govinfo:USCOURTS-dcd-1_14-cv-01339-7

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UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
 
 
ANDREW SCOLLICK, ex rel United States 
of America, 
 
 Plaintiff, 
 
 
v. 
 
Case No. 1:14-cv-1339-RCL 
VIJAY NARULA, et al., 
 
 Defendants . 
 
 
 
MEMORANDUM OPINION & ORDER 
Over a decade ago, Plaintiff -Relator Andrew Scollick  brought this case alleging false 
claims for payments submitted to the U.S. government under the Department of Veterans’ Affairs 
service-disabled veteran-owned small business contract set aside program.  Compl. at 10–11, ECF 
No. 1.  On the eve of trial, the parties confirmed that they had reached a settlement, and the Court 
vacated the trial date upon their request.  Before the Court now is Plaintiff’s motion to enforce the 
settlement.  Mot. to Enforce, ECF No. 526.  For the  reasons that follow, the Court GRANTS the 
motion and ORDERS the parties to file a joint status report on any continuing need for a status 
conference on this matter. 
I. BACKGROUND 
The Court assumes familiarity with the underlying facts of this case, which is detailed at 
length in several opinions.  See, e.g., United States ex rel. Scollick v. Narula , 215 F. Supp. 3d 26 
(D.D.C. 2016) ; United States ex rel. Scollick v. Narula, No. 14- cv-1339, 2017 WL 3268857 
(D.D.C. July 31, 2017); Scollick ex rel. United States v. Narula , No. 14- cv-1339, 2022 WL 
3020936 (D.D.C. July 29, 2022) ; Scollick ex rel. United States v. Narula, No. 14-cv-1339, 2024 
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WL 2017132 (D.D.C. May 7, 2024).  The following recites only those facts relevant to Plaintiff’s 
motion to enforce the settlement. 
On May 13, 2024, this Court vacated the initial trial date after all interested parties relayed 
their agreement in principle for settlement.  Order Continuing Trial, ECF No. 520.  Defendants  
circulated a draft settlement to Plaintiff on July 12, 2024, with their permission for it to be sent to 
the United States Department of Justice (“DOJ”) for approval pursuant to 31 U.S.C. § 3730(b)(1).  
See Mot. to Enforce at 2, ECF No. 526; Opp’n to Mot. to Enforce at 1, ECF No. 528.  Plaintiff 
accepted the DOJ’s initial changes to the settlement agreement and recirculated to all parties on 
December 17, 2024.  Exhibit 2 (Email Correspondences) at 11, ECF No. 526-4.  After a final round 
of edits by Defendants, DOJ approved and recirculated on January 9, 2025, with a follow up 
confirmation on February 10, 2025, and  Plaintiff returned the agreement with his signature on 
February 19, 2025.  Id. at 5–10.   
But on March 1, 2025, the OST Defendants’ counsel relayed his clients’ failure to sign, 
stating that changing conditions with respect to government contracting under  the new 
administration drew their full attention.  Id. at 2–3.  On March 6, 2025, Plaintiff moved for a status 
hearing, which was held on April 14, 2025.  ECF Nos. 524–25.  Three days before that hearing, 
Plaintiff filed the motion to enforce the settlement agreement along with a request to seek leave to 
file for attorney’s fees as sanctions.  Pl.’s Mo. to Enforce, ECF No. 526.  On April 25, 2025, the 
OST Defendants filed their opposition to both motions primarily on the grounds of changed 
business conditions.  OST Opp’n, ECF No. 528.  Plaintiff filed his  reply on May 2, 2025, 
reiterating his desire for this Court to summarily enforce the settlement agreement as executed in 
February, along with a request to seek additional sanctions for the time spent seeking enforcement.  
Pl.’s Reply, ECF No. 530.   
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While the  remaining defendants have indicat ed a willingness to proceed with the 
settlement, they have deferred to the OST Defendants in their respective opposition motions.  See 
CSG Defendants Opp’n to Mot. to Enforce, ECF No. 527 (“CSG Defendants have already agreed 
to and do agree to the terms of the Global Settlement Agreement . . . but understand that the purpose 
of the Agreement is to effectuate a global settlement of this lawsuit among all parties. ”); Parekh 
Defendants Opp’n to Mot. to Enforce, ECF No. 529 (“To be clear, Parekh has agreed to the terms 
of the Global Settlement Agreement . . . but understands that his portion of the Global Settlement 
Agreement is dependent on all of the other Defendants’ commitment to and execution of the 
Agreement.”). 
The OST Defendants subsequently moved for  leave to f ile sur-reply on May 9, 2025, 
attaching a declaration from the founder and Chairman of the Board of OST, Vijay Narula.  See 
Mot. for Leave, ECF No. 531; Decl. of Vijay Narula, ECF No. 531- 1.  Plaintiff opposed this 
motion, ECF No. 532, and has since filed an unopposed motion for a status conference to discuss 
possible discovery regarding the factual basis for the OST Defendants’ refusal to comply with the 
terms of the settlement, ECF No. 536. 
II. LEGAL STANDARDS 
“By filing a motion to enforce a settlement agreement, a party seeks to have the court bind 
the other party to an alleged agreement to settle claims.”  Blackstone v. Brink , 63 F. Supp. 3d 68, 
76 (D.D.C. 2014).  “It is well established that federal district courts have the authority to enforce 
