff had to overcome the law of the case doctrine by alleging, inter alia, new evidence to demonstrate that reinstatement of her claims against a defendant, who had been dismissed from the lawsuit with prejudice, was justified based on extraordinary circumstances. Since the amended complaint alleged no extraordinary circumstances to warrant such relief, the court dismissed the amended complaint against that defendant),

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report & recommendation adopted, 2021 WL 9274582 (M.D. Pa. No. 2, 2021); cf. Riffin v. New Freedom Borough, No. 23-1048, 2024 WL 1795770, at *3 (3d Cir. Apr. 25, 2024) (approvingly citing Magistrate Judge Report & Recommendation that observed: "[l]eave to amend cannot continually be granted every time a plaintiff gleans more knowledge."). In addition, Plaintiff does not detail what that new evidence actually was and does not claim that it differed materially from the evidence of record, and how, Speeney. 369 F. App'x at 361, or that it was fraudulently concealed, Bosley., 516 F. Supp. 2d at 485. Critically, Plaintiff does not explain how the new breach of contract claim is different by, for example, asserting that it learned on what specific recent date for the first time that it actually had a contract with AECOM—leading to the conclusion that the new claim derives from the same circumstances alleged in the First and Second Amended Complaints. Accordingly, because Plaintiff has not shown that the "new evidence" exception to the law of the case doctrine applies, the Court will deny Plaintiff's motion to amend as to Defendant AECOM based on that doctrine, which renders amendment futile.

But even if the law of the case doctrine did not apply, Plaintiff's motion to amend as to AECOM would still be futile on the ground that, once again, it has not stated a claim for breach of contract. The District Judge, in her September 2022 and May 2024 memorandum opinions, set out the requirements for a breach of contract claim in the Virgin Islands: "To sufficiently allege a breach of contract claim under Virgin Islands law, the plaintiff must allege four elements: (1) an agreement between the parties; (2) a duty created by that agreement; (3) a breach of that duty; and (4) damages." Dkt. No. 150 at 21. Count II of the

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TAC provides that "Plaintiff contracted directly with Defendant AECOM to provide transportation and storage services and invoiced AECOM who, to date, have [sic] not paid those invoices." Dkt. No. 199-2 ¶ 408. This allegation, in turn, relies on Paragraph 252, where Plaintiff describes a three-and-one-half month long series of texts between Robbie, an AECOM representative, and Mr. Hypolite, Plaintiff's warehouse manager, where AECOM requested that Plaintiff move materials, for which AECOM would pay, but never did. Dkt. No. 199-2. But "a contract requires more than simply agreeing to do something: a contract is created only when parties mutually assent to specific terms" in which there is "an offer and an acceptance in which the offer and acceptance must mirror each other in order for a contract to be legally formed." Mosler v. Gerace, 78 V.I. 649, 667-68 (V.I. 2024) (internal quotation marks omitted). "A manifestation of mutual assent or a meeting of the minds requires that the two parties that intend to form a contract are in agreement to the same terms and must be proven objectively." St. Croix Fin. Ctr., Inc. v. Jackstar, Inc., 76 V.I. 156, 165 (Super. Ct. 2022) (internal quotation marks omitted). The TAC, with its hundreds of new allegations, provided no content from those messages to show any agreement to anything (other than AECOM "agreed to pay" for "materials"). Nor did the TAC allege that Robbie and Mr. Hypolite were agents of their respective companies who possessed legal authority to bind them to any contractual agreement.

Similar to the previous iterations of the complaint, Plaintiff has "still not pleaded any non-conclusory facts from which one can plausibly conclude that it had a contract with . . . AECOM." Dkt. No. 150 at 21, and the breach of contract claim fails. Watson v. LPP Mortg., Ltd.

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No. 16-cv-0078, 2019 WL 123878, at *2 (D.V.I. Jan. 7, 2019) ("It goes without saying that before one can be entitled to a remedy for breach of contract, one must first prove that a contract was formed . . . "). Asserting this breach of contract claim would therefore be futile, providing an alternate ground to deny the motion to amend as to Defendant AECOM.