settlement agreements entered into by the litigants in cases pending before them.” Ulliman Schutte 
Constr., LLC v. Emerson Process Mgmt. Power & Water Solutions, No. 02-cv-1987, 2007 WL 
1794105, at *3 (D.D.C. June 19, 2007).   
“The moving party bears the burden of proving by clear and convincing evidence that the 
parties reached a binding agreement.”  Demissie v. Starbucks Corp. Off. & Headquarters , 118 F. 
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Supp. 3d 29, 34 (D.D.C. 2015) .  But when a party raises impracticability as a defense to 
performance of a binding agreement, that party carries the burden of proof.  See Island Dev. Corp. 
v. D.C., 933 A.2d 340, 353 (D.C. 2007). 
III. DISCUSSION 
Plaintiff moves to enforce the settlement agreement and seeks sanctions for the delay that 
the OST Defendants have caused.  Before taking these issues in turn, the Court first addresses the 
OST Defendants’ motion for leave to file a sur-reply.  
A. Sur-Reply 
“The decision to grant or deny leave to file a sur-reply is committed to the sound discretion 
of the Court.”  Clendenny v. the Architect of the Capitol, 236 F. Supp. 3d 11, 17 n.2 (D.D.C. 2017) 
(cleaned up) (quoting Akers v. Beal B ank, 760 F. Supp. 2d 1, 3 (D.D.C. 2011)).  Sur -replies may 
be appropriate when “ the movant raises arguments for the first time in his reply to the non-
movant’s opposition.”  Imapizza, LLC v. At Pizza Ltd., No. 17-cv-2327, 2018 WL 6619852, at *1 
(D.D.C. July 26, 2018) ( quoting Ying Qing Lu v. Lezell , 45 F. Supp. 3d 86, 91 (D.D.C. 2014)) .  
But absent special circumstances, they are “are generally disfavored.” Paleteria La Michoacana, 
Inc. v. Productos Lacteos Tocumbo S.A. De C.V., 247 F. Supp. 3d 76, 93 (D.D.C. 2017). 
The OST Defendants argue that Plaintiff raised new facts in his  reply to their opposition, 
and that they should be able to contest those representations  in a sur-reply.  See Mot. for Leave, 
ECF No. 531.  Their proposed sur -reply takes the form of a declaration by one of the OST 
Defendants, Vijay Narula, the founder and Chairman of the Board of OST, who counters factual 
claims made in Plaintiff’s reply about the financial state of the company.  See Decl. of Vijay 
Narula, ECF No. 531- 1.  Plaintiff points out that the OST Defendants raised the factual issue of 
OST’s financial instability—but then failed to provide any evidence in support of this assertion—  
in their opposition.  Opp’n to Mot. for Leave, ECF No. 532 at 8 (“ Defendants failed to offer any 
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evidence whatsoever when their opposition was due to support their impracticability defense or 
their alleged inability to pay under the agreed upon settlement agreement.”).  
The Court agrees that it is not manifestly unfair to deny the OST Defendants an opportunity 
to respond to Plaintiff’s assertions regarding OST’s financial position when the OST Defendants 
forewent the opportunity to provide the Court with evidence of their asserted inability to pay in 
their opposition. And in any case, because the sur-reply supplements only the factual basis of the 
impracticability defense, considering it would not alter the Court’s analysis since the defense fails 
as a matter of law, as discussed below. 
B. Motion to Enforce the Settlement Agreement 
The OST Defendants oppose enforcement on the grounds of the impracticability defense 
without directly contesting contract formation.  The Court nevertheless begins by assuring itself 
that the parties came to a binding agreement before turning to the asserted defense. 
1. Contract Formation 
Settlement agreements are subject to general principles of contract law regarding their 
formation and enforcement.  Tsintolas Realty Co. v. Mendez, 984 A.2d 181, 188 (D.C. 2009).  To 
enforce a contract under District of Columbia law, the court must find that there was “(1) an 
agreement to all material terms, and (2) intention of the parties to be bound.”  Duffy v. Duffy, 881 
A.2d 630, 634 (D.C. 2005) (quotation omitted). 
Generally, a signed written agreement is not necessary for contract formation when there 
is an objectively manifested intent to be bound.  See Makins v. D.C., 277 F.3d 544, 547 (D.C. Cir. 
2002) (“The [parties] agreed upon essential terms.  That [one of the parties] refused to sign the 
settlement papers is therefore not conclusive . . . .”) .  Moreover, communications between the 
parties may reinforce their mutual intent to be bound.  See, e.g., Dyer v. Bilaal , 983 A.2d 349, 
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357–59 (D.C. 2009) (concluding emails between the parties that communicated terms and mutual 
agreement displayed intent to be bound).  
Here, the parties represented their mutual agreement in principle to settle in advance of 
trial, and then worked with DOJ to get its approval.  Multiple rounds of edits took place within the 
government, culminating with DOJ accepting defense counsel’s final edits on January 9, 2025.  
See Exhibit 2 (Email Correspondences) at 7–8, ECF No. 526-1.  On the January 10, 2025, the OST 
Defendants thanked DOJ counsel for resolving all outstanding questions and stated that they “ha[d] 
no objections.”  Id. at 7.   
The OST Defendants do not deny that the s ettlement agreement is a complete 