B. Aptim

Defendant Aptim never filed a motion to dismiss in this litigation and cannot benefit from any application of the law of the case doctrine. Therefore, Count I of the Second Amended Complaint, alleging unjust enrichment and breach of contract in the alternative, is still extant against Aptim. Count III of the TAC alleges yet another claim for unjust enrichment and breach of contract in the alternative against Aptim. Dkt. No. 199-2. It focuses on "roofing repair and construction services pursuant to work orders issued by Aptim" for which Plaintiff was never paid, id. ¶¶ 411-417, versus Count I that refers to Plaintiff providing "transportation and storage services" for which it was not paid. The only explanation Plaintiff provided for seeking to assert two separate unjust enrichment/breach of contract claims—where both claims relate to work it provided in 2018 and 2019 in the disaster recovery program following Hurricanes Irma and Maria—was a vague reference to having "obtained discovery that provides facts that further support Plaintiff's allegations, all of which relate back to the original Complaint." Dkt. No. 199 at 1. Aptim argues that most of the new allegations in the TAC are excerpts from contracts between VIPFA and WOB, VIHFA and AECOM, and VIHFA and Aptim, and that Plaintiff had

"all of these documents since December of 2024 and delayed for four months" to file the TAC

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on the last day to amend. Dkt. No. 204 at 3. In its 14-page reply—a document almost three times longer than its initial motion to amend—Plaintiff did not address that statement. Rather, the only argument it offered that it had not delayed in moving to amend was that its amendment was timely under the Scheduling Order. But a timely motion under the Scheduling Order does not address the separate question of whether the proposed amended complaint could have been filed earlier. See Cureton, 252 F.3d at 273 (the "question of undue delay requires that we focus on the movant's reasons for not amending sooner" while balancing the "liberal pleading philosophy of the federal rules."). In CMR D.N. Corp. v. City of Philadelphia, 703 F.3d. 612 (3d Cir. 2013), the Third Circuit observed that it has "refused to overturn denials of motions for leave to amend where the moving party offered no cogent reason for the delay in seeking the amendment." Id. at 629 (opining that although the Third Circuit has stated that "prejudice to the nonmoving party is the touchstone for the denial of the amendment," that was "not the only prejudice that may justify denial of a motion for further leave to amend a pleading," and that "undue delay. . . may itself constitute prejudice sufficient to justify denial of a motion for leave to amend."); see also Adams v. Gould, Inc., 739 F.2d 858, 868 (3d Cir. 1984) (whether delay was undue or not requires that the movant's reasons for not amending sooner be examined).

Plaintiff knew when it filed its First Amended Complaint in September 2019 that it had incurred expenses in doing certain work on the home recovery projects for which it had not been paid. Dkt. No. 27. It asserted a breach of contract claim in that complaint against all Defendants, and cited a link to a Virgin Islands website that contained the contract between

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VIHFA and former Defendant WOB. Id. ¶ 7. The link apparently contained V.I. Government disaster relief contracts: www.vihfa.gov/disaster-recovery/contracts. Id. In its March 2023 opposition to AECOM's motion to dismiss the Second Amended Complaint, Plaintiff quoted contents of both AECOM's and Aptim's contracts with VIHFA—explicitly arguing that both contracts contained similar provisions, Dkt. No. 131 at 4, given its position that AECOM and Aptim had similar responsibilities as the "two prime construction management contractors,"

Dkt. No. 112-1 ¶ 13. Plaintiff attached a copy of AECOM's contract with the V.I. Government. Dkt. No. 131 at 4; Dkt. No. 131-1. It further argued that the Court could consider exhibits integral to the complaint, such as the contracts—which were part of the public record on the V.I. Government's website, including the AECOM contract "and other documents"—without converting the motion to one for summary judgment.³Dkt. No. 131 at 6-7. It would be entirely plausible for the Court to conclude that if the WOB and AECOM contracts with the V.I. Government were posted on that website in 2023 if not earlier, Aptim's contract with VIHFA would have been as well, pointing to the fact that Plaintiff knew, years ago, what those contracts provided—a conclusion bolstered by the fact that Plaintiff filed the exact same breach of contract, and breach of contract/unjust enrichment claims against WOB and AECOM that it filed against Aptim in both its First and Second Amended Complaints. Plaintiff never asserted that it did not have copies of the contracts between the Virgin Islands

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Government and WOB, AECOM, and Aptim upon which it based its claims; it explicitly indicated that it had access to two of them by September 2023. And even if the Court accepts Aptim's statement that Plaintiff knew by December 2024 the terms of Aptim's contract with the V.I. Government, the only reason Plaintiff provided in its opening brief for seeking to amend in April 2025 was that it learned new facts during discovery to support its allegations, Dkt. No. 199 at 1. In its reply, it added that it had to sort through thousands of pages of discovery that took weeks to complete. Dkt. No. 207 at

2. Plaintiff's vague excuse relating to sorting through those documents obfuscates what exactly it learned in discovery and when, so that it could properly explain why it waited until April 2025 to file its Motion to Amend (thereby supporting why it could not have been filed earlier). This lack of specific information is, in the Court's view, a clear attempt to prevent the Court from knowing when Plaintiff possessed copies of the contracts upon which so many of the new allegations in the TAC were based to assess whether the delay was undue. Even more so, Plaintiff never explained what it learned in discovery, and when, to support the new unjust enrichment allegations in the TAC. This is particularly problematic because the non-payment for work performed appears to have prompted Plaintiff's complaint in the first instance, and there is no indication why the new unjust enrichment allegations could not have been made earlier. Plaintiff's non-specific explanation for the delay in moving to amend does not constitute a "cogent justification" or "colorable excuse" for why it could not have filed its motion earlier. Cureton, 252 F.3d at 273. This "undue delay" is a sufficient reason to deny the Motion to Amend as to Aptim.

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In addition, futility and prejudice also provide grounds to deny the motion. As to futility, Aptim argues that the TAC explicitly alleged that Plaintiff had no contract with Aptim. Plaintiff counters that it performed certain construction "pursuant to work orders issued by APTIM," Dkt. No. 207 at 7 (quoting Dkt. No. 199-2 ¶ 407), submitted invoices to Aptim

"through Lionsgate, but APTIM failed to pay" the invoices even though it promised to do so, id. (quoting Dkt. No. 199-2 ¶¶ 408-10); and its "subcontractor agreements . . . had to include all the requirements from APTIM's contract with VIHFA" and "[t]his means that any subsequent agreements by APTIM had to guarantee that APTIM would pay even if Lionsgate did not pay." Dkt. No. 207 at 8.

These allegations and Plaintiff's conclusions drawn from them do not equate to a contract between Aptim and Plaintiff—a point Plaintiff acknowledged in TAC when it asserted ""[t]his failure by APTIM to contract directly with Plaintiff was in violation of the Programs requirement to give preference to local workers and companies." Dkt. No. 199-2, ¶ 195. Thus, unspecified "orders" or "work orders" that Aptim issued were not issued pursuant to any contract Aptim had with Plaintiff. The allegations also show that Plaintiff submitted its invoices to Lionsgate, not Aptim, id. ¶ 412, and thus there was no contract with Plaintiff requiring Aptim to pay the invoices Plaintiff submitted to Lionsgate. Plaintiff posits that Aptim's contract with VIHFA "means that" Aptim had to agree to pay subcontractors if Lionsgate did not pay, but cites no provision in the VIHFA-Aptim contract that actually states that—where the contract itself specified that it did not create any third party beneficiaries and only the parties could modify it, Dkt. No. 204-2 at 27 (§III)(N)—or any legal authority

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for its conclusory statement. The breach of contract claim against Aptim fails to state a claim, and to the extent the Motion to Amend seeks to add such a claim against Aptim in Count III, it is denied in the alternative as futile. See Watson, 2019 WL 123878, at *2 ("It goes without saying that before one can be entitled to a remedy for breach of contract, one must first prove that a contract was formed . . . ").