representation of the agreed-upon terms.  See Opp’n to Mot. to Enforce at 1, ECF No. 528 (stating 
in their opposition that “the OST Defendants do not contest that they were fully prepared to execute 
the agreement” when they initially circulated it to DOJ and the plaintiff in July 2024).  Nor do they 
argue that their signature is necessary to enforce the s ettlement agreement as a matter of contract 
law.  Rather than contesting formati on, the OST Defendants oppose summary enforcement by 
asserting an impracticability defense to performance of the settlement agreement.  It is to this issue 
that the Court now turns. 
2. Impracticability Defense 
DC law recognizes commercial impracticability as a defense to performance when there is 
(1) the unexpected occurrence of an intervening act; (2) the risk of the unexpected occurrence was 
not allocated by agreement or custom; and (3) the occurrence made per formance impracticable. 
See Transatlantic Financing Corp. v. United States , 363 F.2d 312, 315 (D.C. Cir. 1966) .  Here,  
the OST Defendants’ argument fumbles at the second and third step. 
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A promisor’s misplaced reliance on third -party funding does not “convert financial 
inability to perform into an objective impossibility ” since the promisor is generally viewed as 
having assumed the risk that its source of funding might run dry.  See E. Cap. View Cmty. Dev. 
Corp. v. Robinson (“E. Cap. View”), 941 A.2d 1036, 1041–42 (D.C. 2008) .  Put differently, t he 
impracticability defense under D.C. law rarely  recognizes an inability- to-pay argument because 
the “anticipation of funding from one source does not alter the party’s duty to perform.”  Id.  And 
while it is true that a contractual duty may be discharged on the grounds of impracticability when 
the letter of the law  prohibits performance, see Wm. P. Lipscomb Co. v. Kaldenbach & Wysong, 
187 A.2d 124, 125–26 (D.C. 1962) , the OST Defendants do not cite authority suggesting that 
performance becomes impracticable simply because a party loses the government as its primary 
client. 
Simply put, the unexpected loss of funding from the government does not excuse the OST 
Defendants’ performance of the contract even if  they were completely beholden to this  single 
source of revenue and this  was known to both parties at the time of the agreement.  See E. Cap. 
View, 941 A.2d at 1041 –42 (“[E]ven if the promisee knows that the promisor ’s sole source of 
funding comes from a third- party and that promisor can no longer obtain funds from the third-
party, the promisor is still obligated .” (quotation omitted)).  Even the threat of “insolvency is 
unlikely to excuse performance.”  Id.   
Although the government’s action may have dramatically reduced the OST Defendants’ 
revenue, the executive orders did not prohibit by law performance of the s ettlement agreement.  
And since the OST Defendants cannot meet the third prong of the test for impracticability as a 
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matter of law, the Court need not consider the factual basis for their representations  relating to 
OST’s financial health.1 
C. Motion for Sanctions 
Plaintiff asks the Court to grant him leave to seek fees and costs as a sanction against the 
OST Defendants whose actions necessitated Plaintiffs’ enforcement motion.  ECF No. 526 at 11.  
A district court has the inherent authority to impose sanctions on a party to protect the Court’s  
“institutional integrity and to guard against abuses of the judicial process” upon finding by clear 
and convincing evidence that a party acted in bad faith.  Shephard v. Am. Broad. Cos., 62 F.3d 
1469, 1472 (D.C. Cir. 1995).   
While the OST Defendants’ arguments against enforcement of the settlement fail, the Court 
finds that their refusal to sign the agreement was not an act of bad faith.  It is true that signing the 
agreement is a mutual obligation of the parties, and the timeline contemplated in the agreement 
uses the date of the final signatory as the triggering event for payments to the Plaintiff and the 
government.  Settlement Agreement  at ¶ 26.  But while the OST Defendants may have 
misunderstood the merits of their imprac ticability defense, they made the argument in a timely 
response to the motion to enforce, which Plaintiff filed after only a few weeks of delay.  Unlike 
the cases cited by Plaintiff, nothing in this record indicates the OST Defendants “used every trick 
up [their] sleeve” to evade the settlement agreement, such as ignoring an adverse ruling requiring 
them to sign the agreement or misrepresenting the situation to this Court.  See, e.g., Farmer v. 
Banco Popular of North America, 791 F.3d 1246, 1251–55, 1258 (10th Cir. 2015)  (emphasis 
omitted).  The Court will therefore deny Plaintiffs’ request for sanctions. 
 
1 The OST Defendants request, in the alternative to denying the Plaintiff’s motion to enforce, that the Court extend 
the execution of the agreement 180 days.  See ECF No. 528 at 2.   Since Plaintiff filed his motion to enforce the 
settlement agreement over a year ago, the Court denies this request.  See ECF No. 526. 
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