The Court must also consider the issue of prejudice prompted by certain assertions in Plaintiff's reply brief. There, Plaintiff introduced two new alternate theories of liability:

that Aptim agreed to be a "guarantor" for the payments that Lionsgate failed to make, Dkt. No. 207 at 9 (citing Dkt. No. 199-2 ¶¶ 327, 331⁴), and—if the Court agreed with Aptim that

"the TAC fail[ed] to plead sufficient allegations under a breach of contract theory"—it must

"then evaluate whether Plaintiff has nevertheless adequately pled an alternative claim for promissory estoppel." Dkt. No. 207 at 10. The Reply sets out the elements for a promissory estoppel claim and argues that the TAC states such a claim. Id. Plaintiff's inclusion of these arguments reveals that it is planning to litigate these new claims going forward in a late effort to bolster its damages claims. And because these two new claims are raised for the first time in a reply brief, Aptim did not have an opportunity to respond, under the briefing rules, that it would be prejudiced by them.⁵However, based on the record before the Court, it is clear that Aptim would be prejudiced.

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When considering the issue of prejudice, a court must determine whether allowing amendment would result in additional discovery, cost, and preparation to defend against new facts or new theories. Cureton, 252 F.3d at 273. Plaintiff is attempting to raise and litigate new theories, if not new claims— guarantee on debt and promissory estoppel—six years after the complaint was first filed and after discovery has closed, and with no explanation why it could not have alleged these claims earlier. Dkt. No. 207 at 9-10. At the very least, these claims would require discovery around the questions, for example, of whether Aptim made a promise that it should have "reasonably expected to induce action,"

whether Plaintiff took action in reliance on that promise, Mosler, 78 V.I. at 670, and whether an Aptim email could serve as a written guarantee that modified Plaintiff's contract with Lionsgate. Dkt. No. 207 at 10. Consequently, the Court concludes that it is not in the interest of justice to reopen discovery, extend the deadlines, and delay this matter any further. Moreover, because these new claims would prejudice Aptim, they serve as another, independent reason to deny the Motion to Amend as to Aptim. Trunzo v. Citi Mortg., 43 F. Supp. 3d 517, 526 (W.D. Pa. 2014) ("shoehorning in 'a new theory into the case several years after the beginning of the litigation' is prejudicial to an opposing party, CMR, 703 F.3d at 630-

31. Here, Plaintiffs seek to do exactly that."); Lafate v. Vanguard Group, Inc., No. 13-cv-5555, 2014 WL 5314832, at *2 (E.D. Pa. Oct. 16, 2014) ("Courts in this district have found undue delay and/or prejudice where the proposed amendments assert new claims, where new discovery would be necessary, and where the motion for leave to amend was filed months after the factual basis of the amendment was discovered by the moving party.") (citing

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cases); see also Deakyne v. Comm'rs of Lewes, 416 F.2d 290, 300 (3d Cir. 1990) (prejudice means "undue difficulty in prosecuting a lawsuit as a result of a change of tactics or theories on the part of the other party."); McLean v. United States, No. 14-cv-02298, 2017 WL 3485741, at *2 (M.D. Pa. Aug. 15, 2017) ("the time and expense of re-opening discovery is sufficiently prejudicial to prevent the addition of new claims") (citing cases). Accordingly, the Court will deny the Motion to Amend as to Aptim based on undue delay, futility, and prejudice.

CONCLUSION

For the above reasons, it is hereby ORDERED that Plaintiff's Motion to Amend the Second Amended Complaint, Dkt. No. 199, is DENIED. The operative complaint in this case remains the Second Amended Complaint.

ENTER:

Dated: June 24, 2025 /s/ Emile A. Henderson III

EMILE A. HENDERSON III

U.S. MAGISTRATE JUDGE